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The Breakdown | FBI Makes Stunning Admission On Epstein Files
00:33:58
In a stunning admission, the FBI just confirmed to me the existence of training videos instructing FBI analysts on what to redact in the Epstein Files. I’ll show you the letter and discuss the massive implications.
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A
Diamond Dames, mount up.
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B
I'm Charlotte Clymer.
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A
And I'm Alison Gill. Hey, Charlotte, what if you and I joined forces to create a weekly podcast amid all the chaos of the news to chat about the most recent episode of season four of Ted Lasso?
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B
Well, Allison, we'd be taking delight amid the spite, to sit and write and bring some light on Wednesday nights. I mean, look, everything right now is ridiculous. I know we're all stressed out with the state of the country, and we all deserve some joy. Ted Lasso was there for us in the middle of the pandemic, and he's back to offer us a respite from Trump 2.0 right before the midterms.
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A
That's right. We believe in Rom communism. I mean, if Tom Hanks and Meg Ryan can go through some heartfelt struggles and still end up happy, then so can we. So subscribe to Diamond Dames for free right now to get notifications, and then you can join us every week and after each episode of ted Lasso Season 4, wherever you get your podcasts.
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B
And remember, be a goldfish. Diamond Dames, dismount.
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A
Barbecue sauce. Hey, everybody. I'm Alison Gill, host of the Daily Beans podcast. Welcome to the Breakdown. Thanks to Midas Touch for hosting this show. I have some exclusive breaking news. No one has seen this yet. It's regarding the Epstein files. Now, the FBI has admitted that it has in its possession training videos instructing analysts at the FBI on how to redact the Epstein files. They have admitted that they have them. Now, you'll recall multiple anonymous sources who participated in reviewing the Epstein files at the FBI. And DOJ confided in me late last summer that in addition to being locked in the building, sometimes for 24 or 48 hour shifts, forced to review hundreds of thousands of pages of Epstein files and videos and photos so that they could log and redact certain information, including Trump's name. And they confided in me that there existed an unclassified SharePoint site where a PowerPoint deck lived, and that PowerPoint deck is had training videos embedded in it, instructing them on how to find and log and mark Trump's name and other information for redaction training videos. Mostly because the imd, the Information management division at the FBI, generally doesn't redact for publication. It's usually a place called RIDS with the FBI, which is a much smaller division. And so in order to get more people to be able to do this, they paid millions of dollars in overtime and over five days, and they locked the Entire Information Management division in the building wouldn't let them leave. And that's where we get the number of at least a thousand people reviewing the Epstein files. Because IMD wasn't really trained or certified on how to redact things for publication. So they had to create. The FBI had to create these training videos. And apparently some of them specifically told them how to use an Excel spreadsheet to log Trump's name, the page number, and. And the document. Now, at this time, the existence of the training videos was not known to the public. So I held onto that information for literally minutes so my lawyer could file a Freedom of Information act request because these videos shouldn't be exempt under the Freedom of Information Act. And when the FBI didn't respond, my lawyer filed a lawsuit on behalf of my media company, MSW Media, because we wanted to get those videos from the FBI. Our FOIA request said, quote, all videos stored on SharePoint on the unclassified side or SharePoint on Butube on the classified side, which were created or used to train FBI personnel in how to review records about Jeffrey Epstein. Then, late last year, Jason Leopold received dozens of pages of internal FBI emails pursuant to one of his Freedom of Information act requests. And one of them, as you can see here, included a PowerPoint deck entitled the Epstein Transparency Project. I thought when I saw that for sure, that's the PowerPoint my sources described to me earlier that year. Now, at first, the FBI came back and said, I'm not a real media figure, so I can't make this FOIA request regarding fees, which my lawyer promptly appealed. And as you can see in this letter, we won our appeal. It says the FBI has informed this office that it has changed your client's fee category to representative of the news media. Accordingly, as there is no longer any action to consider, I'm closing your appeal file in this office. So, yay, I'm a real media figure. Well, this week. This week, we received a response to our Freedom of Information act request for the videos. And we thought for sure. I was like, they're going to deny they exist because they didn't release them in any of their productions of the Epstein files. Transparency Act. But they didn't deny their existence. They told us they do, in fact, have them and that we think they're wrongfully withholding them under FOIA exemptions. So we have them, but we're not giving them to you. They have them. And that's what we're going to cover on today's episode of the Breakdown. Hey, everybody. Welcome to the breakdown. I'm Alison Gill, host of the totally free Never Pay Wall Daily Beans podcast. Thanks to Midas again for hosting this weekly show here on their network. And joining me today to discuss this blockbuster revelation from the FBI is my lawyer with national Security counselors, please welcome Cal McClanahan. Hey, Kel.
- [05:45]
C
Hey. How you doing?
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A
I'm doing great. This is a really stunning, stunning revelation. This was kind of one of the goals that we set out and to achieve. So it was late summer when we filed our Freedom of Information act request. And then in November, the Epstein Files Transparency act became law. And I thought, oh, well, they're going to release these training videos pursuant to the act at least, because Section 8. Let me put it up here for you. Of the Epstein Files Transparency act says any communications, memoranda, directives, logs, or metadata concerning the destruction, deletion, alteration, misplacement or concealment of documents, recordings, or electronic data related to Jeffrey Epstein, his associates, his detention and death, or any investigative files. So after the couple of productions, there was still nothing of these training videos. But this week you received this letter, let's put it up here. Admitting they have these videos, Kel. They said, Dear Kel McClanahan, this is in response to your Freedom of Information act request to the FBI. Please see the paragraphs below for relevant information specific to request and see the enclosed FBI FOPI FOIPA addendum for standard responses applicable to all requests. The FBI completed its search for records subject to the FOIA that you that are responsive to your request. Media consisting of videos has been reviewed under Title 5, United States Code, Section 552, 522A. And this material is being withheld in its entire by the FBI pursuant to these exemptions, B5B 6B 7C and B7E. The exemptions are used, are explained on the enclosed explanation of exemptions. So, Kel, they have the videos. They have them.
- [07:36]
C
And I have been in cases where the entire point of the case was to get the agency to say that something existed, even if it was classified, even if it was privileged. Sometimes that's all you need. And. And I've actually settled cases where after they said this and they described, yes, this is a report we have. We're not going to release it to you. I'll go back to my client. And the client, normally a reporter will say, well, that's all I needed. You know, it'd be nice to get it, but I don't think we can, so go and dismiss the case. We're not going to do that here. But at least they have admitted that these things exist, which is a big deal.
- [08:18]
A
Yeah. Now let's say they never passed the Epstein Files Transparency act and we got this letter. What are these exemptions? This B6, B5, B7C. What are these exemptions? And regardless of the Epstein Files Transparency act, why are these exemptions wrong? Like in your opinion, why they're, they're withholding these things incorrectly under the Freedom of Information Act. Like, we'll talk about Epstein Files Transparency act in a minute. But what are these exemptions?
- [08:50]
C
Well, B6 and B7C are the easiest to talk about. And those are your privacy based exemptions. That's the releasing names, releasing personal phone numbers, stuff like that. B6 is for the entire government. B7C is in law enforcement files. Now, FBI has always taken the position that something on their lunch menu at the cafeteria is still a law enforcement file because we're the FBI. So they take B7C to withhold the name of the general and the chicken that they serve on Chinese Day. The. That is not the one that's most interesting. I would actually probably concede that the B6 and B7C part are legitimate. It's the name of the guy who is providing the video or, you know, his direct phone number, his direct email address, something like that.
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A
Right. Like in that Jason Leopold email that had the PowerPoint on it. They redacted the name of the person
- [09:55]
C
who sent that and that was B6 and B7C. B7E is another law enforcement exemption that the FBI woefully overuses. It's the one that would expose sensitive law enforcement techniques and procedures. It's to keep you from learning that they have a program that'll go and sniff through files and do something, or that they have a system of reviewing transcripts that can go much faster than a normal transcript and can read between the lines and intuit meaning or that they have a series of moles inside of a criminal enterprise, that B7E it has to interfere with law enforcement. And the FBI has literally said that allowing someone to win a FOIA case against them where they had claimed that it would interfere with law enforcement, would interfere with law enforcement, because then they wouldn't be able to withhold the information they wanted to withhold, that's vital to their law enforcement mission. I have that in a brief that unfortunately the judge just kind of rolled her eyes and ignored. But that's what B7E is. And that's where they're going to say, well, the way in which these things are stored, the way in which this information is cataloged, that's going to be a sensitive technique. Their entire FOIA document processing system, they say, is a law enforcement technique. How they process FOIA request. So it's about the processing software and the management and how to redact things. It's stupid. Probably challenge it in court. We'll need to know more about that later. B5 is where this case is going to rise and fall, even without the Epstein files, the Transparency Act. Because B5 is, as my friend Nate Jones, who is now with the Washington Post, used to be with the National Security Archive, called the withhold what you want to exemption. It's the privilege exemption, where you can withhold attorney client privilege stuff. Attorney work product itself and most importantly, what they call deliberative process. And deliberative process is anything said between one person and another person that would reveal how the agency thought about thinking about doing something. If it's not a final signed memo that has been put into effect, it is deliberative according to some of these agencies. And FBI is really bad about that. So they're going to say, oh, these were trainings, these were suggestions, these weren't decisions, these were things that were recommendations for how the reviewers could deliberate and think about redacting this information. That's what this case is going to be about again, even without the deliberative process or even without the Epstein files angle.
- [13:02]
A
Yeah. And to remind folks about some of the things that Trump governments have used deliberative process to hide. When Bill Barr wrote his Donald Trump didn't commit obstruction of justice in the Mueller investigation memo that somebody sued for under a FOIA request, the judge, you know, that, that was their, that was deliberative process and really deliberative over 16 hours when you, before you, you know, right after you got the report and to, to come up with this with I think the pay dag and a couple other people in the DOJ with Bill Barr wanted to redact that memo. The government lost that case and they had to release that memo because the judge determined that there was no deliberative process there. They also used deliberative process to try to hide. Oh, and that it was Eastman's right. It's bad faith. They also use deliberative process to try to hide some of John Eastman's Chapman University emails in the January 6th case. Oh, we were thinking about a process. We were thinking about. You were just thinking about breaking the law. Like, it just, it doesn't, it didn't really Jive. And they lost that case, too. And so it kind of stands to reason here that our case would hinge on that, I think, wrongly applied exemption.
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C
I think that we're sort of in a perfect storm of bad luck for the agency here because before last year, the reason it was called the withhold what you want to exemption was because judges would just swallow hook, line and tinker. Oh, it would reveal the deliberative process of these agents and cause a chilling effect that would be like working in a fishbowl. And people would never give their candid opinions and their candid thoughts if they thought that it would get out. And they would just rubber stamp these all the time because of what's called the presumption of regularity.
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A
I was like, how does the presumption of regularity fit in here? Which has been completely destroyed over the past year and a half.
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C
Yeah, they don't get that anymore here. And while they're going to argue that they're entitled to it because there is case law saying that they get the presumption of regularity, that they get their presumption that absent some smoking gun that I have, that they should be presumed to be doing things legally and not lying in their declarations that, you know, Ty goes to the agency and we're going to have to argue that, you know, even if that were the case in a normal FOIA case, this is a FOIA case over the Epstein filed where there's so much misconduct, where there's so many things floating around that cast out on this, that going back to your example about Bill Barr, the reason DOJ lost that case was that the judge said that it was misconduct, that it was covering up misconduct. It was covering up that they said one thing publicly and said another thing privately, and therefore it fell under the misconduct exception. I would say that this falls under the misconduct exception that, you know, there are training videos out there on how to redact things to hide the people we like, which is not something you get to do with foia. And I will correct one thing you said in the introduction. Ridge Records Information Dissemination section is actually part of imd. It's a teeny tiny part. IMD is the people who handle federal records and you know, how to store things and how to manage records. It used to be called the Records Management Division. And so you have the people at RIDS, who are the FOIA analysts, according to your sources, according to your whistleblower, telling people who have no reason to question them, this is what you're allowed to do. And they're not allowed to do that, that they're telling people who have no reason to know better, go take out Donald Trump's name, go do this, go do that. Things that if Ridge did it, someone like me would jump up and down on them in court for. Because it's not something they're allowed to do. And so I would argue that's misconduct and we should get discovery into like what these videos are and how they, how they were passed down, who said that they had to be made, who said what had to go into them, et cetera, et cetera.
- [17:58]
A
Yeah. Now could we actually, we'll talk about next steps. But it just popped into my head because, you know, I've been speaking with Katie Fang about her lawsuit in the Epstein Files Transparency Act. She's asking for a special master. DOJ says we might concede to an in camera review. Is there a scenario in which the judge or a special master could view these videos to determine whether they fall under these FOIA exemptions?
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C
Oh, totally. I mean, that's what FOIA does. FOIA explicitly has an in camera provision where judges, if they're not convinced by the declaration written by the agency, which
- [18:34]
A
is written, or if they've lost the presumption of regular.
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C
Yeah. If they've lost the presumption regularity or they write a declaration that just doesn't convince the judge, they've written what's called a Vaughn Index, which describes the records being withheld and it doesn't convince the judge, especially in light of what the plaintiff says they can say, I want to review those in camera. That's what happened with the bar report, that it got reviewed in camera. And the judge says that's not what the declaration said it was. You know, they lied in the declaration. So I totally envision a possibility. I'm not going to say it's a sure thing because nothing's a sure thing in litigation, but there's a decent possibility that the judge will say, I'm not convinced that they did anything wrong. But I'm concerned enough that I need to check for myself. I need.
- [19:32]
A
Kind of like how she did with the Bill Barr memo about obstruction of justice. Now, let's talk about. So we've sort of, we've established here that we should. We're entitled to these videos under the Freedom of Information Act. But let's talk about this backstop that happened in the middle of all of this, the Epstein Files Transparency Act. And I'm going to put it back up on the screen. Section 8. That says any communications, memoranda, directives, logs, metadata concerning destruction, deletion, alteration, which I assume includes redaction, misplacement or concealment of documents, recordings or electronic data related to Jeffrey Epstein and his associates, detention, death, and any investigative files. Let's talk about this now, this extra backstop that we've got within this, that's here in the Epstein Files Transparency act, which also includes, you know, you're not allowed to redact anything that's embarrassing to anyone. But that's a pretty broad term, isn't it, that anything that relates, that is data related to Jeffrey Epstein as associates, detention, death, or any investigative files.
- [20:38]
C
So, yes, but it's even worse than you might think because that says related. But if you go up to the first part of section A, you'll see that all of these categories, one through, I think eight or nine are led into by relate to that. The, the agency has to release any information that relates to colon one, Jeffrey Epstein, two, Ghislaine Maxwell, et cetera, et cetera, et cetera. So by the time you get to eight, you're saying any information that relates to efforts to conceal information that relates
- [21:15]
A
to Jeffrey Epstein double relates to.
- [21:17]
C
Yeah. And relate to and relating to is this very curious term in FOIA case law and in statutory interpretation. Because when you want to say that an agency has exceeded its authority in doing something and you sue them to stop them from doing it outside of foia, if there is a relate to in the statute, they will hammer on that and say relate to means very broadly, because law, like life, is a seamless web, something that Oliver Wendell Holmes wrote a couple hundred years ago. And everything relates to everything else. In a FOIA context, if you file a request for information related to something, they say, oh, my God, law, like life, is a seamless web. This is too broad because all information relates to everything else. So if I file a FOIA request with the FBI for information related to Alison Gill, well, that means every file in the FBI that exists because everything relates to everything else, therefore it is over broad, if not a proper FOIA request. And they make this argument over and over and over again that if the plaintiff uses it, it's too broad because everything relates to everything else. If the statute makes it, then that means that nobody can stop the agency from doing anything because everything relates to everything else. And I just wrote an opposition brief a couple days ago where they were saying that because Congress is presumed to know what it's doing, it's presumed to mean what it says in its statutes that if Congress uses a word like relate, then it means it is super broad and judges cannot question that. And so I've got all of these citations from DOJ briefs that if they try to make this argument in court, I don't even have to cite to the cases. I can say, your Honor, here is an excerpt from a DOJ brief written on the meaning of relate to and just copy their brief and give credit to the DOJ lawyer that wrote it. And here's another argument that the DOJ made just last month about the meaning of relate to and credit their brief and say, According to the DoJ's own logic, everything that relates to Jeffrey Epstein has to be released. And videos on how to attack records about Jeffrey Epstein relate to Jeffrey Epstein. You don't even have to get to fiction. 8.
- [24:13]
A
So in, in, I mean, that's just so broad. Like I, I like. And, and I, and I assume it was written that way on purpose because then they can't sort of weasel their way out of all these things, which is, you know, we're learning, they're doing in, in the Katie Fang lawsuit. So, and the fact that there are a ton, by the way, of Freedom of Information act requests related to the Epstein files. Nobody is, I mean, people are looking for broad categories of stuff in which these videos would fall, but we are specifically looking for just these videos, which also makes our case much easier so that they can't come back and say it's too broad a question. It's too, it's too, you're asking for too much to review. Like, if you ask somebody for all emails that you've ever written ever, the, you know, the judge will probably come back and say that's, that's overly broad. But because ours is so narrow, I think that that also helps us out.
- [25:13]
C
And I fully expected them. I'm not going to lie to come back and say either we couldn't find the records or it was overbroad. You did, you did not give us enough information to go and find some SharePoint site about some kind of redaction that may or may not have mentioned Jeffrey Epstein and Donald Trump. You know, it was one of those things that I figured they were going to play that role, say it was too broad. You can't do it. We'd have to brief that out. We probably win, you know, knock on wood. And then we would get to, okay, fine, we'll do a search for it. They skipped past that. They went ahead and they did a search and they said, we have records now. I'm not going to concede that they did a good search. There may be two files that they found that were attached to the PowerPoint that was sent to Jason Leopold and then they stopped. There may be 20 other files out there we don't know about, but that's something that'll come up later in the litigation. And we're going to chat. We're going to make them say how they did their search, what they look for, what keywords they did, who they asked, etc. Etc. Make sure that whatever they found is in fact, the universe of records. Right.
- [26:34]
A
Because there was. I don't think that there were any exemptions here for classified material. And we asked for not just the unclassified side, but we also asked for training videos that were on something that they called Beautube, like the Bureau, but a YouTube thing. YouTube, which is the classified side. And they didn't say. They, you know, didn't say, oh, we have these that exist and we're withholding them because they're classified. They're on the classified side. So that's kind of what Trig, like, tipped me off to the fact that they didn't do an exhaustive search.
- [27:02]
C
Now, there is a nasty little trick that they may try to pull later. And by saying it here, I'm not giving them ideas because they do this all the time. They, they know this trick where the FBI has a specific provision in FOIA basically for it that is called an exclusion, as opposed to an exemption. And an exclusion is if there are records that are related to one of these topics, you know, or this type of record where even acknowledging it would reveal information, then they're allowed not only to claim what's called the glomar response, we neither confirm nor deny that they exist. They're allowed to pretend they don't exist and say, we found these records and have processed them and they are exempt and we searched all records and did an adequate search. And because what they interpret 552c to mean is we search for all records subject to foia and these records aren't subject to foia. And so they may end up in this argument with us over whether or not there are these sensitive internal records that they have said were. Would have been responsive but for the exclusion, and therefore, you know, they didn't have to disclose that they even looked there.
- [28:47]
A
Yeah, but that's stuff that they didn't already admit to having, which they did in this letter. So we already have this admission, which I think is pretty big a pretty big Admission. Now, last thing, what are who's court is the ball in? Who's the next person to do something and what like, and then what are our next steps? Do we talk about, okay, exhaust the FOIA route and then go to the Epstein files Transparency Act? Right, like, what are our next steps?
- [29:18]
C
Absolutely not. So one of the perks about FOIA as opposed to most statutes, is that you have this thing called constructive exhaustion. It's where you don't have to wait for the agency to finish doing whatever it's doing before you can go to court. We did that when we were in court because they did not respond within 20 business days. And that allows us to go to court. Once we go to court, we don't have to resolve anything else, we don't have to file an appeal. If we filed an administrative appeal, they would actually deny it, say, and they put these wonderfully snarky paragraphs into their letters that say, even though you're in litigation, we're required by a statute to let you know that you have these appeal rights. But if you file an appeal, they ignore it and say you're in litigation. So the next step is FOIA is normally decided by motions for summary judgment where, you know, the agency will say, here's a declaration from the FOIA officer that was written by the lawyer and here's this Vaughn Index, which is, you know, a list of the records that we withheld and you know enough about them that you can sort of figure out what they are. And they are exempt for the following reasons. And according to the case law, you know, boom, boom, boom, boom, boom, here's why we should win. And then I oppose that.
- [30:37]
A
So the DOJ will take this FBI letter that we got and file a motion for summary judgment saying dismiss the case. Our FOIA agent at the FBI has said these are non discoverable or whatever. And so dismiss it, please.
- [30:51]
C
Yep. And when that happens is whenever we in the court decide it happens. You know, my next step is going to be talking to the DOJ lawyer and working out if we can agree on a briefing schedule to propose to the court. They are probably going to ask for six to 12 months to put together this five page declaration because it requires lots of people to read it. You know, I'm going to argue for something quicker. Normally these things are relatively easily worked out for scheduling. And then we brief it and then
- [31:26]
A
we wait and will our briefing, when they file their motion for summary judgment, we'll file a response to that. And at that point do we bring the Epstein Files Transparency act into it.
- [31:38]
C
Oh, yeah, totally. That's what we would do. In fact, we might even file a motion for judgment on our own saying that Epstein Files Transparency act says they cannot withhold this and therefore you don't even have to look at their exemptions.
- [31:52]
A
Cross motion. Yeah. So it'll be kind of an even if scenario. And those are like my favorites. Like, hey, this isn't subject to foia. We, you know, we want them to be reviewed in camera under the Freedom of Information Act. And even if. Then let's look at the Epstein Files Transparency act and how are releasable under that other way around.
- [32:13]
C
Say the Epstein file first and then say, but even if the court says I'm not going to interpret the EFTA that way, then we still win.
- [32:21]
A
Gotcha. Well, this is. You sent me that the other day. And by the way, everybody, we're the only. You're the, you're the first to see it here because it was only sent to us. It wasn't filed on a docket. It wasn't put anywhere. And my jaw just about dropped on the floor that they said, yeah, we got these, but you can't have them. And here's the BS reason number 1, 2, 3, 4.
- [32:43]
C
Yep.
- [32:44]
A
And I was just like, oh, my God, we did it. We got them to admit that training videos on how to redact the Epstein files exist. And Jason Leopold got close, but he did say that none of those attachments were released and probably had the same exemptions as well. So anyway, thank you so very much for all of your help. Now, if anybody wants to help us, do this, because Cal here is doing this, all this work pro bono, and if you want to make a tax deductible donations to National Security Councilors, you can do that.
- [33:16]
C
Kel, tell them where we have a spot on our website. It's called nationalsecuritylaw.org donate. And we have two different mechanisms for doing it. You can use PayPal, but if you don't want to deal with PayPal, we have this other engine called Democracy Engine, that's a nonprofit designed for processing donations for charitable organizations that don't like Peter Thiel. And so, you know, you can do it either way. We welcome everything. And also, if you go to that page, just out of curiosity, you can read the work that we do and the examples of the cases that we do. If you're just curious and enjoy watching DOJ lawyers get beaten up.
- [34:00]
A
Well, thank you so much, my friend Kel McClanahan for this, for all of your help. This is a huge winner for democracy. Huge one for transparency, for the most transparent administration in history. Yeah, we release everything except everything. So I'm looking forward to our next steps. And of course, we'll tell you all about it here on the breakdown.
- [34:53]
B
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- [35:11]
D
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