transcript

Speaker 1:
[00:00] I think the episode title might be called like, abuse.

Speaker 2:
[00:03] I'm abusing you? I'm abusing you? That's it? I don't think so.

Speaker 1:
[00:08] Maybe I'm being sensitive.

Speaker 2:
[00:14] Hello, everyone, and welcome to The Illegal News. I'm Sarah Longwell, publisher of The Bulwark, 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 MSNL Legal Analyst, host of the podcast, Main Justice, and he's got a new book out called Liar's Kingdom, which is coming out in less than a month. Andrew, our teams have been working together to get a discount code for your book, for our listeners, because we want you guys to, you shouldn't have to pay full freight for your friend's book.

Speaker 1:
[00:48] I love it.

Speaker 2:
[00:49] 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. Okay, Andrew, you've got a hard out, so we cannot do our normal, expansive chit chat.

Speaker 1:
[01:05] So Sarah, so you need to control yourself. You're going to need to control yourself. I don't want to hear any anecdotes.

Speaker 2:
[01:13] I'm the problem. Sure.

Speaker 1:
[01:15] Look, I already see it. I mean, where's the topics?

Speaker 2:
[01:19] I've got the topics right here. We can jump right in.

Speaker 1:
[01:21] Well, where are they? I don't see them.

Speaker 2:
[01:24] SPLC indictment. Okay. I want to dive into this. The DOJ has indicted the Southern Poverty Law Center. I got to say, I do from my sort of Republican days, I've got kind of a slightly negative view of the SPLC in that I often found, 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 partnered with the FBI on things. And so it's kind of strange to see the government actually prosecuting them. So maybe you can unpack all this for me.

Speaker 1:
[02:07] 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. So 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?

Speaker 2:
[02:26] They're not a 501c3?

Speaker 1:
[02:28] Well, I do think there is a 501c3, but if you were 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. 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. 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 pro bono work. They're very partisan. And I was like, they get to do that.

Speaker 2:
[03:04] Yeah. And I guess, I guess that's what I mean. I mean, I guess I'm saying, I guess I'm just putting my own sort of, because I'll be honest, 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 negative flares normally because they would come up and people would be like, they have labeled X group a hate group. And I would be like, that's a perfectly, that is not a hate group. Or like, I thought sometimes I would 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, are they being, is this a specious, I'm going after our enemy's prosecution, or is there some there, there, just break it down?

Speaker 1:
[03:47] Yeah, absolutely. So yeah, we sort of got off on a tangent because I know that you have trouble keeping directly on the subject.

Speaker 2:
[03:55] That is, it's my, it's a big problem for me.

Speaker 1:
[03:57] It is. I'm so happy I'm here to keep you sort of focused and tethered to reality, into the subject matter. And I'm not going to tell you an anecdote about this. I'm just going to go directly into. So this is one where saying that you may agree or disagree with a particular organization, whether a 501c3, which you're right, the Southern Poverty 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, the Southern Poverty Law Center, I have a much more favorable view, but 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, 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 they were spending it on something that they shouldn't be spending it on. That this is an organization that is trying to combat groups like the KKK and other hate groups, and instead they were giving money to hate groups. And so that has some facial appeal. You're like, wait a second, why would they be giving money to groups that they say they hated? And they're against. That's sort of one bucket. The other bucket is a smaller part, which is 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 bucket of charges, this idea that donors were misled. One, the FBI itself pays informants all the time to get information that is out in the wild and from all sorts of groups, right, left, center. It 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 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 we're giving to, we were actually, of course, we weren't trying to foment and be part of this group. We were trying to take them down. But it gets even, so they're really sort of separating, 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 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 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, 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 that this is what was said to me.

Speaker 2:
[08:37] I was misled in the following ways.

Speaker 1:
[08:38] They told me X, they told me what. You think they would say, here's the fundraising brochures, here's the fundraising emails, here's the fundraising quotes, because these are organizations, it's like any organization, there's tons and tons of fundraising that goes on. You know how much is cited about what donors were told in writing or orally? Is nothing. 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 listeners and viewers may remember, which is the build the wall case. That was the case where Steve Bannon and others were charged, and convicted, but there the allegation that was proved was donors were alleged to specifically have been told that money would not be used. So for personal expenses, for personal gain, it would all be going to the build the wall. Yet, in fact, the money was being used contrary to the way that the donors had been told. That is what is missing from this indictment. Huge red flag.

Speaker 2:
[09:58] Huge red flag that it's for political reasons. Can you just, can we just back up? Because I'm worried maybe we mixed a little context. Like, so I know that we said they allegedly lied to donors. And but like, what exactly are they being charged with?

Speaker 1:
[10:14] So this is wire fraud, which is lying to donors. That is this huge main bucket of charges. That's why I said this first bucket is just wire fraud, which is lying to donors. And so guess what you need in terms of lying to donors? And this is not complicated.

Speaker 2:
[10:33] Donors who feel lied to.

Speaker 1:
[10:35] They need to have, not just feel, they need to show what is this specific statement. And 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 because I need to see exactly what they promised and what contrary proof you have.

Speaker 2:
[11:04] But what do you make of the idea that, I get it when you say the FBI and other people do this kind of intelligence gathering. You don't hear about a lot of non-profits, or maybe you do. Maybe you know this in the FBI that lots of non-profits have paid informants, undercover agents. So it might be unusual, but is it illegal?

Speaker 1:
[11:24] It is not illegal to have a paid informant. I mean, just imagine 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. Now, there are journalistic ethics about that, but the idea of paying somebody for information or to pay an investigator to go out. Now, 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. That's one where we're coming at this from such different lanes. When I come at it, as a criminal lawyer, I see an 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. 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 Southern Poverty 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 exist in every company 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 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 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 SPLC, the Southern Poverty Law Center, has done something terrible. And they usually 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 what we've been living through, Sarah, since Trump 2.0 started, and I obviously was there for a lot of Trump 1.0 in terms of being on the Mueller investigation. I mean, I just don't have that presumption anymore of thinking, oh, well, it's possible they still have that in the back room and 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 is highly identified with helping members of the black and brown community in an administration that I think is highly racist in its policies. Again, I'm just expressing my personal take on what is happening.

Speaker 2:
[14:53] Oh, you got my agreement there.

Speaker 1:
[14:55] 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 before you would indict a company, an organization like this, I mean, you would really, really want to make sure that you have the goods. And I don't see that in this indictment.

Speaker 2:
[15:29] 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?

Speaker 1:
[15:48] It depends what was said to the banks and whether it was material to them. I see. But 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 can list, here's the name of the company, here's the address of the company.

Speaker 2:
[16:11] It doesn't need 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 that's what takes it in. So it's not fake.

Speaker 1:
[16:22] 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, you know, whatever. I mean, the devil's in the deep. Do that one. Yeah.

Speaker 2:
[16:38] Why didn't I call it Bull Company?

Speaker 1:
[16:42] Sarah, could we please not digress?

Speaker 2:
[16:44] Sorry, I'm staying focused. I'm staying focused. Sorry. No laughing this week.

Speaker 1:
[16:49] So again, that it leads to a way of talking about this that ignores what happens in the real world, in companies and 501C3s, that the government itself does. And I do think it's really important because the government wants to say just because you're paying money to an informant, suddenly you are a conspirator with these groups as opposed to under running 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 racism to succeed. That's the theory. Wait, that is the theory. This is Todd Blanch. This is Todd Blanch's race to the bottom because it's like me, me, me, me, me. I need to be the Attorney General. And you're going to, I think you are going to see this like people just going, I can outdo that. I can bring something even more outrageous.

Speaker 2:
[17:56] 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.

Speaker 1:
[18:09] Yes, and Kash Patel stopped that. And you know what that means? That means that Kash Patel knows that's what they were doing. So where's the fraud now? Right? I mean...

Speaker 2:
[18:19] Where's the fraud now, Kash Patel? Interestingly, it could be coming from inside the House. I'm going to use this as a transition because speaking of Kash Patel, let's talk about his defamation suit against The Atlantic for $250 million.

Speaker 1:
[18:34] 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.

Speaker 2:
[18:45] Yeah, just a cool $250 million.

Speaker 1:
[18:48] So you think it showed admirable restraint on the part of the FBI director?

Speaker 2:
[18:52] Yeah. Well, when I think of Kash Patel, I think of restraint. Good judgment. Yeah.

Speaker 1:
[18:57] This is, by the way, Kash Patel, it's like the name fits because this is like 250 million Kash Patel, right?

Speaker 2:
[19:08] Yeah.

Speaker 1:
[19:08] Okay. So he has brought this lawsuit against The Atlantic for The Atlantic's story that basically, while it covered Kash Patel saying it's not true, you do have the story that basically, let's just say it's not flattering.

Speaker 2:
[19:26] It's not flattering. Maybe accurate, but not flattering.

Speaker 1:
[19:29] Exactly. I mean, it basically has him being missing in action. It reports that they have sources that say he drinks to excess and lots of details. Again, Kash Patel denies it. And so he has brought this lawsuit in Washington, DC before Federal Judge Emmett Sullivan. And he is saying this is false. In order to prove defamation, he will have to prove not only that it's false, but because Kash Patel is what's known as a public figure, he has to show what's called actual malice. 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 went back to all of their sources. You know, they put in Kash Patel's denial. 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, this is, you know, this is the Atlantic. So there will, this is a reputable institution. So I have a theory as to what they should do.

Speaker 2:
[20:57] Hit me.

Speaker 1:
[20:58] 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 have an adequately plaited because truth is 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 newspaper, it is in the journalist business. They should say, we want an immediate trial.

Speaker 2:
[21:30] Hmm. Let's go.

Speaker 1:
[21:32] I think they should just go to trial. They should say, Kash Patel, I think there's a whole, I have a whole theory about why I think Kash Patel filed this lawsuit. They're like, you want to deny this? Let's go.

Speaker 2:
[21:45] You yourself have a theory about why he filed it?

Speaker 1:
[21:48] Yes. But I think, I do think they should just, like, let's just get a trial. Like, let's let Kash Patel testify.

Speaker 2:
[21:54] Let's do discovery. Let's get it out there.

Speaker 1:
[21:56] Exactly. Let's, let's, I mean, I think discovery should be, like, short-circuited 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? Because I, do you think Kash Patel wants to do that? No.

Speaker 2:
[22:16] No.

Speaker 1:
[22:16] And, but you know what would be great for the American public is to see this.

Speaker 2:
[22:20] I love this idea. This is, call their bluff. It's a pain for the Atlantic, but let's do it.

Speaker 1:
[22:27] 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 who listen 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, where I think the jurors have like a very good bullshit meter. 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 get a court. Let's see what Kash Patel does in that situation. Here's my theory about why I think he brought this. It could be wrong, but it's my, I think he has an audience of one right now.

Speaker 2:
[23:20] Yeah, he's in the dog house. He's trying to be like, look, the medium hates me too.

Speaker 1:
[23:25] Exactly.

Speaker 2:
[23:26] I know how to fight back like you.

Speaker 1:
[23:27] Exactly. He's thinking, he can see Kristi Noem. He can see, what's her name? The woman who used to be the Attorney General? Oh yeah, that her. It's not like he's sitting there going, I'm like, the Donald Trump is backing me to the hilt. He's sitting there going, I'm on thin ice, and I need to show this isn't true, and I'm a fighter.

Speaker 2:
[23:54] Yeah. I mean, I got to say this, I highly recommend this Atlantic story, because the best part of it is how it opens, which is that Kash Patel can't get into his official computer. So he thinks he's been fired because that's how-

Speaker 1:
[24:08] It's hysterical. This idea is like-

Speaker 2:
[24:11] 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 been checking truth social to me? Have I been fired via tweet? Because this guy knows he's on thin ice. I think your theory would hold up. I think that's a strong theory that Kash 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 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 get their smashes to testify?

Speaker 1:
[24:45] But now you care about that? You know, I think I'm having a good effect on you.

Speaker 2:
[24:49] Yes, you are. You're really keeping me focused here.

Speaker 1:
[24:52] I don't sense you're saying that with the requisite level of sincerity.

Speaker 2:
[24:58] Yeah.

Speaker 1:
[24:59] You want to try another reading of that, another line reading of that?

Speaker 2:
[25:03] No, of the two of us, I just, I do think one of us likes to talk. One of us likes to storytell. Look, we both do it, but one of us likes to draw the podcast slightly more than the other. And it ain't me, Buster.

Speaker 1:
[25:15] I get invited on and abused. It's like, you really do have to question my way. Like, what's going on? Like, why would I do this? It's like, it's like, come on, I get abused. Okay.

Speaker 2:
[25:27] Anyway, some people love it.

Speaker 1:
[25:29] Look, Sarah, can we move on? I mean, I thought you had some point in the water today.

Speaker 2:
[25:33] My point is, do you have to have your confidential sources testify in a case like that?

Speaker 1:
[25:40] So the answer is, no, you do not. It is possible that sources would change their mind, it would agree to do it, or we'd give permission to have their name be used. But you do not have to do it. I mean, Kash Patel might try to get that information, but there is a reporter's privilege 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 Kash Patel is he has to show actual malice, and so it would be really hard to show that bit, because if you have a whole host of people telling you this, he's going to have to show that, like, that none of them should be believed. But yes, that could be a fight about, you know, the identities, certain identities, et cetera. 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 Kash 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. I know some people are thinking, but who's going to ever prosecute him for it? He could always get a pardon, but federally. There's all sorts of answers to that, both in terms of state repercussions and civil repercussions, neither of which can be covered by a federal pardon. That's one where, again, if I had a strong case, it's like bring it on. You think I did this falsely? You say this is not true? Okay, you're saying it's a he said, she said? I got a lot of he's and she's behind me. And let's see where it goes.

Speaker 2:
[27:47] Yeah. The other thing, just to go with your theory or to expand on a little bit is, I bet Kash, 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?

Speaker 1:
[28:11] And also the FBI at the end of the day, they're called, they're going to say, I mean, these people are going to, they're not going to lie. I'm not saying every single one of them, I don't know who they are, but I mean, that's not their training. So, this is one where, yes, this lawsuit, I'm sure has, is a way of trying to sort of, is a brush back 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 a reputable paper, it's like, you know what? You say it's not true? Let's go. I did this, by the way. I was going to tell an anecdote, but I realized I'm going to control myself.

Speaker 2:
[28:57] Honestly, Andrew, we're doing really well on time. If you want, you can have one small anecdote.

Speaker 1:
[29:04] No.

Speaker 2:
[29:04] Okay.

Speaker 1:
[29:04] All right.

Speaker 2:
[29:05] 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 for you.

Speaker 1:
[29:10] No. I don't think I'm going to do it.

Speaker 2:
[29:14] I love that you're like denying us anecdotes now.

Speaker 1:
[29:17] It's like, okay. And by the way, Sarah, it was a really good one.

Speaker 2:
[29:22] Okay. Oh, man. The audience is going to revolt.

Speaker 1:
[29:29] I know. You're probably like, you're really like, this is it. Like, you know what? We're done.

Speaker 2:
[29:36] No. Are you kidding? Listen, I like the end when we have the anecdotes. I'm doing this because we got to get you out of here. I would sit here all day and just do anecdote after anecdote.

Speaker 1:
[29:46] I'm going to tell your producers, I need them to send me that little clip of you saying, I would sit here all day in response to my anecdotes. Because you're going to later be like, why the hell did I say that?

Speaker 2:
[29:58] 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. You can put that as my ringtone for you.

Speaker 1:
[30:15] I love it.

Speaker 2:
[30:16] Yeah, hot tip. All right, let's talk about the DOJ's latest round of firings. But before we do that, we're going to hear from our sponsor really quick. This show is sponsored by Boll & Branch. Here's the thing. There is a lot of effort that goes into skincare. The serums, treatments, facials, routines. It's so much that I can basically only use one skin. But you know what touches your skin for six to eight hours every night, depending on who you are? You're bedding. If you're lucky, it's eight hours. God bless the people who get eight hours. But I will tell you, I sleep better with Boll & Branch bedding, from their organic cotton sheets to their breathable pillows and comforters. It is made with ultra clean materials that are gentle on skin and free from harsh chemicals. Their fabrics are breathable, soft, and temperature regulating so you're not overheating or tossing and turning. I'll just tell you, I had the flu earlier this week. That's why I sound like this. We have the Boll & Branch sheets in our bed. Oh man, when I was having the chills and then the sweats, it was like they were so good. All I wanted was to be in bed in those sheets. It was like one of the better than chicken soup. When your entire bed is made with better materials, it supports the kind of sleep that actually helps your skin recover overnight. A lot of people start with the signature sheets. That's what I've got. And then add the matching pillow cases and a waffle blanket. I also have that because that combination makes the whole bed feel softer and cooler. I've got some of these sheets and it's tough to describe how exceptionally good they are. But if you've ever unboxed a new phone or tech gadget and just gotten this like voila feeling, that's what Boll & Branch sheets feel like for me. And unlike your tech gadgets, these sheets actually get better over time, which you can't say about many products. It's like the more you wash them, the more buttery soft they get. I love them so much. Upgrade your sleep with Boll & Branch. Get 15% off your first order plus free shipping at bollenbranch.com/illegalnews with code illegal news. That's bollenbranch, B-O-L-L-A-N-D, branch.com/illegalnews. Code illegal news to unlock 15% off. Exclusions apply. Go do it. This is some of my favorite stuff out there. All right, thanks Boll & Branch. Continuing on with more of DOJ's war against its perceived adversaries, DOJ recently published its first report from the Weaponization Working Group, 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?

Speaker 1:
[33:04] One thing I do have to give a pitch and it's going to seem like it's self-promotional and it's not. If you...

Speaker 2:
[33:12] I'll be the judge of that.

Speaker 1:
[33:13] If you really, really want a treat, the first segment of the podcast that I do with Mary McCord this week, it dropped on Tuesday, of it's the Maine Justice Podcast. The first, we sort of divide it into thirds, and we get right to business, Sarah. We don't, because you're not on it.

Speaker 2:
[33:37] No anecdotes. No anecdotes.

Speaker 1:
[33:38] Well, you're not on it, so we get right. We don't have that problem.

Speaker 2:
[33:41] No distractions.

Speaker 1:
[33:42] None. But just to be serious, we interview one of the DOJ attorneys who was fired, and it is a spectacular interview because she is such a wonderful, wonderful person, lawyer. 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 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 under the Biden administration and prior administrations, the FACE Act was used to prosecute unfairly religious groups and disfavored groups and disproportionate sentences were sought and imposed by judges around the country 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 outside of abortion clinics and health care clinics. Of course, the FACE Act 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. It requires that there be obstruction and or violence outside of these places. And in fact, that's what happened. So 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 in the Detroit area. She had been the lead prosecutor in the Gretchen Wintmer kidnapping scheme. She just shortly before this FACE Act case was going to trial, she was brought in because she has lots of trial experience. As she said, I had to look up what the FACE Act was. So what she did is she was assigned by a supervisor to a case. She could have been fired if she said no to that.

Speaker 2:
[36:26] Right.

Speaker 1:
[36:27] So she does the case. Guess what? They get a conviction, meaning that all of the defendants were convicted, beyond a reasonable doubt, by a unanimous jury. 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 the government here, and she receives a letter from Todd Blanche that just says, out of the blue with zero notice, no due process, no opportunity be heard, that just says, you're fired. It's what they say 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 that unlike my anecdotes was actually short and to the point and relevant. I like Sarah, how you didn't even know laugh there because you're like, that's true. She told this really terrific anecdote. 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. 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 that position. She's like, great, so that's what I did. I got assigned a case, I zealously advocated 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 summarily fired. That to me, everything about this is like a perfect embodiment of what is happening not just at the Department of Justice, but in this country under this executive. It just exemplifies in so many ways, the cruelty and injustice that we are seeing. This is just a microcosm.

Speaker 2:
[38:49] I guess I don't want to preempt. I will go listen to the whole thing on the main Justice podcast. 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? 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 do we do about this?

Speaker 1:
[39:25] 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 it's unique and there does have to be cause, but it's not at all clear how they will approach all the other types of institutions and people. That's sort of thing one. Thing two is that a lot of these people are suing, and they can sue in something called the Merit System Protection Board, which has been gutted by the Trump administration. There are lots of issues about being able to even get through this administrative process some people are suing in federal court. But again, there are a lot of hurdles. Then there's the issue of what is happening at the department. Just remember, the leadership is almost exclusively been put in by the Trump administration. These are people where the number one criteria is by all accounts, loyalty. You're not seeing US attorneys 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. 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. I don't want them to all leave. I want the people who have morals and take the oath of office and adhere to it to be there. Obviously, if they're asked to do something that is unethical or illegal, they have to refuse and they may get fired. I mean, 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 the sort of people who are operatrix.

Speaker 2:
[42:01] 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 percent 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 walkout?

Speaker 1:
[42:22] The Public Integrity Section is a tiny, tiny, tiny fraction of itself. The Civil Rights Division is a tiny fraction. 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 Chad Mazzell, who used to be the Chief of Staff to Pam Bondi, having to send out a social media tweet saying, hey, we're hiring. Essentially, are you on the street? If I put a mirror under your nose and the mirror fogs, you're hired. It's so unheard of. The Department of Justice, it used to be impossible to get a job. Everyone gave their eye teeth to be able to be hired there. What I would say is that we are seeing that, and in some ways, yes, it's not like en masse, like everybody leaves, but there's so much crippling because of the combination of people leaving and people being fired. Yeah.

Speaker 2:
[43:25] I mean, I guess that part of it is like, if you're going to leave or you're going to get fired, like why not do it en masse and noisy and send a signal? Because getting picked off in the ones in Tuesdays or people getting fired, like they're getting lost in terms of sending up a flare to the American people that all is not well. And obviously, people know all is not well, but it's hard to get them to care about the process stuff at all.

Speaker 1:
[43:49] Now, when it's drip, drip, drip, I hear you. It's just hard because, like, you know, that would take an extreme amount of organization. There is a reality to, there's a reality to people who are there trying to do the right thing. I just think it is complicated. I mean, I agree with you if there is a way to somehow have that and it would make a difference. But isn't some of that problem on our not listening?

Speaker 2:
[44:19] We're 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.

Speaker 1:
[44:30] 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?

Speaker 2:
[44:45] I don't know.

Speaker 1:
[44:46] Zero.

Speaker 2:
[44:46] Zero.

Speaker 1:
[44:48] They did, when people think, why didn't they do something? Listen. Zero. None of them would do it. And yet they stayed in place, except 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 the James Comey and or the Letitia James case. And was, he said resigns 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 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 is absolutely nothing to do with politics. Having served in Republican and Democratic DOJs, 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 Mary and I are doing it. It's not because it's on Maine 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.

Speaker 2:
[46:19] Love that. Highly recommend. Okay. I want to stay with the DOJ. But I want to talk about the DOJ in court now, because there's a couple of cases I want to ask about before we get out of here. So the first one is this Judge Mehta, 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 civilly liable to police officers who were harmed on January 6th. So as I understand it, Judge Mehta's ruling in 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. George and I talked a lot about this at the time. Is that right? What did Judge Mehta say about presidential immunity because I assume this has maybe broader implications?

Speaker 1:
[47:04] George who?

Speaker 2:
[47:07] Yeah. We don't even name him on this podcast now.

Speaker 1:
[47:10] It's like Voldemort.

Speaker 2:
[47:13] Oops. He must not be named. I miss George. Yeah. But I love doing this with you.

Speaker 1:
[47:22] What I like is you're sitting there going, every time I do this program with you, I miss George. That's what I'm hearing. It's like, I think the episode title might be called like abuse.

Speaker 2:
[47:34] I'm abusing you. I'm abusing you. That's it. I don't think so.

Speaker 1:
[47:39] Maybe I'm being sensitive. Anyway, 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. As everyone knows from the great George Conway, 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 at least presumptive immunity, where it's very, very hard to rebut that presumption. It's so hard that it's almost, and a lot of people said, it's almost irrebuttable. If he's acting in something that's core to 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 a presidential function. If he is acting in his personal capacity, he's talking to his children, and he's going on vacation, or whatever he's doing, like he's personally investing in something. That is, or to take an example of something he has been found liable for, if he is sexually assaulting E. Jean Carroll, that is not something which I'm saying, because by the way, two juries had found against him in two separate lawsuits that she had brought. That's something that is in his personal capacity, and if it's in his personal capacity, there is no immunity. What the court did there is they sent that case back to Judge Chutkin who had the criminal case at the trial level and said, we're going to leave to you sorting out in this Jack Smith criminal indictment, what is official and what is not official. This is where in many ways the decision was not 6-3, it was 5-4 because Amy Coney Barrett in a concurrence said, just to be clear, when the allegations that you were tinkering with the Georgia election and fake electors, she's like, sometimes whether something is official or something's not official could be a hard question. She goes, not that one. By the way, I'm not directly quoting her, but it's pretty darn close to what she said. She's like, that's an easy one. Here's the thing, you can be president, but if you are running for re-election, the court has to disentangle this because it's not like you're just a candidate, you're a candidate, but you're also the president. You need to figure out in which capacity are you acting. Well, we all know that the criminal case got canned because once Trump was elected, Jack Smith knows that the Department of Justice policy is that you can't go forward with a criminal case against the president. But this was a civil case brought by Capitol Police, and it was brought against Donald Trump and others for damages for what happened on January 6. So Donald Trump said, I am immune because this is all stuff that happened when I was acting as president, and in all of these different ways, I was acting as the president, not in my personal capacity. 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 Maeda essentially did the work that Judge Chutkin was asked to do, but didn't ever have the opportunity to do, which was parsing out, if you look at what happened on January 6th, in the lead up to January 6th, 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, 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 the fraud, you know, was one that really hurt Joe Biden, that would be terrible. I mean, everything was about, you know, being in office. And so that Judge Meadow went through all of the different parts of the allegations. Occasionally, ruled in Donald Trump's favor and said that his interactions with the Department of Justice could be viewed 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. And, you know, is a nice sort of footnote, sort of as being a legal nerd, it's a nice footnote to what I think was a horrendous Supreme Court case on presidential immunity, to see that as applied, no, no, no, what was going on on January 6th and leading up to it is not subject to immunity.

Speaker 2:
[53:33] 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 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 if he's found guilty and he gets the DOJ to have to pay them, the American taxpayers on the hook for it, feels like this is a... What is... Is that possible?

Speaker 1:
[54:05] Yeah. So this is this Westfall Act. Just to be clear, that's happening already. I mean, we have talked about the fact that Michael Flynn was... There was a, quote, settlement of $1.25 million, I think, even though he had pleaded guilty. And admittedly, he sought to have his plea back. But I mean, he said he was guilty. And yet, the government fights these types of allegations all the time, that $1.25 million of our taxpayer money is being given to him. The government just announced in some filing that they have reached a settlement. And I assume it's going to be for a comparable amount with Carter Page. And so we know Donald Trump has a lawsuit also, 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. Which is, it's so collusive to see that when Donald Trump is on both sides of the litigation.

Speaker 2:
[55:22] Okay, we're going to have to leave it there. There was a Judge Boesberg Venezuela section that we're just going to have to skip. But that's okay. We'll get to it next time. Andrew Weissmann, I got to tell you, I miss the anecdotes. I like it better when we do anecdotes. Okay?

Speaker 1:
[55:36] I was waiting for you to... I guess you don't have any anecdotes.

Speaker 2:
[55:41] Oh, I'm swimming in anecdotes, brah. I'm an anecdote. Come on. I am an anecdote queen over here. Let me tell you a quick anecdote. Okay, guys, I just want to do a shout out.

Speaker 1:
[55:51] Okay.

Speaker 2:
[55:51] I'm on the Internet. The Internet's terrible. Twitter is 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. It makes me feel good. Every morning I drive down Connecticut Avenue and there has been this growing group of people, many of them, I think, retired, but they stand out there with signs. 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. 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 kind of got past them, like, a few seconds later, I hear, like, a rap on the window. And I, like, jump because it was whatever. And I turn and 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 trying to make a difference in your way.

Speaker 1:
[57:09] This is something Eric Holder has said, which is, you know, we're not, this is, and I felt this, you know, because I worked for Robert Mueller, the savior is going to be us. It's going to be the people. And I know this is like something. Your book is about, which we have not talked about, but your book talks about this. But it's-

Speaker 2:
[57:29] Voters are the problem, but they're also the solution.

Speaker 1:
[57:32] 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. And it's not like, we have obviously some great role models, especially in court, but this is one where, 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.

Speaker 2:
[58:00] Hard agree. Okay, Andrew, we'll get you out of here on time.

Speaker 1:
[58:03] Okay.

Speaker 2:
[58:04] All of you, thanks for listening to another episode of Illegal News. I promise the next time Andrew is back, we will be in full anecdote mode. Okay, we'll do way more, way more chit chat and banter. 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, Liar's 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 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 thebullwark.com/events. Don't miss it. Tickets are selling fast. Go get yours now.