UnJustified, Episode 47: “Scrivener’s Error”

Podcast: UnJustified (MSW Media)
Date: December 14, 2025
Hosts: Allison Gill & Andrew (Andy) McCabe

Episode Overview

This episode explores the deepening erosion of civil liberties and the rule of law under Trump’s Department of Justice. Allison Gill and former FBI Deputy Director Andrew McCabe examine DOJ’s repeated failures in high-profile cases, possible grand jury abuse, judicial pushback against executive overreach, the criminal misuse of the Alien Enemies Act, and alarming ethics concerns around government-justified military strikes. The conversation is sharp, irreverent, and nuanced, confronting both legal and moral implications of the administration’s actions.

Key Discussion Points & Insights

1. Repeated DOJ Failures in High-Profile Indictments

Cases: Letitia James & Jim Comey (00:07–09:34)

• The DOJ failed repeatedly to indict New York Attorney General Letitia James on mortgage fraud—most recently due to grand jury refusal, after a prior dismissal tied to Lindsey Halligan’s unlawful appointment.
• DOJ’s persistence in seeking indictments, especially multiple grand jury attempts, risks claims of selective/vindictive prosecution and legal peril.
  • Aaron Zelinsky quoted:

    “One no true bill is a point. Two points make a line. That line points to an acquittal at trial...The government should hang it up, rather than going down swinging.” (02:45)

• In the Jim Comey investigation, central evidence (Daniel Richmond’s emails) has been blocked by court order due to 4th Amendment violations—likely ending the government’s weak case.

Memorable Quotes:

• Allison Gill:

  “I went on social media and I begged the Department of Justice, please go back a second time, go back a third time. I love watching you lose. And they did. They granted all my wishes for this holiday season.” (02:02)

• Andy McCabe:

  “You’re making a prima facie case for manipulating the grand jury and abusing the grand jury. Not a hole the government wants to go down.” (03:56)

2. Daniel Richmond and The Fourth Amendment Victory

Government Overreach in Search & Seizure (05:00–09:34)

• Richmond successfully argued that DOJ’s continued retention and access to seized computer data without a valid warrant was a 4th Amendment violation.
  • Court ordered all such files be identified, segregated, and not accessed further by the government. (07:04–07:52)
• The ruling fundamentally impairs DOJ's ability to reindict Comey based on this evidence.

Memorable Exchange:

• Allison Gill:

  “Put it all in a box and don’t touch it.” (07:53)

• Andy McCabe:

  “It’s shocking to me.…Not surprised Richmond is getting what he’s asking for—he’s just having the court enforce the earlier directive.” (08:49)

3. The Kilmar Abrego Garcia Saga and “Scrivener’s Error” Abuse

Immigration Law, Judicial Defiance & Administrative Corruption (11:30–18:22)

• Abrego was unlawfully deported under Trump’s use of the Alien Enemies Act, despite an active court order blocking his removal. After months in ICE detention and legal battles, a judge ordered his release.
• Immediately, the administration tried to retroactively fabricate a removal order, calling the absence of one a “scrivener’s error”—misapplying a legal term meant for small typos.
  • This move was likened to Pam Bondi’s previous attempts to “retroactively appoint” prosecutors and was called “deeply corrupt.” (13:28–13:52)
• Judge Sinise granted a temporary restraining order, echoing that such practices grossly violated due process and jurisdictional rules.

Notable Moment:

• Garcia, upon release, was filmed wearing a brand-new Chicago Bulls hat—after the government based gang allegations partly on his past association with this symbol—a pointed rebuke by the freed man. (17:39–18:17)

4. Contempt Proceedings Against DOJ: Judicial Showdown

The Alien Enemies Act and Judicial Accountability (18:41–36:00)

• Judge Boasberg’s contempt proceedings against DOJ for ignoring orders to halt mass deportations generated fierce legal wrangling.
• DOJ attempted to block crucial testimony from whistleblower Erez Reveni and DOJ lawyer Drew Ensign, citing attorney-client privilege and pushing to move the process “where criminal referrals go to die.”
• Plaintiffs (and the hosts) argued this is an abuse of privilege, especially since DOJ attempted an “advice of counsel” defense, thereby waiving privilege.

Judge Boasberg’s Response:

• Memorably underscored the seriousness:

  “Approximately 137 men were spirited out of this country without a hearing...many suffered abuse and possible torture. Despite this court’s order that they should not be disembarked. This inquiry is not some academic exercise.” (28:57)

• Ruled testimony must proceed; privilege claims undermined by government’s own disclosures and waived by legal strategy.

• DOJ escalated, petitioning for mandamus relief, accusing Boasberg of “retaliation and harassment.”

• The episode closed with breaking news: the same D.C. Circuit panel (two Trump, one Biden appointee) issued a temporary stay blocking the contempt testimony—leaving future inquiry uncertain.

Memorable Quotes:

• Andy McCabe (mocking DOJ):

  “The place where criminal referrals go to die. Is that it?” (23:06)
  “To claim you’re trying to protect the seamliness of interbranch relations—come on...This is a government that exhibits nothing but disdain and disrespect for the courts.” (32:01–32:12)

• Allison Gill:

  “A ‘scrivener’s error’ is for fixing typos, not retroactively adding a deportation order that doesn’t exist. It reminds me of Pam Bondi trying to retroactively appoint Lindsay Halligan.” (13:28)

5. Boat Strike Memos and DOJ Ethics Scandal

Alarming OLC Legal Reasoning (36:00–46:53)

• A bipartisan group of former ethics officials (Norm Eisen, Richard Painter, Virginia Cantor) formally demanded an internal DOJ investigation into the OLC memo authorizing lethal military strikes against civilian targets (drug smuggler boats) in Latin America.
  • The opinion provided, in their words, “free reign for the government to murder and assassinate foreign civilians...the most profound legal ethics concerns.” (38:18–39:05)
• They argued the OLC’s reasoning—claiming the U.S. is in an “armed conflict with drug cartels”—is legally absurd and dangerous.
• Painter explained OLC’s traditional role as the DOJ “brain trust,” providing legal opinions with quasi-official weight; meaningful accountability is unlikely, as precedent shows (e.g., John Yoo's “torture memos”).
• Gill and McCabe lamented that the administration “has no shame” and now wields the Take Care Clause as a catchall excuse for overreach. (42:38–44:48)

Notable Quotes:

• Painter (via CBS):

  “All signs point to OLC’s opinion being nothing but a legal fig leaf to justify the president’s attacks on foreign civilians.” (39:43)

• Allison Gill:

  “This president seems to use [the Take Care Clause] as a green light to do whatever he wants as opposed to the restriction that it’s meant to be.” (42:56)

6. Listener Questions & FOIA Fights

DOJ Accountability & Executive Power (47:29–53:44)

• Gill revealed her own FOIA lawsuit against DOJ for access to FBI redaction training videos related to the Epstein files, calling out the government’s claim that there is “not widespread public interest in the Epstein information” as laughable. (49:31)
• Listener Q: Can a President revoke other President’s pardons?
  • Andy clarified: once delivered, pardons are final and unalterable—even by a later president.

    “Mechanically…the pardon is not final until delivered, but once received, it cannot be modified by anyone—even a future President.” (51:45–52:29)

    • Any “revocation” talk is political fantasy, not legal reality.

Notable Quotes & Memorable Moments (with Timestamps)

• Allison Gill (mocking DOJ’s serial indictments):

  “Go for it. Give it a shot. President Trump. I will have fun that day.” (52:55)

• Andy McCabe (on spurious privilege claims):

  “Once you’ve opened the door, the door is open, right?” (27:30)

• Allison Gill (on government narrative around the Take Care Clause):

  “He will say, I have all the power because of Article 2 and I’m taking care that Article 2 is faithfully executed. Like he—it’s just backwards. It’s all like, right into Marbury v. Madison’s face.” (44:49)

Important Segment Timestamps

• Letitia James grand jury failures: 01:11–05:00
• Dan Richmond's Fourth Amendment victory: 05:00–09:34
• Kilmar Abrego Garcia “scrivener’s error” and release: 11:30–18:22
• Judge Boasberg contempt proceedings and privilege fight: 18:41–34:44
• DC Circuit panel’s administrative stay breaking news: 36:00
• OLC boat strikes ethics scandal: 36:00–46:53
• Listener questions and FOIA case: 47:29–53:44

Tone & Style

Gill and McCabe balance rigorous legal analysis with witty, sometimes biting commentary. They’re cynical about government excuses, deeply alarmed at ongoing abuses, and occasionally giddy over DOJ’s repeated failures (“I love watching you lose”). The conversation is sharp, informal, and steeped in legal and government knowledge—making knotty constitutional issues accessible and urgent.

Conclusion

Episode 47 of "UnJustified" is a tour-de-force analysis of a DOJ at war with longstanding norms and the Constitution. From prosecutors’ overreach and courtroom setbacks, to judicial showdowns and the brazen misuse of executive power, Gill and McCabe deliver searing commentary and granular legal insight. Whether you’re a legal nerd or a concerned citizen, their breakdown is both disturbing and essential listening.