June 12, 2025 • 32 mins
Restricted access and prohibited access files make imminent sense in a certain regard. Not everybody with an FBI credential or clearance should have access to everything.
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Episode Transcript
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Speaker 1 (00:00):
Let's see now if this is true, not that I
would ever think you Goober's would send me something that's
not true. I would never think that. But if this
is true. Eleven eighty four, I found out that the
weirdo who firebombed the Tesla dealership in Vegas and the
weirdo who fire bombed people in Boulder, they lived less
(00:23):
than a mile away from each other. In color lot
of springs. Things that make you go, hmm, this is
pretty good. Fifty four to thirty one. The left will continue.
This is why it is exactly what I just said.
The left will continue to downplay the riots until they
get what they want, which is when a national Guard
(00:44):
or even worse, the Marines kill someone. If that happens,
we will never hear the.
Speaker 2 (00:48):
End of it.
Speaker 1 (00:51):
Someone on X yesterday described that scenario as the shot
that will be heard around the world, and that's probably
be true. Yes, we had the kids that were throwing
the rocks at cars. Someone got killed, and they were
just I think just this past week, or maybe it
(01:12):
was this week, they were convicted, actually think convicted of murder.
Speaker 2 (01:18):
Thirty six oh two. Rights.
Speaker 1 (01:19):
Here's some perspective. There was a Coldplay concert the other
night there were riots and a Rockies game all at
the same time. Well, was the riot because the Rocky
sucks so badly? Or was that a separate riot? Was
that a riot trying to get rid of Montford? As
(01:40):
the owner of what was going on, our TD received
complaints that the trains had stopped running at twelve thirty.
People were stranded and each didn't know about the other.
What a world we live in when a riot and
a Coldplay concert com collide. By the way, there were
up eighty thousand people the Coldplay concert. Wow, Well, just remember.
(02:02):
I kind of think my mindset today is that everything
that's going on is this battle for our minds, and
that's nothing new that's been going on forever. Advertisers know
they're in a battle for your mind so that they
can get your dollar. News is in a battle for
(02:23):
your ears. Radios and eyes. Radios in a battle for
your ears. We're all in these great battles, and you're
just upon in the game of life, says Mondo. So
there was an FBI crisis last week on social media,
(02:44):
and it centered around something called prohibited files. Now, as
much as I've dealt with the FBI in my lifetime.
I've never heard of this. This was all news to me.
So it started about a week ago when Grassley, the
Senator from Iowa, who has been a staunch critical the FBI,
(03:06):
released a twenty nineteen FBI memo. It was an email
form in email format. We're in the memo. The author
of that memo, who was an FBI agent Duh, noted
that some of the files he was trying to get
were prohibited access. Prohibited access.
Speaker 2 (03:32):
Now, all of my.
Speaker 1 (03:35):
Clearances that I had, and in all of the forms
I had to fill out, and all of the cover
sheets that I ever saw that you know, this is secret,
this is top secret, this is TSSCI.
Speaker 2 (03:49):
This is.
Speaker 1 (03:51):
FOUO for official use only. I mean, just all the
different classifications. I'd never heard of prohibited access. And apparently
these files were related to Crossfire Hurricane, you know, that's
the FBI code word for.
Speaker 2 (04:06):
The Russia collusion investigation.
Speaker 1 (04:09):
And these files apparently related specifically to Nelly Or, who
the Center had referred to the Department of Justice for
obstruction of Congress charges. Now, trust me, you can go
down a really deep rabbit hole if you don't grasp
(04:31):
the complex, the complex nature of crossfire hurricane. Every time
I hear crossfire hurricane, all you can think about is
the rolling stones. So let me give you some background.
One of j Edgar Hoover's legacies was creating a record system.
(04:54):
And this is one hundred years ago probably now, while
it has certainly been over come by the modern technology
we use today for filing system I mean when you
think about a filing system today, I mean I still
think I still have a file cabinet at home because
I still have you know, the colored you know, Manila
(05:14):
folders that have you know, certain records in it. You know,
I got my tax records. Some of it's all duplicated.
You know, I have hard copies of my tax returns
and I have electronic copies of my tax returns. There
are certain other documents I keep hard copies of and
electronic electronic copies of. So when you think about filing systems,
(05:41):
the old filing system by Jay Edgar Hoover really has
been overtaken by modern technology.
Speaker 2 (05:48):
And you know you got file.
Speaker 1 (05:49):
Folders on your computer. Every field office and FBI headquarters
maintains an index card file system. So when communications came
into any of these offices or went out of the offices.
(06:10):
The FBI agents would index important information from the file
by underlining that with a red or blue pencil, read
for subjects of investigations, blew us for references, and then
the location of the file or the serial record or
number was then recorded on an index card.
Speaker 2 (06:31):
Remember going to.
Speaker 1 (06:32):
The library, and in the library you'd have the index
cards where you would go search for, you know, the book. Oh,
here's the book. I'm going You get the you get
the index number and go find it. They were kind
of doing the same thing. So I tried to find
an example, and here here's the best I can come
up with. Uh, I think this if if there are
(06:54):
any FBI agents which I happen to know down in
Arizona a couple of places we gut FBI agent is listening.
If this example doesn't work, to send me a text
message and tell me why it doesn't work.
Speaker 2 (07:06):
Here's an example.
Speaker 1 (07:07):
You might have a file number ninety one a dash
bs DASH one two, three four DASH one. Say Joe
bag of doughnuts was the subject of an arm robbery
investigation in Denver. He would be indexed in red into
the file ninety one A. That's a designator for armed
(07:28):
bank robbery, and then it would be you should have
done ds BS I think would be for Boston, DS
would probably be for or DV, or DN would be
for Denver. One, two, three, four would be the file number,
and then the DASH one that would be the first
serial that would be in that entirety, entire file. So
(07:52):
then later in the investigation, an important witness was developed,
Betty boot It's indexed in the same file as a reference,
so she would be underlined or highlighted as blue. And
then a later serial maybe number seventeen or something. So
then if an agent in outside Denver, maybe in Boston
(08:16):
or Detroit, wanted to know if there were any FBI
files on the you know, Joe Bagadonnuts or whoever it
was that was the robber or on Betty Boop, he
could send a lead out to every office and into
the headquarters to check intoses for any files on those individuals.
(08:41):
So a clerk in Boston or in Denver, or even
a new agent just checking intoseas and responding to leeds,
which is I think is something all new agents have
to do, would go to the card file and see
that you know, mister Bagadonuts mister bank robber was a
subject and Betty Boop was a reference, and then he
(09:04):
could send that information back to whatever field agent was
asking for it. He consented to Detroit, Boston, you know,
whoever asked for That system existed until the early nineteen nineties,
and the nineteen nineties was when they first automated the
case file system. But even then, just like with me,
(09:28):
paper files remained relevant because it was going to take
decades in fact, that they still had paper records to
this day because to migrate all of those files, paper
files into the automated case file system, the ACS system,
that would take you know, probably decades to do. And
of course then you had the very early system of
(09:52):
electronic filing was not word searchable. You know, today just
on my laptop, I can go up here and I
can I can click on this little magnifier looks like
a little magnifying glass, and the window pops up on
my book pro for a spotlight search, and I can
(10:12):
just type in some keywords and that will return to
me every file, email, everything that's on this hard drive
that has those keywords. Well, the early system didn't have that.
The later systems do so indosing indexing is still relevant
today because with literally billions of pages of information, a
(10:36):
word search for Michael Brown or John Doe or John
Smith but might be useless. Too much information is as
worthless as no information. I find that to be true
even in my little laptop here.
Speaker 2 (10:52):
So there are.
Speaker 1 (10:53):
Still rules about indexing related to privacy. Well, let's think
about these hidden files. Open investigations in the early days
were kept on the squad in a circular file called
a rotor. Closed files were kept in a room, maybe
(11:14):
on different floors, in the field office or at headquarters.
The informant files were kept in a secure room where
only a few people had access. You had to check out,
you know, you had to check out informant files for example,
and if it wasn't your informant, you had to have
a good reason to check out that file.
Speaker 2 (11:35):
And then you had.
Speaker 1 (11:36):
Especially sensitive files that might be kept in the special
Agent in charge's office literally in his office or her office.
Really sensitive files. Well, originally those were kept in J.
Edgar Hoover's office. Now reportedly a lot of those files
(11:56):
were destroyed by Hoover's longtime secretary Helen Gandhy. But I'm
not going to down that rabbit hole right now. So
you can see that now in the electronic case file
age where security of files might be a problem. Because
most of the FBI is somewhat over thirty thousand employees,
they're all very honorable people. They don't commit espionage, they
(12:18):
don't leak sensitive information to the media, they don't lie
to the FISA court. But not all of them do.
Even the FBI recognizes that they can't even trust all
of their own agents. And that gets us to restricted access.
(12:41):
The FBI created files that were marked restricted access and
what was then known as silent HIT designators. Now I
don't know this for sure, but it sounds like the
silent HIT is now being.
Speaker 2 (12:58):
Also called prohibited access.
Speaker 1 (13:02):
So you had restricted access and now you have prohibited access.
Speaker 2 (13:09):
Now.
Speaker 1 (13:09):
The major feature here seems to be that a false
negative is created when you do a search that hits
on one of those restricted or prohibited access files. In
other words, it returns no information. So if you're searching,
you're told there's no file, there's no reference to your inquiry.
(13:33):
Apparently that's not new. Restricted access means that when an
FBI employed, doesn't that be an agent could be you know,
a clerk when they run a name or any other information,
they know a file or a reference exists, they just
can't see it. But for security reasons, the FBI might
(13:55):
not want just any employee to know that a file
even exists, so they created the silent hip feature. Now
when that happened, and notice is sense somewhere I don't know,
the head of the office, maybe the head of security
in the Security Division, I don't know, but that but
it gets sent somewhere advising something like, hey, special Agent
(14:20):
Brown in Denver just ran a search for.
Speaker 2 (14:27):
Let's say Helen.
Speaker 1 (14:29):
Or or not Helen or oh what was that damn
woman's name in Nelly or Nelly or someone you know.
Special Agent Brown just ran a search with an inquiry
for Nelly or.
Speaker 2 (14:48):
Now.
Speaker 1 (14:49):
I don't see I'm the one that made the request.
I see no return. But somebody within the agency, probably
within the Security Division.
Speaker 2 (14:59):
And my guess is.
Speaker 1 (15:00):
Probably now whether this is still true with Cash Ptel
and Dan Bongenio, I don't know, but at least with
Christopher Ray, it was true that somebody in headquarters got
notified that, uh, oh, somebody's trying to get access. They've
ran a word surge and they there was a hit
on a prohibited or restricted access file. Wow, you don't
(15:23):
infest your own people, law enforcement that they're all looking
over their shoulders. This is fascinating to me. You remember
the oh what was this Robert Hanson, the FBI trader.
(15:44):
He was the head of the FBI counter intelligence that
sold classified documents to the Soviets for decades, ran himself
in indices all the time to find out if he
was the subject of an espionage in thestigation, and in
fact he was. I'd be shocked if every spy in
(16:06):
the modern era everywhere hasn't at one time done the same.
If if I knew that I Heart kept separate files,
sensitive prohibited restricted files on me on a rod or
(16:26):
on Redbeard, and I had access to run a search,
damn right, I would, And you know you do it too.
For restricted access and prohibited access files make imminent sense
in that regard. Not everybody with an FBI credential or
(16:51):
clearance should have access to everything.
Speaker 2 (16:54):
Michael, there is no doubt in my mind that my
heart has some quote special files on you.
Speaker 1 (17:04):
Yeah, I see, I don't even want to think about that.
So remember all this whole controversy that erupted last week
centers around Crossfire Hurricane and all the communications about that
Russia Russia Russian investigation. So it makes this whole story
(17:24):
automatically political. Both pro Trump and anti Trump actions can
find and acts to grind if they want to. With
the notion that all files related to Crossfire Hurricane were
not accessible to FBI agents who were looking and had
good reason to be looking, and in the case of
(17:45):
the new memo, it was the Washington Field Office agents
on a criminal squad who probably had limited at least
some official knowledge of Crossfire Hurricane at the time, hence
their frustration. So there are a lot of I shouldn't
(18:06):
say a lot. There's been a few lawyers on my
ex speed that I've seen, but a lot of keyboard
warriors on X also claiming that so called prohibited access
forwards what is known as the Brady rule. Do you
remember the Brady rule that should be note in your
law school notebook. That's the Supreme Court ruling that requires
(18:30):
the prosecutors the government, if you will to turn over
any exculpatory information to a defendant, any information that is
beneficial to a defendant, you're required to give that information
to them. It's called the Brady rule. Now, the critics
claim that if the FBI can't find the information because
(18:55):
it's prohibited, then it can't be turned over under the
Brady rule. But then there are others that are arguing
that there are many cases that are going to be
overturned because of this. I happen to fall on the
side of that. If this is Brady evidence, if this
is evidence in favor of showing that Trump was not
(19:19):
guilty of stuff, or for that matter, anybody else.
Speaker 2 (19:23):
Involved in the Russia collusion oaks, I.
Speaker 1 (19:27):
Don't care whether it's in a prohibited file, a restricted file,
or prohibited access file.
Speaker 2 (19:32):
I don't care what you call it. You have it.
Speaker 1 (19:37):
And just because if you are the person in charge
of responding to a subpoena that you don't have access
to it, that's not an excuse you have to make.
At least in the private sector, you do. You know,
sometimes you will get I saw a letter that I
forget whether it was Comer or Jim Jordan or somebody
(20:00):
had sent some person who is the head of some
NGO and Congress is doing some investigation, and I you know,
as a lawyer, I've drafted these lawyers these letters, and
I've received these letters, and we have a clients before
where it basically says you're under investigation and we want
(20:24):
you to preserve and then here's a list everything. Well,
I know that I would advise my client that you
need to search everywhere all four corners of your business,
all four corners of your operation, to find any and
(20:47):
all relevant material. And if I were back in my
old days as general counsel at FEMA, and if we
had files like this one, I would hope that I
would know about it. If I didn't, hedge would roll.
But assuming that I knew about it, if we had
(21:08):
a subpoena asking for all documentation about Katrina, whatever it
might be, I don't care.
Speaker 2 (21:17):
What is nine to eleven whatever, I would.
Speaker 1 (21:21):
Tell them, don't necessarily turn that information over yet, but
acknowledge that we have it and we're reviewing it for
national security purposes. And once we get clearance from the
White House, the CIA, the DIA, the NSSAY and everybody,
we'll give it to you. But I'll tell you we
(21:43):
have it, and I might give you a general summary
of what it might be.
Speaker 2 (21:50):
Well, all of this is nonsense. Now, I don't know.
Speaker 1 (21:55):
I would guess that the number of prohibited access files
that the FBI is probably pretty small. Almost all are
probably intelligence cases that will never see the inside of
a court room because they're classified and a judge, a
judge might review them if the judge, you know, in
the case, if the judge is handling a national security case,
(22:17):
the judge will have a clearance and be able to
review them, but that does not mean that the judge
is going to release them for the trial. Even high
profile criminal cases that do eventually involve prosecutions are assigned
to case agents who likely have access to everything and
know what's in these prohibited files, and they know what's important,
(22:40):
and they know what has to be turned over under
the Brady rule. So even in the Grassly memo example,
there is so much known about Crossfire, Hurricane and Nelly
or the subject of the memo and the rabbit Hole alert,
it's I think highly unlikely that anything in a prohibitive file.
(23:03):
Remember this is back in twenty nineteen. We're talking about
twenty twenty five. Now, isn't it amazing how long you have?
I mean, that seems like yesterday talking about crossfire hurricane,
the Russian collusion hoax. On the left hand, that seems
like yesterday, and then when you realize that's twenty nineteen,
that seems like a century ago. Well back to Crossfire
(23:26):
Hurricane and Nelly or the subject of that memo, since
this was six years ago. I'm guessing, purely guessing that
most of all of the information was a venture eventually
released from prohibited status.
Speaker 2 (23:45):
But my.
Speaker 1 (23:48):
Cynicism about the federal government at large, all government in general,
the FBI in particular, I don't know that I really
would say that. I think most of that's been released.
But a complicating factor is this, The Grassy Memo occurred
(24:13):
during e turn over in the Crossfire Hurricane investigation from
Bob Muller, the Special Council. Remember he got the case
back in what twenty seventeen back to the FBI. So
the files have gone back and forth. Now that may
seem innocuous to you, but anytime files are transferred, you
(24:35):
run the risk that they're going to be intercepted, either
you know, overtly or covertly on purpose or accidentally. Those
files are going to get released. Remember how there were
twenty seven phones assigned to Bob Moller. Remember this, It's
so easy to forget all this stuff. Bob Muller had
twenty seven I think they were iPhones, and they got
(24:57):
wiped before they returned to Now, why do you suppose
that is why?
Speaker 2 (25:08):
Now?
Speaker 1 (25:08):
I think the FBI can be held accountable. Now special
counsels that fade away probably cannot. But maybe in the
future special council should not have prohibited access authority. In fact,
maybe we shouldn't have that classification at all, or if
there is, maybe there ought to be available to somebody,
(25:31):
you know, free. I'll just go back to my homeland
security days. So we had security officers, and I don't
mean like physical security officers. I mean the people that
dealt with clearances and classifications and everything. And so they
had clearances that pretty much gave them access to virtually everything.
(25:52):
They were very well vetted, and they were under incredible restrictions.
The FBI at least have those security officers. I don't
know whether they do or not. I can't determine whether
they do or not. I mean, I know they have
to have security officers, I think. To refine my point,
I'm not really sure they have access to these prohibited
(26:15):
access files. So does this mean everything is now okay, No,
it does not. Like everything in law enforcement, everything in
the intelligence agencies, there needs to be some guardrails. And
in the case of these restricted and prohibited files, if
the following things don't exist, then they need to be created.
Speaker 2 (26:38):
And let's just do this.
Speaker 1 (26:39):
Let's take a break early, and I'll go through what
I think they need to do. And I think that
Bongino and Patel, and quite frankly, I think Senator Grassley
needs to take the lead on this. I'm not criticizing
Patel and Bongino by any means. I'm just saying that
this ought to be done in conjunction with the United
(26:59):
States Senate because they have oversight responsibility and there needs
to be some institutional knowledge about how the FBI maintains
these files. Because when you start as we now are
in this current environment, when we have investigations about sitting presidents,
(27:20):
including the former president, then somebody on Capitol Hill needs
to understand how they keep files. Of course, I kind
of believe this about life in general, not just law enforcement,
not just the intel agencies, not just government. But you know,
you raise your kids, you have guardrails. You know, we
(27:44):
have in this highly regulated industry, we have guardrails.
Speaker 2 (27:49):
You know, there was oh, I know what it was.
So there was.
Speaker 1 (27:54):
A EAS alert on television at the other day, and
I naturally just started mimicking the sound. If I did
that right now on this microphone, that's subject to a
huge fine by the FCC. And I mimicked the tone
(28:18):
simply because I was in charge of the EAES when
I was the under Secretary of Homelandsecurity. So it's kind
of like, I still take the test about it. It's
really stupid. I just believe in guardrails.
Speaker 2 (28:29):
Now.
Speaker 1 (28:30):
I don't think that all guardrails need to remain permanently.
And I think guardrails change, and some guardrails are effective
and some guardrails aren't. But you can't go through life
without some guardrails. And I think that this action that
we're now learning simply because Chuck Grassley sends a letter
(28:51):
and says, I heard about prohibited access and now six
years later. Now I can't ascertain for sure exactly when
they started doing this, but this is your government, our government,
(29:14):
acting outside any guardrails. Now, I get that again. I've
actually been in briefings where it's at the TSSCI level,
but everything's always on a need to know basis. So
I've actually been inside the Pentagon in the OP center
when we're getting briefed by you know, some operationals guy
(29:36):
that's on a screen somewhere that's sitting in Afghanistan or
wherever the hell he was, and he then says, now,
I want to go to program and they're usually two letters.
I want to go to a program DX. So if
you're not cleared for program DX, please leave the room.
And I would pull out my little card, both the
(29:58):
size of a business laminated business card, and I'd look
to see if those two letters were on my card,
and if they weren't, I wasn't ready into that program,
So I'd get up and leave. And then I so
I'd go sit outside and wait until they open the door.
Speaker 2 (30:12):
You can come back in. Now, Well, I understand the need.
Speaker 1 (30:18):
To keep some things separate, and you've got to have
compartment some compartmentalization. But if you're going to do that,
then Congress needs to know about it, and if we're
going to do it, for that matter, the President and
the administration need to know about it. This is another
(30:40):
example of where I understand why people are distrustful of
law enforcement. Now I think sometimes that distrust is way overblown.
But prohibited access this reeks of Jay Edgar Hoover. This
reeks of we're going to keep secret files on our enemies.
(31:02):
We're going to keep an enemy's list, And in this case,
the enemy just happened to be one Donald J.
Speaker 2 (31:08):
Trump.
Speaker 1 (31:10):
So when a case moves to the prospective phase, it
needs to migrate from prohibited, if it ever should have
been prohibited in the first place. When a case is closed,
it needs to migrate out of prohibited. When an inspector
General starts an investigation, the file needs to move or
at least the inspector General needs to be informed about
(31:32):
the file. And I think in most cases, I'm not
willing to say all cases, but I think in most cases,
when Congress asks at least portions of the file need
to be made available, and if they're not going to
be made available, then there needs to be a very
specific reason why, or the chairman of the oversight committee
(31:55):
ought to be able to see at least the portion
is not going to be disclosed. Can I can see
examples where where the director Cash Pateel or the deputy
director Bongino might have to brief a member, you know,
on an intelligence committee rather than just blank and respond
to a request.
Speaker 2 (32:13):
But I just wanted to bring this to you. This
all blew up on X last week and I'm just
now getting around to it. But it's it
Speaker 1 (32:21):
Just seems to me that it's another example of how
little we understand about just how devious the government is
the enemy within
Let's see now if this is true, not that I
would ever think you Goober's would send me something that's
not true. I would never think that. But if this
is true. Eleven eighty four, I found out that the
weirdo who firebombed the Tesla dealership in Vegas and the
weirdo who fire bombed people in Boulder, they lived less
(00:23):
than a mile away from each other. In color lot
of springs. Things that make you go, hmm, this is
pretty good. Fifty four to thirty one. The left will continue.
This is why it is exactly what I just said.
The left will continue to downplay the riots until they
get what they want, which is when a national Guard
(00:44):
or even worse, the Marines kill someone. If that happens,
we will never hear the.
Speaker 2 (00:48):
End of it.
Speaker 1 (00:51):
Someone on X yesterday described that scenario as the shot
that will be heard around the world, and that's probably
be true. Yes, we had the kids that were throwing
the rocks at cars. Someone got killed, and they were
just I think just this past week, or maybe it
(01:12):
was this week, they were convicted, actually think convicted of murder.
Speaker 2 (01:18):
Thirty six oh two. Rights.
Speaker 1 (01:19):
Here's some perspective. There was a Coldplay concert the other
night there were riots and a Rockies game all at
the same time. Well, was the riot because the Rocky
sucks so badly? Or was that a separate riot? Was
that a riot trying to get rid of Montford? As
(01:40):
the owner of what was going on, our TD received
complaints that the trains had stopped running at twelve thirty.
People were stranded and each didn't know about the other.
What a world we live in when a riot and
a Coldplay concert com collide. By the way, there were
up eighty thousand people the Coldplay concert. Wow, Well, just remember.
(02:02):
I kind of think my mindset today is that everything
that's going on is this battle for our minds, and
that's nothing new that's been going on forever. Advertisers know
they're in a battle for your mind so that they
can get your dollar. News is in a battle for
(02:23):
your ears. Radios and eyes. Radios in a battle for
your ears. We're all in these great battles, and you're
just upon in the game of life, says Mondo. So
there was an FBI crisis last week on social media,
(02:44):
and it centered around something called prohibited files. Now, as
much as I've dealt with the FBI in my lifetime.
I've never heard of this. This was all news to me.
So it started about a week ago when Grassley, the
Senator from Iowa, who has been a staunch critical the FBI,
(03:06):
released a twenty nineteen FBI memo. It was an email
form in email format. We're in the memo. The author
of that memo, who was an FBI agent Duh, noted
that some of the files he was trying to get
were prohibited access. Prohibited access.
Speaker 2 (03:32):
Now, all of my.
Speaker 1 (03:35):
Clearances that I had, and in all of the forms
I had to fill out, and all of the cover
sheets that I ever saw that you know, this is secret,
this is top secret, this is TSSCI.
Speaker 2 (03:49):
This is.
Speaker 1 (03:51):
FOUO for official use only. I mean, just all the
different classifications. I'd never heard of prohibited access. And apparently
these files were related to Crossfire Hurricane, you know, that's
the FBI code word for.
Speaker 2 (04:06):
The Russia collusion investigation.
Speaker 1 (04:09):
And these files apparently related specifically to Nelly Or, who
the Center had referred to the Department of Justice for
obstruction of Congress charges. Now, trust me, you can go
down a really deep rabbit hole if you don't grasp
(04:31):
the complex, the complex nature of crossfire hurricane. Every time
I hear crossfire hurricane, all you can think about is
the rolling stones. So let me give you some background.
One of j Edgar Hoover's legacies was creating a record system.
(04:54):
And this is one hundred years ago probably now, while
it has certainly been over come by the modern technology
we use today for filing system I mean when you
think about a filing system today, I mean I still
think I still have a file cabinet at home because
I still have you know, the colored you know, Manila
(05:14):
folders that have you know, certain records in it. You know,
I got my tax records. Some of it's all duplicated.
You know, I have hard copies of my tax returns
and I have electronic copies of my tax returns. There
are certain other documents I keep hard copies of and
electronic electronic copies of. So when you think about filing systems,
(05:41):
the old filing system by Jay Edgar Hoover really has
been overtaken by modern technology.
Speaker 2 (05:48):
And you know you got file.
Speaker 1 (05:49):
Folders on your computer. Every field office and FBI headquarters
maintains an index card file system. So when communications came
into any of these offices or went out of the offices.
(06:10):
The FBI agents would index important information from the file
by underlining that with a red or blue pencil, read
for subjects of investigations, blew us for references, and then
the location of the file or the serial record or
number was then recorded on an index card.
Speaker 2 (06:31):
Remember going to.
Speaker 1 (06:32):
The library, and in the library you'd have the index
cards where you would go search for, you know, the book. Oh,
here's the book. I'm going You get the you get
the index number and go find it. They were kind
of doing the same thing. So I tried to find
an example, and here here's the best I can come
up with. Uh, I think this if if there are
(06:54):
any FBI agents which I happen to know down in
Arizona a couple of places we gut FBI agent is listening.
If this example doesn't work, to send me a text
message and tell me why it doesn't work.
Speaker 2 (07:06):
Here's an example.
Speaker 1 (07:07):
You might have a file number ninety one a dash
bs DASH one two, three four DASH one. Say Joe
bag of doughnuts was the subject of an arm robbery
investigation in Denver. He would be indexed in red into
the file ninety one A. That's a designator for armed
(07:28):
bank robbery, and then it would be you should have
done ds BS I think would be for Boston, DS
would probably be for or DV, or DN would be
for Denver. One, two, three, four would be the file number,
and then the DASH one that would be the first
serial that would be in that entirety, entire file. So
(07:52):
then later in the investigation, an important witness was developed,
Betty boot It's indexed in the same file as a reference,
so she would be underlined or highlighted as blue. And
then a later serial maybe number seventeen or something. So
then if an agent in outside Denver, maybe in Boston
(08:16):
or Detroit, wanted to know if there were any FBI
files on the you know, Joe Bagadonnuts or whoever it
was that was the robber or on Betty Boop, he
could send a lead out to every office and into
the headquarters to check intoses for any files on those individuals.
(08:41):
So a clerk in Boston or in Denver, or even
a new agent just checking intoseas and responding to leeds,
which is I think is something all new agents have
to do, would go to the card file and see
that you know, mister Bagadonuts mister bank robber was a
subject and Betty Boop was a reference, and then he
(09:04):
could send that information back to whatever field agent was
asking for it. He consented to Detroit, Boston, you know,
whoever asked for That system existed until the early nineteen nineties,
and the nineteen nineties was when they first automated the
case file system. But even then, just like with me,
(09:28):
paper files remained relevant because it was going to take
decades in fact, that they still had paper records to
this day because to migrate all of those files, paper
files into the automated case file system, the ACS system,
that would take you know, probably decades to do. And
of course then you had the very early system of
(09:52):
electronic filing was not word searchable. You know, today just
on my laptop, I can go up here and I
can I can click on this little magnifier looks like
a little magnifying glass, and the window pops up on
my book pro for a spotlight search, and I can
(10:12):
just type in some keywords and that will return to
me every file, email, everything that's on this hard drive
that has those keywords. Well, the early system didn't have that.
The later systems do so indosing indexing is still relevant
today because with literally billions of pages of information, a
(10:36):
word search for Michael Brown or John Doe or John
Smith but might be useless. Too much information is as
worthless as no information. I find that to be true
even in my little laptop here.
Speaker 2 (10:52):
So there are.
Speaker 1 (10:53):
Still rules about indexing related to privacy. Well, let's think
about these hidden files. Open investigations in the early days
were kept on the squad in a circular file called
a rotor. Closed files were kept in a room, maybe
(11:14):
on different floors, in the field office or at headquarters.
The informant files were kept in a secure room where
only a few people had access. You had to check out,
you know, you had to check out informant files for example,
and if it wasn't your informant, you had to have
a good reason to check out that file.
Speaker 2 (11:35):
And then you had.
Speaker 1 (11:36):
Especially sensitive files that might be kept in the special
Agent in charge's office literally in his office or her office.
Really sensitive files. Well, originally those were kept in J.
Edgar Hoover's office. Now reportedly a lot of those files
(11:56):
were destroyed by Hoover's longtime secretary Helen Gandhy. But I'm
not going to down that rabbit hole right now. So
you can see that now in the electronic case file
age where security of files might be a problem. Because
most of the FBI is somewhat over thirty thousand employees,
they're all very honorable people. They don't commit espionage, they
(12:18):
don't leak sensitive information to the media, they don't lie
to the FISA court. But not all of them do.
Even the FBI recognizes that they can't even trust all
of their own agents. And that gets us to restricted access.
(12:41):
The FBI created files that were marked restricted access and
what was then known as silent HIT designators. Now I
don't know this for sure, but it sounds like the
silent HIT is now being.
Speaker 2 (12:58):
Also called prohibited access.
Speaker 1 (13:02):
So you had restricted access and now you have prohibited access.
Speaker 2 (13:09):
Now.
Speaker 1 (13:09):
The major feature here seems to be that a false
negative is created when you do a search that hits
on one of those restricted or prohibited access files. In
other words, it returns no information. So if you're searching,
you're told there's no file, there's no reference to your inquiry.
(13:33):
Apparently that's not new. Restricted access means that when an
FBI employed, doesn't that be an agent could be you know,
a clerk when they run a name or any other information,
they know a file or a reference exists, they just
can't see it. But for security reasons, the FBI might
(13:55):
not want just any employee to know that a file
even exists, so they created the silent hip feature. Now
when that happened, and notice is sense somewhere I don't know,
the head of the office, maybe the head of security
in the Security Division, I don't know, but that but
it gets sent somewhere advising something like, hey, special Agent
(14:20):
Brown in Denver just ran a search for.
Speaker 2 (14:27):
Let's say Helen.
Speaker 1 (14:29):
Or or not Helen or oh what was that damn
woman's name in Nelly or Nelly or someone you know.
Special Agent Brown just ran a search with an inquiry
for Nelly or.
Speaker 2 (14:48):
Now.
Speaker 1 (14:49):
I don't see I'm the one that made the request.
I see no return. But somebody within the agency, probably
within the Security Division.
Speaker 2 (14:59):
And my guess is.
Speaker 1 (15:00):
Probably now whether this is still true with Cash Ptel
and Dan Bongenio, I don't know, but at least with
Christopher Ray, it was true that somebody in headquarters got
notified that, uh, oh, somebody's trying to get access. They've
ran a word surge and they there was a hit
on a prohibited or restricted access file. Wow, you don't
(15:23):
infest your own people, law enforcement that they're all looking
over their shoulders. This is fascinating to me. You remember
the oh what was this Robert Hanson, the FBI trader.
(15:44):
He was the head of the FBI counter intelligence that
sold classified documents to the Soviets for decades, ran himself
in indices all the time to find out if he
was the subject of an espionage in thestigation, and in
fact he was. I'd be shocked if every spy in
(16:06):
the modern era everywhere hasn't at one time done the same.
If if I knew that I Heart kept separate files,
sensitive prohibited restricted files on me on a rod or
(16:26):
on Redbeard, and I had access to run a search,
damn right, I would, And you know you do it too.
For restricted access and prohibited access files make imminent sense
in that regard. Not everybody with an FBI credential or
(16:51):
clearance should have access to everything.
Speaker 2 (16:54):
Michael, there is no doubt in my mind that my
heart has some quote special files on you.
Speaker 1 (17:04):
Yeah, I see, I don't even want to think about that.
So remember all this whole controversy that erupted last week
centers around Crossfire Hurricane and all the communications about that
Russia Russia Russian investigation. So it makes this whole story
(17:24):
automatically political. Both pro Trump and anti Trump actions can
find and acts to grind if they want to. With
the notion that all files related to Crossfire Hurricane were
not accessible to FBI agents who were looking and had
good reason to be looking, and in the case of
(17:45):
the new memo, it was the Washington Field Office agents
on a criminal squad who probably had limited at least
some official knowledge of Crossfire Hurricane at the time, hence
their frustration. So there are a lot of I shouldn't
(18:06):
say a lot. There's been a few lawyers on my
ex speed that I've seen, but a lot of keyboard
warriors on X also claiming that so called prohibited access
forwards what is known as the Brady rule. Do you
remember the Brady rule that should be note in your
law school notebook. That's the Supreme Court ruling that requires
(18:30):
the prosecutors the government, if you will to turn over
any exculpatory information to a defendant, any information that is
beneficial to a defendant, you're required to give that information
to them. It's called the Brady rule. Now, the critics
claim that if the FBI can't find the information because
(18:55):
it's prohibited, then it can't be turned over under the
Brady rule. But then there are others that are arguing
that there are many cases that are going to be
overturned because of this. I happen to fall on the
side of that. If this is Brady evidence, if this
is evidence in favor of showing that Trump was not
(19:19):
guilty of stuff, or for that matter, anybody else.
Speaker 2 (19:23):
Involved in the Russia collusion oaks, I.
Speaker 1 (19:27):
Don't care whether it's in a prohibited file, a restricted file,
or prohibited access file.
Speaker 2 (19:32):
I don't care what you call it. You have it.
Speaker 1 (19:37):
And just because if you are the person in charge
of responding to a subpoena that you don't have access
to it, that's not an excuse you have to make.
At least in the private sector, you do. You know,
sometimes you will get I saw a letter that I
forget whether it was Comer or Jim Jordan or somebody
(20:00):
had sent some person who is the head of some
NGO and Congress is doing some investigation, and I you know,
as a lawyer, I've drafted these lawyers these letters, and
I've received these letters, and we have a clients before
where it basically says you're under investigation and we want
(20:24):
you to preserve and then here's a list everything. Well,
I know that I would advise my client that you
need to search everywhere all four corners of your business,
all four corners of your operation, to find any and
(20:47):
all relevant material. And if I were back in my
old days as general counsel at FEMA, and if we
had files like this one, I would hope that I
would know about it. If I didn't, hedge would roll.
But assuming that I knew about it, if we had
(21:08):
a subpoena asking for all documentation about Katrina, whatever it
might be, I don't care.
Speaker 2 (21:17):
What is nine to eleven whatever, I would.
Speaker 1 (21:21):
Tell them, don't necessarily turn that information over yet, but
acknowledge that we have it and we're reviewing it for
national security purposes. And once we get clearance from the
White House, the CIA, the DIA, the NSSAY and everybody,
we'll give it to you. But I'll tell you we
(21:43):
have it, and I might give you a general summary
of what it might be.
Speaker 2 (21:50):
Well, all of this is nonsense. Now, I don't know.
Speaker 1 (21:55):
I would guess that the number of prohibited access files
that the FBI is probably pretty small. Almost all are
probably intelligence cases that will never see the inside of
a court room because they're classified and a judge, a
judge might review them if the judge, you know, in
the case, if the judge is handling a national security case,
(22:17):
the judge will have a clearance and be able to
review them, but that does not mean that the judge
is going to release them for the trial. Even high
profile criminal cases that do eventually involve prosecutions are assigned
to case agents who likely have access to everything and
know what's in these prohibited files, and they know what's important,
(22:40):
and they know what has to be turned over under
the Brady rule. So even in the Grassly memo example,
there is so much known about Crossfire, Hurricane and Nelly
or the subject of the memo and the rabbit Hole alert,
it's I think highly unlikely that anything in a prohibitive file.
(23:03):
Remember this is back in twenty nineteen. We're talking about
twenty twenty five. Now, isn't it amazing how long you have?
I mean, that seems like yesterday talking about crossfire hurricane,
the Russian collusion hoax. On the left hand, that seems
like yesterday, and then when you realize that's twenty nineteen,
that seems like a century ago. Well back to Crossfire
(23:26):
Hurricane and Nelly or the subject of that memo, since
this was six years ago. I'm guessing, purely guessing that
most of all of the information was a venture eventually
released from prohibited status.
Speaker 2 (23:45):
But my.
Speaker 1 (23:48):
Cynicism about the federal government at large, all government in general,
the FBI in particular, I don't know that I really
would say that. I think most of that's been released.
But a complicating factor is this, The Grassy Memo occurred
(24:13):
during e turn over in the Crossfire Hurricane investigation from
Bob Muller, the Special Council. Remember he got the case
back in what twenty seventeen back to the FBI. So
the files have gone back and forth. Now that may
seem innocuous to you, but anytime files are transferred, you
(24:35):
run the risk that they're going to be intercepted, either
you know, overtly or covertly on purpose or accidentally. Those
files are going to get released. Remember how there were
twenty seven phones assigned to Bob Moller. Remember this, It's
so easy to forget all this stuff. Bob Muller had
twenty seven I think they were iPhones, and they got
(24:57):
wiped before they returned to Now, why do you suppose
that is why?
Speaker 2 (25:08):
Now?
Speaker 1 (25:08):
I think the FBI can be held accountable. Now special
counsels that fade away probably cannot. But maybe in the
future special council should not have prohibited access authority. In fact,
maybe we shouldn't have that classification at all, or if
there is, maybe there ought to be available to somebody,
(25:31):
you know, free. I'll just go back to my homeland
security days. So we had security officers, and I don't
mean like physical security officers. I mean the people that
dealt with clearances and classifications and everything. And so they
had clearances that pretty much gave them access to virtually everything.
(25:52):
They were very well vetted, and they were under incredible restrictions.
The FBI at least have those security officers. I don't
know whether they do or not. I can't determine whether
they do or not. I mean, I know they have
to have security officers, I think. To refine my point,
I'm not really sure they have access to these prohibited
(26:15):
access files. So does this mean everything is now okay, No,
it does not. Like everything in law enforcement, everything in
the intelligence agencies, there needs to be some guardrails. And
in the case of these restricted and prohibited files, if
the following things don't exist, then they need to be created.
Speaker 2 (26:38):
And let's just do this.
Speaker 1 (26:39):
Let's take a break early, and I'll go through what
I think they need to do. And I think that
Bongino and Patel, and quite frankly, I think Senator Grassley
needs to take the lead on this. I'm not criticizing
Patel and Bongino by any means. I'm just saying that
this ought to be done in conjunction with the United
(26:59):
States Senate because they have oversight responsibility and there needs
to be some institutional knowledge about how the FBI maintains
these files. Because when you start as we now are
in this current environment, when we have investigations about sitting presidents,
(27:20):
including the former president, then somebody on Capitol Hill needs
to understand how they keep files. Of course, I kind
of believe this about life in general, not just law enforcement,
not just the intel agencies, not just government. But you know,
you raise your kids, you have guardrails. You know, we
(27:44):
have in this highly regulated industry, we have guardrails.
Speaker 2 (27:49):
You know, there was oh, I know what it was.
So there was.
Speaker 1 (27:54):
A EAS alert on television at the other day, and
I naturally just started mimicking the sound. If I did
that right now on this microphone, that's subject to a
huge fine by the FCC. And I mimicked the tone
(28:18):
simply because I was in charge of the EAES when
I was the under Secretary of Homelandsecurity. So it's kind
of like, I still take the test about it. It's
really stupid. I just believe in guardrails.
Speaker 2 (28:29):
Now.
Speaker 1 (28:30):
I don't think that all guardrails need to remain permanently.
And I think guardrails change, and some guardrails are effective
and some guardrails aren't. But you can't go through life
without some guardrails. And I think that this action that
we're now learning simply because Chuck Grassley sends a letter
(28:51):
and says, I heard about prohibited access and now six
years later. Now I can't ascertain for sure exactly when
they started doing this, but this is your government, our government,
(29:14):
acting outside any guardrails. Now, I get that again. I've
actually been in briefings where it's at the TSSCI level,
but everything's always on a need to know basis. So
I've actually been inside the Pentagon in the OP center
when we're getting briefed by you know, some operationals guy
(29:36):
that's on a screen somewhere that's sitting in Afghanistan or
wherever the hell he was, and he then says, now,
I want to go to program and they're usually two letters.
I want to go to a program DX. So if
you're not cleared for program DX, please leave the room.
And I would pull out my little card, both the
(29:58):
size of a business laminated business card, and I'd look
to see if those two letters were on my card,
and if they weren't, I wasn't ready into that program,
So I'd get up and leave. And then I so
I'd go sit outside and wait until they open the door.
Speaker 2 (30:12):
You can come back in. Now, Well, I understand the need.
Speaker 1 (30:18):
To keep some things separate, and you've got to have
compartment some compartmentalization. But if you're going to do that,
then Congress needs to know about it, and if we're
going to do it, for that matter, the President and
the administration need to know about it. This is another
(30:40):
example of where I understand why people are distrustful of
law enforcement. Now I think sometimes that distrust is way overblown.
But prohibited access this reeks of Jay Edgar Hoover. This
reeks of we're going to keep secret files on our enemies.
(31:02):
We're going to keep an enemy's list, And in this case,
the enemy just happened to be one Donald J.
Speaker 2 (31:08):
Trump.
Speaker 1 (31:10):
So when a case moves to the prospective phase, it
needs to migrate from prohibited, if it ever should have
been prohibited in the first place. When a case is closed,
it needs to migrate out of prohibited. When an inspector
General starts an investigation, the file needs to move or
at least the inspector General needs to be informed about
(31:32):
the file. And I think in most cases, I'm not
willing to say all cases, but I think in most cases,
when Congress asks at least portions of the file need
to be made available, and if they're not going to
be made available, then there needs to be a very
specific reason why, or the chairman of the oversight committee
(31:55):
ought to be able to see at least the portion
is not going to be disclosed. Can I can see
examples where where the director Cash Pateel or the deputy
director Bongino might have to brief a member, you know,
on an intelligence committee rather than just blank and respond
to a request.
Speaker 2 (32:13):
But I just wanted to bring this to you. This
all blew up on X last week and I'm just
now getting around to it. But it's it
Speaker 1 (32:21):
Just seems to me that it's another example of how
little we understand about just how devious the government is
the enemy within
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