Jack - Unlawful Orders (feat. Virginia Burger of POGO.org)

Episode Date: November 30, 2025

The cases against Jim Comey and Letitia James have been dismissed by a judge who found that Interim US Attorney Lindsey Halligan was unlawfully appointed.News outlets are reporting that President Trump is weighing removing Kash Patel from his position as director of the FBI, but the administration denies those claims.The 11th Circuit Court of Appeals upholds the dismissal of Trump's 2022 lawsuit against Hillary Clinton et al, and allows the $1M sanctions fine to stand.The FBI has opened an investigation into six members of Congress for reminding active duty service members and employees of the intelligence community that they do not have to obey illegal orders.Plus listener questions…Do you have questions for the pod? Project on Government Oversighthttps://www.pogo.org/ 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.

MSW Media. The cases against Jim Comey and Letitia James have been dismissed by a judge who found that interim U.S. attorney Lindsay Halligan was unlawfully appointed. News outlets are reporting that President Trump is weighing, removing Kosh Patel from his position as director of the FBI, but the administration is denying those claims. The 11th Circuit Court of Appeals upholds the dismissal of Trump's 2022 lawsuit against Hillary Clinton at all, and allows the $1 million sanctions fine to stand. And the FBI has opened an investigation into six members of Congress for reminding

active duty service members and employees of the intelligence community that they do not have to obey illegal orders. This is unjustified. Hey, everybody, welcome to episode 45 of Unjustified. It is Sunday, November 30, 2025. I'm Alison Gill. And I'm Andy McCabe. All right, Alison, we're going to dive right in. As many of you have heard, six members of Congress issued a public service announcement reminding active duty service members and those in the intelligence community that they can

and must refuse to obey illegal orders. In response, the president called for their deaths in order that the Justice Department should open criminal investigations. One of the six, Senator Mark Kelly, has been pushing back against the investigation, leading Secretary of Defense Pete Hegssef to announce that he'd consider recalling Senator Kelly to active duty and subjecting him to a court martial. Now, our guest today is former active duty Marine Corps officer, who currently serves as the senior defense policy analyst at the Project on Government Oversight, better known as Pogo, and she can speak to the Uniform Code of Military Justice. Justice, everybody please welcome Virginia Berger. Virginia, how are you? I'm great recovering from Thanksgiving. How are you guys? Excellent. Doing the same here. Thank you so much for joining us today.

We've, of course, got Allison here. A lot of questions among our audience, and I think among the public at large, about what's been happening in this kerfuffle over the video released by Senator Kelly and five Democratic lawmakers on the House side. And it really, really, I think initially comes down to this kind of almost semantic argument about the military members who, of course, swear an oath to follow lawful orders. I guess my first question for you is, does that by definition mean that they are also obligated to not follow unlawful orders? Yes, there is an obligation. When you take the oath of office or enlistment, depending on whether you're an officer or enlisted, you know, are obeying the orders of those appointed over you

if you're enlisted or if you're an officer, the Constitution and the UCMJ and all of the associated articles within it. And that, you know, if you go further down that path, means to your logic, hey, if it's an unlawful order, you must disobey it because the Nuremberg defense does not stand in the United States. Got it. That's really interesting. And I, you know, I was briefly in the Navy. And I remember the general orders and having to memorize them and being told that we weren't supposed to obey unlawful orders. But I have to say as a 19-year-old person with no law degree, how do you know what an unlawful order is? So when I think in a lot of the discourse right now, there is this sort of sense of what, what are the unlawful orders that

could be going on right now? And, you know, the six lawmakers in their video did not mention any specific ones. They didn't say, this is an unlawful order. This one that's been issued is unlawful. They just said, you have this duty, right? And so I think in the current discourse, to your point, how do we know what's awful and unlawful? A lot of people are imagining the worst, right? Like, what is so obviously illegal? And I think what probably jumps to mind are some of the strikes in the Caribbean or the strong potentials for violence in American cities with the National Guard deployments and what that could mean. For example, if National Guard were ordered to shoot out American protesters, for example, and that's where everyone's mind goes. But when you are

joining the military and you are that 19-year-old new enlistee, you are the new officer, the Ensign or the second lieutenant, what you're actually discussing most often are very, very boring, potentially unlawful orders. Things like, hey, fudge this, service record. Hey, don't go through the appropriate purchasing process and follow all of the financial requirements when you buy new gym equipment for the unit. Less exciting things, negatively exciting things, but that's what we sort of talk about when people join the service. And of course, we address the very obvious and the very tragic and the very concerning, but not everything is this dramatic moment of conflict that I think the public is, and frankly, the president,

given his tweets or sort of imagining these service members alluding to, right? And so when you are joining, you are taught the big ones, but you're also in these discussions about, hey, realistically, in your job in the day to day, what would an unlawful order look like? And it's much more about those seemingly lower level issues that people are going to see every day that they then learn to identify and understand their role and duty, if that makes sense. Yeah, it totally does, totally is. So let's shift to talk about Senator Kelly just for a minute because, as I understand it from the reporting I've been reading all week on this, Senator Kelly is a little bit different than the others in the video because he's the only one with enough time on to have fully retired from the military. And in that status, he is still, as I understand, still subject to the UCMJ, the Uniform Code of Military Justice.

And that's the thing that could make him somehow susceptible to being called back and subjected to a court marshal. Is that right? Is that really a thing? And if so, like, how does that actually work? So it's complicated. But when you retire from the military, right, you serve your 20 years or more or you maybe medically retired, but typically 20 years or more, you are extended privileges as a retiree that in standard, you know, honorably discharged veteran who didn't retire is not afforded, right? Like, I served nine years and I got out, I do not get the pension that Senator Kelly does. I don't get the TRICARE health insurance that he does. I don't have the base access to get to the commissaries and things like that that he does. So like there are privileges extended to retirees. But with

that, they are still beholden to some portions of the UCMJ. Now, it is very rare for someone to hold them to that, right? Usually if a retiree has committed a crime, it is probably going to be handled and dealt with in civilian legal processes before it gets to the UCMJ. But it's, like you said, it's not impossible. The last time it was really in the news was January 6th. There were some people at the Capitol who were apprehended and later charged who were military retirees. And so there were some discussion and rhetoric and just general discourse in that period

in that aftermath about whether or not they should be beholden to the UCMJ for their actions that day. So again, it's rather unprecedented to go down this path, but it is not. possible. And so, yeah, the Secretary of Defense and the president bringing this up is because he is a retiree. And so they have that little modicum of power over him that they don't compare to the other ones because of that status. Now, is that different than recalling someone to active duty to prosecute them under the Uniform Code of Military Justice? Because I know there was a recent case where Steve Vladick, who's a law professor at Georgetown, was on one of those, on that case and was

trying to argue that you cannot recall someone to active duty. But as it stands, with the current precedent in the courts, you actually still can, but it seems like this Supreme Court is about to or will eventually say, no, you cannot. And the reason we were all pushing is because we all wanted Mike Flynn to be recalled to active duty. Yeah. Who among us didn't. Yeah. Yeah, under the Uniform Code of Military Justice. And Steve Vladick was like, hang on, put the shoe on the other foot. Yeah. What if it's someone else? And then here we are. The shoe is on the other foot.

Yeah. But I think currently, I don't know if that is what you're talking about, the retiree that still has the door open to be prosecuted under the UCMJ or if this has to do with the ability to recall someone to active duty. So they're coupled, right? So because he is the retiree. to charge him, he would then be recalled back to active duty service. So then it gets complicated, right? Because this man is a sitting senator, so where are they recalling him to? Like, just my mind, as a recently departed veteran who just finished, you know, her last forward duty earlier this year, I'm like, what unit is he checking into? Like, physically, what base is he walking onto?

Who is signing his check-in sheet and saying, welcome, Captain Kelly? Like, where is he going? And so, like, that adds a lot of, like, realistic considerations that obviously Secretary Heggseth is not considering when he sends out these, like, inflammatory tweets threatening to bring him back and have a uniform inspection and whatever. But it's because of that, right? So it's coupled together. And there's other nuances and it gets very complicated. But fundamentally, because he has a retiree, he can come be recalled back if they find enough of a reason and justification to charge him. okay so let me ask you like a more substantive question about if if that happened so like i look at

this from my fbi perspective and the legal analysis as a federal as a normal 1811 federal agent really starts and i from my from my opinion ends with the first amendment analysis like i don't even know how the fbi is opening cases on this stuff that's a bigger question yeah that's your wheelhouse i'm yeah this is this is so clearly first amendment protected speech as far as I'm concerned. It's it's political people making a political statement, period. And I don't, I don't, I would, I can't even if you said you can, you can disobey lawful orders. Like it's still protected speech. Yeah. Yeah. If you just don't even go past the fact that they're just reiterating the law. They didn't do anything beyond that. Of course, of course. And so

now imagine he gets recalled and they institute a court, court marshal against him, would he have that similar First Amendment defense to be able to say, like, look, now there's many other defenses you might have, like speech and debate clause and things like that as well. But, God, I would think provisionally, it's just a First Amendment issue. You'd get the whole thing dismissed. I mean, I think it would get dismissed well before they even convene a court martial because it's like you can just on the grounds of like who's signing the charge sheet, right? So in the UCMJ, you have the investigation, then the preferral of charges, then the article 32 investigation

before you ever refer referral of charges for a actual court martial. And so we have to get through all of that and there's all of these barriers to entry. So presume maybe the FBI is the investigation that they're going to use. That's some agency crossover

that sounds a little sketchy to me. Typically, it's usually like an NCIS investigation or a command investigation that leads to this in my experience. And then it's like, who's signing the charge sheet? Because it's usually the commander the first convening authority in the chain of command of the service member being charged is the one who signs it again this man is retired he's a sitting senator is hegseth signing the charge seat is the president and then we get into the issue of undue command influence which we haven't even touched on yet right yeah convening authority if anyone if a convening authority higher than yours has it makes any kind of statement that could be construed as undue command influence then it moves up the chain the president has made statements about this he's the highest level of of the chain. Is he the convening authority? Is Trump signing the charge sheet? So, like, there's so

many intricacies here that I think are unprecedented and that we don't have answers to that as soon as anyone takes a critical look at it, it's like, how are we even getting to the court martial? Like, if Heggseth decides to go through with this, the UCMJ, like, court martial process has so many steps that I would be very surprised if we even get past the charge sheet. And even if we do, then we get to the Article 32 hearing, any military judge worth their salt is going to be like what are what is this what are we here yeah why are we here this man is a senator to your point article like what what is the purpose of this yeah he hasn't said much less done anything illegal there's no conduct here beyond the speech like on the federal side if you were if you were

investigating this first of it you can't prosecute someone just for speech that's to be conduct you have to actually do something that's against the law and i don't i don't have the slightest idea what that would be here. Yeah, the most likely ones that they could probably try him or try and charge him with, right? And this is just my like rough estimate of, you know, looking back through the UCMJ is like maybe Article 133, which is conduct unbecoming. But even that, like you said, there's no conduct. What is the unbecoming conduct in this situation? The other one is Article 134, which is the general article.

It's kind of the catch-all, you know, disorders and neglect, et cetera, et cetera. so they could maybe try and squeeze it in there with like, he was encouraging service members to, you know, shirk official duties and orders and like that. But again, like, was he? He just reiterated the law. Exactly.

And then like, maybe they could be like Article 94, mutineer, sedition. That's not going to stick to him. Same reasons. No. Yeah. For sure. And I, and, you know, the FBI is also simultaneously conducting an investigation. And I remember from my time in the military,

Again, not over big things like this, but just little things with the Uniform Code of Military Justice. Even though Double Jeopardy doesn't apply to the Uniform Code of Military Justice, they rarely actually do a court martial and a federal investigation in parallel. So, like, the big thing that they would lecture us on would be stuff like being drunk in public or getting arrested for a DUI or, you know, disorderly conduct outside face. Yeah, posting a video that the president says a seditious is not really in the boot camp. legal primer. No, it's not, yeah, we didn't really cover that one. But it was not really something that was on anybody's mind as a possibility ever. Do not advise others to not break the law. I advised others to not break the law. I was a warfighting instructor in Quantico. I taught brand new officers in the Marine Corps. And one of the classes I had to give was, if you get an unlawful

order, you have to disobey it. And I had to give them examples and case studies. Like, I have done that. If we're, if this is the standard, then I will go to the next court martial after Senator Kelly. So will every other work for. Be careful what you wish for there. All right. Well, you know, trust me. Trust me on that one. That's fair. Well, I believe you. For Virginia, it's been enlightening speaking with you. And if I, I would encourage anybody who is looking for more information or who wants to support Pogo. Please tell everybody what that is, where they can find it, and how they can support the work that your organization is doing. Yeah. So the project on government oversight, or Pogo, we are a over 40-year organization.

We were born in the 80s initially to advocate for more sensible defense spending and oversight, and we've sort of bloomed into a much larger portfolio of issues. But I still work at that core purpose, our founding purpose of defense oversight. But we are, you know, we have investigative journalists, we do policy advocacy, and we love support. We love people to be engaged with our content. And so you can find us at Pogo, p-o-g-o.org. All of my work is there. My colleague's work is there.

Giving Tuesdays coming up, I would be remiss and would get an angry phone call from our finance team. If we didn't say we'd love for people. You would be recalled to duty and court-martial. I would be recalled to duty and court-martial. The Pogo court-marshal. Giving Tuesday is coming up. And Pogo would love to be supported because, you know, we do great work. And it's only getting more important every day to advocate for government accountability and oversight,

which is what we do. Well, it was a great pleasure to have you here with us today to explain some of this stuff. And thanks for the good work that you and your colleagues are doing at Pogo. And please keep it up and stay in touch with this. Of course. I will. Thanks, guys. Yep, thanks. Yes. Thank you so much for your service. Virginia Berger, we appreciate your time. Everybody next up, major embarrassing losses for Trump's Justice Department in court. And as much as we, I take glee in talking about the failures of this Justice Department, it also hurts my heart that this Justice Department is in the position that it is in now, our Justice Department in general. But we're going to talk about all that right after this quick break.

Stick around. We'll be right back. Hey, everybody. Welcome back. That was great. That was a great conversation. I'm really glad Virginia Berger was able to join us today. Yeah, she's terrific. And a great insider's view of the UCMJ, which can be confusing to us non-military people. So really appreciate her for coming on. It is a weird thing, the UCMJ. Although we had a person right into the Daily Bean's and give us the entire few good men's speech, but using this particular incident instead, it was pretty great. Nice.

Now, as much as I wanted, Andy, the painful embarrassment of Lindsay Halligan to drag on a bit longer, This week, Judge Curry, a Clinton appointee from the District of South Carolina, dismissed both the Jim Comey charges and the Letitia James charges when she found that the interim U.S. attorney for the Eastern District of Virginia was unlawfully appointed. So let's go over the Comey ruling first, because they're pretty much identical rulings. So let's go over the Comey ruling. It says, Mr. Comey now moves to dismiss the indictment on the grounds that Ms. Halligan,

the sole prosecutor who presented the case to the grand jury, was unlawfully appointed, violating 28. U.S. Code 546 and the Constitution's Appointments Clause. As explained below, I agree with Mr. Comey that the Attorney General's attempt to install Ms. Halligan as interim U.S. Attorney for the Eastern District of Virginia was invalid. And because Ms. Halligan had no lawful authority to present the indictment, I will grant Mr. Comey's motion to dismiss the indictment, but without prejudice. That's right.

Now, she goes on to say, resolving Mr. Comey's motion requires me first to decide whether Ms. Halligan was validly appointed as interim U.S. attorney under Section 546 and the appointment's clause. If the answer to that question is yes, I need not go any further, and Mr. Comey's motion must be denied. But if the answer is no, and Ms. Halligan had no authority to present Mr. Comey's indictment to the grand jury, then the question becomes, what remedy is appropriate? Should the indictment be dismissed? And if so, should the dismissal be with or without prejudice. I address these issues in turn, beginning with whether Ms. Halligan's appointment was valid under Section 546. In sum, the text, structure, and history of Section 546 point to one

conclusion. The Attorney General's authority to appoint an interim U.S. attorney lasts for a total of 120 days from the date she first invokes Section 546 after the departure of a Senate-confirmed U.S. attorney. If the position remains vacant at the end of the 120-day period, the exclusive authority to make further interim appointments under the statute shifts to the district court where it remains until the president's nominee is confirmed by the Senate. Ms. Halligan was not appointed in a manner consistent with this framework. The 120-day clock began running with Mr. Siebert's appointment on January 21, 2025. clock expired on May 21st, 2025, so too did the Attorney General's appointment authority.

Consequently, I conclude that the Attorney General's attempt to install Ms. Halligan as interim U.S. Attorney for the Eastern District of Virginia was invalid and that Ms. Halligan has been unlawfully serving in that role since September 22nd, 2025. Whomp, bring out the sad trombone. Now they're going to go over, I believe, the appointment. clause. And the judge says, quote, an officer cannot lawfully exercise the statutory power of her office at all unless she has been properly appointed under Article 2. That's in a case called Collins v. Yellen from 2021, with Clarence Thomas concurring.

Emphasis added. There's a lot of Clarence Thomas citations in this. And she's artful with her citations, this Clinton appointee. Yes. And here, Ms. Halligan has not been appointed, one, by the president with the advice and consent of the Senate, or two, through a process Congress is authorized by statute. Now, this is also from a case called Kennedy with Thomas dissenting. At the time of the framing by law, of course, meant by statute. So an appointments clause violation has occurred. So that's a lot of citation to Justice Thomas, like I said. So Halligan's appointment violates Section 14. 546 and the Appointments Clause of the Constitution, both. Exactly. Okay, the next question is what to do about that violation. This is my favorite part. Yeah, here it comes.

I conclude that all actions flowing from Ms. Halligan's defective appointment, including securing and signing Mr. Comey's indictment, constitute unlawful exercises of executive power and must be set aside. There is simply no alternative course to cure the unconstitutional problem. And that's a quote from US v. Trump, which is also very rich. That's amazing. That's opinion, yeah. So she's quoting the classified documents case that Eileen Cannon dismissed.

She's quoting Cannon. And she's not saying that Jack Smith was appointed unlawfully. What she's saying is once Cannon decided Jack Smith was appointed unlawfully, whether she's right or wrong, the only remedy was to dismiss the charges. Yeah. And so that's why she's dismissing these. charge. Well, also because it's the law. But the fact that she just threw the Trump, Eileen Cannon thing in there, just made me a little bit extra happy. It's a bit like your reference in the

last block about, hey, wait a minute, be careful what you wish for, because someday the shoe might be on the other foot. Well, here, the shoe is on the other foot, my friends. Judge Cannon's decision being used here against Trump and his cronies. Yeah, the one that they fought for, by the way. his personal attorney, the one his personal attorney fought for, who now is the deputy attorney general, right? That's right. The judge then addresses Bondi's attempt to get into her DeLorean, fire up her flux capacitor, and retroactively appoint Halligan under different laws. The judge says, I reject Attorney General's attempt to retroactively confer special attorney status on Ms. Halligan. Regardless of what the Attorney General intended or could have done, the fact remains that Ms. Halligan was not an attorney authorized by law.

to conduct grand jury proceedings when she secured Mr. Comey's indictment. I've already concluded that Ms. Halligan's original appointment was invalid and that the Attorney General's attempt to retroactively bestow special attorney status on her was ineffective. As a result, the Attorney General could not have authorized Ms. Halligan, who was not an attorney for the government at the time, to present Mr. Comey's indictment to the grand jury September 25th. The implications of contrary conclusion are extraordinary, meaning if that were the case, If she could do that, the implications would be banana pants.

It would mean, the judge said, the government could send any private citizen off the street, attorney or not, into the grand jury room to secure an indictment, so long as the attorney general gives her approval after the fact. That cannot be the law. That's exactly right. Okay, so next, she slams the door on bringing charges again because of the statute of limitations. The government responds that the Attorney General's ratification was proper because she could have, quote, personally obtained a new indictment on October 31st using the grace period set forth in 18 U.S.C. 3288. That statute provides in part whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment.

may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information. The problem with that is the indictment had not been dismissed. It was still pending. Thus, the Attorney General could not have invoked Section 3288 at the time the ratification was made. Womp, so that kind of slams the door on that. And that brings us to why the judge dismissed without prejudice, because Comey asked to dismiss with prejudice. She says, Mr. Comey urges me to exercise supervisory powers and dismisses

indictment with prejudice. With prejudice dismissal is necessary, he argued, to vindicate the interests protected by the Appointments Clause and to deter the government from using unlawful appointments to effectuate retaliation against perceived political opponents. The government, on the other hand, argues that any dismissal should be without prejudice. For Mr. Comey, quote, comes nowhere close to showing flagrant misbehavior, substantial prejudice, or the unavailability of a lesser sanction as required by Bundy. Ultimately, the judge said, I believe the Supreme Court's Appointments Clause jurisprudence provides the answer to the with or without prejudice question. In two cases, both Ryder and Lucia, the court essentially unwound the actions taken by the unconstitutionally

appointed officer and restored the affected party to the position they occupied before being subjected to those invalid acts. I will do the same here. I will invalidate the Ultra Vira's acts performed by Ms. Halligan, dismiss the indictment without prejudice, thereby returning Mr. Comey to the status he occupied before being indicted. So she says, precedent says, I unwind him to where he was before he was indicted,

which means he can be brought up on charges again, if the statute of limitations hasn't passed, of course. But she can't dismiss here with prejudice because precedent tells her she can only unwind these problems to make him hold to where he was before the indictment came down. That's right. That's right.

I feel like it's a little bit overly, not conservative, but careful. You know, I don't know. I think Comey's teams, of the two arguments that they made, the far more compelling one to me is to deter the government from using on lawful appointments to effectuate retaliation

against perceived political opponents. When you put this case in the overall perspective of what's happening around this country, I don't know like judges are loath to do that most of the time. I feel like, and then on top of that, the evidence that we get from the other motions about Halligan, never bringing the actual indictment, putting it in front of the grand jury.

I mean, I feel like there's some conduct there that you could very credibly argue is flagrant misbehavior and therefore. None of that was before her. It really wasn't. It was really more of a, it was this time, this crazy timing issue that we've been talking about so much and all these motions going at the same time, if that one had gotten out in front and we had all that information in the record, maybe a little bit different result.

But also all those other motions are before Judge Nachmanoff and not before Judge Curry. Judge Curry was only to decide the lawfulness of her appointment. Yeah, but if her, if her process didn't get started quite as early as it had, the stuff in front of a knock of him off would have been in the public record by then. And it could have used it, but it's lost to this motion. But in any case, there you go. So the dismissal of Letitia James' case

gives the same reasoning, but there are different considerations in her case regarding the statute of limitations because, of course, it had not expired for her before she was indicted. Now, as in the case against Comey, the judge dismisses the Letitia James case without prejudice for the same reasons. Basically, that the Supreme Court precedent allows her to kind of unwind the charges

to put Letitia James back to where she was before the invalid charging took place. Now, of course, that means that the government can try again, but they'd have to find a prosecutor willing to present it to the grand jury, secure the indictment, and they would have to survive all the other motions to dismiss, including vindictive and selective prosecution. So we'll see if this Justice Department. can find anyone that's willing to risk their reputation and potentially even their license to bring charges.

Yeah. And her case is, you know, with all of this other evidence that we've gotten in the public to show that her rider was not invalid, she did have a second home. She did use for personal use. She didn't have a management company. She didn't collect rents for the entire time. Her family was staying there. if all of that evidence is going to be a losing case anyway. So yeah, go ahead. If you could find somebody else to bring the, like, give it a shot, you know. I mean, I wouldn't recommend it because like you said, Andy, you run the risk of potentially being referred to the Bar Association for discipline up to and including disbarment. So, you know, however Rule 11 sanctions end up working, I think it's going to be tough to find someone else to file these charges. And I think if they had somebody, they'd be refiled by now,

but they aren't. Yeah, I totally agree. I don't think she's going to find any EDVA veterans to step in front of this, you know, train. But, you know, she has been able to find prosecutors from other districts. And the question remains like, what kind of pressure is being put on those people? If you're just some AUSA out in, you know, I don't know, Sacramento, wherever, name your, name your district. Okay, probably not California district. I would nevertheless pick any other red state district. How much, and you get asked to do this, you know, is this the kind of thing you can realistically decline without kind of, you know, damaging your own career and causing all sorts of political injury, I guess? And we'll see.

We'll see what happens because they're not going to just let this one go away. No, and I think what they would probably, what they could do. do besides appeal, which I'm sure they will do. But in addition to that, I mean, they could always, remember Judge Curry, who dismissed this because Halligan was unlawfully appointed, said that Pam Bondi's attempt to appoint her as a special attorney for the Department of Justice can't be done retroactively. But that doesn't mean it can't be done now. Now, right. Pam Bondi can appoint Lindsay Halligan a special attorney at the Department of Justice. Under those three statutes that Jack Smith was appointed a special prosecutor and then have Lindsay Halligan take the

indictment back to a grand jury. Maybe explain to her that people can take the fifth and that she would need a warrant and other things. But, you know, teacher her lessons learned from her unlawful presentation to the first couple of grand juries she stood in front of. But nothing stopping Pam Bondi from appointing some loyalist, not as the U.S. U.S. attorney with advice and consent of the Senate, but a special prosecutor or a special attorney at the Department of Justice to take the case. Yep, yep, that's true. That is true. So that's what I think might happen, but we haven't seen it yet. All right, but Andy, that's not the only time this week that Jim Comey has come out on top in a battle with Donald Trump. We're going to talk about

that really frivolous shotgun pleading lawsuit that was filed by Donald Trump in 2022. against Hillary Clinton and folks like Klein Smith, yourself, Jim Comey, Orbis, who did the, you know, the APA research on Trump for the Clinton campaign, Sussman, all of these people. It was like 40 defendants. And, you know, we talked, we touched on it briefly last week, but we have an update. We have a ruling now from the 11th Circuit Court of Appeals. And we'll talk about that after this break. Stick around. We'll be right back. Welcome back. Okay, Jim Comey actually defeated Donald Trump twice this past week. On our last episode, we told you that Donald Trump went to the 11th Circuit Court of Appeals to try to revive his frivolous 2022 RICO lawsuit against Hillary Clinton and dozens of other defendants for allegedly plotting to tie his 2020 campaign to Russia. Now, I was one of those defendants, as was Jim Comey,

and a host of other people in the DOJ and the intelligence community that worked on the crossfire hurricane case and also the Clinton campaign's legal opposition research into the Trump campaign's ties to Russia. Yeah, that's right. We brought it up last week because a three-judge panel on the 11th Circuit heard oral arguments on this. Not only to revive the lawsuit that was dismissed

by the lower court, Judge Middlebrooks, as frivolous and a shotgun pleading, but also to argue against the $1 million sanctioned, fine that Trump and Alina Haba got to share, and the court ordered them to pay the defendants to cover their legal fees. The three-judge panel sounded very skeptical of Trump's demands, as we covered last week, but since that episode, as I said, they've issued their ruling. That's right. So the following reporting comes from law and crime. A federal appellate court on Wednesday handed President Donald Trump a collection of losses in his years-long effort to resuscitate a

failed lawsuit against Hillary Clinton and several others based on claims the 2016 presidential election was rigged against him. In a 36-page opinion, the U.S. Court of Appeals for the 11th Circuit upheld the dismissal of the lawsuit as to every name defendant and also upheld a nearly $1 million penalty in attorney's fees assessed against the 45th and 47th president and his attorney Alina Haba. Quote, many of Trump's and Haba's legal arguments, were indeed frivolous, the three-judge panel opined. Yeah, the opinion was penned by Chief U.S. Circuit Judge William Pryor. This is a super conservative guy.

He's like a real good friend to Clarence Thomas. He's also on this panel where U.S. Circuit judges Embry Kidd and Andrew Brasher, who were appointed by G.W. Bush, Joe Biden, and Trump, respectively. In March 2022, Trump filed that massive RICO lawsuit against Clinton. Clinton, the DNC, Debbie Wasserman Schultz, Jim Comey, you, like everybody. The original petition alleged a conspiracy in which the parties worked toward a nefarious scheme to discredit, de-legitimize, and defame the then-first-time candidate Trump. Like, no, you did that all by yourself, sir.

In September 2020, the litigation was dismissed by Judge Middlebrooks as frivolous, as a frivolous effort lacking substance and legal support, but rife with length hyperbole, and the settling of scores and grievances. So that was a... To Rich Trump responded, what's wrong with that? Yeah, he filed to try to get Eileen Cannon. He got Judge Middlebrooks instead at the district court level. So sorry.

But in the end, years of appellate life support could not save the case, despite several attempted interventions and one granted extension. The district court determined Trump had failed to state a claim. The appellate court endorsed that analysis of the case wholeheartedly. Quote, the district court ruled that Trump brought several frivolous claims, including a malicious prosecution claim without a prosecution, and a trade secret claim without a trade secret. The opinion reads, Trump also appended seven counts to his indictment, which did not allege any cause of action, and which the district court found were, quote, the high water mark of shotgun pleading.

Yeah. That's a rough one. Shotgun pleading is a sort of disorganized filing. that fails to give the opposing side fair notice of adequate claims or defenses. Here, the courts are effectively saying that Trump's lawsuit was a kitchen sink-style attack on its political opponents instead of a genuine lawsuit. Yep, yep. And notably, the appellate court pointed out, quote,

Trump leaves all these frivolous claims behind, making a total of 11 of his 16 claims he does not appeal. As for the five remaining claims actually being appealed, the opinion terms them untimely. and otherwise meritless. The president's loss was perhaps presaged by the attitude expressed by the appeals court during the hearing that we talked about, Andy. During arguments, prior mockingly told Donald Trump appellate lawyer Richard Klug, or is it clue, quote, I can read, I can read this complaint. It's a shotgun pleading. There's no question about that, is there? And while the initial dismissal was already on appeal, Trump and his attorneys moved to the district court.

court to reconsider each order in light of the report by special counsel John Durham, which a lower court declined to do and which was subsequently appealed as well. As for the sanctions, the appeals court echoes itself and its repeated invocation of the district judge's findings, finding no error here. Trump's attorneys filed the amended complaint in bad faith, the opinion goes on. Trump's attorneys give us no reason to conclude the district court clearly erred in that finding. That's, of course, the standard for reversal. This is kind of amazing. And the fact that their big one-two punch and trying to revive this thing was like trying to shoehorn into it, the John Durham report, which also did not conclude that we engaged in some sort of conspiracy in 2016.

Yeah, I don't know. I feel like that was not a very good strategy on the part of Team Trump lawyers. No, it's very nice, very vindicated. I'm assuming that this very conservative court judge's ruling, Judge Pryor's ruling, will make its way into any potential defense of criminal indictments brought to folks like you or John Brennan or anybody else who's being investigated for the Russia, Russia, Russia hoax, criminally, because he's trying to criminally investigate that now. And I'm assuming that this will make an appearance.

in any of those cases, if they get, if they even get past whoever he unlawfully appoints to bring those charges. But I think it's interesting that they upheld. I thought I was certain after hearing the oral arguments that there's no way they revive this case. But as far as the $1 million sanction fine was concerned, I thought maybe the Conservative 11th Circuit might be like, that's a little high, we're going to bring it down a little bit.

They didn't. They left it untouched and said it was appropriate. So, surprising ruling for me here. I agree with you on that one. And I also think it may have been, they wanted to stay in one lane on this. And their lane was, there's absolutely no reason to conclude that the district court got this wrong. And essentially they affirmed all the factual findings and the legal findings of the lower court. And this was one of those findings.

So if they had separated this out and reduced it, it could have led in. a little bit of light, the light of scrutiny, right? But by kind of sweeping the whole thing in one direction, I think they make it a much, much harder appeal now to the Supreme Court. Yeah. And I'm really glad that Pryor wrote this and was on this panel. Because it kind of quashes Trump's argument that this is, you know, activist, woke Marxist judges. Because Middlebrooks down at the district court level is not a Republican appointee. And so Trump would, you know,

oh, he's a activist, Democrat, judge. But the fact that prior, that judge prior upheld Middle Brooks's and another Trump appointee, Brasher, upheld this, it says to me that he's going to have a lot harder time. For sure. They upheld it and upheld

everything about it. And so when they now appeal this to the Supreme Court, which they will, I fully expect the court to just pass they're not going to get involved here yeah i don't want to yeah i wouldn't touch it if i would like leave us alone we have 9000 other emergency things that we have to we have to stay from lower court judges with no explanation we're far too busy come on to deal with this give us a break here all right yeah well hey next up is kosh petel's job in jeopardy we will discuss that and take listener questions after this final break stick around we'll be right back

Hey, everybody, welcome back. All right, one more story for you. This comes from Carol Lennig at all at NBC. President Trump is considering removing Kosh Patel as FBI director in the coming months, as he and his top aides have grown increasingly frustrated by the unflattering headlines Patel is recently generated, according to three people with knowledge of the situation who requested anonymity in order to speak freely. One might call it a boondoggle. Sorry, that's one of the places he went on the private jet, the Boondoggle Ranch.

Boondow Ranch, yeah. Now, Trump and the White House and his White House aides have confided in allies that the president is eyeing removing Patel and considering top FBI official Andrew Bailey as the Bureau's new director. That's according to three people familiar. I think he just wants an Andrew in there. I think he does. Okay. Patel is described as being on thin ice, and his ouster appears closer than ever with Bailey as the logical replacement, two of the sources with knowledge of the situation said, though Trump could change his mind in the weeks to come. On Tuesday, Patel was present at the White House for the annual pardoning of the Thanksgiving turkeys, where Trump publicly commended him, adding that he was, quote, very busy doing a great job. When several people applauded, the president said, see, you've got a following, Cash. I mean, that's all that matters.

So that's great. Everything's good. Some people clapped, people who I made to be here. Following publication of this story, White House Press Secretary, Caroline Levitt, posted to Twitter that it's completely made up. She said, when the fake news was published, she was actually in the Oval Office where Trump was meeting with Patel. That's awkward. Quote, I read the headline to the president, and he laughed, leave it, said. Levitt. He said, what? That's totally false. Come on, Kosh, let's take a picture to show him. You're

doing a great job. The picture showed the two men standing next to each other with smiles and each giving a thumbs up. Like, he's going to be like, oh yeah, no, they're right. You're fired. By the way, didn't I tell you that? I mean, someday, because it's bound to happen sooner or later, after he actually gets fired, I just imagine Cash is going to sit in his chair and just stare at that picture longingly. Looking back on the days. I'll be sending it to him. I'll mail it to him too. Yeah, basking in the son of his leader's approval. Okay. U.S. Attorney General Pam Bondi has been frustrated with both Patel and Dan Bongino, in particular over Patel's untimely social media posts boasting prematurely about case breakthroughs, which sometimes threatened to jeopardize

the investigations. A bad idea. Both Bondi and Deputy Attorney General Todd Blanche have been irritated by the continuing distraction of news coverage of his questionable use of taxpayer resources, multiple sources have said. The news reports include a self-styled whistleblower, flagging that Patel had used a government jet for what critics dubbed a date night to see his girlfriend perform in State College, Pennsylvania, and his use of the elite SWAT team agents for a security detail for his girlfriend, which was first reported by NBC. Oh, my goodness. Yeah, those early tweets that he made about, we have the man, we've got our man in custody when after the assassination, after the shooting, the school shooting, where Charlie Kirk was. And then to be like, nope, that's the wrong man. And then, oh, we've got another man. And then, oh, no, wrong man. Like, that's just embarrassing. But also this week, I think he gave a press conference. I saw him give a press conference where he said after the tragic show. shooting of the National Guardsman in the D.C. area on 17th and H there right by the White House,

he got on TV and said, we're going to track them down. We're going to do everything we can to hunt down this shooter, but they already had the shooter in custody. So again, just showing that he's not on top of any of this stuff. A little behind the curve. Yeah, a little bit. But Trump inserted Andrew Bailey, by the way, in the unusual role of co-depity director at the FBI in September, amid broad Republican concern about Bongino's lack of experience in the role. Andy, you and I talked at length about that because you were the deputy director and you'd never had a co-deady director. No one ever has. No co-pilot when you're the deputy director. I would say, I wouldn't even call it an unusual

role of co-de deputy director. I'd call it a never-before-existed role of co-dead deputy director, but that's just me, speaking as a deputy director. What do you know about it, Andy? I'm just have a minimal experience with it having, you know, I don't know, basically endured it for however long that was. It felt like 100 years. I look like I'm 100 years older for having had that job. But anyway, I digress. But under federal law, Andy, Trump can install Bailey as acting director of the FBI without Senate confirmation, but only after he serves in his current senior leadership position for at least 90 days.

Bailey was appointed on September 15th. Under the requirements of the Federal Vacancies Reform Act, Bailey could begin working as FBI director anytime after December 15th and served for 210 days without confirmation. Bailey previously served as Missouri State Attorney General and has earned high marks inside the FBI ranks who consider him a steady hand on the helm, which several internal critics argue Patel and Bongino are not.

Yeah. If that's the best thing you have going for you in your candidacy, I guess, to be FBI directors that you're not Patel or Bongino, that's a pretty low bar. I feel like just about everyone qualifies except Patel and Bongino by that state. Yeah, they're the last two on the list, right? Yeah. Okay, some breaking news, Allison, we just got this while we've been putting this show together. And that is that. Judge Bozberg, who recently reopened contempt proceedings, has ordered the government to submit declarations from all individuals involved in the decision not to halt the transfer of class members out of U.S. physical custody on March 15th and 16th, 2025. Now, remind us where that one comes from. Yeah, that's back the Alien Enemies Act case, where the two plane loads of folks went to El Salvador and those men, 230 to 250 of them ended up in Seacoat prison. Judge Bowsberg came in on an emergency hearing and ordered those planes to be turned around. One had not taken off yet. One had

and had not landed in El Salvador or hadn't landed at all anywhere, you know, where it was going. I think they were stopping in Honduras to and then on to El Salvador. But he ordered the planes turned around. And there's some semantics arguments that the DOJ is making about, well, the written order didn't say that specifically. And oral orders don't count. With the written order doesn't say it, it overrides the oral order. Just a bunch of BS, right? And recently, the Department of Justice threw Christy Knoem under the bus and said, it was her. She's the one who said after the pay dag, Emile Bovie and the DAG, Todd Blanche, advised her that, you know, to tell the courts to F off, basically, because that's what Emil Bovey told a group of lawyers about it. So he's reopening

these contempt proceedings after an en banc D.C. Circuit court sent it back down to him. And so that's kind of where we are right now. That is what this criminal contempt investigation is about in Judge Boseberg's court. So he's now asking the government for some information. right? That's right. So he wants declarations from the decision makers that weighed in on that decision, on that determination to let the planes continue. So the order apparently indicates that the declarations shall detail their roles in such decisions. The court must determine whether or not Secretary Nome or anyone else should be referred for potential contempt prosecution. Bong, bong. It's getting real down here. And I'll tell you, Bozberg,

is not going to, this thing's not going to just fade away. No. It doesn't matter if it takes a year, he's going to keep pushing to have this come to some sort of judicial resolution. Yeah. And I appreciate that about him. He is thorough, if nothing else. And he's very fair as well.

Those declarations now from including Christy Noem have to be provided to him by December 5th. That's this week. Wow. It's quick. Yeah. Quick one. Awesome. All right.

We will keep an eye on that because that's going to be that those contempt proceedings are going to be important. It's going to be important to see if he refers this to the Department of Justice where Pam Bondi will kill it or if he then appoints a special prosecutor, which he right now has the authority to do. But the Supreme Court wants to overturn that authority. They have said as much in recent cases, but it still exists. It's going to be an interesting case to follow. But yeah, he's going after criminal contempt for disobeying. a court order. He's had it judicially up to here. All right. What do we have for listener questions? It looks like we have a little bit of time to answer a question or two. And if you

have a question you want to submit to us, listeners, all you got to do is click the link in the show notes. It'll take you to a form to fill out and you can submit your questions. What do we have for questions this week, Andy? Okay. So this week, like many weeks, I picked this question because so many people are writing in and expressing like similar questions, or questions with similar themes. And that theme is like, and I get it because people are outraged by what they see these courts doing and what DOJ is doing in these court actions and the vindictive prosecutions and all this stuff.

And I think as like law-abiding people, our instinct is like, well, that's not fair. And can the person who's been victimized by this, can they get. civil damages. Can they turn around and sue the prosecutor or a DOJ or the president or somebody like that? So this one comes to us from Cosmo. Cosmo says, I love you guys. Thanks for helping make sense of this stuff. First, I realize that the Comey case may never get to the stage of arguing selective and vindictive prosecution. If it does, though, I wonder if there is some civil liability incurred by Trump. If the Comey indictment is squashed by a ruling that it was selective and vindictive, is Trump liable for the cost of the defense?

He obviously directed the indictment as a citizen. Being selective and vindictive is not the job of the president. There's no longer a viable government presumption of regularity. Could Comey sue for the cost of his defense? So the short answer is no. And the most common answer in all of these questions is no. The only way to sue the government in situations like this, if you've been investigated or prosecuted or even unfairly imprisoned,

that sort of stuff, is to bring a case that's known as a Bivens lawsuit. The, first of all, the president has incredible immunity. It's, he doesn't have to respond to civil suits. He doesn't have to, you know, there are very limited circumstances in which you can reach out to the president in the course of a civil lawsuit. Other government officers, and that's everyone from like cabinet members all the way on down to like FBI agents and stuff like that, they also enjoy a degree of civil immunity. The only way you get through that is with a Bivens suit. And a Bivens suit is basically

an individual, it can't be done on based on a class, has to be an individual who sues an individual government officer for violating a specific constitutional right. And the violation has to be like knowing and willful. It can't be just a mistake or, uh, or negligence. It has to be like willful or reckless conduct that violates rights. The times that this is done successfully are times when you, maybe

when you have like use of force cases where people are subjected to you know, you know, are brutalized in the course of being arrested or something like that. Those are the kind of the easiest fact scenarios

in which you can prove that very visceral of violation of a constitutional civil right. They're tough cases. They come in very limited circumstances. And I don't really see a viable course here, even assuming Comey wins on the vindictive prosecution argument, which he might still, we don't know. There's a lot of wiggle room.

Courts are loathe to go after prosecutors for basically making bad decisions in the course of a prosecution. Yeah, like when I sued the government for my wrongful termination, I can sue for, you know, wrongful termination based on certain things. And I could argue punitive damages, et cetera. And at the time, I sued the Department of Veterans Affairs, the Secretary of Veterans Affairs, and Donald Trump. They pulled Donald Trump.

They pulled the secretary off the lawsuit because of Bivens. And so I wasn't able to get around those. So now my lawsuit is just against the department itself. and that's the most common way this happens. Now, you can file, at least Trump has administrative claims with the Department of Justice. He wants, what, $230 million or something for his wrongful prosecution brought by Jack Smith. Or for the Russia case, which, according to the 11th Circuit, he has no claim, but whatever. Right.

No, he's actually only filed for the Jack. Smith stuff. And those are administrative claims. And that, Cosmo, that's decided by Pamela Joe Bondi and Todd Blanche. So the answer would be no there too. I mean, I'm assuming Jim Comey can give it a shot. Yeah. That's like an F, that's how you get past like the agency's immunity, which is under the Federal Tort Claims Act, you have to file that claim first. And then the Justice Department gets to decide. They could just say, yeah, you're right. And then come to some sort of a settlement with you, a monetary settlement, or what's far more likely to happen is they'll say, no, you're not entitled to that relief, and we're going to fight you over it.

At that point, you can then turn around and sue them in federal court, and then the case goes forward and who knows what happens. But it's, you know, when you're Donald Trump filing that claim to Pam Bondi, your hand-picked facilitator, I'm sorry, Attorney General, you've got a pretty good chance that she's going to just agree to the claim you filed and hand you the money, especially since you said as president, as he did, I guess I just get to decide to pay myself. Yeah. Well, pretty much. That's how that goes. Yeah, that's a hugely problematic, but not for this administration. There's much that is not problematic for them when it comes to corruption. All right, we've got a minute left. Do you

think we have, do we have another question or are we tapped out for the day? I think we can probably go one more. This is, this comes to us from Corey. Corey had two questions. One of them was, how is it possible to pass a law making something illegal retroactively? Jack Smith subpoenaed phone records legally. So how can Congress rewrite history to make these actions now something that somehow warrants recompense? He's referring there to that piece that Congress inserted into the recent legislation that they passed to get the government reopened, granting those lawmakers in the Senate whose records were subpoenaed by Jack Smith in the first few, you know, the early days of his January 6th investigation, giving the, so this piece of that law gave those senators the right

to submit a similar claim for damages against the government. So. Yeah. And it's not making it Exactly. Making what Jack Smith did illegal going back to 2022. It's making these senators be able to file for damages going back to 2022. And there's a lot of laws like that. There's the New York rape survivor law. For a year, they were like no statute of limitations. It goes for your whole life. You can file a civil suit for damages. It's kind of like what this is. But I will say this, the House of Representatives voted unanimously to take that out of, take that provision. out of the bill. Yeah. So kudos to them, I guess. You won't hear me say that very often. I was shocked by that. I thought for sure they wouldn't touch it. You're absolutely right about this, not being making something illegal retroactively. First of all, we know Jack Smith didn't violate the law. He used a grand jury subpoena, which is the legal way to do this. There is no violation there whatsoever. But also the Constitution forbids doing exactly what you described here, Corey. it would be called an ex post facto law. You can't, after someone commits an act, then pass a law

saying, well, that act is illegal. It doesn't work that way. It's actually prohibited by the Constitution. But what, as you said, hey, gee, what they did here was they didn't opine on the legality of what Jack Smith did, even though the language they used is kind of leaning in that direction. All they did effectively was created a cause of action for these individual centers. Yeah, so this new law, it's not actually making something illegal ex post facto, and it wouldn't mean that you could charge Jack Smith for getting those records. Correct. Retroactively, which kind of, I think, kind of goes toward a little bit of any follow-up question with regard to, you know, how does that trial even look? It wouldn't be a criminal thing.

So it's not making what he did illegal. it's just giving people the right to sue about it. That's right. Great question. Thank you all so much. Again, there's a link in the show notes to submit your questions. I hope everyone had a wonderful and safe holiday however you celebrate. Also, people who had empty chairs at the table, my heart out to you and we see you and

acknowledge that and just hope that you were able to share some food and some good times with the people that you care about, which is what the holiday is about to me. Yeah, for sure. That's such a great, that's such a great reminder. And for all those people who maybe just your people were out serving this country, somewhere overseas, somewhere where they weren't able to get home, whether it's in the military or in law enforcement or in the intelligence community, thank you. Thank you for their service. Thank you for your support to all of them and makes it tough to get through these holidays, but we appreciate what you're doing. Yeah, thank you for your service and sacrifice.

Everybody, we're going to be back in your ears next week, and it's going to be an interesting week. I'm looking forward to those declarations in the contempt Bosberg situation from folks like Christy Noem. Drew N-Sign could be in the hot seat. We might see some testimony coming up pretty soon. That's going to have to be sorted. it out as well because Judge Bosberg ordered testimony, recommendations for how that

is going to be conducted. So we'll keep an eye on that. And perhaps a refiling or an appointment of special prosecutor, Lindsay Halligan at some point in the future. But thank you again for listening. We really appreciate it. And thanks for your questions. And we'll see you soon. I'm Alison Gill. And I'm Andy McCabe. Unjustified is written and executive produced by Allison Gill with additional research and by Andrew McCabe. Sound design and editing is by Molly Hawke 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.