← UnJustified
UnJustified
Speedwaliking It
00:59:53
The Department of Justice was unable to secure three high profile indictments from federal grand juries against people accused of assaulting federal agents. Congressional Democrats have launched an investigation into the Trump administration’s retreat from public corruption cases. Trump’s clash with the courts over the legitimacy of Alina Habba as the US Attorney in New Jersey is grinding criminal proceedings in the state to a halt. Jack Smith’s legal team pushes back against the Office of Special Counsel investigation into the former prosecutor for alleged violations of the Hatch Act. Plus listener questions… Do you have questions for the pod?
Loading summary
Transcript157 lines
- [00:01]
A
MSW media.
- [00:07]
B
This week, the Department of Justice was unable to secure three high profile indictments from federal grand juries against people accused of assaulting federal agents.
- [00:18]
A
Congressional Democrats have launched an investigation into the Trump administration's retreat from public corruption cases.
- [00:24]
B
Trump's clash with the courts over the legitimacy of Alina Habba as the US Attorney in New Jersey is grinding criminal proceed in that state to a halt.
- [00:35]
A
And Jack Smith's legal team is pushing back against the Office of Special Counsel investigation into the former prosecutor for violations of the Hatch Act. This is unjustified. Hey, everybody. Welcome to episode 32 of Unjustified. It is Sunday, as you're listening to this August 31st. I'm Alison Gill.
- [00:59]
B
And I'm Andy McCabe.
- [01:01]
A
Hey, Andy.
- [01:02]
B
How are you, Allison?
- [01:04]
A
I'm, I'm good. Interesting and very embarrassing week for the.
- [01:09]
B
Department of Justice, I think you could say massive embarrassment to the D.C. u.S. Attorney's office, which is of course currently being run by former Fox News host Jeannie Pirro. Yeah, massive embarrassment is a bit of an understatement. First, ABC reports that federal prosecutors have charged the man accused of throwing a sandwich at Customs and Border Patrol agents in Washington, D.C. earlier this month with a misdemeanor after a grand jury refused to indict him on more serious felony assault charges.
- [01:44]
A
Yeah, and this is interesting, right, because I thought for sure, based on previous outings, that they would try again and try again and fail again and again, but they didn't. Yeah, but according to the earlier felony criminal complaint, Dunn, who is the guy, no relation to Harry Dunn, approached the officer while shouting, you, you fascist. Why are you here? I don't want you in my city. And then after several minutes of confrontation, done. Threw a sandwich, says allegedly. But we saw it.
- [02:16]
B
We said, let's not start, start ignoring the facts like other people seem to do. It's on video. He threw the sandwich.
- [02:25]
A
Yeah. And he said, I did it. I threw the sandwich. So I think we can take allegedly out, out of here. New York Times. And he threw the sandwich, striking the officer in the chest. According to the complaint, the video of Dunn's confrontation with the CBP agent went viral and provoked an all out public relations blitz from the White House, which was another embarrassing mistake. And the Justice Department touting his arrest and the federal assault charge against him. The White House went as far as releasing a video showing a cadre of heavily armed agents carrying his arrest, despite his attorney saying he had previously offered to surrender willingly.
- [03:02]
B
So I'd have more respect for that if she released A video of heavily armed agents all throwing sandwiches at him. I feel like that would have been clear in the deck. All right, everybody's had a sandwich, been hit with a sandwich. Let's move on.
- [03:16]
A
Yeah, I would actually make it part of the training that all these agents have to go through to. To join ice. Right. You just have to get pelted by SAM to dodgeball with sandwiches.
- [03:26]
B
But right now, there's the bloodborne pathogen class. You get the sandwich assault review.
- [03:35]
A
Some art just went up, by the way, on that corner where it happened on the subway. They're using the Banksy art of the, you know, the man throwing. What Banksy painted was a bouquet of flowers, but he's got a sub sandwich in his hand. So now there's resistance art, and it's actually up all over the city. It says free DC with the guy throwing the sandwich.
- [03:55]
B
Yeah, for real. Attorney General Pam Bondi said that Dunn had been a Department of justice employee, but was fired after the incident. The incident came amid heightened tensions over federal law enforcement presence in the District after President Donald Trump deployed federal law enforcement agents and National Guard troops to Washington, declaring a public safety emergency and putting the Metropolitan Police Department under partial federal oversight.
- [04:20]
A
Yeah, just a little bit of an overreach. And, and what's interesting is, you know, we can all sit and watch what's happening with the. With the troops on the ground in D.C. and, and say with our, you know, with evidence of our own eyes that this is an overreach, but the fact that they're not able to get any indictments returned from federal grand juries, I think speaks volumes.
- [04:40]
B
It does. And I think this also goes to what you're gonna. I feel like I've started hearing more of this in the last maybe 24, 48 hours, and you're gonna hear a lot more of it as we get closer to the 30 day mark. They're already starting to tout the fact that crime numbers are down in the city. And, you know, that's. There's a couple things at play here. First of all. Yeah, I guess, I mean, like, if you deploy 2000 troops and God knows how many hundred additional federal agents to one small area, you're going to have that effect of discouraging some kind of opportunistic level of pretty much minor crimes. And that's where the statistics come in. If you look at what their. Actually this kind of increase in arrest, it's all been for really minor stuff. The vast majority is immigration stuff, and I think also baked into some of Those numbers are, you're going to see a lot of overcharging. Right. That's what we're seeing in these cases. Grand juries aren't like completely one sided or something. I think if these people, you know, they're basically what they're saying is like, yeah, we're not saying it's good to throw sandwiches at people, but it's not a felony.
- [05:47]
A
Right, right, right, exactly. So that's one sandwich guy. So there's three, actually four kind of this week. So that's one. The next one is reported by the Times as well. Federal prosecutors this past Monday reduced the charges against the woman accused last month of assaulting an FBI agent during a protest against immigration officials in D.C. refiling her case as a misdemeanor after they were unable to persuade three grand juries over a month to indict her with a felony. The Times goes on to say it's highly unusual for prosecutors to fail even once, let alone three times, to obtain an indictment from a grand jury, given the way the process is stacked in favor of the government. And the move by the prosecutors in the U.S. attorney's office in Washington to recast the proceeding against the woman named Sydney Reed as a low level misdemeanor case suggested that they had overcharged it from the beginning.
- [06:42]
B
Prosecutors almost never go in front of federal grand juries without obtaining indictments because they are in control of the information the grand jurors hear. And defendants are not allowed to have their lawyers in the room as evidence is presented. But in a brief submission filed to Magistrate Judge G. Michael Harvey in the federal District Court in Washington, the prosecutors in Ms. Reed's case acknowledge the extraordinary that they have failed three times to secure an indictment within the 30 days given to them to do so after Ms. Reed's arrest.
- [07:14]
A
Yeah, and this is interesting. Addressing the criticism that the U.S. attorney's office has received for its crackdown in recent days. Akash M. Singh, a high ranking official at the Department of Justice, met with federal prosecutors Monday, telling them they should not be cowed by news articles. And that's according to two people familiar. Mr. Singh also told prosecutors that if sitting grand jurors rejected their efforts to bring serious charges, they should simply empanel new grand juries. That's what the message is inside the U.S. attorney's office in D.C. and as we know, the reduction of the charges against Ms. Reed also came after federal prosecutors failed to indict several protesters in Los Angeles after evidence challenging the government's narrative emerged.
- [08:01]
B
That's right. Okay, so we have done AKA Sandwich guy and Reed. All right, those are the first two. The third is a guy named Alvin Summers. Now, the Times reports the most recent failure to indict came in the case of a man named Alvin Summers who was arrested on August 15 after a US Park Police officer pulled him over in his white Ford Bronco near the National Mall. According to a criminal complaint, Mr. Summers began to quote speed walk away from the. Away from the officer after stepping out of the vehicle when she caught up with Mr. Summers. Okay, here's where you should run if you want to get away, because if you even speed walking, good chance you're going to get caught. But anyway, I don't think he was.
- [08:49]
A
Trying to get away. I think. I think speed walk is probably an overstatement by the government here.
- [08:58]
B
Yeah, I mean, she caught him, so how hard must could he have possibly been trying? But anyway, Mr. Summer, she caught up with a Mr. Summers and sought to place him in handcuffs, the complaint asserted. He swung his arms and grabbed her upper body, bringing both of them to the ground.
- [09:16]
A
So Mr. Summers then fled up 12th Street Southwest and then was detained by members of the National Guard, actually, not the police. In court papers filed Thursday, Mr. Summers lawyers revealed that prosecutors had taken his case to a grand jury on August 21st and came out empty handed. On Wednesday, prosecutors notified the lawyer that they had not tried to represent this case to another grand jury. And instead of downgrading the charges from felony to misdemeanor assault, the prosecutors actually filed a motion to have the case dismissed, albeit without prejudice, a move that would allow them to refile charges at a later date. Summer's lawyers are asking for the case to be dismissed with prejudice.
- [09:57]
B
Now, while all three rejections came in cases being heard in the federal district court in Washington, it was unclear if they had been presented to the same grand jury, which, by the way, is possible. There's a limited number of grand juries, and they typically hear cases from different agents about different arrests or investigations, things like that. A spokesman for the U.S. attorney's office in Washington, which had brought each of the cases, did not respond to a message seeking comment. While it is highly unusual for prosecutors to fail to obtain an indictment from grand juries, given that they are in almost complete control of the grand jury process. But the fact that the grand juries have now rejected indictments against three separate defendants accused of assaulting federal agents in some incidents that were clearly captured on video was all but unheard of.
- [10:45]
A
Yeah, and I think it's interesting here, I Think in some cases we might be looking at what you would consider jury nullification, which usually happens from a pettit jury right. At trial where, where the, the case is presented and it meets the elements of violating the law. But the jurors don't think that they should be. But, or be convicted, I should say. But. But here you've got a couple of clear cases of the charges are too high. Right. Like felony assault. You have to have bodily harm. And the sandwich just didn't cause any bodily harm. Right.
- [11:19]
B
Only sandwich.
- [11:21]
A
Right. So yes, definitely harm to the sandwich. But in this third case it seems like, I mean if the person actually sped walk away and wrestled the lady to the ground and ran and then had to be detained by National Guard members of the National Guard, that maybe this is more of a we're just not going to indict this person. But it's interesting that the government dismissed the charges instead of bringing a misdemeanor charge. And I have a question for you with sandwich guy and Sidney Reed. You know, changing this to a misdemeanor, it's still a federal case and I think that like one has even been assigned to a judge. Does that mean there's going to be a federal trial for a misdemeanor charge?
- [12:09]
B
There could be.
- [12:11]
A
If like that doesn't seem, I thought misdemeanors were handled by the D.C. attorney General.
- [12:16]
B
No. So in D.C. everything is handled by federal prosecutors. There is no local prosecutor's office. Well, there is, it's the federal prosecutors and within the office they actually are divided. They call it the federal side and the local side. There's so about half the prosecutors in the office prosecute things like murders, assaults, you know, the basic kind of criminal felonies that you typically see in any big city district attorney's office. And then the other side does the federal cases, like the FBI cases, terrorism cases, big white collar long term investigations, stuff like that. But here, I mean, misdemeanors typically don't ever go to trial, right? They, they get pled out to a fine or you know, technically a missed. Many misdemeanors come with the prospect of, of prison time, but it's jail time, but it's less than a year. That's what makes it a misdemeanor. And people are rarely ever placed in jail for committing and being found guilty of a misdemeanor. So if these defendants decide, hey, I didn't do it and I'm not pleading to anything and I don't care that it's A misdemeanor or not, they could end up going to trial, and then we'll see where that ends up. I'm not sure what the rules are in D.C. about juries for misdemeanors. It may be that you're restricted to a bench trial, but that I'm overstepping my skis there.
- [13:45]
A
Yeah, that's what I'm interested in. Like, I was playing this out in my head. Sandwich guy, Right. For the misdemeanor, I think there's clearly misdemeanor simple assault here.
- [13:57]
B
No question.
- [13:58]
A
But if there's a jury trial, I would take my chances with a D.C. jury in this case. Instead of pleading out.
- [14:05]
B
Maybe you could, but you're bas. You're really rolling the dice there because you're hoping that what you get is that kind of nullification approach, like, you're.
- [14:13]
A
Definitely guilty, or a judge saying, go, you know, go pick up trash. Which I guess you don't need to do in D.C. right now because he's got the National Guard doing it. But, you know, you are rolling the dice.
- [14:23]
B
Right. If he. On the other hand, if he's got no priority, no priors, no. No other criminal convictions, and they give him the simple assault misdemeanor, he could probably plead that out and a judge had sent him, sentence him to nothing. Right. So, I mean, it's going to be a. An interesting calculation for him to figure out how to play that.
- [14:43]
A
But also, I guess it depends on what the U.S. attorney's office wants to do. If he says, can we just plead this out and I'll pay a fine? And like, no, we're going to seek jail time.
- [14:51]
B
Could be. Yeah, they take a really hard line, then they're up. You know, either side could really raise the stakes. And if it gets in front of a jury, then, you know, you don't know, it could go to complete, like, nullification, or it could be like, hey, dude, you're on video throwing a sandwich that this guy's clearly.
- [15:09]
A
You said you threw a sandwich.
- [15:11]
B
You leave us no court, no recourse. We can't close our eyes and go, la, la, la. I don't see the sandwich fly.
- [15:17]
A
Yeah, well, we'll see what happens. We'll see how it turns out. We'll follow these cases. There was a fourth case dismissed this week. This case involves a black man named Torres Riley, who was recently arrested at a Trader Joe's grocery store for what police said was possession of two handguns in his bag. Right on. On Monday, prosecutors moved to dismiss the charges against Mr. Riley. But another federal magistrate, Judge Zia M. Farooqi, lambasted them in a hearing for having charged him in an apparent violation of his constitutional rights. Farouki said, lawlessness cannot come from the government, and we're pushing the boundaries here. Now, Mr. Riley's case had been appointed contention inside the U.S. attorney's office, where a number of prosecutors concluded that Officers unlawfully searched Mr. Reilly when they stopped him violating his Fourth Amendment rights. So those charges have been dismissed.
- [16:10]
B
This thing is fascinating because the judge also said on the record that it was the worst case of an unlawful search that he had ever seen in his entire career. So the, the evidence in this thing, which is apparently body camera evidence, has got to be awful for the agents. I mean, this is, there's no, this was absolutely the right call here to, to put. They should never have charged it. And that's really what the judge is yelling at them about, like, how could you possibly walk this thing into court? So, you know, this is just. And a lot of people will see this and say, like, oh, well, the guy did have two guns, right? He was unlawfully in possession of two guns. Well, yeah, but that's the way the Fourth Amendment works. There's no, okay, we violated your Fourth Amendment rights, but you're a bad guy and you are clearly doing a bad thing, so we're going to throw you in jail anyway. It doesn't work that way. It's the opposite. The Fourth Amendment violation essentially blows the case up because it means that the evidence is suppressed. And that is so foundational to our system of criminal justice and our adherence to the Constitution, that charging a guy with a felony when the search was clearly unlawful is an incredibly embarrassing and kind of a disgraceful thing for the U.S. attorney's office. You do not see U.S. attorney's offices do that.
- [17:37]
A
Yeah. Or agents. You know, we talked last week about the lowering of standards for joining the FBI, for example, and you're going to see, I think, a lot more of this if they, if they cut it from 18 weeks to eight at Quantico and get rid of all the legal study classes that you talked about.
- [17:54]
B
Yeah.
- [17:55]
A
You're going to see a lot of unlawful searches and seizures and a lot of probably dismissed cases if these agents, and not just the FBI, but any agent that's trained or not as, you know, robustly trained as they should be, violating people's constitutional rights.
- [18:13]
B
And, you know, it's not coincidental that we are all seeing now many instances on the news and the coverage of the Immigration raids of detentions and arrests that do not live up to the same standard required by the fourth Amendment in the criminal process. But because it's immigration law, it's a different story. And so you're seeing these, what, what appear to be anyway, let's call it alleged heavy handed tactics like profiling and things like that to take these immigrants into custody. Like, are we starting to see the bleed over of that approach into the work of agents in the criminal side as well? If you're an immigration agent, you're doing this stuff all day long and next thing you know, you're been assigned to D.C. to patrol the streets with MPD at night. It's not hard to imagine that some of that muscle memory is just gonna kick in.
- [19:11]
A
Whole different set of rules.
- [19:12]
B
It's a whole different set of rules.
- [19:13]
A
Detaining people in civil immigration cases versus criminal cases like this.
- [19:18]
B
Right. But if you're used to just rolling up to the Home Depot parking lot and putting your hands on everybody who looks like they're from somewhere else, that shit does not fly in the, in the criminal side. So, yeah, could be rough roads.
- [19:34]
A
That's a very good point. That's a really, really good point. Especially if a lot of these officers have been trained for mass deportation and then you throw them on the streets of D.C. to take care of criminal matters. All right, everybody, we have more to get to, but we have to take a quick break. So everyone stick around. We'll be right back. All right, everybody, welcome back. All this overreach and the pretextual crackdown against cities that actually have plummeting crime rates using federal law enforcement continues to drain resources for fighting actual crime. NBC reports that Pam Bondi and FBI Director Kash Patel have given a green light to would be lawbreakers by gutting the Justice Department's Public Integrity section and folding one of the FBI's public corruption squads. A group of congressional Democrats wrote this in a letter on Thursday. So Congressional Democrats are on this, investigating this, and you're a lot of, you're letting a lot of actual criminals go, quote, DOJ's refusal to enforce anti corruption laws betrays the public trust and will create lasting harm to Americans faith in the integrity of government officials. I think that's probably by design, Andy, but that's what Democrats wrote. In the letter to Bondi and Patel, which was first obtained by NBC, the.
- [20:56]
B
Lawmaker said that the changes made by Bondi and Patel are coming in, quote, the midst of an unprecedented wave of corruption in the Trump administration, citing, among other issues President Donald Trump's involvement with cryptocurrency, his acceptance of a luxury jet from a foreign government to use as a new Air Force One, and pardons he issued to donors. Quote, this is just part of the Trump administration's creation of a two tiered system of justice, one for large corporations and President Trump's wealthy friends, and another for everyone else, the letter states.
- [21:29]
A
Yeah, yeah. Now Senator Elizabeth Warren and Rep. Jerry Nadler are leading the probe into the changes that the justice department in the FBI, eight other senators and more than 50 members of the House have signed the letter as well. The lawmakers request that Bondi and Patel answer a series of questions about the role of the Public Integrity section and the FBI's public corruption efforts to address their grave concerns.
- [21:53]
B
The letter comes as the Trump administration has publicized criminal referrals and the initial steps of investigations into Democrats and Trump opponents, contradicting many of the rules and norms that have been in place to avoid federal law enforcement becoming politicized. Meanwhile, under an order from Trump, the head of the Justice Department's Weaponization Working Group has the wackadagpa, the wackadag paw. We all know good old Ed has said he'll name and shame individuals who won't be criminally charged. A major departure for doj, which has traditionally in the post Watergate era, aim to speak only through criminal charges and avoid hurting the reputations of uncharged individuals everywhere.
- [22:39]
A
But the Epstein files, I guess.
- [22:41]
B
Yeah.
- [22:41]
A
Apparently now a former member of the Public Integrity Section, speaking on the condition of anonymity to avoid retaliation from the Trump administration, said that the unit has gone through a slow and painful demise and is currently a shell of its former self. Once home to some of the most elite and talented attorneys in the department. With only a handful of employees and what had been a unit with 30 attorneys, those left are, quote, operating in the dark, the person said, adding that it was, quote, clear that pursuing public corruption cases in an even handed, methodical fashion nationwide is no longer an administration priority. And it's not right. We, months ago we went over that memo from Pam Bondi about DOJ priorities.
- [23:23]
B
Yeah, yeah, yeah. I mean, you know, instructing prosecutors to no longer look at Foreign Corrupt Practices act cases like, that's straight up saying we're not, we're not enforcing this law anymore, which to me is an abdication of their constitutional responsibility.
- [23:42]
A
But, and we even like, when you get down to more granular level, Jeanine Pirro, with cooperation of the doj. So she's not going to prosecute people with long guns walking around. Yeah.
- [23:53]
B
Long guns and shotguns perfectly fine in the city that you claim is in the midst of an emergency crime wave. Okay. Americans should be worried that the Justice Department is now allowing politically appointed and motivated U.S. attorneys who seek to please the president by weaponizing the department against his perceived political enemies, and are pursuing that goal aggressively and more often than not, without regard for the facts, law or precedent. The former Public Integrity Section employee said, quote, everyone should be scared of what that will mean for the country moving forward. Never ending cycles of revenge via grand jury investigation and possible indictment. The person said, yeah, and I think.
- [24:37]
A
What'S interesting here is the guardrails against rogue prosecutions. We're seeing them in the whole A block. We talked about multiple times when a federal. You couldn't get it past a federal grand jury. And I know you and I have talked about this before, and I've brought it up on multiple shows and podcasts. In Trump's immunity case, he argued that if you don't give him immunity, there'll be rogue prosecutors doing crazy stuff and indicting him all over the place. Right. Or in future presidents, too.
- [25:09]
B
Yeah.
- [25:10]
A
And Justice Sotomayor said in dissent, no, we have multiple guardrails in place to prevent politically motivated rogue prosecutions. And she went through the list. Federal grand juries, pretrial motions to dismiss, jury instructions, petit juries, trial. Right. A trial, you get to face your accuser. Then after that, we have the appellate system. You can appeal your conviction if you get one, all the way up to the circuit court, up to the Supreme Court, if, if, if need be. And I think we're seeing those, you know, now we're in a, in an era of rogue, politically motivated prosecutions. And we're seeing that most of them, at least a lot of them, aren't getting past the guardrails that are in place. So this is kind of a different sort of, you know, because we talked, we just, we talk a lot about the judicial system still kind of being there and being a guardrail and. But we do that sort of in the, in the framework of, you know, you know, you can sue and get civil awards and, you know, win those kinds of cases. But also a big part of the judiciary are these guardrails against rogue, politically weaponized prosecutions, starting with federal grand juries. So, you know, when we, when we talk about Americans being worried about the Justice Department, at least on the weaponization side, there are still tools in place that appear to be working that are controlled by citizens like federal grand juries that stop these kinds of things from going forward.
- [26:43]
B
I think that's so important. And I was thinking about this actually in the last block, when you read that piece about the DOJ official who basically is instructing prosecutors, if you fail to get an indictment, just bring in another grand jury and bring in another, and bring in another. Keep going, keep going. That is antithetical to the way our system is supposed to work. Right. So our founders were really rebelling against their experience under the monarchy in England. And they were tired of being constantly subjected to being thrown in jail or charged or thrown in jail and not charged by the king, who could basically do whatever he wants. So they formulated a system in which the morals and the ethics and the opinions of the community were a factor in punishing someone for a crime. So obviously, if you're indicted and you go on trial, that comes in the form of the petit jury, who decides guilt or innocence. Not the judge, not the president, not the governor, but the Pettit jury. And even before that step in the process, the grand jury is the way those morals and ethics and standards weigh in at the time of the charge. Right. The grand jury gets to your jurors, who are your peers in the community. They get to decide if there's probable cause to believe that this prosecution should go forward, that you should be officially charged with whatever felony. So having heard from the community, no, sorry, no. No indictment for you. A DOJ that is now hell bent on just cherry picking a grand jury that'll deliver the result they want is actually counter to what the Constitution was designed to preserve as a right to all Americans. I think it's, it's really frightening.
- [28:42]
A
Yeah. And as Joyce Vance reminded me this week, we, she and I did a substack live a week ago Saturday. She reminded us. And you and I have talked about this going all the way back, you know, to the Jack podcast that, yeah, you can indict a ham Sammy. But as a prosecutor, there are rules that while, you know, while an indictment from a grand jury only requires a low standard of probable cause, you still aren't supposed to bring an indictment unless you can obtain a conviction at trial, which means beyond a reasonable doubt, which is a much higher standard, and maintain it on appeal. And so when you have less than, you know, amazing prosecutors who don't follow that rule and try to indict a ham sandwich or in this case, a salami sub, you're. You're going to get people who will end up falling victim to many. One of the other guardrails in that procession of guardrails that I mentioned that stop rogue and politicized prosecutions from happening.
- [29:47]
B
So, yeah, and that's frankly why juries, both grand and Pettit, are allowed to say no even if there is evidence. They're not required to return to say yes, there's probable cause or yes, there's guilt beyond a reasonable doubt based on the evidence that's presented. They can just ignore it and say we don't think that this for whatever reason because they don't actually say. But theoretically they could think we don't think this person deserves this conviction or this punishment. So we're not going to convict.
- [30:18]
A
Yeah. Built in by the founders for that very reason. All right. We still have some more news to get to, but we have to take another quick break. So everyone stick around. We'll be right back.
- [30:35]
B
Welcome back. So public corruption is being ignored in favor of the mass deportation agenda. And actual crime in New Jersey is going unpunished because of the court battle over the legitimacy or the lack thereof of Alina Habba's appointment as U.S. attorney in the state. The New Jersey federal court system could be in turmoil for months more, according to a new legal filing that gives the most detailed accounting yet of the fallout from President Donald Trump's use of a loophole to keep Alina Habba as U.S. attorney.
- [31:08]
A
Yep. And that reporting comes from Politico, who goes on to say at least a dozen federal judges, a dozen in New Jersey, have delayed proceedings because of questions about whether Haba, a Trump loyalist, is allowed to prosecute cases. That's according to a six page motion submitted Tuesday by Attorney General Pam Bondi. The matters include at least three trials, several guilty plea hearings and several sentencing hearings. Now, those delays occurred even before U.S. district Judge Matthew Brand ruled last week that Haba was acting illegally as the U.S. attorney for New Jersey. Bondi's filing came as part of an appeal of that ruling to the Third Circuit. So in her appeal, she admitted, we can't get any crime done because we're dumb. I mean, it's the tough on crime Law and Order administration can't get these crimes put to bed in New Jersey because they're arguing about the legitimacy or lack thereof of Alina Haba.
- [32:06]
B
Yeah. Some delays have been previously reported by Politico, including a triple homicide trial that was being led by the career prosecutor the president fired to make way for Haba to stay in office. That trial, once scheduled for September, is now delayed until November after Braun ruled another judge delayed the sentencing of a CEO convicted of scheming to mislead investors during the pandemic because of questions about Haba's authority.
- [32:35]
A
Yeah. And I have to tell you, if I were a defense attorney in New Jersey right now.
- [32:39]
B
Yeah.
- [32:40]
A
I would be filing motion to dismiss charges based on a violation of my right to a speedy trial on everything.
- [32:47]
B
For the, you know, on a federal misdemeanor all the way up to a triple murder. It doesn't matter what the facts are. You're, you're working that angle for sure.
- [32:57]
A
I would be. Now citing such delays. The DOJ has said it and the several criminal defendants who challenged Haba's authority hope for a quick resolution to the appeal. Yeah. Because otherwise you're going to lose all these cases. Quote, the parties also agree that these issues of exceptional public importance should be resolved as quickly and as reasonably as possible. That's what the DOJ wrote in their motion submitted by Bondi Haba, Deputy Attorney General Todd Blanche and other officials.
- [33:24]
B
But quickly is in the eye of the beholder.
- [33:28]
A
Speed walk.
- [33:28]
B
Speed walk or not quickly. A proposed schedule. I'm going to get all the speedwalker hate mail this, this coming week, I'm sure. A proposed schedule anticipates a series of back and forth court filings for seven weeks with oral arguments not until late October or early November. That means that triple murder trial is not going in November. I'm telling you right now. It is unclear how quickly the appeals court would rule after that. And that ruling is likely to be appealed to the Supreme Court. Quote, the longer it takes to resolve these appeals, the greater risk that still more matters will be adjourned indefinitely, contrary to the interests of government defendants and the public in the disposition of criminal cases. The DOJ wrote.
- [34:13]
A
So you admit that.
- [34:16]
B
So you admit we need to resolve your mistake quickly. I get it.
- [34:19]
A
Oh, my goodness. In the meantime, Haba is allowed to continue running the office, but her authority is in doubt. Amid concerns that her work could taint cases, Blanche has begun co signing some of the office's work. Great use of the the deputy Attorney general, which is an extraordinary level of involvement in routine proceedings for the Justice Department's number two official. So they agree. Trump has been escalating his war against longtime Senate precedent that allows home state senators to effectively block district courts and U.S. attorney nominees that they oppose. That's the old blue slip. Blue slip. Is that it's or picture?
- [34:53]
B
I think so. No, I think it's blue.
- [34:55]
A
Yeah.
- [34:56]
B
Yeah. And I have a question for Politico. Are you really quote Running the office if your authority is so in doubt that you have to bring your boss in to sign all the paperwork for you. I mean, I feel like she's not actually running it.
- [35:10]
A
Right.
- [35:11]
B
You know, anyway, I know. Trump used a multi step process to try to keep Haba in charge of the office after 120 day interim period expired. That effort included withdrawing her Senate nomination, which was already stalled because of opposition by New Jersey Democratic Senators Cory Booker and Andy Kim. Justice Department officials have also criticized judges who had tried to block Haba staying in office by exercising a 160-year-old authority. Judges have to fill certain vacancies when there is not a Senate confirmed person in the job. In July, the district court judges in New Jersey picked Desiree Lee Grace, a longtime career prosecutor, to succeed Haba, infuriating Justice Department leaders who had hoped to keep Haba in the job. Braun ruled last week that Haba had been serving unlawfully as U.S. attorney since July 1.
- [36:06]
A
So that was Brown's ruling. Pam Bondi appealed and said, we're letting criminals get away and the, in the state, please help us because of, because of something we did. I mean, how many times have we seen in this administration a filing that says this is of the government's own doing? Yeah, don't, don't we oppose the government's motion to get more time because they need more time because of their own stupid stuff. Like, I've seen this a million times in, in so many cases since Trump took office and, and Pam Bondi took over the Department of Justice. This is all of their own making. And the crim, the, they aren't prosecuting crimes in New Jersey because of it.
- [36:49]
B
Yeah, it's not only of their own making, it's of Trump's own making. Right. There is no chance on earth that Pam Bondi could fire Alina Haba or even pressure her to walk away from the job. She cannot do that without Trump's blessing it, and she's not even gonna ask for that. Right. So she's now stuck with this very important district that has a significant crime issue that needs to be addressed that really can't be realistically addressed right now because of this conundrum. And so she's just, you know, kind of filing her papers and appealing all these adverse rulings. But really, they should have abandoned Alina Haba, you know, months ago. But, but, you know, they can't, they can't do that. I'm sure they can't even bring it up with him.
- [37:37]
A
Oh, probably not.
- [37:39]
B
Not without, not without Putting themselves at risk. Or at least that's probably how they perceive it.
- [37:45]
A
Not without a ketchup bottle hitting the wall behind him. Right?
- [37:48]
B
Exactly.
- [37:49]
A
All right, we have another story. Something caught me off guard this week from the Department of Justice. I was actually kind of surprised. Remember how Trump's Department of Justice settled with Ashley Babbitt's estate for $5 million after they sued, like Ashley Babbitt sued the DOJ, and the DOJ is like, here's 5 million. And then I thought about how the Department of Justice coordinated with Texas when Texas sued the Department of Justice over a voting law. And within six hours, they were like, yeah, yeah, get rid of it. Because they didn't want it in the first place.
- [38:20]
B
Yep.
- [38:21]
A
Well, when the Proud Boys sued Trump's justice department for $100 million, my heart sank. I thought for sure the Department of Justice would settle with them. But they didn't. At least they're not. For now. According to cnn, the Justice Department is asking a federal court to dismiss the lawsuit and brought against it by members of the Proud Boys, who claim their convictions related to January 6th were a result of a political prosecution. In a court filing Monday, the Justice Department argued that the Proud Boys lawsuit should be tossed out for reasons including that the malicious prosecution claim lacks merit and the United States is not liable for punitive damages.
- [38:58]
B
DOJ's defense of the prosecutions, however, appears to go against what Republicans and President Donald Trump's allies have long argued, that the hundreds of cases brought against people who participated in the January 6 attack often amounted to political persecution from Joe Biden's Justice Department. Because they targeted Trump supporters. Well, I guess not in these cases.
- [39:22]
A
It's interesting.
- [39:23]
B
Yeah, it's really bizarre.
- [39:25]
A
Honestly thought the DOJ would be like maybe 10 million. Here's 10 million. But they didn't. So at least they're trying to fight it. That's a rare.
- [39:36]
B
I don't know, that good sign.
- [39:38]
A
Gives me a little bit of hope.
- [39:41]
B
You know, I kind of feel like you don't get a cookie just for doing your job. So this is what they should be doing. It's sad that we're so surprised that they're actually doing the right thing on a case like this that has clear political overtones, but. All right, let's put one in the win column.
- [39:59]
A
I mean, I was genuinely concerned that they would just. That the government maybe told the Proud Boys to sue them, and we're going to settle with them. Do you know what I mean? I mean, they did it in Texas, and they settled with Ashley Babbitt. So it wasn't an unheard of concern.
- [40:13]
B
But, but it's the case isn't over yet, so let's keep an eye on it.
- [40:17]
A
That is correct. All right. We've got one more story about Jack Smith. We haven't talked about him in a minute. And then we have listener questions. And if you have a listener, if you have a question, if you're a listener and you have a question, we have a link in the show notes that you can CL on to submit your question to me and Andy. So you can do that. And we'll get to those questions. And this one last story right after this last break. Stick around. We'll be right back.
- [40:47]
B
Welcome back. All right, one more story before we get to listener questions this week. Now, you'll recall that Senator Tom Cotton made a referral against Jack Smith to the Office of Special Counsel alleging that he violated the Hatch act and that the Office of Special Counsel had launched an investigation based on that referral. And let's remember, of course, we're talking about the Office of Special Counsel, not a special counsel like Jack Smith was or Mueller was or Durham was. This is the office whose responsibility is to investigate violations of the Hatch Act. Well, Jack Smith's lawyers have written a letter pushing back against the allegations to the acting special counsel himself, Jameson Greer, who took over after Trump fired the previous special counsel, Hampton Dellinger.
- [41:35]
A
Right. And the letter says in part, although you have not reached out to us to discuss these allegations, we welcome the opportunity to engage with your office. And we're confident that as you become familiar with the facts and the record, you will conclude that there's no basis to find violations of the Hatch act and that these allegations are wholly without merit. They go on to say the predicate for this investigation is imaginary and unfounded. Mr. Smith followed well established legal principles in conducting these investigations into Trump. And the courts presiding over the resulting prosecutions have already rejected the spurious allegations that the MANNER in which Mr. Smith prosecuted these cases was somehow improper.
- [42:20]
B
The letter goes on, notably, Senator Cotton does not allege that the criminal charges against President Trump were politically motivated or that the indictments were without merit. Instead, his allegations focus on the mechanical steps required to prosecute the case. For instance, in support of his assertion, Senator Cotton cites such unremarkable examples as Mr. Smith seeking special permission to exceed the normal maximum page limit it yeah, boohoo. Asking for a trial date five months after the indictment and moving for an expedited review by the appeals court. These routine Actions are consistent with and expected of a prosecutor who is prosecuting case, and they were subject to court approval.
- [43:10]
A
Right. So you have to kind of imagine Senator Cotton's like, he was totally. He was interfering with the election because he asked to exceed the page limit in a filing.
- [43:19]
B
Yeah.
- [43:19]
A
It's. It's just ridiculous.
- [43:21]
B
And these are all things that he asked for and was granted by a judge. By the court. You think the court, like, green lit a violation of the Hatch Act.
- [43:32]
A
Right. Especially Judge Cannon. Like, he didn't just unilaterally. No turn in a filing that went over the page limit anyway. All right. The letter goes on to say, we are aware of no court decision, prior Office of Special Counsel finding, or other authority interpreting the Hatch act to prohibit prosecutors from investigating allegations of criminal conduct committed by former public officials or candidates for public office or prosecuting those cases when the facts and law so dictate. This investigation is premised on a partisan complaint that suggests the ordinary operation of the criminal justice system should be disrupted by the whims of political contestants. But the notion that justice should yield to politics is antithetical to the rule of law. Given the lengthy procedural record and careful attention afforded to these issues by the judges overseeing the special counsel prosecutions, this office should not relitigate the baseless allegations that were unsuccessfully advanced before the federal courts. And they should certainly not be scrutinized in response to partisan referral by using an implausibly expansive interpretation of statute that was designed to keep partisan politics out of government decision making. In light of the unprecedented nature of this investigation, if you intend to go forward with this in any way, we just insist you engage with us so that any finding by the Office of Special Counsel is fully informed by the record. We're confident that an objective assessment of the facts and the law will compel the inescapable conclusion that the prosecutions brought by Mr. Smith were handled in an entirely lawful and appropriate manner. And it's. Andy, it's just mind blowing that the Trump administration and this special counsel, Jameson Greer, and. And Tom Cotton, Senator Cotton, are accusing the investigations into Donald Trump of going too fast.
- [45:33]
B
Yeah. I don't think speed was the problem there.
- [45:37]
A
No. But you remember when you and I were talking about. Remember when you and I were talking about, like, why doesn't Jack Smith come out and say, we need to get this done before the election? We need to get this done before the election.
- [45:48]
B
Yeah.
- [45:48]
A
This is why.
- [45:49]
B
This is exactly. This is the same thing I thought when I read this letter. I was like, this Is Jack Smith just sitting there? Of course, not saying a word, but shaking his head, like, knew this was coming. Saw this a mile away.
- [46:01]
A
My goodness. Yeah, those, those investigations went just too quickly.
- [46:06]
B
Yeah. Holy cow.
- [46:10]
A
All right, so that's that letter. We'll keep you posted on any further ribbits from Jameson Greer and his Office of Special Counsel. It's time for some listener questions again. If you have a question, there's a link in the show notes you can click on to submit one. What do we have this week?
- [46:24]
B
Well, we got a couple. I have two here. But I have to say the questions this week were phenomenal. One after another, like, right on point. It's very hard to decide what to take. So kudos to all. First one comes to us from Steve. Steve says thank you many times over for your critical insights on the Trump dumpster fire. I've been listening to your podcast since the Jack days and often pass your episodes on to some of my unsubscribed friends. Way to go, Steve. Keep that up, everybody. My question regards the raid on John Bolton's home. Isn't a surprise raid looking for classified documents unusual? My understanding is that the first steps would have would have been a conversation with Mr. Bolton asking if he still was in possession of any documents. Isn't that the way they approached Trump? Is this another example of performance, politics and so called justice and a sign of what's to come? Very good question, Steve. And Steve, I want to really piece this one apart and be very careful.
- [47:26]
A
Not only do you contact them ahead of time, but you tell them ahead of time when you're coming to Mar a Lago and you make sure not to wear your FBI jacket.
- [47:35]
B
Yeah, yeah, yeah. That all happens only if you're Donald Trump. So in response to your first question, Steve, no, it's not unusual at all for the, for the FBI to show up in a surprise manner. I'm not going to call it a raid because technically it's not a raid. It's a search warrant execution. It's not at all surprising for them to show up, you know, and unknown get the subject by surprise because oftentimes, I mean, in fact, most of the time that's the case because they don't. If there's a, a danger that the subject will destroy the documents or move them and hide them somewhere else, you don't want them to let. You don't want to let them know that you're coming. So very frequently in mishandling cases, espionage cases, the ultimate search of the place where you think the documents are. Is done in a surprise fashion. Clearly not done in Mar A Lago. Lots of, what, a year and a half's worth of back and forth and letters and. Please, may I? And we.
- [48:37]
A
That's what I was gonna say, Andy. No, the normal way is you dick around with the national archives for 13 months, and then they make a referral to Department of Justice, who then asks you for them. And then when you don't hear. When they don't hear back, they issue a subpoena. And then when they. You don't get anything back, they go down there and pick up up the red weld envelope with 38 classified documents. And then after that, when you find.
- [48:58]
B
Out, don't forget the step where you did finally begrudgingly send some boxes back, which only confirmed the concerns that you had. You had lots of classified. So, yeah, and then you showed up, you know, at like, six in the morning, wearing suits, no raid jackets. No one knew what was happening there until, of course, Trump announced it on social media that night when the search was over. So, yeah, you can't really look at Mar A Lago as having been an example of how it's normally done. So I would say that who knows what's happening in the Bolton case? There's all kinds of crazy reporting coming out now. I think it's still possible that what's happening here is motivated to a large extent by kind of revenge and some performative politics. But there's also reporting out now that there's some sort of intelligence was involved that predicated this criminal investigation. At the end of the day, there were two separate federal judges that both looked at the search warrant applications and approved them. So that's a sign that the department and the FBI had something. They had some evidence, at least enough evidence to convince two separate federal judges that there was probable cause to believe that. That a. A crime had been committed and that evidence of that crime would be in those two locations, the home and the.
- [50:25]
A
Office, unless they falsified those search warrant applications.
- [50:29]
B
So, yeah, and I'm not saying that we're a long way from John Bolton getting charged with anything, and even if he does get charged, I'm quite sure he'll defend himself, and he may have very valid defenses to present. So I'm not. I'm not trying to, you know, try and convict Mr. Bolton prematurely, but. But the search, the existence of the search warrants does tell you something, but it's a long way away from conviction.
- [50:54]
A
Yeah, agreed. All right, what else do we have? Today.
- [50:58]
B
Okay, so we also got this one from Paul and Paul says Andy recently gave a vivid description of the many duties of the FBI Deputy Director, including reading an immense number of reports every day. He concluded by saying something like, but it needs to be done so the Director can carry out his duties. I'd be very interested in hearing Andy give an overview of what a normal FBI director does on a daily basis as opposed to, say, Cash Patel, who seems to spend an inordinate amount of time in front of cameras. Yes. And wearing a FBI agent's badge and a raid jacket, climbing in and out of armored vehicles. All things that I can honestly say I've never heard or seen and a previous FBI director do. But so the FBI Director has in really important internal and external responsibilities. Internally. The Director is really needs to get out and see and speak to FBI people as often as he possibly can. They do this by meeting with all kinds of different groups at headquarters, different sections and divisions and all kinds of groups. How the groups are organized at headquarters. They also go out and spend a lot of time visiting with field offices. So Jim Comey notoriously visited every single one of the 56 field offices in his first year as director and was really a remarkable accomplishment. Took a lot of effort and travel and coordination. But it's super important to build that relationship with the workforce. And that's the way the Director really gets to communicate his message and direction and leadership to the ground troops. And it's just so important externally the Director has got to like he's essentially the de facto leader of the American law enforcement community. So it spends a lot of time interacting with police chiefs and county sheriffs and make speaking publicly, building those relationships Reach conducts most of our interactions with Congress. So many, many meetings, you know, one on one coffee meetings all the way up to testimony on the record to in the House and the Senate. And of course he has his, his own share of, you know, meetings to go to at the White House on national security matters and, and things like that. So it's a big job, there's a lot to do. But it's a, it's kind of a level up from the Deputy Director. So ideally you don't bog the Director down with day to day operational and intelligence collection stuff. Only the most controversial or the most important cases come to the Director's attention and hopefully we're not asking him for a decision on those things. Now of course, the election tinged cases in 2016, both the Hillary Clinton case and the Crossfire Hurricane case, those were massively Significant and totally unprecedented investigations. And so the director was a little more hands on, involved in those than is normal.
- [54:00]
A
Yeah, makes sense. I mean, that's kind of the same for any government organization. You know, at the va, we would. As I climbed up the ranks, the reports that I would get and the reports that I would work on would be more limited and more limited and more limited in scope. Right. Until eventually you get to be a hospital director or an associate director or one part of the quintad we called it, which are the five people who run a VA hospital, for example. By the time you get to the briefs up to that level, it's one page. Right, right, right. And. And so, you know, we often hear the rhetoric like, is this a director level briefing? Is this an associate director level briefing? Is this a administration service chief level briefing? Like, you kind of go down, and as you go down, the idea is to keep going up through the ranks, filtering out all the stuff that can be handled at a lower level until you get to the director to handle the. The big major issues that happen at the. That's its chain of command thing. And it's. Yeah, for sure always been that way. In every agency, if the top leader.
- [55:02]
B
Is making decisions that a subordinate leader should be making, then the top leader is not doing their job, is not doing the things that only they can.
- [55:09]
A
Do, like deputy Attorney General at a. At a detention hearing or signing an.
- [55:15]
B
Arrest warrant or something. Whatever he's doing, figuring out what time the cleaning staff is to come in at night. I mean, I don't know what. What is Todd doing these days? He's out there interviewing convicts and interviewing them to see if they'll be cooperators in the future, which they won't. Yeah. So I don't know. It's weird what's happening today. It's not normal, but here's where we are.
- [55:36]
A
Yeah. I remember when he, a U.S. attorney, was at the Abrego Garcia magistrate judge hearing to determine whether or not they would get a detention hearing. It was below a level below a detention.
- [55:52]
B
Yeah.
- [55:52]
A
And he was there, the actual U.S. attorney. And Adam Klassfeld is like, wtf are you doing here, bro? And he said, here I am. I don't know, I should be in Cleveland or whatever.
- [56:01]
B
Yeah. Every once in a While in a U.S. attorney's office, you'll see not very rarely the U.S. attorney, but sometimes their division chief. So there's always the first assistant, that's like the number two. And then you have like the assistant U.S. attorney who's in charge of like the criminal division and the civil division. And then beneath that, you have, like, the one who does organized crime, one who does drugs, blah, blah. Those people in those leadership positions, every once in a while they have to get behind the desk and actually prosecute a case at trial because even they're not required to. But if they don't, it's like it's bad for their reputation in the office.
- [56:38]
A
Like, and they kind of lose their chops.
- [56:40]
B
They do. And the other lawyers want to see that. They want to know that you're sitting there making, passing judgment, making decisions on all these cases every day. Can you still try a case? You know, so I think that's why the.
- [56:52]
A
In New Jersey, the previous U.S. attorney was direct, providing direct oversight of that triple homicide when. Exactly, exactly.
- [57:01]
B
So they get involved in, in big cases like that. But the U.S. attorney really, really Giuliani did when he was U.S. attorney in Southern District, and he got criticized for it because it was like, hey, dude, you're kind of grandstanding here.
- [57:12]
A
But he was doing it, I think, for other reasons. Yeah, I've long heard the phrase, don't get in between a camera and Rudy Giuliani.
- [57:20]
B
It's the most dangerous place on earth.
- [57:22]
A
Exactly. Well, thank you for those really, really amazing and thoughtful questions. Again, if you have a question, there's a link in the show notes to submit your questions. And thanks for listening to Unjustified, and thanks for spreading the word about the podcast. We really appreciate it. I think we come up with some pretty good insights here and appreciate you sharing them with your family and friends. So. So with that, again, can't imagine what's going to happen in the following week, Andy. But I'm sure we'll have plenty to talk about on the next episode of Unjustified. Do you have any final thoughts?
- [57:55]
B
Yeah. Impossible to guess what will happen. There's so many crazy things this week for me was like on Wednesday, of course, very, very focused on the horrible school shooting in Minneapolis. So I've been spending a lot of time on that, but, like, you know, really hoping that now we'll have a meaningful conversation about those things, about guns in this country and, and what some of the underlying causes are or how we could maybe protect our kids and our, our citizens better. But I don't hold out a lot of hope because so many horrible tragedies in. We don't really seem to ever change the game here, which is really frustrating. But let's hope, hope there's no more of these shootings, at least in the week to come.
- [58:43]
A
Yeah. And I, I do hold out hope that I think maybe at a state level Governor Walz and the legislature might put something together because, man, Minnesota's going, going through it this, oh, my gosh, in recent months, they had a six.
- [59:00]
B
Person shooting 24 hours before the school shooting and then of course, the political assassinations of the, of the state legislators just a couple months ago. It's been, it's been a rough, rough run up there for them.
- [59:12]
A
Yeah. Which has, which disappeared from the news.
- [59:15]
B
Yeah.
- [59:16]
A
Oddly. Or not, I guess, depending on how you're looking at it. But thank you for that. Thank you for your coverage of that. And everybody will be back next week. I'm Alison Gill.
- [59:24]
B
And I'm Andy McCabe.
- [59:25]
A
Unjustified is written and executive produced by Allison 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 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.com.