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UnJustified
The Awkward Docket
01:01:43
The South Carolina Judge weighing the legality of the appointment of Lindsey Halligan has demanded the Lindsey Halligan grand jury tapes after DOJ withheld large portions of them. A different judge in the Comey case berates Halligan for her “indict now, investigate later” approach after the DOJ failed to produce communications seized between Comey and Daniel Richman. The 11th Circuit orders Judge Aileen Cannon to rule on motions to release Volume II of Jack Smith's final report. Pam Bondi attempts to retroactively appoint Lindsey Halligan as a Special Attorney to save the sinking cases against Comey and Letitia James. Plus listener questions… Do you have questions for the pod?
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A
MSW Media.
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The South Carolina judge weighing the legality of the appointment of Lindsey Halligan has demanded the grand jury tapes after the Department of Justice withheld large portions of them.
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A different judge in the Comey case berates Halligan for her indict. Now investigate later approach. After the DOJ failed to produce communications seized between Comey and Daniel Richmond.
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The 11th Circuit orders Judge Eileen Cannon to rule on motions to release volume two of Jack Smith's final report.
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And Pam Bondi attempts to retroactively appoint Lindsey Halligan as a special attorney to save the sinking cases against Jim Comey and Letitia James. This is unjustified. Hey, everybody. Welcome to episode 42, the answer to Life, the Universe, and everything of Unjustified. It is Sunday, November 9th. I'm Alison Gill.
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B
And I'm Andy McCabe. As always, we have a lot to cover today beyond the headlines mentioned in the intro, including questions about a foiled terror plot in Michigan pushed by Cash Patel and reports that the federal grand jury is about to issue subpoenas in the investigation of John Brennan.
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A
Oh, the John Brennan, Russia, Russia, Russia thing, I see.
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B
Yes.
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A
And apparently Jeanine Pirro interceded to stop Kash Patel from firing four top FBI agents who he targeted for their work on January 6th cases. But first, the 11th Circuit has ordered Judge Eileen Cannon to rule on motions before her to release volume two of of Jack Smith's report. So really briefly, you know, she dismissed the cases back in July of 2024. Jack Smith appealed. We never got to see the end of that appeal because, you know, because, well, she dismissed it because she says Jack Smith was appointed improperly.
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B
Right.
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A
Which is funny considering the Lindsay Halligan stuff. So he appealed, but that never got litigated because Trump won the election and the cases were dropped, but not against Nauta and de Oliveira. On January 21, Judge Cannon issued an injunction barring the Release of Volume 2 outside the Justice Department, not even to Congress. No one could have it because these cases may still be active against Nauta and de Oliveira. But in February, Trump's Department of Justice dropped those cases and said they weren't going to pursue charges again. And so a group called the Knight Institute from Columbia University, a nonprofit watchdog, they sued under a. Well, they filed a Freedom of Information act request, and the Justice Department said no, because, you know, Judge Cannon has an injunction. And so then they filed to sue to get those files. And it has sat there for eight months. Judge Cannon hasn't done anything on it. So last week. Surprised, I know. So last month, The Knight Institute poked the 11th Circuit, Judge Cannon's bosses and said, hey, can you make her his petition for writ of mandamus? Can you make her rule on our thing? And so that's kind of where we are right now. And the appeals court this week issued a one page ruling holding their petition for mandamus in abeyance for 60 days, basically signaling to Judge Cannon to fish or cut bait. She has to rule on the eight month old motion or the 11th Circuit will presumably step in.
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B
Yeah, that's, that's amazing. What a tortured history, right? I mean, how, how we stumbled forward to this point. It's hard, it's hard to kind of reconstruct those steps. You've done a great job of it. But, you know, the fact that people are not giving up on this and forcing Judge Cannon to respond essentially to demands for transparency, that's what we're looking for here, transparency. Nobody's trying to go back and re prosecute a case that got dropped against Trump or the other cases that got dropped. This is just simply to say, where is this information that now nobody's fate is resting on the outcome of? Because all the cases are gone. So it's time for the public to get to see what they're entitled to see.
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A
Yeah. And so what I was thinking, based on our coverage of Judge Cannon's court in the Jack podcast, when we were doing that podcast, I was like, she'll wait till day 59, then she'll call for a series of hearings. But before those hearings, she'll call for papers and briefings on what can be filed on a public docket, and she'll do that on a private email docket, and that'll take six months. And then she'll spend another six months in the hearings and then she'll sit on that ruling for another year. But that actually can't happen here, andy, because the 11th Circuit was specific to say, you must have this resolved and adjudicated at the end of 60 days, which is January 2nd. She can't stretch it out. In other words, almost as if the 11th Circuit was like, now we know what you're going to do.
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B
We've all been down this road before. Just a damn decision.
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A
Yeah. No secret documents, no hearings. If you want to have hearings and briefings, you got to do it and resolve your shit within, you know, within 60 days. And so make a decision, put it.
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B
On paper, defend it, and then we'll take a look or just fold the tent and you know, like, you gotta, you gotta go one Way or the other. And then that'll put them in a position to review whatever decision she makes.
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A
She'll deny it. Right. And she'll deny their emotions, I'm sure. And then they. Then they're free to appeal to the 11th Circuit because it's no longer languishing on her docket, and the jurisdiction can change.
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B
Yeah. The place that motions go to die, they should call them. No motions in her court. Nothing actually moves.
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A
No MO. Yeah, that's.
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B
Oh, man.
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A
All right, let's dive into what happened in the Comey case this week. As you know, the decision on whether Lindsay Halligan was appointed lawfully was farmed out to the South Carolina circuit after all the judges in the eastern district of Virginia recused, and rightfully so. Because if the eastern District of Virginia. If a judge in the eastern district of Virginia decided on her not being appointed lawfully and the Supreme Court overturned it or something, then they'd be stuck hearing cases in front of somebody that they've shown to think that that is not lawfully.
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B
Awkward. Awkward. Hey, Lindsay.
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A
That is known as bumping into her.
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B
In the cafeteria doctrine. Hey, no hard feelings, you know? Yeah, no, that can't happen. That's not good for the courthouse. So they had to go. They had to go outside.
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A
Yeah. I'm calling that the awkward doctrine from now on. So now it's with Judge Cameron Curry, a Clinton appointee, and I was worried that if she dismissed the whole case based on Lindsay Halligan's unlawful appointment, we would never know what happened in the grand jury room pursuant to Comey's filing that Halligan must have misrepresented the facts in some way or just screwed up so royally because she's so entirely inexperienced or threatened them that they couldn't go home until they returned to true Bill. I was afraid we would never learn any of that. But apparently the Department of Justice was also worried about that because they failed to hand over all the grand jury transcripts to the judge. To Judge Curry. They only gave Judge Curry the transcript of the former FBI agent testimony. Or not Former. The current FBI agent. Yeah, yeah. Testimony. The guy who's probably tainted by privileged information and who went to the office of general counsel and said, hey, I'm tainted. And they said, that's okay. You should. You should go anyway.
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B
They said, taint away, my friend. Can you march on with your. With your tainted self? Yeah. So this week, the judge asked for all of it. Okay. So in a Nov. 4 order, the judge wrote, On October 28, 2025, the undersigned entered an order directing the government to submit for in camera review. That, of course, means just for the judge's review, quote, all documents relating to the indictment signer's participation. Now, of course, the indictment signer is Lindsey Halligan. Okay, so all documents related to the indictment signer's participation in the grand jury proceedings, along with complete grand jury transcripts. That's pretty clear. On Friday, October 31, 2025, the court received a package containing, inter alia, a transcript of grand jury proceedings on September 25, 2025. This Court has reviewed the transcript and finds it fails to include remarks made by the indictment signer both before and after the testimony of the sole witness, which remarks were referenced by the indictment signer during the witness's testimony. In addition, the package contains no records or transcripts regarding the presentation of the three count indictment referenced in the transcript of the return of grand jury indictment proceedings before the magistrate judge. Okay, so just to decode that a little bit here, they got. The transcript failed to include remarks which were made by Halligan. So it didn't include her remarks, even though in her questioning of the witness, she referenced those remarks. Yeah, it's kind of like. It's kind of like telling on yourself and then hiding. Hiding the results.
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A
Yeah.
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B
Okay. So it goes on to say, accordingly, the government is directed to submit no later than Wednesday, November 5, 2025, at 5:00pm for Inc Camera Review, a complete transcript and or recording of all statements made by the indictment signer to the grand jury on September 25th.
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A
Yeah. And on November 5th that day, the DOJ filed a compliance notice. They said. In response, the government provided the transcript of the grand jury proceedings that was previously provided to the government by the transcription service. The court's subsequent order at docket entry148, additionally requested recording from the grand jury presentation. Upon receiving this order, the government immediately contacted the transcription service and requested the recording. Further, the government requested that the transcription service transcribe the entire recording, which is weird, Andy, because they already have. Which had not been done previously, they say. Really? Did you tell them not to? Because that should also be.
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B
You're blaming the transcription service? Really?
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A
Really? Yeah.
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B
And now comes to America, and the failure here is on the transcription service.
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A
Oh, and if I'm. If I'm Pat. God, if I'm Pat Fitzgerald. Pat Fitzgerald. I want all communications with transcription service now.
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B
Oh, heck, yeah.
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A
Did you tell him not to transcribe the Lindsey Halligan parts?
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B
That is the lamest. The lamest explanation I've ever seen. Go To a judge. Like what?
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A
Transcription services? Like, well, we only transcribed this one part. Like that never happens.
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B
We saw the judge's order and we decided just to give you this much. I don't think so. Oh, my God.
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A
You get a transcript of the entire grand jury proceeding right after. Anyway, it goes on to say this new transcript was provided to the government on November 5, 2025. The above items have now been provided to the court in compliance with the court order. So they have complied. And then on November 3, two days ahead of a public preliminary hearing before a magistrate judge back in Virginia, the Department of justice filed their opposition to Comey's motions to dismiss on the public docket. This is two days before the transcript thing went down. Okay. And that included multiple exhibits of documents, many like tons of documents. And they didn't give Comey a chance to review them and dispute their release on the public docket. So we're going to go over what's in those filings in a bit, but first, let's discuss what happened during the November 5 hearing.
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So this summary was reported by the Times, and they said. A federal judge in the Trump administration's prosecution of James B. Comey, the former FBI director, on Wednesday blasted President Trump's handpicked prosecutor, Lindsey Halligan, for taking an indict, first, investigate, second approach to the case. The magistrate, judge, William Fitzpatrick, repeatedly expressed his frustration and at times his barely restrained annoyance with Ms. Halligan during an otherwise procedural hearing in which he ordered the Justice Department to produce records from its investigation. Ms. Halligan was hastily installed as the U.S. attorney for the Eastern District of Virginia in September after her predecessor refused to indict Mr. Comey on charges that he lied to Congress.
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A
It goes on to say the flashpoint was the Justice Department's failure to turn over communications it had seized from a confidant of Comey, Dan Richman, a law professor at Columbia, as part of an internal investigation of leaks in the Russia case during the first Trump administration. These were four warrants for information in 2019 and 2020. Andy. And they failed to hand all that over. The government claims he served as a conduit between the director and the news media for passing along information about the Trump campaign's connections to Russia in 2016. As part of their defense, Comey's lawyers have accused the Justice Department of vindictive prosecution and challenged the legality of Halligan's appointment. They've argued that they've been unable to adequately defend their client without access to emails and other communications obtained by the government. From Mr. Richmond's electronic devices. In 2019 and 2020, the judge grilled.
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B
One of Ms. Halligan's deputies, Nathaniel Lemons, over prosecutors release of material in recent days, including private text exchanges intended to cast Mr. Richmond and M. Comey in unflattering light. In an otherwise quotidian court filing, he asked whether prosecutors had given Mr. Comey an opportunity to review such material first to challenge their release. When Mr. Lemon said that he had not offered Mr. Comey's lawyers access to the material obtained in several search warrants as part of the internal leak investigation, the judge chided him for placing an unfair burden on the defense. Quote, we're going to fix that, and we're going to fix that today, said judge Fitzpatrick.
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A
Yeah, and he's referring to all of those addendums and, you know, appendices that were attached to. To the government, to the Department of Justice's motion response to Comey's motion to dismiss for vindictive and selective prosecution.
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B
Yeah, so, like, a lot of it's a lot. And a lot of them are communications between Comey and Richmond. There is potentially a attorney client relationship between Comey and Richmond. Comey and his attorneys would have had the opportunity, had they been given the chance to review the materials, to say to the government, hold on a second, don't attach. We don't want these things on the open docket. They should be held under seal or not included at all, whatever, because they're attorney client privilege. Or, you know, there are other reasons he may have. There may be privacy concerns about some of that information. So they basically denied Comey's team the opportunity to make those requests.
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A
Yeah. And what if this is the stuff that the FBI agent who testified in front of the grand jury got a view of and saw all of. And some of it might be privileged. None of it went through a filter team. None of it? Yeah, none of it. And that. That. That's really bad. The judge was super annoyed here. So he then ordered prosecutors to turn over all grand jury materials and other evidence seized during previous investigations that involved Richmond and Comey by the end of the day, Thursday, November 6, Judge Fitzpatrick's decision to force the government to hand over grand jury material to Comey's lawyers was like, the significant development here. This move will allow the defense to scrutinize exactly how Ms. Halligan characterized the evidence against Mr. Comey when she showed up for what was her first ever appearance in front of a grand jury.
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B
Yeah, we talked about this last week. Like, what? This is what they're actually trying to get at with this motion. They are trying to get inside that grand jury proceeding to see how she dealt with the grand jury to mount an attack on the indictment itself. Okay, so the article goes on. Judge Fitzpatrick, who seemed exasperated with the government's approach, described the case as, quote, unusual, adding, quote, we are in a little bit of a posture of indict first, investigate second, drawing a sharp glance from an otherwise impassive Mrs. Halligan. Then, on November 6, the DOJ filed that it had complied with this judge's order. The government hereby provides notice that the material seized pursuant to the four 2019 and 2020 search warrants will be provided to the defendant by 5pm in accordance with the order.
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A
But you'll remember this judge also ordered the DOJ to give Comey all the grand jury material. But the DOJ appealed that part of the order. They really don't want to hand over this grand jury stuff, you think? Which makes it more suspect, quote, the government appeals the magistrate judge's November 5 oral order directing the government to produce grand jury materials to the defendant by 5pm Nov. 6. The order exceeds the scope of the magistrate judge's delegated authority and is devastating to our case. No, I added that part that's just.
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B
Like, wow, that's remarkable.
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A
And it was entered without the necessary findings that the defendant has shown particularized and factually based grounds exist for disclosure and that the need for disclosure outweighs the long established interest in grand jury secrecy. Now, Judge Nachmanoff has responded to this and said, bs the magistrate judge has the ability to ask for the grand jury materials. I'm remanding the case back to the magistrate Judge Fitzpatrick to, you know, add those little bits of particulars. But I've asked him to do this. He has all the authority in the world to get this grand jury material to Comey. So do it. Yeah.
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B
So basically, appeal denied.
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A
Pretty much.
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B
Pretty much.
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A
But remanded back to the magistrate judge saying, write it.
- [18:43]
B
Show your work, Repackage it a little bit.
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A
Show your work for the brand new baby US Prosecutor who doesn't understand how this works.
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B
Yeah.
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A
And get it done. Yeah. All right, so we'll be right back with more on what exactly was in those public filings that Comey didn't get to review that upset the judge. But we. We have to take a quick break here, so everybody stick around. We'll be right back. All right, everybody. Welcome back. Before the break, we talked about the Department of Justice filing loads of exhibits on the public docket without giving Comey a chance to dispute their. Some of it might be privileged information. They didn't get a chance to. To do it at all. Which is just what a move, considering that whole special master debacle we had to go through. Judge Cannon. So here's how the Times characterizes that filing, which was a response, like I said, to Comey's motion to dismiss for vindictive and selective prosecution. On Monday, federal prosecutors disclosed evidence showing that Comey had used a confidant to provide information to reporters. And even though it was difficult to tell how some of the evidence was relevant to the charges, that's not a good sign, and that's putting it mildly. The 48 page filing appeared to be an effort to construct a narrative that Comey had leaked information to the news media without actually tying such such assertions to the allegations made in the indictment brought against him.
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B
The main document was a long 48 pages and came with dozens of exhibits of, quote, evidence, including handwritten notes by Comey and emails between himself and Richmond, among other things. The filing is massive, but we can summarize it through its introduction, and that goes like this. The prosecution is not vindictive. The defendant has not produced direct evidence of a vindictive motive, and he has not shown that the prosecutor pursued this case solely to punish him for exercising his First Amendment rights. The prosecution is also not selective. The defendant has not identified similarly situated individuals who were not prosecuted, and he is not provoked every one of these assertions. You can answer with that. This is just like somebody just denying. It's just there's. They're like unsubstantiated denials. This is not.
- [21:06]
A
I know you are, but what am I? That's awful.
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B
Actually, it seems vindictive. He didn't provide direct evidence of a vindictive motive. I thought he provided like a hundred.
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A
He did.
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B
You know, social media posts from the President attacking him. Like, that's pretty good evidence. Yeah, this is. This is crazy. But in any case, it goes on to say, and he has not provided evidence that the decision was to pro. To prosecute him was made because of his protected activities. A duly appointed and unbiased prosecutor presented the indictment. Really? And a duly constituted grand jury found probable cause that he committed the indicted offenses. The motion to dismiss and request for discovery should be denied, and the case should proceed to trial again. It's just. There's no reasoning here. There's no, like, supporting information, you know, quite the contrary. Here's evidence that this didn't happen.
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A
Right. Or you Say, okay, so this example that Comey gave of what Trump said, here's why. That's not vindictive. They don't. That's not even that interest. It wasn't right.
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B
It just. These are just bold faced statements.
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A
And that he didn't give any similarly situated examples. He gave four pretty big ones. And we talked about them. Jeff Sessions, Tom Price, Scott Pruitt, Steve Mnuchin. Yeah.
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B
This is the response equivalent of, no, we're not.
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A
You are.
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B
No, we're not. You are what you said.
- [22:33]
A
We're rubber, you're glue. Everything the Department of Justice says bounces off of us and sticks to you. That's signing Lindsey Halligan. Yeah. The response then goes on to detail communications between Comey and Richmond in 2016, attempting to show that Comey did actually authorize communication with the press. Press. And that's what all the exhibits attempt to show. The only problem is that while the government is in the weeds trying to show, Comey authorized Richman to disclose things to the press. There's nothing illegal about that. And further, he's been indicted for saying, I stand by my testimony, which he said in 2020 when Ted Cruz was asking him about you, Andy, not Dan Richmond. The government's assertions don't cure Ted's ambiguous and imprecise line of questioning, nor do they support the allegation that Comey lied about in his 2020 testimony. I think a bigger problem here, Andy, is that those communications, like you said, between Comey and Richmond could be privileged and were never put through a proper filter team, nor was Comey given the opportunity to review them before the DOJ made them on, put, you know, put them on a public docket. It makes me think this entire indictment is kind of just an excuse to release some of these old documents. And another problem for the prosecution, and this comes from Anna Bauer at Lawfare. Documents in an old case from Daily Mail in a FOIA case, show that Dan Richmond left the FBI before these communications between he and Comey began and that he never signed a reappointment letter, so he might not have even been working at the FBI when these emails went out. So to ask Comey, did you authorize someone else who worked at the FBI to release this? And Comey said, no, that's true. If, if, if Richmond wasn't at the FBI. And then to stand by that in 2020, three years later, also can't be a lie, because it's an imprecise question. Yeah.
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B
And, you know, I think I, in regards to your comment earlier about maybe it's an excuse just to get the documents out. I think there's really something to that. Like, we know that from. From his prior statements, we know at least, like our good buddy Ed Martin. Right. Made those comments earlier in the administration. Like, these people have no shame. They should be shamed. Even if we can't convict them, we're just going to shame them. We're going to drag their names through the mud. We're going to cancel them. So I do think that that's kind of lurking in the background of these ridiculously weak and unconventional cases. I think part of the intent here is the process. Right. The process is the penalty. I think you see that here. I think you're going to see that in Letitia James case and really everything that comes after.
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A
Yeah, no, I agree with you. And I mean, there's just. This is just a handful of the 800 things wrong with this case. It reminds me of lots of these communications happened through Richmond's Columbia University email. That's another complaint that the government has that he was using a private email. You recall when Jack Smith was trying to get John Eastman's Chapman University emails?
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B
I do remember that.
- [25:46]
A
They first had to put them through a filter team. They had to squeeze blood out of a rock to even get Eastman to fill out a privilege log saying what he thinks is privileged, and many were not because of a crime fraud exception. That's the thing that should have happened here with these emails, and it didn't. And these emails probably wouldn't be subject to the crime fraud exception because Comey is the FBI director. He can authorize press releases.
- [26:23]
B
Yeah, he's not even being charged for that.
- [26:26]
A
No, he's not.
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B
That's not the crime here. It wasn't a crime then, which is why it's not charged here now. So the whole. That's, you know, they want. They want to drag Comey's messages with Richmond and anyone else that they can out through the public. Oh, look what he was doing. He was a. He was a leaker. He was a leaker. Like, you know. Yeah. It is hard to understand the relevance of some of these things to the actual motion or the case that they brought. But again, that's kind of. They don't care about that.
- [26:58]
A
No, they really don't. One other thing that happened on the docket this week. Comey got two more weeks. He asked for two more weeks for SEPA Section 5 because his lawyer, Pat Fitzgerald, hasn't received a clearance yet. So that there's another opportunity for delay by the Department of Justice. Yeah, but nothing tops this in my opinion. On November 3rd, Pam Bondi filed the following declaration on the comey docket. On September 22, 2025, I exercised the authority vested in the Attorney General to designate and appoint Lindsay halligan as the U.S. attorney for the Eastern District of Virginia. And for the avoidance of doubt as to the validity of that appointment and by virtue of the authority vested in the Attorney General by law, including Title 28, United States Code, Sections 509, 510, and 515, those, by the way, were the sections cited to get Jack Smith pulled off of the Canadian Eileen Cannon thing. I hereby appoint Ms. Halligan to the additional position of special attorney as of September 22, 2025, and thereby ratify her employment as an attorney of the Department of Justice from that date going forward. She's actually trying to retroactively cure the unlawful appointment of Lindsey Halligan. This is almost an admission that she, first of all, isn't appointed lawfully by saying, okay, well, I'm gonna go back in time.
- [28:26]
B
No, it's not. It's just for the avoidance of doubt.
- [28:30]
A
For the. Oh, for the avoidance of doubt, I'm going to go back in time, I'm going to get my DeLorean and appoint her. Just put this whole docket, put it on the road at 88 miles an hour, take it back to September 22nd, and I'm appointing her a special attorney.
- [28:45]
B
There you go.
- [28:47]
A
She has three laws.
- [28:48]
B
Yeah. She has violated the long held legal axiom, no backsees. Okay? There's no backsies in the legal world. You cannot.
- [28:58]
A
There's.
- [28:58]
B
Even. Even someone like Pam Bondi does not have the magic wand covered in fairy dust that it would take to do this. It does not work that way. Just because you say it doesn't mean that happened two months ago. It did not.
- [29:16]
A
I mean, it's the legal principle. X post. Oopsie, I screwed up, right? Everybody knows it.
- [29:23]
B
Is that what I said? Because what I meant to say was this. So let's pretend I said this. Like you didn't.
- [29:28]
A
Yes.
- [29:29]
B
And honestly, in some crazy world, this might actually work. If this was a situation where they could fix this mistake by dismissing the indictment without prejudice and representing the case to a current grand jury. That's what you would do in a normal case. You can't do it here. No, there's no. So, yeah, they're hosed.
- [29:55]
A
Their hosts.
- [29:56]
B
This is not going to work.
- [29:56]
A
Post hoc ergo propter. I'm an idiot. That's what it boils down to. Anyway, that's the Latin official Latin legal phrasing for it. All right, we've got more to get to, including some tensions between Judge Box of Wine, Jeanine Pirro and and Kash Patel, the director of the FBI. But we have to take another quick break, so stick around. We'll be right back. Foreign.
- [30:28]
B
Welcome back. Okay, there appears to be a rift in the Department of Justice between Cash Ray Jacket Patel at the FBI and Jeannie Pirro at the D.C. u.S. Attorney's office. From the Associated Press the FBI has continued its personnel purge, forcing out additional agents and supervisors tied to the federal investigation into President Donald Trump's efforts to overturn the 2020. The latest firings came despite efforts by Washington's top federal prosecutor to try to stop at least some of the terminations. People familiar with the matter told the Associated Press.
- [31:06]
A
Dum, dum, dum, we have drama. The employees were told this week they were being fired, but those plans were paused after D.C. u.S. Attorney Jeannie Pirro raised concerns. That's according to two people who spoke on the condition of anonymity. So they would also probably not be fired. The agents were then fired again on Tuesday. Looks like Ginny Pirro lost that round. It's not clear what prompted the about face. The total number of fired agents was not immediately clear.
- [31:35]
B
The terminations are a part of a broader personnel upheaval under the leadership of FBI Director Kash Patel, who has pushed out numerous senior officials and agents involved in investigations or actions that have angered the Trump administration. Three ousted high ranking FBI officials sued Patel in September, accusing him of caving into political pressure to carry out a, quote, campaign of retribution. The FBI Agents association, which has criticized Patel for the firings, said the director has disregarded the law and launched a campaign of erratic and arbitrary retribution. Quote, the actions yesterday in which FBI special agents were terminated and then reinstated shortly after and then only to be fired again today, highlight the chaos that occurs when long standing policies and processes are ignored. The association said an agent simply being assigned to an investigation and conducting it appropriately within the law should never be grounds for termination.
- [32:34]
A
Yep, yep. That's why he wants to make everything schedule f right, right to work. The 2020 election investigation that ultimately led to special counsel Jack Smith's indictment of Trump has come under intense scrutiny from GOP lawmakers who have accused the Biden administration Justice Department of being weaponized against conservatives. Stop breaking the law and it won't feel that way. Senator Chuck Grassley, Republican chairman of the Senate Judiciary Committee, has In recent weeks released documents from the investigation provided by the FBI, including ones that show investigators analyzed phone records for more than half a dozen Republican lawmakers. As part of their inquiry. DOJ has fired prosecutors and other department employees who worked on Jack Smith's team. And the FBI has similarly forced out agents and senior officials for a variety of reasons as part of an ongoing purge that has added to the tumult and sense of unease inside the bureau. It's truly ripped it apart. It's not a recognizable bureau from anybody that I know that is even still there or was recently there.
- [33:33]
B
Yeah, this stuff is carving a trough right through the center of the agent population. And it's not just the agents, the analysts, the professional staff. Everybody sees what's happening. There is a massive gap between the way the Bureau has always functioned, the way it's always treated its personnel, and the way they're being treated now by their leadership. The FBI in August ousted the head of the Bureau's Washington field office as well as the former acting director who resisted the Trump administration's demands to turn over the names of agents who participated in the January 6 Capitol riot investigations. And in September, it fired agents who were photographed kneeling during a racial justice protest in Washington that followed the 2020 death of George Floyd at the hands of Minneapolis police officers. I should say agents who were captured in a photograph kneeling with George Floyd protesters in Washington and who also were cleared by several internal investigations by the Office of Professional Responsibility, by the ignorant as having done nothing improper or violating FBI policies or procedures. And they had all been returned to regular duty until now, until this administration came in. Just really didn't like that picture and went after these, these law abiding policy following agents purely for vindictive reasons.
- [35:01]
A
Yeah, yeah, 100%.
- [35:06]
B
So.
- [35:06]
A
All right, so we've kind of got the long and short of this. It looks like Patel fired them. I hear there's four of them. And then Janine said no and they were reinstated and then they were refired again. And I think that the Associated Press hits the nail on the head when they say that that is indicative of the chaos that happens when you do things on a retributive basis, if that's a word. Am I making up retributive? Maybe, but you know what I mean? I do. All right. Speaking of Kash Patel, a Michigan defense lawyer is disputing Patel's allegations that his 20 year old client and four other young suspects were planning on carrying out a terror attack on Halloween weekend in Michigan. Announcing their arrests on Friday of course, on social media, which he does, which is just so dumb. Patel said more information would be coming soon, but the FBI and Michigan authorities have offered few details about this case. Spokespersons for the state and the national FBI and the US Attorney in Detroit didn't respond to requests for comment.
- [36:13]
B
On Saturday, the investigation involved discussion in an online chat room involving at least some of the suspects who were taken into custody. According to two people briefed on the investigation who could not publicly discuss the details. They spoke to the associated press on the condition of anonymity. The group allegedly discussed carrying out an attack around Halloween, referring to pumpkin day. That's a really amazing code for Halloween pumpkin day. I'm fooled.
- [36:42]
A
I'm totally fooled.
- [36:43]
B
According to one of the people, the other person briefed on the investigation confirmed that there had been a pumpkin reference.
- [36:50]
A
What if this was just a group chat to carve pumpkins and Patel was like, it's a terror sell.
- [36:56]
B
That would be really unfortunate for the pumpkin carvers. Okay, so lawyer Amir machled. Am I pronouncing that correctly? I think so.
- [37:04]
A
I haven't heard his name pronounced, so your guess is as good as mine. Okay, we'll go with.
- [37:08]
B
Machled, who represents a man from the suburb of Dearborn who was still detained on Saturday, said that federal authorities haven't given him many details about the investigation, but after reviewing the matter, he concluded that no terror event was planned. He said he does not expect any charges will be filed.
- [37:27]
A
Oh, okay. So making stuff up, huh? He described the all male group of u. S. Citizens as gamers. They range from the ages 16 to 20. Quote, if these young men were on forums that they should not have been on or things of that nature, then we'll have to wait and see. That's what the lawyer said, but I don't believe there's anything illegal about any of the activity they were doing. Authorities said Friday after the arrests were made that there was no further threat to public safety. Patel has that there was probably no initial threat to public safety either. But patel had announced in a post on Twitter the FBI thwarted a potential terrorist attack and arrested multiple suspects in Michigan who were allegedly plotting a violent attack over Halloween weekend. So the lawyer says none of this is true, but lawyers always say that. That we'll see if any more details come out about this case. I tend not. I also have Kash patel and the department of justice have also lost a presumption of regularity with myself. So I tend not to believe anything that Kash Patel puts on Twitter.
- [38:32]
B
There's no reason you should believe what he puts on Twitter because it's been proven wrong a couple times now recently. And this. Which is why no FBI director, any other FBI director, would ever have used Twitter or social media in the way that he does, and certainly not put out information as quickly as he does, because you can get it wrong, and he often gets it wrong.
- [38:55]
A
But I remember the Charlie Kirk murders. He's like, we've got our man. And then. No, we let that man go, and then we have our net. We have another man, and then we had to let that man go. Like just real time. It's so sloppy.
- [39:07]
B
So there was. There's a little bit of a development in this thing. There was. On November 5th, so they did finally present the charges against three of the defendants.
- [39:18]
A
Oh, okay.
- [39:18]
B
And those charges were material support, which we kind of expected. And I'm trying to pull up the other one right here.
- [39:27]
A
Oh, so, you know, while you're pulling that up, maybe there is actually something to this. Something that was in those chat rooms for these kids that might have indicated they were planning on carrying out some sort of a. Yeah. Illegal thing.
- [39:44]
B
It's a long complaint. It's a copy of the complaints, 93 pages. So there's a lot of information in here. They have been charged with receiving, transferring, and attempting and conspiring to transfer firearms and ammunition, knowing and having reasonable cause to believe that the firearms and ammunition would be used to commit a federal crime of terrorism. And also 2339B, which is a conspiracy to provide material support or resources to a designated foreign terrorist organization. So, notably, there's only three defendants included in the complaint, which I think probably reflects the fact that the other two, I think, were underage. They're minors, and you can't really charge minors. And basically, they teach you at Quantico, like, we don't do minors in the FBI. It. There's. It's not. We don't have. The federal government doesn't have, like, the. The capacity, the facilities and everything to. To process.
- [40:42]
A
You hand those off.
- [40:42]
B
Typically hand that stuff off for locals. That's correct. So that. So this is. I haven't read through this 93 pager yet. I will, but so. So there's that. There was also another arrest of two people in New Jersey in the last couple of days that are supposedly related to this group. So I think what we can. What we can divine from what I. All this from having been involved in many, many of these cases over the years. The Bureau obviously was successful in getting into one of these kind of group chats. And they were concerned about the chat and the. The stuff these people were talking about. They did some more work and confirmed that the Michigan group had actually attended a gun range in the lead up in days leading to Halloween. And they thought that that was like preparing for this attack that they'd allegedly been talking about in the group chat. And the two New Jersey guys were interacting with the Michigan guys and about to flee the country. So in my experience, the way we always approach these cases, look, it's really important work to do, and you want to obviously prevent these things from happening. That is the number one goal in the counterterrorism program, to prevent an act of terrorism in the United States. And there can be. It's very hard sometimes to understand what you're looking at is this just a bunch of knuckleheads who are, like, beating their chests and not actually going to do something, or do they have the intent and capability to engage in some sort of violent act? And that can be a tough line to figure out. The way we usually did that was by inserting a human undercover into the group physically. So not just someone who's talking to them online, but someone who could interact with them and assess how those two elements of intent and capability. And, you know, if they would ask the undercover, hey, can you give it. Get us a bomb? The undercover, like, yeah, sure, let's. And then we would make one, and they would take it out to some remote place and test detonate it. And once they've gone through those kinds of steps, then the charge against them is much stronger. That kind of stuff didn't happen here. Doesn't seem like.
- [42:48]
A
Is there. I was going to ask, is there a UC mentioned in this complaint?
- [42:52]
B
I don't know the answer to that just yet because it's. I'm just kind of stumbling into this thing now. There were definitely online undercovers that were listening to this chatter that they were concerned about. I don't. I've never heard any reporting that they actually had a undercover employee interacting with them face to face. But I will report back on this next week. How about that?
- [43:17]
A
Yeah, sounds good. Yeah. And a lot of times these, you know, I can see situation where local and local FBI, local law enforcement are actually working together to do these things. And Kash Patel finds out about it and puts it all out on Twitter.
- [43:35]
B
Entirely possible.
- [43:37]
A
Yeah, that might. That sounds like it might be the scenario here, but yeah, we'll look. We'll look into that. Good. Good to know. All right, everybody, we have just A couple more stories and then some listener questions. There's a link in the show notes you can click on if you want to submit question to us. I would take one last quick break. So stick around. We'll be right back. All right, everybody, welcome back. Just a couple more stories for you and then listener questions first from NBC. The Department of Justice is preparing to issue a series of grand jury subpoenas as part of a South Florida based investigation. H Wonder what judge you're looking for there. Into former CIA director John Brennan and the probes by the CIA and FBI into Russian interference in the 2016 election. This is MSNBC. He just will not let this go, Andy. Nope, Nope.
- [44:30]
B
Never ever.
- [44:33]
A
The investigation is being supervised by U.S. attorney in South Florida Jason Redding Quinones, in consultation with the Justice Department senior staff in Washington. And that's according to a source familiar.
- [44:44]
B
A White House spokesman confirmed the existence of the grand jury investigation in August after Fox News reported that Attorney General Pam Bondi ordered the probe based on a criminal referral from Director of National Intelligence Tulsi Gabbard. The fact that subpoenas are being prepared has not previously been reported. Among the topics of interest in the new investigation is the preparation of the 2017 intelligence assessment into Russian election interference. That also was investigated by Special Counsel John Durham who found no wrongdoing in its preparation. Btw, also investigated by Michael Horowitz who found no wrongdoing with the ica. The Intelligence community assessment. Oh, yeah. Also investigated by the Senate Intelligence Committee. Again, same finding. Oh, and also investigated by the House Intelligence Committee. And you know, they had their complaints because it was Devin Nunez and Cash Patel, but really nothing, nothing significant came from that either. So here, here we are doing it again because, I don't know, we just don't want to.
- [45:50]
A
They want to spin something and release some sort of documents and.
- [45:53]
B
Yeah.
- [45:54]
A
Make it look like Russia wasn't a thing. Right. For sure. They want to.
- [45:57]
B
For sure.
- [45:58]
A
They want to try to convince everybody that Russia doesn't interfere in anybody's elections. They're totally cool guys. Yeah. All right, final story. Dun, dun, dun. Sandwich guy acquitted on all one count of misdemeanor simple assault. And this is actually kind of a big deal, Andy, because it's a huge deal.
- [46:21]
B
I'm so into sandwich guy. This dude is. He's the best.
- [46:24]
A
Me too. If you know him, if you know anybody who knows him, I want to talk to sandwich guy.
- [46:29]
B
Heck yeah.
- [46:30]
A
And. And if anybody who was on the jury is listening, my signal is military. Wrote23 Reach out. I'll keep you anonymous because I want to know if this is jury nullification or if this is finding on facts of the law. Because there's a couple ways this could go. I thought maybe hung jury. Right. Maybe one or two would be like, I'm not convicting sandwich guy. I don't care if this was assault. And we would have jury nullification and a mistrial. I thought that was probably what was going to happen. But all 12 unanimously acquitted him. And that's just blows my mind. Now one potential thing that I think this could have rested on was that the sandwich didn't explode. But in order to.
- [47:14]
B
That's aggravation under the statute. If the sandwich blows up on your face or your chest or on your pants or whatever, that's like a felony right there.
- [47:22]
A
Yeah. Or. Or at least a misdemeanor. Right. And so that's, that's what prompted me to post on social media. If the sub didn't split, you must acquit. But, but there was an actual really good, colorable legal argument here that the defense attorney made for, for Mr. Dunn's for sandwich guy, which was, you know, in order to, to be a victim of assault, you have to have feared, you have to have been concerned or worried about what was potentially going to happen to you or what did happen to you. And the fact that he jo it and had a sandwich plushie on his shelf at work and displayed a felony footlong patch on his lunchbox at work.
- [48:01]
B
This is the agent who got hit with the sandwich.
- [48:03]
A
This is the agent who got hit with the sandwich.
- [48:05]
B
Oh, wow. I didn't hear that.
- [48:06]
A
Could show. Yeah. I followed these. I followed this really closely.
- [48:10]
B
And you really, you really, really down the wormhole here. But go, keep going.
- [48:14]
A
I did. It's my tax. I paid 2 cents for this trial and I wanted my money's worth, which I got in spades in jokes and sandwich puns alone. But that shows that could put reasonable doubts in the minds of the jurors that this guy was not at all afraid of the sandwich.
- [48:31]
B
Yeah.
- [48:31]
A
And wasn't concerned about it and wasn't. Didn't feel personally assaulted. Which is one of the elements of simple assault. Right.
- [48:39]
B
Yeah. It could have been a first year law student 101. It's an assault. Is an offensive touching. You have to be contacted and you have to be offended by it.
- [48:49]
A
If you aren't offended. If you, if you have stickers and, and sandwich plushie in your cubicle. It's hard to prove that you. It's hard to say you've been offended and that you were concerned for your safety, so. Especially if you're wearing a tactical vest and full military gear, as this guy was. Because he was Customs and Border Protection. Yeah.
- [49:07]
B
Full on Kevlar defeats sandwich once again.
- [49:11]
A
In the old rock, paper, scissors, Kevlar sandwich.
- [49:13]
B
That's right.
- [49:14]
A
Game that we like to play.
- [49:15]
B
Exactly.
- [49:18]
A
Now, you know, I'm going to create that.
- [49:20]
B
Oh, my God.
- [49:22]
A
But, so I don't know. I want to talk to the jury. Was it jury nullification or was it reasonable doubt that he was offended by this, the sandwich thrown at him at, quote, point blank range?
- [49:36]
B
Well, like, like every great saga, it continues. Right. We, we now have a, we have a verdict. We're happy about that, but we need to know more. We need to know. We need to get to the nugget of the sandwich question.
- [49:49]
A
I do. So get to the meat of the issue, Andy. We have to get to it. And hey. Yeah, it was dangling right there in front of you like an onion on.
- [49:57]
B
I'm not a professional. I don't, I don't prefer, I, I, I admit that.
- [50:02]
A
So you're a dad, though. You should have those dad jokes.
- [50:06]
B
I know I should have that.
- [50:08]
A
So if you're listening, if you were in the jury or you know someone in the jury, please reach out to us either at the link in the show notes. We will keep you anonymous. We will never say anything without your permission ahead of time. But I am dying to know.
- [50:24]
B
Yeah.
- [50:25]
A
Whether this was jury nullification or not. But I think, you know, the broader message is people aren't putting up with this BS of ice being assaulted a thousand percent more than they ever were before and that they're in danger and everything is a war zone. And that's why we need the military and the National Guard and all this other baloney that's happening in Portland and Los Angeles and Chicago, soon to be Baltimore, if I, if the rumors are true, and I understand some rumors correctly. But it was, I think that, you know, sandwich guy is funny, but it's a big deal. It's a big deal that people, that we, the people who sit on the jury are our last line of defense against these vindictive, selective, and ridiculous over the top prosecutions. So well done, D.C. well done.
- [51:09]
B
Despite the violent hellhole nature of a city where you can get hit with a sandwich any old day of the week, the jury still prevails, does their job. Well done.
- [51:19]
A
Yes. Now, please don't go start throwing sandwiches at federal agents.
- [51:26]
B
No, that's not what we're saying. We're not saying.
- [51:28]
A
It's. This isn't pressing.
- [51:30]
B
Game on. Sandwich war. That's not what we're saying.
- [51:32]
A
Yeah. Food fight. No, no, no. Just. Yeah. All right, time for listener questions again. If you have a question, there's a link in the show notes. You can submit questions to the both of us and we'll see if we can do our best to answer them. What do we have today?
- [51:46]
B
All right, I got a couple. These are going to be quick ones. It's a bit of a little kind of lightning round mini here, but I'm getting like a lot of questions on these same topics, which is why I don't have names. Because if this sounds familiar, then just consider yourself represented here. The first one is, is Emil Bovey's job for life? And the answer is yes, federal judge at any level is a job for life. And the follow up question was, can he be impeached? And of course the answer is, yeah, he can technically, but not really because he would have to go through the same impeachment process essentially the president does. It's the same impeachment process for any government officer. And that just doesn't really work.
- [52:35]
A
If you can't get impeached for a coup here in America, you're not going to impeach for being a Bovie.
- [52:40]
B
Exactly, exactly. So it's not, there's no, I don't think there's really any relief there. If you're not a Bovie fan, you.
- [52:48]
A
Can run on it. You can run on it politically. If you're running for Senate, it say, I would, I would, I would vote to impeach.
- [52:54]
B
Sure.
- [52:55]
A
You know, run on it. But, you know, I don't, I don't know how feasible it is.
- [53:01]
B
All right, next one. And I get, I should say we get so many questions about this, like week after week because. And I think it reflects like the outrage that people have about what's going on. And I totally respect that. So the question is, can Comey or Letitia James sue to recover legal fees, damages, damage to their reputation? Can they sue prosecutors in defamation, all kinds of things like that? And the answer is generally no. It is very, very, very hard to sue in civil court prosecutors for decisions they made about a prosecution. And that reflects the fact that prosecutors have enormous authority to make prosecutorial decisions, whether or not to try to get an indictment, whether or not to take a case to trial or plead it out. All those kinds of things are, I don't want to say officially beyond the scope of any court to look at. They're not. But they don't typically get attorneys, prosecutors. Prosecutors offices don't typically get civil judgments against them for the acts of prosecutors and their staff that are within the scope of their duties. Which is. Which is very broad. You do see it sometimes when somebody has been, like, found innocent after they've served, like, 20 years in prison, and their case is. Falls apart and they have to. And the. And the prosecutors step up and withdraw the conviction and all that stuff. In those cases, oftentimes people come to a civil settlement with the city or the. Or the. The government that was behind.
- [54:44]
A
Yeah, the government will be like, sorry, here's a million dollars.
- [54:47]
B
Exactly. But that is probably not going to happen here. So just trying to put that fire out a little bit.
- [54:53]
A
Unless, you know, we get a real cool Attorney General if we get a Jack Smith in 2029, and Comey's like, Hey, I need $230 million because I was wrongfully prosecuted.
- [55:05]
B
Yeah, just file a claim. Apparently, it's all you got to do is file the claim.
- [55:10]
A
And there is a claims process. You can file a claims process for that.
- [55:13]
B
Yeah, there is. I'm guessing that would go anywhere, but. Okay, the last one. All right. This is kind of an interesting one. I haven't seen this one before, but I think there's a lot of question about it. Who decides which justice gets to be the Chief Justice? Who. How does someone get picked for that role? And the answer is the president decides because you actually get nominated into that job.
- [55:41]
A
Job.
- [55:42]
B
So when the Chief justice either resigns or retires or passes away, whatever leaves the post, then there is not just a Supreme Court justice slot open. It is the Chief justice slot that's open. And whoever the president nominates, if that person gets confirmed, they are it. So it's not like, you know, you take the most senior person on the. On the court, and they become the chief and then the newbies come.
- [56:07]
A
That's how most other courts work, by the way. But not.
- [56:09]
B
Not correct. But not the Supreme Court.
- [56:12]
A
So M.L. bovey it is.
- [56:14]
B
There you go. Could be Chief Justice Bovey. You never know. Yikes.
- [56:18]
A
And then you backfill the other regular Associate justice position. But I. I don't know. I mean, what are the powers that the Chief justice has? I mean, it's still just one vote. He still just has one vote, or.
- [56:28]
B
She only has one vote. Gets to decide, like, who writes the opinion right after they conference, which is that when they determine they have their secret vote as to as to whether is going to be upheld or overturned or whatever. And then the Chief justice assigns which judge will write the opinion for the majority, which is of course, that's the holding, the law, everything else. The dissents and all that stuff are just kind of window dressing. It's really the holding that matters is precedent. So the Chief justice gets to do that.
- [57:02]
A
Chief justice is also technically, unless they say like in Bush v. Gore, except this isn't precedent. This is just for this.
- [57:10]
B
Yeah, the Chief justice is also like the head of the federal court system. And so the Chief justice selects the judges for the FISA court. So there are like administrative responsibilities that the Chief justice has that the others don't have. Interesting.
- [57:28]
A
Good questions. Thank you all so much for submitting your questions. Again, link in the show notes to submit your questions and we'll do our best to get to them. And once we have a whole bunch of them that are are getting backlogged, we'll release another questions only. Bonus episode.
- [57:41]
B
Heck yeah.
- [57:43]
A
Currently, right now, if you want to become a patron of this show, it's $5 a month and it's you get these episodes ad free and early. You also get the Daily Beans ad free and early. But now you also get, for at least the next couple of weeks, our new video podcast that Dana and I are doing. We're testing it, we're beta testing it with our with our patrons at the $5 level. So you can sign up to do that@patreon.com MullerShiprote and then starting December 1st, we'll be releasing those that new video podcast to the public. But you as a patron will still get those particular episodes ad free and early as well. Plus we have tickets to galas and live events, pre sale tickets. We have our monthly Zoom Happy Hour call. And Andy and I would like to thank everybody for showing up on Halloween night. Andy was there. Harry Dunn was there. I was there. And if you know, if you're a patron, if you're a paid subscriber, you get to join us on those Q and A Happy Hour mocktail cocktail extravaganza Zoom calls that we do once a month, which are super fun and very chill. Everybody's amazing. So our content's always free. But if you want those little extra perks and you don't want to listen to the ads, sign up. Join us, Be a contributor to Independent Media if you're able to. I know a lot of people don't have the means right now, so if you're able, sign up@patreon.com melosherote and thank you to all of our patrons for supporting us. We really appreciate you and thanks to everybody just for listening to this show. Your curiosity and interest in the truth and facts is super important, especially during these times. So thank you. Just thank you for listening.
- [59:27]
B
Totally agree. It's like, I know you get this question a lot, AJ I get it all the time when I'm talking to people. There are people, so many people ask like, what can I do?
- [59:37]
A
Like.
- [59:39]
B
I'm scared, I'm anxious, I'm exhausted, I'm angry about what I see in the news and the way things are going. What can I do? So it's a hard question to ask because everybody's different. They're coming from a different place, they have different capabilities and how much attention and time they can spend on things like that. But one of the things that everyone can do is continue to support those voices, those media entities that you feel like are delivering that content that is important to you. And of course this is a place and a way to do that. We thank you for listening. But if you want to do something extra, it's always super appreciated to support, to support the POD and all of AG's great work through the Patreon subscriber system. It just enables us to really kind of continue to try to deliver the best we can for you.
- [60:31]
A
Yeah, agreed. Thank you so much, Andy. Great to see you. I hope everybody has a wonderful and safe week. And there will be an episode of the Breakdown, which is my video pod on Midas today at 3:30pm Pacific, 7:30 Eastern. Check that out. I've got some. Andy, I've got, you know, I've got sources who worked at the FBI and reviewed the Epstein files and I've got some new information on, on that review that, that I'm going to be talking about over on Midas touch today at 3:30 Pacific. So check that out and appreciate everybody and we'll see you next week again. Click that link in the show notes with your questions and thank you for listening. I'm Allison Gill.
- [61:13]
B
And I'm Andy McCabe.
- [61:15]
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 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.