Jack - Scrivener’s Error

Episode Date: December 14, 2025

The Department of Justice has failed to indict New York attorney Letitia James for a third time, as Daniel Richman wins a motion blocking his emails from being accessed by the government.Main Justice has filed a motion to block the testimony of whistleblower Erez Reuveni and DOJ lawyer Drew Ensign in the Alien Enemies Act contempt proceedings before DC District Judge Boasberg. Judge Xinis accuses the Justice Department of misleading the court in an order for the immediate release of Kilmar Abrego Garcia, and issued a follow on temporary restraining order blocking his re-arrest.The Justice Department faces a call for an internal investigation into the office of legal counsel memo allowing the boat strikes in the Caribbean.Plus listener questions…Do you have questions for the pod? Get this new customer offer and your 3-month Unlimited wireless plan for just $15 a month at  MINTMOBILE.com/UNJUST Follow AG Substack|MuellershewroteBlueSky|@muellershewroteAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P 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. The Department of Justice has failed to indict New York attorney Letitia James for a third time, as Daniel Richmond wins a motion blocking his emails from being accessed by the government. Maine Justice has filed a motion to block the testimony of whistleblower Orez Reveni and Department of Justice lawyer Drew Ensign in the Alien Enemies Act contempt proceedings before D.C. Judge Boasberg. Judge Zanis accuses the Justice Department of misleading the court in an order for the immediate release of Kilmar-Abrego-Garcia and issued a follow-on temporary restraining order blocking

his re-arrest. And the Justice Department faces a call for an internal investigation into the Office of Legal Counsel memo allowing the boat strikes in the Caribbean. This is unjustified. Hey, everybody. Welcome to episode 47 of Unjustified. It is Sunday, December 14th. We're rolling into the holiday season here in 2025. I'm Allison Gil. And I'm Andy McCabe. Allison, we got a stack of things to get through today. There's a whole load. So I'm going to just jump right in. And we're going to start where else, but with the repeated failures of the Justice Department in the cases against Jim Comey and Lettisha James. So first, we have from Hannah Rabinowitz. at CNN, the Justice Department's mortgage fraud investigation into New York Attorney General Leticia James is on life support after a grand jury for the second time rejected an indictment that would have revived the charges against her. I can't believe I just read that. The rejection

is an embarrassing setback for the Justice Department, which had sought to revive the criminal case after a federal judge ruled Halligan was appointed unlawfully, and for the administration who had position James's case as a centerpiece in its retribution campaign. Yeah, man. And after Lindsey Halligan was ruled unlawfully appointed and they dismissed that, I went on social media and I begged the Department of Justice, please go back a second time, go back a third time. I love watching you lose.

And they did. They granted all my wishes for this holiday season. But CNN continues. What happened to so much winning? We're going to all get sick of winning. I, yeah. Well, we are. Letitia James is not sick of money.

That's right. But this latest setback may not necessarily be the end of the story. Prosecutors can go back to a grand jury again and again and continue their efforts to re-indict James over the same allegations in hopes that one will approve the charges. Continuing to pursue indictments is exceedingly rare in federal cases, according to former federal prosecutor Aaron Zelensky. The Trump Justice Department, however, has shown a proclivity to try the strategy in some other immigration related cases earlier this year. Quote, one, no true bill is a point. Two points

make a line. That line points to an acquittalate trial. That's what Zelensky said. The government should hang it up, he said, at strike two rather than going down swinging. And Andy, there are legal implications for this. If they go back a third time, which would actually be their fifth time trying and secure an indictment. Now they're going to face a really bolstered vindictive and selective prosecution argument from Letitia James. They came back at me. They, Eric Siebert wouldn't do it. Lindsay Halligan did it, but did it wrong. And then they went back three more times to finally get an indictment. And it would also bolster a request to release the grand jury tapes to her so that she could hear like we said yesterday, or last week, excuse me, what did you say different in that?

fifth time that you didn't say the first four times, you know, so it's legally perilous. You're making a prima facie case for manipulating the grand jury, abusing the grand jury. And the only way to get to the bottom of that would be if she's indicted on this next round, which we're assuming there will be a next round, the defense will certainly make that motion, right, of improper use of the grand jury. And the only way to figure that out is the judge is going to have to go in and get the tapes from all the previous grand juries and the current one and try to figure out what was different the third time or whatever time this is. And that's not a hole that the government wants to go down. No. And they were actually let off the hook by Judge Curry dismissing the cases

for Comey and Letitia James for the unlawful appointment of Lindsay Halligan before either of the judges could get to grand jury malfecent's misconduct, vindictive and selective prosecution, and Bronson, literal, truth, defense, et cetera. But I have a feeling they'll keep on going because otherwise they have to admit that they lost. And this isn't the kind of administration that likes to do that. That's very true. And they have no shame.

So they aren't embarrassed by any of this as any normal prosecutor would be. But next up, regarding Jim Comey, Dan Richmond. This is the man with the emails at the center of the government's case against Jim Comey, filed for a temporary restraining order in the D.C. district, asking the court to block the use of his materials seized in the Arctic Hays investigation during Trump's first term. These were the emails in evidence at the core of the case against Jim Comey.

That's right. And here's, this is from the temporary restraining order or from the, yeah, the issue, the ruling on the temporary restraining. The court concludes that Richmond is entitled to a narrow temporary restraining order to preserve the status quo while the court evaluates his motion for return of property and awaits full briefing. argument from the parties. Three facts weigh in favor of entering a prompt temporary order to preserve the status quo now before the government has filed a response. First, the U.S. Attorney's Office for the District of Columbia has not yet entered an appearance to make representations on behalf of the government, and counsel for the government has not yet been identified. Second, the government has not yet indicated who has custody of the material at issue, and neither the petitioner nor the court

can determine the identity of the custodian until the government appears in this case. Third, the court finds that the government has received actual notice of petitioner Richmond's motion, ensuring that the government is positioned to act promptly to seek any appropriate relief from this order. Yep, and the court concludes that Richmond is likely to succeed on the merits of his claim that the government has violated his Fourth Amendment rights against unreasonable searches and seizures by retaining a complete copy of all files of his personal computer, an image of the computer, and searching that image without a warrant.

Richmond has also shown that, absent an injunction, he'll be irreparably harmed by the ongoing violation of his Fourth Amendment right against unreasonable seizures arising from the government's continuing retention of the image of his computer and related materials. The United States and its agent, the Attorney General of the United States, are ordered to identify, segregate, and secure the image of Petitioner Richmond's personal computer that was made in 2017, his Columbia University email accounts and his iCloud account, any copies of those files, and any materials obtained, extracted, or derived from those files. Collectively, and this is referred to as the covered materials that are currently in the possession of the

United States. The United States and its agents, including the Attorney General of the United States, are further ordered not to access the covered materials once they are identified, segregated and secured, or to share, disseminate, or disclose the covered materials to any person without first seeking and obtaining leave of this court. Wow. So put it all in a box and don't touch it. Fascinated to me because the underlying order, the search warrants that provided for the seizure of this material back in like 2017, 2019, it included a restriction that the government could only review it for the very limited purpose of the

case they were investigating at that time. And then after, if anything that was found not relevant to that case had to be given back or destroyed, which is a really weird thing to have in a search warrant like this. It's not common. And so to have that very specific direction in the search warrant itself and to not follow it is really a massive mistake by the Bureau and the prosecutors who are working that first case. And then to go back in five years later and rummage through them for a whole different case without getting a warrant. Yeah, it's shocking to me.

But here you go. I'm not surprised that Richmond is getting what he's asking for here because what he's asking is that this court simply enforce the earlier court's directive. And they're always going to do that. Yeah, yeah, for sure. We'll keep an eye on this. You know, they keep referring to the Comey case and the James case as being on life support. I think it's beyond that at this point, but. Yeah. Yeah. I mean, that's, of course,

the implication for the Comey cases. This is the core of that very coreless weak case. So without being able to access any of this material, goodbye new indictment. Now, they'd have a problem with that anyway because of the statute and all that other stuff. But this is, this really might be the final nail in that coffin. Yeah, I agree with you. All right. We have a lot more to get to everybody, but we have to take a quick break, so stick around. We'll be right back. Hey, everybody, the holiday season is expensive enough without big wireless draining your budget every month. And right now, Mint Mobile has all of their unlimited plans at 50% off, which is their best deal of the year. Grab a three, six, or 12-month unlimited premium wireless program

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availability, speed, and coverage varies. Cementmobile.com for details. All right, everybody, welcome back. It was quite a week for one, Kilmar-Abrigo-Garcia. If you've been listening to Unjustified and following all of our stuff, you're familiar with the back story. Back in March, between 100 and 250 people were loaded onto planes in the early hours of Saturday morning, March 15th, bound for Seacoat Prison, Torture Prison in El Salvador and the Trump administration used the Alien Enemies Act to justify that. The government was ordered to turn the planes around by Judge Bozberg, but refused, which is the subject of contempt proceedings taking place now in the D.C. district. and we'll talk about those later in the show.

But one of those passengers, Kilmara Breggo-Garcia, was unlawfully removed. They all were, but he was especially unlawfully removed on one of those flights because he had an active court order blocking his removal to El Salvador. Now, he sued to be returned. The government defied that court order as well,

and the judge, Policini, began contempt proceedings. But rather than air their dirty laundry in court, the government charged Mr. Abrago with two counts of human smuggling and returned him to the United States to face trial. After a detention hearing in Tennessee, a judge determined he should be out on bail, but he was immediately detained by ICE for removal to a third country.

They told him if he pled guilty to the charges, he could be sent to Costa Rica as a refugee with protections. But if he refused to plead guilty, he'd be sent to Uruguay. He decided to fight that deportation, and after four months in ICE detention, Judge Sinise found that there was never a removal order on the books and that he was being detained unlawfully. Yeah, you aren't allowed to detain someone if you're not in the process of removing them. And there was never a removal order. Now, this past Thursday, she ordered his release, his immediate release. And he was free later that night with strict conditions to check in with ICE the following morning and on a repeated basis.

But at 7.01 p.m., the Trump administration had an immigration judge. And immigration judges worked for him, not the judiciary. That's right. Had an immigration judge correct the lack of a removal order. order, calling it a scrivener's error. Now, this is a deeply corrupt move. A scrivener's errors for things like fixing typos are very minor non-material errors, not retroactively adding a deportation order that doesn't currently exist. It reminds me of Pam Bondi trying to retroactively appoint Lindsay Allen. Exactly. Exactly. For Heggseth, retroactively declassifying the

stuff he sent out on Signal. Right. Now, Mr. Obrigo's lawyers immediately filed for a temporary restraining order to block his re-arrest because he had to check in with ICE. And they asked Judge Seney's to issue that temporary restraining order before his 8 a.m. appointment the following morning for checking in with ICE. Petitioner seeks a TRO because an immigration judge unlawfully issued a purported removal order at approximately 7.01 p.m. yesterday evening. Detention would contravene this court's order and opinion issued this morning that granted his habeas petition and ordered his immediate release.

from U.S. Immigration and Customs Enforcement. To begin, the immigration judge lacked jurisdiction to issue the 701 p.m. order. Previously, the judge denied petitioner's motion to reopen his case. That denial is currently on appeal before the Board of Immigration Appeals. Once an appeal is filed with BIA, the immigration judge loses jurisdiction. Yeah, kind of like how if you appeal to a circuit court of appeals, the lower court judge no longer has jurisdiction. That's right, until the term. of the appeal. Maybe they get it back later, but during the pendency of the appeal, they don't

have it. Right. It'd be like if Judge Bosberg continued contempt proceedings after it was with the appeals court. Exactly. Now, second, even if the immigration judge had jurisdiction, his order is not a final order for removal. The order expressly reserves appeal rights for both parties with an appeal deadline of January 12, 2026. Third, of the government's attempt to manufacture a removal order sua sponte through an ex parte proceeding without notice to the petitioner and without any opportunity to be heard violates the INA and due process. The government had six years to identify and correct any alleged scrivener's error, in quotes, and petitioner has repeatedly pointed out the lack of an order throughout these proceedings. Judge Cines granted that motion. She said,

Respondents are enjoined from redetaining petitioner in ICE custody until this court can receive further briefing from the parties and conduct a hearing on the TRO motion, setting briefing schedule, granting 113 and clarifying that the injunction previously imposed at 20 and the order to provide written notice to Abrago Garcia and all counsel of record at least 72 hours prior to the intended removal, identifying the country to which removal is sought remain in full force and effect. Friday morning, Mr. Obrego checked in with ICE and left without being detained. Okay, excellent. So when Judge Sini is in her minute order there referenced granting 113, she was granting this temporary restraining order, and clarifying that the motion at 20, which was the member of the motion where they, where she's, you know, they said, we need 72 hours and you have to tell us what country you're going to deport. Yeah. Yeah.

Because the lawyer said, oh, also, judge, can you clarify that they still have to give 72 hours notice and tell us what country they're going to if they're going to detain him. So she did enter that restraining order. He checked in at ICE and walked out. He is a free man, despite Christy Nome's multiple declarations that he would never set foot on U.S. soil as a free man. So this is really good news. This is actually an outcome that I wasn't predicting. I figured he would be sent to Costa Rica because he agreed to be. But. The government dug in their heels and said, no, it's got to be Eswatini or Liberia or Uganda or Uruguay, unless you plead guilty. But he fought, he fought this administration every step of the way. And he has prevailed. This is a stupendously brave man. You know, there was an amazing video of him yesterday, I guess getting released and he's seen outside with his lawyers, you know, making the kind of classic on the courthouse steps type of statement. and while he's standing there, he's wearing a Chicago Bulls hat, which I thought was so perfect because it was clearly like a brand new hat.

And you know that was just a massive FU to the government who based their entire argument that he was a gang member on the fact that he wore a Chicago Bulls hat, which is so ridiculous. So I just started laughing as soon as I saw that. That was great. I wonder if that was his idea. I love it. Absolutely love it. It's perfect.

It's perfect. All right. We've got a pretty long block coming up on Judge Boseberg's contempt proceedings, but we have to take a quick break, so everybody stick around. We'll be right back. Welcome back. All right, Allison, earlier you mentioned the contempt proceedings over the Trump administration's defiance of Judge Boseberg's order to turn the planes. bound for El Salvador around, and bringing back the pewter of class members removed under the

Alien Enemies Act back to the United States. So let's talk about the updates in that case, which is referred to as JGG. Remember they were giving those initials names to all these different cases. Okay, so the plaintiffs in this case filed a blistering response this week to the government's motion to block testimony in the contempt proceedings. Yeah, they sure did. And this is what I wrote up last night in the middle of the night because that's how I party here on the West Coast. That is so nerdy, I'm just saying.

That's, yeah, yeah. And I was really, I was like high-fiving myself like Liz Lemon after I was done. Okay. Very nice. In my, what are those blankets that you wear? It's called? Snuggies.

Is it like a cozy or the snuggy or whatever? Yeah, nice. Working on my night cheese, wearing a snuggy and writing this up for a set. Still rocking the snuggy. I love it. So I said it's a long and sorted saga that has led to Thursday's late night filing by the plaintiffs in the J.GG case on Judge Bowsberg's docket. As you know, last March, the Department of Justice and Department of Homeland Security defied an order given by Judge Boseberg to turn the planes around that had been sent to El Salvador in the middle of the night under the Alien Enemies Act. Judge Bozberg found probable cause of criminal contempt, which the government appealed to the D.C. Circuit Court of Appeals. A three-judge panel, two Trump judges and a Biden judge, vacated his contempt finding, which is important here, it's going to be important, with the dissenting

judge pointing out that while the two Trump judges agreed to vacate the lower court's order, Bozberg's order, they did not agree on a reason. They had different reasons. The plaintiffs appealed en banc to the full panel of the D.C. Circuit, which left Bozberg's criminal contempt finding vacated, but mooted the three judge panels find. because of the conflicting reasoning. So that returned the issue to Judge Bozberg, who basically revived the contempt proceedings by ordering DOJ to submit declarations

from all individuals involved in the decision to defy his order to turn the planes around. Now, despite there having been multiple people involved, DOJ submitted three very scant declarations. One from Christie-Nome, acting general counsel for DHS, Joseph Mazara and also Todd Blanche. Those raised more questions than they answered.

Now, Judge Bozberg said that they didn't contain enough information for him to make a determination about whether to refer anyone to DOJ for criminal contempt and ordered testimony from Deputy Assistant Attorney General Drew Ensign and whistleblower, a former DOJ attorney, Arez Rivenny. You'll recall Rivenny was the guy who was in the meeting when Emil Bovei told DOJ and OIL lawyers to tell the courts to fuck off. He also provided insights into the Eric Adams, quid pro quo, and the Abrago case. Yeah, lots of stuff from Merez-Rivenny.

Yeah. And as you can imagine, Department of Justice really doesn't want sworn testimony for Marez Rivenny or Drew Ensign because that could expose Emil Bovi as having lied to Congress in his confirmation hearing to be a judge on the Third Circuit Court of Appeals when he told Congress, he did not tell DOJ lawyers to ignore. court orders. Now, you know, these two guys, Reveni and Drew Ensign, are going to be under oath in a court of law, not under oath, you know, in front of Jim Jordan or whatever. So the Department of Justice, actually, it would have been the Senate, right? Chuck Grassley, whatever. You know what I mean.

Yeah. So the Department of Justice filed a motion for Judge Boasberg to reconsider his order, the order that requires testimony from Rouvenny and Ensign. And in it, they are, argue that Bozberg already made a probable cause determination for contempt. So he has everything he needs. He should just make his criminal referral to DOJ if that's what he wants to do. And of course, DOJ wants Bozberg to refer the case to DOJ. The place where criminal referrals go to die, is that it? Pam Bondi's not going to investigate or charge contempt. And they want to cover this whole thing up. Yeah. So there's a power courts have to a appoint their own special prosecutors for contempt. But based on a recent Supreme Court ruling in

Donzinger, it's pretty apparent a majority of the justices would find that rule to be unconstitutional. Now, DOJ knows that as well, so they're not afraid of criminal contempt prosecution. What they're afraid of is discovery in the process to determine probable cause that contempt occurred, because Boseberg conducts that inquiry, not the DOJ or special prosecutors under the rules disfavored by the Supreme Court. Yeah, ding, ding, ding. Now, in their motion for reconsideration, the Department of Justice argued that criminal contempt is for the Department of Justice to prosecute, not for the courts to determine. DOJ claims the judge has all the information he needs to make the referral for criminal contempt and doesn't need to determine intent or state of mind or

willfulness. And besides, an inquiry into the basis for the decision to let the planes continue to El Salvador would implicate the attorney-client privilege. Now, that's, brings us to the response filed late Thursday night by the plaintiffs. The plaintiff's response hinges on the fact that the higher courts did vacate Boseberg's initial probable cause determination, but the NBank court also ruled the three judge panel's split decision wasn't a majority. According to the plaintiffs, that returned the contempt proceeding back to Bozberg to start anew. And Bozberg said the scant declarations filed by Nome, Mazara, and Blanche aren't enough for him to make a probable cause determination.

So, the DOJ asking Bozberg to cancel testimony and just make the DOJ referral is ridiculous. The court has the power to get to the bottom of what happened, so it has the requisite information to make a referral in the first place. That's why testimony, additional declarations as determined by the court, and an inquiry into the willfulness and state of mind are necessary. Yep. The declarations, those three declarations by the government didn't answer any of the basic questions needed to make probable cause determinations. And the plaintiffs point out that there are a lot of problems with invoking attorney client privilege. You ready for this list? I'm ready. Hit me. First, they pierced attorney client privilege when the government declared it would use an advice of counsel defense at trial. Further, a party waives privilege by placing otherwise. privileged matters in controversy. Remember when Trump wanted to use

Advice of Counsel in his classified documents case, saying Corcoran and Epstein told him to do it? But he tried to get the court to ignore the part where that waives attorney-client privilege because he'd have to hand over all of his communications with those lawyers. They're doing it again. Now, additionally, Andy,

there's the crime fraud exception and the fact that the Department of Justice lawyers are entitled to disclose client confidences to respond to charges of wrongdoing again. against them. That's called the self-defense exception. If you're a government lawyer and somebody's accusing you of contempt, you can pierce attorney-client privilege to defend yourself. Yeah, which is fascinating. But, okay, further, the attorney-client privilege doesn't preclude government lawyers from disclosing information related to possible criminal wrongdoing. In fact,

they're duty-bound to report it because DOJ lawyers' clients are the people. That's all of us. So in fact, that they tried to invoke it, I think, shows a gross misunderstanding of the role of government attorneys. Now, the government also actually disclosed some of the legal advice in a November 25th filing. Oops. Oops. Quote, email from then-acting assistant attorney general Yaakov Roth that Mr. Bovet had advised DHS that, quote, the deplaning of the flights that had departed U.S. airspace prior to the court's ministering. order was permissible under the law and the court's order, close quote.

And by revealing some of that legal advice, they effectively waived attorney-client privilege. Yeah, you can't talk about some of the stuff that you and your lawyer talked about without waiving all of your privileges. You can't cut both ways. You can't say, no, we're not going to disclose anything because it's privileged, but then disclose little selections that support you. Once you've opened the door, the door is open, right? Yep.

Furthermore, attorney-client privilege doesn't prevent a witness from taking the stand. To do it properly, they'd have to take the stand and assert privilege to each individual question. That's right. Additionally, additionally, the court can impose a broad range of sanctions besides criminal contempt referrals, and it has the authority to investigate bad faith conduct. For example, Department of Justice argues that Boseberg can only make criminal contempt referrals because civil contempt is no longer available because SCOTUS vacated his initial temporary restraining order, the one that

ordered the planes to be turned around. But the government ignores that civil compensatory contempt may be sought where an order has lapsed but was not beyond the court's authority, which is true in this case. So the government asked Bozberg to rule on their motion for reconsideration, stop the testimony of Rouveni and Ensign by this past Friday, as the testimony for Rivani and Ensign are scheduled for December 15th and 16th of this week. And

all of that that we just read is stuff that I wrote here's what based on that response to the motion for reconsideration but here's what Judge Bozberg has to say about it because he has issued his ruling okay

to begin this inquiry is not some academic exercise approximately 137 men were spirited out of this country without a hearing and placed in a high security prison in El Salvador where many suffered abuse and possible torture,

despite this court's order that they should not be disembarked. The Anbank DC Circuit has authorized this court to proceed with its contempt inquiry, which requires a consideration of official's state of mind. The cursory declarations defendants have provided offer little to assist such consideration. The circuit has also vacated this court's prior probable cause determination. Aha. Ah, ha, ha, ha, ha, ha, I was right. But to be fair, I was reminded of that very specific fact that the circuit vacated his prior probable cause determination through the filing in the response to the motion from the plaintiffs. While the government also asserts that the court's inquiry should be cabined to March 15th, that is too restrictive. What occurred at the March 14th meeting with the Department of Justice attorneys, including Emily.

Bovi, Erez Reveni, and Drew Ensign, for example, may well help to illuminate officials' decisions the next day and their mental states. Nor would everything said at such a meeting necessarily be covered by attorney-client privilege. The sole privilege defendants have invoked, inasmuch as no client was allegedly present, and a policy was apparently discussed. In any event, to the extent that future contempt was being considered, the crime-fraud exception would, what, What is it? Vitiate. Vitiate. Yeah. Vitiate? Negate. Piers. Put down. Crush. Squash. Eliminate. Privile privilege. So that's interesting, too. I didn't think of that. There were no clients present because the people are your clients. And also, Andy, that's the attorney client privilege is the only privilege they invoked. They didn't invoke deliberative process privilege. They didn't invoke work product privilege. The usual things.

that they other usually do. Yeah. So this court accordingly orders that the defendant's motion to reconsider the motion to stop the testimony is denied. In the meantime,

the government has filed a notice of mandamus petition with the appeals court, and it reads as follows. This long-running saga never should have begun, should not have continued at all after this court's last intervention,

and certainly should not be allowed to escalate into the unseemly and unnecessary interbranch conflict that it now imminently portends. I'm going to choke for having had to read that sentence. This long-running saga should never have begun. Yeah, no kidding. You should have turned the plane around when the judge ordered it, and none of this crap would have ever happened.

Oh, imagine that. Holy cow. And then, I mean, to claim like you're trying to protect the seemliness of interbranch relations come on this is a government that exhibits nothing but disdain and disrespect for the articles for the courts the article three courts is absurd okay i sorry that's my rant here we go continuing this court should therefore again grant mandamus relief this time foreclosing any further inquiry the court should also order the case to be reassigned given the strong appearance that the district judge is engaged in a pattern of retaliation and harassment.

Two things that this government knows a lot about, retaliation and harassment, by the way, and has developed too strong a bias to preside over this matter impartially. They then filed notice with Judge Bowsberg asking him to stay the testimony pending the outcome of their mandamus petition with the appeals court. Oh, my God. Now, Andy, I think this goes back to the same three-judge panel, wouldn't it? the two Trump appointees and the Biden appointee, and if they can get their ish together and agree on a reason to vacate the contempt proceedings,

then we may have a different outcome here. We may see that this actually come to a stop. It's possible. I don't know. Honestly, I don't know. I'm not sure that the same three-judge panel gets everything that comes out of this case. It would make sense, but I just can't confirm that.

No. And then also it would be appealed again to en banc, and they may have a different view once those two judges agree, they would, they were like, because basically they're like, the full panel was like, we don't have to address this because you didn't have a majority. So we're not going to. But if they do come up with a majority, then the en banc appeals court can actually address that majority. And if they put it back to where it was, then, of course, it would go to the Supreme Court. that's possible, but only if this, okay, this mandamus request goes to them, and then they decide to kind of reopen the old box and go back into the issue that was in front of him the last time. Like the mandamus request is just like, please stop this nonsense. So they can't base the decision

to stop it on their prior decision because that got kind of thrown out. Right? Yeah. I think they make most of the same arguments, but there are, but they're different this time because they're trying to stop this particular testimony and additionally trying to stop the entire contempt proceeding and trying to get the case reassigned because Judge Bosberg is a big meaning. Right. None of these things have been briefed, right? But that, so we don't know what will happen, but they should, I would expect, that they'll go deep on those specific issues.

And that'll essentially tee up the case, the issues in this, in this request in a very different way that was in front of the court the last time, right? It's going to have to be very testimony focused and also bias focused. And I'm not sure either of those came up in the original round of appeal. Yeah, and we also have to remember

that the utilization of the Alien Enemies Act still hasn't been decided by the Supreme Court. Right. Yeah, there's many, many cases that have been working their way up. But they still haven't decided whether it's even legal to use the Alien Enemies Act here. They're also waiting to decide whether it's legal to use Title X of U.S. Code Section 12406 to deploy the National Guard. That's been fully briefed since November 17th in the Chicago case, passed the Seventh Circuit to the Supreme Court, where the Supreme Court said, hey, we're going to need the parties to define what you think regular forces means in this law.

And so they've been fully briefed for almost a month now and haven't made a decision there either. But that doesn't close the door forever on Trump deployed in the National Guard. He may just invoke the Insurrection Act, et cetera. Nor would this completely close, if the Supreme Court ruled that the Alien Enemy's Act isn't something you can use here, that wouldn't close the door on him trying another way. So we'll see what happens. We'll follow it all here on Unjustified. Hey, everybody, it's Alison Gill. and I have some breaking news late Friday night after we recorded this episode.

The D.C. Circuit, with the same panel of three judges, decided two to one to temporarily halt with an administrative stay, Judge Bozberg's plan for contempt hearings and testimony regarding the Alien Enemy's Act deportations case and that it may have violated his order. So currently, the testimony of Arez Reveni and Drew Ensign appears to be on hold. while the D.C. Circuit three-judge panel tries to decide whether a more permanent stay is necessary to decide on the merits of the contempt proceedings going forward. It is the same three-judge panel, as I feared, and the two Trump judges voted to stop it, and the Biden judge dissented and would not have granted this administrative stay. So we will be right back after this quick break. Thanks for listening to Unjustified. All right, everybody, welcome back. Our final story comes from CBS.

This is Scott McFarlane. A bipartisan group of former federal ethics officials is asking for an internal Justice Department investigation into the legal opinion, the Office of Legal Counsel legal opinion that justified the U.S. military strikes on suspected drug-running boats in the waters off South America. The ex-officials sent the request Tuesday to the Justice Department's Office of Professional Responsibility, calling for an immediate investigation into whether members of the Justice Department's Office of Legal Counsel violated their

professional legal responsibilities in preparing legal guidance that justified the unilateral use of lethal force against civilian foreign nationals, including alleged drug smugglers. The group includes Norm Eisen, Richard Painter, and Virginia Cantor, who served as ethics councils for presidents George W. Bush, Barack Obama, and Bill Clinton. Their letters cited a November 12 report in the Washington Post, which said the Justice Department's Office of Legal Counsel authored a still classified opinion, finding that, quote, personnel taking part in military strikes on alleged drug trafficking boats in Latin America would not be exposed to future prosecution. The group's request for a formal inquiry said, quote, the result of the Justice Department's

Office of Legal Counsel's opinion, free reign for the government to murder and assassinate foreign civilians, is shocking and certainly raises the most profound legal ethics concerns. In their request for a formal Justice Department internal review, the group of former ethics officials also question the administration's determination that the U.S. is in an armed conflict with the suspected drug cartels. Quote, the U.S. is not in a non-international armed conflict. and even if we were, the murder of civilians would still be a violation of both international and domestic law. That's what Eisen Painter and Cantor wrote. Quote, these flaws call into question whether the Justice Department's Office of Legal Counsel's opinion was prepared independently,

objectively, and competently. Probably not. Painter told CBS News that the role of OLC is to provide unvarnished legal advice to the president to ensure that the laws are faithfully executed, as is required by the Constitution. Unfortunately, all signs point to OLC's opinion being nothing but a legal fig leaf to justify the president's attacks on foreign civilians. Eisen, Painter, and Cantor are seeking a review by the Justice Department's Office of Professional Responsibility, which serves as a version of an internal affairs office for the department. The office's professional mission statement said it works, quote, to ensure that

department attorneys perform their duties in accordance with the highest professional standards, as would be expected of the nation's principal law enforcement agency. So, AJ, I got a side note here. It's interesting because we got a question this week that is like directly on point with this issue. So Scott from Seattle asked, who leads or is a part of the OLC? And can they be held accountable for issuing bad and faulty opinions? Well, Scott, this is, basically what accountability looks like inside the DOJ. Now, OLC is led, I think, by an assistant attorney general is the head of it. And then there's a bunch of attorneys.

And they're generally considered to be kind of the brain trust of DOJ, the kind of smartest, best writers end up working there. And they do exactly what was described in the, just a minute ago. They provide legal opinions to the White House, to DOJ and also to the president on matters that have not been. decided essentially by the Supreme Court. And their opinions are given, it's not law, but they are traditionally respected by presidents and their staff and the DOJ and courts as like official policy positions that cannot be violated. So OPR nominally would be the group inside DOJ that would investigate when any DOJ lawyer was basically not doing their job. I find an investigation in this case to be so unlikely that it's practically impossible. But what accountability typically looks

like, the best example we have, I think, is the infamous torture memos that were written by John U and others and OLC during the Bush administration after 9-11. And eventually all of those memos were revoked and walked away from, essentially, by DOJ in the next administration. That alone is like such an embarrassing and humiliating kind of process for the people at OLC that wrote those original memos, they kind of go down in some infamy as having given bad legal advice to the government. So you could see something like that happen here eventually, but it's not the kind of thing that happens quickly. Yeah. And also this administration has no shame. That's true. So it doesn't matter.

Kind of. I mean, I'm glad they're doing an internal review, but I mean, I'm not expecting much from this. No. But I also want to talk about, you know, the whole idea of the, what's it called the take care clause that the laws are faithfully executed? This administration, this president seems to use that as a green light to do whatever he wants as opposed to the restriction that it's meant to be. Do you know what I mean when I say that? Yeah, it's both a green light for what he wants, and then it's completely ignored when it comes to laws that require things that he doesn't want. They basically don't have any respect for that piece of the Constitution. Right, because he uses it as a sword and not a shield, right? Because to take care of that the laws are faithfully executed means that what he did on January 6th was a problem, not that he, not that.

he was actually taking care of that the laws are faithfully executed. So I just think that that's something that I keep seeing this administration talk about. Well, Article 2 and to take care clause, I can murder people on the high seas because of the, you know, it just it seems like he's using it as an excuse to do whatever he wants as opposed to it, because it seems like a ceiling and not a floor. It is, but it's also an imperative, right? It's like saying you must enforce all the law. laws, not just the ones you like or the ones that are convenient, but all of them. So in other words, when Congress passes a law that creates an agency and gives it money, when you walk in and say, we're going to get rid of that and fire all the people and reprogram all the funds, you're essentially violating that part of the Constitution. So it's, it's, I agree with you. It is, it's problematic. But he will say, I have all the power because of Article 2 and I'm taking care of.

the Article 2 is faithfully executed. Like, it's just backwards. Yeah. It's all, like, right into Marbury v. Madison's face. Yeah. But anyway, separately on Tuesday, Andy, civil rights groups, including the ACLU, Center for Constitutional Rights, and the New York Civil Liberties Union filed a lawsuit in federal court in New York seeking the public release of this particular office of legal counsel

memo that's being used to justify the boat strikes and other documents related to the campaign. The groups say that they're still. suing because the federal government has thus far failed to release the records that they requested under the Freedom of Information Act. And it reminds me of when several people sued to get the Office of Legal Counsel memo that Bill Barr wrote saying that Donald Trump didn't commit obstruction of justice per volume two of the Mueller report. And the bar attorney, you know, the bar justice department did not want that released. And they invoked deliberative process privilege, attorney-client privilege, work product privilege, and Judge Barrel

House said, you're out of your mind. I'll let you redact these couple of things, but you spent six minutes on a Friday night, and then to come up with this by the Monday morning, that's not deliberative process. That's preconceived notions about what you wanted to say. That's rushed process, and there's no rush process privilege. It's only for deliberative. Yeah, there's no preconceived notion privilege for you to put that out. So that's why we got to see that Bill Barr memo, which likely made it very difficult to bring any criminal charges on those 10 obstruction of justice instances that Mueller outlined in volume two. So I think that there could be a good chance that we could see at least parts of this memo, but this administration is also saying the memo is

classified. And if they did it right, if they learned their lesson from the Bill Barr-Muller obstruction of justice memo, they may have actually done deliberative process properly to be able to keep this out of the public's eye. Yeah, and there's also, I hate to even bring this up because it's also extremely unlikely, but there is Congress. And particularly if Congress turns over

in the midterm election, then there is a possibility that Congress starts to put enormous pressure on DOJ to at least turn the memo in some form, likely redacted to keep some of the classified stuff out of it, turn it over to be reviewed by Congress and the course of their oversight duties. And so we could learn more about it through that process as well. But again, that's a long one. That's a long shot. Right. You're still asking Pam Bondi for something or whoever replaces her after she's fired for whatever. So one last thing,

Andy, before we get to another listener question and get out of here, I sued the government. So back in the summer, I had a bunch of sources from the FBI who reviewed the Epstein files to redact Donald Trump's name, redact victims and survivors' names and personally identifiable information, reached out to me. And one of them confided in me that not only was there an Excel spreadsheet where they were told to log all of the instances of Donald Trump's mentions and mark for redaction in the files in these Epstein files, but that there were also training videos disseminated on the SharePoint site embedded in PowerPoint presentations on how to do that, because the information management division isn't as trained on redactions as

Rids, like it's Rids' job, but Pam Bondi and Kosh Patel needed 1,000 people to go over these because there's so many files. So they send out these training materials. And before I published the story. I held the story for about 15 minutes on these training videos. I filed a Freedom of Information Act request to get the training videos. Then I published the story. Then we got assigned to Judge Barrel Howell and we've been going back and forth and I'm asking for expedited processing of my request. And I got a response from the government. The government filed, the Department of Justice filed their response arguing that I should not have expedited processing to get these videos, Even though recent emails pride loose from the FBI by Jason Leopold for Bloomberg confirm the existence of these PowerPoint training videos and the Excel spreadsheet log, as a matter of fact, they don't think I should have expedited processing.

Andy, their argument is that they're actually arguing that there is not widespread public interest in the Epstein information. Yeah, nobody cares about that. it's not really on the news much um i've started calling cnn and n it's the epstein news network like i feel like every show it's it's all about epstein including uh on friday when all these picked photographs came out so yeah that's that's going to be a tough the government has signed themselves up for another tough argument yeah well we'll see we'll see what um judge beryl howl says And, of course, we'll let you know here on Unjustified. All right, I think we have time for a listener question, Andy.

What do we have this week? Oh, by the way, if you have a question you want to ask us, you can click on the link in the show notes and fill out the form and it'll submit your questions to us. Roger that. So, okay, so we'll just do a quick one here from Ed. And this is kind of going back to what was one of our topics from last week. But we talked about this part of it a little bit then, but Ed has asked a question to go a little deeper here. Ed says, if the president can modify his January 6th pardon to exclude the pipe bomber, could he revoke other pardons?

And is it possible for him to revoke pardons granted by a different president? So it's an interesting question, Ed, but I think there's a pretty clear answer for it. Essentially, as we know, the president has basically zero limits on how they execute a pardon and who they choose to pardon and what those people can be pardon. for. That's pretty much whatever the president wants. But the way it works mechanically, the pardon is not final until it's been delivered to the person it's intended for. And oddly enough, the most legal scholars agree that once the pardon has been finalized and has been received by the person pardoned, it cannot be modified by the president. It's like a done deal. And the person

who gets it, I suppose is supposed to be able to have confidence that it's not going to be changed. It's also pretty clear that presidents absolutely cannot impact, revoke, change, edit, pardons that were given by other presidents before them. They're not revocable by any other president. So in this case, you know, we know there's been kind of a lot of ridiculous talk about Trump's interest in revoking some of the pardons that President Biden issued and there's making all kinds of claims that it was the auto pen and it wasn't President Biden. I think most people agree that that's really not a thing, that it would be impossible for any reason for President Trump to go back and try to revoke the pardons that President Biden issued. So no president can do that.

Yeah, and along the same lines of trying to re-indyate Letitia James. Go for it. Give it a shot. Give it a shot, President Trump. I did. Go ahead. Try to revoke the pardon of, you know, I don't know, Hunter Biden. See what happens. I will have fun that day. I mean, even the Supreme Court, because they want to preserve the pardon power for people like Donald Trump. Wouldn't step on previous president part. But because otherwise, the next Democratic president could come in and revoke all. all the trump pardons for all the january six people and then put them back in jail that seems like a pretty big violation of of their rights uh so no i yeah i got i got i got to i got to agree with you on this one my friend yep yep i think that one's cut and dry but that's it that's our questions for this week thank you uh ed thank you um also i think it was um we talked about a question from scott from seattle earlier in the show so thanks thanks guys and uh yeah if you have questions for us throw them. There's a link in the show notes, send them our way, and we will get in a few every episode. And I think we're thinking about maybe teeing up another questions exclusive

special episode coming up in the next few weeks. So stick around for that as well. Yeah, that should be, you know, I really like those questions episodes. Our listeners have such thoughtful and amazing questions that it really, you know, I have fun recording them. Yeah. Not that I don't have fun going through hundreds of pages of court documents and translating them for this particular show. But I do, you know, I do really enjoy those questions. So please click on the link in the show notes, send them in, and we'll continue to answer your questions as best we can. That is our show for this week.

We will be back next week. Yeah, I think we're going full steam ahead through the holidays, my friend. Heck yeah, that's what it looks like. So batting down the hatches, it's probably going to be a rough road, but we'll get you there one way or another. All right, everybody. Thanks so much. We'll see you next week on 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 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 podcasts dedicated to news, politics, and justice. For more information, please visit MSWMedia.com.