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- [00:00]
A
So, Renato, what's the remedy when the Department of Justice turns into the Department of Injustice?
- [00:10]
B
It's complicated. I'm Renato Mariani. I'm a former federal prosecutor, a practicing lawyer, and a legal analyst.
- [00:21]
A
And I'm Asha Rengapa. I teach national security law at Yale University. I'm a former FBI special agent, and I'm the author of the Freedom Academy Substack.
- [00:31]
B
And we're here to help help you understand topics that can't be boiled down into a soundbite or a ski tv.
- [00:43]
A
The justice system strikes back, I guess.
- [00:46]
B
Yeah, no, absolutely. And I have to say, our kind of the first story we're going to talk about here is really amazing. I mean, people talk about a lot of criminal defendants, talk about vindictive prosecution, selective prosecution. They make those motions you and I talked about, for example, in the James Gumby case, like, okay, he actually has a pretty good argument there, like, wow. But, you know, the bar is so high. It's so rare to see those granted. I mean, you could just count, really, maybe on two hands the number of those that have been granted. And we actually saw a vindictive prosecution case granted just this week. It was pretty amazing.
- [01:23]
A
Yes. And it's been a long time coming. I mean, we have followed this man's saga for over a year now. We're talking about Kilmar Abrego Garcia. Should we kind of do a recap of this?
- [01:41]
B
I feel like we kind of have. We have so many names and so many. So much injustice that we've been talking about over the last year or two.
- [01:48]
A
Yes. So Kilmar Abrego Garcia is Salvadoran national. And just to go back to 2022, because this is all relevant to what happened in the case in 2022. Abrego Garcia was stopped for speeding and he had other people in his vehicle. There was an investigation that was opened on this back in 2022. He also went in front of an immigration judge at some point in that period where there was a withholding of removal order issued by the immigration judge preventing his removal to El Salvador. So this is another piece of this whole puzzle which all comes together later. Abrego Garcia then gets roped in with the Trump administration's IC sting roundup, whatever they were doing back last April, which resulted in the three planeloads of people being deported to El Salvador. Two of those planeloads of people were alleged members of Trend Aragua. One of them were alleged members of Ms. 13, Kilmar Abrego Garcia. Garcia was in the planeload of people that were allegedly Ms. 13 people and got deported. Now, he filed a habeas petition. This all landed in. Well, this all came out of Boseberg, the court case, in front of Judge Boasberg, who issued an order for those planes to turn back while they were in the air. The government ignored it. The planes landed, and then Kilmar Berger Garcia, his lawyers filed a habeas petition, and in the course of that, the government conceded that he had been removed due to an administrative error that I guess, like some paperwork problem. He got loaded on this plane and got sent. Now, there's a whole other rabbit hole that we're not going to go into in this podcast, which is that admission made by the Justice Department resulted in all kinds of retaliation within the Justice Department against the lawyer who actually candidly acknowledged that to the court. That's the setup here, because then Judge Boasberg. No, not Judge Boasberg, though. Habeas petition was in front of Judge Sinis. She said, you have to bring this guy back. That went up to the Supreme Court. There was all kinds of, you know, wrangling about whether they could use the word facilitate or effectuate. But anyway, the government was basically told that they have to bring him back or do every. Make every effort to bring him back. And that's where the seeds of this current case get started. So I'll let you pick up from there.
- [05:06]
B
Yeah. So there was actually then a federal criminal indictment of Mr. Abrego Garcia in Tennessee, essentially alleging that he was conspiring to smuggle immigrants back in 2016, 2015 timeframe, much, much earlier. And this is really the real. This is stemming out of an investigation into a 2022 traffic stop, right. In which essentially he was pulled over with several immigrants in his car, but he was never charged. So he was indicted when he comes, when he came back. But, you know, that case that. That court case back in. Or excuse me, that court case that. That matter back in 2022, where there's a traffic stop that was closed, they basically closed that investigation. Nothing to see here. No reason to be concerned at all. But then what essentially happened was after they made their administrative error, after the Justice Department was embarrassed and they had to set him free so that he wouldn't be sent free. And so that their rhetoric that they had built up around him could be affirmed, they went and turned around and indicted him for this old conduct. Even though. And I think you and I talked about this at the time, Asha, it sure looked on its face like very questionable regarding whether these allegations had any evidence backing them up in the first place.
- [06:50]
A
Yeah, they basically reopened this case. And what's interesting, I think this is also part of the. You know, what. What comes up later in. In this court decision this week, is the way that they secure this indictment after they reopen the case in Tennessee is they secure the testimony of another person who Abrego Garcia had known or who had been in the vehicle with him on some of these car trips back in 2015, 2016. Now, that guy had been arrested, deported, had been arrested again, for illegally trying to re. Enter. I mean, we're not. You know, he's not necessarily the most credible witness, and he was, in exchange for testifying against or for providing this, you know, witness statement against Abrego Garcia was kind of given some leniency, like he was sent to a halfway house or something like that, where he was not treated the way that people who le. Are deported and then try to reenter the country again, particularly in this administration, that seems to. That suggests that they're cracking down on those kinds of people. They went very easy on him in exchange, basically, for him to make these allegations that Abrego Garcia was essentially, like, running some kind of immigrant smuggling ring. But this case was only opened after, as you said, the court basically said, you have to bring this person back. And Todd Blanche, in fact, makes a statement to the effect of, you know, we're basically opening this case, like, because the. The judge has challenged, like, the authority of the Department of Justice.
- [08:43]
B
Right. So he actually went on Fox News and essentially said, you know, we only started investigating this after the lower court judge ruled that they needed to send to bring him back to the United States. And it's really stunning because I think, you know, one thing that you and I have talked about so many times, Asha, is that the, you know, the words of the Trump administration can come back to haunt them or the words of this person and that person. Sometimes they do, sometimes they don't. Okay. As a practical matter, and here they really did, because the judge absolutely cited that Fox News interview and said, really, Blanche's words, Todd Blanche's words directly confirm that the executive branch reopened the criminal investigation because the judicial bench required them to facilitate Abrego Garcia's return from El Salvador. That is literally. There's a through line between his Fox News interview and this result, which is amazing. And effectively, if Todd Blanche had not gone on TV and said that, the judge just would not have had the direct evidence necessary to rule in his favor.
- [09:55]
A
Yeah, they. I Mean, I think there still could have been enough here. And we'll go over the legal standard that the judge used. But you're right, it's like, you know, this administration, we've talked about this before, that the evil is only mitigated. Not even mitigated, but, like, offset by the incompetence, because. Whereas they could be even more nefarious if they were acting quietly and shrewdly in the shadows, where you have no idea what's going on. They seem to really want to have these viral TV clips and social media, you know, so they do these things as a form of spectacle, physical as well, which then they tell on themselves, and then that's used as easy evidence in court.
- [10:48]
B
Yeah. I mean, one point I've made repeatedly over the last, I don't know, number of months is that we're actually all very fortunate that this administration is not more effective and sinister and devious about exactly carrying forward their deeds in an effective way. I mean, their desire for show and pleasing Trump, I think, often is in their undoing. Sometimes just Trump's mercurial nature and his fixation with small things or unimportant things can serve as a distraction. There's all sorts of ways in which they end up fumbling things. But this is an example of a textbook way how not to do this. And really, let's be real, honestly, there's no reason to go after this random guy anyway. They just moved on to another story and did something else to somebody else. We wouldn't be here on this podcast talking about it.
- [11:42]
A
This is a Steve Miller special, in my opinion, because here's the thing. Even though Abrego Garcia was brought back because he was removed in error and because there was a withholding of removal order to El Salvador, the administration actually could have still, like, appealed. Like, in other words, they could have gone through the immigration court. And I think they're still planning to do this, to still deport him. In other words, they didn't have to criminally charge him. Right. The criminal charges were really about, as you mentioned earlier, Renato, validating the narrative that they had put forth initially that he's a terrorist, that he's a criminal. They needed. I think this was. We. We can't stand for there to be any sense that, I guess, you know, an immigrant is innocent of something. I don't know, I'd like. Do you know what I'm saying? Like, it was. It was extra. It was extra. They could have still removed him. I mean, especially since the executive branch can Control, you know, his ability to stay in this country. The fact that they went to the step of actually painting him as a criminal, they issued press releases as soon as they did that. You know, this was really a propaganda effort at a time when they were trying to sell their base, if not the general public, on the fact that the, you know, this mass deportation was, you know, necessarily necessary and, you know, in the service of removing criminals from the country.
- [13:22]
B
Yeah, I kind of thought at the time as whether or not this was just something they were doing to get leverage, in other words, hoping that he would agree to leave the country if they dropped the indictment and they would get their sort of press release and they get to paint him a certain way, and then they would sort of use this as a lever, like, hey, you know, you want to go to prison, United States, or you want to just go chill in some third country, you know, or some other country, you know, outside of the United States. And that being a way of inducing him to do that. And, you know, he stuck to his guns and stuck for his rights and fought this. And, I mean, this is the end result, which is pretty remarkable.
- [13:59]
A
I should also note that in the removal proceeding that they are trying to, you know, they plan to do, they also want to remove him to a third country in Africa.
- [14:14]
B
Yeah.
- [14:15]
A
Which also seems. Which also seems extra. Like, you know, the withholding of removal order to El Salvador was based on the fact that he had a reasonable fear of persecution by Salvadoran gangs if he were to be returned to that country. But presumably he could be removed to another country in South America. It's just there at all stages, there is just this focused effort to truly punish him for challenging. For exercising his rights. Basically.
- [14:50]
B
Yeah, I mean, he. He agreed to be removed to Costa Rica. So they could have just done that and called it a win.
- [14:56]
A
Yep.
- [14:56]
B
And that would have been another way. That's why I said an effective but nonetheless evil administration could do that. In other words, you could be like, look, we want to get as many people like Mr. Garcia out of our country, and we're just going to, you know, we're going to, you know, take him up on his offer and move on to the next person. You know, the fact that they pursued the path, they did ultimately shot themselves in the foot, and that's really to the benefit of lots of other people out there who might become the next person targeted by this administration.
- [15:28]
A
That also would have been more efficient and a better use of taxpayer money if what they wanted to do was to remove him. So the Vindictive prosecution claim. So the law allows a defendant to challenge an indictment based on vindictive prosecution, but they can do it in two ways. One is presumptive vindictiveness, or the other is actual vindictiveness. Now, actual vindictiveness requires objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights. And although we kind of intuitively feel that here, even everything that we've described so far wouldn't be. Wouldn't meet that standard. Right. So the court says you need direct evidence of a retaliatory motive, such as when the prosecutor openly admits that he acted vindictively, like I am being vindictive against you, which rarely happens. So that's very rare. But presumptive vindictiveness allows a defendant to create a rebuttable presumption that the prosecution was brought in retaliation, that there was a realistic likelihood that it was done vindictively. And that's what Abrego Garcia alleges here. So he puts together all of this. You know, his defense lawyers put together this whole picture of this timeline of the statement that was made by Todd Blanche on Fox News, importantly of the very micromanaging involvement of main justice, of very senior people in main justice in this case in Nashville, Tennessee, which normally would not be the case. And basically, the court says, okay, he's created a presumption that this was a vindictive prosecution. Now, government, you can rebut it. You can present evidence to rebut it, and the government had no evidence to present to rebut it.
- [17:39]
B
Yeah, that was remarkable. I mean, the funny thing, of course, by the way, is they could have tried to resolve this before getting this far. They could have just tried to resolve it with him before hearing. They didn't do that. Now they have to appeal, and they're going to continue fighting with this guy, and your taxpayer dollars are still going to be going to this fight where they literally have nothing to say of any import regarding, you know, their own supposedly pure motives.
- [18:10]
A
Yeah, the only evidence the just department brings is that the then acting U.S. attorney for Nashville said, no, this was all my decision. Nobody else had anything to do with it. And the court's like, yeah, I don't believe you.
- [18:32]
B
Yeah, I mean, it is quite remarkable. I mean, it's a remarkable ruling. I'll say this. Not only somebody knows a prosecutor for over nine years, the federal prosecutor, and I've been on the defense side for longer than that, much longer than that at this point, and I've you know, I've never run across one of these. I know there are other cases that have been dismissed for vindictive prosecution, but they're so rare, you have to search them out. You know, and just like, you know, maybe there's. I think there's diamonds in some place in the United States, like in Arkansas, some little park in Arkansas. You have to really look for them. Let me tell you. You don't find them just walking along in the street. And that. That is essentially, you know, what I would say about this. Like, finding a vindictive prosecution ruling in the defendant's favor is extraordinarily rare.
- [19:22]
A
Yeah.
- [19:23]
B
And I think it. It's really a spe. It speaks to the extraordinary but, you know, behavior. Here we are living in unusual times, in times in which the Justice Department is really standing on his head. And, you know, you've talked asha numerous times. You always bring up the presumption of regularity, which is essentially where courts are assuming that, you know, government attorneys and others are acting in sort of the way that you would presume them acting in the ordinary course. And, you know, this case is an example of how that presumption is no longer applicable to this Justice Department.
- [20:03]
A
Yeah, the. You know, it's. The opinion actually starts with a quote from Robert Jackson, the former former Supreme Court justice, former Nuremberg prosecutor, but also a former federal prosecutor. And the quote is, therein is the most dangerous power of the prosecutor that he will pick people that he thinks he should get rather than pick cases that need to be prosecuted. And I just want to add, the government actually did present another theory. So I said, you know, that they first claimed that this prosecutor came up with the idea to do this all on his own, and there was no influence from main justice, but also that there was new evidence that came to light, and the judge was not buying that either. And so just to read where the opinion ends, instead of investigating the November 2022 traffic stop to identify who was responsible for the human smuggling, Blanche started the investigation to implicate Abrego. He did so to justify the executive branch's decision to remove him to El Salvador. So it's basically tying back to exactly the proscription from that Robert Jackson quote. And I think this is where we are with this Justice Department. That is what they do. They pick the people that they think they should get rather than the cases that actually should be prosecuted.
- [21:29]
B
Yeah, I mean, that speech by Robert Jackson is one that I had read when I was a federal prosecutor many years ago. It's been cited A lot in recent months, in the last year or two in response to the Justice Department. But it really talks about how the immense power that federal prosecutors have and how you must exercise that power with care, in which he likens it to acting like a gentleman. In other words, you need to not do the maximum thing you can, but actually try to have a sense of fair play. And this is so far beyond that, obviously, it's completely vindictive. But I think that one thing we're going to see throughout the many months to come is continuation of the Justice Department engaging in behavior in which calls to the question whether or not federal prosecutors can be trusted with that power. And I think, Asha, after this administration, I think we're all going to have to think hard about the power the federal prosecutors have. And should we be entrusting this much discretion to individuals without any safeguards or sufficient safeguards to, you know, to deal with ethical and, you know, violations like this? Well, with this apparent violation in this case, yeah.
- [22:56]
A
And I know people are out there who are going to be like, no, we shouldn't trust them. And it's just the cost to all of us when that trust is eroded, I think is just enormous. Right. Because it impacts the ability to actually bring the ability of the Justice Department to bring truly bad people to justice. Because once a court doesn't believe the prosecutors anymore, once a court doesn't believe the FBI agents anymore or has to always, you know, that impacts the success rate, I think, of the cases. And there might, you know, again, like you're saying, when this administration is over, you know, when we ideally return to a time where there are righteous prosecutions, this legacy of distrust is going to continue, and it's going to take a long, long time to repair.
- [23:47]
B
Yeah. I mean, look, Asha, this goes both ways. You know, I'm old enough to remember when lots of progressives were cheering on Robert Mueller and all these federal prosecutors. Jack Smith, after that, like, federal prosecutors are going to save us all. Like, we don't need to organize and vote. We just need to, like, rely on these federal prosecutors are going to swoop into Washington, you know, with, you know, capes and. And. And, you know, there's Golden Lassos. Yeah, Golden Lassos. Thank you. And save us all. And, you know, the reality is that when the federal prosecutors investigating, or any prosecutors investigating, somebody who you think is engaged in serious wrongdoing, you, you know, you. You're tempted to cheer them on. And I think that, you know, there's a balance here that's important. Like yes, we want to be able to investigate and bring people to justice. I did that. I think it's a noble calling. I think it's important to do. But one thing I was aware of is the immense power and discretion that I had as a federal prosecutor. And we, I think as a society need to wonder, particularly in this era where there's so much mistrust that's been built at this point in the Justice Department, what do we do without being able, if we don't have that presumption, like what safeguards can we have, what can we do to entrust that power in a way that can give the public confidence?
- [25:13]
A
Yeah, I think that's going to be a huge question when we enter the phase of reconstruction or whatever comes after this.
- [25:21]
B
Absolutely.
- [25:25]
A
So speaking of misconduct, we now move from Tennessee to your neck of the woods, Renato.
- [25:35]
B
Yeah, that's right. Now I will just say this is we're going to be, you know, talking here about the so called Broadview 6 case, which I'm sure that many of you heard about. I guess I just want to say at the outset, I was obviously, I was a federal prosecutor in Chicago for a long, in a long time. I know everybody involved in this case, or almost everybody. I don't know the guy who is the new guy in the case who says he started two months ago, but I know all the prosecutors on the case otherwise and I know all the defense attorneys and I know the judge who I worked with, April Perry, so know everyone. I just should say on the outset, I don't have any insider information, so I'm not telling anyone any anything private or confidential here. But I do have obviously a lot of feelings about what happened, you know, mixed feelings about it. And maybe Asha, you should be the one though, since you're further away from it to kind of give the factual overview and I can sort of fill in things as we go along and then maybe we could talk about this because I have a lot to say and a lot of feelings about it.
- [26:39]
A
So this case that we're talking about now are about four people who were indicted last October after they protested outside of a Chicago ice center. This was during Operation Midway Blitz. This is this would have been the operation where didn't they where they had the helicopters and people rappelling down into the apartment buildings and things like that. Because there were so many ICE operations that were happening at the same time.
- [27:07]
B
It was crazy.
- [27:08]
A
It was crazy. But these four people who were indicted were part of a group called the Broadview Six, which Included two other people. Their indictments were dismissed, I think, a little while ago. So. Yeah. So in April, the defense attorneys for these four defendants requested portions of the October 2025 grand jury transcripts to see how prosecutors explained conspiracy law to the grand jury. And they said, can you turn them over or show them to the judge? And the judge said that she would review them. And that's when the saga started.
- [27:56]
B
That's right. So, you know, they were originally indicted with the conspiracy to impede a federal officer, which is a felony. And that. Just so everyone at home understands in the. In the United States Constitution, you're entitled to an indictment if you're charged with a felony. So this process took place at the grand jury. And as you suggested, Asha, jury's instructed by the federal prosecutor about the law going in. And understandably, the defense attorneys are like, we need to see this, because on its face, this doesn't seem like much of a conspiracy. It doesn't seem like a lot of evidence of that. These are just bunch of people protesting ice. And in response to that request, my former colleagues dropped the conspiracy charge and instead proceeded with a misdemeanor. And essentially.
- [28:48]
A
Can I stop you right there? So is the idea that they're like, yeah, we're dropping the charge and we're proceeding with a misdemeanor, which doesn't require a grand jury indictment. So now there's no reason for you to look at those transcripts because they're no longer relevant.
- [29:02]
B
It's the idea. Okay, yeah, they told her that. Yes. So what happened is they told Judge Perry that this is moot. So they asked her essentially to just deny this as moot. Denied this as moot. And, you know, and they are. They were moot at that point. And as you know, Josh, judges don't decide things just that don't matter. They only decide things when there's a case of controversy. That's what the Constitution says. Well, essentially, you know, the. The concern from the defense attorneys is, look, the prosecutors has something to hide.
- [29:38]
A
Yeah, that's weird.
- [29:40]
B
Yeah, we're concerned that. We're concerned about this judge. We want you to look at the transcripts. And interestingly, that's why I don't know what to make of it. The prosecution said they had no objection to that. And there. It's worth noting, Asha, there were significant redactions to the grand jury transcripts that had been produced to the defense up to that point.
- [30:06]
A
And it sounds like, you know, when I read the. The transcript of the most recent hearing, the judge said that she. When she said, okay, I'll take a look at the grand jury transcript, she wasn't going into this expecting to find any aberrations. Like, she was like, all right, I'll take a look. You know, it's moot, but, you know, if there's no objection from the government, the government's like, no, we don't object. She was like, okay, I'll take a look. And then that's when she got a red flag, as you noted, because there were portions that were redacted, which would be unusual given that it was going directly to the judge. Correct.
- [30:42]
B
And so she. Yeah, I mean, I think that originally she wasn't sure why there were redactions or why. Why there's reactions. And she demanded that any prosecutor who participated in the decision to redact portions of the transcript at any level, notably at the sort of either the trial team or the supervisory level. And I will just say, Asha, my former office, there's a lot of layers of review, and typically it's a very large U.S. attorney's office, one of the largest in the country. And usually that sort of decision about what to redact would not just be made by a solo attorney. Like, it's the sort of thing that you would run past a supervisor. So she demanded that they come to the courtroom for that hearing.
- [31:30]
A
Yes. So maybe you can talk about what was actually redacted.
- [31:37]
B
Yeah, so let's talk a little bit about that, because we don't know for sure exactly what was redacted yet. We do know that the hearing itself that took place was originally, by the way, kind of under seal. It was later released. We, you and I both read the transcript from that hearing, but we don't. I don't believe we've seen the transcripts yet. We know what Judge Perry.
- [32:00]
A
Right. Her characterization. Right, right.
- [32:03]
B
What she says about the transcripts. We haven't seen the transcripts yet. But one thing I will say is she. It's a very apparent that Judge Perry believes that the decision to redact and the redactions themselves were totally inappropriate. And that was the most serious, the most serious abuse from her perspective, because everyone had a responsibility to have candor to her as the judge in that case. And it was essentially. It appears she didn't say this, but it appears that she believes that there was an intentional effort to mislead or hide something from the judge. Okay. So I want to just point that out as sort of. That is a big deal. And that, I think, is why everyone listening can understand why we were talking about the straight actions a minute ago, but she also talked about a little bit about what was underneath. She said that she had never seen the types of prosecutorial behavior before a grand jury that I saw in those transcripts. One of the things that she mentions is what she characterizes improper prosecutorial vouching. So let's discuss what that is. So vouching is where. And this can occur not just before the grand jury can occur in a trial as well. It's improper in either venue, but it's where a prosecutor says, for example, this witness is the most truthful person I've ever met. Let's just say something like that this agent is completely honest, like the most honest person I know. It's essentially your. You as the prosecutor putting your credibility on the line and giving your own independent credibility judgment about a witness, usually a government agent. And the reason that that's misconduct is essentially you're taking the authority that you have as a federal prosecutor and you're using it to cloak a witness in that. Sometimes it can be done for a non agent. Not in the. This case is probably we're talking about a federal agent, but in other contexts it can be like a cooperator, like we talked about in that other case that we talked about a minute ago, where you're like, I've seen a lot of cooperators, but this is the most honest one I've seen or whatever. But it's always improper from that perspective.
- [34:28]
A
So that's the first issue that jumps out at her. The second she says is improper prosecutorial communications of a substantive nature with the grand jurors outside the grand jury room.
- [34:42]
B
Yeah, we don't know exactly how that came up. I mean, first of all, sounds like jury tampering. One of the reasons that's improper. I just want to make sure this is. Everyone understands this is because what happens in a grand jury room is has a court reporter there. It's not private in that regard. It's recorded. So that this way there can be a record of what prosecutors do. If you as the prosecutor are going outside the room and having conversations with the grand jurors, it raises an inference, or at least I won't say an inference, but it raises concerns. Let's put this raises concerns that the prosecutor is saying things to the grand jurors that they don't want their court reporter to get down. And so it creates a factual issue there of what happened. And a prosecutor should know that if the grand jurors raise questions, for example, outside of that Context, outside of the grand jury room, if they ask you a question, what you really need to say is, we need to talk about that with everyone there. And I suppose, by the way, it also raises another question just off top of my head or another issue, which is you're expressing things to certain grand jurors that not all the grand jurors here. In other words, whatever you're saying to. Let's say one person comes up to you with a question, or is this an issue, and you say your views on things, but you're not saying that to all of them. That's problematic as well. Ultimately, everyone in the grand jury has a right to hear whatever the presentation is and consider the same evidence and the same instructions regarding the law.
- [36:18]
A
Right. Third, the prosecutor excused grand jurors who disagreed with the government's case from the deliberations process.
- [36:28]
B
Yeah, I mean, that's remarkable to me. I don't know what was the point
- [36:33]
A
of a grand jury.
- [36:35]
B
Yeah, I don't know what to make of that.
- [36:38]
A
How do you even do that? How do you.
- [36:40]
B
Like. I don't even know how that would occur. So that, I suppose that reward. I think we need to look at the. Learn more about what happened, I suppose, before even evaluating that. But it's quite bizarre.
- [36:53]
A
That's jury rigging.
- [36:55]
B
It certainly sounds like that's what she's. She's. She's suggesting. I mean, I don't know what I mean. It could be. And this is totally guessing on my part. I would say guessing, but speculation would be like a grand juror saying, I don't agree with anything to do with this, and the prosecutor saying, well, if you don't agree, then, you know, you get out of here, or whatever. I don't know. But whatever it is, I mean, the bottom line is. But, you know, if you're in the gr. You know, if somebody in a. I've never had this occur, but if a grand juror told me for whatever reason they can't participate, I've never had this, like, let's just say they're ill. I don't know if I would have made a call myself on what to do in that situation. I would have gone to a supervisor and be like, okay, one of our grand jurors is not able to serve. Yeah, yeah, not able to serve or not able to participate in here. But she's already heard the evidence, like, what we do.
- [37:52]
A
Right.
- [37:53]
B
Blah, blah, blah. Like, I wouldn't have even known. I mean, these things just don't generally come up. Asha Candidly like, it's just. It's quite bizarre. But this was a bizarre case. I mean, by the way, you know, it's a case in which you were talking about. It's a bunch of protesters being charged with, you know, conspiring to impede. It was like basically a car, by the way, from an agent that was going like 2 miles an hour through a group of protesters who were trying to block the car's path. That's what this case was about.
- [38:21]
A
Okay, okay. So. So to recap, so far, we have improper belching, possible jury tampering, possible jury rigging. And that's not even the most problematic thing that she identifies. And she says the most problematic issue was that numbers 1 through 3 were redacted out of the versions of the transcripts that were given to her.
- [38:46]
B
Yeah. And as I was alluding to earlier, I mean, they. She absolutely believes that they were trying mislead her or conceal from her. And I think her intuition there, whether it's true or not will be determined. I think in a hearing soon is that there were some internal conversations going up whatever level in the U.S. attorney's office about how to handle this, and there was a calculated decision to do this, and I don't know, we'll find that out soon enough.
- [39:25]
A
Yeah, so she says, mistakes happen. They happen to all of us. But as I tell my children, you own it, you admit to it, you apologize for it, and you move on. What you do not do is hide it. I mean, this is like talking to a five year old. I relied on all of you and your personal representations in this case about what has been issued in discovery, about the types of searches you have done for exculpatory material and what arguments you will and will not make in this case. And I do that because I treat every attorney who appears before me as an officer of the court. But secondly, and this goes to the point we made in segment one, because I put even more reliance on Department of Justice attorneys. Your sole goal is to do justice. Your client is justice itself. I do believe deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing. That trust has been broken. Damn, girl.
- [40:23]
B
Yes, and that was speaking, I would say, my interpretation of that. I mean, would. So what. What Judge Perry was saying, where she talks about doing justice and that's the sole goal. I mean, that is a. I would say that's a phrase or saying that's used in our office a lot. When I say our office, obviously I'm not part of it. I often litigate very aggressively against that office now, but I say that, you know, alumni of the office talk that way. We talk that way when we're in that office. And that is the, you know, the mentality is that our client was justice. I mean, it's technically not okay, but it is. That was the, that was how the discussions always were in that office. There was this real sense that we were going to be pretty consistency conservative. I don't mean politically conservative, but careful, not going up to lines, not doing things that were hyper aggressive for the purpose of trying to secure a result. And I think you could tell how deeply disappointed she was.
- [41:29]
A
Yeah.
- [41:30]
B
In that, in, in everyone involved in that matter. And like I said, I think the redaction of the transcripts bothered her the most.
- [41:38]
A
Yeah.
- [41:39]
B
In other words, because AUSAs and I say AUSA. I mean, a federal prosecutor is what I mean by names a federal prosecutors. You could imagine somebody making a mistake in the heat of a moment and saying, saying the wrong thing in a grand jury by not thinking about the vouching or something, but by, by the, the, the redactions are clearly appear to be, I'll say this calculated and so by someone. And I think she's very interested in determining who that is based on that transcript.
- [42:07]
A
Well, she says that there is a potential separate and apart from the merits of this case and how it ends up on sanctions for prosecutorial misconduct and for potential ethical violations, including lack of candor to the court.
- [42:23]
B
That's right. So this case is effectively so. Yes. And we should say, because we haven't said this yet, the United States Attorney, Andrew Boutros, came to the court in that hearing, dismissed the charges and said other things. I mean, she was unhappy with the fact that he, you know, basically said that by the grace of God that the agent wasn't hurt and this. And that was defending the prosecution. But what I want to point out is that her comments about sanctions and what might come next are irrespective of the fact that the case is over because it's been dismissed with prejudice. So dismiss it with prejudice means it can't come back. They can't recharge that stuff. And nonetheless, Judge Perry is not done with this case in her mind. I mean, she is going to hold a hearing and look into this matter and consider sanctions. Whether sanctions are.
- [43:18]
A
Yeah, she seemed really pissed. And she had asked everyone involved with those redactions to show up in the courtroom. There were three attorneys there, one, as you said, like with some Rando, who's like, I'm just sitting in the back watching and I just was in the room or something. But I think there was a whole back and forth with the defense attorneys where they're like, you know, it's implausible to us that these kind of rank and file attorneys were the only ones involved in this decision.
- [43:48]
B
Yeah. I don't know whether that's true or not. Okay. I would say this, I might say the same thing. And I was in their shoes. In other words, they're advocating for, and I know all of them and I respect them. Okay. All the defense attorneys involved in the case. There's some very fine attorneys involved in the case. I'm not sure whether that's the case here. In other words, the person who's currently leading the prosecution may very well have acted by himself. Okay. And doing that, I don't know, we will find that out. I'm not going to prejudge that. But what I would say. Yeah, I would not. Given, given my vantage from my vantage point, I would not. But I would say that. But what I would say is, I'll just say, I want to say, just say this about this case because I, you know, I know everybody, like I said, involved in the case. I know, you know, the attorney who was the original one in the grand jury. So the original attorney in the grand jury left. Not left the doj, still employed by that office, but was on a detail to work as counsel on the Senate committee. Yeah. For Senator Durbin. And that has been rescinded by Senator Durbin. So she is back in the, the U.S. attorney's office. And she's somebody I know and respect. And I think, you know, she was not the one making decisions about redactions at this point. Okay. She was off in D.C. i don't think she was there. It appeared to me, based on the transcript, she was not present because she was off the case at that point. She was off in Washington, you know, not really working for the Justice Department at that point. But I think what really, I think comes to mind here, I mean, we don't know ever who did what and what the motives are, but I believe she was the one who made the original missteps, let's put it that way. Whatever they were, we'll find out in this next hearing in the grand jury. And it just, it really brings me to a broader point, which I know you're very interested in, Asha, which is, you know, how ordinary people get co opted into doing bad things at times in the in, you know, by evil governments or by bad actors in governmental agencies.
- [46:07]
A
Yeah. By corrupt CEOs, by, you know, bad police officers, like, whatever. I mean, my book, this is what I'm researching for my book, which is on complicity and moral courage. And it's, you know, the first half of that is exactly this question, like, why do people go along with this when they know better? And, you know, you, like, later people are like, I never would have thought they would have done that. And you're. The words that you use are exactly right. They're ordinary people. Right. There are, there are central wrongdoers, of course, in any kind of system like that. You know, there are the. I mean, in this case, whatever Todd Blanche may be, but they can't do it without a whole infrastructure of people that are kind of going along and willing to do what is asked of them. And what's really interesting is that when you look across these instances of complicity, it's often not because they are ideologically motivated or so on board with the grand plan, but this is the way that they're going to get ahead. Or, you know, they're either, they either find that that's the way that they're going to move ahead and get something in return, promotion, you know, whatever, or they're afraid of losing what they have, whether it's a job, whether it's a social status, whether, you know, in extreme cases, their freedom. So it's temptation and fear, but the kinds of temptation and fear which we all face all the time in different circumstances. And, you know, ordinary. Ordinary Men is actually the name of a book about a police squadron in Nazi Germany that drew just, you know, kind of random men from. Not this wasn't like the SA or Gestapo, but like, random men from just, like, villages to. To do these, like, really horrific tasks. And one of the things he comes to is, like, these were just ordinary people. And they. They found a way to rationalize it because it was in their interest or because they were just afraid to not do it. And I think that's. I think we're seeing that across the board. Like, you know, there. There was also, by the way, a great article in New York Times which goes to exactly what I just said. And it's about how autocratic regimes will deliberately employ mediocre people who could never attain the kind of power that they have under the autocrat in any normal society and therefore are willing to go along with what they're doing. And I think, like, you know, you look at somebody like Todd Bland who From what I understand from people who worked with him in the Southern District, he wasn't like the most amazing prosecutor, like, in a normal Justice Department. He'd be like a middling, fine person, but probably not somebody who's going to become the Attorney General of the United States. And now that's where he's poised to be. And he's, you know, and then there are other people who, for other reasons, will go along with that.
- [49:21]
B
Yeah. I mean, I was thinking when you said that, you know, all these posts on Twitter or X or whatever, like, hey, but probably be an ausa, Right. Like all these people or whatever, you know, in other words, probably be a federal prosecutor. You're just some, you know, person who, you know, is going off of a Twitter post and in reality, you know, that would ordinarily be a very competitive position, very challenging to attain.
- [49:41]
A
Same thing with ice.
- [49:43]
B
Yeah.
- [49:44]
A
Being federal agents, which, like most, the screening process would normally take out a lot of the people that, as far as I can tell, are now doing that job.
- [49:53]
B
Sure. Or whomever there's members of the Cabinet. I think what their fitness for the role might be. But I think. Yeah, I mean, for me, that's what's really interesting, Asha, is that, like I said, I do. I know, like I said, everybody involved. I don't think that the prosecutors in the grand jury is a bad person, evil person. She was somebody I was friends with, with, and, you know, thought is. You know, I've tried a case with thought was a good person and do think is, you know, I don't know what happened.
- [50:26]
A
You know, I think I didn't.
- [50:27]
B
I have not asked that way. I've not reached out.
- [50:30]
A
One of the arguments I make in my book is that I think we need to get away from this good, bad dichotomy because I think it really obscures us to why people become complicit and include and also blinds us to potential ways that we could go down that same road ourselves. You know, we're like, you're either bad or you're good. Actually, that's not true. It's a spectrum. Like you. You can have good motives, but then be overcome with temptation or fear in a moment where you become loyal to something other than your higher principles. In this case, the higher principles of being a prosecutor.
- [51:08]
B
That's right. I mean, you know, there's this famous quote from Alexander Solson east and who, you know, who wrote the famous book, I think the Gulab archipelago. I never could say that correctly.
- [51:19]
A
Archipelago.
- [51:20]
B
Archipelago. Thank you. Never say that. Correctly. But you know, about how if only there were these evil people and you could just find them and get rid of them. But actually the line between good and evil goes to the heart of every one of us. Right? Every man, I think he says. And the point being is that we all are imperfect and we all are kind of on the spectrum and so on. And, and you know, we all are capable of potentially doing things in the wrong situation. And that to me is what I find very interesting. And about this is, you know, I. Like I said, I know everybody involved. I even know. I mean, I know Andrew Boutros, the U.S. attorney and the first assistant there, and others. And I, and I don't, you know, I, I don't think of them as people out there, whatever, you know what I mean, doing, you know, out there doing crazy things. And you know, it's interesting to see this. I mean, obviously there's a. There's a lot of pressure put to indict these cases. I know there's a lot that weren't indicted and there's a lot that were dismissed, but this is one that kept going. And it's very interesting to see here. And I. Very disappointing. And I know a lot of my former colleagues feel the same way. There's a lot of people bemoaning this right now and very frustrated with what. And very concerned about what has happened to the reputation of this office, which we all feel. Feel very strongly about.
- [52:46]
A
Well, it's also a reflection, I think, of the changing culture and norms which can kind of. I don't want to put these people, take these people off the hook, but like kind of gaslight you like, if you're in an environment where things are becoming normalized, it can your sense of what is right and wrong become scrambled because all of a sudden the way we do things is this kind of rogue way. Like to use an example, one of my case studies is Enron and like the entire culture of which by the way, had a 92 page ethics code. Okay. But you know, when you're in this culture where everybody is doing. Where certain values are being maximized in that case, like you know, keeping the stock price up no matter what, then you kind of get on board and you're like, okay. I guess that's just what we do. I think we hope that prosecutors, like other government service, have a higher threshold before they can succumb to that. But I think that what we've seen in the Justice Department is an erosion of norms and perhaps a really fundamental transformation of the culture so it's really. We don't know what kind of place these people are going into day to day. That's my point.
- [53:55]
B
Yeah. And I will say it's disappointing to me because what I've seen on the ground now, I'm switching to. Up till now, I haven't said anything that was not public about anything. But I will say from based on what I'm seeing on the ground, I had seen up till now a lot of efforts being made even within this administration to try to preserve as much as possible the culture here. And I think I had felt from my vantage point, very happy that we didn't have Jeanine Pirro or someone like that. Lena Haba here is a U.S. attorney. We actually had somebody who'd served in this office for several years and knew kind of how we did things and so on. And it's very disappointing kind of what has happened here. And I think it calls into question for sure how much the culture and norms and values of this office has changed, which is what's so profoundly disappointing to myself and to many of my friends, former colleagues.
- [54:59]
A
I guess we can start with before we go, but this will be the last time we go.
- [55:06]
B
Yes. Well, we talked about this last time that, you know, this is going to be our last episode, and we kind of explained why. So I don't think we need to do that. I will just say that, you know, for me, I'm going to miss, you know, for ver. For your reasons, sort of employ my employment reasons. Can't always talk about every subject that I used to talk about publicly. This was a nice method for me to do that. And, you know, I'm sorry that it comes to an end, but I will just say that I really think it's important for people to talk about and speak up about the things that they believe in. I think. I think this episode kind of underscores why that is.
- [55:53]
A
I agree. And, Renato, I do hope that, you know, you'll pop on a substack live with me when something crazy happens that you're like, I really wish we were doing a podcast. We can still hop on and our listeners can find us there. If you follow my substack, you'll get the notifications for those. And one thing that I want to acknowledge, just because we brought, you know, so many guests on over the course of our three and a half years, I think I'm very sad also to not be doing this. I do enjoy this, and I especially like doing this with you, Renato, But I'm really grateful that there are a lot of other people in this space who are doing really, really good, important work. And like I said, we've had some of them on the pod, like Steve Vladig, who are really out there explaining things. And, you know, I feel confident that there are still people holding up the fort to kind of keep people on track and up to speed on why things matter and how to think about these legal issues that have just exploded over the last year and a half. I also want to say thank you to all of our listeners and viewers because I've gotten some emails from people who've been sad to see us go, but I know we've had a loyal following and really generous people. I do go back and read the comments from each week when we post our YouTube videos and stuff. And, you know, I love that people really listen and are fired up and I hope that they stay fired up.
- [57:23]
B
Absolutely. I mean, the importance of these issues remains. And I think from my vantage point, the sort of the greatest thing that I've gained from all of this, you know, this sort of speaking out about things that are happening in the Trump administration, both the first one and the second one has been all the amazing people I've met who are out there also outraged about some of these things and speaking up about them. And you're for first and foremost amongst amongst those people, Asha. So I'm looking forward to, you know, appearing with you on various things and I'll see you on our cruise.
- [57:59]
A
Awesome. Bye, everybody.
- [58:03]
B
Bye. Can't get your fill of Legal af. Me neither. That's why we formed the Legal AF subs. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing and the oral argument there, including a daily roundup that I do called Wait for It Morning af. What else? All the other contributors from Legal AO are there as well. We got some new reporting, we got interviews, we got ad free versions of the podcast and hot takes where Legal AF AF on substack. Come over now to free subscribe.