Jack - Autocrat Meet Bureaucrat

Episode Date: January 26, 2025

Former Trump defense attorney and current Acting Deputy Attorney General Emil Bove has issued orders to US Attorneys to investigate and prosecute local law enforcement officials who fail to enforce the Trump Administration’s deportation policies; career DOJ officials are being reassigned and purged to make way for Trump loyalists; Judge Cannon has issued an order blocking Congress from accessing Volume 2 of Jack Smith’s final report; the new US Attorney in DC begins dropping pending January 6th cases while federal judges push back on Trump’s pardons of January 6th convicts. All of that and more!Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJStatutes Mentioned18 U.S. Code § 371 - Conspiracy to commit offense or to defraud United States8 U.S. Code § 1324 - Bringing in and harboring certain aliens8 U.S. Code § 1373 - Communication between government agencies and the Immigration and Naturalization ServiceSupreme Court Cases MentionedPrintz v. United States | OyezNew York v. United States | Oyez Follow AG Substack|MuellershewroteBlueSky|@muellershewroteAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

MSW Media. Acting Deputy Attorney General, Emile Beauvais, has issued instructions to U.S. attorneys, ordering them to investigate and prosecute local law enforcement officials that fail to enforce the Trump administration's deportation policies. And new leaders at Maine Justice are reassigning over 20 career officials to make way for Trump loyalists while installing acting U.S. attorneys in both the D.C. and New York districts. Meanwhile, Judge Cannon has issued an order blocking certain members of Congress from getting access to volume two of Jack Smith's final report, preventing key senators from receiving vital information needed to provide advice and consent on Cash Patel, Trump's nominee to lead the FBI.

And federal judges are pushing back on the sweeping pardons of January 6th convicts while the newly minted U.S. attorney in D.C. begins dropping cases against those who have yet to face trial. All of this and more on today's Unjustified. Hey, everybody. Welcome to all of you, all the new listeners. This is episode one of the Unjustified podcast. It is Sunday, January 26th.

I'm Alison Gill. And I'm Andy McCabe. Okay, our new podcast will identify the people, policies, and prosecutions of the new Department of Justice. We'll expose legal deficiencies and provide analysis of the impacts on both the institution and the American people.

Yes, we intend to shine a bright light on the inner workings of the Justice Department. And today, we're going to start with Emile Bové. That's Trump's new acting deputy attorney general, and his, what I think, is an unlawful order to US attorney's offices to prosecute state and local law enforcement who failed to carry out immigration policies.

And if Emile Beauvais sounds familiar, that's because he was Donald Trump's private lawyer, representing him in Jack Smith's election subversion case and Jack Smith's classified documents case, and also the Manhattan DA's hush money election interference case that resulted in a 34 felony count conviction by a jury of Trump's peers.

Emile Beauvais sent a three page staff memo to all Justice Department employees that says in part, the supremacy clause and other authorities require state and local actors to comply with the executive branch's immigration enforcement initiatives. Federal law prohibits state and local actors from resisting, obstructing, and otherwise

failing to comply with lawful immigration-related commands and requests pursuant to, for example, the President's extensive Article II authority with respect to foreign affairs and national security, the Immigration and Nationality Act, and the Alien Enemies Act. The U.S. Attorney's offices and litigating components of the Department of Justice shall investigate incidents involving any such misconduct for potential prosecution, including for obstructing federal functions in violation of 18 U.S.C. 371,

which we know is the conspiracy statute, and violations of other statutes, such as 8 USC 1324 which includes alien offenses like harboring, smuggling, transporting that sort of thing and 8 USC 1373 which requires state and local officials to share information with federal immigration authorities and at the penalty of losing federal funds if they refuse to do so. So the order goes on, declination decisions with respect to resistance,

obstruction, or other non-compliance with lawful immigration related commands and requests from federal authorities shall be disclosed as urgent reports pursuant to the Justice Manual. Now some legal experts have pointed out that this order could be considered unconstitutional, at least as the Supreme Court has interpreted the anti-commandeering doctrine of the Constitution. Lawfare cites two Supreme Court cases, Prince v. United States and New York v. United States. Prince v. United States was a 1997 Supreme Court case that struck down a part of the Brady Handgun Violence Prevention Act. The court ruled that the law unconstitutionally attempted to force state and local officials

to carry out federal programs. New York v. United States was a 1992 Supreme Court case that challenged the federal government's authority to compel states to regulate waste management. The case established that the federal government cannot force states to enact certain laws. So we'll let you know if any lawsuits are filed to stop this order. I would expect they probably will be. Mm-hmm. Especially in those states where attorneys general reside that might be more left leaning and or not Republican.

Or the states that are more likely to resist the immigration orders. So it's all stacking up in that direction as usual. Right, like Chicago and New Jersey, et cetera. But that's not all the three-page memo says from Beauvais. Washington Post reports the memo referenced the newly established Sanctuary Cities Enforcement Working Group, which will work within the Justice Department to, quote, take legal action against state and local policies that clash with the administration's immigration enforcement

goals. At least two senior career officials have been transferred from the department's national security division to that new office since Trump was sworn in. The memo Boves issued Tuesday also instructed federal law enforcement agencies, including the FBI and the Bureau of Prisons, to comb their files for any information that might help identify immigrants living illegally in the United States and to share it within 60 days. Additionally, it detailed a partial redeployment of anti-terrorism and national security resources, including the FBI's Joint Terrorism Task Forces toward assisting in,

quote, the execution of President Trump's immigration related initiatives. And Andy, I know that hits home for you because you worked in anti-terrorism. What are your thoughts on redeploying the slim resources we have for anti-terrorism over to this sanctuary city's working task force? Yeah. So as we've seen, terrorism is not gone, right? We've seen a startling rise of ISIS external operations over the last year.

We saw an ISIS inspired individual wreak havoc in New Orleans on New Year's Day. So to take the JTTFs, the FBI's Joint Terrorism Task Force, this is our nation's kind of frontline of task force officers. So it's FBI and all sorts of other local and state law enforcement officers working together on the same squads and all of the FBI field offices around the country. And this is all they do every day is keep us safe from these sort of plots.

So to drain resources away from that mission, the FBI's number one priority, preventing an act of terrorism in the United States and pushing that into the, what I can only describe as cashing the check on a campaign promise about immigration. I just find it to be wildly irresponsible. Yeah, I agree. In a separate memo, the Department of Justice has told legal service providers who receive federal funding to stop providing legal orientation and other work intended to support immigrants at immigration courts. In a memo obtained by ABC News, the Department of Justice ordered all such legal providers on Wednesday to stop work immediately in those areas, seemingly robbing people seeking asylum and

immigrants of their due process rights to be represented by an attorney. It certainly looks that way. Yeah. And in yet another memo Wednesday, as we feared, Allison, DOJ leadership announced a different but also significant change in the Civil Rights Division, halting any litigation or related actions in cases left over from the Biden administration. The freeze seems to jeopardize police reform agreements that the Justice Department negotiated in recent months with cities including Minneapolis, Louisville, and Memphis.

Yeah, we saw that coming. We talked about that in episodes of the Jack podcast about those consent decrees and civil rights investigations being halted and probably reversed in some cases. So we will keep an eye on that. This is all the early stages. But to talk a little bit, we talked about the JTTF, right? But to talk a little bit more about moving the career officials away, right?

These more mid-level career officials and leaders in the department, setting them aside so that they can't get in the way of anything. That is very frightening to me. But also, you know, when we talk about this prosecution of local law enforcement, I think what kind of got skipped over in the media was that not only is it, I think, wildly illegal to tell the federal government to go after and prosecute local law enforcement because of the anti-commandeering doctrine and the constitution, at least how it's been interpreted by people like Antonin Scalia.

Oh him. Yeah, remember that guy? Yeah. That while he's trying to build this wall down at the southern border, he has ostensibly torn down the wall that keeps the Department of Justice independent from the executive branch with these types of orders. Yeah, there's no question about that. And he's projected that for months, years, really.

I mean, he made it very clear that if you returned to the White House, he expected the Department of Justice to do his bidding, which is why he's getting rid of career officials who've been there accumulating institutional knowledge and experience on really important national security cases. He's got no, no taste for those people now because of the chance that they might do something contrary to what he's what he's demanded, like, for instance, like Sally Yates did in 2017, pointing out that, you know, telling the White House that she refused to provide this sort of guidance about immigration issues to DOJ personnel because she

thought it was illegal and unconstitutional and of course she was promptly fired. So he's figured out how to eliminate friction like that and people who will stand in the way of what he wants to do, whether it's lawful or constitutional or ethical or what have you doesn't seem to be much of a concern. I also think it's interesting that like and you see this with the selection some of the selections of nominees to the cabinet you know we seem to have gotten to a place where qualifications are actually disqualifying. Like people are proposed for jobs

and supported by many on the Hill because they don't have the normal background experience and qualifications that people in those jobs have always had for decades and decades and decades. And so that's why you see people like George Toscas and Bruce Schwartz and others at DOJ being reassigned out of jobs they've been in for many, many years, jobs where they have become

our nation's experts, like absolutely experts on things like, in the case of George Toscas, terrorism prosecutions. There's nobody in this country who knows as much about how to build and make a successful terrorism prosecution as George Toscas. He's literally been in the middle of every one of them over the last two decades, probably.

Bruce Schwartz was our kind of perennial expert on international legal relations. So the work that we do to try to encourage other governments to adopt democratic reforms and to provide due process rights to their people and things like that. Bruce is, I wanna say kind of the James Bond of DOJs, but actually he's really more Austin Powers

than he is James Bond, but an incredibly good guy. And so experienced. Well, now I want to hang out with him. Yeah, so respected all over the globe, and certainly by his colleagues at DOJ. So you just take people like that and rip them out of their jobs, put them someplace else where they're likely not to stay

because it's not the work that they prefer to do. But I'm not saying that anyone has a right to a job for life and the government. You certainly don't, but we cut our own legs off when we throw people out the window or out the door and they take with them all of that expertise and capability. We are seeing a degrading of the capacity

of the Department of Justice in ways that we won't even see on a day-to-day basis, but it's happening. Yeah. And we saw that a lot in the first administration where, for example, the five people who I dubbed the Comey Five that were shown his contemporaneous notes about loyalty in those meetings with Donald Trump by Jim Comey were reassigned to weird human resources desks and often fired or drummed out of the department. And now we're seeing it on a much wider scale. And I did notice too, Emil Bove in his memo about how the Supremacy Clause allows the federal government to prosecute

local law enforcement for not enforcing their immigration policy in this case. He seemed to be pandering to this particular Supreme Court a little bit when he said the president's astounding Article II powers. That really echoes this particular Supreme Court's views on the unitary executive theory that the president has way more power than the other two branches of government, if that makes sense. So I felt like he was writing this memo with the fact that somebody was going to sue over the anti-commandeering doctrine in mind when he mentioned the Article II powers of the presidency. It's everyone's go-to. I tell my students this in class. When in trouble, cite Article

II authority, right? Cite Commander-in-Chief authority because it's so broad and it's so respected traditionally by the courts. Courts will not get in the way of interpreting what is or isn't a national security threat. Once the president weighs in under commander of chief authority, that gets a lot of deference. So consequently it becomes the rationalization for everything that a president does

and is challenged about. I also thought it was interesting, like the memo is a bit of a faint, right? It's like, oh, we wanna have all these prosecutors and looking into all this stuff and prosecuting people criminally if they don't do what we want. But really the only place there's any sort of kind of grounds to base a criminal prosecution on is if someone in a state or local, you know, law, let's say law enforcement position, is like actively obstructing the exercise of federal authority, right?

That can get you arrested, like in any other context it would. If INS comes out or ICE comes out and is trying to arrest an immigrant who's not lawfully here, and you get in their way, physically obstruct them. Like, that's how you could get to a criminal problem, but they kind of wanna make it seem like,

if you don't support us, if you don't salute the flag and give us the information we asked for, you're going to jail. That seems to be quite a stretch, in my estimation. Yeah, no, I agree. All right, we're going to talk more about these moving out of these career professionals and kind of getting them out of the way. And a piece from your colleagues, Andy, at CNN after this quick break.

Everyone, stick around. We'll be right back. Welcome back to Unjustified, keeping an eye on the Department of Justice. Andy, let's talk about a story, like I said before the break, that has been reported by your colleagues at CNN, Hannah Rabinowitz, Evan Perez, and Kara Skinnell. They write, new leaders at the Justice Department, which has been the center of President Trump's ire, have moved quickly to reassign at least 20 career officials, effectively sidelining them from senior level positions where they've worked for years, and that's according to multiple sources. There also has been a shakeup at key U.S. Attorney's offices in New York and Washington, D.C. Trump has promised to overhaul

the DOJ, which filed two criminal prosecutions against him and the FBI, which conducted a search of his Mar-a-Lago resort. Search is a stretch. They didn't go into that locked closet. I'm still mad about that. Bad search, I guess. They were wearing khakis and no jackets. They called the lawyer and told them they were coming. Anyway, the shakeups come as several new civilian hires have been made at the FBI since Trump took office Monday. Those who have been sidelined at the Department of Justice headquarters in Washington include

senior lawyers in the criminal division, as well as the national security division, which in the past has been insulated from shifting political winds. And prosecutors who work on international affairs, which handles extraditions and immigration matters, the sources said. In some instances, seasoned career prosecutors were ordered to report in the coming weeks to a new task force. The move is viewed by Justice Department officials as a way to push some of the career lawyers who are normally protected during transitions between administrations to consider leaving the department. Yeah, I feel like that's the end goal too.

Federal civil service regulations generally protect career employees at the Justice Department and other agencies from being reassigned for at least 120 days after new leadership takes over. However, the Trump administration officials appear to be interpreting the 120-day rule to not apply in this instance because the Department of Justice is currently led by an acting attorney general, an acting deputy attorney general, while Pam Bondi, the attorney general nominee, awaits confirmation. Therefore, they reason the new leadership hasn't yet started.

So he's put Emil Bové in there. He's put an acting attorney, he's put acting US attorneys in there in DC and New York Eastern and Southern District. So that's not new leadership according to this administration. Yeah, Boves in as the hatchet man. He's in there to do the firings, the reassignments, whatever you're calling them, and then he's gonna probably slide out the door. So he may not even be around for the bondy term, although who knows, maybe she slots him into another empty space there. The changes could become subject to complaints before the Merit Systems Protection Board, a quasi-judicial agency that is supposed to protect civil servants from political retribution in changes of administrations. from political retribution in changes of administrations. Meanwhile, in the District of Columbia, Ed Martin,

a hardline socially conservative activist and commentator, is now the acting U.S. Attorney. And I'd like to turn now to reporting from Ryan Reilly at NBC about Ed Martin. He writes, a conservative activist who has been on the board of a group supporting January 6th defendants has been named interim US attorney for Washington, DC. The position that has overseen the hundreds of cases

brought in the Capitol siege investigation. Martin was a prominent member of the Stop the Steal movement. In a speech at the Capitol on January 5th, 2021, he called on quote, die hard, true Americans to work quote, until their last breath to stop the steal. And on January 20th, the DOJ with new DC US attorney Ed Martin on the signature line, moved to dismiss multiple pending January six cases, including one that is currently in trial. All right, so now back to the CNN reporting. In the Eastern District of New York,

career prosecutor John Durham was tapped as interim US attorney. That guy? Again, I can't get away from him. It's a different guy. It's the son of former special counsel John Durham by the same name. How many of those are there? Who investigated the oranges of the FBI's investigation into Trump's 2016 campaign, was the head of the district's Long Island office. He joined the US Attorney's office in 2005 and has extensive experience prosecuting and overseeing cases involving MS-13 gang members.

And Danielle Sassoon was tapped as the interim head of the Southern District of New York. Sassoon was part of the team that successfully prosecuted FTX co-founder Sam Bankman Fried and Lawrence Ray who was convicted of sex trafficking students at Sarah Lawrence College. Before she joined the office in 2016, Sassoon clerked for two federal judges, including Justice Antonin Scalia. That guy. That guy.

And from those same reporters, we're learning about a new hire at the FBI. Paving the way for promised changes at the FBI, the Trump administration has assigned Tom Ferguson, a former FBI agent who served as an aide to Representative Jim Jordan, to return to the agency, according to people briefed on the matter. Jordan has stood out as one of the FBI's harshest critics and led a subcommittee focused on the so-called weaponization in the Bureau and other agencies. Ferguson is among several new civilian hires at the FBI since Trump took office on Monday

that officials say are expected to help prepare for the arrival of Cash Patel whose nomination for FBI director is awaiting Senate confirmation. It's unclear what Ferguson's specific position would be but he's expected to serve as an advisor to Patel, sources said. And in a post on his LinkedIn profile last week this guy Ferguson thanked Jim Jordan, chairman of the House Judiciary, for his faith and trust. He added that he was humbled and excited to see what the Lord has in store for me serving in the new administration. Ferguson worked at the FBI for more than 22 years, according to his LinkedIn profile, including as a supervisory special agent. He left the agency in 2022 and since then has worked as a senior advisor

on the House Judiciary Committee. AG, I'm starting to think that if Ferguson is advising Patel, I'm unlikely to get my ID back to enter the FBI headquarters. Yeah, I don't think that yeah, you're probably persona non grata. That's kind of mean. Okay. Other posts on Ferguson's account show him railing against socialism, woke ideology, and what he says is political overreach from leftist politicians and activists. In one of those posts, a bullet point list entitled, I remember when dot dot dot Ferguson writes, I already don't like him as a writer, but anyway, Ferguson writes

that the FBI was once quote, an esteemed national treasure and hadn't forgotten their oath to remain apolitical. Okay sir. Senior FBI Special Agent Brian Driscoll was installed as acting director of the FBI in recent days following the resignation of FBI Director Christopher Wray and subsequent retirement Monday of FBI Deputy Director Paul Abbate. Wray, the FBI Director Trump hired in his first term, resigned after Trump made clear that he planned to fire him. And Abbate announced his retirement after the incoming administration said it planned

to appoint new acting leaders in the top two jobs. Patel's confirmation hearing is set for January 29th. So Andy, it seems like with these high level and mid level reassignments that the administration is trying to circumvent any possible pushback from career prosecutors and federal government employees like you said with the example of Sally Yates in the first Trump administration. And that also seemed evident this week as the Office of Personnel Management tested a new email distribution system that reached all government employees without having to

do the normal thing. Normally you issue a memo to agency directors and they send the emails out. So it feels like they're trying to circumvent that. That all government OPM email test came at about 20 minutes after midnight, early Friday morning, late Thursday night. And it came after there was some apparently some consternation among Trump officials and maybe Trump himself when certain agencies softened the language in a memo that went out earlier this week,

instructing federal government workers to inform on their colleagues who may have altered DEIA language in their contracts and job descriptions to escape being targeted by the administration for elimination. So I feel like the biggest roadblock to some of these early federal worker policies are those mid-level career professionals.

And by reassigning them, or moving their jobs across the country, or developing an email system where the OPM can directly reach all federal employees, are ways to get around that kind of resistance. Yeah, I totally agree. I mean, in terms of the leadership changes, the, the leadership changes at the Bureau, yeah, it's, it's a two-sided coin, right? The, then the purposes are the same. You're going to get rid of the person who's there on the off chance that they may not be slavishly loyal to the new administration. And you want to put in someone in that position who is a slavishly loyal to the administration. So I don't think any of that position, who is slavishly loyal to the administration.

So I don't think any of that is surprising. And especially when on literally on day one, they relaunched schedule F, which basically made all those folks in those leadership positions, people at the SES level across the federal government, certainly including the FBI, are now eligible to just get fired for really no reason. You don't have to have cause or anything like that. So yeah, I think all of this was absolutely predictable. And so this is the wreckage that we all kind of saw coming. Yeah, it's coming pretty fast and pretty furious. I know a lot of folks are pushing back.

There's already been some rescissions of some rescissions. This administration is running up against the giant wall that is bureaucracy. As soon as those memos went out, and for example, as soon as there was another memo saying all people telework and remote work must return to their offices, they must have gotten a zillion emails say we don't have any office space or these jobs have always been telework or remote work or should I send them a letter saying they're being reassigned for to go back 2000 miles back 2,000 miles to this original office, or there has to be so many questions that OPM is gonna have to answer,

that a lot of folks haven't even gotten, they've heard about these memos with these directives, but haven't gotten specific instructions yet on how it impacts them, because there are going to be a million, a zillion questions. The VA, for example, they had just done a huge hiring push on nurses and LPNs and nursing assistants. And at the very first minute, they cancelled, they withdrew all those job offers. And then a million emails must have come in saying, you can't rescind job offers to direct health care providing provided to veterans, people will die.

Oh, you can, you can. But now they've rescinded those rescissions. And over the next couple of days, they're going to be sending out those job offers again. So bit by bit, all these questions and pushback are coming to Home to Roost. This is like the directive to, from OPM to every agency to identify every employee in a probationary status by next Friday. What do you think is going to happen when they all get notified? Oh, you know, probationary employees can be terminated without cause, right? At any time during your term, your probationary period. Their goal is to reduce the size

of the federal workforce, they say. It's also to politicize it, but so they're just gonna take a meat cleaver and start cutting back like in the same way, you know, what is, what the, the figures are that Elon Musk fired 80% of the employees of Twitter, you know, when he arrived as owner, uh, the difference is that Twitter is not in essential government service. Nobody lives or dies based on whether Twitter actually works or anybody likes it. Yeah.

So it's a different thing, but I think you can expect to see this sort of these sort of moves continue for a while. Yeah and it'll it's chaotic from my understanding from all of the people who've been reaching out to me about it. All right we have more to discuss but we have to take another quick break so everybody stick around we'll be right back. Welcome back. Okay. We discussed earlier that the acting US attorney for DC is dismissing January 6 cases. Let's talk now about the pardons and the commutations from Donald Trump for those convicted of wide

ranging January 6 crimes, including assaulting officers and seditious conspiracy. And let's talk about how some judges are reacting to those pardons. Yeah, and this is from Melissa Quinn at ABC, who writes that President Trump's order issuing sweeping pardons for defendants convicted of crimes stemming from the attack on the Capitol has been met with sharp condemnations from federal judges in Washington, D.C., who have presided over these cases and are now dismissing charges at the request of federal prosecutors in this new administration.

The judges publicly voiced their discontent in a trio of separate orders issued Wednesday, two days after Trump granted clemency to more than 1,500 January 6th defendants and ordered any pending prosecutions to be dismissed just hours after he was sworn into office for a second term. On the heels of Mr. Trump's order, prosecutors in Washington have been seeking to end ongoing cases. The Justice Department said earlier this month that there were roughly 300 pending cases related to the Capitol assault. Nearly 60% of those defendants were charged

with assaulting, resisting, or impeding law enforcement, or obstructing those officers during a civil disorder, which are felonies, it said. Citing the years spent reviewing evidence and adjudicating hundreds of cases involving defendants charged with violent and nonviolent criminal offenses, the judges rebuked efforts to downplay the events of January 6th. Soterios Johnson Yep. And the first order here that we're going to discuss is an order issued by Judge Tanya Chutkin, who oversaw the election interference case against Mr. Trump, which was

dismissed by Jack Smith after his election in November. She says no pardon can change the tragic truth of what happened on January 6, 2021. She goes on to say, in hundreds of cases like this one over the past four years, judges in this district have administered justice without fear or favor. The historical record established by those proceedings must stand, unmoved by political winds, as a testament and as a warning. The dismissal of the case, she said, quote, cannot whitewash the blood, feces and terror that the mob left in its wake and cannot repair the jagged breach in America's sacred tradition of peacefully transitioning power. Chutkin's order came in the case against John Benuelos, an Illinois man who was arrested

in March and faced five charges, including obstruction of law enforcement and entering a restricted building with a deadly or dangerous weapon. Prosecutors said he was seen on security footage in a crowd of rioters who breached a police line on the Capitol grounds, and court documents allegedly show an image of Benuelos with what appears to be a firearm in the waistband of his pants. Security footage from the attack later appears to show him scaling scaffolding around the inaugural stage, pulling the gun from his waistband and firing two shots into the air, prosecutors said. Benuelos pleaded not guilty to the charges. Now, another order from US District Judge Beryl Howell rebuffs Mr. Trump's claim that

the January 6 prosecutions represented, quote, a grave national injustice and that clemency would begin, quote, a process of national reconciliation. She said, no national injustice occurred here just as as no outcome determinative election fraud occurred in the 2020 presidential election. That's what she wrote, quoting Trump's proclamation. No process of national reconciliation can begin when poor losers, whose preferred candidate loses an election, are glorified for disrupting a constitutionally mandated proceeding in Congress and doing so with impunity that merely raises the dangerous specter of future lawless conduct by other poor losers and

undermines the rule of law. Wow. How do you really feel, Judge? The judge said she had presided over scores of cases involving defendants charged for their conduct outside and inside the Capitol building and said charges were, quote, fully supported by videos, photos, admissions by defendants themselves during plea hearings, and the testimony of law enforcement and congressional staff who were at the Capitol. Quote, this court cannot let stand the revisionist myth relayed in this presidential pronouncement, Howell wrote.

She added that the cases reflect the work of prosecutors, law enforcement officers, and defense attorneys, quote, to defend our democracy and rights and preserve our long tradition of peaceful transfers of power, which, until January 6, 2021, served as a model to the world, all while affording those charged every protection guaranteed by our Constitution and the criminal justice system. Yeah. And Hal was granting the government's request to dismiss a nine-count superseding

indictment against Nicholas DiCarlo and Nicholas Oakes, who had earlier entered into plea deals and admitted to throwing smoke bombs at police officers and property damage and theft. Oakes founded the Hawaii chapter of the Proud Boys, far right extremist group, according to court documents. The two entered the Capitol and smoked cigarettes in the crypt, which is located just below the rotunda, according to filings. And DeCarlo shouted, where's Nancy? A reference to former House Speaker Nancy Pelosi as they made their way through the building. A third order from US District Judge Colleen Kolar-Katelli

granted the government's request to toss out an indictment charging Dominic Boxx with seven felony and misdemeanor counts. He was found guilty of six counts last year, including civil disorder and disorderly conduct. Kolar Katelli wrote that Boxx was among the first group of rioters who entered the Capitol building on January 6th and went on to overrun police officers in the crypt. He was set to be sentenced on February 21st.

Like her colleagues on the district court, Kolar Katelli said the events of January 6th are preserved through videos, trial transcripts, jury verdicts, and judicial opinions analyzing the evidence. Quote, those records are immutable and represent the truth, no matter how the events of January 6th are described by those charged or their allies," she wrote. Dismissal of charges, pardons, and commutations of sentences, the judge said, will not change the truth of what happened on January 6, 2021. And Collor Cotelli also praised the Capitol police and local law enforcement who responded

to the attack at the Capitol to protect lawmakers and staff, the vice president and his family, and the Capitol building itself. Quote, for hours, those officers were aggressively confronted and violently assaulted. More than 140 officers were injured. Others tragically passed away as the result of the events of that day. But law enforcement did not falter. Standing with bear spray streaming down their faces, those officers carried out their duty to protect. The president also commuted the sentences of 14 defendants, including high-ranking members of the far-right groups, the Proud Boys and

the Oath Keepers. Some, like Oath Keepers founder Stuart Rhodes, were serving sentences after they were convicted of seditious conspiracy and other crimes. And speaking of Stuart Rhodes, on Friday, Judge Maeda barred Rhodes from entering the U.S. Capitol or Washington, D.C. without prior approval from the court. I'm guessing he's probably not gonna get that approval, but that's just a guess on my part. The order follows Rhodes' unannounced visit

to Congress this week after his early release from prison, following the commutation of his sentence by President Donald Trump for seditious conspiracy in the January 6th, 2021 Capitol attack. The order applies to Rhodes and the seven other oath keepers charged in the case. That's a great move. Yeah. And unlike the pardons Trump gave the rest of the nearly 1,600 people charged, these are commutations. They only cut short the sentences of designated members of the oath

keepers and proud boys. That also leaves the verdicts against them and post-release supervision requirements in place for now, pending further litigation. Stay away orders from the Capitol and the halls of Congress have been widely imposed in Capitol breach cases, directing defendants to steer clear of victims and witnesses for now. Quote, the court hereby amends the conditions of supervised release for defendants,

Stuart Rhodes and co-defendants. That's what he said, Metta, Judge Metta, in a one page order, effective noon Friday. Quote, you must not knowingly enter the District of Columbia without first obtaining permission from the court. You must not knowingly enter the United States Capitol building or onto surrounding grounds

known as Capitol Square. So I thought this was interesting because at first, I thought he just gave full pardons to everybody. But he only commuted the sentences of the Proud Boys and Oath Keepers, which if I were a reporter, would lead me to ask him the question, why did you only commute their sentences and not give them full pardons?

Is it because you think they did something wrong that day? Yeah. You know, it's weird too, is the fact that Enrique Tarrio got a pardon. He's the only one. So talk about conflicting messages. There's no way to sort this out logically. So if they all got commutations, including Tarrio,

your suggestion, I think, is unavoidable, right? But because Tarrio got a pardon, it just shatters any sort of logic applying to the whole thing. The only thing I can think is that one of two things, either Trump thinks the only thing he did wrong was burn the Black Lives Matter flag, or because he doesn't understand words and things and photos and videos, or because Tarrio wasn't in town that day, maybe he was like, oh, well, I'll give him a full pardon.

That's logical, but I'm not giving him credit for that. First of all, he don't know. He doesn't know the case, right? He doesn't know where Tarrio was. I think it's payback. He knows the name Enrique Tarrio. He knows Enrique is this tough looking young guy. Yeah, who's always been a big supporter.

And this is just, it's like payback. It's like Trump reaching out and touching his golden scepter to Tarja's shoulders. Like, that's what this is. That's the level that he functions on. So I really don't believe there's anything legally based or logical about disparity there. No, I agree. Good point. All right, we have one more story to get to today. Maybe some listener questions if we have enough time at the end,

but we have to take one last quick break. So everyone stick around. We'll be right back. Welcome back. Okay, our last story today comes from judge Eileen Cannon's docket. Yeah. Yeah. This is the throwback story of the week. It's a court order. I mean, fascinating that she actually produced a court order. Okay. Uh, this order grants Walt Nata and Carlos de Olivares emergency motion to preclude the release of Volume 2 of Special Counsel Jack Smith's report and denying without prejudice President-elect

Trump's motion to intervene. Okay, so here's what Judge Cannon says in the order. Never before has the Department of Justice, prior to the conclusion of criminal proceedings against the defendant, and absent a litigation-specific reason as appropriate in the case itself, sought to disclose outside the department a report prepared by a special counsel containing substantive and voluminous case information. Until now. Stop.

Stop. Wrong. I'm so glad you stopped because I needed oxygen. case information until now. And stop, stop wrong. I was so glad you stopped because I needed oxygen. I was dying. Had she read the Mueller report or the Durham report or the her report or the star report or the, I mean, okay. But, all right. Don't let, come on Eileen. Don't let the facts get in your way here.

Okay. According to the department, this in-camera disclosure to four members of Congress is necessary right now before the conclusion of the criminal proceedings because Attorney General Garland has quote, "'Limited time' left in his tenure as the head of the department and wishes quote,

to comply with the historical practice of all special counsel and also because quote, legislative interest in information about special counsel's investigations in order to consider possible legislative reforms regarding the use of special counsels. She's just making stuff up. She goes on to say, these statements do not reflect well on the department.

Of course she says that, of course. There's no historical practice of providing special counsel reports to Congress, even on a limited basis pending conclusion of criminal proceedings. She's acting like the criminal proceedings are still pending. She dismissed them. She did. She dismissed them. In fact, there is not one instance of this happening until now. She could also bring up there's not one instance of a president hoarding classified documents and obstructing justice and trying to flood a server room to get rid of the evidence and trying to attack the Capitol. There you go again. Get distracted by the facts. I'm so sorry. In fact, there's not one instance of this happening until now. During argument before this court, counsel misleadingly referenced congressional testimony by special counsel Weiss in 2023 as a purported example of such historical practice. But special

counsel Weiss after opposition by the department ultimately agreed to testify on limited matters. Okay, girl. We are also offering this report to members of Congress on limited matters. Okay, girl, we are also offering this report to members of Congress on limited matters. Like, yeah, all right, repeatedly refusing to answer questions regarding ongoing litigation in order to prevent prejudice of the rights of the defendants or other individuals involved in these matters. Here, there has been no subpoena from Congress to the department for volume two. There is no indication of pending legislative activity that could be aided by the proposed disclosure of Volume 2 to the specified members of Congress. Again, I disagree. Kash Patel is mentioned in this report and they need to provide advice and consent on his nomination. There is no memorialization

of any conditions of confidentiality as referenced by the Department. Indeed, there has been no record provided of an official request by members of Congress to review volume two in the manner proposed by the department. Like that would have made a difference if Dick Durbin said, I want to see the thing. To the contrary, some of these same members to whom the department wishes to present volume two have urged the attorney general to release volume two to the public immediately, even if doing so requires dismissal the charges as to defendants Nauta and Dale O'Vara. Again, not dismissal of the charges, dismissal of the appeal. She already dismissed the charges, maybe she forgot. She probably forgot, although that was a

pretty epic mistake in the letters from those two senators to Garrett Garland. They said dismiss the charges and release the report when the charges were dismissed but whatever I don't work there. In short the Department of Defense offers no valid justification for the purportedly urgent desire to release to members of Congress case information in an ongoing criminal proceeding. Again the criminal proceeding is not ongoing my dear. Meanwhile on the other side of the balance, she goes on to say, there are two individuals in this action, each with constitutional rights to a fair trial, who remain subject to a live

criminal appeal of this court's order dismissing the superseding indictment. The department has not sought to leave to dismiss that appeal initiated by the special counsel and there has been no indication by any government official in this case that the department will not proceed on the superseding indictment should it prevail in the 11th Circuit or in subsequent proceedings. These defendants thus retain, as all parties agree, due process rights to a fair trial that would be imperiled by public dissemination of Volume 2. Yet the department nevertheless insists upon disclosure of Volume 2 to members of Congress now, promising that conditions of confidentiality contingent on their good faith commitment

will protect against the potential for prejudice. And if Volume 2 gets released in whole or in part to the public and contravention of those promises, the department assures then, defendants need not worry because this court can cure any damage caused by crafting jury instructions in the future and or dismissing the charges. I don't remember them arguing that, but she is actually more right in this paragraph than she was in the previous paragraph. Yeah, I was going to say the exact same thing. Like, this is the only point she had to make. This whole thing could have been one paragraph. She could have said, as long as the appeal

is still pending against two defendants, I will not, you know, the report can't be disclosed to anyone. Period. Have a nice day. This is why you and I wanted the DOJ to drop the appeal. Yeah, yeah, of course. Like I thought this was a total stretch from the beginning, but she could have just made that point, but no. No, yeah. It goes on. What else does she say? Why write one paragraph when you can write 10?

Because 10 gives you more opportunities to punch Jack Smith in the face. It's very true. She goes on to say, these assertions flounder on multiple levels and do nothing to detract from the obvious. Given the very strong public interest in this criminal proceeding and the absence of any enforceable limits on the proposed disclosure, there is certainly a reasonable likelihood

that review by members of Congress as proposed will result in public dissemination of all or part of volume two. She's assuming. That reasonable likelihood risks substantial prejudice to their due process rights. These defendants who are very handsome and who I love, who remain subject to the protective order in this case. This court lacks any means to enforce any proffered conditions of confidentiality to the extent that they even exist in memorialized form. And most fundamentally, the department has offered no valid reason to engage in this

gamble with the defendant's rights. The bare wishes of one attorney general with limited time in office to comply with a nonexistent historical practice of releasing special counsel reports in dependency of criminal proceedings, it's not, it's an appeal, is not a valid reason. And surely it does not override the obvious constitutional interests of the defendants in this action and the court's duty to protect the integrity of the proceeding. Even less clear is why the department would defend this position notwithstanding its own justice manual, which expressly directs against disclosing substantive case information in a criminal case except as appropriate in the proceeding

or in an announcement after finding guilt. Accordingly, under any balancing of relative harms and interests, defendant's emergency request to preclude dissemination of Volume 2 must be granted. And here comes, after the punches in the face, the final kick in the you-know-what. Prosecutors play a special role in our criminal justice system and are entrusted and expected to do justice. The Department of Justice's position on defendant's emergency motion as to volume two has not been faithful to that obligation.

And then she says, defendant's emergency motion is granted. Who is she to tell anyone that they aren't doing justice? Yeah. And she goes on to just say, you can't share it anywhere outside the department. So here's where I stand on her. And I have been, uh, somewhat the man, the man alone in the woods, like all along, I have said, I've been reluctant to say that she is in the tank for Trump and she's corrupt.

And I still believe that there's not any explicit known evidence of corruption here. Like we can't point to anything and say, oh yeah, she made this particular ruling or that ruling because she's angling for a different judgeship or whatever. But what you can say with absolute certainty is that she is and has been from the very beginning completely biased against the prosecution.

Now the reason for that bias, I can't say, but every single order she signed in this case includes some sort of gratuitous, unnecessary, off topic, like personal attack. D.R.J. bashing. Yeah. And it's, it's phenomenal.

I've never seen anything like that. It does happen. I have seen cases where the judges basically just don't like the prosecutor's case and the prosecutors will end up getting a lot of rulings against them and they'll lose a bunch of motion battles and things like that. But in many cases you can still succeed because at the end of the day the jury sees the evidence

and they make their decision. Here she has been absolutely relentless in beating up the prosecution, even in cases where she had to begrudgingly grant the relief that they asked for because it was so obviously required under the law. That's what I was going to bring up. Even when she was like, your order is granted, but you're ugly and I hate your dog. She was awful. And we talked about this over and over and over. If you listen to all the episodes of the Jack podcast, well, here we go again.

She's granting the order because she knows she can't not grant it. The DOJ's request. But then there's paragraph after paragraph of, I can't believe you did this. I can't believe you asked for this. This is unprecedented. What a bunch of jerks. I'm granting your order. Like, it happens every time.

It's like the last order. The last order before this one it was like okay You know the government has represented that there is no mention of volume 2 in the volume 1 report And then she has its whole extensive footnote saying well you better not be lying to me Like on what basis do they need to be chided about not misrepresenting? What have they misrepresented you? There's not even anything that you accuse them of misrepresenting Mm-hmm, so that and yeah, her absolute bias against the department, but also her uncanny ability to delay.

He she successfully pushed this past January 20th. And I don't think this report will ever see the light of day outside of maybe some FOIA lawsuits that I don't know, go to a different judge. No idea. I could take decades, but maybe, maybe, but you're not, you know. Yeah. All right. So a couple of other, just real quick things here. Kash Patel, you said he's going to have his hearing on the 29th. Pam Bondi has already had hers. And I said we would go over some of Pam Bondi's confirmation hearing here, but we did not have time in

this episode because of all of the shenanigans at the Department of Justice this week. But I know everyone has seen the relevant clips. Everyone, I assume who listens to this show, has seen the relevant clips. She failed to say that she wasn't going to go after members of Congress, et cetera. We saw a lot of preemptive pardons for the January 6th committee members and their staff and also the Capitol police officers who testified in the January 6th hearings. And then of course, you and I covered the pardons that came after Trump took office. But we have other things going on with some high level nominees that we will be covering on this show, including problems with Tulsi Gabbard's paperwork and the hiding and obfuscation

of the length of her meeting with Assad when she met there and how people lied for her. And she lied about the length of that meeting. And trouble with Pete Hegseth's paperwork and how fascinatingly that this was the buried lead. You know, a lot of affidavits came in from like his second wife and his sister-in-law talking about his drinking and his abuse and things like that. His wife had some sort of a safe word with her sister, I guess. Yeah. But the buried lead, the buried headline in that was that those women told that to the FBI. The FBI presented that information

to the Trump transition team, and the Trump transition team left that out of their briefing of members of Congress. So again, controlling what we see or what senators who have to provide advice and consent on these nominations see. So we will keep you posted about these confirmation hearings. We'll talk more about them.

We'll talk more about these nominees because I assume that they are going to get the votes that they need to be confirmed. So we'll talk more about that in future episodes as these folks get placed, but we definitely, we had to talk about all these emergency executive orders and all those things that came down this week after Trump was sworn in. All right, I think we have a couple of minutes.

Let's see if we can get to some listener questions. If you have a question, we have a link in the show notes. Please send us your questions. We're happy to answer them. We love your questions. Andy, what do we have today? All right. So I've got one that I picked up here from Nancy and I picked this one because we got several questions on the same topic. So it's clearly a trend. And it's also Nancy's kind of cover some of the same questions that I've had about this issue. So it's a good way to

cover it real quick. So Nancy says, I'm interested in the ramifications of this attempt to change the constitutional right of birthright citizenship. If it is upheld by eventually the not so Supreme Court, do you think it means just current as of the date of the executive order, or is it a retroactive adjustment to the Constitution? The latter sounds like all the people born to those people who are descendants of past birthright citizens might no longer be citizens. So what do you think?

Well, that's, it's an interesting question. And so just to cover it, so we know kind of where Nancy is coming from here, this has to do with Trump's executive order, kind of obliterating birthright citizenship. And birthright citizenship is memorialized in the 14th Amendment to the Constitution, Section One, which begins with this language,

all persons born or naturalized in the United States and subject to the jurisdiction thereof all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. And then of course the amendment goes on to talk about other things. But that is the source of birthright citizenship. Now Trump's order, it basically prohibits the government

from acknowledging the citizenship or issuing documents like passports and things like that of anyone born in the United States whose mother was unlawfully here and whose father is not a U.S. citizen or legal permanent resident or whose mother was lawfully here but only on temporary status like a visitor visa and whose father is not a US citizen or legal permanent resident alien. But the order also goes on to say that this section shall apply only to persons who are born within the United States after 30 days from the date of this order. So there's the straight answer to your question

is it only will apply forward looking. There's no retroactive impact to people who have birthright citizenship or are descendants of people who have birthright citizenship. But of course it's already been challenged. And one of the judges who was requested to enjoin the application of this or the impact of this executive order has already made comments in that order,

like this is the most obviously unconstitutional order I've ever seen or something like that. So there's gonna be a pitched fight over this. Yeah, he's enjoined it temporarily. And it's a temporary 14 day injunction while he considers issuing a restraining order against enacting this executive order during a pendency of litigation. I'm assuming he will. I mean, he didn't seem to take too kindly to this.

Pretty against it. But all of this is going to turn on the phrase subject to the jurisdiction thereof. That's right. And if this particular Supreme Court does some weird verbal tricks and says, oh yeah, no, this somehow doesn't include these certain groups of people, that is how this will get implemented. Not through an amendment to the Constitution, but through a Supreme Court interpretation of the Constitution as it stands now. And I think I put out a message on Blue Sky. I was like, you know, I put out a message on, on blue sky. I was like, you know, it seems blatantly unconstitutional, uh, ending birthright citizenship. And so

does adding a third term to Trump, to Trump's, you know, time in office. And it seems absolutely abjectly ridiculous, but so did presidential immunity. So did I'm trying to think of what else they'd, oh, section three of the 14th amendment throwing that out. So that that seemed self executing, obliterating Chevron deference, overturning row. Like all of that seemed very like no doi. Yeah. So I, I am literally just going to sit here and wait to see what the Supreme Court says about it. Yeah, yeah. I mean, it's listen, everything is up for grabs at this point. I agree with you. That's the language that if there's any effort to, to substantiate this thing, that's what they'll base it on. It's and subject to the jurisdiction thereof. That's the language. And really what that was in

there for us to acknowledge the fact that like, if you're a diplomat here in this country, you're not here on stat, you're, you're acknowledged as a diplomat, but you're not here as a legal permanent resident or a naturalized citizen. You have a child here when you're in the country and diplomatic status, you're not technically subject to the jurisdiction of the United States because you're a diplomat. Therefore your kids don't become citizens of the United States while you're not technically subject to the jurisdiction of the United States because you're a diplomat. Therefore, your kids don't become citizens of the United States while you're here. But this Supreme Court could say illegal immigrants are not subject to the jurisdiction. And so blah, blah, blah. And then the question would be, well, then who is this for?

Yeah. And also like, oh, really? They're not subject to the jurisdiction. Then I guess ICE can't arrest them. Right. So then they're not subject to the jurisdiction of our immigration law? They're subject to criminal stuff, but not other vague jurisdictional stuff. I'll see, we'll see what they say. I mean, it seems like the judge said, who's a Reagan appointee, by the way, he's been on a bench for decades. Yep. Like this is blatantly unconstitutional and you're insane.

What lawyer signed this? He asked. This is how ridiculous this is. But again, thought the same thing about immunity, thought the same thing about section 3 and 14th Amendment, seemed pretty clear to me. But anyway, we'll keep an eye on it for you. Great question.

Again, if you have a question, there's a link in the show notes. Thank you so much for listening to the first episode of Unjustified. We appreciate you being here. If you're a patron of the Jack podcast, you are automatically a patron of the Unjustified podcast. You don't have to do anything. Don't adjust your televisions.

This will drop right in your feed. We appreciate you and we're glad that you're here. So thanks for listening. And again, if there's any questions that you have or any suggestions about a segment or stories that you would like us to cover about the Department of Justice or the FBI or the intelligence community, send it to us using that link in the show notes. Do you have any final thoughts, Andy? Yeah, I'm just super excited that we're heading down this road again. I think it's cool to be here once again at episode one. We're going to be looking back on this, you know, 100 episodes from now.

Just like, oh my God, can you believe everything that's happened? It's going to be a crazy journey. So buckle in. We're here for you. We'll go through the things that we think are most significant every week and keep you up to speed on the crazy machinations of justice in the United States of America. Yes, and I agree. It's cool to be here with you, my friend. It's cool to be here with the listeners. Not cool to be here in this situation, however, having to report on this.

I would much rather continue the Jack podcast and prosecutions of the former president. Yep. Yep, but we didn't get that show. That show never came. We didn't get that show. That show never came. We didn't get that show. No, we didn't. So anyway, thank you all for listening. We'll be back in your ears next week. I'm Alison Gill.

And I'm Andy McCabe.