Jack - Facetious and Fanciful

Episode Date: October 4, 2026

Olympian Davey Hearn’s reflecting pool charges have been dismissed by a federal judge WITH prejudice, barring the Justice Department from bringing further charges.Deputy FBI Director Andrew Bailey is out, court-appointed US Attorney in Washington State Roger Rogoff is back IN, two FBI counterterrorism experts have been demoted, and Kurt Olsen has resigned from the grand conspiracy case and the Justice Department. The full panel of the DC Circuit Court of Appeals weighs allowing Judge Boasberg to continue his contempt proceedings in the Alien Enemies Act case as the DOJ files a judicial complaint against Minnesota judges over immigration.After failing in the grand conspiracy investigation, Kash Patel has ordered a classified report to examine failures in the investigations into Donald Trump. Plus listener questions.Do you have questions for the pod or something for HITMEINTHEHEADWITHABAT? | https://formfacade.com/sm/PTk_BSogJ  Check out other MSW Media podcastshttps://mswmedia.com/shows/ Follow AGMueller, She Wrote SubstackMueller She Wrote on Blueskyhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodMore from Andrew McCabeThe Real McCabe on [e-mail] on BlueskyThe Threat: How the FBI Protects America in the Age of Terror and Trump This Show is Available Ad-Free And Early For Patreon and Supercast Supporters at https://patreon.com/thedailybeansOr when you Subscribe on Apple Podcastshttps://apple.co/3YNpW3P Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

M-SW Media. Olympian Davy Hearns reflecting pool charges have been dismissed by a federal judge with prejudice, barring the Justice Department from bringing further charges. Deputy FBI Director Andrew Bailey is out. Court-appointed U.S. attorney in Washington State. Roger Rogoff is in. Two FBI counterterrorism experts have been demoted, and Kurt Olson has resigned from the grand conspiracy case and the Justice Department.

The full panel of the D.C. Circuit Court of Appeals weighs allowing Judge Bozberg to continue his contempt proceedings in the Alien Enemies Act case as the DOJ files a judicial complaint against Minnesota judges over immigration. And after failing in the grand conspiracy investigation, Kosh Patel has ordered a classified report to examine failures in the investigations into Donald Trump. This is unjustified. Hey, everybody. Welcome to episode 89 of Unjustified. It is Sunday, October 4th. I can't believe we're just weeks away from the end of the midterm election cycle. Yep. I'm Alison Gill. And I'm Andy McCabe. All right, Allison, as you previewed for us, there are some big personnel shakeups going on at DOJ this week. So let's go over a few of them. Okay, so first, Reuters reports that FBI co-dead.

Deputy Director Andrew Bailey, just seems weird for me to have to say that. Deputy Director Andrew Bailey said on Monday that he is resigning his position, leaving the most prominent U.S. law enforcement agency after a little more than a year, which I think qualifies for a super long run in this term. But in any case, Bailey, a Republican ally of President Donald Trump, who left his job as Missouri Attorney General to join the FBI, said he was leaving to return to his family. Oh, that old song. Serving under FBI director Cash Patel, Bailey helped oversee election-related investigations

and was present earlier this year when agents seized 2020 election ballots from Georgia. Bailey initially served as co-depity director alongside Dan Bongino, a former U.S. Secret Service agent and conservative podcaster who left the FBI in January. Yeah, I remember when he said he left. He was like, well, it's because, you know, when I was a podcaster, I got to give my opinions. But with the FBI, you have to do facts. And I guess he just didn't like that very much. Yes, Danny. Facts. It's about facts, really. The opinion part, nobody gives a shit. Just see if facts suck, man. Why do I have to be stuck with all this reality? Now, the latest high-profile departure at the FBI occurred about five weeks before the U.S. midterm elections end, and that'll determine control of Congress. The Trump administration has mobilized federal law enforcement agencies to investigate voting in elections by non-U.S. citizens. They found like none.

Bailey, during his tenure at the FBI, helped manage the Trump administration's investigations into election issues. The FBI has scrutinized election records from several states, but has not produced evidence to substantiate Trump's false claims that widespread voter fraud led to his defeat in 2020. And I have to imagine that's why Bailey's out. I'm just speculating. but if you don't get indictments in a hurry against Trump's political enemies, it seems like you resign to go be with your family. Don't let the door hit you on the way out. You know, I read a different report on his departure that quoted some unnamed insider

who said that apparently Bailey was not, was excluded from most meetings involving Cash Patel because people or someone was upset with the fact that oftentimes in meetings he would point out things that were unconstitutional. And I thought, what a buzzkill, right? For the deputy director. It says facts again. Come on, dude. We all want to do this thing that'll be so epic.

And you're throwing the unconstitutional thing at us again. Boo. Right. Like raiding Fulton County to steal ballots or giving social security numbers to DHS and putting border security on investigating voter roles. You know, and I mean, you know, recently the Nevada ones, I talked to Cisco Aguilar about this, the Secretary of State Nevada. He's like, yeah, first it was 16,000, then it was 185. Now it's zero people, not like non-citizens registered to vote.

And these aren't even people who are voting. This is sometimes, you know, you go in and get a driver's license and they automatically register you vote. Yeah, for sure. Just ridiculous. Unbelievable. Okay, next up from Bloomberg, FBI leadership removed two counterterrorism leaders due to dissatisfaction with their investigation of allegedly threatening phone calls made to senior White House aide Stephen Miller's wife, said three people familiar with the matter.

The head of the FBI Washington Field Office's counterterrorism division, which is responsible for Middle East threats, and his deputy, were both demoted and sent to Bureau headquarters on Friday. The orders from the Bureau's DC chief, Darren Cox, stemmed from frustration shared by the Miller family that the field office was moving slowly and probing allegedly harassing phone messages left with prominent conservative podcaster Katie Miller

and this is coming to us from multiple people who spoke anonymously to avoid retaliation. Okay, so we demoted expert, Middle East experts in the middle of a war with Iran. Yeah. Okay. Yeah. Oh, I got a lot on this one.

I know you got a lot on this one. I know you got a lot on this one. I'm holding my water. Several of the individuals said Kosh Patel was also displeased with the office's progress on the case investigating the threats, quote-unquote, I'm going to say, alleged threats to Katie Miller, special agent in charge,

Michael Bergwald, an assistant special agent in charge, ASAC, court ray, weren't fired, as was the fate of multiple other FBI officials. They were demoted, but still,

the reassignments represent a loss of decades of highly regarded countertention. terrorism experienced during a war with Iran from an office critical to U.S. efforts combating violent extremism from that region. Both Bergwald, who's a West Point grad, by the way, and Ray, have served in high-profile posts in which they received Attorney General's awards over the past two decades. Ray has supervised the FBI's response to the Boston Marathon bombing in 2013, and I have to imagine you worked with him closely on that. I did. I know Cortland Ray very well. I know Mike as well. I've worked with both of these gentlemen, so that's full disclosure here. I'm biased in their favor. But I'm also, I'm a great admirer of theirs because they are actually smart, hardworking, dedicated people who have the experience to occupy these positions for Bergwald. He is the special agent in charge of the Washington Field Office Counterterrorism Division. And court was his assistant special agent charge. We call it.

that an ASAC in the Bureau. I was an ASAC in that same division many years ago at WFO. These guys knew what they were doing. They have the history, the experience, great reputations. They would not have gotten those jobs if they were not the absolute top of their field. And the Washington field office is, okay, so there are, we open terrorism cases about people we suspect being involved in terrorist activity who are here in the United States. Those are like traditional cases. They could be international, like people who are inspired by ISIS, or they could be domestic, like, you know, like white supremacist or something. We also open cases against people who are located overseas, and those are almost always international terrorism cases. And there are only

four offices that are authorized to open and investigate those cases, New York City Field Office, Washington Field Office, Los Angeles, and Miami. And they divide the world into quarter. And the Washington Field Office is responsible for all the what we call ET cases, extraterritorial cases all over the Middle East. Not just Yemen, Saudi Arabia, just keep Afghanistan, Iraq, Syria, a couple of hot zones there if you haven't following it home in terms of terrorism issues. So there are literally hundreds and hundreds of years of experience in the Washington field office of investigating those cases.

you add up all the people that have worked on them. So not a great time to be flushing your two, arguably your two most accomplished, most experienced, strongest leaders in that division. So incredibly stupid move for no reason whatsoever. Yeah. And I have another question about the Washington Field Office Counterterrorism Unit. Because these gentlemen, I assume we're in the Washington Field Office. office during the Boston bombing, or were they in Boston? Like, do you guys split up the country when it

comes to domestic terror investigations? Because I ask, because our next story has to do with the Katie Miller situation, but it comes from Boston. So is it possible that somebody from the Washington Field Office would be put in charge of investigating, quote-unquote, domestic terror in other areas? No, because in what we call CONIS, continental United States, because, you know, we have to have a little acronym for everything. Conis is divided up into 56 field offices. So each field office is responsible for the counterterrorism investigations in their field office area of responsibility.

So was court in Boston at the time of the marathon bombing or do sometimes they bring people in from out of town to help? Yeah. So he may have been in Boston for the, for, I don't remember exactly if he was at headquarter. I know he was. worked in the Counterterrorism Division at headquarters for many years. And I'm trying to, I can't perfectly say whether his Boston experience was in Boston or at headquarters, where you would work the case from both places, right? There are lots of people at headquarters who worked, myself

included, who worked the Boston bombing case. So yeah, I don't know where court was for that case, but I do know that he was at headquarters for a long time and had a lot of involvement in all the biggest CT cases because it's really the biggest, most high profile, most concerning threats, CT threats that get a lot of attention from headquarters. Counterterrorism is a program that's centrally managed from headquarters. Unlike the criminal division where field offices have a lot of authority to basically run their criminal cases in the way they see fit because criminal cases are distinctly kind of local, CT cases are very different.

Understood. Now, with that in mind, just a few days later, we got an indictment in the Katie Miller case, yeah? Yeah, so five days after the two were demoted, Politico reported that a Massachusetts man was charged with cyberstalking for a campaign of harassment targeting Katie Miller, a former Trump administration official, and the wife of Senior White House Advisor Stephen Miller. John Anthony Proia, if I'm pronouncing that correctly,

John Anthony Proia III, allegedly called and texted Katie Miller at least 40 times since August, with hostile messages referencing both her and her husband. Her husband, of course, is an architect of President Donald Trump's immigration crackdown, according to court documents. Federal prosecutors allege Proia used different phone numbers to call and text Katie Miller, using a menacing tone in messages laced with expletives. Prosecutors also say he sent text messages disparaging the couple to phone numbers associated with Katie Miller's parents

and made social media posts encouraging and instructing others to make harassing calls to public officials and their family members, according to the indictment. Okay. So maybe you can help me out here. I don't know that this was the guy they were looking at that caused these two counterterrorism experts to be demoted or if it's a separate issue. It just seemed to happen right, one after the other. It seemed like a little odd timing there.

But cyber-stalking, right? That's not terrorism necessarily, unless they were trying to bring a domestic terror enhancement to it because they've dubbed Antifa a domestic terror organization. But does that make sense a cyber-stalking charge? Reading what was done here, 40 messages, you know, explicit. It doesn't seem like threats or they'd be charged with threatening, right? for sure. This is not, okay, again, with all caveats in place, right, we don't know if this is the guy that those two got fired for. But from other reporting I have read, they were reassigned because they didn't take action quickly enough, which likely, and I'm guessing here, but I feel fairly confident, my guess is that these two did not believe that whoever was calling Katie Miller was engaged in terror. Like, that would not be a terrorist case at any other time in the FBI's history. And these are terrorism guys, right?

So they're like, this isn't for our office. This is for criminal division in Massachusetts. Exactly. These dudes know what a terrorism case is. Now, you can't make that determination just by what this guy was charged with. Because certainly if you were trying to arrest a terrorist and all you could get them on with cyberstalking, you do it. But that's probably not what's happening here.

this sounds like a very appropriate cyberstalking case, and cyberstalking cases are handled either by the cyber division. That's actually less likely, more likely the criminal division in the field office where it's alleged to be taking place. So a lot of times headquarters will be involved in figuring out where is the cyber stalker because, you know, they anonymize their location, their IP address, all that kind of stuff. But once that's figured out, it's in the field offices of, you know, wheelhouse to work the investigation and ultimately bring it to an indictment.

These guys probably looked at this, the facts here, what's going on with Katie Miller and Stephen Miller, and said, this is not a terrorism issue. Somebody else should be handling this. And that's an important distinction to make, because you only have so many resources. You have way more threats and problems and cases than you have resources. So you have to be very careful about overextending yourself

into things that are really not in your division. That's my guess as to what happened here. Now, first, full stop, this sounds like it was a terrible experience for Ms. Miller and her husband, and nobody should ever have to experience that. However, the sad reality is that when you are a notable person, someone who's known in the media, as Stephen Miller certainly is, we get these things from time to time. People harass us over email or phone calls or on social media or whatever. it's something that security professionals, individual, you know, personal security professionals

refer to as inappropriate contact. And the standard idea behind inappropriate contact is people who engage in that will not actually confront you. They're not a physical threat to you. They're just harassing over, you know, hiding in the anonymity of the internet. So, you know, the idea that somehow they thought this was a terrorism case, whether Steve The Miller thought that or somebody else did. Seems insane to me. Again, we're speculating that they're even related. These could be totally unrelated things.

That's right. That's right. But I'm with you. It feels like they wanted to bring terrorism charges against this guy. And these two gentlemen said no. And so they demoted them, sent them back to headquarters and sent it over to the criminal division in Massachusetts to bring a criminal case. That's what it feels like to me.

Again, I have not spoken to either. these gentlemen in years, and I don't know. But it certainly would be consistent with the way the FBI is currently run. Yeah. All right. Next up, a resignation. Another one, ABC reports another top Trump loyalist tasked to help lead the controversial grand conspiracy probe targeting President Trump's political foes has resigned from the whole Justice Department, not just the case. And that's according to sources familiar with the matter confirming to ABC News. The resignation of Kurt Olson, 2020 election denier. He was subpoenaed in the Jack Smith case. He was assigned to the so-called grand conspiracy probe in Southern Florida earlier this year. It comes just weeks after Trump allied

Joe DeGeneva similarly announced his departure after saying, I'm not going to discuss it further, but then suggesting to the New York Post that he was being pressured by DOJ leadership to bring charges without supporting evidence. And one of the lead FBI agents assigned to the case, Jack Eckenrode, also departed the case in recent weeks. Now, two sources told the post to the Washington Post that Olson had become frustrated by pressure from the Justice Department in Washington, Maine Justice, to increase the pace of the probe and secure grand jury indictments, preferably before the midterm elections. Seems like what DeGeneva was complaining about, too. Two of Attorney General Todd Blanche's top deputies, Trent McCotter and Akash Singh, Akash Singh was the architect of the BS charges brought against DeBrigo Garcia, by the way, they traveled to Florida in recent weeks to meet with the investigative team according to a person familiar.

So I think you can piece together what happened here. I know you can't comment on it, but our listeners, I think what it seems like is here come Akash Singh and Trent McHotter down to Florida to say, you need to charge this stuff before the midterms preferably, but you're going too slow. And it came to some sort of boiling point where pretty much everybody was like, I quit. No comment. Yeah, no comment. No comment. But I did find a cool story for you that you can comment on that I think is a result of the massive failures that happened in Kenyonez, Redding's, U.S. Attorney's Office with DeGeneva and Kurt Olson and apparently seven or eight other people leaving, including that FBI guy.

Yeah. This one you can talk about. This is so crazy because either it's a direct reaction to what happened in Southern Florida, or if not, it will be forever tied into that legally, and we'll get to that at the end. But from MS now, we know that FBI director Cash Patel has commissioned a classified report examining purported past FBI shortcomings in what current and former Bureau officials see as the Trump administration's latest effort to rewrite history in the president's favor. Three current and former FBI officials who spoke to MS now said they do not know what is in

the report, but they expect that it would cover matters important to President Donald Trump, including the Russia investigation and the more recent special counsel investigations involving classified documents and the alleged conspiracy to overturn the 2020 election. The sources believe that the, quote, Patel report, Is that going to be the name of his show when he's finally gone? The Patel report is designed to turn long-running political arguments over whether the FBI made mistakes into an authoritative FBI account. And by classifying it, the FBI will be making it much more difficult to challenge. So in essence, Patel has created an official classified vehicle to possibly relitigate the investigations that made his political reputation, including an investigation in which he was able to,

fact witness. Oh, yes, good point. The reason Democratic senators wanted volume two of Jack Smith's report before they questioned Kosh Patel in his confirmation hearing is because he was a fact witness in the documents case. In 2022, Patel maintained that Trump declassified the Mar-a-Lago documents with his mind, right? Yeah. And then later, he testified before a grand jury on that question after receiving limited immunity. So, according to the sources, if the report deals with the documents, case, it would amount to an FBI director supervising a narrative about an investigation that touched him personally. Oh, who would know it better than him?

Patel also has a personal stake in the Russia investigation. You all remember, he made his reputation in Maga World as a House staffer, challenging the FBI investigation of whether Trump and his campaign improperly colluded with the Russian government to influence the 2016 presidential election in Trump's favor. might be why the 11th Circuit moved the arguments for volume two up from January to November. They just did this. So November 2nd, the day before the midterm elections end, is when they're having arguments on the, you know, the Knight Institute of Columbia's FOIA request to get volume 2.

And recently, by the way, you know, last week we talked about those five fired FBI agents filing an intervention motion with Judge Cannon saying, hey, what do you want us to do about subpoenas? because DOJ says you're not allowed to testify about volume two, but if they ask us questions and we don't comply, we could be charged with 1001. And if we do answer the questions, we'd be in contempt of your order barring us from talking about volume two. You know what she did?

She just said, she just dismissed it. She denied their motion to intervene. No, you can't intervene because they didn't confer enough with the Department of Justice. Didn't DOJ say to them, file your thing and we'll respond to it? Yes, twice. There was much confer. There was many confer that happened.

That's as much confer as you get from this DOJ. But, you know, I was sitting there like, how is she going to wiggle her way out of that one? Well, that's how she did it. She said he didn't confer enough. Wow. Yeah. She never fails to make you feel sick about the justice system. This thing is so crazy.

I mean, in any normal time, okay, we don't know what's in the report, but we can pretty safely assume that it's going to hit the same old stories, right? We're going to go, we're going to start with Russia, Russia, Russia, and then we're going to go into the Jack Smith stuff, yada, yada, all of that is purportedly what's being investigated in the grand conspiracy thing in Southern Florida. So in any normal time with competent professionals involved in these different things, if a prosecutor, found out that someone in the FBI was writing an authoritative account narrative of the exact thing they were investigating, they would completely lose their minds. And the attorney general would call the director and be like, stop, put the pens down, destroy everything. Do not finalize anything. You will not do this because they're creating evidence that will possibly contradict with whatever theory the prosecutors go forward with. Might have also been a reason.

and all those people left. It's a disaster. The prosecution. Just like, you know, this problem that you were just talking about in Judge Cannon's court. Like, it's all going to be Brady material, so it's all going to get handed over the fence. Eventually, anyway, these people doing this stuff, they don't seem to be able to, like, look around a corner. No. That's crazy.

Not until they're on their way out the door. Yeah, maybe. Yeah. But there's somebody coming back. Yeah, so a lot of people leaving, but one guy is coming back. This comes to us from the Washington Post. A federal judge ordered the Justice Department on Thursday to provisionally reinstate the judicially appointed U.S. attorney in Seattle, who was fired this summer

amid a larger dispute over the president's authority to fill key prosecutorial posts with candidates of his choosing. The ruling by U.S. District Judge Stanley Bastion is the latest in a string of court decisions to conclude that the Trump administration has illegally maneuvered to install loyalists in U.S. attorney roles across the country, while bypassing the role that the Senate and the courts are also supposed to play in that process. The fight is likely to end up before the Supreme Court. The suit before Bastion on Thursday involved Roger Rogoff, a veteran prosecutor and former King County Superior. court judge. In July, federal judges in the Western District of Washington chose Rogoff to lead the U.S. Attorney's Office, but in less than an hour, the Trump administration fired him via email. Bastian granted a preliminary injunction temporarily halting Rogoff's dismissal and ousting, for

now, Charles Neil Floyd, the flunky, I'm sorry, the man the Trump administration had hoped to keep in the post. This decision leaves Rogoff. Roger Rogoff is a great name by the way. Yeah. It leaves him in an awkward situation. He's working for a DOJ that's on the record as opposing his presence. By Thursday evening, the department had filed an appeal seeking to overturn Bastian's ruling and oust Rogoff once again. The judge also rejected a Justice Department request to pause his ruling while that appeal plays out. And he further barred the DOJ from seeking to block Rogoff's access to his office and from recognizing anyone else besides Rogoff as the regent's chief

law enforcement officers. Nice. Shoot out at the OK corral, I guess. Yeah, or the Seattle corral. I mean, once again, now you have another district with essentially no U.S. attorney. Yeah, but he's there and they don't want him there. And so he's like, all right, should I investigate stuff? Crazy.

Crazy. But of course, of course the Trump administration doesn't just go after its own in the executive branch. They also like to go after people in the judicial branch. and we're going to talk about Judge Boesberg and the Minnesota bench after this break. Stick around. We'll be right back. Hey, everybody, welcome back. Let's talk for a minute about the Justice Department's attack on the judiciary.

First up from Politico, the Justice Department has filed a formal complaint against nearly all of the federal district court judges in Minnesota, alleging they violated the judicial ethics code by speaking out about the impact of the Trump administration's immigration enforcement surge on their court. Quote, these judges are commenting publicly on pending and impending. cases and making political statements on matters that are currently or just recently been before them, many of which are still on appeal. At least one case is currently pending before the Supreme Court. That's Todd Blanche on Wednesday after he announced the complaint during a press conference at DOJ headquarters. This is a flagrant violation in the department's view of the Code of Judicial Conduct. Okay.

The complaint contends that former Chief District Judge Patrick Schiltz, Judge John Tonheim, and other anonymous district judges from Minnesota who spoke to the New York Times for an article published earlier this month expressed bias against the government. It's funny when somebody who says facts is just expressing bias against the government. It speaks a lot about the government.

You know, we live in the age when you hear something you just don't like, you dismiss it as false, fake, unpatriotic and possibly treasoning. That's just the way things work now. In the Times article, Schultz, a George W. Bush appointee, complained about widespread noncompliance with court orders related to immigrants detained during the surge, something he also repeatedly raised in public court hearings. Quote, my impression was that most, if not all, of the noncompliance was due to incompetence, he told the Times, not due to conscious defiance of orders. I actually thought that he was not defending them,

but trying to kind of soften the blow in the article. He talked a lot about how they were just so overrun with cases, they couldn't keep up, things like that, which made it look less consciously political. Yeah, no, you're right. Now, the complaint, Faults Tunheim, a Clinton appointee, for suggesting many of those detained posed no immediate threat. But that's a fact.

Quote, they weren't arresting, in my view, people who were dangerous criminals on the street. That's what Tunheim said. Now, DOJ's complaint calls Schultz and Tunheim's comments partisan and overtly political. The ethics complaint filed with Judge Stephen Coliton, who's the chief judge of the Eighth Circuit Court of Appeals, asked him to appoint a special committee of judges to investigate these judges. In a statement Wednesday, Schultz defended his actions. Quote, as legal ethics experts have confirmed, I was acting well within the ethical rules that apply. to federal judges in speaking to the New York Times, Schiltz said. Indeed, in February of this year,

the Committee on Codes of Conduct issued an advisory opinion to emphasize that federal judges may speak and write on core judiciary matters such as advocacy for the rule of law and judicial independence. That is exactly what I did. Now, court spokesperson responded on behalf of Tunheim, echoing Schultz's statement that the comments were permitted under the federal rules for judges. Yeah. That's a pretty good argument. It is.

We'll see what the Eighth Circuit says. My guess is they'll say, this has already been resolved by the ethical committee. I think we're fine. Let's move on. Yeah, and I don't think Supreme Court will take it up. But that's not the point. The point is to file the complaint.

That's red meat for the base, I think. Exactly. And there were other complaints, too. You were called DOJ filed an ethics complaint against Judge Boseberg in the D.C. district last year. They complained about something he said to his call. colleagues during a private judicial conference when he told Chief Justice John Roberts that his colleagues were concerned that the administration might disregard federal court rulings,

which would trigger a constitutional crisis. Now, a judge threw Todd Blanche's ethics complaint out a long time ago. The whole thing was under seal, but there's still a matter of contention pending here that's public. In Blanche's complaint, the DOJ referred to Attachment A, which was a memo written by a judge that was memorializing. Boseberg's comments during the judicial conference. But attachment A was not attached. And an independent media organization filed a FOIA request, a Freedom of Information Act request, to get the attachment because they believed DOJ was improperly in possession

of it. And full disclosure, that lawyer representing that independent media outlet is also my lawyer in several Freedom of Information Act cases. Now, the Justice Department denied the Freedom of Information Act request, stating that the memo is not an agency record. It's a judicial record and it's therefore not subject to Freedom of Information Act. Why do you have it? Right? Now, whether the memo at issue is an agency record turns on two main questions. One, whether the judge who prepared it manifested an intent that the memorandum would remain confidential or instead that it becomes subject to FOIA. And two, whether the DOJ

obtained the memorandum in performing its official duties. How else would they have gotten it? Is there some unofficial duties that they can just do whatever they want and they don't have to, that stuff gets past FOIA? Yes. The judge in the FOIA case just ruled this week or a week ago, maybe a week and a half ago. It does appear likely that the author of this memo manifested an intent for the memo to remain confidential and that the DOJ did not obtain the memo in performing its official duties. But the parties dispute questions of fact pertinent to both inquiries and the court will deny Department of Justice's motion, and allow RES IPSA, which is the independent media outlet, to conduct limited discovery to get this attachment. Wow. That's an interesting one. We've got to keep up on that one now. All right. And speaking of Judge Boasberg, the full panel of judges on the D.C. Circuit Court of Appeals heard arguments this week about Judge Bozberg's contempt proceedings against the government.

Now, you'll recall that in March of 2025, Judge Boasberg ordered the Justice Department to turn the planes bound for Seacoat Prison in El Salvador around and return the some 200 detainees board to the United States. The Justice Department ignored the order, and Judge Bozberg ordered contempt proceedings. The Trump administration filed to block the contempt review, and it's been paused since then. But according to the Associated Press, it seems as though the appeals court is, poised to greenlight Bozberg and allow the contempt proceedings to resume. Right, because a three-judge panel on that appellate court, two Trump appointees, stopped it and said, you can't do that. Right.

So then ACLU filed with en banc to have an en bancary hearing. They accepted it. They heard the arguments. And here's what the AP says about these arguments that happened this week. Judges from the full U.S. Circuit Court of Appeals for the District of Columbia heard three hours of arguments in the latest chapter of a case that's been a recurring flashpoint in Trump's escalating conflict with federal courts. Justice Department attorney Brett Schumate argued district court chief Judge James Bozberg has no basis or authority to continue his inquiry

because a prosecutor, not a judge, is responsible for investigating crimes. Basically, he's arguing that the court can't investigate contempt. The government likely committed a crime, which puts the investigation of this in our jurisdiction. go away. That's a startling argument from the Department of Justice about itself or the government. Now, Judge Patricia Millett questioned why Bozberg shouldn't be allowed to continue with his inquiry so he can determine if other government officials merit additional scrutiny for possible criminal contempt. Quote, are district courts allowed to decide if people have engaged in contempt in front of them?

That's what Millett asked, who is nominated by Obama, by the way. Quote, the district court loses the authority to investigate. That's Brett Shumate. from the DOJ. Full disclosure, he's also the DOJ lawyer on several of my Freedom of Information Act cases. She shot back, Millett shot back. That's not my question. This is all about word play here on what you mean by the word, investigate. Wow. The administration has said then Homeland Security Secretary Christy Noem was responsible for the transfer decision. Of course, they said that. On Tuesday, however, D.C. Circuit judges suggested that Bowsberg should be able to identify other possible

targets for a contempt investigation before referring the matter to a prosecutor. That makes sense. Judge Cornelia Pillard, also an Obama nominee, said it undermines courts authority if the executive branch treats judicial orders as optional and is allowed to ignore them with impunity. Quote, the separation of powers respects the separate and co-equal authority of the different branches, she said. Really, at bottom, what this case is about is whether federal courts are at the mercy of the executive. Yeah, I don't think that one's going the government's way. I hope it's not because this is an incredibly important ruling in the most important district in the country for these types of rulings, right? This is where cases against the government typically play out. And if the government wins here, whether at this level or at the Supreme Court, if they take it that far, they're basically going to kneecap the ability of federal judges to enforce their own orders.

And meanwhile, you know, breaking as we're talking, U.S. District Judge April Perry in the Broadview Six case, which is often the subject of our hit me in the head with a bat segment. She's having a hearing today saying my sole focus at this point is on lack of candor, concealment of material facts. or other misconduct that occurred before me. And she has ordered that she's moving forward with further fact-finding regarding potential prosecutorial misconduct in the case of the Broadview 6th with a special prosecutor still on the table. And that's, you know, I think what we were talking about,

what Bozberg might do is actually appoint a special prosecutor to investigate criminal contempt before him. And he's got the authority to do that. And it looks like April Perry might be taking advantage of that as well. There you go. There you go. And I just checked the document. There's not a ruling yet from the full en banc panel on this particular case with Bozberg, but we'll keep you posted.

All right. We have more we need to get to, and it's embarrassing for the Justice Department. And I almost feel bad having to report that our Justice Department is spending taxpayer dollars on what you're about to hear in the next segment. Stick around. We'll be right back. Welcome back. Okay, I don't know if you're ready for this next story from the Wall Street Journal.

I certainly was not ready for it. For nearly two years, the Justice Department has made it a priority to investigate people who previously investigated President Trump. Now it's reaching back in history to consider whether prosecutors mistreated an earlier Republican president, one Richard Milhouse Nixon. The department is reviewing whether the special prosecutor's office that investigated the famed Watergate break-in committed misconduct, according to people familiar with the matter, more than half a century after that scandal led to Nixon's resignation. Maybe this is the Kosh Patel classified report. I mean. Because they were just speculating that it was about Russia and Mar-a-Mago and the 2020 election.

Maybe it's just the Richard Nixon, the classified Patel-Nixon report. Or maybe it's all combined. Maybe it's one giant grand deep state conspiracy. I mean. It's just as likely that Russia's connected to the Mar-a-Lago documents cases. Nixon and Watergate are connected to the Russia case. Okay, okay, hold on. No comment.

Okay, I just had to get that in. No, no worries. Jeff Shepard, a former Nixon aide turned Watergate historian and revisionist, recently gave a two-hour presentation at the DOJ headquarters that laid out his theory that the deep state took Nixon down. Wait a minute. You're telling me that a staffer for the guy that got taken down feels bad about it and thinks his guy shouldn't have got taken down. Wow, that's stunning. Never would have picked that one.

And the title of his 78-page PowerPoint presentation, which sounds like a nightmare. Okay, Jeff. Step away from the PowerPoint. I wonder if it has a little perky PowerPoint stick figures in there, like with tapes or something. I don't know. Do you get an intermission in the middle? He starts playing some music and you're allowed to, like, go to the bathroom or get a cocktail or something? I mean, Jesus Christ.

Yeah, and during intermission, he shows slides from his time at Yellowstone. This is Watergate. This slide deck is called Watergate as lawfare. The review comes at a moment of renewed interest in the Nixon legacy because Republicans see in the combative former president who is loathed by the press and besieged by investigations, an historical analog for Trump. Yeah, I would say so. Is that really the comparison you would think? I mean, dude. During remarks at the Nixon presidential library in Yorba Linda this summer, Vice President J.D. Vance.

made the comparison explicit. Quote, if you look at the story of how the deep state took down Richard Nixon, it's not all that different from what the same groups of people, the same institutions, tried to do to Donald Trump in his first administration. Well, then he should have resigned and taken his pardon and left us alone. Yeah. That's what Vance said. There is a parallel.

And, you know, coming up next, looking into Nuremberg, was Hitler treated unfairly? Like, what's next? Oh, geez. A senior Justice Department official last month invited Shepard to come to the Justice Department headquarters and make his case before the Office of Professional Responsibility or OPR, an internal watchdog that investigates allegations of misconduct. The office itself is a product of the Watergate era. Ouch, perfect.

These guys are the circle of life, you know, whatever, how that song goes. Okay. It's a product of the Watergate era, one of a number of changes aimed at, aimed at shielding criminal investigations from White House influence. What a novel concept. In 2022, the Justice Department under the Biden administration rebuffed Shepard's request for an investigation. Excuse me, Mr. Garland, can I interest you in... Have you heard my testimony?

Mainstream scholars, I wonder if that's really the right term. Should it just be like normal people, people who have had any... Any run-ins with history? I don't know, everyone. Everyone except Dan Bengino and J.D. Vance. Mainstream scholars have long concluded that Watergate generated a genuine constitutional crisis and that Nixon, not those who investigated him, was guilty of a malfeasance, which not only doomed his presidency, but also led to overhauls that significantly curtailed executive power.

And, I'll throw in, was actually taken out by the Republicans in the Senate, who, hopped in their car one day, drove over to the White House and said, it's time to go or else we're going to impeach you. But, you know, that's just history. It doesn't fit as well with the current conspiracy. No, it's exactly the same because all of the witnesses in Jack Smith's 2020 probe were all Republicans. So it's the same deep state Republican, uh, what? Wow, that switched around so fast. I always thought the deep state was, well, no comment. No comment. One of the thing. Yeah, no comment.

Anyway, what a great use of taxpayer money. Yeah. Well, they're not, you know, they've got some extra funds around because they don't ever investigate any of the times that ICE people shoot citizens and stuff. So, you know, there's a little bit extra bandwidth there. They could just do a fun side project like this. Yeah, maybe those two counterterrorism guys have time now and they can just, you know. So ridiculous. All right, don't worry.

I know we already talked about the Broadview Six, but we still have a pretty robust installation of Hit Me in the Head with a Bat right after this break. Stick around. We'll be right back. All right, everybody, welcome back. It is time to Hit Me in the Head with a Bat. Hit me in the head with a bat. Hit me in the head with a bat.

Hit me in the head with a bat. And today, Davy Hearn's charges were dismissed a while back because Janine Piro herself said there was a mountain of evidence proving his innocence. But the DOJ bizarrely argued that the charges should be dismissed without prejudice so that they could bring them again sometime in the future, even though he was completely exculpated and there was no way around it. A D.C. Superior Court judge held a hearing and ruled this week on whether these charges

should be dismissed with or without prejudice. So let's just read a bit from the ruling because it just speaks for itself. Dismissals of criminal cases occur practically every day in Superior. court. In some cases, the government moves to dismiss due to difficulties in locating witnesses, re-evaluating the strength of a case, issues with the physical evidence, be inability to timely secure an indictment or provide discovery, or a myriad other reasons. In others, the prosecutors announced that they cannot move forward on the day of trial, most often because an essential witness has not appeared. And the judge dismisses the case for want of the prosecution.

In virtually all of these cases, the court enters the dismissal without prejudice, permitting the government to revive the prosecution at a later date should, for example, it be able to locate additional evidence or resolve witness availability problems. Such dismissals recognize the inherent role of the prosecutorial authority in deciding which cases to pursue and offer greater weight to the public interest in allowing the government to investigate and pursue criminal cases than to the interest of criminal defendants in having absolute certainty as to whether a prosecution can resume. This case, however, presents a mark. A remarkably different scenario.

The judge wrote, they're so good at, like, toning it down, you know, I wish I was better at that. While the government wishes to hold open the possibility of the development of evidence that would support a future prosecution, its own representations make plain that such a possibility is theoretical at best and more likely simply fanciful. That's federal judge speak for bullshit. At the same time, the President of the United States has criticized the decision of the Office of the United States Attorney to drop the case in the most vetuptive terms. Ooh. Yes. Demanded that the government reinstitute the prosecution, in part because of Mr. Hearn's political activity and the identity of one of his attorneys. And publicly entertain the possibility of firing the United States attorney as a result of the dismissal.

his one attorney he's talking about there is Ambassador Norm Eisen by the way. Here's another great quote from the ruling. Given the process that led to the indictment in this case, Mr. Hearn and the public cannot view the promise that a future grand jury would protect him against a meritless, politically

driven prosecution at some point in the future is anything short of facetious. So now we've got fanciful and facetious. I think we've got the name of our... And vetuptive. I'm writing it down for fanciful and facetious. It sounds like, what I feed my cats. Okay. And here's another great quote. The court agrees with the defense that in securing the indictment against Mr. Hearn, the government shot first and asked questions later.

So they have dismissed. This judge has dismissed the charges against Davy Hearn Olympian, reflecting pool vandal, no more. Wow. Wow. Thank God for him. The case, yeah, has been dismissed with prejudice, cannot be brought again. You know, it's a rare, like, a good news story, but But it really is on so many levels. Great for him. Glad he doesn't have to worry about this nonsense anymore. Although his life will never be the same. He probably gets harassed much in the same way Stephen Miller's wife does on social media

and everywhere he goes. He's become a public figure or a known figure, never having wanted that distinction. I don't get a good book deal, though, with prejudice. A Davey Hearn memoir. Good for him. Go for it, buddy. I'll tell you another thing that it exposes to me, which I find joy in, is I love the fact that we have this audience of people who listen to this show and who understand the difference

of between with prejudice and without prejudice. I mean, it's, it's not the kind of legal term that most normies understand because it seems kind of inflammatory first time you hear. It's a household term now. Yeah. Look at you guys. We're on your way to your JD. It's great. Prejudice. All right. Well, that is our show. I can't believe we got it all done. I was worried. There was so much in there. I didn't get to my personal Freedom of Information Act updates, but I'll probably do that later today on the breakdown over on a Midas Touch Network. You can get a link at maliciously rope.com.

Now it's time for listener questions here on this show. If you have a question, you just got to tap that link in the show notes and fill out of form, send your questions in. We love reading them. We love getting them. Your questions are super thoughtful and always amazing. What do we have this week for questions, Andy? Okay.

So we have two this week that kind of are bank shots off of, Jack Smith's testimony a few days ago. The first one comes to us from Casey Jeff. Casey Jeff says, what actually would be wrong or illegal if Jack Smith had actually shared information with Fawney Willis? I'm so glad you asked that, Jeff, because I've asked myself that question many times. And I think the answer is nothing. There's nothing illegal about it.

There's nothing, I don't even think there's anything improper about it. think that under the circumstances, you know, both prosecutors engaged in very high profile, politically charged investigations and prosecutions of a sitting president. I think it's like a great idea not to coordinate under those circumstances, and that seems to be the decision they made. But I have been involved in many cases in which two different districts or fighting over maybe be the same defendant. And so the prosecutors get on phone and they kind of coordinate who's going to go first, who's going to go second, what evidence are you going to have access to, what are you not going to have access to? And sometimes they fight and it gets a little,

you know, stinky or whatever. But these things happen. That's just kind of the business, you know. Sometimes a state prosecutor wants some sort of evidence they haven't been able to get from the federal prosecutors and the federal prosecutors are like, nah, because we're not presenting that evidence until we get to trial and we don't want them to be able to prepare a defense. So no. But when we're done, you know, have that. You know, I mean, there's all sorts of things. But he, but Jack Smith was like, no, I know, no, no, I never did.

And then the whole Hawkeyes game thing came out. Which was so fun. Another funny moment was when Chuck Grassley wanted to tie him into, like they're so desperate to tie the Mar-a-Lago search into the Russia investigation so that they can make a grand conspiracy case out of it. because the Russia investigation is way past any statute of limitations, not that there were any crimes that you could charge, but they were desperately trying to do that. And Chuck Grassley's like, so did you discuss, did you discuss your whatever with the ex-CIA chief, John Brennan?

And Jack Smith just leaned in and said almost with a little smirk on his face, I've never met John Brennan. And then you see Chuck Grassley like, well, that's, can't do any of these follow-up questions. going through his paperwork. And he was like, he was so sad that he couldn't ask his 20 questions about Brennan. Yeah. I mean, Senator Grassley, he, I've been in front of him many times before.

He used to come over and meet with the director periodically. He's very attached to those handwritten lists of questions. I don't know who writes them. or what, but they seem to be very important to him. So I can tell, I could see in the hearing when Jack Smith knocked him right out of the, right out of his flow, he didn't quite nowhere to go. And when Senator Whitehouse pointed out that all of this toll record stuff, which is the Republicans' main beef, happened under Bill Barr and Donald Trump.

And, you know, when they got told records of Democratic members of Congress and staff, and, you know, they said Adam Schiff and Senator Whitehouse were, like not a peep out of out of you then. And then later on Chuck Grassley, who seemed very offended, he was like, I just want to enter into the record that I did write a letter just to Bill Barr about subpoenaing those toll records. I would, I did. So, oh, okay. All right.

Well, nice, a little consistency from Chuck Grassley. Did you call, did you drag him into a hearing and try to rip him in half in front of the entire country? I think not. I think, no, I don't even think you publicized your letter, sir. But thank you. All right. So perfect segue to question number two, which comes to us from, yeah, why not Jade, which I know, I'm just being a smart Alec.

She probably meant who was asking the question if we could use her name and said, yeah, why not? The name is Jade. But I like it all together as yeah, why not Jade. Yeah, why not Jade? All right. So think about using that, Jade. Hi, Andy and AG.

I think the hit me in the head with the bat definitely goes to Eric Schmidt this week with his super poor effort to catch out Jack with a gotcha question. Could this lame effort be due in part to Jack accessing some senator's phones during his investigations? No mention of wrongdoing has been alluded to, but some senators seem to have their noses out of joint. Could Jack be sitting on some dirt, perhaps a full bag? I mean, Jane. He's got the times that he talked to people. I was just at one point hoping Jack Smith would be like, look, if you don't want your toll records subpoenaed and have a non-disclosure order, don't talk to a criminal while they're committing a crime.

There is that, yes. It's so these, I don't, right, you're going to probably disagree with me here. But in all honesty, I don't think that Jack is doing anyone a favor with these hearings. hearings, I think that, first of all, he's taking on enormous personal risk because the entire purpose of the hearing is to catch him in some sort of a statement that's not perfectly aligned with a statement he gave in prior testimony under oath and then to indict him. So there's that. And he gets no chance to really do the things that he wants to do, stand up for the people that work for him. He did. And clarify the record. I mean, it's not, it's such a degenerated

like S show that I just don't know that anything really positive comes out. I think he did us a real big favor when I think he's exposed Schmidt this week. That whole hearing, the only thing anyone is ever going to remember about it. Is Schmidt. I get it. And that, you know, good for him. He earned that one. He did.

I like, I like it when Jack goes out and speaks more openly and has the opportunity to explain what the hell he's talking about and actually can talk about specific people or, you know, jobs that people did that he thinks the DOJ is like woefully missing now because they fired all these people. Yeah. This is a very narrow opportunity. It doesn't really get to explain anything in any sort of detail. The fact of the toll records is there is absolutely, there's no clear bar provided by the speech and debate clause, which is in the Constitution.

That does not prohibit a federal investigator for getting a grand jury subpoena for toll records, not phone conversations, but just the who you called and when you called them and how long you were connected. And he pulled all these toll records because he was trying to figure out who the alleged criminals in the White House were talking to. And Giuliani, right. It's like, remember when Lindsey Graham pitched a fit and wondered if his phone calls were getting swept up, because he was talking to Russians. Yeah. And it's like, don't talk to Russians.

Yeah, totally. And the whole thing about the non-disclosure orders, the non-disclosure order is meant to protect the investigation, which at that point in time is covert. It's not in the public. You're not posting on Twitter every day. What you did on the investigation in the last 24 hours, you have to be quiet about these things,

because if you're not quiet about them, that evidence will disappear. It'll get deleted. It won't get preserved. Or somebody like Donald Trump or his henchman will be calling people and telling them to get rid of evidence. So this is all. What Jack Smith said in his testimony. He's like, and we have proof that Donald Trump is want to delete things when he finds out that there's being an investigation being conducted and to pressure other people to do the same.

And so, and, you know, as Senator White House brought up, Bill Barr had gotten on discloskey. closure orders on the Democratic members of Congress and their staff and family members when he sought the toll records as well. So it's it's all theater and all of these guys Ted Cruz, Josh Hawley, who's the guy from Utah, Mike Lee, they all know this. They all know better. All this righteous indignation and screaming and yelling of Ted Cruz and people calling Jackson with the trip. They all know that what he did in the course of that investigation is, what you do in any large federal investigation, particularly ones that involve, you know,

potential conspiracy, public corruption, what have you. Yeah. Well, that's what Feinberg told MS now. He was like, anybody who's worked in the FBI or worked on any of these investigations, this is just a very basic early on step that everybody does all the time. Like it's investigation 101.

You're trying to build out the network of people. It's a conspiracy, right? So a conspiracy is an agreement to do something that's illegal. You need to know who, was part of that agreement or who could have witnessed others being part of that agreement. So if you don't take toll records. And you don't get the content. You just call them in and say, what did you talk to Trump about that day?

Right. They can still, you know, they can still refuse to be interviewed. If you subpoena them, they can fight the subpoena under speech and debate. All that kind of shit can still happen. But it's just, I don't know, I get so frustrated watching these things. Then I have to go on TV and talk about them. And I'm like, I think we learned nothing. One thing we did learn was that Lindsay Graham was like,

one thing we did learn was that Lindsay Graham was likely a witness in the case. That was a really great back and forth when Darlene Nordone, who has changed her name to Darlene Graham for political purposes, asked him, you know, why are you bothering my brother and getting his tall records? And he was like, ma'am, my, ma'am, your brother, it was a true patriot and was likely a witness in our case against Donald Trump. And her face was like, That's not what she wanted.

That's not on my list of questions. Mm-hmm. That's not what. My staffers didn't tell me that was going to happen. What? Well, now you know. There you go. So we did learn that.

And I was kind of glad that we got that little piece of information because I had no idea Lindsay Graham was a potential witness in the case. Yeah. I don't think anyone did. Well, Jack did. Yeah. Everybody works for him. What he knows, what that guy has in his head, man.

Well, it was like when I found out that. that Judge Amy Berman-Jackson was reading all of the sealed Roger Stone documents in the investigation. And I was like, man, she's just kicking back right now with a cognac in front of a fire and reading that shit. And I'm like so jealous. Like, I want to know what's in there. We still don't know and we'll never know. But there are people who know, as you know. There are. No comment.

Everybody, that's the show. again, if you have a question, please send it to us by clicking the link in the show notes. We really appreciate you listening. And Andy, I always have fun talking to you about these things. I mean, I know that our institutions are in shambles, but I think the best way to deal with it is to help make sure everybody knows exactly what's going on. So I appreciate you. 100%. This is the only way to get through this. Got to keep an eye on it. Got to keep some sort of balance as well when you can. But yeah, hopefully we're able to do that for folks every week and be back. here next week doing it again.

Awesome. Thanks so much, everybody, for listening to Unjustified. I'm Allison Gill. And I'm Andy McCabe. Unjustified is written and executive produced by Allison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hawke with art and web design by Joelle 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.