UnJustified – Episode 35: “The Guardrails”
MSW Media | Released: September 21, 2025
Hosts: Alison Gill & Andrew McCabe
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.
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)
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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) - Examples:
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).
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.
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.
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).
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.
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)
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
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.
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.