Reluctant Grand Juries & John Bolton Plea

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2:32This is Bloomberg Law with June Grosso from Bloomberg Radio. Former National Security Advisor John Bolton has agreed to plead guilty to a single count of retaining classified information and pay a$2.25 million fine under a deal with the Justice Department first reported by CNN. The deal would resolve the criminal case filed in October that charged Bolton with 18 counts of either retaining or disseminating classified information, including diary-like notes from his in government that officials say he shared with his family members as he was preparing a memoir about his time in office. Bolton is expected to submit the change of plea at a rearraignment hearing at the U.S.

3:23District Court in Maryland on June 26th. My guest is national security expert Brad Moss, a partner at Markzade. Brad Bolton had said that he was targeted for political reasons. His lawyer had argued that the conduct at issue was reviewed years earlier and deemed not criminal, and Bolton vowed to defend what he said was lawful conduct. So are you surprised that he's taking a plea and folding at this point? So I think there are multiple factors that came into this for John Bolton. One, you have to think of time and expense. Even if he's victorious, even if he takes this through pretrial motions and ultimately to trial, even if he succeeds and is acquitted, that's going to be potentially millions of dollars in legal fees, all kinds of time of stress and effort.

4:13And he had to look at it from the view of, is there a way that I can mitigate the pain, not put my family through all of this and potentially still either avoid prison time or minimize it? And so I think that's likely why they took this step. I mean, and you have to think about it. There were numerous charges in the original indictment. I think it was at least 10. This is down to a single charge of retention of national defense information that he's pleading guilty to. It speaks a bit to some of the weaknesses that would have existed in the government's case. There absolutely would have been the vindictive prosecution pretrial motions that would have had all kinds of fights over discovery.

4:54There would have been fights over whether or not he had declassified it as an original classification authority himself when he sent stuff over. They would have invoked some of Trump's arguments about how he could have declassified things. So it would have gotten messy and it would have dug into some of the underlying weaknesses in the government's case if this had gone through. So, you know, that's why I'd say that Bolton took this deal to minimize any future pain and potentially get off with no more than maybe 30 days or something like that. I could easily see him getting a very light sentence here.

5:28And for the government, they get their scalp and they get to go home. Bolton has exposure here. He could face anywhere from no time behind bars to five years in prison. So that's something that prosecutors can make a recommendation on and the judge is free to ignore it. Whether it's a formal agreement or a recommendation, that would be part of the plea. If the judge chooses to go beyond sort of what was recommended, then Bolton has the option, of course, to pull back that plea and move forward. But you look at similar plea deals for situations like this. Think about David Petraeus, who got off with a slap on the wrist, got, you know, I don't know if he even got probation.

6:13You know, you think about Hillary Clinton, there wasn't even an indictment because of the weaknesses in the case. There's a lot of instances where I could see a judge looking at this saying, you got the$2 million fine. I might give you 30 days in prison at most, or I might just put you on three years supervised probation. You know, John Bolton, whatever my political and policy differences with him, as far as I know, has no criminal background. You know, this would be a first time offender. So that would all play in his favor in terms of limiting jail time, just like it would have for Donald Trump.

6:47If, you know, he hadn't won reelection, he would have had that option of playing up first time offender, elderly man, you know, card that John Bolton, no doubt, is going to play out. Is it a weakness in the case against him that he didn't actually have the classified documents? It was notes about meetings, I think? Yeah, everything as far as I can tell, and I had to relook through the indictment myself to try to refresh my memory, was diaries, which doesn't make this okay. You can't transcribe information into an unclassified diary that is information you know is classified that you got from classified documents.

7:25That's not like a secret loophole to it. But he's not the first and he's not going to be the last who writes up these diaries because everybody who works in government at that kind of level eventually wants to write a book and make some money. So he had these diaries. He arguably should have known that the information he was documenting in them and sharing with people was classified. That was the crux of the case. The weakness for the government was going to be twofold. One, they were going to have to do a whole lot of classified discovery and classified presentations to link where he got the information to what he documented in the diaries.

8:00So that was going to be a whole lot of Classified Information Procedures Act work. But then they were also going to have to get around this issue of when have you ever otherwise prosecuted someone for diaries? When have you ever otherwise prosecuted someone for talking about it to a family member? As far as I know, no one's ever gotten prosecuted in that context. It's always been the documents. It was the documents for Trump. It was the documents for Petraeus. You know, everybody else always had the actual documents with classification markings on them. And that just didn't exist here for Bolton.

8:34You mentioned Petraeus. Do cases about mishandling classified documents often end in plea deals or do they go to trial? For the most part, they almost always end in plea deals. There's rare sort of exceptions to the rule. You think about Jeffrey Sterling and the alleged leak to The Times and what he had provided to James Risen. That actually made it to a trial. But for the most part, when people took home classified documents, you know, to think of the guy in Maryland from a few years back, that was a plea deal. Think of Edward Snowden, if he had ever been prosecuted and gone to trial, was in the United States, that would have almost certainly gone to a plea deal.

9:16Think of Chelsea Manning, who ultimately, I believe, ended up some sort of a plea deal. I know there was an aspect that actually went to trial, but some of the limitations on that. You know, in the end, the government usually can win that, but it becomes extremely time consuming and burdensome because of all the classified information that's involved. There are procedures. You have SEPA. There's a way to do it. But they really don't like to. I'm surprised in one sense that they reached a plea deal here because, I mean, President Trump so obviously dislikes Bolton. I would think that this wouldn't make him very happy.

9:53He's going to get the headline he wants. It's going to be headlines today, the next couple of days, and then again when Bolton is sentenced saying Trump hater John Bolton pleads guilty and is sentenced to XYZ days for stealing classified information. That's what he wants. He doesn't actually care how long Bolton's in jail. He cares about the headlines and he cares about the procedural stories because that needs his ego and they can run on that and say, see, all these people who came after me, they're the ones who are really crooks. This case started under the Biden administration. But is this case dissimilar to other cases against Trump's perceived political enemies, like the Jim Comey case and the Letitia James case?

10:39This was the one that when it first came up, when they first did the search warrants, and then eventually when they had the indictments, that a lot of people who had cried foul about some of these other cases like Comey, Letitia James, Adam Schiff, Lisa Cook, everybody kind of held their fire a bit because there was some actual fire. It wasn't just smoke. There was some legitimate meat on this bone. And what Bolton did certainly was not appropriate. Whether or not he would have lost that trial, you know, 6-5 and pick them, you know, it's really hard to kind of know for certain, especially in a jury pool in the District of Maryland.

11:16That would have played against Trump to an extent. I could certainly see him potentially getting acquitted on several of the charges, but there was something there. There was a legitimate basis, which was why it got started up in 2021 and which is why it went ultimately to prosecution. Now, whether or not they would have ever bothered if it wasn't John Bolton, that's something they would have fought in the pretrial motions over selective prosecution. So here's a question I often ask lawyers when there's some obvious evidence that's found. Why would he keep incriminating evidence at his home in office for the FBI to find?

11:57Why not get rid of it? So there's a level of arrogance that comes into play for what I would describe. And this isn't a liberal, conservative, Republican, and Democrat thing. This is a senior level government person thing. When you've been at that senior level for so long and everybody's always handled everything for you on the detail side for classified information, you just kind of feel like you can do whatever you want. He's not the only one. Like I said, we saw what Petraeus did. We saw how Clinton got tied up and stuff. They get sort of disconnected from the nuts and bolts of it. And they start thinking, oh, I can just keep this.

12:31No one's ever going to care. And to be fair, most times the government really doesn't care. They don't have time to prosecute all these. I guarantee you, if you went to the House of every former senior official from the last four administrations, you'd find something. You'd find diaries. You'd find notes. You'd find a number of things that potentially could be classified because people are stupid and they're arrogant. So I think that played a role for Bolton, who had been a senior official in two different administrations. The man that was the pinnacle of the idea of the D.C. National Security Insider.

13:02We'll see what happens in court on June 26th. Thanks so much, Brad. That's national security expert Bradley Moss, a partner at Mark Zaid. Support for the show comes from Public. Public is an investing platform that offers access to stocks, options, bonds, and crypto. And they've also integrated AI with tools that can assist investors in building customized portfolios. One of these tools is called Generated Assets. It allows you to turn your ideas into investable indexes. So let's say you're interested in something specific like biotech companies with high R &D spend, small cap stocks with improving operating margins, or the S &P 500 minus high debt companies.

13:42Chances are there isn't an ETF that fits your exact criteria. But on public, you just type in a prompt and their AI screens thousands of stocks and build a one-of-a-kind index. You can even backtest it against the S &P 500. Then you can invest in a few clicks. Go to public.com slash market and earn an uncapped 1 % bonus when you transfer your portfolio. That's public.com slash market. Add paid for by Public Holdings. Brokered services by Public Investing, member FINRA SIPC. Advisory services by Public Advisors, SEC Registered Advisor. Crypto services by ZeroHash. Sample prompts are for illustrative purposes only, not investment advice.

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16:06Whatever your goal, 4imprint makes it easy to find your perfect promo match. Explore the possibilities today at 4imprint.com. 4imprint. 4certain. On the verge of trial and after a closed-door hearing, there was a stunning implosion of a case against a group of protesters accused of blocking a federal agent from an ICE facility in the Chicago suburbs last year. The reason? Misconduct by federal prosecutors at the grand jury. Judge April Perry said her trust in prosecutors had been broken after finding that they improperly spoke to grand jurors outside the grand jury room, personally vouched for the strength of the case and excused grand jurors who disagreed with the government's case.

16:56It's not the first instance of federal prosecutors in the Trump administration having cases dismissed because of misconduct in grand jury proceedings. My guest is former federal prosecutor Jimmy Garoulet, a professor at Notre Dame Law School. So, Jimmy, here's the misconduct that Judge Perry found. Improper prosecutorial communications. Prosecutors spoke to grand jurors outside the grand jury room. A prosecutor personally vouched for the strength of the case, and grand jurors who had disagreed with the government's case were excused from deliberating. These aren't subtle mistakes. They're pretty basic, aren't they?

17:37They're shocking. It's a scandal. Prosecutors are supposed to be a minister of justice, not a minister of corruption, dishonesty, deception. And that's what we're seeing here. Is there any way they could have been mistaken about any of this? Only in this regard. So one of the interesting dynamics we've seen over the last year is that a number of prosecutors have left the Department of Justice. And these are some of the more experienced prosecutors. And they have left because many, at least, believe that they've been placed in an untenable situation where they've been required to bring criminal charges when they didn't think there was sufficient evidence to support criminal charges or dismiss criminal charges when they felt that the case should go forward.

18:24And those more experienced prosecutors are being replaced by inexperienced prosecutors. And I've seen this firsthand. When I was a federal prosecutor in the U.S. Attorney's Office in Los Angeles, individuals that were considered for an AUSA position, which were considered really prestigious positions, they probably on average had close to five years experience before being hired by the Department of Justice. I had a former student of mine here at Notre Dame Law School who was recently hired after she graduated from law school. She had zero legal experience. She'd recently graduated from high school.

19:03And so I think that could be one of the problems that They're bringing in these inexperienced lawyers to assume these very difficult positions, a federal prosecutor, serious cases, complex cases, and they just don't have the experience or they don't have the training. So that would be, in essence, to kind of give the Department of Justice the benefit of the doubt. But with respect to the prosecutors in the Chicago case, I think this was just the unjustifies means situation. They wanted to get indictments against these Chicago protesters, and they were going to take no front answers. So basically, this was an attempt to rig the grand jury system to ensure that they would get the indictments that they were seeking.

19:43Because at least one was an experienced prosecutor. I don't know about the others. So the judge said, I've read hundreds, if not thousands of grand jury transcripts involving prosecutors who are the most junior of prosecutors. I have never seen the types of prosecutorial behavior before a grand jury that I saw in those transcripts. So let's go through some of what she found so disturbing. Explain what's wrong with personally vouching for your case before a grand jury saying, you know, this case, this is a winning case. I know it's a winning case, something like that. No, the grand jurors are to make the decision of whether or not there's probable cause to believe that a crime has been committed.

20:22And if so, whether there's probable cause to believe that the target of the grand jury investigation committed the crime. And those decisions should be made exclusively on the evidence that's been presented to the grand jury, not the prosecutor's opinion regarding the strength of the case, the strength of the evidence, but on the evidence itself. And this is very basic, fundamental, you know, ethics, professional responsibility 1.0. This wasn't a mistake. I mean, this was just a blatant violation of fundamental rules of professional responsibility and ethics. Also, I mean, talking about blatant, Talk about speaking to grand jurors outside the grand jury room and then dismissing some grand jurors.

21:05How would they expect to get away with that? I mean, is the problem that the grand jury process is secret? And how does a defense lawyer or a judge know what's going on? That's exactly the case. So the grand jury proceedings are secret proceedings only by the prosecutor. And so because of the secretive nature of the grand jury proceedings, I'm sure the prosecutors think, well, whatever we're doing that's improper, whatever misconduct we're engaged in is not going to be revealed. It's not going to be disclosed. And I mean, this is not the only case. There was a case in in Wyoming, a panel of three judges threw out nine indictments, including some for murder after the examination of the grand jury proceedings revealed misconduct by the U.S.

21:53attorney himself. the Trump-appointed U.S. attorney who had had no prosecutorial experience at all, to your point. So you have inexperienced people leading a U.S. attorney's office and going before grand juries. But some of this seems really basic. Oh, it is. It is very basic. You know, there's really no excuse. I mean, this goes to just fundamental principles of fairness and due process, independence, impartiality. As I stated, this is an attempt to rig the system to obtain the result that the prosecutors are seeking to obtain, which is shocking considering the fact that the grand jury system really favors prosecutors.

22:37As I stated, there's no judge, there's no defense lawyer, the standard of proof is merely probable cause, and then in addition, the prosecutor doesn't have to prove probable cause by unanimous determination of the grand jurors. It's enough that 12, all they have to prove is 12 of the 23 grand jurors, just a simple majority, have concluded that there's probable cause. And further, the rules of evidence don't apply in the grand jury room. So prosecutors can introduce hearsay evidence, double hearsay, triple hearsay evidence. And despite all of these rules favoring the prosecution, these prosecutors still felt that it was necessary to rig the system.

23:23They were confident that they could prevail based upon those rules, and they needed to reach out and have improper contact with the members of the grand jury. With respect to grand jurors that had ruled or decided against them in prior cases, they decided, well, let's just exclude those grand jurors. We don't want them on the grand jury because they might decide against us. I mean, this is just shocking conduct and most disturbing. It's not limited to the fairness and the injustice of a particular case, but it creates a loss of trust. There's this loss of trust in the Justice Department that's beginning to emerge.

24:06And judges across the country are beginning to question, can we really believe what the prosecutor is saying? Can we really trust the arguments and the representation that prosecutors are making? And when we get to that point, that becomes a crisis. I think that we're really on the verge of a crisis within the Department of Justice. Yeah, the judge in this case, Judge April Perry, told Andrew Boutros, who is the Trump-appointed U.S. attorney for Chicago, who appeared in court to apologize for the mistakes made. Judge Perry said, quote, I do believe deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing.

24:49That trust has been broken and that's been happening in courtrooms across the country. And what we're beginning to see is in more and more cases, defendants are challenging, raising legal challenges to the integrity of the procedures, the process inside the grand jury room. And this is now an argument that is being raised in multiple cases across the country. Again, challenging the regularity of fairness, the presumption of regularity. And again, I think it is creating a crisis of trust, crisis of trust within the Department of Justice. And not only with judges, but I think more broadly with the public at large.

25:29If the public starts losing trust in the criminal justice system, starts losing trust in the integrity of prosecutors' offices, then that does not speak well for the future of criminal justice in this country. As you mentioned, lawyers in Don Lemon's case, as well as the indictment of the Southern Poverty Law Center, reference this Chicago case. So defense lawyers are trying to get the transcripts of the grand jury proceedings, which had always been super, super secret, shall we say. But I mean, Judge Perry is thinking of releasing the grand jury transcripts here. How else can defendants really find out what happened in the grand jury room?

26:13Well, that creates a problem because you stated, you know, grand jury secrecy is it's embodied in rule 60 of the rules of criminal procedure. And it's important because we want persons that appear before the grand jury. We want them to testify openly, freely, be frank and open about what evidence they may have. And if their identity is going to be disclosed, then this could have a chilling effect on their willingness to participate in the grand jury proceeding. So it has implications far beyond the individual case. But when the seed of distrust has been planted with the courts, with the general public, we're gonna see more and more challenges to the integrity of the grand jury process.