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UnJustified
UnJustified | Blanche’s Audition Tape
00:56:18
Two government watchdogs are suing the Justice Department over its Office of Legal Counsel memo that declares the Presidential Records Act unconstitutional. The US Attorney in the Eastern District of North Carolina has filed charges against James Comey for sharing a photo of seashells that spell out 8647. The Government Accountability Office and the Office of the Inspector General are investigating the Department of Justice's compliance with the Epstein Files Transparency Act. The White House Correspondents’ Dinner was not designated a National Special Security Event by the US Secret Service. Plus listener questions.
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A
Hello, Martin Sheen here. And it seems to me that no day of the week is without its endless barrage of bad news. Even on Sunday. For God's sake, let's change that. What do you say? Together, let's make Sunday immune to bad news. Available now every Sunday. Season three of the Martin Sheen Podcast with yours truly, Martin Sheen has begun. Yeah, 10 brand new episodes are already underway. So join me, Martin sheen, for a 20 minute journey as I share my personal stories, a bit of poetry, and insightful reflections that will encourage you to take a deep breath and enjoy a relaxing moment. Of course, it's important to know and understand what's happening in the world. But I also believe there's nothing wrong with taking a step back to find strength and clarity. And Lord knows we need that now more than ever. A moment of thoughtfulness and calm may be rare these days, but it doesn't have to be. So what do you say? Say you want to take back your Sundays. So do I. And guess what? I've already done it with the Martin Sheen Podcast, season three. Available now. Don't mess with my Sunday. And thank you for listening.
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B
MSW Media.
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C
Two government watchdogs are suing the Justice Department over its Office of Legal Counsel memoir that declares the Presidential Records act unconstitutional.
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B
The U.S. attorney in the Eastern District of North Carolina has filed charges against James Comey for sharing a photo of seashells that spell out 8647.
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C
The Government Accountability Office and the Office of the Inspector General are investigating the Department of Justice's compliance with the Epstein Files Transparency Act.
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B
And the White House Correspondent's Dinner was not designated a national special security event by the US Secret Service. This is unjustified. Hey, everybody. Welcome to episode 67 of Unjustified. It's Sunday, May 3, 2026. This is a bizarre week we've had, but I'm glad you're here. I'm Allison Gill.
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C
And I'm Andy McCabe. And yes, for me, the week began on Saturday night. Finish dinner, clean everything up, settling in on the couch, planning on watching a movie. And then my phone starts blowing up. Please get on right now. It's urgent. And I. So I call into the. To the control room at cnn. I'm like, what's going on? And they said, we don't know. Just get on right away. It's like, what am I gonna say about what you don't know? I'm not really sure, but yeah. So that was the shooting at the White House Correspondence center. And it's just been getting a little weirder and weirder since then, from hyperbolic midnight court filings, from Acting Attorney General Todd Blanch, to, of course, the aforementioned indictment for Seashells. It just gets weirder and weirder as the week goes on. And we're going to cover it all today. Yeah. Now, something we didn't get to report on last week because it happened after we recorded the show but before it aired was the incident that happened outside the White House Correspondent's Dinner when an armed gunman ran through the magnetometers, was quickly taken into custody by law enforcement.
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B
Yeah. And all week there's been sort of conflicting or muddy messages coming out of the Department of Justice. The night the incident happened, Jeanine Pirro got on the microphone and said that the gunman would be charged under Title 18, US Code 111, among other things, assaulting law enforcement. But that charge hasn't appeared yet. And there seem to be some questions about who fired the bullet that ended up being embedded in the bulletproof vest of a Secret Service agent, the one who opened fire on the gunman. And Ms. Now is reporting that federal prosecutors released a video Thursday showing the moment authorities say a man armed with guns and knives tried to storm the White House Correspondents association dinner and attempt to kill President Donald Trump. Jeanine Pirro, as I said, the U.S. attorney for Washington posted the video on social media like you do when you're doing an investigation.
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C
What?
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B
Amid questions over whose bullet struck a Secret Service officer as Cole Thomas Allen ran through the security with a long gun toward the hotel ballroom packed with journalists and administration officials and others. Now, prosecutors had previously claimed the agent was shot in the bullet resistant vest during the melee, but it had not confirmed it was Allen who shot the agent. Pirro, however, said Thursday there's no evidence that the officer was hit by friendly fire, but she also didn't say that there's evidence that he wasn't.
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C
Yeah. So the video appears to show Allan run through a magnetometer and point his weapon at the agent, who then fires back five times, according to authorities. Now, it's not clear from the video at what moment Allen's weapon fires. Allan was injured but was not shot during the Saturday night attack at the Washington Hilton, which disrupted one of the highest profile annual events in the nation's capital. Allen agreed earlier Thursday to remain in jail while he awaits trial. He did not enter a plea during his brief appearance in federal court.
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B
Yeah, and we should say Ms. Now doesn't cover this, but there's a reason he didn't enter a plea and that's because the federal grand jury has not yet returned an indictment. This was charged on information, Right? So Ms. Now continues saying Secret Service Director Sean Curran defended the agency's security plan for the event and said he wouldn't have changed it. He said in a Fox News interview that the attack was stopped within seconds at the outermost perimeter of a multi layered security bubble around the President. The distance from the magnetometers to the podium where Trump was seated was 355ft. Of course, in this midnight filing we're going to talk about, they said they were mere inches away and moments seconds away from shooting the President with two sets of chairs, a doorway and many more armed Secret Service officers in between.
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C
The nearly six minute video released by Piro shows Allen walking back and forth down a hallway the day before the attack and briefly checking out the hotel gym. Footage from the security checkpoint shows about a dozen federal officers taking down magnetometers and casually standing around when the gunman emerges from a doorway and starts sprinting toward them. The gunman quickly reaches the officers before most of them appear to notice him. Only one officer visible in the video appears to have drawn his gun before the gunman passed. Piero said he's the one who was shot and returned fire.
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B
Now, Andy, I have a question. Why were they taking down the magnetometers?
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C
That's a really good question and we should get Sean Curran on to answer it. Although I'm, although I don't know. Normally I would say he wouldn't come on, but boy, they've been talking so much about this in the media, maybe he will. The only logic I can think behind that is they likely had, you know, everyone who was going to be let into the event was already in it and they presumably had all been scanned so people would not be let out and then allowed to return. So if that's the case, you could say, well, we've scanned everyone who's in there. They're going to be in there for a while. Maybe we can take these down, get it out of the way so when the big crowd leaves, you know, they're not having to kind of lace their way through the magnetometers backwards. Unfortunately, there was one more person who did want to get into the event and that's the guy with the shotgun. So, yeah, I don't know.
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B
I'm not sure it would have made a difference though. I mean, he charged through the thing,
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C
so no, it wouldn't have made any difference. He was, he was, he caught them by surprise and ran past them. I Mean, it's, you know, not ideal.
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B
Now, Annie, I watched you that night on CNN and you had mentioned something that you and I have talked about a lot, especially concerning January 6th, something called a national special security event. And you know, something else you said is I remember when they were, the woman would come back on and say we're going to resume the program. And I was at home going what? And you were on TV going what? Because there's no way that law enforcement was going to allow that to happen. And that's eventually what did happen. They did end the event to, to reschedule at a later date. But the national Special Security event is, is a weird thing to me. The Washington Post reports that the Trump administration provided a lower level of security for the White House Correspondents Dinner that it had for other gatherings of high ranking officials, even though the President and many cabinet members were in attendance. So when so many officials gather in one place for official functions such as an inauguration or State of the Union, very popularly known as a national Special security event, the Secretary of Homeland Security typically puts the Secret Service in charge of coordinating all security through a formal designation known as a National Special Security Event. And there was no such designation on Saturday night at an event also attended by thousands of journalists and other government officials. And that's according to local and federal officials who spoke on the condition of anonymity because they weren't authorized to discuss. Andy, why didn't they designate this event as a national special security event? That seems odd. Or is it not odd? Is it normal?
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C
So it's not odd if you're only looking at White House correspondent dinners. So they don't, those are not typically designated. But in the past, first of all, in the recent past, the President has not attended. This is the first time he's gone. Right. So his entire first term he didn't go, he didn't go last year. Biden I think did go during the intervening four years. But nevertheless, even with, so with the President attending this time, I think you got a very high number of other senior cabinet members and members of Congress and the Senate.
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B
You got everybody but Grassley in the line of succession at this time.
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C
Yeah, it was a really troubling kind of accumulation of the line of succession there. And it's clearly something they should have thought about. Now I have heard people go on television and say, well, you don't typically, you only designate, designate something what we call an nsse, that National Special Security event, when it's a multi day event in which you, the public knows that the President will attend at several different times and, and the public knows the location where the President's going to be and the public has some access. That's not entirely accurate because they do declare it for joint sessions of Congress. So like when the President goes up and gives the State of the Union, you have the same problem there. Right. Everyone in the line of succession is there. It's Supreme Court members, the President's there, vice President, the whole, the whole kit and kabang.
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B
And if you've got that 86, 47 seashell thing hanging out there, you're going to want extra security. You're going to want to be.
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C
You get the, you get the 86 assassin, assassin roaming free for a year apparently before it was so necessary to take him down. Anyway, we'll get to that in a bit. But yeah, I think they're going to, they really need to go back and rethink a lot of what happened here. Every time you have a crisis, it exposes some vulnerabilities, even ones that go well that you think overall are a success. Certainly ones that don't go well. You've got to go back and look at the stuff after the fact and figure out how to tighten it up, how to adjust, how to modernize for what's coming up.
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B
Why didn't we have agents posted in the stairwell where the guy came down?
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C
Exactly.
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B
Or anybody could have come down from the hotel.
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C
Right. Anyone who attended this thing will tell you that the security to get in was really not very intense. All you needed was a paper ticket and then you walk through the magnetometer. This guy obviously took advantage of those vulnerabilities. He never ever should have been able to get that far past the perimeter. Again, a little artful language here. The Director of the Secret Service saying, well, he was, he was technically picked off within the perimeter. Well, I guess the perimeter is a 60 foot, you know, space on the floor above where the President is. Just an odd way of thinking about it. But I will say the video that they, this release of videos and information is, is insane. And it's something we're only seeing in this Justice Department. So a great topic for this pod. Typically, the Department puts out as few facts as possible in a case that is going to go to trial. If this guy doesn't plead guilty, it goes to trial. You would never see these videos and hear this kind of all these different statements about what this offender allegedly did coming from very high ranking people like the U.S. attorney and the Director of the Secret Service. They're all Saying different things now, fundamentally different versions of the same event, which puts them in a position of contradicting the government's theory, which. You never want that to happen.
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B
Right. Like, you don't come out and say, we're looking at 111 charges and we're looking. We're looking at this. I'll bring all the crimes. I don't care. You wouldn't do that. I remember when, I think it was Mike Sherwin got on 60 Minutes and said they were thinking about seditious conspiracy charges for the Oath Keepers, and Judge Mehta had to call an emergency conference in his courtroom saying, don't say that stuff, man. You can't do that.
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C
Yeah.
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B
But here we have it just happening on a. On a regular basis. We've got Kash Patel tweeting, we've got our man. And then we don't have our man and we've got another man. And that's not the right man either. It's just, it's. First of all, it's detrimental to your case.
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C
No question.
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B
It can jeopardize your criminal prosecution. But also, it's just embarrassing.
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C
Yeah. Yeah, it is. I mean, and it's an administration that's obsessed with their image on social media, probably because that's what the President is concerned with. So they're all playing to that, you know, to that one fiddler, I guess, or dancing to that one fiddler. But it's to their own detriment, and it's to the detriment of the case and the investigation, and they look terrible. Terrible. And it's another. Another way they're abandoning that presumption of regularity, and they're incurring the ire of the courts. This judge who in the hearing yesterday said, what. What is this for? Why. Why are you entering this evidence? Clearly, you're. You're doing this for an audience other than this court. I mean, that's embarrassing. And it puts them back on the defensive. And now here they look like a bunch of rubes out there defending themselves and social. In the social media world over these theories and people who have different opinions of what happened, like, stay above it, don't sacrifice the case. But, yeah, this crowd, they don't. They don't do subtle.
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B
No. And, you know, like you said, it jeopardizes the cases. They're. They're having a real hard time. They're going to have a real hard time with the pipe bomber case because there's a bunch of stuff they're not talking about there, and they're talking about other things that might not be relevant here. And like, if these guys did it, if the pipe bomber is guilty and this guy is guilty and he walks on a technicality because you screwed up the case, because you're trying to care about your image and not the safety of the public or the journalists in the building or whatever. I mean, that's a big giant step away from the rule of law. But talking about image late at night, I think Saturday night, Todd Blanche sent a letter to the judge who's overseeing the case, a lawsuit that has stopped construction on a ballroom. It's allowing the underground portion of construction to go through, but not the above ground portion. And he filed a notice saying to the people suing him, to people suing Donald Trump in his ballroom, hey, if you don't withdraw your lawsuit by Monday morning, we're gonna file a motion to dissolve. And he did. And it came in at like midnight and it was just like, it sounds like Trump wrote it. It's like you have Trump derangement syndrome. It's clear that the we need a ballroom now because of what happened at the White House Correspondents association dinner we have, there's a huge bipartisan chorus of Congress people calling for the ballroom to be built. And again, saying things like just, it's like this weird political hyperbole to get this case stopping, construction of the ballroom tossed out. But that also through gasoline on the fire, that a lot of people are questioning the veracity of the event at all. Right? Because this, all this administration does is lie. But, and not only that, but you know, they're saying things like mere steps away, seconds away from assassinating the President, you know, et cetera, et cetera, when it was two flights up and outside and 60 foot thing to go. So it's just it that I read that, I sent it to you and I said, I know it's the middle of the night, but check this out in the morning. And I wrote it up@moshe.com. i was like, I've never read anything like this. And I've read some really weird filings from this administration, whether they were defendants or the government. But this one blew me away.
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C
You know, to me, I did read, had the same reaction you did. And I think this is just absolutely perfect example of people like the Attorney General, people like the dni, the highest level cabinet officials, Their number one job is to get on the talking points that the President wants out there. The President threw this theory out from behind the podium that night after the shooting when he Left, finally left the building, came back to the White House and held a press conference. And he threw the theory out there for the first time, you could tell ever the salesman. He figured, ah, this is a great argument for me to get my book, my big beautiful ballroom back.
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B
And he even said, I didn't want to say it, but I need a ballroom. And like, if. If he ever says I didn't want to say it, he's totally, you know, he planned it.
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C
Yeah, yeah, for sure. It's the law of opposites he lives by, but, yeah. And then immediately you hear all the flacks, you know, they're all out there the next day saying the same thing. Well, this just makes the case for the ballroom, and of course it doesn't. But Todd Blanche is in the middle of the audition of his life.
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B
Yep.
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C
He is going to do anything, anything possible. And I think we'll talk about this in the next break about the, you know, 87 or 86, 47 case, which is another part of his great audition. So that's what I saw. I read that, that, that letter as being. And the joke of it all is if the ballroom was. Was built tomorrow, all 400, whatever million dollars of it. Okay, does that mean Trump's not gonna go out and hold rallies this year before the midterms or in 2028 in support of whatever candidate he supports there? Not a chance.
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B
And can private organizations like the White House Correspondents association host events at the White House?
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C
Like, not this dinner, which had 2,000 people at it, which would clearly not fit in the ballroom he's building. Not that I'm advocating for a bigger ballroom, but the, the, the concept that, oh, my God, we have to have a ballroom behind the perimeter of the White House so that the President can, you know, stay. Stay in there safe from the population that wants to kill him, is ridiculous. And also, it shouldn't be the way we run a democracy. There's a democracy here. The President needs to get out. People need to see him.
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B
The press shouldn't be paying the president for an event.
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C
Ridiculous. It's ridiculous, but, yeah.
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B
All right. Well, you know, there are many dangerous killers out there, including those who organize seashells on beaches. And we're going to talk about that after this break. Stick around. We'll be right back. At a certain point, you just get fed up with overpaying for wireless. My old carrier kept charging premium prices, and somehow there were always extra costs tucked in there, too. It never really felt simple or transparent, and that's a big reason I switched to Mint Mobile compared to what I had before, it's felt much easier and more trustworthy. I'm spending nothing less. The service is great and I don't miss the bloated bill at all. So please support our show and check out Mint Mobile. You can make the switch@mintmobile.com unjust Mint Mobile is for anyone who's tired of paying too much for wireless simply because the big carriers convinced us that was normal. The premium plans start at just $15 a month at Mint Mobile and all plans come with high speed data plus unlimited talk and text on the nation's largest 5G network. You can bring your own phone number. Your phone you can activate with an ESIM in a matter of minutes and start saving immediately. And there are no long term contracts, no drawn out processes, no nonsense. And that's why I use Mint and you should too. Plus the service is every bit as good as what I had before. My old provider costs more but it didn't give me better coverage or better speeds. Mint continues to save me money every billing cycle and I wish I'd made the switch long ago. So if you like your money, Mint Mobile is for you. Shop plans@mintmobile.com unjust that's mintmobile.com unjust upfront payment of $45 for three month five gigabyte plan required equivalent to $15 a month new customer offer for three months only. Then full price plan options are available. Taxes and fees extras. See Mint Mobile for details. All right everybody, welcome back. Our next story comes from your colleagues. Andy over at cnn and I just don't even. I just don't even know what to say anymore. Former FBI Director Jim Comey was indicted last Tuesday over a photo of seashells officials said threatened President Trump, marking the administration's second attempt to prosecute one of his biggest political opponents. The charges, approved by a grand jury in the Eastern District of North Carolina, where Comey allegedly took the photo, included making a threat against the president and transmitting a threat in interstate commerce. That's according to court documents.
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C
Comey responded to the indictment Tuesday in a video posted to his substack account, quote, I'm still innocent, I'm still not afraid, comey said. And I still believe in the independent federal judiciary. So let's go. And Allison Ms. Now reports that the move to charge former FBI Director James Comey with threatening the president with a picture of seashells shifted into overdrive earlier this month after President Donald Trump fired Attorney General Pam Bondi and named Todd Blanche the acting replacement, according to two people familiar with the effort.
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B
No, that can't be right. It certainly took 11, the full 11 months to do this investigation.
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C
Yes.
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B
Then Attorney General Pam Bondi had pushed her team to keep pursuing the Virginia based charges against Comey for lying to Congress, concluding that the case was significantly stronger than potential charges faced in North Carolina that threatened to kill or harm Trump. And if you think that the lying to Congress charges were significantly stronger, that was a horrible case.
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C
Terrible case. Which no longer exists because it wasn't actually very strong.
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B
Yeah, well, it's mostly because of Halligan. We didn't even get to the strength of the case. But had we, I'm sure it would have been. There was a good chance it was going to be dismissed on vindictive and selective. But this actually makes a really good argument for Comey's attorneys on vindictive and selective for this particular prosecution, along with a couple other things. We'll get to that in a minute. But the threat case, the Seashells case, appeared to have largely been put on indefinite hold a few months after May 2025. They only looked at it for a couple few months. That's when Comey posted The picture of the 8,647 shells and investigators first opened a case to consider if his Instagram posting constituted a criminal threat of harm.
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C
In late March, before Bondi's firing, Justice Department aides were urging that they delay charging Comey on the presidential threat case and wait until the Senate confirmed interim U.S. attorney Ellis Boyle, the permanent head of the federal prosecutor's office in the Eastern District of North Carolina, according to a person familiar with the discussions. But after Bondi was out and new Acting Attorney General Blanche sought to win Trump's appointment to the job permanently, the Seashells case gained new steam. The people said. Damn, damn them. Seashells are looking good now, aren't they? Not so good last week. But Blanche's aides instructed Boyle to seek a grand jury indictment of Comey, and he and a relatively junior prosecutor obtained one in the eastern district on April 28th.
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B
Now, Liz Oyer, who we've had on this show, Justice Department's former pardon attorney, said on Wednesday in a social media post, if the FBI or the Secret Service had believed this was a true threat to kill the president, surely they would have not waited a year to arrest Comey. And she added that legal experts have dubbed the Seashell prosecution, quote, the dumbest case in the history of the Justice Department. And I tend to agree with her, and also disputed Blanches and the FBI director. Kash Patel's public claims that this was a complicated case that investigators have been steadily pursuing the entire time.
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C
If this rate says a complicated case in the current DOJ and FBI, we are in trouble.
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B
I think I posted on on Blue sky was like, well, maybe if Kash Patel hadn't fired all those Seashell experts, the investigation wouldn't have taken us on.
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C
In a press conference Tuesday announcing the new indictment, Patel said the FBI had been investigating the case for the past 9, 10, 11 months. Throw 12 in there, cash. Come on, give us another number. Former federal prosecutors and Secret Service officials have pointed out that federal agents felt no urgency to arrest Comey as a dangerous threat to Trump in the spring and summer of 2025, which is the norm in presidential threat cases. The FBI had done some basic groundwork and evidence collection on the Seashells posting after Comey returned from his beach vacation in North Carolina and Secret Service agents had interviewed Comey about his intent, the two people said, but they did not arrest or charge him then. Now I want to just throw in here to remind people he was in North Carolina, sees this thing, takes a picture, posts it. He was immediately contacted by the service and he got in his car like, I don't know, within the hour or something and started heading north to Virginia so he could meet with them either that day or the next day. He ended up meeting with them the next day in their office, but they did interview him on the phone that day. This is a guy who made himself available, like, immediately, and then they let him just go about his life for a year before this thing came back. That is no threat, folks. No threat.
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B
Yeah, they didn't arrest him then, just like they didn't arrest Abrego Garcia in that 2022 traffic.
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C
You know, there you go.
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B
They only bring these cases when it's politically expedient. Now, that timeline that you just laid out roughly aligns with the DOJ's investigation into Comey's alleged false statements to Congress. That case was dismissed not just because Halligan, the then interim U.S. attorney, was found unlawfully appointed, but also because Halligan had presented that case to a grand jury by herself and her name was the loan signature on the indictment. This case has similarities, but also key differences. Bondi appointed ellis Boyle, interim U.S. attorney for the Eastern District of North Carolina on August 7th of last year, and he was sworn in BY his father, U.S. district Judge Terrence Boyle. Ellis Boyle has since been nominated to the position, but has not yet received Senate confirmation. He continues to serve on an interim basis. And questions remain about whether he's legally appointed because he has served on an interim basis for more than 120 days. But. But he is not the only one who signed it, I don't think. Right.
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C
I think that's right. I think that's what the junior prosecutor did. Whether he is serving lawfully, however, should not make a difference in the new case against Comey. While Halligan's unlawful appointment resulted in a dismissal, history is unlikely to repeat itself here because Boyle's name is not the loan signature on the new indictment.
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B
There you go.
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C
The indictment was signed by Matthew Petracca, an assistant US Attorney who has worked for a short time as a federal prosecutor before joining the Department of Justice. He was elected as a Republican to his local city council, and he practiced family law in New Jersey.
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B
Got it. All right. Okay.
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C
Got a lot of newbies navigating grand juries up and down the east coast, apparently.
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B
Yeah, we do. But Bloomberg Law is reporting that the DOJ is pursuing additional charges against Jim Comey for allegedly leaking classified information after the former FBI director's unrelated indictment this week in North Carolina. That's according to two people familiar. This investigation is tied to the dissemination of documents to Columbia University law professor Dan Richmond. We've talked about him. He was part of the first failed indictment. If successful, it would be the Trump DOJ's third time indicting Comey since last fall.
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C
Ever since Todd Blanche was elevated to acting Attorney General, there have been active meetings on the classified information case between the Deputy Attorney General's office and a small team of Eastern District of Virginia prosecutors, said the people who spoke anonymously about Sens. Deliberations. It hasn't been decided if the department will present an indictment to a grand jury in Eastern Virginia, where Comey resides, or if the case could be pursued in a different location, such as in Richmond's home of New York.
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B
Good luck in New York or Eastern Virginia. But, yeah, I thought what was interesting and, you know, to go back to the Seashells case, there's, you know, something, there's an element of vindictive and selective prosecution that has to do with similarly situated people doing similar. Similar crimes. Right? Quote, unquote.
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C
That's right.
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B
And Blanche has been asked several times if he was going to investigate or indict Jack Posobiak for tweeting 8646. And he said, no, you don't know what went on in that grand jury room. And Kash Patel even got up to the podium at one point and started telling us what was presented to the grand jury, which is a massive violation of Federal Rules of Criminal Procedure. 6e. Right. Rule 6e. You can't divulge what was presented to the federal grand jury. So right there, right there, those are two massive issues that this case, other than the fact that it's seashells, is going to run up against.
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C
Right, right. And there are massive constitutional issues because I am sure at some point he'll claim First Amendment as a defense. This was simple, you know, speech. Actually kind of a satire comedy falls into that category as well. So I think they'll have a super hard time getting past that. And then finally, even if this thing does get to a jury, which I really do not believe it ever will, you've got to convince a jury that he willfully and intentionally put that statement out in an attempt to kill the president. It's absurd.
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B
And that 86 means to kill.
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C
Right, of course, of course. How do you conclude beyond a reasonable doubt that 86 is commonly understood to mean to kill? So I really, you know, this thing will die an embarrassing death for DOJ in some motion filing.
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B
Yeah, but again, not the point. The point is to drag him out, make him spend money on filings and, you know, make his life tough for a couple. For a couple months. All right, we have more that we need to get to, including a story from the New York Times about, you remember that really, really kind of terrifying Office of Legal Counsel memo saying that the Presidential Records act doesn't count because of separation of powers and we don't have to preserve anything. We can write our own history here at the White House. So we're going to talk about a couple of government watchdogs who are suing over this legal memo and other things. But we have to take a break, so stick around. We'll be right back.
- [32:37]
C
Welcome back. Okay, our next story comes from the New York Times, and it has to do with the recent Office of Legal Counsel memo claiming that the President, President doesn't have to preserve records under the Presidential Records act because Congress can't tell him what to do. The Times reports that two government watchdogs sued President Trump and the White House on Friday over internal guidance that instructed that some text messages exchanged between officials could be deleted despite a law generally mandating the preservation of presidential records. The watchdogs, Citizens for Responsibility and Ethics in Washington, otherwise known as crew, and the Freedom of the Press foundation, also asked a federal judge to overrule a separate but related Justice Department memo, which declared Unconstitutional. A long standing federal law requiring the safeguarding of presidents records, including text messages. The White House guidance cited the memo.
- [33:37]
B
Yeah, of course they did. Now, their lawsuit comes amid a torrent of accusations that the Trump administration has disregarded record keeping and document disclosure. Really? The guy who eats documents and flushes them down the toilet keeps classified records in his ballroom? His toilet? No. Okay. Even as the President and his officials have sought to transform the government and push the legal bounds of their power, they have displayed a particular willingness to skirt record keeping requirements on text messages exchanged among top officials. In their complaint, the two watchdogs said the deficient instructions from the White House would result in the irreparable loss or destruction of presidential records.
- [34:15]
C
On April 1, lawyers at the Justice Department asserted that the Presidential Records act, which became law in 1978 after the Watergate scandal engulfed Richard Nixon's presidency, was unconstitutional. The act aggrandizes Congress at the expense of the executive branch and presidential powers. Lawyers claimed the law stipulates public ownership of the presidential records and mandates that documents that reflect the performance of the President's duties and record White House deliberations, decisions and policies be preserved and maintained.
- [34:53]
B
Yeah. Now, a day after DOJ issued that memo, the White House issued internal guidance telling employees that text messages need not be preserved unless they are the sole record of official decision making. The guidance argued that texting had become akin to speaking every day, and that preserving all of it would create an enormous technological burden. Don't you have AI now that you're Anyway. While chilling the ability of presidential advisors to provide candid advice. Just call them, man. It also said that complying with the requirements of the Presidential Records act would be immensely time consuming and costly. Following the law is just a. That's a big bother to us. Yeah.
- [35:32]
C
And we need that billion dollars a day to fund what's going on in Iran. So we can't be, you know, keeping text messages. That's just too much.
- [35:40]
B
Exactly.
- [35:41]
C
The lawsuit follows another legal challenge to the Justice Department memo by the American Historical association and American Oversight, another nonprofit watchdog, which led to the disclosure of the April 2 guidance. Jason R. Barron, a former director of litigation at the National Archives and Records Administration, which manages presidential and agency records, called the White House guidance deeply flawed. He said it gave employees wide latitude in deciding whether or not to preserve records.
- [36:11]
B
Yeah. And he also questioned the White House claim that text message retention was burdensome, citing detailed national archives guidance from 2023 on how federal agencies could automate. Oh, what did I say? Automate. The Capture of official text messages. Now, Trump has long shown little regard for records laws. He was known to tear up White House documents and leave them on the floor during his first term. Politico reported in 2018 that some administration officials even had tape back together shredded documents to ensure compliance with federal laws. At the end of his first term, Trump took presidential records, including classified documents, to Mar A Lago, leading to his criminal indictment, which a judge later dismissed and the special counsel dropped. As Mr. Trump re entered the White
- [36:52]
C
House in August, the Department of Homeland Security told a government watchdog that the agency, quote, no longer has the capability to produce copies of text messages on its immigration crackdown that were sent among its top officials. It was later revealed that the department ditched software that enabled automatic capture of officials text messages, citing national security concerns, and instead resorted to manual screenshots.
- [37:20]
B
So let's get rid of the thing that makes it easy and then complain that it's too hard.
- [37:24]
C
Yeah. Ms. Harper and Mr. Barron warned that White House records, even from Mr. Trump's first term, could never be released if the Justice Department's assertion that the Presidential Records act was unconstitutional stands. That means accounts of internal White House deliberation on a lethal strike on AN Iranian general, Mr. Trump's reaction to impeachment proceedings and the president's attempts to overturn the 2020 presidential election could be lost. Ms. Harper said.
- [37:53]
B
That's the goal, isn't it? Yeah, that's the goal.
- [37:57]
C
He famously writes nothing down. He doesn't like people who take notes in his presence. This is a guy who does not have any respect for records. Not only does not respect him, he's afraid of them. So, you know, and I'm sure he feels like, well, tough. I don't have to do it because none of the laws apply to me because I'm the king. But, yeah, this is really the, the, this is erasing our history. It's obliterating the property of the citizens of this country. Those records are ours. They're not ours.
- [38:31]
B
That's our property.
- [38:32]
C
That's right.
- [38:33]
B
Yeah. So we'll watch that crew lawsuit and keep you posted on it. All right, we just have a couple more quick stories before we get to listener questions, but we have to take one last quick break. So everybody stick around. We'll be right back. All right, everybody, welcome back. We have more reporting on Oversight before we get to listener questions. And if you have a listener question, there's a link in the show notes if you want to submit a question to us. This story comes from The Guardian the US Department of Justice's Office of the Inspector General announced on Thursday it's launching an audit of the Justice Department's compliance with the Epstein Files Transparency Act. In a news release, the Deputy Inspector General, William M. Blair, who the statement said is performing the duties of the Inspector general, said the preliminary objective of the internal inquiry is to evaluate the Justice Department's process for identifying, redacting and releasing records in its possession as required by the Act.
- [39:33]
C
The review will look at the Justice Department's identification, collection and production of responsive material, as well as its guidance and processes for redacting and withholding material consistent with the requirements enumerated in the act and its processes for addressing post release publication concerns. Quote, if circumstances warrant, the IG will consider addressing other issues that may arise during the course of the audit. Statement Statement added the Justice Department did not immediately respond to a CRA to a request for comment.
- [40:07]
B
Yeah. And from the Post, the gao, the Government Accountability Office is also planning to examine the DOJ's handling of the files related to Epstein after a bipartisan group of senators raised concerns that the Department violated the law. Senator Merkley, Murkowski and Lujan of New Mexico, Dick Durbin as well. Last month, they all asked the gao, which is an independent agency that's part of the legislative branch. Okay, this is Congressional, not executive, asked him to look into how the Department reviewed the files, quote, and the resulting failure of the Department to follow the law, respond to Congress and protect victims. That's what Merkley said Tuesday. And he also added that the GAO has agreed to do so.
- [40:48]
C
The GAO is the second agency to agree to examine the Justice Department's handling of the Epstein files and compliance with the law. The Justice Department Inspector General's office said last week that it would audit how the Department identified, redacted and released the Epstein records after Merkley, Mercallo, Durbin and other senators asked the Inspector General to do so. The GAO told Merkley in a letter that it will coordinate with the Inspector General's office to ensure that the two agencies do not duplicate each other's efforts.
- [41:17]
B
Yeah, and so it's important to note that Blier, who's the acting OIG right now, because our good friend Michael Horowitz has been moved to the Federal Reserve, who he was the Dojo IG for a really long time. But this guy Blier, I think he's been with the agency since 2007. So he's been there quite a while. So we'll see how this goes. And also our friend Katie Fang has filed a lawsuit, very novel lawsuit, saying that she's unable to do her job because the Department of Justice has failed to comply with the Epstein Files Transparency Act. And so she's suing to get a special master to look through the files to see if they were withheld and redacted properly and order their release. If they're not. We're going to keep an eye on that lawsuit. And I'm going to talk to Katie because I have lots of legal questions for her. On today's episode of the Breakdown on Sunday. It comes out at noon Pacific time, 3pm Eastern on the Midas Touch Network. So there's all sorts of people trying to get, trying to get at these files. I've filed multiple Freedom of Information act request lawsuits along these lines. And, and you know, we're just going to keep hammering away until we get some sort of an answer from the Department of Justice about why it's withholding documents.
- [42:37]
C
Yeah. And look, this needs to happen. I have all kinds of doubts as to these two efforts. I mean, the GAO will have an uphill climb because they're basically coming from the legislative side. So that'll. You'll get all the standard Department of Justice, you know, resisting complying with anything Congress asks for. And, and the IG's office is just like it's, it has different divisions. This one has been assigned to the Audit Division. If you look back over the IG reports that have been released so far this year, it's almost entirely audits, audit reports. The Audit Division is not the division that typically does large and complicated investigations, particularly of politically sensitive things, investigations predicated on like fraud, mismanagement, bad decision making,
- [43:33]
B
like the Carter Page FISO warrant Inspector General report was not done by the Audit Division.
- [43:39]
C
No, no, no. All done by the Investigative Division. And that division has no role in this, according to Bill Blier. So, you know, that's the division that has people theoretically who are capable of interviewing the Attorney General and the former Attorney General and people like if we expected some sort of substantive evaluation of what happened here with, you know, going all the way back to the decisions in Southern Florida and Alex Acosta's office in 2008 and then through New York in 2019, Southern District of New York into up to present day with the release of the files. Like that's not going to happen from this effort.
- [44:19]
B
No. And that's interesting too, because to, to get standing, Katie Fang has to show that there's no other remedy to get the files released. And it seems like an audit as opposed to an actual full blown investigative effort by the inspector general wouldn't cut it. So I think that's important to note. All right, thank you. All right, it's time for listener questions again. We have a link in the show notes if you want to submit a question to us. Andy, what do we have this week?
- [44:47]
C
We got two interesting ones here, and this first one comes with, quite frankly, an introduction I've not heard of before. So I thought it was novel, and that always catches my attention. This one comes to us from a
- [44:59]
B
hint on how to submit your questions. Yeah, exactly.
- [45:02]
C
Susan says, Dear Allison and Andy, I recently caught up on some late episodes of Unjustified while getting a two and a half hour root canal done at the dentist office in order to pass the time. It was a miserable experience, save for the wonderful content in my years, and it helped me get through the ordeal.
- [45:22]
B
Okay, so that's. We should maybe pitch our podcast that way. Getting a root canal. Listen to Unjustified.
- [45:29]
C
The show's not great, but it really rips when you're comparing it to getting teeth ripped out of your head.
- [45:35]
B
It's a banger when you're getting a root canal.
- [45:38]
C
So really, maybe not the best, you know, on a Sunday morning, but when you're in the dentist chair in extreme pain, you will be clinging to Unjustified. That's what I'm saying.
- [45:48]
B
We maybe can maybe submit for an award, a Webby Award for the best podcast to listen to while getting root canal.
- [45:55]
C
Best podcast during root canal. We have a listener who will verify that.
- [45:59]
B
Yeah, we've got a voucher.
- [46:01]
C
Yeah. So, Susan, thank you for that. I really. I needed that today. Okay. So she goes on to say, I've been hearing a lot about potential future disbarment actions, especially in light of DOJ attorneys bringing charges against Comey in his most recent indictment. Can the Justice Department overstep and legally reverse any state bar decisions, thus making it easier for these prosecutors to practice law unfettered in the future? Or is disbarment really a permanent black stainless steel that in this situation should rightly stand up against these rogue prosecutors in perpetuity? Well, that's a good question. As you know, bars every. To be a practicing attorney, you must be certified by a state bar. The states run the bars. There is no federal bar. Okay. So you have to be certified in some state, and there's a big investigation that goes along with it. You submit an application and they do like a background check and all this stuff. And of course, you have to pass the test unless they waive you in some states will waive you in if a lot of experience somewhere else. Point is, if in that application process it turns out that you've been disbarred somewhere else, you're not getting, once you get disbarred someplace, you basically not going to pass bar review anywhere. So I don't think that DOJ can actually override that process. Once you lose your, you get your ticket punched, as they say, and you lose your license, think you're done anywhere in the country in terms of actually practicing law. Now, lawyers can go around, do a lot of other kinds of stuff, but it can't be going to court and representing people.
- [47:40]
B
The DOJ is trying though. Pam Bondi put out that memo saying that the Department of Justice will intervene and investigate itself when a bar associate state bar association is trying to investigate a Department of justice lawyer that obviously at some point I'm sure will will be litigated totally as to whether that's even legal and lawful. But also remember, you don't have to have a law license to be like the attorney general or to work at the Department of Justice. You don't have to if you're disbarred, you still get to work for the Trump administration. Now, if you want to prosecute a case, I don't know if even US Attorneys are required to.
- [48:20]
C
They are to be part of it.
- [48:21]
B
Then they are. Then that. Yes. And that's why they're putting out ads on Craigslist for AUSA is around the
- [48:28]
C
country less than one year experience.
- [48:30]
B
They can't find anybody. But top DOJ level officials will still be able to keep their jobs if they're disbarred. They just won't be able to do stuff after the fact. But do they really need to.
- [48:42]
C
Yeah, you can't quote, unquote, practice law, so you couldn't sign any documents that get submitted. You can't be the guy who signs for the, for the acting U.S. attorney who's not legally in his position. You can't be that guy anymore.
- [48:53]
B
You can work on Fox News.
- [48:54]
C
You can't go into court, you can't go in front of a judge. You also have to be past the state bar to be admitted. There is a. Okay, I know I said there wasn't this. There is a, quote, federal bar, you have to be admitted for practice in the federal court, but the requirement is that you've already been admitted into a state. There's no extra, there's no like extra test or anything. Like that you just must be.
- [49:18]
B
What makes a USA and U.S. attorneys have to, have to have a, a, a bar license.
- [49:24]
C
Correct. Correct. So anyway, it's a complicated system. I don't think DOJ will be successful in that effort. Basically what they're saying is like, we'll do the investigation. That's like a fancy way of saying we're not going to share any information about our attorney to use state bar, whatever, as you're doing your investigation. Which they would need. Right. The state would need some records as to what the attorney did or said that was objectionable. And, and typically DOJ partakes in that process. But I think what you're going to see them now is pulling back and trying to be more obstructive, which is wrong.
- [49:57]
B
Great question. And sorry about your root canal. Hope you're feeling better.
- [50:00]
C
Yes, yes. Okay. Hopefully no dry socket. That's the one thing you're worst.
- [50:05]
B
Yeah, that's the worst.
- [50:07]
C
All right, next question comes from Mary Ellen. Mary Ellen says the President doesn't seem to be in much of a hurry to replace Pam Bondi as Attorney General. Perhaps he's content to keep his defense attorney, Todd Blanche, doing the job indefinitely. What law applies here? Ooh.
- [50:23]
B
You know the answer to this?
- [50:24]
C
Heck, yeah. It's the federal.
- [50:28]
B
How would you know the answer to this, Andy? Was there some time when you were an acting Attorney General?
- [50:33]
C
There was some time when I was an acting FBI director. So, you know, you said, that's right.
- [50:38]
B
Acting FBI director. Does the same law apply to acting directors of the FBI as it does to an acting Attorney General?
- [50:47]
C
It is the same law, but it has all kinds of different pieces that apply to different jobs, which is why this one's a little weird. But it's our favorite. It's the Federal Vacancies Reform act of 1998. Everybody's like, oh, thank God. That one's so exciting. I love it when he goes to.
- [51:06]
B
The crowd goes wild.
- [51:08]
C
Yes. Okay. Under the Federal Vacancies Reform Act, I'm, I'm adjusting my nerd glasses here. An acting Attorney General can serve for 210 days. Not 211, not in longer than 209. It's 210. You get 210 days. Now you could get a little more. If they nominate someone else for the job during that time and the nomination is still pending, they haven't gotten that person, hasn't got confirmed yet. You can stretch it past the 210 to get to that confirmation, but that's pretty much it. The time clock starts running and the date of the vacancy. So it would be the day that Pam Bondi walked out of the building. Yeah, and that would be it. So he gets 210 days plus whatever extension.
- [51:56]
B
And it's kind of. The litigation would be touchy. But I remember in Trump's first term, after a meeting with Putin, he said, I really like acting. I like acting. People in my. People in my administration, I like acting. And, you know, there's, there's a good reason for that. It's. People can get moved around. They, they can angle, they can. They have a. Basically a sort of Damocles hanging over their head as to whether or not they're going to keep their job, let alone get the one that they're angling for. I mean, we've seen it in Texas, even with Senators Paxton and Cornyn. Right. He hasn't endorsed either one of those yet because he's waiting for one of them to dazzle him or upset him so that he can choose who he's going go after. So he keeps people on the hook that way.
- [52:45]
C
Yes. Or it's because he thinks they're actors and he loves a celebrity. So, I don't know.
- [52:52]
B
Central casting.
- [52:53]
C
Yeah, exactly. No, I think, I think you're absolutely right. The man loves an acting because he feels like he can fire them more easily. And, you know, think about it. Todd Blanch, look, from this week alone, Todd Blanche is swinging for the fences. Here he is in the audition of his life. He's doing. He's bringing cases that should not be brought. He's saying dumb things about a big important case that could end up going to trial. Do you think Todd Blanche does all those things once he has the job as the permanent? Maybe a little bit less so. His desperation to get the job is so high right now, he's willing to do just about anything. And that is perfect for one President Donald Trump.
- [53:31]
B
That's what he likes. That's the way he likes it. Very good questions this week. Thank you all. Please continue to pepper us with your questions by clicking the link in the show notes and filling out the form. You can submit your questions to us and we'll see if we can read them on the air. Man, I don't. Every week I'm like, I don't know if it can get weirder. And it gets weirder.
- [53:52]
C
And it does. Weirder and weirder. Yeah, I don't know. We guess we just. This is our chance to sort through the weird. Once a week, we convene, we prioritize the Weirdest and go through it and try to make sense out of it. So, yeah, I'm glad we're. I'm glad we're here and we're able to do that. That.
- [54:11]
B
Yeah. Who to thunk. We're like, we. Maybe we should do the podcast. Like, just, Just keep an eye on Trump's Justice Department. Who boy? Who boy?
- [54:20]
C
It was either that or something involving auto repair. But so we went with the DOJ thing and look at. Look what happened.
- [54:25]
B
Doj. I'm also going to keep an eye on what happens with Kash Patel giving away grand jury evidence and information at a lectern and to see how much longer he keeps his job. But again, I don't think the Trump. I don't think Donald Trump is bringing these cases to win them. You know, he's. He's bringing them to just be a thorn in the side to people.
- [54:51]
C
Yeah. Miles. Miles Taylor had an interesting substack this week about really. Trump wanted this Comey Seashell case for the. For the mugshot. That's what it was all about. He wanted Comey to get arrested and brought in. If you saw they actually obtained an arrest warrant for him rather than just a summons, which you would normally do in a situation, not that there's ever been a situation.
- [55:12]
B
Really sad when they found out that the court let himself turn himself in.
- [55:16]
C
Yes, yes. I'm sure that was massively frustrating. If you remember the last time it was a summons. And despite the fact that it's just a summons, which is like you show up at an appointed time, they decided they wanted to send big, beefy dudes from the FBI Washington field office to go arrest him at his house in full SWAT gear. And the supervisor of the squad, they asked to do it, said, I'm not. That's ridiculous, and I'm not sending my people to do it. And they fired him. Him done.
- [55:41]
B
Oh, really?
- [55:42]
C
Career over. Yes. So I was that for the Seashells
- [55:48]
B
thing or for the.
- [55:49]
C
No, that was for the other indictment, the first indictment. So I was really worried that that might happen again. They tried, and they actually got an arrest warrant. I think probably because it would have made a more forceful argument to some reluctant FBI supervisor. But nevertheless, they let you know Comey didn't have to go through that, which was a good thing.
- [56:12]
B
Good. And the. The walls ran red with ketchup at Mar A Lago.
- [56:15]
C
Oh, heck, yeah.
- [56:17]
B
That brings me a little bit of joy. That brings me. If one of his only reasons was to get that mug shot and get that perp walk and he was denied it again. They'll try again with this classified document stuff. Watch, watch.
- [56:28]
C
They're not going away.
- [56:29]
B
All right, everybody, thank you so much for listening. We really appreciate you supporting independent media. Make sure you follow Andy. He's on Blue sky now at the Real McCabe and he's got a substack called the Real McCabe. I've been recommending it over on my sub stack and you can check that out. And keep stepping out, stepping out into the public eye, my friend.
- [56:48]
C
Trying to come out of my cave here. It's not easy for me. I'm a cave dweller, as you know. But I'm trying. I'm working on it.
- [56:55]
B
Awesome.
- [56:55]
C
Trying to be a normal human being.
- [56:57]
B
We appreciate it. Everybody will see you next week. I'm Alison Gill.
- [57:01]
C
And I'm Andy McCabe.
- [57:03]
B
Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey with art and web design by Joelle Reader at Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds and the show is a proud member of the MSW Media Network, a collection of creator owned independent podcasts dedicated to news, politics and justice. For more information, please visit mswmedia.com.