Jack - The Guardrails

Episode Date: September 21, 2025

Former Special Counsel in the Trump investigations, Jack Smith, speaks at length about the weaponization of the department of justice at an event at George Mason University.Trump Administration officials push to fire the US Attorney in the Eastern District of Virginia over his refusal to indict NYAG Tish James and former FBI Director Jim Comey.A trial jury finds a Los Angeles protestor not guilty of assaulting a Border Patrol Agent; and another assault case is dismissed in the District of Columbia.The Department of Justice quietly deletes a study on the politics of domestic violence amid calls from Todd Blanche to investigate Trump protestors. Plus listener questions…Do you have questions for the pod? 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. Former special counsel in the Trump investigations, Jack Smith, speaks at length about the weaponization of the Department of Justice at an event at George Mason University. Trump administration officials pushed to fire the U.S. attorney in the Eastern District of Virginia over his refusal to indict New York Attorney General Tish James and former FBI director Jim Comey. A trial jury finds a Los Angeles protester not guilty of assaulting a border patrol agent, and another assault case is dismissed in the District of Columbia.

And the Department of Justice quietly deletes a study on the politics of domestic violence amid calls from Todd Blanche to investigate Trump protesters. This is unjustified. Hey, everybody. Welcome to episode 35 of Unjustified. justified. I feel like it's episode nine million of unjustified. That's just life, I think. But it's just episode 35. It's Sunday, September 21st, 2025. I'm Allison Gill. Hello. Hello, Alison Gill. I'm Andy McCabe. And this week, Allison, as I mentioned to you off the pod, I had a really unique

opportunity to go and hear a guy speak who you've heard of before and who I think you might be a little interested to hear what he had to say. A young buck named Jack Smith, who probably is familiar to our listeners as well. Jack Smith, Jack Smith. Where have I heard the name Jack Smith? Does that ring a bell? Hmm, rings a bunch of bells. Jack, yeah. So full disclosure, as you know, I teach at George Mason University in the Schar School, the Graduate School of Government and Policy. And so I typically go to a lot of their events. You and I had an event there a little while ago. We did an episode of the pod from George Mason. And so Mason has every year this speaker series called the Roger Wilkins speaking series. Roger Wilkins was an attorney, a career DOJ attorney and someone who worked assiduously on the civil rights movement and the Voting Rights Act and the Civil Rights Act. And in any case, the administration. He's no longer with us, but the administration has this speaking event once a year to honor his memory. And so this year's speaker was Jack Smith.

And of course, when I found out, I was like, oh, my gosh, I have to go and see this. So it was in the large auditorium on the Mason-Farfax campus. And Jack stood up and spoke for about 45 minutes. Really interesting. He is the guy that you've seen, that we've all seen, in those pictures from the Hague, And in his very brief press conference, the one press conference he gave after the indictment, one of the indictments in his investigations of now President Trump, and, you know, a guy who, if it's possible to say something in two words, he'll try to do it in one, right? Like a very, very serious kind of, maybe I would even say dower sort of guy's very, he's almost intimidating. very direct.

And there he was, on stage, started his speech. And, you know, immediately it gave me the sense of, like, this is someone who doesn't speak in public very often. That's not to say that he can't. He's very good at it because he's clearly very used to speaking to a jury. And I noticed that even some of his mannerisms and is like the way he would hold his hands, the way he would change the tenor of his voice and the volume with which he was speaking. like all the kind of things that you see good prosecutors do to capture the attention of a jury.

And that's really, that's really kind of how he went about it. He started out by talking a bit about his own career and about how his career is all about the rule of law. And then he went right into saying that he believes the rule of law is under attack, under attack in a way that it has never been ever before, certainly not in our lifetimes. He went on to say that, you know, he's saddened by the knowledge and the site of selfless public servants being fired for doing their jobs, bothers him that the government is using its vast powers to target citizens for exercising their constitutional rights, that civil rights and civil liberties are under attack, and also that the loss of credibility with the courts currently being suffered by the Department of Justice is really serious. I was going to ask you about that because you and I have talked at length on this particular podcast since Donald Trump took office and since Pam Bondi and since Ed Martin, the Wackadagpa and Janine Piro and whoever, Alina Haba, that and just generally all around the country noticing that the presumption of regularity is gone, that the candor, that the courts, that the DOJ enjoyed with the courts and judges, it has disappeared.

So I was going to ask you if he brought that up because I know you and I cover it pretty extensively and, you know, with examples. And we'll have more examples of that later in the show as well. Yeah, it's been a consistent theme of ours on this show. And we've been, I mean, I don't think there's been an episode in the last five or six weeks that we haven't talked about grand juries dismissing cases and not returning indictments and things like that. Yeah, he's like seriously concerned about it. It was something that he came back to a few. few times in his remarks. He kind of wrapped up this like introductory phase of his speech by saying that he knows public servants because he lived that life and that the idea that these people are secret partisans as a lie. He said it's a bold face lie told by people who do not know what public service looks like. The vilification of these people for political ends angers him because he says he knows the cost for our country and that the rule of law depends upon these people to function. So that was kind of the setup, and he launched into first talking about the rule

of law. And for him, he believes that essentially it means treating people equally under the law and that for the rule of law to exist and for equality to exist, laws must be applied equally and be enforced equally against everyone. He went into this kind of description of what he thinks a society looks like that does not have the rule of law. I said critics and perceived enemies are targeted in an effort to silence them. Prosecutors are left to figure out a basis of charges after the fact. Friends do not have to follow the laws that the rest of us must obey, meaning like friends of the government or friends of the president.

And he said friends and allies of the president will not be prosecuted no matter what they do. So like that's what we look like now. Like right now, that's what we are that we are gravitating to. You pointed out that the rule of law is about a fair process. It's not about outcomes. That's interesting because most people feel like the rule of law needs to be about outcomes because I think failure to hold certain people accountable can lead to more, you know, frustration.

Lawlessness. Yeah, yeah. We all want, we all have an eye. Those of us who follow these things and are informed about. what's happening you know it's impossible not to have a preference as an as an observer you see what happens and you think like I hope this person gets held accountable or I hope this person who I think was prosecuted unfairly isn't you know thrown in jail for it but that's why I always talked about like when we know when people said that they don't care wake me up when there's when he goes to jail

etc and and I always said you know I want it I asked people what is your definition of justice in particular, like for the January 6th case, for instance. Right. Because my idea of justice was that, first of all, he got into the system of justice, meaning I was waiting for the indictments. Because the indictments tell you everything that went down, right? Right. And to me, that was a bigger deal than maybe getting a conviction later on down the road,

at least politically speaking, right? But he doesn't work in the political world. No, absolutely. Absolutely. Absolutely. He's very clear that, and I think this, if you look at the work that he did, as we did and all of our loyal listeners followed, that was his thing. And there, you know, there were, I heard plenty of people that I know in respect complaining, you know, why did he bring that documents case in Florida? Or, you know, why is he giving them all these operative, all these bites at the Apple on these motions and appeals and everything else? And this. to Jack Smith you understand is that's part of the fair process and you know for instance you got a lot of questions at the end they took some questions from the audience and people were questioning like what's wrong with the system that it takes so long to get a case through right why do these defendants have so many appeals and so many appeals and they're just gaming the system running out the

clock which is was a classic trump strategy and he wouldn't condemn that he said that's that's that's That's how the system maintains fairness. Like, defendants have rights, and they get to enforce those rights. And when they feel like that enforcement has not been conducted lawfully, then they can appeal. You know, like, you can't, and that all takes a long time, right? And that's the very system that we're seeing work in our favor now that Trump is trying to send rogue prosecutors that he feared for himself in his immunity arguments. Right. And so that long, arduous process with all of the guardrails in place, why just as Sotomayor said we don't need anyone to have immunity because we have this process that's very slow and cumbersome and makes sure that we do the best we can not to put innocent people behind bars.

And yes, we do make mistakes, but it's a system that really does its best to prevent that from happening. But that super slow process when the shoe is on the other foot, which you and I talked about a lot. If it were Trump or Bill Barr in charge, and now as it's Pam Bondi or Janine Piro from Fox News in charge, you're going to want that ability to appeal and delay and fight back and, you know, and face your accusers and go through the due process. If the next defendant is Letitia James or James Comey or John Brennan or, you know, name the political enemy of the week, yeah, we're all going to sit here on the edge of our seat. it's waiting to see how well their lawyers fight back. And it's the same, they get the same rights. They get the same opportunities. So he then talked specifically about prosecution and the role of prosecutors.

And one of the themes he kept coming back to is he said the ethic of the professional prosecutor is to do the right thing, the right way, for the right reasons. talked about following the facts and the law despite criticism and how to really kind of tune out what he referred to as the noise and the noise being the critics

the awful TV commentators which I took personally, sorry but also the people who praise you know he said any you know you realize in these high profile cases anything you do some people are going to hate you for it and others are going to love you for it

And you have to ignore all of that. You can't, you know, even people who praise you are happy with it you did because they have a vested interest in that outcome. And as a prosecutor, you know, you should not be, you should not share that interest. Yeah. And I had to say many times, many times during the Mueller she wrote podcast that Mueller is a prosecutor. He's not a hero. Right. And he's going to do what prosecutors do, not what heroes do, right?

Like, unless your hero is to follow the facts and the law to the letter of the law, no matter what anyone says. That's right. If that's your kind of hero, then okay. You're in the right place. Yeah. But, yeah, I think that that's very interesting to be like, yeah, I got a lot of critics. But also people who, you know, think that people like Garland and Mueller and Jack Smith are like messias and they're the magic. They're the silver dilett that's going to save democracy.

Right. Because as Rachel Maddo pointed out, rightfully on, I think it was Chris Hayes' show when she was on his, like, appearing on someone else's show, or maybe Nicole Wallace, like, there is no silver bullet. All of the pistons of the guardrails of democracy have to be firing all at once. And as, you know, many people have observed, the greatest check on executive power is the people. That's right. And so, yes, great, the law and justice and the courts are one. But journalism and media and, you know, having a solid for the state is an important guardrail, due process. But, yeah, the most important and most powerful check is the people.

So I think it's great that he talked about that, not just on the one side for his critics, but, you know, the people who told him up as the only person who could save us from what we're facing right now. Right. And in talking about that prosecutorial function, this is when he really started to zero in on the current administration. So he said, what is different today is that these traditions, these norms, have been abandoned. The current leadership of the Department of Justice has abandoned these traditions and norms whenever they come into conflict with outcomes they are dead set on achieving for the president. rather than being driven by a fair process and integrity they were hired and are thus driven to get outcomes no matter the cost

to the credibility of the institution they represent no matter whether those outcomes are legal or just and that is a very he's not using

anybody's name but that is a very direct reference and then he goes on to give a bunch of examples of what he thinks are, you know, exemplify this preference for outcomes, political outcomes, over justice. First one was the Eric Adams case.

He said dismissing a criminal case against the mayor of New York in exchange for his cooperation with the president's political agenda and enforcing the resignations of prosecutors who would not go along. He said, I've been doing this for 30 years and I've never heard of such a thing. Targeting law firms because of their clients or because they used to employ someone the president doesn't like. Robert Mueller. Yeah, exactly.

Robert Mueller's best friend's brother's cousin's girlfriend knows this guy who heard from this girl who worked at Kirkland Ellis. Yeah. Robert Mueller's DoorDash guy also goes to this firm and therefore. Right. Yeah. Refusing to open an investigation when senior members of the administration broadcast what was clearly classified information over a commercially available app.

Oh, Signalgate. Yeah. He said no DOJ under any administration, Republican or Democrat, would have refused on these facts to open a criminal investigation when the lives of our servicemen were put at risk. Here, here. Yes, I was like, I wanted to jump up and start clapping, but thought that might raise too much attention. You just jump up and woo-woo and pump fist. Everyone's like, is that Andy McCabe? I get enough for that already.

And then finally he said deporting people from the U.S. Despite a clear court order, not to. Leaders of the DOJ allegedly telling prosecutors to ignore court orders if they come into conflict with the president's agenda. I mean, this is, he's tracking the very cases and issues that we've been talking about on this pot. Yeah.

So, yeah. Every single one of them. Yeah. So then he goes into this next part, talking about lawyers and the function of lawyers and you know he starts by talking

about the infamous Shakespeare quote you know first thing we do is kill all the lawyers and he kind of flips it around and points out

the John Paul Stevens justice John Paul Stevens quote from 1985 where he said Shakespeare insightfully realized that disposing of

lawyers is a step in the direction of a totalitarian form of government like yeah our recourse is in the courts it's legally yeah anytime you chip away

any little bit of a criminal defendant's due process, whether it's their legal representation, their ability to file pre-trial motions, their ability to, you know, have their case heard before a jury, anything you try to strip away from that is an attack on the rule of law. And the totality comes from a totalitarian form of government. That's right. And then he kind of wraps up this section by talking about what we've discussed many times. grand juries reject charges and refuse to indict people because they don't trust the government anymore. Government credibility is earned every day by telling the truth.

Even when it's bad for your case or you've done something wrong or you forgot to turn something over and discover, you still walk in and tell the truth. He said, you know, he's citing that there were so many examples of cases where judges tell the government that they no longer trust them. And then he quotes the infamous trust that has been won and earned. over generations, has been lost in weeks. And I don't remember exactly what case that was, but I know we talked about that quote directly. Yeah, it could have been Judge Seney's. It could have been, I mean, there have been so, Judge Bates,

there have been so many judges appointed by Republican and Democrat, Democratic presidents alike that have said that, or at least, you know, sort of conveyed that exact sentiment. And how crazy is that, that this on the record observation, of a federal judge, which in any other time would have been so scandalous, it would have been a top of the front page issue. We can't even remember which case it came from because there were so many cases where judges are, you know, experiencing that same frustration. Yeah, it's like, hey, tell me about that one indictment from Donald Trump or against Donald Trump. Oh, well, which one of the

hundred or so charges would you like me to address? Yeah, exactly. Somebody will text me something like oh so-and-so said something stupid and I'll be like you're going to have to be more specific yeah for sure a judge doesn't trust the department of justice you're going to need to give me more specifics on that yeah yeah for sure so anyway how many ideas about what we can do what we can do I mean a little bit a little bit he was you know he kind of wrapped up by talking about what he referred what he characterized as solutions and it's really very aspirational there's like you know playbook here but he said like move to ireland yeah so he started by talking about like um so i'd talk about is from his personal life like he grew up in upstate new york he was like

kind of a jock in high school wasn't a really serious student he ended up going to state university in new york at on i think a baseball scholarship some some connection of uh baseball got him in there but he was also like a football player in high school and so he started talking about the fact that most of his friends, where he grew up, he's the first person from his family to go to college. And he said most of the people that he grew up with, a lot of them became policemen and firefighters. And he started talking about this idea that, like,

his friends who are policemen and firefighters, they run toward danger when everyone else runs away. And he said, you know, you tend to think that that's like, in your DNA, like some people are just built that way and most of us are not. He said, but it's not true. He said, it's unlearnable. He said that people who are in those lines of work, they are trained that way and they develop that instinct over time.

And ultimately, it's a choice. We choose. It's not normal to run towards a fire, but we choose to do so when we acknowledge and accept the responsibility that has been placed upon us to help others. And so that's how he thinks of the solution. It's like, you know, for instance, questions we should ask, are. leaders is not whether you're going to make decisions like a Democrat or to make decisions like a Republican. We should be asking them, will you stand up for what you believe in? Will you run towards the fire, even when it's going to hurt your career and maybe your

political future? And I think that's a really insightful way to think about it. Like, we have to start prioritizing public service and the good of us all over any of the kind of individual, like, well, I'm going to vote for this guy because I think it'd be good for my 401K. You know, like, voting for who's better for democracy is really more important than voting for the guy who's going to

lower the price of eggs. So, yeah, a couple of interesting quotes. He talked about General McChrystal, who said character is two parts. One is having a code to live by, and the other is the courage to stick with it. Talked about avoiding becoming cynical

in these times, which is very hard. But, you know, making the decision to tell the truth, to speak up, to embrace the opportunity to stand up for what you believe in, value facts, he said, which I thought was interesting, stand up to powerful people and stand up for vulnerable people wherever and whenever you can. So really, really inspiring words, kind of what you would expect. like this guy delivers he is the guy you think he is he is that true blue dedicated to the things that he spent his whole life working on there's no real mystery here but it's very um you know it was it was comforting and reaffirming i should say more than comforting to listen to he's also a staunch defender of the department um some people asked questions about merrick garland and like whether he thinks that Merrick Garland's DOJ

kind of waited too long to get the case going and then that's why they ran out of time and he was very clear about he has nothing but positive feelings for Merrick Garland. He said Merrick Garland not one time ever for any reason whatsoever interfered with what he was doing. Gave him complete

and total independence. He never had to check with him. He never ran any whatever strategy or rests or indictments past him. Never tried to curtail the scope of the investigation like I don't know in some previous investigations we might know about? Yeah, no.

Nothing. He said Merrick Garland was, you know, he said he didn't have an unkind word to say about the guy. Did he say anything about why he wasn't appointed until much later? I mean, not much later, but, you know, almost two years after January 6th, but a year and a half maybe I think is more between a year and a half and two years after. What was it, November 22? Yep. you know, he did not talk about the specifics of the timing of his appointment. I would suspect that if you asked him that directly, he would probably say, I wasn't there

then. And I, you know, it wasn't my decision when to appoint me, so I can't really say why they did it one way or the other. But when they did appoint me, I dropped what I was doing and came over and did it, you know. So he's that kind of like very exact, you know, in his answers to questions. And he also, he dodged, I don't want to say dodged. He pointedly did not criticize the Supreme Court. He spent a lot of time talking in his main remarks about the importance of obeying court orders and how if when we stop respecting and obeying judicial orders, then he said that is the beginning of the end. So as much as the immunity decision is stupid and wrong, I'm not going to criticize it because if I don't obey court orders or have

reverence for them, then who will, I guess? That was the one that he made kind of a joke. about saying like he was, well, he said he was disappointed by the immunity decision. And he thought that Justice Sotomayor's response was better. I mean, same. I feel this. I feel this same way too. He did put a little neck out there for that. You know, like I think he disagree. My guess would be he disagrees with it on the law. Well, yeah, we read what he wrote about. Of course. Immunity in his own words in, you know, based on law and based on history and based on what the founders wanted and based on the Constitution. We know how he feels about immunity. He wouldn't have argued against it. Of course. If he didn't think that it, if he thought that the president should be immune from

something. If he thought that, he wouldn't, he wouldn't have brought the indictment. Right. So, you know, so it's pretty clear. You don't really have to guess what he's thinking. He's very, very direct. But, but huge respect for, and he believes it's absolutely essential for the survival of democracy and the rule of law for people to, even when you don't like, what they said, even when you think that the decision was legally off base, even when you think it'll have a bad effect on the country, our obligation, especially as an officer of the court, as a lawyer, is to obey under those circumstances. Yeah, well, he has to follow the law. He has to follow what the courts do. Now, you and I can

say we think a decision is wrong, but we're not in a position to follow it or not follow it because we're not indicting or prosecuting anything or, you know. I think, yeah, look, it is a democracy. And we do have a First Amendment, right? And I think we, you know, we should have these spirited discussions about how we feel about different policies, different actions. And the court's decisions fall into that. There's nothing wrong. I mean, you go to law school and you spend three years arguing back and forth whether any given decision is good or bad or why it's good or bad. And that's an important part of the process, too. But at the end of the day, it's the law. And we have to follow it. Yeah. Well, that's really, really fascinating. I remember when I saw him, made eye contact with him in Judge Chuckkin's courtroom when we got a trial date for January 6th. She said it for March of 2024. And he was surrounded by like five security guards. And he's just sort of sitting there leaning on one of the little dividers between where the bench is and the gallery is. And he's just sort of got his arms crossed. And he's just sort of got his arms crossed. and he's looking around and I see him and he sees me and then he just gives me that little what's up kind of head nod and I was like hey

and then I was like oh my God Jack Smith said what's up but without words and then you know then we sat down and had the right that we came back and Judge Chuck and gave her ruling on when the trial date was going to be but that's the only time I've ever

seen him in person everything else has been very brief clips on on TV or during a press conference, like, when he announced the indictment. And that was sure. Everyone was like, no, tell us more. You and I were like, well, let's read the indictment. That's what you're going to get from him.

Yeah. Yeah. Yeah, for real. Did you ask him if he's got a volume two tucked away somewhere at his house that we could get a copy of? Send me that, you know, send me that second report. Yo, come on. I won't share it. No, I did not say that.

You got volume two at home somewhere? I think he's got volume two right up here, right up in the crane. head for sure. Anyway, but it was a great opportunity. He doesn't speak much. I'm not even aware of any other speaking he's been doing. So I was sure as heck wasn't going to miss it. And I, you know, these are his public remarks.

I don't think there's anything wrong with kind of giving everyone the spirit of what he said. But yeah, that was it. It was cool. I was glad to be able to do it. Well, thanks so much for sharing that experience. And we're going to talk a lot about everything that we're going to talk about. everything that we're going to talk about in the rest of the episode touches on these things that he's that he's talking about the loss of presumption of regularity, the courts no longer trusting the Department of Justice, federal grand juries and all these due process guardrails that are in place to prevent rogue prosecutions. We're going to touch on that. And some more malfeasance at the Department of Justice with trying to fire prosecutors for not bringing charges against political enemies, which I'm sure. Jack Smith is very much against. And we're going to talk about that. But we do have to take a quick break. So everybody stick around. We'll be right back.

Oh, she broke the story this week, and the New York Times expanded on this story regarding the exact weaponization Jack Smith talked about at George Mason. This comes from, this is the New York Times, from Thrush, Haberman, Bromwich, Foyer, and Roshbaum. That is a huge byline right there. Sounds like a law firm. Right, exactly. And they say, a high stakes debate raged inside the Trump administration on Friday over the fate of the veteran U.S. attorney investigating New York's, New York's O.S. Attorney General Letitia James and the former FBI director Jim Comey, and that's according to two people briefed. Administration officials informed Eric Siebert, that's the U.S. Attorney for the Eastern

District of Virginia, EDVA, that he would most likely be fired. But there appeared to be a last ditch effort by some in the Justice Department to protect Seabert from being fired and the situation remained in flux. Mr. Seabert has recently told senior Justice Department officials that investigators found insufficient evidence to bring charges against Ms. James and has also raised concerns about a potential case against Mr. Comey, according to officials. Several administration officials, speaking on the condition of anonymity because they were not authorized to discuss personnel matters, described the situation as fluid, unsettling, and confusing.

That kind of sums up the whole administration, doesn't it? Yeah, you could have added a complete effing mess, but maybe not. Mr. Seabert and his top deputy were still at their desks working, and no one had been officially ordered to leave as of midday Friday. Now, Attorney General Pam Bondi and Todd Blanche, the Deputy Attorney General, that's the DAG, who runs the day-to-day operations at the Department of Justice, have privately defended Seabert against officials, including William Pulte. That's the director of the Federal Housing Finance Agency, the guy going around accusing all of the Democrats of mortgage fraud, including. Schiff, Tish James, Lisa Cook. So these officials, these Trump officials, have urged that Siebert be fired and replaced with a prosecutor who would push the cases forward. Like, get somebody who will go forward to a grand jury and lose, I guess, is the thing. And that's according

to a senior law enforcement official. And Todd Blanche also questioned the legal viability of bringing charges against Tish James. And that's according to current and former department officials who spoke anonymously. Now, Seabert's office. office also recently hit a roadblock in its investigation of Mr. Comey on claims that he lied under oath. Roadblock is doing a lot of work there. Yes, it is. Last week, prosecutors from Mr. Siebert's office subpoenaed Daniel C. Richmond, a Columbia law professor and close friend and advisor to Mr. Comey, in connection with an investigation into whether the former director had lied about whether he authorized Mr. Richmond to leak information to the newsme.

media, according to people familiar with the situation. Documents released by the FBI in August showed that investigators had examined possible disclosures of classified information to the New York Times. Mr. Richmond's statements to prosecutors were not helpful in their efforts to build a case against Mr. Comey, according to two people familiar with the matter. That's a funny way to say, reality tanked the idea that they could bring charges. The push to remove, Siebert, who was a highly regarded career prosecutor who worked closely with Emil Bovi. That's Trump's former enforcer in the Department on Immigration and Gang cases, came as a shock in an office that handles some of the nation's most sensitive national security investigations.

His possible termination was reported earlier by, as I said, Catherine Foulders at ABC News. Mr. Seabert is well-liked by many Trump administration officials and key congressional leaders, including Chuck Grassley of Iowa. He's the Republican chairman of the Senate Judiciary Committee. So this is a career prosecutor guy who's well liked by Republicans and people in the Trump administration. A former Washington, D.C. police officer, Mr. Seabird has worked his way up through the ranks at the office over the past 15 years. He's handled a broad range of cases including international drug and firearms trafficking, white color crime, child sexual exploitation, public corruption, and immigration. So George Mason playing a very prominent role in this episode. I happened to be at another event at George Mason on Friday where Senator Mark Warner was speaking publicly about a bunch of different things,

threats to the intelligence community, all kinds of interesting comments he made. But he did actually refer to this situation, to this reporting about the Eastern District and Mr. Seabird. And he related to the group that he and the other senator from Virginia, Tim Cain, actually got together. You know, the senators kind of propose the candidates for the U.S. attorney roles in their state. And he said that he and Tim Cain, like very specifically picked candidates that they thought were, of course, good and fair and honest prosecutors, but also people that they thought the other side, the Republicans would support. And the fact that both of these guys now, one of the, the guy from the Western District of Virginia, who we talked about a few weeks ago, like, resigned out of nowhere in protest. And he wouldn't get into details on that. I got the sense that he knew much more about that. And now, of course, you have this suspicion floating around Mr. Seabert. So, yeah, it's really remarkable that these two people who are specific,

chosen and proposed by their senators because they were assessed to be particularly down the middle, not political, and would be attractive also to Republican senators to vote for them. And, of course, they were both confirmed. Yeah, gone, basically. I mean, see, we're still there, but we'll see what happens. Yeah, it's in flux. So we'll keep an eye on that. And in a related story, Andy, Maureen Comey, Jim Comey's daughter.

who was fired. You know, she's a federal prosecutor who handled criminal cases against Jeffrey Epstein and Galane Maxwell. She's actually contesting her firing in July in a lawsuit that challenges Trump's claim of sweeping presidential power. Now, she contends that there's no plausible explanation that exists other than that she is the daughter of Jim Comey for her perceived political affiliations. There's no other possible reason that she would have been fired. So I'm not sure how this is going to play out in the courts with this particular Supreme Court on appeal. I figure like Article 2 powers of the president to fire whoever he wants will probably prevail, but it's going to be an interesting case nonetheless. And she's not, she's a smart person when it comes to the law.

So I don't think she would bring a frivolous lawsuit, not like the, not like the Trump lawsuit against the New York Times for $15 billion that was summarily thrown out by a GW Bush appointed judge for being just summarily a thwart of regular order. I mean, that was a pretty... Divorced from reality. Yeah, that was a pretty damning thing. But I, you know, we'll also be following the Maureen Comey case to see how that goes. But, you know, for her wrongful termination.

So anyway, we have still more to get to. We're going to talk about more guardrails holding in the, you know, in the courts. as we see, you know, for what, that's like one of the main, we should have a whole segment now about, you know, cases that aren't being brought by grand juries or acquitted by pettit juries or, you know, that prosecutors won't bring it all like this one against Tish James. It could be a whole segment about that. It's really taken over the place formerly occupied by Ed Martin. Yeah. Which is fine. It's more interesting than he is anyway. Yeah, absolutely. And we'll talk about a couple of more cases that had to be dismissed or were thrown out or acquitted. But, but. But we'll do that after this break. Stick around. We'll be right back. Welcome back. Okay, in addition to the U.S. attorney

in the Eastern District of Virginia, refusing to indict Jim Comey or Letitia James, there were more failed cases from the Department of Justice this week. I love that sentence. Thank you. I wrote that. The first from The Guardian, a Los Angeles,

protester charged with assaulting a border patrol agent in June was acquitted on Wednesday after U.S. immigration officials were accused in court of lying about the incident. Yes, I said... So this one got past the federal grand jury.

It got past pre-trial motions to dismiss. It actually made it to trial. And then it was acquitted, the case that the guy was acquitted by a trial jury. Yes. Because... U.S. immigration officials were accused in court of lying about the incident.

I mean, holy crap. Okay, sorry. The not guilty verdict for Brian Ramos Brito is a major setback for the Donald Trump appointed U.S. attorney in Southern California and for Gregory Bovino, a Border Patrol chief, who has become a key figure in Trump's immigration crackdown. The 29-year-old defendant, who is a U.S. citizen, was facing a misdemeanor and was the first protester to go to trial since the demonstrations against immigration raids erupted in L.A. earlier this summer. Yeah, and if you've seen Bovino, he's the guy out there in his vest and his flak stuff and his camo and he's got kind of the short, the high and tight fade that's sort of a salt and pepper. And he's like, I'm out here doing justice. You know, like that guy is just ridiculous. Yeah. Border Patrol and prosecutors alleged that Ramos Brito struck an agent during a chaotic protest, chaotic, I'm putting in quotes, on the 7th of June in South Los Angeles County City, in the city called Paramount, which is outside a complex where the Department of Homeland Security has an office. But footage from a witness, which the Guardian published days after the incident, but they went to trial anyway, showed an agent forcefully shoving Ramos Brito. The footage did not capture the demonstrator, assault. the officer at all. The jury delivered its not guilty verdict after just about an hour of

deliberations. The Los Angeles Times reported that, and Bovino testified, that's the beefy guy, Trump guy, testified earlier in the day and faced a tough cross-examination from public defenders. These folks had public defenders. Nice. Bovino was one of four Border Patrol agents who testified as a witness, but was the only one to say he saw the alleged assault by Ramos Brito. according to the L.A. Times, videos played in court captured the agent shoving him, shoving Ramos Brito, sending him flying backwards, and showed the protester marching back toward the agent. Now, the videos did not capture Ramos Brito's, any alleged assault by Ramos Brito. There were multiple factual discrepancies in DHS's internal reports on the protest,

which initially led to charges against five demonstrators. The Guardian reported in July. A criminal complaint suggested Ramos Brito and others had attacked agents in protest of the arrests of two sisters, but records showed that the women had been arrested in a separate incident that occurred after Ramos Brito's arrest. A supervisor later documented the correct timeline and apologized for errors, records showed. Yeah, why would you bring this case to trial? Now, at trial, Kuatemic Ortega, who is a federal public defender, which is amazing, sought to cast doubt on Bovino's credibility, questioning him about facing a misconduct investigation several years ago, which resulted in a reprimand for referring to undocumented people as scum, filth, and trash. Now, after Bovino responded that his comment was in reference to a specific criminal illegal alien, Ortega read from the reprimand.

signed by Bovino, which said he was describing all illegal aliens. Ortego also argued that the agent who Ramos Brito allegedly assaulted lied about the incident, and Bovino was, quote, trying to cover up for him. In Ramos Brito's trial, videos also contradicted initial claims of a Border Patrol agent who had said he was chasing a man who assaulted him, but was stopped by Ramos Brito and Jose Mojica, another protest. the L.A. Times said. The footage showed no chase. Carly Palmer, an attorney who served as a supervisor in the U.S. Attorney's Office in L.A. until

she left last year, said on Thursday it was notable that the federal government had devoted significant resources to a misdemeanor case against an individual with no reported criminal history. Bovino, a senior official, flew in from Chicago for the trial. For a misdemeanor trial. For a misdemeanor trial in which they had all these factual and evidentiary problems. Like, how did they get a prosecutor to take this thing? It's this guy, right? It's this prosecutor in L.A.

And, you know, we rarely see misdemeanor trials, federal misdemeanor trials. No. Because people just settle and pay their fine and go on their way. Exactly. A cop to it. Because generally they have done it. But when you haven't done it, you go to trial. And I'm glad they did. And I'm glad this public defender took them to trial on this because it showed all of their errors. And I have to say, Andy, the huge difference, the vast Grand Canyon of difference between a charging document and a prosecution in the Jacksmith investigation, for example. And what we see here is just so mind-blowing that all these facts are wrong. And we always talked about how.

You know, prosecutors in a Mueller investigation, Andrew Weissman, for example, or Jack Smith crossed every T and dotted every I and would never bring a charge if they didn't have the ability to obtain a conviction and sustain it on appeal beyond a reasonable doubt. And so now you've got this with all these lies and problems and stuff that's not in the video that you claim happened, that you have video evidence showing that it didn't happen. and they still take it to trial and get under an hour, a jury says no. Yeah, it's remarkable. I mean, let's remember that in the federal system, nobody brings a misdemeanor case at all. You get, you end up with a misdemeanor conviction because the feds have brought a felony case against you, and maybe the case was a little shaky, not worth going to trial, whatever, and they agreed to downgrade it to a misdemeanor. and you plead guilty to that.

It's like typically the result of a plea bargain. So like bringing a misdemeanor case out of the thin air, not connected to a felony is weird to begin with. Going to trial on one is like not heard of often. All right, because there's nowhere to go down from a misdemeanor except acquittal. Exactly. So it's not like you can charge.

Right, it's not like you can charge murder one. And the jury says we think murder two is more appropriate. appropriate. Right. It's like, well, j-walking. How about just walking? Like, you can't bring it down any further than it already is. So this is just hugely embarrassing. And so those guardrails against rogue prosecutions, they are real. We have Comey and Letitia James, where the prosecutors won't even take it to a grand jury. Here, we have somebody, they got an indictment from a jury, or maybe they couldn't get a felony indictment, but they got their misdemeanor. Or they downgraded it to a misdemeanor on information, because you don't. need a grand jury to return a misdemeanor. That's right. So maybe they, they couldn't get a felony from a grand jury and filed information misdemeanor went to trial and lost with a trial jury. And of course, we still have federal grand juries refusing to indict, causing the Department of Justice to dismiss or maybe downgrade charges like perhaps happen in this case. And that third thing happened again this week with a dismissal in the case against Denisea Butler and Terrence Wilson. And this is in

D.C. The Department of Justice moved to dismiss the charges, saying the United States has decided not to proceed with any prosecution of defendant Butler, but we're going to proceed with the prosecution of defendant Wilson in Superior Court. We're lowering his felony to a misdemeanor. Accordingly, the government moves to dismiss the charges against them, the felony charges against them. This was another case, Andy, a different case, because we already talked about one like this, where the officer was not a federal officer, but the DOJ charged felony assault of a federal officer. And they tried to say that you assaulted a member of the Metropolitan Police Department and were calling that a federal officer because that person was assisting federal officers,

but it's not the case because the federal officers were assisting the MPD. And so they dropped those charges, bought it down to a misdemeanor. Maybe they'll go to trial on that misdemeanor and lose too. We'll tell you about it if they do. Full on. And D.C., not a very place where the juries or the grand juries, for that matter, are very receptive to this stuff. Man, just mind-blowing how, having, you know, reported on and read and extensively researched previous indictments

by a Department of Justice, a competent Department of Justice, and then seeing this, it's just former, I haven't yet reached out to my former DOJ friends, my former U.S. attorney friends, to be like, what must this feel like to them? Yeah. How embarrassing this is for the department. Yeah, for real. All right, we got one more quick story, I think, to tell you about, and we got listener questions too.

But we're going to take this one last quick break. So stick around. Hang in there. We're almost done. We'll be right back. Hey everybody, welcome back. All right, just one more story before we get to listener questions. And if you have a question, there's a link in the show notes. You can click on to submit your question. And this story, though, comes from the Guardian. It says the U.S. Justice Department has scrubbed a study from its website concluding that far right extremists have killed far more Americans than any other domestic terror group just days after a gunman fatally shot the prominent conservative activist Charlie Kirk. The report, which is now archived, titled What N-I-J research tells us about domestic terrorism, quietly vanished from the Department of Justice website between the 11th of September and the 12th of September. And that's according to Jason Paladino,

an independent investigative reporter who first wrote the story. Charlie Kirk, as we know, 31-year-old, Turning Point USA founder and Trump ally was shot while speaking at Utah Valley University on September 10th. So the next day, the DOJ went in and took down their study about most of the domestic violence being from right-wing extremists. Yeah. The vanished study opened with, quote, since 1990, far-right extremists have committed far more ideologically motivated homicides than far-left or radical Islamic extremists,

including 227 events that took more than 520 lives. In the same period, far-left extremists committed 42, ideologically motivated attacks that took 78 lives. The National Institute of Justice Study, which was based on research spanning three decades, represented one of the most comprehensive government assessments of domestic terrorism patterns. It found that, quote, militant, nationalistic, white supremacist violent extremism has increased in the United States, and that, quote, the number of far-right attacks continues to outpace all other types of terrorism and domestic violent extremism.

They said spanning three decades, but I think 1990 was four decades ago. Sorry, everyone. Sorry. Is it? 1990, 2000, 2010, 2010, 2020. No, I guess that's three decades ago. Three and a half.

Okay. There you go. Fair. All right. That's good. At least it's not 50 years ago, which the 80s is almost basically. All right.

Now, where the report is, it once appeared on the DOJ website, the Justice Department wrote it was reviewing its website and materials in accordance with recent executive orders. And that's according to 404 media, though the pages, it's now completely unavailable. Also, the Justice Department's number two officials said Tuesday that people noisily protesting President Trump could face criminal investigations if they're part of a broader network organizing such activities. And this is one of the reasons they took this study down. They're trying to convince everybody that left-wing ideological violence is far more prominent. And all of this comes after Donald Trump

declared on social media with no legal authority to do so, though that never stops him, that Antifa is a domestic terror organization. And Andy, you and I've talked at length, ad nauseum, about the fact that there's no legal mechanism to declare a domestic group as a terror organization. Otherwise, we would have the three percenters and the proud boys and the oathkeepers. KKK and on and on. and on and on. You're absolutely right. There's not. And the reason you can do it to foreign groups is because foreign terrorist organizations don't enjoy constitutional protections. But people here in the United States, citizens and non-citizens, enjoy the protections of the First Amendment, the Fourth Amendment, all those things. And so because a domestic terrorism group inevitably involves some degree of political speech, that speech is protected. And so the way that we've always investigated domestic terrorist groups is not with national security powers that you can use against international groups, but only as criminal organizations. That's the way it has to be done.

There is a domestic terrorism statute in the law, in the criminal law, but it is only a definition. It does not have a penalty associated with it. If you want to convict someone who's a member of the KKK, let's say, for some terroristic activity they were involved in, you have to convict them of the underlying crime, whether it's homicide or use of a weapon of mass destruction, whatever. Many of us, myself included. Yeah. I mean, we do have a, we do have in sentencing guidelines, a terror enhancement, which was applied to the oathkeepers, was applied to the proud boys. A judge has to accept that terror enhancement.

So that can happen if you're domestic. But yeah, sorry, I didn't mean to interrupt you. Yeah, no, it's just like it's always been known. There's been a real debate in counterterrorism circles about whether or not we need better laws on the domestic terrorism side. I believe we do. Some people don't. It's never going to happen because Congress has been right-leaning for several years now. I wanted to attract attention to this issue because they were accepting of the research that's now been pulled most of the domestic terror activity that we can.

that we have documented is on the right. But you can't list domestic groups. It's like fundamentally unconstitutional. So nothing is going to come of this. And if he actually takes any action and justifies it by this federal, you know, executive order, presidential executive order, if, you know, people who those actions are taken against will be able to challenge it likely successfully. Right. Like, because, for example, the Alien Enemies Act is specifically about foreign people.

That's correct. But there's no law on the books, like you said, that authorizes a president to go after domestic organizations. So when the president says, Antifa is a terrorist organization, and I'm assuming he's doing this because he can just pick and choose who. Antifa's not a thing. So he could just pick and choose whoever he wants. Andy, you're Antifa. I'm Antifa. And, and, but I can't think of the authority under which he would detain us without due process, for example. No. I'm not saying he won't try to come up with something that will then have to be litigated. But that's, I think, the difference between some emergency powers that he does have when it comes to foreign affairs. Yeah. And, but there's, I don't, I can't think of a statute. And please, right in, click on the questions link and correct me if I'm wrong.

I can't think of an authority, a statute. under which he could detain U.S. citizens without due process unless he suspends habeas corpus, right? Yeah, yeah. And, you know, long before you get there, it's helpful to look at how it's different on the IT or international terrorism side. So Congress has specifically passed laws that enable the State Department to designate foreign terrorist groups. And once designated, then the law enables the executive branch, largely through the FBI, to investigate. and prosecute people criminally for doing things like supporting that group. So if you send money or material or people or yourself to go overseas to go help one of these groups, then that's that in and of itself as a crime.

There is no similar mechanism on the domestic terrorism side, largely because people think that it would not pass constitutional scrutiny. Free speech. Yeah. And so I guess that's a little bright spot here. because I frankly am worried what he's going to try to do with this and he always pulls something out of his hat that I don't have the cold dead heart to think of and imagine but there is not a legal mechanism for that at this point not that he wouldn't just declare it in an executive order

and it would have to go through the courts but we're going to keep an eye on it anyway It's still dangerous that any president ever would consider half the country a terrorist organization. Anybody who's given money to, you know, the Trevor Project to support transgender youth could be viewed as viewed as a terrorist in the United States by this administration. It's frightening. Yeah. Yeah, it is. It's, it's, you know, these are the things we have to discuss. keep a really close watch on because these are the places,

these are the corners, the edges where Americans' freedom is being curtailed every day, right? This is where the cutting away, the chipping away at individual rights, at constitutional rights, this is where it's happening in these different spaces. And it's only happening more often as this administration grabs more and more and more power,

unfettered power for the executive for the president so right what's the saying those that would curtail liberty in the name of freedom deserve neither or something to that effect i can't remember something to that effect yes another ben franklin thing all right let's get to some listener questions everybody again there's a link in the show notes if you have questions Andy what do we have today all right so I'm going to do one question but before we get to that I just wanted to mention we did get a bunch of questions, a couple questions about the situation, and this is a good segue, a situation involving Jimmy Kimmel getting suspended from, and his show getting suspended indefinitely. People are asking, like, are we going to cover that? I think it's probably likely

we will at some point. Right now, it hasn't really blossomed into an issue for the Department of Justice, which is basically our focus on this show. But, yes, Yeah, we're, I am, this is another one of those spaces that I was just talking about. We are seeing just an unheard of series of attacks on the media. And that is, you know, this is having a direct impact on First Amendment right. So we're going to keep our eye on it. And as soon as we have the right angle to really dive into it in an effective way, I'm sure that we'll do that.

Yeah, because I'm, if I imagine, I'm hoping at least that Jimmy Kimmel, might bring a lawsuit against Brendan Carr, the FCC, in which case the Department of Justice would then get involved to defend those people, then absolutely. But I will go ahead and go on the record

and say it's absolutely trampling on our constitutional rights. Totally. It's a huge, huge canary in the coal mine for a loss of civil liberties in this country around the First Amendment. And, you know, we can talk super briefly about Pam Bondi saying that hate speech

isn't free speech and then having to walk back that comment because it is and because if she wants to classify what Jimmy Kimmel said right as hate speech and therefore saying it's not protected by the First Amendment she's 100% absolutely incorrect yeah and there are even you know a lot of conservatives have acknowledged that the Wall Street Journal these all these outlets are like hold on a second no this is not this is not right so that's how That's how we got to her walking it back. But, yeah, I mean, I think for sure, we're as concerned as you all are and following it pretty closely. Okay, so now our question for the week, this one comes in from someone who chose not to be identified, which is totally fine.

They said, in reading the termination letters to Driscoll and others, I noticed the sentence, quote, pursuant to Article 2 of the United States Constitution and the laws of the United States, your employment with the Federal Bureau of Investigation is hereby terminated. I recall the Attorney General Guidelines, Myog, Mayop, and Diag. Wow, this is somebody who really knows their Bureau Policy Manuals. Good for you. Mayop. Wow.

I mean, like, there are current agents who don't know what the Mayop is. Okay. Sorry. But how the FBI derives authorities from Article 2 and personnel or any matters is escaping me. I even looked at my appointment letter on my credentials. You just gave yourself up. No article two reference.

How is Article 2 applicable here? Well, my friend and former colleague who wisely went anonymous with this question. Okay, so this is my interpretation of the letter, so worth what you paid for it. that reference to Article 2 is not a specific reference to any FBI policy or really any U.S. government policy because they're using that same reference in other agency termination letters as well. This is simply the administration staking their claim and it's consistent with their unitary executive theory that the president's authority, which in the Constitution all the president's authority comes from Article 2, they're saying that

because of the awesome authority, the unfettered, unlimited, unreviewable authority that the president gets under Article 2 of the Constitution, you're fired. Therefore, you can't challenge it. His discretion cannot be questioned. It cannot be reviewed. La, la, la, la. Right. So basically, he can fire anyone who works for the federal government. For any reason or no reason. Down to the GS5 clerk. Right. But instead of saying, like, well, can, I thought only the FBI director could fire somebody from the FBI, or I thought only blah, blah, blah, because I think there are maybe policies around that, but he's just going way above, right, saying, nope, Article 2, I can fire whoever I want. And that's what he's using to fire National Labor Relations Board members, everybody, FTC members, even Federal Reserve Board governors. Maureen Comey. Maureen Comey, right.

same line, her letter. So this is them basically saying we don't have to follow. Congress passed laws, right, the Civil Service Act that sets up the protections of government employees. And from that law, we get the processes and procedures that the FBI and all these other agencies go through to terminate people, which includes your right to fight back and to have a hearing and all that kind of stuff. And what he's saying with that reference is, no, laws passed by Congress don't apply to the president. And that's what they truly believe. As scary and frightening as that is, that is what they truly believe. Um, so that will, I guarantee you in, uh, the current FBI suits from the folks that we talked about last week, uh, Driscoll and Jensen and, um, at all. These things are going to be challenged in court and, uh, we'll hear how that goes and we'll obviously cover it closely. Yeah. And there's all sorts of laws on the books like that. There's a law that says that if you are, if you committed insurrection, if you, you know, or if you were charged with insurrection, actually, there was one about documents, right, that if you mishandled classified

documents, and it wasn't a charge that was brought against Donald Trump and it was not brought because of this weird thing, that if you did this with classified documents, you couldn't run for office again. And no one had ever, this is what Donald Trump wanted to charge Hillary Clinton with for the email server, right? So they just to bar her from running for office again forever. But everyone was like, that's not going to make a difference because when it goes up to the Supreme Court, the Supreme Court is going to say that that bit of the law is unconstitutional. You can't bar somebody from running for president because they violated this law. And so there's all kinds of statutes on the books. And what Donald Trump here is saying is no Article 2 says there can't be a law passed by Congress that stops me

from doing this. He's violated all kinds of laws. He violated the TikTok ban. He's been waiving the TikTok ban for, what, eight months now? Yeah, and now he's putting an 80% billionaire American board in charge of it from his donors and then that the government's going to own part of it and Intel. The first term, he violated the Magnitsky Act when Khashoggi got murdered and Congress served notice saying, we want a report under the Magnitsky Act.

You owe us a report on this. It just didn't do it. So that's like, that's how they roll. that ignore those laws that they don't like. They haven't hung the January 6th plaque. Yeah. Which was a law passed that was supposed to be hung by law in 2023. My other co-host, Harry Dunn, is suing for that.

So, yeah. There we go. And we got to go through the whole litigation process all the way up to the Supreme Court. All right, everybody, thank you so much for your questions. This was a bit of a long episode today. So thanks for hanging in with us. We had a lot to cover, and I'm sure we're going to continue to have a lot to cover going forward. Andy, thanks so much for that inside look at Jack Smith speaking at George Mason at the Shars school.

I think that's so cool. Absolutely. And listeners, if you have a question, like I said, there's a link in the show notes to send it into us. Please send in any question you like and we'll go through them and hopefully it'll get on the air. So any final thoughts today? No, I think I've covered everything. But yeah, another busy week. Looking forward to taking a little time off this week.

weekend. I recommend everybody do the same thing. Yeah, get outside, take a walk, practice some self-care. For sure, yeah. I might go get like a tiny little manicure or something and just kind of tune out for about an hour. I can't imagine. That's going to be so nice. I'm so excited. All right. Anyway, we'll see you guys all next week. Thank you so much for listening. This is Unjustified. I've been Alison Gill. And I'm Andy McCabe. Unjustified is written and executive produced by Allison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey, 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.