Jack - Episode 107 | Wray Obeys in Advance

Episode Date: December 15, 2024

This week; Chris Wray announces that he will resign as FBI Director before Trump would have to fire him; Trump names Harmeet Dillon to head [upend] the Civil Rights Division at DoJ; DoJ OIG releases its January 6th report; as the plus listener questions.Thanks to GiveWell for sponsoring our showGo to Givewell.org pick PODCAST and enter Jack at checkout. Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to knowRule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew 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

MSW Media. Thanks to GiveWell for supporting our show. GiveWell has now spent over 17 years researching charitable organizations and only directs funding to a few of the highest impact opportunities they've found. If you've never used GiveWell to donate, you can have your donation matched up to $100 before the end of the year or as long as matching funds last to claim your match go to give well org and pick podcast and enter Jack at checkout I signed an order appointing Jack Smith

And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor The events leading up to and on January 6th, classified documents and other presidential records. You understand what prison is? Send me to jail. Welcome to episode 107 of Jack, the podcast about all things special counsel. It's Sunday, December 15th, 2024. I'm Alison Gill. And I'm Andy McCabe. Okay, today we're going to discuss Liz Cheney's response to Donald

Trump's call for the members of the January 6th committee to be jailed. Also, Christopher Wray stepping down from the FBI, as well as some Department of Justice Inspector General reports. Yes, good old Michael Horowitz, your best friend. Here we go. And I'm looking forward to discussing the ex-FBI informant, Alexander Smirnov's guilty plea. But first, because, you know, I mean, it's not special counsel Jack Smith, but it is

a special counsel investigation. That's a totally worthy Jack subject, I believe. I think so too. We've talked about Smirnoff before on the show. But first, let's talk about Trump's pick. We're not doing Good Week, Bad Week anymore. It's too depressing. It's just all, bad week.

We could just change the show to call it, just to call it bad week. Maybe that's the new name. Constant bad weeks. Bad week. It's just that all the time. But today, this week in bad week, Trump nominated Harmeet Dhillon to head up the Civil Rights Division of the Department of Justice. She will no doubt fiercely defend the civil rights of white people.

Politico writes, Donald Trump's pick to lead the Civil Rights Division at the Department of Justice built a national profile as the ultimate San Francisco contrarian representing conservative college students at UC Berkeley, a Google engineer fired for opposing diversity efforts and churches forced to close during the pandemic. That's who she represents and stands up for. All right. Harmeet Dhillon, an attorney and the Republican Party official who lives in San Francisco has four years played a central role in culture war legal battles over diversity and free

speech and COVID closures in California and nationally. She's also been a very fierce Trump loyalist from the start. Her ideology and track record of taking on splashy conservative causes in the golden state likely signal a fundamental shift, that's putting it mildly, in the Department of Justice's approach to civil rights, upending conventional ideas about whose rights the division is focused on protecting. She certainly brings a different lens. That's what Mark Garagos, a friend of Dylan and famed Los Angeles trial attorney, whose past clients include Hunter Biden and the Menendez brothers, quote, the civil rights division to my mind has kind of languished. Okay.

Longtime allies said, Dylan, if she's confirmed by the Senate, which I think she probably will be, is likely to use the division's powers to target universities for alleged discrimination against white students or Jewish students, challenge social media companies that quote unquote censor conservative speech and ensure that left leaning groups are prosecuted in cases of political violence. So that's good. Yeah. She Dylan's nomination, though she faces few obstacles in the GOP controlled Senate has

sparked worry among some legal observers who say her tactics could paralyze the DOJ's long running efforts to protect voting rights and other safeguards for minority groups. Quote, she'll bring a non-traditional approach to civil rights cases. I mean, that is the understatement of the day, I think. She labels them as woke and as if to view them in a derogatory way, said Laurie Levinson, a former federal prosecutor and professor at Loyola Law School in Los Angeles.

Dillon's firm, The Dillon Law Group, Inc. and its nonprofit arm, The Center for American Liberty, have gained notoriety for their challenges to California policies during the pandemic when they won several US Supreme Court rulings against the state's lockdowns. Her ties to Trump go back much further. In 2019, Dylan represented Trump's campaign in a lawsuit to block a California law signed by Governor Gavin Newsom that would have required presidential candidates to release their tax returns to appear on the primary ballot.

Trump won on constitutional grounds. Yeah. Yeah. This goes on here to say in the last few years, Dylan has leaned into culture war battles over transgender rights in California and elsewhere. Her firm has sued to block the state's efforts to prevent school districts from requiring teachers to notify parents if a child comes out as trans at school. And she also represented a detransition

activist suing a California hospital chain over allegations of medical misconduct. Now that's a likely preview of how Dylan would reshape the DOJ's stance on civil rights issues related to LGBTQ plus issues, including litigation around Title IX regulations governing women's sports in schools that receive federal funding. Rick Chavez Zubur, a Democratic member of the California Assembly and an attorney, said Dylan's nomination is quote essentially given the middle finger to the enforcement of civil rights in this country. He said the concern is particularly pointed for LGBTQ plus people, as well as young undocumented immigrants, women who need access to abortion care, and the voting rights of people of color. And you know, I mean, let's talk a little bit too, because

something that's not mentioned in this article, is it the civil rights division that does consent decrees with police departments? Yeah, I was just thinking about that as you were going through the end of that article there. They are, I think, generally the civil, the consent decrees come out of the civil divide, like the civil side of DOJ, right? And the civil rights division is a part of that, that half of the DOJ. They definitely have a role there. I don't remember exactly what the final, who gets the final signatory on those things, but most consent decrees come about because there are concerns that police officers in different cities and towns and states might be violating the civil rights

of the citizens there through things like abuse of force or all kinds of other ways that minorities and people who are underrepresented and disadvantaged are being taken advantage of by police departments that are improperly monitored and controlled and kind of abusing the constitutional rights of the people they're supposed to protect. So yeah, they're a very big part of that process. Yeah, because I'm, I'm imagine, like I saw a couple of stories this week about, uh, certain police departments, um, that, you know, were, had recently been investigated by the department of justice and consent decrees, uh, came out, um, for them to, you know, uh, change their policing habits. And I just thought to myself, well, that's going away. Because during President Trump's first term, I don't think there were any investigations

into any police force and anything like that, like any consent decrees. And we have a bunch of them on the books and I imagine they'll just be yanked and canceled. I also think, you know, President Biden, his DOJ had put a bar on the use of chokeholds for federal law enforcement agents. And I think that that kind of stuff will probably also be repealed, especially in the face of somebody coming in who believes it's the white people who need protection from DEI and transgender people and, you know, from marginalized communities. I just don't see them even taking up lawsuits or, you know, we're going to get, we're going to get to hear John Sauer argue a lot, I think. Yeah. So the investigations that ultimately end in a consent decree are not like any old investigation. They take a massive amount of resources and time and attention.

So the decision to initiate an investigation like that with an eye on the fact that it may end up in a consent decree is a big one, right? So they're just not going to be initiated. Like the trump administration in the first term was very upfront about the fact that they were interested in doing that anymore sessions attorney general sessions came right out and address it said like we're out of that business basically we're gonna let the police departments do what they think is right and so they just never initiated those investigations and therefore you never had any new consent decrees the existing consent decrees are actually overseen by the federal courts. So it's not quite as easy as just like shutting them down and walking away from them because their court monitored agreements. But certainly, you know, the DOJ

could say, well, we're satisfied with the progress they've made. We think they've checked all the boxes, everything's good now, we're prepared to walk away. So, yeah, the ones that are out there could certainly be truncated and have the legs cut out from underneath them. And I think you can expect that we won't see any more for the next four years. Yeah. And, you know, I'm just glad we have groups like Democracy Docket, who's going to be doing a lot of voting rights lawsuits among other things. But yeah, I really think that one of the ways to protect our communities is going to be through the courts, through litigation and through lawsuits. I think that's probably the way to protect federal civil service jobs

as well, is to take up the mantle of EEO and the administrative law judges and use that and then eventually the federal court to at least delay or throw sand in the gears of the dismantling of government. But having someone like Hermete Dillon come in and run the Civil Rights Division, it's just, it's a sad day for me to think about what she'll do and what she won't do. Yeah, it's a very intentional choice, right? It's not just like someone who is a well-known lawyer with a civil rights background, someone who has a background in basically taking the exact opposite stance that that division has represented since its creation.

But that's what people voted for. I'm not saying that makes it right or good in any way, but like, you're going to find out what that's all about. Yeah, there will be a lot of finding out. That's for sure. Yeah. All right. I want to talk to you about Chris Ray, but I know you're super excited to talk about

Chris Ray. Who's that? But yeah, who? But we have to take a quick break. So everybody stick around. We'll be right back. If you're the type to read every review before a purchase, double check ingredients on your groceries, measure twice, cut once, maybe even tackle the occasional terms and conditions,

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Make sure they know you heard about GiveWell from the Jack podcast to get your donation matched. Again, that's givewell.org to donate or find out more. Welcome back. Okay, let's talk about the director of the FBI, Christopher Ray. NBC News reports, FBI director Christopher Ray plans to resign at the end of the Biden administration as president elect Donald Trump takes office, Ray told bureau employees on Wednesday. Sorry. Oh, geez. Okay. Quote, after weeks of careful thought, I've decided the right thing for

the Bureau is for me to serve until the end of the current administration in January and then step down, Ray said, according to prepared remarks. My goal is to keep the focus on our mission, the indispensable work you're doing on behalf of the American people every day. In my view, this is the best way to avoid dragging the Bureau deeper into the fray while reinforcing the values and principles that are so important to how we do our work. Now, Trump has already said he will nominate Cash Patel for the position of FBI director, which typically is for a 10 year term, part of a post Watergate reform intended to make FBI directors less beholden to the whims of presidents. The irony.

Yeah, but I have a feeling it's going to be a 210 day term for pretty much every acting person he puts in any position, which I think he might try to do. I think he might make Patel a deputy on day one and then in 90 days. Bomp him. Bang. Yeah, that's possible. He's the director. It's under, let's see,

3345A1 allows him to do that of the Vacancies Reform Act. A senior FBI official told NBC that the current plan is for him to stay there until January 20th, like on the day. After that, current FBI Deputy Director Paul Abbott, is it Abbott? It's a bait. It's a bait? Okay. Will be named acting director and will stay on until a new FBI director

is confirmed or shoved in there. Trump indicated in a recent interview with NBC News and the press that he was not thrilled with Ray, saying Ray invaded Mar-a-Lago, a reference to the 2022 FBI search for classified documents that led to his indictment in 2023 on seven criminal charges and that he wanted someone in place to straighten out the Bureau. Now I just want to say, Chris Ray didn't want to invade Mar-a-Lago. That's the problem. The invasion didn't happen quickly enough. No, he wanted to just subpoena them. And then finally Merrick Garland was like, bro, we're going in. And then he's like, okay, but we don't want to wear our jackets. And we don't

want to look in locked closets either. So and we want to call the lawyer ahead of time. Like just made, it was like the opposite of invading Mar-a-Lago, in my opinion. Quote, I mean, it would sort of seem pretty obvious if cash gets cash, cash gets in, he's going to be taking somebody's place, right? That's what Trump said responding to a question about whether he would fire Ray if he didn't resign on his own. Ray, a Republican, was appointed by Trump in 2017 after the then president fired James Comey as FBI director. Comey's departure sparked the appointment of Robert Mueller, a special counsel to investigate the Trump campaign and Russian interference in the 2016 election. Under normal protocol, Ray's term would expire in 2027. Although Mueller is

the only person to have served a full term as FBI director since the 10-year post-Watergate norm was put in place, only two FBI directors, including Comey, have been pushed out. That's an interesting bit of trivia. I didn't know Mueller was the only person to serve a... I think he actually was extended by a couple of years. He did 12 years. They had to pass an act of Congress to get him in the extra two years. Republican confidence in the FBI has plummeted in the near decades since Trump came down the golden escalator in 2015 and announced his run for president of the United States. While the Bureau has traditionally been a generally

conservative leaning organization filled with law enforcement and military veterans who have an advantage in the FBI hiring process, Trump and his allies on Capitol Hill and in the conservative media have portrayed the FBI as a hotbed of liberalism and the home of the deep state determined to take him down. I don't know how to deliver that with a little bit of hyperbole. It's so categorically absurd. Yeah. Now I don't like this move. Here's some, let me give you some more Ray quotes. He says, I love this place. I love our mission. I love our people, but my focus is, and has always been on us and doing what's right for the FBI. When you look at where the threats are headed,

it's clear that the importance of our work keeping Americans safe and upholding the Constitution will not change. And what absolutely cannot, must not change is our commitment to doing the right thing the right way every time. Our adherence to our core values, our dedication to independence and objectivity, and our defense of the rule of law. Those fundamental aspects of who we are must never change. That's the real strength of the FBI, the importance of our mission, the quality of our people, and their dedication to service over self. It is an unshakable foundation. I'm sorry, all this service over self, unshakable, I'm sorry, all this service over self unshakable facing down the, but he's resigning, unshakable foundation that stood the test of time and cannot be easily moved.

You're quitting, bro. And it, you, the men and women of the FBI are why the Bureau will endure and remain successful long into the future. You all, because you'll be here, I won't. I hope that's true. I think that it is the people who work at the FBI that could have kept it together. But I think it's a real chicken move for him to leave. There was, by the way, a right-wing blogger and then also David French, I think, who said that this is somehow some strategy to prevent Kash Patel from being...

It's not. It's not at all. The opposite is true. In fact, Donald Trump would narrow his ability to use acting appointments, interim appointments, by having to fire a ray. Because you can only really replace somebody who's resigned or died or is incapable of doing the job. So he could, if he had to fire a ray, he could be sued. Yeah, he has to fire him for cause.

And so there is a requirement of coming up with some sort of articulation that would satisfy his cause. Look, it's absolutely the wrong decision by Ray. I mean, there's no, there's no question about it. And what it comes down to for me is there's all kinds of hypocrisy and nonsense built in here and I'll go through that in a minute. But the main thing here is the principle and it is the principle of FBI independence. We know what the FBI looks like when it is closely tied to the presidency. We had that for 36 years under J. Edgar Hoover, the guy who used the FBI and its awesome powers of investigation and surveillance and

everything else to terrorize enemies of the presidency. And I say the presidency, I should say plural because he did it for every president he served, Democrat and Republican. And, you know, it was the work of the church committee and the Pike committee that exposed the FBI abuses of that era. And that's what led to the post Watergate reforms. So it's been 50 years since the FBI put that behind us. And the way we did one of the things that happens, Congress passed a law mandating the 10 year term for FBI directors.

And the idea was it would ensure that the director served different presidents and stayed around long enough to be unobligated politically to the president that appointed him. So for Ray to leave knowing that he's going to be fired is undermining that principle, that bedrock, that core of the FBI's independence. Were he to stay? I mean, he'd probably get fired on day one or two or whatever. But doing it, forcing Donald Trump to go on record as the guy who destroyed

that norm, who violated that principle. That is such an important thing. It's important for the FBI long-term. I think it would be important to Christopher Ray's legacy as director. And I can tell you it would be important to the FBI people. That's what I was concerned about. If that were my leader. He could just as easily have stood up on Wednesday and said, I know there's been a lot of talk. Here's what I'm asking you to do. Go back to work.

Keep your head down. Keep protecting the country. Keep upholding the constitution. That's what we do here. That's what I'm going to do. I'm going to keep serving until the sitting president tells me to leave. The sitting president is Joe Biden. He hasn't asked me to leave.

I'm sticking around until I hear from the next guy. That would be like a hell yeah, buddy. We've got it. We carried him out on their shoulders. They would, people That would be like a hell yeah buddy. We've got you. They would have carried him out on their shoulders. People would have been like, that's right. We do the right thing even when it's hard, even when it's uncomfortable. It is always worth doing the right thing, even when it costs you personally.

Now Chris Ray, whether he's fired or resigns, it makes no difference. He's going to go back to rock star legal practice, probably going to move back to Atlanta. He made $9 million the year before he became director. He was estimated worth by the Wall Street Journal at that time was somewhere between like $23 and $42 million. That guy is going to be fine. Yeah. And it's not like Trump firing you. No.

Means you can't ever get a job again. Everyone would know that he had stood up for the principal. He stood up for the men and women in the FBI and he'd suffered a somewhat ignominious departure as a result. And it would have made him all the more the FBI hero. But gosh, to leave because you don't want to drag the FBI further into the fray. I got news for you, Chris. They're in the fray.

So are you. That's not going to change. It's really disappointing. Garrett Graff wrote a great piece in Politico about it today. All the historical references that you would expect from a guy like Graff. It's definitely worth reading. Yeah. It's just, it's just very disappointing. I don't think there's anything that can be done to stop the arrival of Cash Patel as director. Ultimately, I actually

think he's got a very good chance of getting confirmed by the Senate. Oh yeah. There hasn't been a single person who's said something negative about him, except me, and I'm not Senator. So I mean, he's got no sex trafficking investigations over his head. He's got no allegations of rape, no allegations of being drunk at work or, or getting kicked out of charities for financial mismanagement. I mean, he's a rock star. Is he a felon? No felonies.

He's a rock star. How is he even nominated? He passes the incredibly low bar of high level appointments. So yeah, I don't, and there is so much momentum on the Hill behind this false idea that the FBI needs to be gutted and totally changed and fire everybody. It's out of control. You know, it's a war with conservative America or something. So I feel like he's, you know, he's probably more likely than not would get

it confirmed. But that's just my analysis. Well, anyway, yeah, I'm with you. I don't get why Ray just chickened out and left. But also this week, we had a couple of DOJ Inspector General reports come out. And you know, Jamie Raskin wrote a letter to all the inspectors general except Kufari because he wants Biden to fire Kufari. He wrote a letter to all of them saying, Hey, let me know if the Trump administration tries to remove you or if they're shenanigans, I'm paraphrasing, or if they're trying to hamstring you like he did in his first term.

But the DOJ IG Michael Horowitz released a report that concluded this week that there were no FBI agents at the Capitol on January 6th. I can't believe there was an investigation into this. But he destroying and debunking a Fox News conspiracy theory that the insurrection was actually caused by deep state FBI agents. They called it the Fed's erection and there were ghost buses. The fed's erection. Of agents that were the cause of the January 6th. And so Michael Horowitz, Inspector General of the Department of Justice, had to take time out of his day to look into it and say, no, there were no FBI agents at the Capitol on January 6th.

Yeah, he actually had to take four years to do it. Four years? Yeah, this- I wonder how many more reports are going to come out in the next 20 years. This is amazing. So after the insurrection on January 6th, IG stepped forward and said, we're going to do a massive and wide scope investigation of the FBI and how they prepared for January 6th or didn't, and how they responded to it or didn't everything. And then Christopher Ray, our man Ray, used the existence of that investigation as his reason to do nothing. No internal FBI investigation

trying to figure out whether they had made some mistakes on their own and how they should maybe fix those mistakes and do better next time. Nothing, no hot wash, no after action, zero. And when asked about it, he consistently said, well, I can't get in the way of what the inspector general is doing. And that went on and on and on for four years. And at the end of four years, we got an 88 page report that made two findings.

The one that you mentioned, there were no undercovers there and the small number of informants who were there, I think 26 in total, basically did nothing wrong and it certainly didn't incite the insurrection. They were there reporting on three of them were asked to attend by the FBI so they could report on the activities of active subjects of domestic terrorism investigations who were participating in the events. And the other 23 just went because that's who they hang out with. That's their world.

So that was the one holding. And the second holding was, although the FBI did a great job of preparing for January 6, actually say that, they didn't ever send out a collection requirement asking all of their domestic terrorism sources to query their subjects and report back as to anything they were hearing about preparations or intents for January 6th. Nothing, never even asked their source base, 23 of whom went independently. But then when asked after the fact, they told Congress and they told the other agencies that they had asked and they had not received any information.

So that's what we got out of a four year broad scope investigation. Other than cover for Chris Ray for four years, this thing was useless. There should have been a DOJ one as well. Cause there were two, well there were a bunch of IG investigations opened after January 6th, but one was to look specifically into the Department of Justice.

That was one that Merrick Garland was, remember when he was questioned, I think in November of 2021 in Congress and he was like, yeah, whatever their recommendations are, they're going to go and do, and they're going to go and investigate what happened at the Department of Justice and if they played any role in the paper coup, right? And we know they did because it's all over, you know, Jack Smith's now dismissed case with Jeffrey Clark, which ended up having to be taken out because it was dubbed immune just randomly.

You're never getting that. You're never getting that Michael Horowitz is gonna wade into that water now not a chance The entire town is being run by the people who want to forget about January 6 having failed to pin January 6 on the FBI Now they want to just forget it pardon everybody and walk away. You will never see that report from Michael Horowitz. Well, he did come out with another report this week from your colleagues, right? Hannah Rabinowitz, Evan Perez, Caitlin Polance over at CNN. Yes he did. So this report was released where the Justice Department secretly obtained phone records from two members of Congress and 43 staffers, including

Kash Patel, everybody's favorite, uh, president-elect Donald Trump's pick to lead the FBI during sweeping leak investigations during Trump's first term. According to a watchdog report released on Tuesday, the new report from the justice department's inspector general raises concerns about how the department tried to root out reporter sources from a sprawling and bipartisan list of federal employees who had access to classified information because of their job. Patel and the two members of Congress are not named in the report but two sources familiar with the matter tell CNN that Patel was targeted along with Democratic reps Adam Schiff

and Eric Swalwell. Patel was a staffer Democratic reps, Adam Schiff and Eric Swalwell. Patel was a staffer for the GOP-led House Intelligence Committee at the time, and Schiff has since been elected to the Senate and took office on Monday. Prosecutors also sought records, including emails from journalists at CNN, The Washington Post, and The New York Times,

according to the report. The report found that DOJ investigators issued a broad sweep based on who may have had access to the sensitive information that was leaked. So wait, Trump's FBI spied on Cospitelle? Yes, I guess. I mean, wow, I was kind of knocked out by this as well. It's a complete and total violation of the DOJ's media investigations policy as formalized by Eric Holder and like... Which has since been beefed up, I think. By Garland.

They're trying. Yeah. Garland beefed it up and then they're trying to even pass something else the press act in Congress right now Yeah, which is pretty bipartisan Lee supported But I mean this is this is wild And I feel like people keep Somewhere I've heard and I can't remember exactly where I usually have my sources cited, but that these were line prosecutors these weren't like leaders, like DOJ leadership, like Bill Barr didn't know about it. Yeah. So the IG points that out in the report that these policies- Maybe that's it. Maybe I just read the report.

The policies were violated because, you know, there are exceptions, you exceptions, the possibility of an exception or a release from the policy if you have to get the approval of the attorney general to subpoena these sort of records. And of course, no one did that. It's just like rogue. How rogue was it? That media leaks task force or whatever they called it, which was demanded by Jeffrey Sessions, then attorney general, and put under like his exclusive kind of supervision

and run by former Washington US Attorney's Office prosecutors. The idea that they were doing these things without the sanction and approval of the attorney general is kind of far-fetched for me to believe, to be perfectly honest. Same, same. Like who's going to be like, you know what, I'm in the FBI. I got a lot of power.

I'm going to check out that Cash Patel. He seems weird. And I'm going to look into Swalwell and Schiff and that's an odd group. I'm, I would be also interested to know of the 43 staffers, how many were democratic staffers and how many were Republican staffers? Cause this is just a weird sweep, but I think what they were, they were mostly just targeting the media. It seems like, and, and perhaps somebody like Kash Patel, who's kind of likes attention, might be somebody

that would have leaked information to the Washington Post or CNN. I mean, there were New York Times, ABC, there were several news media organizations. One Washington Post reporter had all of her emails and phone stuff taken. And we talked about this in the Jack Smith stuff. When the FBI or the Department of Justice wants to get to some third party phone records, there's a rule that allows them to do that without informing the person who they're going to get the stuff from. This reminds me of Twitter when they got all of Donald Trump's Twitter account information and Elon was like, I sued so that he could tell Donald that they were getting all of

his Twitter stuff. Very common that you in a, in a sense sensitive investigation where you serve a subpoena on, let's say a phone company for like telephone metadata records, you also serve with a non-disclosure order that prohibits the phone company from revealing to the subject of the search or the subpoena that there's been a subpoena executed. Because if that's the subject of your case and you're trying to do like a kind of a, you know, classified intelligence case or something, you don't want them to know that they're under investigation.

But you have to meet a threshold of articulation as to why the service provider can't let their customer know what's happened. So one of the things the IG concluded in this report was that even the articulation in the, so they did use those sort of nondisclosure orders with these subpoenas or at least some of them. And the articulation was like totally non-specific. Like it had nothing to do with the actual case. It was just kind of like, yeah, you should not tell them because it might end up in some harm, you know, something like that. Which the IG kind of pointed out as like another violation of the process, I guess.

And then step back for a minute and let's ask ourselves, whatever happened to this broad scope, incredibly invasive investigation in which journalists' records were scooped up in ways that we haven't seen in years? What was the result of that? How many people got indicted? How many great leakers of classified information did we hold accountable? They found out all the leakers were in the Trump administration. Yeah. Awkward.

Oh, yeah. Oh, it was, it was cash brutality. Want to do anything about it? No, let's not do anything about it. You have several hundred records in his, in the bathroom and the stage at his, at his private home. Right. Well, I mean, if you have a minute, folks listening, give your senators a ring and give your house reps a ring and tell them you want them to pass the Press Act because

that'll beef up. Not that these norms and rules and laws are going to be totally followed by the next administration, but it gives you a foundation on which to sue. And that's kind of like I said, the whole point going forward in this administration is we just got to death by a thousand lawsuits. So call them up, tell them that you want them to pass the Press Act. It's got some pretty bipartisan support So even if your senators are jerks, you can still give them a call and and and tell them that you want it to pass So, all right. We have more to get to in this show

Particularly, I can't wait to talk about our friend Alex FBI informant Alexander Smirnoff But we have to take one more quick break. So stick around, we'll be right back. ["The New York Times"] Welcome back everybody. So this is a show about special counsel Jack Smith, but occasionally other special counsels will get a mention. And today that special counsel is David Weiss. He was put in charge of the

Hunter Biden prosecution under Donald Trump and then continued his work under Merrick Garland. He charged Hunter Biden with flimsy tax and gun charges that are rarely, if ever, brought against anyone not named Biden. And then Joe Biden pardoned him for these charges and they've been dismissed. One judge was real mad about it, but too bad, so sad. But Weiss also brought another case and this one is against Jim Comer and Jim Jordan's star Biden impeachment witness, FBI informant Alexander Smirnoff. This is the story from CBS. This is how CBS puts it. A California man who was charged with lying to the FBI about fake criminal allegations against President Biden and his son Hunter has pled guilty, they say is pleading

guilty according to an agreement filed in federal court on Thursday. Alexander Smirnoff was indicted in February by special counsel David Weiss, who was appointed to lead the now defunct investigations into Hunter Biden. The president pardoned his son earlier this month, and I applaud him for doing so. A longtime confidential informant,

Smirnoff told his FBI handler in 2020, and I'm gonna ask you about that, what a handler is. I'm assuming it's your contact at the FBI if you're a confidential human source. I can't tell you that. It's just kidding. I'll tell you. I can't tell you. Smirnoff told his handler in 2020 that the two Bidens each accepted $5 million from the Ukrainian energy company, Burisma, several years earlier. The claims, quote,

were false, as the defendant knew. And that's according to the charging documents filed against him. The fake allegations were memorialized in an FBI document that became a central piece of evidence. And I'm putting evidence in air quotes here in congressional Republicans' efforts to investigate the Biden family and impeach Joe Biden. Apparently a central piece of fake evidence. According to the federal government and the defendant who played guilty to faking it. The article continues on Thursday, prosecutors from Weiss's office wrote Smirnov will plead guilty to one count of creating a false federal record, the FBI document

filed with his false information, and three tax related counts because it's David Weiss and of course you got some tax counts. The new tax charges were filed last month. With the agreement and the pardon of Hunter Biden, Weiss's cases and his likely time as special counsel are coming to a close. Weiss was appointed U.S. attorney during the Trump administration and the Biden administration kept him on to continue his Hunter Biden probe. Attorney General Merrick Garland elevated him to special counsel earlier this year. Weiss's office declined to comment on the plea agreement.

An attorney for Smirnov did not immediately respond to a request for comment. So yeah, he made it all up. He's admitting he made it all up. He was indicted for making it all up. I have to like, I wish I was a fly on the wall. Like the, as soon as like when he was indicted, I would have loved to have heard conversations between Comer and Jordan, Jim Jordan and Jim Comer. And to watch their, and they had to know that this was just all BS. And I'm very curious as to why Smirnoff, did somebody have him do this? It just seems like a big old frame job, you know

what I mean? Yeah, that's a little bit harder to figure out. Although I will say, working with sources is tricky business. And they often veer into falsehoods. And they do so for many, many, many different reasons. There's a thousand different reasons why this guy may have made that up. Maybe somebody put him up to it. Maybe he just thought someone was putting him up to it. Maybe the people who were interviewing him from the congressional committee were encouraging him and encouraging him and encouraging him in such a way that he started making you know, making stuff up. Maybe he thought if he put some extra meat on the bone, he would, you know, he'd make more money out

of it or get more leverage with the government out of it, whatever it was he was seeking. It's really hard to say with what little we know about him. But the piece of this that really offended me- I just feel like Rudy paid him, I don't know, gave him like a signed boxing glove and $10,000 cash in a Walmart bag to go tell his FBI handler that he got bribes from Barisba. Rudy gave him a used Patek and a Yankee jersey. But you'd think that Patel or Smirnoff would be like, sorry, Cash Patel, I'm confused with Alexander Smirnoff. That happens all the time. that Patel or Smirnoff would be like, sorry, Kash Patel, I'm confused with Alexander Smirnoff.

They probably would both be just as good running the FBI. You would think that if something like that happened, that Smirnoff would be like, they told me to do this. They paid me to do this. So it just seems like he's a weird liar. That's entirely possible. What kills me though is when it was exposed that the entire thing was fabricated, indicting a source for telling a lie is like so rare. Right? This is a huge deal.

And when that happened, the fact that Comer and Jordan never said a word about it, nothing, they never even backed off. They never, they should have issued a statement saying something like, we're sorry that our committee put all this fake evidence out into the world. We're no longer relying on it. We condemn lying to the federal government or Congress in any way. We hope this person's- No way. Nothing.

No way. They didn't say a word. They just hope people didn't hear the story. They falsify and cherry pick all their stuff all the time. They're not sorry. That's just pathetic. They want those behind closed doors interviews so that they can tell the American people what they believe was said behind closed doors. Sculpt it. Yeah, control the narrative. So anyway, a sad end to a tawdry tale. Yeah, and they still won't release a lot of those transcripts from interviews.

But all right. In other news, Donald Trump told Kristen Welker in an interview on Meet the Press that she believed the members of Congress on the January 6th committee should be in prison. And Liz Cheney, co-chair of the committee, has released a following statement in response. Quote, this morning, President-elect Trump again lied about the January 6th select committee and said the members of the committee should go to jail for carrying out our constitutional responsibilities. Here's the truth.

Donald Trump attempted to overturn the 2020 presidential election and seize power. He mobilized an angry mob and sent them to the United States Capitol, where they attacked police officers, invaded the building, and halted the official counting of electoral votes. Trump watched on television as police officers were brutally beaten and the Capitol was assaulted, refusing for hours to tell the mob to leave. This was the worst breach of our Constitution by any president in our nation's history. Donald Trump's suggestion that members of Congress who later investigated his illegal

and unconstitutional actions should be jailed is a continuation of his assault on the rule of law and the foundations of our republic. Donald Trump knows his claims about the select committee are ridiculous and false and has been detailed extensively, including by Chairman Thompson in this July 2023 letter. There's no conceivably appropriate factual or constitutional basis for what Donald Trump is suggesting, a Justice Department investigation of the work of a congressional committee, and any lawyer who attempts to pursue that course would quickly find themselves engaged in sanctionable conduct. Well, the queen of sanctions, Alina Haba, is his White House advisory council. So she's got to work that million dollar sanction bill off somehow, I guess.

She goes on to say, and this is the interesting part, the reason I wanted to bring it up in the Jack podcast, what the public now deserves to see is the evidence and grand jury material assembled by special counsel Smith, including the grand jury testimony of Vice President Pence and members of Donald Trump's former White House and campaign staff. The Justice Department should ensure that all the material is preserved and cannot be destroyed. As much of that information as possible should be disclosed in the special council's upcoming report. Ultimately, Congress should require that all the material be publicly released so Americans can see Donald Trump for who he genuinely is and fully understand his role in this terrible period in our nation's history.

And Andy, another Andrew, Andrew Weissman, had posted, I think on Blue Sky, saying, well, he should file this all, Jack Smith to preserve the evidence. Remember how last week I was like, maybe he can give them to state attorneys general? But it dawned on me. It's all on the court docket. 1889 pages of evidence, mostly redacted, came in part two of his immunity brief. The first 165 pages we read to you over five episodes and summarized all of the evidence. But it's only the evidence that he would have brought in the case against Donald Trump, not co-conspirators, not anybody else he didn't get around to indicting. So it's limited to that, but Andrew Weisman suggested that he should somehow docket all of his evidence that he hasn't already docketed. And I'm not

sure how you would, in a case that's closed, how you would docketed and I'm not sure how you would in a case that's closed how you would Docket some more evidence. I don't know how you do that either but because the entire this is a once again issue of first impression the idea that we would be thinking about using the court docket as a repository of historically significant records evident evidentiary records. I don't, I can't think of a single case in which that's ever happened before. He would have to file something with the court to do that. And there's tons more information, right?

There's all kinds of testimony from all kinds of people that maybe wasn't relevant to this particular motion about presidential immunity. So it didn't get attached to that. Right, because he only turned in the evidence that he might have used at trial, not all the evidence. All kinds of stuff about Trump and about the other six unindicted co-conspirators. And who knows what other things people said in the grand jury. And it seems to me that Liz Cheney is calling for that, like preserving everything. I mean, I suppose he could release it in his report and just redact it because I don't

think, I still am pretty sure that the attorney general or Jack Smith can't unilaterally release grand jury material. I think a judge has to do that. I think the presiding judge of the district has to do it. And it's hard for me to imagine any structure or set up within the Department of Justice that would be beyond the reach of a President Trump. No, there wouldn't be, right. If Trump wanted all this stuff obliterated, is Pam Bondi going to

tell them it's not a good idea? It's not ethical. It's not legal. Um, and that stuff doesn't go to the national archives, right? Because it's, it's, uh, right. So if it's all redacted, it'll get destroyed. We don't want to, it's not preserved anywhere just because you've put it in a report and redacted. It'll get destroyed. It's not preserved anywhere just because you've put it in a report and redacted it. No.

But Liz Cheney here doesn't tell us by which mechanism somebody should release the grand jury material. I mean, I guess she's saying to Jack Smith to ask the court to release or for permission to release the grand jury material. And again, I want to clarify, I'm all about just leaking it, F it. I'm not a rule follower that kind of like I want the Gates report to like just leak it, just give it to me, send it to me, send it to DM me. But Jack Smith is absolutely a rule follower. You could hear it almost in between the lines when he filed to dismiss the case. It almost pained him, you know, to say this is the Department of Justice policy. It felt like painful, but he's a rules guy.

He's a rules guy. He's not going to just leak this stuff. I would caution people against hoping that somebody from the Department of Justice is going to violate the rules, a federal criminal procedure, and just release stuff without going to a judge. Yeah, I mean, it's, I mean, the decision to intentionally leak something, like, is, that's a different thing entirely, right? This is like, people deciding to jump off a cliff, essentially. It's like a crime. This is a serious thing.

And I don't think that's the way forward here. Okay, call me a rule follower like Jack Smith. That's probably not inaccurate But yeah, it's hard for me to understand like First how do you make sure that all of this information is never? Scuttled in the middle of the night, you know, I don't know. I don't know I don't I don't understand I don't know the answer to that question. And then beyond that, Take it home and put it in your safe. Can Jack Smith do that?

Yeah, you could file all sorts of, you could start by filing FOIA actions to have the stuff. If it's there, you could file FOIA actions, which they would deny. Then you could file FOIA lawsuits over that. And then you could litigate this thing literally for decades. Look how long it takes before things come out about the Kennedy assassination and stuff like that. Oh, we didn't get the, I think the Jaworski-Nixon grand jury material until a couple of years ago. Right. So it could be that it's under those circumstances, it could be 25 years before this stuff comes out through some sort of official process, but at least there it comes at

some point, at least it's preserved somewhere. My bigger concern right now is it just the victim of a purge order. Now I will say that there is at least 2,000 pages of evidence on the redaction on the court docket that will be preserved there on the court docket at least. So it can be sued for to the court. So you know, we'll see what happens. But we like we don't have the Mueller grand jury stuff either. That's never that's not out. We do have the full unredacted Mueller report though. BuzzFeed did file a FOIA lawsuit back in 2020 and won. And it also didn't help that there was a judge that determined that Bill Barr lacked candor and his redactions were inappropriate and were politically motivated to hide the breadth and depth of Russian interference

in the election. So we've had, because people sometimes because my name is still Mueller, she wrote on social media, people will be like, oh, well, where's the unredacted Mueller report? I'm like, oh, here's a link right here. It's been out since 2020 and people don't realize. It's out there. The unredacted Mueller report, but the grand jury material is still buried and it's going to be interesting to see. It's just weird to hear Liz Cheney who

should know that you can't just release grand jury stuff asking the attorney general to release grand jury stuff without saying how. Like I want, I want to write her a letter and be like, Hey, Liz, how would, how would you, if you were the attorney general, how would you release the grand jury stuff? Like what, what's your method? Cause give us a hint please. Cause I would like to see it if there's a way. And you know, it's a great question. I think it's one that we could kick around with some of our legal friends like Norm Eisen and others, see what spin they have on it.

Yeah, for sure. All right, we're going to answer a couple listener questions, but we want to take one more quick break. So everybody stick around. We'll be right back. Welcome back. Okay. We have hit that part of the show that we all look forward to and

that is the listener questions. You're ready to dive in? Yeah. Yeah. And if you have a question that you want to ask, by the way, there's a little link in the show notes. You can click on that, send it our way and we'll see if we can answer it for you. Excellent. Okay. So here we go. First question comes from Eric. Eric says, thank you for the outstanding work on this podcast. It's been very informative, despite the way the special counsel cases have had to end.

Additionally, I have thought that the doge thing should really be pronounced dodgy. That seems much more appropriate. I agree with you, Eric. Anyway, my question involves, what happens once Donald is president? Do you think that even Trump judges will be able to stomach the likely indictments? How much will the threat of prosecution silence potential critics who won't have corporate

or party resources to help pay for legal representation? That's a great question, Eric. All right. So, um, I think it kind of breaks down into a couple of things and I'll take the last part first, if that makes sense. I think the threat of prosecution will silence a lot of people. I think the threat of harassment, of constant investigations and the time and attention and finances that it takes to endure that and the anxiety that comes along with it and the damage that it does to your reputation and your career and the impact that it takes to endure that and the anxiety that comes along with it and the

damage that it does to your reputation and your career and the impact that it has in your family. I think those are all things that people will experience and I think just simply the threat of experiencing those things could make people make very different decisions and if you're someone who is maybe initially inclined to call out some wrongdoing or criticize something, looking down the barrel of that sort of treatment might cause you to say nothing.

Right, and you know, the thing that really gets me is that Trump's entire immunity argument was that there would be rogue prosecutors who would go after political enemies with no reasoning behind it. And that was his entire, like that's why presidents need immunity. Because to stave off these wild rogue prosecutors. And you know, when they were looking for an example of a rogue prosecutor, I was like, Annie McCabe, Annie McCabe. Screaming your name in my house, like, hey, two different grand juries. And that was what Sotomayor was saying, like, look, we don't

have a perfect system, but we have tons of things in place that prevent rogue prosecutors from going after political enemies for no good reason. We have grand juries. We have the trial. We have pretrial motions. We have post-conviction appeals. We have a petit jury of your peers. It has to be unanimous. All of these things in place to help prevent rogue prosecutors from doing these kinds of things. But now here we have, it's going to be rogue prosecution central. But that's their rogue prosecutor. So they're not worried about that. Right. It's not against Trump.

Those weren't the rogues they were worried about in the Supreme Court brief. Right. But Trump judges, yeah. I mean, if a lot of these get past a grand jury, because I mean, they indicted Hunter Biden. And those were really flimsy charges that are rarely brought against anybody else. So the protections didn't really help him out. He had to get a presidential pardon in order to get out of his charges.

But here we have, we've seen a lot of Trump judges, particularly in DC, aren't super mega. They're very against what happened on January 6th. They're fair and judicial. I mean, I don't like what Nichols did to the obstruction of justice charge, but 1512 C2. But mostly, I'm kind of with you, Eric. I don't think a lot of judges, Trump or otherwise are really going to be too thrilled about some crazy rogue prosecutions that make it past a grand jury. I think that's true. But the problem is, especially as he, as Eric puts it in the question, once you've been indicted, that case is going forward. Like even if the judge doesn't like it, the

judge doesn't have the authority to just, I'm not going to sign the arrest warrant necessary to bring this person to court. Oh no. Once you're indicted, you're charged and now you're going to have to defend yourself in a trial. That's your only path forward if you maintain your innocence. Unless you can get a pretrial dismissal. You can try. And that's an opportunity for the judge to weigh in and say,

exhibit their lack of confidence in the prosecution's case. But there are legal standards to issuing a pretrial dismissal and those sorts of things. So yeah, I think those prosecutors in a case like that will face some serious headwinds. But my point is having to go to trial, even on a bullshit indictment, excuse my French, is a very, very expensive life altering process. Look at everyone that Durham indicted. It totally upended their lives. Michael Sussman had to quit his law firm. Yeah. I mean, and that's kind of, you know, that's the, they say the process is the punishment.

And he was acquitted. But yeah, it still cost him half a million dollars to do that. And his gig and everything else. So I do think that cool, level-headed, unbiased judges are a strength in the system, but you know, even they are limited in what they can stop. It's not like they can just wave their magic judgy wand and say, Oh, this clearly is nonsense. So we're not going to send it forward. Yeah. We just, well, we kind of have to wait and see. All right. What happens.

So we have another question from Darren. Yeah. Yeah, we do. Darren says, big fan of both of you. AG, you continue to impress me with your research and your on the fly knowledge of punk and alternative music. Nice. As a musician, I'm not sure which impresses me the most.

Mr. McCabe, I read the thread a while ago and you have single handedly given me great respect for the detail and measured procedures the FBI brings to what seems like insurmountable tasks, especially emails. Thanks for your service. So with that said, in both of your esteemed expert opinion, if we somehow survive the next four years and Trump is still relatively healthy, what's stopping him from not stepping down and declaring himself the new democratically elected authoritarian? With the recent SCOTUS immunity decision, what's preventing him from not stepping down for the peaceful transfer of power? Podcast name suggestion, the podcast at the end of justice. Who doesn't love a little Douglas

Adams nod? That's funny. Well, I mean, the thing that prevents him from not stepping down are state administered elections. And hoping that the Supreme Court, because we didn't really get to see merits arguments about, you know, whether or not Meadows had any oversight over elections, right? It was just like, we're not going to hear that case. But prior in the 11th circuit, very conservative judge said, no, dude, it's not your job to oversee elections. Elections are administered by the states, free and fair elections are administered by the states. And so that's what's kind of quote unquote stopping him from. Yeah, that and the constitution, right? The constitution limits you to two terms. That's it, which means after your second term is over, which it will be, he can't run again.

So he can't run in 2028, which means he can't be put on the ballot in those state elections, which means by definition, someone else will get elected. And so on January 6th, 2029, Congress will certify the electoral college results of the 2028 election and someone else will be slated for nomination on January 20th. Yeah, because for example, California will not put Donald Trump on a ballot because he is termed out. He's ineligible. It'd be like if he wasn't old enough or he didn't have the right citizenship or something.

It's one of those constitutional requirements for the presidency. Yeah. And so if he just declares himself, I'm going to, I'm staying in office. I'm, I'm not even running. I'm just going to stay. I mean, the states will still have elections. He's getting removed, right? He's getting removed from the White House on January 20th, 2029, voluntarily or involuntarily. And that's unless he stages a military coup and the entire country collapses. Military coup would be the only way. And he wants to put his own loyal people

in charge of the entire military. So you need a lot of them. I'm not gonna go that. It's a big military. Call me a crazy optimist, but I don't think that's happening here. For a then what, 83 year old guy who served two terms. I just, I mean, I'm not, I hate to, I don't want to make a mistake by being uncreative, but there's a lot of hurdles between here, where we are right now, and him declaring himself

a supreme leader and sticking around after the end of the next term. Yeah. There's at least a bunch of blue states that will hold elections, I could say. All right. Thank you so much for your questions. Again, if you have a question, click on the link in the show notes and send it in to us know, just like you, we're sitting around waiting for the Jack Smith report. I'm still a little worried that Merrick Garland won't release it for some reason. Like maybe the OLC will tell him it's, that's prosecuting a sitting president or something. Like, I just, he better release it is all I'm saying. Yeah, I agree.

All right. Any final thoughts, my friend, before we get out of here? No, I, well, I'll give you one prediction. I think Santa Claus shows up before the report does. You think it'll come out after Christmas. I do. Yeah, I do. I think they need the time. That's just my guess based on nothing. Yeah. And they're probably having a lot of discussions about what to release and what to redact. They have to do that.

Once it's done, they have to decide. And I think they have clients that have to tell them like what to redact and what not to redact because there is some classified information. In this there was a system process, but anyway. We shall see. We'll be here. Yep. New Congress happens on the third. And as we know, Christmas is the same time every year. I don't know. Yeah, I'm with you. I think it comes out in the new year after Congress changes over. I do.

Yep. But see, prove me wrong. That's fine too. That'd be great. I would love it if it came out tomorrow and then we got some testimony on the Hill before Congress. All right. Thanks so much everybody. We'll see you next week. And remember, call up your senators and your representatives, tell them to pass the Press Act in Congress with bipartisan support. And we'll see you next week. I've been Alison Gill. And I'm Andy McCabe.