• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce break down the new DOJ guidance that limits when prosecutors can secretly obtain reporters’ phone and email records, the inspector general report that criticizes the FBI for failing to pursue sex-abuse charges against former USA gymnastics team national doctor Larry Nassar, and a federal judge’s decision to prohibit the Department of Homeland Security from admitting new applicants to the DACA program.

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce. 

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

JEFF BEZOS

VIDEO: Jeff Bezos, Blue Origin Crew Launch Into Space, 7/20/21

GARLAND MEMO

First Amendment to the U.S. Constitution

H.R.4382 – Free Flow of Information Act of 2017

“Use of Compulsory Process to Obtain Information From, or Records of, Members of the News Media,” Attorney General memo, 7/19/21

“DOJ Formally Adopts New Policy Restricting Use of Compulsory Process to Obtain Reporter Information,” DOJ press release, 7/19/21

“Justice Department curtails seizure of reporters’ phone, email records in leak investigations,” WaPo, 7/19/21

“Garland tells prosecutors not to seize reporters’ records,” NYT, 7/19/21

LARRY NASSAR

18 U.S. Code §1001 – Statements or entries generally

“Investigation and Review of the Federal Bureau of Investigation’s Handling of Allegations of Sexual Abuse by Former USA Gymnastics Physician Lawrence Gerard Nassar,” DOJ Inspector General report, July 2021

“FBI Statement in Response to Inspector General Report,” FBI, 7/14/21

“FBI failed to pursue Nassar sex-abuse allegations, inspector general finds,” WaPo, 7/14/21

DACA

5 U.S. Code Subchapter II – Administrative Procedure Act 

“Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA),” Biden administration, 1/20/21

Texas v. U.S., U.S. District Court for the Southern District of Texas, order, 7/16/21

“Consideration of Deferred Action for Childhood Arrivals (DACA),” U.S. Citizenship and Immigration Services

“U.S. judge blocks new applicants to program that protects undocumented ‘dreamers’ who arrived as children,” WaPo, 7/17/21

OREO THINS

“Oreo Thins’ New Protection Program Helps Parents Camouflage Their Cookies From Kids,” Mashed, 7/16/21

Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

Hi Joyce, how are you?

Joyce Vance:

I’m well, Preet. How are you doing this week? Lot’s going on.

Preet Bharara:

I’m good. Unlike four people, you and I have our feet firmly planted on the earth. We’re recording this in the 10:00 a.m. hour on Tuesday, and Jeff Bezos is already been up and back from space.

Joyce Vance:

I’m a space junkie. My mom used to wake me up at 3:00 or 4:00 a.m. in the morning, California time, to watch the Apollo launches. So, seeing the joy in every line of Wally Funk’s body as she came out of their spacecraft, I thought it was amazing. I know that there’s a lot of criticism of this as a billionaire stream, but it was all about Wally Funk for me.

Preet Bharara:

Yeah. I just think she should pay some taxes.

Joyce Vance:

I’d love to see him pay taxes. But more than that, I’d love to see him turn his interest in space into something that’s productive and good for our country. And maybe for some of the folks at Amazon and other employees who deserve better than they’ve gotten.

Preet Bharara:

Good. And what’s weird to me is I haven’t found it enough. I’m not an expert. How can it be the case, given how complex the space launch is, in a rocket launch is, and how much planning there has to be over a long period of time, that just so happens to be the case that three billionaires Richard Branson, Jeff Bezos, and Elon Musk figured out a way to do it within days of each other. Like, it’s not a competition. I don’t think that’s normal.

Joyce Vance:

I mean it’s the new space race. They are the new Russia and China, and the US, except its three billionaires trying to get out first.

Preet Bharara:

It wasn’t the case that the person originally who was going to fly into space with Bezos was some other very rich person who bid $28 million to go up in space.

Joyce Vance:

And remained anonymous. They were anonymous.

Preet Bharara:

But then have to cancel based on, “a scheduling conflict”. What is the thing that you had to do that made you cancel your flight to space? Like, I don’t think like regular orthodonture.

Joyce Vance:

I think it’s like terror not orthodonture.

Preet Bharara:

I had a scheduling conflict.

Joyce Vance:

It just at the last minute went, “This is crazy. I’m not doing this.”

Preet Bharara:

I totally forgot. I have to get my oil changed.

Joyce Vance:

I hear my mother calling.

Preet Bharara:

Yeah. I’d like to know the identity of that person to understand how important his schedule is.

Joyce Vance:

Supposedly, they’re scheduled on one of the two other flights. There’s one scheduled in October and one in November of this year. So, maybe we’ll learn their identity and find out what the mystery date that kept them from going to space was.

Preet Bharara:

Yeah. I’m not sure what’s scheduling conflict should have caused him to cancel any event.

Joyce Vance:

That’s sort of an intriguing detail to be continued.

Preet Bharara:

To be continued. So, let’s talk about earthly news. So, there’s something fairly dramatic that happened this week, just on Monday. There’s been all this controversy dating back many years, about what protections the First Amendment should afford reporters, journalists who are in the business of gathering news.

Preet Bharara:

And when they get leaked information from within the government, and that information is sensitive, it is against the law to do that. Prosecutors historically, have tried to figure out ways to prosecute serious leaks, especially if it compromises intelligence. And one way in which prosecutors have over the years, tried to do that, and it would make sense in ordinary circumstances if it wasn’t the journalistic profession.

Preet Bharara:

And it wouldn’t be any issue and wouldn’t be controversial is you subpoena the person to whom the leak occurred. In this case, however, that’s people who are in the Fourth Estate and work in a profession. That’s the only one, the only private profession that’s mentioned in the Constitution, the First Amendment freedom of the press.

Preet Bharara:

And so, this conflict emerges between whether or not reporters should be compelled to reveal sources versus a nation state’s interest, America’s interest, in protecting against breaches of national security. And over time, it’s been a difficult balance. There have been arguments about it, and lots of debates have had it.

Preet Bharara:

But what Merrick Garland has done is pretty dramatically and it changed from prior policy, issued guidance within the Justice Department to all prosecutors that basically says, under almost no circumstances, will talk about the exceptions, no prosecutors can use compulsory process in a leak investigation to get information from journalists about the sources of their information. How big a deal is this?

Joyce Vance:

In some ways, a big deal, in others, not. Let me explain what I mean by that. It’s a big deal because it’s a pretty bold statement in favor of the First Amendment and the freedom of the press. This is always a balancing act. How do you balance First Amendment rights against others? Well, here Garland’s made it pretty clear where he strikes the balance.

Joyce Vance:

And I know you have stories from your time in the senate about how elusive legislation was. And I hope you’ll share some of them because it is important for people who believe in the First Amendment and the free press. By the same token, it’s in some ways less important.

Joyce Vance:

I was recounting to you that in my eight years as a US attorney and in my previous tenure as the appellate chief in my office, we never tried or considered issuing a subpoena to a member of the media, in part because internally, that’s frowned upon even without this policy, because these are very rare subpoenas. This isn’t something that’s happening every day in a functioning Justice Department.

Preet Bharara:

No. It doesn’t happen frequently at all. In fact, it’s very, very, very rare. On the rare occasions, it happens and it comes out, it’s a big deal and very controversial for obvious reasons. But one thing that maybe is worth commenting on, there’s a reason why in lots of areas, in both in Justice Department and elsewhere, that high-level approvals are required.

Preet Bharara:

And some people might say, “Well, that’s not a law, that’s not legislation, that’s not being overseen by a judge.” But the way human beings work, is if you have a junior prosecutor at my office or your law office, and they realized that in order to issue a subpoena to a newspaper, they have to go up and get the approval of the US attorney, himself or herself.

Preet Bharara:

People don’t like to do that. And in other cases, if you have to get the approval from the attorney general, and you’re a prosecutor in Kansas, that’s a very daunting thing. So, it does have some proper regulatory effect. And that’s what the rule was before. But it doesn’t happen a lot. It happens very, very infrequently.

Preet Bharara:

By the way, there are some exceptions, and we’ll get to them in a moment. But subpoenas are issued sometimes to journalists who have written a story and there’s a trial. And you want to prove the authenticity of the story and the fact of the story, you would call the journalist. But that’s not revealing any sources. So, that’s a different kind of thing.

Preet Bharara:

One thing I want to ask you about you, and you use the word balance. What’s interesting and striking about the new guidance from Merrick Garland, is he says, “The Department of Justice has long employed procedural protections and a balancing test.” The balancing of press protection against national security concerns. And not only does each strike the balance differently. He says, literally, “There are, however, shortcomings to any balancing test in this context.”

Preet Bharara:

And he goes on to say, “A balancing test may fail to properly weight the important national interest in protecting journalists from compelled disclosure of information revealing their sources.” He seems to do away with the balancing test altogether. That’s what’s striking to me.

Joyce Vance:

His thumb is pretty heavy on the scale. There are a couple of rare exceptions, but this shouldn’t be a surprise to anyone. His jurisprudence in the area of the First Amendment was really imbued with his belief that because the constitution creates this profound First Amendment right of a free press, that in order to fully effectuate that guarantee of a free press, you have to have policies like this.

Joyce Vance:

You have to always put your thumb heavily on the scale. I don’t think this is a surprise to anyone. It follows President Biden’s comments that his administration wouldn’t engage in this kind of behavior. And of course, the trigger for all of this was the disclosure that the Trump administration particularly as it approached the end of its time in office.

Joyce Vance:

But perhaps throughout was targeting journalists who wrote stories, not necessarily that were dangerous or that implicated national security, but that perhaps cast people in the Trump administration in a light that they would have preferred not to have been cast in. And I’m looking at you Jeff Sessions and thinking about stories, about his conversations with the Russian Ambassador Kislyak, and other stories along that vein that they really took issue with.

Preet Bharara:

But you mentioned that this directive came from Biden. This is an example of a policy prescription. That it is appropriate for a sitting president to give to the Justice Department, not, “Hey, go protect my ally. Or can you go watch investigation of my adversary,” but a general, neutral policy change, like being more hospitable to the First Amendment and eliminating the balancing test or creating a different balancing test. Do you agree that’s totally appropriate for a president to do?

Joyce Vance:

Yeah, I do. And I think that this is a great place to draw that distinction. Presidents don’t get to have a say so in who’s getting prosecuted criminally or even in some significant civil cases and how those cases should be opened, investigated, and conducted. This is policy. This is the appropriate engagement between the White House and the Justice Department.

Preet Bharara:

So, just to review some of the guidance, the new prohibition applies to pretty much everything. You and I have said subpoenas a few times, but it’s not just subpoena, it’s also subpoenas, warrants, court orders issued pursuant to various court orders issued pursuant to various statutes. And even in civil investigations or something you and I have had signed, I’m sure signed many times, civil investigative demand, which is a subpoena outside the criminal context.

Preet Bharara:

And it applies regardless of whether the legal process seeks testimony, physical documents, telephone toll records, metadata, or digital content. And it also applies not just to compulsory process towards journalists and news organizations directly, but even third-party service providers of any of the foregoing, which is the normal way that you get toll records and phone information, and communications from people in any event.

Preet Bharara:

But we should make clear, by the way, notwithstanding the language of striking a balancing test, that there are exceptions. And there are circumstances under which even Merrick Garland has made quite a shift. And in a rhetorical shift where prosecutors can seek information from journalists, and they’re kind of interesting, and they’re kind of obvious, I think.

Preet Bharara:

And I don’t think that’s getting too much pushback from the journalistic community. So, it does not apply when a member of the news media is under investigation for a violation of criminal law, and bless my heart, such as insider trading. So, for example, if a journalist is not acting in the capacity of a journalist and is receiving a tip from someone who’s the CFO of a fortune 500 company, and then trades on it.

Preet Bharara:

The fact that you have an ID from the New York Times or The Wall Street Journal, or someplace else, doesn’t give you immunity from being investigated for crimes that you may have been involved with. I don’t think anybody is going to be having a problem with that.

Joyce Vance:

Preet, did you really just say, “Bless my heart?” We’re going to make a southerner of you yet.

Preet Bharara:

I actually meant bless Merrick Garland’s heart because I bless my heart. Also, by the way, and this seems obvious too, but it’s interesting that it’s reduced to writing. If you’re a journalist, and you’re a recipient of information that constitutes a leak or violation of law, that’s fine. But the manner in which you came into receipt of that information is important.

Preet Bharara:

If you came in to receipt of that information by yourself, breaking and entering, or using criminal methods, or hacking or something, no protection applies to you. And that is as it should be, as well.

Joyce Vance:

So, it seems to me that among the exceptions, may be the most important one, at least if there’s some hope of moving this forward into future administration’s and getting the legislative action that Garland likes is the clear statement that it does not apply to folks who are agents of a foreign power or members of a foreign terrorist organization. This has always been one of those issues of uncertainty. You can have someone who’s a legitimate journalist, right, somebody who’s at RT.

Joyce Vance:

But to the extent that they’re acting as an agent of a foreign government, they don’t fall within this prohibition.

Preet Bharara:

Right. And probably, the exception that matters the most to people because we do have to protect the country, and so, the prohibition does not apply, “When the use of compulsory legal process is necessary to prevent an imminent risk of death or serious bodily harm, including terrorist acts, kidnappings, specified offenses against a minor, incapacitation or destruction of critical infrastructure.”

Preet Bharara:

So, if that’s in the mix, and there’s a lot of work being done by the word, imminent, imminent risk of death or serious bodily harm, and that’s something that would be debated by people and would be debated within the department. In that case, we don’t stand on ceremony so much. And people can get information from reporters and journalists. And also, by the way, in circumstances like that, you would imagine there’s a back and forth before the issue is of compulsory process.

Preet Bharara:

And the good faith journalists at US media organizations, if persuaded that giving up that information would save lives in a day or two days, or three days, would understand also that sometimes the First Amendment has to give way to protection of lives.

Joyce Vance:

And the policy contemplates that in a case where a journalist is willing to be subpoenaed that you can go ahead as a prosecutor and issue. And that seems to be that situation, right? Where there’s an imminent danger, but the journalist wants to be subpoenaed, rather than just handing it over. Prosecutors are authorized to go ahead.

Preet Bharara:

Yes, absolutely. And that happens from time to time. I mean, it’s often worthwhile remembering the prosecutors or Americans first and citizens first. And the same is true of journalists, and we take our responsibility seriously if you’re a prosecutor or a journalist. But at the end of the day, you also have responsibilities to the country and to your fellow citizens.

Preet Bharara:

For prosecutors, that means you just can’t be overly focused on getting the case done. The values of the country are important, and the First Amendment and free speech, and free press are among those values. And at the same time, if you’re on the other side of the coin and you’re in the press, protection of human life is also important. And so, here we are back again, talking about balancing, it seems.

Joyce Vance:

The jurisprudence of the First Amendment has always permitted some erosion of your First Amendment rights. Typically, that stated as a restriction, a legitimate restriction on the time, the manner, or the place that your First Amendment rights are being exercised. I think this policy that Garland has now put in place is very consistent with that long-term trend in the law.

Joyce Vance:

And it interests me because I think we’re seeing his judicial style really being exerted in his behavior. As an attorney general, sometimes I like seeing that, and other times, I’m less of a fan of it. But here, his understanding of the overall jurisprudence, the issues, the rights that have to be balanced in this area, leads to a pretty good policy.

Joyce Vance:

And you were talking about how tough it is for folks to go to a US Attorney for approval, and how that sometimes deters people from using investigative techniques that might be closer to the line. In this case, now, having to go to the deputy attorney general likely means that people will only do this when it really is imperative.

Preet Bharara:

I’m laughing because every time there’s a memo that comes out from the attorney general, I smile because there’s always a line in it that says something like, so in this guidance… Merrick Garland says, “Because the goal is to protect members of the news media in a manner that will be enduring, I’m asking the deputy attorney general to undertake a review of process to further explain development, et cetera, et cetera.” And then, it goes on to say, “As part of that review, the deputy attorney general will examine existing regulations.”

Preet Bharara:

And I’m like, “Oh, Lisa Monaco, how much more stuff is Garland putting on your plate?” Our friend, Lisa, every time there’s a memo, and Lisa Monaco will direct and oversee a dramatic top to bottom review of everything going on in the department and in the world, I worry about her sometimes. But she can handle it.

Joyce Vance:

When we were US attorneys, Preet, and when I would be working on some particularly difficult task, you usually duck this stuff. But I was on the resource allocation working group.

Preet Bharara:

I don’t like committees, Joyce.

Joyce Vance:

Oh, my God.

Preet Bharara:

I hate committees.

Joyce Vance:

I noticed that, and probably, a wise call on your choice. Fishman, who was the US attorney in New Jersey, used to say, “We can sleep when it’s over.” Every time I see one of these memos that task the deputy attorney general with yet a new major initiative. I think, “Poor Lisa, she can sleep when it’s over.”

Preet Bharara:

She sleep when it’s over. If anyone I know in the country can handle it, it’s Lisa. But now, one of the other things that Attorney General Garland has said is that the department should think about legislation that it can support, and the Congress should think about legislation that it can pass. And you mentioned this earlier, I had a lot of experience back when I was in the senate from 2005 to 2009.

Preet Bharara:

Basically, every session of congress trying to pass the Free Flow of Information Act, of which my boss at the time Senator Schumer, was the lead democratic sponsor. It was usually Specter, Schumer, and Richard Lugar, also Republican. And there was a lot of bipartisan support. There was also bipartisan opposition in some cases.

Preet Bharara:

Dianne Feinstein was not a fan of some of the protections for various reasons. I remember one of the greatest opponents and you mentioned him already in the show, one of the greatest opponents to this bill, which would have codified a lot of what’s in this memo from Merrick Garland, was none other than Jeff Sessions. And one of the sticking points that you and I were talking about earlier, before we started taping, is the profound difficulty of defining journalists.

Preet Bharara:

It’s all well and good, and easy, in some sense for a single agency to say that we’re doing these things. But you’ll know in the guidance, there’s no definition of what a journalist is. And if you’re going to have legislation, you need definitions. We all know sort of what’s in the heartland of a journalist, right? Someone who’s a reporter for a major national newspaper, and they’ve been in the news gathering business for a long time.

Preet Bharara:

What if somebody decides tomorrow, they’re going to launch a website and start posting articles? And on the first day, they have received a leak of information that compromises national security from somebody at the NSA. That person just should self-identifies in the moment, a journalist worthy of protection, like CNN or Fox News, for that matter. What do you think?

Joyce Vance:

That’s obviously the difficult question here. There’s a reason that there’s no definition in the memo itself. And the reason there’s no definition is because this is tough. It’s even more difficult than it would have been 15 years ago because of what’s going on with the internet. I mean, here’s a great question, Preet, are you and I journalists? Are we legal analysts? Do we become journalists? What if someone leaks to us, are we covered by this prohibition in the memo? I don’t really have a good answer to that question.

Preet Bharara:

Yeah. And the problem is definitional issues are very difficult, not just in this area, but in a lot of areas. Because to reduce to writing a definition of a journalist for what news gathering is, would necessarily sweep in some things. You don’t want to sweep in, when probably would exclude some things that you don’t want to exclude.

Preet Bharara:

Now, when we were talking about these things, certain kinds of journalism were new, like blogs. And there were people in the Senate and people who lobbied on behalf of other people, who wanted to have a very restrictive view of journalists. I remember somebody talking about the possibility of not licensing in the sense of we think about getting a driver’s license, like a government designation of a journalistic enterprise. So, you would know to whom the protections would apply.

Preet Bharara:

But that seems crazy and dangerous to start having the government decide and issue designations of who’s a journalist who’s not a journalist. The government does issue designations of terrorist organizations probably should stay away from the business of identifying who journalist is.

Joyce Vance:

Yeah. That seems like an absolutely terrifying idea to me. If this policy is for real and is going to work, there will have to be a broad and expansive definition of journalists. And that will make some people unhappy. It may ultimately mean that legislation in this area is impossible, and that future administrations will weaken the policy. But at least for now, this is in place.

Joyce Vance:

And it seems to me that whether or not you think that this is good policy, First Amendment wise, this certainly is one way that Merrick Garland can perhaps score a few points with the press, although that certainly won’t last long, right?

Preet Bharara:

No. And Merrick Garland is getting a lot of grief for a lot of things, which we don’t have to talk about now because there’s some impatience on the part of folks with respect to prosecuting people who were involved in 1/6 insurrection, and the continuation of some policies and legal positions from the Trump administration. It’s a tough job, that AG job, right, Joyce?

Joyce Vance:

My theory as a US Attorney was that if a couple of months in my friends as well, as people who didn’t like me that much, were all equally pissed off at me. I was probably doing a pretty good job.

Preet Bharara:

That’s right. That’s probably right. Well, Joyce, maybe that’s a good segue into the next topic, which is about someone or some people not doing a good job. And that is the inspector general report that goes into great detail, it’s quite long, on how the FBI handled the investigation, or I guess, lack of investigation of Larry Nassar. You want to remind folks who Larry Nassar is?

Joyce Vance:

Larry Nasser was a doctor. He was the team doctor for a number of gymnasts, and he was associated with USA Gymnastics. And ultimately, when the story came to light, he was accused by more than 330 girls and women, including prominent Olympian gymnasts, of sexual abuse under the guise of medical treatment.

Joyce Vance:

And it went on for years and years, and years, unabated, even after it was first reported to the FBI. So, I have to acknowledge, Preet, and I’ve done this every time I’ve talked about this case publicly, that although I’m usually really good at separating my personal views from my legal views, this is one case where I just can’t do it.

Joyce Vance:

Every time I start thinking or speaking about this case, again, I’m just filled with so much anger at what went on here. And how really the FBI an organization that in so many ways, I’m so appreciative for both personally because my father-in-law, who was a federal judge was killed while he was in office, and the FBI investigated that and did just a phenomenal job.

Joyce Vance:

And my working relationship with agents and FBI leadership over the years was really good. This situation, though, is just such an abominable abdication of their responsibility to protect these women and girls, that I’m really flabbergasted by the IG’s report.

Preet Bharara:

It’s unfathomable. There were lots of allegations that were conveyed to particular FBI field offices, including the field office in Indianapolis. And the report details how senior officials in the FBI, Indianapolis Field Office, failed to respond to allegations of sexual abuse of athletes by former USA gymnastics physician, Nasser, with the urgency that the allegations required.

Preet Bharara:

And then, it made fundamental errors when it did respond to the allegations. And perhaps the thing that’s most egregious, and if it had been done differently might have saved the day, was they failed to notify the appropriate FBI field office, the Lansing Agency, which is part of the Detroit field office, or state or local authorities of those allegations.

Preet Bharara:

We have allegations of misconduct that occurred in the past, where there’s no risk of ongoing harm. And that happens from time to time. Something is over, and you’re not worried about risks to other people. Here obviously, this was a person who was continuing to act in medical capacity and had access to lots and lots of people who he could harm, and he in fact did.

Preet Bharara:

In fact, the report finds that between the time that action should have been taken, and the time that action was taken, we should discuss who ultimately took that action, dozens of young girls were harmed in a very egregious way. There are also allegations that were brought to the attention of the LA field office. But at no time, as I read the report, did the most relevant FBI office where there would have been venue, they didn’t know about it. Do you have a theory?

Joyce Vance:

Something that jumped out at me here, too, was that he was permitted to remain in place as the team doctor for a high school team. So, the failure is here, just so unconscionable. So, leaving my emotion aside, I’ll just say this, Preet, the FBI that I know and love is never an agency that fails to document pretty much everything that goes on, right?

Joyce Vance:

If you look at a matter for five or 10 minutes, you open a file on it because that’s how you get credit for the work that you’re doing. If you send something to another field office, there’s always paperwork that accompanies that. So, I just don’t buy that on multiple occasions, different people in different offices, we’re just sloppy because that’s not really how this agency is hardwired to have its interactions between its offices take place.

Joyce Vance:

And you look at the situation in Indianapolis where you’ve got a special agent in charge, who’s acting with a lot of self-interest. It’s reported in the IG’s report that he was interested in obtaining a job for himself, that he had approached the USA gymnastics folks about that. He was close to retirement eligibility.

Joyce Vance:

And so, you’ve got an FBI, that these special agents in charge of the office, who is really trying to curry favor with the folks that he should be investigating, and then the investigation doesn’t happen. I think it’s pretty hard to put an innocent face on that.

Preet Bharara:

Well, it gets even worse according to the IG report, that SAC, that special agent in charge, made false representations when his conduct was being investigated and lied about things, which you’re not supposed to do either.

Joyce Vance:

There’s a federal statute 18 USC 1001 that makes it a crime to lie to federal agents. It has to be a material lie in connection with an investigation. People are frequently prosecuted for violating a 1001. And here, we’ve got an FBI SAC who undoubtedly knows the law, knows that if the question is being asked, it’s important. And he lies. He doesn’t lie once, right? He lies twice.

Preet Bharara:

And what’s so unusual about this, and I don’t have an encyclopedic knowledge of inspectors general reports going back to the beginning of time, but most of the time, when fault is found with respect to the approach to a case, it usually is that there was overreach. That someone was pursued or arrested and should not have been.

Preet Bharara:

I talked about one such example in my book, the case of Brandon Mayfield, who was detained by the FBI because they thought he matched a fingerprint found at the scene of the Madrid train bombings in 2004. That was a mistake. That was an error. In fact, it was such an egregious error that the FBI in that case, just like here, formally apologized and ended up paying a $2 million settlement to Brandon Mayfield.

Preet Bharara:

But that’s a case in which there was an over prosecution. It is unusual. And I can’t off the top of my head think of an example of a case where allegations that have been made that the FBI or any other law enforcement agency within the Department of Justice is called on the carpet for failing to do something. I think the standard is probably higher for criticizing an agency or agents for not doing something as opposed to doing something. But that threshold was met here, clearly.

Joyce Vance:

The FBI statement in response to the IG’s report is fairly pale. They said, “As the inspector general made clear in today’s report, this should not have happened. The FBI will never lose sight of the harm that Nassar’s abuse caused. The actions and inactions of certain FBI employees described in the report are inexcusable and a discredit to this organization. The FBI has taken affirmative steps to ensure and has confirmed that those responsible for the misconduct and breach of trust no longer work FBI matters.”

Joyce Vance:

And I’ll just say frankly, that’s unsatisfying. I’m sure it’s unsatisfying to the victims. What this points out to me is that there was a culture problem in the Indianapolis office, and maybe elsewhere, that permitted agents and senior leadership in the office to essentially sweep these accusations under the rug.

Joyce Vance:

It’s an interesting throwback to the policy that we were just discussing, the press policy, where one of the exceptions that permits you to subpoena a reporter is when there are allegations of ongoing sexual abuse of minors. We’ll hear we have that, and numerous agents and the Indianapolis SAC, also some involvement from the LA office.

Joyce Vance:

They just sort of let it go. And that doesn’t make sense. The FBI needs to take much stronger steps. I know it’s easy when something like this happens to say, “Well, people need to be better educated,” and the agents sort of roll their eyes at the notion of having more education. But I think it’s incumbent upon Chris Wray, the current director of the FBI, to be more thoughtful about this issue, and how he’s going to evolve the culture at the FBI, than this statement suggests.

Preet Bharara:

The other odd thing to me is, much of the criticism here, is about the failure to follow procedure and common sense, insofar as the Indianapolis office, for example, did not convey these allegations to the most relevant venue. And that’s Lansing, Michigan, that resident agency of the FBI. And I like to think otherwise, but there’s… and I don’t mean to cast aspersions on Lansing.

Preet Bharara:

But given the two other FBI offices didn’t really pursue it, even if they had conveyed it to Lansing, that doesn’t necessarily mean we will never know. It doesn’t necessarily mean that they would have taken the allegations seriously, themselves. What we do know is the way the Lansing became aware of the allegations was at the Michigan State University Police Department, which is interesting.

Preet Bharara:

That police department executed a search warrant on Larry Nassar’s residence in September of 2016, and discovered a lot of things including child pornography.

Joyce Vance:

Tens of thousands of images of child pornography. And that highlights what the FBI’s role should have been here when they first heard these accusations. If they believed that there wasn’t any federal jurisdiction, they could have talked with state and local folks in that western district of Michigan where jurisdiction was probably best laid at that point in time.

Joyce Vance:

And they could have said, “Let us work with you. Certainly, we’ve got some information here that we can put some flesh on the bones and get some search warrants, and execute them.” And then, they would have had back in 2016, when these allegations were first surfaced, the information to go ahead and make the federal possession of child pornography case that they ultimately made. So, the notion that there was no federal case here and nothing for the FBI to look at is a pretty cheap excuse.

Preet Bharara:

Right. Well, the epilogue to all this, I mean, these emissions by the FBI occurred some years ago. Since then, on the strength of both some intrepid reporting and the Michigan State University Police, he was convicted of egregious misconduct and abuse, and horrifying behavior. And he’s now effectively serving a life sentence that includes a federal term because of the child pornography crimes and another state term for assaulting in particular nine girls and women in Michigan. So, he will never see the light of day.

Joyce Vance:

That’s just us. But the FBI still has work to do.

Preet Bharara:

Agree.

Joyce Vance:

Preet, I first met some Dreamers in Alabama in 2011, after the Alabama legislature had passed, what they styled as a deport yourself immigration bill. They wanted to make conditions so bad for people who didn’t have legal status to be in the US, that they would leave Alabama, and hopefully the country. And in the course of challenging that legislation, which we did successfully, which is a matter of some pride for me, the team that worked on that really did extraordinary work in my office.

Joyce Vance:

But we met some Dreamers in Alabama. And they were really, really great people. They were mostly young students, some of college age, some who weren’t able to go to college because they had learned much to their surprise while they were in high school, that they weren’t citizens. Many of them had been in this country since they were so young, but they had never questioned whether they were citizens or not.

Joyce Vance:

But the takeaway that I had from meeting folks and those experiences was that these are exactly the people who we want to have in our country. They’re strong, productive citizens. The DACA program, for instance, requires that you be able to pass a criminal background clearance. So, there are some internal guarantees in this Obama era program, the Dreamer Act, that means that only really fine qualified people are eligible for the protections of the act.

Joyce Vance:

Which lets you if you were brought to this country as a child, it gives you a path to citizenship and permit you to remain in the country when you might, otherwise qualify for deportation. So, on Friday, a federal judge in Texas ruled that the DACA program is, he called it unlawful, causing uncertainty among Dreamers and others who have really relied on the protection of this program now for over a decade.

Joyce Vance:

And what the judge did is very interesting. He didn’t say that DACA can no longer apply to people who have already received the designation. The judge said that the government is prohibited from granting DACA status to anyone who’s got an application that’s currently in the pipeline that they can’t grant any future applications.

Joyce Vance:

The decision is made on Administrative Procedure Act grounds, which means that it’s possible that the Biden administration could go back and cure those problems. But certainly, is a long-term proposition, the Dreamers. And the reason I belabor my experience in Alabama with some of the Dreamers is this is something that roughly 70% of Americans, if you look at recent polls, roughly 70% of Americans believe that there should be a path to citizenship for Dreamers.

Joyce Vance:

It’s the one area in immigration that has never been as controversial as other pieces. Now, we have a federal judge who says, “DACA, not constitutional.” What do you make of that?

Preet Bharara:

Yeah. So, I think you’ve described the issues very, very well. We should remind people that DACA stands for Deferred Action for Childhood Arrivals. It was a program that was instituted in the summer of 2012, when Barack Obama is the president. And the underlying philosophy and morality of the program, takes into account the things that you mentioned.

Preet Bharara:

That this is a special path for a certain category of person, and that person is someone who was a child, and who had no choice in coming here. So, you can’t sort of blame them for sneaking in. They came with the parent or some other person. The criteria for being able to be accepted into this program are pretty tough. And it’s a fairly long process.

Preet Bharara:

And so, the idea that you would deport people, throw them out of the country when they have no other home, other than America, because someone brought them here, and it wasn’t their choice or decision to do so. And they’ve done well, and they’ve gone to school. Or they’ve served in our military, and in other ways, have been productive members of the United States of America.

Preet Bharara:

And we will just throw them out of the country without having some path for them to remain and continue to be great Americans, I think that offends a lot of people. And what’s always been confusing to me given how broad the support is, for this category of immigrant, why some people remained so bent on kicking them out of the country and not giving them any sort of relief?

Preet Bharara:

As you mentioned, it’s one of the immigration programs that actually has broad support. And so, even this judge, and I understand the point he made about the distinction between future applications and the 600,000 applications that have been granted, and he says, there’s a principle in law that relates to reliance. One of the only sympathetic parts of the opinion is where he says, “Look, it is not equitable for a government program that has engendered such a significant reliance to terminate suddenly in court.”

Preet Bharara:

And I get that, but I got to say, also, there are a lot of people whose applications are in process, and they have a pretty good idea that they qualify would be accepted. That’s a measure of reliance as well. And the expectation of other people who are perhaps preparing their applications, they’re not relying in the same way as people who have been admitted to the program, but it’s not insignificant.

Preet Bharara:

And to me, that’s a little bit of an acknowledgment. That legal distinction is a little bit of an acknowledgment that there would be held to pay, and people who I think would be very, very, very upset in the country, if you went beyond this and tried to revoke the DACA status of people who already have it, don’t you think?

Joyce Vance:

I think that’s right. And that was certainly the sentiment that President Biden said. His comment was that the decision was deeply disappointing, and that DOJ would appeal. But this case was brought in the Fifth Circuit in Texas. And that have been a very deliberate choice by the folks who brought the lawsuit. It’s a very conservative circuit.

Joyce Vance:

It’s highly possible that this decision gets affirmed on appeal, and then goes on its way to the Supreme Court for a final decision. As I said, Preet, I think the element of hope here for Dreamers, both current and people who have applied, is that there may be a way for the Biden administration to work on the procedure and the process here that would get them around the judge’s opinion, a docket 2.0 that would be able to pass scrutiny, particularly in light of public opinion in this area. But that’s by no means certain.

Preet Bharara:

Right. And you say it could pass scrutiny. My greater concern is can it pass the Senate? What do you think?

Joyce Vance:

That’s always the problem, right? I mean, we can talk about dysfunction and gridlock in congress. All we want. Immigration has been kicking around, for what, four or five administrations now without any ability to pass even the most non-controversial of provisions. And really, the Dreamer Act is the low-hanging fruit here.

Joyce Vance:

But in this hyper-politicized environment we live in now, it’s even less likely that congress is going to act than it would have been a couple administrations back. So, here an executive order that solidifies DACA is really the only choice this administration has.

Preet Bharara:

One thing that’s interesting, and I know that, Joyce, you have a thought on this, is the idea that a single unelected federal district court judge in one state could doom this whole program.

Joyce Vance:

In some ways this does remind me. And so, Jeff Sessions, when he was the attorney general was very dismissive of the State of Hawaii, when there was a district court ruling in Hawaii that blocked the Trump administration from carrying out its ban on travel from parts of the Muslim world, the so-called Muslim ban. And Sessions said, “I really am amazed that a judge, sitting on an island in the pacific, issue an order that stops the President of the United States from what appears to be clearly his statutory and constitutional power.”

Joyce Vance:

That was Jeff Sessions at the time. So, I think that if you were of that mind, and I am not, let me be clear to make that criticism, you could make a similar criticism here. Here’s a judge in Texas, saying that President Biden can’t continue to issue DACA relief to otherwise qualified people. But that’s not how our legal system works, right?

Joyce Vance:

We actually do imbue federal district court judges, whether they’re in Texas or Hawaii, with the ability to pass on these sorts of legal issues. And then, those questions are reviewed. And sometimes they reach the Supreme Court, the highest court in our country, for a final decision. And as part of being a rule of law nation, we agree to that process. So, I guess that’s the third time we’ve invoked Jeff Sessions in this podcast, and hopefully, the final time.

Preet Bharara:

If you chose Jeff Sessions as your drinking game.

Joyce Vance:

You are in lit right now.

Preet Bharara:

You’ve had three sips of beer. We talked on this program, Joyce, about justice and fairness, and injustice. And we came across an article that talks about a particular injustice, which some people find quite egregious. And that is when you’re reaching into your kitchen, cupboard, or pantry for a cookie or some other thing that you love, only to find out that one of your children has already pilfered the entire box.

Preet Bharara:

By the way, in my house, I’m sometimes miscreant. And I go searching for potato chips and other things late at night, and so my family is taken to hiding those things for me. But there’s a workaround that was invented by a particular company.

Joyce Vance:

Oreo Thins has the solution. I’ve got four kids. This is a common problem in my household. And we have this rule…

Preet Bharara:

Your kids are not four anymore.

Joyce Vance:

Well, they’re not four anymore, but even the grown ones come over sometimes for dinner, and it’s amazing. I’m constantly in these days, to be honest, that sometimes my liquor more than my cookies, saying, “Hey, who drank all of my gin?”

Joyce Vance:

We have a 24-hour rule in my house after that. It’s like you snooze, you lose, if you leave your food sitting around, its fair game. But Oreo Thins has this absolutely brilliant fix. The popular cookie brand has just announced the release of their new Protection Program.

Preet Bharara:

The Oreo Thins Protection Program, which is reminiscent of the witness protection program… in many ways more important…

Joyce Vance:

This designs adults’ tasty Oreo Thins from the prying eyes of their children. They’ve partnered with other iconic brands to put in place a way that you can hide your cookies while keeping them in plain sight.

Preet Bharara:

So, you can actually order cookies disguised to look like other things, for example. And this is regarding the kicker guys. This is why we’re telling you this story because one of the options is a three-pack of Hanes tagless t-shirts. Another is a Better Homes and Gardens cookbook. And Joyce, what’s another possibility?

Joyce Vance:

A Green, Giant Veggie Cauliflower Medley. Which one are you going to order, Preet?

Preet Bharara:

Let me go with the Hanes. Remember, gentlemen prefer Hanes?

Joyce Vance:

I do remember that. I think in my house, probably the veggie cauliflower medley is going to keep something hidden, the most success.

Preet Bharara:

Yeah. No one’s sticking their hands on that.

Joyce Vance:

Someone who hasn’t done their laundry go in for the t-shirts. So, Oreo’s fans on social media were completely impressed with the sneakiness of this new idea. Tweeting stuff like, “This is truly genius. And I love this. I’m always having trouble hiding my Oreos from my sister.”

Preet Bharara:

I think they come up with some other protective packaging, too, like lima beans. When was last time anybody had lima beans?

Joyce Vance:

We’re big fans of succotash. I don’t think lima beans would work here. But I think my boys especially really disliked vegetarian meat substitutes, so I’m thinking something like that would protect things.

Preet Bharara:

Fake meat.

Joyce Vance:

Anytime I make tofu, I met with a lot of just really unhappy faces. The original article was written by Aimee Lamoureux from mashed.com. Good catch, Aimee.

Preet Bharara:

And by the way, it should be clear, because this is a commercial free program that you subscribe to. We are in no way shape or form being paid to advertise Oreo Thins or Hanes, or Giant Veggie Cauliflower Medleys.

Joyce Vance:

But we do welcome our listeners to share with us on social media this week, their favorite cookie recipes. So that we can all make our own and hide them from our children.

Preet Bharara:

Send us your questions and recipes to letters@cafe.com.

Joyce Vance:

We look forward to answering them.

Preet Bharara:

That’s it for this week. CAFE Insider is presented by CAFE studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.