Jack - Best Work Day Ever (feat. Virginia Burger)

Episode Date: March 1, 2026

Senator Mark Kelly wins a preliminary injunction that will stop the Defense Department’s disciplinary process in its tracks. Judge Aileen Cannon decides to hide Jack Smith’s report on the MAL investigation from the public permanently. The list of Department of Justice failures in court continues to grow. Kash Patel has the best work day at the Olympics ever. Virginia Burger joins Andy to break down the situation around Senator Mark Kelly. More from Virginia Burger: https://www.pogo.org/about/people/virginia-burger Do you have questions for the pod?  Get this new customer offer and your 3-month Unlimited wireless plan for just $15 a month at  MINTMOBILE.com/UNJUST 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 Trump Questions for the pod?https://formfacade.com/sm/PTk_BSogJ We 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 Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

MSW Media. Senator Mark Kelly wins a preliminary injunction that will stop the Defense Department's disciplinary process in its tracks. Judge Aileen Cannon decides to hide Jack Smith's report on the Mar-Lago investigation from the public permanently. The list of Department of Justice failures in court continues to grow. And Cash Patel as the best workday at the Olympics ever. This is unjustified. Welcome to episode 58 of Unjustified. It is Sunday, March 1st, 2026.

I'm Andy McCabe. And look out, everybody, because you got only one pilot in the cockpit today. That's right. We are all flying blind without my co-pilot and partner, Alison Gill. As all of you Daily Bean's listeners probably already know, Allison is on a much-deserved vacation this week, and she has left me to take care of the store solo. So welcome to Unjustified, the Pirate Radio Edition.

Now, as always, lots to go over this week. But we're going to start this week with an update on a story that we covered a few weeks ago. So you're going to recall that last year, Senator Mark Kelly, and five other former military folks who are also members of Congress recorded a video in which they urged members of the military to refuse to follow unlawful orders. In January, the six members confirmed that they were under investigation by the Department of Justice. As the AP reported at the time, the four House members and two senators all previously served in the military or at intelligence agencies. The FBI contacted them for interviews late

last year after their 92nd video was released. And now they say that they've been contacted by the U.S. Attorney's Office for the District of Columbia, a significant escalation in the investigation. In addition to the criminal investigation, on January 5th, U.S. Secretary of Defense Pete Hegseth formally censured Senator Kelly in what he described as a necessary process step to proceedings that could result in a demotion from Kelly's retired rank of captain and a subsequent. reduction in retirement pay, according to the AP. Senator Kelly then filed a lawsuit challenging Hegeseth's ability to punish him over the video. And that is where this government retaliation effort really started to fail.

On February 10th, as the New York Times reported, federal prosecutors in Washington sought and failed on Tuesday to secure an indictment against six Democratic lawmakers who posted a video in the fall that enraged President Trump by reminding active duty members of the military and intelligence community that they were obligated to refuse illegal orders for people familiar with the matter said. It was remarkable that the U.S. Attorney's Office in Washington,

led by Janine Piro, a longtime ally of Mr. Trump's, authorized prosecutors to go into a grand jury and ask for an indictment of the six members of Congress, all of whom who had served in the military or the nation's spy agencies. But it was even more remarkable that a group of ordinary citizens sitting on the grand jury in federal district court in Washington forcefully rejected Mr. Trump's bid to label their expression of dissent as a criminal act warranting prosecution. And now the latest development has been that Judge Richard J. Leon granted Senator Kelly's request

for a preliminary injunction prohibiting Hegseth and the DOD from taking any punitive action against Kelly until the lawsuit has been resolved. That's a lot to process, but fortunately, we have help. Our guest today is former active duty U.S. Marine Corps officer, who currently serves as the Senior Defense Policy Analyst at the Project on Government Oversight, otherwise known as Pogo. It is our resident expert on all things military justice. So most of you will remember her from an earlier appearance on Unjustified 45 a couple weeks ago, please join me in welcoming back Virginia Berger.

Virginia, how are you? I am doing great. I am happy and excited to be back with you guys. Excellent. We are happy to have you here because this is a really fascinating story that's been coming kind of in and out of our focus for the last several months. So I would say, Virginia, maybe we should start off

with kind of giving us a little reminder of what the obligation is on members of the military, regarding following lawful orders or the other side of that coin, of course, not following unlawful orders. Can you kind of zero us in on that? Yeah. So the impetus for all of this is those six Democrats that went on video and reminded the American military and the public that, hey, if you receive unlawful orders as a uniformed service member, it is your obligation to not follow them. what that means is every person in the military who wears the uniform swears an oath before they start their job, right? Whether you're an officer or enlisted, there's two different oaths. One officer oath.

I took the officer's oath before I joined the Marine Corps. You reaffirm it when you're promoted or what you reenlist. And in that, right, you say you're going to obey all orders that are given to you. Now, if you go into the Uniform Code of Military Justice, which since 1950s, has governed the military and how it is run in all aspects. You look in that and it says, because orders must be lawful and you have to follow them, if an order is unlawful and you receive it, it is then also your obligation to not follow that unlawful order. It is very much contingent that they need to be lawful orders.

Now, that puts a lot of burden on the service number. And I think when people think of this situation, they imagine the sort of prototypical poster. I'll go with the Marine because that's what I know, right? But like you imagine G.I. Joe on a poster, right? So you're thinking the trigger puller, holding the gun in the mess, like, down range. You're like that person who's probably like 20, 19 or 20 years old, they're going to say no in this heated combat moment.

But the reality is if that person is getting the unlawful order, a lot of people above them have probably failed, right? And unlawful orders can take manifest in a variety of ways. And I think the one that maybe jumped to mind, given the topic de jure when the six Democratic lawmakers first released that video is probably, oh, maybe a national guardsman shooting a protester in a domestic appointment situation,

or maybe a boat strike in the Caribbean, right? These are sort of the two unlawful. orders that everyone is thinking about these days. And those are two options, but it could also be, hey, fudge that finance report, make the numbers on this PT test look better so that that guy passes and doesn't get a review board. Right? Like unlawful orders, we, orders are given and executed every single day in the military. Every time I told the Marine to do something, right? You could say that that was an order. Sure. And so you have to sort of expand the scope of, of what you think about when you think about lawful and unlawful orders to realize that it is essentially

telling service members to, hey, keep in mind what you do every day, understand the responsibilities you have been given as a uniform service member of this country, and that it is beholden on you to think critically and make sure you are doing the right thing. Right. So I'm glad you mentioned the uniform code of military justice or the UCMJ in your comments because, you know, it's my understanding, I think. Common understanding is that people in the military who are currently in the military are, they come under the UCMJ. And so if they're involved in, you know, misdeeds or crimes or whatever that happens during the term of their service, those issues are handled in the military system. So can you explain to us why in this case? As we know,

One side of this whole controversy is the fact that the administration has decided to have the Department of Justice initiate criminal investigations of these sitting members of Congress. And so how does this thing end up in the federal criminal system as opposed to the UCMJ? So there are six members of Congress that were in this video. The biggest, most, the highest profile one that is taken on sort of a life of its own is Senator Mark Kelly of Arizona. The other five are veterans themselves. Most of the armed services, Alyssa Slokin, Senator Slokin is a veteran of the intelligence services, who's not uniform. They themselves are veterans, but the key difference is they are not retirees.

I see. So when you leave active duty, you can leave before your retirement, right, before 20 years, like I did. left after nine years. I am not a retiree. I do not have the benefits that come with being a retiree. Senator Kelly does. And so those, there's this gray area where retirees may still be beholden to the UCMJ. And that's why Hegset is able to at least attempt to kind of mess with Kelly in that way. The other five, Hegseth can't touch them with the UCMJ because they are former service members, but they are not retirees, and there's no connective tissue there between him and them within the sort of organizational system. And so that's why Janine Piro and her team attempted

to levy charges against them. But obviously, a grand jury came down and said, no shot. And it is not going forward. At least now, I'm sure there will be further attempts, but they're being stalled for now. Yeah, as we've seen amazingly in the last year, we've seen this happen. many times, are you surprised that under these circumstances with this, you know, whatever this investigation looked at, that they didn't get an indictment in this case? No, I'm not surprised because they brought in normal people, right? Like, the grand jury is normal people. They can't handpick that, at least not yet, right? Like, it's, they brought this case in front of people. And we also don't know what charges they were trying to bring forward. I haven't

found any leak of what they actually were. But I can only imagine that they were probably dumb for like of a better time. I've spent all this time trying to think they're trying to charge them with going off of I've been going off of tweets from the president and HegSeth and like, what is it that they could be charging them with? And, you know, so far we've got sedition. Not a chance, right? No chance.

Like, those are such high bars. Yeah. And any layperson who walks in is like, you're in a grand jury and we're going to try and indict these six congressmen who made a video for Instagram. And on sedition, like anyone, you don't have to have any expertise, a law degree, nothing would sit down and be like, this is mutiny. This is sedition. Yeah. Yeah, it's crazy. So that's why I wasn't surprised that they prevailed because it was outside of the control of.

of the administration. And it was put into the hands of the true core of our justice system, which is like, you were going to be judged by your peers. And here was a grand jury of normal people who said, this is stupid. No. We are seeing, I think for the first time, really, the majesty of that system that was specifically created this way because you are judged not by the king, not by the king's men, but by your own fellow citizens.

This is the place where the law takes in. the mores and the ethics of the community and the results in the criminal process should reflect those standards, those morals, right? That kind of community instinct. And here, that community is represented by the grand jury and they're listening to these cases as they did this one and said, no, we don't see it. And you can only imagine the things they were considering. I mean, First Amendment has got to be core to their questions here. How is it that you? charge people and potentially convict people of a crime for simply telling others they should obey the law. I mean, it's preposterous on its face, but thank God we still have that

that kind of pressure release valve. So I'm going to, I want to shift your focus for just a minute and talk a little bit about the other side of this thing, which is the civil case. Now, this is, of course, Mark Kelly, who filed a civil action in federal court to basically challenge what Pete Hegeseth in the Department of Defense are trying to do in terms of reducing his pension and maybe reducing his rank, that inter-military process of kind of busting him as a retiree. So we had some developments there in the last week or so. Yes. Yes. So I think last time I was on, we were discussing if Heggseth could court Marshall Kelly. I think that's where it was sort of at in November and early December. It was Hegseth threatening to recall Senator Kelly back to active duty, put him in a uniform, do a uniform inspection and degrade him as much as possible.

And there's a joke I could make here about, you know, boot checking one of them and the other in their rank and, you know, all of those things. Things are being measured. Sure. Okay, Pete. But in those situations, right, Hegseth was overreaching, right? It was never a possibility. And I think I said this last time, like, recalling him to active duty, recalling Senator Kelly back to active duty specifically to try and court marshal him, that was always going to be a very difficult proposition. And so what Hague Seth did is he went and tried to find an alternative path because, and I think we discussed this last time, a court martial is still a trial.

It's granted in the military justice system. So some things are different. And there were complications with it. But it's still a legal process that has, you know, there's a requirement. There's a burden of proof that must be brought, right? Like those requirements are still there. Granted, other complications, like, who's the convening authority for this? Those were all sort of discussions about how this was going to work.

So let's, let me sit in that for just a second of why that wasn't an option for Secretary Hexeth. Convening authority. Who is it going to be for this person? The convening authority for a court martial is like the senior officer. it's usually a, I think the lowest it can go is a one star, so one star admiral or one star general, given that they were trying to run this through the Navy, because Kelly's retired Navy officer. Yeah. Exactly. Navy Captain.

My guess is they were trying to have the convening authority be the secretary of the Navy, Mark Fieland. That's why Hegsseth tasked him with conducting an investigation. That seemed like that's what they were going to try to do. And that is also why I suspect Kelly's lawyers have the Secretary of the Navy as a co-defendant on their original suit. Sure. That makes total sense. Mm-hmm. And so if the Secretary of the Navy is a convening authority and then I'm not sure who would be the judge.

Like, are they going to bring the CNO out for that? That gets sketchy too. But the whole thing was complicated. But if they were to go to court martial and they were to have clear up the convening authority confusion, Hegseth at all would have the burden of proof that they would have to bring that Kelly had actually engaged in seditious action in uni.

And that's hard because he didn't do those things. How are you going to prove it? You got the facts. They had to find another way. They had to find another way. So Hegseth had his team of legal minions go through the UCMJ in Title X. And what they found, right,

is there is a section of Title X, section 1370 that governs the process of retired rank determination boards. And so this is what he announced he was going to put Kelly through. So retired rank determination board is when a retired officer, their rank and grade that they were allowed to retire at, right? So for Kelly, Navy 06 captain, right? He is paid in perpetuity for the rest of his life as in 06. In the Navy, he gets that pay and all the perks that come along with it.

All the benefits. They reconvene a board and reconsider that ranked determination and potentially demote the person. Now, if you read through this section of Title X, you will see that it is very clear that it pertains

specifically to actions that were conducted on active duty, not after retirement. So the reduction has to be based on something that person did while they were still serving actively. Let's do an example. Let's say you've got an Army major.

We'll call them Major Pete. Major Pete serves 20 years, doesn't promote to lieutenant colonel. Awkward, but decides to retire. A year before retirement, Major Pete deploy somewhere, commits a war crime. But it's secret. We don't know. No one finds out about the war crime. They return from deployment, put in their retirement package.

Major Pete is allowed to retire honorably as a major with all of the best of benefits associated with that. Six months after that retirement, evidence of this war crime comes to light. And they say, who is responsible for this? And someone points out, that guy, Major Pete, the Army could now have a retired rank determination board to relook at this new information that was not available at the time of Major Pete's retirement and say, hmm, he committed a war crime while on active duty that had this come to light when he was on active duty probably would have implicated him and likely impacted his retirement rank. We should reconsider that.

And they look at those actions from active duty that were unknown at the time and are now known and then use those to potentially demote their retired rank and rescind some of those pay and benefits. So to do that to Mark Kelly now would be really out of order. especially because they are basing it on actions after his retirement. Mark Kelly has been retired for like 20 years. Like he, if they had gone and dug up something from his past and said in the Gulf War, he did this thing.

Okay, maybe even that's sketchy and targeted. But they didn't. They're trying to convene this board based on actions from last November when he was a sitting senator and a fully retired captain in the Navy. Right? So like this doesn't work. And Mark Kelly's civil suit is challenging the convening of that board. Yes. And he first requested a preliminary injunction, which would stop for temporarily the Defense Department from pursuing that route until his lawsuit has been fully heard and resolved.

And this week, we learned that the judge overseeing that case granted the preliminary injunction basically prohibition. basically prohibiting the Department of Defense from going down that path that you just described. Is that accurate? Yes. Yes. So they, everything that I said about how it's all based on actions pre-retirement, there's one clause in it that says that the applicable secretary, in this case, probably Hagseth, determines, they may determine person to regulation of the Secretary of Defense that good cause exists.

They may reopen the determination of required grave. that is the one clause that Hexeth is hinging this board on. And so it's still not enough. But Kelly is taking that and saying, hey, that's not enough. I'm going to see you. So that's what he did. And now the judges come back and said,

this is terrible. And an incredible opinion that I recommend everyone read at least the first two pages of because there's a lot of exclamation points and a Bob Dylan quote. So like, it's a lot of fun to read. That's the best. Judge Leon's opinion, I think, was a work of art. Maybe I'm a nerd, but I thought it was great. But yeah, he came down and said, hey, this is inexcusable.

This is stupid. And he's like, first of all, like, no one has ever used the UCMJ to curtail the First Amendment rights of a retired service member. And I believe he says, and this court will not be the first to do so. Got it. Like, he just glands a book shut and says, nope, we're not doing this. And now, of course, the Department of Defense today we learned, or I should say maybe Thursday or Friday, we learned that they have filed notice of appeal. So they are taking this upstairs, as they say. And we'll continue watching it as we go.

And as we get questions about how all this is affecting the military side of life, we will come back to you again to help us sort it all out. But thank you so much for joining us today. It's absolutely a privilege to have you on. and really kind of puts a piece in our puzzle here that we don't have without you. So thanks again. Of course. Always happy to be here. Next up, we're going to check in on Injustice Central. No, I'm not talking about the Department of Justice. I'm talking about the legal maneuverings of your favorite in mind, Judge Aline Cannon. So stick around. We'll be right back.

Every friend group has someone who insists on doing things the hard way. The same phone, the same plan, the same expensive monthly bill. and somehow they're still surprised it costs so much. Now that used to be our podcast producer when it came to wireless. But not anymore. Now he's using Mint Mobile, and he made the switch because he was tired of overpaying for service that was not giving him anything extra.

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unjust. Up front payment of $45 for three months, $90 for six months, or $180 for a 12-month plan required, 15-month equivalent. Taxes and fees extra. Initial plan term only. Over 50 gigabytes may slow when network is busy. Capable device required. Availability, speed, and coverage varies. Additional terms apply. See mintmobile.com. Welcome back. Okay, now let's go back to the never-ending saga of Eileen Cannon's effort to ensure that nobody ever sees Jack Smith's report on the Marlago case. So you all know this chronology well. Cannon dismissed the documents case against Trump and his co-defendants in July of 2024 on the grounds that Smith was unlawfully appointed. The Justice Department launched an appeal to the 11th Circuit, but Trump's presidential election. when that November put an end to the case against Trump and the DOJ's appeal of the Jack Smith illegal appointment order. Now, initially, the existence of two co-defendants, Walt Nauta and

Carlos D. O'Levara, was used by Judge Cannon as a reason to keep the report secret. That stayed that way until Donald Trump's DOJ came to town and dropped the cases against Dale Levera and Nata. Now, eventually, the group's American Oversight and the Knight First Amendment Institute filed motions requesting the release of Jack Smith's report. And after that, Judge Cannon did what Judge Cannon usually does, which is nothing for a very long time. That delay led the 11th Circuit to order her to rule on the motions filed by American Oversight and the Knight First Amendment Institute within 60 days. Now, when Judge Cannon finally ruled in December, she acknowledged that the old rationale based on the existence of the co-defendants, quote, appears no longer to apply. But then she noted that Trump and his former co-defendants had argued that the report still shouldn't be released because it contained privilege and protected information and is the product of a special counsel that she already determined had been illegally appointed. Now, she said that her injunction blocking the report's release would expire on February 24th,

and that was in an effort to give the party's time to seek, quote, appropriate relief before February 24th. So, what's the latest? Well, on Monday, we got Judge Cannon's final ruling on the report. As the New York Times reported, she, quote, permanently barred the Justice Department from releasing a report by the Special Counsel Jack Smith detailing President Trump's mishandling of reams of classified documents after he left the White House in 2021. The ruling by the judge, Aileen Cannon, was her latest effort in the past several months to keep the public from seeing Mr. Smith's sprawling report, one of the most significant

parts of his twin prosecutions of Mr. Trump that has yet to see the light of day. The order, issued from federal district court in Fort Pierce, Florida, slammed Mr. Smith for the brazen stratagem of drafting his report even after Judge Cannon had dismissed the classified documents case in July 24 and found that he had been improperly appointed to his post as special counsel. To say this chronology represents at minimum a concerning breach of the spirit of the dismissal order is an unconstitutional. understatement, if not an outright violation of it, Judge Cannon wrote on Monday. Judge Cannon also ruled that releasing the report, which contains investigative materials that have never been made public, would cause irreparable damage to Mr. Trump and his two co-defendants and would, quote, contravene basic notions of fairness and justice in the process. Now, here's where it really gets interesting.

The judge's order went on to say, and I'm going to quote this directly here, because the language is really important, she said, the court strains to find a situation in which a former special counsel has released a report after initiating criminal charges that did not result in a finding of guilt, at least not in a situation like this one, where the defendants contested the charges from the outset. and still proclaim their innocence. Very interesting. So let's look at that, right? Let's look at that very closely. And I want to follow up on something that our fearless leader, Dr. Allison Gill, posted on Blue Sky this week. And the thing I want to follow up on is a name. I have a name for your consideration. Okay. This is a name that just might challenge Judge Cannon's view of history and reality. And the name I have for you is Michael Sussman. Now you remember Mr. Sussman, he was charged with false statements for allegedly lying to Jim Baker, who was then the general counsel of the FBI, when he allegedly told Mr. Baker that he was not acting on behalf of any

client when he came in, sat down, met with Baker, and shared data about a purported secret communication channel between the Trump organization and Russia's Alpha Bank. Now, that's a story that goes way back to the early days of the Russia investigation. And of course, the work of Special Counsel John Durham. That is who charged Michael Sussman with the crime. Special Counsel John Durham. Okay. Now, Michael Sussman contested those charges from the outset.

He contested them so much that Michael Sussman took the government to trial. He did not plead guilty. He did not, you know, tuck his tail between his legs and shuffle away. He said, I didn't do this and I'm going to trial. So when he went to trial, guess what happened? Michael Sussman was acquitted. Yeah, that's right. No finding of guilt.

And I'm quite sure that in addition to contesting the charges from the beginning, Michael Sussman probably still proclaims his innocence to this day. Now, Michael Sussman later featured prominently, guess where? Well, if you guessed Special Counsel John Durham's report, you'd be absolutely right. And if you want to confirm that you're right, you can read that report. You know why you can read that report? Because it was released publicly. unlike Jack Smith's Mar-a-Lago report.

Now, if you go back to that report, John Durham, Special Counsel John Durham's report, and you search for Mr. Sussman's name, you're going to find it. You're going to find it not once. You're going to find it not two times. You're going to find it 311 times. Okay, so what do we have?

What does all this tell us? Well, here we have a situation in which, and I shall quote, a former special counsel has released a report after initiating criminal charges that did not result in a finding of guilt,

at least not in a situation like this one, where the defendants contested the charges from the outset and still proclaim their innocence. Okay, Judge Cannon, you don't have to strain to find this. You just have to do a little bit of research.

You can get in a time machine and you go all the way back to ye olden days of 2023. That's when John Durham released his report that contained 311 mentions of Michael Sussman, who he had charged, who protested his innocence, who went to trial, who was acquitted, and still to this day protests his innocence. Now, that report is easy to get because it was released to the public, just like Jack Smith's report should be now. But of course, that's not the end of the story. As the New York Times tells us,

the order on Monday made that preliminary ruling permanent, though it is unlikely to be the last word on this matter. Two watchdog groups, American Oversight and the Knight First Amendment Institute, have been trying for months to force the release of Mr. Smith's report, filing a series of requests to the federal appeals court that sits over Judge Cannon. Both organizations denounce the ruling. Quote, Judge Cannon's ruling continues a troubling pattern of decisions that shield the president from public scrutiny and place secrecy above the public's right to know.

Chioma Chukwu, the executive director of American Oversight, said in a statement issued Monday. Quote, by permanently blocking the release of volume two of the special counsel's report and denying our effort to seek a stay, while our appeal moves forward, the court has ensured that the public is denied information of extraordinary national importance. Now, Scott Wilkins, the senior counsel at the Knight Institute echoed the same criticism. He said, Judge Cannon's decision to permanently block the release of this extraordinarily significant report is, impossible to square with the First Amendment and the common law, he said. Now, we're going to continue watching this one closely throughout whatever comes next in terms of appeals. Hopefully this gets back in front of the 11th Circuit because they have certainly taken a dim view of Judge Cannon's legal reasoning in the past. And I think it's entirely

possible that that might happen again here. So stay tuned on this one. We'll certainly keep you up to date. All right. Next up, we're going to check in on the increasingly common segment of this show where we highlight the most recent DOJ failures in court. So stick around because I'll be right back. Welcome back. Okay, folks, here we are at the DOJ failure report. Now, to be honest, these reports come in many different flavors and sizes from everything from failure to indict to failure to present the evidence. necessary to convict. A failure to have a lawfully appointed U.S. attorney. That's one of my favorites, not something I thought I'd ever see in a career of criminal justice. And then, of course,

several varieties of indictments dismissed by judges. Another really used to be once in a lifetime sort of experience, and now we're kind of seeing it every few weeks. So it's important when we talk about these things to remember that this stuff did not happen prior to this administration. And I think in light of the special nature of it, we should start thinking about this as its own segment, which brings me to the most important piece, which is a segment name. Now, I'm thinking like, first of all, I started with like, how about the end of the presumption of regularity segment? Although that's accurate, I have to say it's not particularly, you know, snappy or it doesn't have a great ring to it. So in light of this need for creativity, I am asking you all, anybody's got, you know, put that humor and that creativity to work.

If you've got a good name suggestion for the, we're walking through the recent failures of DOJ segment, drop us a note in the comments and questions section. Hit the link in the show notes and let us know what you think. All right. So to kick it off, let's remember that last week we brought you the case in which Judge Laura M. Provenzino of the Federal District Court for the District of Minnesota, she held an attorney in contempt and threatened to find him $500 a day for every day that he failed to return a released immigrants documents to him. So this was actually a military JAG lawyer who had stepped in and volunteered or maybe been volunteered to cover some of these wildly vacant U.S. attorney, assistant U.S. attorney spots in Minnesota because, you know, most of that office has quit

and objection over what they were asked to do regarding the recent immigration enforcement actions. And he presided, he had a case of an immigrant who had been moved to, from Minnesota to Texas, had his documents taken away, and then was ordered released by the judge who actually ordered that he be released in Minnesota. And of course, ICE just basically opened the back door and pushed him out into Texas without his documents, without his identification, and really without any way to get himself back. So that's what got us to the contempt finding and the fine of $500. Well, turns out the U.S. attorney for Minnesota, who's also somewhat of a newbie, he didn't like the judge's order. And he said, Judge Provenzino's

order is a lawless abuse of judicial power. Daniel N. Rosen, the U.S. attorney in Minnesota, wrote in an email statement on the night of the contempt ruling. Now, fortunately, last Thursday, the detainee's lawyer received an overnight FedEx package containing the missing identity documents. And in response, the judge lifted her contempt order. Now, they didn't tell us how many many times she'd had to find him $500 in order to get that result, but I'm guessing that it probably wasn't too many. The Times reports that in addition to Judge Provenzino in Minnesota, quote, these so-called show cause orders came from judges in California, Texas, Florida, Massachusetts, Michigan, New York, West Virginia, and Puerto Rico. They all arose from cases in which the

government had detained immigrants who had been living in the United States for years after entering the country illegally. They represent the culmination of weeks of frustration from the bench. Judges have castigated administration officials for testifying dishonestly, representing the law inaccurately, and above all failing to comply promptly with their orders. experts said that judges appear to be grappling with a key question. Could the violations of court orders be explained merely by the stress on the legal system caused by the recent flood of immigration cases? Or is there a more systematic effort by the government to defy the courts?

Quote, don't hide the ball, wrote Judge Roy Dalton Jr. in Florida, complaining that a Justice Department lawyer had filed. failed to fully explain relevant law in one case. Quote, antiseptic judicial rhetoric cannot do justice to what is happening. Judge Joseph R. Goodwin in West Virginia wrote in another, calling the warrantless arrest and imprisonment of thousands across the country, quote, an assault on the constitutional order.

I got to tell you, in my life of reading judicial opinions and particularly court orders, I have never seen language like that. It is so hard to get a judge to really come out of their corner and take a swing at a lawyer, particularly a prosecution lawyer, a government lawyer, in their courtroom. They are always the models of decorum. You know, if they say something that seems a little pointed, you know they're absolutely furious because they always hold back. They always take the kind of higher road and go with them more. intellectual, objective statement rather than the overheated rhetoric that, oh, I don't know, podcasters

are like. So these guys, to say, to characterize what's happening in this country as an assault on the constitutional order, that is a judge who's really upset about what he is saying. The Times goes on to say many judges blame the shoddy work and violation of court orders on the overwhelming workload created by the administration's immigration enforcement efforts. A judge in Central California recently noted that her district had received 551 petitions over a five-week span. 551 petitions from detainees in five weeks.

A judge in New Jersey found 547 petitions had been filed. over nine weeks there. A judge in the Western District of Texas said that as of January 29th, there were 134 active cases with another 20 to 25 arriving each week. Now, let's step back from this for just a minute and remind ourselves what's actually going on here legally. Okay? So these are, you can think of these as like civil lawsuits that have been brought. in federal court by people who've been detained and are currently held in immigration custody.

Okay. So these are folks who are not objecting to their deportation. That stuff happens in immigration court. These are people who are challenging the legality or the conditions of their confinement. It's basically what we call a habeas corpus motion. You're going into the court saying like, I was arrested illegally. Or I am not an illegal immigrant. I am a U.S. citizen, something like that.

Or I'm being held somewhere and denied access to medical care that I need or food or something like that. So this is all in addition to their underlying immigration actions, which, as I said, proceed in immigration court. So now think of this. Any detainee that's able to get a lawyer to file one of these suits in federal court, is a rare individual, right? Many detainees don't have the resources or the access to legal assistance that's necessary to file these cases. So if we think about that for a minute, if everyone detained actually had the ability to file

a habeas action or some sort of a lawsuit to challenge their detention, the courts would be even more overlogged, right? There would be more of these out there, but for the fact that many of the people who are detained are so disadvantaged by the process that they don't have the ability to file these cases. So, yes, we're dealing with a massive influx of cases that would undoubtedly be higher as a result of the decisions that this administration has made to enforce the immigration laws the way they are currently doing, which has never happened in this country before. So the Times says the influx has put a, quote, tremendous strain on the resources of the legal system, wrote Judge Tiffany M. Cartwright in Washington State. It has forced hurried and frustrating hearings, wrote Judge George L. Russell III in Maryland. Judge Clay D. Land in Georgia wrote that the situation had become, quote, an administrative judicial emergency. An administrative emergency. I didn't even think you could have an administrative emergency.

but apparently we have one now in the federal court system. Now, at the end of the day, it is DOJ's responsibility to handle the caseload that they are generating. Okay? This is a problem of the government's own making. And it is clear that at this point, they are not capable of handling it in this moment. And so, the failures continue to stack up. Earlier this month, Judge Nussrat J. Chowdhury of the Eastern District of New York assailed the Trump administration for not only defying two clear and unambiguous orders, but also offering, quote, false statements about the whereabouts of a man immigration and customs enforcement had detained on Long Island during a routine check-in.

Six days after she prohibited the government from moving the man outside the the metro area, Judge Chowdry wrote, the government placed him on a flight to Texas, and then into detention in New Mexico. Two days later, she wrote, an ICE official submitted a declaration, giving her a false assurance that the man was still in New Jersey and would be present at a hearing she had called for the following day to consider his release. When the man, still held in New Mexico, missed the hearing, she tallied two separate violations of her orders and told the government to return him to Long Island and release him. In an opinion last October, Judge David Briones of the Western District of Texas complained

that a man he had ordered not to be removed from his district had been abruptly sent to Arizona and deported to Mexico the next day. Judge Briones, a Clinton appointee, urged the Justice Department to tighten up its coordination with the Department of Homeland Security, the fix inconsequential lapses that lead to irreparable consequences for parties and violations of court orders. It's just amazing. It's amazing. The mess, the madhouse, the chaos that has been caused in what is really kind of in

some way is the only highly functioning element of our government, and that is the judicial system. So let's break it down, right? What do we have here? So we have immigration enforcement that's created a flood of legal work that's jamming up the courts, right? DOJ overwhelmed. They can't keep their heads above the water line. You've got DOJ attorneys and crucial offices quitting by the dozens.

You've got empty slots all over DOJ headquarters, DOJ Maine, as it's called, from people who have been fired, fired for previously working investigations that are now unfavored for political reasons. All of those empty seats, both in the headquarters in the field, are really hurting DOJ now. So ask yourself, in this moment of incredible volume going through the courts and a lack of trained, experienced, adequate prosecutors, and we know that's the case, right? because they're actually, you know, putting out requests on social media. Hey, if you're an attorney and you want to work for the government, DM me. That's how desperate they are to hire, right?

So at this moment, with all that volume and this small number of overwhelmed lawyers, what else that the department is supposed to do is not getting done? the Department of Justice, one of the key elements in our society that's responsible for our safety and for the national security, what else are they not doing? Well, I can tell you right off the top of my head, if I start to think about what other work has been displaced by the reams of people fighting their immigration detentions, I can give you some good hints as to what those matters. matters are, what those cases are, right? It's gun cases. It's assault cases, narcotics cases, carjacking cases. These kind of criminal cases are literally the bread and butter of the federal criminal justice system. Now, I say that because it's these cases that are not high profile. You don't hear about them all the time. They're happening by the dozens.

by the hundreds, really, around the country every single day. And these are the cases that are actually taking real criminals who do violent criminal stuff out of our communities and putting them in jail. These are the cases that impact the crime rate and make our streets safer. Are those cases getting done now? When you've got like JAG attorneys coming into the U.S. Attorney's Office

and handling a hundred or more detainee cases a day or the day they walk in? You think all these low-level narcotics cases or gun cases are getting handled? I mean, from my experience, that is where when the pressure hits, it's those people who are first-time offenders, second-time offenders, on simpler cases that get squeezed out of the system. Those cases get delayed, maybe they get declined, because the entire federal criminal bar and all the AUSAs and anyone else they can draft

to stand in their place are fighting immigration challenges from people who probably should not have been detained in the first place. Right? People who, five years ago, and for every year before that, would not have been detained at this point in their immigration journey,

even if they're here illegally. They might be put into deportation proceedings. They might have to come back to court. They might have to show up. And maybe they end up getting deported. But we didn't detain, physically detain people under those sorts of very minimal charges. But we're doing it now.

And we're doing it to the elimination of a lot of other work that DOJ should be focused on. So does that sound like we're keeping America safe over here? I suggest maybe not. All right, so chew on that for a couple minutes while we take one more quick break. And then we'll be back with another story and some listener questions. Welcome back. Okay, one last story before we get to listener questions.

Now, last week, we told you about the amazing adventures of FBI director Cash Patel and his really amazing vacation. Okay, wait a second. I mean work trip. It was a work trip to the Olympic Games in Cortina, Italy. Now, let's remember that the use of the FBI jet for personal travel has been, let's say, not a great thing for the current director of the FBI. There's been all kinds of stories over the last several months.

We've talked about them here, you know, jump up. on the jet to fly to Scotland with four of his friends for a golf weekend or heading out to see a football game or a couple of MMA fights or see his girlfriend sing the national anthem somewhere. He's been getting around putting some mileage on that jet at the tune of, I think, $5,000 an hour every time you're operated. Now, that's a number that's big enough to have gotten Cash Patel's attention before he was FBI director. He notoriously claimed in a podcast clip that I'm sure you've all seen a hundred times this week that then FBI director Christopher Ray should not even have a jet, that he should

not be flying in one at all. But apparently the good director's position on that issue has changed because he's been wearing that thing out. So last week, we talked about his use of the jet to fly to the Olympics. Now, FBI reps have indicated that, you know, cash didn't go to Cortina on a vacation. It was actually a super important work trip. He was going to, you know, meet with some FBI people over there. The FBI people who are in Italy to work the event and work on, you know, in conjunction with the security team in country. And, you know, he said also that they had some high-level security meetings with foreign colleagues. Of course, those must have been scheduled on the day before the Olympics was over, which seems a little odd. But now, thanks to cell phone video, we know exactly

what Cash is doing. It's super helpful. So, as it turns out, Cash actually spent a fair amount of time watching the U.S. men's hockey team play Slovakia and then, of course, play Canada in the finals. Yeah, great time for him, I'm sure, because we also know that he was happy about it, because he followed the final game with an amazing celebration in the men's locker room, where he chugged a few beers, he got to wear a gold medal, he slammed the furniture, he made lots of very manly noises. And of course, you know, you can't do any of that without calling the president of the United States on your speakerphone, all of which was recorded for all the world to hear. It looks like a great time was had by all, or at least by cash, in his

most amazing work trip to the Olympics. Unfortunately, the story takes a darker turn for Mr. Patel, because this week, an FBI whistleblower brought new attention to Cash's use of the FBI jet. Senator Richard Durbin, Democrat from Illinois, who is the ranking Democrat on the Senate Judiciary Committee, obtained the whistleblower's account and forwarded it on to the government accountability office and the DOJ OIG. Now, according to MS Now, agents with the FBI's elite evidence response team were delayed in reaching the scene of a mass shooting at Brown University in December because there was no FBI plane available to take them to Rhode Island, according to three sources and a whistleblowers

account newly provided to Congress. FBI director Cash Patel was in South Florida at the time with one of the FBI's two available jets, and he'd given an order to hold the other one for another team that would not normally respond to the scene, according to the whistleblower and the sources. The evidence response team instead had to drive through the night amid a snowstorm to reach the university in Providence, Rhode Island, by 9 o'clock the next morning, according to the whistleblowers account. Okay. Wow.

Let's tear this one down a little bit, okay? Yes, the FBI has two jets. They are both Gulfstream fives. They're very nice, you know, there's nothing bad about a private jet. But it's also very clear in the FBI that the use of those jets for operations, issues is the number one priority. And in my entire time in the FBI, working with directors of the FBI, sometimes traveling with those directors on the FBI jet, I am not aware of a single situation in which an FBI director was unwilling to postpone or reschedule their travel, business travel,

whatever, on the FBI jet when it was needed for some sort of operational mission. I'm talking about missions to fly to foreign countries to help return indicted individuals to be prosecuted in the United States, fugitives, things like that. I'm talking about missions to collect time essential evidence from crime scenes, bring it back to the FBI lab so it can be analyzed and understood immediately, particularly in situations when people's lives hang in the balance. Or how about a situation where you've had a mass shooting at a college in Rhode Island, and you need to get the evidence response experts up there to help process the crime scene. So that's the first thing that stands out to me here. How on earth, when you have two jets, there's not a single one

around available to get the right team in the right place at the right time. And his decision to not send the evidence response team on the other plane, instead to keep it in reserve for another team, that would be the hostage rescue team. Now, we don't know what the hostage rescue team had going on at that time or if they had anything going on at that time, but it is highly unlikely that you would deploy the hostage rescue team to the site of a mass shooting.

When you have no idea what happened there, You don't know who you're looking for. You don't have any credible leads. As you will recall, that case went on for, I want to say about a week before they developed a suspect in the investigation. So this is a bad one. I don't know where it goes. The IG has a way of really falling flat on these investigations I have seen in the past. But it certainly indicates a really startling lack of judgment by direct.

Rector Patel. He was absolutely in Florida on a personal trip. You know, there's always opportunity to get that plane back in time to be used for the operational necessity. That clearly didn't happen here. And if that kind of bad judgment is going on in really easy decisions like these, it's got to make you wonder what other kind of judgment is happening in the Jay Edgar Hoover building, the headquarters of the FBI that's coming out of the director's office. we do know that he has had time in the last few days to fire about six or seven agents, all of whom lost their jobs this week because they committed the offense of working the case they had been assigned to, that being, of course, the case Jack Smith's investigation of the

2020 election. Six or seven, I can't remember the exact number, more agents lost their jobs, ended their careers and were walked out the door because they were involved in that case, a case in which Jack Smith and his lawyers decided to serve a grand jury subpoena to collect the telephone records of Cash Patel and the now chief of staff to the president, Susie Wiles, both of whom were absolutely legitimate witnesses in that case. It is very standard procedure to use grand jury subpoenas to look at phone records from people who might be. witnesses who you might need to testify. And of course, was all done lawfully. These agents did

nothing. Nothing wrong. Did their jobs. Did them lawfully, did them ethically, did what was asked to them, worked the case they were assigned to, and now they've been fired. So I guess that's the kind of judgment that Cash Patel is using back at the J. or Gohuber building, unfortunately. All right. So that's it. That's all the rough stuff. It's all the depressing stuff for this. week. Now we're going to jump into a listener question before this great solo tour comes to an end. And of course, as always, if you have a question or a comment, don't hesitate to hit the link in the show notes and drop us a little note. Let us know what's on your mind. What are you thinking about? What are you questioning these days? All right. So I have one question here, but there's really

kind of a code goes in a few different directions. So I think there's a couple good things to think about, especially this week with all the news that there's been on the Epstein files. So this one comes to us from Scott. And Scott says, Dear Allison and Andy, love your podcast. My question is in regards to Maureen Comey. When can she speak about the Epstein files if ever? It was announced this week that she has now joined a prestigious New York law firm, so she is out of government, though the announcement stated she continues to fight her wrongful termination. If she can't speak publicly about the Epstein files, can she take on clients who are victims? Ms. Comey and her teams on the Epstein and Maxwell cases must have just about the most in-depth knowledge of what is in the files and the implications

for other co-conspirators and perpetrators. Can she speak out? Thanks so much. Scott, great question. A lot of stuff to cover here. I'm going to try to do it pretty quickly. So first of all, can she speak out? Not really. She can't really speak out. So when you work for the federal government, especially in the Department of Justice, and you have access to sensitive information and information in criminal investigations is considered sensitive information or classified information, which is also, you know, sensitive for different reasons, you have to sign all kinds of non-disclosure agreements that prohibit you from discussing those things

that you were exposed to while you were working. And in order to talk about them, like if you wanted to write a book after you left your government service, you have to submit that book to be reviewed by the government agency used to work for and they have to approve whatever it is you're putting in there. They can require you to take some, information out if they think it's still sensitive. So those kind of restrictions would prohibit

Maureen, you know, provisionally prohibit her from speaking about the case. Now, there's other reasons as well why it might not be a good idea. You also asked if she could take on clients who were victims. And I know that seems like a perfect match, right? She knows so much about the case. She knows the file is probably better than anybody else. She would make a great attorney for someone who was a victim of Epstein's criminality. There is, all attorneys are required to follow a set of ethical rules, the attorney code of conduct. And one of them prohibits an attorney from ever representing a client whose interests are adverse to the interests of a former client. So that simply means she can't really,

she wouldn't be able to represent a victim who would be basically, you know, going against potentially the Department of Justice, having previously represented the Department of Justice on that same matter. It's not perfect conflict in the way that we typically think of those is usually more like a civil law kind of situation. But I think that the whole thing is just kind of too closely related. It would raise all kinds of questions. I don't know Maureen Comey, but my sense of hers is that she's very careful and, you know, solid attorney.

I just don't think she's going to walk back into that situation. Now, the one scenario where she could talk about the case is if she's subpoenaed to testify. in front of Congress about it. She would have to negotiate some guidelines from DOJ in terms of the sorts of things she could talk about and things she couldn't, but because the files have been released, I think she could talk freely there.

And for my money, that's really where this entire investigation should be going. The congressional investigation, and not for nothing, the public's interest in this case. That's the places, these are the people that we need to hear from.

We need to hear from all of the assistant U.S. attorneys who were working in the Southern District of Florida, the Miami office back in the early 2000s when Epstein's case was investigated, when they drew up a, I don't know, 50 count indictment for him, which they then gave away with a non-prosecution agreement and allowed the local county prosecutors to, you know, plead, uh, to a very minimal charge. That office was led by Alex Acosta at the time. I understand he has testified in front of Congress recently about this, but we haven't heard anything about that. That's where our questions about what kind of decisions were made around the issue of who to charge and who you would not charge. That to me is the enduring disgrace of the way this thing was handled. And those are the folks we need to get in. In addition to the folks in Southern Florida, the other office I looked at it was, of course, the Southern District in New York, in the hands of, in terms of the case anyway, in the hands of Morin Comey and others, I'm sure that Ms. Comey could shed a lot of light on their decision to charge Epstein, to charge Maxwell, but to not charge anyone else. I think her testimony could be really important. So maybe that happens someday if the leadership of the committee running that congressional investigation turns over, I think that's the kind of thing that we could expect to see.

So thank you, Scott, for that great question. Thanks for all the comments this week. As always, terrific stuff in our questions and comments. A little repository there. Please don't hesitate to send us additional ones for next week. hit the link in the show notes and we will be right back here. I'll have the great Dr. Gill running the show again next week, which will be awesome. So folks, thank you so much for enduring this and putting up with my constant droning now.

I hope I was able to cover for Allison. I know it's not the same without our founder and fearless leader with us, but I look forward to come and talking to you right here again next week. week with Allison and everything back to normal. Thanks again for putting up with me and have a great week. I'm Andy McCabe. Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hawkey with art and web design by Joelle Reeder 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.