The Guardrails

Summary

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UnJustified – Episode 35: “The Guardrails”

MSW Media | Released: September 21, 2025

Hosts: Alison Gill & Andrew McCabe

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Episode Overview

In this episode, Alison Gill and former Deputy FBI Director Andrew McCabe dive into how the Department of Justice under Trump has increasingly eroded civil liberties and the rule of law. Central to the discussion is McCabe’s firsthand account of Jack Smith’s rare public speech at George Mason University, offering piercing commentary on prosecutorial ethics, the degradation of DOJ norms, and the importance of “guardrails” like fair process and an active, informed public. Gill and McCabe dissect recent DOJ cases—from pressures to prosecute political enemies to grand juries rebuffing questionable cases—and examine broader threats to democratic institutions and civil rights.

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Key Discussion Points & Insights

1. Jack Smith’s Speech at George Mason University (01:11–29:11)

Smith’s Profile and Demeanor (01:11–02:50)

• Jack Smith, Special Counsel famed for investigating Trump, spoke at the Roger Wilkins Speaking Series, honoring a legendary civil rights attorney.
• Smith, known for his sober, direct manner, spoke with “jury-like gravitas” (02:51), emphasizing the gravity of threats to the rule of law.

Rule of Law Under Attack (04:55–07:30)

• Smith believes the rule of law is under attack “in a way that it has never been ever before, certainly not in our lifetimes” (Andy McCabe, quoting Smith, 04:43).
• Key concerns:
  • Firing public servants for upholding their oath.
  • DOJ weaponization to target citizens for exercising constitutional rights.
  • The DOJ losing credibility with the courts—“the presumption of regularity is gone” (Alison Gill, 04:55).

The Meaning of Rule of Law (07:30–11:05)

• Smith: “...treating people equally under the law... Laws must be applied equally and enforced equally against everyone” (Andy McCabe, 06:06).
• Deviation from these norms leads to political enemies being targeted and friends escaping accountability.

Fair Process vs. Outcome (07:30–10:06)

• Smith distinguishes between the process of justice and its outcome; stresses fair process even when it leads to unpopular results.

  “That’s how the system maintains fairness. Defendants have rights and they get to enforce those rights... You can’t shortcut that. And that all takes a long time.”
  — Jack Smith (as paraphrased by Andy McCabe at 09:18)

• Alison Gill adds: “If it were Trump or Bill Barr in charge... you’re gonna want that ability to appeal and delay and fight back and... go through the due process.” (10:18)

Prosecutorial Ethics and Public Pressure (11:05–14:10)

• Smith reiterates: “The ethic of the professional prosecutor is to do the right thing the right way for the right reasons.” (Andy McCabe, 11:17)
• Warns prosecutors to “tune out the noise”—ignore both criticism and excessive praise.
• Echoes Rachel Maddow: There is no “silver bullet”; democracy’s guardrails require active participation from everyone.

DOJ Norms Abandoned (14:10–16:52)

• Smith details how DOJ leadership has forsaken traditions, prioritizing political outcomes over legal integrity.

  • Examples:
    • Dismissing criminal cases for political expediency.
    • Targeting law firms for perceived disloyalty.
    • Failing to investigate breaches of classified info for political allies.
    • Ignoring court orders when contrary to the president’s agenda.

  “DOJ allegedly telling prosecutors to ignore court orders if they come into conflict with the President’s agenda.”
  — Andy McCabe (16:28)

Lawyers as Last Defense and Loss of Credibility (16:55–18:52)

• Smith repurposes the “kill all the lawyers” quote: removing lawyers is “a step toward totalitarian government.”
• Grand juries increasingly resist DOJ indictments due to lost trust:

  “Trust that has been won and earned over generations has been lost in weeks.” (Andy McCabe, 18:24)

Solutions: Civic Courage and Public Service (19:43–23:47)

• Smith’s “aspirational” remedy: Prioritize public service, stand up for principles—even when personally inconvenient.

  “It’s not normal to run towards a fire, but we choose to do so... to help others.”
  — Jack Smith (as paraphrased by Andy McCabe, 20:26)

• Quotes General McChrystal: “Character is two parts. One is having a code to live by and the other is the courage to stick with it.” (21:56)
• Defends Merrick Garland’s integrity and non-interference.

On Supreme Court and Obedience to Law (24:18–26:49)

• Smith won’t criticize the Supreme Court openly, though “disappointed” in the immunity decision, siding with Justice Sotomayor’s dissent (25:16, 25:31).
• Stresses: “Our obligation, especially as an officer of the court, as a lawyer, is to obey under those circumstances.” (26:02)

Personal Anecdote (27:18)

• Alison Gill recounts seeing Jack Smith in person—“Jack Smith said ‘what’s up’ but without words” (27:27).

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2. DOJ Weaponization & Attacks on Career Prosecutors (30:03–36:32)

Firing of U.S. Attorneys for Refusing Politically Motivated Cases (30:15–36:32)

• Major reporting by ABC and NYT: Trump administration pressured Eric Siebert, U.S. Attorney for Eastern District of Virginia, to prosecute political enemies Letitia James and Jim Comey (31:11).
• Siebert resisted due to lack of evidence; now faces termination.
• DOJ leadership (Bondi, Blanche) questioned legality of prosecution, but “political loyalty” pressures persist.
• Quote: “Like get somebody who will go forward to a grand jury and lose, I guess, is the thing.” — Alison Gill (31:55)
• Notable that Siebert was widely respected by both Republicans and career officials, underlining the political nature of the move.

Related: Maureen Comey’s Lawsuit (36:32–38:21)

• Jim Comey’s daughter sues over firing, arguing retaliation for her father’s political role. Likely to test presidential firing powers in courts.

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3. Grand Juries & Courts as Guardrails (38:47–48:59)

Failed DOJ Cases and Jury Pushback (38:47–46:12)

• Noteworthy acquittal: LA protester Brian Ramos Brito found not guilty of assaulting a Border Patrol agent; video evidence contradicted prosecution (39:01–41:54).
• Prosecutors persisted despite evidence, with public defenders effectively exposing agent misconduct and discrepancies in DHS reports.

  “How did they get a prosecutor to take this thing?”
  — Andy McCabe (43:16)

• Emphasizes rare nature of federal misdemeanor trials—usually pled down from felonies, not brought standalone (45:30–46:12).

Other Examples of Judicial Resistance (46:56–48:59)

• DC: DOJ forced to dismiss or downgrade charges after grand juries and trial juries refuse to indict or acquit in politically tinged cases.
• Ongoing pattern where “guardrails” like grand juries, honest prosecutors, and jury trials push back on DOJ overreach.

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4. DOJ Data Suppression & Shifting Narrative on Domestic Terrorism (48:58–57:58)

DOJ Deletes Study on Right-Wing Violence (48:59–54:10)

• DOJ removed an NIJ study showing far-right extremists responsible for far more fatal attacks than left-wing or Islamist actors since 1990 (50:03–52:41).
• The deletion coincided with escalations—Days after Charlie Kirk’s shooting and new administration efforts to recast left-wing groups as primary domestic threats.

  “Those guardrails against rogue prosecutions, they are real.”
  — Alison Gill (46:57)

• DOJ signals prosecutorial action against Trump protesters as part of a “broader network.”

No Legal Authority for Domestic Terror Designation (54:10–57:58)

• Andy McCabe: “There is not a legal mechanism” for designating domestic groups as terror organizations (54:10).
• Domestic groups are protected by constitutional rights; can only be prosecuted for criminal acts, not association (discusses lack of authority vs. foreign terror group statutes).

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5. Listener Q&A: Article II Firings & Executive Overreach (58:55–66:48)

• A listener (former FBI agent) asks about Article II references in DOJ termination letters.
• McCabe explains: The administration invokes Article II to justify firing anyone in the executive branch (63:12).

  “Because of the awesome authority, the unfettered, unlimitable unreviewable authority that the President gets under Article II... you’re fired”
  — Andy McCabe (62:39)

• Trump claims Congress cannot limit his personnel decisions, a core tenet of the “unitary executive” approach.
• Discussion on why certain statutory restrictions have been ignored or sidestepped under this legal theory.

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Notable Quotes & Memorable Moments

• “The presumption of regularity is gone...”
  — Alison Gill (04:55)
• “The ethic of the professional prosecutor is to do the right thing the right way for the right reasons.”
  — Paraphrased from Jack Smith by Andy McCabe (11:17)
• “All of the pistons of the guardrails of democracy have to be firing all at once. And... the greatest check on executive power is the people.”
  — Alison Gill (13:44)
• “Trust that has been won and earned over generations has been lost in weeks.”
  — Quoting unnamed federal judge (Andy McCabe, 18:24)
• “Our obligation, especially as an officer of the court, as a lawyer, is to obey under those circumstances.”
  — Andy McCabe (26:02)
• “If it were Trump or Bill Barr in charge... you’re gonna want that ability to appeal and delay and fight back and... go through the due process.” — Alison Gill (10:18)
• “There is not a legal mechanism to declare a domestic group as a terror organization. Otherwise we would have the 3 Percenters and the Proud Boys and the Oath Keepers...”
  — Andy McCabe (52:44)

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Key Timestamps

• 01:11 – Andy McCabe introduces Jack Smith’s speech
• 04:55 – Smith’s warning: rule of law under attack, DOJ court credibility issues
• 11:05 – Smith on prosecutorial ethics, tuning out political noise
• 14:10 – Specific instances of DOJ norms being broken for politics
• 16:55 – On lawyers, grand juries, and loss of trust (“trust lost in weeks”)
• 19:43 – Smith’s solutions: public service, courage, civic engagement
• 24:18 – Smith’s comments on Supreme Court immunity decision
• 30:15 – Breakdown of DOJ efforts to fire US attorney Siebert for not charging political enemies
• 36:32 – Maureen Comey’s wrongful termination suit
• 38:47 – Pattern of grand juries/juries resisting dubious DOJ prosecutions
• 48:59 – DOJ deletes data on far-right violence, weaponizes protest prosecution
• 52:44 – Legal limits of designating domestic terror groups
• 58:55 – Listener Q&A: Article II firings, executive overreach

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Closing Thoughts

Gill and McCabe’s episode is a stark chronicle of “guardrails” under assault. Through Jack Smith’s words and real-time examples—the firing of career prosecutors, refused indictments, jury acquittals, and the suppression of inconvenient data—the episode underscores how fair process, independent prosecutors, rigorous courts, and an engaged public are essential for a functioning democracy, especially under unprecedented executive overreach.

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For those who missed the episode, this summary provides a comprehensive account of the key themes, insights, quotes, and context—capturing both the alarm and the unwavering faith in the resilience of democratic guardrails.

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Transcript

[Alison Gill]

MSW Media.

[Andy McCabe]

Former special counsel in the Trump investigations, Jack Smith, speaks at length about the weaponization of the Department of Justice at an event at George Mason University.

[Alison Gill]

Trump administration officials pushed to fire the U.S. attorney in the Eastern District of Virginia over his refusal to indict New York Attorney General Tish James and former FBI Director Jim Comey.

[Andy McCabe]

A trial jury finds a Los Angeles protester not guilty of assaulting a Border Patrol agent. And another assault case is dismissed in the District of Columbia.

[Alison Gill]

And the Department of Justice quietly deletes a study on the politics of domestic violence amid calls from Todd Blanch to investigate Trump protesters. This is unjustified. Hey, everybody. Welcome to episode 35 of unjustified. I feel like it's episode 9 million of unjustified money. That's just life, I think, but it's just episode 35. It's Sunday, September 21st, 2025. I'm Alison Gill. Hello.

[Andy McCabe]

Hello. Allison Gill. I'm Andy McCabe. And this week, Allison, as I mentioned to you off the pod, I had a really unique opportunity to go and hear a guy speak who you've heard of before and who I think you might be a little interested to hear what he had to say. A young buck named J. Jack Smith, who probably is familiar to our listeners as well.

[Alison Gill]

Jack Smith. Jack Smith. Where have I heard the name Jack Smith?

[Andy McCabe]

Does that ring a bell?

[Alison Gill]

Rings a bunch of bells, Jack.

[Andy McCabe]

Jack. Okay. Yeah. So full disclosure. As you know, I teach at George Mason University in the Schar School, the Graduate School of Government and Policy. And so I, I typically go to a lot of their events. You and I had an event there a little while ago. We had did an issue, an episode of the pod from George Mason. And so Mason has every year this speaker series called the Roger Wilkins Speaking Series. Roger Wilkins was a, was an attorney, career DOJ attorney, and, and someone who worked assiduously on the civil rights movement and the Voting Rights act and the Civil Rights act. And in any case, the administration, he's no longer with us, but the administration has this speaking event once a year in his, to honor his memory. And so this year's speaker was Jack Smith. And of course, when I found out, I was like, oh, my gosh, I have to, I have to go and see this. So it was in the large auditorium on the Mason Fairfax campus, and Jack stood up and spoke for about 45 minutes.

[Alison Gill]

Huh.

[Andy McCabe]

Really interesting. He is the guy that you've seen, that we've all seen in those pictures from the Hague and in his very brief press conference the one press conference he gave after the indictment, one of the indictments in, in his investigations of now President Trump and, you know, a guy who, if it's possible to say something in two words, he'll try to do it in one. Right. Like a very, very serious kind of, maybe I would even say dower sort of guys. Very. He's almost intimidating. He's, like, very direct. And there he was on stage, started his speech. And, you know, immediately it gave me the sense of, like, this is someone who doesn't speak in public very often. That's not to say that he can't. He's. He's very good at it because he's clearly very used to speaking to a jury. And I noticed that even some of his mannerisms and his, like, the way he would hold his hands, the way he would change the tenor of his voice and the volume with which he was speaking was like all the kind of things that you see good prosecutors do to capture the attention of a jury. And that's really, that's really kind of how he went about it. He started out by talking a bit about his own career and about how his career has been all about the rule of law. And then he went right into saying that he believes the rule of law is under attack. Under attack in a way that it has never been ever before, certainly not in our lifetimes. He went on to say that, you know, he's saddened by the knowledge and the, and the sight of selfless public servants being fired for doing their jobs bothers him that the government is using its vast powers to target citizens for exercising their constitutional rights, that civil rights and civil liberties are under attack. And also that the loss of credibility with the courts currently being suffered by the Department of Justice is really serious.

[Alison Gill]

I was going to ask you about that because you and I have talked at length on this particular podcast since Donald Trump took office and since Pam Bondi and since Ed Martin, the wackadagpa, and Jeanine Pirro and whoever the Alina Haba that. And, and just generally all around the country noticing that the presumption of regularity is gone, that the candor that the courts, that the DOJ enjoyed with the courts and judges, it has disappeared. So I was going to ask you if he brought that up because I know you and I cover it pretty extensively and, you know, with examples, and we'll have more examples of that later in the show as well.

[Andy McCabe]

Yeah, it's been a consistent theme of ours on this show, and we've been, I Mean, I don't think there's been a, an episode in the last five or six weeks that we haven't talked about grand juries dismissing cases and not returning indictments and things like that. Yeah, he's like seriously concerned about was something that he came back to a few times in his remarks. He kind of wrapped up this like introductory phase of his speech by saying that he knows public servants because he lived that life and that the idea that these people are secret partisans is a lie. He said it's a bold faced lie told by people who do not know what public service looks like. The vilification of these people for political ends angers him because he says he knows the cost for our country and that the rule of law depends upon these people to function. So that was kind of the setup. And he launched into first talking about the rule of law. And for him, he believes that essentially it means treating people equally under the law and that for the rule of law to exist and for equality to exist, that laws must be applied equally and be enforced equally against everyone. He went into this kind of description of what he thinks a society looks like that does not have the rule of law. He said critics and perceived enemies are targeted in an effort to silence them. Prosecutors are left to figure out a basis of charges after the fact. Friends do not have to follow the laws that the rest of us must obey, meaning like friends of the government or friends of the President. And he said friends and allies of the president will not be prosecuted no matter what they do. So, like, that's what we look like now, like right now. That's what we are, that we are gravitating to. He pointed out that the rule of law is about a fair process. It's not about outcomes.

[Alison Gill]

That's interesting because most people feel like the rule of law needs to be about outcomes because I think failure to hold certain people accountable can lead to more, you know, frustration, lawlessness.

[Andy McCabe]

Yeah, yeah, we all want, we all have an eye. If those of us who follow these things and are informed about what's happening, you know, it's impossible not to have a preference. As an, as an observer, you see what happens and you think like, I hope this person gets held accountable or I hope this person who I think was prosecuted unfairly isn't, you know, thrown in jail for it.

[Alison Gill]

But that's why I always talked about like, you know, when people say that they don't care, wake me up when there's, when he goes to jail, etc. And I always said, you Know, I want it. I asked people, what is your definition of justice in particular, like for the January 6th case, for instance? Because my idea of justice was that, first of all, he got into the system of justice, meaning I was waiting for the indictments, because the indictments tell you everything that went down. Right. And to me, that was a bigger deal than maybe getting a conviction later on down the road, at least politically speaking. Right. But he doesn't work in the political world.

[Andy McCabe]

No, absolutely. Absolutely. He's very clear that. And I think this, if you look at the work that he did as, as we did and all of our loyal listeners followed, that was his thing. And there, you know, there were, I heard plenty of people that I know and respect complaining. You know, why did he bring that documents case in Florida? Or, you know, why is he giving them all these opportunity, all these bites at the apple on these motions and appeals and everything else? And this to Jack Smith, you understand, is that's part of the fair process. And, you know, for instance, you get a lot of questions at the end. They took some questions from the audience and people were questioning, like, what's wrong with the system that it takes so long to get a case through. Right. Why do these defendants have so many appeal motions and so many appeals, and they're just gaming systems and running out the clock, which is. Was a classic Trump strategy. And he wouldn't condemn that. He said that's how the system maintains fairness. Like defendants have rights and they get to enforce those rights. And when they feel like that enforcement has not been conducted lawfully, then they can appeal. You can't. And that all takes a long time. Right.

[Alison Gill]

And that's the very system that we're seeing work in our favor now that Trump is trying to send rogue prosecutors that he feared for himself in his immunity arguments.

[Andy McCabe]

Right.

[Alison Gill]

And so that long, arduous process with all of the guardrails in place. Why? Why? Justice Sotomayor said we don't need anyone to have immunity because we have this process that's very slow and cumbersome and makes sure that we, you know, that we do the best we can not to put innocent people behind bars. And yes, we do make mistakes, but it's a system that really does its best to. To prevent that from happening. But that super slow process, when the shoe is on the other foot, which you and I talked about a lot, if it were Trump or Bill Barr in charge, and now as it's Pam Bondi or Jeanine Pirro from Fox News in charge, you're gonna Want that ability to appeal and delay and fight back and, you know, and face your accusers and go through the due process.

[Andy McCabe]

If the next defendant is Letitia James or James Comey or John Brennan or, you know, name the political enemy of the week. Yeah, we're all going to sit here on the edge of our seats waiting to see how well their lawyers fight back. And it's the same. They get the same rights, they get the same opportunities. So he then talked specifically about prosecution and the role of prosecutors. And one of the themes he kept coming back to is he said the ethic of the professional prosecutor is to do the right thing the right way for the right reasons. Talked about following the facts and the law despite criticism, and how to really kind of tune out what he referred to as the noise. And the noise being the critics, the awful TV commentators, which I took personally. Sorry. But also the people who praise you. You know, he said any. You know, you realize in these high profile cases, anything you do, some people are going to hate you for it and others are going to love you for it. And you have to ignore all of that. You can't. You know, even people who praise you are happy with it. You did, because they have a vested interest in that outcome. And as a prosecutor, you know, you should not be. You should not share that interest.

[Alison Gill]

Yeah. And I had to say many times, many times during the Mueller She Wrote podcast that Mueller is a prosecutor. He's not a hero.

[Andy McCabe]

Right.

[Alison Gill]

And he's gonna do what prosecutors do, not what heroes do. Right.

[Andy McCabe]

Yeah.

[Alison Gill]

Like, unless your hero is to follow the facts and the law to the letter of the law, no matter what anyone says.

[Andy McCabe]

That's right.

[Alison Gill]

If that's your kind of hero, then.

[Andy McCabe]

Okay, you're in the right place.

[Alison Gill]

Yeah. But, yeah, I think that that's very interesting to be like, yeah, I got a lot of critics, but also people who think that people like Garland and Mueller and Jack Smith are like messiahs and they're the magic, they're the silver democracy. Right. Because as Rachel Maddow pointed out, rightfully on, I think it was Chris Hayes's show when she was on his, like, appearing on someone else's show or maybe Nicole Wallace. Like, there is no silver bullet. All of the pistons of the guardrails of democracy have to be firing all at once. And as you know, many people have observed, the greatest check on executive power is the people.

[Andy McCabe]

That's right.

[Alison Gill]

And so, yes, great, the law and justice and the courts are one, but journalism and media and having.

[Andy McCabe]

Exercising your First Amendment Rights for the.

[Alison Gill]

State is an important guardrail due process. But, yeah, the most important and most powerful check is the people. So I think it's great that he talked about that, not just on the one side for his critics, but the people who held him up as the only person who could save us from what we're facing right now.

[Andy McCabe]

Right. And in talking about that prosecutorial function, this is when he really started to zero in on the current administration. So he said, what is different today is that these traditions, these norms have been abandoned. The current leadership of the Department of Justice has abandoned these traditions and norms whenever they come into conflict with outcomes they are dead set on achieving for the President. Rather than being driven by a fair process and integrity, they were hired and are thus driven to get outcomes, no matter the cost to the credibility of the institution they represent, no matter whether those outcomes are legal or just. And that is a very. He's not. Not using anybody's name, but that is a very direct reference. And then he goes on to give a bunch of examples of what he thinks are, you know, exemplify this preference for outcomes, political outcomes over justice. First one was the Eric Adams case. He said, dismissing a criminal case against the mayor of New York in exchange for his cooperation with the President's political agenda and then forcing the resignations of prosecutors who would not go along. Said, I've been doing this for 30 years and I've never heard of such a thing. Targeting law firms because of their clients or because they used to employ someone the President doesn't like.

[Alison Gill]

Robert Mueller.

[Andy McCabe]

Yeah. Yeah, exactly.

[Alison Gill]

Robert Mueller's best friend's brother's cousin's girlfriend knows this guy who heard from this girl who worked at Kirkland Ellis. Yeah.

[Andy McCabe]

Robert Mueller's doordash guy also goes to this firm and therefore.

[Alison Gill]

Right.

[Andy McCabe]

Yeah. Refusing to open an investigation when senior members of the administration broadcast what was clearly classified information over a commercially available app.

[Alison Gill]

Oh, signal gate.

[Andy McCabe]

Yeah. He said, no DOJ under any administration, Republican or Democrat, would have refused on these facts to open a criminal investigation when the lives of our servicemen were put at risk. Hear, hear. Yes. I was like, wanted to jump up and start clapping, but thought that might raise too much contention.

[Alison Gill]

He just jump up and woo, woo, pump fist. Everyone's like, is that Andy McKay?

[Andy McCabe]

I get enough of that already. And then finally he said, deporting people from the US Despite a clear court order, not to leaders of the doj allegedly telling prosecutors to ignore court orders if they come into conflict with the President's agenda. I mean, this is he's tracking the very cases and issues that we've been talking about on this pod. So.

[Alison Gill]

Yeah, every single one of them.

[Andy McCabe]

Yeah. So. So then he goes into this next part talking about lawyers and the function of lawyers. And, you know, he starts by talking about the infamous Shakespeare quote. You know, first thing we do is kill all the lawyers. And he kind of flips it around and points out the John Paul Stevens justice. John Paul Stevens quote from 1985, where he said, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.

[Alison Gill]

Like.

[Andy McCabe]

Yeah, our recourse is in the courts. It's legally.

[Alison Gill]

Yeah. Anytime you chip away any little bit of a criminal defendant's due process, whether it's their legal representation, their ability to file pretrial motions, their ability to, you know, have their case heard before a jury, anything you try to strip away from that is an attack on the rule of law and it comes from a totalitarian form of government.

[Andy McCabe]

So that's right. And then he kind of wraps up this section by talking about what we've discussed. Many times, grand juries reject charges and refuse to indict people because they don't trust the government anymore. Government credibility is earned every day by telling the truth. Even when it's bad for your case or you've done something wrong or you forgot to turn something over and discovery, you still walk in and tell the truth. He said example there, you know, he's citing that there were so many examples of cases where judges tell the government that they no longer trust them. And then he quotes the infamous trust that has been won and earned over generations has been lost in weeks. And I don't remember exactly what case that was, but I know we talked about that quote directly.

[Alison Gill]

Yeah, it could have been Judge Sinis. It could have been. I mean, there are have been so Judge Bates. There have been so many judges appointed by Republican and Democrat, Democratic presidents alike that have said that that, or at least, you know, sort of conveyed that exact sentiment.

[Andy McCabe]

And how crazy is that, that this on the record observation of a federal judge, which in any other time would have been so scandalous, it would have been a top of the front page issue. We can't even remember which case it came from because there's so many cases where judges are, you know, experiencing that same frustration.

[Alison Gill]

Yeah, it's like, hey, tell me about that one indictment from Trump or against Donald Trump. Oh, well, which one of the hundred or so charges would you like me to address?

[Andy McCabe]

Yeah, exactly. Exactly.

[Alison Gill]

Somebody will text me something like, oh, so and so said something stupid. And I'll be like, you're going to have to be more specific.

[Andy McCabe]

Yeah, for sure.

[Alison Gill]

A judge doesn't trust the Department of Justice. You're going to need to give me more specifics on that.

[Andy McCabe]

Yeah, for sure.

[Alison Gill]

So do you have any ideas about what we can do? What we can do?

[Andy McCabe]

I mean, a little bit. A little bit. He was, you know, he kind of wrapped up by talking about what he referred, what he characterized as solutions. And it's really very aspirational. There's no, like, you know, playbook here.

[Alison Gill]

But, like, move to Ireland.

[Andy McCabe]

Yeah. So he started by talking about, like. So I talk about his. From his personal life. Like, he grew up in upstate New York. He was, like, kind of a jock in high school, wasn't a really serious student. He ended up going to State University, University of New York at Oneonta, on, I think, a baseball scholarship. Some. Some connection of baseball got him in there. But he was also, like a football player in high school. And so he started talking about the fact that most of his friends, where he grew up, he's the first person from his family to go to college. And he said most of the people that he grew up with, a lot of them became policemen and firefighters. And he started talking about this idea that, like, his friends who are policemen and firefighters, they run toward danger when everyone else runs away. And he said, you know, you tend to think that that's, like, in your DNA, like, some people are just built that way and most of us are not. He said. But it's not true. He said. It's learnable. He said that people who are in those lines of work, they are trained that way and they develop that instinct over time. And ultimately, it's a choice we choose. It's not normal to run towards a fire, but we choose to do so when we acknowledge and accept the responsibility that has been placed upon us to help others. And so that's how he thinks of the solution. It's like, for instance, questions we should ask our leaders is not whether you're going to make decisions like a Democrat or to make decisions like a Republican. We should be asking them, will you stand up for what you believe in? Will you run towards the fire even when it's going to hurt your career and maybe your political future? And I think that's a really insightful way to think about it. Like, we have to start prioritizing public service and the good of us all over any of the kind of individual like, well, I'm going to vote for this guy because I think it'd be good for my 401k. Voting for who's better for democracy is really more important than voting for the guy who's going to lower the price of eggs. So, yeah, he had a couple of interesting quotes. He talked about General McChrystal who said, Character is two parts. One is having a code to live by and the other is the courage to stick with it. Talked about avoiding becoming cynical in these times, which is very hard. But, you know, making the decision to tell the truth, to speak up, to embrace the opportunity to stand up for what you believe in. Value facts, he said, which I thought was interesting. Stand up to powerful people and stand up for vulnerable people wherever and whenever you can. So really, really inspiring words. Kind of what you would expect. Like, this guy delivers. He is the guy you think he is. He is that true blue, dedicated to the things that he spent his whole life working on. There's no real mystery here, but it's very, you know, it was comforting and reaffirming, I should say. More than comforting to listen to. He's also a staunch defender of the department. Some people asked questions about Merrick Garland and, like, whether he thinks that, you know, Merrick Garland's DOJ kind of waited too long to get the case going and then that's why they ran out of time. And he was very clear about. He has nothing but positive feelings for Merrick Garland. He said Merrick Garland not one time ever, for any reason whatsoever, interfered with what he was doing, gave him complete and total independence. He never had to check with him. He never ran any whatever strategy or arrests or indictments, never tried to curtail.

[Alison Gill]

The scope of the investigation, like, I don't know, in some previous investigations we might know about.

[Andy McCabe]

Yeah, no, nothing. He said Merrick Garland was, you know, he said he didn't have. It. Didn't have an unkind word to say about the guy.

[Alison Gill]

Did he say anything about why he wasn't appointed until much later? I mean, not much later, but, you know, almost two years after January 6th. But a year and a half, maybe, I think is more between a year and a half and two years after. What was it, November 2022?

[Andy McCabe]

Yep. You know, he did not talk about the specifics of the timing of his appointment. I would suspect that if you asked him that directly, he would probably say I wasn't there then. And, you know, it wasn't my decision when to appoint me. So I can't really say why they did it one way or the other. But when they did appoint me, I dropped what I was doing and came over and did it, you know, so he's that kind of like, very exact, you know, in his answers to questions thing. He also. He dodged. I don't want to say dodged. He pointedly did not criticize the Supreme Court. He spent a lot of time talking, in his main remarks about the importance of obeying court orders and how if, when we stop respecting and obeying judicial orders, then he said that is the beginning of the end. That's the beginning of the end.

[Alison Gill]

So as much as the immunity decision is stupid and wrong, I'm not going to criticize it, because if I don't obey court orders or. Or have reverence for them, then who will?

[Andy McCabe]

I guess that was the one that he made kind of a joke about saying, like, he was. Well, he said he was disappointed by the immunity decision and he thought that Justice Sotomayor's response was better. I mean, okay, I feel this.

[Alison Gill]

He did put a little neck out.

[Andy McCabe]

There, you know, like, I think he disagree. My guess would be he disagrees with it. On the law.

[Alison Gill]

Well, yeah, we read what he wrote about immunity in his own words, based on law and based on history and based on what the founders wanted and based on the Constitution. We know how he feels about immunity. He wouldn't have argued against it, of course, if he didn't think that. If he thought that the president should be immune from something.

[Andy McCabe]

If he thought that, he wouldn't have brought the indictment.

[Alison Gill]

Right.

[Andy McCabe]

So it's pretty clear you don't really have to guess what he's thinking. He's very, very direct, but huge respect for. And he believes it's absolutely essential for the survival of democracy and the rule of law for people to. Even when you don't like what they said, even when you think that the decision was legally off base, even when you think it'll have a bad effect on the country. Our obligation, especially as an officer of the court, as a lawyer, is to obey under those circumstances.

[Alison Gill]

Can't. Well, he has to follow the law. He has to follow what the courts do. Now, you and I can say we think a decision is wrong, but we're not in a position to follow it or not follow it because we're not indicting or prosecuting anything or, you know.

[Andy McCabe]

I think, yeah, look, it is a democracy and we do have a First Amendment right. And I think we, you know, we should have these spirited discussions about how we feel about different policies, different actions, and the Court's decisions fall into that. There's nothing wrong. I mean, you go to law school and you spend three years arguing back and forth whether any given decision is good or bad or why it's good or bad. And that's an important part of the process, too. But at the end of the day, it's the law and we have to follow it.

[Alison Gill]

Yeah, well, that's really, really fascinating. I remember when I saw him, made eye contact with him in Judge Chutkan's courtroom. When we got a trial date for January 6th, she set it for March of 2024. And he was surrounded by, like, five security guards. And he's just sort of sitting there leaning on one of the little, you know, dividers between where the bench is and the gallery is. He's just sort of got his arms crossed and he's looking around, and I see him and he sees me, and then he just gives me that little sup, kind of head nod. And I was like, hey. And then I was like, oh, my God. Jack Smith said, what's up? But without words. And then, you know, then we sat down and had the. We came back and Judge Chuck and gave her ruling on when the trial date was going to be. But that's the only time I've ever seen him in person. Everything else has been very brief clips on TV or during a press conference, like when he announced the indictment. And that was. Sure. Everyone was like, no, tell us more. You and I are like, well, let's read the indictment.

[Andy McCabe]

That story, the whole story you're gonna get from him. Yeah, yeah, yeah, for real.

[Alison Gill]

Did you ask him if he's got a volume 2 tucked away somewhere at his house that we could get a copy of? Maybe.

[Andy McCabe]

Send me that. Yo. Send me that second report, Yo.

[Alison Gill]

Come on. I won't share it.

[Andy McCabe]

No, I did not say that.

[Alison Gill]

You got volume two at home somewhere.

[Andy McCabe]

I think he's got volume two right up here. Right up in the crane.

[Alison Gill]

Yes. In his head for sure.

[Andy McCabe]

Yeah. Anyway. But it was a great opportunity. He doesn't speak much. I'm not even aware of any other speaking he's been doing. Um, so I was sure as heck wasn't going to miss it. And I. You know, these are his public remarks. I don't. I don't think there's anything wrong with kind of giving everyone the spirit of what he said. But, yeah, that was it. It was cool. I was glad to be able to do it.

[Alison Gill]

Well, thanks so much for sharing that experience. And we're going to talk a lot about everything that we're going to talk about in the rest of the episode touches on these things that he's, that he's talking about the loss of presumption, irregularity, the courts no longer trusting the Department of Justice, federal grand juries and all these due guardrails that are in place to prevent rogue prosecutions. We're going to touch on that. And and some more malfeasance at the Department of Justice with trying to fire prosecutors for not bringing charges against political enemies, which I'm sure Jack Smith is very much, very much against. And we're going to talk about that. But we do have to take a quick break, so everybody stick around. We'll be right back.

[Andy McCabe]

Foreign.

[Alison Gill]

Everybody, welcome back. Let's talk about a story that Katherine F. At abc. She's an incredible reporter over at abc and I'm really mad at ABC right now, but she is a really good journalist.

[Andy McCabe]

Same oof.

[Alison Gill]

She broke the story this week. And the New York Times expanded on this story regarding the exact weaponization Jack Smith talked about at George Mason. This comes from this is the New York Times from Thrush, Haberman, Bromwich, Foyer and Rashbomb. That is a huge byline right there. Sounds like a law firm, right? Exactly. And they say a high stakes debate raged inside the Trump administration on Friday over the fate of the veteran U.S. attorney investigating New York's, New York's Attorney General Letitia James and the former FBI Director Jim Comey. And that's according to two people briefed. Administration officials informed Eric Siebert, that's the US Attorney for the Eastern District of Virginia, Edva, that he would most likely be fired. But there appeared to be a last ditch effort by some in the Justice Department to protect Siebert from being fired and the situation remained in flux.

[Andy McCabe]

Mr. Siebert has recently told senior Justice Department officials that investigators found insufficient evidence to bring charges against Ms. James and has also raised concerns about a potential case against Mr. Comey, according to officials. Several administration officials, speaking on a condition of anonymity because they were not authorized to discuss personnel matters, described the situation as fluid, unsettling and confusing. Mr. Siebert, that kind of sums up.

[Alison Gill]

The whole administration, doesn't it?

[Andy McCabe]

Yeah, you could have added a complete effing mess. But maybe not. Mr. Siebert and his top deputy were still at their desks working and no one had been officially ordered to leave as of midday Friday.

[Alison Gill]

Now, Attorney General Pam Bondi and Todd Blanche, the deputy attorney general, that's the DAG who runs the day to Day operations at the Department of Justice have privately defended Siebert against officials including William Pulte. That's the director of the Federal Housing Finance Agency, the guy going around accusing all of the Democrats of mortgage fraud, including Schiff, Tish James, Lisa Cook. So these officials, these Trump officials, have urged that Siebert be fired and replaced with a prosecutor who would push the cases forward. Like get somebody who will go forward to a grand jury and lose, I guess, is the is the thing. That's according to a senior law enforcement official. And Todd Blanche also questioned the legal viability of bringing charges against Tish James. And that's according to current and former department officials who spoke anonymously. Now, Siebert's office also recently hit a roadblock in its investigation of Mr. Comey on claims that he lied under oath. Roadblock is a doing a lot of work there.

[Andy McCabe]

Yes, it is. Last week, prosecutors from Mr. Siebert's office subpoenaed Daniel C. Richmond, a Columbia law professor and close friend and advisor to Mr. Comey, in connection with an investigation into whether the former director had lied about whether he authorized Mr. Richmond to to leak information to the news media, according to people familiar with the situation. Documents released by the FBI in August showed that investigators had examined possible disclosures of classified information to the New York Times. Mr. Richmond's statements to prosecutors were not helpful in their efforts to build a case against Mr. Comey, according to two people familiar with the matter.

[Alison Gill]

That's a funny way to say reality tanked the idea that they could, that they could bring charges to push the push to remove Siebert, who was a highly regarded career prosecutor who worked closely with Emil Bovey, that's Trump's former enforcer in the department on immigration and gang cases, came as a shock in an office that handles some of the nation's most sensitive national security investigations. His possible termination was reported earlier by, as I said, Katherine Falders at ABC News. Mr. Siebert is well liked by many Trump administration officials and key congressional leaders, including Chuck Grassley of Iowa. He's the Republican chairman of the Senate Judiciary Committee. So this is a career prosecutor guy who's well liked by Republicans and people in the Trump administration.

[Andy McCabe]

A former Washington, D.C. police officer, Mr. Siebert has worked his way up through the ranks at the office over the past 15 years. He's handled a broad range of cases, including international drug and firearms trafficking, white collar crime, child sex, sexual exploitation, public corruption, and immigration. So George Mason playing a very prominent role in this episode, I happened to be at another event at George Mason on Friday where Senator Mark Warner was speaking publicly about a bunch of different things, threats to the intelligence community, all kinds of interesting comments he made. But he did actually refer to this situation, to this reporting about the Eastern District and Mr. Siebert. And he related to the group that he and the other senator from Virginia, Tim Kaine, actually got together. You know, the senators kind of, kind of proposed the candidates for the U.S. attorney roles in their state. And he said that he and Tim Kaine like, very specifically picked candidates that they thought were, of course, good and fair and honest prosecutors, but also people that they thought the other side, the Republicans would support. And the fact that both of these guys, now, one of the guy from the Western District of Virginia who we talked about a few weeks ago, resigned out of nowhere in protest. And he wouldn't get into details on that. I got the sense that he knew much more about that. And now, of course, you have this suspicion floating around. Mr. Siebert. So, yeah, it's really remarkable that these two people who are specifically chosen and proposed by their senators, because they were assessed to be particularly down the middle, not political and would be attractive also to Republican senators to vote for them. And of course, they were both confirmed. Yeah, gone, basically. I mean, Seaford's still there, but we'll see what happens.

[Alison Gill]

Yeah, it's in flux, so we'll keep an eye on that. And in a related story, Andy, Maureen Comey, Jim Comey's daughter who was fired. You know, she's a federal prosecutor who handled criminal cases against Jeffrey Epstein and Ghislaine Maxwell. She's actually contesting her firing in July in a lawsuit that challenges Trump's claim of sweeping presidential power. Now, she contends that there's no plausible explanation that exists other than that she is the daughter of Jim Comey for her perceived political affiliations. There's no other possible reason that she would have been fired. So I'm not sure how this is going to play out in the courts with this particular Supreme Court on appeal. I figure, like Article 2 Powers of the president to fire whoever he wants will probably prevail, but it's going to be an interesting case nonetheless. And she's not. She's a smart person when it comes to the law. So I don't think she would bring a frivolous lawsuit, not like the, not like the Trump lawsuit against the New York Times for $15 billion that was summarily thrown out by a G.W. bush appointed Judge for being just summarily athwart of regular order. I mean, that was a worse from reality. Yeah, that was a pretty damning thing. But I, you know, we'll also be following the Maureen Comey case to see how that goes. But you know, for her wrongful termination. So anyway, we have still more to get to. We're going to talk about more guardrails holding in the, you know, in the courts as we see, you know, for what that's like one of the main, we should have a whole segment now about, you know, cases that aren't being brought by grand juries or acquitted by pettit juries or, you know, that prosecutors won't bring at all like this one against Tish James. It could be a whole segment about.

[Andy McCabe]

That, but it's really taken over the place formerly occupied by Ed Martin.

[Alison Gill]

Yeah.

[Andy McCabe]

Which is fine. It's more interesting than he is anyway.

[Alison Gill]

Yeah, absolutely. And we'll, we'll talk about a couple more cases that had to be dismissed or were thrown out or acquitted. But we'll do that after this break. Stick around. We'll be right back.

[Andy McCabe]

Welcome back. Okay. In addition to the U.S. attorney in the Eastern District of Virginia refusing to indict Jim Crow, Comey or Letitia James, there were more failed cases from the Department of Justice this week. I love that sentence.

[Alison Gill]

Thank you. I wrote that.

[Andy McCabe]

The first from the Guardian, A Los Angeles protester charged with assaulting a Border Patrol agent in June was acquitted on Wednesday after U.S. immigration officials were accused in court of lying about the incident. Yes.

[Alison Gill]

I said so this one got past the federal grand jury. It got past pretrial motions to dismiss. It actually made it to trial and then it was acquitted. The case they were, the guy was acquitted by a trial jury.

[Andy McCabe]

Yes. Because U.S. immigration officials were accused in court of lying about the incident. I mean, holy crap. Okay. Sorry. The not guilty verdict for Brian Ramos Brito is a major setback for the Donald Trump appointed U.S. attorney in Southern California and for Gregory Bovino, a Border Patrol chief who has become a key figure in Trump's immigration crackdown. The 29 year old defendant, who is a US citizen was facing a misdemeanor and was the first protester to go to trial since the demonstrations against immigration raids erupted in LA earlier this summer.

[Alison Gill]

Yeah. And if you've seen Bovino, he's the guy out there in his vest and his flak stuff and his camo and he's got this kind of the short, the high and tight fade that's sort of a salt and pepper and he's Like I'm out here doing justice, you know, like it's. That guy is just ridiculous.

[Andy McCabe]

Yeah.

[Alison Gill]

Border Patrol and prosecutors alleged that Ramos Brito struck an agent during a chaotic protest. Chaotic, I'm putting in quotes. On the 7th of June in South Los Angeles county. City in the city called Paramount, which is outside a complex where the Department of Homeland Security has an office. But footage from a witness, which the Guardian published days after the incident, but they went to trial anyway, showed an agent forcefully shoving Ramos Brito. The footage did not capture the demonstrator assaulting the officer at all. The jury delivered its not guilty verdict after just about an hour of deliberations. The Los Angeles Times reported that. And Bovino testified. That's the brain beefy guy. Trump guy testified earlier in the day and faced a tough cross examination from public defenders. These folks had public defenders.

[Andy McCabe]

Nice.

[Alison Gill]

Bovino was one of four Border Patrol agents who testified as a witness, but was the only one to say he saw the alleged assault by Ramos Brito. According to the LA Times, videos played in court captured the agent shoving him, shoving Ramos Brito, sending him flying backwards and showed the protester marching back toward the agent. Now, the videos did not capture Ramos Britos. Any alleged assault by. By Ramos Brito.

[Andy McCabe]

There were multiple factual discrepancies in DHS's internal reports on the protest, which initially led to charges against five demonstrators. The Guardian reported In July, a criminal complaint suggested Ramos Brito and others had attacked agents in protest of the arrests of two sisters. But records show that the women had been arrested in a separate incident that occurred after Ramos Brito's arrest. A supervisor later documented the correct timeline and apologized for errors. Records showed.

[Alison Gill]

Yeah, why would you bring this case to trial? Now, at trial, Kuhatemek Ortega, who is a federal public defender, which is amazing, sought to cast doubt on Bovino's credibility, questioning him about facing a misconduct investigation several years ago, which resulted in a reprimand for referring to undocumented people as scum, filth and trash. Now, after Bovino responded that his comment was in reference to a specific criminal, illegal alien. Ortega read from the reprimand signed by Bovina, which said he was describing all illegal aliens. Ortego also argued that the agent who Ramos Brito allegedly assaulted lied about the incident and Bovino was, quote, trying to cover up for him.

[Andy McCabe]

In Ramos Brito's trial videos also contradicted initial claims of a Border Patrol agent who had said he was chasing a man who assaulted him but was stopped by Ramos Brito and Jose Mojica. Another protester. The LA Times, said the footage showed no chase. Carly Palmer, an attorney who served as a supervisor in the U.S. attorney's office in LA until she left last year, said on Thursday it was notable that the federal government had devoted significant resources to a misdemeanor case against an individual with no reported criminal history. Bovino, a senior official, flew in from Chicago for the trial. For a misdemeanor trial, for a misdemeanor trial in which they had all these factual and evidentiary problems, like how did they get a prosecutor to take this thing?

[Alison Gill]

It's this guy, right? It's this prosecutor in la. And you know, we rarely see misdemeanor trials, federal misdemeanor trials, because people just settle and pay their fine and go on their way.

[Andy McCabe]

Exactly.

[Alison Gill]

A cop to it, because generally they have done it, but when you haven't done it, you go to trial. And I'm glad they did. And I'm glad this public defender took them to trial on this because it showed all of their errors. And I have to say, Andy, the huge difference, the vast grand canyon of difference between a charging document and a prosecution in the Jack Smith investigation, for example, and what we see here is just so mind blowing that all these facts are wrong. And you know, we always talked about how, you know, prosecutors in a Mueller investigation, Andrew Weissman for example, or Jack Smith crossed every T and dotted every I and would never bring a charge if they didn't have the ability to obtain a conviction and sustain it on appeal.

[Andy McCabe]

Right.

[Alison Gill]

Beyond a reasonable doubt. And so now you've got this with all these lies and problems and stuff that's not in the video that you claim happened, that you have video evidence showing that it didn't happen and they still take it to trial and get with under an hour, a jury says no.

[Andy McCabe]

Yeah, it's remarkable. I mean, let's remember that in the federal system nobody brings a misdemeanor case at all. You end up with a misdemeanor conviction because the feds have brought a felony case against you and maybe the case was a little shaky, not worth going to trouble, whatever, and they agreed to downgrade it to the, to a misdemeanor and you plead guilty to that. It's like typically the result of a plea bargain. So like bringing a misdemeanor case out of the thin air, not connected to a felony is weird to begin with. Going to trial on one is like not heard of often.

[Alison Gill]

Yeah, right. Because there's nowhere to go down from a misdemeanor except Acquittal.

[Andy McCabe]

Exactly. Which is where we ended up.

[Alison Gill]

Right. It's not like you can charge murder one and the, and the jury says we think murder two is more appropriate.

[Andy McCabe]

Right.

[Alison Gill]

Mr. It's like, well, jaywalking. How about just walking like you can't bring it down any, any further than it already is. So this is just hugely embarrassing. And so those guardrails against rogue prosecutions, they are real. We have Comey and Letitia James where the prosecutors won't even take it to a grand jury. Here we have somebody, they got an indictment from a jury or they maybe they couldn't get a felony indictment, but they got their misdemeanor or they downgraded it to a misdemeanor on information because you don't need a grand jury to return a misdemeanor.

[Andy McCabe]

That's right.

[Alison Gill]

So maybe they, they couldn't get a felony from a grand jury and filed information, misdemeanor went to trial and lost with a trial jury. And of course, we still have federal grand juries refusing to indict, causing the Department of Justice to dismiss or maybe down, downgrade charges like perhaps happen in this case. And that third thing happened again this week with a dismissal in the case against Denisha Butler and Terence Wilson. And this is in D.C. the Department of justice moved to dismiss the charges, saying the United States has decided not to proceed with any prosecution of defendant Butler. But we're going to proceed with the prosecution of defendant Wilson in superior court. We're lowering his felony to a misdemeanor. Accordingly, the government moves to dismiss the charges against them, the felony charges against them. This was another case, Andy, a different case, because we already talked about one like this where the officer was not a federal officer, but the DOJ charged felony assault of a federal officer and they tried to say that you assaulted a member of the Metropolitan Police Department. And we're calling that a federal officer because that person was assisting federal officers. But it's not the case because the federal officers were assisting the mpd and so they dropped those charges, bought it down to a misdemeanor. Maybe they'll go to trial on that misdemeanor and lose too. We'll tell you about it if they do.

[Andy McCabe]

Full on. And D.C. not a very, not a place where the juries or the grand juries for that matter, are very receptive to this stuff.

[Alison Gill]

Man, just mind blowing how having, you know, reported on and read and extensively researched previous indictments by a Department of Justice, a competent Department of Justice, and then seeing this, it's just former. Like I haven't yet reached out to my former DOJ friends, my former U.S. attorney friends, to be like, what? What must this feel like to them?

[Andy McCabe]

Yeah.

[Alison Gill]

How embarrassing this is for the department.

[Andy McCabe]

Yeah. For real.

[Alison Gill]

All right, we got one more quick story I think to tell you about and we got listener questions, too. But we're going to take this one last quick break. So stick around. Hang in there. We're almost done. We'll be right back. Hey, everybody, welcome back. All right, just one more story before we get to listener questions. And if you have a question, there's a link in the show Notes you can click on to submit your question. And this story, though, comes from the Guardian. It says the U.S. justice Department has scrubbed a study from its website concluding that far right extremists have killed far more Americans than any other domestic terror group just days after a gunman fatally shot the prominent conservative activist Charlie Kirk. The report, which is now archived, titled what NIJ Research Tells Us About Domestic Terrorism quietly vanished from the Department of justice website between the 11th of September and the 12th of September. And that's according to Jason Palladino, an independent investigative reporter who first wrote the story. Charlie Kirk, as we know, 31 year old Turning Point USA founder and Trump ally was shot while speaking at Utah Valley University on September 10th. So the next day the DOJ went in and took down their study about most of the domestic violence being from right wing extremists.

[Andy McCabe]

Yeah. The vanished study opened with, quote, since 1990, far right extremists have committed far more ideologically motivated homicides than far left or radical Islamic extremists, including 227 events that took more than 520 lives. In the same period, far left extremists committed 42 ideologically motivated attacks that took 78 lives. The National Institute of Justice study, which was based on research spanning three decades, represented one of the most comprehensive government assessments of domestic terrorism patterns. It found that, quote, militant, nationalistic white supremacist violent extremism has increased in the United States and that, quote, the number of far right attacks continues to outpace all other types of terrorism. And domestic violent extremism, they said spanning.

[Alison Gill]

Three decades, but I think 1990 was four decades ago. Sorry, everyone.

[Andy McCabe]

Yeah, sorry.

[Alison Gill]

Is it 1990-2000-2010-2020? No, I guess that's three and a half ago. Three and a half. Okay, There you go. Fair. All right. Whew. That's good. At least it's not 50 years ago, which the 80s is almost basically all Right. Now, where the report once appeared on the DOJ website, the Justice Department wrote it was reviewing its website and materials in accordance with recent executive orders. And that's according to 404 Media, though the page is, it's now completely unavailable. Also, the Justice Department's number two official said Tuesday that people noisily protesting President Trump could face criminal investigations if they're part of a broader network organizing such activities. And this is one of the reasons they took this study down. They're trying to convince everybody that left wing ideological violence is far more prominent. And all of this comes after Donald Trump declared on social media with no legal authority to do so, though that never stops him that Antifa is a domestic terror organization. And Andy, you and I have talked at length ad nauseam about the fact that there's no legal mechanism to declare a domestic group as a terror organization. Otherwise we would have the 3 percenters and the Proud Boys and the Oath.

[Andy McCabe]

Keepers, KKK, and on and on and on and on. You're absolutely right, there's not. And the reason you can do it to foreign groups is because foreign terrorist organizations don't enjoy constitutional protections. But people here in the United States, citizens and non citizens, enjoy the protections of the First Amendment, the Fourth Amendment, all those things. And so because a domestic terrorism group inevitably involves some degree of political speech, that speech is protected. And so the way that we've always investigated domestic terrorist groups is not with national security powers that you can use against international groups, but only as criminal organizations. That's the way it has to be done. There is a domestic terrorism statute in the law, in the criminal law, but it is only a definition. It does not have a penalty associated with it. If you want to convict someone who's a member of the kkk, let's say for, for some terroristic activity they were involved in, you have to convict them of the underlying crime, whether it's homicide or use of a weapon of mass destruction, whatever. Many of us, yeah, I mean, we.

[Alison Gill]

Do have a, we do have in sentencing guidelines a terror enhancement.

[Andy McCabe]

Enhancement, yes.

[Alison Gill]

Was applied to the Oath Keepers, was applied to the Proud Boys. A judge has to accept that terror enhancement. So that can happen if you're domestic. But. Yeah. Sorry, I didn't mean to interrupt you, you know.

[Andy McCabe]

Yeah, no, it's just like it's always been known. There's always, there's been a, a real debate in counterterrorism circles about whether or not we need better laws on the domestic terrorism side. I believe we do. Some people don't it's never going to happen because Congress has been right leaning for several years now. It does not have wanted to attract attention to this issue because they were accepting of the, of the research that's now been pulled, that most of the domestic terror activity that we can, that we have documented is, is on the right. But you can't list domestic groups. It's like fundamentally unconstitutional. So nothing is going to come of this. And if he actually takes any action and justifies it by this federal, you know, executive order, exec, Presidential executive order, if, you know, people who, who, that, who those actions are taken against will be able to challenge it likely successfully in court.

[Alison Gill]

Right. Like because, for example, the Alien Enemies act is specifically about foreign people.

[Andy McCabe]

That's correct.

[Alison Gill]

But there's no law on the books, like you said, that authorizes a president to go after domestic organizations. So when the President says antifa is a terrorist organization, and I'm assuming he's doing this because he can just pick and choose who. Antifa is not a thing. So he can just pick and choose whoever he wants. Andy, you're antifa, I'm antifa.

[Andy McCabe]

Right.

[Alison Gill]

But I can't think of the authority under which he would detain us without due process, for example. No, I'm not saying he won't try to come up with something that will then have to be litigated. But that's, I think, the difference between some emergency powers that he does have when it comes to foreign affairs.

[Andy McCabe]

Yeah.

[Alison Gill]

And, but there's, I don't, I can't think of a statute. And please write in, click on the questions link and correct me if I'm wrong, I can't think of an authority, a statute under which he could detain US Citizens without due process unless he suspends habeas corpus.

[Andy McCabe]

Right, yeah, yeah. And you know, long before you get there, it's helpful to look at how it's different on the IT or international terrorism side. So Congress has specifically passed laws that enable the State Department to designate foreign terrorist groups. And once designated, then the law enables the executive branch, largely through the FBI, to investigate and prosecute people criminally for doing things like supporting that group. So if you send money or material or people or yourself to go overseas to go help one of these groups, then that's. That in and of itself is a crime. There is no similar mechanism on the domestic terrorism side, largely because people think that it would not pass constitutional scrutiny.

[Alison Gill]

Free speech. Yeah. And so I guess that's a little bright spot here because I frankly am worried what he's going to try to do with this. And he always pulls something out of his hat that I don't have the cold dead heart to think of and imagine. But there is not a legal mechanism for that at this point. Not that he wouldn't just declare it in an executive order and it would have to go through the courts. So. But, you know, we're going to keep an eye on it anyway. It's still dangerous that any president ever would, would consider half the country a terrorist organization. Anybody who's given money to, you know, the Trevor Project to support transgender youth could be viewed as viewed as a terrorist in, in the United States by this administration. It's frightening.

[Andy McCabe]

Yeah, yeah, it is. It's. It's. You know, these are the things we have to keep really close watch on because these are the places, these are the corners, the edges where Americans freedom is being curtailed every day. Right. This is where the cutting away, the chipping away at individual rights, at constitutional rights. This is where it's happening in these different spaces and it's only happening more often as this administration grabs more and more and more power, unfettered power for the executive, for the president.

[Alison Gill]

So, Brian, what's the saying? Those that would curtail liberty in the name of freedom deserve neither or something to that effect? I can't remember.

[Andy McCabe]

Something to that effect.

[Alison Gill]

Yes, another Ben Franklin thing. All right, let's get to some listener questions, everybody. Again, there's a link in the show notes if you have questions. Andy, what do we have today?

[Andy McCabe]

All right, so I'm going to do one, one question, but before we get to that, I just wanted to mention we did get a bunch of questions, a couple questions about the situation, and this is a good segue, a situation involving Jimmy Kimmel getting suspended from and his show getting suspended indefinitely. People are asking like, are we going to cover that? I think it's probably likely we will at some point. Right now it hasn't, it hasn't really blossomed into an issue for the Department of Justice, which is basically our focus on this show. But yeah, we're. I am. This is another one of those spaces that I was just talking about. We are seeing just an un. Unheard of series of attacks on the media. And that is, you know, this is having a direct impact on First Amendment rights. So we're going to keep our eye on it. And as soon as we have the right angle to really dive into it in an effective way, I'm sure that we'll do that.

[Alison Gill]

Yeah. Because if I imagine I'M hoping at least that Jimmy Kimmel might bring a lawsuit against Brendan Carr, the fcc, in which case the Department of Justice would then get involved to defend those people then. Absolutely. But I will go ahead and go on the record and say it's absolutely trampling on our constitutional rights. It's huge, huge canary in the coal mine for a loss of civil liberties in this country around the First Amendment. And you know, we can talk super briefly about Pam Bondi saying that hate speech isn't free speech and then having to walk back that comment because it is. And because if she wants to classify what Jimmy Kimmel said as hate speech and therefore saying it's not protected by the First Amendment, she's 100% absolutely incorrect.

[Andy McCabe]

Yeah. And there are even, you know, a lot of conservatives have acknowledged that the Wal Journal, these, all these outlets are like, hold on a second. No, this is not, this is not right. So that's how, that's how we got to her walking it back. But yeah, I mean, I think for, for sure we're, we're as concerned as you all are and, and following it pretty closely. Okay, so now the. Our question for the week. This one comes in from someone who chose not to be identified, which is totally fine, they said. In reading the termination letters to Driscoll and others, I noticed the sentence, quote, pursuant to Article 2 of the United States Constitution and the laws of the United States, your employment with the Federal Bureau of Investigation is hereby terminated. I recall the Attorney General guidelines. Mayog, Mayop and Diag. Wow. This is somebody who really knows their Bureau policy manuals. Good for you, Mayo. Wow. I mean, like, there are current agents who don't know what the Mayop is, but okay, sorry, but how the FBI derives authorities from Article 2 and Personnel or any matters is escaping me. I even looked at my appointment letter, my credentials. Oh, you just gave yourself up. No Article 2 reference. How is Article 2 applicable here? Well, my friend and former colleague who wisely went anonymous with this question. Okay, so that, this is my interpretation of the letter. So you worth what you paid for it. That reference to Article 2 is not a specific reference to any FBI policy or really any US Government policy, because they're using that same reference in other agency termination letters as well. This is simply the administration staking their claim. And it's consistent with their unitary executive theory that the President's authority, which in the Constitution, all the President's authority comes from Article 2. They're saying that because of the awesome authority, the unfettered, unlimitable unreviewable authority that the President gets under Article 2 of the Constitution, you're fired. Therefore, you can't challenge it. His discretion cannot be questioned, it cannot be reviewed. La, la, la, la.

[Alison Gill]

Right. So, and basically he can fire anyone.

[Andy McCabe]

Who works for any reason or no.

[Alison Gill]

Reason, down to the GS5 clerk. But instead of saying like, well, can. I thought only the FBI director could fire somebody from the FBI. Or I thought only blah, blah, blah, because I think there are maybe policies around that. But he's going way above right, saying, nope, Article two, I can fire whoever I want. And that's what he's using to fire National Labor Relations Board members, FTC members, even Federal Reserve Board governors.

[Andy McCabe]

Maureen Comey. Maureen Comey, same line, her letter. So this is them basically saying, we don't have to follow Congress passed laws, right? The Civil Service act that sets up the protections of government employees. And from that law we get the processes and procedures that the FBI and all these other agencies go through to terminate people, which includes your right to fight back and to have a hearing and all that kind of stuff. And what he's saying with that reference is no laws passed by Congress don't apply to the President. And that's what they truly believe. As scary and frightening as that is, that is what they truly believe. So that will, I guarantee you, in the current FBI suits from the folks that we talked about last week, Driscoll and Jensen and et al, I, that these things are going to be challenged in court and we'll, we'll hear how that goes and we'll obviously cover it closely.

[Alison Gill]

Yeah, and, and there's all sorts of laws on the books like that. There's a law that says that if you are, if you committed insurrection, if you, you know, or if you were charged with insurrection. Actually there was one about documents, right. That if you mishandled classified documents, and it wasn't a charge that was brought against Donald Trump, and it was not brought because of this weird thing that if you did this with classified documents, you couldn't run for office again. And no one had ever. This is what Donald Trump wanted to charge Hillary Clinton with for the email server. Right. So that she would bar her from running for office again forever. But everyone was like, that's not going to make a difference, because when it goes up to the Supreme Court, the Supreme Court is going to say that that bit of the law is unconstitutional. You can't bar somebody from running for president because they violated this law. And so there's all kinds of statutes on the books. And what Donald Trump here is saying is, nope, Article two says there can't be a law passed by Congress that stops me from doing this.

[Andy McCabe]

He's violated all kinds of laws. He violated the TikTok ban. He's been waving the TikTok ban for what, eight months now.

[Alison Gill]

And now he's putting an 80% billionaire American board in charge of it from his donors and that the government's going to own part of it.

[Andy McCabe]

And intel the first term, he violated the Magnitsky act act when Khashoggi got murdered and Congress served notice saying, we want to report under the Magnitsky act, you owe us a report on this. They just didn't do it. That's how they roll. They ignore those laws that they don't like.

[Alison Gill]

They haven't hung the January 6th plaque.

[Andy McCabe]

Yeah.

[Alison Gill]

Which was a law passed that was supposed to be hung by Law in 2023. My other co host, Harry Dunn, is suing for that. So, yeah. And we got to go through the whole litigation process all the way up to the Supreme Court. All right, everybody, thank you so much for your questions. This was a bit of a long episode today, so thanks for hanging in with us. We had a lot to cover and I'm sure we're going to continue to have a lot to cover going forward. Andy, thanks so much for that inside look at Jack Smith speaking at George Mason at the Schar School. I think that's so cool.

[Andy McCabe]

Absolutely, yeah.

[Alison Gill]

And listeners, if you have a question, like I said, there's a link in the show notes to send it in to us. Please send in any question you like and we'll go through them and hopefully it'll get on the air. So any final thoughts today?

[Andy McCabe]

No, I think I've covered everything, but yeah, another busy week. Looking forward to taking a little time off this weekend. I recommend everybody do the same thing.

[Alison Gill]

Yeah. Get outside, take a walk, practice some self care.

[Andy McCabe]

For sure. Yeah.

[Alison Gill]

I might go get like a tiny little manicure or something.

[Andy McCabe]

And nice.

[Alison Gill]

Just kind of tune out for about an hour. I can't imagine that's going to be so nice. I'm so excited. All right, anyway, we'll see you guys all next week. Thank you so much for listening. This is Unjustified. I've been Alison Gill.

[Andy McCabe]

And I'm Andy McCabe.

[Alison Gill]

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 podcast dedicated to news, politics and justice. Us for more information please visit mswmedia. Com.