On June 8, former President Donald Trump said he’d been informed by his attorneys that he had been indicted by special counsel Jack Smith as part of the investigation into his handling of classified documents.
It’s the two-tier system of justice playing out yet again, argues Kash Patel, from Russiagate to impeachment No. 1 to impeachment No. 2 to the weaponization of the Jan. 6 committee to the cover-up of the Hunter Biden laptop scandal. What does all this mean for America?
Kash Patel and Jan Jekielek sit down for a live show of Kash’s Corner in Prescott, Arizona.
Kash Patel: Hey everybody and welcome to a very special episode of Kash’s Corner live from Prescott, Arizona, at our dear friends home, the Borlands. Thank you so much for having us. We have a live audience here, and we’re streaming live right now. We’re going to replay at the regular time, 8:00 PM EST. Right now, we’re going to take questions from our audience. Jan, we need some mega-sized news for this mega-sized episode of Kash’s Corner. Do you have any?
Jan Jekielek: Not two hours ago the Trump indictment was unsealed, throwing a wrench into our plans for this episode to some extent. But at the same time, it’s an amazing opportunity to get some Kash thoughts, hot off the presses. Looking at this indictment, Kash, we’ve got 37 counts in this federal indictment.
We’ve got 31 counts of willful retention of national defense information. We seem to have a recording of President Trump talking about some documents or secrets that he knows and trying to hide them. It looks pretty scary to a lot of people. What’s your reaction to this?
Mr. Patel: Jan, I spent time as a Federal prosecutor, a national security prosecutor, and also as a Federal public defender in the district of Miami down south. An indictment that every judge will read out at the beginning of every single criminal case is not evidence of anything. It is a charging document, and it is a one-way street. The prosecutors are allowed to go into a grand jury, produce evidence, and then ask a grand jury, is it 51 percent to 49 percent, maybe a little more than not, that a crime may have occurred.
That’s the standard. Since it’s just prosecutors in the room, there’s no cross-examination, no defenses, there’s nothing like that put forth. Indictments are meant to be scary, especially Federal indictments. I know, because I used to write them. I used to write terrorism indictments. They are meant to serve as a messaging tool and also that we’re serious and will prosecute you with what we can actually prove. In my opinion, this is where this indictment goes wrong.
Mr. Jekielek: Let’s talk about the specifics right at the beginning of the indictment. It’s mentioned that President Trump is recorded talking about documents where he’s telling people that they’re writing a book, that these are secret, and don’t tell anybody something of this nature. It looks like it should put the fear of God into people.
Mr. Patel: It is done, and that’s what happens. They say, “Oh my God, secret recordings. How did this happen? It’s the former President of the United States, the guy running for president right now, and staffers.” There are probably a legion of agents and prosecutors who’ve been on the job for 10-plus years each who have combined to write this one piece of paper. It’s not like somebody wrote it last night.
This thing has been perfected word by word, period and comma by period and comma, the identifiers, the titles, and passages like the one you just cited, because they want it to have gravitas. On today’s episode, we were actually going to talk about the sealed indictment process, but that’s gone now.
Now that the Federal judge has unsealed it, we can actually see the public’s reaction to the indictment. That’s what prosecutors look for because they want to know if they hit the wickets or did they miss? Looking at the things that have been coming out on social media and other lesser media platforms that aren’t Epoch Times, you see the media’s response to this. It’s probably not what the prosecutors wanted, and I’m sure we’re going to get into it.
Mr. Jekielek: Exactly. It seems kind of muted, doesn’t it?
Mr. Patel: Yes, it’s muted to tepid. Now, as prosecutors, the DOJ probably will not comment. I’m surprised Merrick Garland hasn’t scheduled a press conference as the Attorney General. Maybe they’ll do that Monday. I’m not really sure.
When you have a case where you charge a former President of the United States and he is also running to be President of the United States, and we’ve exposed the corruption at the FBI and DOJ, and outlined it on our show over the past seven-plus seasons, you would think the number one law enforcement officer in our country would want to tell the public about the indictment. Now, the DOJ, in my opinion, was caught off guard when the Trump camp was notified and was publicly reported.
They went out front and center and said, “We’ve been notified that President Trump is going to be indicted, but we don’t know exactly with what,” because the indictment wasn’t unsealed yet. They beat the DOJ to it, in my opinion. That’s just another example of how President Trump is able to have his professionalism displayed in the media about how to basically out-maneuver it.
From his perspective, this same FBI and DOJ have been unlawfully leaking during the entire special counsel presentation of Jack Smith’s case against Donald Trump when it favors their narrative. Donald Trump didn’t do anything wrong by putting out that statement. He was notified like anyone else that he had to be at an arraignment on Tuesday in Miami, Florida, at 3:00 PM EST. So, they went out with it.
Mr. Jekielek: Do you think they did this early unsealing with this in mind?
Mr. Patel: We were talking about this on the car ride up to Prescott. That’s exactly what happened, because a sealed indictment is just that. Only a judge, after a request by the prosecution, can unseal the indictment in court. Then, you can produce it, usually done at arraignment, especially in a case that’s involving such sensitivities as with President Donald Trump.
President Trump put them on defense right out of the gate. They were expecting to have their production, their presentation, their attorney general come out next week and say, “Here we are. Here’s our indictment,” a 1, 2, 3 punch. But now their hand has been forced, and we got to see it early.
Mr. Jekielek: One of the things I didn’t see mentioned a lot in there is the National Records Act, which one would expect to see prominently.
Mr. Patel: Yes. Let me walk through the indictment. I don’t want to spend a lot of time on this because there’s so much other stuff we have to cover. We’ve spent the last two years as this guy’s been subpoenaed by the DOJ on this matter about classified documents. They say that President Trump has unlawfully mishandled classified documents. When they have their time to step up to the plate and charge President Trump with the unlawful handling of classified documents, do they?
No, they don’t. That charge is on the books, Jan. It’s part of an extension of the Espionage Act. Do you know what they use? They reach back to an act that has been on the books for a hundred-plus years. It’s called the National Defense Information Rule of Law under the Espionage Act, literally talking about charts and sailing utensils.
It’s so old. In that part of the law, and here’s a kicker that most people will not cover, The National Defense information process that they charged Donald Trump with right now was written 55 years before the Classified Acts ever were written into Congress. That means there was no classified information for 50 years after the NDI. Then you have the classified unlawful handling of classified information come under The Espionage Act.
Why do they go back a hundred-plus years? Because now they’re not saying that Donald Trump mishandled unlawfully classified information. We’ve talked about that extensively, why we believe that’s not the case before. They’re saying he took stuff that maybe was classified, but maybe not, and we’re going to charge him with 30 some counts. They took each document that they felt they wanted to charge him with and they issued a single count.
That’s wildly, overly zealous. It’s going to backfire, and we can talk about that. But one of the big points I wanted to make was that if you’re going to shoot your shot, shoot your shot. If you’re going to kill the king, kill the king. If you’ve been saying for two years Donald Trump is stealing or unlawfully possessing classified information, then charge him with that. But we now know the rule of law, because we on Epoch have so extensively put it out there. A president has universal declassification authority, and he’s a sole arbiter—period.
We’ll get to the Presidential Records Act and how that applies to everything else. I just found it astounding. The irony in the indictment itself, not only do they go to the NDI to charge him with individual documents, but then they flip to the very end when you look at the obstruction and conspiracy charges and they itemize that he was using classified documents to do that.
It’s one or the other. Both legalities can’t be true in the same charging document. Either he took National Defense information unlawfully or he took classified information unlawfully. They didn’t charge the latter. They settled for the former. We’re going to get into the former and why it is a wildly overzealous prosecution when we talk about how Hillary Clinton was handled, how Sandy Berger was handled, and how General Petraeus was handled. We’ll even talk about Bill Clinton’s sock drawer case.
Mr. Jekielek: This is the time to talk about those things. When you read this document, it seems like they’ve really covered their bases. But then, when you dig in a little bit, it doesn’t seem quite so airtight anymore, does it?
Mr. Patel: It’s meant to put you on your heels. Even as a former Federal prosecutor and public defender, every time I read any indictment, I’m like, wow, look at that. Then, I take a breath and I do what I always do, which is to look behind the words and at the totality of the circumstances.
If you recall, and I’m sure you do as does everyone else, Hillary Clinton exchanged at least 36 different threads of classified information on an unclassified homecooked email server that the world had access to and exchanged it with Jake Sullivan and Burns. Jake Sullivan is the current National Security Advisor of President Biden, and Director Burns is the current Director of the CIA. Those three individuals exchanged, without argument, classified information over three dozen times on an unclassified server. What did James Comey do when he was director of the FBI? He comes in and he says, “We just don’t think she was grossly negligent.”
What are you talking about? Either you mishandled classified information unlawfully or you didn’t. He shifted the paradigm. They didn’t charge her with the unlawful handling of classified information. They should have because she wasn’t a president. The Presidential Records Act doesn’t apply to her, and a whole host of other things. But they went to the NDI portion, the National Defense information and he said, “Oh, she wasn’t grossly negligent and she doesn’t meet the intense standard for it.” Because there is an intense standard for NDI and we’ll get to how that ties into Trump’s innocence. They exonerated her. They literally said, “We’re not going to charge you.”
Not having a legal out like the Presidential Records Act, how do you not charge her for disseminating unlawfully classified information, which she did not have the right to possess on servers that could be hacked by China or other adversaries. The two-tier system of justice is now front and center for the American people to see. When we criticize Hillary Clinton’s adjudication of that matter, people thought it was a conspiracy. Now we’re stitching it together.
Mr. Jekielek: I couldn’t help but notice that she’s got hats out on Twitter today about her emails. I was actually saying that’s a pretty heavy troll there.
Mr. Patel: The U.S. government couldn’t look at the 30,000 emails she deleted. What about the destruction of evidence and obstruction of justice there? What about how she was treated? Her lawyers got the red carpet treatment to come into FBI headquarters ahead of time and sit down with preordained questions and answers, so that they could adjudicate their answers based on a wink and a nod.
They didn’t do that for President Trump. It’s a two tier system of justice. We’ll quickly go through Sandy Berger and General Petraeus. Sandy Berger was a National Security Advisor to Bill Clinton, if I have it correct. This guy was literally in the National Archives building stuffing his pants with classified information. No, I’m not making this up. They caught him. He was never charged with the unlawful possession of classified information at a felony level.
Petraeus, and this is not a knock on his storied career as an army general, was caught with reams of classified information while he was the Director of the CIA in the Obama administration, that he had handed over to his mistress, so she could write a book. He also was not president and guided by the Presidential Records Act. He literally disseminated classified information, stole it and gave it to a private citizen, so she could write a book. He gets caught, lies about it, and the FBI interviews him at CIA headquarters.
This is all in the court pleadings. They asked him flat out “General, did you take this material?” He said, “No.” No obstruction of justice count, no lying to federal officers, and no felonies for prosecution for possessing unlawfully classified information and stealing it. Do you know what he got? He pled guilty to a misdemeanor. It’s a two tier system of justice.
Finally, I want to close with more of a legality approach. For the Presidential Records Act, let’s set the sequential stage. National Defense Information goes back a hundred-plus years. Then 50 years after that, you have the Classification Acts that came in that actually classifies information. You can’t retroactively prosecute people before 1951.That’s why this DOJ went 120 years back because they fumbled on the classification issue and they can’t legally prosecute him.
What comes next? NDI, classification statutes, Presidential Records Act, if I have my math right, was passed right around the Carter administration and really went into effect during the Reagan administration. What Congress said was simple, “When you’re President and you leave, you can take whatever you want. When you take it, whether it’s classified or not, it’s your personal property.”
Bush has done it. Bush One, Clinton, Obama and President Trump did it. The case that I want to highlight is a Federal court case involving Bill Clinton’s sock drawer. He literally had secret tapes that he lawfully took out of the White House when he was leaving after he was President and hid them in a sock drawer. The National Archives and the DOJ tried to get them back. They went to Federal court. Do you know what the ruling was in that case?
The Presidential Records Act protects Bill Clinton from ever divulging what was on those tapes and why he took them. He still has them and the world doesn’t know what’s on those tapes and why he hid them in his sock drawer. The Presidential Records Act is the law that was adjudicated in court. That law must now apply to Donald Trump across the board, otherwise there will be another split and another creation of a two-tier system of justice.
President Trump, we’ve seen it resoundingly, whether you like him or dislike him, has said publicly over and over again through counsel and others, “The Presidential Records Act applies to me and also the Declassification Authority applies to me.” Let’s see if the judge down in Miami will apply the Presidential Records Act to nullify a bogus prosecution coupled with the President’s authority to declassify things. We can talk about the obstruction and conspiracy charges as they flow.
But generally speaking, Jan, if you’re going to be charged with obstructing justice, you have to be charged with obstructing an illegality. If President Trump did not commit these crimes, there is no obstruction, there is no conspiracy, and there is no lying to Federal prosecutors or Federal agents. It all flows from that one instance and that’s why the indictment is written in this sequential order.
Mr. Jekielek: Please spell out how the President’s Presidential Records Act would actually be used to nullify this prosecution?
Mr. Patel: Simple. Let’s take the indictment at face value. President Trump brought things with him from the White House when he was leaving the presidency. I believe it was either to Mar-a-Lago or Bedminster, I can’t remember which one he went to first. It doesn’t matter if he took a sticky note or 10,000 boxes of information. At last count, President Obama was still going through 3 million pages of documents he took. It doesn’t matter what’s in them, either, the same law would apply to him.
The Presidential Records Act is simple. The President can take whatever he wants when he leaves office, that’s it. Here’s the kicker, part of that act says it becomes his or her personal property. That means it transitions from being U.S. government property to the personal private property of the past President. That’s the Presidential Records Act in a nutshell.
Mr. Jekielek: You’re saying there would have to be a dramatically different interpretation of law here for this to make any sense.
Mr. Patel: For this to be vitiated.
Mr. Jekielek: Yes.
Mr. Patel: Talk about a vitiation or cancellation of legal rights and statutes. The reason I set it up sequentially is if Congress wanted the Classification Acts and Espionage Acts written in the 1950s to supersede the Presidential act written after it, they would’ve written the Presidential Records Act differently. The law that comes after supersedes the prior unless Congress says otherwise, and they didn’t say otherwise, in the Presidential Records Act creation. One of the parts that really offends me as a public defender is how easily the DOJ got the past Chief Judge of the District of Columbia, the Federal circuit there, to rescind the attorney-client privilege that President Trump shared with his lawyer.
In the indictment, you see a paragraph or two about how President Trump is speaking to his lawyer about options. If you know President Trump, and of course I’m still a senior advisor, and I talk to him frequently, he jokes all the time.That’s his mannerism a lot. You can’t capture that in a black and white typecast. But let’s put that aside for a second.
They took that and they said, “We went to a Federal judge and ruled that attorney client privilege doesn’t apply because there’s a crime fraud exception.” Wow. You just literally told the world, DOJ, that any criminal charged with any offense, or potential to be charged, or anyone who’s not even charged with an offense and has an attorney-client relationship can’t talk about possible options with their attorney.
This is one of the things that his legal team must challenge out of the gate right away. This is not a position that can stand in the United States of America. Our fundamental rights in the Bill of Rights and Amendments 1, 2, 3, 4, 6, and 10 specifically say you have the right to counsel and an unlimited right to counsel.
What the DOJ is trying to masquerade this as is, “Oh no, they were in on it together as a criminal conspiracy.” How? It’s a devastating blow just to justice. Forget whether you’re a Democrat or Republican. You’ve just literally thrown arctic water on the Constitution and chilled the effect of people having conversations with their attorneys about what their options are.
If he had actually instructed them to do something actually illegal, that would be in the indictment, not this other verbiage we’re seeing. Because you don’t lead with your worst evidence, you lead with your best. The way they’ve set it up, especially when it vis-a-vis attorney client privilege is just a shocking abdication of justice. Yet again, you have a two-tier system of justice, because I’ve never seen that happen.
I’ve seen attorney client privilege vitiated when an attorney was actually committing a crime with the individual that he was representing. In that instance, it’s righteous. But in this one, the facts just don’t support it. They’re going back to intent, right? They’re saying to President Trump, “Hillary Clinton wasn’t grossly negligent under the NDI.”
But they’re saying President Trump was when he was talking to his attorney about options and joking about it as he does so often. Now they’re saying, “Well, it’s a different standard. We’re going to shift it around. We’re going to charge him.” I think people are seeing it.
Mr. Jekielek: Let’s finish up with the actual indictment now. Any final thoughts on that?
Mr. Patel: No. They talk about an obstruction, a conspiracy, and they talk about a couple other things that multiple lawyers for President Trump did or didn’t do. The sticking point for me is how involved they were with the conversations President Trump was having with his lawyer or communications, whether it’s a phone call or a conversation in person. That has a drastic chilling effect going forward on due process.
This DOJ is going to have to answer for that. That’s one of the biggest legalities. If I was his counsel on these cases, I would reach out and say, “This is the first pretrial motion judge. How could they possibly have ruled this? I believe the district court judge who ruled on this matter got it wrong. That evidence should be thrown out.”
Mr. Jekielek: There is this issue of jurisdiction. You would expect this to be charged in West Palm Beach or DC, but instead it’s being charged in Miami.
Mr. Patel: Yes.
Mr. Jekielek: First of all, how can that be, and why do you think it is?
Mr. Patel: This is getting into the legal nerd weeds, but basically you can find jurisdiction anywhere you want. But as we’ve known, this grand jury has been sitting and investigating Trump from Washington. They’ve had a coordinate grand jury in Miami. The way you get jurisdiction is just what the law says. President Trump doesn’t live in Miami and the events apparently took place in West Palm Beach where Mar-a-Lago is or where Bedminster is as it was cited in the indictment, in northern New Jersey, neither of which are in Washington, DC.
In my opinion, this is a masqueraded attempt at what we call forum shopping, trying to get the case somewhere where they have the appearance of neutrality. But here’s the kicker. When you charge a document, the very last sheet that you submit on the indictment, there for the public to see is, is there a related case?
Meaning, was there a search warrant or something that preceded this indictment that a Federal judge already handled? Because if there was, it automatically goes there. That’s the law. These prosecutors actually checked no, there’s no related case. Then, what was the case about the appointment of a special master from a Federal judge in Miami all about talking about President Trump’s possession unlawfully of classified documents? They’ve got to come up with an answer for that. The answer is it’s bogus.
Here’s the kicker, and maybe it’s poetic justice depending on your viewpoint of the world. The DOJ drew the same judge, Judge Aileen Cannon, who is a President Trump appointee, down in Miami, Florida, who handled the special master case.
Mr. Jekielek: Which is an almost impossible situation, because there’s like 20 to 25 possible judges out there.
Mr. Patel: Yes, I’m not saying one way or the other how Judge Cannon or any other judge would rule. I’ve appeared before almost every single judge in that district, dozens of those judges, and I live in Las Vegas and those are pretty slim odds, one in 30. You might see some moves by the government to recuse this judge just because she was appointed by Trump. But I don’t think that passes legal muster.
That’s like saying anybody who has an affiliation with any president goes before a Federal district judge and says, “Oh, you’re out because you’re recused by president X, Y or Z.” They don’t get to do that. I don’t know if that’s the goal that they wanted to set out. But now they’re going to say, “No, we just let the case go where it went.” But there’s another reason why I think it’s down in Miami.
Mr. Jekielek: There’s a familiar face over in Miami that you’ve worked on the other side of, Karen Gilbert.
Mr. Patel: Yes. I was told this just like everybody else, I’m allowed to have sources. The Deputy Special Counsel in the Jack Smith prosecution is an individual by the name of Karen Gilbert, a federal prosecutor from the Southern District of Florida, Miami. I’ve tried cases against her. I used to be an assistant Federal public defender against Karen Gilbert in the Southern district of Miami.
What is the Deputy Special Counsel? Just think Weissmann and Mueller. Yes, everybody has a number too. In my opinion, if this is the case and Karen Gilbert is the Deputy Special Counsel, which I believe she is, she is the female version of Weissmann for Jack Smith. What do I mean by that? You can’t just say something like that, Jan, and not back it up.
Wind the tape back to 2009, Karen Gilbert is the Chief of Narcotics in the Southern District of Florida. The biggest narcotics’ importation hub in the U.S. is Miami, and she’s running the entire operation. A physician in Miami in 2009, Dr. Ali Shaygan, is charged in that case with prescription drug violations, with 141 separate counts.
Karen Gilbert is the supervising chief and her two line prosecutors are below her. If you can believe the following, this is what she authorized. She said, “Go wiretap the defense attorney’s offices and phones, so we can hear what the defense attorney is speaking about to the investigator for the defense attorney during the prosecution.” Don’t believe me. Go look at Judge Gold’s opinion on the Ali Shaygan case in the Southern District of Florida. That was outed before or during the trial process.
Quick side note, the judge let the case go to the jury anyway, and didn’t throw it out. The jury acquitted Dr. Ali Shaygan of all 141 accounts without knowing that. But going back to what I believe is the quintessential illegality of an overzealous prosecutor spying on a defense attorney unlawfully, she was about to be throttled by Federal District Court Judge Gold for allowing that type of unethical and what I believe is unlawful behavior.
Do you know what she did? She did what typical cowards in government do, she resigned from that position so she wouldn’t get punished by the District Court of the Appellate Courts. Then, she meandered around. Of course, like anything else in government, if you want a promotion, the bigger you screw up, the bigger your promotion.
Years later, she would come back to be the Chief of the National Security Section for the Southern District of New York. Now, she’s the Deputy of Special Counsel who might be the prosecutor who actually presents the case in trial before Judge Aileen Cannon. If that’s the case, and I believe it is, the public ought to know.
If Karen has anything to do with this case, there are questions that Trump’s defense counsels need to ask the court about the propriety of her conduct in the past, and whether or not it applies to this instance. In a case like this, you have to find out with all of the prosecutors in that office, what are their political leanings?
Who do they donate to and why is there a gag order from Special Counsel Smith’s office preventing the release of his staff? Prosecutors by definition are public officials. You put your name on the indictment, you put your name on the search warrant, you present the case in court announcing your name to the judge and jury. In this case we know zero members of that staff publicly.
Our friend Tom Fitton of Judicial Watch just sued to release the names of the staff. I’m not saying some of the agents who work for the FBI and others should be outed. A lot of them do other types of covert surveillance work. We’re not asking for that, but we are asking for the prosecutors. We demanded them for the Mueller investigation and we found out it was Weissmann, an individual who was reversed 9 to 0 by the United States Supreme Court in the Enron prosecutions.
By the way, what do he and Jack Smith have in common? Jack Smith was the Head of Public Integrity at the Department of Justice when they charged Governor Bob McDonnell in the state of Virginia. Governor McDonnell was found guilty at the trial level. Do you know what the United States Supreme Court did to Governor McDonnell’s case? They threw it out, 8 to 0, for prosecutorial misconduct and unlawful application of the law. That’s who Jack Smith is.
Then, you have Karen Gilbert. Who else do we have? We are asking fair questions. They would be asking us if it was the other way around. But again, the two-tier system of justice allows them to participate with their conspirators in the media to leak information that’s helpful to them. That’s the other thing, Jan, it’s been out for long enough. We live in the 24/7 news cycle. If there was some bombshell explosion on this indictment, there’s a large number in the media that would be writing it that way, and I haven’t seen one.
Mr. Jekielek: We’re talking about the composition of these different teams. I’ve been thinking about President Trump’s defense, and it’s a complicated defense. What kinds of lawyers do you need to do this properly?
Mr. Patel: Yes, it’s a National Security case. However you look at it, it’s a criminal case, but it’s also a National Security case. This is what I would say to people who handle these types of cases. One, you need a National Security lawyer. You need someone who’s an expert in classified and unclassified documents and procedures. They have to have a clearance.