Instead of Five Questions...

No Five Questions edition for tonight. I had a piece planned for you on transition teams, but it feels too soon.

There are, however, legal developments in two cases that you’ll want to be aware of. The first reads like an international spy thriller, and the second signals the end of the federal criminal prosecutions against Donald Trump. It has been an undeniably rough week.

Iran

The headline was that DOJ charged three Iranians with an unsuccessful plot to assassinate Donald Trump during the campaign. There is more to the story, though.

The three men were charged with material support of terrorism, murder for hire, money laundering, conspiracy, and other crimes in a 26-page complaint filed in the Southern District of New York. They were working at the behest of the Islamic Revolutionary Guard Corps (“IRGC”), a U.S.-designated foreign terrorist organization. The IRGC is an Iranian military and counterintelligence agency that operates under the authority of Iran's Supreme Leader.

The ringleader is Farhad Shakeri, originally from Afghanistan, who came to the United States as a child and lived in New York until his arrest for robbery. He was deported after serving a 14-year sentence in New York state prisons and currently lives in Tehran. While in prison, he met the co-conspirators, who he enlisted to join the scheme. Two of those men were named in the complaint and arrested yesterday in New York. The complaint indicates that at least one additional co-conspirator is expected to be brought to New York and arrested, but that person is not identified.

The charges involve more than a conspiracy targeting Trump. There are four murder-for-hire plots and an additional plan to create a mass casualty attack. The complaint lays out:

• A plot to murder a U.S. citizen of Iranian origin, identified as “a journalist, author, and political activist, and an outspoken critic of the Iranian regime's human rights abuses and corruption.”

• A plot targeting two American-Jewish businesspeople.

• The plot targeting Trump, which in September of 2024 became the sole focus for the IRGC.

• Plans for a mass casualty shooting attack on Israeli tourists in Sri Lanka in October 2024, which fell apart after Israel and the United States issued travel warnings following the arrest of one of the co-conspirators, who is not identified by name in this complaint.

The complaint tells a curious story beginning on page 22, when we learn that the FBI did what they characterize as five “voluntary telephonic interviews” with Shakeri while he was in Iran. The first was on September 30 and the last on November 7. The complaint explains that his “stated reason” for speaking with agents was to try and get a reduced sentence for someone in U.S. custody by “providing assistance to law enforcement on this individual's behalf.” A few pages later, we learn Shakeri told agents during one of the calls, “If these people [The IRGC] gimme a green light . . . I'm gonna come pretty close so you guys can be convinced that [Individual-I] needs to get released." That’s not exactly a cooperation agreement with the government. Along the line, agents realized Shakeri was lying about both the nature and extent of what he was doing, but we don’t know for certain how their conversations began.

This complaint appears to be part of a larger story. It is not an indictment—the government did not go to a grand jury, probably signaling a desire to move quickly and arrest defendants on U.S. soil before they learned they were under investigation. The information dropped about another defendant being brought to this country is cryptic. We may learn more when/if that happens or when the government goes to a grand jury to indict. Shakeri’s two American co-defendants will have plenty of incentive to cooperate—three of the charges against them each carry a 20-year maximum sentence. But, it’s unlikely they’ll know much, if any, detail about the Iranian terrorists behind the crimes, which involve what, at any time, would be a headline story about terrorist attacks planned on American soil and elsewhere.

Unfortunately, we have to move on from this example of what DOJ is capable of accomplishing to protect Americans and our country.

Washington, D.C.

Early Friday afternoon, Judge Tanya Chutkan granted Jack Smith’s request to stop all activity in the Washington, D.C., case in which Donald Trump is charged with plotting to overturn the 2020 election. Smith asked for and was granted until December 2 to decide on his course of action given the “unprecedented circumstance” of his criminal defendant being elected president of the United States.

The reality is that one way or another, the two federal prosecutions, the one in D.C., and the classified documents case dismissed by Judge Aileen Cannon and currently on appeal to the Eleventh Circuit, are going away. The question undoubtedly under discussion at the Justice Department is whether there is a reason to dismiss it now, on Smith and Merrick Garland’s watch, or to leave it for after the change in administration, forcing Trump’s team to dismiss the case against their new boss.

One benefit of terminating the investigations now could be the ability to write some form of report memorializing the evidence against Trump for the historical record. A document of that nature, like the Mueller Report, might be made public through either the Department or Congress. In his report, Mueller stopped short of recommending charges against Trump because he would have no forum to respond, since he couldn’t be charged while in office. It’s hard to know how the Department will weigh those concerns here, when the charges have already been brought and Trump could have, but has chosen not to, have his day in court.

Decisions about how to wind down could be particularly important in the Mar-a-Lago case, where the government’s evidence has never been discussed in detail, unlike in the January 6 case, where it was fully briefed. That case involves mishandling classified documents and trying to prevent the United States from recovering them, conduct that, because it occurred after Trump left office, can’t be cloaked in presidential immunity. With Trump about to resume the role of commander in chief, the facts in this case, including Trump’s reasons for holding onto the material and lying about it, are literally a matter of national security. At a minimum, it’s critical to make certain the historical record can’t be destroyed.

We don’t know yet whether the government will dismiss this case outright—its reply brief is due next Friday and we may get some inkling then—or try to obtain a ruling from the court on the legal issues. There is also the matter of Trump’s two co-defendants in the case, whom the government can proceed against even after Trump is inaugurated. He can, of course, order the case dismissed and give them preemptive pardons.

Whether the dismissals happen now or on Trump’s watch, it’s an incredibly unsatisfactory end to two of the most important criminal cases in the nation’s history. The cases should have stood for the principle that no man was above the law and restored faith in the American system of justice. Instead, one was derailed by an unnecessarily lengthy appeal that gave the president virtual immunity for crimes committed in office, while the other was kneecapped by a judge appointed by the defendant himself whose ability to hear the case was never challenged by prosecutors.

The End of DOJ’s Independence from the White House

Since the Watergate era, when the line between justice and abuse of the justice system was crossed, every new administration has signed off on “contacts memos” between the White House and the Justice Department, designed to ensure, among other things, that the president does not use the criminal justice system to help friends or to punish enemies. Even the first Trump Administration adhered to that procedure, the norm that has separated our country from banana republics where criminal prosecutions were another tool in the toolkit of autocratic leaders, until now.

That’s probably not going to happen in the new Trump Administration. One of Trump’s persistent themes is his desire to use the Justice Department as a vehicle for revenge.

Mark Paoletta, the General Counsel of OMB under Trump and author of a recent book about Supreme Court Justice Clarence Thomas, tweeted yesterday that the president should control all aspects of the Justice Department’s work like he does the rest of the executive branch. Paoletta’s name has been bandied about as a likely AG for Trump. For now, he is part of Trump’s transition team for the Justice Department.

Paoletta retweeted a post from another confidant of Trump’s tonight, which calls for “probes” of Jack Smith, his office, and “their co-conspirators inside and outside of government” by both Congressional entities and multiple DOJ offices, referencing the ruinous expense and stress that comes with being targeted in a federal investigation, even though Smith’s team is “confident their work can withstand legal scrutiny.”

Paoletta wrote in the earlier tweet that a “President has a duty to supervise the types of cases DOJ should focus on and can intervene to direct DOJ on specific cases.”

It’s a sharp departure from the way generations of Justice Department and other government lawyers have understood the system needs to work if we are going to uphold the intent of the founders. The norms were there for a reason. Dissolving them serves no one other than Donald Trump.

As Jimmy Kimmel said, the night of the election was “a terrible night for everyone who voted against him [Trump], and guess what? It was a bad night for everyone who voted for him too. You just don't realize it yet.”

I’m sorry I don’t have better news for you tonight. I know it’s been a long week. But as I wrote to you earlier, we did not give up during the first four years of Trump’s time in office, and we are not going to give up this time either. That means we have to prepare ourselves. We have to understand what’s going on, commit to sharing the truth in an era where accurate news may become increasingly more elusive, and get ready to fight for our country. I’m not looking forward to it, but by the time January gets here, I intend to be ready.

We’re in this together,

Joyce