Jack - Prosecutorial Indiscretion

Episode Date: August 30, 2026

The Legal Accountability Center filed bar complaints on Tuesday accusing U.S. Attorney Jeanine Pirro and two lieutenants of violating their ethical duties in seeking to charge six Democratic lawmakers. A federal judge has re-blocked the Trump administration’s executive order curtailing mail in voting after the Supreme Court lifted her previous block last week. Three journalists dismissed from Stars and Stripes are suing the Pentagon accusing the government of violating their First Amendment rights and asking the courts to stop their termination. Two election monitors from the Justice Department tried to interview voters and examine voting machines at polling places during Wyoming’s primaries last week, drawing pushback from the state’s Republican governor. Plus listener questions. Do you have questions for the pod or something for HITMEINTHEHEADWITHABAT? Check out other MSW Media podcastshttps://mswmedia.com/shows/ Follow AGMueller, She Wrote SubstackMueller She Wrote on Blueskyhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodMore from Andrew McCabeThe Real McCabe on [e-mail] on BlueskyThe Threat: How the FBI Protects America in the Age of Terror and Trump This Show is Available Ad-Free And Early For Patreon and Supercast Supporters at https://patreon.com/thedailybeansOr when you Subscribe on Apple Podcastshttps://apple.co/3YNpW3P Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

MSW Media. The Legal Accountability Center filed bar complaints on Tuesday, accusing U.S. Attorney Janine Piro and two lieutenants of violating their ethical duties in seeking to charge six Democratic lawmakers. A federal judge has re-blocked the Trump administration's executive order curtailing mail-in voting after the Supreme Court lifted the previous block last week. Three journalists dismissed from the stars and stripes are suing the Pentagon, accusing the government of violating their First Amendment rights

and asking the courts to stop their termination. And two election monitors from the Justice Department tried to interview voters and examine voting machines at polling places during Wyoming's primaries last week, drawing pushback from the state's Republican governor. This is Unjustified. Hey, everybody, welcome to episode 84 of Unjustified. It's Sunday, August 30th, 26.

We're knocking on September's door. I'm Allison Gill. And I'm Andy McCabe. Allison, first up, thanks to everyone who joined the Zoom happy hour for patrons this past Thursday. As always, we had a ton of great questions, and it's always great to see everybody longer. And we get so many people for those. It's really a fun time. So if others want to ask us questions here at Unjustified, of course, you'll always find a link to the show notes where you can submit your questions.

and we do our best to try to answer them here on the show. Yeah, and if you want to become a patron and join our monthly Zoom calls and get invited to our live events like our election night watch party, just head to patreon.com slash the Daily Beans. You get the Daily Beans, you get this show, you get everything ad-free and early, and you get those invites to the Zoom calls and the live events. And you all make these shows possible with your support. So thank you so much.

All right, let's start today with some bad news for the DC U.S. U.S. Attorney Janine Piro, and two of her top deputies. This story comes from the Associated Press. A legal watchdog says it filed bar complaints last Tuesday, accusing U.S. Attorney Janine Piro and two of her lieutenants of violating their ethical duties when they sought to charge six Democratic lawmakers with federal crimes for appearing in a video that called on troops to resist unlawful orders. The Legal Accountability Center's bar complaints filed in New York and Virginia, claimed

that Piro and her subordinates, Carlton Davis, and Stephen Vandervelden, abused their prosecutorial powers to seek meritless indictments against President Donald Trump's perceived political enemies. Tim Lauer, a spokesperson for Piro's Washington-based office, noted that it's up to the grand jury's job, in fact, not prosecutors, to decide whether to hand up an indictment. Quote, attempting to weaponize the disciplinary process against prosecutors for doing their jobs amounts to nothing more than a frivolous complaint, Lauer said in a statement. They love that weaponized word, man. I tell you what. They sure do. That's just never, that thing's never going away.

No, not for them, because every accusation is a confession. That's right. So in February, a grand jury in Washington refused to indict senators Mark Kelly and Alyssa Slotkin and four House Democrats for urging U.S. service members to follow established military protocols and reject orders they believe to be unlawful. All six lawmakers previously served in the military or in intelligence roles. Now, Trump accused them of sedition and said,

quote, it's punishable by death. Death is in all caps. And he did that in a social media post. Now, a grand jury's refusal to return an indictment is extraordinarily rare. We've said that many times here on this show, but it has become increasingly common in Washington during Trump's second term.

Piro's critics have accused her of pursuing other legally dubious and politically motivated cases at the Republican president's behest, such as the recently abandoned felony charge against the former Olympian, Davy Hearn, who was accused of defacing the Lincoln Memorial Reflecting Pool. The Center has filed complaints against other Trump administration officials, including Ed Martin Jr., our fave, Piro's predecessor as U.S. attorney for the District of Columbia. Martin has been a leading figure in Trump's campaign to use the Justice Department to prosecute his political opponents. In its complaint against Piro, the center asked bar officials to investigate whether she and her colleagues violated rules of professional conduct for attorneys and to, quote, pursue appropriate discipline against them.

Now, it's the complaint against Piero says her office had no legal basis for its patently improper effort to secure an indictment. against the six lawmakers. Quote, the only purpose could have been political animus and a desire to intimidate perceived enemies of the federal government and the president, who personally criticized the lawmakers' videos as seditious and punishable by death, the complaint says. Yeah, now Defense Secretary Pete Hegseth has tried to punish Kelly,

a former Navy pilot representing Arizona, for participating in the video. Now, Kelly sued in federal court to block the censure from Hegseth, a district court judge ruled in his favor, and Hegsef has asked an appeals court to review the decision. The center filed its complaint against Piro and Vandervelden with a grievance committee based in White Plains, New York, and in New York, the state's Supreme Court's appellate division governs ethical complaints against attorneys. The center filed its complaint against Davis with the Virginia State Bar. Quote, prosecutors have enormous power, and with that power comes an obligation to exercise independent legal judgment,

rather than use the criminal justice system to carry out a president's political demands. That's what the center's co-founder Michael Teeter said in a statement. So we got more bar complaints for more Department of Justice lawyers. But remember, didn't Pam Bondi put out a memo before she was fired saying, we can investigate ourselves, Bar Association, and just sort of declared them, I guess, persona non-grana. I mean, she did. did, but it has no effect at all. I don't think anybody was listening or paid any attention.

So here we are. I'm still watching this pretty heavy flow of bar complaints headed towards different attorneys in the administration. And you know what? Fair game. Like, there's nothing wrong with a complaint. The bar associates and have to, as you know, take these things up. They have to investigate them. They have their lawyers look at them. Ultimately, they have to adjudicate whether something wrong happened here, whether there's a violation of professional standards or not. And so this is not, the fact that they filed a complaint is not some sort of a rush to judgment or weaponization. That's nonsense. What it is is people trying to hold these attorneys accountable for doing things that, at the least case, really appear to be nothing more than political

abuse. So good for them. Like, attorneys should be thinking twice about following their boss as directives and pursuing things like this. And maybe the credible fear that they're going to end up with the bar complaint is something that will make some of them think twice. Yeah. And I just think back to that lawyer who in court was like, please hold me in contempt so that I can just get some sleep. Like deliver me from this fate.

Exactly. Because of the numbers, the thousands of habeas petitions and ICE arrests and everything that are going on in a lot of these jurisdictions. These lawyers are spread super thin, especially since Doge came in and got rid of everybody. And a lot of people took early retirement or, you know, were forced to resign because they were asked to do something unethical. And they've gutted so many of the offices and departments that they're just so short-staffed that, you know, these lawyers are running back and forth to courtrooms.

Like, I was supposed to be in Cleveland yesterday, Your Honor. I don't even know what I'm doing here. Like a lot of them we see these. things happen. And I also just wanted to point out that this watchdog said in their statement, you know, Michael Teeter, the co-founder, said prosecutors have enormous power. And with that power comes an obligation to exercise independent legal judgment. And I think that's really important. You know, we talk about that and we mentioned that a lot on this show is this prosecutorial discretion. We just had this week, they, you know, the Department of Justice trying to

to dismiss the contempt charges against Steve Bannon. And once again, Janine Piro's reason is because I said so, because I have broad prosecutorial discretion. Now, the judge in that case, who is a Trump appointee, said, you're going to have to give me a little bit more than that, which is the same thing that Judge Amit Metta did in the Oathkeeper's case. And I assume they'll write something up and give more words and that the judge will eventually have to dismiss the charges against Bannon. I mean, I guess fortunately he already served his

four months in prison, so the time was done. So at least there's that. But, you know, those charges are going to come off the books at some point because of this kind of broad prosecutorial discretion. So it's not just about having the power to try to investigate and bring charges improperly. It's also about having cases about helping your friends get their charges dismissed through broad prosecutorial discretion, which in some cases, by law, the court has to defer to. While, you know, we know they're not always deferring to the presumption of regularity,

there are certain things that because of this, again, broad prosecutorial discretion, that they do have to, you know, concede. Yeah, that's absolutely right. They have a limited ability to insert themselves into those prosecutorial decisions or standards that, you know, you have to be able to prove that a decision was vindictive or selective or something like that

in order to get to have it, you know, to give the judge that kind of leverage. But that's not going to be present in every case. And certainly when it comes to things like dismissing indictments, that's always been almost, I say almost because the judge has to approve it. But it's 99% on the prosecutor, on the prosecution to do that. So that's not going to change. That's not a departure from an old standard or anything like that. It's always been that way.

The difference today, though, is you're seeing more dismissals. That's why this is coming up. Dismissals that are necessary because the cases are baseless and going nowhere and dismissals that are political for people like Steve Bannon and others. Yeah. And I'm wondering if this loss of presumption of regularity we've been seeing will lead to any new or strengthened laws giving perhaps more inherent power to the courts to step in and say, no, I'm not going to dismiss those charges because we never had to think about it before.

You know, you'd never, I mean, sometimes you'd have something political where somebody didn't want the same party senator to get in too much trouble or something like that. But by and large, it's always been, hey, we defer to the prosecutorial conduct of the Department of Justice. And I'm just wondering what kind of laws and what kind of teeth we can give to judges to have more of an inherent authority to say no to a potentially rogue Department of Justice. That's a hard thing it is. So the ban in situation is one kind of example because the case is pretty much over. Right.

And they're trying to dismiss like with the proud boys and the oathkeepers. They dismiss the charges like after the fact. after these guys had already gone entirely through the system, had been convicted at trial, had been sentenced, were serving time, then, of course, they got their pardons. But in some cases, you know, if DOJ decides they're going to dismiss a case against someone rather than prosecute them,

and the judge has very little grounds upon which to say, no, you can't, part of the reason for that is because if the judge is even inclined to say, no, you can't dismiss this charge, they can't do anything about it. You can't force the department to show up and put on a trial to the best of their ability. You can't, so realistically, there's not really another option in the normal dismiss a case before it goes to trial and conviction scenario because you can't force DOJ to do it.

But after it goes to trial. After is a different story. I'd be like, look, write a law that says if you want the charges off the books, You're going to have to have the president issue a pardon. Yeah, right. I mean, like, we did this. We put the judicial system out. We spent resources, convened, you know, convened a jury, had a trial.

Everybody got their rights, you know, acknowledged and had an opportunity to defend themselves. Like, you should. Right. You should not be able to unwind a due process just because it's no longer politically favorable. Right. And that's what the pardon power is for. So. The executive does have a check on that, and that's of the pardon.

Get out the pen, Mr. President. Get out your auto pen. Get out your Sharpie after you're done renaming Lake Ontario. Good Lord. Do your job if you want, if you insist, right? But anyway, we'll see what kinds of laws come out of this. We had a whole slew of laws come out after Watergate, so, you know, we're going to see what happens here. All right. Next up, we're going to talk a little bit about mail-in voting. It's kind of been a roller coaster.

We're going to try to sort it all out as soon as we take this quick break. So stick around. We'll be right back. Hey, everybody. Welcome back. All right. Next up, what is going on with mail in voting and the post office? Well, there were a couple of lawsuits to block the Trump administration's executive order requiring the USPS, that's a U.S. Postal Service, to only send mail ballots to a federally approved list of voters in a a system known to be plagued with errors, right? In fact, in July, the Trump administration accused Pennsylvania, California, New Jersey, and Nevada of harboring hundreds of thousands of potential non-citizens on their voter rolls. And more than a month later, the Department of Homeland Security is struggling to provide any proof. And the lists it has produced are unverifiable and completely unreliable and could risk eligible voters being kicked off of state roles. That's according to election officials from multiple

states that spoke to MS now. 23 state attorneys general and DC sued to block Trump's executive order in Boston, as did the Democratic Party. Now, both judges issued preliminary injunctions, but last week, the Supreme Court lifted the block saying the final rule hadn't been published, so the groups had no standing. Oh, like you can't sue until there's actual harm. and so because the rule hasn't been finalized yet, you're too soon. You don't have standing.

The rule essentially doesn't exist yet. So you can't sue some to block some rule that doesn't exist. It doesn't exist until it's been like finalized and published and everything else. Okay. So but then the USPS finalized the rule on mail-in ballots and both groups refiled their lawsuits. So late Thursday, the Boston judge issued a new temporary restraining. order. Now Politico reports, the Trump administration's bid to overhaul mail-in voting ahead of the midterms is on hold once again. U.S. District Judge Indira Talwani ruled late Thursday that the

administration's plan to use the Postal Service to limit mail-in voting would impose onerous new requirements on states without enough time to implement them, potentially disenfranchising large numbers of voters. Right. Now, the Massachusetts-based, oh, Obama appointee barred the Postal Service from continuing to implement its plan, this rule, for at least the next two weeks. This is a temporary restraining order. And she called it a likely unconstitutional regulation for which compliance is practically impossible as to the 26 midterm elections now a little more than two months away. The Trump administration, it says here in the story is certain to appeal. They have appealed. And we'll get to that in a second. But earlier this

week, the Supreme Court swept aside her earlier ruling, an earlier lawsuit aimed at blocking the same Postal Service plan, concluding, as I said, it had been filed prematurely in response to the executive order from Trump, and it didn't give the administration a chance to, an attempt to even implement it. But that changed last week when the Postal Service finalized its regulation governing mail-in ballots, triggering a new wave of lawsuits aimed at stopping the plan, and giving Talwani another chance to weigh in on whether it could be implemented this year. Now, the lawsuits filed by a coalition of Blue State Attorney's General and Voting Rights Organizations, contend that the effort to

quickly impose new requirements for mail-in ballots would hamper state's efforts to administer the 2026 elections. The Justice Department appealed Judge Tawani's new temporary restraining order on Friday afternoon. Yeah, now she's also set up a preliminary injunction hearing for September 3rd, and that's the Boston case with the 23 state attorneys general and D.C. But there's another lawsuit filed by the DSCC, the D-Triple-C, the DNC, Hakeem Jeffries and Chuck Schumer, in the District of Columbia for the same reasons. And I think that suit is being handled by Mark Elias at Democracy Docket. So there are multiple suits now that the rule has been finalized.

It'll be interesting to see what the Supreme Court does. does now once it gets up to the Supreme Court because if they lift the block again, they'll have to come up with a new reason. A whole new reason. Because their original reason was the rule wasn't finalized. Now it's finalized. And so what are you? All right, what are you going to do now?

Yeah. So there's another weird thing about the Supreme Court's move last week, which is, so there were actually two cases in front of Judge Talwani. There was the case brought by the states, which these articles have been talking about. but there was another case brought by the League of Women Voters, and they're basically the same. And she had issued the TROs in both cases, essentially the same TRO. Well, when the court took the appeal,

the Supreme Court took the appeal, they only took the case brought by the states. And of course, they knocked down the TRO in that case, but they did not, very pointedly, did not extend their ruling to cover also the League of Women Voters case. So actually, when they threw out the original TRO, there was still a TRO sitting in effect that blocked the Postal Service from going forward. Right, but Tawani herself lifted it after the Supreme Court's ruling. And now it's back on.

All back. It's very confusing. So she just went ahead and issued a temporary restraining order, set a preliminary injunction hearing for September 3rd, a preliminary. preliminary and like a temporary restraint order lasts 14 days at a time or until the court says it's done. And it can be renewed every 14 days, I think, twice. And in the meantime, you go for what's called a preliminary injunction, which is a little more of a permanent block. And so that's, that hearing is September 3rd. And the DSC, D.C. D.N.C. All those guys with Mark Elias and D.C.

have asked for a hearing, a preliminary injunction hearing around September 4th. and we're still waiting to hear on that. We might have word by the time this show goes out on Sunday afternoon. So that's what's going on with mail-in ballots, and we'll keep you posted. In other election news from the Times, check this out. Two election monitors from the Justice Department. Last week we covered the story that the DOJ was going to be sending out a thousand or so election monitors to swing states.

But two election monitors from DOJ tried to interview voters and examine voting machines at polling places during Wyoming's primaries last week. This is like the reddest state in the union. That's according to local officials. And this is drawing pushback from the state's Republican governor. The federal election monitors arrived at the polling site, one polling site in Cheyenne, Wyoming. That's the capital. And it's also its largest city without advance notice about 7 a.m. last Tuesday.

That's what the Laramie County clerk, Deborah Lee said. They asked to interview voters and inspect voting machines, but were denied, according to officials. quote, it was aggressive, unexpected, disruptive, certainly didn't seem to show respect for the state. That's what Governor Mark Gordon of Wyoming said in an interview Thursday. And he also said, we're going to get to the bottom of it as best we can. The Justice Department often monitors polling sites during elections. But the visits to Wyoming came amid President Trump's ongoing fixation with finding evidence of fraud and vote tampering. Mr. Trump and his allies made fantastical claims that voting machines,

had switched votes for him to his opponent, Joseph R. Biden Jr. in 2020, and he has tried and failed to find evidence of widespread fraud or vote tampering ever since. Now, Governor Gordon, is a low-key term-limited Republican who leads one of the country's most conservative states, said in a meeting with state election officials on Wednesday that he had been concerned by the behavior of election observers. quote, I feel very strongly about the federal government coming in and taking our guns. I don't like that, Mr. Gordon said at the meeting. And I don't like the federal government coming in and taking our votes either.

Hmm. Now, the monitors ultimately visited six polling places, Andy, showing their credentials only when asked for them. Mr. Gordon said in an interview describing their behavior, he said it was very odd. And he said he'd asked the state attorney general, Keith Couch, to investigate the matter. the state attorney general. Now, the observers had cited statutes relating to the Americans with Disabilities Act and the Civil Rights Act,

so I have to check your voting machines because of disabled American voters and civil rights. Yeah. But this year, the Justice Department's observers have visited polling places in other states, including politically tense regions like Minneapolis. The agency said on Tuesday

that it had sent 80 monitors to seven states during primary season. But the requests to interview voters and gain access to machines in Wyoming were unusual. And they come at a moment when the Justice Department has been locked in an intense legal battle with roughly 30 states, demanding their private, unredacted voter rolls in a hunt for evidence of non-citizen voting. In early July, the Justice Department sent letters to every state and Washington, D.C., warning that top election officials would be criminally prosecuted if they allowed ballots to be cast by non-citizens.

The monitors in Wyoming said they had been sent to assess whether the election was in compliance with federal civil rights and voting rights laws. Are there any left? It's such a novelty, the civil rights laws. But their questions appeared to be, quote, outside the scope of federal voting rights laws. That's what she said in a statement. That's Ms. Lee. Now, quote, they included questions about the nature, length, and timing of, poll worker training, Miss Lee said.

She went on to say monitors requesting training guides, asked how our election equipment was acquired and wanted to examine our tabulators. Their conduct, she said, displayed, quote, a complete disregard for our state laws and administration of our elections. So it's going to be interesting. I know that when I talked to Jocelyn Benson in January, she's Secretary of State right now, and she's running for governor. She won the Democratic primary there.

But she told me that states, the secretaries of state, have been working together running tabletop exercises on what to do in these specific instances. Yeah. And so it's interesting to see a Republican governor, kind of a quiet one,

a term limited guy, push back on this and ask his state attorney general to investigate these election observers. But it also isn't that much of a surprise because every single witness in the January 6th and the 2020 election interference case were Republicans, Republicans in Arizona, Republicans in Georgia, for example. I mean, they were all very protective and rightfully so of the constitutional provision that requires states administer their elections. And I know that the ones who have more than, you know, one level thinking are like, man, what if there's a Democrat in office and they want to come in and observe and snatch our votes or, you know, whatever the case may be? Because sometimes you've got to put the shoe on the other foot when you're talking about stuff like this.

Yeah. I mean, therein lies the tension that keeps a democracy, right? People check their own behavior, acknowledging the fact that at some point they're going to be out of power. But I mean, this should have been the easiest place in the world for DOJ to do this, and it turned out and it turned it to a total nightmare. And I, you know, this governor did, I did the right thing and is doing the right thing by drawing attention to it. But I have to like, I have to, it's just so startling to me that his chosen analogy, right?

I feel very strongly about the federal government coming in and taking our guns. Like, dude, that's never happened. that's not a thing. I know that every Second Amendment person out there is like, well, that's what we're worried about. I get, okay, fine. But let's just acknowledge that that has not happened. It has never happened in Wyoming.

So I don't know why. But the voting thing is literally happening. Right. And voting people are here to take your voting machines. Like, holy cow. And why is, how does the comparison to guns make voting more important? Like, shouldn't it be the other way? Like, don't you really, really need the right to vote?

the gun thing we can figure out, but geez, always. It's amazing. Amazing. Anyway. And I do hope that our state registrars and our election officials are training poll workers to deny these kinds of people, the ability to interview voters and try to grab their tabulators and voting machines. There's a lot of things that could happen on election day.

And I just got to be prepared. As we saw with many of these cases in the aftermath of 2020, like the case in Georgia, where these kind of local voting officials allowed, you know, the cyber ninjas or whoever the hell it was to come in and look at the machines. Like, just granting access to people outside the system to those machines, like, violates the legal quality of the machine. So you're basically... Chain of custody or whatever.

Yeah. It's like a chain of custody issue. so you're you are introducing a challenge into this system. They could literally have created a scenario if they had been successful in Wyoming where after the fact, after the election, they could come back and say, well, these machines have been tampered with. I mean, they let us in it to see those. You know what I mean?

We tampered with them, but they've been tampered with. So we know you can't take those, you know, at face value. I mean, that's a little fantastical. But my point is, like, local officials are pretty serious about following these very explicit laws, limiting people's contact to those machines. And thank God. I mean, this whole thing is going to be under really considerable attack. Yeah, but then you get the FBI showing up with Tulsi Gabbard in tow and some big bulk cutters

with a warrant that they lied to get from a magistrate judge, you know. And here we are, right? I don't know. I think we got to be ready for anything. If we take anything away from this story, I hope it's the fact that election officials all over the country in red and blue states are taking this seriously and really watching their peas and cues,

which is the first good step. Yeah, agreed. All right. So, as we know, several journalists from Stars and Stripes have been fired, and it looks like they are suing to get their jobs back. We'll talk about that after this break. Stick around.

We'll be right back. Welcome back. Okay, our next stories from The Times. Three journalists at the federally funded but independent, Stars and Stripes News Organization, sued the government on Thursday, claiming that the Pentagon fired them in retaliation for writing about worsening conditions inside a Navy aircraft carrier deployed to the Middle East. The journalist accused the government of violating their First Amendment right to free speech,

asking the U.S. District Court in Washington to reject their terminations as well as new Pentagon policies that say severely limit the editorial independence of their work. Now, the lawsuit is the latest in a streak of public pushbacks against the Pentagon's efforts to exert control over this storied newspaper, which started publishing during the Civil War and has had a long history of independent reporting. The publication is reported extensively on difficulties faced by military communities as the war in Iran has dragged on. The challenged terminations were first discussed a day after Stars and Stripes journalists reported on the hardships the Navy sailors were facing aboard the USS Abraham Lincoln. That's the aircraft carrier whose deployment

was extended to nine months. That's according to the complaint. Trump has denied reporting on the carrier's troubles from Stars and Stripes and other news outlets as fake news. The lawsuit seeks to prevent the blatant violation of the First Amendment rights of these journalists and challenges the U.S. Department of Defense's extraordinary censorship efforts, the three journalists said in the complaint. Now, the Department of Defense declined to comment. Captain William Urban, who became the military deputy to the Stars and Stripes publisher early this month, said in a letter published last week that his priority was to ensure, quote,

the highest quality of editorially independent reporting. Captain Urban had previously served as a senior spokesman for the Department of Defense and NATO. Now, Captain Urban told senior leadership at Stars and Stripes last week that he would eventually assume the role as the publisher. That's according to an official who's not authorized to speak about the matter. And for months, the Defense Department has faced public disagreements on its new operations policy on Stars and Stripes from the news outlets members. In June, Newspapers' editorial watchdog, Jacqueline Smith, filed a lawsuit after being fired, which she attributed to having publicly criticized the Pentagon leadership for its editorial interference. Now, several members of the publisher's advisory board also sued the Pentagon that month

for adopting policies that banned stars and stripes from publishing comics and wire reprints. In July, CBS News interviewed the paper's editor-in-chief, Eric A. Slave, and its Middle East correspondent Laura S. Cortay for a news segment on accusations of editorial interference at Stars and Stripes. Earlier this month, the publisher, Max Lederer Jr., who had given Mr. Slavin and Ms. Cortay permission for the CBS interview, refused to fire them despite the urging of the Pentagon. After continued pressure, Mr. Lederer announced that he would retire by September 30th and issued public statements on his strife with the Pentagon leadership. He was summarily fired last Friday.

Yeah, and Ms. Cortay and Mr. Slavin were also given termination notices last Friday, which cited insubordination an unauthorized media appearance. In a statement at the time, Mr. Slavin said, quote, according to the notice, I'm being fired for stating in a CBS interview, that censorship of news for service members would constitute a red line. A Mr. Letterer's termination notice charged him with insubordination because he refused to deliver termination notices to the other two people. Mr. Letterer, Ms. Cortay, and Mr. Slavin are now challenging their dismissals in court. Their lawsuit says the defense department moved to fire Mr. Slavin and Ms. Cortay a day after Stars and Stripes published an article on the Abraham Lincoln,

detailing how its sailors endured food and water shortages, disrupted mail. service, long work days, little time off, and poor physical and mental health as a result of the carrier's extended deployment. In March, the Pentagon issued a memo banning the paper from running comics and reprinting articles from the Associated Press. The memo said Stars and Stripes news articles, quote, must be consistent with good order and discipline of the military. Critics say that language suppresses a certain speech. The journalists are calling now asking the judge to declare unlawful, the March memo, and the January deletion of regulations on the newspaper operations. They also asked the judge to rule by Friday to temporarily block their firings while the case

proceeds. The Pentagon gave the journalists only five days to respond to the termination notices, contrary to its own regulations that require a 30-day response period, according to the complaint. Boy, when you're going against your own regulations, that makes for a really good argument in court. Doesn't it? It really does. Sometimes you can get all your stuff back by doing that. As he points to the former, to the retired creeds on the shelf. As he points to his cuff links on the list.

Yeah. So I got to know, like what, when you were in the military, did you depend on Stars and Stripes? Is it an important thing to service members? I think it is. I was in 30 plus years ago for five minutes, so I'm not the right person to ask. But what I also think is interesting, though, is there are reports coming out of this White House that what's going on on the Lincoln is fake news, that it's somehow Iranian propaganda. And now the 19-year-old sailor who managed to go overboard is being charged not under. a court-martial, but what's called a captain's mast. It's more of an administrative hearing when you

violate minor rules of the Uniform Code of Military Justice. And they're charging him with AWOL, which is absent without leave, which makes sense, because if you don't show up to your job, you're AWOL. It kind of doesn't matter why you didn't show up to your job. But the thing that gets me is they're charging him with malingering Article 83, which means they're faking an illness, right? They're insinuating that he's faking his mental illness and jumped off the boat just to get out of work. I mean, so you try to kill yourself to get out of a shift? Yeah. And when they brought him to Balboa here, they didn't let him talk to a counselor.

He only saw medical doctors and was told to immediately return to work and didn't actually get to speak to a mental health counselor until a couple of weeks later. He's 19. His wife is 19. They have a three and a half year old son. and a six-month-old daughter that I imagine he just met for the first time. Wow. That's a lot. It's a lot.

And to accuse him to first of all say, they, you know, they're a bunch of wussies. They can be out there for longer, you know, like Donald Trump and Pete Hegseth said, but tend to go around and charge him with, you're faking your mental illness just to get out of work. and on an internationally big news story about what's going on on the Lincoln, it just seems it's pretty outrageous. And I look forward to this lawsuit going forward so maybe we can get some discovery and communications about the USS Lincoln. Maybe there are admissions in communications that things were bad.

And, you know, Hagseth hit the fact that our supply. base in Oman was destroyed by Iranian strikes. And so the nearest supply base was Diego Garcia 2200 miles away, which probably led to a lot of the food problems and shortages. And so I think I'm hoping for a little bit of vindication for these sailors through this lawsuit, if that makes sense. Yeah, totally. And it's really the only shot we have of getting any information out of them. So we'll see where it goes. Yeah, we will. All right, everybody, it's time to hit me in the head with a bat. We're going to get to that right after this break. Stick around. We'll be right back. Hey, everybody, welcome back. It's time to hit me in the head with a bat.

Hit me in the head with a bat. Today, your installment comes from Raw Story. A federal judge throughout a justice department, lawsuit against a Michigan County after one of its lawyers at the DOJ admitted that there was no case that supported his argument. In a Friday decision, U.S. District Judge F.K. Beam dismissed all six counts of the Department of Justice's lawsuit against Wastonaw County, which had ended its cooperation with federal immigration authorities and restricted immigration and customs enforcement's access to county property and jail cells. Now, Judge Beam cast. the case is the latest in a string of attempts to force local governments to do Washington's bidding under President Trump.

Quote, this is one of a series of lawsuits in which the President of the United States has sought to compel states and localities to do the work and bear the cost of enforcing his preferred immigration agenda, Judge Beam wrote. Apparently flummoxed by the county's decision to focus its resources on local priorities and public safety, the United States sues to demand Washingtonaw County's cooperation, the use of its jail cells, and its resources, Beam wrote. Her ruling rested on the 10th Amendment's anti-commandeering doctrine, which bars Washington from forcing state and local officials to carry out federal policy.

Quote, but neither the federal government nor the president may conscript local officials to enforce their will, Beam wrote. Now, the most damaging moment, the hit me in the head with a bat moment, came at oral argument. Of course it did. Of course it did. According to a footnote in Beams opinion, the Trump Department of Justice's own attorney conceded that a central pillar of his statutory reading had never been endorsed by any court. quote, at oral argument, plaintiff's counsel admitted he was not aware of any case that supports his argument, the judge noted, without naming the lawyer in question. That's probably very nice of her to not name them. Beam accused the Trump administration of trying to rewrite the rules through the back door and swatted down its insistence that it was not asking the county to hold anyone.

quote, the government attempts to smuggle in two sea changes in immigration law enforcement through this view, she wrote. But as this court has recently reminded a self-represented litigant, saying so does not make it so. Wow. Oh, man, these are the best stories. To compare a DOJ lawyer to a self-represented litigant? I mean, I just hope. that after admitting that he had no precedent whatsoever to support this reading of the law, I hope he just pitched it.

Like, come on, judge, let's make history. Let's make history together. Let's run across the field of jurisprudence and establish a new precedent. The judge is like, are you out of your mind? Young man, please. As one litigant who represented himself, I had to say, like, that's just to look at a DO. J. Lawyer, can you imagine being compared to a self-represented litigant and just like basically defendant who's representing themselves in court, you know, which they say

is a fool, has a fool for a lawyer. Anyone who represents themselves has a fool for a lawyer. Wow. Wow. I mean, it would have been better. I mean, maybe worse, but maybe not if she had said to him, how long have you been doing this? Did you take the bar exam?

Did you? Let's talk about education. Where'd you go to kindergarten? Let's just build it up to how we got here. Submit your LSATs to me and camera. Like, wow. Just, yeah, very good, very strong entry for Hit Me in the Head with a Bat today. So I was thinking about this when we were talking about earlier in the show about the bar complaints

and why we're seeing more of them. This is another example of something that I tell, like the students that I teach and young people who I talk to all the time who I have these conversations with about career guidance and things like that, people who are thinking about careers in government, but some of whom are nervous about it under current circumstances for very good reasons.

And I always encourage them to do it anyway. If you're drawn to this work and you want to be on the side that helps and does good and tries to protect your community, your state, your country, whatever it is, that you should definitely do it. But nowadays, you've got to go into it knowing what your red line is.

And, you know, your boss in the U.S. Attorney's Office asking you to pursue an indictment that you know is baseless. Or go into a court and advocate for a position that has no legal basis whatsoever. There's no present. Like, that's maybe it. You know, being asked to do something that's illogical, that's unethical, and that's not. not contrary with your own morals. Like, that's the red line. You know, it should be for a lot of people.

And when you hit that point, it's time to go. Like, don't do it. Do not compromise, you know, or else you're going to find yourself on the receiving end of one of those bar complaints or on the hit me in the head with a bad segment of our show or some other place you don't want to be. Or you might find yourself in contempt. And, you know, we discussed this last week or the week before. When I believe it was in Katie Fang's Epstein lawsuit, when Judge Emmett Sullivan came back from a brief recess during oral argument about getting handwritten FBI interview notes that Todd Blanche was withholding saying they were similar enough to the typed up 302s that they could be considered duplicative and we don't have to release them.

Judge Emmett Sullivan came back and spent 30 minutes telling a story of the time he held one time. He held DOJ lawyers in contempt and reminded us that being found in contempt, even if it's cured really quickly and things keep going and you never have to pay a fine or, you know, spend a day in jail or whatever, that follows you to every job you apply for because it's on the record that you've been held in contempt and you're going to be asked why. Any judgeship if you're ever, you know, somebody's Senate is trying to confirm you to a judgeship. We were held in contempt this one time for what. And now they're actually facing real contempt because after being told that 30-minute story about the time he's not, I'm not afraid to hold people in contempt. They are now saying they're not going to hand over those handwritten notes. Yeah. They're asking the judge to not require them to be handed over when he's already asked Katie Fang's lawyers to write up a proposed order to hand over the notes.

That is a dangerous. game of chicken that they're playing right there because they're going to lose. But it's like these, you know, the case we talked about a couple of weeks ago where you had, I can't remember, we've had so many of these now, an agent who made misrepresentations. And the grand jury, which of course ended up getting exposed when the transcripts were produced. Like, that's another one of these red lines. You got a, you had a bunch of U.S. attorneys are breathing down your neck to make a representation that you know is not accurate. If you do that, you, you know, And you get caught in the way this person has been, you can never testify again.

That part of your career, that part of your job as an agent is now beyond your reach. Yeah. It's terrible because if you do, then it all comes out and, you know, you can be impeached by the defense over things like that. Yeah. So it's really, you got to think differently about this work. Now, I never had to consider any of these things when I. joined the federal government. I didn't ever think I would be in put in a position like that. And I wasn't. No, yeah. You know, who everything's my boss at the Department of Justice is going to ask me to do something

unethical and I could be held in contempt and then my career's tanked. Even if I'm not disbarred, yeah. It really can tank your career and that's what Judge Emmett Sullivan was getting at and we'll keep an eye on what Emmett Sullivan has to say about the new filing from the DOJ saying, well, you don't think we need to hand in the handwritten notes. Like just after a 30 minute story about, hey, I've done it before, I'll do it again. And he actually said the words, it's not a threat. It's a promise. Yeah, that's not reading the room well. I'll do what I need to do to administer justice.

Like, I mean, it was a 90-minute hearing and a third of it was this story about how he called Kibu GeoGilers to condemn. That's not a good sign. I think that went well, boss. Yeah, no. Oh, yeah. Hi-five. All right.

It is time for listener questions. We have a link in the show notes. You can click on to submit your questions to us. What do we have today, Andy? All right. I got two for us today, and I think both of them are good to bring up for different reasons. The first one comes to us from Rose. This is a quick question, but I think it's a good question because I think there's a lot of maybe confusion on the parts of some people about how these pardons work.

So Rose says, would a preemptive pardon from a convicted felon, I guess she's referring to Donald Trump. cover war crimes, including but not limited to the 220 plus fishermen killed in illegal boat strikes with zero evidence they were drug smugglers. Thank you. So just to sort this out, the president cannot pardon anyone for things that happen in the future, right? That's no good. But if on his last day in office, he waved a wand and pardoned everybody at the Pentagon for these boat strikes. Right. So that's retrospective, but it's up until that day, right? You could get a pardon. And people refer to that as a preemptive pardon because you haven't been charged yet, right? He obviously, he can pardon anyone who's been charged or convicted

with a crime, but he can also pardon people who have not been charged with a crime, but he can give them the pardon to kind of keep in their back pocket just in case that happens. That's what Biden did for Fauci. Biden pardoned Fauci for like an 11-year period that ended on Biden's last day in office. So yes, Trump could issue a pardon like that to anyone that was involved in this alleged drug smuggler kinetic strike program. Yes. And I think we could expect that will happen. I think pardons are going to be flowing out of the White House by the thousands.

That's just my guess. And for war crimes, if it's a federal, United States federal crime, then the pardon covers it. I don't know that anyone here can be charged abroad by anyone. I think we've got some sort of protections for that. But let's say somebody could, and I don't know if they could, but let's say someone in another country could charge Joe Schmoe who hit the button on a boat strike. The president's pardon wouldn't cover that. The president's pardon only covers United States federal crimes.

Correct. And the quote of me, you know, it's not. Well, we have a weird situation with the international criminal court. We don't acknowledge it. And so if they turn around and indict some people who are involved in that program, I mean, the United States government will probably just ignore it. We're not a signatory to that agreement. But this is another whole can of worms. But in any case, what the most valuable thing to anyone who thinks they might have done something that could be the foundation of a federal criminal prosecution is getting that pardon before. Trump walks out the door and I suspect he'll be cranking out a bunch of them. Right. And that's why I actually Googled has any president ever issued deathbed pardons? Because what if between now and the last day, something happens to incapacitate the president and he can't get him out? And he's unable to get the pardons out. But as it turns out, no, no president in the history of United States has issued deathbed pardon. So, you know,

whoever comes in behind him has the same power to do it until the term runs out. Right. So if J.D. Vance takes over, he can issue those parties. That's good luck with that. Yeah. All right. Thank you, Rose, for that. It's a good question. All right. This next one comes to us from Independence Day Joy. And I pulled this one because we get it a lot. A lot of people have asked very similar questions to this. So I thought we could tee it up. So she says, hi there, I love listening to your show. My question is, what would be so terrible about losing the government's presumption of regularity? Even before all these shenanigans, we all knew that the government always is believed, even though we think they're lying.

They never have to prove it. That just seems so government one-sided. I am in the trust-but-verified camp. So what would be so terrible about it becoming the norm that the grand jury transcripts go to at least someone else to look at to, make sure things weren't done wrong. What would be so terrible if the government had to prove their assertions to the judge and not just say things that are believed? Thank you so much for doing everything you do.

Okay, this is really two separate things. The presumption of regularity side, the government still has to prove all of the allegations against the defendant. They have a much higher burden of proof than the defense. The defense just has to prove reasonable doubt, put reasonable doubt in the mind of one juror. The government has to prove all the elements of the offense with solid, unimpeachable credible evidence. The things that the government gets kind of the presumption of regularity on are more like things like, you know, if the government says a certain case

stands for a certain proposition of law, then judges are likely to believe that. And the only reason they give them that grace is because they'd earned it year over year, over decade, over a decade, over a decade, by having very high standards of truth and accuracy in court. And so it was kind of an earned reputation. What we're seeing now is they're losing that reputation, and that's costing them severely, and it will for a long time. So that's one thing. On the other hand, the grand jury thing is what we get questioned about all the time.

It's important to remember, as weird as the grand jury seems, it is a constitutional right. Every person has the right to be indicted by a grand jury of their peers before their put on trial for a crime. If you insert judges into the grand jury process as a matter of course, you're basically draining some of the power away from the grand jury, right? If judges have the option to just on their own decide like this grand jury did it well, this one didn't, probable cause here, not sufficient there, then you're kind of destroying a core function of our of our criminal justice system that is actually in the Constitution itself. So judge's ability to throw out an indictment based on grand jury shenanigans is really, it's more focused on the conduct of the prosecutors,

not so much the conduct of the grand jury or whether they did a good job or a bad job or whether their judgment was good or poor. And so it is a bit of a sensitive area, but I just don't see a day when we ever fundamentally change the grand jury process to create some sort of very regular scrutiny by judges or anyone else, what we should be doing is improving the quality of the prosecutors that are in front of those judges. And in my view, there's no need to. The grand jury secrecy is there to protect us, the defendant, right? Correct.

from the government. If we peel away that, we peel away protections for the potentially innocent. There are checks on grand jury malfeasins, and we're seeing them happen in real time. So a judge, if there's a probable cause for an inkling of impropriety in the grand jury room, the judge has an avenue to review those grand jury transcripts and tapes and to see if there's been some shenanigans. And so that is the check that you're talking about, right, Joy, when you say, well, why don't we just do it for everybody? We don't have to do it for everybody. And in fact, it would be dangerous for potentially innocent defendants to do it for everybody. But there is a way for judges to get a hold of those things and look at them to check the government and to make sure.

And that's what Justice Sotomayor was saying during the immunity hearings. We have checks in place against. rogue prosecutors. Right. Grand jury, checking on the grand jury to make sure they didn't screw anything up. The pettit jury, the pretrial motions, the appeals process. We have. We don't need to give anybody immunity because everyone has this presumption of innocence until proven

guilty. And grand jury secrecy really goes toward that. And since there is a check where judges can look behind the curtains if they feel they need to, then. then I would rather keep those protections for defendants in place through grand jury secrecy. Yeah, no, no, no, I agree with you. I agree with you. But it is a good question.

And it's coming up. It's kind of overrepresented, probably in the stories that we cover because it's so newsworthy. And so I worry sometimes that people are getting the impression that in every single case, the defendant's attorneys file a motion to sue the grand jury. Like, that doesn't matter. before this era of insanity, that didn't hardly ever happen, ever, because it's so rare that you would have any reason to do that. But the Jim Comey case is a perfect example, right? His lawyers can stand up and say, hey, wait a second. They looked. They made this allegation

in the complaint that he learned the significance of this number 86, meaning death, in organized crime circles, from the cases that he were. They know through, discovery that the government went back and looked at every case, every organized crime case, Jim was personally involved in, and the thing never came up in any of them. And so the idea that they represented this to the grand jury when they, in fact, had gone and done work and disproven the very theory they were communicating to the grand jury. That's what opened up this question of like, wow, maybe they misled the grand jury. Yeah. You just don't see that in a lot of cases, or at least you didn't. You're not supposed to. He's not supposed to. He's not supposed to.

It's just all of the, you know, these politically charged enemies' cases float to the top of the news. Because they have to manufacture their theories. Yeah. Because these things are not actually based on normal or perceptible violations of the law. It's all about political vengeance. Yeah. Well, thank you so much for your questions, everyone. Again, there's a link in the show notes.

And like I like to check the wire before we get out of here, We do have some breaking news. The Pentagon has agreed to hold off on firing those three stars and stripes journalists through next Friday to allow their court challenge to be argued. Reprieve came as Judge Trevor McFatten, a Trump appointee, mold the request for the temporary restraining order that was filed by the three fired journalists. So they are Pentagon's backing off. They can keep their jobs for now. For now. For now.

Oh, that's a good sign. All right, everybody. We'll see you next week. Who knows what's going to happen between now and then. If you've got any questions, like I said, like in the show notes, if you run across a great hit me in the head with a bat story, you can send it to us at the same address as well. Heck yeah.

And we'll see you next week. Thank you all so much for listening. Again, thanks to our patrons. It was great to see you on the Zoom call. We'll be seeing you on election night and we'll look forward to that. And, you know, just a big, I'm so grateful to all of our patrons. We couldn't do this without you. So thank you very much.

Everybody else. See you next week. I'm Alison 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 Hawkey with art and web design by Joelle Reader at Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds. And the show is a proud member of the MSW Media Network, a collection of creator-owned independent podcast dedicated to news, politics, and justice.

For more information, please visit MSWMedia.com. Thank you.