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- [00:00]
A
The prosecutor excused grand jurors who disagreed with the government's case from the deliberations process. If you say, oh, you disagree with me, you're excused. You've completely undermined that. I mean, this is, like, jaw dropping. As a former prosecutor for 20 years, like, I just cannot fathom any prosecutor doing this.
- [00:23]
B
Hello, everyone, and welcome to the Illegal News. I'm Sarah Longwell, publisher of the Bulwark, and as everyone knows, I am not a lawyer. So today I'm joined by the great and the good Mary McCord to help me break down all the legal news. You will know her for many things because she was a prosecutor in the D.C. u.S. Attorney's office for nearly 20 years. She oversaw the National Security Division at the Department of Justice. She's at Georgetown University. She co hosts, and this is the thing, she co hosts the Ms. Now podcast Main justice with my buddy and yours, Andrew Weissman. Do you. How has it been sharing Andrew?
- [01:02]
A
It's been okay. Yeah, we just. We just recorded this morning, so I feel like I get Andrew and I get you today, Sarah. So what could be better?
- [01:10]
B
It is. It's the best. I'm super excited you're here. I suspect you're the superior of the duo, and so I'm the real law
- [01:20]
A
commentator, and he's like, the color. No, I'm kidding.
- [01:24]
B
Oh, well, speaking of which, this is my challenge to you. Just as we kick off, Andrew likes to tell a story. You know, you know me, I'm rigid. I want to just stay on track and get the information out there, but Andrew's got other plans. Do you have any stories that you'd like to just weave in or introduce to the audience?
- [01:43]
A
I will try to do that as we work along, but, you know, because Andrew does tell so many, as he like to call. Likes to call them anecdotes, I feel like I just really can't tell stories because then we would not ever get to the legal news of the day.
- [01:56]
B
So this is where he and I really go off the rails. Both of us. Both of us struggle with not wanting to tell stories. So this will be good. This will be good. I want to start with Trump's $1.8 billion slush fund. We've talked about the fund a lot on this podcast over the past couple of weeks, but since we last recorded, a couple of sort of big developments have occurred, even after Andrew and I talked. So first, the do posted the actual settlement agreement to its website, and a lot of the settlement terms were previously disclosed. But one remarkable provision says that everything the fund does, including who files the claims and who receives the money, will be confidential. That cannot be legal. That isn't I. That, that one really. I mean, there's a couple of these things that really blow my mind. So actually, and I'll just tell you the second and then I'll let you go and cook. Another term of the agreement is that Blanche will select the five members who operate the fund, but Trump can fire any of them without cause at any time. So assuming I've gotten those provisions correct, what, what, how is it legal?
- [03:07]
A
Let's just start off because by saying this is not actually a $1.8 billion fund, this is a $1.776 billion fund, which Todd Blanche has made clear is symbolic. 1776, the 250, the Declaration of Independence. And why do I bring that up? Because that amount is not tethered to anything, right, Other than the symbolism of the year. It's not tethered to any like projection of what claims might be worth or demonstrated sort of injury. Nothing. It is pulled out of the sky to be symbolic of the 250th anniversary. And I think that just sort of starts to set the tone for this whole fund. But you're right, it lacks transparency, it lacks any accountability. It is just a, basically a big slush fund of free money stolen from the taxpayers to pay out to President Trump's allies. Because as you indicated, if he can get rid of any one of the five members of the board, and I suspect he's probably whispering in Todd Blanch's ear about who to appoint to that board anyway, or commission, if he's able to get rid of any of them without any cause at all, then, you know, they certainly are not going to have any incentive to make any awards that they think he will disapprove of. And if they do, they'll be gone immediately. So there's sort of like no real accountability. There's no real, you know, the, the, those members get to come up total discretion to come up with the procedures the board will follow, total discretion to come up with what types of relief they will award. And the criteria are so open ended, it's just kind of like the strength of the claim, the claimant's actions, whether the claimant ended up spending any time in jail. These are all, you know, like vibes. It's like very vibes feeling. But to your point, then their awards are going to be confidential and there's no requirement at any point that the commission make these public or that the AG or the acting AG as it is at the time, make this public. And you ask, is that lawful? Certainly the Department of Justice has entered into settlement agreements in specific cases in the past where the terms can be confidential, that can be a part of it. But this is not a specific. Right.
- [05:31]
B
Settlement.
- [05:32]
A
Settlement. You know, I mean, the settlement agreement is a settlement with Trump, and those terms are not confidential. They've shared those with us. But all of the rest of what the Commission does are things that we're not going to have any visibility into with this the way it is currently written. So I do suspect we will see litigation about that as well as about, you know, violating the appropriations clause to use the money this way, and then certainly litigation about how it gets dispensed,
- [06:01]
B
this idea of them not disclosing it. Actually, I was starting to say, okay, obviously I think that the slush fund is horrible, but I was like, okay, but every time they give out, you know, a payment to a January 6th insurrectionist, somebody who assaulted a cop, I was like, that's another public opportunity to sort of demonstrate the corruption. But if we don't get to see it, that's a wholly different matter. And so I think I had not clocked until pretty recently that we weren't going to get to see the way that this was distributed. And that feels specifically, especially because it is just a taxpayer slush fund, it's not, you know, set aside in some real settlement or anything else. I mean, every piece of this gets more and more egregious on that point
- [06:49]
A
before you move on, Sarah, like, this is why Congress needs to get off their butts, right? And start having hearings. I mean, first of all, they could change this anytime they want. By statute, the fund that this money is coming from is the judgment fund, which was a statutorily created fund. They could go in, they could say, no money can be used for this. Right? No appropriations can be used for this. They could have hearings to say, if we're going to let you do this, then you need to make everything public. Right. You need to have every single claim as part of a public record. Like, these are all things in Congress's power. So, you know, we should certainly be blaming Donald Trump and Todd Blanche for this creation of this taxpayer theft. But there are some other people who have power here, and they really need to be using that power.
- [07:36]
B
Yeah, it's a real theme of this podcast, the abdication of any responsibility that Congress. But here's a quick question. Is that what Lawler, I'm Sorry, not Lawler Fitzpatrick is doing right now because so far I've seen he's written a sternly worded letter. But there is murmurs among some of the Republicans that they want to stop this. I mean, over the, we've seen just the ever so slight beginnings of spines from some of the Republicans saying, like, this is an insane thing to do. We can't do it. So does it look like they're going to act?
- [08:09]
A
So that's so interesting because last week, you know, I mean, at least according to public reporting, after Todd Blanche came and sort of tried to talk Republicans down off the ledge, that apparently did not go very well and they had to table, you know, a vote on funding for immigration measures. And, you know, on the House side, we also saw the tabling of a War Powers resolution vote related to the Iran war. I think also potentially in part because of people are very upset about this fund. I felt last week like maybe we were starting to see a little bit of spine by members of Congress. This is so personal to them, I think. I mean, not only is it using money for purposes they did not approve of and they have the power of the purse, but for those of them who were there on January 6, 2021 and had to run for their lives, literally run for their lives, I think they are deeply offended that some of this money might go to those who are, were responsible for that attack on the Capitol. Capitol, even those who have since then started to recreate history and refer to that event as peaceful protests and so on and so forth, they know better. They know that's not what it was. And I mean, even folks like Mitch McConnell, right. Who conveniently is leaving, had something to say about how horrible this fund was. I do think those, I mean, between those have been primaried and lost their primaries and those who have already, you know, indicated they'll resign. I mean, they've got some power there and they're in office until January and ought be doing something to push others to, you know, really push back on this.
- [09:48]
B
To the extent that Democrats have some opportunity here, it's to go grab some of these YOLO Republicans who Trump has spent millions of dollars on seating and who has aggressively got, you know, he's gone after them. And we've seen this now Cassidy is suddenly like, oh, no, I guess I'll vote differently. And Tillis has been more outspoken. And so and he's attacking Fitzpatrick right now. And Fitzpatrick's in a Kamala Harris plus two or three district. And so he can, he can stand to stand up to the president a little bit. It actually helps him now that he's in the general election, he's out of the primary. And so it seems like the opportunity to build a big enough coalition to get some stuff done and to rein this in. Here's the other thing, though. So that is the first insane part of the slush fund that I think has not gotten as much play as just the fact that it exists. Okay. So the first is the anonymity of everything. The second, and this is like a crazy one, the DOJ posted a one page addendum to the settlement which apparently bars the IRS from auditing Trump, his family or his affiliates. Affiliates. Quotation marks, I don't know. Are there any details there that you can fill in about how exactly this addendum prevents audits of Trump and his kids? Like forever? Can they. Are they forever exempt? Is that what this is?
- [11:07]
A
So I just want to be clear. This isn't just about audits of Trump. And I think if you compare the settlement agreement with the addendum, it's really interesting because the settlement agreement has a provision that we would expect in any settlement of litigation by the Department of Justice, which is that now that this matter is settled, the department won't at some future time, decide they want to file a claim against you, civil or criminal, launch an investigation based on the subject matter of the settled lawsuit. Right. That's pretty typical. That's in the settlement agreement. The addendum then takes that provision and expands it to include everything. It's not just about IRS audits. It is that the US Will not bring any investigation, examination, civil claim, counterclaim, criminal claim, anything against Donald Trump, his family members, related or affiliated individuals, his companies, including trust, parent, sister related companies, affiliates, subsidiaries, arising not only out of the matters that were part of this settled lawsuit, but also arising out of lawfare or weaponization, whatever the heck that means. And any manners, anything, any matters currently pending or that could be pending, including tax returns. So that's why everyone is focused on the tax audits that could be pending before the Department of Justice, IRS or any other federal agencies as of the time of the settlement. That means it is the equivalent of like a civil pardon. The Department of Justice will never bring any claims against you, including investigations, audits, etc. For anything that you or any of those people have done up through the time of the settlement. That is crazy. That is well beyond anything that we could ever have imagined to see in a settlement agreement. It's in this separate addendum and Todd Blanche really didn't have the authority to give that kind of a broad waiver of future claims. And I suspect it is possible that a future administration, if evidence comes to light about certain wrongdoing that would otherw be covered by this. They might say, you know what this is worth about the value of the piece of paper it's printed on? Rip it up and wait for the litigation. And then there'll be good defenses to the litigation that Blanche and the Department of Justice didn't have an authority to do that, to waive everything. Particularly because the IRS and the Secretary of Treasury have their own authorities that don't convert to DOJ unless and until a referral is made to DOJ. They have authorities to engage in investigations, audits, etc. They are the ones by statute, by congressional statute, who can decide to compromise and settle an investigation or audit. And that's the Secretary of Treasury's authority. It's only if he makes a referral to DOJ that DOJ can settle it. And there's also a statutory provision, and you've probably heard about this one, that says the President and the Vice President cannot direct the IRS to either start an audit or investigation to, or to terminate one. So there are good bases to believe that this is just a void and voidable addendum.
- [14:19]
B
Okay, so you think that they can terminate this eventually. But that reminds me, I was going to ask you, what about when, if Democrats take control of Congress, like, is this something that they can undo, you know, 10 months from now, 100% now,
- [14:35]
A
it would be harder to undo anything already paid, of course, but they.
- [14:40]
B
Right. They can't like claw it back.
- [14:42]
A
Yeah, they can certainly change the laws we were talking about before, things that should be happening right now. They can say no money, no appropriated funds can be used for this $1776 billion slush fund. They can do that. And I suspect that if they take over, they will do something like that. He will then try to veto it. Right. So then you gotta be able to override that veto.
- [15:08]
B
Well, that's interesting, that's an interesting political thought experiment for the future is if Trump really continues to sink in the polls, there's an absolute rout in the midterms. Do they have the ability then to override his veto? And will Republicans at that point be willing to do something about it? Okay, maybe. I don't know if I should or should not be feeling slightly better, but it does feel like there's at least mechanisms to do because this is, this is genuinely mind blowing and it's probably a matter for a different podcast where we really get into the political side of it. I think Trump has been in a constant testing, like a constant testing of boundaries and, you know, shattering norms and then shattering laws. This is just one of those where you think it should be impossible for him to do this. Nobody should be able to get away with this. The slush fund of it all. But then also the. The inability to ever hold Trump accountable or do any audits, and there being no transparency, like, at every phase, this feels like something that shouldn't be allowed to happen. And so I'm glad, at least there's some mechanisms for recourse as we go. But it's going to take winning elections. This is why political power matters. Another big development over the past week is that two Capitol Police officers who defended the Capitol on January 6th have sued Trump in the administration to block the slush fund. I wasn't sure it was. It sounded to me, again, not a lawyer, but that they were trying to use the 14th amendment, the insurrection act, which they tried to do before or people brought this. I remember Judge Ludig and some of my friends were, you know, Trump could be disqualified under the 14th Amendment, and, like, nobody bit on that. So does this have any chance of success?
- [16:49]
A
You know, it's a. It's an interesting lawsuit. Their theory of standing. Remember, to bring a lawsuit, you have to show that you are injured by whatever it is that you're challenging and that your injury is, you know, that's called traceability. First of all, you're. You're suffering a real, real injury. Your injury is traceable to the conduct of the person that you're suing and that the relief you seek would actually redress your injury. So these are officers who were injured during that attack. So they certainly have an interest in those who were responsible for that attack and that violence, not receiving money, especially since those people were, in many cases, convicted by a jury of violent crimes to which they, you know, which they were the victims of. But, you know, this fund is much bigger than the January 6th defendants. Right. It can also be used to pay off, you know, people like Steve Bannon and Michael Flynn and anyone else who the president thinks has been the president, the five commissioners think have been wronged by lawfare or weaponization. Right.
- [17:55]
B
Think you're plenty right the first time. Yeah.
- [17:57]
A
Yes. Right. That's right. So, you know, there will be arguments the government will make about whether these officers have the standing to challenge the whole fund, but they. Very good points, I think Just about the illegality of the fund. And it's good just to start getting that out there. I think there will be other lawsuits, too. And this question of standing, Sarah, is one of the things that we've seen with this administration ever since we've been in Trump too, this judicial doctrine under Article 3 of the Constitution, that you need a real case in controversy to have standing. And with somebody with standing, you know, that is oftentimes a barrier to litigation if there's no party that's got the right standing. Now, remember, the slush fund was created out of a settlement of a case that the judge who was reviewing that case had asked for briefing on whether there was a case or controversy. Because Donald Trump was on both sides of the case. Right. He was the plaintiff and then he was responsible for the executive branch. So it's ironic at the very least that you would have no case or controversy resulting in a slush fund that is hard to challenge because who's got the right standing? Congress would have standing to challenge because, you know, this money was used in violation of arguably law, the law that established the Judgment act and without authority by the president. But is Congress going to do anything like bring a lawsuit? Others, I think, will have theories of standing. But ever since the beginning of this administration, one of the things I've noticed about the executive lawmaking that is happening is it's been a burden shifting exercise. Normally, the executive branch would try to have legal, you know, legal opinions and legal grounding for the things that it does because it would be worried about litigation and not just it would be worried about litigation. It wants to, like, comply with the Constitution, comply with statutes, have the people of America, like, have trust and faith in, in the government that it's actually working for them. But this administration just completely shifted that burden. Said we will just do things without seeing if they're legal, and we'll put the burden on others to challenge it. And sometimes they're not going to have standing. And also, there's just so much a flood all day, every day. There's no way there'll be enough lawyers, enough plaintiffs to challenge every single thing we do. It's so against the very notion of a responsible executive branch taking care that the laws be faithfully executed when what they're doing is just breaking them one after the other after the other, the Constitution, statutes, and saying, maybe we'll just get away with it because no one will have standing to challenge it, or maybe we'll get away with it because people can't bring that Many cases. It's expensive to bring cases. You need lawyers. You need time, effort, money. And maybe we'll get away with it because the Supreme Court, at least for some of these things, will say it
- [20:49]
B
is a, okay, am I taking crazy pills? I feel like I'm taking crazy pills. It is insane that this stuff, it feels like they could get away with this. I'm going to move off that topic because it's unpleasant for my nervous system. All right, let's, let's switch to something that's actually good news. I was talked with Ben Wittes a couple of weeks ago about Cash Patel and in particular how Cash incorrectly referred to Kilmar Albergo Garcia as a convicted gang banger rapist during congressional testimony. Well, Cash may be surprised to find out that last week a federal judge dismissed the government's indictment against Abrego Garcia. And so maybe you can fill in the details of this case and tell us about it, but why did the court dismiss the indictment last week?
- [21:33]
A
So this was dismissed on the grounds of vindictiveness, that it had been brought vindictively against Abrego Garcia. In response to Abrego Garcia going up all the way to the Supreme Court originally litigating the the district court after he was illegally and mistakenly extracted from the country on that on one of those two plane loads of alleged members of Trend Aragua, which he has not, and sent to a terrorist detention facility in El Salvador. A lower level Department of Justice attorney admitted that was just a mistake, an administrative error. His spouse sued to get him brought back back and the US Supreme Court said, you've got to do what you can US Government to facilitate his return. As soon as the court issued that opinion, you had high level members of the administration claiming they had no way to do that. He was in the custody of a separate sovereign El Salvador and there's nothing that the administration could do to bring him back. But what did they do behind the scenes that we didn't know about the time they reopened?