Marc: Glenn Kirschner, welcome to Defending Democracy.
Glenn: Marc, thanks for having me.
Marc: Let me start with the big topic that you cover: we're a year plus into this administration, how are we doing?
Glenn: The nation is not doing well. The rule of law is hanging on by a thread. Maybe it's comatose and it will be our mission to prod it into wakefulness, hopefully beginning after the midterms, but really in earnest once we get a law-abiding president back into the White House. What I and some of my fellow former federal prosecutors and former FBI agents are trying to focus on is the accountability mission that we have to go on come January 2029, because we have dropped the accountability ball repeatedly. I would go back to '74, and we could go back before that, where we dropped the accountability ball by deciding that the way to hold a criminal president accountable was to decline to bring charges. We did it again in 2021. Merrick Garland got off the dime too slowly. I don't know, Marc, but I don't think we get to keep our republic if we drop the accountability ball a third time. And that's why we're looking to put together the American accountability project in earnest beginning in 2029.
Marc: All right, so tell us, what does accountability look like? Because I think there's a lot of frustration. Every time I talk about the fact that we're not going back to the Merrick Garland era, people either snicker about the Merrick Garland era or cheer on the fact that we're not going back. So what does the new accountability project look like?
Glenn: I think accountability doesn't look like "you've got to throw them all in prison, they all need to be in orange jumpsuits." That's not accountability. My version of accountability, my definition of accountability, is if we fairly, impartially, aggressively — and I mean scorched earth — investigate in an apolitical fashion every crime that we see with our own eyes. The President and his cabinet, basically this is a criminal enterprise. I prosecuted lengthy RICO cases in federal district court in Washington, D.C. I don't say that flippantly. This is a criminal enterprise.
So what we need to do is make sure every crime gets fully investigated through an apolitical investigation whereby we give all of the evidence to the grand jury and we let them serve as the first check on our instincts with respect to who should be prosecuted. Do we have enough evidence to make out, one, probable cause, and two, beyond that, do we prosecutors believe we have a reasonable likelihood of success on the merits, which looks like a conviction at trial? That's some of the language taken from the U.S. Attorney's Manual. That is our procedural Bible at the Department of Justice. Once we secure indictments against everybody who has been victimizing the American people and violating our nation's laws, then we move into the courtroom. We try the case as best we can. We deliver it to the jury and they begin to deliberate.
Accountability is done at that point. That may sound counterintuitive coming from a prosecutor who liked winning convictions. I enjoyed holding perpetrators accountable, vindicating the rights of victims, and protecting the community. But the result is not as important as the process. Justice is a process. And once we deliver it to the second check on our instincts—the trial jury sitting as the conscience of the community, just as grand jurors do—we live with the result, win, lose, or draw: conviction, acquittal, or mistrial because it's a hung jury where the jurors couldn't agree unanimously on a verdict. That's what accountability looks like: putting everybody fairly and apolitically through the criminal justice system and let first the grand jurors decide and then we let the trial jurors decide.
Marc: So let me ask you a couple of follow-ups on this. The first is just logistical. We have watched as a lot of good prosecutors have been driven out of the Department of Justice. They've resigned, they've been fired; a lot of good FBI agents, same thing. Your old office, the D.C. U.S. Attorney's Office, probably the office I know best because I practice in Washington, D.C. — very big office, covers a lot of different territory, covers essentially the equivalent of local crime in the superior court, covers very serious crimes in the federal courts. But it's been run now by a bunch of political hacks and we're only in year two. So the question that I'll start with is where do these non-political prosecutors come from? What do you think will be the state of the prosecutorial bench of AUSAs, Assistant U.S. Attorneys, in these U.S. Attorneys offices or at Main Justice—line prosecutors? Do you have confidence that that will survive the next three years for this to be possible?
Glenn: That's a great question. Where do they come from? They come from everywhere they came from in the 30 years that I was a federal prosecutor. Six and a half on active duty as an Army JAG, first handling court-martial cases and then handling criminal appeals. 24 years at the Department of Justice, specifically at the D.C. U.S. Attorney's Office. Marc, in all those years, I don't think I could tell you the politics of any of my fellow prosecutors. And so, listen, I stand on the shoulders of really wonderful people. Eric Holder is the one who took a chance on an old gutter kid from Jersey who used to run from the police as a kid. And then I went into the Army and then I was like, I'm going to take a crack at being a federal prosecutor. I didn't think anybody would choose me. Eric Holder did. And I was part of his first class of hires when he was the United States Attorney in D.C.
Marc: Yeah, just so people who don't know, Glenn is not talking about when Eric Holder was the U.S. Attorney General. Before that, Eric Holder was the U.S. Attorney in D.C. And just to give people a perspective, what year roughly was that?
Glenn: I started at the D.C. office in '94 after I left active duty in the Army. And then I had the amazing good fortune of working for Bob Mueller as my homicide chief. And I think it's fair to say I was his right-hand man in many ways. So I learned not only how to handle homicide cases in the courts of D.C., but he also sort of helped teach me how to run the homicide section, which I did a couple of years after he left. I didn't know the politics, and I had 30 homicide prosecutors at a time that I supervised in my shop. I didn't know their politics.
The unethical DOJ lawyers that we see now taking their cues from Pam Bondi and Todd Blanche, they are in the extreme minority. And many of them, just as Ed Martin is now in front of D.C. Bar Counsel for his ethical transgressions, many of them are going to end up in the same place. You would think they would view as a cautionary tale the Rudy Giulianis and the John Eastmans and the Kenneth Chesebros and the Jeffrey Clarks — these attorneys who have been disbarred because they decided to do Donald Trump's dirty bidding. But we've got a whole other batch of them right now. These kind of lawyers who are interested in representing Donald Trump rather than representing the interests of the American people, they are few and far between. I don't know how they have found as many as they have right now to send into federal courts around the country on these suicide missions. We are going to rebuild with the same cadre of fair, apolitical, ethical federal prosecutors that I worked with for decades. Of that, I am sure.
Marc: You mentioned something in your description of the process that I think many people watching this video who are not lawyers — and certainly even some who are lawyers but don't have experience with the criminal system — think is really important that you highlight, which is there is a standard for indictment, and then there is a different standard internally that prosecutors have historically and traditionally used, which is higher than probable cause. I think that this has gotten lost in some of this administration's shenanigans, where they just seem to barely want to try to get over that lower threshold of probable cause and have not even succeeded in all instances. But historically, that wasn't actually even enough. So can you just unpack the legal standards here and what you were getting at?
Glenn: I'm glad to have the opportunity to translate from legalese into English what the grand jury process is really all about and the standards that we must apply when we're moving through it and asking grand jurors to return felony indictments against our fellow citizens. Let me just start by saying Jeanine Pirro has tried to indict the innocent, never mind people for whom we might have bare probable cause. I'll talk about that in a minute, like the guy who threw a sandwich, Sean Dunn. He was a DOJ paralegal, Marc, who was so incensed at the fact that there was a military occupation in the streets of his city, the streets of our city, that he lost his cool. You could see it on video. And he threw a sandwich at a police officer.
Now, public service announcement from this old prosecutor: Don't throw sandwiches at the police. Don't do it. It's a type of assault called a battery. Anytime there's an unconsented-to touching — doesn't have to be an injury — that's a battery. It's a type of assault. Don't do it, okay? However, let's use that case as a vehicle to move through the grand jury process.
I would sit in the basement of Superior Court back in the day and we would do what was called screening duty. What does that mean? We would have about 125, 150 lockups in the streets of D.C. every day. We, senior prosecutors, would sit there. We would look at everyone. We would interview the police officer and we would assess what was the right thing to do with that case. Charge the case — we call it papering. Decline to charge the case — we call that no-papering the case. And there are a hundred factors that go into the decision whether to bring a charge or decline to bring a charge.
Let me tell you, in protester cases, Marc, we knew because we got advanced notice from our front office: "Listen, there's going to be a slew of lockups because there's a big old protest kicking off in D.C. tomorrow." And so what happens is, we might get a few hundred protesters who were arrested and those cases are brought to us. But the reality is we rarely had proof beyond a reasonable doubt that they had committed a crime. So we would just decline to bring a charge. I understand during protests, if they do get a little heated and even out of hand, you might have officers start to flex-cuff people just to calm the situation down. So listen, if I don't have evidence to prove beyond a reasonable doubt you committed a crime, I'm not going to charge you. Now, if you're burning a car, if you're busting plate glass windows, if you're beating on police officers, if you're looting stores, you're damn right I'm going to charge you. And I'm going to try to prove it as long as I have the evidence.
There's a difference between a felony charge, which must be presented to the grand jury, and a misdemeanor charge, a low-level charge where a prosecutor can just sign a complaint and with that signature, you've got a criminal charge brought against that person. So let's talk about Sean Dunn. Sean Dunn throws a sandwich. In my experience, that would have been a no-paper, decline the charge, because that kind of thing happens a hundred times a day in the streets of D.C. in any number of settings. Yeah, that would be a no-paper. Do you know how many times the officers would come in and hand me the jacket and say, "Glenn, this is a no-paper" because they didn't want to have to sit in court for days and do extra paperwork? They know that. But if there's an injury to an officer, that's a different matter altogether, right?
But at the most, Marc, it would be a misdemeanor charge because there was no injury. The Subway sandwich bounced off the officer's chest. I know he testified it exploded and I could smell the onion — the horror. That was overselling the nature of the incident and the jury saw that. That's a misdemeanor case at most. What Jeanine Pirro did was she ran that through a grand jury and wanted to indict Sean Dunn for an eight-year federal felony. If anybody's ever heard the saying "don't make a federal case out of it," that's the poster child for "don't make a federal case out of it." But Jeanine Pirro didn't care because she was abusing her power, she was abusing the process, and I believe she was abusing the grand jury.
And the grand jurors, thank goodness — I hope people will hold on to this — grand jurors, over and over and over, I've lost count how many times they've rejected Jeanine Pirro's attempt to indict people. That's "we the people." Those are just regular folk from around D.C. sitting in those little interior rooms where I spent countless weeks and months during my time as a prosecutor. They're sitting as the conscience of the community and they're telling Jeanine Pirro and, by extension, Pam Bondi and Donald Trump: "No. We will not endure or endorse your prosecutorial overreach."
So what happened when the grand jury said "no, we are not indicting Sea
Dunn?" As you say, the standard to indict is probable cause. I will tell you that represents about 42, 44% of the evidence. Not that you can put a number on evidence in a criminal case, but everybody likes to think in terms of percentage of the evidence. There's never been a case that has ruled what probable cause means by the numbers. But there's a great law review article that surveyed judges nationwide and asked them, "what is the number in your head?" And the reason that's such an important number is because judges are the ones who, when they're assessing whether they should issue search warrants and arrest warrants, they need to come up with what probable cause is in their head. And center mass for all of those judges was about 42, 44% of the evidence — less than 50%, less than a preponderance, right?
So you have to have that first in the grand jury, but you also, by operation of our regulations, have to have enough evidence to win a conviction. The technical language is you have to believe you have a reasonable likelihood of success on the merits and that you have enough to obtain and sustain a conviction on appeal. So probable cause, bare probable cause, will not get you there. It's not even close. So for openers, you have to have that, but prosecutors subjectively have to say, "and I believe I have enough admissible evidence to win a conviction at trial." So I've always told our prosecutors, Marc, we are never more vital in our role as prosecutors as when we are declining to bring a charge because it's not the right thing to do for some reason. And then of course, when you move into a courtroom, as Jeanine Pirro did in the Sean Dunn sandwich-throwing case, and brought that low-level misdemeanor charge, we had another group of 12 people sitting in a wooden box, again as the conscience of the community, and they found Sean Dunn not guilty. They didn't even have time for a cup of coffee during deliberations. That is "we the people" standing up against Donald Trump and his Department of Justice's abuse of the rule of law.
Marc: So we have seen the Department of Justice abuse the rule of law in a number of different places, and I want to go through some of them. But there's one other thing you said in your introductory remarks that I wanted to unpack, which goes to the accountability question. You said that you did not think that after the Watergate scandals or hearings there was full accountability, and that after Jan. 6th in 2021 there wasn't either. We can maybe set aside Watergate, although if you want to say something about that you can. I'm curious: there has been a lot of people who have debated what should have happened after Jan. 6th, 2021, or after Jan. 20th, 2021 when Donald Trump left office. I was a hawk at the time. You can go back and see what I wrote at Democracy Docket. I thought that there needed to be the most aggressive both prosecutions and also use of civil laws. There are other people who said, "Look, the Department of Justice did the right thing. It started with low-level people and then it worked the cases up and that's the ordinary course." So you're an expert. I've got someone here who has built complex cases like racketeering cases where you have that sort of bottom-up approach, and also big cases where you start at the top. What was done right and wrong from the accountability standpoint that you think we can learn from moving forward?
Glenn: Let me talk about what was done right because the Capitol Siege Unit at my former office, the D.C. U.S. Attorney's Office, did miraculous work. They were representing the interests of the government and the interests of the people and they were literally fighting to save democracy. Because Donald Trump in a very real sense at the end of the day was trying to kill democracy by stealing an election in violation of the expressed will of the American voters. What they did right was they went scorched earth after the thousands of folks who attacked the Capitol and they had to make extraordinarily difficult decisions. What did each person do that made them criminally responsible for some offense or another?
Some of them, if you're just sort of unlawfully on government property after you've been told to disperse or if you've crossed a police barrier, that's what we call a UE, unlawful entry. It's like a glorified trespass. Well, do we have to prosecute all of those people to make a point? Maybe not. What about when you start assaulting police officers? Yeah, you need to be able to charge people who are willing to assault police officers to try to stop the certification of a presidential election. Once you're breaking into the Capitol, you're destroying property, you're stealing things — these are the folk who need to be held accountable. But imagine finding admissible evidence specifically with respect to each one of those people that you can use to satisfy that standard of having a reasonable likelihood of success on the merits. Not easy. They did miraculous work.
Now, here's what we did wrong. All conspiracies don't look alike. You can't just say, "We're always going to go from the bottom up" because if there's anybody who thought that the thousands of people who attacked the Capitol that day on Donald Trump's orders were somehow in a criminal enterprise with Donald Trump that was akin to a mafia organization such that you've got to start with the wise guys, the capos, and the under-bosses, get the consigliere, and then get the big boss — that, I think, was foolish in the extreme. You probably needed two prosecutorial units. You needed the Capitol Siege Unit to go after all of the rioters and the insurrectionists, but you needed to go immediately and scorched earth after the hierarchy of the insurrection — the suits of the insurrection, not just the boots of the insurrection — because there's a disconnect, legally speaking and evidentially speaking, between the boots and the suits.
And we didn't have an appetite to go after the suits. Merrick Garland, I think, mistakenly believed that the way to rebuild the reputation and legitimacy of the Department of Justice was to decline to prosecute people who have an R or a D after their name — the political actors, what I sometimes call the ruling-class criminals. And it took Congress. And thank goodness we had people like the members of the January 6th House Select Committee and the Chief Investigative Counsel, who was one of my RICO partners, Tim Heaphy, who put together what I viewed as a big gang investigation, if not a RICO investigation, that held the insurrection... that prompted DOJ to finally appoint Jack Smith and begin to criminally pursue the suits of the insurrection. Too little, too late, and we just kind of gave it all away. That's what we did wrong.
Marc: I continue to be frustrated with so many of the institutions in American democracy, including what you just described, including very oftentimes the way the media covers it and the large law firms. In part because it is exactly these... I love your phrase... I call it the political class. There's like a group of people that they're just like, "well, this is just politics," and therefore it kind of gets exempted from the same rules that apply to everybody else. What they don't understand is that what Donald Trump is doing, what Donald Trump has done, is not regular politics. He doesn't deserve that sort of buffer space to engage in elbow-throwing in the political arena, because that's not what this is. If we were witnessing this guy in another country, we would call him out for what he is. But for some reason, because he has an R next to his name and the others have the imprimatur of the politics around it, there is kind of this normalizing it. And so how do you avoid that in 2029?
Glenn: I think by having a Department of Justice populated by a whole bunch of Jack Smiths and no Merrick Garlands. Because what I so admired about Jack Smith's career and his work in the two criminal cases against Donald Trump — which are not permanently dead and buried because they were dismissed without prejudice; we could talk about that in a minute. I have a fever dream about accountability for those crimes in the future. But Jack Smith took on all political criminals. Didn't matter if you're Republican or Democrat: Bob Menendez and John Edwards and Bob McDonnell.'
And here's the other thing: he didn't say to himself something that so many federal prosecutors say to themselves — I saw it, I railed against it my whole time at the Department of Justice — "I'm not going to bring a case that I run the risk of losing. It has to be bulletproof. It has to be so strong." That was not his approach, because he didn't win all the cases he brought. And I'm not going to attribute this to a particular source, but there is somebody who said as federal prosecutors, don't be a member of the "chicken shit club." Don't be the kind of person who runs around beating their chest that you never lost a case, because that means you were too scared to ever take difficult cases to trial.
And I think we federal prosecutors do a disservice to the community by shying away from cases that aren't sure winners. And I could go on for an hour about how I view the prosecutorial practice of the Department of Justice and why I disagree with it, but I will spare the viewers that. But Jack Smith is aggressive, but he's apolitical and he follows the law and the rules and the code of ethics. My perception is it doesn't matter if he wins or loses the case because he puts it in the capable hands of the jury and he lets them decide. And against Menendez, the case hung. But what happened? Menendez didn't learn his lesson, continued to commit public corruption crimes, and he got what was coming to him. So that's what I think we need. We need people who are hyper-aggressive and focused on apolitical investigations with a view toward getting it to trial and letting the jury decide.
Marc: I said I wanted to cover some of the current criminal ongoings. I want to start in Fulton County where we saw the Department of Justice — actually, I think a U.S. Attorney from Missouri acting by appointment in some form or fashion — obtain a search warrant to seize the ballots from Fulton County from 2020. And one of the big questions that I've gotten, one of the questions I have for you is: how did they find probable cause in that case?
Glenn: They convinced a magistrate that they had probable cause to believe a crime had been committed and that there was evidence of that crime in a particular place that they sought to search and seize. I don't know how, because when you saw some of what was in the affidavit — the sworn statement by law enforcement setting out why they believe there's probable cause — it was pretty bizarre because it seemed to be based in large part on debunked election conspiracy theories. And there was even language about "well, if a crime had been..." Well, there's no "if." Usually, we have reason to believe a crime has been committed. We may not know who, we may not know why, we may be starting from ground zero in our criminal investigation, but we usually have information that a crime has been committed. It doesn't even seem like they had that in the affidavit supporting the application for a search warrant.
So here is the way I feel about it: I feel like the magistrate judge was snookered by a long, fancy, meandering, specious affidavit in support of an application for a search warrant. And I don't know how it's going to play out moving forward. But the other thing that drives me crazy, Marc, on this front — and maybe you can weigh in on your view — is I know that the courts are now discarding the presumption of regularity because they're beginning to step up and say, "We can't trust Trump DOJ lawyers." Finally, I'm glad they got there. I hope they get to contempt at some point soon because that, I think, will actually have an impact on how these people behave. But it just seems to me like the courts are still living in a bygone era where they're not sort of looking at the totality of the circumstances — what we might call the 404(b), the uncharged misconduct — because Donald Trump and his cruddy people have priors. They have priors. We know what they're doing. We see it in clear-eyed fashion. And the courts still seem willing to kind of roll with it as if this is just business as usual. And at some point, I hope they begin to fight a little harder and really recognize the reality of how Trump and Bondi and Blanche are destroying the rule of law and making a mockery of the courts and the Constitution. But I don't feel like they're getting where they need to be on that front.
Marc: I do think, Glenn, honestly, if our judicial system fails to protect democracy — and I think right now it's doing better than any of the other branches, but if it fails—it will be in part because of this presumption of regularity. If you remember, there was the deployment of the National Guard and maybe even the military in L.A. And people I knew who lived in L.A. were like, "Yeah, there are protests, but it's certainly nothing that the LAPD can't handle." But Donald Trump said it was an emergency, and he said that it was necessary. And you wound up having some of the courts, including the Court of Appeals as I recall, saying basically if the President says it's an emergency and this is necessary, then who are we to second-guess him? And I'm just thinking: Do you not turn on the TV? Have you not looked out the window? What do you mean? This is not like particle physics, right? This is literally "look outside, look at the images." And as you said, look at what this administration is doing. Look at what you refer to as 404(b), the other bad acts of the administration. I totally agree with you, but do you see the courts moving quickly to abandon this, or what I see is they're doing a kind of one-off, like Judge Boasberg may do it in a case in D.C., but not uniform?
Glenn: Courts don't adjust with alacrity. It is the slowest, most plodding and methodical and thoughtful and circumspect branch of government and group of people, for whom I have tremendous respect. I think they're beginning to catch up, though. You know, when I read Judge Boasberg's opinion, he is using Donald Trump's priors in his ruling. And I think that's where we need to go as a judiciary. We just need to recognize the reality that is in front of us. Because if we fail to... I think the courts have held strong for the most part, but the Supreme Court — everybody yells at me when I talk about the great things the trial court and the courts of appeals are doing. But I think they're holding strong.
And I hope, Marc — and you would probably have a better sense of this than me — I hope that the tariffs opinion is maybe a sign of things to come. Because what I've said all along is, you know, there's one thing that a dictator has no interest in: it's a Supreme Court. If you really let him consolidate all constitutional power in the executive branch, often contrary to the express terms of the Constitution—like in Trump v. United States, the presidential immunity ruling, which I always quote Professor Akhil Reed Amar, who said in that opinion the Supreme Court ruled that the Constitution is unconstitutional, which they don't get to do, but we don't have a right to appeal, right? But I'm hoping—and I'd be curious to know—do you think maybe the Supreme Court is realizing that not necessarily they made a mistake early on, but they've got to recalibrate and begin paying attention to Donald Trump's insatiable appetite to expand executive power beyond all rationality and beyond the terms of the Constitution?
Marc: Yeah, you know, it's hard to say because we all in the public think the Supreme Court rules on everything. And you and I know, when I tell people, the Supreme Court hears like 70 to 80 cases in a busy term a year. And even if you throw in the shadow docket, the emergency docket — fine, let's round it to 100. There are multiples of that just in D.C. District Court. You're talking about millions of cases that get filed every year, civil and criminal, around the country. And a lot of those are in federal court. I find people trying to find tea leaves in one-off opinions of the Supreme Court as a little bit of a fool's errand. And I get in trouble with people sometimes on the left here because they want it to be all one or the other. They want it to be that in the Supreme Court, we don't win anything. And I point out like, well, that's not true. Actually, here are a series of cases, including the tariff case, that Donald Trump lost.
And then there are others who want to be like, "Well, the court has turned." And I think I see it as more the court is able to shape the cases it hears because there are particular doctrines that they want to address. And they're not usually that time-sensitive. People have asked me about the voting rights case, the Callais case that we're waiting on. And they've asked me: Am I surprised that it has not come down yet? And I tell them, "No." Chief Justice Roberts and others on the court have been trying to overturn the Voting Rights Act for decades. They really don't care whether it's 2026 or 2028. I just think the court is, as you say, it moves slower than that. And I think it is moving doctrinally. I do think that in individual cases, like the tariff case, like the Federal Reserve Board case, the facts sort of jump off the page and the court gets nervous about the expression of unbridled executive power. But I think there is less deliberateness on the part of the court.
So here is my other big question to you. We talked about Fulton County and the use of the criminal power. One of the big concerns that people have is that in the run-up to the election or in the aftermath of the election — so let's just say, Glenn, let's state this as Oct. 15th to Nov. 15th, okay? I'm going to give you a couple of weeks on either side — that we are going to see the Department of Justice take very aggressive action. It could be seizing ballots, it could be sending the FBI, what have you, that will see that happen through the criminal division. Now, I'm not talking about the civil division, but through the criminal division. Do you think that that is likely? And if so, is there a plan that you think we all should be prepared for?
Glenn: I hate to say I view it as likely. I mean, do we really believe Donald Trump will back off and will stop trying to interfere in our elections? Or do we believe he will ratchet it up to new, insane, unlawful levels? I'm going with the latter. I also happen to think — and I don't want to come across as Pollyanna — that we are too big and too strong and too many. That we're going to get to the polls in numbers too big to rig and too real to steal. He only has so many masked marauder agents that he can deploy and he can't deploy them to the polling places all around the nation. And if he starts attacking a couple of blue states here and there, I want to believe, going back to how the court will deal with it, that they will see exactly what's going on, right?
And I also am heartened by the leadership in most of the blue states. I think it was Shenna Bellows who said the other day up in Maine — the Secretary of State —she said, "Look, we prepare for all sorts of problems on voting day. Usually those problems are extreme weather or some power outage." She said, "Right now we are preparing to defend our elections against our own federal government." I believe blue states nationwide are doing that. You would know better than me given the field that you're in. I think we're going to meet the challenge. And I also actually think, not just hope, that the courts will be up to the urgency of the moment because elections, it's right now. It's not "let's brief it up and we'll deal with it six months from now." It's right now. And I think his attempt to interfere will be viewed as exactly what it is: lawless and desperate. And I think the courts will be up to the challenge. I think state law enforcement and state leadership will be up to the challenge. And I think the results of the midterms will be spectacular for democracy. I really do. That is my fervent hope and even my belief.
Marc: All right, so the last topic I've got to cover with you — it's something I've been obsessed with, and that is the Epstein files. So let me lay out for you as I see the timeline and then I want you to react about where you think we are and where we're going. Donald Trump comes to office. He makes a bunch of promises about releasing the Epstein files in late February. I think on Feb. 27th, Pam Bondi sends a letter to the FBI Director who just got confirmed at that point, Kash Patel, saying basically, "this is bullshit, I want all the Epstein files. I want all of them. I want them delivered to our office and none should be withheld." So that happens at the end of February.
Let's assume that they didn't have them compiled; they have to go through them. And there are then reports that there are large numbers of FBI agents and federal prosecutors who are reviewing these. And then, if you remember, we get to July and there is this weird statement like "nothing to see here, no worries, we've searched everything, everything's just fine." Then obviously we go through August and the committee on Capitol Hill starts getting records from the Epstein estate and the like. And it's clear that this is a bigger problem for him. There's a law passed that they have to be released. And that law says they have to be released by the middle of December. And they don't all get released by the middle of December. They don't all get released by the middle of January. And as we sit here today, I just had Congressman Garcia on from the House Oversight Committee and he thinks that half of them have not yet been released. What the hell is going on with the Epstein files?
Glenn: Pam Bondi and Todd Blanche are trying to cover up whatever it is that's in those additional, reportedly, three million files — about half of the Epstein trove of files. I think, with Occam's Razor, this is a cover-up. It's a cover-up of what's in there. And there's so many data points that you just hit. That July memo — I've read it so many times, first of all, it's like Kash Patel is like, "We looked everywhere. We looked in file cabinets and we looked in desk drawers." It's like: "We did not find them in a house, we did not find them with a mouse." It's like a deranged Dr. Seuss book. It's a joke when you read it. And when they reached the conclusion, Marc, that there's no evidence to be investigated in here. What did we see when we began releasing Epstein files? Countries around the world started investigating and they got search warrants, literally within 48 hours of us releasing Epstein files. They've made arrests in countries around the world. And yet, Pam Bondi would have us believe: no wrongdoing here on American soil, nothing for us to investigate. It is such unadulterated horseshit.
And then as you say, the law — the Epstein Files Transparency Act — required that everything be released by December 19th. And if you're going to make redactions, you need to explain why, and you need to catalog them, and they blew by that. They're in violation of federal law every minute of every day since Dec. 19th, but they're cavalierly in violation of federal law. One of the things that people probably know by now is you can't prosecute anybody for violating the Epstein Files Transparency Act because there are no criminal penalties attendant to a violation. I know when you're a prosecutor, everything looks like a crime; when you're a hammer, everything looks like a nail.
So let me offer that you can still be in a criminal conspiracy to cover up what's in the Epstein files, even though the Epstein Files Transparency Act itself has no criminal penalties. Because if two or more people get together to agree to bury incriminating information in those files and to assist the people who are incriminated in those files to avoid detection, apprehension, trial, or punishment — that's a federal crime of accessory after the fact. There's potential criminal liability.
And then when Pam Bondi lied to Congress — inarguably lied to Congress — and said there is no evidence in the Epstein files that Donald Trump committed a crime, and everybody knows that. Thereafter we saw FBI interview write-ups with direct evidence — not circumstantial evidence, direct evidence — out of the mouth of a victim about crimes that had been committed on her by Donald Trump. Listen, if anybody ever deigned to try to bring a charge against Pam Bondi for a 1001 violation — false statement to Congress, kind of a kissing cousin to perjury — that would be like shooting fish in a perjury barrel. It would be so easy to prove that she violated federal law. She lied to Congress.
Marc: I've also been very interested in following the docket in New York very carefully. It's kind of a hard docket to follow because several things are going on simultaneously, which is oftentimes the case in litigation. There's Ghislaine Maxwell's pro se habeas motion going on at the same time that the line assistants are providing information to the court, and at the same time that senior Justice Department people are filing letters about the searches and about what they did do and what they didn't do and what they found.
And so, I agree with you: there is what Pam Bondi told Congress. There are undoubtedly many other places where we may not even be aware of where people in the administration have had to make statements to other government employees or to members of Congress in regard to individualized questions. This just seems like the biggest cover-up and a really clumsy one at that. And so I hope, to end where we started, in your accountability matrix there is room for the Epstein files.
Glenn: Investigating crime is a little like potato chips: there's always room for one more, right? You never turn a suspected crime away because you're too busy. But I hope — and I'd love your take on this before we wrap up — I do hope that there comes a time when the survivors band together and bring a suit for these violations of the Epstein Files Transparency Act. I think they have standing. And I think the whole goal should be to get all of the Epstein files into the hands of a special master as an extension of the court. Because I think that is the only time... and I won't be 100% convinced that Bondi and company haven't tried to destroy some of the files.
Marc: People ask me that actually, so I'm going to jump in there because you're the right person to ask. So I'm thrilled to have the opportunity. Aren't all these records logged into a system someplace? I keep telling people I don't think they can destroy records because doesn't the FBI catalog all these records in some database?
Glenn: There are electronic footprints of every single thing that there's a piece of paper that exists that the FBI generated. So yeah. But I say, I think she'll try. She may try to get rid of evidence. I don't think she can do it successfully because we can always retrieve those electronic footprints. I just hope at some point we actually get full transparency, regardless of how we get there. And I would bet my one buck — that's my betting limit — that we will probably get there eventually because if there's any one Trump outrage that has legs and staying power, it seems to be the Epstein files.
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