Podcast Summary: "Unlawful Orders" (UnJustified, Ep. 45)

Date: November 30, 2025
Hosts: Allison Gill & Andrew McCabe
Featured Guest: Virginia Burger (Project on Government Oversight)

Overview

This episode of UnJustified delves deep into recent dramatic developments at the intersection of law, politics, and civil liberties under the Trump administration's Department of Justice. The main focus is the unprecedented criminal investigation launched against six members of Congress who publicly reminded military and intelligence community members of their duty to disobey unlawful orders. The hosts examine the erosion of civil-military norms, the weaponization of legal processes for political retaliation, and wider implications for the rule of law, with expert insight from Virginia Burger of POGO.

Key Discussion Points & Insights

1. Congressional Warning & Blowback (00:37–02:00)

• Summary: Six members of Congress released a PSA reminding service members and intelligence community workers of their obligation to refuse unlawful orders.
• Administration Response: President Trump called for these lawmakers’ deaths and directed the DOJ to open criminal investigations into them. Senator Mark Kelly, one of the six, has publicly opposed the probe, prompting Secretary of Defense Pete Hegseth to threaten recalling Kelly to active duty for court martial.
• Opening Framing (Allison Gill):
  “The FBI has opened an investigation into six members of Congress for reminding active duty service members and employees of the intelligence community that they do not have to obey illegal orders. This is unjustified.” (00:37)

2. Military Law, Unlawful Orders, and the UCMJ (02:02–15:35)

The Duty to Disobey (02:49–03:50)

• Virginia Burger: Military oath has a built-in requirement to not follow unlawful orders—Nuremberg defense is invalid in U.S. law.

  "If it's an unlawful order, you must disobey it because the Nuremberg defense does not stand in the United States." (02:49)

• Real-World vs. Public Perception: While the public imagines dramatic scenarios (e.g., orders to shoot protesters), most unlawful orders in day-to-day service are mundane (falsifying records, violating procurement laws).

Identification of Unlawful Orders (03:50–05:48)

• Virginia: New recruits and officers are taught to identify both obvious and subtle unlawful orders. The public and the President are focusing only on dramatic hypotheticals.

  "You are taught the big ones, but you're also in these discussions about...seemingly lower-level issues that people are going to see every day." (05:23)

Senator Kelly's Unique Status as Military Retiree (05:48–10:06)

• UCMJ Applicability: Retirees maintain some privileges—and remain subject to UCMJ, making Kelly technically vulnerable to recall and court martial, though it’s highly unusual and typically handled by civilian courts.
• Complications of Recall: Practically, recalling a senator and integrating him back into the military system is legally and logistically unprecedented.

  "Where are they recalling him to?...Who is signing his check in sheet and saying, welcome, Captain Kelly? Like, where is he going?" (09:05)

First Amendment and Legal Defenses (10:06–15:35)

• Free Speech: Both McCabe and Gill emphasize that the lawmakers' PSA is classic First Amendment–protected speech—federal courts should shut down prosecution.

  McCabe: “This is so clearly First Amendment protected speech as far as I'm concerned. It's political people making a political statement, period.” (10:32)

• Barriers to Prosecution: The process of recalling and charging Kelly is rife with legal, procedural, and constitutional obstacles.
• Undue Command Influence: The President’s public intervention likely taints any potential military proceedings.

  Virginia: "Is Trump signing the charge sheet? So like, there's so many intricacies here that I think are unprecedented..." (12:13)

• Summary Judgment Prediction: Virginia predicts any attempt to indeed prosecute Kelly or the lawmakers would be thrown out early in the military justice process.

Military-Civilian Parallel Investigations & Double Jeopardy

• Typically, federal and military prosecutions don't proceed in parallel except in rare, high-stakes cases (14:16–14:38).

Memorable Moment (Teaching Duty to Disobey)

• Virginia Burger:

  “I advised others to not break the law. I was a war fighting instructor in Quantico. ...If we're. If this is the standard, then I will go to the next court martial after Senator Kelly and so will every other one.”* (15:07)

3. Project on Government Oversight (POGO) & Civic Accountability (15:35–16:51)

• About POGO:
  "We love people to be engaged with our content. You can find us at pogo.org. Giving Tuesday's coming up—would love to be supported because we do great work and it's only getting more important every day to advocate for government accountability and oversight." (15:51–16:51)
• Lighthearted Banter:
  Allison jokes, “You would be recalled to duty and court martial,” for not doing a fundraising plug. (16:34)

4. Recent Major Legal Losses for Trump’s DOJ (18:32–34:53)

Dismissal of Comey and Letitia James Cases (18:47–33:59)

• Judge Curry’s Rulings: Both cases dismissed due to unlawful appointment of interim U.S. Attorney Lindsey Halligan.
• Appointments Clause: Judge cites Supreme Court precedent, including Clarence Thomas; appointment was invalid because Attorney General exceeded authority under 28 U.S.C. 546.

  Allison: “The Attorney General's authority to appoint an interim U.S. attorney lasts for a total of 120 days...If the position remains vacant...the appointment authority shifts.” (20:05)

• Remedy: All actions by Halligan are void; charges dismissed “without prejudice,” meaning they could be re-filed but with “statute of limitations” complications.
• Memorable Quote (Judge, via Allison):
  “It would mean the government could send any private citizen off the street, attorney or not, into the grand jury room to secure an indictment...That cannot be the law.” (25:54)
• Likelihood of Refiling: Both hosts doubt a qualified prosecutor would risk reputation on potentially retaliatory charges.

Trump’s RICO Lawsuit Against Hillary Clinton, Comey, Others (34:53–44:13)

• Appeal Fails: 11th Circuit (including a Trump appointee) upholds dismissal and $1 million sanctions for Trump’s “shotgun pleading.”

  “Many of Trump's and Haba's legal arguments were indeed frivolous.” (37:50, quoting opinion)

• Implications: Shut down narrative of “activist Democrat judges” since decision upheld by conservative judges.

  Allison: “But the fact that Prior, that Judge Pryor upheld Middlebrook's and another Trump appointee, Brasher, upheld this, it says to me that he's going to have a lot harder time.” (43:24)

• Unlikely Supreme Court Review:
  Andy: “Their lane was...there’s absolutely no reason to conclude that the district court got this wrong. ...it makes it a much, much harder appeal now to the Supreme Court.” (44:03)

5. Patel’s Job in Jeopardy? (44:27–50:58)

• Kash Patel’s Role: Reports Trump may fire Patel as FBI Director after “boondoggle” misuse of resources and mishandled press conferences.
• Possible Successor: Andrew Bailey might be elevated under Vacancies Act after 90 days.

  Andy: “I wouldn't even call it an unusual role of co deputy director. I'd call it a never before existed role of co deputy director.” (49:23)

• Patel’s Gaffes: Early, false statements about high-profile investigations; repeated public missteps.

  Allison: “He gave a press conference...‘We're going to track him down. ...’ But they already had the shooter in custody.” (48:57)

6. Breaking News: Judge Reopens Contempt Proceedings (50:59–54:00)

• Context: In a rebuke over the illegal deportation of detainees (Alien Enemies Act case), Judge Boasberg orders declarations from all decision-makers after DOJ tried to pin blame on Kristi Noem for ignoring a court order.
• Potential Outcome: Referrals for contempt prosecution against Noem or others remain on the table.

  Andy: “Boasberg is not going to...let this thing fade away. ...He’s going to keep pushing to have this come to some sort of judicial resolution.” (53:27)

7. Listener Q&A Highlights (54:00–64:13)

Can officials be sued for retaliatory/vindictive prosecutions?

• Short Answer (McCabe): Almost never. Presidential immunity is very broad, and even lower officials enjoy substantial shielding—"Bivens" actions are only possible for clear, egregious constitutional violations (uncommon in these circumstances).

  "Courts are loathe to go after prosecutors for basically making bad decisions in the course of a prosecution." (57:55)

New Laws Allowing Claims Against DOJ Actions

• On Retrospective Laws: A recent measure allows senators whose phone records were subpoenaed (re: Jan. 6) to file for damages, but doesn’t actually make prosecutors’ past actions illegal—no ex post facto problem.

  "This new law, it's not actually making something illegal ex post facto.... It’s just giving people the right to sue about it.” (63:18)

Hosts’ Closing Reflections

• Holidays and Public Service: Appreciation for listeners, especially those with loved ones serving far from home.

Notable Quotes

• Virginia Burger (on UCMJ):
  "If it's an unlawful order, you must disobey it because the Nuremberg defense does not stand in the United States." (02:49)

• Andrew McCabe (on First Amendment):
  “This is so clearly First Amendment protected speech as far as I'm concerned. It's political people making a political statement, period.” (10:32)

• Allison Gill (summarizing the legal irony):
  "Be careful what you wish for, because someday the shoe might be on the other foot. Well, here the shoe is on the other foot, my friends. Judge Cannon's decision being used here against Trump and his cronies." (24:13)

Timestamps for Key Segments

• 00:37 – FBI investigation into six Congress members' PSA on unlawful orders
• 02:49 – Virginia Burger explains legal and ethical duty to disobey unlawful orders
• 05:48 – Discussion of Senator Mark Kelly’s unique status as military retiree
• 10:32 – McCabe: Lawmakers’ statement protected by First Amendment
• 18:47 – Analysis of dismissals of DOJ cases against Comey, Letitia James
• 34:53 – Trump’s RICO lawsuit against Clinton, Comey, others: Appellate defeat
• 44:27 – Reporting on Kash Patel possibly being ousted as FBI Director
• 50:59 – Breaking: Judge Boasberg reopens contempt proceedings on deportations
• 54:52 – Listener Q&A: Immunity, Bivens suits, and retroactive laws
• 64:16 – Hosts reflect and close

Tone & Style

The episode is incisive yet conversational, blending sharp legal analysis with humor and personal anecdotes. Allison’s and Andy’s dynamic with Virginia Burger is collegial, probing, and insightful—grounded in real-world experience and policy expertise. The discussion is analytical, skeptical of official narratives, and marked by a sense of urgency regarding threats to civil liberties and democratic norms.

For Further Information

• Project on Government Oversight: pogo.org
• UnJustified Podcast/Show Archive: mswmedia.com

(Summary structured and formatted for clarity and easy review; attributions and timestamps provided for precision. Suitable for listeners who want to fully understand the episode's content and context without listening.)