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Bob: Federal investigations seldom begin with an uproar. Internal rules keep fledgling probes on the down low, lest evidence or reputations be destroyed. Before elections historically the Justice Department is especially mum so as not to influence voters on the basis of mere suspicion. Not lately though. Since the ascension of Attorney General Bill Barr and especially in this election campaign, the Justice Department has been weaponized as a political tool for Donald Trump.
Unproven and unfounded allegations are the warheads and the delivery system is the agency's Department of Public Affairs. Former federal prosecutor Ankush Khardori wrote this week in Slate about the transformation of a historically circumspect Justice Department press office into a Trump propaganda machine. Ankush, welcome to On the media.
Ankush: Thank you for having me.
Bob: First of all, before Bill Barr and Trump, and let's say not counting the criminal Nixon administration, how independent of politics was the Justice Department and the Public Affairs apparatus?
Ankush: There is an element of political work as part of every Justice Department at the level of priorities and directional movement of federal law enforcement. One administration might focus on immigration, another might focus on white-collar crime. That really was about it. The Public Affairs Office served a fairly mundane role, circulating press releases or making people available to announce an indictment and the resolution to a criminal case. Perhaps also to announce like a major investigative initiative or the results of a major project.
Bob: My historical memory is that when you go to the Justice Department and ask if they're investigating something, they say, "Mind your own beeswax. We don't volunteer information about ongoing investigations."
Ankush: That is true. There is an exception in Justice Department policy for matters of significant public concern to assure the public that the department is doing something about it. A prototypical case to maybe put a finer point on it would be like a terrorist bombing or a school shooting. Maybe a racially motivated violent crime. Those are the sorts of cases where the government will say, "Look, we are looking into this." Years ago, the Department looked into the civil rights compliance of the police department in Ferguson, Missouri under President Obama and Eric Holder.
Eric Holder: We have determined that there's costs for the Justice Department to open an investigation to determine whether Ferguson police officials have engaged in a pattern or practice of violations of United States Constitution or federal law.
Bob: The past six months had nothing like that.
Newscaster: The Justice Department is dropping its criminal case against President Trump's former national security advisor retired General Michael Flynn.
Newscaster: A shocking reversal in the criminal case of President Trump's longtime friend and ally, Roger Stone. It's led to a protest and charges of interference.
Newscaster: The attorney general William Barr's probe into the origins of the 2016 Russia investigation is now expanded into a criminal probe.
Bob: A highly public constant commentary by the attorney general and press releases from the Office of Public Affairs. Historically, this is an aberration, is it not?
Ankush: It's definitely an aberration. These kind of discrete one-off cases where the department is intervening for ways that at least appear to be designed to shore up the President's or the Republican party's political interests or to further media narratives. That's highly, highly unusual. I have thought long and hard about this. I think quite possibly wholly unprecedented in the modern area.
Bob: The pre-election period has been especially fecund in terms of politicization of potentially criminal matters. Let's start most recently with the story last week from Luzerne County, Pennsylvania.
Newscaster: The US Attorney for the middle district of Pennsylvania, David Fried announced that nine military ballots were discovered in Luzerne County that were opened improperly. The announcement was made even though no charges have been filed and that's something unusual for a federal investigation.
Ankush: The reason why we don't know that much about what actually happened is precisely because this information became public at an extremely early stage in the investigation process. I've never seen anything like it, a document that unilaterally announces an investigation that nobody knew about, nobody was asking about, involving a fact pattern that may not even involve a crime.
Bob: You found the news coverage of this more or less okay. It explained the possibilities about what might have taken place that do not seem sinister. They also discussed potential sinister explanations but I think generally the unlikelihood of political mischief. But you wrote in Slate that the nature of the mainstream coverage was essentially beside the point.
Ankush: The apparent objective of the press release was not really to get it covered one way or the other so much in the mainstream press but to inject it, I think, into this sort of conservative silo of media.
Newscaster: According to DOJ, several military ballots were 'discarded'. Investigators have recovered a total of nine ballots so far. "Not surprisingly," the DOJ says, "an overwhelming majority of those ballots were cast--" for guess who? Donald Trump.
Ankush: It excelled in its objective on that front and I think for the purposes of Trump and Bill Barr. That's really what they're angling for is to try to shift the terms of the narrative within this particular channel of the media ecosystem.
Bob: Now that the nine discarded Trump ballots are part of the narrative of election 2020, we can be pretty certain that it doesn't matter what the results are of the local police investigation or the Justice Department investigation. Trump will cite them again and again and again as proof positive that what he's saying all along is true, that the Democrats are trying to rig and steal the election by destroying mail-in ballots meant for him.
Trump: They're sending millions of ballots all over the country. There's fraud, they found them in creeks, they found some with the name Trump. Just happened to have the name Trump, just the other day in a wastepaper basket.
Ankush: He only really cares about the portions of the story, particularly the start of a story that helps him. If it doesn't end the way he likes, he'll just discredit it or ignore it. I should also add, by the way, the nine Trump ballots got revised down to seven over the course of the day. The department had to issue a revised press release, correcting the number that it had initially included as Trump ballots which is another reason why you don't do this sort of thing. Precisely because in early investigation facts change constantly.
Bob: All right. There's Luzerne County. Likewise, the recent announcement of charges of fraud relating to the Paycheck Protection Program, PPP which was I guess the business arm of the Trump administration stimulus efforts this year, that resisted oversight from the get-go. With that as the background, tell me about the Department of Justice press conference on the PPP fraud.
Ankush: Months ago, the Department announced that it was going to be looking into fraud in the PPP initiative. A couple of weeks ago, the Department convened a press conference with senior officials in the department.
Brian Rabbitt: Today, the criminal division's fraud section along with our law enforcement partners on this stage and elsewhere in this room are announcing that as a result of law enforcement operations over the course of the last few days, the criminal division has now criminally charged more than 50 people who allegedly committed fraud to obtain money from the Paycheck Protection Program.
Ankush: 50 people is not some hallmark or touchstone in the Justice Department guidance. When the Justice Department pursues initiatives aggressively, there are often dozens of people charged and things like this. They convened this press conference I think on its face solely to basically try to gin up some favorable coverage for an effort that had been flailing a little bit and for reasons that you described and some others has some question marks around it.
Bob: If the President were going into the election amid suspicions that this trillion-dollar rescue fund was being used as a slush fund for political favoritism or anything of the like, this presumably was meant to make the administration look scrupulous and heroic in catching the bad guys.
Ankush: Yes. It's interesting because it does that but it accomplishes a couple of other objectives too. One is it portrays them as being on the ball concerning anything related to the pandemic but there is a strong conservative antagonism toward these sorts of programs, generally, and a strong conservative theme that programs like this that are designed to help "regular people" are riddled with fraud. For that reason, they're not worth doing in the first place. I think that is not an element that we should entirely ignore here.
I think it's telling that while they have focused on this area of the stimulus work for potential fraud, we have not seen any work regarding other lending facilities, including fed lending facilities and fraud in those programs or in other major areas of pandemic related fraud. Certainly, there have been some problematic cases that have emerged from this work. I don't mean to entirely write it off. A lot of them have been failed efforts to defraud the program in what we would otherwise regardless pretty basic crude bank frauds that would otherwise not get any attention.
It would be the equivalent of basically submitting a false mortgage application. A lot of them are like that. Others are cases that have involved some pretty scintillating forms of expenses, like some cars and fancy jewelry and things like that.
Bob: I want to move on to the not especially legendary Operation Legend. This was supposed to be the Trump administration cavalry rushing in to save the democratic run cities from anarchy. Can you tell me about it?
Ankush: Yes. This is an operation the Department initiated a couple of months ago, it was supposed to be a crackdown in response to what they called "a sudden surge of violent crime in the country". They've been supposedly deploying increased federal law enforcement resources of certain cities.
Bob: Yes, but it turns out, not so much policing, just a lot of press releases.
Ankush: They've been for at least the last month or so, issuing these daily press releases about cases that they have been pursuing as part of that work. The press releases are a very interesting reservoir of documents if you read them, and I do, because a lot of them describe crimes that are not trivial but are the crimes that occur every day throughout the country that would otherwise get no national attention whatsoever. One that I cite in the piece that I wrote includes someone who essentially got pulled over for driving somewhat recklessly and happened to have a firearm on him but was a convicted felon.
Now, this is illegal, it's very illegal, it can subject you to heavy criminal penalties to be a felon in possession of a firearm. This is the back pattern that is happening all day, every day all over the country. These press releases read to me this bizarre federalized, local police blotter. They're very interesting and weird documents.
Bob: You were a federal prosecutor. When you see resources of an under-resourced Justice Department devoted to street crime, what do you think? Does it not go against the grain of everything you were taught about the priorities of the Federal Department of Justice?
Ankush: I would actually put something of a defense up in their favor a little bit on this. Now, I don't think that these cases should be promoted so heavily, nor should they be the focus of some intense resource-driven project. Cases like this, a felon in possession, they do matter to people in their communities. They are some of the cases that people like to see, get attention.
On the other hand, federal law enforcement resources are scarce. The federal law enforcement apparatus is not the only law enforcement apparatus we have in this country, right. We have state and local police forces. Oftentimes, for street crimes, what we would call low level street crimes like a felon in possession case, the federal government will defer to local police authorities and let them handle those sorts of cases.
One of the things that's very strange about this is it's hard to detect how much of this reflects the real reallocation of federal law enforcement resources, or a public relations campaign designed to promote a particular narrative that may or may not be actually tethered to either a real change in crime, much less a real change in federal day to day law enforcement resources.
Bob: One event that has been widely seen as having been-- well what turned out to be a death blow to the Hillary Clinton campaign, was the announcement by then FBI Director James Comey of reopening an investigation into Hillary Clinton's emails. As we inch closer and closer to election day, it would surprise nobody if there were a similar October surprise that was unleashed on the electorate. How do we as news consumers discriminate between Justice Department propaganda and some genuine news development that should, in fact, make us rethink our choice for President?
Ankush: That's such a critical and challenging question. I think that there are a couple of rules of the road that I would suggest. One is that there are a couple of topics, that have attracted particular attention of the President, where I think announcements in those areas should be regarded presumptively very skeptically. One is regarding potential vote fraud, similar to the episode in Pennsylvania. I think if we hear announcements in that vein, or on that subject, people should be initially very skeptical.
The other is regarding the investigation being conducted by John Durham, the US Attorney for Connecticut who is investigating the investigators, looking into potential misconduct in the conduct of the Russia investigation. Now, Bill Barr has been according to reports, pressuring Durham to do more to release findings or to charge people in the run-up to the election. So far, he's charged one person for altering an email. I would not be surprised if we get more news on that front. I think that's probably at the top of the list that people are expecting and concerned about. That's one area, I would strongly suggest that people on certain topics be very, very skeptical.
The other is, I think it is important for people to look for certain hallmarks of good news stories in [unintelligible 00:16:27] area. One of the things that I thought that mainstream outlets did quite well dealing with the ballot collection in Pennsylvania was they consulted in and quoted prior DOJ officials who almost uniformly said this was very, very unusual. A good story in the run-up to this election in any kind of fact pattern that appears to be unusual really should be not taking the Department at face value but consulting other people.
I say that, and it seems obvious, but the Department enjoys a very, very broad reservoir of credibility from the press and the public. It is often the case that when they put out an announcement, it does get just filtered on to the public. We have seen some of this, for instance, in the PPP fraud press conference that I mentioned, there were stories written that basically just filtered out that information and regurgitate it with little if any context in it.
Bob: We often talk on this program about hammers and anvils. I guess you could look at the expropriation of the Public Affairs function of the US Department of Justice, as an anvil, by letting these stories get out there and get discussed in the press, well covered or carelessly covered it doesn't matter. It becomes the anvil for Trump in particular, and, and his proxies and his cronies and his attorney general to hammer on to proliferate these sinister scenarios that they love to flog. Is that what's happening here that these press releases are the anvils for lies?
Ankush: I would say so. I think that they're an integral part of a communication strategy that is designed to mislead the public. You say press releases but I want to be clear, that's a little bit more than that. Yes, on some level, it's just press releases, but it's also really the use of every tool that is available to a Public Affairs Office. At the extreme, the case of the page instructs text messages, that was the surreptitious dissemination of raw investigative material to journalists on the condition, in that case, that the journalist not disclose where they'd gotten it from. I have no idea sitting here, whether that's the only instance of something like that. The press releases are the tip of the iceberg here. I fear that a lot more is going on that we know nothing about.
Bob: Ankush, thank you very much.
Ankush: Thank you for having me.
Bob: Ankush Khardori is a writer, lawyer, and former federal prosecutor. Hey, stay tuned to your feed because later in the day, we will have another pod extra this one about Tuesday's Presidential Debate.
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