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UnJustified
Bonus | The Q & A
00:53:46
We’ve had so much news to cover that we haven’t gotten to as many listener questions as we would like. So we have gathered some of your most frequent and most pertinent questions for this Q&A bonus episode. F.B.I. Plans to Lower Recruiting Standards, Alarming Agents - The New York Times Do you have questions for the pod?
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- [00:01]
A
MSW Media. Hey, everybody. Welcome to this special bonus episode of the Unjustified podcast. Recently, our shows have run a little long because the amount of news that we've had to cover and. Yeah, and generally it's our practice that we like to take a couple of listener questions at the end of each show and we put a link in our show notes for you to click on and there's a form you can fill out to submit your questions. And we have, like, especially this week, we just weren't able to get to any because we were already over an hour because of everything that's been happening, particularly, I think we were covering in pretty granular detail some of the motions to dismiss the charges against James Comey and Letitia James. And so given that, we wanted to put together this bonus episode of just your questions, it's just us answering your questions. And we're going to be doing these periodically as the questions pile up and the news days get longer. So. So please click on the link in the show notes and submit your questions and we will do our best to get to them. So I just wanted to welcome you to this very special episode. It's like a very special episode of Different Strokes. I'm Alison Gill.
- [01:36]
B
And I'm Andy McCabe. I'm laughing already. It's like just the very beginning. Yeah. I think the questions are such an important part of our show. It's great to be able to read them. Of course, even when we get to them, we only get to usually one or two, but they give us a great view into what the audience is interested in. Sometimes a lot of them react to things they heard on the prior episode. And so that tells us kind of how well we've covered something or maybe when we've. When, when we've left out a detail or something that would help. And then it also shows us, like, what people are thinking about and, and, and what's on their mind. And it helps us kind of tailor the show a little bit. Definitely a lot of that going on this week. We were kind of really covering a lot of ground here.
- [02:21]
A
We were. And I have to say, we're going to have a really, really robust show again this Sunday where we're going to talk about, first of all, J.P. cooney and Molly Gaston have formed a law firm to help states and attorneys general and district attorneys go after public corruption, because, as you know, Donald Trump has decimated the public corruption unit at the Department of Justice. And that's where JP Cooney and Molly Gaston used to work. Also Part of Jack Smith's team. And then Jack Smith himself writing that letter we're gonna talk about to Jim Jordan and Chuck Grassley saying, I'll come in and talk to you, but it's gonna be public. You're gonna give me all my files, so I have my notes, and you gotta let me know if I can talk about volume two. And I just think that that's pretty incredible.
- [03:06]
B
Yeah, we're gonna have a ton to go over this Sunday, but before then, we're gonna clear out some questions today.
- [03:14]
A
Yes, indeed.
- [03:15]
B
That's the point of today's show. We're gonna go through a bunch of. Bunch of stuff that you guys have been sending in. And for every question we read, there are several others that bring up kind of a similar theme. So we're trying to. Even if you don't hear your own name called out, please know that your interest in this stuff is being represented by the. By the questions we pick.
- [03:35]
A
Indeed. All right, so who do we start with today?
- [03:38]
B
All right, so the first one is really just a little bit of a clarification. This one comes to us from bp, and BP says, I'm a regular listener. I enjoy, and I'm always informed by your show. Thank you. In the latest episode, you mentioned SIPA Section 4, and the word substitution, which he has in quotes he said, then goes on. I don't know why I'm assuming it's a he. BP goes on to say, an example of a substitution would be helpful to regular listeners. So, sure thing, bp. And it's been a while since we talked to our friend Brian Greer, so he's usually our SIPA expert. But a SEPA substitution is when the defense in a case that involves classified information or national defense information that has to be used as evidence. The SEPA process allows the defense to say, okay, we want to use these pieces of classified information in the trial. And then the government can come back and say, well, we don't want those pieces of classified information exposed. So we would propose a substitution. Substitution could be a summary that basically captures the flavor of the classified information but doesn't reveal its details. Or the government can say, we will agree to a statement in which we concede the truth of the underlying classified information so that it doesn't have to be aired at trial. So those are just ways to substitute information that's not classified for the actual classified stuff in an effort to, like, protect that information from being revealed at trial.
- [05:19]
A
Right. And we saw a lot of this type of substitution in indictments or in Speaking indictments. When, for example, Jack Smith would say something to the effect of. And then he shared some information, plans drawn up by the chairman of the Joint Chiefs of Staff, about an attack on a foreign nation. For example, instead of saying General Milley shared that we had 600 planes headed to Iran, you know.
- [05:47]
B
Exactly, Exactly. Yeah.
- [05:49]
A
So it's something like that. It sums it up. Or like you said, that's really interesting. I didn't know that part, Andy. That you could say you don't need to know what's in this document, but both parties agree it's classified.
- [05:59]
B
Exactly. Yeah. That's interesting. It's a way to avoid those old situations where the government would have to dismiss an indictment, because to fully prosecute the people behind the release of the information would cause greater harm to national security by exposing that information on a wide scale. So that's what SIPA does for us.
- [06:18]
A
All right, along those lines, Andy, can I ask you what the term gray male means? Is it a form? Is it like the word blackmail, but the word gray instead and not meaning mail, like the post office mail, like, what is gray mail? Because I know that defendants who are being charged can try to use the fact that the government doesn't want to release this information to hold their charges hostage or something. Do I have that right?
- [06:46]
B
Yeah, you do. It's a riff on the term blackmail, because it's essentially when a defendant will really push the limit in terms of what they insist must be exposed at trial in order for them to maintain a full and fair defense. And they do it with the intention of essentially forcing the government to walk away from the prosecution. Right, so. And that was much more common in the. In the time before sepa, before we had a Classified Information Procedures act, many of these espionage cases would fall apart at the prosecution stage because the government just really didn't have an effective way to protect important and sensitive information. But SIPA kind of gives us a way around that now.
- [07:34]
A
That's very interesting. All right, great. Great question. Great first question as well. All right, so what's next? I think we've got about five minutes before our next break. Do you think we can get through this Bolton lightning round before.
- [07:50]
B
I totally do. Yeah. I totally do. There were so many questions about John Bolton and the different aspects of his case. So let's just rock through these real quick. Steve writes in, are John Bolton's wife and daughter indictable? So that's a tough one, Steve, because we don't know this. The entirety of the government's evidence and So I guess the answer I would give you is there is a part of the Espionage Act, 18 USC 791, that speaks to people who never had access to classified information, they didn't have clearances and things like that, but they received or obtained national defense information, had access to it, and then transmitted it to someone, someone else. So yes, under the law, there are provisions in the Espionage act that can be held, you know, where you can hold people accountable for simply being on the receiving end of that information. But without knowing the facts, we can't really say if the government has made any kind of an assessment as to whether or not they should be prosecuted and if so, whether or not they have the evidence to do that successfully. So far we don't know the answer to those questions.
- [09:07]
A
Yeah, and I don't know, I feel like if they were going to be in trouble or if there was going to be some sort of mop up case with his wife and his daughter, there would have been a conspiracy charge.
- [09:15]
B
That's absolutely right.
- [09:17]
A
Right. Against Bolton himself. And with, you know, absent a conspiracy charge, I think he's the only target in this investigation at this time.
- [09:27]
B
I think that's the most like. Yeah, I think that's the most likely assumption. Sometimes you see in cases like this, family members who are involved will also get charged with kind of the primary subject. And oftentimes that can provide leverage for the government to use to convince the primary subject to take a guilty plea in exchange for letting their family members kind of off the hook. But there's no showing or sign that that's happening will happen in this case yet. Okay, so the next question comes from Trevor. Now this one. Trevor, I have to apologize. I somehow erased your question and then had to rewrite it from my memory. But basically Trevor I know is in Australia. He listens with his wife every Sunday as soon as the pod drops. And Trevor and his wife are sometimes mystified by US law, which is like same, that's totally normal. That happens to people in the US all the time. And Trevor's question is, how do we know that the content of Bolton's messages to his wife and daughter are actually national defense information or classified? Do we take DOJ's word for it? Might it just be like his musings about his schedule and stuff that wasn't that important? Okay, so that's possible. But no, we don't take DOJ's word for it. If this case goes to trial, the government will have to prove as one of the elements of the offense that the information in question is actually national defense information. And so they'll have to make that explicit in the trial. And they will likely bring in witnesses to testify to that effect. So let's say, for example, if Bolton says, and I'm making this up to hypothetical, if Bolton says, I went to a briefing from a CIA analyst today and the analyst told me XYZ about Iran, they'll bring in an experienced Iranian expert from the CIA. They'll read what was included in the statement that he's been indicted for or the writing, and they'll have that expert testify as to whether or not they believe that information is national defense information and why they believe it. They'll basically have to prove that during the course of the trial.
- [11:44]
A
But now, these nine documents that are put in a table in the indictment say they have classified, no foreign top secret SCI markings on them. Is that something that they take into account for something like this?
- [12:03]
B
Absolutely. So when you're trying to prove that something is national defense information, if that information is bearing classification stampings, whether that's, you know, secret or top secret or tssci, whatever that might be, all of that goes to making the argument that this is, in fact, national defense information under the Espionage Act. So, yeah, it's not necessary that the information be classified, but it's very helpful to the government if it is.
- [12:33]
A
And going back to the indictment, were these like diaries, in his own words, summaries of his meetings and things like that that then included attachments that were marked classified, or was he just summarizing classified information that's marked classified in other documents and the government's using those documents to show the information he wrote about in his own words was classified, I.
- [12:59]
B
Think you're going to see a little bit of both. So I think what he wrote and transmitted to his wife and daughter was literally like off the top of his head, but it was based on experiences he'd had in the day or days preceding that note. So, for instance, if he writes in a note, today I attended a meeting with, you know, again, I'm making up the details here just to prove, make a point. I had today I met with the Prime Minister of England and we had a conversation about national security threats from XYZ country. If the government can go back and produce a document that they specifically discussed in that conversation, you might see that document show up at trial. But more likely what they'll do is say under the classification guidelines that John Bolton knew about and was trained on and had to take, you know, had to be competent in interpreting it is a standard guideline that statecraft and diplomacy between heads of state is always classified at at least the secret level. So that's the kind of thing where, of course, he should know better. He does know better.
- [14:18]
A
But then they have to prove that he knows that.
- [14:21]
B
Yeah. Which they could do by saying, you know, when he takes his job and resumes access to classified material, you have to go through a briefing and sometimes like a training with your general counsel, who lays all these. All these rules and kind of standards in front of you. And again, John Bolton's a guy who's dealt with this stuff pretty much his entire career, right. From the Justice Department to the State Department to ambassador for the UN like, he is a guy who is very familiar with what constitutes classified information and what does not, and the government will use that to their advantage.
- [14:57]
A
And I think, if I remember correctly, first of all, two part question, Does John Bolton have declassification authority? And number two, if I remember correctly, there are certain things that only the owner of the document, meaning the NSA or CIA or whatever, has control over whether or not something's classified. And sorry. Thirdly, it actually doesn't even matter if it's classified, because it doesn't have to be in order for it to be considered national defense information. They just have to prove that it's considered national defense information.
- [15:33]
B
That's correct. And the Espionage act defines what constitutes national defense information. And it's very broad, far broader than the standards for classification. But by definition, anything that's classified would fall into that category.
- [15:51]
A
Gotcha. Because I was thinking of Trump's defenses, like, I declassified it with my mind or. Which he actually never introduced as a defense. And also Jack Smith's decision to charge him with retention of classified documents, not the theft of or mishandling of. Right. And probably for the. Some of those reasons, because he has very broad authority and if he wanted to take classified out of the White House before Biden was actually president, that he probably is allowed to do that. But it's the retention. And I think that's one of the arguments that. And we'll talk about this on Sunday, which is why they went with Florida instead of D.C. too much to the chagrin of many.
- [16:31]
B
That's right.
- [16:32]
A
So, yeah, I think it's just, it's very interesting, the all of the differentiations between what's classified, what's considered national defense information, and the fact that it is classified automatically makes it national defense information. But John Bolton doesn't have declassification authority. Over a lot or anything.
- [16:50]
B
I don't. Yeah. I don't know if that's what we call an oca, an Original Classification authority. Typically, the OCA is like the head of a government agency that deals with classified, and then there's sometimes a few subordinate employees who have OCA authority. I had OCA authority when I was a. When I was deputy director, which is. Anyway. Anyway, the ability to declassify information is much more sensitive than the responsibility to classify information. Right. Because you're. It comes with the release of that information. I think it's highly unlikely that John Bolton ever declassified information that he was handling and using, which was the property of other agencies, like a national security advisor is not going to declassify something that the CIA considers classified. The President might, but. But the NSA is likely not going to do that. So I don't think you're going to see him try to run some form of that defense. You will see when the government is trying to prove the national defense information characteristic of this stuff at trial, they're going to bring in an expert from whatever agency owns that information.
- [18:16]
A
Yeah, but is it going to be John Ratcliffe or is it. Well, it's going to be an actual expert or is it going to be.
- [18:23]
B
It's going to be an actual expert.
- [18:26]
A
Yeah. And, you know, the same way, it's not just with Lindsey Halligan's name on this indictment. These are career prosecutors.
- [18:33]
B
Yeah. One of the biggest tasks in the Clinton email case was taking all of the information that had traversed the server and dividing it up by origin and then shipping it out in the form of CD ROMs to other agencies, saying, please look at this and tell us, number one, is this yours? Is this your original information? And if so, is it classified? And if so, what level is it classified? Like, that took, oh, my God, a year. Like, wow, there was so much information and it required so much interaction with all these different agencies, so that you'll see like a microcosm of that in this. In this case, if it ends up going to trial. Because they will have to bring in people from those originator agencies to say, yes, it was classified when he transmitted it. It's still classified to this day. Here's why that sort of thing.
- [19:34]
A
Interesting. All right, we didn't quite make it through all the Bolton questions, so we're going to have a couple more on the other side of this quick break we need to take. So stick around. We'll be right back. All right, everybody, welcome back. Thanks for participating in our completely amazing bonus questions only episode of Unjustified. Thank you for all of your really thoughtful questions. There's a link in the show notes you can click to send your questions in. And we'll probably be doing these bonus episodes periodically as the actual Sunday episodes fill up with more and more. You know, we're covering Trump's Justice Department, so there's going to be a lot. It's a lot that comes out. So let's continue with the, with the questions about John Bolton.
- [20:26]
B
Yeah, sure. So we got two left. First one comes from Marika, who says first, let me note that you both have extremely soothing voices, which helps given the often disturbing news you're relating. Thank you, Marika. Appreciate that question. John Bolton had been under investigation during the Biden administration, but he was not charged. Was there a declination decision made? If not, any idea why not? I assume that if there is, it will be asked for in discovery. Well, Marika, you're certainly right. That's something that Mr. Bolton's defense team will ask about. And I should say, you know, his defense team includes a very, very highly respected former U.S. attorney for the Southern District of New York, Preet Bihara. I think is his defense is kind of heading up his defense team on this case. But so back to why he was not charged, I don't think we had any reporting that indicates that there was an official letter of declination, but obviously they never brought the case to an indictment. And a lot of people have speculated that that's because they didn't believe there was a case there and therefore that's a sign that what's happening now is vindictive in nature. That's all possible, but we don't have facts to prove that just yet. And I would raise just one contrary possibility as well, just for your consideration, and that is it is not by definition improper or vindictive for two prosecutors to have a different view of a case. So lots of cases take a long time and a case might be investigated for years in a U.S. attorney's office and then administration turns over and the U.S. attorney's gone and a new one comes in and the new one might decide that this was a wasted effort and they don't want it to go on any further.
- [22:25]
A
Or Jack Smith did that quite a bit when he entered the Public Corruption Unit.
- [22:30]
B
Exactly. Perfect example here. Kind of the opposite would have to be true. Maybe the prior team was not really didn't have a lot of momentum behind the investigation, or maybe they were walking away from from it and then and the new prosecutor came in and thought there was something to it. I. And I should say, like the simple fact that there is hard evidence that was uncovered through the execution of a lawful search warrant. It does tell you something about this case. It is not. It doesn't have the kind of ridiculous, hollow hallmarks of the Jim Comey case. There is meat on. There's meat on these bones. Whether or not that's going to lead to a conviction for Mr. Bolton, we cannot say. But this is a case in which we are talking about actual hard evidence. And so I think we have to leave open the possibility that there, you know, any, really, anything could happen here.
- [23:30]
A
Yeah. And I noticed that the prosecutor said, by the way, none of the book stuff is what we're talking about here.
- [23:39]
B
Yep.
- [23:40]
A
And that makes me think that perhaps. And again, I'm just speculating, but perhaps the investigation that happened during the Biden administration was about the book and the book release and releasing it before they got a final notice from Michael Ellis and the National Security Council and all of that. There were. There was a civil lawsuit that happened, and it turned out that the Trump administration was working in pretty bad faith. And so that might have been what they were looking at or investigating and decided that there wasn't a case there. Now, you know, it is hard to revive a case that a prosecutor failed to bring previously from the Department of Justice. And many people use that. Right. Like, look, the same thing happened, and they didn't charge me, but now they're charging me. I know Kilmar Abrego has brought it up several times that nobody pulled, charged me. They didn't even write me a ticket in 2022, and here I am being charged with human smuggling, and no new evidence has surfaced. But in this particular case, I think the fact that it's not about the book, it may be about what they got during the search. There might be new evidence that wasn't considered by the original prosecutors. So that's another thing to take into consideration. Again, we don't know, but if a new prosecutor reopens a case and gets. Finds new evidence, that then makes it a prosecutable case, that's very different from trying to prosecute a case that had, you know, that was declined to be prosecuted. Then there's no new evidence for you to go.
- [25:09]
B
That's right. Yeah. So two things I think are important to emphasize there. One, yeah, I agree with you. Like, the simple fact that this prosecutor saw it differently, decided to keep moving the case forward, and ultimately got search warrants to Turn up evidence doesn't make it per se. Vindictive and selective. It still could be. Are there. Are there certainly themes and motivations on the part of the administration that would support that? Absolutely there are. We know that President Trump hates John Bolton. So, you know, so Trump has in some way infected this and many other cases to come with the specter of an improper motive and a vindictive or selective prosecution. But it's not. But there's also a side of this that appears to be legitimate. So we got to wait and kind of see how that goes.
- [26:02]
A
Yeah, definitely. So, anyway, we have one more Bolton question.
- [26:07]
B
One more, and this is probably a quicker one, comes to us from Ruth. Ruth says, hi, Allison and Andy, you are infinite intelligence, unshakable spirit, and astounding good looks never cease to astound me.
- [26:18]
A
And I just see why you picked this question, Andy.
- [26:20]
B
I'm so happy that the audience continues to begin all the questions with completely unwarranted flattery, because it's just nice. I like it. I mean, I feel like that's not bad. Okay, thank you, Ruth. So she says, I am wondering whether Bolton might file a motion of selective prosecution vis a vis Hegseth' signal chats, which went unpunished. What do you think? I think that's a definite possibility here. They're gonna, you know, if you're talking about mishandling classified. It's not just that Hegseth did something incredibly risky, reckless, dangerous, by convening that chat and discussing military plans and actions on the ground, but it's also the fact that no one lifted a finger to even investigate it.
- [27:12]
A
Yeah.
- [27:12]
B
Day one, Pam Bondi's DOJ said, nothing to see here. We're not going to investigate. So that makes the distinction between how they've handled Bolton, I think, even worse for the government. And so I would expect we'll see some sort of motion on that.
- [27:27]
A
Yeah. And Jack Smith has brought it up twice now, once in his interview with Andrew Weissman and once when he spoke at George Mason.
- [27:35]
B
That's right.
- [27:36]
A
Yeah. I think that that's, you know, knocked the wind out of Jack Smith that nobody lifted a finger to investigate that. 100%. I'm sure Preet Bharara will bring that up as someone who is similarly situated, perhaps, if not worse.
- [27:53]
B
Right.
- [27:53]
A
Who wasn't prosecuted. So very good question. Very astute. I think I'll be looking for that motion.
- [28:01]
B
Yeah, for sure.
- [28:01]
A
All right, we. We have to take another quick break, and then we will continue. We will continue with the questions until Morale improves right after this break. Stick around. We'll be right back.
- [28:21]
B
And we are back with the Question Show. Okay, we're gonna charge right ahead here. This next question comes to us from Jen, and Jen says, with all the corruption in the current regime, how can we be sure that evidence for the multitude of infractions by the Orange Menace, I think she means President Trump there and his cronies won't be destroyed before he leaves office? Are there any safeguards in place to preserve work from prior investigations or protect records that would be needed for all the future investigations? Well, Jen, great question. I guess the short answer is, yes, there are safeguards in place. There are laws about how the administration has to handle evidence. There are regulations about what has to be turned over to the National Archives, what they can have and what they can't have, and the process they go through or supposed to go through to determine that. But we know that the last time they didn't do any of that. So although there are safeguards, I think we know how easily those safeguards can be knocked down. We know how much material that Trump took to Mar A Lago, how much of it was classified. We also had reporting indicating information was being destroyed in and around the White House. We got Mark Meadows burning documents in his fireplace, in his office. We had documents showing up in the plumbing having been flushed down the toilet. So I think we should expect that at the end of this administration that those same rules will be violated again and very possibly in more overt and damaging ways.
- [30:06]
A
Yeah. And every accusation is a confession. So when Kash Patel says he found tons of burn bags of evidence that was going to be destroyed, I think that means he's collecting a bunch of burn bags full of evidence that he wants to destroy. That's just the way I see this particular administration, specifically people like Kash Patel. But I also think it's why Jack Smith, in his letter to Chuck Grassley again, we're going to go over this on Sunday, and Jim Jordan said, yeah, I need all my files. You're going to have to give me all my files. I don't have access to all my files. Do you have my files? Where's my files? Do you have volume two? I'd like. I need volume two. Can I talk about volume two? I'd like to see volume two. Can we see that? So I think that that's sort of a. Not just a, you know, I need my files to answer your questions about my files, but also, do you have them?
- [30:56]
B
Like, yeah, produce my files, sir. I'd like to see them. I think that's a little bit of what's going on there.
- [31:02]
A
Yeah. And you. And I worried after the election, like, I was very glad that the entire report of volume one was put on a court docket, and all of the evidence in the case was also entered in, like, 1800 page under seal, evident evidentiary filings with the court so that it existed somewhere outside of the Department of Justice. Yeah. And. And for. For good reason. I was very concerned that they. That Trump would sweep in and destroy all that evidence.
- [31:36]
B
Yeah, for sure. I think those. Those qu. Those concerns should. Should be even higher now for what we'll. What we'll see whenever the end comes for this. This event.
- [31:47]
A
Yeah. Now that he's the president, he doesn't have to drain his pool to flood a server room to get rid of evidence. He can just.
- [31:54]
B
Yeah.
- [31:55]
A
Burn.
- [31:56]
B
Exactly right. Exactly right.
- [31:58]
A
Remember, remember when Mark Meadows was burning classified documents in the fireplace before he left, before Trump left office? Yeah, I remember that.
- [32:10]
B
Something we still haven't gotten to the bottom of. I don't know if that'll ever happen now.
- [32:14]
A
No.
- [32:15]
B
All right, we march on. This next one comes from Rob. And this is. This is a quick one. Rob says you mentioned in the questions section of the Nobel Prize episode that the FBI, the military, and other federal agencies are lowering standards, such as FBI training time from 18 to eight weeks and other examples. Can you tell me your sources for that or point me to an article covering. Sure, Rob. There's been a lot of reporting just this week on what's happening at DHS and the impact of DHS's massive hiring surge and how poorly that's going and the fact that they are. And part of that story is that they are lowering their training standards. So I would. I would encourage you to, like, look for that. But the main story about the FBI was a New York Times article. And we'll put the. We can post the link up in the show notes from this show, but basically it was an article that came out on August 21st from Devlin Barrett and Adam Goldman. And the title of the article was FBI Plans to Lower Recruiting Standards, Alarming Agents. And so again, we'll put the link up for that in the show notes, so feel free to hit the link or just go Google that title I just gave you there.
- [33:35]
A
Yep. Grabbing the link right now to give to our producers to put in the show notes.
- [33:40]
B
Awesome. Awesome. Okay, next question comes from Noonan's. This one was a little bit troubling to me, and you'll know why when we get to the end. Noonan says, how come you guys don't do actual videos? Just set up a studio in your house or apartment, a few cams, mics, whatever, and off you go. I think there's a way you can do it by Zoom. I don't remember. Andrew, stop listening to bozos. So, all right, Noonans, I'm not sure who the bozos are that I'm listening to, but I would like more specifics on that if you want to drop me a line in the Questions catalog. Yeah. So the reason we don't do video is because it's not because Allison never asked. She would love to do video. I would love to do video, but I can't do video because of my work on cnn. I'm exclusive to CNN for video stuff, so unfortunately, that limits us to audio only. Occasionally, I do other podcasts. I'll appear as, like, a guest on someone's podcast, and they can't put me on video either. They usually put up, like, a still picture of me while I'm.
- [34:48]
A
Oh, my goodness.
- [34:50]
B
Yeah, it's. It's a little bit absurd, but that's why it's not a choice. It's more something we have to kind of work our way around. So that's the answer to that one. Anything you want to weigh in on that with Allison?
- [35:04]
A
No, but Dana Goldberg and I are going to be doing a video daily Beans podcast or a video daily news podcast starting on December 1st. And you can always catch my video podcast on the Midas Touch Network. It's called the Breakdown. So if you're hankering for some video, that's where I would point you. But also, I am very. I'm a Luddite, and it took me eight years to get to video, so.
- [35:32]
B
Too busy reading motions.
- [35:34]
A
But I did ask, and we couldn't do this particular podcast video style because of those restrictions. I'm not sure what the stop listening to bozos thing is, though.
- [35:44]
B
I don't know what that is either. But it's got me concerned that there could be bozos around me who are whispering.
- [35:50]
A
All right. Yeah, I'm not sure either, but we'll keep an eye out for the bozos. We promise. For sure. For sure.
- [36:02]
B
If you see bozos sneaking around, just give us a heads up.
- [36:05]
A
Give us a heads up. All right, we're going to take one more quick break and then finish out this Questions episode again. We will be doing these more in the future because we just are running out of space during the regular show for questions. For the questions portion of the show, we will be peppering them in there, you know, for when we have available time. But please submit your questions to us by clicking on the link in the show notes and filling out the form. And we'll wrap this up with a handful of more thoughtful questions from you right after this break. Stick around. We'll be right back. All right, everybody, welcome back. We have more questions questions, more of your listener questions. Again, there's a link in the show notes if you want to submit them. And we'll be doing these episodes periodically to make sure we get to more of your questions because they're so amazing, they're so thoughtful. So thank you for submitting and we look forward to answering more of your questions in the future. But we still have a few more for today's show. What do we have?
- [37:12]
B
All right, so we're going to go now to Madeline, or Madeline, she says. Thank you, illustrious hosts, for your continued dedication to keeping us informed and including a little humor along the way. I've been listening to every episode since Jack. So, speaking of Jack, is there any chance he could be picked for the next ag? As you've pointed out, there are so many deep problems within DOJ now that we're going to need someone aggressive and smart to bring it back to its former glory. Seems like he'd be the perfect person. So Madeline, I mean, I would love it. That's a dream pick for AG as far as in my book, I kind.
- [37:56]
A
Of hinted at that in my last breakdown episode when I, when I was talking about the, the letter that Jack Smith sent and, you know, all of his files regarding volume one and his investigation into Trump for Trump's attempts and his role in overturning his attempts to overturn the 2020 election results. And you have to recall that when Jack Smith had the cases dismissed, which is the one good legal reason for Jim Jordan and Chuck Grassley in the Department of Justice not to release his files to him outside of the Department of Justice. He had those charges dismissed without prejudice. And he actually argued a couple of times that the president being elected could pause the statute of limitations on his crimes, meaning the statute of limitations clock would stop tolling. That's never been litigated. We've never elected a guy who was indicted, so we've never had to litigate that. But I sort of think that if, and I was thinking if he's the attorney general, because I was like, who? You know, I said, first of all, we'd have to win in 2028. And then we'd have to appoint an Attorney General who'd willing to resuscitate this case, this January 1st case, and litigate the fact that the. The President. That these statute of limitations haven't expired because the President was the President. We can't prosecute the President. So that. That has to pause the statute of limitations. You'd have to have somebody willing to do all that. I know Jack Smith would be willing to do all that, which is why. Because somebody else might be like, h, let's leave the past in the past or whatever, but I think Jack Smith would be willing to.
- [39:40]
B
To, to.
- [39:40]
A
To do this. And he's, he's read in on it so he doesn't have to get caught up. But that's why I, I love this question and I do hope that he is our next Attorney General if we win in 2028.
- [39:52]
B
Yeah. I mean, he's probably the only person on the planet who would consider doing it and would have the ability to do it. He's smart. He is. I believe he's got incredible integrity and he's ferociously independent. And to me, like, that's the combination that. That leads to a great ag. And whether or not how he feels about the old case or not is. You know, I'd leave that up to him, but I think he'd do a great job. Now, you'd need a very strong majority in the Senate to get him confirmed because it would be seen as a. As a supremely kind of partisan pick, even though it's not. He's not a partisan guy. But. Yeah, I think that would be interesting.
- [40:35]
A
That's a good point. If we don't win the Senate back.
- [40:40]
B
Yeah, forget it.
- [40:42]
A
I don't know who you. They might say Robert her could be our next. You'd have to pick.
- [40:50]
B
Please.
- [40:51]
A
Yeah, I don't know what I want to think about that. We'll cross that bridge when we come to it. But. Excellent question. And it's kind of in my. I've dreamt about it. It. Let's say that.
- [41:03]
B
All right, so the next one comes to us from Carrie from San Diego. Carrie says regarding releasing the Epstein files, we know the administration will never willingly release them, and if they are released, they may be heavily redacted or incomplete. Do we think Epstein and Maxwell's prosecutors have full copies of the files and what is the legality of releasing those in case the administration is withholding or destroying records? Well, Carrie, as to the first part of your question, I've actually been Reading lately Julie Brown's book. Julie Brown is the reporter for the Miami Herald. Right. It's the Miami Herald who I think has probably done the most complete kind of journalistic investigation of Epstein from beginning to end, from the very first case that was a local Palm beach case, to the Southern District of Florida federal case which collapsed, and then, of course, to the case that ultimately put him in jail. And what I've realized is there is so much information out there about Epstein and everything he was involved in, and it doesn't all come from just the FBI files or just the Palm beach county files or the Palm Beach Sheriff files. There's all that, but there's also all of these civil lawsuits, which generate a lot of really interesting and relevant information during depositions, during discovery. And so it's hard to imagine at this point that any one entity has all of the information. So I don't. So I don't know that we'll ever get that kind of absolutely complete view over the full scope of what Epstein did from beginning to end. As for the legality of releasing what the government does have, I do think there are significant hurdles that haven't really gotten a lot of attention. There is always going to be this issue of releasing information about people who are not only not convicted of crimes, but who are never even accused of crime. So, you know, the alleged other men that, that Epstein was hanging out with and throwing these parties with and, and allegedly providing young girls to. There are legal ramifications for releasing information about those people to the public if they've never actually been accused or. And convicted of a crime. There's the Privacy act. That could be an obstacle to that, and people could. Would likely turn around and file like massive defamation suits. So it's. It's a. It's a much tougher. It's a much more kind of legally challenging concept than I think people are distilling it down to just like have a vote in Congress and then the next day, all the files are out there in public.
- [44:07]
A
Right. And you know, like you said, if it's this Department of Justice, they'll be redacted. First of all, all the survivors information and PIA has to be redacted. But, you know, when you have Democrats on the House Oversight Committee who have gotten a bunch of files from the Epstein estate itself, they're going through and redacting the. The survivor's information, but not the other information. So we see schedules of lunches with Peter Thiel, we see schedules of lunches with Steve Bannon and Elon Musk. We see flight logs and calls with Donald Trump's name on them and they're releasing those. But that's not the Department of Justice, so.
- [44:49]
B
That's right, that's right.
- [44:50]
A
It's gonna be, I think that the most information we're gonna get is from first of all Julie K. Brown, like you said, but also from stuff that the Epstein estate or Ghislaine Maxwell might release in retaliation for not getting a pardon that doesn't have to go through the Department of Justice. And I think that what the, you know, the Democrats right now saying release the Epstein files, that is I think a great fight to make because first of all, you're never going to get them all. The DOJ is going to redact the heck out of it it if they release anything at all because I thought for sure that first time when they first got into office they were going to go through, redact Trump's name, redact the survivors information, redact their pals names and release the stuff that showed, you know, some rando rich people who we've never heard of or Bill Clinton or Bill Gates or we know, whatever just to whet the appetite of their conspiracy theory base to get something from the Epstein files. But they didn't. All they gave them was stuff that was already released and then they came out on a weekend, a holiday weekend right before the 4th of July and said that's it, that's all you're getting. And that really angered a lot of people. And so I think when they got in and realized that they couldn't redact all this stuff and that they know that they can't release all this information on people who've never been charged and when the reality started sinking in on Bongino and Patel and I think that's when, that's why they got into fights with Pam Bondi over this stuff. But I don't think we're, if I think again, like I said, the most we're gonna get is gonna come from outside the Department of Justice.
- [46:34]
B
Yeah, I think, I think that's right. And I, and as you know, as you just mentioned, I mean, I don't know Julie Brown some, I'm pretty independent in this, in this plug. But, but if you're really interested in looking at the broad scope of what happened here, I totally recommend her book. It's a great read.
- [46:54]
A
Essential Source.
- [46:56]
B
Yeah, yeah. For real. She's done an incredible job here and she weaves all these different sources of information together. You really get a, you really get a Sense of how incredibly complicated the story and disgusting, quite frankly, the story is. And I mean that. Not just about what Epstein did, but the way people in power scuttled the first two cases, the first two efforts to hold them accountable just completely walked away from it. So a lot of questions to be answered there.
- [47:27]
A
Yeah, that's. That's the problem that I have is with that original sweetheart deal and all of the gifts to the people who got it, you know, done.
- [47:35]
B
Yeah.
- [47:35]
A
And who provided those gifts. It's. It's very. It's pretty sinister. All right, we are down to our last question. We have time for one more. So what do we have?
- [47:46]
B
All right, this one's going to take us back to the. To the James Comey case. This one comes to us from Dave, and it says, andy and ag, you make me smarter. And give us all some hope and courage for that. I am a loyal listener. I was, however, a bit confused by something Andy said at the FBI. He and Comey had the authority to release information to the public. So why did he refer to these releases as leaks? My belief was that a leak is a non authorized release. What is the distinction between a leak and an information release? Thanks.
- [48:19]
A
Nothing. Trump calls them leaks. Yeah, regular people call them authorized releases.
- [48:24]
B
Awesome question. I have tried in the years.
- [48:27]
A
It's kind of like how they say what happened at Mar A Lago was a raid, an illegal raid, when it was actually a lawfully executed search warrant.
- [48:35]
B
Yeah. So I've tried, and I. I still try to talk about this in terms of an authorized release of information, but people just transpose that to leak. Reporters do it, anchors do it, writers do it, and people involved in the thing do so. Some of that is intentional. In other places, it's just sloppy. But at the end of the day, Jim Comey had the authority to authorize a release of information to the public. I expect that if this case goes to trial, and that's a big. You will see some echoes of that defense in his case. Now, there's. There's nuance to it. Like, he could absolutely authorize the head of public affairs to release information to a reporter if he wished to do so? That's what I did in my case, that went so horribly awry. But nevertheless, could he also have authorized a special government employee, which is what Dan Richmond was to do it? I think probably because of the employee status there. Could he have officially authorized a civilian, a third party who had no relationship with the FBI, to do that? That's a little bit more tenuous. I Think. But nevertheless, at the end of the day, if you're Jim Comey and this case goes to trial, this is exactly the kind of question you want to be in the mind of the jury, because it's the sort of thing that can lead to reasonable doubt. So I think you'll hear more about this if the case goes to trial.
- [50:08]
A
Yeah. And when back in the day when I was covering the inspector general report on all of that, I. I think one of the things at the, the forefront, the main question, you know, on the tip of everyone's tongue, is, well, if you're authorized to release this information to the press, then there's no reason to lie. And I feel like it's real hard to prove that there's an intentional willful lie here. If you have no motive to lie, if you have no intent, you don't need the intent. Because why, why, if I did that, I would just tell you I did that because I'm allowed to do that, of course. And so that's why, when we were talking about the Horowitz saying, you lacked candor, like, that's what made it ridiculous to me. Like, ridiculous sounding to me like. Yeah, like Annie McCabe is authorized to tell the Wall Street Journal these things. So he has no reason to tell you that he didn't. If he has no reason to deceive you. Right. If it's an error or if it's a. That's a totally different thing. But it's not a chargeable thing. It's not a fireable offense. It's not a lack candor. And in Comey's case, it's certainly not a 1001 charge. So that if we get to trial, that's definitely going to come up. But again, I don't think we're getting past the Halligan's appointment thing.
- [51:30]
B
I think you could be right on that one.
- [51:34]
A
Yeah.
- [51:34]
B
We'll probably never hear the. The end of this particular side of the. The case, because I don't know that we're going to get there either. But, yeah, it looms out there. And. And then you add to it the confusion of how the question was asked that, you know, the inarticulate indefinite question that Cruz asked Comey in 2020, which led to his response, which they claimed to be a violation of 1001, because, remember, he's not being charged for leaking or authorized or unauthorized sharing of information. He's being charged with lying to the Senate. So, yeah, the whole thing is a mess. Good luck to that.
- [52:19]
A
It's really bad. And we'll see more motions. We'll talk about them when we. Cause I think they're due today or tomorrow, this second round of motions. And. And we'll be covering them on Sunday's show as well. So thank you so much for submitting your questions again. Link in the show notes, submit all your questions. We'll probably have more of these bonus episodes so that we can, you know, go through the docket of questions and clear as many out as we can because we really love the thoughtfulness that goes into them and I love answering them. So please continue to send them in and we'll see you on Sunday. Any final thoughts today before we get out of here for this very special episode of Unjustified?
- [53:01]
B
Yeah, no, just thanks to the audience for helping us write this episode. Yeah. Appreciate it. And your questions are what build these things? And we appreciate it and look forward to doing it again.
- [53:14]
A
Yeah, 100%. We'll see you on Sunday. I'm Alison Gill.
- [53:17]
B
And I'm Andy McCabe.
- [53:19]
A
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 justice. For more information, please visit mswmedia.com.