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UnJustified
The Case Against Halligan
01:14:11
Jim Comey and his legal team have filed their motions to dismiss his charges on selective and vindictive prosecution grounds, and Comey and Letitia James have filed motions to disqualify Lindsey Halligan. Marco Rubio gave El Salvador US government cooperators in exchange for use of their CECOT Prison. Jack Smith goes to paper in a letter to Chuck Grassley and Jim Jordan about potential Congressional testimony, and the Republican mischaracterization of his work. Trump is seeking $230M from his allies in the Justice Department as compensation for the criminal cases against him. Plus listener questions… Do you have questions for the pod?
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- [00:00]
A
It's Sunday morning in America and that wonderfully relaxed feeling of a long, lazy day lingers in the air. If you want to make the moment last, may I suggest the perfect solution, The Martin Sheen Podcast. Join me, your host, Martin Sheen, for beautifully crafted 20 minute programs filled with never before heard stories of my life, along with personal reflections and poetry that inspires. And season one begins Sunday, October 26th. The Martin Sheen Podcast is the perfect Sunday refresh. A chance to take a deep breath, relax and know that the stress of Monday may be just around the corner, but not here, not now. So make this your weekly moment of calm as we explore faith, hope, love and what it means to be human. And know this, this journey is ever unfolding as I invite you to see what's next with me, Martin Sheen.
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B
And thank you, MSW Media.
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C
Jim Comey and his legal team have filed their motions to dismiss his charges on selective and vindictive prosecution grounds. And Comey and Letitia James have filed motions to disqualify Lindsey Halligan.
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B
Marco Rubio gave El Salvador US Government cooperators in exchange for use of their C code prison.
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C
Jack Smith goes to paper and in letters to Chuck Grassley and Jim Jordan about potential congressional testimony and the Republican mischaracterization of his work.
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B
And Trump is seeking $230 million from his allies in the Justice Department as compensation for the criminal cases against him and his election loss in 2020. This is Unjustified. Hey everybody. Welcome to episode 40 of Unjustified. We've been doing this for 40 weeks now. It's Sunday, October 26th, 2025. I'm Alison Gill.
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C
And I'm Andy McCabe. Man, 40 weeks sounds so old. I mean, feel like we just started, but also kind of feels like it's been going forever because there's so much news every week.
- [02:17]
B
Yeah, there is. And if you want a visible representation of what Trump is doing to the rule of law and the Justice Department, look no further than than photos of what he's doing to the east wing or what he did to the east wing of the White House. It's completely demolished now. At first it was not going to be touched. Then it was just the facade. But now he's raised the entire east wing.
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C
Yeah, demolished it. It's no longer in existence. CNN had an interesting there was a satellite photo of it yesterday, so they were able to compare it to a satellite photo from sometime in the recent past. And the thing is just gone. And I really think a lot of people are horrified by it. It's Shocking. And then, of course, when you think about the way that it was done, with no notice, no plans, shared with the public, apparently it's all being paid for by private money. Who knows what that means? Yeah, it's just. It's bizarre.
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B
Yeah. And it's very sad. I mean, you know, I've. I haven't obviously, spent as much time in the East Wing as some folks, but I've been there, and it's just. It's devastating.
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C
Yeah.
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B
I'm worried about the stuff that was in the East Wing. Like, what did he do with all that stuff?
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C
Well, they say they stored it. So do you believe them? I mean, where. And did they.
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B
I didn't see any moving parts.
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C
Where did it go? And how did that happen? And how. I mean, it's just a million questions and no credible answers when the entire thing started out as the East Wing will not be interfered with in any way, and now it no longer exists.
- [03:58]
B
Yeah. Yeah, that's. That's just. It's. I. I couldn't. I mean, the. The. Like, it's. It's not. It's a metaphor of itself. Like, it's. You know, we. We long. We've long talked about the figurative destruction of our institutions, and now it's been physically destroyed. And I'm wondering if he's going to stop. Is he going to stop at the East Wing?
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C
We'll find out when the wrecking trucks arrive, because there's the Capital Planning Committee, which is the organization that's supposed to supervise this and approve all the plans and make the decisions. Congress, who. Every time this has happened in the past, in 1902 and 1946, uh, and I'm. One date. I'm forgetting. That's how this worked. And no president has ever gotten everything they wanted in a red, you know, remodel or an addition to the. To the White House. But it's been a public kind of conversation until this time when it's just, this is what I want, and let's do it tomorrow. And who cares about process or history or tradition or what's meaningful to other people?
- [05:15]
B
Yeah. And it's provocative by design. I'm sure. Right after the no Kings rally, he was very upset. He put out his AI Poop plane video and then tore down the East Wing of the White House.
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C
Yeah.
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B
Anyway, just sad. Just history being taken apart, which is what this administration does. But this week, we're here to discuss a couple of things that have happened with the Department of Justice. I'd like to start with Jim. Comey and his filings, as we talked about last week, we were anticipating by October 20th that he would file because the court ordered on the schedule for him to file his motions for vindictive and selective prosecution and to disqualify Lindsey Halligan. So let's talk about the. Let's start with the Lindsey Halligan was unlawfully appointed motion.
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C
I think that was good.
- [06:09]
B
Yeah, it pretty much says everything that we talked about. Right. They say in the intro, the indictment in this case is fatally flawed because it resulted directly from a paradigmatic violation of the Constitution's appointment clause, a core element of the separation of powers that defines when and how officers in the United States acquire their authority to act. Here, the official who signed the indictment, and from all indications, the sole official who presented the case to the grand jury was defectively appointed to her office as an interim U.S. attorney rather than conform to constitutional and statutory requirements for such appointments, namely the Constitution, Article 2, Section 2, Clause 2, the Appointments Clause. And the statutory thing that they're talking about is Title 28, U.S. code, Section 546, which is limited attorney general authority to appoint interim U.S. attorneys. Her purported appointment violated the congressionally designed and constitutionally compelled means for the Attorney General to appoint an official as an interim U.S. attorney. The remedy for this violation is clear because no properly appointed executive branch official sought and obtained the indictment. The indictment is a nullity. And because of the extraordinary circumstances of this case where the defective appointment was made in defiance of the law and for the sole purpose of securing an indictment grounded in retaliatory animus days before the relevant statute of limitations expired, the dismissal must be with prejudice. So that's the introduction. It covers everything that she's the only person who signed the indictment, she's the only person who presented to the grand jury. She's not lawfully appointed. Two other US Attorneys have been disqualified, Sigal Chatta in Nevada and Alina Haba in New Jersey, for the same reasons. And so we. Let's talk a little bit, Andy, about the statutory and constitutional provisions, because Jim Comey here, his attorneys make arguments against both how this appointment can't be proper under 28,546 or Article 2 of the Constitution. And we know that Pam Bondi made this appointment under the authority of Title 28, US Code, Section 546. So talk first about what this says about how her appointment violates section 526.
- [08:34]
C
Sure. So section 526 is pretty clear. It says the Attorney General may appoint an interim U.S. attorney who may serve for 120 days. Not 120 days. Plus whatever you need to get under the statute of limitations for Jim Comey, just 120 days, plain and simple. So after that 120 day period expires, the district court may appoint a U.S. attorney to serve until the vacancy is filled. Okay, so here Eric Siebert was appointed under section 526, and he served 120 days, thus extinguishing the entirety of the term of an interim U.S. attorney. So after that, the only remaining remedy to get an ass in the Chair under section 526 is for the district court to appoint someone to serve as U.S. attorney until the vacancy is filled. But that's not what happened here. Eric Siebert was in there. He served his 120 days, he resigned. And then at that point, the Attorney General had no additional authority to appoint anyone. Lindsay Halligan or anybody else.
- [09:48]
B
Yeah, yeah, and that's pretty clear, pretty obviously stated. And so even though the Attorney General here, Pam Bondi, said that that was the authority she was using. 526. I think I said 546. My, my apologies. It's 526, section 526. That's what she said. So that's out. But in addition, Pat Fitzgerald and Comey's legal team took it a step further to say it also violates the Appointments Clause of the Constitution. So what does that say?
- [10:20]
C
So the Appointments Clause of the Constitution allows Congress to, quote by law, vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments. The requirement that Congress participate in the appointment of inferior officers, either through Senate confirmation or through specifying an appointment procedure by law reflects the Framer's concern about the executive branch's manipulation of, of official appointments. So that's from the motion. That's their explanation of the Appointments Clause and hence the constitutional authority to fill that seat. Well, obviously none of that happened here. There was no involvement by Congress either through Senate confirmation or specifying an appointment procedure by law. Passing a law that says, here's how you do it. That clearly didn't happen here.
- [11:15]
B
Yeah, makes sense. And so then they go on in their motion to say that here's why dismissing these charges is the proper remedy. And they give examples like you do, right. When you don't use AI to generate.
- [11:29]
C
A court filing good old fashioned book reading and finding cases that fit the facts. And then you, you, you refer to those as precedent.
- [11:39]
B
So they, they cite four examples I'm going to give you the first three, and I'm going to save the best for you, Andy, because I have the fourth ex is, is pretty amazing. So the first example is Collins v. Yellen. When a court determines that a government actor exercised power that actor didn't lawfully possess, including because she was not properly appointed, that ruling renders her past actions void, a nullity. Then there's Rider v. United States, where the Supreme Court reversed the court martial conviction of a defendant after he successfully challenged the appointment of the intermediate appellate judges who reviewed his case. So there's a part where they've dismissed the charges. Another case, then there's Lucia v. The sec, where the court set aside an agency adjudication tainted with an appointments violation, making clear that a decision of improperly appointed officials cannot stand. So those are the three examples, the first three that they give. But the fourth one is kind of a gut punch to Donald. The Trump administration, tell us about is.
- [12:41]
C
A little bit, because it's a case that might ring some bells. It's, it goes under the title of the United States versus a guy you've heard of before, his name is Donald Trump. And in that, in that case, the court applied these principles when dismissing an indictment on Appointments Clause grounds because of a defect in the appointment of the prosecutor who secured the charges. So again, the court applied these principles and they dismissed the charges against Donald Trump because of a defect in the appointment of the prosecutor, one Jack Smith, who secured the charges.
- [13:23]
B
Yeah. And even, even though the appointment did not have a defect, we're taking it on the face like, okay, if so if it has a defect, you dismissed the charges. That's the proper remedy, right?
- [13:36]
C
Yes. Yes. So the court concluded that because Special Counsel Smith's exercise of prosecutorial power has not been authorized by law, there is, quote, no way forward aside from dismissal of the superseding indictment. Indeed, the government there did not even propose an alternative course. The court reasoned that invalidation follows directly from the government actors lack of authority to take the challenged action in the first place.
- [14:04]
B
Yeah.
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C
This is from the current motion about Lindsey Halligan. They say here the court should dismiss the indictment because of Ms. Halligan's unlawful appointment. When Ms. Halligan secured and signed the indictment in this case, she was exercising power that she did not lawfully possess. And then they cite Collins for that. It was no different than if a private citizen not representing the executive branch went before the grand jury and purported to authorize its issuance of a charging instrument. And I think that if you could do that virtually everyone in our listening audience would do. Do that. Exactly. They'd be marching into grand juries all over the country demanding indictments of the President if. If our questions every week are any indication of where they're. Where their head is at. Yeah, here. Ms. Halligan's unlawful appointment tainted the structural integrity of the grand jury process. Absent Ms. Halligan's unlawful title, she would not have been able to enter the grand jury room, let alone present and sign an indictment.
- [15:02]
B
Huh. That's fascinating. Just the whole. Oh, you remember in US V. Trump when you dismissed the whole indictment because you said that Jack Smith was unlawfully appointed? Samesies here, samesies here. And then again, Comey and his lawyers are asking for it to be dismissed with prejudice instead of without prejudice. And they argue for with prejudice by saying a dismissal with prejudice is the only remedy that will vindicate the interests protected by the Appointments Clause and deter the government from using unlawful appointments to effectuate retaliation against perceived political opponents. That's their little paragraph about why it should be dismissed with prejudice. Now, this motion on Lindsey Halligan is not going to be decided by Judge Nachmanoff because the entire bench in the Eastern District of Virginia had to recuse itself from this because it would pose a big conflict of interest if judges in the Eastern District of Virginia, where Lindsey Halligan is a U.S. interim, interim U.S. attorney, if they got her dismissed or wanted to challenge her dismissal, that creates a conflict of interest in all their cases. So they moved it to Judge Cameron Curry, Senior Judge Clinton appointee in the District of South Carolina. So that's who's going to be deciding this case. And that judge said, in accordance with ECF 23. That's one of the filings. The government's response, briefly, to the motion challenging the qualification of Lindsey Halligan is due by 5pm Monday, November 3rd. So that's how long the Trump administration has to respond to this disqualifying motion and the motion to dismiss because Lindsey Halligan was unlawfully appointed. Defendant's reply brief is due by 5pm Monday, November 10th. So we will be fully briefed on this just in a couple of weeks here.
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C
Yeah, yeah, yeah. Two weeks or so. Three weeks maybe, with the reply, and then game on. We'll see what happens with the distinguished Ms. Halligan and her incredible adventure with this indictment.
- [17:10]
B
Yeah, and a couple other things that went on this week in the Comey case, at least. Trump filed a motion to try to disqualify Pat Fitzgerald, saying that he helped Comey release his Comey memos back in 2017, Pat Fitzgerald, the legal team filed an opposition to that, saying you're ridiculous, basically, and we haven't got a decision on that yet. But Trump is trying to disqualify Pat Fitzgerald as lead defense counsel. But then a man named Mike Dreeben joined the Comey legal team. And that guy, if that name should sound familiar to you, Dreeven, when, you.
- [17:54]
C
Know, I imagine him just like drifting back into the office with the black hooded robe and a big scythe. Here he comes. He is very well known in DOJ circles as maybe the most accomplished attorney in terms of writing appellate motions and arguing in front of the Supreme Court. He's just a unbelievably smart and capable attorney. Also worked on Jack Smith's team and did some arguments. Did he argument in the Trump v. US Immunity case?
- [18:30]
B
I think, I think he was part of it, yeah. That his appellate and Supreme Court experience is indicative that Jim Comey and his, his team are ready to fight this all the way up to the Supreme Court.
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C
Heck yeah.
- [18:45]
B
So that's a heavy hitter. A few other heavy hitters joined too, but Dreeben really stood out to me. There was another motion that the government lost. They tried to keep some of the discovery away from Comey himself and some of the defense witnesses alongside Comey. Pat Fitzgerald was like, that's dumb. Jim Comey should get to see all the evidence against him. And the judge agreed. Naquanoff agreed and denied the government's bid to, to keep some of that discovery away. And then I want to just briefly talk about the Letitia James case, because Letitia James has also filed a motion to disqualify, throw out her charges and disqualify Lindsey Halligan. And again, because that would have to be fought outside of the Eastern District of Virginia for conflict of interest purposes, all the judges are going to recuse on that as well. She filed her motion, same reasons, under 526 in the appointments clause. Same stuff, you know, citing Segal Chatta over in Nevada, Alina Haba, same citations, Collins and Trump and, and all that. And then she also asked to consolidate. She's like, might as well, might as well consolidate this with Comey's motion before the judge that's already in the District of South Carolina. So we'll see what the judges say, what the courts say about consolidating that or if they're going to assign it to a different judge in that district that's out of the Eastern District of Virginia. But she's asking to consolidate because it's going to be the same decision if you rule for Comey that Lindsey Halligan is disqualified. The same thing applies to Tish James because her indictment was also only signed by Lindsey Halligan and no other assistant U.S. attorneys. But they can actually go back to a federal grand jury because the right, the statute of limitations hasn't expired in.
- [20:35]
C
Her case unless they dismiss with prejudice, which seems probably not applicable in her case. I mean, I can be corrected on that, but she certainly doesn't have the same statute of limitations issue that Comey has. And normally you would think that, um, yeah, what you said is absolutely right. If, if it gets dismissed, they could convene a new grand jury, represent the case and indict it. But if they go along with every aspect of the Comey motion, which asks for dismissal with prejudice as the only remedy, then, yeah, I don't know how that would play out, but we'll have to see.
- [21:13]
B
Yeah, we will, and we'll keep you posted on that. And then something else. There were a couple other casualties because of the Letitia James case. Elizabeth Youse and her deputy were fired after refusing to indict Letitia James. And I think that there was even Sarah o'. Kelly. Is that her name? She was the one who. One of the people who signed the Bolton indictment, but she refused to indict. But it was UC and her deputy that actually took the Letitia James case to Lindsey Halligan and said there's not enough here in the Letitia James case. So we're not going to pursue charges. They were both fired. They've since been fired from the Department of Justice. And Lindsey Halligan in the Letitia James case had to go all the way to Missouri to get someone else to sign on to Letitia James's case, where, you know, she had to go to North Carolina to find two people to sign onto the Comey indictment. So no one in the Eastern District of Virginia wants to touch this.
- [22:13]
C
Either way, she got a full on revolt on her hands. And, you know, it's one that she. She is responsible for, so good for her.
- [22:20]
B
Yeah, agreed. All right, we have Comey's motion for vindictive and selective prosecution that we also want to talk about, but we have to take a quick break, so everybody stick around. We'll be right back. All right, everybody, welcome back. All right, so we've gone over the motion to dismiss from Comey and Letitia James on the grounds that Lindsey Halligan was not appointed properly, and so both of their indictments should be a nullity they should be dismissed and with prejudice. So now I want to talk about the vindictive and selective prosecution case. And I believe that you said to me, Andy, you told us in previous weeks that there was a judge on CNN who said, if, if there's ever a case for vindictive and selective prosecution, it's Jim Comey's.
- [23:14]
C
Yeah, that's absolutely right. It was Judge Schindlin who used to be on the bench in the Southern District. And, yeah, I mean, I think you read, if you read this motion, it reads exactly how, how you would expect emotion from an incredibly talented, experienced legal team that has a ton of facts to work with.
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B
Yeah.
- [23:36]
C
100% strong in every aspect. When they go through each kind of standard and test for each element of the, of the, you know, the two separate kind of issues that they're arguing here, one being vindictive prosecution, the other being selective prosecution. It's like they have multiple rings of evidence to support every element of these offenses, of these grounds, legal grounds to have the case dismissed. So it's, it's very strong. The whole thing leads really well.
- [24:08]
B
It is. And just like, I was really kind of, I don't know, a little bit giddy about the Lindsey Halligan disqualification motion having an example of USV Trump. There's an example in the vindictive and selective prosecution motion when it comes to finding similarly situated people who were not indicted. That just takes me back, all the way back to Crossfire, Hurricane and the Mueller She Wrote days. And I was just like, wow. And there, there's. There's a couple of them that, that are really just sort of twisting the knife in there. And we'll get to those examples in a second. But first of all, Comey asked for an additional. He needed more pages than the normal rules would allow. And the judge allowed those additional pages and also said to the Trump administration, you can also have the same amount of additional pages to respond to what Comey's going to file. So he begins in his introduction that the indictment in this case arises from multiple glaring constitutional violations and an egregious abuse of power by the federal government. Those are really strong words coming from a guy like Pat Fitzgerald. By the way, the United States Constitution entitles individuals to speak out against the government and in turn forbids the government from retaliating against individuals for their protected speech. And bedrock principles of due process and equal protection have long ensured that government officials may not use the courts to punish and imprison their perceived personal and political enemies. But that is exactly what happened here?
- [25:38]
C
They go on. President Trump ordered the Department of justice to prosecute Mr. Comey because of personal spite and because Mr. Comey has frequently criticized the President for his conduct in office when no career prosecutor would carry out those orders. The President publicly forced the interim U.S. attorney to resign and directed the Attorney General to effectuate, quote, justice against Mr. Comey. He then installed a White House aide with no prosecutorial experience as interim U.S. attorney. The President's new hand picked interim U.S. attorney indicted Mr. Comey just days later and days before the relevant statute of limitations was set to expire.
- [26:21]
B
Yeah. And you and I were like, come on. She was shoved in there four days after Siebert left and then unlawfully. Right. Which we just went over in the A block. And right before the statute of limitations. So they go on to say that defendant Comey submits this motion to dismiss under Federal Rule of Criminal Procedure 12B 3A because the government's conduct in this case violates two settled and surpassingly important legal doctrines. Very important things here. First, the government instigated a vindictive prosecution based on Comey's protected speech in violation of the Due Process clause and the First Amendment. Second, the government engaged in selective prosecution in violation of equal protection principles. So they say here the dismissal of federal criminal charges under these doctrines has been rare. And I just want to break in here. This is something that we've all been saying. Other legal experts are saying it's really hard to get a vindictive and selective prosecution. Motion granted.
- [27:22]
C
Yeah. Trump failed.
- [27:25]
B
Right.
- [27:26]
C
In at least the Mar A Lago case. I'm trying to remember where that motion was, but. Yeah, or in both. I think they filed essentially the same motion in both cases.
- [27:35]
B
Yep. Yep, they did. Yeah. And they go on to say that the reason it's rare is because for decades, the Department of Justice has maintained the highest standard of ethics, following only the facts in the law to determine whether to bring criminal charges. This case makes a sharp departure from that tradition and ample objective evidence, much of which comes directly from the government officials own public statements and admissions, establishes that the government's animus toward Mr. Comey led directly to this vindictive and selective prosecution. Essentially, Andy, it's Trump and everybody on social media saying, I really hate Jim Comey and I want to indict him because I hate him so much. Like, I mean, exactly right.
- [28:17]
C
100%.
- [28:17]
B
It reminds me of the bribery stuff. Like, do I have to say, here's a bribe for you to do this for me. Order for it to get done. So they go on to say the proper remedy for the government's constitutional violations is dismissal. Dismissal with prejudice. Again, there's the. With prejudice. That's the only way to cure the government's flagrant misconduct and deter similar future prosecutions of perceived political opponents.
- [28:42]
C
Yeah, that's right. So the motion then goes into this kind of beginning of a historical discussion of the relationship between Comey and Trump. And we won't go through all the details. Everybody knows that pretty clearly. But it's important because they have to prove the animus, the actual animus that Trump holds for Comey in order to, to fulfill that part of, of the law. So they talk extensively about that. They talk about Comey's public criticism of Trump, which, you know, is cited as another reason why Trump hates him. And then they tee up, they get us to the present by teeing up the infamous post that was, we have now heard, I think it's been confirmed publicly that this was intended to be a individual private post from Donald Trump to Pam Bondi. But of course he posted it publicly. And this is the posting that begins. Pam. I have reviewed over 30 statements and posts saying that. Essentially same old story as last time. I'll talk. No action. Nothing is being done. What about Comey, Adam Shifty, Schiff, Leticia, they're all guilty as hell, but nothing is going to be done. Then we almost put a Democrat supported U.S. attorney in Virginia with a really bad Republican past a woke rhino who was never going to do his job. That's why the two worst Democratic senators pushed him so hard. He even lied to the media and said he quit and that we had no case. No, I fired him. You can't get any better than that. No, I fired him. And there is a great case and many lawyers and legal pundits say so. Lindsey Halligan is a really good lawyer and likes you. A lot of it's relevant of nothing. We can't delay any longer. It's killing our reputation and credibility. I mean, they just, you know, if there wasn't enough motive, he lays in a little more motive. They impeached me twice and indicted me five times over nothing. Justice must be served now. President djt.
- [30:41]
B
Wow, that's a. They did this to me, so I'm gonna do this to them. I mean, exactly that is that right there.
- [30:50]
C
Justice must be done. And in his mind, justice is revenge. You know, it's the, it's the heart of this vindictive action. So of course, less than 48 hours later, Halligan is sworn in as interim U.S. attorney. Then, of course, as we've talked to or talked about already, the Attorney General purported to appoint her under section 546. But that is turning out to be a problem because that's the source of the motions challenging her legitimacy.
- [31:22]
B
Yeah, yeah. And again, they go into the fact that Siebert ate up that 120 day interim appointment. So the only thing that can happen now is you got to appoint someone with advice and consent of Senate, and in the meantime, only the district court may appoint.
- [31:37]
C
Yeah, fill.
- [31:41]
B
So then this motion goes on to say, on her fourth day in office, Ms. Halligan sought a grand jury indictment of Mr. Comey just days before the five year statute of limitations on Comey's purported offense was set to expire. No other Prosecutor from the U.S. attorney's Office for the Eastern District of Virginia participated in the grand jury presentation. And so on September 25, Trump celebrated the indictment of Comey on social media. The motion says President Trump also posted a word of thanks to those in the DOJ who had effectuated his wishes. I'd like to thank Kash Patel and the outstanding members of the FBI for their brilliant work on the recent indictment of the worst FBI director in the history of our country. Oh, man. Wait a minute.
- [32:22]
C
Cash Patel indicted himself. What? I didn't get.
- [32:26]
B
Hey, so, you know, if he would have just said, congratulations on following the rule of law, that wouldn't be evidence. But the fact that he said, thanks for indicting the worst guy. I hate his face. Right. Like.
- [32:40]
C
Dating my most hated FBI director ever. By the way, I have true animus against him.
- [32:46]
B
Yeah. Might as well just throw the word animus in there. Now, this is the part that you and I were talking about when we were reading this indictment, and we were like, well, if you're not person three, Andy, and this is Daniel Richmond. How. How he. Comey never said work. Right. Comey never said to Congress that. I never authorized anyone to go to the press. He never said that in 2020. And what they were talking about in 2017 was something totally different. And they bring that up. They said this is facially flawed. They said during that hearing, Cruz. Senator Cruz described how during 2017 testimony, Mr. Comey denied ever authorizing someone else at the FBI to be an anonymous source in news reports about the Trump investigation into the Clinton administration. Senator Cruz then asserted that Andrew McCabe, who previously served as Comey's deputy director of the FBI, publicly and repeatedly stated that he leaked information to the Wall street journal and that Mr. Comey was aware of it and that Mr. Comey directly authorized it. Senator Cruz asked Mr. Comey, who's telling the truth? Mr. Comey responded, I can only speak to my testimony. I stand by the testimony you summarized that I gave in May of 2017. Senator Cruz followed up by asking, so your testimony is you never authorized anyone to leak, and Mr. McCabe, when, if he says is the contrary, is not telling the truth. Is that what she. Is that correct? And Mr. Comeier said, Again, I'm not going to characterize McCabe's testimony, but mine is the same today.
- [34:16]
C
Yeah, yeah.
- [34:17]
B
So.
- [34:18]
C
So this comes down to the fact that the indictment misstates the exchange between Senator Cruz and Mr. Comey. Senator Cruz asked Mr. Comey to affirm or deny prior testimony that he authorized, quote, someone else at the FBI to be an anonymous source in news about the Clinton administration, but Hillary Clinton was not elected. And Senator Grassley's original question in 2017 related to the Clinton investigation. The indictment nonetheless mischaracterizes Mr. Comey as stating that he had not authorized someone else at the FBI to be an anonymous source in news reports regarding an FBI investigation concerning Person 1. Thus, the indictment replaces Senator Cruz's reference to the Clinton administration with a reference to person one, Hillary Clinton, and misleadingly attributes the statements to Mr. Comey that he did not, in fact, make during his September 30, 2020 testimony. So, short answer here is, this is why anyone who's been around these cases, as an investigator, as I have, or a prosecutor, as many prosecutors have been, will tell you that perjury and false statement cases based on congressional testimony are almost impossible to make, because in a prosecution for false statement, you have to have a very clear, direct, unequivocal question, and it has to be given a very clear, direct, perfectly matching, but intentionally false answer. And if those two things don't line up perfectly in a way that eliminates all doubt as to whether or not this.
- [36:06]
B
The.
- [36:07]
C
The person answering the question was being truthful or intentionally untruthful. They just don't. They don't work. You can't. You can't make it happen.
- [36:17]
B
Right.
- [36:17]
C
So basically the same thing is here.
- [36:19]
B
Yeah. Yeah. So basically, this is what we were asking about, the indictment, too. Comey's lawyers here are saying, like, look, he never said he authorized anyone to. Didn't authorize anyone to leak. He never said that in 2020. He said, I stand by my 2017 testimony. And because Senator Cruz mischaracterized his 2017 testimony, he was telling the truth on the face of it, when he said, I stand by my testimony in 2017. And that's why, when they said they might file a Bronston defense against literal truth, I said, I bet it's because it's literally true that he stood by his 2017 testimony.
- [36:58]
C
Right.
- [36:58]
B
And regardless of whether that's set up to mislead Senator Cruz, it doesn't matter, because Senator Cruz mischaracterized the testimony from 2017. So literally saying, why stand by my 2017 testimony is not a lie. And so that's why. And that's in a footnote here, that that was what I was guessing it would be. And they said, Mr. Comey expects to move to dismiss count one, based on a defense of literal truth. See Bronston v. United States. And another footnote for you. I thought of you, my friend. On October 15th, just a little while ago, the government confirmed that person one is Hillary Clinton and person three is Daniel Richmond. What?
- [37:41]
C
Come on.
- [37:42]
B
It's not you. It's not you, Andy. Isn't that weird? Shoot.
- [37:45]
C
Really? Oh, my gosh. I told you. I told all you.
- [37:49]
B
Yeah.
- [37:49]
C
Oh, man. Here we go. Yeah. So the motion goes on. It says, further, the indictment omits Senator Cruz's words that explicitly narrow the focus of his questions to Mr. McCabe and misleadingly implies that the questioning related to Mr. Richmond. In fact, Mr. Comey's September 2020 exchange with Senator Cruz made no reference whatsoever to Mr. Richmond, who ultimately appears in the indictment as Person 3. Instead, the context of the exchange confirms that Senator Cruz was asking about leaks by Mr. McCabe. Indeed, Senator Cruz asked Mr. Comey whether he or Mr. McCabe was telling the truth. In other words, the indictment presents an inaccurate description of the testimony at the heart of this case, which, of course, is the testimony from 2017, which is what you've said all along.
- [38:45]
B
Yep. That's what we've been saying. Now, they give examples of genuine animus to support vindictive prosecution. They give examples of Comey's First Amendment protected speech about Trump that support selective prosecution. Because it's vindictive and selective, you gotta do both, correct?
- [39:01]
C
Yep.
- [39:02]
B
The government has declined to prosecute similarly situated individuals. This is what I was talking about, about these examples. And in order to prove that you are being vindictively and selectively prosecuted, you gotta say, hey, look at all these guys who did the same thing I did. And you didn't indict them, but you indicted me. It's because you hate me.
- [39:20]
C
That's exactly right. That's the standard for Selective prosecution. And this. This was another masterstroke. I was just looking back to confirm. I wrote this in a text to a friend of mine who actually sent me the motion, maybe shortly before or after you did, and described it to me as brilliant. Yet I love the fact that all of. All of the similarly situated individuals are people who basically were part of the first Trump administration and lied to Congress. Allegedly, allegedly lied to Congress. Every one of the examples is another Trump Cabinet member. It's hilarious.
- [39:58]
B
It's pretty great. And here's who they are. First. The example is. First example is EPA head Scott Pruitt when he made false statements to Congress about his use of a personal email account. That, to me, the personal email account will jab about Hillary Clinton right there.
- [40:13]
C
Then sticking the ribs there.
- [40:16]
B
Then HHS Secretary Tom Price made false statements about a discount he received when he purchased shares of a biotech firm. And then this is so great. Steve Mnuchin made several false statements to the Senate Finance Committee when he lied, saying he never used an auto pen when he was the CEO of One West Bank. So there's a little Biden auto pen jab for you.
- [40:35]
C
Another jab, another jab.
- [40:37]
B
But piece de resistance. My favorite example. First, Attorney General Jeff Sessions allegedly made false statements to the Senate Judiciary Committee in 2017. January Senator Al Franken asked Mr. Sessions if there's any evidence that anyone affiliated with the Trump campaign communicated with Russian government in the course of the campaign. What will you do if anyone does that? Chris Cilliza. Jeff Sessions keeps forgetting and forgetting and forgetting about Russia in the 2016 election. Mr. Sessions replies, I'm not aware of any of those activities. He said, I've been called a surrogate at a time or two in that campaign, and I did not have communications with the Russians. Now, if you ever listen to the Muller She Wrote podcast, that quote by Jeff Sessions is in the opening sequence. I was like, that's gonna. And so is the Manafort. That's what that. That's what I said. That's what we said. That's what my position is. Right? The old. The Manafort quote.
- [41:34]
C
That's a classic.
- [41:35]
B
I was like, these. It's like sick. These banana peel quotes that I put in the very first episode of the very. And it's still the opening sequence. I was like, this is going to be important one day. Watch. And here he is. I did not have communications with the Russians. Just brilliant. So an autopen, a private email server example, and Jeff Sessions saying that he didn't talk to the Russians is Just beautiful.
- [42:08]
C
Yeah.
- [42:08]
B
So to wrap this up, we could talk about that more in a minute. But just to wrap it up really quick, he says, look, even if you don't dismiss on vindictive and selective, we need to have discovery and a hearing because Comey has shown a realistic likelihood of vindictiveness and selectiveness. And the. The judge also agreed. The judge in a different case in Kilmar Abrego agreed. So there'll be discovery like that. The same kind of thing here, like, give us a hearing at least. So for the foregoing reasons, the indictment should be dismissed with prejudice. Alternatively, the court should order discovery and conduct a hearing on vindictive and selective prosecution. So the judge here can either just dismiss it outright or order discovery and have a hearing about vindictive and selective prosecution, like the judge in the Kilmar Abrego case is doing.
- [42:50]
C
I think that so much of what they cite here are just public records. It's like that site that you read a second ago to Chris Saliza, to an article that he wrote that quotes the Jeff Sessions lie about the Russians. I don't know that you need discovery. I mean, you. They're going to get a hearing. Absolutely. To hear the arguments. Discovery could really drag this thing out, which is unfortunate.
- [43:17]
B
But. Well, yeah, you don't need the emails between Trump and Pam Bondi because he accidentally posted a private message to her on a public forum on Truth Social. So there's your email, there's your communications between these two.
- [43:30]
C
I think there's like a 50 page annex attached to the motion that they filed that has like every tweet that Trump has ever made about Comey. So, yeah, it'll be interesting to see how that goes. I think they were kind of covering their, you know, hedging their bets by bringing it up and asking for that kind of a. In the alternative sort of argument, which is the smart thing to do. But I hope they just get through this thing quickly because it's ridiculous.
- [43:55]
B
I think that the disqualification of Lindsay Halligan is going to tank this. And if I were Judge Nachman off, I'd say I'm going to wait to see what happens in the Lindsay Halligan decision in, in the, you know, in South Carolina with the Clinton judge before I even bother to look at vindictive and selective prosecution. Like, why even bother to get into this, have discovery, hold hearings, or even make a decision or start writing on it. Because if Lindsay Halligan is disqualified by this other judge, then we don't need to get into anything else that's what I think is going to happen. It's going to be like kind of that order of operations of the court. Like you first of all have to have standing, you have to have jurisdiction, you got to have irrepar harm to do anything. Like there's just a few things, few boxes you got to check before you get into anything. And I think her law, the lawfulness of her appointment is, is step one.
- [44:43]
C
It's just a matter of judicial economy. Like why waste the resources and the time and the effort? There's probably 50 other cases he's got to move forward. So he'll look at those until. Until he hears from South Carolina.
- [44:55]
B
Yeah, agreed. Okay, so we're going to take a quick break. But Andy, you and I have long been talking about, especially you've been pointing out these massive press conferences for indicting Ms. 13 gang leaders that Pam Bondi had and then dismissing the charges against them. And then we started learning a little bit about the agreement between Bukele and the United States for our use of Cekote, depending on whether or not we return Ms. 13 gang members to Bukele so that he can keep them quiet because he was working with them and he wants to preserve his tough on crime image and that would go against that and it would be, it would be bad politically for him that he was working with MS.13 instead of against them. And now we've got some pretty bombshell information. I want to talk about that, but we got to take a break, so stick around. We'll be right back.
- [45:55]
C
Welcome back. Okay, we have a lot more to cover today. So first you'll recall that weeks ago we talked about Pam Bondi suddenly dismissing charges against Ms. 13 gang leaders just days after she gave a big press conference about the arrests. As time went on, we began to learn about the deal between the United States government and El Salvador during the Abrego Garcia case. It started to become clear that the justice department was sending Ms. 13 gang members back to El Salvador because President Bukele wanted to keep them quiet about the fact that they had been working together. That would of course look bad given his tough on crime position. And it was, I should also add that it was, it was widely discussed and reported that several of these gang leaders who were in federal custody and had been for a while were not just cooperating with the government but. But cooperating and providing information specifically about their dealings with Bukele and many of which were indicative of a high degree of corruption in the Bukele administration.
- [47:05]
B
Right. So these MS.13 members were friendly with Bukele, helped him make it seem like he was tough on crime when in actuality he was working with MS.13. And if I'm being honest, that deal is why the Trump administration did everything it could to avoid handing over that agreement, the U.S. government agreement with Bukele during discovery in the Abrego case. Remember how they were just ignoring discovery, not giving updates, and then going back to a 2022 traffic stop to charge him, to just stop the discovery because they didn't want to hand over this agreement and they didn't want to go through any more embarrassing discovery. And so I think that's why they ultimately cooked up those criminal charges, so that they could end Judge Sinis's discovery process.
- [47:48]
C
And new reporting from the Washington Post confirms all that. And it adds a twist. In the days before the Trump administration deported hundreds of Venezuelan immigrants to a notorious prison in El Salvador, the president of that country demanded something for himself the return of nine Ms. 13 gang leaders in U.S. custody. Secretary of State Marco Rubio, in a March 13 phone call with Salvadoran President Nayib Bukele, promised the request would be fulfilled, according to officials familiar with the conversation. But there was one obstacle. Some of the MS.13 members Bukele wanted were informants under the protection of the United States government. Rubio told them yes.
- [48:31]
B
So to deport them to El Salvador, Attorney General Pam Bondi would need to terminate the DOJ's arrangements with those men. And that's what Rubio told the officials in El Salvador. But he assured Bukele that Bondi would complete that process and Washington would hand over these MS.13 leaders. Rubio's extraordinary pledge illustrates the extent to which the Trump administration was willing to meet Bukele's demands as it negotiated what would become one of the signature agreements of Trump's early months in office. While the outlines of the quid pro quo have been public for months, the Trump administration's willingness to renege on secret arrangements made with informants who had aided US Investigations had not been previously reported until this story came out this week.
- [49:15]
C
The deal between Rubio and Bukele granted the administration access to a sprawling foreign prison dubbed the Terrorism Confinement center, or Seacote, that would be integral to Trump's ongoing efforts to conduct the largest deportation in American history. The deal would give Bukele possession of individuals who threatened to expose the alleged deals his government made with MS.13 to help achieve El Salvador's historic drop in violence, officials said. For the Salvadoran president, the return of the informants was viewed as critical to preserving his tough on crime reputation. It was also a key step in hindering an ongoing U. S. Investigation into his government's relationship with MS.13, a gang famous for displays of excessive violence in the United States and elsewhere.
- [50:03]
B
Yeah. But by promising to terminate the informant arrangements, current and former justice department officials say Rubio threatened to undercut years of work by US Law enforcement to apprehend and secure the cooperation of high ranking members. Gang members of one of the world's most deadly gangs. Quote, the deal is a deep betrayal of US Law enforcement whose agents risked their lives to apprehend these gang members. That's Douglas Farah, U.S. contractor who worked with federal officials to investigate and help dismantle Ms. 13. Quote, who would ever trust the word of US law enforcement or prosecutors ever again. And that was where my immediate thoughts went. That's exactly my first thought was all of this work that went in to being a handler at the agency in the government for these informants to just have Pam Bondi announce their arrest and then dismiss the charges and hand them over. Someone who had been helping us.
- [51:07]
C
Yeah.
- [51:07]
B
In that investigation. And now why would anybody ever cooperate with the US Government?
- [51:16]
C
It's a really good question. You know, we make cases like this, we make big gang cases, organized crime cases, what we call in the FBI enterprise cases because of our ability to recruit sources of information, informants. Sometimes those are people you've arrested and then you convince them to plead guilty and provide information in return for a reduction in sentence. Sometimes there are people who you can't arrest. They're just out there doing their thing and they happen to know a lot of information about these folks and they literally put their lives in your hands when they agree to provide information. And they do it because they trust that you will take care of them, that if there are threats levied against them, you will move them, you'll put them in a new place within maybe a new identity. You'll help their family members. You know, we go to incredibly long lengths to. To live up to our word to people who agree to put themselves at risk in order to help us achieve justice that serves a higher purpose. And you know, this administration, as we've all seen throughout the last several months, with all the cases, all the different kinds of issues we've been covering here, These people cannot be trusted to do the right thing. That you can count on the fact that they'll do whatever it is that they are motivated to do, regardless of what the law and ethics and morality and professionalism Call for. So, yeah, I mean, this stands to incredibly erode the kind of respect that people, even criminals, have for professionals. Agents, lawyers, prosecutors in the government.
- [53:05]
B
And we see it with ICE and mass deportations too. People who have agreed to help the government after a lot of work with federal agents saying, trust us, we will help you. We will give you this visa, help us find these actual, actual criminals, and we will, we in, in return, we'll make sure that you're taken care of. And then new administration, bam, they're just snatched. And these MS.13 gang members that we promised to take care of if for their. In exchange for their help after years of trying to get it just bam. Sent back. Nope, you get to go back to Bukele, who's going to do whatever he wants with you, or bam, we're just going to deport you. Sorry, I know we made you some promises, but that's over now. Why would anybody want to help us go after actual criminals? It's just, it's sad.
- [53:54]
C
How about these Afghan translators and facilitators who put their lives and families. Lives at risk by helping the US Military in theater of war and were and were rewarded for their heroic efforts by being admitted into this country and given the opportunity to start a life here. And now many of them are being deported.
- [54:15]
B
Yeah. Their temporary protective status being ripped away, man, it's just, it's very frustrating and it makes us less safe. It really does. It undermines law enforcement. So when they say that they're pro police, boy, that is just not true at all. For 800 reasons. But, but there's more. There's more corruption.
- [54:38]
C
There's, there's more bad news. So, yes, in another story of massive corruption at the highest levels of government, and I mean the highest. There's only one highest. And yes, it's his level. This story is from the New York Times. President Trump is demanding that the Justice Department pay him about $230 million in compensation for the federal investigations into him, according to people familiar with the matter, who added that any settlement might ultimately be approved by senior department officials who defended him in those exact cases. Yeah, yeah. The situation has no parallel in American history, although that's, quite frankly, a line that we could attach to any of these stories. But nevertheless, as Mr. Trump, a presidential candidate, was pursued by federal law enforcement and eventually won the election, taking over the very government that must now review his claims. It is also the starkest example yet of a potential ethical conflict created by installing the president's former lawyers atop the Justice Department.
- [55:45]
B
Yeah. So this is just bad, bad, bad. He just wants money from the Treasury. This is taxpayer funded money for what he says is wrongful prosecution, which was not wrongful prosecution. He was granted immunity and his case in Florida was dismissed. So, you know, it reminds me of the, the story we had on the Daily Beans a couple weeks ago about a man who was wrongfully jailed, served, and then the moment he stepped foot out of prison after being exonerated after all that time on new evidence, ICE swooped him up, deported him, dispatched him.
- [56:22]
C
Yeah.
- [56:23]
B
Where's his $230 million for actual wrongful prosecution that resulted in 43 years, four decades behind bars for a crime he didn't commit. These are crimes Trump committed. Here he is. And you know what's really interesting is that Jack Smith wants to talk about these crimes that were committed and we're going to talk about that in the D block because you and I, the first time I had you on the Mueller She Wrote podcast back in 2019 was because it was in around April or May when Robert Mueller had written a letter to Bill Barr saying you're. And he actually picked up the phone and called him, we learned a little bit later too, saying you're mischaracterizing my findings. You're telling everyone that I've exonerated him. When specifically in my thing, I say that he, that we, if we could, we would, but we could not exonerate him. And he went, we, that that episode is called Mueller Goes to Paper. And the reason that I had you on that time is because I was really trying to impart in the public. Like we always like, oh, strongly worded letters, big whoop, big deal. But I, we wanted to impart on the public people who don't work in the government, people don't work at Department of Justice or you know, in those areas. How what a big deal it is for a prosecutor to write a letter to the general to say you got it wrong. And Jack Smith is now doing this, but on a, I think on steroids.
- [58:03]
C
Yeah, for sure, for sure. He's going to paper. And it's already had an effect. So.
- [58:10]
B
Yeah, but we keep an eye on this $230 million. But you know, as you noted, Andy, there's no notice or public notification requirements if the payment's approved.
- [58:22]
C
Yeah. So the rule is that the deputy Attorney general, who's Todd Blanche, his former lawyer in the federal cases and the state case in New York, he in his role has the authority to approve settlement. These are, these are federal tort Claims that you file. Before you can file a lawsuit against the government, you have to file one of these claims. It's basically a demand for money for damages that you allege you suffered at the hands of the government.
- [58:51]
B
But they can approve. Todd Blanche can approve those claims prior to a lawsuit, right?
- [58:56]
C
Absolutely, he can approve. It's not a lawsuit yet, despite the characterization that Trump put on it. It's just these federal claims that have been submitted on his behalf for both the Russian investigation conducted by Robert Mueller's team and of course me and my colleagues at the bureau before him, and also the, the search of his, of Mar A Lago. And so he submitted the claims. And after a certain period of time, the claims can be either paid by DOJ or rejected, or they just expire. And, and if they're rejected or they expire, then you are free to file a federal lawsuit. That's how they kind of weed out.
- [59:37]
B
And you have a 90 day permission window to file that lawsuit after you.
- [59:42]
C
So Blanche now has to decide what to do. Now, keep in mind, when he was confirmed, he told the Senate in his sworn testimony that he still maintained a relationship, an attorney client relationship with President Trump. So now a guy who has an attorney client relationship to the president is going to have to decide whether or not to approve the president's demand for 230 million DOL. And if he decides to do so, there's no requirement that the department or Mr. Blanche or the president tell the US people that they have done this. So they might pay him.
- [60:16]
B
Right.
- [60:16]
C
And you might never know.
- [60:18]
B
I don't know. So I think somebody might leak it, I hope. But he, the right thing to do would be for him to immediately. And he should have already done this recuse because he said he's still his personal lawyer. So I can't be the one to decide onto whether to pay these claims or not. Somebody else should decide and then that person should deny these claims and give him a 90 day window to file a lawsuit and then let the courts decide. But Trump isn't going to want this to go to the courts and we'll keep an eye on it. But like you said, we might never know because there's no mechanism for public notification.
- [60:50]
C
That's exactly right.
- [60:51]
B
All right, well, I want to talk about the Jack Smith stuff going to paper, but we got to take one more quick break, so everybody stick around. We'll be right back. All right, everybody. Normally we have listener questions at the end of the show, but there's been so much to report today. Unfortunately, we are not going to have time for Listener Questions, but Andy and I have been discussing having a Nothing But Listener Questions episode as a bonus, not as a replacement to the normal news that we bring you about the Department of Justice every week, but as a full on bonus episode free to the public for you to listen to. That is Nothing But Questions. So in that vein, we would love for you to click on the link in the show notes and submit whatever questions you have because we are going to be putting together that Full Questions bonus episode for you. So send them in to us by clicking the link on the show notes. And we apologize for not being able to get to Listener Questions this week. We love Listener Questions. It's one of our favorite parts about this show. We just had so much to cover this week that we weren't able to get to them in a timely fashion. We're already at an hour in this episode and we still have to talk really quickly about Jack Smith. So let's get to that. Jack Smith has gone to paper. He's defending himself and his investigations in a letter to Chuck Grassley. He says, we write his lawyers. We write on behalf of our client, Jack Smith, in response to concerns raised by you and members of the Senate Judiciary regarding certain investigative steps taken by special counsel in his investigation of Trump's alleged mishandling of classified documents and his role in attempting to overthrow the results of the 2020 election. And I just want to break in here for a second and say he says Trump's alleged mishandling of classified documents, but when he says his role in attempting to overthrow the 2020 election, there's no alleged in that sentence.
- [62:41]
C
I think he was in it.
- [62:42]
B
I think that's interesting. His role in attempting to overthrow the 2020 election. They go on. Although you have not reached out to us to discuss or were compelled to correct inaccurate assertions made by you and others concerning the issuance of a grand jury subpoenaed for the toll records of eight senators and one member of the House. Mr. Smith's actions of special counsel were consistent with the decisions of a prosecutor who has devoted his career to following the facts in the law without fear or favor and without regard for political consequences.
- [63:13]
C
A number of people have falsely stated that Mr. Smith tapped senators phones, spied on their communications, or surveilled their conversations. As you know, toll records merely contain telephonic routing information collected after the calls place, identifying incoming and outgoing call numbers, the time of the calls and their duration. Toll records are historical in nature and do not include the content of calls. Wiretapping, by contrast, involves intercepting, intercepting. I'm sorry, telecommunications in real time, which the Special Counsel's office did not do.
- [63:51]
B
So here's a little lesson for you, which they should already know. It goes on to say, as described by various senators, the toll data collection was narrowly tailored and limited to the four days from January 4th to January 7th during, you know, 2021, with a focus on telephonic activity during a period immediately surrounding the January 6th riots at the Capitol. The subpoena's limited temporal range is consistent with a focused effort to confirm or refute reports by multiple news outlets that during and after January 6th, President Trump and his surrogates attempted to call senators to urge them to delay certification of the 2020 election results. In fact, by the time Mr. Smith's team conducted the toll record analysis, it had been reported that Trump and Rudy Giuliani tried calling senators for that reason, with one senator releasing a voicemail from Mr. Giuliani. It's well established that obtaining telephone toll records pursuant to a subpoena is routine and a lawful investigative step that does not violate an individual's expectation of privacy.
- [64:50]
C
And if that were not enough.
- [64:53]
B
Our.
- [64:54]
C
Friend Jack then gives examples. He basically says, rob her. Got toll records and no one complained. Trump's DOJ got toll records of Congressman Eric Swalwell and Adam Schiff, who's Congressman at that time, and 43 congressional staffers, and no one complained. DOJ got toll records in the Senator Bob Menendez case, and not a peep was heard from anyone in complaint.
- [65:22]
B
We.
- [65:23]
C
He then points out that he, Jack Smith and his team, in the course of the prosecution, gave Trump and Todd Blanche all the toll records they. They had, they had collected two years ago during discovery in those cases. And who complained? No one. That's right. No one said anything. And in fact, he finally points out that he mentioned the collection, the actual toll records, referred to some of those records in the indictment of the President. And there were no motions filed, no complaints, no requests to dismiss on those grounds. Nothing.
- [66:04]
B
Yeah.
- [66:05]
C
So against this backdrop, there is simply no support for FBI Director Patel's recent assertion that Mr. Smith hid the toll record information so that, quote, no one would find it.
- [66:15]
B
It was in the indictment, and you got it in discovery, bro.
- [66:19]
C
And they. Yeah, they handed it to him. Or that Mr. Smith put the toll records in a, quote, lockbox in a vault, and then put that vault in a cyber place where no one can see or search these files.
- [66:34]
B
That's what you did to the perfect phone call to Zielinski, Donald Trump. I just want to throw that out there, by the way. And the system is called the Nice. You could probably just use the name of the code word classified system where you tried. Where Michael Ellis tried to hide that before he made himself CIA general counsel to authorize hits on Venezuela in covert operations. But I digress. I apologize.
- [66:56]
C
I. Yeah, that's okay. So after this quote of Cash Patel's wildly confusing rant, I don't even know how else to describe it. If that were not enough, Mr. Smith goes on to say, it is not clear what cyber place in a vault in a lockbox Director Patel is describing. But Mr. Smith's use of these records is inconsistent with someone who was trying to conceal them. I would suggest that the vault in a lock. I'm sorry, the cyber place in a vault in a lockbox is the turducken of information hiding.
- [67:35]
B
I just. I'm reminded of the movie Hackers where he's on the phone, he's like, remember where I put that thing that time? Yeah, he just got it off the back of. Anyway, just what it was in the indictment. The toll records were handed over to Todd Blanche and Donald Trump himself. Yeah, we didn't try to keep discovery away from the defendant like you're trying to do in the Comey case. It's just bananas.
- [67:57]
C
Gasp Attel that thinks that everything that is new to him is new to the world.
- [68:02]
B
Like the burn bags investigation.
- [68:04]
C
Yeah, exactly. Burn bags where I was going next. Like Cash Patel's like, oh, my God, I just learned about this. It's a new discovery. No, actually, you're just way behind the curve and wildly uninformed. So there's going to be more of these realizations of things that you didn't know about before. Just keep your mouth shut because it makes you look really bad.
- [68:23]
B
Don't show him how to find out the length of a hypotenuse of a triangle using the Pythagorean theorem. He'll blow his mind. I've never seen this. Have you seen this? This? He'll try to indict somebody about. About it. Well, now, get this, Jack Smith wants his congressional testimony to be public, not behind closed doors. So he wrote to Jordan, Jim Jordan, who, by the way, is still in defiance of a subpoena to testify before Congress. And Chuck Grassley, given the many mischaracterizations of Mr. Smith's investigation into Trump's alleged mishandling of classified documents and role in attempting to overturn the results of the 2020 election. Again, not using the word alleged. For January 6th, Mr. Smith respectfully requests the opportunity to testify in open hearings before the House and Senate Judiciary Committees. This is not something we saw from Mueller. Right? This is very different. During the investigation of Trump, Mr. Smith steadfastly adhered to established legal standards and Department of Justice guidelines, consistent with his approach throughout his career as a dedicated public servant. He's prepared to answer questions about special counsel's investigation and prosecution, but requires assurance from the Department of Justice that he will not be punished for doing so. To that end, Mr. Smith needs guidance from the DOJ regarding federal grand jury secrecy requirements, and he needs authorization on the matters he may speak to regarding, among other things, volume two of his final report, which has not been publicly available. In addition, that's the classified documents report that we never got. In addition, to provide full and accurate answers to your questions, Mr. Smith requires access to all of his files, the special counsel files, which he no longer has the ability to access. You got those laying around, right? You haven't burned, bagged those, right? Those are still. So this is fascinating. He's like, you gotta tell me whether or not I can answer volume two questions, talk about what's in volume two, and you got to give me access to all my files if you want me to properly and appropriately answer your questions, because I don't have access to those files anymore. So what this does is it dares them to say you got to keep quiet about volume two, and it dares them to not produce his files to him. Yeah, it's fascinating. It's baller move.
- [70:43]
C
My guess is what they'll do here, I mean, well, I don't know. But one possibility is they'll just ignore this because there's no easy answer to any of this. He's not going to get any of that stuff from doj.
- [70:53]
B
No, he won't. I asked, and I love that he asked.
- [70:58]
C
Yeah, I asked for the same thing. They said absolutely not. The last time I had to testify in front of the Judiciary Committee. So they're not going to do that. And, yeah, I think there's. There's no way for them to conveniently or easily get around this request. None of this stuff is secret. None of it is classified. None of it. It's not sensitive. These cases are dismissed, never to be brought again.
- [71:24]
B
Right, but nobody's actually ruled. The court hasn't ruled that volume two could be released.
- [71:31]
C
Yeah, I mean, they might say that's still sealed. So you can't talk about that, like, what he's asked for is guidance. So they might give him that guidance. No, you can't talk about that. That. But public, a public episode of questioning him, like, that's not going to go well for Chuck Grass.
- [71:51]
B
Anyone but him.
- [71:53]
C
Yeah. I mean, you know, yikes.
- [71:56]
B
It's. I love that he's doing this. I really do. Sure.
- [72:01]
C
Bring it, bring it. I like that he's out and he's talking more and he's, he's clearly very dedicated to this idea of standing up for people who do this work. And I just, you know, obviously I've, I think that's great.
- [72:16]
B
So this is what I wanted to see from Mueller. Right. Like, Mueller went to paper and that was extraordinary. But he didn't want to testify publicly before Congress and when he did, he just said, I take your question. Nope, I can't talk about that. Yes, he can be indicted after he leaves office. No, you know, like, that was the end. Right. Russia's plant plotting against us as we sit here. It's real, you know.
- [72:40]
C
Yeah.
- [72:40]
B
And read my report. It's out. Jack Smith's half of his report isn't out.
- [72:46]
C
Right.
- [72:46]
B
So.
- [72:47]
C
Right.
- [72:47]
B
It'd be interesting to see what comes of this, but I don't think Jim Jordan's going to let him testify in public. I think he's going to keep going at him to subpoena him, get a subpoena, try to keep it behind closed doors and see what happens and see if he can prosecute him for not showing up or for showing up and saying the wrong thing. That's where I see this going.
- [73:05]
C
That's a, that they probably see that as a win. Win. Yeah, but we'll have to see. This one's not over yet, that's for sure.
- [73:13]
B
No, I'm just very grateful that Jack Smith is willing to talk about this stuff publicly.
- [73:18]
C
Yep.
- [73:19]
B
Because even if we get back into office in 2029, I don't think these charges can be brought again unless he can somehow toll the time that Trump was president because he was unindictable because of the statute of limitations. Anyway, we'll see.
- [73:34]
C
Yeah.
- [73:35]
B
All right, thank you so much for listening. Again, we don't have time to get to questions this week, but send us your questions. We've got your questions that we had. We were going to be. We're going to read this week, but we just ran out of time. We've got those. Send us your additional questions. By clicking on the link in the show Notes, we will create an entire questions episode. We've done this before. It'll be a bonus. It won't be in lieu of a regular Sunday episode, you'll question Palooza. Question Palooza again. There's a link in the show notes to submit. Thank you so, so very much for listening, everybody, and we hope you have a safe week ahead. I know the news can be tough. We can get through this together. You can listen to the Daily Beans. You can hear us, me and Dana swear about it if it makes you feel better. But I appreciate, I appreciate everybody listening and wanting to get the, the details and the information and the truth and the facts because they matter now more than ever. So thanks for listening.
- [74:27]
C
Yeah, for sure. Stay informed, stay in the game, stay engaged. And that's the way we all get through this. So thank you once again for listening and we look forward to being right back here again next week.
- [74:39]
B
Yeah, we'll have more motions to talk about. We'll see you then. I've been Allison Gill and I'm Andy McCabe. 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.