Kash’s Corner: Durham’s Single Biggest Miss; Hunter Biden’s Pretrial Diversion Explained
[FULL TRANSCRIPT BELOW] In this Season 7 finale of Kash’s Corner, we take a look at John Durham’s recent testimony in Congress and Hunter Biden reaching a deal to plead guilty to tax charges—exactly as Kash Patel predicted on the show in early May.
What have we learned from this six-year investigation into the Russiagate saga? What key question did special counsel John Durham fail to properly answer? And why didn’t Congress press him on it?
Did Hunter Biden receive preferential treatment? What does his pretrial diversion agreement mean?
This is the Season 7 finale of Kash’s Corner. We’ll be back in a few weeks!
Interview trailer:
Watch the full interview: https://www.theepochtimes.com/kashs-corner-durhams-single-biggest-miss-hunter-bidens-pretrial-diversion-explained_5351191.html
FULL TRANSCRIPT
Kash Patel: Hey everybody, welcome back to Kash’s Corner. We have a special announcement. Today’s episode is the last episode of season seven. I can’t believe I’m saying that out loud. Thank you so much to our entire audience and fan base for watching the show that Jan and I put together every week with our incredible team at EpochTV and Epoch Times, we’re very appreciative. We have no better subject to end season seven than with John Durham and his final report and where the road goes from here. Jan, it’s a coin toss. Where do you want to go?
Jan Jekielek: Let’s start with the Hunter Biden plea deal. You called it back on May 5th that there would be a sweetheart deal.
Mr. Patel: The prediction I have made is that Hunter Biden will be charged, and soon. They’ll roll it up into what we call this global plea agreement where he basically gets charged with some Mickey Mouse lower-level offenses, and walks into a super light sentence. Then, they will cover up the cover-up.
Mr. Jekielek: It’s not clear that because the investigation is ongoing, there might be other charges. This isn’t a done deal, or it certainly doesn’t seem that way. Certainly, a lot of people are saying that. What do you see happening here?
Mr. Patel: Jan, we did discuss this. We did call this on the show that our audience just saw a clip from. If I’m being 100 percent honest, that is what I try to do here. I wish you were telling me how much I got it wrong. Because then I would be able to sit here today and tell you we are restoring our singular system of justice, rather than bifurcating it even further.
That is the sum and substance of what happened with how Hunter Biden was treated by the Department of Justice and FBI, and how so many others have been treated. I hearken back to my days as a federal public defender. I dealt with hundreds of gun charges in federal court for indigent clients, most of whom were minorities, when I was in the Southern District of Florida down in Miami.
Not one time did I ever receive the request to get pretrial diversion, and we’ll get to that in a second, for any of my indigent clients charged with a gun crime related to a narcotics issue. Not once. The average sentence for these defendants that I represented was three to five years in federal prison. People might think that’s excessive. When you look at it from a neutral standpoint, that’s what Congress intended. Guns and drugs should never go together.
When they do, and you break the law, you should go to prison for a really long time. It makes sense when you simplify it like that. But if you’re going to treat people differently, and one person comes along and you give them a literal get-out-of-jail-free pass, that is a bigger issue than the rest of the Hunter Biden investigation and attack stuff.
We’ll talk about that real quickly. But what is pretrial diversion? This is a kicker for our audience that they really need to tune into. Hunter Biden will never be charged in federal court with any gun crime, or any crime related to narcotics. That is what pretrial diversion is. It literally means the courts and the judges will never see Hunter Biden on the gun or drug charge. He will be diverted out.
It’s a matter that can only be adjudicated by the Attorney General and the Deputy Attorney General’s office, because you’re literally giving him a free pass. If the defendant completes certain classes and stays out of trouble, and effectively is on probation for a period of six or 12 months, that’s it. It evaporates. It’s like it was never there.
Even if he goes into court and pleads not guilty, then changes his plea, then he says I’m guilty, and then has a conviction. Would it be a felony? He doesn’t even have a misdemeanor conviction tied to the gun charge. Another interesting point, and I want to put up for the audience, is the DOJ manual, which I abided by as a federal prosecutor. I want to talk about the Ashcroft memo in a second, but first, I want to talk about pretrial diversion.
I’m summarizing, but our audience can see it. Pretrial diversion shall not apply to those offenses involving firearms and brandishing them. The DOJ’s own guidelines literally say that. You cannot get pretrial diversion for those crimes. I never did as a public defender for any of my clients who brandished a firearm. I tried. Of course, I was a defense attorney trying to champion for my client.
But what happened here? There’s an exception in that regulation, in small writing, it says unless the Deputy Attorney General himself or herself waives this requirement. That’s what happened in this case. Lisa Monaco, the number two at the Department of Justice, who helped, in my opinion, launch the Russiagate narrative back in the day, is currently the Deputy Attorney General.
The special counsel in Hunter’s case, it’s the U.S. attorney for Delaware. He had to seek approval from the DAG as we call it, the Deputy Attorney General, Lisa Monaco, to even get pretrial diversion for this type of case, because the DOJ specifically prohibited it.
It’s interesting that Hunter Biden can get this exception, but none of my clients ever could. Forget my clients, I can’t recall ever even hearing about a defendant who had brandished a firearm related to a narcotics issue and was given pretrial diversion. Unfortunately, it’s a huge loss for our system of justice and rule of law.
Out of all the Hunter Biden stuff we’re going to talk about, that’s the biggest issue and the biggest problem. This DOJ is going to come around and say, “Look, we prosecuted the president’s son.” But you really didn’t. When you give him pretrial diversion, you’re literally saying, I’m not going to prosecute him. What are we left with? Two misdemeanors.
Mr. Jekielek: Why are the headlines saying that he’s pleading guilty?
Mr. Patel: He is.
Mr. Jekielek: To the misdemeanors?
Mr. Patel: Yes, to the misdemeanors. You’re correct. The two counts that the government charged him with were two misdemeanor counts related to tax fraud and tax evasion. Timeout. Remember, the entire IRS team that was investigating Hunter Biden for tax fraud was kicked off the investigation by this Department of Justice. We talked about it on a show some months ago. Then, a whistleblower came forward, and that’s the only reason we know how and why a team who had been working on this case for years from the tax professionals at the IRS was booted.
Now the DOJ brings the tax case, the criminal tax case. Instead of charging Hunter again feloniously with a felony tax evasion charge, they hit him with two misdemeanor counts. That is what he is pleading guilty to per the agreement and the letters that have been made public here.Now, I will caveat, a federal judge has to accept that plea agreement. I don’t foresee any federal judge rejecting this agreed upon plea agreement. But we’ll see. The federal judge has no say in the pretrial diversion felony gun matter.
What they are saying in these two misdemeanor counts, one for 2017 and one for 2018, they’re saying the same thing, “You, Hunter Biden, earned seven figures in salary, in income each year. Each year you’re supposed to report your taxes and pay them for that seven figure salary, which each year works out to a large six figure amount.” People can do the math. They’re saying he’s pleading guilty, they’re saying he paid his tax liability. I have an issue with that because it’s been reported that someone in California came in and paid some of Hunter Biden’s tax liability at some point. But we’re not getting the details on that.
But what we do know now is that Hunter Biden will plead guilty. For a lot of individuals who worked on fraud cases, tax evasion or otherwise, the first thing I would do as a public defender if I ever saw something like this is report to court tomorrow, refile every case that I’ve ever had, and say, “Look, this is what the DOJ did to these clients. Reduce their sentences immediately. Give my client pretrial diversion.”
Now, that’s a pipe dream, because we currently have a two-tier system of justice. But that’s what Hunter’s attorneys have worked out. Now, Hunter Biden’s attorney has said this resolves all legal matters that are outstanding. That’s pretty big, right? What about Hunter’s laptop? What about the stuff in there? What about the bribery stuff? What about the whistleblower? What about the 1023? According to Hunter Biden’s attorney, it’s game over.
Now, the DOJ and United States attorney for Delaware, Weiss, issued a statement that said that the investigation is ongoing. That’s pretty convenient. In my opinion, that’s a red herring. It’s done so the FBI and DOJ can say, and they do this all the time. We used to do it. We don’t really ever shut a lot of cases down, they just keep going. We can say to Congress, “No, the investigation is ongoing. We can’t abide by your subpoena.”
First of all, that’s not even the law. They’ve just created this fiction with their co-conspirators in the media that they can create a rule that doesn’t exist, as if the January 6th committee didn’t apply congressional subpoenas to break every process rule that was ever in place. Fast-forward to this scenario, and the DOJ and FBI are going to say, “We know there’s outstanding congressional subpoenas. We know we’re supposed to produce all these documents to you and all these committees, but we’re not going to.” As Mr. Weiss has stated, the investigation is ongoing.
It’s a complete ruse, and I don’t have any faith in that whatsoever based on the handling of this case. Hunter Biden’s attorney, from a defense attorney’s standpoint, would never resolve a matter without resolving the entire matter. What do I mean? If your client is being investigated for bank fraud and a murder, and maybe some white collar crimes. You don’t just say, “Plead to the murder. You guys keep going on the bank fraud and the white collar stuff.”
That is the opposite of what a good defense attorney does. You wait to have a global plea resolution for all of it so you’re done. I’m more inclined to believe him than I am the DOJ and the FBI when they tell me this investigation is still ongoing.
Mr. Jekielek: It’s in the defense attorney’s interest to have it all resolved.
Mr. Patel: Of course.
Mr. Jekielek: That would be a very successful defense attorney.
Mr. Patel: Yes. He was asked on some show, literally, do you recall ever being questioned about the contents of Hunter Biden’s laptop? He said, “No, I don’t ever recall that.”
Speaker 3: Do you have any idea if Hunter Biden’s laptop had anything to do with this investigation? Was it used?
Speaker 4: I don’t. No, I don’t. I mean-
Speaker 3: Were you ever asked about it?
Speaker 4: I can’t recall being asked about it, to be honest with you.
Mr. Patel: I found that pretty interesting. Either he has a terrible memory, or the government never bothered to ask the defendant in this case about the laptop, which contains so much evidence regarding all these issues. The tax. We’ve seen the gun photos smattered across the tabloids for months and months and months. We’re not going to get into them because they’re a bit too risque for Kash’s Corner.
If we’re taking him at his word, the FBI never looked at the bribery stuff, the bank document stuff, the fraud stuff, and the whistleblower that the FBI have on their payroll telling them that Hunter Biden and his family has taken seven figures from Chinese cutouts and the CCP?
That would be shocking, but that would also seem to be related to how John Durham performed his duties. We’ll get to that. That’s the sum and substance of where it stands with Hunter Biden. Ultimately, he’ll be sentenced, and the recommendation will be probation, which the government has made clear. The sentencing guidelines will be for probation, since he’s pleading guilty to two misdemeanor counts, so it’s unlikely he will ever go to prison.
Mr. Jekielek: Just very briefly, how would a case like this normally go, in your experience?
Mr. Patel: With a fraud case, you never have an entire unit at the IRS of criminal investigators be kicked off your fraud case. That doesn’t happen. That’s not what it’s for. Remember, when the Democrats had the majority, they hired 87,000 new IRS agents with guns. Which one is it? You want more IRS agents investigating people criminally, and then you just want to pull off the group that’s professional, seasoned, and career who are targeting one individual. You can’t have both.
What normally would’ve happened is the IRS would have been able to complete the investigation criminally with the DOJ. With the fraud levels that I’m seeing, those aren’t misdemeanor tax evasion charges, those are felonies. You would’ve been charged with a felony. As I said before, no one would ever receive a waiver outright for a gun charge of this fashion to get out of the entire judicial system forever. I have never seen it happen.
Mr. Jekielek: Just to be clear, when you say forever, that means on these charges.
Mr. Patel: On this gun charge.
Mr. Jekielek: Okay. It’s not like this ultimate get-out-of-jail-free card.
Mr. Patel: Yes. But I don’t see this DOJ coming back next week and saying, “We found we actually did have information on this other gun and these other drugs, and these other photos and this other material, and so we’re going to charge you for that now. That’s the other point, Jan, and it’s a good one. They spent five years getting to this point.
Look, fraud cases take time. I’ve spent years on cases. But I don’t spend five years on a case to give you pretrial diversion and two misdemeanor charges. Something’s up. Congress has more work to do. But if I’m being honest, I have less faith in the folks in government than I’ve had in a long time.
Mr. Jekielek: Let’s talk about this in relation to these subpoenas that Congressman Jordan and Congressman Gohmert have. How does this impact their work?
Mr. Patel: It shouldn’t. It shouldn’t impact it at all. Speaker McCarthy said that the investigation will go on. This will actually move it along quicker because the DOJ is saying, “Hunter Biden is finally being charged and sentenced.” But we’ll see. They brought Director Wray to the heels of impeachment, and I think they balked too early.
They should have continued with that impeachment process because Director Wray still hasn’t turned over the documents. He still hasn’t turned over the recordings. He still hasn’t turned over fully unredacted versions of the 1023 for members of Congress to read.
That’s what the subpoena called for, and he’s still in violation of it. Yet somehow they get rewarded for obstructing Congress’s constitutional oversight authority. People wonder why they never cooperate with Congress. It’s because Congress never calls them to account. At least this Congress hasn’t.
During other Congressional sessions, as you’ve called in recent history, they have taken violators of contempt of Congress and subpoenas and sent them to jail, literally. It doesn’t matter whether you like those people or not, that’s what happened under the law, because that’s what the law says. Again, it’s a selective application of the law. The two-tier system of justice isn’t just in the executive branch, the DOJ, the FBI, the courts, and the judicial branch, but also in the legislative branch.
Mr. Jekielek: We’re going to see what happens.
Mr. Patel: Yes. I don’t think there’s going to be much excitement after this except in the media. Just look at the headlines in the legacy media, some people are literally applauding Hunter Biden for taking responsibility. Other people are castigating the DOJ and FBI for its treatment. If you just look at the truth of the matter, I don’t really understand how you can arrive at such diametrically opposing positions, unless you want to carry a narrative that you know to be false, to help a political agenda. That’s what I believe many in the media are doing.
Mr. Jekielek: There’s a lot more fodder for journalists as well as narrative creators out there now. This morning, as we’re filming here, special counsel John Durham is having his last hurrah testifying at the Capitol. I’ve been hearing a lot of very diverse opinions on what happened there. Who knows this case better than you do? Why don’t you dive in?
Mr. Patel: It’s a unique time for me, having launched the Russiagate investigation with Chairman Nunez, and then running it through Congress. Then, we handed it off to the DOJ to the point where they finally appointed special counsel in John Durham. I met with him personally to reveal the contents of our investigation and make recommendations and referrals on where he should go criminally with the authorities of the DOJ.
Now, we have his completed investigation and his report to Congress. It’s been quite the five to six year journey to get here. John Durham is a career, seasoned prosecutor who knows exactly how to prosecute, and has done it for 20 years for Democrats and Republicans. The one time he failed in his career was now. He missed the mark. I was hoping that Congress would ask him about some of those questions. Most of the people in Congress, not surprisingly, took their five minutes of questioning to get a political headline out there.
Mr. Jekielek: Just dig into that for me a bit. What do you mean there?
Mr. Patel: Yes, sure. Some folks took it upon themselves to take a victory lap for Hillary Clinton. I didn’t really understand the logic on that, but they did it anyway. Other folks took time to personally attack John Durham, and called him a hero up until his report was submitted to the Attorney General. They reversed course immediately because of his findings. I don’t really understand why you need to personally denigrate a man if you disagree with his professional concepts. There’s another way to do it, but that’s what many took to.
Others lauded his findings as now unambiguous. They are above reproach. He said the definitive word, and what we found in our Russiagate investigation—there was never any lawful basis to launch an investigation into at that time President Trump’s election campaign—never. That’s shocking that the FBI ginned it up. John Durham spared no words saying otherwise.
He said, unequivocally, that the political bias of the people of the FBI and DOJ leadership dictated how they viewed the evidence and submitted it to a FISA court, and then, lied and withheld evidence from that court to unlawfully obtain a warrant to surveil a political opponent. We’ve been talking about this for a long time. The good news is on that front, the truth has finally come out, and a lot of America is only hearing it now for the first time. That’s just the reality.
Not everybody is like you and me, or the many folks around the country who participate or watch or observe this every week. This is a one in a generation report for them. They’re paying attention, which is good. Now, they’re going to appreciate what we’ve been talking about in depth, whether it’s Russiagate, Hunter Biden, President Trump, President Biden, January 6th, impeachment one, or impeachment two.
All these things have a common tether, and that is that the universal system of justice has been destroyed. Now, you have a two-tier system of justice running on parallel tracks. Americans are going to wake up and say, “This is a big, big problem.”
If we can’t have accountability for the people in government who commit crimes, then how is the public ever supposed to have trust in government, whether it’s the DOJ or the FBI? That’s going to take time to heal. Those were some of the characterizations that were going on while John Durham was testifying.
Mr. Jekielek: A number of people have said that key obvious questions were not asked. What do you think?
Mr. Patel: A lot of key obvious questions, maybe either were asked and not answered, or asked and not pressed. The biggest one was that John Durham, a special counsel with all the authorities of a DOJ prosecutor, including compulsory service of processing and grand juries to investigate, why didn’t he compel the testimonies of people he outlined in the prosecutions brought in Sussmann, Danchenko, and Clinesmith that were part of the conspiracy to defraud the United States at the FISA court and launch this investigation?
I’m talking about Comey, McCabe, Strzok, Lisa Page, Charles Dolan, Fusion GPS, Sussmann’s law partner, Marc Elias, Bruce and Nellie Ohr from the DOJ, and Kevin Clinesmith, the guy who pled guilty to John Durham for doctoring a document and lying to the FISC about Carter Page, the target of a FISA warrant. Why didn’t you put him in a grand jury? His answer was what made me lose almost all the respect I have for his work on this project. He said, “It’s complicated.” I’m paraphrasing, “They never really pressed it.”
Speaker 5: You identify the failure of the FBI to interview Dolan as inexplicable. Totally agree. But as I go through your report and look, there are people who declined to be interviewed, not only Dolan, Danchenko, Comey, McCabe, Presta Strzok, Page, Glenn Simpson, among others. It seems inexplicable to me that you didn’t compel their testimony. Can you explain that at all?
John Durham: Sure. First, let me make it clear that it is as disappointing, perhaps more disappointing to me and my colleagues, that these people would not agree to be interviewed. Some of them had a lot to say publicly, but they refused to be interviewed by our folks. I’m not going to speak to any particular person because I don’t want to violate any rules, but let me give you the general kinds of considerations that go into these things.
First of all, the only way in which you can compel, as it were, a person’s testimony, would be to get a court order after somebody has asserted a Fifth Amendment privilege. One factor, there are multiple factors I’ll go through here. But one factor is that a grand jury subpoena doesn’t give a federal prosecutor the authority to simply force people to talk about things that the prosecutor, or in this instance, the investigative reviewers might be interested in.
In order to properly use a grand jury subpoena, you need to have an active grand jury investigation that’s ongoing, and a reasonable belief to believe that the person that you want to have come in has relevant information about that information. Otherwise, you run up against claims of grand jury abuse or claims of trying to set a perjury trap, or other bad faith reasons. You can’t just subpoena people [inaudible] to make them talk, you can subpoena people when you believe that they have relevant information. So that’s a factor.
We also take into consideration if a person has previously refused to cooperate, they won’t cooperate with you on matters, even matters that they’ve previously talked about. And on prior occasions, those people have repeatedly said, “I don’t recall, I don’t remember,” and so forth and so on. You have to make this prudential judgment. Well, okay, if you were to subpoena a person because you can make an argument that they have information that might be relevant to the investigation, is it going to be worth the effort to have them come in and then repeatedly say, “I don’t recall. I don’t recall.”?
You look at the most sensitive piece of information that you all saw in the classified information, that source. Mr. Comey was asked about that in a congressional hearing under oath, and he didn’t recall it. So you make the decision, okay, we are likely to get something or not.
Speaker 8: Mr. Chair?
John Durham: We over?
Speaker 9: Yes.
John Durham: All right. [inaudible]
Speaker 9: Gentle Lady from Vermont, our newest member, is recognized for five minutes.
Mr. Patel: Prosecutions are complicated. You’re talking to someone who is subpoenaed by the Department of Justice and sent to the grand jury in the Trump Mar-a-Lago documents case. I had no problems speaking about the truth, but I told them I had no interest in cooperating. I hope one day my grand jury transcript is revealed. The prosecutors had an option, the same option John Durham had, and that’s why I bring it up.
They can say, “Okay, you’re not going to cooperate. Thanks, we’ll move on.” No, they went back to the federal district court and said, “We want you to force Mr. Patel to cooperate with us. We’re going to grant him immunity through you, the federal judge, the chief judge,” which is the only way they can do it. That’s what they sought, and that’s what they received.
I went in and told the truth. I bring that up because that’s what you do as a prosecutor if you really want to put someone in the grand jury to further an investigation. Why didn’t John Durham issue any subpoenas for any of these individuals? Why didn’t he put them in the grand jury and have them say, “No, I’m going to either take the Fifth or not cooperate?” Then, they could go to the chief judge, as the DOJ does so often and say, “We want to give them immunity. Once they get in here, they can tell us whatever they want, they just can’t lie to us.” It will advance our prosecution.
That question alone was never properly asked, and as far as I know not properly answered, at least with a justification. From a prosecutorial standpoint, that is gross misconduct to just leave people out there because they told you through their attorneys they weren’t interested.
I cannot imagine a United States in which that would be the policy of the Department of Justice. But evidently it is and was for special counsel, John Durham. I was hoping for a better answer, but nothing like that came out. To me, that was the singular biggest miss. I don’t know if he got tired or jaded, or the media got to him, or his team got worn out. But to lay down and take a knee like that makes it so partisan.
Now you have people saying, “The reason he didn’t investigate them is because they were innocent.” The other side is saying, “You should have investigated them. You told us they were corrupt, you told us they essentially committed crimes, and you failed. You’re basically public enemy number one.”
I don’t know if he cares about his personal credibility in the media. I don’t think he does. He’s pretty clear about that at one point during the hearings. I see it as an almost total failure. I don’t think Congress is going to do what it takes to pick it up.
Mr. Jekielek: The biggest type of criticism from people who are knowledgeable on these issues, was that there was some other agenda. There was some other agenda other than trying to figure out what happened.
Mr. Patel: Yes.
Mr. Jekielek: That’s weird to me. That’s what I understood.</