I think the episode title might be called like abuse. ; I’m abusing you. I’m abusing you. [laughter] That’s it. I don’t think so. ; Maybe I’m being sensitive. ; Hello everyone and welcome to the illegal news. I’m Sarah Longwell, publisher of The Bull Work. And because I’m definitely not a lawyer, I’m here with my good friend Andrew, who was a DOJ lawyer for more than 20 years and a former general counsel of the FBI.
and now MS Now legal analyst, host of the podcast Main Justice, and he’s got a new book out called Liars Kingdom, which is coming out in less than a month. And Andrew, our teams have been working together to get a discount code for your book for our listeners, cuz we want you guys to, you know, you don’t shouldn’t have to pay full freight for your friend’s book, right? And so, we’ve got a discount code. Everyone, go get it.
But it’s going to be in the show notes of this show. You can go click on that and you’ll get a cheaper version. Uh, okay. And Andrew, we you’ve got a heart out, so we cannot do our normal expansive chitchat. ; So Sarah, so you need to control yourself. You’re going to need to control yourself.
I don’t want to hear any anecdotes. ; I’m the problem. Sure. ; So look, I already see it. I mean, I just Where’s the topics? I I don’t ; I’ve got the topics right here. We can jump right in. ; Yeah. Well, where are they? I don’t see them. ; SPLC indictment. Okay. I want to dive into this. The DOJ has indicted the Southern Poverty Law Center.
Um, I got to say I do from my sort of Republican days. I’ve got kind of a a a slightly negative view of the SPLC in that I often found um I did find their stuff really partisan. I often found that they targeted groups as hate groups that I thought shouldn’t be targeted as hate groups, but also they have sort of routinely uh partnered with the FBI on things.
And so it’s like kind of strange to see the government actually prosecuting them. Um so maybe you can maybe you can like unpack all this for me. ; Sure. Well, let’s just take that for a second, which is you’re like, you know, I don’t necessarily have a great view of them or I don’t agree with everything they’re doing.
and they seem a little partisan. Well, they’re not a government organization. They’re a private organization. They can be partisan. And you know what? ; They’re not a 501c3. ; Well, meaning they Well, I do think there is a 501c3, but if you partisan, like politically partisan, there would be limitations on it. But you can have all sorts of actions that the government itself would not take.
Um, and there are also many organizations where you agree with some of the stuff, you don’t agree with other stuff or you don’t disagree with the wisdom of certain things. Um, this reminds me of when Donald Trump was saying, “Oh, well, you know, this law firm, I found this law firm to be very partisan and it’s really terrible with their proono work.
They’re very partisan.” And I was like, they get to do that. ; Yeah. And I guess I guess that’s what I mean. I mean, I guess I’m saying I I guess I’m just putting my own sort of because I’ll be honest, my my most of my I don’t think about them that much. Don’t know about them like so much. So, I’m sort of putting my my my negative flares normally because they would come up and people would be like they have labeled exgroup a hate group.
Um, and I would be like that’s a perfectly that is not a hate group or like I you know I thought sometimes I would like disagree with how they categorize people. That is different, however, from thinking that they should be prosecuted, which is happening here. And so, what I’m wondering is ; um yeah, are they being is this a is this a specious I’m going after our enemies prosecution or is there some there there just break it down.
; Yeah, absolutely. So, yeah, we sort of got off on a tangent because I know that you have trouble keeping, you know, directly on the on the subject. So, ; that is it’s my it’s a big problem for me. ; It is. I so happy I’m here to keep you sort of [laughter] focused and tethered to reality and to the subject matter.
Um and I’m not going to tell you an anecdote about this. I’m just going to go directly into um so this is one where saying that you may agree or disagree with a particular um organization whether a 501c3 which you’re right the Southern Property Law Center is or not is so different than saying did I think they committed a crime.
And so here’s here’s what the first for the Southern Poverty Law Center. I have a a much more favorable view, but it’s I’m not here to say it doesn’t really matter. That’s sort of like we can take all of our views and put them in a bucket and put them to the side. Let’s just talk about what they were charged with because um although we we don’t know all of the facts that the government has, my intuition and it’s like an educated intuition is that this is the most bogus indictment ever.
Why do I say that? There are two types of charges. The first and main charge is that the Southern Poverty Law Center is an organization that took money from donors and uh they were spending it on something that they shouldn’t be spending it on. That this is an organization that is trying to uh combat uh groups like the KKK and other hate groups and instead they were giving money to hate groups.
And so that is some facial appeal. You’re like, “Wait a second. Why would they be giving money to groups that they um that they say they hated um and they’re they’re against?” That’s sort of one bucket. The other bucket um is a more a smaller part um which is did they did somebody at the organization make false representations to banks when they were opening up bank accounts about the nature of the sort of funding sources that they were using.
Let’s turn to that second. Here’s the problem with the first um bucket of of charges. this idea that donors were misled. One, the FBI itself pays informants all the time um to get information that is out in the wild and from all sorts of groups, right, left, center, doesn’t matter if they think there’s some criminality.
So, they will have informants in organized crime groups, in drug groups. The fact that you are paying informants to get that information does not mean that the FBI is part of that drug organization or organized crime. In fact, their goal is to infiltrate in order to um take them down.
And that is what the Southern Poverty Law Center is saying. What are you talking about? We were paying people to get us information about these organizations that by the way we then gave to the FBI and were giving to we were we were actually um of course we weren’t trying to fment and be part of this group. We were trying to take them down.
But it gets even so that so they’re really sort of separating um sort of giving money but without thinking about well what was the purpose of the money like thinking about what was their goal? Was their goal to further um these hate groups or was it actually to use it as a means to take them down. And the main issue here is what was the false representation to any donor in order to have a crime of the because that’s the the absolute core of this case is that they made false representations to a donor.
You know what is not in this indictment? Any specific statement made to any donor as to how the money would be used. There is no statement that says, “By the way, we are going to tell you our methodology and it will not include this. There’s nothing that is alleged in the indictment about any statement made that is contrary to what happened here.
” That differentiates it. By the way, what let me just say, you would think that they interviewed like a whole ton of donors. You think they might be able to say donor A, B, C, and D said, you know, that this is what was ; I was misled in the following ways. ; They told me X. They told me what you think they would say.
Here’s the um here’s the fundraising brochures. Here’s the fundraising emails. Here’s the fundraising quotes because I mean these organizations, it’s like any organization, there’s tons and tons of fundraising that goes on there. You know how much is cited about what donors were told in writing or orally is nothing. And that is such a huge red flag.
Why is that not in there that there was that specific statement that contrasts this case directly with a case that that listeners and viewers um may remember which is the build the wall case. That was the case where Steve Bannon and others were charged and convicted. Um but there the allegation that was proved was donors were alleged to specifically have been told that money would not be used so for for personal expenses for personal gain.
It would all be going to the um build the wall. and yet in fact the money was being used um contrary to the way that the donors had been told. That is what is missing from this indictment. Huge red flag. ; Huge red flag that it’s for political reasons. Can you just can we just back up because I’m worried maybe we missed a little context.
Uh like so I know that we said they allegedly lied to donors. Um and but like what exactly are they being charged with? So this is wire fraud which is lying to donors. That is this huge main bucket of charges. That’s that’s why I said this first bucket is just wire fraud which is lying to donors. And so guess what you need in in terms of lying to donors and this is donors who feel lied to.
Yeah, they need to have not just feel, they need to show the specific statement. And that the reason I say this is such a red flag is any supervisor in any office in any part of the Department of Justice should be saying, “You want to bring this case? Show me the money.” Essentially, show me what the specific statement is cuz I need to see exactly what they promised and what contrary proof you have.
But what do you make of the idea that um I get it when you say the FBI and other people do this kind of intelligence gathering? I don’t you don’t hear about a lot of nonprofits or maybe you do. Maybe you know this in the FBI that lots of nonprofits are have payment paid informants, undercover agents. Um so it might be unusual but is it illegal? ; It is not illegal um to have a paid informant.
I mean like just just imagine you know there were journalists who I know there are a lot of journalists who don’t do this but a lot of times you would pay a source um now there journalistic ethics about that but the idea of paying um somebody to for information um or to pay an investigator to go out now that I just want to make it clear I am not saying this is a wise thing to do a good thing to do I don’t know enough about the background of this program and the strategy.
I’m that you know this is where I I that’s one where this is we’re we’re coming at this from such different lanes. I come at it as a criminal lawyer. I see a indictment and I’m looking at it going does it support a criminal case? And I’m here to tell you from 20 years as a prosecutor and 10 years as a defense lawyer, this is unbelievably unusual to have an indictment alleging fraud where the fraud is not specifically alleged.
Um the second piece is one where it could be more problematic in my book, which is the false statement to a bank. But again, what’s missing is what is the exact material false statement that was made by somebody at the uh Southern Povert Law Center to the bank. And so that again is something where just because you have a shell company doesn’t mean that you have committed bank fraud or wire fraud. Shell companies.
I mean shell companies exist in every um company you know in America that is of any size there are shell companies. So it has to be more than that and again the red flag to me was I kept on sort of looking for the there there and it is possible um that it’s there but you know this is where the presumption that I would normally say to you which is well we don’t know what the government knows and they may they don’t have to put everything in the indictment all of that is true but this is a speaking indictment they obviously want people to
read this and say the SP PLC, the Southern Poverty Law Center is done something terrible and they usually do want you do want to put your best foot forward and so it’s not too much to ask that you might want to put the actual false statement in the indictment. So given the sort of context of like what we’ve been living through Sarah for, you know, since Trump 2.
0 started and I, you know, obviously was there for a lot of Trump 1.0 I know in terms of, you know, being on the Mueller investigation, I mean, I just don’t have that presumption anymore of thinking, oh, well, it’s possible they they still have that in the back room and it’s they’re going to bring it out.
It’s like to me, I read this and I thought, this is unbelievable. You’re taking a group that um is highly identified with um helping members of the black and brown community in an in a administration that I think is highly racist in its policies. Again, I’m just expressing my personal take on what is happening. ; Oh, you got my agreement there.
This is targeting a group that just even if you disagree with some of their policies recently, I mean, the history of this group is incredible in terms of what they did during the civil rights movement and how much they advanced that cause in really impressive ways. And so if before you would indict a company, a organization like this, I mean, you would really really want to make sure that you have the goods.
And I I don’t see that in in this indictment. ; Yeah. So, just to go back to the other last detail on this, because the indictment focuses a lot on the informants opening bank accounts under the names of fake entities so they could covertly receive funding from SPLC for their services, right? So they could go do the informing stuff.
Is that illegal at all? ; It it depends what was said to the banks and whether it was material. ; I see. Just again this idea where you’re going, “Oh, it’s a fake company. I don’t know what that means in this context. You can have a shell company. You can create an actual company and as long as the paperwork it can it can list here’s the name of the company, here’s the address.
; It doesn’t have to be a shell company. It could just be a personal LLC, right? It can just be like this is my personal LLC and it’s called ; game theory 101 and like that’s what takes it in. So it’s not ; Exactly. It’s not It’s not Exactly. It’s like instead of calling it Sarah Longwell’s personal company, it’s called SL company.
It’s called, you know, Bull Company, whatever. I mean that the devil’s in the Yeah. [laughter] ; Why didn’t I call it Bull Company? Sarah, could we please not diagnose? I’m staying focused. ; I’m just ; Sorry. Jeez. ; No laughing this week. ; So, again, that it leads to um a way of talking about this that ignores what happens in the real world in companies and 501c3s um that the government itself does.
And I do think it’s really important because the government wants to say just because you are paying money to an informant, suddenly you are a conspirator with um these groups as opposed to undermining them. I mean just let’s just back up. Does anyone in their right mind think that the Southern Poverty Law Center is trying to promote the KKK? Like that they’re doing this because they want they they want racism to succeed.
That’s [laughter] the theory. Wait, that is the theory. This is Todd Blanch. This is Todd Blanch’s race to the bottom cuz it’s like me me. I can I need to be the attorney general and you’re going to I think you are going to see this like like people just going I can outdo that. I can I can bring something even more outrageous.
; Yeah. But I guess the thing that does surprise me is that my understanding though is that the SPLC often partners with the FBI. Like until pretty recently it was partnered with the FBI so that they could share information in terms of what they were uncovering. ; Yes. And Cash Patel stopped that. And you know what that means? That means that Cash Patel knows that’s what they were doing.
So where’s the fraud now, [laughter] ; right? I mean ; where’s the fraud now, Cash Patel? Uh interestingly it could be coming from inside the house. I’m going to use this as a transition because speaking of Cash Patel, let’s talk about his defamation suit against The Atlantic for $250 million. ; By the way, I think that showed great restraint that he did not follow the Trump model of starting with a B like it’s, you know, he kept it in the M, you know, the million, ; just a cool 250 million.
; Don’t you think admirable restraint on the part of the FBI director? ; Yeah. Well, when I think of Cash Patel, I think of restraint. Good judgment. Uh, yeah, ; this is this, by the way, Cash Patel. It’s like, you know, it’s like it’s like exact name fits because this is like 250 million Cash Patel, right? ; Yeah.
; Okay. So he has brought this lawsuit against The Atlantic for the Atlantic’s story that basically well it covered Cash Patel saying it’s not true. You do have the story that basically does let’s just say it’s not flattering. ; It’s not flattering. Maybe accurate but not flattering. ; Exactly.
I mean it basically has him being missing in action. it reports uh that they have sources that say he drinks to excess and and lots of of details. Again, Cash Patel denies it. And so he has brought this lawsuit in Washington DC before federal judge EMTT Sullivan. Um and um he is saying this is false. In order to prove defamation, he will have to prove not only that it’s false, but because Cash Patel is what’s known as a public figure, he has to show what’s called actual malice.
Um, and that is that in sort of a nutshell that The Atlantic published this knowing or in reckless disregard of the truth. In other words, that they either just sat around and said, “We’re going to publish this even though we know it’s not true,” or recklessly disregarding it. I am confident that the Atlantic um went back to all of their sources.
You know, they put in Cash Patel’s denial. Um this is the kind of story that, you know, we’re not talking about like I mean, I don’t mean to denigrate them, but like the Drudge Report. Um this is um you know, this is the Atlantic. Um, so there will this is a reputable institution. So I have a theory as to what they should do.
; Hit me. ; They should show up in court and I know let me just say the normal thing is you file a motion that says dismiss the case because you haven’t pled it because treated as a defense because of a whole variety of the kinds of defenses that you can raise to try and get rid of the case pre-trial.
I think because The Atlantic is a news paper, it is in the journalist business, ; they should say, “We want an immediate trial.” ; H ; they should I think they should just go ; get it all out there ; to trial. They should say, “Cash Patel, you I think there’s a whole I have a whole theory about why I think Cash Patel filed this lawsuit.
” They’re like, “You want to deny this? Let’s go.” You yourself have a theory about why he filed it. ; Yes. But I think I I do think there should just like let’s just get a trial. Like let’s let Cash Patel testify. Let’s do discovery. Let’s get it out there. ; And let’s Exactly. Let’s let’s I mean I think discovery should be like shortcircuited and you should get to you have maybe minimal depositions like that’s like interviews of people under oath but like they should just push immediately to trial and say you know what cuz I do you think Cash Patel wants
to do that? No. ; No. ; And but you know what would be great for the American public is to see this. ; I love this idea. This is call their bluff. It’s a pain for the Atlantic, but let’s do it. ; That’s my view. I know. I know there are many, many arguments in the conservative legal view, probably the traditional legal view, or maybe some people listening to this would say the sane legal view is to do the normal course.
But I do think if you’re a journalist and you have, you know, you just have a dead to rights case and you’re in a case where it’s before Judge Sullivan, who’s a terrific experienced judge, you’re in Washington DC, um, where I think the jurors have like a very good [ __ ] meter. Um, I just think this is one where you want to pretend this didn’t happen.
This is what The Atlantic would say. You want to pretend this didn’t happen? Great. Bring it on. Let’s go to court. Um, let’s see what and let’s see what Cash Patel does in that situation. And here’s my theory about why I think he brought this. It could be wrong and it but it’s my I think he has an audience of one right now which ; Yeah. He’s in the doghouse.
He’s trying to look the medium hates me too and Exactly. ; I know how to fight back like you. ; Exactly. And he’s thinking, you know, he can see Christy Gnome. He can see um uh what what’s her name? The woman who used to be the attorney general, [laughter] right? Oh, yeah. that her so he can see like it’s not like his he’s sitting there going I’m like you know the Donald Trump is backing me to the hilt.
Um you know he’s sitting there going I’m on thin ice and he I need to show this isn’t true and I’m a fighter. ; Yeah. I mean, I gotta say this, I highly recommend this Atlantic story because the best part of it is how it opens, which is that Cash Patel can’t get into his official computer. And so, he thinks he’s been fired because that’s how ; hysterical ; this idea and it turns out it’s just like it was a glitch in the system, but he’s like, “Oh no, he’s checking Twitter.
Have I have I checking Truth Social to me? Have I have I been fired via tweet?” Because this guy knows he’s on thin ice. I think your theory uh would hold up. I think I think that’s a strong theory that Cash Patel’s lawsuit is to be like, “Let me show daddy that I can be just like him and that I can fight back against the fake news media, but I love the idea of them going and getting in there.
” Because though my only question about it, I don’t know, I don’t want to get bogged down in details that derail us, but wouldn’t they have to ; now you care about that? [laughter] You know, I think I’m having a good effect on you. I’m keeping ; Yes, you are. You’re really keeping me focused here. I don’t sense you’re saying that with the requisite level of your sincerity.
; Yeah. ; Do you want you want to try another You want to try another reading of that that another line reading of that? ; No. Of the two of us, I’ve just I do think one of us likes to talk. One of us likes to story tell. Look, we both do it, but one of us likes to do on the podcast slightly more than the other.
And it ain’t me, Buster. [laughter] ; You know, I get invited on and and and abused. It’s like you really do have to question my w Yeah. Like what’s going on? Like why would I do this? It’s like it’s like come on, I get abused. Okay. Anyway, it look Sarah, can we move on? I mean, I thought you had some I thought you had some point you wanted to make.
; My point is, do you do you have to have the your confidential sources testify in a case like that? ; Um, so the answer is there. No, you do not. Um, it is possible that that sources would change their mind and would agree to do it or would give permission to have their name be used. Um, but you do not have to do it.
I mean, Cash Patel might might try to get that information, but um there is a reporter’s privilege um that can be honored. They’re in front of an extremely good judge to say like, you know, why do you need that? Because let’s just remember the issue here for Cash Patel is he has to show actual uh malice and and so it would be really hard to show that but because um if you have a whole host of um people telling you this um he’s going to have to show that like the the that none of them should be believed. But yes, that could
be a fight about you know the identities certain identities etc. But I think the bigger issue is if you bring a lawsuit as a plaintiff, do you know what the plaintiff has to do? They have to testify and they have to testify under oath. So it’s one thing for Cash Patel to bring a lawsuit and say, “I didn’t do it.
” But he’s going to have to say that in a forum where there can be repercussions to him. And just I know some people are thinking but who’s going to ever prosecute him for it? Um and he could always get a pardon but federally. There’s all sorts of answers to that both in terms of um state repercussions and civil repercussions neither of which can be covered by a federal pardon.
And that’s one where you know again if I were if I had a strong case it’s like bring it on. You You think I’m You think I did this falsely? You say this is not true. You okay? You’re saying it’s a he said she said. I got a lot of he and she’s behind me and let’s see where it goes. ; Yeah.
You know, the other thing just to go with your theory or not to expand on a little bit is I bet Cash he’s got he’s paranoid from both sides, right? Because he needs Trump to back him. But on the other side, those sources are from inside the house. Those are people with eyes on him who are in the FBI and so they may not want to testify but also he knows a lot of people have seen some stuff and so right and also the like the FBI at the end of the day they’re called they’re going to say like it’s the I mean like these people are going to they’re not going to lie. Um I’m not
saying every single one of them I can’t I don’t know who they are but I mean that’s not their training. Um so um this is one where yes he this lawsuit I’m sure has is a way of trying to sort of is a brushback pitch so that like more leakers and more stories don’t come out. So it’s like saying hey if you do this I can sue you.
But this is that’s one more reason that if I’m sort of at a reputable paper it’s like you know what you you say it’s not true let’s go. I did this, by the way. I Well, I was going to tell an anecdote, but I realized I’m gonna control myself. ; Honestly, Andrew, we’re doing really well on time. If you want, you can have one small anecdote.
; Mm- No. ; Okay. All right. All right. We’ll see if we have time at the end. We just hold on to your anecdote. If we have time at the end, we’ll do it. We’re trying to get It’s for you. ; No, I don’t think I’m going to do it. ; You can’t. I love that you’re like denying us anecdotes now. It’s like, [laughter] okay.
; And by the way, and Sarah, it was a really good one. ; [laughter] ; Oh man, you’re just like the audience is going to revolt. ; I know. I actually think you’re you’re probably like you’re probably like this is it. Like you know what? [laughter] We’re done. ; No. Are you kidding? Listen, I like the when we have the anecdotes.
I’m doing this cuz we got to get you out of here. Uh I would sit here all day uh and just do anecdote after anecdote. I’m going to tell your producers I need to I need them to send me that little clip of you saying I would sit here all day in response to my [laughter] anecdotes because you’re going to be you’re going to later be like why the hell did I say that? ; Well, you should do what my people in my office do is when I say something on the record they turn it into their ringtones for me. Like they take the clips and
when I’m calling it’s like some weird thing I’ve said about them that suddenly pops up. Uh you can you can do put that as my ringtone for you. ; I love it. I love it. ; Yeah, hot tip. All right, let’s talk about the DOJ’s latest round of firings. But before we do that, we’re gonna hear from our sponsor really quick.
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Cool name, guys. Which focused on the Biden administration’s purported weaponization of the freedom of access to clinical entrances or face act. And along with publishing the report, the DOJ fired a handful of prosecutors who litigated the Face Act and the FACE Act cases that were related to them. Can you just break this down for us? Like what’s going on here and why do we care? ; One thing I do have to give a pitch and it’s going to seem like it’s self-promotional and it’s not.
Um, if you ; I’ll be the judge. If you really really want a treat, the first segment of the podcast that I do with Mariam McCord this week, it dropped on Tuesday of it’s the uh main justice podcast. The first um we do we sort of divide it into thirds. Um and we get right to business Sarah.
We don’t because you’re not on Noe. You’re not on it. So we get right we don’t have that problem. No distractions and none. But just to be serious, we interview one of the uh DOJ attorneys who was fired and it is it is a spectacular interview because she is such a wonderful wonderful person, lawyer. Um, it is so moving how she describes what she’s done in her career and I would just say stay to the end when she talks about why she did the interview, why she thinks it’s important to speak out.
It it was I mean she had Mary and me speechless and like tearing up. So it is terrific. So here’s what the government is saying. This administration is saying that um under the Biden administration and prior administrations, the FACE act was used to prosecute uh unfairly religious groups and um disfavored groups. um and disproportionate sentences were sought and imposed by judges around the country um because these people were just standing up for I’m going to sort of hyperbole here for their first amendment rights to just peacefully protest um
outside of abortion clinics and healthc care clinics. Um, of course, the face act um by requires that there be not just first amendment activity that can’t be prosecuted at all, but see six members of Congress who this administration tried to indict for that exactly that um it requires there there be obstruction andor violence outside of um these places and in fact that’s in what happened.
So the the story though gets worse. The woman who we interviewed, she had never prosecuted a Face Act case at all. She was a local federal prosecutor who had years and years of experience um in the Detroit area. She had been the lead prosecutor in the Gretchen Whitmer um kidnapping scheme. uh she just shortly before this face act case was going to trial, she was brought in because she has lots of trial experience and she said I had to look up what the face act was.
So what she did is she ; um was assigned by a supervisor to a case. She could have been fired if she said no to that. So she does the case. ; Guess what? they get a conviction, meaning that all of the defendants were convicted um beyond a reasonable doubt by a unanimous jury. Um all of them were pardoned by Donald Trump in spite of the conviction, in spite of the fact that all she did was work on a case that she was told to work on that was a righteous case that the jury obviously agreed with with um the government here. and she
receives a letter from Todd Blanch that just says out of the blue with zero notice, no due process, no opportunity be heard, that just says you’re fired. Um, and it’s what’s what the so-called article 2 letter, meaning that the president can do whatever he wants, civil service doesn’t matter. You’re fired.
She told a very interesting anecdote um that unlike my anecdotes was actually short and to the point and relevant. Um I like Sarah how you didn’t even no laugh there cuz you’re like that’s true. Um she she told this really terrific. She goes so this is I get fired for accepting an assignment from a supervisor.
She says last November, Todd Blanch is visiting various US attorney’s offices. Um, she has to go to the meeting which he has with her US attorney’s office where he says to all of them, I know you may or may not agree with everything that this administration does, but your obligation when you get assigned a case is to zealously advocate um that position. And she’s like, great.
So that’s what I did. I got assigned a case. I zealously advocate that that’s what you wanted me to do. And now I get a letter saying after years and years and years of experience, she’s sumearily fired. And that to me, everything about this is like a perfect embodiment of what is happening not just at the Department of Justice but like in this country under this executive.
Um it it just exemplifies in so many ways the cruelty and injustice that we are seeing and this is just a microcosm. I I guess I I don’t want to preempt I I will go listen to the whole thing uh on the the main justice podcast. Um, but I guess look, this is happening all over the Department of Justice because sometimes I hear things like this and my thought is that what we would have said 10 years ago, maybe even much more recently than that, is that if something like this happened, will there be a revolt like inside DOJ or in the country like in the
legal community? And is it just she’s summarily fired and that’s it? There’s no one that stands up for her. There’s no one that says anything. It’s just the way things are now. I don’t know what what do we do about this? ; There are a number of things. One, the big main issue that is up in the Supreme Court is whether the civil service rules will actually exist or whether they’re going to get thrown out as part of the unitary executive.
Meaning that Congress doesn’t have the ability to say before you fire certain people in the executive branch, you have to give a reason. There has to be cause. that issue is now up in the Supreme Court. Everyone thinks that when it comes to the Federal Reserve, they will say that that it’s unique and there does have to be cause, but it’s not at all clear how they will approach um all the other types of institutions and people.
That’s sort of that’s sort of thing one. Um thing too is that a lot of these people are suing um and they can sue in something called the merit system protection board which has been gutted by the Trump administration. So there lots of issues about being able to even get through the sort of administrative process. Some people are suing in federal court.
Um but again there are a lot of hurdles and then there’s the issue of of what is happening at the department and there just remember the leadership is um almost exclusively put been put in by the by the Trump administration. So these are people where they’re the number one criteria is is by all accounts loyalty.
Um, so you’re not seeing a US attorney stand up and say, “Wait a second. This is unfair. Don’t do it.” Which is what they should be doing because they took an oath of office to the Constitution. They should be standing up for their people. And it’s complicated about the lower level people because I’m very torn about what the right thing is to do because I want good people to still be there.
Um, and I don’t want them to all leave. I I want the people who have morals and take the oath of office to and and adhere to it to be there. Obviously, if they’re asked to do something that is unethical or illegal, they have they have to refuse and they may get fired. I mean, they that’s there’s no question. But if you’re not in that situation, I don’t know that I want them to speak up and get fired because that means we’re going to be left with only um the sort of people who are oper.
; Yeah. I don’t know. This sounds like a conversation like JVL and I would wrestle with. But I guess there’s the part of me that thinks, yeah, but by walking out and I wouldn’t have said this the first time. I would have taken what you just said the very the first Trump term and I would have been like 100% with you. this second time.
There’s part of me that’s like, why don’t you grind the whole thing to a halt? Why don’t you have a mass walk out? Like ; the public integrity section is is a tiny tiny tiny fraction of itself. The Civil Rights Division is a tiny fraction. um the Minnesota US Attorney’s Office that happened, the Eastern District of Virginia.
In other words, one of the reasons that I think you and I were on talking about um Chad Miselle, who used to be the chief of staff to Pam Bondi, having to send out a social media tweet saying, “Hey, we’re hiring.” Like, well, essentially, like, are you on the street and do you have a heart? Like, if I put a mirror under your nose and and it the the mirror fogs, you’re hired.
I mean, but that’s so unheard of. The Department of Justice used to be it used to be impossible to get a job. Everyone gave gave their sort of it to be able to be hired there. So, what I would say is that we are seeing that um and in some ways uh yes, it’s not like on mass like everybody um leaves, but it there’s so much crippling because of the combination of people leaving and people being fired.
; Yeah. I mean, I guess that’s part of it is like if you’re gonna leave or you’re gonna get fired, like why not do it and mass and noisy and like send a signal because every these getting picked off in the ones and twoosies or people getting fired like they’re getting lost, you know, in terms of sending up a flare to the American people that all is not well.
Um, and obviously people know all is not well, but I it’s hard to get them to care about the process stuff at all. ; No, when it’s drip drip drip. I I hear you. It’s just hard because like you know that would take an extreme amount of organization. It there is a reality to um there’s a reality to people who are there trying to do the right thing.
Uh I I just think it is complicated. I mean I agree with you if there was a way to somehow have that and it would make a difference. But isn’t some of that problem on our not listening ; or not sustained listening? Right. It’s like you only have so much time to talk and there’s so much chaos. This is one of Trump’s things, right? When there’s so much chaos, it makes it difficult to drill down into everything.
; So, here’s a good example of what you’re saying. How many people from the Eastern District of Virginia US Attorney’s Office, the career people in that office were on the James Comey prosecution? ; I don’t know. ; Zero. ; Zero. ; They They did. When people say, “Why didn’t they do something?” Listen. zero. None of them would do it.
And yet they stayed in place except you know the ones who were fired so that there were people of integrity there. It’s not as resounding in terms of it’s like we’re going on air and we’re saying this but they were it was screaming we are not doing this. I mean, even to his credit, the Trump appointed US attorney would not sign off on uh the James Comey andor the Leticia James case and was was he said resigned that Trump says fired for it doesn’t really matter.
It’s like he wasn’t willing to do it and he lost his job for it. What’s sort of unbelievable is this this does not happen. It’s like any one of these doesn’t happen in any other administration. I mean, you just don’t hear of it. I mean, this is one where it has absolutely nothing to do with politics.
Having served in Republican and Democratic DOJs, you know, with presidents all over the place, it just doesn’t happen. So, this is it’s so unusual. But anyway, I really do want to make a pitch for listening to this. And it’s not because Barry and I are doing it. It’s not because it’s on main Justice. It is really just this woman is terrific.
It is a really important story as you’re saying. It’s one where we can listen and learn from it. ; Love that. Highly recommend. Okay. I want to stay with the DOJ. Uh but I want to talk about the DOJ in court now because there’s a couple cases I want to ask about before we get out of here. So the first one is this judge Meta who sits on the federal district court in DC.
So he ruled against the administration this week in a civil case related to January 6th and I think related to whether or not the president can be civily liable to police officers who were harmed on January 6th. And so as I understand it uh Judge Meta’s ruling and the case generally largely relates to the Supreme Court’s ruling about presidential immunity and whether Trump was acting within his official capacity on January 6th. I did.
George and I talked a lot about this at the time. Like, is that right? And what did Judge Midas say about presidential immunity because I assume this has maybe broader implications. ; George True. [laughter] ; Yeah. We don’t even name him on this podcast now. ; It’s like it’s like uh Voldemort. [laughter] ; He who must not be named. I miss George.
I But but I amum. Yeah. [laughter] ; But I love doing this with you. What I like is you’re sitting there going, “Every time I do this program with you, I miss George.” That’s That’s [laughter] what I’m hearing. It’s like I think the episode title might be called like abuse. ; I’m abusing you.
I’m abusing [laughter] you. That’s it. I don’t think so. ; Maybe I’m being sensitive. Anyway, um this is a really interesting case and yes, you’re absolutely right that it does relate to the Trump versus United States presidential immunity case. Um as everyone knows from uh the great George Conway um that case it was in a criminal context but the court said that when the president is acting in his official capacity broadly defined that he is entitled to um to at least um presumptive immunity where it’s very very hard to rebut that presumption.
It’s so hard that it’s almost in a lot of people that said it’s almost irrebutable. Um, and if he’s acting in something that’s core to the that the constitution is delegated just to him, he’s definitely entitled to absolute immunity. But the key there is to have any form of immunity. It has to be something that is within sort of a presidential function.
if he is acting um in his personal capacity, you know, he’s talking to his children and you know, he’s going on vacation or whatever he’s doing like he’s personally investing in something. Uh that is or to take an example of something he has been found liable for. if he is sexually assaulting Eugene Carol. That is not something which I’m saying because by the way two juries um had found against him in two separate lawsuits that she had brought.
So that’s something that is in his personal capacity and if it’s in his personal capacity there is no immunity. And what the court did there is they sent that case back to Judge Chuckkin who had the criminal case at the trial level and said, “We’re going to leave to you sorting out um in this uh Jack Smith criminal indictment what is official and what is not official.
” Um, and this is where in many ways the decision was not six to three, it was 5 to4 because Amy Coney Barrett in a concurrence said, “Just to be clear, when you’re when the allegations that you were tinkering with the Georgia election and and fake electors, um, she’s like, “Sometimes whether something’s official or something’s um not official could be a hard question.
” She goes, “Not that one.” And by the way, that’s I’m not directly quoting her, but I’m it’s pretty darn close to what she said. She’s like, “That’s an easy one.” Um, and here’s the thing. You can be president, but if you are running for reelection, um, the court has to sort of disentangle this because it’s not like you’re just a candidate.
You’re a candidate, but you’re also the president. So, you need to figure out in which capacity are you acting? Well, we all know that the criminal case um got canned because once um Trump was elected, Jack Smith knows that the Department of Justice policies that you can’t go forward with a case against criminal case against the president.
But this was a civil case um brought by uh Capitol police and um it was brought against Donald Trump and others for damages for what happened on January 6. And so Donald Trump said, “I am immune because this is all stuff that happened um when um I was acting as president and I in all of these different ways I was acting as the president, not in my personal capacity.
” And there’s there is civil law that’s like the Trump versus United States criminal immunity case that also says there’s civil immunity but it’s the same kind of law which is you look to see what’s the capacity and judge ma essentially did the work that Judge Chucken was asked to do um but didn’t ever have the opportunity to do which was parsing out if you look at what happened on January 6 in the leadup to the to January 6 was the president acting as a candidate.
And guess what? ; This is one where Yes. And this is one where, you know, I am giving you all of this the I give you all of the legal context, but this is one where at the end of the day, it’s kind of common sense. I mean, of course, he was acting as a candidate because it’s like he wanted to stay in office. And he was doing this not because he cared as president about what could be fraud in the election.
he was being dispassionate about which way the fraud could go and you know by the way if if the fraud you know was one that really hurt um Joe Biden that would be terrible. I mean everything was about keep you know being in office and so that judge ma went through all of the different parts of the allegations occasionally um ruled in in Donald Trump’s favor and said that uh his interactions with the department of justice um were could be viewed as as something that was presidential and not as a candidate.
But the vast majority of what he said was that it goes forward and that it is not subject to immunity and that Donald Trump could raise that again at trial, but he let the case go forward. So, this was a huge win for the plaintiffs. Um, and you know, is a nice sort of footnote sort of as you know, being a legal nerd, it’s a nice footnote to what I think was a horrendous Supreme Court case um on presidential immunity to see that as applied.
No, no, no. What what the what was going on on January 6 and leading up to it is not subject to immunity. And we only have a few minutes before we have to get out of here, but just really quickly, one of the things that stuck out to me about this case, uh, was that Trump has somehow tried to find a way to get the DOJ to be on the hook for this.
So, if it doesn’t go his way, he’s going to have the DOJ pay the legal ramifications, which means that we’re paying for it. So, like, if he’s found guilty and he gets the DOJ to have to pay them, the American taxpayers on the hook for it. like feels like this is a what what is is that possible? ; Yeah.
So this is this Westfall act just to be clear that’s happening already. I mean we we have talked about the fact that Michael Flynn was um there was a quote settlement of $1.25 million I think even though he had pleaded guilty. Um and admittedly he sought to have his plea back, but I mean he said he was guilty. Um and yet um the government fights these these types of allegations all the time. $1.
25 million of our taxpayer money is being given to him. Uh the government just announced in some filing that they have reached a settlement um and I assume it’s going to be for a comparable amount with Carter Page. And so we know Donald Trump has a lawsuit um also um a quote against the Department of Justice, but this is just a giveaway and we may not know until the next administration just how much money is being funneled out the door.
Um which is it’s so um it’s so collusive um to see that when you know Donald Trump is on both sides of the litigation. Okay, we’re going to have to leave it there. There was a Judge Boseberg Venezuela section that we’re just going to have to skip, but that’s okay. We’ll get to it next time.
Andrew Weissman, I got to tell you, I miss the anecdotes. I like it better when we do anecdotes. Okay. ; I was waiting for you to I guess you don’t have any anecdotes. ; Oh, I’m swimming in anecdotes, bro. I’m an ane Come on. I am an anecdote queen over here. Uh, let me tell you a quick anecdote. Okay, guys. I just want to do a shout out.
Okay, ; I’m on the internet. The internet’s terrible. Uh, it’s a Twitter’s a sewer of political discourse where, you know, everybody’s yelling about what should be done. And then, but let me tell you what happens that makes me feel good. Every morning I drive down uh Connecticut Avenue and there has been this growing group of people, many of them I think uh retired, but they stand out there with signs and it’s been getting bigger and bigger.
They stand out there with signs and they’re all like about how we’re going to fight for democracy, how we need to get rid of ICE. And it’s just like it makes me so happy when I see them and you know I’m like honking and this time I like kind of got close to them and like leaned toward them and like waved and some of them like recognized me.
But then as I I kind of got past them and like a few seconds later I hear like a wrap on the window uh and I like jump because it was whatever and I turn look and it’s this woman. I roll down the window and she’s like, “Oh, I should have given you a donut. Like, it’s nice to see you.” Whatever. And I was just like, “You guys are everything.
You’re my inspiration every day.” Like, and I can’t tell you how much watching it grow in real time. I don’t know. It’s I just wanted to say shout out to all of you who stand out there every day um trying to make a difference in your way. ; This is something Eric Haldder has said, which is, you know, we’re not this is and I felt this, you know, because I work for Robert Mueller.
The savior is going to be us. It’s going to be the people. Um, and I know this is like something your book is is about, which we not have not talked about, but your book talks about this, but it’s ; voters are the problem, but they’re also the solution. ; Exactly. And so for people who are listening to this, I cannot tell you how much like this is where the action has to be.
Um, and it’s not like yet we have obviously some great role models um, especially in court, but this is one where um, you know, we have tons of district judges doing their thing. We do not see it in Congress, but the really important thing is for people to be engaged. Hard agree. Okay, Andrew, we’ll get you out of here on time.
All of you, thanks for listening to another episode of Illegal News. I promise the next time Andrew is back, we will be anecdote, full anecdote mode, okay? We’ll do way more way more chitchat and banter. Um, but thanks for listening everyone. We’ll be back soon. Andrew, thanks to you for explaining all the illegal news to us.
Guys, don’t forget to rate, review us, and subscribe. See you later. A reminder to our listeners to buy your book, Liars Kingdom, and use the discount code in the show notes. I also want to remind everyone to come out to our live shows next month. We’re going to be in California. We’re going to be in San Diego’s uh Balboa Theater on May 20th and the Novo in Los Angeles on May 21st.
I’m going to be there with Tim and Sam Stein. So, go get your tickets at the bullwork.com/events. Don’t miss it. Tickets are selling fast. Go get yours now.
