Note from Elie 3/26: DOJ’s Selective Do-Nothing Era
09:00 Share

Thanks to IP.

Learn more at phrma.org slash IPWorksWonders. Hey everyone, Ellie here, wishing you a happy Wednesday. Well, this is it. I'm officially retiring the joke, I guess you can call it a joke, that I make seemingly every week about how normally we do Fridays, but something crazy happens, so we're doing Tuesday, Wednesday. You get it, you've heard it a million times. You probably understand how my kids feel now. I do tend to repeat my jokes. I'm retiring this one. Everything's crazy. It's Trump 2.0. You never know when stuff's gonna happen. We're gonna do our best to keep up with it.

As always, love to hear your thoughts, questions, comments. So keep them coming. Letters at Cafe.com. When Hillary Clinton used a private email server while she was Secretary of State, she became the subject of a years-long Justice Department investigation that culminated with a public announcement by the FBI director that she had been, quote, extremely careless, end quote, but would not be indicted.

When Donald Trump took dozens of classified documents to his gilded ballroom and bathroom at Mar-a-Lago, he got indicted and he might've ended up in prison if he hadn't won the 2024 election. And when it emerged that Joe Biden kept classified documents at his private home and office, DOJ under Biden himself appointed a special counsel who concluded that Biden had quote, willfully retained and disclosed classified materials end quote, but on balance should not be charged.

But don't expect the same scrutiny to apply where our nation's top defense and national security officials group chatted in the widely available Signal app about the operational details of an imminent military strike in plain view of a national journalist.

This will be the new normal. Under the halting, distracted leadership of Attorney General Pam Bondi, the Justice Department has made no mention thus far of the Signal scandal, which dominated news headlines since it broke on Monday. It's certain that Bondi and everyone else in DOJ leadership knows what happened, yet I feel confident predicting that the Justice Department won't lift a finger to investigate this mess.

Even as we stand at the start of the story, the end is already plain. Nobody's getting indicted or even meaningfully investigated by the Justice Department. There's my bold prediction. If I'm wrong and if DOJ does open up an actual criminal investigation here, and by the way, ass covering window dressing does not count, then throw this article right back in my face and have a laugh.

Now, I'm not going to be that former prosecutor guy who reads a couple stories in the press and declares definitively that it's the crime of the century and we need immediate indictments. Typically, as here, when a story first breaks, we know some key facts, but we don't yet have all the necessary details.

And real-world prosecution is more complex than a simple paint-by-numbers approach where we tick off the legal elements and declare the case proved. Prosecutors must exercise discretion beyond the technical requirements, and they need to consider the practical prospects and impact of a criminal charge. So it's a bit much to declare right now that people ought to be indicted. But there's more than enough in the public record to justify and require

Thank you.

Based on Goldberg's reporting alone, prosecutors should consider the federal law that criminalizes mishandling of sensitive government information. Now, that law gives us three primary elements that must be proven to support a criminal charge.

First, the information must, quote, relate to the national defense, end quote. Now, Goldberg's careful in his article not to disclose sensitive operational details, but he reveals that the Signal text chain contained information about planning for a then imminent military attack on the Houthi militia in Yemen. After the story broke, Defense Secretary Pete Hegseth sputtered furiously that he had not texted war plans to anybody, quote,

But that clever, if not very smart, attempt at wordplay fails on its face. Hegseth is either outright lying, the National Security Council has confirmed the authenticity of the text reported in Goldberg's article, or he's playing some sort of lawyerly game here where he secretly assigns some highly specific, inapplicable definition to a term like war plans and then maintains that whatever happened doesn't meet his special criteria for it. Perhaps in his view, it's not a war plan without a declared war

Who knows? The fact is the text related in detail to the targets, weapons, and sequencing of a military strike, which eventually happened precisely as the participants had discussed it. We can check this box easily.

Second, the information must have been, quote, removed from its proper place of custody, end quote. Again, this looks straightforward. A signal group text with a journalist attached is plainly not the proper place of custody for any classified or sensitive information, nevermind for specific military attention.

hack plans. I recently connected with an 82-year-old on a work project. When I asked him how he'd like to stay in touch, he casually replied, oh, just text me on Signal. This isn't exactly ironclad legal canon, but generally speaking, if an 82-year-old and I, and I should say, by the way, for years, the way I would find the CNN webpage is I would Google CNN and then click on the top search result

It's true. If we are using Signal to chat, then it's not sufficiently secure for the highest levels of the U.S. military and national security apparatus. The third requirement is the trickiest, that a person acted with, quote, gross negligent. Most criminal statutes require some level of intentionality, but this is the rare federal law that creates a crime based on essentially outrageous sloppiness.

Now, here's where we need more information. How did the signal text chain start? How long was it operational? Were the participants using government-issued or private phones? Did anybody express misgivings about the security risk? Or was anybody so warned? Why did the participants choose to communicate through the same means as a pack of old college buddies in a fantasy football league?

The reality is we'll likely never learn the answers to these key questions, or more precisely, DOJ will never learn. I expect journalists will continue to pursue the story and develop even more information. It's a perfect see-no-evil approach for Bondi and her brass.

If they never open a case and they never take a look, then they'll never have all the facts needed to make a potentially difficult prosecutorial call. Blissful ignorance can have its virtues in regular life, but it's not an ideal touchstone for the United States Department of Justice.

Bondi is to be forgiven here because heaven knows her attention has been focused on other pressing matters of state, releasing binders full of pointless documents relating to Jeffrey Epstein, pursuing law firms who have the gall to represent interests that the president finds vexatious.

Publicly fawning over Elon Musk and Doge and vowing to chase their tormentors to the ends of the earth. Throwing out the Eric Adams indictment because he's promised to be a good, compliant mayor. Hosting pep rallies at which the president casually refers to prosecutors as horrible people, scum, deranged, and thugs, his words.

How can one attorney general manage all that and still have time to assign a pressing national security investigation to the Justice Department's own national security division? So whether or not anyone in the Signal group chat crew ought to be indicted, I can say this much without hesitation. Somebody needs to take a look. And I can say this even more confidently. Nobody will. Thanks for listening, everyone. Stay safe and stay informed.