← UnJustified
UnJustified
Performative Prosecution
01:01:11
The purge of career prosecutors at the Department of Justice continues as the regime fired a US Attorney in Sacramento hours after she reminded a Border Patrol Chief to abide by court-ordered restrictions on immigration raids. President Trump sharply escalated his attacks on the Bureau this week by falsely accusing the FBI of fomenting the violence at the Capitol on January 6th. Attorney General Pam Bondi issued a memo this week directing agencies to arrest every person suspected of threatening or assaulting a federal law enforcement officer. The Department of Justice issued a subpoena for Fulton County District Attorney Fani Willis' travel records as Trump continues his revenge tour.
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- [00:01]
A
MSW Media.
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B
The purge of career prosecutors at the Department of Justice continues as the administration fired a U.S. attorney in Sacramento hours after she reminded a Border Patrol chief to abide by court ordered restrictions on immigration raids.
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A
President Trump sharply escalated his attacks on the bureau this week by falsely accusing the FBI of fomenting the violence at the Capitol on January 6th.
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B
Attorney General Pam Bondi issued a memo this week directing agencies to arrest every person suspected of threatening or assaulting a federal law enforcement officer.
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A
And Trump continues his revenge tour with the Department of Justice, issuing a subpoena for Fulton County District Attorney Fani Willis travel records from last year. This is unjustified. Hey, everybody. Welcome to episode 37 of Unjustified. This is the podcast where Andy McCabe and I cover all of Trump's Justice Department Shenanigans. It's Sunday, October 5th, 2025. I'm Alison Gill.
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B
And I'm Andy McCabe. And once again, Allison, we have shenanigans galore. It's always a stacked week of shenanigans here on the watch of doj. So much news. Don't really know where to start.
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A
Yeah, and that's the thing, right? That was one of the choices when we first started this particular show back in January of this year. One of the. We were going to maybe call it Shenanigans, but we decided Unjustified was probably better. So, yeah, let's start, Andy, with the ongoing weaponization of the Department of Justice after last week's indictment of Jim Comey. A few more things have come out about just how untenable this indictment is, including a possible problem with Lindsey Halligan's appointment as the U.S. attorney in the Eastern District of Virginia.
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B
You don't say. I feel like that sounds a little bit familiar.
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A
It does. It does. Alina Haba, as you know, the previous U.S. attorney, Eric Siebert, refused to indict Jim Comey and even wrote a declination memo and gave it to Lindsey Halligan after Trump installed her as the interim or acting or temporary or vibes U.S. attorney for the Eastern District of Virginia. I'm not sure what her title is. And according to reports, she presented the case to the grand jury herself. And since last week's episode, we got the court transcript of her appearance before the magistrate judge, you know, proceeding over that indictment in Virginia.
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B
Yes. And the transcript is fascinating. So it reads like this, the court. So that's of course, the designation for this is what the judge said. But this, we're going right off the transcript here. The court. So this has never happened before. I've been handed two documents that are in the Mr. Comey case that are inconsistent with one another. The one that says it's a failure to concur in an indictment. It doesn't say with respect to one count. It looks like they failed to concur across all three counts. So I'm a little confused. And as to why I was handed two things with the same case number that are inconsistent.
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A
Ms. Halligan says so. I only reviewed the one with the two counts that our office redrafted when we found out about the two. The two counts that were true billed, and I signed that one. I didn't see the other one. I don't know where that came from.
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B
You didn't see it?
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A
I did not see that one.
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B
So your office didn't prepare the indictment that they.
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A
No, no, no, no. I know. I prepared three counts. I only signed the one. The two count. I don't. I don't know which one. With three counts you have in your hands.
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B
Okay. But it has your signature on it.
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A
Okay. Well, the end.
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B
Such a dramatic reading for the week. I think that was awesome.
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A
Well done. Well done. You have. You have a fallback job after the FBI.
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B
As do you, my friend, an actor.
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A
Now, another problem with this indictment, besides the issues that we just went over in the court transcript and the issues that you and I discussed last week, you know about, where's the lie? Is it from 2017? Because that's too old. Lindsey Halligan may not have the proper authority. Ed Whelan writes the following for the National Review. He said there are two general authorities for filling a U.S. attorney vacancy and two avenues under each authority. One authority is section 546 of Title 28. Section 546 authorizes the Attorney General, Pam Bondi, to appoint an interim U.S. attorney for a term of 120 days under Section 546D. Once that 120 days expires, the district court for such district may appoint a United States Attorney to serve until the vacancy is filled. The other authority is the Vacancies Reform act. Under subsection 3345A1 of Title Voice, the First Assistant in the U.S. attorney's Office automatically becomes Acting United States Attorney unless the President exercises his authority to direct an eligible individual to become acting United States Attorney. So the assistant becomes the U.S. attorney, which is what happened with that one guy who made himself his assistant so that he. So he could be the U.S. attorney. The distinction between a United States Attorney, even on an interim basis and an acting U.S. attorney is elementary and it reflects whether the person is exercising the authority of the Office via section 546 or via the Vacancies Reform Act.
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B
Yes. Now, the Department of Justice meticulously recognizes the distinction. We see, for example, that it lists Elena Haba as, quote, Acting U.S. attorney for the District of New Jersey. By contrast, it identifies Lindsay Halligan as just, quote, United States Attorney for the Eastern District of Virginia. That's also how she identified herself on the indictment of James Comey. And it's how DOJ refers to her in its press release on the indictment. The defect in a purported appointment of Halligan under 546 arises from the fact that Eric Siebert had already served a full 120 day term as the Attorney General appointed interim US Attorney. Section 546 is best read to mean that the Attorney General cannot make a second interim appointment under section 546 after the first interim appointment has expired. Instead, the authority to make an interim appointment then lies with the District Court. Now, this has been DOJ's own long standing position set forth in a 1986 Office of Legal Counsel opinion by then Deputy Assistant Attorney General Samuel Alito. We know him pretty well at this point, right? Yeah.
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A
Yeah. Now, as George Conway points out, Lindsey Halligan is the only lawyer that signed this indictment. So if it's found that she doesn't have the authority to sign it or to be the interim Acting Vibes Attorney General or, excuse me, U.S. attorney, the DOJ would have to go back to the grand jury and get another true bill, which they cannot do because the statute of limitations expired at midnight last Tuesday. Now, normally, Andy, I'd say this is a red herring, right, because we've seen a lot of folks try to say that a U.S. attorney doesn't have authority or special counsel doesn't have authority, or they've been appointed improperly. But this week, a second Trump appointed U.S. attorney was disqualified after a federal judge ruled her appointment invalid. Her name is Sigal Chatta and she's out as a U.S. attorney in Nevada, just as a judge had ruled that Alina Haba's appointment in New Jersey was invalid. The judge in Chatta's case did not dismiss the indictment, though, because it was signed by an assistant U.S. attorney and not Ms. Chatta. Now, the indictment against Comey, on the other hand, had no other signatories on it.
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B
Another mistake.
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A
This could be a problem. I imagine this will be one of multiple motions to dismiss, to dismiss this indictment against Comey that will be filed by his lawyer, Fitzgerald, in the Eastern District of Virginia.
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B
Those motions are stacked up like cars on a highway at rush hour. At this point, they're all, everybody's fighting to get to the, in front of the judge first.
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A
It's like the Carvana car vending machine, but with motions to dismiss.
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B
Exactly. So I, first of all, Halligan, I'm gonna, I'm gonna go with a term that I've heard my daughter use many, many times in so many contexts, and I'm not 100% sure what it means, but I do think it fits here. And that is, she's the low key U.S. attorney. Kids seem to like everything low key these days. And she's definitely low key in that she fumbled the indictment pretty poorly, managed to get it over the finish line, but now the whole thing seems to be a pretty rickety house because to, to live, she loses this thing on, on this technicality. She just pack her stuff and leave without telling anyone. Low key departure from the office. Because this is not going to go over well with the big guy.
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A
No. And there will be a vindictive and selective prosecution motion for sure, which are very rare to get. But today, as we're sitting here breaking a judge in Kilmar Abrego's case has ruled that there is, it does appear to be evidence of vindictive prosecution and has ordered discovery and a hearing forthwith to find out. Because now the onus is on the government, on Trump's Department of Justice, to prove that it did not vindictively prosecute Mr. Abrego. And, you know, while we rarely see, like I said, these vindictive and selective prosecution motions get any, you know, any kind of juice that one made it. And certainly if, if, you know, odds are even the Comey indictment, there's plenty of evidence for vindictive and selective prosecution there as well.
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B
Yeah, I mean, Judge Shinlin said that on cnn she thought it was the best potential case for vindictive and selective that she'd ever seen. And she's seen quite a few cases. You know, I think in another way, Alison, this is like, we've been talking a lot over the last few weeks about the loss of the presumption of regularity and the way that the department is kind of declining in the overall view of the judges and the courts. And I think this is another aspect of that, like, yeah, vindictive and selective prosecutions. Those motions were very hard to be successful at because generally the courts knew that the department didn't engage in that kind of activity. It didn't, it wasn't approaching your run of the mill criminal cases in a vindictive and selective way. But I think it's possible they just don't believe that anymore. Right. Because they've been given so many examples of these somewhat outrageous cases and the conduct by the government has been so questionable in so many of them that really the door is open to these kind of things now.
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A
Yeah. And as soon as we get that flurry of motions in the Comey case, we'll be sure to cover it here. But we have more weaponization this week.
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B
Yes, we do. The next story comes to us from the New York Times, and they say the Department of Justice has issued a subpoena for records related to the travel history of Fawney Willis, the Georgia district attorney who charged President Trump in a sweeping election interference case, according to a federal grand jury subpoena reviewed by the New York Times. In Georgia, federal investigators are seeking records related to travel they believe Ms. Willis took abroad around the time of last year's election. But it was not immediately clear why. The inquiry is being led by the office of Theodore s. Hertzberg, the U.S. attorney for the Northern District of Georgia.
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A
Yeah, and I actually think Hertzberg is a legit U.S. attorney, but I'll have to look into it. But last week, the Georgia Supreme Court declined to take up Fani Willis's appeal on her disqualification in the matter, leaving the case against Mr. Trump and his allies unlikely to proceed anytime soon, if at all. And after that ruling, Trump said in a social media post, because he loves to give evidence for a vindictive and selective prosecution. He said Ms. Willis and others who brought or tried to bring criminal or civil cases against him, quote, are now criminals who will hopefully pay, quote, serious consequences for their illegal actions, unquote. He has put increasing pressure on the Justice Department, shattering the agency's tradition of keeping the president at arm's length. On Friday, he predicted more indictments of, quote, corrupt radical left Democrats. He said that more are coming. So, again, these indictments, you know, while we sit here and parse out how these, this could be evidence in Exhibit A and a vindictive and selective prosecution motion should an indictment be brought against Fani Willis. I don't think winning in court is the goal here. Whether it's Comey or the investigation into Bolton, which we'll get to in a second, or Fani Willis or the investigations into Lisa Cook or Adam Schiff or Letitia James, I think it's just to put people in the position of having to defend themselves and pay money to file these motions and to get the immediate first impression, red meat stuff out to his base that he's indicted these folks.
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B
I think that's absolutely right. The purpose is. Is to be. To wreak vengeance. The purpose is. Is, you know, revenge, really. And if you can achieve that by having someone thrown in jail, great. That's terrific. But if that's not possible, then forcing them, as you said, to defend themselves, to put up. To take the money, to take the time away from their careers, to destroy their reputations publicly, and then, of course, there's always a political message involved here that they believe is advantageous for them. And that is, you know, that's the. That's for a very select audience of people who are already his supporters. So I. Yeah, there's no. I mean, this case has been a mess in Georgia for a long time, and once she was disqualified, the whole thing was pretty much over. But, you know, you would think, having had that concern eliminated, he would just walk away and. And not waste any more time on this thing. But that's. That's not consistent with getting revenge against every. Every human being that you. That you perceive as having wronged you in some way. So, yeah, I think it's gonna. They're going full steam ahead. They don't care that the courts think less of the Department of Justice or of the administration. Uh, they. They really don't care about that, so they're going full steam ahead.
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A
Yeah. And Judge McAfee, by the way, just now breaking news on Friday from Anna Bauer at Lawfare. Judge McAfee, the presiding judge in the Georgia criminal case against Trump and 17 other people, says he's going to dismiss the case unless a new prosecutor files a notice of appearance within 14 days. Yeah, so it's.
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B
That's just. That's just pro. I mean, he's doing what he has to do to clean this thing up. That's.
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A
It's procedural, but I don't think that this case goes forward at all.
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B
No, it's going to get dismissed.
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A
But it did. It did result in, you know, Chesbro losing his law license in 86 places. And, you know, so there have been some consequences to some of the folks who have pled guilty. Not. Not Sidney Powell. Her law license review was tossed out in Texas on the technicality. I don't think they ever refiled it. So there are a couple of consequences here, but not nearly what we would have seen had this case gone forward unfettered.
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B
Yeah, I mean, if I'm trying to remember correctly here, but there are quite. There were at least a handful of people that pled guilty already.
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A
Yeah, four or four people, I think.
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B
Yeah.
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A
And Meadows got his. He tried to take it to federal court and he got told no, it wasn't looking good for any of the remaining defendants until the disqualification happened. So.
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B
Right, right. Okay. And another story of weaponization that we didn't have time to get to last week. This one's from Politico. FBI agents executing a search warrant at former National Security Advisor John Bolton's downtown Washington office last month turned up documents marked as classified. According to a court filing released Tuesday, a description of the documents gathered in the Aug. 22 search suggested they included materials that referenced weapons of mass destruction, the US Mission to the United nations, and records related to the US Government's strategic communications.
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A
Yep. And the Politico goes on to say FBI agents also carried out a search warrant the same morning at Bolton's Bethesda, Maryland home. The inventory from that search contained no outward indication that classified information was located, but in both instances, agents reported seizing computers and other electronic devices whose contents were not detailed. Both of the search warrant applications indicated that FBI agents were seeking evidence related to three felony crimes, including gathering, transmitting, or losing national defense information in violation of the Espionage act and retaining classified information without permission.
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B
In Trump's first term, Bolton faced a lawsuit claiming he had included classified information in a book he wrote after leaving the administration. A federal judge warned publicly that that the former White House officials actions might have been criminal. However, a Justice Department probe did not lead to charges and was eventually dropped under the Biden administration in 2021.
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A
Yeah, and there's a reason for that. The lady in charge of doing the pre publication review of his book went through it meticulously, spent 14 hours talking to Bolton about it, went back and forth, looked at everything, and made all the changes necessary to find that there was no longer any issues about what was the information that was in the book. And then Michael Ellis took over the review but didn't say anything. And then also did the thing, Andy, where he was like, how about you call us from now on, no more emails. Because she kept emailing, saying, hey, where's your letter of approval for this publication review? And they were like, don't worry about it, Covid. They said, Covid is keeping everything slow. Well, she only found out later, believe it or not, when Michael Ellis asked if he could be trained on how to do a pre publication review and then found out that he did his own little review before he was trained on how to do it, of course, and marked a bunch of stuff classified after the fact. Kind of like what they did with Hillary's emails.
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B
Yeah.
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A
And so it was just a whole. And by the way, Michael Ellis, he's the guy who stashed the transcript of the perfect phone call to Zelensky in the Nice Eyes Only classified thing so no one else could look at it. That's that Michael Ellis. Same Michael Ellis that Trump tried to shove into the NSA in his last week in office so he could continue to borrow information out of the National Security Agency. Or is it National Security Agency? Is that what NSA stands for?
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B
It does, yeah.
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A
Okay. That seems very generic.
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B
They like it that way.
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A
Yeah. Right. Considering what they do.
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B
But the other name suggests place that listens to all your phone calls. But they thought, I don't know, that's a little too on the nose. So they went with nsa.
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A
Right. And then. And then they were like, no, there was a whole big thing about his appointment to NSA and it was revoked and he was under investigation at the. In the very last moments before Biden took office. Anyway, that's that Michael Ellis. And so it's. Regardless of all that, just like, they couldn't really indict Biden or Pence. I don't think that they're going to have a very easy time with this either. And. And they may get an indictment, but I don't think it's going to go very far.
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B
Hard to say at this point. I mean, I do. I agree with you. The book thing was a mess and it was a Trump one. Administration created mess.
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A
Clear.
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B
They didn't want the thing going out. Partially because they didn't. They didn't. They knew he'd be saying bad things about the president, but also because the president just hates it when someone else makes a dime. He just doesn't like that. So that was clearly a political thing. I have to say, though, I'm a little bit surprised that. That Bolton, if, you know, if this reporting is accurate, which we have no reason to believe. It's not because this is based on the court filing that the FBI found documents marked classified in his office. I mean, that is not a good thing.
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A
Yeah. Why didn't you do what Pence and Biden did and get everything and send it back and be like, oh, hey, I found this.
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B
Exactly.
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A
Why didn't you do this back when Trump was indicted for half?
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B
You find it and you'd be like, hey, call in and be like, hey, I Just found this, didn't know it was here. Send someone out to pick it up. Yeah. If you want to look at the rest of the office, go ahead. And then. And then you've handled it like Mike Pence did or Joe Biden did or whatever. So this is, you know, for a guy who's. Who knows that he's in the crosshairs. I mean, like, you know, it might.
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A
Have been classified after the fact, but it says it was marked.
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B
It says it was marked.
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A
We'll see.
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B
It's hard to say, but we'll see. We'll find out more about this, because if this thing is gonna. It sounds like it's gonna go. I think he'll get past indictment stage if they actually found these documents there.
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A
But did they find out for him back and he said no, and then did he drain his pool into his server room to delete all the evidence?
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B
Did he send his little assistant down to. Down to the office to cut through the hedges and meet with the other guys?
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A
Right.
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B
These are all throwbacks for the Jack audience. Okay. If you're out there and you just started listening recently, you got to go back to the. To the OG Episodes. But, yeah, all references to the Mar? A Lago case.
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A
Yeah, yeah. And we'll talk a little bit about an update on that in the D block, too, before listener questions. And we're also going to talk about the continuing purge and resignations from people in Department of Justice, FBI, etc. There have been a lot this week, especially in the wake of the Comey indictment, and we're going to talk about that, but we have to take a quick break, so stick around. We'll be right back. Hey, everybody. Welcome back. All right, as I said before the break, the purge continues at the Department of Justice. This is from the New York Times. For 15 years, Michelle Beckwith oversaw some of the toughest federal prosecutions in California. She went after transnational terrorists, sex traffickers, and the Aryan Brotherhood. She became the Acting U.S. attorney in Sacramento this year when her boss, a Biden appointee, stepped down in January. But her career crumbled in July, she said, after she issued a warning to Gregory Bovino. That's the California face of Trump's immigration crackdown. The dismissal of Ms. Beckwith appeared to be an early example of how Mr. Trump has fired top federal prosecutors who aren't helping him carry out his political agenda.
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B
Documents reviewed by the New York Times show that the July 15 firing of Ms. Beckwith occurred less than six hours after she told Mr. Bovino the border Patrol chief in charge of the Southern California raids that a court order prevented him from arresting people without probable cause in a vast expanse that stretches from the Oregon border to Bakersfield. She was removed not only from her Post as Acting U.S. attorney in the Eastern District of California, but from the office altogether. Quote, it's unjust, she said of the firings across the federal government this year in an interview. Quote, we have to stand up and insist the laws be followed.
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A
Yeah. And if the name Bovino rings a bell, we talked about him last week. That's the guy that flew out to Los Angeles. Or two weeks ago, that's the guy that we flew out on our taxpayer dime to Los Angeles to testify in a misdemeanor federal trial against a guy named Reyes Brito, during which Bovino appeared to give false testimony about the defendant hitting a federal officer when the video actually showed the officer hitting the defendant, Reyes Brito. And it took less than an hour for a jury to acquit him in a really, really embarrassing showing in court for the Department of Justice. But again, they don't care, I don't think.
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B
Right.
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A
But that's who Bovino is, Roger. So they just fired her because she said, hey, there's a new court order and you should do this. Follow this court order.
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B
Yeah.
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A
And then six hours later, she's gone.
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B
He was. He was, like, insulted that he felt that she suggested that his officers would not follow the law or something like that. You know, it just. It's. It's ridiculous. The whole thing is a disgrace. That guy.
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A
Small man. He's a small man.
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B
Yeah. Yeah, totally. Okay, next up from cnn. Days after being fired, a top national security prosecutor in Virginia's Eastern District taped a letter outside his former office accusing top Justice Department officials of being more concerned with going after President Donald Trump's perceived enemies than protecting the country's national security. The typed letter, dated Friday and signed by Michael Ben Arai. Am I pronouncing that correctly? Ben Arai?
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A
I don't know. I've never heard his name said out loud.
- [26:11]
B
Haven't either.
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A
It's an interesting name. It's B, E, N, apostrophe, A, R, Y.
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B
Right. Michael Ben Arai said that as a prosecutor, he took an oath that requires you to follow the facts and the law wherever they lead, free from fear or favor and unhindered by political interference. Quote, in recent months, the political leadership of the department have violated these principles, jeopardizing our national security and making American citizens less safe, he said. Ben Arai's letter adds to a list of federal prosecutors who, since Trump took office in January, say they were fired as a part of a political calculus and without consideration for their work.
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A
Yeah, the prosecutor was fired Wednesday after Julie Kelly, a MAGA activist and tweeter, posted on Twitter, quote, one can only assume he was a big part of the internal resistance to the Jim Comey indictment, but he wasn't involved in the case at all against former FBI Director Jim Comey.
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B
So, Julie, apparently one shouldn't assume that.
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A
And Ben Arai denounced his firing as without cause and quote, based on little more than a single social media post containing false information. Ben Arai wrote that his firing, quote, highlights the most troubling aspect of the current operations of the Department of Justice and the leadership is more concerned with punishing the president's perceived enemies than they are with protecting our national security. Ben Arai added that he was leading the criminal prosecution against a man allegedly involved in the planning of a bombing during the US withdrawal from Afghanistan in August of 2021. That's a case that Trump often brags about.
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B
Yes, he does. Okay. And also from Politico, we have President Donald Trump on Saturday falsely accused the FBI of fomenting the January 6, 2021 assault on the Capitol.
- [27:58]
A
Wait a min, this again.
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B
I thought it wasn't an assault at all. I thought it was a, it was an expression of love by a bunch of patriots who's now been freed.
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A
It was a, it was a fiesta.
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B
But apparently we're back to assault on the Capitol, just pinning it on someone else.
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A
Okay.
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B
Trump said on social media that the FBI had, quote, secretly placed, secretly pin in that word, 274 agents into the crowd of rioters who stormed the Capitol to disrupt the certification of Joe Biden's victory in the 2020.
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A
Now, that false accusation appears to have come from right leaning media that appeared to conflate the FBI's response to the January 6th attack, that the Bureau has long acknowledged that they sent agents and support personnel to the Capitol after the breach to help restore order. Yeah, they're conflating that with conspiracy theories that the Bureau embedded undercover agents to ignite the attack and foment violence in the first place. It's all their fault. Now, the inspector general, our best friend Michael Horowitz, did find that 26 FBI confidential sources, 26 who are these confidential sources who are not employees of the Bureau but have at times shared information, were among the crowd that day. But nearly all of them, according to the inspector general, did not tell the Bureau of their plans to attend, and none were instructed to violate any laws and participate in the riot. The inspector general report also found zero evidence, no evidence that the FBI had undercover employees in the various protest crowds or at the Capitol on January 6th. So even.
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B
And that's coming from Trump's favorite IG. So, Horowitz, you know, okay, two things here. First of all, So I guess 274 FBI agents who were sent to help repel the attack. It's good that we're all back to agreeing it was an attack. And this was like SWAT team members and other people with tactical skills. You can see them on the videos, like, walking members around trying to help them not get killed.
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A
Yeah.
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B
So there's that.
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A
Because we couldn't get the National Guard out. Because.
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B
Yeah. And on the people are still fascinated by this. 26 confidential sources. Let me just explain one thing around confidential sources. Confidential sources. Anyone who, with some regularity, decides for their own reasons, and people have many different reasons for doing this. They. They'll. They're interested in sitting down and talking to an FBI agent, sharing what they know with the government. They're not criminals. They're not charged with something. They. They are citizens like anyone else. And if they want to go to the Capitol, they can go. They don't have to tell.
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A
It would be like me telling the FBI I'm going to the Capitol and then going to the Capitol and reporting back to the FBI what I saw that day.
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B
Exactly. There's nothing. It's not suspicious or weird or creepy that these 26 people are out there. It's actually a good sign that the FBI has a lot of sources of information in this particular population of people who I believe are violent extremists.
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A
So. Yeah, but it's hard to prove a negative. It's hard to prove. It's hard to prove that those agents that were deployed to help protect the Capitol and the people of Congress and the officers that day.
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B
Yeah.
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A
It's hard to prove that they didn't grab a bullhorn and say, everybody get in there and hang Mike Pence wearing.
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B
Their FBI ray jackets. Go get them. Now we can show as many talking.
- [31:40]
A
We could show as many videos as we want of the people who did foment the violence.
- [31:44]
B
Yeah.
- [31:45]
A
Bullhorn lady, et cetera. You know, buffalo skin guy, you know, whatever. We have videos of people fomenting violence and that they are not FBI agents. No, but the thing about a conspiracy theory is if you say, oh, well, all of those FBI agents were helped fomenting violence, helping to foment the violence. It's impossible to say to prove that they weren't unless you have cameras on each one of them the whole time.
- [32:10]
B
Right, right.
- [32:11]
A
And show exactly what they did and didn't do.
- [32:14]
B
Right.
- [32:15]
A
So that's what allows the conspiracy theories to, to grow and for them to say, how do we know that these FBI agents weren't pushing the the peaceful protesters to hang Mike Pence and build a gallows the day before and store a bunch of weapons across the Potomac in a quick reaction force the day before? You know, it's hard.
- [32:36]
B
Yeah, it is. And if this doesn't go anywhere, this doesn't get the traction they want, then next week they'll be back to blaming it on antifa until somebody else says something about a number associated with FBI agents who were at the Capitol that day. Then it'll come back to this one again because they don't actually have to prove anything or make progress with these arguments. Just keep throwing them out there.
- [32:55]
A
Yes. For their base, their rabid base to continue to come up with conspiracy theories on right wing media outlets. All right. We're going to talk about a Sept. 29 memo that came from Pamela Bondi, the attorney general, and what it said about basically tasking multiple federal law enforcement members of multiple agencies to shift their priorities. And we'll talk about that in just a minute. We have to take another break. Stick around. We'll be right back. FOREIGN.
- [33:39]
B
Welcome back. Okay, our next story comes from cbs. Attorney General Pam Bondi signed a memo on Monday directing agents from the FBI, Drug Enforcement Administration and other Justice Department agencies to assist in guarding Immigration and Customs Enforcement facilities. The move by Bondi, which she hinted at on Friday, came after one detainee was killed and two others were injured in a shooting at an ICE field office in Dallas on Wednesday. The latest shooting or threat targeting an ICE facility or immigration agent in recent months. She cast that attack as the latest act of, quote, extreme political violence. In a memo shared on X, Bondi said the FBI, DEA, U.S. marshals Service and Bureau of Alcohol, Tobacco and Firearms and Explosives should, quote, immediately direct all necessary officers and agents to defend ICE facilities and personnel whenever and wherever they come under attack. She also announced the formation of a temporary ICE protection task force that could include federal, state and local law enforcement agencies.
- [34:46]
A
What our our okay. All right. Bondi also floated the broader crackdown on, quote, repeated acts of violence and obstruction against federal agents. And she directed the JTTF Joint Terrorism Task Forces, which are, as you know, Andy, regional entities scattered around the country that work with the FBI and with state and local police. She tasked them to look into what she described as, quote, domestic terrorism. Quote, the Department of Justice will seek the most serious available charges against all participants in these criminal mobs, including conspiracy offenses, assault offenses, civil disord terrorism. That's what she wrote on Friday. And isn't that what you do anyway, this whole thing? I mean, isn't that just what you like? I think you and I talked about this.
- [35:32]
B
It's nothing but what already happens. And even if you go back to her, language in the memo says defend ICE facilities and personnel whenever and wherever they come under attack. So therefore you don't actually have to do anything until after there's been an attack, which they all respond to anyway.
- [35:55]
A
Right?
- [35:55]
B
Yeah.
- [35:56]
A
Right. So do your jobs.
- [35:57]
B
Yeah.
- [35:58]
A
But here's a big political, political memo saying that do your jobs against left wing radical democratic terrorists, transgender ideological violent extremists. Sure, yeah.
- [36:09]
B
Yeah.
- [36:10]
A
So she also directed the agencies to arrest every person suspected of threatening or assaulting federal law enforcement. That's what you already do that and you lose quite a bit when you, by the way, bring those charges. And this week we have yet another failed indictment for an alleged assault against a member of the National Guard in D.C. that's right.
- [36:31]
B
Judge Sparkle Sugnanan writes. In 1940, then Acting Attorney General Robert H. Jackson famously declared, quote, the prosecutor has more control over life, liberty and reputation than any other person in America. And that's Attorney General Robert H. Jackson, the federal prosecutor. April 1, 1940. For residents of the District of Columbia, that sentiment reverberates today. For the last several weeks, judges in this district have seen case after case involving unprecedented prosecutorial action. In some cases, prosecutors have elected to pursue charges even after federal grand juries have refused to return an indictment. Most troubling, prosecutors have rushed to charge cases before properly investigating them, resulting in individuals being detained for days, only to have the government voluntarily dismiss the charges against them at early hearings.
- [37:26]
A
She goes on to say, on September 8, 2025, the United States filed an information charging Omari Juan Beidleman with one misdemeanor count of, quote, assaulting, resisting or impeding certain officers or employees. Mr. Bedelman immediately asserted his constitutional and statutory right to a speedy trial. As would I, Mr. Beetleman.
- [37:46]
B
Heck yeah.
- [37:47]
A
And this court set a trial date and a pretrial deadline, many pretrial deadlines that it told the government it would not move. Trial is scheduled to begin next month. The government is now apparently having second thoughts. Instead of complying with its Pretrial deadlines for this federal prosecution, the government moved to dismiss the case against Mr. Beadleman pursuant to Federal Rule of Criminal Procedure 48A, so that it can instead prosecute him in D.C. superior Court. The government asks that the dismissal be without prejudice in case it decides later that federal court is its preferred forum.
- [38:22]
B
After all, while the government may attempt to prosecute Mr. Bedelman in superior Court, it cannot do so while keeping its foot in the federal courthouse door. Dismissing the information without prejudice would subject Mr. Beetleman to prosecutorial harassment. And the government offers no compelling reasons, indeed hardly any reasons at all, for why it should be allowed to retain the option to stop and restart Mr. Bedelman's federal prosecution. In sum, it appears that the government seeks to dismiss this case without prejudice so that it might someday, quote, prosecute Mr. Bedelman at a different time, that it finds more favorable. To the extent that the government is not seeking a tactical advantage, the court is still persuaded that a dismissal without prejudice would result in harassment to Mr. Bedelman and would be contrary to the manifest public interest. This is especially true given that Mr. Bedelman has consistently and unequivocally asserted his constitutional and statutory right to a speedy trial. And now, only six weeks from having that right vindicated, is being dragged back to Square1 in D.C. superior Court. The information against Mr. Beetleman must therefore be dismissed with prejudice.
- [39:34]
A
Yes, I like Judge Fierce, fierce opinion there. Yeah, I love that quote, too, where she said, the government may attempt to prosecute Mr. Beidelman in Superior Court. It cannot do so while keeping its foot in the federal courthouse door. Again. That's that whole sort of Damocles thing. Right? They did it to Sussman in the Durham investigation. We might indict you more. They did it to Hunter Biden. We don't know. We might indict you more. You just wait and see. And you can't just have that hanging over your head, especially if you want to dismiss without prejudice, to go to Superior Court on a misdemeanor, and then see if at some point you get some evidence that wants. That allows you to bring it back to federal court. It's ridiculous. And she called it out for what it is.
- [40:22]
B
Yeah, it is kind of frustrating here. And I'm not. This is not the judge's fault, but it's kind of frustrating that the judge can't just dismiss the entire thing and prevent it from even going to Superior Court.
- [40:35]
A
Yeah.
- [40:35]
B
If you can't make this case and you've already abused and harassed this guy, it's Time to walk away.
- [40:43]
A
Yeah, I mean, for sure.
- [40:45]
B
Has he been in detention this whole time, do you know?
- [40:48]
A
I don't think so. I think he was out. He was out.
- [40:50]
B
Okay.
- [40:50]
A
On her cognizance. But, you know, that's one of the benefits of being like, I want my speedy trial and I want it now. What do we want? Speedy trial. When do we want it? Speedily, as she mentioned, that shows he is eager to go to trial to prove his innocence. And that was one of the factors that she took into account when she made this decision to dismiss with prejudice. So well done there. But, yeah, for Pam Bondi to come out and say you have to indict people who threaten to or assault federal officers whenever and wherever you can, they're like, we're trying. We can't get an indictment to stick because we keep lying. So anyway, this whole Pam Bondi memo is just, you know, you and I talked about it. A similar situation previously with the trying to say that we're going to have domestic terror organizations, which is not a thing under the law here. And in his executive order, he cites no legal authority because there isn't one.
- [41:53]
B
Right.
- [41:54]
A
He can't even make one up, like Alien Enemies act or, you know, whatever else that he's tried to come 12406 to, you know, call a National Guard out in Los Angeles. He can't get around it because there's just no such thing. And you and I are like, okay, so, you know, we're going to charge any and all murderers with murder. Like, it's just the. It's just the most ridiculous thing.
- [42:18]
B
It's performance.
- [42:20]
A
It is.
- [42:20]
B
It's not prosecution, it's performance.
- [42:22]
A
Yep. It's the revenge tour.
- [42:24]
B
Yeah.
- [42:25]
A
All right, everybody, we've got one more quick story before we get to listener questions. If you have a question for, for us, you can click on the link in the show notes and submit it and we will read it, and then maybe you'll get your question on the air. And we're going to do all of that after this last break. Stick around. We'll be right back. All right, like I said, we got one more story before we get to listener questions. And this one comes from the nonprofit watchdog American Oversight. Doing a lot of good work at that organization, they say. Tuesday, as the Trump administration continues to pursue its perceived political enemies over their alleged mishandling of classified documents, American oversight asked the U.S. court of Appeals for the 11th Circuit to vacate Judge Eileen Cannon's gag order that has indefinitely barred the Department of Justice from releasing Volume 2 of Special Counsel Jack Smith's report on President Trump's own mishandling of classified documents. That's a great opening paragraph, I gotta say. So, in light of you trying to investigate other people for classified documents, we would like volume two. Not that it hasn't been, you know, completely shredded and all evidence of it deleted.
- [43:41]
B
What volume two?
- [43:43]
A
There was never a volume two. We never had a volume two. Judge Cannon's January 21st order has prevented the public from accessing the report, which would ordinarily be subject to disclosure under FOIA pursuant to applicable exemptions. Of course, although all appeals in the criminal case were dismissed nearly a year ago, the injunction remains in effect, blocking the release of the information.
- [44:04]
B
They say, quote, as the Trump administration continues to target its perceived political enemies over the alleged handling of classified documents, the public is still being denied access to Special Counsel Smith's findings about Trump's own mishandling of classified documents, said Chioma Chukwu, executive director of American Oversight. Quote, transparency isn't optional in a democracy. The public has a right to know what Special Counsel Smith found. And the Justice Department cannot continue to withhold a key report that should have been released nearly a year ago under federal law. By keeping this order in place, Judge Cannon is undermining both accountability and the rule of law. American Oversight filed its petition for a writ of mandamus after repeatedly seeking relief in other courts, including the District of Columbia and the Southern District of Florida. With the injunction still in place nearly a year after the dismissal of the underlying criminal appeals, the 11th Circuit is now being asked to restore the public's right of access.
- [45:08]
A
They go on to say. In February, Judge Cannon rejected American Oversight's request to expedite a motion to lift her gag order barring the release of Smith's report. The request to expedite the motion was sought because the report is expected to contain information about whether the Federal Bureau of Investigation Director Kash Patel misled the public in claiming that Trump declassified documents before he left office. At the time of the motion, Patel's confirmation vote in the US Senate was imminent. Judge Cannon's ruling followed multiple attempts by American Oversight to seek Release of Volume 2. On February 10, the nonpartisan watchdog filed a FOIL lawsuit and a motion for preliminary injunction against the DOJ demanding the release of the report. After the agency's failure to respond to the FOIA request. In its opposition to American Oversight's motion, the DOJ relied on Judge Cannon's gag order. So they're going to the 11th Circuit for Eileen Cannon once again.
- [46:00]
B
There you go. There you go.
- [46:02]
A
We'll keep an eye on that, because it's going to be interesting if the 11th Circuit. And then thusly, the Supreme Court says that volume two can be released. It'll be interesting to see what the Trump administration does in response to that.
- [46:17]
B
No, that's one of my guess. Their response will be some version of that much longer version of hell, no.
- [46:23]
A
Well, they'll just release it entirely. Redacted.
- [46:25]
B
Yeah, yeah, yeah, pretty much.
- [46:27]
A
If they have it at all. All right, let's do some listener questions. What do we have today?
- [46:32]
B
All right, so we got a couple things here today. One, a little clarification, then I'm gonna do. There were a lot of questions about last week's episode, so questions regarding Comey. The Comey indictment. Excuse me. And I think in a kind of lightning round style, I can clear a lot of this up. And then if we still have a second, there's. There's two quick questions on Tom Homan. So first, the clarifying. Someone refers to themselves as no body bags. I'm not really sure what that means. Asked if. If I could tip the audience off to, like, when. Sorry, that was my dog shaking his collar again. When I appear on cnn. Or is it just random? It is totally random. I would love to tell you to pump up our ratings whenever I get on the. On the air, but I cannot do that because oftentimes I don't know until, you know, like, shortly before I'm there. So sorry about that. Okay, now onto the Comey questions, and I'm just going to give you the answers here ag. And when I. When I hit the last one, then we'll go back. You tell me if you differ. All right, first one, no, I am not person. Three, psychic question. No, I should not have been the news last week at all. That's. I was only in the news because a bunch of kind of sloppy reporters just jumped to a conclusion and an assumption that was not accurate.
- [47:56]
A
Ted Cruz didn't help.
- [47:57]
B
Didn't. No. He never helped me. That guy. No help Ted Cruz. That's what I call him. Lots of people call him no help Cruz. Okay, number three, no, Comey's trial, if there is one, will not be televised. This is in federal court. Federal court still has a ban against television cameras in the courtroom. Uh, number four, no, Comey did not tell me to leak in 2020. I thought I really went through this very carefully last week, but I told Comey what I was doing, and he does not remember that.
- [48:27]
A
And that was like 2016.
- [48:29]
B
That was in 2016. That's right. Yeah. So the 2020 is also wrong. Okay, now the last one comes from Owen. Owen says, hi, Andy and ag, thanks so much for helping detangle the latest scramble of reality. My question should be a quick one to answer. Is Director Comey not protected from indictment by any kind of privilege as having been doing his government work at the time of the alleged crime? Well, Owen, good question. But the answer, like all the other ones in this little segment, is no, because he's not been charged with any substantive offense like that. Right. They're not. They didn't charge him criminally with, you know, some sort of misconduct or something. What they charged him with was being inaccurate, intentionally inaccurate, when he testified in Congress. And that's kind of their way of. Even if he engaged in authorizing someone else to share information with the media, it would be really hard to try him for that, because as Director, he had the discretion to share information with the media if he wished. He also was a oca, an original classification authority, so he could make the determination even if something was classified, or he could potentially even declassify something. Now, he hasn't been. He hasn't been alleged to have done any of that stuff. I'm just giving you these as examples. But.
- [49:49]
A
But I declassified it all. I declassified it. Yeah. With my mind.
- [49:53]
B
Wave the, the Trumpian wand over it and it becomes unclassified. No. So he's been charged with making a false statement which was related to his 2020 testimony to Congress. So there isn't really.
- [50:09]
A
And anybody can be charged with a 1001 charge.
- [50:12]
B
That's right.
- [50:12]
A
You're not protected. Now, sometimes you'll see a congressperson say, hey, I have a privilege of speech or debate privilege, something like that. That, that sure usually doesn't fly, especially if you've lied to Congress. Right. Because there's an exception to those privileges, and those are crime fraud exceptions and stuff like that.
- [50:33]
B
Yeah. And I think Owen maybe is thinking a little bit about the civil immunity that, that officers of the government have or any government agent has. If you're operating within the scope of your duties, you can't be sued for civil damages. Again, that doesn't apply here because this is not a civil matter. And also, you know, making a false statement would not be within the scope of your duties. But, but anyway, it's a different thing entirely.
- [50:59]
A
Yep.
- [51:00]
B
Okay, so that's it for our comey corner of the question. The question sections this week. Now, we go on to Tom Homan. The first one comes from Gogo. Gogo asks, does Tom Homan have to give the government's money back? If not, does he have to pay income tax on it? Well, Gogo, I'm not a tax expert, but now I'm going to go in and give you some tax expertise. My reading of it is if he took that money for an agreement to provide legitimate non criminal consulting services, which I think is probably what Tom Coleman would say, then yes, you would have to declare that $50,000 as income. It is not immune from the federal tax law because it was presented to you in a kava bag.
- [51:48]
A
Well, perhaps the sixth IRS commissioner of the Trump term will look into that.
- [51:53]
B
Hey.
- [51:54]
A
But probably not.
- [51:55]
B
Yeah, keep hope alive over there, right? All right, so that's the last question. Also on Tom Homan is from Bridget, and she says they say FBI agents posed as businessmen. I was wondering if the FBI training includes acting lessons so that the agents can pose convincingly as the roles they are playing. The agents seem to have pulled this off and it's not an isolated occurrence.
- [52:18]
A
This is a cool question because I wonder this too, because, like, in order to go undercover, you gotta be really convincing. And I've only seen movies and television, you know, where they go to get the, the right outfits or whatever to go. Like I'm thinking of Dragnet with Tom Hanks and Dan Aykroyd, you know, where they have to dress as pagans, people against goodness and normalcy and dance in their goat leggings undercover. But, but I don't, I don't know if there's like, act. Well, probably not now that they've taken it from 18 weeks training at Quantico to eight weeks. There's probably not any lessons now. But do they have acting lessons on how to be a convincing undercover person?
- [53:05]
B
Well, not exactly, but kind of. So they don't call them acting lessons, but the FBI runs a school called the Undercover School. And I know not a very creative name, but if you want to become an undercover, if you want to do undercover work, you have to be certified as an undercover. And there's two different levels typically of certification. The first one is really just to do very minor roles and quick hits, kind of in cases that don't involve what you think of as long term undercover. But if you want to go all the way and be an undercover, you have to get through the undercover school. And it is very hard. It's hard to get into. You have to have like the right references and experience and recommendations. You got to be kind of a senior agent just to even do it or have at least a couple years under your belt. And the school itself is intense, and it goes on for weeks and weeks, and you are put into all kinds of very challenging. In addition to being. Yeah. To being trained in different tactics and techniques, you are constantly being assessed to see if you have the kind of inner strength and focus to be able to do this effectively and to maintain your undercover identity under all circumstances. And. And then they. They do all these practical trials, and when you're dropped, you're dropped into these different scenarios, and you have to very quickly assimilate all your legend. Information is what we call it, like who you are, where you're from, why you're here, what you want, how to answer questions about yourself based on this false identity. It's very intense. And it's.
- [54:52]
A
It's like when I give my fake ID at the bar, I gotta be able to say what my sign is and what month and day I was.
- [54:58]
B
Exactly. It's like that, but harder.
- [55:01]
A
Okay. Significantly harder. It's probably harder. Yeah.
- [55:03]
B
Big.
- [55:04]
A
A little harder than the groundlings. That's right.
- [55:06]
B
Huge failure rate. Like, maybe. I don't know if, you know, half the class doesn't make it or something like that. So they really work hard to not only train people in that kind of art form, but also to assess whether or not they're right. They're the right people to put in this incredibly stressful role. So it's really fascinating work. And the people who do it are amazing. I've known many of them, and incredibly impressive. You're just like, wow, I don't know how this guy does this day in, day out.
- [55:39]
A
I would watch a documentary on that, though. It would probably just be called Sources and methods. Everybody watch this. On how we go out of Recognize an undercovery agent.
- [55:49]
B
Yeah. The FBI would not be involved in producing a documentary.
- [55:53]
A
Oh, come on. They're super easygoing, Andy. I mean, just look how long they. Like when you wanted to put your book out, it was super easy.
- [56:03]
B
I can imagine. I'm. I'm putting in my mind, I'm going back to sitting behind my old desk in the Hoover building and imagine somebody coming in front of me and saying, we just got the greatest request. You know, Dan Gibney or one of these famous documentarians wants to do a documentary about our undercover school. I'd be like. Like, why are you even asking me this? You know what the answer is? It's no. Go away, Daniel.
- [56:24]
A
Somebody Would have to go undercover to convince you.
- [56:26]
B
Yeah, yeah.
- [56:28]
A
So be careful. You might not know who your friends are, Andy. Might be somebody trying to get inside and trying to get a documentary made.
- [56:35]
B
That is always true. Yes.
- [56:37]
A
As far as Tom Homan, I don't think you answered. Does he get give the money back? I don't. Probably not with Kash Patel in charge.
- [56:45]
B
Who'S asking him for that, right? No one. And also he claims he did nothing wrong and violated no law and did nothing illegal. So if that's the case, then why would you give the money back? You can't say this was right from the beginning and then say, here you go, sorry, I shouldn't have done it. So if he took it and we don't, you know, we only know the reporting, which seems pretty sound, but if he took that money for a legitimate purpose, he's gotta, he's gotta like, he's gotta, you know, claim it to the irs.
- [57:18]
A
Yeah. Due to pay taxes on it. Yeah, it's just, it's interesting. I mean, I guess in normal circumstances when you guys give money to somebody and they take it and then I, I suppose you maybe you try to get it back after arrest, but I'm, I'm imagining you just assume it could be just gone and spent and cool if we get it back.
- [57:35]
B
But you know, when you get money in the, in the, in the course of an operation, some of it is designated walk away money.
- [57:43]
A
Got it.
- [57:44]
B
Like if you're paying a bribe and it's a long term case, you know, you go into that, you know you're going to have to pay a couple of bribes, you're not going to probably get that money back until the case comes down. Then you might pursue a forfeiture action against the assets that that person has at least up to the amount of the, the ill gotten gains that they have taken through the bribes. So that's kind of a secondary process.
- [58:07]
A
We saw that with Manafort. He probably didn't have the millions of dollars that he saved in tax revenue by cheating, but they went ahead and, you know, got his house and his lizard jacket. Ostrich jacket. Excuse me.
- [58:19]
B
That's right.
- [58:20]
A
All of his very expensive Bijan clothing.
- [58:23]
B
Don't call it a lizard.
- [58:25]
A
Don't call it a lizard. All right, well, those are great questions. I especially like the undercover question. If you have any questions, there's a link in the show notes. You can submit it to us and we'll do our best to answer them. Thank you so very much and Andy, thanks again for you know, telling your story on the Comey stuff last week, it was like your, your name was everywhere. It had to be exhausting and annoying.
- [58:52]
B
It was all that. It was also frustrating as hell to hear it to be misrepresented, being brought up in the middle of this thing in a, in an inaccurate and way that was misrepresenting the facts and the history around this, this episode and all that stuff. So it was really, I appreciate the opportunity to be able to talk about it here and that people are interested in it and hopefully it's, it's had the effect that I hoped it would, which is just to kind of put this, this red herring to rest. And yeah, there's a lot of important things that we need to and will talk about regarding the Comey indictment as this plays out. But like this, this distraction with me was just kind of in the way.
- [59:36]
A
Well, anyway, I appreciate it so very much and thanks to everybody who, who listened to that episode and watched. I think we have a ton of new listeners this week because that whole interview went out over on the Midas Touch network. So thanks to the Midas Touch guys for sharing it as well. And if you're new to the show, welcome. We are happy to have you here. As I said, if you would like to ask us a question, there is that link in the show notes for you to do so and we'll be back in your ears next week and knows what's going to happen between now and then, my friend. Yeah, actually I should probably check the wire and make sure that something didn't blow up just while we were recording because who knows these days? No, it doesn't look like there's anything new. Diddy is getting 50 months in prison. The Second Circuit Court of Appeals has rejected Trump's order curtailing birthright citizenship. Wow, that just broke. But that looks like about it for now. I mean, obviously there's tons of more stuff that's happening, but that's just at the top of my feed right now. Everybody. Thank you so much. We will see you next week. I'm Alison Gill.
- [60:42]
B
And I'm Andy McCabe.
- [60:43]
A
Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey with art and web design by Joelle Reader at the Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds. And the show is a proud member of the MSW Media Network, a collection of creator owned independent podcasts dedicated to news, politics and justice. For more information, please visit MSWMedia.