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Prosecutorial Misconduct with Consequences
01:02:05
The DOJ faces the fallout from several instances of prosecutorial misconduct this week.
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Andrew Weissmann
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- [00:21]
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- [00:54]
Andrew Weissmann
Hello and welcome back to Main Justice. It is Tuesday morning. We are back to Tuesdays. So Tuesday morning, May 26th, I'm Andrew Weissman. I am here with my co host, but unfortunately not like last week where I was here with my co host Mary McCord in the same room. But Mary and I at least can see each other. Hi, Mary.
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Mary McCord
Good morning, Andrew. Yeah, that was fun. It's too bad we can't do that every time.
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Andrew Weissmann
That is, the plan is not necessarily be in the same room because we live in different cities, but the plan is to have the video. I know. I was reading the various comments and we got a lot of really positive comments. But I have to tell you, as much as we got positive comments, it was really great to actually be in the same place and doing it together and to see you. And you know, it's so funny. Like we gave each other, we sort of brought it in for a hug. It was like, yes, you just don't usually get to do that. It's, it's good.
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Mary McCord
So should we give a little foreshadowing?
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Andrew Weissmann
Yes, we should. What are we going to talk about Very quickly?
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Mary McCord
We will start out talking with some very significant decision last week. That is the dismissal of the criminal case against Kilmar Abrego Garcia, someone we have talked about for more than a year. We couple that with a discussion of a very important hearing that a district court judge in Illinois had about the criminal charges against what's called the Broadview case. Right. The criminal charges against a number of protesters of ICE activity at the Broadview Processing center outside of Chicago. So theme one, misconduct by the government.
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Andrew Weissmann
Okay, that's thing one, as you would say. What's thing two? And three?
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Mary McCord
Thing two, we will go back to someplace we started last week when we were in person, because when we were learning the breaking news last Monday morning about this unbelievable quote, unquote settlement agreement between Donald Trump and the Department of Justice with respect to his case against the irs, we did not know at that point about the addendum. So we'll talk about that. And then we will also talk about a very interesting indictment coming out of Florida of a former prosecutor, high level Prosecutor in the U.S. attorney's office who has now been accused of and charged with sending herself parts of volume two of the Jack Smith Report. And finally, we will close out with a very important decision by Judge Bates in the district Court for the District of Columbia. And that has gone, I think, very under the radar because there's been so much other news.
- [03:33]
Andrew Weissmann
Mary, let's start by talking about Abrego Garcia. This is the criminal case, or I should say this was the criminal case. Obviously there could be an appeal, but there was a criminal case that was brought by the government against Abrego Garcia. And if people remember this is somebody who was extracted a word that I am not making up. That was one that was used in a decision because he was removed from this country without lawful process against a court order, specifically barring him from going to a specific country. And that's the specific country he was taken to. That was sort of the immigration side of the matter. And if you remember, in the immigration side of the matter, the judge said you need to, in compliance with the Supreme Court decision, facilitate his return. And the government was fumfering around and saying we can't really do it because he's not really in our custody and he's out of our control. And all sorts of what the technical legal term was BS Reasons. I mean, it was, it was preposterous reasons to say that they somehow had no persuasive authority, if not total control over him. And of course, it turns out they did.
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Mary McCord
They claimed he was in the custody of a separate sovereign and there was nothing they could do. Right.
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Andrew Weissmann
We wash your hands of it. It was just that is what's not to plug my book, Liars Kingdom. But that is what we call a lie.
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Mary McCord
Lie.
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Andrew Weissmann
It's just not true. And they knew it wasn't true. And one of the ways they knew it wasn't true is that because there's this order that Said they had to facilitate it, and it was getting more and more pressing. They eventually do bring him back, but they bring him back to face a new criminal charge. And that criminal charge, unlike the civil case in Maryland, this is a criminal case in Tennessee, resulting and emanating from a car stop years earlier where there were suspicious circumstances, but there'd never been a criminal case at all about it. And the defense made a motion in that case saying that this is a result of vindictive or malicious or selective prosecution. Meaning, I'll give you what the platonic ideal is of what kind of constitutes something that would be vindictive. A defendant appeals a legal issue and they win on appeal, that legal issue. And the government, as a form of punishment, as a way of saying, we don't like what happened, then sort of adds on and says, oh, well, because you appealed, we're now going to charge you with more crimes, not because of new evidence, not because of anything that changed other than you appealed a legal issue. And the reason the courts are so careful about that issue is that you don't want a deterrent for somebody to not be appealing something that could be wrong. And you want them to be able to appeal. And if they win, you're not allowed to sort of say, I'm going to punish you for asserting a right that you have, either a constitutional right or a statutory right. And the government also, just to be clear, it's not only a deterrent thing, that government shouldn't be behaving that way if it's something that the person has a right to, they had a right to. And you as a government, get to make your arguments to the appellate court about why you think you're right. But if the court rules against you, that's that you don't get to retaliate. And so that was the issue that was raised by Abrego Garcia, which is why is it that he was charged with this criminal conduct emanating from something that happened well before his immigration case, but had never been looked into?
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Mary McCord
Well, and the investigation opened back in 2022, had been closed. Right. So why? It reopened only after he was extracted to a terrorist detention center in El Salvador and took his case to the Supreme Court and they said facilitate his return. Hmm. Why was it reopened then?
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Andrew Weissmann
Yeah. Meaning he won.
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Mary McCord
Right.
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Andrew Weissmann
Exactly. So, Mary, that's the setup I'm giving you. Like, here's the softball.
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Mary McCord
Exactly.
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Andrew Weissmann
So that's what was pending before the federal district judge who granted the motion after holding a hearing. And I'm just going to give one more piece, Mary, which is after holding a hearing where the government did not call the key people. That was, to me, the telltale sign here. This is like Hamlet without Hamlet. In other words, if you're the government and you think that you are right, and there's no retaliatory, vindictive conduct that's going here, why are you not calling the key people either? The key agent wasn't called and the key prosecutors weren't called.
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Mary McCord
How about like Acting Attorney General Todd Blanche? That's really the person who should have been called. Right, but we'll get to that.
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Andrew Weissmann
And by the way, yes, because this is basically. This is Todd Blanche. Todd Blanche. Todd Blanche. Todd Blanche. His name appears something like 30 times. And let's just say this, not in a good way.
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Mary McCord
That's right. That's right. So I think it bears noting that this opinion starts with a quote from Justice Robert Jackson, who you and I have quoted many times. And it's a quote that every prosecutor, every federal prosecutor knows. And this is how Judge Crenshaw starts then. Attorney General Robert H. Jackson warned his fellow prosecutors long ago of the danger of picking the person first and the crime second. Quote, therein is the most dangerous power of the prosecutor that he will pick people he thinks he should get rather than pick cases that need to be prosecuted, end quote. Then Judge Crenshaw says that is the situation here. And to just cut to the chase, the judge, as you said, Andrew, had an evidentiary hearing where witnesses were called and all kinds of briefs were filed and other types of documentary evidence was produced. The judge issued a series of findings of fact, which are really the factual timeline of what all transpired and part of which we just talked about. But then he goes on to say what happened after that case was reopened. And when he gets to then his conclusion, which as we know, is Abrego Garcia was indicted. Upon that indictment, he was returned to the United States to face these charges. So not let out of custody at that time. And folks may remember this was a big deal. Attorney General Pam Bondi, Secretary Kristi Noem, the President, you know, all talking about, essentially, he's never going to see the light of day. Right. They called him every name in the book. Right. A drug trafficker, a human trafficker.
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Andrew Weissmann
Terrorist.
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Mary McCord
A terrorist. To the cut to the chase on the conclusions of law that led Judge Crenshaw to dismiss this case was as follows. And this is a partial quote, but a paraphrase because he names an agent and it's irrelevant for these purposes. The Timing of the federal agent's decision to reopen the closed investigation of the November 2022 traffic stopped and Todd Blanche's now unrebutted public statements tying that reopened investigation to Abrego Garcia's successful lawsuit taints the investigation with a vindictive motive. And this is another high level Department of justice lawyer named Mr. Singh. The vindictive taint continued with Singh's close substantive oversight of the U.S. attorney in Tennessee. His name is McGuire. And his prosecution team's work leading to the indictment. Finally, after the indictment was presented, the executive branch found a way to return Abrego Garcia to the United States to comply with the District of Maryland's order to facilitate his return. While the court finds insufficient evidence of actual vindictiveness, meaning like a statement saying, we are prosecuting you in retaliation for your taking that case to the Supreme Court, the court nevertheless concludes that the government has failed to rebut the presumption of vindictiveness that he had already found based on that timeline. And he says the evidence that the government calls newly discovered was available all along if the government had exercised due diligence long before April of 2025, when Mr. Abrego Garcia was indicted. The government has not explained its change of position to remove Abrego Garcia and not prosecute him. And that's referring to sending him to El Salvador with no prosecution and then to prosecute him and not remove him. In other words, bring him back, prosecute him and not actually remove him. And remember, part of that actually removing him is they've been wanting to send him to places that have either not agreed to take him. That would be horrible places. Places like Eswatini and Liberia. Right. And he has said all along, hello, hello, hello, I'll go to Costa Rica. Costa Rica has said, hello, hello, hello, we'll take Mr. Abrego Garcia. And that has not happened.
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Andrew Weissmann
Yeah. Which, by the way, that, to me just goes to the vindictiveness, which is like, here's a guy who's saying, oh, you just don't want me in the country. Well, it's fine, I'm happy to leave. Here's a country that would take me, I'm willing to go to. And the government says, no, no, no, we don't want to send you there. What frigging interest, that's another legal term. What frigging interest does the government have in which country he goes to if their interest is that he just shouldn't be here? And that's why one of the things, as I was reading this. That's why what doesn't work and the judge doesn't directly address this, but he sort of addresses it implicitly, is the government could say, well, what changed from the Supreme Court decision is not that he won. And we are being vindictive about that effect fact that he won. It's that when he won, it meant he's now going to be in this country again. And so if he's in this country again, we wanted to do something about it because we think he's a criminal. This is the government speaking. But they had a choice there, which is they could just remove him legally.
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Mary McCord
That's right.
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Andrew Weissmann
And that's the opposite of what they had done. They had removed him illegally, which is why the Supreme Court of the United States 90 says you've got to facilitate his return because he was entitled to due process beforehand. And that's something that hadn't happened and they still could do. Instead, they just decided they were going to indict him. And I have to say, the timeline, devastating. So this is one where, I mean, Mary, do you think that. That the government is going to be, what is it, Pennywise, pound foolish, which is like they're going to appeal this and not realize that they're going to be. There's another legal term showing their ass to the appellate courts because the facts here are hideous, as well as the fact that the key players are not willing to put their money where their mouth is, that they did not testify to this, which to me is shocking to sort of let the underlings do the dirty work when it was all happening at your behest.
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Mary McCord
Well, I think the government has already said yes, they will be appealing this activist judge. Right. I've called this a whole series of unforced errors, except for the first one was a big error that was a mistake to put Mr. Abrego Garcia on that plane. And you know, the line attorneys admitted that, but the higher ups at DOJ and DHS could never admitted that. And so they just went through unforced error after unforced error after unforced error. Right. They could have provided the constitutional due process that was required. They could have used other types of mechanisms. If they thought they had grounds to remove him, they could have done so many things differently. And I would say an appeal is going to be regardless of the outcome, it is going to really expose things. So this then stays a story. Right. Including all this dirty laundry about the main office of the attorney general and deputy attorney general directing this investigation and prosecution of Abrego Garcia. And that's what the judge found.
- [15:55]
Andrew Weissmann
Right. That is now the acting attorney general. That is now Todd Blanche. So should we move on, Mary, to more prosecutorial misconduct? And again, this is not Mary and me giving you our opinion of what's happening with this situation. We are reporting what Judge Crenshaw said in the Abrego Garcia case. And now we're going to go a little bit up north. And Mary, do you want to tell us what this case was about and what was the issue that caused you and me to once again have our jaws sort of clatter to the ground reading all of the different pages here?
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Mary McCord
Yes. So this began during the immigration surge in Chicago. And a lot of the protests were around the Broadview Service staging area, which is an ICE facility in Broadview, Illinois, that processes individuals who have been apprehended, allegedly because they were here unlawfully in the United States. And it arose out of a group of people allegedly surrounding a vehicle that an ICE agent was driving, slowing that vehicle down, banging on the windows, maybe even scratching something into the side of it, not harming the agent physically, but surrounding the car and trying to impede its progress to where it was going. And I believe it was going back to that Broadview processing center. And these individuals, there were six of them, were charged with a conspiracy to impede this agent from discharging his duties, a felony. And then each was also charged with a misdemeanor for assaulting a police officer in the view of not the physical assault against the officer, but impeding his ability to do his job. Okay, so that's how things start. This goes through all kinds of pretrial motions, practice, and other things like happens, like you and I know, in any criminal case, that's part of the process.
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Andrew Weissmann
And the defendants are entitled to due process, and they get discovery and they make motions, and sometimes they win and sometimes they lose. But it's part of the process of our criminal justice system.
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Mary McCord
That's right. And in the course of this, because of some unusual things, the defense attorney said, your Honor, we'd like you to order the government to produce grand jury transcripts, something that all of our listeners know are usually secret, to look specifically at what kind of legal instructions the prosecutors gave to the grand jurors because they were suspect that the instructions might have been erroneous and that therefore they might have grounds for moving to dismiss the criminal cases.
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Andrew Weissmann
Can I just interrupt and say so what happens in the grand jury on this is that the grand jurors will hear from A witness or two witnesses or sometimes many witnesses in a really big long term case. And then when the prosecutor feels like they're ready to present a proposed indictment, no witnesses are in the room. It's just the grand jurors, a court reporter and the prosecutor, or prosecutors, plural, and they read the proposed indictment and keep on saying proposed because it's not an indictment until the grand jurors vote on it. And the way in which the grand jurors know what the law is, is that the prosecutor reads the law that is applicable to the potential charge. Like, this is what it means to have a conspiracy. This is what it means to have theft, whatever the crime that you're seeking. To have the grand jurors evaluate, you have to give them legal instruction. All of this is on the record. Every single thing is on the record and is happening with a court reporter and sometimes even a tape recording as well as a court reporter, all recording what's happening. And then when the grand jurors are ready to decide, everybody who is not a grand juror leaves the room. And the grand jurors vote in secret. That is not recorded. That is just the grand jurors. There's no court reported. There's no nothing other than the civilians who have been selected to be on the grand jury. And then if they have more questions, they can bring people back and ask more questions. But when they're ready, they decide up or down, and they can vote what's called a true bill, which is to go forward, and they can vote no true bill, that is not to go forward. And they weigh each defendant and they weigh each charge, and there's lots of niceties, but that's sort of generally how this works. I'm giving that background because Mary's going to tell you a lot more.
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Mary McCord
Yes, this is really staggering. So the judge agreed to get these transcripts reviewed for whether there were any inaccuracies in the statement of law, found that there were some, but that these were then corrected before they went back to the grand jury. But she noted something else at that time. She noted that when she reviewed the transcript within those transcripts, there were redactions that had been made by the government. And so she asked the government to bring unredacted versions of the transcripts to the next hearing. And before the government did that, the government suddenly dismissed the felony count. Dismissed the felony count, then said, these misdemeanors don't have to be done by indictment. So we are now going to bring the misdemeanors by a process called an information. Because this is the law, the law in federal court, if it's a crime for which the penalty is less than a year, that can be charged by the prosecutor alone by way of something called an information, you have a right to a grand jury indictment for felonies. So what they did before bringing her the unredacted transcripts is they dismissed the felony, took the case out of the grand jury completely, and then returned misdemeanor informations against the six defendants, charging them with. With that assault as a misdemeanor. And that caused, of course, the defendants to be like, huh, I got a red flag here. Because what the government said is, now we don't need to produce those grand jury transcripts, your honor, because we're not charging the felony. So that whole question about the grand jury transcripts, that's all moot. We're only charging misdemeanors. But the defendants pressed upon this, says, this is a red flag. So the court did ask to see the unredacted transcripts. And I'm just going to read a couple of things that she said. She says, I will say that having reviewed the grand jury transcripts myself in full and unredacted form, there are significantly bigger problems than misinstructions to the grand juries. She says, I will say that I was incredibly shocked by the redactions that were made. I have never seen the types of prosecutorial behavior before a grand jury that I saw in those transcripts. Then she lists them, and I'll let you list them because I'm having all the fun here, reading and trying to be the judge.
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Andrew Weissmann
Yeah, that's right. I. I said it. That's right. Okay, I am going to list the four things. And she says, here's a high level summary that she lists and is now telling on the record the defendants happened first. Improper prosecutorial vouching to the grand jurors with the ausa, that's the federal prosecutor putting her personal credibility and trustworthiness on the line in support of the charges. Now, an aside, what that means is that the prosecutor says, hey, you can trust me or I know, or in my personal experience, this happens at the time. And I'm telling you X, Y, and Z, all of that is improper. You can argue the facts, you can present the facts, but you cannot personally vouch for something. You are not a witness. If you want to personally vouch for something, you have to take the stand under oath and have something material and relevant. So the first thing is improper prosecutorial vouching to the grand jurors. That's one. Let me just say it gets worse.
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Mary McCord
Yes, it does.
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Andrew Weissmann
Second, improper prosecutorial communications of a substantive nature with the grand jurors. Plural. Grand jurors outside of the grand jury room. What?
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Mary McCord
What are you in the elevator? You're in the lunchroom. Why are you talking to the grand jurors?
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Andrew Weissmann
You don't talk to the grand jurors about anything. You don't tell them where the bathroom is. You don't tell them anything. You have no communication with the grand jurors. That is not on the record. And this is just to be clear. Improper prosecutorial communications of a substantive nature with the grand jurors outside of the grand jury room. That means not on the record. Third, the prosecutor excusing grand jurors who disagreed with the government's case from the deliberations process.
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Mary McCord
My jaw dropped. I'm like, what? You don't agree? Get out. Get out.
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Andrew Weissmann
Can you think of anything, Mary, that is more antithetical to the rule of law?
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Mary McCord
The very reason for the grand jury process? Right?
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Andrew Weissmann
These are the judges of the facts. And it's like, oh, you know what? You disagree with me. I don't like this judge. I'm just going to get rid of them. Which brings me. This is. Now I'm quoting from the judge. Which brings me to problem number four, which is the fact that all of this was redacted out of the versions of the transcripts that I got. Meaning she asked for the transcripts to see what was going on. And everything that we just talked about was removed before giving it to her. And there had been discussion in court about her saying, with the prosecutor present, oh, I think this is just. There's some transcription errors. And the government doesn't correct her and say, no, no, no, we removed substantive things. So she. The judge asks for everything, and these are the things that are redacted from what the court gets. So not only did you do all of this, but then you hit it from the court. And she says, and frankly, it is that that I find the most problematic. 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. Unquote.
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Mary McCord
Now, how does this all end? I wish we could spend another half an hour on this. But how it all ends is, she says, first of all, we're supposed to be going to trial in a couple of days, which would have been today. Tuesday, defendants, I'll let you brief whether this whole thing should be dismissed on vindictiveness grounds or other grounds, or we can go to trial and see what happens and, you know, deal with those things later. You tell me. And then she says, and I will deal with the possibility of sanctions against the government attorneys. I'll deal with that separately and later, including for ethical violations, potentially including lack of candor to the court. The defense counsel, of course, say, well, we think we need more time to brief this because we're just learning all this and we haven't even seen these transcripts. And she says, okay, let's take a break and then we'll come back and discuss a schedule, et cetera. They take a break. When they come back, the U.S. attorney is there, Mr. Boutrose, the top guy. Yes. In the U.S. attorney's office. Nobody from main justice but the top guy in the U.S. attorney's office. And he said, says, I think I can moot out all this discussion about a briefing schedule because I'm here to dismiss the information with prejudice, meaning dismiss this case against all six defendants with prejudice, which everyone now knows means we can't then bring it again based on the same conduct. And then he tries to make some excuses, I would say, for the conduct, although does admit that it was wrong. He says he stands by the charges. The judge says, that kind of undercuts your mea culpa, but at any rate, again, I'll deal with those sanctions later. So this case has been, as you would say, two words, dismissed.
- [27:53]
Andrew Weissmann
Yes. And so what? We will keep our eye on where people is, what happens at the next stage, which is does the defense, now that they've had a complete vindication, but after, you know, dragging these people through the mud and the criminal process, are there going to be ramifications for any intentional wrongdoing? Will there be hearings on it? Will there be findings?
- [28:16]
Mary McCord
Are they going to apply for compensation from the settlement fund that we're about to talk about after the break? Because it sure looks like they've been victims of lawfare.
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Andrew Weissmann
Right. That would apply as well to Mr. Abrego Garcia, who won his appeal in the civil case. He is now one vindictive prosecution. There is a judicial finding that he is a victim. And so these would be prime candidates for the thing that we talked about last week that has been a major news, which is this idea that there will be this fund, this what I view is the stolen funds of the American taxpayers to pay out to criminals. But here we are actually talking about actual victims. And can I just say one thing before you break, Mary, because it'll sort of tease us up for before we get into this addendum that came out, which is I was thinking about this, that there is already a congressional law to deal with. How do you deal with somebody who is criminally charged who can show that their case was frivolous and meritless and was vindictive? And there is a congressional law. It's called the Hyde Amendment. There's a separate one that has to do with abortion rights. But this is having to do with if you are criminally charged and you are acquitted, and not just acquitted, you can show that this was a meritless case, that it should never have been brought. And I'm just giving the high level, then the court is empowered by this congressional statute to compensate in certain ways to a defendant. What we are going to talk about in our second segment is sort of an end run around all of that where these people, if it goes to J6ers, not only have they not shown that it's frivolous and vexatious, but they actually lost their cases. I mean, these are people that were convicted either out of their own mouths or by a jury who would be seeking and have announced that they're going to be seeking funds. So it's totally antithetical to the way the congressional scheme works in terms of when funds are supposed to be dispensed. And the more I thought about that, I thought about this enormous dichotomy that they're creating this what I'll call extra legal, you know, in other words, outside of the current legal system, both in terms of, I think really stealing the money but then dispensing it in a way that is not the scheme, and I don't mean scheme improperly, the sort of the legal structure that's put in place as to when within the law you're supposed to pay out this kind of money to true victims.
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Mary McCord
More on the fund after the break.
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Mary McCord
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Mary McCord
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Mary McCord
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- [32:35]
Mary McCord
Okay, welcome back. So Andrew teed up the fund itself before we went to break. And that is something we also talked about last week. And there's many ways that it could be used in properly and there's practically no oversight and there's almost no transparency. And it's awful. And we're going to have so much more to say about that in the coming months, including covering at least there's already one case that's been filed challenging the fund, one civil case. And there probably will be more to come. But the thing we did not talk about last week was this addendum because we had not yet seen the settlement agreement and all of the addendums. And this addendum explicitly, and it uses big capital letters for the United States to release, wave, acquit, forever discharge the plaintiffs, meaning Donald Trump, his kids, his organizations, and the US Is also forever barred and precluded from prosecuting or pursuing any and all claims. And then it lists, I can't. It would take too long to read it, meaning anything that they could do to investigate, to examine records, to bring a civil case, a counterclaim, a criminal case, seek injunctive relief. Everything that they could have done as of the time of this settlement agreement, they will never do. The Justice Department will drop anything that's ongoing and it won't look back and ever bring any kind of claims or investigations on things that have happened up to the point of the settlement agreement. So that means things in connection with the matters raised in the case, but not limited to that. They then even say anything that is lawfare and, or weaponization or any matters currently pending, like I said, or that could have been Pending. And this is where they say including tax returns filed before the effective date, before that's including.
- [34:22]
Andrew Weissmann
But not, this is the key thing.
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Mary McCord
But not limited.
- [34:24]
Andrew Weissmann
But it's not limited to, because a lot of the reporting has been like, oh, it's only about taxes.
- [34:29]
Mary McCord
And I think it's because of that little including irs. Everybody went, irs, IRS audits. And I just keep saying everywhere I go, it's not just about the irs, it's much broader, every department and agency.
- [34:41]
Andrew Weissmann
And when you say it was in all caps, I kept on thinking to myself, well, they might as well have written this in a big black Sharpie, because this doesn't read like it was written by a DOJ lawyer. This reads like Donald Trump wrote it himself. And frankly, you know, he did. The effect is he did because he was on both sides of this lawsuit. The lawsuit was completely bogus. There's no correlation. Even, even if you thought that he could bring a timely case that was meritorious about leaked tax returns, it would never result in $1.776 billion in damages. And it wouldn't result in an agreement that gives civil immunity for all sorts of people, places, things, family members, organizations, for things unrelated to the case. I mean, this is just a way to give a civil pardon to all of these entities. And remember, pardon power only relates to criminal cases. And I think one way to look at this is, okay, how do I deal with the fact that I only have criminal pardon power if I'm the president? This is, I'm just going to get the Department of Justice to give me a civil pardon that's as broadly worded as I want.
- [35:55]
Mary McCord
Yeah, that's right. And you said something key there that I think I want to make sure listeners understand. It is typical in the settlement of a case, pending litigation that the government will agree not to bring any other claims related to that subject of the pending litigation.
- [36:12]
Andrew Weissmann
Meaning that litigation's over.
- [36:13]
Mary McCord
Right, exactly. And so we're not going to then next year be like, you know what? Huh? We've rethought that we're now going to bring some sort of case related to that. It means that's all gone. That is normal. That is perfectly acceptable way of settling a case. Now, put aside the fact that settling the case that Trump had filed against the IRS was a complete bogus and ridiculous settlement because they're, you know, there were good defenses to the case, et cetera, et cetera, et cetera. But that is one thing that's extraordinary. This went on and said it Also, right. The U.S. will you know, it said not do any lawfare and or weaponization. Those are literally the words lawfare and or weaponization and any matters currently pending in front of any department or agency about anything, as you just said. Okay, let's talk about some of the problems with this. First of all, just focusing beyond the fact that this went way beyond anything that's normal. One thing we talked about a little bit last week is that fund. That money is coming from what's called the judgment fund, which is statutorily created by Congress and which is limited in how it can be used. It requires it to be settling an actual existing case or imminent litigation. So one of the issues here is there's all kinds of people who, according to the terms of the settlement, can be applying for money from this new 1.776 get it, 1776 fund who haven't even brought litigation or necessarily even threatened to bring litigation. They can be like, oh, I was a victim of lawfare or weaponized Department of Justice. I'm going to reach out and settle. So a Treasury Department secretary or his designee does have to certify payments from the judgment fund. And remember, because this did not get as much press as I think it should have, the Department of Treasury general counsel resigned the same day that this fund was announced. Maybe he was worried about not wanting to certify payments from this fund. I don't know. He hasn't told us, but I think that's a big red flag.
- [38:07]
Andrew Weissmann
Well, he spoke volumes by the fact that he. The timing of his resignation and the fact that he didn't say why he resigned. I mean, the fact that he was silent on that. Because if it was for personal reasons, I mean, say so, you know, as whatever you think about Tulsi Gabbard and her performance, I mean, she announced, you know, the horrific personal circumstances that she and her husband and family are going through as a reason. And that's understanding, understandable that she would do that to explain things. But here with the general counsel not saying it and the timing, I think he is speaking volumes about what's going
- [38:41]
Mary McCord
on and Congress should be hearing from him.
- [38:44]
Andrew Weissmann
Exactly. Because here, you know, the issue of imminent litigation. Yes. So the government can get around that by saying, okay, file whatever bogus thing you're going to say or, you know, say that you're going to threaten a litigation. But the problem here is that you have Donald Trump on both sides of this issue. And so this is just becoming. When people said it's a slush fund, it is a stolen fund that is then going to be doled out. Now, there can be litigation about how the money is used, and we are already seeing lots of lawsuits on that. But I always think of this as in two ways, Mary. There's the issues about how the money is used and whether it's used to weaponize, whether it's used in violation of sort of the First Amendment, whether it's used in ways that are against congressional authority and violate what's called the Administrative Procedures Act. That's sort of how the money is used once the fund is created. But that ignores the first step, which is the actual taking of the money.
- [39:41]
Mary McCord
That's right.
- [39:41]
Andrew Weissmann
And that's where it is just so craven for Congress not to step in here. They have the power of the purse. They can put a stop to this any day of the week.
- [39:53]
Mary McCord
That's right. Because they created that fund under their appropriations authority. Right. And they did it by statute. They can change that statute. They can put the end to this immediately.
- [40:03]
Andrew Weissmann
One of the issues that I have been focusing on and I've heard from, from various tax authorities, and it's, and I'm not going to profess that it's like everything in tax, it can be complicated. But one of the issues here is not just that a grant, any sort of money that's given out by the fund easily could be taxable income to the person getting it. That's neither here nor there in the sense, like if you get a million dollars, so what if you have to pay taxes on it, you're still better. It's still better than zero.
- [40:31]
Mary McCord
Right?
- [40:31]
Andrew Weissmann
Right. It's found money for people who have committed crimes. But the other is, and here people have said that this, although this settlement agreement says on its face this is not taxable income to Donald Trump, you can say that, but that's not how the law works. Because this is all being done as part of a settlement of Donald Trump's claim. So it can be taxable income. The fact that Donald Trump says, I want to use the money for purpose, A, B and C, that's how you want to spend the money that you're given, that does not make it not income. Now, is this administration going to take the view that it is income? Of course not. We see it on the piece of paper, but that's not the issue. And tax liability is civil in nature, not criminal in nature. And in spite of everything you said, Mary, about what this agreement says, that does not end in a normal administration, that piece of paper being challenged. Because this, to me, I would argue it this way for Donald Trump to, quote, have this piece of paper to have a, quote, settlement. This is just him writing down a wish list that there's no consideration for it. In other words, there's no bargaining between adverse parties here. He just wrote down everything he wants. And so that piece of paper saying, oh, by the way, you can never investigate me, that's a wish list, not a binding agreement. And so now granted, that will be litigated.
- [42:03]
Mary McCord
Yes. So in other words, I think what you're saying is a future administration could say, we're still going to investigate. And he'd have to say, wait, there was this settlement agreement and then there would be litigation over the validity of the settlement agreement.
- [42:15]
Andrew Weissmann
Exactly. Which by the way, Mary would be like, I mean, not to have any schadenfreude, but that would be fun litigation because, well, wouldn't it? I mean, I'd love to hear Todd Blanche explain in a deposition under oath why he thought there was such peril to the tune of $1.776 billion in this case, because I think that's going to be non existent. I agree.
- [42:37]
Mary McCord
I will just make a couple other quick, you know, geeky tax law points that I have. And I am not a tax expert and I don't think you are there, but we play one on this podcast.
- [42:46]
Andrew Weissmann
And I have to be fair, I have brought tax cases. But you know, tax law is one where it's very, very specific to individual circumstances and facts matter. And there are lots of left provisions. So that's why we're raising these as potential issues rather than saying there, here's a clear cut problem.
- [43:04]
Mary McCord
Yeah. And some of this challenge that may or may not happen in the future. Right. Where there's litigation would involve the fact that whatever the Department of Justice might be able to do in the what's called the compromise or settlement of litigation does not necessarily mean they can bargain away the IRS's tools, because by statute, it's the Secretary of the treasury that can settle or compromise any case around arising under the Internal Revenue Laws before anything gets referred to DOJ for prosecution or defense. So in other words, before anything, before DOJ is even looking at something, it's only up to do the Treasury Department and the IRS to settle something. DOJ doesn't get the authority to settle a tax matter until that matter's been referred to doj. But what happened here? As far as we know, there's been an ongoing IRS audit. Nothing referred to doj yet. DOJ purported to resolve that. So that's one thing could get challenged, and that's a congressional statute. Another is that by also congressional statute, the President of the United States cannot direct the IRS to either conduct an audit or an investigation or to terminate an audit or investigation. Yet again, by the terms of this addendum, it is ending any ongoing audit, examination, investigation by the irs. So a couple of other points that could very well in some future time be litigated. But before we move on to the Lineberger indictment, I just want to foot stomp what you said, which is not only should Congress be getting off its rump right now, and I know that there are a number of members of Congress who are not happy about this at all. It caused last week votes to not be taken on an immigration bill. It caused votes to not be taken on other things because they didn't think they had the votes. The Republicans didn't think they had their votes because people are pissed off about this fund. So more to come on that Congress should act, and if not, a future administration should act. Okay, Line Burger, what do you think about this?
- [45:07]
Andrew Weissmann
So this is a supervisory assistant United States attorney who had accessed, legitimately, it appears, the second volume of the Jack Smith report, the one that is still under seal pursuant to Judge Cannon's order, but then sent it to herself on, not her government email, but her personal email, although she was also accessing that on her government computer. But still it was going to her personal emails, according to the indictment. And she gave the name of when she was sending it. She had relabeled the indictment to be essentially, you know, like my cooking recipe,
- [45:49]
Mary McCord
chocolate cake recipe, Bundt cake recipe.
- [45:52]
Andrew Weissmann
Right. So it went from chocolate cake to bundt cake. It was neither of those things. And so that obviously is going to help the government in showing bad intent. In other words, that she was hiding it. Although, my God, so stupid. It's all coming from her, you know, office computer, so it's easy enough to track. And so she was charged by the sending of this copy from her government computer to her personal email account with essentially a million different crimes, of which the one that seemed most appropriate was the one that said theft of Government Property, 18 U.S.C. 6, 41. And by the way, if there's a trial or she admits it, pleading guilty, you know, she shouldn't be doing this. Of course. I mean, we were government lawyers. We believe in the rule of law. I mean, this is like one where you don't look at this and go, I actually thought this is wrong and stupid. If it's, you know, Again, if it's proved up. But I just thought. I'm sorry, you're charging her with theft of government property and we're talking about volume two, which, by the way, is still not seen the light of day. It's not like she. She shouldn't have sent it to herself on a personal account with no, like, legitimate reason to potentially be doing that, which I can conceive of some. But, like, this does not look good, especially the changing of the name. But it's like, I'm sorry, theft of gunpowder. This is theft of government property. What did we just spend our time talking about? I mean, there is no way. There's no way, based on the known facts, that $1.776 billion, in my. I can't really say, in my humble opinion, because I think most of my friends would go like, Andrew, you need to drop the word humble from that. In my not humble opinion, that is theft of government property. That is taking taxpayer money with no legitimate basis. And by the way, unmarried. Just to be on my high horse in that. Have you heard Todd Blanche in any way, shape or form justify how he got to that number? Like, why that is a quote, unquote settlement?
- [47:52]
Mary McCord
Because it's the 250th anniversary of the country of the Declaration of Independence, 1776. It was a symbolic number. It's not tethered to any kind of facts.
- [48:03]
Andrew Weissmann
Right.
- [48:03]
Mary McCord
Except that it's the 250th anniversary of the Declaration of Independence.
- [48:07]
Andrew Weissmann
Yeah. So under that theory, July 4th is coming up. So I think I'd like to put in stuff for you and me and the podcast.
- [48:14]
Mary McCord
That's right. So let me also talk about the hypocrisy. I mean, she was sending herself Volume two, which is a volume of Jack Smith's report about the Mar A Lago investigation, who transported not just government documents, but highly sensitive classified national defense information to his personal home without authority. What was that very volume about? It was about the mishandling of classified information at Mar A Lago by Donald Trump.
- [48:42]
Andrew Weissmann
Of government property.
- [48:43]
Mary McCord
Of government property. Classified. So this is actually what I think concerns me the most about this case that I'm getting to. It's like, I read this indictment, and if the allegations are true, it's like clearly calling something Chocolate cake recipe. You know, you're not supposed to be doing this. But here's what gets me. I have not seen any reporting, nor is there anything in the indictment that suggests that she leaked this or shared this with anyone. Nothing suggests there was anything classified in it. Again, still wrong. But nothing suggests there was anything classified any NDI in there. So why was the government snooping about in her emails anyway? Now can the government do that? Your business government email is not. You don't have a reasonable expectation of privacy in it. Certainly it can be searched by the government. Yes, but why? If there's been no leak, right? If there's been no allegations of a leak, if you haven't seen that volume two pop up someplace else, why were they just going around and looking at prosecutors emails? Was it just to see if they could catch somebody doing something? It just makes me feel a little icky.
- [49:48]
Andrew Weissmann
You feel the ick?
- [49:50]
Mary McCord
I feel the ick. Now you could have searched my and I'm sure they have searched all of my government email accounts already and wouldn't find anything of particular interest there. But it does give you that feeling that there is just a snooping around trying to catch some, you know, DOJ attorney doing something that they could prosecute. Because this is overcharged. It's wrong. If the allegations are correct, it's wrong. You and I both agree with that. You shouldn't have done it. But felonies and other things, it's just grossly overcharged.
- [50:19]
Andrew Weissmann
The hypocrisy is just outrageous. But Mary, shall we take a break and turn to a case that you and I really think is important? And also like the Chicago case that we started with, is one that's gone under the radar screen and is so important to memorializing history and not whitewashing what is going on. So let's take a break and come back and talk about that case.
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Mary McCord
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Mary McCord
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Andrew Weissmann
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- [52:27]
Mary McCord
Welcome back. The case is actually brought by the American Historical association and the Freedom of Press foundation. And it was a case of challenging the government's new interpretation that the Presidential Records act is unconstitutional and therefore it does not have to comply. And the Presidential Records act, folks will remember, is an act passed by Congress after Watergate, which says the records of the president are the public's records. They need to go to the National Archives at the end of the presidency. They can still stay pretty much under wraps there for a minimum of 5 years and even 12 years and classified things even longer. But they are the property of the United States of America. The archivist will go through them. The president can make some designations before he sends things there, things that are just purely personal, that aren't about the actual official functions of the president, but everything else has to go and it's maintained and why it's maintained so that future presidents will be able to access it as they're trying to educate themselves about how to respond to particular things that come up during their presidency, foreign and domestic. It's there so that historians in the future, when that time where it's not made public is over, whether it's five years or 12 years in the future, we'll be able to look back and we'll be able to write about history and compare how the government under different presidents has reacted to different things, foreign and domestic.
- [53:56]
Andrew Weissmann
Right.
- [53:56]
Mary McCord
It's there because these records are the people's records. They are not the president's personal records that has been abided by, by the executive branch for 50 years. And suddenly under this president, the OLC, the Office of Legal Counsel, says it's unconstitutional.
- [54:13]
Andrew Weissmann
And so that's an internal decision within the Department of Justice saying that they think it is unconstitutional. That doesn't make it unconstitutional. They're not a court.
- [54:23]
Mary McCord
That's right.
- [54:23]
Andrew Weissmann
So they're saying, oh, we suddenly are deciding that this infringes on the president's powers to do whatever he wants. By the way, what's remarkable about this, I'm old enough and Mary, no offense, but you're old enough to remember the whole Hillary Clinton email scandal, where the whole issue was that she was using a personal server and her State Department emails were being sent to a personal server. And she had all sorts of arguments about how if she was communicating with somebody at the State Department, part of it was still on the State Department's servers, but she was keeping it on a private server. Well, here you have the government and the OLC saying that the specific issue is presidential records, but there is something called a Records act that applies to all sorts of presidential appointees. I did this for Director Mueller when I was the general counsel. We had a whole protocol about how to collect, preserve, and then make sure they got to the archives, the presidential records. And it was a, as you could imagine at the FBI, and a button down. Robert Mueller literally buttoned down in the. Both in this shirt and then the way he behaved. We had a whole system for it. But. So there was all this criticism for Hillary Clinton. But if you go to what the government's position is of this administration is we don't have to comply with the Records act, we can use government communication devices. We can use private communication devices. We can use you. Exactly. I was like, you and I have been doing this for a long time. It's like, signal gate is no longer a gate because it is like, oh, that should be totally allowed to use private emails. By the way, leave aside the issue that, Mary, you and I, as people who are in the intelligence community, would say, like, even if that was lawful, that is stupid. Because, I mean, the whole reason you're using government facilities is not just the Records Act. It is also because it is more secure. And you can make sure that you have a way to make sure that you're not being infiltrated by adversaries. And so here you have the administration saying, we get to do whatever we want. One of the things I found shocking, Mary, is in going through the arguments that have been made is the government is not even sending out advice to the White House to people there saying that you must use government communication devices. That here just says you should use government communication devices as opposed to personal ones. I found that just sort of shocking to me.
- [57:00]
Mary McCord
Yeah. And actually that brings up why this case was brought.
- [57:03]
Andrew Weissmann
Right.
- [57:03]
Mary McCord
So the litigation was brought not just because OLC now has this opinion. It's because if OLC has it, that's what's going to guide the executive branch. And the plaintiffs were afraid that the President and the executive office of the President would just start destroying presidential Records because they think the Presidential Records act is invalid. And so they brought the case up to seek an injunction, saying, you can't destroy things, you know, you can't use devices like you were just saying, you know, for communications, you need to be keeping text messages, et cetera. And Judge Bates issued this injunction. It's, you know, limited to certain things, and we can talk about it. But it's another case where I think it bears mentioning how he starts his opinion, because he starts it with a quote. But this is not from Robert H. Jackson. This is a quote from George Orwell's 1984. The book 1984, written in 1949. Who controls the past, controls the future. Who controls the present controls the past. That's the quote. And then I think his introduction, Judge Bates, to why this Presidential Records act is so important before he even gets to the constitutional issues, I think is really profound and easy for people to understand both at the same time. He says, perhaps with that lesson in mind, Congress enacted laws to ensure that government records are created, preserved, and made available to the public. Among those is the Presidential Records act, which mandates the preservation of materials related to the official responsibilities of the president. In so doing, the act democratizes the history of an indispensable institution. Access to those records allows future presidents to pick up where their predecessors left off, Congress to identify inefficiency and misfeasance, and the public to learn from the mistakes of the past. Now, however, almost 50 years after its passage, the executive branch asserts that the Presidential Records act is unconstitutional.
- [59:07]
Andrew Weissmann
This really fits with the idea that we've been talking about in terms of not just lies, but the idea of masking and whitewashing the truth.
- [59:18]
Mary McCord
Yes.
- [59:19]
Andrew Weissmann
The idea that January 6th didn't happen. These are victims, not perpetrators. The idea here that we can get rid of the documents, that would not be helpful. So it's harder to judge, you'll remember, from the Trump first term. He famously said to his White House counsel, why are you taking notes? Meaning, don't write anything down. And he said, roy Cohn never took notes. The idea is that the facts are what I tell you they are. They're not what you see. All the reporting now that the Department of Justice has confirmed that they're removing from the Department of Justice website all of the information about what the people convicted on January 6th did, what they were charged with, what they were convicted of. And by the way, I could go on and on about the sort of sanitizing of databases, the sanitizing of the Smithsonian, where this idea of we are going to tell you what the truth
- [60:14]
Mary McCord
is and what history is.
- [60:15]
Andrew Weissmann
Yes. So the quote from George Orwell is so apt to the situation we're in. And that is such an obvious tool that authoritarians use to be able to exert power, where you deny access to the truth, the access to the facts.
- [60:34]
Mary McCord
That's why it was a great way to begin. Right. It really was. Get people understanding why this matters on the merits. This is a Youngstown case. We've talked about it so many times. This is where the court looks and says, look, if Congress has authority under the Constitution and it has exercised that authority, then that's when the president's authority to countermand that is at its very lowest ebb. And he says here, the Presidential Records Act I'm finding on this preliminary injunction posture is likely constitutional. It was validly enacted by Congress under the property clause of the US Constitution, which for those who don't have their pocket Constitution handy, I will read it says that the Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. So he concludes that the Presidential Records act is Congress exercising its authority to make rules for the preservation of other property being presidential records. He says it's also a valid exercise of the Necessary and Proper Clause right. Congress shall make all laws that are necessary and proper. And it is because it promotes the accountability and efficiency of executive branch operations. He says it doesn't impermissibly intrude on the president's core powers or functions, especially because, and this is a quote, presidents, including President Trump in his first term, have complied without complaint for almost 50 years. And new guidance for the Executive Office of the President voluntarily imposes similar burdens to those the government now decries as unbearable. And that's the part we haven't mentioned yet. Even though OLC Office of Legal Counsel said it's unconstitutional, you don't have to follow it. The executive branch itself then promulgated its own sort of internal guidance, which tracks not perfectly, but very closely with the Presidential Records Act. So Judge Bates is saying, how can you come in here and say, this is so burdensome. This is so unbearable. It's such an infringement on the rights of the president to have to maintain records when your own internal guidance is saying, maintain these records with a few exceptions, but that's the posture that we're in.
- [62:52]
Andrew Weissmann
Yeah. And people might be saying, well, if they're kind of doing it internally anyway, why does this matter so much? And it's because internal rules can be changed at a drop of a hat and the President can just be like, yeah, well, I decided not to follow them. That's right. And it wouldn't be a problem. Whereas here it is a congressional law and you would be breaking the law to do that. And so this is a really, really important case. It is so emblematic and taking on the Les Tass moi, the state is me view that we saw Donald Trump apply when he as part of his defense in the Mar A Lago case, where he's like, what do you mean, their government records? I am the government. They're mine. As if he had just taken down a painting of George Washington from the White House and been like, oh, they're all mine. And frankly, to tie it all together, this is what we're saying about the 1.776 billion. It's like, what do you mean? This is mine too. There's just the fig leaf of a settlement.
- [63:51]
Mary McCord
Mary, deep breath.
- [63:53]
Andrew Weissmann
By the way, everyone who is listening to this, big, big thank you. We knew we were going to go long today because we really wanted to cover things, particularly the things that had not been getting attention that we really felt an obligation to call out and not let it get swept under the rug because there's so much other news. So thank you very much everyone for listening. Just one more quick personal thank you again to everyone who has been bearing with me to listen to me on a million different shows and podcasts talking about my book and everyone who has bought Liar's Kingdom. I just want to thank you so much. It means so much to me. Remember, you can subscribe to MSNow Premium on Apple Podcasts to get this show and other Ms. Now originals ad free. You'll also get subscriber only bonus content. And remember, you can still find us on YouTube. We were on video and audio last week, but we're still on Audio on YouTube if that's the way you get your podcast. So head to Ms. Now main justice to listen to us on YouTube.
- [65:06]
Mary McCord
This podcast is produced by Vicki Virgolina and Donnie Holloway with production support from Max Jacobs. Our associate producer is Nico Vinuela. Colette Holcomb is our intern. Bob Mallory and Hazik Bin Ahmad Fared are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for MSNow Audio.
- [65:29]
Andrew Weissmann
Search for Main justice wherever you get your podcasts and follow the series.
- [65:52]
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