B (3:38)

So pathetic. So pathetic.

A (3:40)

Nobody in the Eastern District of Virginia would touch it. So she's the loan signatory on this two count indictment of Tish James as well, just as she is the lone signatory on the indictment to Jim Comey. So let's go over the indictment because we were all assuming that this would be about the mortgage that she secured for her niece, right? But it is not.

B (4:03)

That's right. This is actually for a home she purchased in Virginia in 2020 and the government contends she listed it as a second home as opposed to an investment property. So when she secured her funding to purchase the home, the government contends she indicated it was going to be a second home that she would live, not just a straight up investment property. So?

A (4:26)

So it's not even the difference between a primary residence and an investment property. It's the difference between a second home and an investment property, which is a much smaller savings if one can be attributed to it.

B (4:40)

That's exactly right. So reading from the indictment, it says on or about August 17, 2020, James as sole borrower, purchased the three bedroom, one bathroom property located on Perrone Av Avenue, Norfolk, Virginia for approximately $137,000, financed with a mortgage loan of approximately $109,600 backed by Fannie Mae. The loan was originated by OVM Financial under assigned second home rider which required James as the sole borrower to occupy and use the property as her secondary residence and prohibited its use as a timesharing or other shared ownership ARR or agreement that requires her to either rent the property or give any other person any control over the occupancy or use of the property. Despite these representations, the Perrone property was not occupied or used by James as a secondary residence and was instead used as a rental investment property, renting the property to a family of three.

A (5:49)

Okay. And now I just want to go on the record here and say that what you just read from Lindsey Halligan is actually wrong.

B (5:58)

Why am I not surprised?

A (5:59)

Because I looked at Fannie Mae's website for what qualifies as a second home, and it says it must be occupied by the borrower, in this case Letitia James, for some portion of the year, but it actually can be rented out as long as the rental income isn't used for qualifying purposes and that the owner occupies the home for, quote, some portion of the year. It doesn't specify for how long and it specifies it can't be run by a property management firm, which is not alleged in this indictment. According to the indictment, calling this a second home netted her favorable loan terms not available for investment properties, including a note rate of 3%, avoiding a 0.815% higher comparable investment property rate of 3.815%. So she got 3% instead of 3.815. And she also, Lindsay Halligan doesn't specify how she came up with that number. She just said it's a comparable investment property rate. And that resulted in about $17,000 in rate savings over the life of the loan and a seller credit of about $3,200, which exceeds the seller credit for investment properties by about 1000 bucks. And so the total ill gotten gains based on their calculations, do we trust Those? Is about 19 grand over the life of the loan. And Andy, over the life of the loan is important here. If this is a 30 year fixed loan on $109,000 loan, by the way.

B (7:31)

Right.

A (7:32)

That's a savings of about 47 bucks a month. Now keep in mind, Letitia James found that Donald Trump defrauded banks to the tune of millions of dollars with his false representations to banks about the value of his properties and the size of of his properties.

B (7:48)

Yeah, so. And additionally, the night the indictment says James filed schedule E tax forms under penalties of perjury, treating the per owned property as rental real estate reporting, fair rental days, zero personal use days, thousands of dollars in rents received and claiming deductions for expenses relating to the property, further contradicting the second home classification. So that's a little bit confusing to read, but essentially they're saying she made representations in her tax forms that also run afoul of using this home as a second home.

A (8:29)

Like she kind of, she's not charged with tax fraud here. She's not charged with that.

B (8:34)

But this evidence, statements as evidence that she said one thing but did something different.

A (8:39)

Yeah. The evidence that she never stayed at that property and just rented it out.

B (8:44)

That's right. So to be clear, there are two counts. The first is bank fraud under Title 18 USC 1344 and false statements to a financial institution under Title 18 USC 1014.

A (8:59)

It's also of note that nobody in New York filed criminal charges against Trump for violating those laws. It was just a civil case.

B (9:09)

That's right. As with every criminal case, they will have to prove intent. Right. So the government is going to have to show that this was an intentional misrepresentation for the 1014 charge and for the 1344 charge, they're going to have to show that she intended to commit fraud, that she knew what she was doing was wrong and was willfully did it anyway.

A (9:33)

What kind of proof would you need to show that she intended, like maybe communications with somebody saying haha, I'm going to get one over on the bank here. Intent do you have, like how would you prove that this was not an error? Like maybe she didn't know the difference between a second home and an investment property or that she was purposefully trying to save $47 a month.

B (9:57)

Yeah. So, and this is an interesting point because here there's no. She was, she has not been charged as a co conspirator or in a conspiracy at all. So there's no reference to any other people in this charge. It's just her. Okay. So if it were a conspir to commit bank fraud, typically what you would have is communication between the co conspirators. And those communications can be very illustrative when you're trying to prove intent. Hey, you know, you tell the bank this and I'll tell them something else or whatever the elements of how they're carrying off the fraud.

A (10:31)

Right. Hey, family of three that I'm going to rent this property to, I'm going to say that this is a second home.

B (10:37)

Yeah.

A (10:38)

Make sure to tell people I stay here two days a year and do that. That'll save you $47 a month on your rent to me or something like that. Right.

B (10:49)

So it would have to be a statement from the defendant that's captured in writing or text message or something like that. Or maybe a statement from a witness who heard the defendant say something or was told by the defendant to take some illegal or fraudulent action. There's no indication that of any of that evidence here. Maybe they have it, maybe they don't. But the indictment doesn't say.

A (11:12)

Yeah, all they have is her tax filing where she says it's a second home and she spent zero days there.

B (11:18)

Right.

A (11:19)

So if she did spend time there, then she could be on the hook for lying to the irs. But that's not charged here.

B (11:26)

It's not charged here.

A (11:27)

But you also have to, like you said, show intent that she meant to save that 47 bucks a month by misrepresenting this as a second home and not an investment property.

B (11:39)

So if she prepared these documents herself, if she kind of didn't have professional help in purchasing, securing the funding, and purchasing the house, and those documents indicate different responses to these sorts of questions along the way, it's going to be very hard to prove that that wasn't just a mistake. Confusion that's significantly short of criminal intent. If she did have somebody helping her prepare them, that could introduce another element, a variable into this equation. Maybe the mistakes or the problems were attributable to the other person. So there's this rapidly. It's very complicated when you're trying to show that Letitia James intentionally pulled the wool over the eyes of the bank here, right?

A (12:27)

And maybe it was just her and her loan officer or her broker or her real estate agent saying, hey, are you ever going to stay in this house? And she's like, I might at some point. I'm not sure. And so, all right, we'll put it as a second home, and, you know, blah, blah, blah. And there may not have even been an exchange if you'll save $47 a month. It might have just been like, we want to kind of make sure we get this right as a second home investment property. And maybe Tish James said, I. I may stay there myself at some point in the future. I'm not quite sure. I mean, if she has those communications, it's going to be real hard to show that she intentionally tried to defraud this bank out of 40 bucks a month.

B (13:07)

It's also interesting that the tenant is not identified. So if the tenant is, in fact, someone who's related to her or is just a good friend of hers who she visits and spends time with, that could account for her thinking, well, I will spend some time in the house. Right? So there's all kinds of room, wiggle room. I think here. The indictment seems kind of simplistic on its face, but they're gonna have to go pretty deep to try to prove intent, I think.

A (13:38)

Yeah. And she. She listed herself as an AUSA on this form. I don't know if that's because maybe her authority as a. As a U.S. attorney is being challenged. Or if it's just a mistake, because she made another mistake in the paperwork saying that Tish James lives in Brooklyn, New Jersey, which is not a thing and would probably upset Brooklynites pretty hard.

B (14:05)

Yeah, that's fighting words in Brooklyn for sure. So, I don't know, maybe Lindsey Halligan just thought, you know what? I'm really not good enough to be the U.S. attorney, so I'm just gonna put myself down as an Assistant US Attorney for now until I get a little more seasoning under my wings here.

A (14:20)

Now, she also didn't. She entered this as a summons, which is a voluntarily show up for arraign, which is at the end of October. No perp walk. Right. They tried to do one for Comey and fired the guy who refused to get together a bunch of beefy agents in full kit to carry out that order. And it's been assigned to Judge Jamar Walker, who's a. Who's a Biden appointee. So Trump's Batten or Halligan, I guess is Same thing is batting.02 for drawing, you know, judges that were appointed by Trump, though I don't think it's gonna matter in these cases.

B (14:58)

Yeah, let's see how far she has to go to find somebody to actually handle the arraignment. Yeah, I mean, North Carolina on the Comey case. Maybe we're going all the way to Florida for this one.

A (15:08)

Who knows? She'll just keep going south till she finds somebody.

B (15:10)

That's right.

A (15:12)

Something else interesting. Jim Comey is going to be filing his challenge to the appointment of Lindsey Halligan. He's challenging her authority as U.S. attorney, and he's going to be doing that before Tish James is arraigned. So we'll talk about Jim Comey's arraignment, but we do have to take a quick break, so everybody stick around. We'll be right back. So odds are you're still overpaying for your wireless, so it's time for you to say no. At Mint Mobile, their favorite word just happens to be no. With no contracts, no monthly bills, no overages, no hidden fees, and no bs, that's why you should say yes to making the switch and getting premium wireless service for just $15 a month. Thanks a bunch to Mint Mobile for sponsoring today's episode, make the switch@mintmobile.com unjust. Mint Mobile is the smartest way to save on wireless. Instead of paying inflated monthly bills or getting stuck with hidden fees or unexpected overages, you can get premium wireless service starting at just $15 a month. All Mint plans include high speed data and unlimited talk and text on the nation's largest 5G network so you get dependable coverage without compromise. Bring your own phone, keep your own number, transfer all your contacts over. It is everything you need from a wireless provider. Simple, affordable and refreshingly honest. Say goodbye to overpriced wireless and hello to Mint Mobile. We have a show producer who recently signed up with Mint Mobile using an old Android phone he had lying around. It took no time before he had a second phone number up and running for work, thanks to Mint's quick SIM delivery and easy to follow instructions. For 15 bucks a month, he says he's never had a more budget friendly second line. It's so great, $15 a month. Even the quality is much better than his last phone provider. So he's very glad he made the switch. So if you're ready to say yes to saying no, make the switch@mintmobile.com unjust that's mint mobile.com unjust Upfront payment of $45 required, equivalent to $15 a month. Limited time new customer offer for three months only. Speeds may slow above 35 gigabytes on unlimited plan taxes and fees extras. See Mobile for details. So this is, I mean, obviously just an extension of the weaponization of the Justice Department with the indictment of Tish James and comes a week after Comey was indicted and he was arraigned in the Eastern District of Virginia this week. No perp walk, like I said, much to the chagrin of Donald Trump, probably. But we learned a few things during that arraignment hearing before Judge Nachmanoff, also a Biden appointee in the Eastern District of Virginia, which is also known, Andy, as the rocket docket.

B (17:55)

It is. Yeah. They take it very seriously in edva.

A (17:59)

Yeah. And they didn't disappoint on the speed with which they're taking this to trial in that district.

B (18:05)

Yeah, they're very tight on keeping things moving and setting deadlines that they do not delay very often. So we'll see how that plays out here. So in his arraignment, Comey pled not guilty to both counts. During the hearing, Benjamin Whittis from Lawfare read the transcript of the arraignment and had three main takeaways that we'll go over now. So the first, Ben says the first is that there is a notable gap between prosecution and defense lawyers who showed up to yesterday's hearing in what we might call pride of service. Pride of service only Ben on the prosecution side, the U.S. attorney's Office for the Eastern District of Virginia could not find a single lawyer who had worked in the office prior to late September to stand up in court and say, my name is X and I represent the United States. Not one. The acting U.S. attorney, of course, had been fired because he wouldn't bring the case. And no career official from the office was at the prosecution table either. Instead, there were two assistant United States attorneys from North Carolina whose familiarity with the case was so limited that they stressed they were only just starting to get their hands around it and its discovery.

A (19:23)

Hmm. Now, Whittis continues. On the other side, by contrast, Comey's lead defense counsel introduced himself as follows. Your Honor, Pat Fitzgerald, and it's an honor of my Life to represent Mr. Comey in this matter. This is a bit of an inversion of the normal understanding of the roles of criminal lawyers. Federal prosecutors typically feel a certain honor and pride in representing the United States in court, believing that their cases represent attempts to do justice. Defense counsel, by contrast, generally think of themselves as representing a check on the justice system's coercive power in general, but they often don't take particular pride in their specific individual representations as embodying justice. They much less that representing a particular accused miscreant is the honor of their lives. There are exceptions, of course, but I'm not sure I've ever seen a case in which the prosecution was so evidently ashamed of its case and the defense so visibly proud to represent someone accused of a crime.

B (20:20)

Fitzgerald is, of course, a smart lawyer, and he was, I assume, making this point intentionally. But the point is also undoubtedly sincere, and it works rhetorically because it is so intuitively right. Fitzgerald is a famed federal prosecutor, one who has prosecuted mobsters, politicians, and White House officials on behalf of the United States, saying that the singular honor of his entire career is representing a defendant against prosecution by the United States, even as the government is having trouble finding lawyers to show up in court on its behalf.

A (20:57)

Hmm. Now, Ben says the second point he wanted to bring is a related one, and it concerns preparation. There's something embarrassing about the government indicting a case and then showing up in court completely unprepared to litigate it. Yet in a brief hearing, the government did not merely put forward new lawyers from a different state who had clearly been assigned to the matter only a day or two before. These lawyers declared they had not yet discerned the scope of their discovery obligations, anticipated that there might be issues with respect to classified material, but did not yet know the full scope of those Issues and asked for time to sort things out that are normally sorted out before a case is ever brought. Quote, we're just getting our hands around this discovery as well. That's what prosecutor Tyler Lemons said, as though the prosecution hadn't had five years to figure out what documents it might need to produce if it brought the case. Andy, this is why the, the prosecutions of Donald Trump took so long. And when people were like, why didn't they arrest Donald Trump on January 7? It's because you have to get your hands around the evidence of the case. And in the January 6th case in particular, we had an almost year long protracted legal battle fighting privilege claims by almost a dozen key witnesses. We called him La Ocha Nostra when we covered this on the Jack Smith podcast, because we only knew of 8, but there were upwards of 12. And so that took almost 10 months, I think, for Merrick Garland to win that and get past the privilege claims. Then there was like a four month delay getting Twitter to hand over information on Donald Trump's Twitter account that was considered discoverable evidence. And then there was the January 6 committee, which took three or four months to give over their work materials which weren't needed because the DOJ didn't do their job. They were needed so they could compare testimony given in the January 6th committee.

B (22:57)

Testimony, all that stuff.

A (22:58)

Right. Because if you're inconsistent, then your, your key witnesses are screwed and impeached on the stand. If you have. That's right. Ask John Durham about that.

B (23:09)

I don't call him anymore, but I get your point.

A (23:12)

It's about how that's why Sussmann, because of Baker's inconsistent, not lying, but inconsistent testimony to the Congress versus his testimony to a grand jury or whatever was inconsistent. And so he was impeached on the stand as credible and the whole case was acquitted. So that is what took so long. And for these lawyers to indict first and then get their hands around the evidence, as Ben Whitta says, is embarrassing. And I love how he's like, especially if you've been looking at this for five years.

B (23:45)

Yeah, for sure. And I mean, I, I almost feel bad for the North Carolina dudes because clearly, no, when they got to Virginia, no one told them about the rocket docket. You don't show up in a criminal courtroom in the Eastern District of Virginia and say, hey, Judge, we're just trying to, we're just starting to get our hands around this big boy and give us a few more weeks, we'll come back in and we'll know more next time. That is exactly what the rocket docket was created to eliminate. You have to have your. Your together when you walk in in front of a judge there.

A (24:19)

Right. It's like being online at Starbucks in New York. Know your order before you get to the counter. Exactly.

B (24:23)

Or any decent deli in New York. Like, if you don't have that, you got half a second to order your sandwich. If you don't have get that sandwich order out, like, fast, they just move on to someone else. So. Yeah, anyway, so the defense also acknowledged that it was unprepared, but for a very different reason. Fitzgerald stated that he lacked the most basic information about what the indictment alleges Comey is supposed to have done.

A (24:50)

Same Fitzgerald. Same. I feel you.

B (24:54)

Exactly. I'm just glad we. We weren't wrong. We're reading that indictment. We're like, I don't know, how do you defend against this? I'm not even sure what it is. And clearly, Pat had the same response. Witta says the people about whom Comey is alleged to have lied to Congress are still unnamed. He noted, we haven't received a single piece of paper of discovery to date. We still haven't been told who person three and person one are. We don't know the nature of the charges. I mean, it's stunning to hear an accomplished, experienced defense attorney have to walk into court and be like, the most basic aspects of what you've accused my client of doing are not even. We're not even aware of what it is. Like, what. What is this? You know?

A (25:42)

Yeah, it's crazy. Yeah. And Fitzgerald was able to sketch out a speedy briefing schedule in which the defense will file its motions to dismiss for selective and vindictive prosecution. Big surprise. And challenging the legality of the appointment of Lindsey Halligan. And they're going to do it in less than two weeks. That's what Fitzgerald is doing. And then while the government is responding to those, they're going to prepare a second tranche of motions to file in November. We're a little less certain of precisely what motions these will be, but there might be a Bronston literal truth defense motion. There may be a grand jury abuse motion, outrageous government conduct motion, but those motions would be addressed to the indictment. So, first of all, you know, we got the main four, but Roger Parloff pointed out on Twitter and then over on Blue sky that they actually squeezed in there a Bronston literal truth defense motion, and that is a legal maneuver used in perjury cases. And it's based on the Supreme Court's decision in Bronston v. United States. The defense argues that a witness's statement, even if intended to mislead, cannot be prosecuted as perjury if it's actually technically or literally true on its face. The responsibility is on the questioner to ask precise follow up questions. In this case, maybe Ted Cruz, but again, we don't know because they didn't put it in the indictment or uncover evasive answers. So what I think maybe he's getting at is that what Comey actually said with his mouth in 2020 was, I stand by my previous testimony. And that could be literally true on its face. It might be intended to mislead, but under a Bronston perjury thing, it doesn't count as perjury. Now, perjury is different from 1001 charges, but it could apply here. And so I think that's why Pat was like, we're not sure yet, basically because we don't know what the hell he's being charged with. But, you know, we've got several motions here that we want to file.

B (27:45)

Yeah, this is gonna. It's hard for me to imagine that this, the current trial date, which is January, something I don't remember the day will actually hold because they're gonna get this motion. Practice is gonna get really challenging. I think it'll go faster than it did, of course, in Judge Cannon's courtroom. Cannon's courtroom. But they're gonna there. There'll be a lot of issues to get through. And, you know, we anticipate the government might fall short on a few of them. They'll likely appeal all those losses, whatever losses they get. So it's.

A (28:20)

The judge even said during the arraignment hearing about SEPA and possibly classified documents, because I feel like the government wants to drag this out with a long SEPA process because there's a supposedly classified material. But I'm pretty sure Chuck Grassley's released it all with John Ratcliffe. So I'm not sure how that covers it. But again, we don't know because none of it's in the indictment. But the judge said, this will then be the fastest. He's like, don't mess with me. This will then be the fastest SIPA you've ever seen in your life. Like, he actually said that from the bench. I sent it to our friend Brian Greer, our sipa, our SIPA specialist for the Jack podcast. He's like, bingo, SIPA guru gear.

B (28:59)

So Ben then wraps it up by saying, my third Observation is that the reason for both of the first two points is the same and unsubtle because the government is behaving shamefully and proceeding with a rushed criminal case based on compound untruths. It neither has put itself in a position to behave responsibly by having discovery ready and the like, nor does it have access to attorneys of the sort who know the case that they have brought when it comes time to move it forward in court.

A (29:30)

Andy, I was thinking back to what the DOJ was arguing in Cannon's courtroom, like, on the day one. They're like, we've produced 800,000 documents and we gave them a skip and a laptop and an IT guy and the videos of the obstruction and a partridge in a pear tree, like they were on top and had every. They had their, quote, hands around the evidence before they set foot in a courtroom.

B (29:55)

Yeah. And I think the point that Ben is making here is absolutely true. It is that fundamental, shameful, blatantly political, untrustworthy position that the government has taken with this prosecution that's led to these other two problems. One being they got no, no reasonable attorneys willing to represent it in court. And two, they don't have any idea what they need or what the, what the case involves because they just slap this thing together literally in a couple of days to beat the statute of limitations problem. So that, that original sin is going to be a problem for them at every step of this prosecution. They'll have subpar attorneys working with bad facts. And when you add those two together, the government doesn't have a great future in this case, I don't think.

A (30:51)

Yeah, no. And, and Comey asked for a speedy trial and asked for January 12, and the judge said, why not December? And so they, they agreed on January 5th because Comey wanted the 12th. They agreed on the 5th. So that's the trial date. And as far as the other dates that were set in a minute order by the judge, Judge Nachmanoff, the first round of motions, including the one challenging Lindsey Halligan's authority, which I think, considering order of operations, you know how courts, like, look at standing first and then look at jurisdiction and then standing, like, they do that before they get into. Bother getting into any of the merits or anything, I think they're going to look at Lindsey Halligan's authority at her appointment first, because if she's not appropriately appointed and doesn't have authority and is the only one who signed this, this, this indictment, that's, it's, it's goodbye, Cincinnati. Like, you Can't. There's no coming back from that because the statute of limitations has expired. So I think they'll solve that first. But that motion and the motion of vindictive and selective is due October 20th, which is, gosh, eight days from now. And the court will hold a hearing on those motions on November 19th. And any additional pretrial motions, the ones for, like, the Bronston thing and the possible abuse of a grand jury process, which, again, you and I were asking, like, what evidence did she possibly present to the grand jury? And you said that there was a way that the judge could look at that evidence and decide whether there was probable cause to return an indictment. And I think that has to do with the abuse of the grand jury process and, of course, outrageous misconduct by the government. That all is due October 30, and the court is going to hold hearings on those motions on December 9th. So, rocket docket it is. This is going extremely fast.

B (32:54)

Totally. Let's get it on. I mean, I'm sure, you know, the defense is a little bit between a rock and a hard place here, because on the one hand, they want to get this thing over with. Right? They want to. They want speedy trial. Let's go. Let's go. But on the other hand, they have all these motions to file, so they have to give themselves at least a little bit of leeway to get solid motions downrange, which I'm sure they will, and then we'll see. As you said, there's a lot of motions coming up that will. That could derail the entire thing, you know, just off the tracks at step one. So that'll be really interesting to see.

A (33:30)

Yeah. Which would make me sad because I'm interested to know what the abuse of the grand jury process was. And if this case goes away before we get there, we may never know.

B (33:39)

Can we ask them to stretch it out a little bit, just for the podcasters of the world? Gives us something to talk about every week.

A (33:44)

But, yeah, all the grand jury process is secretive, and I'm assuming a lot of that would be under seal and behind closed doors if we even get to it. And so the SEPA thing, where the judge was like, it'll be the fastest SEPA in the west or the east, again, might not even get to that point if they determine that Halligan isn't qualified, doesn't have the authority, and can't go back and get another indictment because the statute of limitations has passed, typically.

B (34:12)

And this is why it'll be different if this hap. If she is disqualified in a motion like that in this case. Yeah, that'll happen before Tish James goes forward. But it wouldn't have the same overall effect. Right. Because the problem here is that the error can't be fixed because the statute of limitations is passed. It's probably not the same in the Tish James case, but it will be another problem for them.

A (34:39)

No. Right. But they would have to find someone else to sign on to the Tish James indictment besides Lindsey Halligan herself, or maybe represent it to a represent it.

B (34:53)

And maybe in another district that actually has a functioning United States attorney. But who knows? We'll see. We'll cross that one when we get to it.

A (35:03)

Yeah, we'll definitely keep an eye on it. And all of this just ridiculous. I mean, more broadly speaking, we're in the weeds right now talking about these two indictments. But broadly speaking, this is a massive, massive violation of longstanding Department of Justice policy of not weaponizing the government against your political foes. So here we are.

B (35:25)

Yeah. And it is the obvious marshaling and manipulation of the government's power to affect political revenge on perceived enemies. That is exactly what we're not supposed to be doing in this country. Ironically, it's what the Republicans complained about all through the Biden administration, despite the fact that it was the same Biden administration that went after Hunter Biden. But nevertheless, here we are. This is 100 steps beyond that.

A (35:56)

Yeah. Agreed. All right. We have some Jack Smith news. We're not going to change the name of the podcast back to Jack, but he is back up in the news again. We'll talk about that after this break. Stick around. We'll be right back.

B (36:12)

Foreign welcome back. Jack Smith is back in the news. Last week it was because there was a filing with the 11th Circuit to release volume two of Jack Smith's report on the investigations into Donald Trump. Well, this week it's because our friend Chuck Grassley released information showing that Jack Smith had subpoenaed the phone records of Republican members of Congress.

A (36:43)

Now, just before you get into this New York Times report, I just want to remind everyone that we this was public information a long time ago. We talked about it quite a bit on the Jack podcast. Anyway, please continue.

B (36:57)

Yeah, and there's all kinds of, I think, very reasonable explanations as to why you would do this in an investigation. But we'll get to that in a minute. So first, the New York Times reports at a Senate Judiciary Committee hearing on Tuesday, Republican lawmakers repeatedly denounced Jack Smith, the former special counsel, and the Biden administration for taking phone the phone records of more than a half dozen GOP senators to determine whom they had spoken to just before and after the January 6, 2021 riot at the Capitol.

A (37:31)

The attacks formed a core part of Republicans response to Democrats on the panel that grilled Attorney General Pam Bondi over Trump's increasing pressure on the Justice Department to prosecute his political enemies. This was their defense. Republicans used the phone records to argue instead that the Biden administration had politicized the department, though much remains unknown about the records role in the investigation and there has been no evidence that the Biden White House actually influenced the inquiry. He didn't put out a bunch of tweets on his own. True on his own social media platform telling people to go after these Republicans. Republicans pressed Pam Bondi to investigate and punish anyone associated with this investigative steps, such as FBI agents who examined the phone data of nine Republican lawmakers to determine who they called, who called them and when the calls were made.

B (38:22)

The analysis of phone toll records is a common investigative tactic, though there are occasional policy and political debates about when and how such data should be taken. Such toll record information does not include the contents of conversation, which would require a court approved wiretap. On Monday, Republicans revealed an internal FBI document showing that the toll records were collected in September 2023, shortly after Mr. Smith indicted Mr. Trump for conspiracy and other crimes related to January 6th. The calls are.

A (38:57)

Sorry to interrupt you, but it was after they indicted Trump and so remember how we said they didn't indict everybody else but you said there might be mop up cases.

B (39:05)

Yep.

A (39:06)

So it looks like he was looking into tying up those threads and loose ends after the indictment of Donald Trump.

B (39:13)

Yeah, that's certainly possible. But it also could have been simply trying to identify witnesses. It could have been an effort to understand like who else might have been talking to our defendant at the time of this alleged conspiracy and what sort of interactions did they have? Did those conversations reveal things about the defendant's intent, for instance? So it's, there's all kinds of reasons why you would want to do this. So times goes on. The calls were scrutinized because at the time prosecutors are trying to identify relevant communications between the President and his inner circle with members of Congress on the key days surrounding the violence, according to a person familiar with the investigation who spoke on the condition of anonymity to describe the decision making process.

A (40:03)

Ah, identify relevant communications. Okay.

B (40:05)

Exactly.

A (40:07)

Now, the committee's chairman, Chuck Grassley, called the move spying, politically motivated spying, and says There was no factual predicate to justify examining the lawmaker's phone records around the time of the riot by supporters of Trump. Yes, there was factual predicate.

B (40:25)

Yeah, it was called the January 6th riot. That was the factual predicate.

A (40:30)

What?

B (40:32)

It's on TV. You could see it. There's lots of it.

A (40:35)

One of the senators whose phone records were taken with grand jury subpoena, Lindsey Graham, erupted at the hearing over the issue. And he's done this before, like when in the Russia investigation. They were looking to see if he, who he was talking to on the phone, and he was very upset about that as well. And Lindsay said, can you tell me why my, why my phone records taken at the time when he was the chairman of the committee, were sought by Jack Smith's agents? That's what Lindsay asked. Why did they ask how? Asked to know who I called and what I was doing from January 4th to the 7th. It's to make sure you weren't in the crime, my friend.

B (41:10)

Yeah. Just to figure out, like, did you talk to Trump a lot that day? Because if so, maybe we should go interview you and see what you have to say about those conversations. Like, maybe you could tell us good things about what Trump was thinking. I mean, there's a whole range of possibilities here. Or maybe they thought some of these members were co conspirators and should be looked at for charge. I mean, who.

A (41:31)

There were a lot of questions. Questions about whether some senators were trying to delay the certification of the election.

B (41:39)

That's right.

A (41:39)

Right.

B (41:40)

Yeah.

A (41:40)

To, to push it past midnight or somehow throw it back to the house. I, I mean, there, there was a lot going on. So, you know, were you indicted? No. Then be quiet.

B (41:50)

Like, exactly. Unless you're really worried about what's in your phone call phone records. I'm just saying. I'm just throwing it out there. Another Republican lawmaker whose phone records were examined over that four day period was Senator Josh Hawley of Missouri, who falsely claimed that the FBI documents showed agents had engaged in wiretapping. Quote, the FBI tapped my phone, Mr. Hawley said angrily. I don't know why I thought that would sound like Josh Hawley if I did that, but I, I just kind of think it did. Mr. Grassley and other lawmakers have hedged when asked if they plan to call Mr. Smith as a witness to discuss his investigation, saying.

A (42:28)

Bad idea.

B (42:31)

Saying they plan to let the FBI director, Cash Patel, conduct his own inquir. Agree, that'll go great. At the hearing, Mrs. Bondi, Ms. Bondi said she cannot Discuss whether there is an ongoing investigation into the matter.

A (42:46)

Oh, that's transparency.

B (42:47)

Can't discuss it full on. So, Josh Hawley. Let's stop there just for a second. Josh Hawley, who was captured in that now immortal photograph giving all the rioters that fight the power sign with his raised fist in the air, and then scampering across the Capitol to the safety of security officers or whatever. This is just blatant lying. He knows that the document that he's referring to, the document that Grassley brought into this whole conversation, does not show that the FBI collected anybody's contents of conversation. Didn't. Didn't tap anybody's wires, didn't have any sort of active electronic surveillance. This is simply a request to a phone company or service provider for retrospective business records. You know, your call records. It also, by the way, has to. You have to have a subpoena to get it. So it's actually done through the Justice Department with the. Under the purview of a sitting grand jury. So it's not lawful.

A (43:58)

The people asked for these phone records?

B (44:03)

Essentially, yes. The grand jury asked for the phone records. That's right. So, yeah, it's not unlawful. It's not improper. It's not even a violation of policy. The policy in the. In DOJ gives special consideration to very sensitive subjects that you want to maybe get phone records from. So if you want to get the phone records of a reporter, it's almost. Well, it was. I don't know what the rule is now, but it was almost impossible because DOJ had set up policies that protected reporters phone records from investigators in an effort to avoid stepping on their First Amendment responsibilities. Same would be true if you're trying to get phone records of a sitting member of Congress because they have speech and debate cause privileges and so requires a little bit of extra analysis and oversight. So I can tell you without question, this was not just the, hey, let's do this because it seems cool of two FBI agents. These are FBI agents who simply evaluated this stuff. When it got back, this went through the highest levels of either the special counsel's office or doj, depending on how that was working out at the time. So, yeah, and Holly knows that this was not a wiretap, but yet he says it from the bench, which is horrific.

A (45:26)

And the reason grand jury stuff is secret and kept under seal is because you might have gotten wrapped up. It's so we don't tell the world that we were looking at Josh Hawley's phone records because we don't want to Embarrass him. But here they are telling the whole world themselves, which makes me wonder if they're waiving privilege. But we'll get to that in a second. But you know, here we. The reason that you keep that a secret is because there are a lot of phone records that are often subpoenaed without the person who owns the phone knowing that those records have been subpoenaed. And if nothing comes of that person and their phone records, that is under seal so that that non charged person doesn't get publicly humiliated by having their phone records.

B (46:12)

That's right.

A (46:13)

Subpoenaed. And you know, you can even take it a little bit of a step further. If they are involved then Jack Smith would have reached out to them to say we need to interview you. A subpoena come to before the grand jury or we'll do an interview with the FBI or whatever. There'll be 302s and somebody. Lindsey Graham, Josh Hawley, they would have made a big old noise about it like Scott Perry did, the House member who filed speech or debate arguments against having his phone records gotten. So you have remedies to not have your phone records handed over. If you're contacted by the investigative, you know, Brand, Scott Perry. I don't think his phone records were ever handed over because they, they lost that battle.

B (46:56)

I think for him it was actually the analysis of his phone. I think his phone got seized and he basically was able to block the analysis of that phone.

A (47:08)

So most of it, right?

B (47:09)

Yeah, most of it, yeah. So in any case, yeah, this is not the kind of. Oh, that weaponized criminal squad CR15 at the Washington field office. They just decided to go and start rousting, you know, members phone records. That is not what happened here. But that's what Josh Hawley wants you to think happened. That's why he uses this inflammatory the FBI tap my phone line in a Senate hearing in front of the world because he knows it's going to land on newspapers, headlines and things like that. And so he just intentionally misrepresents it because his job is to undermine the FBI.

A (47:50)

And since a Freedom of Information act request of that information in the call logs would normally be rejected for privacy purposes, the fact that these senators have proudly said that their phone records were subpoenaed might actually make these things subject to a Freedom of Information act request. That's interesting. Just want to throw that out there.

B (48:13)

It's possible. You never know.

A (48:14)

News to come. News to come. Also you mentioned CR15. This next story we'll do Real quick here before we get to the D block. The FBI took personnel action against three special agents who worked in connection with Jack Smith's probe of Trump firing. 2. And that's according to three people familiar with the matter. All three agents were previously named in documents released by Chuck Grassley called Arctic Frost an FBI investigation that was the precursor to the Smith investigation. That's interesting. I want to know more about that. Which resulted in two federal criminal cases against Donald Trump, one for his handling of classified documents and the other involving the 2020 election and, you know, attack on the Capitol on January 6th. So when did Arctic Frost start? That's interesting. Started by Garland, I guess.

B (49:01)

I have to say. I just. That's. This is not correct. Like I think NBC has this wrong. This is all part of. There are a lot of reporters out there now who are trying to like piece together the puzzle pieces of all the leak cases, one of which was Arctic Frost, in an effort to figure out who is person three in the Comey indictment, who's person one, all that stuff. And so there, there's a, there's some stray voltage and misfires in how these things are reported. Arctic Frost was a leak case handled by the Washington field office, as far as I know. I don't think it had anything to do with the Jack Smith investigation.

A (49:37)

Not a precursor to the Jack Smith investigation.

B (49:39)

So why would the precursor to the Jack Smith investigation was the riot.

A (49:44)

Well, why would these eight senators or nine senators. Why would Jack Smith, why would Arctic Frost documents show Jack Smith subpoenaing them?

B (49:54)

I think there's a conflation here. I think the document that Patel handed over to Grassley this week about the members phone records is not from Arctic Frost. Arctic Frost came in that 256 page release that the bureau sent to Grassley.

A (50:13)

Wasn't that Arctic Haze?

B (50:15)

Maybe that was Arctic hazed.

A (50:17)

There were a couple of Arctic.

B (50:18)

There's a, there's a, there's a couple. I, Yeah, I don't know. I, I thought, I thought that sounded weird, but I don't know.

A (50:28)

Yeah. And if it couldn't be a precursor, if it was gotten after the indictment of Donald Trump.

B (50:33)

That's correct. So anyway, you know, we've seen a million cases of January six prosecutions. I don't remember seeing Arctic Frost on any of them.

A (50:45)

Right, right.

B (50:46)

The precursor to the Trump case was the massive January 6th case. So anyway, one of the fired FBI employees, a combat veteran who was months away from becoming eligible for retirement, was called back to the office after having left for the day and informed of the dismissal, a person familiar with the matter told NBC News. The other dismissed agent was also called back to the office after having left for the day, the person said. Patel said Tuesday night on Fox News that some agents involved in subpoenaing phone records rec phone toll records of members of Congress had been fired, though he did not say how many. Quote, you're darn right I fired those agents. You're darn right I blew up CR15, the public corruption squad that led the weaponization at the Washington field office, Patel said.

A (51:35)

Hmm. Now, Stacy Young, former Justice Department lawyer who founded Justice Connection, which is a support network for current and former Justice Department employees, warned that the firings could have a chilling effect at the bureau. Obviously, quote, this administration is firing FBI agents who push on direct orders from their superiors, while also firing agents who accepted assignments given to them in a prior administration. Line. Agents can't do their job if they are in constant fear that any action they take could result in their termination. And they deserve better. NBC News first reported in may that the CR15 unit, the FBI Washington Field Office's federal corruption unit that was deeply involved in the Smith case, was folded in the spring. But the agents were not fired until Tuesday.

B (52:16)

Day Smith's report, which was issued in January, said Trump tried to reach two senators by phone on January 6, 2021, and directed an unidentified co conspirator to call members of Congress to encourage them to further delay certification of his election loss. Those calls happened around the time Trump tweeted a video telling rioters to go home and repeated his claim that the election was stolen.

A (52:41)

Yeah, so there's, obviously, you're like, what is the, what is the pretext for opening that investigation? The riot.

B (52:48)

The capital is pretty simple, pretty obvious. So CR15. There was historically two public corruption squads in the Washington field office. CR15 was the one that handled public corruption having to do with federal targets. So that could be any federal government agency or a member of Congress or employees of the government, what have you. Then the second one did different things like corruption at the state level, corruption in the private sector, things like that. CR just means criminal because it indicates that it's a criminal squad. And it's, it was number 15 legendary squad filled with incredibly dedicated, very experienced people. These, these cases are complicated. They have all kinds of oversight requirements and technical requirements other criminal cases don't have because they're dealing with these sensitive targets, politicians, maybe campaigns, things like that. And people who do that stuff and are good at it, they spend their entire careers doing it. They develop a real expertise. Lots of other agents don't want to do this work because it's controversial and it's complicated and it's not as much quote, unquote, fun like, you know, chasing drug dealers and kicking indoors and stuff like that. It's a little more of a head game. So the idea that you would come in and just destroy that unit and cast all those people out either to other squads, maybe some punishment reassignments, or firing them outright, which they have done with several of these folks, it's a terrible thing to do. It's vindictive and cruel to the people you're affecting. And it's bad for the country because we no longer have these experts making sure that our government is run in a fair and lawful way instead of rife with corruption.

A (54:44)

Well, it's the criminal equivalent of kicking out all the inspectors general and hampering that kind of oversight. That's right.

B (54:52)

That's right.

A (54:53)

Because that's where all Trump's and the White House's crimes are going to take place is in D.C. and those would be looked at by CR15, which is, you know, of course, you want to dismantle that. Yep. All right. A couple of DOJ failures again, we've been long following the loss of the presumption of regularity and the US Attorneys failing to get indictments for alleged assaults against federal officers. We're going to talk about a couple of those plus listener questions. If you have a question, there's a link in the show notes you can click on to submit your question to us. And we're going to get to that after this break. Stick around. We'll be right back. All right, everybody, welcome back. Just a couple more stories about more failures at the Justice Department before we get to listener questions. The first comes to us from the Chicago Sun Times. Now, as you know, ICE operations have ramped up in Chicago, though judges have temporarily blocked the deployment of the National Guard there and in Oregon while they consider more permanent injunctions. With a loud bang of his gavel Wednesday morning, a federal magistrate judge agreed to dismiss charges against a Chicago couple found lawfully carrying loaded pistols last month outside the US ICE facility in Broadview. He did so after a grand jury on Tuesday returned a no bill in the case of Ray Collins and Jocelyn Robletto. In doing so, the grand jurors refused to indict in the high profile case related to protests over the Trump administration's Operation Midway Blitz. Now, it's highly unusual. It's a highly unusual development at the Dirksen Federal Courthouse, but one that's been watched closely as the Fed's aggressive deportation campaign fills the court's documents pocket. Top federal officials have touted cases like Collins and Robledo's while making the case that ICE agents are being threatened and that the National Guard troops are needed to help protect them.

B (56:44)

Now, the dismissal of the charges against Collins and Robletto, as well as a misdemeanor case that had been filed against Lucy Mazur, is sure to fuel skepticism about this new wave of prosecutions. A spokesman for U.S. attorney Andrew Boutros declined to comment. Comment Richard Kling, who has worked in Chicago courtrooms for decades and represents Collins, said he'd never before seen a no bill in the federal courthouse. He told reporters, quote, I think the charges came from Washington, straight from Washington, kling said. From Attorney General Pam Bondi is my own speculation.

A (57:19)

Yeah. And Kling also brought up the old adage Wednesday about prosecutors and ham sandwiches. While grand juries are meant to be a check on overzealous prosecutors, they're viewed so cynically that it said a prosecutor could convince a grand jury to indict a ham sandwich. However, grand juries are now beginning to resist prosecution brought by Trump's Justice Department, Most notably in D.C. now in Chicago, Kling quipped that prosecutors apparently had less evidence than a ham sandwich.

B (57:49)

I bet you he's still telling that joke at home. Yeah, okay.

A (57:52)

Am I right? Am I right?

B (57:54)

Then I said, all right. Collins and Robletto are not completely out of the woods yet. Assistant U.S. attorney Brian Harvey, or I'm sorry, havey sought dismissal of the complaint against them only without prejudice, meaning prosecutors could still bring new charges against them before the end of the month. US Magistrate Judge Gabriel Fuentes ordered the dismissal of the complaint after peppering Havey with questions about Havey's obligations in the situation and when a no bill had last been returned in the Northern District District of Illinois.

A (58:27)

Have he told the judge, I don't have any experience with this. And he said a no bill has been known to happen periodically, but in another case, okay, so we're switching now to Judge Zia Faruki, who's a magistrate judge in D.C. judge Farouki pointed out the term unprecedented is casually bandied about. But as Judge Suknanan identified, these recent weeks literally have been unprecedented. To contextualize how unprecedented things have been, the undersigned had the clerk's office run the numbers. Specifically, the court pulled every motion to dismiss filed by the government in cases charged by complaint for 10 years. The results speak for themselves. Of the over 4,000 cases charged by complaint between 2014 and 2024, the government moved to dismiss less than 20. In the last eight weeks, the government has charged 95 cases. And in that time, the government has moved to dismiss 20. So 20 over 10 years, and then 20 in eight weeks. Wow. Yeah.

B (59:30)

And in yet another case, Judge Farouki wrote, between the year 2005 and today, over 5,000 indictments were returned in the United States District Court for the District of Columbia. Last week, the government attempted for the first time ever to return an indictment from a D.C. superior Court grand jury after a federal grand jury previously refused to indict. This unprecedented workaround to the normal federal grand jury process immediately raised serious questions about the legality of the government's conduct. This is the case of Kevonte Stewart that we discussed last week. Judge Faruqi continued. The unprecedented number of recent federal grand jury rejections, a trend that appears to be spreading, as most recently seen in Chicago, reflects that federal grand juries want more than the government is offering. So there may be a nominal risk that a D.C. superior Court grand jury is a more receptive audience for charging federal offenses than a federal grand jury.

A (60:34)

This litigation and the delay caused by it, it could have been avoided if the government had simply gone to one of the other federal grand juries. That escape hatch remains open today. At any time, the government can short circuit this dispute by taking their federal charge before a federal grand jury. The question then is, why are they now afraid to? So, wow. And finally, the case of Sidney Reed we've been following. Sidney Reed is the one where prosecutors failed three times at three grand juries to get an indictment, so they filed misdemeanor charges instead. The federal public defender claims in a new filing on this misdemeanor charge that the government actually failed to preserve an exculpatory video violating Brady rules, taken by one of the officers watching the alleged incident. Reid can allegedly prove that the officers had the exculpatory video, shared it with each other, and then failed to preserve the video taken by one of the officers who had actually posted it on Instagram. But now it's been destroyed. So that's super bad news for the misdemeanor case that they. Because they couldn't get a felony in Sydney Reed's case, if that all is true. So just embarrassing mistake after embarrassing mistake by the Department of Justice. And I know that my friends who are former US Attorneys are just like, you know, face palming it.

B (61:55)

Yeah.

A (61:55)

Yeah, it's embarrassing.

B (61:57)

It is embarrassing. You cannot do these things. You have to be right. You have to be accurate. You have to be truthful all the time. Because as soon as you stop being that or you're perceived as having abandoned those values, the whole thing starts to fall apart.

A (62:14)

Yeah. All right. Well, we will continue to cover the failures of the Department of Justice here on Unjustified. And now we're going to get to a listener question. I think maybe we have time for one. We had a lot to cover today. So if you have a question for us, there's a link in the show notes you can click on and submit your questions to me and Andy and we'll read them on the air. And we love definitely going through these. They're really, really thoughtful questions. Andy, what do we have today?

B (62:37)

I picked actually two about Comey's case. The first one is very quick, comes to us from Adam. Adam says, why is Comey's case being tried in Virginia when the supposed crime took place in the capitol building in D.C. and then he says, if it goes to trial, will people like sitting senators like Ted Cruz be called to testify? The case is in Virginia because when Jim Comey testified, he was actually sitting in his residence and they conducted the hearing over zoom because it was 2020 and you know, there was the pandemic and all the problems in doing these things safely. So he was sitting in his residence, which is in Virginia. That's what gave the government the opportunity to venue the case in Virginia, which of course they took advantage of because they do not want to keep bringing cases in the D.C. district, where as we've been reporting, like in the last story with Judge Farouki, the grand juries are, are not going the government's way in the District. So that's why they put it in Virginia.

A (63:38)

Yeah. And I didn't hear Pat Fitzgerald say that they were interested in filing a motion challenging venue. I don't even think they're going to get there. But that list of motions he rattled off in court, court I'm assuming was non exhaustive. We may see additional motions to dismiss and we'll know by October 30th, which is the second round of motions to dismiss.

B (64:01)

For sure. For sure.

A (64:02)

Okay.

B (64:03)

So the second one comes from Dorothy and this one I picked because a bunch of people ask questions along this line and the theme is basically like, what can you do if you are selectively prosecuted? And then, you know, the case falls apart. Do you have any recourse against the government? So Dorothy says Thank you both for your amazing analysis. I've been listening to you from Europe in Luxembourg and the UK and following your discussion of the Comey indictment, I'm convinced that Trump doesn't care if he loses the case even at an early stage. It's all about the pain and the cost and indignity that he can inflict however long the case lasts. My question is, how does a vindicated defendant recover his costs? Is that even possible in circumstances such as these? The answer is you don't. It's barely possible to be able to go after, to successfully go after the government. If you, let's say you had a case dismissed on one of these motions, selective prosecution, maybe insufficiency of evidence, you would have to prove that the government employees had exceeded the scope of their authority in prosecuting you or had intentionally, intentionally denied you, deprived you of your constitutional rights. That is a very, very hard thing to do. Government officers and employees are protected by kind of a limited form of civil immunity. So it's very challenging. And essentially no one does it because it's basic. I don't want to say it's impossible, but it's a very, very tough thing to prove against anyone who is an officer of the government.

A (65:48)

Yeah. And I know Mayor of New Jersey Ras Baraka has filed a civil complaint for false arrest. So I guess we could watch that case for maybe a hint of how that might turn out. But those circumstances were also different because he was arrested on the spot after a phone call from Todd Blanche, and he wasn't doing anything wrong.

B (66:10)

So he might actually have the facts necessary to prove a specific intentional deprivation of constitutional right there. It's much harder when you're, you have a case like the, how you know, like the Comey case. It was put to a grand jury. The grand jury voted to indict it. So once you've kind of gone through these, these, some semblance of the normal process, it, it becomes harder and harder to prove that this was like a conspiracy of government people to deprive you of your rights.

A (66:43)

Yep. And the Wall Street Journal says John Bolton could be next. He might actually be indicted by the time this show airs on Sunday. The sources who spoke to the Wall Street Journal said it could be within days that they were going to try to take the John Bolton case to a grand jury. So that is what we might be talking about on the next episode of Unjustified. Again, not a fan of, of John Bolton, but, but we will, we will be covering that. It's falls in the category of the weaponization of the Justice Department to go against your political enemies. Thank you so much for your questions. Again, link in the show notes. You can submit your questions. Thank you all so much. I wish we had more time to answer more questions from you. Maybe we'll do some sort of a question answering bonus sesh episode at some point. I think it's a great idea since our regular episodes don't really leave much time and yeah, we'll talk about that. I think that would be fun. Put out a bonus episode of Just Questions. So with that in mind, send your questions in because we'll need a lot of questions for that particular episode if it's just all questions. All right, everybody, we'll be back in your ears next week. Do you have any final thoughts? Andy?

B (67:57)

No, another, another busy week next. Hopefully we won't have more indictments to talk about next week, but you know, as, as things are going, it looks like we probably will. So yeah, stay tuned and we'll bring it all, all to you here.

A (68:12)

All right, everybody, we'll talk to you next week on Unjustified. I'm Alison Gill.

B (68:16)

And I'm Andy McCabe.

A (68:18)

Unjustified is written and executive produced by Allison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey with art and web design by Joelle Reader at Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds and the show is a proud member of the MSW Media Network, a collection of creator owned independent podcasts dedicated to news, politics and job justice. For more information, please visit mswmedia. Com.