B (2:57)

staff during Last Man Standing during his

A (3:00)

first term at the White House. And, you know, I'm sure the Times will get into this. But the problem here is that Cassidy Hutchinson did not lie. She gave a secondhand reading of the situation in the Beast from another guy in the Secret Service, if you'll, if you'll remember, and she said what he told her, and that's not a lie. And why is the Civil Rights Division part of this? It's bizarre. Why didn't they give it to the weaponization work group?

B (3:28)

That would have been, it would have made more sense. I know that doesn't make sense at all that we even have such a thing, but still, here we are nonetheless. The inquiry into her was opened in recent weeks as the former attorney general, Pam Bondi, was trying to shore up her shaky standing with the president, according to two other people briefed on the effort. Well, that apparently did not go well. Ms. Bondi sought to move aggressively against Ms. Hutchinson and other investigative targets singled out by Mr. Trump in an effort to placate him. Of course, we know Mr. Trump fired Ms. Bondi last week in part because she failed to push his increasingly unreasonable demands for revenge against his adversaries through the courts. He named Todd Blanche, her former deputy, as the acting attorney general, although Mr. Blanche will probably face similar problems in satisfying the president's instruct to bring criminal charges against political targets with little to no evidence or legal justification.

A (4:27)

Yeah, it's interesting that Trump thinks it's because the wrong person's in charge that they can't get anything past a grand jury, a pet jury.

B (4:35)

You know, he literally, he cannot conceptualize the idea that you actually need facts and law to convict someone of a crime or even to accuse them of a crime in this country. He just, I don't think it computes. He just figures it's mine, it's all mine. I do what I want with it.

A (4:53)

Yeah, that's exactly what he thinks, the Times goes on to say. At a news conference Tuesday, Todd Blanche shrugged off those concerns, saying Trump has the right, even the duty as president, to call for investigations of anyone he believed deserved them. That position put Mr. Blanch at odds with everything ever in the history of the world, put it at odds with most Justice Department leaders over the past 50 years, who've maintained at least the semblance of independence from the White House.

B (5:21)

Yeah.

A (5:22)

Now, typically, an investigation into perjury in front of Congress would be handled by the U.S. attorney's office in Washington, which is run by Janine Pirro, a longtime ally of Mr. Trump and former Fox News host. In recent months, however, Ms. Pirro and her subordinates have suffered a series of setbacks in trying to. Again, very kind. In trying to push criminal cases against the president's foes, past judges and grand juries and the local federal courthouse. You'll remember, she said in her press conference, I don't care. I don't care about not guilty verdicts. I don't care about no true bills. I bring all the crimes. Thank you. That was her whole thing. But apparently Pam Bondi said, we're going to take it out of the hands of Jeanine Pirro, put it in the Civil Rights Division where Harmeet Dhillon sits, and she got fired anyway.

B (6:12)

It's so nuts. On the one hand, you can't. Far be it for me to claim something Pam Bondi did was reasonable, but there is a logic to like, geez, can we really give this one to D.C. because they haven't delivered on any of the other ones. So, okay, let's put it somewhere else. And that's where it goes off the rails.

A (6:30)

You had a better chance with the Comey case.

C (6:32)

Yeah.

A (6:32)

On the, on the part about lying to Congress here. But he had, you know, even, even though it was just dismissed because the judge found that the U.S. attorney was disqualified and not appointed properly. Perhaps the Trump administration, it was a technicality. We had a great case. And perhaps they think that they have something here. She doesn't even have to use the Bronston literal truth defense in this one. I don't see how this gets past a grand jury either. And it kind of reminds me of when they got zero votes on a grand jury indictment for, you know, for the six lawmakers who made their video about unlawful orders, which is, you know, coming in handy right now. But still, it's just, it's beyond the pale and it's just absolutely bizarre.

B (7:21)

Yes. Yeah. So the Times goes on to say, in an unorthodox move, they're very, very, very charitable, I think here. In an unorthodox move, leaders at the Justice Department did not offer Ms. A chance to open the investigation into Ms. Hutchinson, but instead gave the case directly to Harmeet Dhillon, who runs the Civil Rights division, according to three of the people familiar with the matter. Ms. Dillon, another Trump loyalist, has emerged as an effective advocate for the administration's agenda, particularly as the department has targeted higher education institutions that the White House perceives as being too woke. A spokesman for Ms. Pirro declined to comment on the inquiry, and a Justice Department spokesperson. Woman did not respond to a request for comment. So this problem you have of not being able to get success in any of These blatantly political cases, your solution is, now, let's put it in the hands of Harmeet Dhillon, who, by my memory, has zero. Zero experience prosecuting anyone for anything. And sending threatening letters to institutions of higher education does not make you a star, successful prosecutor.

A (8:34)

Well, honestly, having no experience probably makes you better suited to bring charges that don't make any sense, because Jeanine Pirro probably went, yeah, you know, I really.

C (8:42)

I'll.

A (8:43)

I'll bring any crime, but this one's really a loser. You know? Like, she. Yeah, she's probably like, oh, thank God I don't have to try to bring this pile of crap into a grand jury.

B (8:53)

Meanwhile, Harvey Dillon's like, you know, I. I guess kind of, if you're absolutely unfamiliar with the. With the physics and the reality of a brick wall, you don't mind running straight into one now. Right? Like, that's what's gonna happen here.

A (9:09)

But that's. Yeah, that's why I'm saying her inexperience comes in handy for Trump at this point. The investigation into Cassidy Hutchinson began some weeks ago after the Justice Department received a referral from a Trump ally in congress who accused Ms. Hutchinson of lying to the special House committee that investigated January 6th. During explosive televised testimony in June of 2022, Cassie Hutchinson, now 29, said that Mr. Trump had encouraged the crowd and gathered to hear him speak near the White House on January 6th to March to the Capitol, even though he knew it was armed and could turn violent. She also claimed that she had heard that Mr. Trump lunged at one of his Secret Service agents in the presidential limo when he was told he could not join his supporters on Capitol Hill. Other testimony later contradicted that assertion. But again, she was telling Congress what she was told by that agent. She wasn't in the beast. And so that's, again, not a lie.

B (10:10)

Good luck with this thing. I mean, 1001 cases are tough. 1001 cases that are predicated on a misstatement to Congress are what are the toughest among them? Because you have to have, as we've discussed this many times before, like, laser clear contradiction in what the person said has to be absolutely clear, no equivocation, and it has to be absolutely, provably false on its face if there's any variance. Like, well, I was just saying what he told me.

C (10:42)

I don't.

B (10:42)

I can't tell you if it happened or not. I just know that this dude told me it happened. Maybe he was wrong.

A (10:47)

Even when Jeff Sessions was like, I did not have communications with The Russians. And he did, having had personal meetings with the Russian ambassador, he still didn't bring that 1001 charge because technically, you know, that they. They found that that's not enough for a 1001 case to be successful. So here we are.

B (11:08)

Yep. So, among the US attorneys who have been pushed to prosecute Mr. Trump's political opponents, Ms. Pirro has arguably had the most challenging time following through on the president's demands. Some of her subordinates have, in fact, worried that it could be difficult to force any more cases against Mr. Trump's adversaries through the courts in Washington. You think? In February, prosecutors serving under Ms. Pirro failed to secure an indictment against six Democratic lawmakers who made a video last year reminding military and intelligence personnel about their obligations to disobey illegal orders. Around the same time, they stalled in their efforts to build a case against former President Joseph Biden Jr. And aides over allegations that they had broken the law by signing presidential documents with an auto penalty.

A (11:57)

And last month, James Boasberg, chief judge there in the the D.C. district, threw a major roadblock into an investigation of Jerome Powell, the Fed Reserve chair, over claims that there were overruns in the central bank's renovations of its headquarters. Boasberg determined the prosecutors had issued subpoenas to the Fed for no other reason than to harass Jerome Powell, who had long run afoul of Mr. Trump for not swiftly dropping interest rates. A wish he may get here in the coming weeks because of the Strait of Hormuz being close. But that was more or less at the president's request. Yeah, Boasberg threw those subpoenas out. So, yeah, this is just. Again, I can't. I mean, I've been covering the Justice Department for a while, but you've been working in and around the Justice Department, Andy, for decades. And for the Civil Rights Division to take this up just because, I don't know, you think Jeanine Pirro is failing? Like, if you can't get something through the courts multiple times over and over again, the case is bad.

B (13:04)

Any normal DOJ under a Republican or Democratic administration doesn't bring cases that are questionable. If you think it's possible that the grand jury might not indict, you don't bring that case. No, I mean, that's one of the great filters of our criminal justice system. And that's not like, oh, that prosecutors are trying to game the system, are there? No, this is like a. This is the legitimate exercise of prosecutorial discretion. If the case is so weak, the evidence is so shaky or questionable that a grand jury, you might not get 13 members of a grand jury to vote for it, then it's, it's not one that deserves the time and effort and resources of the federal government. I mean, that's, that's a decision that prosecutors make all the time. You just don't hear about them because they're done responsibly in quiet. And those cases don't come in front of grand juries. They don't have a choice here because this is not about justice. It's about revenge. It's about Trump seeking revenge against people he does not like. And so that's upended the entire system. You have these pro, these politically appointed people who have to shove any piece of, you know what, down, down the, down the pipeline simply because it's being demanded. Todd Blanche is not going to have any more shelter from this pressure than, than Pam Bondi did. He's going to be confronted with the same problem. And that is a paucity of facts to support any of these allegations.

A (14:30)

Yeah, but he's also super good at lying about stuff. And you know that Times article mentioned briefly that press conference he gave where he took another wrecking ball to the independence of the Department of Justice. And I really wish a reporter would have asked him if, oh, is it, was it cool then for Bill Clinton to meet with Loretta lynch on the tarmac at Phoenix sky harbor? Then if there's no Wall of Independence, that thing that like every Republican ever freaked out about. But he, he, he had a lot more to say, Andy, in that press conference. And I want to talk more about that and that we do have some news coverage on it, but we're going to have to talk about that after this next break. So everybody stick around. We'll be right back. Thanks to HomeServe for sponsoring this episode. Homeownership can feel great right up to the moment something breaks. One minute, everything's normal, the next you're staring at water where water absolutely should not be. It's brutal how home repairs never seem to show up at convenient times, and they definitely do not wait until your budget feels ready for them. That's one reason HomeServe works so well. A lot of everyday problems like plumbing issues, H Vac breakdowns, electrical trouble are not usually the kind of thing that regular homeowners insurance helps with. And you're often left trying to find a contractor fast, hoping they can come quickly and bracing for what it's going to cost. But homeserve gives you another option for as little as $4.99 a month. You can choose a plan that fits your needs and your budget and if something covered goes Wrong, you call their 24.7hotline and start the repair process. They've been helping homeowners for over 20 years and have a trusted national network of 2,600 local contractors with 4.5 million customers, a 4.8 out of 5 post repair rating and and an A plus Better Business Bureau rating. They have a strong track record. I've definitely had those awful home repair moments when something small suddenly becomes expensive. A burst interior pipe or a water heater issue can get costly fast, and that kind of surprise is exactly what I would rather plan for. It's the kind of backup that can make homeownership feel a lot less stressful. I use HomeServe and you should too. So help protect your home systems and your wallet with HomeServe against covered repairs. Plans start at just $4.99 a month. Go to HomeServe.com find the plan that's right for you. That's HomeServe.com not available everywhere. Most plans range between 499 to 11.99amonth for your first year terms apply. Uncovered Repairs. All right everybody, welcome back. Like I said, I want to talk more about that Todd Blanche Presser this story also comes from the Times. When Pam Bondi was fired as attorney general last week, people familiar with the decision described how President Trump was dissatisfied with her handling of the Epstein files and her failure to bring more criminal cases against his political enemies. But on Tuesday, the man named to temporarily succeed her as the nation's top law enforcement official said only the president knew his reasons.

B (17:24)

In his first news conference since being elevated to acting attorney general, Todd Blanche, who represented the president in a series of criminal cases, said, quote, nobody has any idea what led to Ms. Bondi's dismissal other than the president. Boy, that's for sure. Quote, I grow tired of people in the media saying why President Trump did or didn't do because President Trump is the only one that knows that, Mr. Blanche said, not the greatest guy behind the mic. I'm just saying, like, half of this statement is bizarre, describing Ms. Bondi as, quote, a trusted friend of President Trump's. Mr. Blanch elaborated, sort of. The news conference was primarily about the rollout of a new division in the Justice Department devoted to pro to pursuing fraud.

A (18:11)

Yeah, nobody knows why. Some people should know. Like anyway. And what's interesting is that means that Todd Blanche doesn't even know if what he's Saying is true.

B (18:26)

Yeah.

A (18:27)

Todd Blanche doesn't know why Pam Bondi was fired and therefore doesn't know how to also not get fired himself. That doesn't make any sense.

B (18:34)

There are so many ways that he could have covered this question better. Like, well, that's up to the President. You know, he doesn't. He's, that's his right. He's entitled to do it for any reason you need to ask him. Right. Done. Move on. Instead, he's like, I don't have any idea. She seemed really nice.

A (18:52)

Now, the truth of the matter is nobody knows anything at the Department of Justice.

B (18:57)

Dude, come on.

A (18:59)

Yeah. So, quote, nobody has any idea why the Attorney General is no longer the Attorney general and I'm acting Attorney General, except for President Trump. That's what he said, saying that he loves the job he has, while acknowledging the uncertainty around who would next oversee the Justice Department. A former defense lawyer for the president who's been serving as the number two official at the Justice Department, Blanche said that he did not know whether he or someone else would be nominated to serve as the Attorney General. I did not ask for this job, he said, adding that he would travel with Ms. Bondi on Wednesday on a previously scheduled work trip.

B (19:33)

Sure, that'll be great. The President has privately and publicly complained that the Justice Department has not been aggressive enough in pursuing criminal cases against those he dislikes, including the former FBI Director, James Comey and the Attorney General of New York, letitia James. But Mr. Blanch denied anything untoward about the president's approach to the department. This is really fascinating. He said, quote, we have thousands of ongoing investigations and prosecutions going on in this country right now. And it is true that some of them involve men, women, and entities that the president in the past has had issues with and that believe should be investigated. I think that's the new acting Attorney general left out a couple of words there. That is his right and indeed it is his duty to do that. Mr. Blanche said.

A (20:26)

No, it isn't, actually.

B (20:27)

Not. Not at all, Mr. Blanche.

A (20:29)

But nevertheless, now he added, quote, people say the president wants to go after his political enemies. No, the president has said time and time again that he wants justice. Yeah. For his political enemies. In his remarks, Mr. Blanche suggested that the department's new fraud division would seemingly take precedence over the long standing work of a separate arm of the department's criminal division, also dedicated to pursuing fraud. We will spare no resources, he said, to bring strong cases and do justice. It's probably hard, though, to keep doing that in a Fraud Division when the President keeps pardoning people who've been convicted of fraud.

B (21:06)

Yeah. And also losing attorneys. Like, maybe he should have said, instead of, we will spare no resource. He should have said, we may have no resource to prosecute fraud eventually because all these lawyers keep quitting. Okay. Justice Department lawyers were notified on Tuesday that significant parts of the Criminal Division's fraud prosecutors, including those handling financial markets, health care, and consumer fraud cases, would move to the new entity. Mr. Blanche also said officials would launch a national fraud detection center, though he twice referred to it as a detention center. Freudian slip, maybe. I hope not, but maybe.

A (21:45)

Yeah, perhaps. So you dismantled the fraud part of the Criminal Division, and then you were like, oh, and then now you're going to put together a. You're going to rebuild it? Basically,

B (21:59)

yeah. This is just a deck chairs on the Titanic issue.

C (22:03)

Right.

B (22:03)

And in its most basic sense, although I'm sure there's something worse going on here. I mean, the, The. The Department of Justice has had a criminal fraud section for forever. That's where I got my start in government. I volunteered as an unpaid intern after my second year in law school, came to D.C. and worked in the criminal fraud section. And, you know, years later, my good friend Andrew Weissman, I think in his last government job, before he joined the Mueller special counsel team, he was the section chief of the Criminal Fraud section. So in doj, like, a unit is a group of attorneys that are focused on one specific thing, and it's usually anywhere from like half a dozen to a dozen people. A section is a grouping of several different units that focus on different specialties. And then a division is a grouping of all many different sections. So, like, the Criminal Division at DOJ has a bunch of sections.

A (23:04)

Always.

B (23:04)

One of the biggest, most influential, and most hardworking of those sections has been the Criminal Fraud section. It's like a revered place to work. And so they're, they're, they're like, promoting this. We've created a new fraud thing. Like, you always had one. This is not new. This is like bread and butter work that the nation's federal prosecutors should be doing.

A (23:32)

Now. Is this something that can be put back if we get a reasonable attorney General?

B (23:39)

Totally, yeah. It's just moving people around, calling them one thing one week and a different thing the next week. I think what we're seeing, what we really need to do is like, refocus. Like, let's talk about the Civil Rights division again. Right. The Civil Rights Division doesn't do any civil rights stuff anymore. They just attack like, you know, institutions of learning. For, for giving too many benefits to people who should be protected by the civil rights division.

A (24:06)

No, right. They've turned the civil rights division into something that protects people from civil rights. Like.

B (24:12)

Exactly. Yeah.

A (24:14)

The, the, the. To say it's like, you know, white Christian men are the ones who need the protection of the civil rights division.

B (24:21)

Right. It's become like the anti civil rights division.

A (24:24)

Yeah. The reverse racism division is what it is, which is why I've been calling it the civil Rights division.

B (24:32)

But that works, too.

A (24:34)

Nonetheless. That's what Harmeet Dhillon is in charge of. For now. For now. Because Bloomberg Law is reporting that Trump is discussing elevating Harmeet Dillon to the Justice Department's number three post of associate attorney general, which would force out an official with close White House ties for a more vocal MAGA advocate.

B (24:55)

Dylan, a former Trump personal lawyer who spent the past year overhauling DOJ's civil rights division, is in line for an imminent nomination to replace Stanley Woodward, said two people familiar with the situation. It's unclear if Woodward, a lawyer who's represented many people in Donald Trump's orbit, would be demoted or resign altogether under this plan, said two people familiar with the situation. The moves aren't official and are subject to change, but if the leadership shuffle comes to fruition, it would show an escalated push by the president to oust even some of his most loyal DOJ allies.

A (25:31)

Right. And in a Wall Street Journal article this week, they said that Donald Trump has been promising anyone within 200ft of the Oval Office a pardon on his way out of office, something totally innocent people do all the time. So Stanley Woodward, Pam Bondi, these folks are all kind of waiting for their pardon.

B (25:48)

Maybe that's part of the exit interview. When you get fired from the White House now, it's like, okay, here's your. You need to give us your keys back and we need your ID badge. All right, here's your pardon.

A (25:57)

Fill in the date when I

B (26:01)

statute of your choice. Whatever.

A (26:03)

Now. Woodward hasn't resigned as of last Sunday, contrary to an earlier report from the conservative Daily Wire, according to several people CBS News previously reported on talks to promote Dylan. The shakeup would add more tumult in the Department of Justice's highest ranks in the wake of Trump firing Pam Bondi April 2 as the President has grown frustrated over the pace of work on his law enforcement priorities. That's one way to put it now, by moving up. Dylan, who's been trying to force dozens of states to hand over their voter rolls The White House would be expanding her authority over election integrity, which falls under the Associate Attorney General's purview as the midterms approach.

B (26:39)

Woodward had only assumed the senior role last October, at which point Dylan started reporting directly to him in her capacity as civil rights head. The Associate AG's office also oversees the civil, antitrust and environmental divisions, among other programs. Spokespeople for the DOJ and the White House didn't immediately respond to requests for comment.

A (27:01)

Stanley Woodward, who previously represented a ton of January six defendants and Trump aides, was more recently embroiled in the administration's high profile reversal over defending executive orders targeting major law firms. He was one of the two DOJ lawyers who told the court that the administration was abandoning its appeal before backtracking the following day. This is why he's probably on his way out.

B (27:25)

Yeah.

A (27:27)

Anytime somebody at the DOJ does something in court and then the next day comes back and says, never mind, it's because they got a phone call.

C (27:35)

Yes.

A (27:35)

The administration says the initial decision to drop its defense of the law firm orders that a lower court had struck down was an inadvertent filing.

B (27:43)

There's an inadvertent acknowledgment of the baselessness of his motion.

A (27:49)

Somebody accidentally did the right thing and. Sorry, he's on his way out.

B (27:53)

I was. I used to be a real lawyer and I was working under those rules, but now I forgot what I. What I do now is very different. Dylan has aggressively pushed the Civil Rights division to defeat diversity, equity and inclusion policies and has seen the majority party of the career workforce depart under her watch. Yeah. Although Woodward has important supporters in the administration, including a White House where he briefly served at the start of Trump's second term. Dylan has a crucial ally in the White House in the form of White House Counsel David Warrington, said people familiar with the dynamic. He used to work for Dylan in the private sector as a partner at the Dylan Law Group. As the President's top legal advisor, Warrington can now wield significant influence over DOJ personnel decisions.

A (28:41)

Yeah, and I gotta say, I mean, I, I would imagine that if I were harmeet Dylan, which would never happen, but if I were, it would be real hard to have Stanley Woodward as my boss. I think anyone can say that with their whole chest because he's a disorganized fool anyway. That's interesting. So he could be out probably because he said he wasn't going to appeal that law firm stuff in those cases and then had to come back. And so we'll keep an eye on that. He's not out yet. They haven't made this change yet. But then I'm wondering who's going to be in charge of the civil rights division. Right. When you're rearranging all these Titanic deck chairs.

B (29:20)

Yeah. Although honestly that decision means less and less every day.

C (29:24)

Right.

B (29:24)

Because they're not doing civil rights anyway. And the, the M.O. the kind of momentum behind the anti university thing seems to be flagging a bit. But we'll see.

A (29:35)

Yeah, we'll see. All right. We got a couple of wins for the Free Press that I want to cover. And I know, Andy, you have a lot of thoughts about this, too. We'll do that right after this break. And then we're going to get to a very special segment, a very special episode of our Listener Questions. Yes. Because we have a very special guest coming in to answer a question somebody posed a couple of weeks ago, and we weren't quite sure. So we wanted to do some research and we're going to have an expert come in and answer that question. But we got to take this break, so stick around. We'll be right back.

B (30:14)

Welcome back. Okay. We have a couple more stories about the Free Press before we get to listener questions. And today we have a special guest, as AG Just mentioned, coming on the show to answer one of your questions from a few weeks ago. But first, the Washington Post federal prosecutors on Thursday urged a judge to overturn a ruling barring the Justice Department from directly searching a Washington Post reporter's electronic devices, which were seized as part of an investigation into a government contractor who's been accused of leaking classified materials.

A (30:48)

Yes. Now, the hearing in front of U.S. district Judge Anthony Trenga in the Eastern District of Virginia marked the government's latest attempt to convince the court that it should have the authority to conduct a tailored search of Washington Post reporter Hannah Natenson's phone and her computers and other devices to look for information relevant to its investigation of the contractor who they say leaked the classified information. Magistrate Judge William Porter ruled in February that the government could not search the devices, which all sides have agreed contained years of N's materials that she gathered covering the federal government. Instead, he ruled the court would conduct a search on behalf of the government, citing the possibility that the Justice Department could wrongly look at more information than the warrant allows, either by neglect, by malice or by honest difference of opinion. I think the malice part is probably the one that you should be concerned about. So basically, they've got her devices. And the judge, the magistrate judge said they basically said doj, I don't trust you to go through this properly, so I'll go through it to try to find your evidence. That was the order.

B (31:54)

Yeah. Which is. I gotta say, this is crazy. I've never seen anything like this. I mean, if a judge had that little faith in DOJ being able to execute this warrant and exploit the material they get from it lawfully and within the confines of the Constitution and particularly First Amendment, why'd they sign the warrant? But anyway, the Justice Department appealed that ruling, kicking the case to Tranga's courtroom. The arguments presented in court Thursday were similar to those made in previous court filings and hearings. Federal prosecutors say applying for a warrant and executing a search are core functions of the executive branch. And reporters should not be subject to what it sees as preferential treatment. The Post and Natanzen have said the reporter used the devices to connect with more than 1200 confidential government sources. And searching them could chill future sources who may want to speak with the press.

A (32:52)

Right. Attorneys for the Post contend the warrant represented a massive overreach by the government, saying a search of a journalist's home to seize reporting materials is unprecedented. Quote, the government should not receive permission to rummage through reporters professional universe. That's Simon Latkovich. I, I hope I'm saying that properly. And he's attorney representing the Washington Post. The government asserted that it was not seeking to broadly dig through nson's devices. Rather, it said we would conduct a narrow examination with a filter team. Oh, right, sure, sure. Like those great filter teams you've put together before. Rather, it wouldn't, you know, like we aren't going to be sifting out information that is protected or not compliant with parameters of the warrant.

B (33:40)

Isn't this exactly the approach that they posed in the, in the Jack Smith case? Like give us a special master who's not connected and can do it themselves. Okay.

A (33:50)

Yeah. Now, Porter has previously denied the government's request to conduct a search in that manner. That's the judge.

B (33:56)

Right. Tranga on Thursday seemed skeptical that Porter's ruling would inhibit the government's ability to build its case against the contractor. The judge said he would, quote, get a decision shortly. He has so far not put out, or, I'm sorry, not put a pause on Porter's ongoing efforts to hash out a detailed plan for the court to conduct the search. So this is a little bit confusing, but. So Porter's the one that said no government. You can't. You're not going to look at this stuff. I'm going to supervise how this information gets reviewed. The government appealed that. That's what got them in front of Tranga. Tranga basically ruled on behalf of Porter here.

A (34:37)

Right? He hasn't ruled yet.

B (34:39)

He hasn't ruled on it yet.

A (34:40)

Okay. He seems very skeptical of the government's argument because the government's saying that Porter's way is gonna make it real hard for us to build a case. It's like, well, then your case sucks.

B (34:50)

Right. And Tranga's comments are basically like, this doesn't seem unreasonable to me.

A (34:54)

Yeah.

B (34:55)

So after Tranga's 45 minute hearing, then Porter held a hearing of his own to continue building the plan for the court to review the seized material. The government is in possession of Natanzen's devices, though Porter has barred investigators from accessing those devices since February.

A (35:12)

Yeah, I bet they already have accessed them. But anyway, Porter said Thursday the government could resume processing the materials, essentially getting readable copies of the information on nson's computer, Garmin watch, and a recording device. Prosecutors said they've been unable to access Natenson's phone because they do not have the pin to unlock it. That is something that made the investigations into Donald Trump very difficult. Because if your face opens up your phone, that's not a violation of your Fourth Amendment. But they can't force you to give them your pin.

B (35:48)

It's actually a Fifth Amendment violation.

A (35:50)

Fifth Amendment. Excuse me, Fifth Amendment.

B (35:52)

So.

A (35:53)

Right.

B (35:53)

You can't. So I've been. I just taught this in my class last week. So if you ask someone for their pin, which is clearly what they did here, you cannot compel them to give you the pin because that would be compulsion. That would be a violation of your Fifth Amendment right. But states are divided, and even the federal judiciary is a bit divided on whether or not the government can just shove the. If it's. If you have the face unlock feature, if they can just shove it in front of your face because you don't really have an expectation of privacy, some courts say, in the appearance of your face.

A (36:29)

Yeah. And that's not a piece of knowledge that you have.

B (36:33)

Yeah. It's not testimonial.

A (36:35)

Right.

B (36:36)

Your face is not like giving testimony, essentially. So. But. But it's weird. It's a very unsettled area. In any case, the magistrate judge said that the processing could occur at FBI facilities by a team of workers who are walled off from other aspects of the investigation. The actual review of the materials would then fall to Porter. Prosecutors asked Porter to halt the processing and searching of the devices until Tranga rules on the matter. Porter said he would not agree to that and wants to move fast so that prosecutors in Maryland, where the contractor faces charges, could actually get the information they need.

A (37:12)

Interesting. Now, if Trenga overturns Porter's ruling, then the Porter's effort to carry out the search would probably end, quote. I'm going to keep going until someone tells me to stop. That's what Porter said. Basically getting the information from the government for him to review.

B (37:27)

Right.

A (37:27)

Okay. Now in a related story. This is from the Associated Press. A federal judge on Thursday ruled that the Defense Department is violating his earlier order, a court order. The DoD is violating this court order to restore access to the Pentagon for reporters. A setback in the administration's efforts to impede the work of journalists. This. You remember they had the big walkout. Yes. You know, months ago. And then they made a rule and that rule was not constitutional. So they made an interim rule. They'll explain it in this article. But it's, it's pretty bizarre that the trying to push out all of these reporters from the Pentagon.

B (38:09)

That's right. So. U.S. district Judge Paul Friedman sided with the New York Times for the second time in a month. He had earlier said that the Pentagon's new credential policy violated journalists constitutional rights to free speech and due process. On Thursday, he said Defense Secretary Pete Hegseth's team had tried to evade his March 20 ruling by putting in new rules that expel all reporters from the building unless guided by escorts. Quote, the department simply cannot reinstate an unlawful policy under the guise of taking, quote, new action and expect the court to look the other way. Friedman wrote. Friedman had ordered the Pentagon officials to reinstate the press credentials of seven Times reporters and stressed that his decision applies to, quote, all regulated parties. The Pentagon building serves as the headquarters for US Military operations.

A (39:04)

Huh. In a series of briefings on the Iran war, Hegseth has frequently ignored or insulted legacy media reporters let in to cover the events while concentrating on questions from friendly conservative media. Times attorneys accused the Pentagon of violating the judge's March 20 order in letter and spirit with its new revised policy. The newspaper said that Pentagon. The Pentagon was also trying to impose unprecedented rules dictating when reporters can offer anonymity to sources.

B (39:34)

Friedman said that the access the Pentagon made available to permit holders, quote, is not even close to as meaningful as the broad access they previously had. Government lawyers said the Pentagon's revised policy fully complies with the judge's directives. Pentagon spokesperson. Spokesperson Sean Parnell has said the administration would appeal Friedman's March 20 decision.

A (39:59)

I don't know. What do you think?

B (40:01)

You know, I think it's obvious what's going on there. This was censorship from day one. I think the media did the right thing by walking out then. The Times is really, like, the only one that stood up and taken them to court over it, which is probably frustrating for them. But they did the right thing, got the March 20th order. And now this is the Pentagon is instead of. Instead of obeying the order, the obvious kind of directive there, they're just jousting. They're like, oh, well, now I'm gonna step over here. And I'm different now, but you're really not. And once again, Pete Hegseth letting the quiet part, you know, saying the quiet part out loud when he attacks the press from these somewhat bizarre press conferences he's having over the war in Iran. He. He accuses them of being unpatriotic and not helping out. It's like, no. Yeah.

A (40:50)

Like, hey, why are we there? And he'll be like, why do you hate the troops? Next?

B (40:53)

Yeah, yeah. So. But those statements are not going to help him as this litigation continues, the appeal of the March 20th order and things like that. I expect the Times will bring those things up because that's what the judges are reacting to here. This is just straight up censorship. You're trying to eliminate voices that you disagree with, which.

A (41:13)

Yeah, and we're not trying to tell you that you aren't allowed to be a jerk in the press room, but you aren't allowed to hold anybody out. Like, you know, yeah, go ahead and be your cordial self there, Mr. Hegseth, but you can't just block the press out, especially in violation of a spirit and a letter of a court order that says you can't do it.

B (41:39)

It's the most 101 example of the First Amendment. You cannot keep press out because you don't like the articles that they're writing. That is like a straight on the nose content restriction, which is exactly what the. What the First Amendment prohibits the government from doing.

A (41:58)

Yeah, it's like right up there with disfavored speech and what Brandon Carr at the FCC is doing. I don't like what Jimmy Kimmel says. So we're going to yank your license if you. We're not going to let you do your buyout with Paramount and Skydance, whatever it is. That is coercion. It's Russia to stifle. It's Russia.

B (42:15)

It's basically Russia. It's Turkey is North Korea. Yeah, exactly. I mean, come on.

A (42:22)

Yeah, it's. Anyway, we're going to keep an eye on these cases as they roll through. All right, we're going to take another quick break and then we'll get back with listener questions. And like I said, we have a special guest that's going to join us to answer one. Stick around. We'll be right back. All right, everybody, welcome back. For our last listener question segment today, we're bringing in a very special guest. A listener wrote in a few weeks back and asked us, hey, whatever happened to the boxes of stuff that Donald took with him to Mar A Lago and then lied about and picked through and moved around and, you know, because if my memory serves, there was still about 20 or 30 boxes unaccounted for. And now, you know, Donald Trump's back in charge of the whole enchilada. So where are those documents? And joining us today is Kel McClanahan from National Security Counselors with an answer. Kel, welcome to Unjustified.

C (43:21)

Thank you for having me. And I do have an answer.

B (43:24)

Excellent. That's, that's the best kind of answer, question, answer we could find.

A (43:29)

So after, after we aired that episode, you poked me on signal and you were like, hey, so remember when you were wondering what happened to those boxes and then bam, you hit me with this, this brief that you had filed in, in part of a larger suit, I'm guessing a Freedom of Information act request case. To find out and get those things back, talk a little bit about that case. Who are the parties and what it's about?

C (43:57)

Well, we have a client by the name of Legal Eagle. He's probably familiar to some of your listeners, the legal YouTuber. And he filed a request with me with the National Archives, who controls the presidential libraries for all of the records that were found at Mar A Lago, because now that he is past the five year limitations period that these things become subject to foia, if you recall, he even said, I'm reclaiming them because they'll go into the beautiful, wonderful, amazing, you know, beautiful, sexy presidential library, which it is now supposed to happen. And so I said, well, great, let's get, let's see those records. And they are not providing them. Let's say they, they are, they're delaying. They're pulling all sorts of really stupid moves. But bottom line is they're fighting me all the way, which is watch for us.

A (45:00)

Are you the reason that they wrote that Office of Legal Counsel memo calling the Presidential Records act unconstitutional? Was this over you trying to get these boxes back or something more general.

C (45:12)

I'm not the reason. I'm probably a reason. You know, this is one of those things where Trump has been trying to get control over his records since, you know, he carted them away to Mar A Lazo. And if you recall, last year in February, he went and put out his little truth barf, saying, the Department of Justice has just returned the boxes that deranged Jack Smith made such a big deal about. They're being brought down to Florida, will someday be part of the Trump presidential library. That's what I was referencing earlier. And then the narrator came out and confirmed that, saying, sorry, White House. The White House communications director said that FBI was giving the President his property back. And so he's already gotten all those records and clawed them back and made NARA send them back to Mar A Lago. And so we're saying, yeah, but I mean, wherever they are, they're still presidential records. You even said, there are presidential records because you're putting them in the presidential library, so let's see them. And he said, no, no, we're going to say the presidential records are unlegal. Now, you can't do that because they're mine, mine, mine.

A (46:28)

Is that their only defense or their only assertion as to why you can't have these under the Freedom of Information Act?

C (46:38)

Sadly, no. If that were the only defense, then we would have a pretty open and shut case. I think there are many surprisingly stupider defenses. For instance, the argument that I expect them to put in a motion to dismiss shortly is that while under foia, you can file a lawsuit after they haven't responded to your request within 20 business days. The PRA, the President's Records act, gives the former president the 30 to 60 days to decide what he wants to tell NARA to do with him. And so they're saying, well, that actually supplants foia, and therefore you can't file a FOIA lawsuit for presidential records until 60 days after the President has been asked his thoughts about it. So they're going to make a really frivolous motion on that.

A (47:32)

But I thought the Presidential Records act was unconstitutional.

B (47:35)

Oh, that's a good.

C (47:37)

That is an excellent point. It's surprising that they have not.

B (47:39)

Isn't that acknowledging that the law, if they argue something under that law, are they implicitly acknowledging that it's lawful? I mean, oh, my God. What do you think the chances are that you could end up in the Supreme Court someday arguing with them? What started out as a FOIA lawsuit could end up. You standing there in the. Well, in front of the nine justices.

C (48:01)

I mean, this is American oversight, I think, went out and filed their lawsuit over the OLC memo, and they're going to be challenging the memo on its face while, you know, I'm already in the middle of litigation over how it actually plays out. And so we're going to be basically racing to the Supreme Court depending on how the courts play this.

B (48:28)

It does seem like the kind of situation, and this happens periodically where the court could combine, like, several cases under. Consolidate several cases, because it's the same issue.

A (48:38)

But.

B (48:39)

But, yeah, really fascinating. I mean, and it just seems to be such a part of their standard process. It seems like a mistake on its face, but it happens so often that you begin to wonder if it's intentional that they back themselves into these positions that make the whole litigation strategy much worse for them. Bigger, broader, more impactful when they'd like to just bat these things away.

C (49:05)

There used to be a saying among FOIA litigators, because we have nothing better to do than talk about FOIA litigation. That was along the lines of, in a FOIA case, every single case and every single request is completely legally distinguishable from every other case. If the previous case went against the government, but if it was in favor of the government, then it means that the agency can do whatever they want. Yeah, yeah. And like, they're. They're actually going to argue, they refuse to concede to me right now that the records that are at Mar A Lago are in narrow custody. They won't come out and say that. So we're gonna be fighting over that. And then fighting over whether presidential records, then fighting over the deadlines. It's just. Just nesting, doll of stupidity.

B (49:51)

Yeah. So important, though, to have these fights now because this is. We're what, two and a half years out from the next time God knows what goes into Mark Meadows fireplace or gets stuffed into the back of some private contractor van and sent down to Florida.

C (50:11)

No, not even according to the memo. If you read the OFC memo, like, straight and say, okay, I'm going to entertain the idea that this is legitimate, it means that they can start shredding papers today. It means that the records in Mar A Lago can be burned today because OLC and the executive branch take the position that OLC memos are binding on the executive branch. And they even say at the end of the memo that therefore, the President does not need to follow the PRA anymore. And so that's why we're filing all these Lawsuits now. And litigating this because of every day that we go without an order from a court saying, no, you cannot follow this OLC memo. Records can be destroyed. In fact, I've heard from some insiders that there are briefings and webinars being given at OMB for now that the PRA doesn't apply. Let's tell you how you can do your work. Wow.

B (51:17)

And presumably that's not just for White House generated material, because it's. But you know, at certain levels, in every government or administrative entity or executive branch agency, you have to preserve your work. Literally day to day. Your telephone notes, your briefings, everything you read has to be set aside and ultimately sent to nara. But I guess.

C (51:41)

Well, that's the Federal Records Act. Yeah, that is. So the good news is now I put a little asterisk next to the. That this memo does not say that the FRA is unlegal. But that's the next step because if you read the analysis in the memo, it boils down to Congress cannot pass a law that affects the President.

B (52:05)

Right.

C (52:06)

And they sort of carve out an exception for agencies because Congress can establish agencies. So we'll give that a tacit lip service now that Congress can do the fra. But even the way they say that sort of leaves the door open for. Unless we decide that the unitary executive means that the President can tell an agency to destroy all its records and then Congress can't tell that President what to do.

B (52:31)

Yeah. I mean, that's what they did with getting rid of federal agencies. Right. Yeah. Congress has the ability to open one up, but we can just close it down and take the money somewhere else.

C (52:39)

And if you think I'm being exaggerating, the reason that I'm having this fight next week in the Legal Eagle case is that I'm having to file a motion to compel NARA to preserve the records in light of the OLC memo. They are refusing to preserve any records that they think are not in nara's custody. And so everything in Mar A Lago, they won't admit. They won't admit it's in their custody. And they won't admit. They won't promise to preserve anything that's not in their custody. So, you know, they could be having a big, you know, burn bag party down at Mar A Lago right now until we get a court order.

A (53:27)

You want them to preserve records, don't destroy records until we litigate the legality of this Office of Legal Counsel memo.

C (53:35)

Exactly. Yeah.

A (53:36)

Yeah. Is that part of American oversight's case as well.

C (53:40)

Oh, I don't know. They're challenging the policy. But to bring it back around to the people on this call, you know, the preservation order against the White House is exactly what we're litigating in the Moshi wrote MSW Media case. Right, right. Trying to make them preserve signal messages and stuff from Doge and from Elon Musk.

A (54:02)

Right. But, yeah, full disclosure, everybody. Cal McClanahan is my lawyer in multiple Freedom of Information act requests for MSW Media, which this show is a part of that network. But I want to just shift gears really quick because I was thinking I maybe had a new. An idea for a new Freedom of Information act request based on Melania Trump's admission that she is not a victim of Jeffrey Epstein or Ghislaine Maxwell, as Empty Wheel Marcy Wheeler pointed out. Does that mean that we can now go after all of the previously redacted and withheld Melania material in the Epstein files because she has said she is not a victim that needs protection?

C (54:47)

So, yes and no and maybe and it depends.

A (54:51)

You're such a worrier.

C (54:52)

I cover all of our bases here. Yes, we can go after them. It might not make a difference because what you're dealing with here is the intersection of FOIA and the Epstein files. Transparency Act, I think it's called, because it has not been litigated. Whether or not an agency can withhold something from a FOIA request that it has been told to release under the efta. And so that's going to have to be litigated eventually, whether it's about Melania or anything else. Got it there. What's coming into play there is privacy, what's called B6 and B7E, the two privacy exemptions in FOIA. And they're going to argue if they want to withhold Melania Trump's information, that it would be an invasion of her privacy for these things to come out, which by itself is a legitimate exercise. Then you say, well, it's counterbalanced by Congress said that these things have to be released. And then they're going to say, yes, but Melania Trump wasn't speaking under oath. She might be a victim. Who knows? Until it's under oath, the court has to presume regularity for the agency. And it's all just one big. Again, the nesting doll metaphor just keeps

A (56:07)

coming up, which is why, if Hillary Clinton had to testify in the Epstein case, why hasn't Melania Trump been called in to testify as well?

B (56:15)

Get her in there and I want her to Testify in that same little place in Chappaqua. I don't know. I just thought it was so weird they did that up there. Like, yeah, Senator Chappaqua for testimony.

A (56:25)

All right, so the answer to where are the boxes of stuff Trump says he has? Says he has them back at Mar a Lago, waiting to go into his big, beautiful presidential library, the first presidential library in history that will have no books in it.

C (56:39)

Well, it reflects the president.

B (56:41)

Why should it? Right.

A (56:43)

It's just 18,000 copies of art of the Deal. And maybe. Maybe Mike Lindell will sell a bunch of his memoirs to, you know, with campaign money. He'll buy a bunch with his own campaign money to put into the presidential library. So that is the answer. You are trying to get them back, or at least to get them to admit that they have them or not to destroy them.

C (57:05)

Yeah, or if they're classified. I mean, that's part of this litigation, is they kept insisting that nothing was classified, that he used his mind bullets to unclassify them. Right. And if they are.

A (57:16)

Oh, the defense, he wouldn't use in the criminal case, but he was going to use in this case.

C (57:20)

Yeah. And so if they are classified, then they're actually not subject to the FOIA yet. Classified records are preserved for 12 more years, but if they're not classified, then, they're subject now. And so this is basically one of the things that the government has to come out and say if they're classified or not, which is why they're doing everything they can to avoid getting to that point.

B (57:42)

I just love that you're creating these moments of real awkwardness for them.

C (57:47)

I'm great about creating moments of awkwardness. Everybody will tell you that the curb

A (57:52)

your enthusiasm of FOIL litigators these days.

B (57:56)

You got to take victory where you find it. And that might be one. So.

A (57:59)

Yeah, that would be a very interesting admission. Oh, you don't have to hand these over. They're classified. Whoa, whoa, what that. Everybody. I. I just wanted to tell everybody that Kell here, National Security counselors, does all of this FOIA stuff for. For MSW Media pro bono. If you want to support them directly with a tax deductible donation, you can do that at national security law.org donate and to support this work that they're doing. Like, I. I'm so thankful that you're able to come in and file all these Freedom of Information act requests on behalf of MSW Media pro bono. And so it's these kinds of tax deductible donations that really help you be able to do this work for democracy.

C (58:47)

Hey, I do what I can. Everybody has their own particular skill set. Mine just happens to be a lot more boring than everybody else's.

A (58:53)

No, it's really kind of fun. It's really kind of fun.

B (58:57)

I mean, we're clearly not bored by it because you're our star guest this week. Thank you so much for coming in. It's great to see you and was always great to get some insight into what you're doing.

C (59:07)

Well, thanks for having me. It was fun. I listen to your show every week and I look forward to hearing my own voice echoing back to me.

B (59:16)

Be careful what you wish for.

A (59:18)

We really appreciate it. And listeners, if you have questions for us, you can click on the link in the show notes and submit your form. And we should be getting pretty close to having a questions only episode, so make sure you click on that link and send your question questions to us. Do you have any final thoughts before we get out of here today? Andy?

B (59:39)

Yeah, just one. And this is a shout out that I haven't given in a long time. And to a good friend of mine, Randy and Jarrett, two friends who made, of course, you know, the documentary String theory, Guitar Obsessed is Now available on YouTube absolutely free. It's a great watch for anyone, you know who who is obsessed with the guitar. As you know, AG I definitely am. So give it a watch if you have a chance.

A (60:06)

Amazing. Thank you so much. Thanks, Kel. Thanks, Andy. Thanks everybody for listening. We'll be back next week on Unjustified. I'm Alison Gill.

B (60:13)

And I'm Andy McCabe.

A (60:15)

Unjustified is written and executive produced by Alison 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.