Jack - Audible Gasp

Episode Date: July 26, 2026

The Justice Department had its worst day so far as it was forced to withdraw subpoenas of journalists and their families after a contentious hearing in Manhattan.  The Justice Department is denying it told the FBI to stand down investigating ICE shootings despite a memo saying otherwise. A US Attorney appointed by the court who was fired by Donadl Trump in under an hour has filed a first of its kind lawsuit challenging his termination. Jim Jordan - who still hasn’t responded to his subpoena regarding January 6th - has made a criminal referral to the Justice Department for Jack Smith on perjury grounds.  Plus listener questions. Do you have questions for the pod or something for HITMEINTHEHEADWITHABAT?  The Datastroyerhttps://www.whitakerbrothers.com/products/datastroyer-702sf-high-security-shredder Check out other MSW Media podcastshttps://mswmedia.com/shows/ Follow AGMueller, She Wrote SubstackMueller She Wrote on Blueskyhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodMore from Andrew McCabeThe Real McCabe on [e-mail] on BlueskyThe Threat: How the FBI Protects America in the Age of Terror and Trump This Show is Available Ad-Free And Early For Patreon and Supercast Supporters at https://patreon.com/thedailybeansOr when you Subscribe on Apple Podcastshttps://apple.co/3YNpW3P Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

MSW Media. The Justice Department had its worst day so far as it was forced to withdraw subpoenas of journalists and their families after a contentious hearing in Manhattan. The Justice Department is denying it told the FBI to stand down investigating ICE shootings despite a memo saying otherwise. A U.S. attorney appointed by the court who was fired by Donald Trump in under an hour has filed the first of its kind lawsuit challenging his terminate. And Jim Jordan, who still has not responded to his subpoena regarding January 6th, has made a criminal referral to the Justice Department for Jack Smith on perjury grounds. This is Unjustified. Hey, everybody. Welcome to episode 79 of Unjustified. It is Sunday, July 26th, 2026. I'm Allison Gill. And I'm Andy McCabe. Allison, we have a first this week on Unjustified. This is a first this week on Unjustified.

is the first time, the lead story, number one, top of the fold is about the loss of the presumption of regularity at the Department of Justice. So for the first time, we're going to open the show with a segment we like to call. Hit me in the head with a bat. Hit me in the head with a bat. And if I ever get off my ass and work and put the jingle together, we'll have a jingle to go with it. But just keep holding your breath. It's going to make it so much better when it finally happens. Yeah, balls in your court. I know. I forget it every day of every week until this moment when we start to show. I'll keep sending you text messages. Call Barron. Call Barron.

Fair, fair. But yeah, you're right. This story is massive. It's absolutely massive and it could have massive implications. Negative massive implications for the Department of Justice. Anna Bauer, a friend of ours over at Lawfare, said that when she was at this hearing we're about to discuss, she heard an audible gasp from someone in the room. when one of the, about something one of the Department of Justice lawyers said. And on Blue Sky, she explained there's only three times she's heard audible gasps. First, when Fannie Willis showed up unannounced and demanded to testify amid her disqualification hearings in the Trump, Georgia case. Okay. Crazy. Yep.

Okay. Second time when Mark Meadows counsel called him as a witness in his federal removal hearing that he lost. Also crazy. Okay. Also crazy. and then during this hearing. Yeah. Yeah, I mean, that's the kind of thing you expect to hear

like in a movie theater of a horror show. You know, like, oh, it's not what you get in court very often. Well, what this DOJ lawyer said was pretty horror show. I mean, as far as things go, that could come utterances that could come from a Department of Justice lawyer's mouth. Yeah, yeah, so much so that, in fact, Chris Geidner, who is the independent legal expert that writes for law dork on a substack. Oh, I love Law Dork so much.

So he's the one that said that DOJ had its worst day so far this past Thursday. Yeah, he even put up the Simpsons cartoon, you know, where Bart says, this is the worst day of my life. And Homer says, you mean the worst day of your life so far. And instead of Bart's head, it's the Department of Justice seal. It's great. You should subscribe. Everybody listening, you should subscribe to Law Dork. All right. I'm doing that today. doing that today. Okay, so Chris writes, the degradation of the Justice Department and the second Trump administration is clear. It is having immediate effects and it will have long-term effects.

Just how degraded DOJ has become was on full display in the Southern District of New York on Thursday. Yeah, he goes on and says, to get why Thursday's happenings are so central to understanding how bad things have gotten, know that the U.S. Attorney's Office for the Southern District of New York is widely seen as one of the preeminent U.S. Attorney's Offices in the nation. Alumni of the office would say it's the key office, and it was openly and sometimes derisively referred to as the sovereign district of New York due to the high view that members of the office held of the office itself. Now, however, things are looking a little different. Over the past two weeks, the office tried to subpoena reporters from the New York Times and ensnared some of the

reporter's family members in a second set of subpoenas for phone records. And when challenged, the office's ability to carry out basic legal research and adhere to general ethical standards were called into question by U.S. District Judge Aaron Subramanian in a sharp hour-long hearing that ended with the Trump administration withdrawing the subpoenas rather than face the almost certain likelihood

of Subramanian quashing them. Inner City Press's Matthew Russell Lee covered the hearing live on blue sky and courthouse news service covered the hearing as well, in addition, of course, to the New York Times report. So it was an altogether horrifying appearance in court for Deputy U.S. attorney Sean Buckley, as well as Kevin Sullivan.

He's a lawyer in the office who was initially sitting in the gallery, but who Subraman called up to sit at the council's table because he was, quote, on all the pleadings. You just do that in comedy shows. Like, everybody moved to the front, fill in the front rows. Yeah. She's calling up attorneys that were in the gallery to sit at the council table.

It's more like getting in trouble in class. No, no. You get up here. Sir, get out of your seat and come up here to the front of the class. So, yeah, he was on all of the pleadings apparently relating to the phone provider subpoenas. And we're going to sort through that in a minute. But from the opening of the hearing, the Subramanian, who was a Biden appointee, made it clear where things were going to end. Yeah, yeah, he did.

after Sean Buckley initially said the government didn't want to withdraw the subpoenas, but instead preferred to keep them on hold, put them on ice in abeyance, you know, while the investigation continues, Supermanian shot back. Either we can quash the subpoenas or you can withdraw the subpoenas, as reported by the Times Michael Grinbaum and Jonah Bromwich. But the more fundamental problem, as Subramanian soon thereafter noted, is, quote, the subpoenas are the last step, not the first step, but the last step when dealing with efforts to subpoena reporters, as courthouse news is Eric Ubalacker reported.

Subramanian specifically referenced the New York Times versus Gonzalez, a 2006 decision from the U.S. Court of Appeals for the Second Circuit. And of course, the Second Circuit is where appeals from New York's federal courts are heard. in that case laid out the standards for addressing efforts to subpoena reporter's phone records. Addressing a qualified privilege for journalists, the government in Gonzalez had attested that it had, quote, reasonably exhausted alternative investigative means of getting the information sought. Now, the Second Circuit held that at least that step, even under compelling circumstances, was necessary before seeking reporters' records. Here, though, in opposing the New York Times motion to quash the subpoenas, the government acknowledged that, quote, there are particular investigative steps that the government is seeking to take in the near term that the government anticipates will be material to this court's assessment of the application of any qualified reporter's privilege here, which is a very complicated and hard to understand way of saying, we haven't done those other steps yet. We're thinking about doing them. And once we do, we hope that that will influence your willingness to support our subpoenas.

Right. We'll do them later. The trust me, bro, doctrine. Exactly. It's like vouching in a grand jury room, right? Yeah, yeah. Hence, Subramanians, quote, not the first step, but the last step comment, right? That's what led to that.

That, however, was not all, Andy. No. As Chris Gardner reports that Lee reported from inner city news, Buckley said the subpoenaing of the phone record. of the mother of a Times reporter and spouses was an error, adding, we own it, we used a public source database. And at that point, Subraman shot back. It seems like the inadvertent errors and we should have done things differently are piling up. Oh my God. Then, regarding the phone records subpoena, Subramanian called Sullivan up and matters got worse. This is probably why he was in the

gallery, not at the council table. Yeah, get your behind up here to the table. Okay, so this is kind of almost in transcript style. So first you have judge. You didn't tell the judge the subpoenas were about reporters about the New York Times? Sullivan, we did not. It was an oversight. Later, we did legal research. Wow. Now that was the point in which Anna Bauer heard the audible gasped. Yeah, you didn't tell the judge that you were subpoenaing reporters? No, it was an oversight. Wow, that's quite an oversight. I mean, it's stunning.

It's stunning to read that. I can't even imagine what it was like to hear it in open court. Yeah, so after saying that, the judge says, wouldn't it have been relevant to know that there had been public reporting? And then Sullivan replies, yes. So let's just frame this out. a little bit. There's two batches of subpoenas on that infamous Friday night that all this broke open. They served subpoenas on the reporters personally, which required them to come into the grand jury

and testify personally. And the Times reported that on July 11th. On July 11th. And of course, they did not follow DOJ policy as weak as it is now, having been weakened by Pam Bondi, but still requires that the New York Times be notified before the subpoenas are served. They did not do that. They just showed up at these reporters' house. They also issued subpoenas to the phone providers for these reporters seeking phone records. They did that, of course, without notice to the New York Times. They then went in front of a judge, and they asked that judge for a non-disclosure order

to basically prohibit the phone providers from telling the reporters that their records had been subpoenaed. And we saw this in the Jack Smith, January 6th investigation, when Jack Smith went to Twitter to get Donald Trump's Twitter account information. Yeah. And they had a legal battle because Twitter wanted to tell Donald Trump. Exactly. Same thing. And they were seeing. But they lost and the judge approved that non-disclosure order.

Right. So this is a very standard kind of tactic in very sensitive investigation. Like, let's say it's a terrorism investigation. And you need, you have this terrorist phone number. You need to get their phone records. You don't want the phone company to tell the terrorists that the records have been subpoenaed. So you can get a non-disclosure order. It's got to be signed by a judge.

And it usually only lasts for a limited period of time. So they did that here. But when they went to that judge, they never told the judge that the subpoenas they had submitted were for reporters' phone records. I mean, that is outrageous. And I think that's one of the things that Subramanian really keyed in on here. But it gets worse because, you know, when they say later we did some legal research. Yeah. There's a case governing this.

And, you know. Yeah. Which they didn't even know about. Yeah. That's what happened here. Subraman went so far as to note that he would ordinarily issue an order to show cause why he shouldn't issue sanctions in a situation like this. And Buckley pointed to a footnote in their filing, address a. the non-disclosure order sought in the matter.

Subramanian called that insufficient to resolve his concerns, and Buckley promised it would never happen again. Somehow it still got worse. When Buckley then told Subramanian about finding the Gonzalez case, which is the governing case here, after seeking and getting the subpoenas, after getting the subpoenas, the judge's question to Buckley, and Buckley's answer spoke volumes. The judge said, you were not aware of the leading case in this. field and Buckley said no.

I mean, dude, first year law student, not even a lawyer, would know to do the research first. Oh, yeah, yeah. Okay, so there was also further discussion about DOJ's nondisclosure arguments and blame shifting surrounding them, given that as Subramanian noted, and this Subramanian said, DOJ on July 11 has made a statement about it. So how was this appropriate? And Buckley replied, yes, we should have done it. I personally did not review the non-disclosure.

I do not review every single piece of paper. Or apparently any of them, I guess. Wow, dude. After a short recess, everyone came back, and DOJ at that point agreed to withdraw the subpoenas. Yeah. But that wasn't the end of it, Andy. In addition to DOJ lashing out at Subramanian and insisting quote, this investigation remains ongoing. The government's actions here did have consequences for

the Trump administration. Subramanian issued an order a little bit later, first confirming on the record that the government has withdrawn the subpoenas. And so the motion to quash is moot because the subpoenas don't exist anymore. Right. Additionally, though, he also issued three other provisions. And in some, DOJ is ordered to come to Subramanian personally if they want to try with these subpoenas again. Subramanian will retain jurisdiction over any related matters in this investigation subject to further briefing on the scope of that retention. And Subramanian ordered the DOJ to provide the court with additional information about the non-disclosure request by July 27th, which is tomorrow. He's not letting that go. So specifically, he said, with respect to the July 14, 2026 application for a

non-disclosure order, the government should on or before Monday, July 27, 2026, furnished to the court on an ex parte basis any internal communications on or before July 16, 2026 concerning one, the decision to seek the non-disclosure order, two, whether the application should or should not reference that the owners of the records or are reporters, and three, whether and when notification of the third-party subpoenas should be given to the reporters. That's deep, man. He is literally requiring him to go into their internal DOJ emails,

text messages, meeting notes, whatever, and find all information that are relevant to those three points. And let's remember where this all started. This was the, hey, I'm Cash Patel. It's Federal Friday. I'm heading to Chicago. Oh, no, you're not. Get over to the White House.

where he spent the rest of the day with Susie Wiles basically running this investigation himself personally. So my question is, are you surprised that it is as effed up as you can possibly imagine? I mean, yeah, this is why... Yeah, and it was about leaks about the cuttery jet. Correct. Yeah.

Well, the fact that Trump couldn't take it home from Turkey because it wasn't prepared to protect him in the way that the old planes do. this thing was just an absolute mess from the first step. Yeah, and correct me if I'm wrong, but asking for all those communications seems like step one in issuing a show cause order as to why he shouldn't hit these guys with sanctions. Full on, full on.

You know, like, you get the sense that he's really enraged here and he wants to come down hard on them, but he's also trying to hold himself back a little bit by not diving into the sanctions piece, because that'll, you know, if he does that, then DOJ has to appeal it. And so that throws this whole thing into some sort of fight that probably won't stop until it lands on the Supreme Court's desk. So, you know, this guy's, I mean, as we know from tracking a million of these cases,

these federal judges and district court, man, they're just trying to get the job done. They don't, they're not trying to get famous in the process of doing the job. So I think he's trying to be responsible and ensure that this never happens again. So I think he's probably going to not go down the sanctions route, but that's just my prediction. I think we're going to see a privilege declaration. Oh, yeah. They're working on that right now. Law enforcement privilege, blah, blah, blah, privilege.

Whole nine yards. It's going to get stickier, I think, before it clears up. For sure, for sure. You know, we'll keep you posted on what happens tomorrow on the docket here. But, man, you didn't tell the judge. that you were subpoenaed, that they were reporters, and you didn't know Gonzalez was the case. Unbelievable.

And it's their policy. It's their policy. It's their policy. Like, you didn't have to do a lot of deep dive legal research to just follow your own rules. Rules that were notoriously weakened by Pam Bondi in April of last year. She put out that memo, the infamous Bondi memo,

basically saying, you know, no one else had the stones to do this, and we're going to start, you know, going after reporters to get to the leakers. But even their own lax policy requires notification. Oh, man. This crowd, just unbelievable. Yeah, so that's why we had to open with Hit Me in the Head with a bat today. But there's actually another whole above the fold lead story that we're covering today.

And we're going to get to it after this break. Stick around. We'll be right back. All right, everybody. back. Our other lead story this week comes from ABC. House Judiciary Committee Chairman Jim Jordan issued a criminal referral against former special counsel Jack Smith on Wednesday for allegedly making, quote, willfully and intentionally false statements when testifying before Congress last December. Quote, the committee on the judiciary writes to refer strong evidence that it appears to show

Jack Smith, former special counsel, knowingly made false statements during his December 17th, 2025 deposition. That's what Jordan wrote in a letter sent to acting attorney general Todd Blanche. In the letter, Jordan questioned what Smith said under oath about obtaining phone records of 44 lawmakers who communicated with President Donald Trump and other members of the White House related to efforts to overturn the 2020 election. Quote, this information calls into question the completeness and the accuracy of statements that Mr. Smith made under oath to the committee regarding his team's access to the content. of members' text messages, Jordan wrote. Jordan stated that responses by Smith during congressional testimony, quote, gave the impression that neither Mr. Smith nor his team had access to the content of members'

privileged text messages. We now know this to be false, Jordan wrote. Oh my God. His conduct can only be understood as an effort to thwart the committee's inquiry by intentionally making false statements and representations before Congress. We therefore believe that sufficient evidence exists for DOJ to examine whether Mr. Smith's actions warrant a charge, the letter added. Okay, well, just like Sean Buckley at the DOJ, never heard of Gonzalez. I don't think Jim Jordan's ever heard of Bronston, but we can talk about that in a minute.

Because I don't even know if it goes far enough to apply here because this is kind of a different situation because he didn't. It doesn't. This thing can't even get off the ground. This thing is just so flawed. The idea of it is flawed. Yeah, it's not like, ooh, he said something that could be deceitful but was literally the truth, which is what Bronson v. U.S. is about. You know, puts the onus on the questioner to ask precise questions.

But in this particular case, and we'll get to it when we read part of Covington's letter, that's Jack Smith's lawyers to Jim Jordan and Todd Blanche, because they're saying you didn't voluntarily offer information you were never even asked about. It's bizarre. Exactly. Yeah. So counsel for Smith responded to Jordan's referral disputing that his statements in any way could be construed as perjury, arguing the effort, quote, reflects a chilling eagerness to weaponize the justice system by attacking a career nonpartisan public servant who faithfully and fearlessly performed his duties by following facts and law.

top judiciary rep Jamie Raskin slammed the GOP-led criminal referral, calling it baseless and vindictive. Quote, Jack Smith was clear and consistent in his testimony, and he told the truth. When asked if his subpoena, remembers toll records, sought the content of either member's phone calls or messages, he truthfully replied that they did not. That's what Raskin said in the statement. Raskin said the referral, quote, if ever brought before a judge, will get laughed out of court and is meant to harass Jack Smith. Criminal referrals are just recommendations and do not always lead to a prosecution. This move by Jordan comes after Blanche said last week at his confirmation hearing that DOJ might investigate Smith over alleged perjury.

Quote, have you thought about investigating this guy for perjury? GOP Senator Josh Hawley of Missouri asked of Blanche after recounting testimony where Smith previously denied the toll records obtained from members of Congress did not include the contents of messages. Quote, we take testimony in front of this body very seriously. Yes, Blanche responded. Yeah, because during Jack Smith's investigation into January 6th, his office sought limited phone-told data from eight senators

and a member of the House in the days surrounding the January 6th assault on the Capitol. And while such records would not involve the content of any phone calls or messages, multiple Republicans have incorrectly claimed that Smith had tapped or, their phones or spied on them, right? And, God, that's all they could brought. That's all they brought up in those hearings with Jackson. My phone record. You got my phone toll records.

You got my phone records. That was their major complaint. Yes. Like, they're being spied on. Meanwhile, you've got the Republican government gathering all of our information from the IRS and the Social Security Administration and feeding it to ICE and DHS and demanding it from state voter rolls. Voter rolls.

trying to put together a national citizens list. Like, tread on me, Daddy. Like, what are you even talking about if you care, if you claim so hard to care about, oh, you invaded my privacy by getting my phone records? You committed a crime, bro. We were investigating it. That's right.

That's how it goes. Now, records released ahead of last week's hearing indicate that contents of messages obtained by Jack Smith's teams related to messages handed over by the National Archives, not the toll records he referred to in his original answer. So he did get text messages from the archives, but that's because he was looking at executive branch messaging

for under the Presidential Records Act. That's right. And the questioner didn't ask, did you get text message content from the National Archives? They said, when you serve the toll record subpoena for our toll records, did you get content? And he said accurately, truthfully, directly, no. Quote, I think he should absolutely be investigated, Holly said. Oh, I'm sure you do. I hope that you will

investigate Jack Smith for perjury, and I hope that possibly you will prosecute him. So I guess Holly is both investigator and judge and jury now. Quote, yes, Senator Blanche said, Trump has long called for Smith to be investigated. In an interview with MS Now earlier this month, Smith said the U.S. is facing an attack on the rule of law that is different in kind and scope to anything I've seen in my lifetime. Yeah, for sure. And we have some excerpts from the letter that Covington wrote to the DOJ. The House Judiciary Committee's referral to the Department of Justice of our client, Jack Smith, is based on a spurious claim that Mr. Smith provided false testimony during his eight-hour deposition December 17, 2025. The referral, the referral.

referral is made not because Mr. Smith made a false statement, the letter concedes he did not, but because he did not proactively disclose information that was not responsive to a question asked. Right? And so, I mean, it's like that's kind of the piece that I'm talking about there. The letter goes on to say, moreover, contrary to the referral letter's assertion, the speech or debate clause was not implicated by the collection and review of text messages on the phones of White House officials. That important constitutional provision, which Mr. Smith and his team took seriously and safeguarded, protects members of Congress from having their legislative acts used against them. It does not prevent prosecutors from using or reviewing text messages between members of Congress and members of the executive branch in an investigation and prosecution of an executive branch official, Donald Trump, which is precisely what happened here. Yeah. Yeah.

And get this, because you and I talked about this when we were covering the Jack Smith investigations. During discovery, the letter goes on to say, Mr. Smith and his team were also transparent in disclosing all these text messages to Trump's personal counsel on discovery and discovery. If President Trump's attorneys thought that Mr. Smith and his team had done something unlawful or improper in obtaining these text messages, they could have filed a motion to that effect. Notably, they did not. This whole thing enrages me on so many different levels. But yeah, the fundamental principle is you can't base a perjury investigation or a 1001 false statement investigation on something that someone did not say. You have to have a statement. And it's not just any statement.

You have to have a very clear and direct statement that was given in response to a clear and direct. If there's any variance or we're not sure, it's ambiguous, there will not be a successful prosecution, which is why the Department of Justice routinely turns down referrals from Congress about people who allegedly lied under oath in hearings. Very, very hard to make those cases. And as a general rule, a normal Department of Justice doesn't really take them up. No. And it's deja vu all over again because you and I talked about this with the first Jim Comey indictment about the Daniel Richmond stuff when he was going, Ted Cruz was going on a tirade about you.

That's right. And we talked about the Bronson literal truth defense. Yeah. And I remember that he was a movie producer that was asked if he had a Swiss bank account. He said, my business has a Swiss bank account. He also did have personal Swiss bank accounts, but that was literally the truth. And the Supreme Court overturned his perjury charge saying it's up to the questioner to pin them down and to get the right questions.

And I also brought up the irony that that guy, Bronsten, went bankrupt, making a movie about the fall of Rome, which is... Cagy guy at the witness table, but maybe not the greatest producer of judgment. I don't know. So, yeah, okay.

So the other layer here is that they're pissed at him for not giving them more information that they did not ask for. Yet, as you and I know, Jack Smith went to DOJ before this interview and said that he wanted to be able to talk about the report that's still classified in Eileen Cannon's courthouse. And they said, no, you can't talk about anything that's not classified but sealed. And if you do, you know, we're going to come after you.

So he had to be like laser careful about everything he said to not exceed the scope of the question, to only answer directly, don't implicate, you know, sensitive information. So he did that effectively, denying them the opportunity to prosecute him, and now they're going to try to do it anyway. It's just, it's so offensive. And finally, the arrogance, the unbelievable arrogance of these people who absolutely think they are 100% on a different level than every, than all of the rest of us. You really want to throw legal hands with Jack Smith. And they think, you think the speech in the Bates the sanctity clause protects the sanctity, the reverence of your communications in text messages that you sent to other people?

Newsflash, dude, once you send it out in a text message to someone else, it's gone. It is gone. It can end up anywhere. That's the same shit that the rest of us deal with every frigging day. Right. And that's why they want to not have to hand over, you know, remember a couple months ago, they put out a memo saying we shouldn't have to hand over our communications to the National Archives and like just yeah we think the presidential records act is unconstitutional right we shouldn't have to

comply with the law oh it's so outrageous they put out they even whipped up an olc memo saying it's it's not constitutional presidential records act because maybe they saw this coming down the road it's just bonkers but again despicable people yeah really a horrible and and you know i don't think they're in this to win a conviction they're just in it for the news maybe a perp walk or something They're in it because Donald Trump wants it. Yep. So they're going to do it. And Todd Blanche has already said the investigation's open, and they're going to throw

whatever spaghetti they have at the wall, and they're going to try to indict him. Not a question in my mind. Only one reason they'll do that is because that's what Donald Trump wants. And that's what they're here to do. They're not here to actually find justice, get justice for American citizens, to execute judgment, to follow the law and follow the facts in a fair and unbiased way. No, they're not here for any of that. No, of course not.

All right, coming up next, we have another block of Hit Me in the Head with a Bat. This one has to do with ICE cases. And we'll talk about that right after this. Stick around. We'll be right back. Welcome back. Okay, the New York Times reported this week that federal agents around the country were told in recent days that the FBI would no longer investigate confrontations with immigration agents, cases that sometimes yield evidence that could be used to present.

prosecute Department of Homeland Security agents implicated in violent encounters, according to the people briefed on the decision. If enacted, such a change would sharply limit law enforcement scrutiny of immigration agents as the Trump administration draws mounting criticism over killings at the hands of federal officers. In the last two weeks, two fatal shootings by immigration and customs enforcement agents in Texas and Maine have thrust the government's tactics back into the spotlight. Oh my gosh. All right. FBI managers around the country received a written notice informing them of the change on Thursday.

Of course, the FBI is denying this, but they got a written notice. And that's according to people familiar with the matter who spoke on the condition of anonymity to describe internal communications. The same day, some ICE agents around the country were notified by their FBI counterparts. It doesn't seem like the giant iron fist of Kosh Patel is scaring any of these FBI agents from sharing this information with the press. When you go to war with whistleblowers, this is what happens. People just go straight to the media.

Yeah. Now, the guidance shared with them said that the Bureau would stop investigating claims of assaults against DHS agents, like ICE agents, customs and border protection agents. Even though such investigations are intended to determine whether the officers were in fact attacked, they can provide a crucial means of gathering evidence implicating the agents themselves, right? That's absolutely true. I mean, I think most people see this thing the other way. Like they are saying, why don't we have legitimate FBI investigations of the killings of Americans and immigrants by ICE officers? And rather than turning that around and actually getting involved and doing civil rights investigations like the Bureau has always done, they're going the other way. We're not going to show up and investigate anything because we don't.

want to see anything. A joint statement by the Justice Department and the Department of Homeland Security, however, denied that any such change was underway. Quote, the relationship between DHS and DOJ in investigating assault on federal officer cases has not changed, and FBI will continue to investigate in accordance with agency policy, the statement said. This administration has been clear. Anyone who assaults law enforcement will be prosecuted to the fullest extent of the law. under the change responsibility for investigating cases involving federal immigration officers would likely fall to Homeland Security investigations, an arm of ICE, effectively leaving the agency to investigate itself, according to guidance circulated among FBI and ICE agents.

Oh my gosh. You know, this reminds me of Pam Bondi saying, no bar association, we don't need your help looking into our lawyers, we can do it ourselves. Yeah, 100%. It's unbelievable. No, it's totally believable. It's still really disappointing now. Yeah. Also from the Times, in its nationwide immigration crackdown, the Trump administration has charged hundreds of people with assaulting or impeding federal agents. President Trump has branded them insurrectionists to animals and thugs, part of a broader effort by his administration to cast protesters and immigrants as violent criminals. Marco Rubio even just this past week tried to tie Antifa to Cuba and Iran. I think he's trying to go. to have State Department classify Antifa as a foreign terror organization. I think that's where he's headed.

Oh, my God. But a close examination of these cases reveals that in its rush to meet White House demands for deportations, federal law enforcement, has engaged in extensive misconduct, ranging from attacking protesters to destroying evidence and misrepresenting facts in court. And the New York Times has found that the Trump administration has filed assault charges against more than 550 people who were caught in its immigration dragnet, far more than previously known, and of the more than 400 cases resolved so far, nearly half have fallen apart.

Juries, they're acquitting the defendants or judges are throwing out the charges, or prosecutors are withdrawing them. Half, Andy. 50-50. I mean, wow. From a 99.6% conviction rate. Yeah. The Times' analysis of the 213 cases that the government has lost or

abandoned found that in dozens of cases, court records and videos show that federal agents were the first to get physical, including shoving, tackling, or pepper-spraying defendants. Many defendants successfully argued that the assaults they were accused of were actually acts of self-defense. Judges repeatedly chastised prosecutors and immigration agents for misconduct, including distorting facts, that's also known as lying, and withholding evidence. Two judges found that agents purposely destroyed evidence, including ordering a defendant to delete cell phone photos. Officers charged more than two dozen people who are filming or following agents, often while honking their car horns, blowing whistles, or shouting warnings like,

La Migra is coming. There was no allegation of physical contact with agents in these cases. So where's the assault? And in more than 100 cases, prosecutors did not claim that any agent. agents were even injured. In at least seven other cases, officers' injuries were caused by their own colleague's actions, for example. A judge last fall dismissed assault charges against an immigrant ruling that the agent involved had been cut by shards of glass from a car window he himself smashed. Yeah. 65 times. 65 times prosecutors abandoned or downgraded charges before hitting a deadline

to present evidence to a grand jury or a judge. Sixty five times. Wow. Former prosecutor said that this pattern of rapid retreat was unusual and signaled that the cases should never have been brought in the first place. Well, yeah. That's one way to put it. I mean, 50%. It says in the script, Andrew, comment here and you're like, well, yeah. I mean, what can you say? It's so awful.

I mean, and these are facts. This is like data to bear out what you and I have been talking about. the death of the presumption of regularity and the degradation of the Department of Justice was the whole reason we started this thing when the Jack podcast ran out of gas with no cases to follow. And we were like, maybe there's something here.

It seems like things are primed for DOJ to be just... What should we talk about? Yeah, what should we do now? Well, maybe we could just take a look at the Department of Justice. Seems like it might be a little bit of a mess. Yeah, here we are. I just, you know, and it infuriates me time and time again when like Tom Holman, who is, you know, the immigration czar, whatever that means, is answering reporters questions or obfuscating reporters questions. And every time the go-to example is of, oh, we hold our people accountable. We're holding people accountable is the Sosa-Sellis case, right, in many hours.

where you had these two immigrants who were trying to get into their house as ICE was chasing them. And the ICE officer, of course, claimed falsely that they attacked him with a broom and a shovel or something like that in the front yard. Of course, he just chased them to the door and then shot them through the front door. Yep. And they only found out about him when they tried to build the prosecution against the two immigrants. And in the course of doing that, they pulled video that showed that the agent. and it lied. Like, that's not DHS holding their own people accountable.

That's them stumbling across the truth while trying to throw someone else in jail. Right. There wasn't like a proactive investigation, a civil rights investigation that determined that. So it's just the whole thing is, yeah, it's just shameful, absolutely shameful and dangerous. Yeah, I agree. All right. So also from the Times, the U.S. Attorney's Office in Chicago is among the most prestigious in the country, known for winning ambitious cases against everyone from Al Capone to the former

Illinois Governor Rod Blagojevich. But the Trump administration's immigration sweep in Chicago last fall has left the office in crisis. The office brought a wave of doomed cases that accused protesters and immigrants of assaulting federal officers. That accelerated an exodus of veteran prosecutors, some of whom felt that they'd been wrongly pressured into pursuing the charges former prosecutor said in interviews. The heads of all seven sections of the Chicago office's criminal division have left in the past year, as have many of their successors and deputies. Yep, and we'll do some numbers here from Chicago, a standalone.

More than 100 former federal prosecutors from the office recently signed a letter criticizing Butros, Andrew S. Boutros, that's the U.S. Attorney for the Northern District of Illinois. That's the one who presided over the Broadview Six case, where they did all the bad grand jury stuff, saying that, quote, actions taken by leadership in the last year have tarnished the reputation of the office. Under Mr. Butros, the office brought dozens of federal assault charges against immigrants and U.S. citizens who protested the Chicago sweep, known as Operation Midway Blitz. To handle the flood of cases, Mr. Butrosse redeployed prosecutors from across the criminal division. He also eliminated the standalone national security section, long considered a leader in

terrorism cases and shifted the work to an unrelated unit. The New York Times identified assault cases against 62 people that Mr. Butrus's office brought under the once obscure federal statute 18 U.S.C. 111. And that's the statute that makes it a crime to basically impede federal officers in their work. So these cases have flopped at an extraordinary rate. Some 59 charges were were abandoned by prosecutors or dismissed by judges, an analysis by the Times found. That's 59 out of 62. That's almost all.

You're right there on the verge of 100% failure. Only one resulted in a guilty plea, and there have been no convictions in court. Two cases are pending. Zero convictions. Wow. That's right. That 2% success rate is a stark reversal for the Justice Department. which wins an average of more than 90% of criminal cases.

Yeah, I'd say that's a bit of a plunge from 90 to 2. Wow. Yeah. Yeah, and 90's the low end, like we said. Totally. D.C. U.S. Attorney's Office in 99.6? Yeah. I don't know an office that's been healthily at 90.

No. I mean, that's crazy. Wow. So that's a close look, a deep dive just into the, you know, the 111 cases. right and we saw a lot of videos that were going viral around the time of the killings of Alex Prattie and Renee Good along with Operation Midway Blitz where you would see ICE agents people would be in their cars honking and filming ice and the ice agents would walk up and try to grab their phones and say US 111, U.S. 111 baby, 111, read it and weep, you know, like

they sent out a memo that week and they just learned about it and everyone's like, site US code 111. Yeah, all over the place. And the 2% success rate. Yeah. You had incidents of ICE agents going up to people in the same circumstances who are following them or near them. And they're like, we know your name.

We know where you live. And they would take a picture of them and say, I think that's for our database. Yeah. Yeah. Yeah. It's like blatantly threatening people who have nothing to do with the work that you're doing. Yeah, it's a shame. Well, 2%.

But they should get little patches. The 2%ers. Yay, we're better than 1%. The DOJ. I feel like I want to make a challenge coin. Congrats on your 2% success rate and just send it to the Chicago office. Mr. Boutros. The 2% are.

It's the 2%ers gang. Yeah. Yeah. All right. We get jackets. All right, everybody, since we've already done like eight installments of Hit Me in a Head with a Bat, in the Head with a Bat, this particular show. We've got like a lightning round coming up after this.

So stick around. We'll be right back. All right, everybody, welcome back. Like I said, since we already hit me in the head with a bat, let's do this lightning round. Because, again, there were just too many stories to pack into the introduction today. First up from Politico, FBI director, Kosh Patel, is planning a visit to beautiful Russia later this year. likely in mid-October, according to a U.S. official and a person familiar with the situation, it would be, quote, an unusual and sensitive trip for an FBI chief to one of America's top adversaries.

That's a very delicate way of saying. WTF, right? Soup sandwich. Yeah, soup sandwich. The plans come as Washington and Moscow continue to be at odds over the war in Ukraine, with U.S. lawmakers demanding the imposition of heavy new sanctions on Russia. According to the U.S. official familiar with the travel plans, Patel is scheduled to visit Russia October 14th and 15th,

first stopping in Moscow and then St. Petersburg. His host is likely to be the KGB, which is now called the FSB. So he's going to go visit the KGB in Russia, the FBI director on our tax time. Just thought you all should know that. Yeah, maybe you can get in some like water skiing or sparkling or something when he's there. I was going to say. Well, helicopter ride. Careful, though. Russians have a habit of like pushing people out of those things.

They don't like them. Be careful. You don't want to catch fourth floor window cancer. I actually think they'll be super happy to see him because this is the guy who spent years attacking the investigation into Russian meddling in the 2016 election. Screaming and yelling about it being a hoax and it's fake and fake news and I'm going to go after all the people that were involved in it. So, like, he's their guy already. Like, he's already on Team Russia. Yeah, I don't think he has to have anybody test his tea for him. No, no, he's in good shape.

All right. Next up from Bloomberg Law, the Justice Department is quietly recruiting prosecutors for a public corruption initiative within its White House-linked fraud division. Can't believe I just said that. A White House-linked division at the DOJ is bananas to me. Potentially ramping up politically charged. investigations of state officials ahead of the midterms because, you know, the election and everything. DOJ's National Fraud Enforcement Division, which Vice President J.D. Vance, I can't even get this out,

which Vice President J.D. Vance established in January is building out a team exploring how politicians and state officials facilitate the misuse of taxpayer dollars, either by actively participating in or failing to prevent schemes under their watch, said three people familiar with the effort. Prosecuting state leaders who are layers removed from wrongdoing will present significant evidentiary obstacles, former prosecutor said. You think? Quote, under this theory that they're going to go after state officials that are asleep at the wheel, they're going to have to come up with a good theory of fraud liability to be able to pursue that, said Ed O'Callaghan, who is a senior DOJ official in Trump's first term and is now managing

partner of Cahill's Washington field office. That's a big law firm. Quote, the Supreme Court has narrowed criminal liability under the theft of honest services approach. There are other corruption statutes that they can look at, but that's going to be a challenge. So when the guy who was a former paydag who wrote the absolutely illegal and weird Bill Barr-O-Callahan memo that saying that Donald Trump didn't obstruct justice. When that guy says this is fishy. This is going to be tough. Yeah, the guy who was the first paydag to start doing DOJ press briefings from behind the White

House podium. Yeah. Yeah, it's sad. I know, Ed. I worked very closely with him many years ago when he was an assistant U.S. attorney in the Southern District, and I was an agent in New York

doing Russian OC cases. He's a smart guy. And, you know, he knows better. What happened? I don't know. I don't know. Yeah, you should just write him a letter. What do you mean Trump didn't obstruct justice?

What are you talking about? What are you talking about? I'm thinking he probably would not accept my letter. It would be greeted like a white powder letter. Probably quarantine the office and have it removed. All right. Our final story in the lightning round comes from MS now.

The U.S. attorney in Washington State, who was fired just 54 minutes after assuming the office, Roger Rogoff, we talked a little bit about him last week. Love this guy. He's filed a lawsuit challenging his removal, first of its kind, signaling the first legal challenge to his termination. Because we've had other U.S. attorneys appointed by judges. that have been fired by POTUS,

but this is the first one to sue. He's the first one to sue. Rogoff has been placed in the role after a panel of district court judges decided unanimously that he should take the helm at that office. And remember last week, he was like,

I was very proud that all the judges picked me. Yes. Yeah, as you should be, Roger. Rogoff said he believes he was fired because Trump and Blanche, quote, don't understand the vacancies act. I feel like he's on to something. I feel like that could very well be true.

Yeah. Acting Attorney General Todd Blanche confirming the, confirmed the firing on Twitter. I can't believe I'm saying these sentences, saying, quote, district court judges can appoint a temporary U.S. attorney and POTUS can fire them. In his lawsuit filed Tuesday, Rogoff argued that his termination was unlawful

because the president lacks the authority to remove judicially appointed judges. A pretty simple, straightforward case. We'll see what eventually the Supreme Court thinks of it, you know, since they've pretty much let Trump fire whomever he wants, except for Fed chair governors, right? Fed board governors, federal reserve board governors. Yeah. I still don't understand that distinction, but okay.

Yeah, I know. That still doesn't make any sense. But this is an inferior officer, right? This isn't, anyway. We'll see what happens. Yeah, for sure. Yeah, I don't see. I don't think Rogers probably betting the farm on this one, but I think, you know what? Good for you, man. Stand up when you can stand up and the way you can stand up. Yeah, yeah. I agree. It's a good question. It's a good question. All right. It looks like we have time for a listener question. If you have a question, we have a link in the show notes. You can click on to submit your question. Andy, what do we have this week?

So first, this is just a mention. This came into us from someone who did not want to be identified because he was afraid that he would seem like a geek for bringing this to our attention. So I'm referring to him as non-identified geek. He went out and found the shredder. Remember the classified shredder we've been talking about time of time? time again, he's like, here it is. Oh, my God.

All right, so hit that link. The DataStroier. There it is. I mean, that would so took me back. Had one, a janky old version of this just outside my office. I can smell it. Yeah. And mine, there was a massive oil stain on the ceiling where the thing would shoot the oil

up at the ceiling and it would just drip down. It's gross. But that's it. Data Destroyer 702 SF high security stride. Heck yeah, 20 sheets at a time according to the description. Yeah, I don't do that. Don't do that. You'll be calling maintenance if you throw 20 sheets in there.

100%. 100%. Oh, man. Okay, okay. So that was just a little to take you back there. Now I feel like doing my insider threat training. Yeah. Janice has a thumb drive.

What do you do? Jenice has a thumb drive. She's also a horrible gambler and has recently been divorced. Should you bring this up to... How do you discuss this in the workplace? My God, I don't know. I'm just trying to have lunch and get back to work. This works for Doge.

Who do you call? Okay. So our question this week comes from Jan from Paris, the city of lights. Bonjour. Yeah, Jan says, Hello, Andy and Allison. First of all, perfect tone and diction by Andy, his for sure conclusive catchphrase is far more better than the one popularized by Mr. McCron a few months ago. Thank you, Jan.

I'm not really familiar with that one or even my own, apparently, but it did make me a little nervous this show. I'm trying to avoid saying for sure. But anyway, she goes on to say, Alison, big up, your impersonation of a famous U.S. attorney needs to go on and on. Thank you. Thank you. I'll do all the impersonations. And all the crimes. All the crimes. I don't care about not guilty. I'm going to, you mess with the reflecting pool. Oh, my God. We didn't even get to talk about Davy Hearn's case today. And I really wanted to because we ran out. There was just so much malfeasance at the Department of Justice. It's hard to choose. But his case is going to be around for a little while. There's going to be more interesting.

That's what I was like, keep it in a pocket till next week. something will happen. Yes, yes. Okay, so Jan says, here's my question. Fundings for DHS and ICE has been granted to overflow them with dollars for years and years and escape scrutiny by Congress. Does a fraction of this funding can...

Okay, so she basically is asking, can some of this funding be awarded to a victim of ICE or DHS malpractices? It could be a long shot, but it could potentially drain some of the piggy bank of the ICE regarding the ongoing list of Hit Me in the Head with the Bat Litigations. Cheers from the City of Lights.

Interesting thought there. Nope. Jam, but that one's not going to work because we have all kinds of weird things in this country. I guess the Federal Tort Claims Act is really where the conversation begins. It's very hard to sue the government for a tort claim, an injury claim.

The whole process you've got to go through and you can't really get through that process and get to filing a lawsuit. unless you meet some very specific requirements. It has to be a violation of your constitutional rights, which could be from ICE. Yeah, I mean, even if you are successful, it comes specifically from a fund in the Treasury Department. That's right. It doesn't come from the agency.

And you can't use, you know, when Congress appropriates money to a certain, I mean, this is how it's supposed to be. When Congress appropriates money to an agency, it has to be spent in that agency. And so since this wasn't, you know, in the Treasury, it's in DHS and ICE, that's where it stays. And DHS and ICE, even if you did sue them, you wouldn't get paid out of their budget. That's right. That's right. Now, I do think, though, first of all, they're going to have a hard time executing this funding, which is like the side of the crazy government financing piece that people don't really think about.

It's always like, how much money did you get? Well, even if all your greatest wishes are granted and you get the big budget, that you asked for, you then have to spend that stuff in a year. Well, I think they're going to spend it buying up all of the detention centers from like Core Civic and GEO group who are like running on a $283 billion debt and deficit to help their friends, right? They got a lot of money to them. They got a lot of money to get rid of for sure. But also if they're not successful in doing that, a Congress could come in and start and begin clawing back some of those funds.

So it's not a closed issue yet. And depending on what our Congress looks like after the midterms and then going forward, you know, their funding situation could change a lot. It's like Brewster's millions. Remember that movie with Richard Pryor? Yes. Where you have to end John Candy, where he had to spend $30 million in 30 days in order to get $300 million. Yeah. I like to when he went to the rare stamp store and he bought the most expensive.

It's all the stamps and mailed it. I mean, I don't know why you didn't just do like buy all the stamps. And anyway. And it set them on fire or something. I don't know. But I guess you can't destroy it. One of the rules was you couldn't destroy it. But that's what federal budgeting is.

You have to spend all the money that you're budgeted. And if you do not, then you, you know, you generally don't get that same budget again. Yeah. Yeah. All right. Great question. Again, there's a link in a show note. if you have any questions for us, you can click on that and submit them to us.

We really appreciate you tuning in. This is a lot of news we had to get to today. Later today, I'm going to be on the breakdown on the Midas Touch Network with Anna Bauer to discuss her thoughts on that hearing that we went over in the A block today. So everybody, you can get a link over on my blue sky at Muller, she wrote, to watch that. And then once it's done being, you know, once. it's over, I'll make sure that it's available at Muller she wrote.com for you to watch. So that's what the rest of my Sunday looks like.

Awesome. Sounds good. Sounds good. Yeah, I don't know. This is like, I feel like the wave of stories and offenses. Jay gets bigger every week. So I guess we can pretty sure count on more same time next week. Yeah.

I mean, those early discussions. Andy, do you think there'll be enough news out of the Justice Department in order for us to put a show together? Yeah, probably. We'll see. Yeah, well. Yeah, I'm not like Mr. positivity. I don't know if you've noticed, but man, this is way worse, even than I thought it would be. Well, yeah, I remember when we were trying to name it and I was going to be like, F the DOJ, and you're like, well, maybe it shouldn't be is that negative. It might not be that bad. Well, no, it'll probably be that bad. You were like, you were trying to be so optimistic about it. And it is just, it's worse beyond anything either of us could have ever predicted at all.

Yeah, for sure, for sure. All right. Well, keep tuning in for the horribleness. There you go. As Chris Gardner said, this is the worst day, worst week for the DOJ so far. Until next week. Until next week. We'll see you then.

Thanks so much for listening to Unjustified. I'm Allison Gill. And I'm Andy McCabe. Unjustified is written and executive produced by Allison Gill with additional research. and analysis by Andrew McCabe. Sound design and editing is by Molly Hawke 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 podcast dedicated to news, politics, and justice. For more information, please visit MSWMedia.com.