Alison Gill (2:37)

Huh. So they all used to report to the deputy director of the FBI. If we. If I only knew someone who had served as deputy director of the FBI that might have some information or an opinion about this. Do you. Do you. Do you know anybody?

Andy McCabe (2:50)

I. Not only do I know several former FBI deputy directors, I'm on good terms with all of them. I actually was one. So I'm happy to share with you all of my biting comments about this strategy, but let's. Let's press through the rest of the information.

Alison Gill (3:07)

Yeah, absolutely. So the New York Times continues that this represents a shift after a quarter century of FBI, of an FBI run under a structure put in place by, guess who. Robert S. Mueller III. After the September 11 attacks, the model was established to address administrative lapses and bolster efforts to deter terrorism. In Mr. Patel's iteration, he has appointed a total of five branch directors, eliminating the executive assistant directors who previously managed the FBI on a daily basis. The swift decision to alter the hierarchy of the FBI comes just weeks after Patel was confirmed, which raises obvious questions among former and current agents about the thoroughness of the plan. In particular, they said they worried that the changes could result in. In less coordination between field offices and create intelligence gaps. Kind of the whole reason Robert Mueller organized it.

Andy McCabe (4:02)

That's right. That's where I've heard that before.

Alison Gill (4:05)

Still, even former senior executives, skeptical of Patel's leadership and relative lack of experience. That's a nice way of putting it. Believe that the new model, while imperfect, could be an improvement and certainly reduce the deputy director's immense responsibilities. Hmm.

Andy McCabe (4:20)

In theory, the move could help the new deputy director, Dan Bongino, who has never worked for the FBI and has a limited understanding of its complex and global operations, transition into an important role that has traditionally been filled by a senior agent. The changes could free him up more to handle domestic and international investigative and intelligence activities, among other things, like working out and doing a podcast. Okay, no, that wasn't in the article. I added that. Sorry. The previous deputy director had dozens of direct reports, including all the top agents in the field. As a part of his plan, Mr. Patel named five acting branch directors to essentially run the FBI after the former executives in charge of those programs were abruptly pushed out. Among them is Michael Glasheen, who ran counterterrorism at the Washington field office after the attack on the Capitol on January 6, 2021, when he took that job in August. Glashin will be in charge of field services, but what responsibilities fall under his purview were not exactly clear. Previously, the bureau had executive assistant directors for science and technology and intelligence. Former FBI officials said Mr. Patel decided to put intelligence under the operational control of the National Security branch. Now go with me on this one here. Mr. Patel has said, quote, the biggest problem the FBI has had has come out of its intel shops. I'd break that Component out of it. I don't have any idea what that means.

Alison Gill (5:56)

No, I know. Because he literally says the biggest problem the FBI has had has come out of the intel shops.

Andy McCabe (6:03)

So break it out. Like if he just said, I want to break it, that I would understand. It would make sense.

Alison Gill (6:10)

Yeah. Because that seems like that's what's happening.

Andy McCabe (6:12)

Break it out of it. I. Okay. Anyway.

Alison Gill (6:15)

Also promoted was Stephen Jensen, who was tapped to oversee the bureau's national security programs. Mr. Jensen most recently ran the FBI's field office in Columbia, South Carolina. A former agents said the selection of Mr. Jensen stood out because he ran a major section at the FBI that helps manage the threat of domestic terrorism. And in that role, he helped coordinate the FBI's nationwide investigative efforts in connection with the January 6th attack on the Capitol. In a speech at the Justice Department on Friday, which was bizarre, Mr. Trump said he had pardoned hundreds of political prisoners who had been grossly mistreated. We removed the senior FBI officials who misdirected resources to send SWAT teams after grandmothers and January 6th hostages. Now the president's director, Mr. Patel, is promoting the men Mr. Trump has falsely accused of wrongdoing.

Andy McCabe (7:05)

Yep. The Jan.6 investigation was the largest in the bureau's history, with more than 5,000 FBI employees taking part in about 2,400 investigations. Before Mr. Patel arrived, the FBI's acting leaders clashed with the Justice Department, which had demanded the names of bureau personnel who worked on the investigations. The demand elicited fears at the time that the administration would conduct a purge or make their names public, possibly putting their lives at risk. So far. So far, the Justice Department has not done so.

Alison Gill (7:39)

Yep. And critics of the agency have said that if the Bureau had taken a more aggressive stance in the run up to January 6, the rioting at the Capitol might have been prevented. But the Bureau lacked imagination and failed to connect the dots, ultimately missing a chance to thwart the domestic terrorism attack that further polarized the country. That's from the New York Times. So apparently there was some parts of this article. You know, we were reading the standout parts there and just some excerpts, but there were some other parts that said that this isn't a new idea. Some guy had done a white paper on this decentralization idea. There were a couple people that have pushed for it in the past since Mueller put it into practice, the way that it was structured before Patel got there. What's your insider knowledge of the idea of decentralizing the agency in past. In the past? Because you were there for a Long time.

Andy McCabe (8:34)

Oh, yeah, yeah. I. I have had this discussion. I've been involved in these processes that considered exactly this option several times. It's come up many times over the years, each time ultimately getting shot down. So first, a little context. Yes, the FBI deputy director job is crazy. It's an insane number. Something. It was something like 78 or direct reports, and that was everybody from staffers on the deputy director staff all the way up to the leaders of every field office. There are 56 field offices. So it's. It's ridiculous scope of authority. Any business school, you know, business, academic, would tell you that, like, the ideal number of direct reports to a supervisor is something like between 8 and 12 or something like that.

Alison Gill (9:21)

So at that level, yeah, yeah, I had like 300, but they were GS5 sevens and nines.

Andy McCabe (9:28)

Yeah. So it's. It's nuts. People have thought about this before. It's not crazy to think about reorganizing the FBI and restructuring things to work better. That's a. That's a legit thing for any director to do. But this is not new. And the fact that they jumped on it in two weeks because it's like a bright, shiny object, really gives me pause. Now, what he's saying about it, the advantages that he cites in that email, you will not achieve those. So one of the reasons that it fell apart so many times in the past is that the field offices, that is the SACs, the special agents in charge of those field offices, those 56 kind of kings of their own little kingdoms, they hated it. They detested the idea of not being able to pick up the phone and call the deputy director directly personally, every time they had a problem. They didn't like the idea that anyone other than the deputy director would be reviewing them at the end of the year in their performance review, which is the thing that leads to your. To your bonus. So these are all important things to them. The fact that they are kind of going along with this now or feigning support for it tells me that they've decided, shut up, smile and say, great idea, boss. And I'm sure I. I know from talking to people who are in the. In the Bureau, that's what's going on with the SACs right now. They're all coming back to headquarters for TDYs to do jobs that. That Patel and his crowd have fired their friends out of because those things still need to get done. And everyone's trying to be like, you know, please don't let the firing crosshairs land on me. I've got another year to go before I can retire, blah, blah, blah. So I think they're putting up with something that normally they would think was a bad idea simply because they don't want to get punted. This whole thing about these regional directors for things like human resources and science and technology or field services, that's the same functions that the eads did. So essentially he fired six and hired five. That's not like a major change. It's, you know, kind of shifting the chairs on the deck chairs on the Titanic. The comment about the intel division, you know, intelligence was a part of the National Security branch. It was born there, it grew there, developed there. We split it out and turned it into its own branch in probably like 2015 or something like that. Because in the development of a professional intelligence cadre, we felt like it was important that they operated on the same level as the operational branches we are. We were constantly trying to generate professionalism, integrity, pride and respect for the intelligence professionals within the Bureau because it's an uphill fight for them. Right. It's an agency of agents, and we had to really work to create a co. Equal role there. They certainly are not the problem of any. Even the things that Kash Patel would identify as the FBI's problems, quote, unquote, in the last couple of years. None of that stuff is the fault of, or the responsibility of the intel branch. But nevertheless, it's pretty big decisions to be making on week two, I'll tell you that. We studied these things extensively. We brought in McKinsey several times to do formal, you know, consultant surveys. They interview hundreds of people, and they would ultimately come back and say, don't do it.

Alison Gill (13:05)

And that's what worries me about this, right, Is that if this were you or Mueller or even Comey and you set up work groups and you got the Brookings in, you brought mackenzie in, you brought Booze Hamilton in, Booz Allen in, you did all the. Had a bunch of eyes on it. You did years worth of studies, wrote several white papers. I think there was like one white paper on this back in the day, and they ended up deciding it was a bad idea. But if this were done properly to help alleviate the kind of crazy job that the deputy Director has with all of those direct reports, like five times too many direct reports.

Andy McCabe (13:46)

Yeah.

Alison Gill (13:47)

Then. Then, sure. But this, it's not like this. This ground is. It has been gone over multiple times before. And so now they're just doing it, and they're doing it with a podcast, bro. And whatever the Hell, Kash Patel is.

Andy McCabe (14:04)

Yeah. And the thing that really bugs me is not even bigger picture than just the decision they make to restructure is the fact that they're choosing to do something without any understanding of the fact that it's already been looked at 50 times and the reasons it was walked away from not 50 times, but a couple of times. So it's a vision into the way they're thinking and making decisions without any understanding or really interest in the organization's history and why it is the way it is today, how it got to be the way it is today, whether that's effective or ineffective or efficient or inefficient, however you look at it, you know, it's very hard to make good decisions about restructuring something that you don't even know why they're structured that way to begin with, but they just roll in and decide, this sounds cool. Let's do this.

Alison Gill (14:58)

Well, that's their way. Right. I'm thinking of the trans troop ban for military service. Zero. I mean, there have been a ton of studies on this already. I know Mattis did a bunch of white papers on it and found that it didn't have any, that the transgender people serving in the military didn't have any negative impact on costs or morale or readiness or, you know, war fighting capabilities or anything like that. There's been tons of studies, but instead of citing any of that, you know, the, the only thing the government is saying is that, well, we believe that people who have gender dysphoria are dishonest by nature or whatever their BS was.

Andy McCabe (15:37)

Yeah.

Alison Gill (15:37)

And Judge Ana Reyes, who, who I'm becoming a big fan of, actually pointed out like you have zero studies attached to your, your ban here, but you had eight studies attached to your paper straw ban. So if you're going to ban paper straws, I, I, if you want to ban human beings from the military, I would expect at least as much study as you gave paper straws. Like, it was just that this is. Which, you know, in that particular case, shows pretext. I can't figure out the pretext for.

Andy McCabe (16:09)

Doing this, but this is just the, the insanity of overconfidence. There's nothing quite as dangerous as someone in a significant leadership position who has so is so overconfident of their, their abilities, their experience, their perspective that they don't even know what they don't know. Right. Like, Jim Comey comes into the FBI, and he said, I'm going to visit every single field office in the first year that I'm here. And I'm not going to change anything for a year. I'm going to spend a year listening to people and trying to understand, to learn about this organization, to figure out who are these people, why are they here, what's important to them, what works for them, what doesn't. And then I'm going to start tweaking things that need to be adjusted. You know, of course things need to be changed over time. It's a develop, it's a, it's an organic developing thing. Like you should constantly be committed to making it better. But to think that you could do this in week two, man, good luck. This is just rolling the dice, you know.

Alison Gill (17:10)

Biggest difference between transformational leaders and transactional leaders.

Andy McCabe (17:14)

Yeah. Yeah.

Alison Gill (17:15)

So. All right. And I'm sure you've taken a leadership seminar or two in your time.

Andy McCabe (17:21)

Couple, couple, couple, made a few decisions along the way. Some of them worked out, some of them didn't. But you know, I mean, that's a.

Alison Gill (17:30)

Big thing in the government. I joke. But like I must have been to, I must have spent a thousand hours in leadership seminars.

Andy McCabe (17:38)

Yeah.

Alison Gill (17:38)

From the government, particularly the week long health care leadership development program. I mean it's, it's intense.

Andy McCabe (17:46)

One of the things that my, this is a total aside, but my, my former FBI compatriots who are now all in the private sector, big companies and things like that. The most consistent. Of course I'm not in that world, so I'm always asking them questions about it. The most consistent thing they tell me is like, you can't believe how poor the level of leadership is in so many of these companies. Like people are in big jobs or they're making impactful decisions without any leadership experience whatsoever. Which is kind of frightening.

Alison Gill (18:17)

But it's interesting how far ahead, how far out front the government is on a lot of these issues that people don't generally realize, whether it's leadership, climate change. Yeah, things like that. All right, everybody. I remember sitting at the VA and finding out, you know, before any private industry had done it, that we were not going to discriminate or grant leave or, or do any, make any personnel actions, you know, because of somebody's. We already had race, creed, etc, religion. But they added not, not only did they add gender identity and sexual orientation, but they also added familial situation. Like because people with kids were getting more leave than people who didn't have kids. Like just really out ahead of, of these kinds of issues. I, I always felt, which I think surprises a lot of, a lot of people considering the stigma against government workers, which is only getting bigger now because of this administration. All right, we have a lot more to get to. We're going to talk about our good pal Ed Martin there at the D.C. u.S. Attorney's office right after this quick break. Stick around. We'll be right back. Hey, everybody. Welcome back. All right, as promised, we get to talk about our favorite person, Ed Martin.

Andy McCabe (19:38)

You mean Mr. Midroll. He's literally responsible for a section of this podcast every week.

Alison Gill (19:45)

Yes, he is.

Andy McCabe (19:46)

It's amazing.

Alison Gill (19:47)

He's an election denier. He's a supporter of the January 6th rioters. He's the guy who was on both sides of that case he dismissed of a rioter. We. That's what we called him. Cicada Ed. Last week, the Associated. No, no, that was Horowitz, who only came out every 17 years.

Andy McCabe (20:03)

That's right, that was Horowitz. Yeah.

Alison Gill (20:04)

My bad. I can't. I can't keep my favorite people in D.C. straight in my head. The Associated Press reports that the top federal prosecutor for the night the nation's capital, who promoted President Donald Trump's false claims at the 2020 election was rigged, has formed a special unit, which is, in quotes, to investigate election offenses. That's according to an email sent to lawyers in his office on Monday. Interim District of Columbia U.S. attorney Ed Martin said the special unit, Election Accountability, has already opened one investigation and will continue to make sure that all the election laws of our nation are obeyed. And that's according to an email reviewed by the Associated Press. So I guess, you know, they do announce investigations.

Andy McCabe (20:51)

Yes, they do. Special Unit, Election Accountability. I feel like you need to hear the law and order theme when you say. Yeah, exactly. Exactly. Martin, who is awaiting Senate confirmation to permanently take the position, was involved in the Stop the Steal movement, which was animated by lies about fraud after Trump lost the 2020 election to Democrat Joe Biden. Martin also served on the board of a nonprofit that raised money for Capitol Riot defendants and their families and legally represented at least three defendants in the January 6, 2021, Capitol riot criminal cases, including a Proud Boys member who pleaded guilty to felony charges. In the email announcing the new unit, Martin recounted uncovering voter registration fraud while serving as chairman of the Board of elections in St. Louis years ago. That led to the implementation of, quote, accountability measures to make sure that electronic machines had a paper trail, he wrote, quote.

Alison Gill (21:51)

Nearly 20 years later, Americans do not have confidence in our election systems. That's what Martin wrote. One of the best ways to restore that confidence is to protect our systems. And demand accountability and make it really hard for Democrats to vote so we always win. I added that last part.

Andy McCabe (22:06)

Oh, shoot. I thought that was in the we.

Alison Gill (22:09)

Know what he's thinking. Martin did not provide additional details about the investigation his office already opened, and spokespeople for the office didn't immediately respond to requests for comment. But officials at the Justice Department didn't immediately respond either to questions about Martin's effort, which was first reported by Bloomberg Law.

Andy McCabe (22:25)

Democrats reacted skeptically to Martin establishing the unit, noting his involvement with Trump's efforts to spread false claims about the 2020 election. California Senator Alex Padilla, the top Democrat on the Senate Rules Committee, which oversees elections, said he is concerned that the unit would be, quote, more focused on attacking political enemies than protecting Americans right to vote in free and fair elections. Maryland Representative Jamie Raskin said Martin's new unit is, quote, all about installing a nationwide policy of heads I win, tails you lose. If the GOP wins, there's a mandate to trash the Constitution. If they lose, it means the election was stolen, said Raskin, the top Democrat on the House Judiciary Committee. America is going to have to defend free and fair elections against these autocrats and veteran saboteurs of democracy.

Alison Gill (23:16)

I like that. Veteran. There are no veteran saboteurs of democracy.

Andy McCabe (23:19)

Yeah.

Alison Gill (23:19)

The Trump administration had been expected to shift the Justice Department's priorities around investigating voting and elections. We saw this coming. In other words, the agency has historically targeted voter suppression efforts and state laws that could disenfranchise certain groups. But conservatives have called for an increased focus on voter fraud. Of course, the scope of Martin's unit is unclear and it raises questions about whether he's seeking to investigate cases outside the realm of his authority. I can guarantee you he is, but because it's limited to the District of Columbia.

Andy McCabe (23:51)

Right.

Alison Gill (23:51)

And this is what David Becker, former U.S. dOJ attorney who leads the center for Election Innovation and Research, a Washington based nonprofit, says, quote, I'm waiting to see more about what this unit actually is, what jurisdiction it purports to claim, what authority it tends to seize, and what laws it purports to enforce. This is from Becker, and again, elections are administered by states.

Andy McCabe (24:15)

Yeah, yeah, that's right. Which you think the boss of the election committee in St. Louis would have known, but apparently not. Voting and elections experts expressed doubts that the new unit would improve Americans confidence in elections. You think the false idea that there is rampant fraud in U.S. elections, quote, undermines public faith in the vote rather than bolstering it, said Sean Morales Doyle, director of the voting rights program at the nonprofit Brennan center for Justice. There is no evidence of widespread fraud in the 2020 election. I'm going to do that one more time. There is no evidence of widespread fraud in the 2020 election. The results were confirmed through multiple recounts, reviews, and audits. Trump lost dozens. It's actually 60 or more. Of court challenges, including before judges he appointed during his first term. His allies have also raised the specter of widespread illegal non citizen voting in US Elections, Though in reality, this form of fraud is exceptionally rare. Which AG makes perfect sense, because if you were here without documents and you're an illegal alien, as they say, probably the last thing you're interested in doing is voting.

Alison Gill (25:34)

Yeah.

Andy McCabe (25:35)

You're here to make some money, send it back to your family, whatever you gotta do.

Alison Gill (25:38)

You should just wear a shirt that says, I'm undocumented.

Andy McCabe (25:40)

Yeah, right. You're gonna roll up to a polling place where the first thing they do is ask you for your identification. I think not. But what do I know?

Alison Gill (25:48)

Yeah. They go on to remind us that Ed Martin has roiled the D.C. u.S. Attorney's office since he was appointed to the job in January. He recently demoted senior leaders who handled politically sensitive cases and forced the chief of the office's criminal division to resign after directing her to scrutinize the awarding of a government contract during the Biden administration. That was Denise Chung, right?

Andy McCabe (26:09)

That's right.

Alison Gill (26:09)

Martin has also raised eyebrows. This is, again, a nice way to put it for describing federal prosecutors as the president's lawyers, using his office as a platform for parroting Trump's political priorities and sending warning letters to at least two members of Congress for statements they made. He recently sent a letter of inquiry to Georgetown University Law Center's dean that warned that his office will not hire the private school's students if it doesn't eliminate diversity, equity, and inclusion programs. Andy, this makes me think back to the DOJ in 2020. Remember Donahue and Rosenberg?

Andy McCabe (26:42)

Yep.

Alison Gill (26:42)

And Jeffrey Clark wanted to get them to sign that letter. Sending a letter to swing states falsely stating that that the DOJ was investigating voting irregularities.

Andy McCabe (26:52)

Yes.

Alison Gill (26:52)

And Rosen and Donahue refused to sign the letter. And the pushback in that wild Oval Office meeting where they told Trump if he made Jeffrey Clark the Attorney general, they'd all quit and he'd be in charge of a graveyard. Well, now the entire leadership is filled with sycophants that will do anything he tells them to do.

Andy McCabe (27:11)

Totally. Totally. And that was frightening. I mean, again, as it was so many aspects of what we're seeing from this administration now, this one also was totally foreseeable. Totally foreseeable.

Alison Gill (27:26)

Well, we predicted it. We knew it would happen.

Andy McCabe (27:28)

Trump and his.

Alison Gill (27:30)

There'd be no Hirschman's. There'd be no Sopranis. There'd be no, you know, the staff.

Andy McCabe (27:36)

The people that fill these top positions. Very different this time. And not that, you know, I wasn't a huge fan of them the last time, but there are no. Their pushback is not a thing within this administration.

Alison Gill (27:48)

Yeah. I'm no Cipollone fan by any stretch. Right, right. But. Or, you know, even going Back to Don McGahn.

Andy McCabe (27:56)

Right.

Alison Gill (27:56)

Who was like, no, I'm not going to fire Bob Mueller, sir. You know.

Andy McCabe (28:00)

Yeah, exactly. Those guys, you know, there's no one at their level. There's no one there now who would be willing to stand up and say that because, you know.

Alison Gill (28:09)

Because they're all a bunch of Jeffrey.

Andy McCabe (28:10)

Clarks out of the party bus. Yeah, for sure. So, I mean, that argument about lack of Independence at DOJ brings up this reporting from NPR. A prosecutor with years of experience at the U.S. department of justice has resigned amid major changes from the Trump administration, telling npr, quote, it just was not a Department of justice that I any longer wanted to associate with. In a sharp resignation letter shared with NPR, former Assistant U.S. attorney Sean Murphy warned of the erosion of the Justice Department's independence from the president, writing to his co workers, quote, you serve no man.

Alison Gill (28:50)

Yeah. And Murphy is a veteran prosecutor who previously worked for the Bronx DA in New York. And in 2018, during Trump's first term, he joined the U.S. attorney's office in Puerto Rico and worked on drug trafficking and illegal gun prosecutions. Most recently, he served in the Department of Justice's Capital Siege section, which prosecuted more than 1500 people for crimes stemming from the January 6, 2021, attack on the Capitol. Now, when Trump took office, he immediately granted clemency to all of the January 6th defendants, even the most violent offenders and those with lengthy criminal records. And his administration fired and demoted many prosecutors who worked on those cases. And as a result, Sean Murphy said he simultaneously faced threats and harassment from January 6th defendants who were emboldened by their presidential pardons while also having to fear retaliation from the administration. Quote, there are some posts on social media saying that prosecutors, quote, need to fry, that prosecutors need to get the rope. That's what Murphy said. Comments naming prosecutors directly saying, now it's your turn. It's frightening.

Andy McCabe (29:52)

It is. And Murphy has three children, all of whom are still in school. He said getting fired would cause serious consequences for his family's financial situation. Still, over the course of the last two months, Murphy told NPR that he questioned whether he could remain in the Department of Justice, given its new direction under Attorney General Pam Bondi, a Trump loyalist. The recently installed FBI deputy director, a former Secret Service agent turned podcaster named Dan Bongino, has also repeatedly called for prosecuting Trump's political opponents. Most concerning to Murphy has been the erosion of the Justice Department's independence from the president. After the Watergate scandal during Richard Nixon's presidency, subsequent administrations put more distance between the president and federal law enforcement to prevent politicization and abuses of power. Quote, we all work for the greatest president in the history of our country, Bondi said in a speech to the Justice Department last week. We are so proud to work at the directive of Donald Trump.

Alison Gill (30:53)

Man, they've come a long way from having a hissy fit about the Attorney General meeting on the tarmac with Bill Clinton. Right.

Andy McCabe (31:03)

And this is.

Alison Gill (31:03)

I mean, that was a mega scandal.

Andy McCabe (31:05)

It was. And I mean, I. I was one of the people who was scandalized by it. We were like, oh, my gosh, this is not going to make anything any easier. But, I mean, the significance of the Attorney General Pam Bondi, making those comments to the entire Department of Justice in the hallowed hall of justice is that is not just her, like, giving the President some flattery, which he loves. That is her sending a message to the entire workforce. This is what's expected of you, this attitude, this fealty, is what I am exhibiting, this behavior because I want you to model it.

Alison Gill (31:49)

Mm. Yeah. And Murphy said, to maintain credibility, there has to be some separation between the president and the doj. There has to be some measure of independence. Right. And he also pointed to a statement posted on social media from Ed Martin, who we were just talking about. Interim U.S. attorney for D.C. and an activist for January 6th defendants. Quote, the interim U.S. attorney for the District of Columbia repeatedly referred to his office and himself as the president's lawyers and that we are not. Murphy said, we are not that an Assistant United States Attorney and their only client is the people of the United States of America. None of us are the president's lawyers. That's what Murphy said. And his resignation letter says, quote, together we addressed the grave national injustice. Methinks this is a better use of that phrase that occurred on January 6, 2021, at the seat of our nation's government, the U.S. capitol. That's what Murphy wrote and went on to commend the police officers who protected the Capitol that day. And he ended the letter with an entreaty to his now former co workers and bosses, saying, may you renew daily your dedication to justice and always seek to end each day secure in the knowledge that you showed up and sought justice for your one and only client, the people of the United States of America. You serve no man. Pretty good words.

Andy McCabe (33:06)

Yeah. Well done.

Alison Gill (33:08)

Well done. Did you know him?

Andy McCabe (33:09)

I did not, no. I'd never heard of him before this article. And I have to say, like, I mean, it's a bold thing to do and my hat is off to him. But I'm not surprised, and I'm not surprised that it's coming from a guy who spent so much time working on those prosecutions to have to step back from all of that righteous, commendable work under the law, enforcing the law in a fair and consistent way, to see all those people get pardoned from those crimes and from apparently many other crimes some of them were involved with, that's got to be just galling.

Alison Gill (33:48)

I mean, yeah, I wonder how the doj, some of them reacted when Pam Bondi said the words, you know, yeah, we're working at the directive of Donald Trump. Anyway, we've got more January 6th stuff, as we know, as you and I and listeners well know, Jack Smith, investigations against Donald Trump were closed, the criminal investigations, but there were still a couple of civil lawsuits out there that were allowed to go forward. And now Pam Bondi wants to attack those two. And we're going to talk about that right after this quick break. Stick around. We'll be right back.

Andy McCabe (34:28)

Welcome back. Speaking of January 6th, Alan Foyer at the Times reports the Justice Department made an unusual effort on Thursday to short circuit a series of civil lawsuits seeking to hold President Trump accountable for his supporters attack on the Capitol on January 6, 2021, department lawyers argued in court papers filed to the judge overseeing the cases that Mr. Trump was acting in his official capacity as president on January 6th. Does this sound familiar? It does. Acting in his official capacity as president on January 6. And so the federal government itself should take his place as the defendant in the case. That move, if successful, could protect Mr. Trump from having to face judgment for his role in the Capitol attack and from having to pay financial damages if he were found liable. The legal maneuver appeared to be Mr. Trump's latest effort to use the powers of the Justice Department to his advantage by effectively having himself removed from the lawsuits which were brought against him by groups of Capitol police officers and lawmakers who claim they were injured when the mob stormed the building. The suits are the last remaining effort to hold Mr. Trump responsible for his role in the Capitol attack after two January 6th related criminal cases against him collapsed last year.

Alison Gill (35:49)

Okay. Collapsed. No, the cases didn't collapse. The Supreme Court absolved Trump of the. Of the. The cases didn't collapse. Okay. Just wanted to make that clear. New York Times. The department's attempts to place the federal government itself in the lawsuit's line of fire instead of Trump hinges on whether lawyers can persuade the federal judge overseeing the lawsuits. That's Amit Meta. Judge Meta. That Mr. Trump was, in fact, acting in his official capacity as president on January 6th. And this seems like a high hill to climb. The department has argued that under the law, federal officials acting within the scope of their office or employment cannot be sued personally, and that in such instances, the government is the only entity that can be targeted. But whether Mr. Trump was acting on January 6 in his official role as an office holder and not in his unofficial role as a candidate in the 2020 elections is an open question. Mostly because the Jack Smith stuff went unresolved. Right. Because we never got back up to the Supreme Court, because we never got Judge Chutkan's ruling on what were official acts when the election happened. Judge Mehta is already considering a separate motion by Trump's lawyers to dismiss the lawsuits altogether on the grounds that he was acting in his formal role as.

Andy McCabe (37:03)

President three years ago. In an earlier round of motions, Judge Mehta rejected those same claims, saying that the lawsuits could move forward to trial the following year. A federal appeals court largely agreed with him, but said there needed to be more fact finding about whether Mr. Trump's speech near the White House on January 6 and several messages he posted on or about that day were presidential acts or the acts of a candidate seeking reelection.

Alison Gill (37:31)

Yeah. And this is fascinating. I remember. Do you remember when Mo Brooks tried to get the DOJ to come in, insert him?

Andy McCabe (37:38)

Yeah.

Alison Gill (37:38)

And DOJ was like, well, no, because the speech that you made at the Ellipse was a campaign speech. This is what the DOJ said. And if the court disagrees and says it wasn't a campaign speech, then you still can't say that overthrowing the government is part of your government job. That's what the DOJ said at that particular point in time. That was a while back. Pretty sure it was under the Biden administration. But anyway, this is an interesting one.

Andy McCabe (38:09)

Because it draws on this issue of sovereign immunity and the fact that, for instance, if I'm out Doing a surveillance, driving an FBI car, and I get into a car accident with someone else by accident, that person who I hit, they might file a lawsuit against me personally. But what I would do is ask the Department of Justice to represent me in that civil suit. And they would, because I was acting in the scope of my authority, doing a surveillance. And the first motion they would file would be to remove me from the case as a person and replace me with the United States government. The government is the entity you sue. If you have a claim for damages that were inflicted upon you by some government action, you have to sue the government, not the person who was just acting as an agent of the government.

Alison Gill (38:53)

Yeah, but if on your way to that stakeout, you decided to stop and rob a bank, then the government's not going to step in.

Andy McCabe (39:01)

Or I got drunk before the surveillance. You know, like, there's all kinds of ways that you can be mo Brooks out of being represented by the government here. It's interesting because earlier in the case, he filed a motion to dismiss, which turns on the same factual finding of within the scope of your duty. And he lost. So that history of the motion to dismiss makes this motion much harder for him now. But, you know, you never know this guy. Nobody has more luck in court than Donald Trump.

Alison Gill (39:32)

So I know, well, maybe he can try to delay it for a really long time, which he is wont to do. But, yeah, when I sued Donald Trump and Robert Wilkie and the Department of Veterans Affairs, Donald Trump and Wilkie were successful in getting themselves personally removed from the lawsuit because they were acting in their quote, unquote, official duty. Yeah. When they fired me. Anyway, litigation pending. We'll let you know. There's another story here about the Department of Justice I wanted to touch on. If you've been listening to the Daily Beans or following me on social media at Mueller She Wrote, or reading my substack, you might have noticed that I'm following the Alien Enemies act case very closely. It's before Judge Boberg, who's the chief of the D.C. district court, who, who used to be on the Fisk. Right.

Andy McCabe (40:21)

That's right.

Alison Gill (40:22)

Issuing FISAs and whatnot. And he's. He's worked it within a lot of intelligence courts. And he issued a restraining order last Saturday and ordered the planes that were in the air to turn around and go back to the United States. They were on their way to El Salvador via Honduras, and he ordered them be turned around and the deportees be returned to the United States. The DHS blatantly defied that order. And so they're having hearings about that now. And now they have to show cause that they weren't blatantly defying the order, which is a step on the way to contempt, by the way. And they even had the DHS even have a third plane take off after the order was given. Now, DOJ has made a lot of nonsense arguments in this case to justify using the Alien Enemies act, which has only been used thrice in our history, the War of 1812, World War I, and World War II. And they've argued, the DOJ has argued that the President gets to decide if we're at war, when we're at war, who we're at war with, and who belongs to members of gangs involved in the. In those wars. Right. And the DOJ has relied on arguments that members of the Venezuelan gang Trenda Aragua are here on behalf of the Venezuelan government and the DOJ and apparently were at war with Venezuela. I don't know, but a DOJ lawyer even argued during a hearing today, on Friday, when we record this, that shortly after VJ Day, when World War II was technically over in the Pacific theater, the president still deported some folks under the Alien Enemies act because he declared he felt the war was still ongoing. That's the argument that they made today. Okay, so the ramifications here are obviously frightening. And the judge, Judge Boasberg, acknowledged that this could allow the president to declare anyone a member of any gang, based on feelings, I guess, and. And say that that gang is acting on behalf of a foreign government and use that to justify snatching anybody up he wants off the streets and deporting them to an El Salvadorian huge 40,000-person- torture prison called SEACOT. But the crux of the DOJ argument is that Trenda Aragua is acting on behalf of the Venezuelan government. And that gives the President and Secretary of State the power to deport any member of that gang, according to them, but without defining what membership gang membership even is. However, New York Times is now reporting that American intelligence agencies circulated findings last month. Andy. That stand starkly at odds with Trump's claims. According to officials familiar. The document, dated February 26, summarized the shared judgment of the nation's spy agencies that the gang was not controlled by the Venezuelan government. February 26th.

Andy McCabe (42:59)

Not long ago.

Alison Gill (43:00)

Yeah, not long ago at all.

Andy McCabe (43:02)

The.

Alison Gill (43:03)

After inauguration. Let's put it that way.

Andy McCabe (43:05)

Yeah.

Alison Gill (43:06)

This disclosure calls into question the credibility of Trump's basis for invoking the Alien enemies Act of 1798 to transfer a group of Venezuelans to a high security prison in El Salvador last weekend with no due process. I'm really glad they put that in the article.

Andy McCabe (43:19)

Yeah.

Alison Gill (43:20)

The intelligence community assessment concluded that the gang Trenda Aragua was not directed by Venezuela's government or committing crimes in the United States on its orders. That's according to the officials, speaking on the condition, obviously, of anonymity to discuss internal deliberations.

Andy McCabe (43:34)

Analysts put that conclusion at a, quote, moderate confidence level, the official said, because of a limited volume of available reporting about the gang. Most of the intelligence community, including the CIA and the National Security Agency, agreed with that assessment. Only one agency, the FBI, partly dissented. It maintained that the gang has a connection to the administration of Venezuela's authoritarian president, Nicolas Maduro, based on information the other agencies did not find credible. Quote, multiple intelligence assessments are prepared on issues for a variety of reasons. The White House said in a statement the president was well within his legal and constitutional authority to invoke the Alien Enemies act to expel illegal foreign terrorists from our country. The Alien Enemies act empowers the executive branch to summarily remove foreign citizens whose government is in a declared war with the United States or is otherwise invading or engaging in a predatory incursion into American territory. The government last used the law in the internment and repatriation of Japanese, Italian and German citizens during and after World War II.

Alison Gill (44:46)

So somebody at the FBI says no, that sounds a little pretextual to me. Who? Right.

Andy McCabe (44:53)

Yeah.

Alison Gill (44:54)

Yeah.

Andy McCabe (44:55)

I mean, is this the.

Alison Gill (44:56)

Is Jeffrey Clark at the FBI now?

Andy McCabe (45:00)

Just say it and we and the representatives will do the rest.

Alison Gill (45:05)

Yeah, because he's. This is what he's basing this on now in his. In this one. FBI guy's kind of half descent, whoever it is. In his proclamation, Trump effectively summoned such a link into legal existence by saying that he had determined that trend. Aragua was a proxy for the Venezuelan government and committing crimes in the United States at the direction of the Venezuelan government because Maduro sought to destabilize the United States. Okay.

Andy McCabe (45:29)

There is no way on God's earth that any DOJ lawyer will be able to prove that in court.

Alison Gill (45:36)

Nope. Quote, I make these findings using the full extent of my authority to conduct the nation's foreign affairs under the Constitution. That's what Trump said. But Trump's key factual assertions contradicted the earlier intelligence assessment. It concluded that the gang was not acting at the direction of the Maduro administration and that the two are instead hostile to each other, citing incidents in which Venezuelan security forces exchanged gunfire with Gang members.

Andy McCabe (45:59)

It's a pretty good sign of hostility.

Alison Gill (46:01)

Yeah. And the assessment, this official also said that the assessment asserts that when the State Department designated the gang as a foreign terrorist organization last month, the minister in the Maduro administration publicly applauded that action. The administration's move broke with the practice of limiting terrorism designations to organizations that are clearly ideologically motivated by the way, AKA terrorist organization.

Andy McCabe (46:29)

The prior practice of limiting terrorism designations to actual terrorist organizations. That's a. I can't believe that that's actually referred to as a prior practice, but here we are.

Alison Gill (46:41)

Yeah. These are the kinds of statements we have to make now.

Andy McCabe (46:44)

That's right. Okay. So federal courts typically defer to the executive branch's factual declarations about what is happening and why, rather than probing for what may actually be going on. That is particularly the case in matters of national security and foreign policy. And although that paragraph is kind of clunkily worded, it's true. It's very important. Right. Courts give great deference to the administration conclusions that are based on intelligence because the court is not an intelligence agency. They don't. You know, they take the government at its word. When the government comes in and says, x is a threat to the United States national security for the following reasons. You know, the courts give them a lot of deference.

Alison Gill (47:26)

Yeah.

Andy McCabe (47:26)

So the article goes on to say. But such deference is premised on the idea that officials are making determinations in good faith and drawing on executive branch resources like intelligence agencies to evaluate fast moving and sometimes dangerous situations. Mr. Trump's pattern of distorting the truth is testing that practice. The administration's insistence that all men it sent to El Salvador are members of Tren de Aragua has also been challenged. In one court filing, an official acknowledged that many have no criminal records, but said that the dearth of details only underscored that they are terrorists. With regard to whom we lack a complete profile.

Alison Gill (48:08)

Yep. Yep. But guess what? In that hearing today, which I live skied. I guess what, what do you call tweeting out blue sky? I live skyed it. In that hearing today, the plaintiffs for the Venezuelan. The. The five Venezuelans, plus the. The now the expanded class to include all people who are being deported under the Alien Enemies Act. In this proclamation, the plaintiff said that they'd be filing something about the fact that the Salvadorian government actually turned many of them away and many of the deportees away because some of them are women, some of them were not members of gangs or trend Aragua at all. So there were a Handful of people who they didn't take.

Andy McCabe (48:52)

Yeah.

Alison Gill (48:53)

And that kind of look, that kind of shows that this was a shoot first, aim later operation and no due process was given. Yeah, right. Because in. In the hearing today, the DOJ was like, well, habeas. You just. Habeas, Habeas, Habeas, Habeas, habeas. You know, you can just do a habeas thing. And the judge was like, really? Did you all tell them? Did you tell them all that? Did you. Wait, how does this work?

Andy McCabe (49:15)

Yeah.

Alison Gill (49:17)

And because he was like, as far as I know, this invocation of the Alien Enemies act was signed in the dark of night on a Friday night, and people were rushed onto planes. And then when I ordered you to bring them back, did you not understand my order?

Andy McCabe (49:30)

Yeah.

Alison Gill (49:31)

And the DOJ guy was like, well, I don't know all the laws all the time, and I can't be expected to know all that. And the judge is just like, wow, man. And he looked right at the. He looked right at the government, said, you know what? I often tell all of my clerks who work here for me that their number one asset is their reputation. And I was like, ooh, that hurts. That's judge language for you all are terrible, awful people. And I don't like you. That's.

Andy McCabe (49:59)

Yeah, it's like you should be ashamed of yourself language, basically.

Alison Gill (50:03)

Yeah, totally. All right, we have one more quick story, and then, of course, we're going to take some listener questions again. If you have a question, there's a link in the show Notes you can click on to fill out a form, submit your question to us, and we'll read it on the air. You can do that again by clicking the link in the show notes. We'll be right back with that last story and our listener questions after this quick break. Stick around. We'll be right back. All right, everybody, welcome back. One more quick story before we get to listener questions. This comes from cbs, and you and I have talked about this quite a bit, and I know I've talked to Pete Struck about it, too, about this guy. A longtime FBI agent has been charged with unlawfully taking and disclosing protected FBI files, according to court records reviewed by cbs. Jonathan Bouma, who specialized in national security and terror cases, has been released on $100,000 bond with orders to appear in court in Los Angeles. Boomer was arrested as he boarded an international flight at JFK airport in New York. According to charging documents, the Justice Department's filings alleged Booma printed a cache or caches of FBI records from an internal agency network. Nearly 130 files might have been compromised. According to FBI investigators. The government argues the records were clearly marked as confidential or secure and were copied by Boomer in the hours before he left his job in the bureau in October of 2023. Yeah, yeah, yeah. The charging document. So this investigation has been going on for a while, just so you know. The charging documents also allege that days after taking copies of the records, Boomer used social media to post excerpts of a book he was writing about his career at the bureau.

Andy McCabe (51:40)

Double oof.

Alison Gill (51:41)

Federal investigators alleged that the book included information Booma obtained from the FBI about an investigation of a foreign nation's weapons of mass destruction program. Dude, tell us just briefly about what you got to go through to get a book published about the FBI.

Andy McCabe (51:57)

Oh, my God. It took, I mean, a process that by the policy is supposed to conclude within 30 days. I think took me six months. And like battles on the phone, they started with 80 redactions from my book.

Alison Gill (52:17)

You couldn't even call it Crossfire Hurricane?

Andy McCabe (52:19)

No, I was not allowed to refer to the case as Crossfire Hurricane, Even though I showed them that they were like, over. When you googled Crossfire Hurricane, you got 200,000 results that talked about.

Alison Gill (52:29)

I was calling it Crossfire. It was called Crossfire Hurricane.

Andy McCabe (52:33)

Yeah. And a month after my book came out, my good friend, and no rocks thrown at him, Josh Campbell published a book called Crossfire hurricane, Titled his book Crossfire Hurricane. I was like, what? Oh, my God. Anyway, he's great, though.

Alison Gill (52:49)

Campbell's great.

Andy McCabe (52:49)

I love Campbell. Yeah, he's a good dude, all right. If Boomer sounds familiar, before he left his job, he claimed to be a whistleblower and was publicly critical of the Trump administration. During president Trump's first term, he had also testified before a senate committee in 2023 that his informants were the first to alert the government about the possible misconduct by Hunter Biden business dealings in Ukraine with an energy company. He said they provided information, quote, concerning Hunter Biden's escapades in Ukraine with Burisma and how he used his position as the vice president's son to get a lucrative position. According to the charging documents, Buma is also accused of saving screenshots of messages he exchan with a confidential FBI source. Ouch.

Alison Gill (53:36)

Double, triple.

Andy McCabe (53:37)

Good idea. In court filings submitted to a U.S. district Court in New York, investigators referenced Boom, his own book manuscript. In one section, Boomer refers to himself as, quote, one of the nation's top performing counterintelligence agents, man.

Alison Gill (53:52)

When this story came out, like in 2023, 2020, I think 2023, people were like, oh, my God, did you see this whistleblower? This great, amazing whistleblower? And I was like, super. I was like, super sus. He was kind of sketch because of the wording that he was using about calling himself the number one terror guy. And. And I talked to Pete about it, and Pete's like, yeah, that's not what that's called. And this guy sounds a little off. And then we had found out that some of his confidential informants include, like, Chuck Johnson and Eric Garland, who fancy themselves some sort of spies. I don't know, but it was just all real weird. And I was like, I don't know. I want to see where this goes. So now he's been arrested at the airport.

Andy McCabe (54:37)

That's not good. Not good at all. And I don't know what happened here. I'm not going to make assumptions about it. But there's a couple things in the story that are a little bit weird to me, like the fact that they're only alleging that he unlawfully took protected FBI files that were marked secure or confidential. What you're not hearing in those sentences is top secret.

Alison Gill (54:59)

Top secret secret.

Andy McCabe (55:00)

Like, technically, confidential is a classification and the three levels of classification, but, man, you hardly ever see that in the FBI. There's hardly anything. Anything worth anything is classified, at least secret. So I don't know, and I don't know what he took, but certainly sounds like it might have been for the purpose of helping him write the book or something. I mean, I don't know.

Alison Gill (55:21)

My algebra notebook from nuclear power school had to be stamped confidential.

Andy McCabe (55:25)

There you go.

Alison Gill (55:26)

But it was also algebra and calculus.

Andy McCabe (55:29)

They probably looked at the algebra and they're like, it doesn't matter because no one will understand this.

Alison Gill (55:33)

Calculus is confidence. No, it's not classified. It's confidential. Okay, all right, but we, to be fair, we were solving equations about power of the reactor and stuff.

Andy McCabe (55:43)

Maybe that's why I was so bad at calculus in both high school and college, because I just, you know, it was a. It was a confidential thing and I wasn't hip to it.

Alison Gill (55:53)

All right, what do we have today for listener questions?

Andy McCabe (55:55)

Okay, so this first one I'm bringing, for a particular reason, I think she hits on something that I. That I is worth shedding some light on here. And so this comes to us from Jen, and she starts by saying, I consider myself lucky each week to be enlightened with your takes on The I'll say nonsense going on inside the halls of main Justice. Sorry, Jen, I had to throw a little edit there. So thank you for the time and effort you put into the podcast. My question relates to some of the language used in several of the court decisions that have come down in the past few weeks. Many of the judges use the word likely, as in likely unconstitutional. Is this because they are rendering a preliminary decision without having heard all the evidence yet the word seems so vague and uncertain. And it has worried me that these decisions may not stick. Thanks in advance.

Alison Gill (56:42)

I think I know the answer to this. These are a lot of temporary restraining orders or preliminary injunctions that haven't been heard on the merits yet.

Andy McCabe (56:49)

Right, Exactly. Such an important point. AG of course, you jumped right on it.

Alison Gill (56:54)

Yep.

Andy McCabe (56:54)

I still have no, but people need to remember that what we're talking about in the Boasberg case and many of these others is the first step in any of these cases is to issue a stay or just stop the government from doing the thing that's been alleged illegal or unconstitutional or harming someone. It's. The judge is not making a qualitative decision what, at this point as to whether the government was right or wrong or did something unconstitutional. They're making a decision as should we tell the planes to turn around or should we tell the government to unfreeze the money that was previously being paid to these people? That sort of thing. So, Jen, you're correct. When a judge says, I think what I've seen is likely unconstitutional, he's just offering that as like his impression at this point. But it's not a firm judgment at this point that the action was unconstitutional.

Alison Gill (57:50)

Right. And one of the standards in order to issue a temporary restraining order is that there's a likelihood of success on the merits.

Andy McCabe (57:57)

Right.

Alison Gill (57:58)

And likely is built right into that likelihood of success on the merits. So sometimes what they're saying is likely unconstitutional, so they're going to be likely on the merits, which allows me to issue this restraining order.

Andy McCabe (58:10)

Yeah, for sure. So it's a good pick, Jen, and it gives us an opportunity to. I think it's helpful for people to kind of remind themselves that, like, we're at the very beginning of what, as you listeners all know, can be a long and torturous course through litigation. This is the very first step. And so we don't have final decisions just yet.

Alison Gill (58:29)

Yes. And as much as we would like to see them thrown in jail for contempt, you can't circumvent due process, especially in a case about Due process.

Andy McCabe (58:38)

Yeah, Right. I mean, that's why we're all here every Sunday. We care about due process because it's really important for everyone. Even people you don't like, when they find themselves clamped within the jaws of justice, they get due process, too. And that's how we know when we get clamped in the jaws, we get due process.

Alison Gill (58:59)

That's how it works here. I remember in my Blue Heaven, where Steve Martin, who's playing a Mafia guy named Vincenzo, Vinnie, is like. Because the FBI guy comes in who's. Who's, you know, his handler because he's going to testify in some mob case. Mob trial. And he's played by Rick Moranis and he's yelling at the district attorney for arresting Vinnie. Right. And you're not going to book him on anything. You're not going to book him on anything. This was an illegal search and seizure anyway. It's right there in the Fourth Amendment. And he goes, yeah, it's right there. And it's in the Constitution. And. And she says, yeah, but they didn't put it in there for you. And Vinnie goes, I actually, I'm exactly the guy they put it in there for.

Andy McCabe (59:38)

Exactly right, exactly.

Alison Gill (59:41)

If you haven't seen my Blue Heaven, please do.

Andy McCabe (59:44)

Yes. I. I don't think I ever have, but I will. I will.

Alison Gill (59:48)

It's an FBI guy with a mob guy who's, Who's. He's got to keep alive to testify at trial. And it's Moranis and Steve Martin.

Andy McCabe (59:55)

I mean, you can't beat that lineup.

Alison Gill (59:57)

And the DA is Joan Cusack.

Andy McCabe (60:00)

Nice. Very nice. All right, so second question comes to us from Michigan State Rep. Carrie Rheingans. So rare that someone puts their whole name in the question. I thought, hey, Kerry, good for you. Okay. Kerry says, given Chief Justice John Roberts statement about Trump's politically motivated call for impeachment of the judge that ordered the return of the deportees illegally deported under the guise of the wartime Alien Enemies Act. Might Roberts and the rest of the Supreme Court be slightly less supportive of Trump in the next Trump argument about presidential power? And she says, looking for a silver lining here.

Alison Gill (60:42)

We talk about this a lot on. On the Daily Beans and over on cleanup on all 45 with Harry Dunn as well. Well, because I, in order to stay smart, I read Steve Vladik's blog one first, and he talks extensively about this alliance between Amy Coney Barrett, Justice Roberts, and the three liberal justices in the last four cases about the Trump administration that the Supreme Court has refused to hear or has handed Trump a loss. And so I think, I think we could see that alliance pop up quite a bit. Although I, my whole reaction to it, I think the episode title Andy was but I never thought the leopards would eat my judiciary, meaning John Roberts. You handed him a crown and now you're surprised when he's whacked you over the head with it.

Andy McCabe (61:27)

That's a perfect reference. It gives me the perfect segue into darkening the silver lining a little bit because I agree with you that there is the possibility that Roberts and maybe Barrett and of course the liberal judges start to really takes some, you know, changes their attitudes a little bit by, by this, these seemingly blatantly unconstitutional actions that are going on, you know, at a great pace here. But here's the problem and I put Roberts square in this camp. They are so committed not to Donald Trump personally, not to his administration, but to the concept of the unitary executive and to the idea of expanding presidential powers to something that quite honestly I believe the framers would never have agreed to. Right. That that's the thing that pushes them deeply into his corner. It's not because Roberts doesn't, I mean, I don't know who Roberts likes, but my guess would be Roberts probably has a lot of dis. Would have a lot of disagreements with Trump on some, on things. But this, he's, he's still somebody who's very driven by that idea. And we saw that in the immunity decision. Yeah.

Alison Gill (62:40)

And like I, we, we thought we might see it if, if Hampton Dellinger had gone to the Supreme Court with his firing saying that the President doesn't have the authority to do that. I was pretty sure Roberts would say, yes, he does. He's got all kinds of power. Oh yeah, yeah. We'll see with like more of the multi member boards like the NLRB or the Merit System Protection Board, like Kathy Harris is going to go up to the Supreme Court pretty soon and argue her job and we'll see what they say about that about lower officers. But as a head of an agency. Yeah. I'm pretty sure they would have upheld that decision to fire the special counsel, Hampton Dellinger from the Office of Special Counsel. Not like a special prosecutor.

Andy McCabe (63:20)

Right.

Alison Gill (63:21)

And you know, so that's why I'm like, well are they gonna say, yeah, he's got the authority to invoke the Alien Enemies act even, you know, if it's a wartime act, like he's got broad authority.

Andy McCabe (63:34)

They could, that's, that's part of it would, would be attractive to them. The thing that I think is working against Trump on that one, though, is that that the statute is so clear. There is no declaration of war here. And first of all, contrary to what the DOJ lawyer said, the president doesn't get to declare war. That is a power specifically reserved to Congress in Article 1 of the Constitution. So you're on thin ice there. And the historical use of the act only being associated with actual wars, like, I feel like it's going to be a tough one.

Alison Gill (64:08)

And the problem here, though, also is that there's a separate case in, within this case, like an inception of contempt, because, well, a part of this is whether the government blatantly defied the court order to turn the planes around. And that actually has nothing to do with whether or not his issuing the restraining order was based on good law or good fact. He could be totally wrong about the Alien Enemies Act. Judge Boasberg could be completely wrong, and the restraining order could be vacated by the Supreme Court. But that does not allow you to violate that restraining order. You have to obey the restraining order, comply with it. And then there are ways to say to like a motion to vacate, right?

Andy McCabe (64:51)

Absolutely. Like, that gets back to our answer to Jen's question. Like, what Boseberg is deep in the mud on is the issue of did they follow his order or did they not? He has not weighed in on, on the Enemy Aliens act thing. Did the President actually have the power to do this? That's an issue that they really haven't touched yet. So it'll be interesting to see how it goes. We'll find out one day or another.

Alison Gill (65:14)

Yeah, we will. And we will keep you posted. So everybody, thanks so much for your thoughtful questions. You can again click on the link in the show notes and submit any question you'd like, and we'll do our best to answer them. And in the meantime, I hope everyone has, you know, at least a modicum of sanity this week. May I suggest the Daily Beans? If you're looking to get news but not be real sad about it, we have news with swearing on the Daily Beans podcast. And do you have any exciting plans this week coming up, Andy?

Andy McCabe (65:47)

No, I've been traveling so much and I'm actually traveling right now, as you know. And I'm just looking forward to being home next week. So I'll be there to keep up with the issues and do this again next week.

Alison Gill (66:00)

Yeah, we'll see you all next week. I've been Allison Gill.

Andy McCabe (66:03)

And I'm Andy McCabe.

Alison Gill (66:05)

Unjustified is written and executive produced by Allison Gill. 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.