← UnJustified
UnJustified
Transitive Immunity
00:55:59
On Wednesday, the Justice Department filed a lawsuit against the District of Columbia Bar over its efforts to discipline Trump Administration lawyers. Kash Patel was caught falsifying Bureau statistics to boost his record of arrests in the face of congressional criticism for his alleged drinking habit. New York’s Attorney Grievance Committee found “sufficient basis for a finding of professional misconduct” against disqualified US Attorney John Sarcone III. A Trump appointed judge has accused the Justice Department of appalling and unsettling behavior in a case over subpoenas for patient information regarding gender affirming care. Plus listener questions. Do you have questions for the pod or something for HITMEINTHEHEADWITHABAT?
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Hi, I'm Frances Collier. And I'm Angela V. Shelton. And we're Frangela. You know what you mean in your life. The Final Word podcast. Yes, you do. That's right. It is the final word on all things political and pop cultural, where we make real news, real funny, where we inspire you so you can resist. Subscribe and get a new episode of the Final Word podcast each week. It's the news we think you need to hear. That's right. We think you need to hear it. Okay. Yeah. It's what we say.
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So.
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That's right. And because all we do is give. Every Thursday, you can listen to our hysterical podcast, idiot of the Week. We round up the stupid. Because you know what? Somebody has to. Okay? All we do is give. MSW Media
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the Justice Department on Wednesday filed a lawsuit against the District of Columbia Bar over its efforts to discipline Trump administration. Administration lawyers.
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A
Kash Patel was caught falsifying bureau statistics to boost his record of arrests in the face of congressional criticism for his alleged drinking habits.
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B
New York's attorney grievance committee found sufficient basis for a finding of professional misconduct against disqualified U.S. attorney John Sarcone III.
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A
And a Trump appointed judge has accused the Justice Department of appalling and unsettling behavior in a case over subpoenas for patient information regarding gender affirmin. This is unjustified. Hey, everybody. Welcome to episode 69 of Unjustified. It is Sunday, May 17, 2026. I am Alison Gill.
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B
And I am Andy McCabe. Allison, good to be with you again. And oh, my God, another week, another week of just watching the train go flying off the tracks, off the cliff. It's hard to imagine.
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A
We're like, what could it be this week? And, you know, something you might find conspicuously missing from our headlines today is the story. The New York Times is reporting it. We did it. We covered it on the Daily Beans this week is that, you know, Donald Trump sued the IRS for 10 billion with a B dollars over the release of his tax returns to the press. And the judge in that case was like, you can't sue yourself, sir. You can't this. There's no adversary. And we talked a lot about this. When the Flynn case was dismissed. There was no adversary there. Flynn and Trump's Justice Department were in agreement. So the judge in that case appointed an amicus, a friend of the court named John Gleason to write an amicus brief to be the adversarial view. Because that's our, you know, our courts and our judiciary depends on an adversarial system. And John Gleason said don't, absolutely do not dismiss this case. So then Trump was forced to pardon Mike Flynn and the case was eventually dismissed for that purpose. Well, here Trump suing himself the do the irs. There's no argument. And so the judge in the case, Judge Williams, she said once again we have a no, you know, no adversary here. So she appointed same guy, retired Judge John Gleason to write an amicus brief. But in the, in, right before she was about to rule on this or right before he was about to turn in his brief, Donald Trump said hang on, we've, we've, we're coming to an agreement. And apparently we learned this week that that agreement is that there would be a 1.7 billion with a B, $1.7 billion fund set up from the treasury for a Trump appointed commission of five people who he can fire and replace at will for no cause to distribute this $1.7 billion to people who felt that the Biden Justice Department was weaponized against them, including the 1600 plus pardoned at January 6th insurrectionists.
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B
I mean what else would you expect from this administration other than a taxpayer funded political slush fund for the payment of, of money to political friends? I mean it's unbelievable. How did we get here? How are we, how, how do we live in America where this happens and like, where do we go for the next two years? That's the thing I keep reminding myself. Like every time we get another insane story like this, you think like, wow, what are we going to be talking about two years from now when he's two more, two years further embedded into this massive, massive grift is all it is.
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A
That's, it's a smash and grab. When Katanji Brown Jackson said that the immunity ruling would turn the Oval Office into the seat of criminality in the United States, she wasn't just, she wasn't kidding.
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B
It's prescient. I mean that's where we're headed, that is where we're headed with this.
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A
Yeah. So we covered this particular story about this $1.7 billion slush fund for Trump friends and businesses a lot on a bunch of podcasts across MSW Media. And Andy, you and I are going to cover it in depth when and if the settlement does come out. Cause this, this was a story about what people have heard about the settlement.
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B
Sure.
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A
When and if the settlement does come out, whether or not it has to be approved by Judge Williams in this case and if she is going to continue to insist on an adversarial amicus brief from the likes of retired judge John Gleason, something around that or to, you know, to that effect. And so we just wanted to give you a brief overview of what this is and that, you know, the, the, that we're going to cover it more in depth as we get more information about the actual settlement agreement when it comes out and what is done with it in court.
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B
Yeah. One of the things I'm going to be looking for is this idea that even if it gets past these hurdles and it's finalized and it becomes a thing, like, on what basis do you know, nonprofits and good government groups, how do you mount a challenge to the settlement of a civil lawsuit where on one side is the government and on the other side is the same government? Like, there has got to be a way into this. There's got to be a way to draw a greater degree of judicial scrutiny as to what's happening here. But we'll have to see. So I think that's the right course for us. Let's see what happens as we get more information on this and we'll come back to it.
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A
Yeah, for sure. So let's jump in with our news that we're covering today. More damning reporting out about FBI Director Kash Patel. This comes from Ms. Now Carol Lennig and Ken Delaney. FBI Director Kash Patel sidestepped months of unflattering insider accounts of his leadership in a hearing on Tuesday. This is on Capitol Hill. Instead, he pivoted. He boasted of the bureau almost doubling its number of arrests under his tenure and of the capturing of the world's, quote, 10 most wanted villains at a record clip. Now he sounded a familiar refrain as he seeks to protect his job, dismissing senators concerns over media reports about his behavior and waving a large placard around in the air that he said carried statistical proof that his leadership of the world's premier law enforcement agency has been stellar.
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But Patel's FBI has imposed new policies that inflate these numbers and overstate the bureau's progress in stemming crime, according to half a dozen law enforcement sources with knowledge of the changes. Patel cited internal statistics Tuesday during a Senate Appropriations subcommittee hearing as he dodged Democratic senators questions about a litany of media reports on his behavior. The articles recount allegations from agents and others of his excessive drinking, his orders to polygraph dozens of agents to quell media leaks, his frequent travel in a government jet to VIP events, and the security detail for his girlfriend. Quote, this is what's happened under my tenure at the FBI and the Trump administration, Patel began 45,000 violent offenders arrested last year, twice as many as 2024.
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A
But Andy, check this out. At Patel's direction last year, FBI field offices were instructed to count as FBI arrests any suspects detained when FBI personnel were simply present or assisting, including when another federal agency or local police department made the actual arrest and led the casework. And that's according to three current and two former law enforcement personnel familiar with the practice. The double counting of arrests by either the local police or another law enforcement agency making the arrest, as well as the FBI when it's present, generated dramatic spikes in FBI stats from late 2025 through early 2026, when the FBI ordered that thousands of agents nationwide join teams of ICE officers surging into targeted cities to arrest and deport immigrants, including Minneapolis and St. Paul. The duplicate counting did not remove more suspects from the streets, said the three people who asked to speak confidentially about the policy change for fear of retribution. But it did give Patel a data point he could cite about rising FBI arrests.
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FBI headquarters has also pressed field offices since last year to increase the number of arrests FBI agents make in their own cases, one current and another former FBI official said, and to push to make arrests even when agents don't expect they can win a conviction. Quote, they are absolutely padding the stats and claiming arrests that they would not have claimed previously, said one current FBI official. So comparing 2025 to 2024 is not apples to apples. A former FBI official said agents inside the bureau complained frequently about Patel's bogus arrest numbers. Quote, Cash is definitely engineering things to pad his stats, the former official said.
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A
So if a FBI agent is just near or watched the arrest or had an analyst working on it or something like that, they're counting that?
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B
Yeah.
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Now Patel also boasted on Tuesday about steady progress the FBI has made in fugitives who have evaded capture and are listed on the bureau's 10 most wanted fugitives list. Quote, we've arrested eight of the top 10 most wanted fugitives in the world in 14 months, Patel said. It was a repeat of what he told a Fox News interviewer on April 20. That's twice as many as Joe Biden did in four years. However, according to reports from current law enforcement officials and Ms. NOW and their review of the 10 Most Wanted list under Patel's watch, his FBI has accelerated the pace of arrests in part by making several last minute ads to the list.
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B
Yeah, so here's the numbers we get from Ms. Now. Eight fugitives have been captured off the top 10 most wanted list since President Trump was sworn in last January. Two of those were before Patel became director in February. Of the six fugitives caught since Patel was sworn in, four were seized within a month of the FBI leadership, elevating them to the top of the top 10 most wanted list. Two of those four were grabbed within 24 hours of being added to the list, according to the FBI. Oh, my God. You gotta be kidding me. The most striking example is that of Samuel Ramirez Jr. Who was wanted on suspicion of killing two women. He was apprehended in Mexico in March, just one hour and 13 minutes after the leadership placed him on the most wanted list, according to an FBI news release. The FBI would plan for days in advance of any operation to capture a violent fugitive, according to current and former agents who say this quickie addition was made strictly to improve Patel's stats.
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A
Yeah, and another one, Kashan Nicola Roper, was apprehended in Florida last month. Roper had been charged with second degree murder for her alleged involvement in a 2020 shooting in Missouri and was arrested less than a day after she was added to the Most Wanted list. Quote, they are literally just nominating people they're about to arrest or that they have solid information on and can affect arrest. That's what one FBI official told Ms. Now, quote, gone are the days of nominating the worst of the worst and fugitives that we haven't been able to find.
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B
One statistic that Patel did not mention Tuesday is the spike in attrition of FBI personnel in the last year. Yeah, he didn't bring that up. Instead, Patel said in his testimony that morale at the FBI has, quote, never been better. Wow. I mean, like, what are you comparing that to, how great the morale was in Congress when you were on a. When you were a staffer up there? Drawing dubious looks from Democrats on the panel. The FBI employs 13,000 special agents in its workforce of 38,000. And a review of previous workplace satisfaction reports shows that the Bureau loses an average of 700 agents each year. Many credit this relatively modest attrition rate of 5% to the fact that most agents tend to spend their entire career at the Bureau staying until they are eligible to retire. But in the past year under Patel, the Bureau has lost not 700, not 750, not even 800, which would be a big increase. 2,800 agents. 2,800 agents, Allison. According to internal FBI statistics shared with Ms. Now, it's unclear if that number includes agents fired during Patel's tenure. Bureau agents are struggling to recruit even a fraction of the replacements needed, according to a person familiar with the internal discussion.
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A
My God. 2800 in. In the hearing Tuesday, Senator Patty Murray asked Kash Patel about accounts of him handing out bourbon bottles bearing his own name and wasting bureau resources to polygraph his agents. And when she said she was deeply concerned about his ability to lead the bureau, Patel leaned on all those padded statistics. She said, quote, we need somebody at this agency who's focused on solving criminal cases, not passing out branded bourbon or jetting around the globe. And I've got to say, if you want to pass out liquor or pop bottles in a locker room, stick to podcasting. Leave law and order to people who really do care about justice and appearances.
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B
So she's not wrong, but I do kind of resent the shot at podcasters, because here we are, you and I, working again, doing this again. I see no pop bottles or beer cans being sprayed on the ceiling where I am, and I don't think you are either. So, hey, come on. Patty cut us. I think it's a brave.
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A
Stick to podcasting as an insult. And here we have a podcast with the former deputy director of the FBI. You should write, Patty.
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B
Senator, what are you doing to me?
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A
Hey, Just. Hi. We're not all bad, but not all man. You know, I don't think he's long for his job, all this negative reporting. Another report came out this week that we didn't really, you know, have. That we didn't really decide to cover today, but we could bring it up really quick. Apparently, he took a VIP snorkel around the USS Arizona. Yeah, something that is rarely done. It's reserved for very rare occasions. I think the last FBI director to do it was Louis Free, but that was in a stop off in Hawaii on the way back from something, and it was left off the report. All the FBI talked about on that trip was that he toured the local FBI field office and met some, you know, with some officials. And, you know that they made a very big deal of it being an official trip to Hawaii, but they left that off and who knows what else.
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B
You know, this guy has. He never found a trip that he didn't like for one reason or another? He can't get enough of flying around on that plane, taking his friends with him, going golfing in Scotland for the party of five for the weekend. I mean, it's. It's just like obscene abuse of that resource. And this is all coming from a guy who literally, a year ago, maybe year, two years ago, on his or Somebody's podcast was saying Chris Ray should not have a plane. Like, the first thing the FBI should do is get rid of those planes. And Chris Reich shouldn't be flying around a plane. Like, the hypocrisy is just mind numbing from this guy. But let me say one thing about the nonsense with the top 10 most wanted list. That list was created for and has always been essentially a propaganda tool. Right. That's what it is. Hoover started it back in God knows when as a way of attracting attention to the work that the bureau was doing and highlighting particularly the criminal side of what the bureau was doing. Because most people don't realize this, but the bureau really kind of started on a more intelligence footing, doing like domestic intelligence of anarchists and things like that, and really had to like, push into the area of like violent crimes and that sort of thing anyway. So there's no rule, like the Bureau can run the top 10 list any way they want to. It's not like a something that was created by statute as a rule. People got put on it because there were people who we really, really desperately wanted to find. And we thought we needed the public's help finding them. And some of the hardest to capture fugitives that we had in the record books. The problem with that was, like, those people are really hard to catch and sometimes no one would be arrested off the list for years and years and years.
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A
We talked about this a lot on the Mueller. She wrote a podcast that Mogilevich was on there for a long time, but then was taken off for whatever reason,
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B
because they know where he is and they're never getting him back. He's in Russia. Russia's not giving him to anyone. So it's. It. You're kind of like wasting this opportunity of having a fugitive on there who you could actually make some progress in catching. The public got involved exactly. Is to get the public to look at these things, pay attention to them, and maybe call in some leads. Hey, I think I saw Whitey Bulger, you know, at 7:11, whatever. And it does work that way.
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A
Whitey bulger at the 7 11. Get one of those rolly hot dogs on the thing.
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B
You know, he was several. It's like a twofer deal, I think. So don't quote me on that. Anyway, so there have been changes to it over the years, but I am not aware of any director or any administration that just blatantly juiced the numbers by throwing on people who you knew you were going to get. I mean, that's those poor agents. I Can only just imagine what they're going through. They're just so. I'm sure they're so embarrassed by being associated with that. They're good, you know, they're. They're snarky. Buddies in the squad are like, oh, congratulations, you got a top 10. Which. That's always been such a thing of esteem, you know, kind of like it's a legendary thing to be able to do. And now you get a top 10. But it's not really a top 10 because. Because they've. It's like the top 10 minutes. They should call them the last 10 minutes. Right.
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A
Because that's why they didn't put Jim Comey on there for the seashells right before they.
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B
Oh, my God. So he's just. He's just a liar. He lies about everything. He told the Senate he wasn't going to engage in any sort of retribution against the people who worked the cases on Donald Trump, and then he immediately started firing people. You cannot believe anything this guy says, ever. He says things about cases that are under investigation before he should say them. They end up being wrong. Then he lies about being wrong. It's just awful what this guy does. And he is. He's gutting that institution.
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A
Yeah. And his comments about morale's never been higher. Just another.
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B
It's a lie. Anyone? Any. I talked to people all the time, and. No, it's just a. It's a place riddled with fear and uncertainty and anxiety right now because literally no one knows what's coming next.
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A
And how often do you have agents who currently work at the FBI who are in the numbers of half a dozen to two dozen going to journalists and telling them about what's going on? I mean, I've never seen anything like that.
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B
Yeah. It's so ironic because, like, whistleblower protections came about, I think, under the Carter administration. One of the reasons was they thought if we give. If we give government employees an authorized, approved way to go out and tell Congress or tell the IG what's going on, then they'll be less likely to go to the media and leak stories to the media. And so what's happening now? The whistleblowers are being attacked, being investigated criminally, and the media leaks are off the charts. Right. Because it's.
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A
Exactly.
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B
Yeah. Morale says. Everybody's dancing in the corridors.
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A
Right.
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B
Oh, my God. So ridiculous.
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A
And he's polygraphing people to.
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B
Yeah.
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A
For these leaks, for people telling stories to the press that apparently are untrue.
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B
Yeah, totally. The people who are being asked in these polygraphs, have you ever said anything bad about Cash Patel?
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A
Yeah.
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B
I mean, who could say no to that, really? I mean, I don't know. It's just.
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A
So are you saying that that's what they're being asked or you're just assuming?
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B
No, they are. People have reported that these loyalty polygraphs are questions like that. Like, do you, have you ever said anything bad and you get asked questions about, are you giving information to the media? Stuff like that. But have you ever said anything bad about Cash? Like what's going to happen if you did? Oh, you get fired now for saying something bad. I guess so. I guess that's, I guess that's what it's become. It's like Stalin esque sort of leadership.
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A
I got fired in 2019 for saying bad stuff about Donald Trump.
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B
So there you go.
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A
It happens. All right. We have a story about you. Remember when Pam Bondi put out that big memo saying that the bar associations should stop investigating DOJ lawyers for misconduct because the DOJ can do it themselves. Right. Well, now apparently the Justice Department is suing one of the bar associations. We're going to talk about that after this break. Stick around. We'll be right back. Foreign. Hey, everybody. Welcome back. Our next story comes from the New York Times. The Justice Department last Wednesday filed a lawsuit against the District of Columbia Bar over its efforts to discipline Trump administration lawyers, escalating the department's feud with legal ethics authorities. The lawsuit defends Jeffrey Clark, a government lawyer in the first Trump administration who sought to undo the results of the 2020 presidential race, and Ed Martin, the former Wackadag PUH, which is weaponization SAR Associate Deputy Attorney general pardon attorney who is now just the puh. He's just the pardon attorney now current senior Justice Department official. The suit was filed by Todd Blanche himself because the acting attorney general, it doesn't have anything else to do these days. And Stan Woodward, the number three official at the Justice Department.
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In accompanying statements, Mr. Blanch accused the D.C. bar of acting as a, quote, blatantly partizan arm of the leftist of leftist causes. Mr. Woodward said that the bar would, quote, no longer be permitted to probe sensitive executive branch deliberations, adding that lawyers in the federal government must be free to share their candid legal advice with their bosses and colleagues.
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A
Oh, like telling your lawyers to tell the courts to off that.
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B
Yeah, yeah, yeah.
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A
That kind of stuff.
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B
Free to tell your bosses how they can violate the law. Apparently that position that lawyers at the Justice Department or other federal agencies are above scrutiny by legal Ethics officials is likely to be challenged by a host of legal profession entities.
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A
Yeah. Now, this lawsuit centers on the long running battle over the D.C. bar's effort to disbar Jeffrey Clark, an environmental lawyer. Remember, show up when you have an oil spill? That guy? That guy who had no formal role in investigating elections. Over his push to promote Trump's baseless assertions of fraud in Biden's victory in 2020. While the lawsuit is focused on Clark, Justice Department leaders in the suit also argued in defense of Ed Martin. Two months ago, the D.C. bar filed disciplinary charges against him over what it cast as his misconduct. In seeking to punish Georgetown University's law
- [24:43]
B
school, Mr. Martin has spearheaded efforts by President Trump to use the Justice Department to pursue the president's perceived enemies. What the administration claims are corrective measures intended to, end quote, weaponization of law enforcement by Democrats. Increasingly, the Trump administration has clashed with state and local bars as interest groups. And some lawyers argue that unethical conduct by government lawyers acting on behalf of the Trump administration should be investigated and potentially punished.
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A
When reached for comment, Kash Patel said, why are you suing the bar? I love the bar. And Janine Pirro said, I'll go to any bar. Okay, sorry.
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B
Where are we going to go now?
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A
That's not part of this. The Justice Department is pushing forward this proposal to try to stall or delay state and city bars from conducting ethics investigations of its lawyers. And the new lawsuit argues that the DC Bar is among the entities that has shown partisan bias. Wow. To back up that claim, the lawsuit points to how the DC Bar handled the case of Kevin Klein Smith. That's a former FBI lawyer who pled guilty to making a false statement when he altered an email to try to justify court ordered surveillance of former 2016 Trump campaign advisor Carter Page, who's probably going to get a nice chunk of that $1.7 billion slush fund should that come to pass. After his plea, Mr. Klein Smith had his bar license suspended for a year. The suit called Mr. Kleinsmith's punishment just a slap on the wrist for suborning unlawful surveillance in violation of the Fourth Amendment, and compared it to the effort to disbar Mr. Clark for attempting to tell a lie about the 2020 election. Wow.
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B
Is that them admitting that it's a lie? Did Todd Blanche's legal filing just admit that claiming that the election was stolen from Donald Trump was actually a lie? Seems like it to me, but.
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A
Well, they admitted it a lot. They. When they. When they were filing their First Amendment arguments where they're like, we're allowed to lie about the election, you remember? And Jack Smith is like, I didn't charge you for lying about the election.
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B
Yeah, yeah, yeah, yeah. The lawsuit also invokes the Supreme Court's 2024 decision granting partial immunity to presidents, suggesting that if a president has immunity, lawyers working for him in the government are also protected from ethical discipline.
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A
What?
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B
Oh, it's the transitive property of immun. If you're near Trump, you get immunity, too.
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A
Okay, so I'm going to go out and rob a bank today, and when they try to press charges, Andy, I'm going to tell them, hey, I do a podcast about the president who has immunity.
- [27:23]
B
I feel like that could work. I've been in the Oval Office with that president, not with any other. Ipso facto. I feel like a little bit of that immunity must have rubbed off on me. The article concludes the President's constitutionally required immunity would provide little protection if executive branch attorneys could be targeted for internal executive branch deliberations, the lawsuit argued. Now, I have to say, let's go in the Wayback Machine to the incredibly depressed and outraged shows that we recorded in the aftermath of the Supreme Court's decision in Trump of the United States granting him immunity. And one of those things that you and I bemoaned during that time was it's only a matter of time before they come up with an argument that the president's immunity actually covers the other people around him because he do anything by himself. There's no way that guy could competently commit a crime by himself. Dude couldn't rip off a Snickers bar from a 7 11. He's got to have the lawyers helping him out and other people executing those criminal orders. The hypothetically. So, yeah, this is. This is them saying the quiet part out loud. And I'm sure that's where this is all going.
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A
Oh, and it didn't take long, because one of Jack Smith's conspiracies that he had listed was the Jeffrey Clark DOJ Department of Justice conspiracy, in which the Supreme Court, although they didn't rule on any of the other issues, they did rule on the Jeffrey Clark thing and said, like, Donald Trump's conversations with Department of Justice attorney Jeffrey Clark are immune from prosecution. And those were removed from the indictment. That's why Jack Smith had to do a superseding indictment, was to pull that out. He's like, I still got plenty. There's still plenty of other conspiracies, but he had to pull the Jeffrey Clark stuff out. So it's not a surprise that this Department of Justice justices like when the, when the president talks to anybody in the doj, including DOJ attorneys, it's immune. But that's already covered. You don't have to not. Criminal immunity doesn't cover bar ethics panels decisions. It's not a crime.
- [29:36]
B
Absolutely. Good point.
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A
But it may protect them from being charged with crimes.
- [29:41]
B
Yeah. So it shouldn't touch the bar thing at all. But this concept of transitive immunity is also insane. The president gets. If the president engages in a criminal conspiracy with Todd Blanche. Yes. The conversations they had cannot be used against the president, but they can be used against Todd Blanche because he's not the president and doesn't get immunity. That's the way. I hesitate to say that's the way the immunity should be applied because it shouldn't be applied at all.
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A
But that's not how it be applied. But that's where the court has any say.
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B
Yeah. You know, that's. You're going to see this time and time again in other suits, I guarantee it.
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A
Yeah. And it's going to get worse because of the caliber of U.S. attorney that is currently being solicited by the Department of Justice. And we're going to talk about a couple of nominees who are going to be voted on this week for U.S. attorney that were nominated by Trump along with an ethics complaint filed against a disqualified U.S. attorney from New York. But we have to take a quick break, so stick around. We'll be right back.
- [30:57]
B
Welcome back. Okay, next up, the Justice Department is still plagued by a U. S. Attorney problem. Now, we've seen multiple U. S. Attorneys disqualified, including, of course, Alina Haba and Lindsey Halligan. They've taken to posting on social media to fill vacancies. That's the doj. And the latest issue is outlined by Adam Clausfeld at All Rise News. Adam writes, New York's attorney grievance committee confirmed, quote, there was a sufficient basis for a finding of professional misconduct against John Sarcone, a former Trump campaign Lawyer. Turned disqualified U.S. attorney.
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A
Turned disqualified U.S. attorney. So many times people are like, what do you want to be when you grow up? I'm like a disqualified U.S. attorney. Yeah.
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B
Not just a U.S. u.S. Attorney, but a disqualified one.
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A
Yeah. Now, Sarcone had launched a criminal investigation into New York Attorney General Tish James last year before a federal judge found that he was unlawfully appointed to the role of the top federal prosecutor in Albany, New York. The Attorney Grievance Committee of New York's Appellate Division, third Department asserted that it quote, took appropriate action on the misconduct, quote, with this action, the matter is concluded. The committee's chair, Elena Jaff Testinson. I hope I'm pronouncing that correctly. That's what she wrote in a single page letter. Quote, we regret we can't be more specific about the nature of the action, the consequences, and in accordance with Judiciary Law Section 9010 and Attorney Disciplinary Rules Section 1240.18, all papers, records and documents of a disciplinary investigation and proceeding are sealed and deemed private and confidential. That's what she added. So he was punished somehow. We just don't know how.
- [32:41]
B
Lord knows what. Campaign for Accountability's Executive Director, Michelle Kupper Smith slammed the secrecy surrounding the resolution, quote, while we're pleased the New York Attorney Grievance committee recognized that Mr. Sarcone, who remains first assistant in the U.S. attorney's office, engaged in professional misconduct, a secret slap on the wrist is insufficient, coppersmith said in a statement. Mr. Sarcone's pattern of conduct reflects on his credibility as an officer of the court. So any court in which he appears, along with the public, deserves to know what he was sanctioned for and why.
- [33:18]
A
I concur.
- [33:20]
B
I agree.
- [33:21]
A
In a video interview, Kupper Smith added, quote, john Sarcone is putting cases forth in front of federal courts. Every judge should know what John Sarcone did and what the bar thought he did wrong. Last August, Kupper Smith filed the complaint against Sarcon on behalf of her watchdog group, accusing him of engaging in erratic and potentially illegal conduct. The Campaign for Accountability's complaint said that Sarcone may have, quote, engaged in conduct involving dishonesty, fraud, deceit or misrepresentation during a bizarre scandal involving his claims against an undocumented immigrant named Saul Morales Garcia.
- [33:57]
B
Sarcon has alleged that Morales Garcia attempted to murder him outside a hotel in Albany, but surveillance video revealed the interaction fell short of the then U.S. attorney's allegations. Morales Garcia's charges were reduced to misdemeanor menacing and the Northern District of New York's judges refused to extend Sarcone's interim term in the wake of the incident. In filing his police report, Sarcon listed a home address that appeared to be a boarded up house, leading critics to argue that he falsely claimed residence in the district to keep his job. Sarcon denied the allegations and slept in a boarded up house. Apparently I added that last part on. Oh my God.
- [34:38]
A
After the Albany Times Union reported on the incident, Sarcone blacklisted that local newspaper. In an action described in the complaint as an abuse of power The Attorney Grievance Committee would not confirm which of the allegations rose to the level of professional misconduct or what action was taken in response to it. And the Justice Department obviously didn't respond to an email requesting comment. So that's what's going on with Sarcone.
- [35:05]
B
I mean, what a clown, right? Come on. Really? I just, I always have to go back to like the 2016 beginning of or 2017, the beginning of the first Trump term. And it was nothing but the best people will have nothing but the best people. Is this really nothing but the best people? Dude, who, who lied about, who allegedly lied about his address and didn't think to at least check the fake address. He confusing that it was actually an address of someplace that you could live in. Dude, that's like backstopping 101. Come on. And Allison, also this week, the gears of the US Senate were turning with a vote tomorrow, actually, to move ahead on a package of confirmations, including three U.S. attorneys. Darren Smith, who's Trump's pick for U.S. attorney for the District of Wyoming, is already the acting. The acting U.S. attorney in that role. A former Republican state legislator, he took part in the protests at the Capitol on January 6, 2021, though he said he didn't enter the building when a mob of Trump supporters stormed the Capitol in search of lawmakers to potentially kill to stop them from certifying Joe Biden as the winner of the 2020 election. Now, as Jeffrey Toobin, a New York Times opinion writer and former assistant U.S. attorney himself, noted this week in his piece on the subject, Smith, whose background is primarily in estate planning, has practiced law for 25 years, but hasn't tried a single case in federal or state courts. So sounds like a great candidate. Nothing but the best people for the U.S. attorney jobs.
- [36:41]
A
Yep. Excellent. Another nominee in the mix is Philip Williams, who's up for U.S. attorney in the Northern District of Alabama. Like Smith, he's never tried a case, a criminal case. He previously criticized federal law enforcement for having hunted down January 6th rioters and accused them of prosecutorial abuse use many, many, many times over. He also compared their prosecutions to the Salem witch trials of the late 1600s, when people were falsely accused of witchcraft. She's a witch burner, right? That. No, that was not Salem. But you, you get the point. Williams, who previously led a conservative radio network known as Right side Media, has also described abortion as nothing more than industrialized slaughter. So that's the second guy.
- [37:25]
B
He sounds like a winner. Dan Bishop, a former Republican congressman, is also up for a U.S. attorney post in North Carolina. He previously voted to overturn the 2020 presidential election and has suggested that, quote, the left participated in and even instigated the violence on January 6th. Oh, of course he has. Senator Richard Blumenthal, member of the Senate Judiciary Committee, which U.S. attorney nominees have to clear before heading to the Senate floor. Senator Blumenthal told HuffPost that this batch of nominees is particularly egregious because of their actions around January 6th. Quote, I have voted against all of the US Attorney nominees because none of them has shown me that they will stand up to Donald Trump and the Department of Justice that has been weaponized to go after his political adversaries, said Blumenthal, who's a former U.S. attorney himself. They've been chosen to be tools for the Department of injustice, he said. I'm just angry, embarrassed and ashamed about this department.
- [38:27]
A
Yeah. As we know, Republicans control the Senate, and none have publicly expressed concerns about any of these guys. They will almost certainly vote to pass the package this week. The question is whether GOP senators even know who they're voting for. There are more than four dozen nominees to various administration posts in this package, including the U.S. attorney nominees, and whether they have any concerns about those nominees, qualifications or potential political agendas. Who knows?
- [38:54]
B
Yeah, who knows? Now, Senator Thom Tillis, Republican from North Carolina, said he knows Bishop personally as they've both been GOP politicians in North Carolina. Tillis has also stood out in his party for refusing to support any Trump nominees who have defended the January 6 insurrection or had any part in it. But Tillis actually defended Bishop, whose vote to overturn the 2020 election was based on the same lie that fueled the January 6th insurrection and called it believable that progressives may have also been in the mix of Trump fanatics that day fueling violence.
- [39:29]
A
It's disappointing. I mean, I'm often disappointed by Republicans, but Thom Tillis has been a voice standing up for particularly law enforcement. On January 6, he was a leading voice to get the plaque, you know, put up honoring the police that defended the Capitol that day. And he has actually blocked nominees of people who were at the Capitol that day. Except this time, I guess he's totally cool with it, saying, oh, it's completely believable that there were liberals there instigating the violence on January 6th.
- [40:00]
B
So there's gotta be some deep personal relationship between the two of them that's leading him to want to go light on the guy. He also, I will give him credit for, he handled the Jerome Powell investigation thing well, refusing to go move forward on the new nominee for the Fed. Until the Powell investigation was.
- [40:18]
A
Yeah, but he, but then they just moved the investigation to the inspector general, who's now Michael Horowitz. And then he let it go and Tillis let, let it go. And I don't think he should have. Yeah, personally. All right, we have one more segment. We have our Hit Me on the head with a bat segment, plus listener questions. But we have to take a quick break, so everybody stick around. We'll be right back. All right, everybody, welcome back. It's time to hit me in the head with a bat.
- [40:52]
B
Hit me in the bat. Head with a bat. Hit me in the head with a bat. Hit me in the head with a bat. Hit me in the head with a bat. Yes.
- [41:01]
A
This is a segment where we explore the loss of the presumption of regularity usually enjoyed by the Justice Department lawyers, something that's been demolished since Trump took office for a second term. And Pam Bondi and now Todd Blanch have taken over the Department of Justice. Today's example comes from a Trump appointee, Andy, a Trump appointed judge. Judge MARY thank you. Judge Mary McElroy, a district judge from the District of Rhode Island. In a scathing 24 page ruling, she quashed a federal subpoena seeking years of records connected to gender affirming care for minors at Brown Health's Rhode Island Hospital, R.I.H. rhode Island Hospital. She also barred the Department of Justice from obtaining, retaining or disseminating identifying patient information tied to this subpoena. The Department of Justice filed their case in the Northern District of Texas for this Rhode island hospital records. Right, of course, because they were form shopping.
- [41:59]
B
So she opens her ruling like this. The United States Department of Justice possesses immense prosecutorial authority and discretion. As citizens, we trust that federal prosecutors, when wielding this awesome power against a state, a company, or certainly against vulnerable children, will play fair and be honest with its counterparts and the judiciary. DOJ has proven unworthy of this trust at every point in this case. It has misrepresented and withheld information to both this court and the United States District Court for the Northern District of Texas. It did so in an obvious effort to shield its recent investigative tactics previously rejected by every other court to review them from this court's review in favor of a distant forum that DOJ deems friendly to its political positions.
- [42:50]
A
Wow. DOJ has proven unworthy of this trust at every point in the case. That's. Can't put a finer point on it than that.
- [42:58]
B
Yeah, that's gonna become a New definition for loss of the presumption of regularity.
- [43:05]
A
Now, she goes on to say, its representatives have, under oath. The DOJ representatives have, under oath, misrepresented salient facts. It has misled the parties with whom it was negotiating with in Rhode island, who have now been placed in an untenable and unprecedented procedural position. And when its attorneys came to this court to explain their conduct, the senior attorney who was present at many of the events that took place in this case sat silently by as his counterpart, a junior attorney who's been practicing law for about six months and had no relevant information, was forced to answer questions about DOJ's blatant disregard for the proper course of negotiations.
- [43:48]
B
Now, she concludes, ultimately the court's decision is based solely on its application of the law to the administrative subpoena at issue here. But the discrepancy between the honorable conduct expected of federal prosecutors and the DOJ's tactics in this case is unsettling. The court cannot help but share the sentiment that the presumption of regularity that has previously been extended to doj, that it could be taken at its word with little doubt about its intentions and stated purposes, no longer holds.
- [44:21]
A
I mean, Annie, we've read a lot now, that last quote you read is from another case where a different judge had said that, and she was using that to emphasize her point. Point. But this seems like one of the harsher takedowns of Department of Justice justice attorneys and their behavior. So they lied about, like they had told the court that, you know, we were negotiating with the Rhode island hospital and we haven't heard anything. They stopped communicating with us on February 4th. And then there's plenty of evidence that that wasn't true. And what the DOJ said is, well, we said that was the last communication of its kind, but there were other communications, but that was the last one that was like that. Like it was just absolutely bonkers what they were trying to pull off as truth here. And they omitted a bunch of information when presenting cases to the, when presenting their, their case to the, to this court. And she also went into the, to the forum shopping about, you know, she's like doing this afar in Northern district of Texas where you have amenable judges to your caus. So this is a really blistering takedown.
- [45:34]
B
Yeah, I think honestly, it's, it's a couple of weeks from now, months from now, it's not going to be original. I think you can just see this happening case after case after case, because what we kind of saw at the beginning of this trend was individual judges really hyper focused on what was happening in court, saying things like, you know, I told you to release that person from custody yesterday, and you didn't do it. Why didn't you do it? It was this like, like, very basic contradiction between the fact and the false.
- [46:08]
A
And there was a lot of judges being like, I told you to bring in someone with knowledge, and this person has no knowledge over and over and over again. Right.
- [46:15]
B
But what you're seeing now is judges are really stepping back and taking the opportunity to write these eloquent, damning characterizations of the department writ large. And I think what that shows is a much deeper, broader distrust of the department itself. And this situation is. Is getting worse, quite frankly. And this is not something, you know, if a new DOJ came marching in tomorrow with new leader, new and better leadership, they'd still be suffering. They're gonna, they're gonna. It's gonna take decades before this gets undone.
- [46:49]
A
Yeah, no, I agree. And I think, you know, she made, she made the point that you're making when she was like, look, ultimately this decision is based on law and the subpoena here, but I have to talk about this. And that's what we're seeing more and more of the judge will be like, look, based on the law here, I gotta quash these subpoenas or I gotta release this person or I gotta do this based on the law. And that's what my job is. But I. But allow me to. To address what is going on with the Department of Justice right now. That's what we're seeing more and more of. That's why she was able to pull a quote from a different judge. I mean, we read quot every week from judges who are like, the presumption of regularity has been destroyed. It's demolished, it's gone. We could no longer rely on the doj. Things like that, over and over again. Like you said, it's just going to get worse, especially with this new batch of, quote, U.S. attorneys that's coming in probably this week. So.
- [47:46]
B
Yeah, for sure.
- [47:47]
A
All right, it's time for listener questions. If you have a listener question, we have a link in the show notes that you can click on and submit a question and we will read it on the air. And if we don't get to it, we're probably saving it for those mega questions only episodes that we do every once in a while. So just click on that link, send us your question. What do we have this week, Andy?
- [48:06]
B
For listener questions, we have two quick ones this week. The first one, well, before we get to the questions, I should say that many people wrote in and requested the entire. That we somehow post or distribute the entire list of acronyms from last week. Remember, the TACO went to nacho and then it went totally out of control. I don't know where. I mean, it's still not entirely clear to me where that came from, whether it was entirely written by the person who submitted it to us or whether it was something they picked up on the Internet or what have you. But maybe we could think about throwing it up in the show notes so people could access it, because there's a lot of people who are just, like, scrambling for that. So we'll think on that a bit and come up with some way to get that back out to you all. So in the meantime, also this week, there was a lot of interest in pardons, and we did talk about pardons last week, but I wanted to just add this question just to kind of wrap it up, because it's a small matter, but one that was on the minds of a lot of people. This one came to us from someone who did not want to share their name, which is totally fine. They said, hello, thank you for everything that you do on the pod. It is very much appreciated. My question is, even though Trump can give pardons, can states still go after people he pardoned for state crimes?
- [49:22]
A
Crimes.
- [49:24]
B
Yes. Yes, they can. I mean, that's typically not a problem. Although our only recent example of that, of course, really ran aground, and that was the Manafort. No, I'm thinking the Fulton county case, although there wasn't really a whole lot. A lot of pardons involved there. But you, you know, going after Trump is a different question because he has not pardon but immunity power. Right. So because he's immune from criminal prosecution, technically at the federal level, there's arguments that you could make in state court to, to block that as well. But if someone's pardoned, like just some Trump friend gets a pardon, that protects them from federal prosecution, it does not protect them from state prosecution.
- [50:09]
A
Right, right. And. And that's as evidenced in the Steve Bannon case. Yeah, right. Which was pled out, but he was charged federally for his we built the wall scheme. Trump pardoned that, and then he was then charged in state court for that. But then that was. Took a plea or something like that for no, no prison time. Then we had, for the, on the immunity front, we had, you know, Donald Trump is a convicted felon. He was, he was found guilty of 34 felony counts in New York State. So, yes, although you do have to find some sort of analog state law. There are some things that we see that are, you know, federal laws that are being broken that just don't have an analog state law or a DC Local. Because all DC Crimes go to the Department of Justice.
- [51:04]
B
That's right.
- [51:05]
A
So that makes it a little tough to have a state crime if it's committed in D.C. because Schwalb, who is the D.C. attorney general, doesn't do those kind, doesn't prosecute those kind of crimes. Am I right on that?
- [51:20]
B
That is correct. There's no. Because D.C. is not a state. There's no state law. It's all run by the federal government. And one kind of unique circumstance of that is that that prosecutors in D.C. are all federal prosecutors. So it's the only federal prosecutor's office that has what they call federal, a federal side and a felony side. But essentially it's, it's entirely federal prosecutors. So there's no way you're going to get federal prosecutors to prosecute a case against someone who's been given a pardon by the President. United States.
- [51:56]
A
If D.C. gets statehood, do you think they would change that system?
- [52:00]
B
No question. It would change everything.
- [52:02]
A
Another reason for D.C. statehood.
- [52:05]
B
Totally changed.
- [52:07]
A
Anyway, great question. Thanks for that.
- [52:09]
B
Yep. All right, so this, this next one, I couldn't resist. It comes to us from Cali Cathy. Kathy Cali Cathy. Thank you very much. She says what would be the statute of limitations for the charges in the Comey Seashells? I just love referring to the cases of the Comey Seashells. I think it's hilarious. I don't know why, but it's very.
- [52:32]
A
It's like sandwich guy, you know.
- [52:34]
B
Yeah, yeah, yeah, exactly. Just the absurdity of this case is completely encapsulated in its name. Comey Seashells. So typically, Kathy, the federal statute of limitations is five years. It can be a little bit different in specific crimes. If, if Congress, when they created those specific crimes, gave that individual crime a different statute of limitations. That does happen sometimes. I do not think that that's the case with the crime of, I guess it's attempted assassination of the President. We don't really know because he hasn't been officially arraigned yet, but that's likely the charge. We'll see if he gets any other charges. And they will likely have a five year term. It's obviously well within the five year term. So I don't see the statute as becoming a big issue in that case. But there will be many, many, many other issues. I think the most interesting conversation among true legal nerds right now is like, which one of the many bases will be the one that actually gets this case thrown out? Because there are so many challenges that I, that I'm confident they will bring that it could get thrown out for a lot of different reasons. And if, if it passes all those hurdles, you still got huge problems with First Amendment issues. And just the fact that they, the, the alleged communication here, the dreaded seashells. I don't see how there's any way it could ever be specific enough to be legally significant as a threat.
- [54:08]
A
No. No trial scheduled for July pending any things happening between now and then. So he was charged with Title 18, US Code Section 871A, which is threatening the President and 18 US Code 875C, transmitting a threat, interstate commerce. Both of those do carry a five year statute of limitation.
- [54:32]
B
Yeah. So we'll see. We'll see what happens. I don't, I don't think this thing's never going to trial in July because he's going to have a.
- [54:39]
A
Because I've been itching to cover a trial for a while now. We were so close to covering a couple of really amazing trials with the Jack podcast. Just never got to it. Man, I would love to your hopes
- [54:52]
B
on this one or I'd love to
- [54:54]
A
be in the courtroom for the, for the Comey Seashells trial of the century.
- [54:59]
B
Yes, for sure.
- [55:01]
A
It's seven minutes long and the jury deliberates for zero minutes. They just go. We already know.
- [55:06]
B
They're like, can you just get the sandwiches please? Can we have the sandwiches now? Can we have them? Because.
- [55:11]
A
That's right. That's right. They'll try to end their closing arguments right around 11am and then they'll be back with a verdict at 1, right after lunch.
- [55:18]
B
That's gotta get the sandwiches in, for God's sake.
- [55:21]
A
Gotta get the sandwiches.
- [55:23]
B
That's it.
- [55:24]
A
Great questions.
- [55:25]
B
Two good questions for the week.
- [55:27]
A
Click on that link in the Show Notes to send us your questions. We really appreciate them and we do read them all. And the ones that we don't get to like, like I said, we'll, we'll do these every once in a while. We'll do these questions only episodes and they're really, really fun to do. I, I think we probably will have one coming up here in the future because I think we've got a good backlog of questions to go by.
- [55:46]
B
We do.
- [55:47]
A
So send them to us. And boy, another. And as we say every week, what could possibly happen next week? We'll find out next week when we do this show again.
- [55:58]
B
Andy Lord only knows it just gets weirder and weirder. But you know, that's why we're here, keeping it all squared away for you, understanding what's happening and catching those cases that you might have missed during the crazy week. So back here again next week to do it all over.
- [56:12]
A
Yeah, we'll see you then. I'm Alison Gill.
- [56:14]
B
And I'm Andy McCabe.
- [56:17]
A
Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McCann. 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 msw media.com.