Jack - FBI Lowers Standards with Adam Klasfeld

Episode Date: September 6, 2026

Judge Talwani has issued a preliminary injunction against the USPS making Trump’s vote-by-mail rule mandatory, but allows states to voluntarily participate if they so choose.Jim Comey has filed his replies to the government’s responses in the seashells case.A history of hiring prostitutes or stealing from an employer may no longer be a barrier to being hired at the FBI.ICE officer Christian Castro has been federally charged for making false statements about the shooting of a Venezuelan man in Minnesota, but the federal prosecutor who brought the charges has been fired.Plus listener questions.Do you have questions for the pod or something for HITMEINTHEHEADWITHABAT? Adam Klasfeldhttps://www.allrisenews.comhttps://bsky.app/profile/www.allrisenews.com https://bsky.app/profile/klasfeldreports.com https://x.com/KlasfeldReports https://www.instagram.com/senecaprojectus/  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-S-W Media. Judge Talwani has issued a preliminary injunction against the United States Postal Service, making Trump's vote-by-mail rule mandatory, but allows states to voluntarily participate if they so choose. Jim Comey has filed his replies to the government's responses in the Seychelles case. A history of hiring prostitutes or stealing from an employer may no longer be a barrier to being hired at the FBI. And ICE officer Christian Castro has been federally charged for making false statements about the shooting of a Venezuelan man in Minnesota, but the federal prosecutor who brought the charges has been fired. This is Unjustified. Hey, everybody, welcome to episode 84 of Unjustified. It is Sunday, September 6th, 2026. I'm Alison Gill. And I'm Andy McCabe. As usual, Allison, we have tons to cover. today. And also at the end of our show, we have a very special installment of Hit Me in the Head with a bat.

Oh. So, yeah. So this week we have Adam Klausfeld from All Rise News. He's going to be joining us to discuss the Comey Seychelles filings, along with a recent hearing about Olympian Davy Hearn. The government is trying to keep the case alive, and Hearn's lawyers are trying to have the charges dismissed with prejudice. So we're looking forward to speaking with Adam later in the show. Oh, that's excellent. Yeah. His All Rise News over on. substack is totally an invaluable asset to me and our reporting. But let's kick this off with the ongoing U.S. Postal Service mail ballot portal case. As you probably have heard, Trump signed an executive order demanding the U.S. Post Office implement new untested processes for getting mail

ballots to voters ahead of the midterm election. This week, a whistleblower stepped forward outlining the chaotic development of the portal and some of the rules that govern its use. Now, participation was supposed to be mandatory, according to the executive order, and according to the whistleblower. If even one ballot's barcode was scanned incorrectly, it would disqualify the entire batch from being mailed out, which can sometimes be tens of thousands of ballots. And it was just such a wonky procedure, the way that the whistleblower explained it, Andy, that they have to bring their ballots. They have to enter every name and barcode into the portal. And then they have to take it to the first guy at the post office. And he's got to scan them all while they sit there and watch.

And if there's one mistake, back you go. The whole batch is turned away. It's like a zero error tolerance rate. And that's just absolutely bonkers. And the whole thing is chaos and slapdash. And they call it a shit show, the whistleblower. Yeah. So that's that.

And all being forced forward in an incredibly compressed time period. There's no way this goes forward without many hitches. But anyway, before the U.S. Postal Service published the final rule, Judge Talwani had issued a temporary restraining order blocking the U.S.PS from implementing parts of Trump's executive order. But the DOJ argued that the plaintiffs didn't have standing because the final rule hadn't been published yet. Now, that led the Supreme Court to lifting the restraining order. But the whistleblower told Congress that work on the portal continued before that block was lifted. So while they were still under restraining order, they continued to develop the portal. Then in a hearing this past week, the DOJ changed their argument.

They said that continuing the work on the portal didn't violate the restraining order because they were only working on the portal for states who wanted to voluntarily participate in the new mail ballot. validation process. Oh, so, oh, yeah, we're doing this just for the people who want to do it. Right, right, right, sure. Now, I filed a Freedom of Information Act request for the order to resume work because I want to see if it says this keep going, but only for states who voluntarily comply. We haven't seen that order. But I'll be interviewing the whistleblower attorney today at noon, Pacific.

time on the Midas Touch Network from whistleblower. His name's David Klugerman. But this past Friday, Judge Talwani re-blocked it. She issued a preliminary injunction after having a hearing against the Postal Service after that hearing that you mentioned, right? Right. And she's blocking the Postal Service for making participation mandatory. But she says that she's not enjoining states from voluntarily participating in the new

rule. And that's because, as she points out, the guts of the merits of the merits. of this case are that states run their own elections. Yeah. Yeah. So because the government can't and Trump has no role, nor does the post office, the post office can do this, but it has to be voluntary. And states, if you want to voluntarily participate in this shit show, you're welcome to it.

Yeah. Yeah. Which leads to a potentially insane resolution, right? What states would voluntarily participate? Those states that are deep red and vote Republican. So they're going to voluntarily submit to this process that might result in excluding tens of thousands of their ballots for the Republican candidate. Meanwhile, states leaning in the other direction are saying, no, we're not going to participate. So the end result probably one that the political masters in D.C.

didn't exactly account for. I think what they're worried about is Texas. I think they're trying to stop James Tala Rico from beating Ken Paxton, who shouldn't have been the Republican nominee if you asked John Cornyn and anyone else who sits in the Senate. But, you know, they're closing 92 polling places in one county there, like, so that, and knowing that Governor Abbott's probably going to participate in this wildly ridiculous. this program, probably to take down people like Tala Rico or Mary Peltola in Alaska or, you know, and by the way, none of this tells us what about military folks or people who vote abroad,

who's their governor, who decides if they voluntarily participate in all of this. But to say, hey, states, you can voluntarily screw your own stuff up if you want. it sucks, but it's important to the, again, that core concept that states are in charge of running their own elections. And if they want to do this, it's up to them. Yeah. I mean, she has to maintain that level of consistency, right? Yeah. Legally and ethically, she's doing the right thing. Yeah. It's just, you know, the party at fault is the post office and Donald Trump who are making it awful. and then going to get some states probably like Texas to participate.

But not all red states. You know, there were a couple red states that defied Donald Trump's request for voter rolls. I think in Utah, West Virginia, maybe Wyoming. But, you know, so I don't know that every single red state would roll for this. But Texas, I think, is what they're aiming at. Yeah, probably right. Yeah. All right.

We've got more to get to. including this ICE agent who was initially arrested because he was charged by state prosecutors in Minnesota for the shooting of Sosa-Cellis. And, you know, this was the one where he shot him through a door in the leg and claimed that him and his friend came out of him with a broom and a shovel and lied to the court, right? And so Ellison, who's the attorney general up there, charged him. He was arrested in Texas, and then Greg Abbott ran the 90-day clock out without signing the extradition warrant and let him out of jail. But then a federal prosecutor in Trump's Department of Justice brought charges. And we'll talk about that. That person is now fired.

And we're going to cover that after this break. Stick around. We'll be right back. All right, everybody. Welcome back. Next up. This story comes from PBS, a U.S. Immigration and Customs. Customs Enforcement Officer was ordered released from Federal Custody Friday after pleading not guilty to lying to investigators about the circumstances that led to the shooting of a Venezuelan man during the Minnesota Immigration Crackdown last winter. He's pleading not guilty. There's video. Thank God. The federal indictment accuses Christian Castro of falsely telling investigators he was attacked with a broom and a shovel before he opened fire, injuring Julio Cesar Sosses Salas in January.

Castro was shackled at his wrists, waist, and feet during a brief hearing in the federal court in McCallon after he turned himself in to authorities on Thursday evening. The judge ordered him released on a $75,000 unsecured bond and with a GPS monitor strapped around his ankle. It's the first Justice Department prosecution of a federal officer for actions taken during this year's massive Operation Metro Surge, which brought thousands of agents to the Twin Cities. and led to sweeping protests, arrests, and the fatal shootings of two U.S. citizens by federal officers. The allegations in the federal indictment mirror those brought by Minnesota officials who have separately charged Castro with assault and false reporting of a crime related to the non-fatal shooting of Sosa-Sellis. Yeah, now, according to the federal indictment,

Castro told an FBI agent that a man grabbed a red broom off a front porch and began hitting him with it while Castro was trying to detain. another man outside a Minneapolis home. Castro also claimed that another man hit him with a snow shovel and that he opened fire while on the ground as the men ran away. The indictment alleges that Castro had a short physical interaction with Sosa Seles and another man before the two ran into a home with a one-year-old child inside. Castro then fired a shot through the front door while standing as the men began to close it, hitting Sosa Sos Seles in the leg. Quote, no person struck Castro with a broom as he described, and no person wielded of the broom

in a snow shovel as he described. That's what the indictment says. Unbelievable. An attorney for Castro urged the public not to rush to judgment without learning all the facts and to let his client, quote, watching all the videos. Isn't that how we got here? I think that's happening. I think he doesn't need to warn us because that's what's already happened. So he said to let his client, quote, have his day in court. Oh, he's going to get his day in court, all right. Castro served in the military before becoming a federal immigration officer, the lawyer David Lindenmuth said after the hearing, quote, his life has been that of public service to our country and to our nation, either through

its military or protecting its borders and enforcing its laws, Lindenmuth said. Federal prosecutors had initially charged Sosacellis and the other man, Alfredo Alejandro Aljornah, with assault, but dropped those charges after video evidence showed the officer may have lied about the encounter. Castro was suspended from ICE in February while authorities pursued an investigation. Now, these federal charges follow Castro's release from jail last week, as I said, after Texas governor, Abbott refused to immediately sign an extradition warrant to hand him over to Minnesota authorities for the state charges. The federal investigation into Castro created turmoil inside the Justice Department with a prosecutor on the case, accusing higher-ups of blocking his effort to bring more serious civil rights charges.

In an email obtained by ProPublica, the prosecutor told lawyers for Sosa-Sellis and others that Castro would be charged only with making false statements over his strongest objections, adding the decision was being directed by the main justice and the U.S. attorney. A person familiar with the investigation, however, told the association, Press on Thursday that the civil rights probe is continuing and additional charges could still be brought. Not. Sorry, I added that. Not. The prosecutor, Matthew Evans, has since been fired and the Justice Department is now investigating whether he broke any laws during his handling of the case, said the person, who spoke on the condition of anonymity because they were not publicly authorized to discuss ongoing

investigations. An automatic email response from Evans' Justice Department account said, he was on leave, and other attempts to reach him were not immediately successful. Man, Sosacellis's lawyer is pressing for Castro to face stiffer charges, saying in his statement on Thursday that Castro's statements were made to cover up the fact that he shot my client through the door of an occupied house without a self-defense justification. Mr. Sosa-Sellis wants Mr. Castro to be held fully accountable for his crimes. That's what the attorney said, Robin Wolpert. The American Civil Liberties Union in Minnesota said Thursday that Sosa-Selis also

plans to seek damages from the federal government. So this is a really good example, I think, of when we talk about this federal prosecutor who wanted to bring these civil rights violations under color of law charges, which carry a pretty heavy sentence. This is what the feds charged Derek Chauvin and his federal officers with also in addition to the other charges. But this is an example of what you keep talking about, Andy, about, you know, when people ask if they go to work for the government and you say, you know, it's a great, it's great to serve, but just know where your line is. And this was this guy's line. He told the he told so Csellis, this lawyer, we're only charging this guy against my strongest objections because main justice came in and told me not to charge him with the civil rights violation. Yeah, it's, it's abysmal. What's been going on, um, in Minnesota, in the entire wake of Metro Surge, right? And that's why this case is crazy. I mean, just the facts alone, like an agent hitting someone with a round that they fired

through a door. I mean, that's the kind of thing that would get you indicted under normal circumstances. Just just that. But here, this case is really standing for more. It's like as they struggle to do the absolute minimum here, It can't help but remind you that not a single agent has even been investigated as far as we know for the killings of Renee Good and Alex Pretty. So it's just it's the, this is the tip of the iceberg of doing nothing to police yourself, doing nothing to come after these agents who have in obvious ways that were clearly documented on video, doing nothing to, to, to, to, you know, go after these folks who should not have been in that position.

Yeah. And now we've got a six-week training program instead of a 10-week training program over ICE. We've got whistleblower reports that they're, you know, for going in some cases, the seven to 10-day pre-vetting process where you could do fingerprints and background checks, you know, just to basically find out what their jobs have been before. Yeah. And so, you know, we're running. And now that's not the case with the Christian Castro or the agents who shot Alex Preti or Renee Good. They've been on the force, I think, eight, 10, and 12 years, respectively. But now we've got a whole group of unqualified people coming in.

And we have to worry about that as well. Speaking of unqualified, Andy, the FBI has lowered its standards yet again. Here we go. My favorite story of the week. I figured it might be. We're going to talk about that after the break. Stick around. We'll be right back. Welcome back. Okay, Allison.

Just put this on the long list of things I never thought I'd have to talk about. Okay. Our next story comes from the Associated Press. The FBI is dropping a categorical hiring ban on applicants who have had sexual encounters with prostitutes and will instead consider a more holistic manner, at least some candidates who have engaged in the practice in the past. according to people familiar with the matter. Now, the move away from an automatic disqualification falls along a continuum of evolving recruitment standards within federal law enforcement and at the buttoned-up FBI, which

several years ago relaxed its approach to candidates past marijuana use and has drawn more recent concern among some current and former agents, one I know particularly well, about a perceived loosening of recruitment standards as it seeks to replenish its rank. Now, the Bureau still intends to dismiss applicants who are revealed during the vetting process to have engaged in prostitution within the last 10 years, three or more times overall or while in a position of trust such as public safety. That's according to guidance issued this past spring and described by a person familiar with the matter who's not authorized to discuss it. So they spoke on the condition of anonymity. For others, it will allow for consideration of the context of the conduct rather than treat it as grounds for an automatic rejection from the FBI's hiring process. You know, I had a good friend who applied to be a forensic accountant at the FBI.

Okay. Took the polygraph. She went to Penn. She was in the peace core, just the straightest of straight arrows. And she failed the poly and couldn't get hired by the FBI. Yeah. So this is just, this is kind of a... I don't know, beyond belief here.

Now, the practical impact is not immediately clear, since many who have engaged in prostitution may still either be immediately disqualified or weeded out upon further scrutiny from FBI polygraphers and security officials. And I just want to go on the record saying, I am pro-sex work. I am for legalization, regulation, health care,

you know, all that benefits. that I'm that. But as of right now, it's illegal. Yes. Yeah, that's the point here. This isn't about whether sex work happens, doesn't happen, should happen, should be legalized. None of that. It's about you're hiring people into a law enforcement organization.

You should hire people who obey the law. Right. I also don't think families should get in trouble for shoplifting when they have no money. But, you know, I'm a little weird. like that, but maybe not an FBI agent. Exactly. We're not talking, this is not everybody can or should be an FBI agent. I mean, it's just, it's a very small number of people, you know, probably.

But yeah, I, you have only heard the beginning of my rant on this one. Okay, so let's back to the reporting. The FBI said the change was meant to account for the fact that some otherwise suitable candidates, including service members, may have engaged in the practice in places where it is legal and to accommodate applicants who may have done so as a young child or have themselves been victims of sexual abuse. But put a pin in that because that does not ring truthful on any level. But we'll come back to that in a second. The FBI said it is false to suggest that criminal behavior like this is no longer disqualifying at the FBI. Any applicant,

who has engaged in criminal sexual acts like those referenced would, of course, not be eligible for employment. And it is ridiculous to suggest otherwise. Well, it's not ridiculous to suggest otherwise because this is what you're doing. Pardon me. You can't open the door to hiring people who have these things that were previously considered disqualifiers and then say, we're not disqualify, you know, we're not doing it. You are doing it. Oh, my gosh. quote, the FBI has and always will maintain some of the highest suitability standards for its applicants and employees in the U.S. government.

The statement said, well, not quite as high as they used to, apparently. Oh, my gosh. All right. Even so, so now they're saying, no, it's just like if you were when you were 18 in the military and you stopped in Thailand and, you know, where it's legal, that that's what they're saying. Okay. Yeah. Even so, the shift is being made at a time when current. and former officials worry that the FBI and the Justice Department more generally have eased recruitment

requirements while facing mass personnel exodus brought on by retirements, voluntary resignations, and firings. The Bureau, for instance, has taken steps to make it easier for its own professional staff to become agents and has offered a truncated training academy for applicants from other federal law enforcement agencies. Quote, if they're moving the bar for sexual encounters to include prostitution, what is that saying about the applicant pool? They're trying to bring in more people, which to me indicates that the applicant pool is extremely shallow right now. That's Daniel Brunner, retired FBI agent who spent two decades in the bureau. Do you know, Daniel?

I do, yeah. I didn't know him when I was there, but we have become acquainted in the last couple of years. He does some work on CNN as well. Oh, in green rooms. So you met him in the grant. Yeah, yeah. So in 2015, then Attorney General Eric Holder issued a memo reiterating that all Justice Department employees were prohibited from soliciting or accepting prostitution, including, including

in places where it was legal. But both before and since that directive, the FBI and other federal law enforcement agencies have confronted periodic episodes in which agents serving abroad have been accused of sexual encounters with prostitutes. As recently as last year, for instance, the Justice Department Inspector General substantiated allegations that a supervisory special agent solicited and used to, prostitutes on multiple occasions while overseas and used a bureau issued cell phone for the transactions.

Oh. Yeah. I mean, if you think that's a problem, which clearly it is, you don't want agents around the globe soliciting prostitutes, would it be a good idea to hire people who haven't engaged in prostitution? Yes. Right? I mean, like... Well, Chris Piota? Is that how you say that?

Yeah, I know Chris well. A retired top FBI executive said he would be more troubled if the Bureau were to loosen its standards for current employees who require periodic renewals of their security clearances. But he said he could understand the FBI leaning toward leniency for actions taken as a teenager or a college student. Quote, I don't think you get a better or worse candidate from something you did in your college years. That's why they have the screen. screening process. That's why they have the vetting process and the people who do the recruiting and hiring. They all look for those things. I don't know, man. Like, I've, there's the people who have been turned down for a job at the FBI. Yeah. This is ridiculous. I mean, it's ridiculous on its

face. Part of the reason that you have rules like this is because you're trying to select people who have throughout the entirety of their lives exhibited a certain type of character. And one indicator of that is not engaging in criminal activity, whatever that might be. And certainly not engaging in prostitution. It is, you can make the, oh, well, it's legal in Thailand or whatever. Great. That's good for them. But it's not here. And, you know, choosing to live your life by a different standard is something you're looking for in people you're trying to recruit into the world's premier law enforcement entity. So it just is crazy.

In any case, the reporting goes on. Applicants to the FBI undergo a multi-step application and vetting process that includes, among other things, a background check, a detailed questionnaire, credit checks, interviews with neighbors and colleagues, and a polygraph test. A comprehensive regimen is meant to uncover any prior criminal conduct in an applicant's past as well as embarrassing personal information that could make an employee vulnerable to blackmail. felony convictions, domestic violence convictions,

failure of your analysis, and the Bureau's drug policies are among factors treated as automatic disqualifiers. Yeah, and I'm thinking about that, you know, again, for me, I'm pro-sex work, all this other stuff. It's the blackmailable part that... 100%. You know, send it off alarm bells in my head.

Though the new guidance will allow for a broader and more contextual evaluation of applicants who disclose past experience with prostitution during their polygraph admission, such an admission has historically been typically regarded as a death knell for potential employees at agencies, including the FBI, CIA, NSA. That's Daniel Meyer, a Washington lawyer with the Tully-Rickney law firm who specializes in the background check and security clearance process. So. Yeah, so quick mention about the drug policy change. That's not something that happened in the last few years. It was changed when I applied in 1994.

So that's been, that was a change many, many years ago. And it was, of course, if you had ever smoked marijuana, you could not be hired. And they changed it to a guideline like this. It's like you can't have done it in the last 10 years and you can only have done it a couple of times. I don't remember whether it's two or three or whatever it is. And that was in response to the fact that it was very, it was impacting the candidate pool significantly because marijuana had become so ubiquitous.

And it was actually on its way to becoming legal in many states. It was like a very, a very different thing. And I think it was a good move by the Bureau at that time. But this is, this to me, is in a different category. If we start legalizing prostitution and doing all that, and then maybe they'll reconsider that. but now they're already doing it now. And then there's one other thing, too,

that wasn't mentioned in this article. You can also now have a past of stealing from your employer. Or engaging in acts of bestiality. That's what I mean, CBS. Are we trying to expand the applicant pool to bring in all the people engaging in beastiality? I mean, what? Where are we going with this?

I don't get it. And their response, well, you know, it's to make up for, you know, to not exclude people who may have engaged in prostitution when they were young children. No, like, that's, you're a victim. If you're engaging in sex acts for money as a small child, you're a victim of that behavior, not someone who chose to it. So that's not a real thing.

And, you know, victims of sexual abuse. Like, well, victims of sexual abuse have never been excluded from the FBI because they were a victim of sexual, I mean, like, it's insane to even say that. Beastiality is cool, though. I mean, what, really? Can you, the security thing that you mentioned is really important. The reason that the FBI has this, what we call full scope polygraph, which can include questions about your behaviors, your lifestyle, those sorts of things, is because they're looking for things that you might be very, that you might be trying to hide, because people who have elements of their past or their behavior or proclivities or whatever that they're embarrassed

about to blackmail you right it's not because they're we don't want people who do you know this or that or you know who might have these kinds of relationships but you know whatever it's because you're trying to find people who are hiding something because they have a unique vulnerability to a foreign service to a foreign intelligence service that's what we look for when we're trying to annual computer training about it called insider threats of course that's what our foreign adversaries look for and guess what so do we when we're looking to recruit an agent of a foreign government you look for vulnerabilities you want to find a guy who's got massive debts or drinks too much or is cheating on his wife or is you know is secretly you know whatever because they're they'll they'll cooperate with you

Because they want you to keep their secret and not share it. That's what, you know, this is that in reverse essentially. But oh my gosh, it's crazy. Yeah. I'm so sorry, man. I don't know. I can't imagine. I know what it's like to sit and watch what happens to the Department of Veterans Affairs

after working there for 12 years. But I can't imagine, you know, what it's like for you. You were SCS. You were acting director. You were deputy director. You were there for over 20 years. Like, I can't imagine what it's like. to watch the bureau just go down the tubes like this.

Having sat through so many, you know, as you think back on your own career, millions and millions of meetings, like half your life gets wasted in meetings. I'm thinking, like, what was the meeting around this one like? And they gathered together with the deputy director. I'm like, okay, boss, we have a proposal

for a rule change in our hiring. We want to start letting in the people who have engaged in bestiality. I mean, like, just like, how did this get on my calendar? Like, why are there's no video? I mean, oh my gosh, it's crazy. And how do they find out?

Do people, is that a question on the application? I can very confidently and happily say, I have no idea. I mean, like, this is not something I ever considered when I was in the FBI. Like, hmm. I remember the moment of truth joined in the military, they kept asking me if I'd ever done drugs. You've ever done drugs? Have you ever done drugs? Have you ever done drugs?

But no one asked me if I ever engaged in beastiality in my moment of truth there. So I'm not sure how that comes out. Like, how's that even come up? Did somebody sue over it? I was wrongfully discriminated against over my bestiality practice. I mean, oh, geez. Anyway. Jeez, Louise.

All right. Everybody, we have a really special guest coming up next for our hit me in the head with a bat segment this week. we're going to talk about seashells and reflecting pools with Adam Klassfeld from Allrise News. Stick around. We'll be right back. All right, everybody. Welcome back. It's the moment you've all been waiting for. Today we have a very special installment of 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 joining us to discuss the latest in the Seychelles case and the reflecting pool case is none other than Adam Klassfeld from. All Rise News. Adam, welcome to hit me in the head with a bat. I am thrilled to be here over this incredibly named segment. Thank you. I'm not sure if AG told you, but you actually have to hit yourself in the head with a bat. And we'll be grading, you know, the success of that hit. So that'll come later, though.

Okay, I'll be harkening back to Little League. It has been some time. So it's our long-running segment when we discuss examples of the, degrading and diminishing presumption of regularity that's generally afforded the Department of Justice in court, which has basically been obliterated. And so we wanted to talk to you today about a couple of ridiculous cases. And so much paper, so much ink has been spilled in this Comey Seychelles case. Like I'm reading all of his motions. So he filed all these motions to dismiss for vindictive and elected prosecution, motion to dismiss for failure to state a claim, motion to dismiss because

there's no true threat. He's filing motions to get grand jury materials because something fishy happened in the grand jury room. And so then the government responded to all of those. And now this week we have the replies from Jim Comey to all of this. All of these are 30, 40 pages long. And I mean, just thinking about the amount of ache that's been spilled over seashells is kind of embarrassing for the government. So what stood out to you this week in some of these Comey responses to the government's replies? Well, it's an embarrassment of riches. I'll start with that. I mean, take the first Comey prosecution. I think anyone who was looking at that case over in Virginia closely was wondering which of these things is going to kill the case first.

because there's going to be a dismissal over one issue. It turned out to be over Lindsay Halligan's appointment. And over here, there are just little details that stand out in all of these filings. Just to point out one, when Comey was talking about vindictive and selective prosecution, he pointed out the fact that the Secret Service designated the case non-referred. So there was a photograph of the seashells. on the beach that was published. The Secret Service steps in.

They look into it. They speak to people. And they say, we're not referring this. This isn't a case of either a true threat against the president's life. This is an incitement. And they set it aside. So because at this point, Comey has a lot of the evidence from the government. And so that was a.

out the fact that the Secret Service didn't want to go anywhere near referring this for criminal prosecution. But then you have the just core First Amendment issues in the case. And what's it out to me about that one, Allison, is, you know, you wonder whether anyone in the government has spoken to a First Amendment lawyer before. So you set the basic problems with the case, the fact that there isn't any dictionary that says 86 means to kill, that the one dictionary that the government consults with, it's after Oxford doesn't say it, after, you know, Merriam Webster doesn't say it, but they find a British slang dictionary from 20 years ago. And it's the second definition of 86 in Bob's slang dictionary. And do you set all that aside? Now, this is,

Comey's reply to the government's response. And the government's response shows their theory of the case, which is at the time, James Comey was about to have a novel published FDR drive, where Comey's main character is looking into a sort of right-wing shock jock who is kind of through stochastic terrorism, trying to throw coded messages that leads to the death of one person. Now, as Comey's lawyers point out, that theory of the case is incitement. What they charged is a true threat. So there's a total category error here, even if we imagine a world where James Comey is sending

coded messages that are in his book because he took a photograph of, seashells on a beach that can be if you consult this British dictionary given a strained reading in a certain direction. Well, that theory of the case isn't the theory of the case they charge. What they charged is the theory that James Comey himself sent a true threat to kill Donald Trump. And that's not the case that they charge. The case that they're saying that they want to pursue is this sort of bank shot where incitement. But it's not even a direct incitement. That incitement, and, you know, again, I encourage the government to speak to a First Amendment

lawyer at some point in their life. I mean, ask them what the Brandenburg standard is. What is imminent lawless action? And then, you know, explain that to Trump in his civil case about his inciting the January 6th insurrection. That might be helpful to him and his lawyers. Think of the absurdity here. Like if you're, if you're, and I know this is muddled somewhat, but just to focus on this one piece, if your theory is Comey took this photograph of that, of that, whatever, it's not even a saying, it's a statement, that the symbol of 86.

And 86 is widely known by everyone as a command to kill. And he did that because he wanted someone to follow that directive and kill the president. Like, if you were scheming with a person or another group of people to actually act on an order to kill, would you use this phrase that means to kill? Right. No. I mean, you'd be like, uh, the dog needs to be walked. You know what I mean?

You come up with some code that was clearly not go kill the guy. And that it could be understood if you consult this British dictionaries, second definition and in addition published two days. Well, that might be a good argument for them. 86 is it's code. It doesn't even directly mean it. It's just, you know, it's like walk the dog. That ship has passed.

They can't go backwards now. And then they run into the other problem of, oh, well, this is sending the code. This is setting the wheels in motion for an imminent lawless action because that's what incitement is. It's not what they charge, but that's kind of what they're arguing. now. Well, it's imminent. So we're going to investigate this for a year and do nothing and leave him out, wandering around the world, free to send more codes to his followers for a year. I mean, it's so preposterous. Oh, I mean, it's an embarrassment to the United States of America,

frankly, this entire prosecution. But you have the, you know, that that is now what they're rolling with and you read the government's illegal brief. They refer to James Comey as this charismatic figure, like the one in his novel who's sending out these coded messages. You know, I don't see. Jim Comey charismatic? I mean, maybe some years ago. I don't know. Yeah. Well, I've got to say, those are some compelling videos he puts on his substack. Yeah, I mean, there's the First Amendment things. You know, I mean, the Supreme Court decided this in Watts, where you had a person say outright. You put that if the government puts a rifle in my hand to go to Vietnam, the first person in my sights is LBJ.

And the Supreme Court invalidated it because that is important. a true threat. So taking a photograph of seashells on the beach. And so, you know, I keep coming back to... If Trump put seashells in my hands, the first thing I'm doing is spelling 8647. You know, everybody uses Instagram for their most secretive, coded messages to friends, too. Oh, that's where I code my friends is totally on Instagram. Hey, what about the grand jury malfeasance? Where are we with that and trying to get the grand jury materials? Because apparently something went down in a different grand jury that wasn't the grand jury that indicted or something. I didn't get to read it as in detail as you did.

Right. Well, so this is somewhat related to this. There's a similar motion, a Franks motion over the subpoenas. So just pivoting from the grand jury to the subpoenas for a second. We learned through the motion for a Franks hearing a little bit of the background of this investigation and how they tried to get a mobster, famed cooperating witness, Sammy the Bull Gravano, to reinforce this absurd idea that 86 meant to kill. And at first, Gravano was kind of playing along, oh, yeah, of course it means that we never used that. you know what, if you want to test that theory, you should go to the man who prosecuted me, the former federal judge, Gleason, and they go to, and now Gleason is a key witness for the defense.

Gleason, the amicus brief, prolific amicus briefer? Yes, exactly. And former federal judge and former mob prosecutor saying that the idea that James Comey had actually had said that 86 means to kill and that this was a coded message. It was so preposterous that

it would be that I forgot the exact words that he used, but essentially that it'd be funny if a man's liberty weren't at stake. So he's now someone who's very much going against this case and he's the one who their

witness in support of this idea that 86 means to kill. This mobster said, go to Gleason, and Gleason is now on Comey's side. It's a total mess. And so to your question, Alison, about what makes the motion for a subpoena, for Franks hearing over whether to suppress the evidence from the subpoena is that the FBI agent in charge of the investigation didn't disclose some of the facts and and just outright misrepresented some of the things. So like, for example, there's this person one who's estranged from Comey. And person one tells the FBI outright.

I hope Comey goes to jail for his crimes, doesn't disclose the kind of bias of it. And the FBI relates that the first thing that person one said with 86 was that it absolutely meant to kill. but that's not what person one said person one said well the first thing is the restaurant in industry it's off the menu and which is again another stake through the heart of the case and they but they leave that out of the application for the subpoenas and that's why they want that they they want that frank's hearing to suppress that evidence. And so if the FBI in that application, and this is why I took this detour, is misleading the court to get the enforcement of the subpoena, Comey wants to know what was said to the grand jury to get this indictment. What did the prosecutors say if they're pursuing a theory of the

case? That sounds a whole lot of like incitement, but they get the grand jury. to charge a true threat, how did they get there? And so the argument is somewhere along the way, just from what we know of what the government is saying now, because they seem to be fundamentally confused on one of the fundamental theory of their case, how can we trust what they said to the grand jury? Yeah, so it's a bit of a bank shot, right? They're basically saying,

we know we believe that the that the government and the agent involved misrepresented their work to the court in the pursuit of the subpoena. And if they did that, then they likely misled the grand jury during the testimony that resulted in the indictment. And I think it's a pretty sound argument. We also have kind of a thing going on that we saw in the first Comey case too with privilege filter teams and privilege laws. where they may have also dropped the ball on a filter team to go through his stuff again. Like they were just sort of picking through sort of whatever they wanted to pick through. And that comes up in some of these filings as well. So this is going to be a really, really, now I'm interested because there's no Lindsay Halligan to disqualify this entire thing.

And so I'm very interested to see because I was hoping they would get to the meat of dismissing the case. in the original one. Like, what are they going to do? Are they going to pronounce in literal truth this? Are they going to, how are they vindictive selective prosecution? But now we're actually going to get to see some of these motions decided. So I'm looking forward to that. Yeah, absolutely.

And again, you know, normally speaking, these are very difficult arguments to make before a trial. If you, you know, motions to dismiss before a trial usually don't work. But we are out way out of in left field. here and that where you have the government charging a case on a theory that Comey truly threatened to kill Donald Trump. And they're providing an act when actually pressed on that, that how can you support that legally? They give an entirely different case. That sounds a whole lot like incitement. And Supreme Court case law is all against this. But, you know, we'll see what happens. It's one of these things where usually it's, again, these are very difficult motions to win.

It was a long shot when Kilmar Bringo Garcia filed a vindictive prosecution motion. And he won his dismissal. And he won his dismissal. And it seems, if anything, stronger here. All right. Something else that you can hit yourself in the head with a bat. Hit me in the head with a bat about Davy Hearn, Olympian Davy Hearn. We've got a couple minutes.

left. Can you talk a little bit about the hearing that you went to? And I'll set this up really briefly so that we can let everybody know where we're at with this. The case, Janine Piro filed a thing, Sam, we got it wrong, dismissed the case. We can't fix this. We didn't get the evidence until later. But the dispute here is that David Hern's lawyers want this dismissed with prejudice and the government wants it dismissed without prejudice so that they could bring these charges again. So talk about how this hearing went. So I would say it didn't go well for the government. We'll find out for certain when the judge issues the ruling.

But what he wanted to know right from the beginning of the hearing was how do you imagine charges in this case could possibly be refiled? Because when you think about what the government admitted, they admitted that the damage to the reflecting pool was due to the botched and rushed installation. They admitted that the peeling in the section where they accused Davy Hearn of pulling it was due to an overspray and that the paint was have little to no value. And they charged a felony that would require that it cost $1,000 in damages. and they said, we can't make that, we can't meet that threshold. But think of what that admission is. The government was making the argument that, well, maybe evidence will turn up later. So, well, what evidence makes some trash piece of overspray paint and sealant into the Hope Diamond later on?

And that was essentially what Judge Edelman asked the government right off the bat. what evidence do you anticipate finding in the investigation? And the Trump DOJ had no answer to that. What they essentially said was that, oh, it's speculation. It's speculation. We can't anticipate it. So they left him without an answer of even hypothetical evidence. Eventually, when press, they pointed out that there's construction ongoing in the pool, but they didn't really put it together. And then Judge Edelman put the government attorney on the spot and said, is there an ongoing investigation into Davy Hearn right now? And the DOJ lawyer responded essentially, no, but that could change in 10 minutes from now. And that's a direct quote. He said, in 10 minutes from now, there could be an investigation.

And, you know, that raised the entire issue. We're working on cooking something up, Your Honor. We just haven't put it together yet. Really? He said that? That's what he said. And that led into the whole elephant in the room of this entire case, that this was an investigation that Trump wanted, that Trump still wants that he's pressuring Janine Piero to still do. Judge Edelman mentioned the Trump's statements a couple of times, the whole she folded like an umbrella threatening her job.

And why should he treat? this like it's an average case when it's clearly not. So the judge ended the hearing without a ruling, but given what he asked the government and given what the government couldn't answer, it seems pretty clear where he's leaning. So ridiculous. And you know, under this approach by the government, like if they're hoping some other evidence of David Herne's criminal conduct surfaces in an entirely different context at some point in the future, a dismissal with prejudice of this case would not stop them from investigating and indicting him for something else. Absolutely.

You'll never breathe life back into the corpse of this case, but it doesn't, you don't forfeit the government's ability to kind of respond if Davy Hearn does something else. That's illegal, which I don't have any reason to believe he ever would. but it's just it's absurd. Absolutely. Absolutely. And, you know, that's, it's such a good point, Andy. And part of the thing that his attorney said is, why do we need to keep this case on life support for five years when we have this clear risk of the harassment from the government?

And that's what this is all about. And so I'm looking for not only. Judge Edelman's ruling. And I think just based on what I saw, he appeared to be leaning toward dismissal with prejudice. But I also want to know, does he find bad faith? Does he find that these prosecutors were acting to advance something Trump wanted? And that sort of answer could have real ramifications for Jeanine Piero.ro, you know, she's already facing scrutiny in, with a bar complaint. And ethics, investigators in New York might be really interested to see what a federal,

excuse me, not a federal, a D.C. Superior judge's determinations are here because that carries a very particular weight. If the judge says that she essentially is harassing an innocent person, a former Olympian at Donald Trump's behest, that's going to carry some weight. Yeah, honestly, like the best resolution for them is, of course, put the bad faith finding aside for a second, is to go in, mount the ridiculous argument they did and then have the judge throw it out with prejudice because then they can turn to Trump and say, it wasn't us.

We fought for it. We tried to keep it alive. But this rogue, you know, liberal judge, whatever, however, they'll try to mischaracterize him, took it out of our hands. That's that's nirvana for them. And I will say, though, that, you know, because of broad prosecutorial discretion, it's not like, you know, a lot of people are like, well, they should be locked up and investigated these DOJ lawyers. That is not how that normally happens. But I will say that when you are held in contempt or you have been found to have engaged in prosecution and bad faith, those kinds of things follow you around for the rest of your

career. They're big deals outside of the government, you know, outside of when, you know, Trump land 2.0 is over. If you want a judgeship or if you want to go work at a white shoe law firm, you're not going to get that job if you've been held in contempt or, you know, been part of the hit me in the head with a bat segment on the unjustified podcast with Alison Gill and Andy McCabe. There you go. Anyway, thank you so much for all that information. We now have a segment where we take listener questions. So listeners, if you have a question, there's a link in the show notes. We have time for one question today.

And Adam, we would like to invite you to stick around for the question portion of the show. Sounds wonderful. Awesome. Yeah, looking forward to it. Yeah, so this one is kind of, you know, it harkens back to something we talked about in an earlier show. And that was Trump's Justice Department. efforts to dismiss the cases that have all been pardoned against the oathkeepers and the proud boys and others. So this comes to us from Robin, who says I've got a couple of questions that came about from the August 30th pod.

She said, what's the purpose of having the indictments for Trump's criminal gang members withdrawn by the court? If they were convicted of a crime and pardoned, their behavior is already on the public record and has been documented in journalistic accounts. What benefit does the criminal receive? And I think that's a question that a lot of people have about this. I'm one of them. You know, from my perspective, Adam, there is no additional benefit to having those charges dismissed. Those charges that were adjudicated upon which they were convicted after having been given

all their constitutional rights and been able to mount a vigorous defense. They were convicted, sentenced, and then, of course, pardoned by the progenital. Well, they were commuted. They were commuted. That's right. Those people and the proud boys weren't pardoned. They were commuted. And so maybe there's some sort of technical, you're still a felon.

You can't vote or have a firearm or something. Yeah, there would still be. And remember, these are the cases where we're talking about seditious conspiracy convictions on the record. So I don't doubt that there are some practical ramifications of it. But even outside of the practical ramifications, we're seeing throughout Trump's second term an effort to rewrite history, whether it's of the January 6th investigation, the Russia investigation. They're trying to rewrite the entire history of it. And get it off the books.

Get it off the books. And they were in such a rush to do it in this case that they didn't even bother to provide a reason for writing to do this. And that was what got them this time in the kind of holding pattern that that one caught. And so I view that the, you know, symbolism obviously matters to Trump. That's why he's fighting his 34 felony convictions for, you know, for which he'll never serve any real penalty. Yeah, he's not, he didn't serve a day in jail. He didn't need to pay a penny in service of it. And, you know, any of the kind of collateral consequences are purely

theoretical, but he doesn't want them on his record, and he's trying every legal maneuver to one short circuit, the normal course of an appeal in the New York State Judiciary, trying to transfer it to federal court. He loses that. He appeals it once again. And I, you know, that's, I think Trump understands the significance of the symbolism. And he knows that a unanimous jury in that particular case, his own case, decided that he covered up hush money payments, Stormy Daniels, for the purpose of influencing the 2016 presidential election. And that's a stain on his first presidency. Yeah.

Yeah, it's like the legal equivalent of, you know, making sure there's no witness left behind. right? Exactly. That's how I feel about it. I think that's true. But I also think there's a performative aspect here on the part of DOJ. It's a length that they theoretically did not have to go to, but they chose to because it gives them an opportunity to stand out to Trump. Like, look what we're doing.

We're actually erasing this from the book in a way that it never, you know, it'll, for time and memorial, we'll never have happened. gives them another platform to stand around and say, like, we're writing the wrongs that were committed during the Biden administration, and we're undoing, unwinding the binds of lawfare and weaponization and all these other non-words. So, yeah, I think there's, I think on a kind of an internal political level, I think DOJ sees this as a win for them, an opportunity to do something that Trump will like.

Yeah, I know, Andy. That's a really good point. and appreciate it. And Adam, thank you so much for joining us today. And anyone, if you've got a question, we've got a link in the show notes. You can just click on to fill out the form and send your questions into us. And make sure that you go to Substack and subscribe to All Rise News so that you can get these play by play from inside the courtroom moments from Adam Klausfeld. They're really, really valuable. And so is his news as a source. So definitely subscribe to All Rise News. And any final thoughts for us to Adam today?

Well, you know, I think we covered all the bases. Thank you, Alison. Yeah, no problem. And everyone, we'll be back next week. Thank you so much for listening to Unjustified. I'm Allison Gill. And 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 Hawke with art and web design by Joelle at Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds, and the show is a proud member of the MSW Media Network, a collection of creator-owned independent podcasts dedicated to news, politics, and justice. For more information, please visit MSWMedia.com.