Brian Kruger:
And welcome to the Common Bridge. This is our 40th episode. We’re very excited about that. We’ve just gotten over 10,000 downloads, and we’re very, very thankful for you out there for listening to our podcast. We have a special guest today, who Rich is very excited about. It’s Kenneth R. Chadwell, who served as a trial and appellate attorney with the United States Department of Justice and while with the DOJ for 29 years as an assistant U. S. Attorney, he also served as a Deputy Chief for National Security, where he prosecuted terrorism cases following the 911 attacks on the United States. Mr. Chadwell was one of five elite federal litigators chosen to be a counter terrorism prosecutor following the September 11th 2001 terrorist attacks, and he also served as a senior litigation counsel for the United States Attorney’s office and concluded his DOJ career as Deputy Chief of National Security. Today, Mr. Chadwell is a partner at Mantes Hanigman, where his practice includes white collar crime defense, federal grand jury investigations, national security matters, corporate compliance and investigations, and immigration litigation in complex business cases. We now join Rich Helppie and Kenneth R. Chadwell in conversation.
Rich Helppie:
It is our honor to have as a guest, a man who has devoted his life to the administration of justice. You’ve heard his biography. We’re pleased to welcome Mr. Ken Chadwell to the Common Bridge. Ken, thank you for joining us today.
Kenneth Chadwell:
Well, thank you so much Rich for inviting me to have this conversation with you.
Rich Helppie:
So today we’re trying to make some sense out of the reporting around the case of General Michael Flynn. General Flynn served as director of the Defense Intelligence Agency in the administration of President Barack Obama and then was an active campaigner for then candidate Donald Trump and ultimately serving for just 24 days as the National Security Adviser following the election of Donald Trump. He’s unique in that he’s a man who’s lost jobs from two presidents. He came to be a catalyst for the probes around Russia’s involvement in the 2016 election and the aspersions about Russian influence over the Trump campaign and administration.
Reporting outlets have thrown around terms and processes that the average American has a hard time understanding and discerning, conclusions have been reached and reported that frankly, truly frighten me. What if our president was compromised by a hostile foreign actor-someplace in there, there’s the truth. I believe that all Americans, no matter what their political persuasion, share in the desire for a fair and competent legal system-even the most ardent partisan has to feel uneasy about misfeasance in our government, even if it’s aimed at those they don’t like or support. We, the people, have granted government power to invade the absolute most private parts of our life, to seize our freedom, and even take our life to destroy our prosperity and our personal happiness. And we, the people, have also set limits, boundaries and rules so that those enormous powers are not used unlawfully or unfairly. If for no other reason that the shoe might be on the other foot someday. This is what the Common Bridge is about-finding places where some agreement may be reached. It’s often a struggle, as we witnessed so many times, to understand the issues of the day, given the reporting outlets that exist. Most of us go about our daily lives and don’t think about what might happen should we become under investigation. But are there unexpected risks that an ordinary person might face when interacting with the federal government, and how does that risk escalate based on perhaps what kind of craft you’re involved in?
Kenneth Chadwell:
Yes, anyone who’s interacting with the federal government in any type of federal investigation really has to be aware, has to ask themselves if they should even be talking to the government agent. If they’re under subpoena, should make sure to comply with whatever they’re being ordered to do. But the federal government is the 500 pound gorilla, and if they put you in their targets, look out.
Rich Helppie:
They’ve got quite a few assets and resources to pursue someone, and I’m at a loss. Is this stuff run centrally out of Washington, D. C.? I’ve heard made reference made to the Southern District of New York. Could you maybe help our listeners understand how the United States attorney’s offices are set up?
Kenneth Chadwell:
Yes, Rich. Most federal investigations, certainly numerically, are conducted out of one of the 93 United States Attorney’s offices that exist throughout the country. This is basically the ground force of the Department of Justice, these are the people on the ground. We’re talking in Michigan today. Michigan happens to have two districts. We have two United States attorneys, and we have career prosecutors who work under those United States attorneys. There certain cases that, and of course, the United States attorneys officers are a component of the Department of Justice writ large. Our ultimate boss is the Attorney General in Washington. But there’s certain types of cases that are really headquartered in D. C. just by definition-espionage cases, D.C. Is all over those-United States attorneys can’t just run with those. United States attorneys can’t charge people with tax offenses without the approval of the tax division in D. C. And certainly the Department of Justice is heavily involved in any type of terrorism investigation that might be going on in any of the districts. But the more run of the mill investigations would be handled right at the United States attorney’s offices throughout the country.
Rich Helppie:
And Ken, when we were talking prior to coming on the air today, that you made mention that the most part, federal investigations, they’re just really invisible to the public unless they bear fruit. What would we expect to hear about investigations that don’t lead to charges?
Kenneth Chadwell:
Well, if the government authorities are acting appropriately, you would never hear about someone being investigated who was never charged. That could hurt someone’s reputation. And that’s not what we’re supposed to be doing. The vast majority of federal investigations are secret, conducted before federal grand juries. Federal grand juries are made up of common citizens who serve for a period of time. They’re sworn to secrecy. Prosecutors are sworn not to disclose any grand jury matters. Federal agents can’t disclose grand jury matters, and so you should never hear about a grand jury investigation unless a witness who happened to testify in front of a grand jury wanted to tell somebody. They’re free to do so, but they should be secret unless and until there’s an indictment.
Rich Helppie:
So talk a little bit about people who might get caught up in an investigation. Is it a level playing field when you’re dealing with the federal government?
Kenneth Chadwell:
Absolutely not. Federal litigation in particular, not just every attorney deals in that type of litigation. So if you happen to be under investigation, have to hire someone with federal criminal expertise, you better have a big wallet. It’s gonna cost a lot of money even if you’re exonerated. And I would say that is particularly true if you happen to be in the District of Columbia. The law firms in the District of Columbia with this type of expertise charge $1000 an hour and up for everything they do for you, and you can imagine how quickly that can add up. You did previously say something about the Southern District of New York, and I just wanted to mention that the Southern District of New York is probably the most prominent of the United States attorney’s offices in the country, and they do a lot of special cases, the fact that the United Nations is located there is a special fact-there’s a lot of foreign actors who are in and out of New York City, so that’s always been a special district, as is the District of Columbia too has, as United States attorney.
Rich Helppie:
Is it true that if an individual is under investigation by the feds that the agents are allowed to trick and deceive in order to get information and are there limits on that? And this may be a multiple part question, I guess I’m not clear on how people get themselves caught up in the situations of lying to investigators.
Kenneth Chadwell:
Well, part of what federal investigators do, in addition to serving grand jury subpoenas on people and entities, is they often go out on the street and interview people. If a federal agent believes that you may have committed a crime, they may seek to interview you in a non custodial setting. Were you to be placed under arrest, and being a custodial citing, the agent would be required to advise you of your Miranda warnings, that is, you have the right to remain silent, you have a right to council, you have a right not to incriminate yourself, anything you say can and will be used against you, that sort of thing. But in a non custodial setting, a federal agent could contact you and say, hey, can we talk about a given topic? And if you agree to that, it’s not just gonna be one federal agent that shows up. It’s never gonna be a one on one scenario. It’s always going to be two on one, and it’s going to be a couple federal agents, let’s just say they’re going to be FBI agents in this instance, although the federal government has many, many agencies with federal investigative agents. So a couple FBI agents would like to talk to you, perhaps at your office. It’s a relaxed setting. You feel comfortable because it’s your office. They can lie to you as to why they’re there. They can deceive you in certain ways to elicit incriminating information from you and agents can do this, the courts have held, but attorneys cannot. So if a federal prosecutor’s involved in the discussion, the state bar rules typically forbid any type of lying or deception by federal prosecutors. So that’s an important distinction for people to know. When you’re dealing with the FBI, they’re trained to engage in behaviors to elicit what they’re trying to get out of you.
Rich Helppie:
Is this the kind of situation if your average person is in a relaxed setting in their office, a couple of agents come in, would like to talk to about thus and so, you have nothing to worry about. Are there trip wires out there? Process crimes? I followed certain things over the years, and I was a guy that spent 12 14 hours a day on the phone and in meetings, do that six days a week. And if someone said, you meet with person A and then person B, I might say, that sounds right. Although it could have been I met with B before I met with A because it all kind of gets into a blur. What’s the threshold? Let me ask you this. What are some of the process crimes-I’ve heard about lying to an investigator, I don’t know what the threshold is for that, obstruction and/or hindering an investigation…are there commonly held thresholds? Or are those fairly easy charges to make? And is that ever employed as a tool to get a person’s cooperation?
Kenneth Chadwell:
To answer your last question first, yes, it is very often employed as a tool. If you can get a hook into someone and present them with the fact that they’ve committed a crime and that they have a problem, you can often persuade them that you want to help them work out their problem, and if they help you, you will help them. There are many process crimes that can occur during a federal investigation. So back to your sitting in your office and a couple FBI agents come by and they’re dressed in suits, they look like business people, you don’t see any guns, you feel comfortable in your office, they’ve come to ask you some questions. If you knowingly lie to those agents about something material, you’ve just committed a five year felony. Now, the noncustodial setting means that the FBI agents are not going to be recording the interview. They’re later going to prepare a report that’s called, in FBI parlance, a 302. So these agents, they’re gonna later prepare a report saying what you told them, or more accurately, what they say you told them. And there’s gonna be at least two names at the bottom of that report of the two agents that visited you, sometimes more, and having submitted to this noncustodial interview voluntarily, if in fact you didn’t say what they said, you have a real problem, because it’s two professional agents now saying you said something, and you saying you didn’t. So that’s a very easy process crime. Another one would be witness tampering. Let’s say before the agents come up to speak with you, you say to a friend of yours, hey, should I talk to these agents, and your friend discourages you. And if it turns out that your friend had anything to do with the topic that they want to talk to you about, the friend might have just committed witness tampering, or so someone might see it that way. Whereas if you called your lawyer before the agents came up and said, hey, should I talk to these guys and the lawyer said absolutely not, that’s just legal advice. There’s all these kinds of scenarios. There’s even an omnibus provision in the U. S. Code. It’s often used to used against Mafia figures, of hindering the due administration of justice, it’s this giant big net, you don’t quite know what kind of conduct that that might be. But if in the discretion of prosecutors, and agents, and the grand jury you’ve done it, you’re charged with a crime and you got a big problem, at least financially, to deal with it, as we discussed previously.
Rich Helppie:
Does there need to be an underlying crime in order to trigger the process crime? I mean, trying to think of an example…somebody is violating an export law or something to that effect. Agents visit them. They find out there’s no crime. But during the course of that, maybe the guy didn’t remember something right and could be charged with lying, or didn’t remember a paper-where that’s obstruction. Does there need to be an underlying crime to have a prosecution around these process crimes?
Kenneth Chadwell:
In my opinion, yes, but I’d say legally, no. I wouldn’t want, as a 30 year federal prosecutor myself, I wouldn’t want my FBI agents out in the street on fishing expeditions. I want them out there investigating real crime. But there certainly have been occasions in the United States where an investigation was undertaken, allegedly a crime had been committed as a predicate, but in fact no crime had ever been committed. But people were later prosecuted on some of these process crimes.
Rich Helppie:
I’m kind of connecting the dots…so a person that wasn’t involved with the crime might get charged, would have to raise money to come to their own defense, might be cooperating to the best of their ability, and still be facing a process crime, although they hadn’t intended to do anything.
Kenneth Chadwell:
In other words, they weren’t a criminal until the agents showed up, that’s what you’re saying?
Rich Helppie:
Yeah, exactly. That’s the frightening part of it. So it sounds like it’s fairly easy for a person to find themselves on the wrong end of an indictment. Does that not then kick off further invasions of a person’s life with search warrants and subpoenas, and such? Ken, most of our listeners are people who are not well versed in the law. Maybe before you talk about that next phase, what’s the difference between a warrant and a subpoena? And how might they be applied in a white collar situation?
Kenneth Chadwell:
So a subpoena is something that is issued from the either the grand jury or the court. Most of the public is more familiar with subpoenas issued from a court. You’re a witness in a trial, someone lays a subpoena on you, you better show up-basically a court order. Other subpoenas are for the production of documents or other things they’re called subpoena duces tecum. They have the force of a court order and can be enforced through contempt, if necessary. Grand juries are issuing these types of subpoenas all day long, every day, that most people never hear about. The federal government wants to know about your phone records, federal government wants to know where you’ve been traveling with your cell phone, all these types of things-where your car’s been driving, information about you, what you’re spending on your credit card. The federal government can find out all these things through subpoenas. You’ll never find out about it. Your bank internet providers know because they get hundreds of these all the time. So that’s the subpoena part. The warrant part..there are a lot of different types of warrants. One type of warrant is a search warrant. So in order to get a search warrant, unlike a subpoena, federal prosecutors and agents can just issue subpoenas under the authority of the grand jury, and there’s no cause necessary. They can go on fishing expeditions if they want with these, they’re not supposed to, but it can happen. Search warrant takes more process, and falls under the Fourth Amendment protections. There has to be probable cause that a crime has been committed and the evidence of that crime will be found in a certain location. So if someone wants to search your house, they have to go to a federal judge and they have to lay out, showing a probable cause in an affidavit, as to why there’s gonna be evidence of a crime at your house, in order to come there or come to your business and search your business. Probable cause is not a very high standard. Most people think probable cause means more probable than not because of the word probable. In fact, it’s about a one out of three chance if you want to put a percentage on. So it’s not that hard to get it if you have some evidence to search someone’s premises.
Rich Helppie:
Use of the word warrant now rises to the warrants for surveillance that the surveillance court can issue. And given how that’s done in secret, the standard of care seems that it should be very high.
Kenneth Chadwell:
Two types of those-you’re talking about wiretaps now. There are two types of wiretaps. There’s one that I typically handled when I was prosecuting. Let’s say there’s an organized crime figure, and when you wanted to tap their phone, we’d go to a judge and we get a wiretap permission and that type of wiretap would be sealed but not classified. The fruits of that wiretap someday would end up in a court as evidence if we if we struck gold. You’re thinking more of the foreign intelligence surveillance intercepts, I think, and those almost never see the light of day. Again, you have to go to federal judges and in particular, the FISA court judges only, can issue those, but they’re targeted against foreign actors in our country to include terrorist organizations, foreign governments, foreign spies or people associated with them in some way who may be causing a risk to our national security. So these also are running all over the country all the time, usually never hear about them. In order to use one of them in a criminal proceeding, which happens occasionally, a lot of times they would need to be declassified because they’re by definition classified. The intelligence agencies are very stingy about letting prosecutors use those in federal courts. I don’t know if that fully answered your question on that, but its kind of a broad area.
Rich Helppie:
It does. It actually leads to some others. I know you were prosecuting terrorism cases. Would that fall under more criminal statutes, like organized crime, using the first type of wiretap that you talked about, or would that be looking for foreign actors that would require you to go to the FISA court to get a FISA warrant?
Kenneth Chadwell:
It could theoretically be either one once you start talking about foreign terrorist organizations or people associated with foreign terrorist organizations. When we pursued people that we had reason to believe were involved in any way in foreign terrorist organizations, whether they were bomb throwers or merely financial supporters, we would approach them with what was known within the Department of Justice as kind of the Al Capone approach-get them on whatever you can get them on-Capone went down on tax. He was a murderer. That’s how it had to go. And that’s what we would do with terrorist targets in this country, too. Of course, we’d want the most serious charge we could get, such as providing material support to a foreign terrorist organization, that’s right in the in the Federal Criminal Code. If it happened that we wanted to target someone’s phone, we could seek a regular wiretap if we thought it was going to end up in criminal court. We would probably have done it that way. If we were merely trying to help the intelligence service gather intelligence on this person, we might have been okay with a FISA, but often times once you start prosecuting someone, you have to tell them if you have intercepted them, in many instances, so you have to be careful. You have to think ahead. Do you want to tell him that or not? And sometimes you might even walk away from a prosecution because the intelligence you’ve gathered is more valuable than prosecuting this particular person. We can just deport them and be rid of them, keep our intelligence and keep our methods secret. So there are so many different factors going on in those kind of cases, it’s hard to narrow it down and give you a narrow sketch on it.
Rich Helppie:
No, that’s very, very helpful, given the FISA warrants that were sought by the FBI for the surveillance of Carter Page and picked up other people that were around Carter Page. The veracity of the evidence that was coming forward was known to be compromised at the time. I guess we wait to see how that plays out, but if you’d be willing to-and I know that there’s lots of news still to come on this, and if some of this you’d rather not comment-I understand. But coming back to General Flynn, I’m just wondering, in your experience, how unusual was the conduct of the FBI agents going to interview-now this is the national security adviser in his office, again a comfortable setting, and not tell them why they’re coming, not going to the White House counsel, not advise he was at risk. How often would a FBI team have a potential objective of getting someone fired from their job? I could see investigating the crime, but why would they even think that might be an objective?
Ken Chadwell:
Yeah, I’ll answer the last part first. If the FBI and federal prosecutors who were working with them felt that someone was a real danger to the national security, let’s say they’re working for the CIA, for example, one of the factors, obviously, in pursuing them, would be to get them out of position where they could do harm. That, by itself, is not necessarily a big no-no. However, the concept of FBI agents going to a place like the White House and engaging in this type of an interview is really unheard of. You can’t use the term usual. It’s probably the only time, the one time I know of, that something like this happened. There are protocols for this type of thing that would have involved-the Justice Department, contacting the White House counsel’s office, contacting whoever they wanted to interview. None of these protocols were followed. They weren’t necessarily legal protocols that make the case bad, but it demonstrates that something unusual was going on. And whenever I was prosecuting somebody, I would often say to a jury, when people are acting differently than they normally act, we’re real interested, and why is that? And often there was a nefarious reason for that. So I guess I circle back here and say, we have to ask ourselves, why are FBI agents doing something that they’ve never done before and that they never did?
Rich Helppie:
I think that is the $1,000,000 question. So with these FBI agents, how much weight is given to their reports that they found General Flynn was cooperative. They said they didn’t think he was lying. They apparently wrote these 302s. But are the 302s considered gospel, or is it common to edit them after the fact and revised them, or once written, that’s it?
Kenneth Chadwell:
Well, there’s a process for 302s. The agents who are present prepare it. Usually there’s one note taker one person prepares it but the other agent will look at it. Before they’re ever finalized, they go through a chain of supervision for approval. There are sign offs on these, but once they’re final, they’re gospel, they’re much like a police report. The police officer pulls you over, says you were swerving and then you you swore at him when he approached the car. He’s gonna write that in his report, whether you did or not, most people, if they see it in the report, are gonna think you did, even though it’s a one on one scenario there-they’re police, you’re not. Here you got two federal agents who say you said something, if it’s in the 302, that’s what you said. That’s what the jury’s gonna believe you said unless these are just not credible agents for some reason. In terms of making corrections, yes, it’s possible that sometimes there are typos on 302s-some mistake was made that’s obvious to everyone. But in terms of editing substantively after the fact, that’s just not done. That’s not normal. If it is done, it should be labeled as an amended 302. In my opinion, in my practice, that’s what we would have done. We would have said amended so that the defense knew there’s more than one version, and the prosecution’s gonna take a hit for having more than one version, from the jury. But sometimes you have to take the hit. The correction had to be made. You said in your question that some of these agents said that that they believe General Flynn, they didn’t think he was lying. That type of thing would not have been in the 302. The 302 would have said, we asked General Flynn this, General Flynn answered such and such, that’s really all the 302 would have said, and it wouldn’t have had agent impressions in it-the agent impressions that you’ve heard of in the news, they would have been expressed orally, or maybe they were part of the agent notes or something like that, but they wouldn’t have been part of the official 302.
Rich Helppie:
I see. That’s something else that I’m hearing as we record this today. A couple of questions here too relative to General Flynn’s plea. He pleaded to lying. Again, could it be a faulty memory or something? We talked about how the prosecution, just the presence of the investigation, constrain someone economically, which we understand occurred. But there’s also allegations about General Flynn being pressured to sign a plea agreement in exchange for a non prosecution of his son. Is this something that would be considered usual or unusual? Like, is it fair game? Whatever tool you gotta pull out of the bag, you use that to get the plea you want, or are there boundaries that are established?
Kenneth Chadwell:
I would say it’s very common for the federal government to go after relatives or other people that you care about, but to agree not to prosecute them in the end, if you will plead guilty, that’s a real common occurrence. There’s not necessarily anything wrong with it, as long as the other person also committed a crime. A classic, run of the mill example might be a husband and wife both signed the 1040. They failed to report half a million in tax revenue. It wouldn’t be unusual for the husband to plead guilty and the non-press on the wife, not saying it happens every time, but to show you a little bit of the chauvinism of the federal government that I said that the man would take the hit, that’s a typical one, so that’s not necessarily out of bounds. Now you mentioned the costs that climbed with General Flynn, and I mentioned to you previously the Washington D. C. law firms, big money law firms. So just think about this, all this, this is not a RICO case. This is not a terrorism case, right? This is a false statement case and that’s the simplest charge in the federal code maybe-false statement. His legal fees were approaching $3 million. Can you imagine? He had to stop, had to sell his house. On top of that, as I understand it, the law firm had a conflict of interest that they didn’t tell him about. So, I think when this whole thing’s over, General Flynn’s gonna be looking back at them for some litigation.
Rich Helppie:
Sounds like legal malpractice on the surface for sure.
Kenneth Chadwell:
It could also be an unethical practice in terms of the bar. You could get in trouble with the bar. On top of getting sued, if you’ve had a conflict that you didn’t disclose and didn’t resolve in an appropriate way. It’s my understanding that there’s an implication from the special counsel’s office that the law firm could have a legal problem because the law firm had made the FARA reporting for General Flynn and his company. That’s FARA-F A R A-Foreign Agents Registration Act, for work that his company had done with Turkey. And there’s an implication that if General Flynn didn’t plead guilty, that the government might become interested in that.
Rich Helppie:
It’s interesting inside that little city of Washington, D. C. But you mentioned this special counselor, counsel Robert Mueller. He has said that General Flynn provided substantial information about ongoing investigations, and therefore he recommended little or no jail time. I actually read the pleading of that this morning. Since Mr. Mueller was probing Russian collusion, wouldn’t it be logical to conclude that General Flynn helped Mueller advance that case? In other words, wouldn’t there have to have been a case of Russian collusion to be helped in order for General Flynn to help that case and therefore avoid incarceration?
Kenneth Chadwell:
You would think so, right? That’s what your question’s implying. You definitely would think so. And the correct term for what you’re talking about, it’s substantial assistance. That’s a term of [inaudible] in the U. S. sentencing guidelines. It’s ways in which you can drop a drug dealer who has a 10 year mandatory minimum make that 10 year mandatory minimum disappear because the drug dealer helped you, for example. In this particular case, as I understand it, General Flynn sat down for what’s known as proper interviews with Special Counsel’s office on more than one occasion at the direction of his attorneys, and typically during these proper interviews, you’re given the queen for a day letter, which means that you can’t be prosecuted for anything you say, as long as you tell the truth. So General Flynn sat down with the special counsel and the special counsel interpreted his sit downs as far as the court was concerned, they decided to call it substantial assistance. Now there’s a wide range of discretion, terms of substantial assistance. When I was a prosecutor, I didn’t give credit for a sit down unless it went somewhere. I used to call this ink in the book. In order to get ink in the book, I had to have a search warrant because of your assistance, or someone got prosecuted because of your assistance, or some tangible thing that I could point to and say they helped us do that, judge, on such and such day. Now it appears, since General Flynn never became a witness in court against anybody, that the special counsel’s office was very generous in describing whatever General Flynn did as substantial assistance. But if, in fact, General Flynn provided the kind of substantial assistance that I had in mind during my career, you would have seen him as a witness in a trial someplace, helping convict somebody that the special counsel’s office was targeting.
Rich Helppie:
That is a mystery of how he got that recommendation for little or no jail time. Ken, as I’m putting the pieces together here, I’m reminded of-we had the Honorable Judge Milton Mack on the Common Bridge a couple episodes ago. During that episode he said that often jailed defendants-now that’s much lower level on the criminal scale-would plead guilty and accept time served as their sentence just to get out of jail, even though they had not committed the crime. Are there any suspected parallels here with General Flynn making the plea just to put this thing behind him and spare his family?
Kenneth Chadwell:
Absolutely. A lot of people would plead guilty if the alternative-even if they weren’t guilty-was your son’s going to prison, you’re gonna be financially ruined, and you may go to prison too and may even die there. If you could plead guilty, not do a day in jail, and not face those consequences, I think a lot of people would do that. It’s very understandable, and there probably are people who plead guilty in the United States to things that they didn’t do for various motives. I can’t always explain someone’s motive if they don’t tell you what the real motive is. But General Flynn was under a lot of pressure here financially and with his son. Not to mention that his son had recently had a baby. So it wasn’t just his son, it was his grandchild. He didn’t have all the facts. He didn’t know that the agents didn’t believe he lied, so he was faced with a scenario where he was completely unfamiliar, didn’t know anything about the criminal justice system. He was a general. That was his business. It was in foreign territory and his so called expert lawyers there in a prominent firm in Washington, D. C., charging over $1,000 an hour said this is the right thing to do. That’s how that happened this far, as I can see.
Rich Helppie:
Then into this scene now comes Attorney General William Barr, and we have in one camp people that say he is a hero for cleaning this up because of the coercion and the bad representation, etcetera. And at the same time, we have others that are saying the Attorney General is destroying the integrity of the Justice Department. Is there a way that the public can understand, in non partisan terms, the actions and the filings that Mr. Barr has made, and importantly, what checks and balances are imposed on his actions?
Kenneth Chadwell:
Well, the ultimate check and balance this year, happens to be an election year. So attorney generals are appointed by the president, if people don’t like what the president and his underlings are doing, they can vote for somebody else, and they’ll have a new attorney general as soon as January of next year. In terms of what actions Mr. Barr has taken, I have to say that in some ways, Mr. Barr has been extremely lenient, at least from what’s come up publicly so far, with misconduct, by all kinds of people. Let’s go back to the fact that General Flynn speaking to the Russian ambassador was publicized. That was a secret classified recording that somebody in the U. S. Government decided to put on the front page of the newspapers. That’s a much more serious crime than lying to an FBI agent, much more serious. To date no one has been charged with that. Mr. McCabe, number two at the FBI, was found to have lied on four separate occasions, with very clear evidence by the Inspector General. The department under Mr. Barr has announced no prosecution for him. Some people could see that as quite leading it. Mr. Comey apparently made select leaks of potentially classified information of his discussions with the president. I believe it’s been announced that there will be no charge as a result of that. People could say that that is a very lenient, light touch on other shenanigans that have been going on surrounding this whole situation. Mr. Barr, in my opinion, and I was with the department for 30 years-I saw attorneys general that were Democrat and Republican, and this guy’s a straight shooter. He’s very knowledgeable, he’s very honest, and he’s doing what he thinks is the right thing, which most of the attorneys general that I’ve worked under I believe were also doing the right thing. Now, Senator Sessions, he, in my opinion, wasn’t up to the job, should never been pointed to the job. But now, there’s a real professional in the attorney general’s office, and I will also remind you that he recently criticized the president and Mr. Barr said the President was issuing tweets that was making it impossible for Mr. Barr to do his job, and that not only was it an appropriate criticism of the president, Mr. Barr was right on. You can’t have a president who’s issuing statements about ongoing criminal cases that can poison the jury pool to the point where the government can’t proceed with the case. That’s just not the way you do things. So I’ve given you a list there of examples in which I think Mr. Barr has demonstrated his fairness for the rule of law. Regardless of who it is, it’s violated the law.
Rich Helppie:
Those are good reminders to have. I think I joined Mr. Barr and most Americans in asking the President to please stay off Twitter. Just please stop.
Kenneth Chadwell:
This whole situation illustrates the point that the presidents who aren’t also lawyers have more problems it seems. They don’t understand how law enforcement works, how intelligence works, etcetera. So that was part of Mr Trump’s problem coming in as he was neophyte when it came to the law, he probably should have fired Jim Comey on day one. Hillary Clinton would have fired Jim Comey on day one for what he said right before the election about her email scandal, and he had no business going out, saying she wouldn’t be prosecuted, as FBI director that’s not his job, and so a sophisticated person in the law would have fired Comey on day one, McKay would have gone with him, and none of this would have happened, the way I see it.
Rich Helppie:
It was Comey who said he wanted to leak part of the reporting now known as the Steele Dossier, that we now know that Comey knew was false at the time, in order to get a special prosecutor appointed, and he achieved that. He came right out and said that’s what he wanted to do. And yet when you look at the sequence of events, as you’ve described, if the President knew the job better and terminated Comey and McCabe on day one, then there’s no meeting of selective disclosure of what’s in Steele Dossier, there’s no leak to CNN, there’s no appointment of special prosecutor, there’s no two plus years of a Russian collusion investigation that produced no Russians and no collusion, but that’s that’s another one.
Ken, I wonder if we could do a quick lightning round on these things? If they deserve more than the time we have remaining, we could come back another day. It’s just a grab bag of questions that, I know one thing troubling Americans is our FBI, Department of Justice, our National Security Agency, our DNI, our CIA. Are they playing it clean, or are they being used for partisan political purposes? Just this week, we learned that former director of National Intelligence, James Clapper, was saying one thing on cable news, including using the words “aid and abet” as it pertains to Russia, while at the same time under oath, he was saying, and I quote, “I never saw any direct empirical evidence that the Trump campaign or someone in it was plotting or conspiring with the Russians to meddle with the election”. Is that a crime, or is that just playing politics?
Kenneth Chadwell:
I’m assuming he told the truth under oath. Therefore he didn’t commit a crime. It’s not a crime to lie on CNN, but you could get sued for slander and libel and those types of things.
Rich Helppie:
Okay, next on the lightning round. Similarly, we’ve learned that many others, including Susan Rice, Samantha Powers, Sally Yates and Loretta Lynch, each in sworn testimony confirmed that they never saw any evidence. And some, such as Evelyn Farkas, went on cable news egging on public investigations after she had testified under oath that she saw nothing and knew nothing about any evidence pointing to collusion. Is there an innocent explanation here?
Kenneth Chadwell:
I don’t think so. If they’re making conflicting statements, they’re not necessarily in trouble if they told the truth under under oath, as I said previously, if you’re a lawyer not supposed to be out lying, even on TV.
Rich Helppie:
And Adam Schiff does he face any legal jeopardy? I ask the question based on this: Representative Schiff heard secret House Intelligence Committee testimony that unequivocally disputes his public assertions. He described evidence of collusion on multiple occasions in plain sight, compelling, ample, plenty, significant. And now that the record of the secret testimony is in the public, it’s mind boggling. Does he face any legal jeopardy for doing this?
Kenneth Chadwell:
No, he wasn’t in court, he wasn’t under oath. He lied. That seems to be pretty clear now. But he’s from a district with supporters who, apparently many of whom, are believers in the Trump-Russia collusion and as far as Nancy Pelosi’s concerned he did what she wanted him to do, so I don’t think he will even pay a political price. I don’t think he will lose his congressional seat over this, even if he’s been shown to be a liar, and there’s no legal jeopardy for lying in Congress or on TV. He is a lawyer, though, I will say that I don’t know if the California Bar will become interested in this or not. You may not care if he doesn’t want to practice law.
Rich Helppie:
I won’t hold my breath to see how they react. Ken, this has been absolutely fascinating. As we wrap up here, care to speculate on what might be coming next? I know that Mr. Durham is still at work. I know there were due documents delivered last week. Any speculation on what might occur next?
Kenneth Chadwell:
I’ll tell you what I would like to see. Judge Sullivan is the judge before whom Judge Flynn pled guilty, and he’s now requesting that his plea be set aside and the Justice Department is concurring with that request. But this has wasted a lot of Judge Sullivan’s time, and he is well within his rights to hold a hearing on this and find out if people have been lying to him, whether under oath or not. If lawyers have lied to him, if lawyers have have been hiding exculpatory evidence in his court, he could easily hold people in criminal contempt for that. And if I were one of those lawyers, I’d have a lot of sleepless nights worrying about what Judge Sullivan might do to me.
Rich Helppie:
That’s a fascinating speculation and will have to see what the next turn of events is. Ken this has been so informative, and I know that our listeners are going to appreciate this. We have posted on our website the paper you wrote about what every business should know about federal investigations. I encourage all the listeners to to read that. And again, thank you so much for being on the Common Bridge. It’s been an honor to have you.
Kenneth Chadwell:
Thank you very much, Rich, it’s been a pleasure.
