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Kash’s Corner: Trump’s 3rd Indictment and the Criminalization of Thought and Free Speech

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[FULL TRANSCRIPT BELOW]“You can't help but notice the coincidence that it was literally immediately following the Devon Archer testimony,” says Kash Patel.
In this episode of Kash’s Corner, we discuss the third indictment of former President Donald Trump, the precedent it sets, and why he believes the judge should recuse herself.
“Look past the Trump cycle of 2024. Go to ’28. Go to ’32. Are we going to say that any president or anybody running for president who decides to say they won the election, but didn't, is going to be prosecuted for that? I mean, how are we going to get people to run for elected office if the fear is you can't say you won anymore?” says Kash Patel.
“We don't live in the Soviet Union. We live in the United States of America, where the Constitution dictates our freedom of speech. And if they're going to criminalize that, which they have done here, it is a very dangerous slope,” says Kash Patel.
Also an announcement from Kash Patel: “With the campaign for the presidency in full swing, we're going to take a time-out on Kash’s Corner’s weekly publication. But fear not, Jan and I are going to come back regularly and me specifically on Epoch Times, EpochTV, and NTD to do weekly, regular hits and interviews when our schedules permit. And we will return to Kash’s Corner after the 2024 election cycle. So fear not. You'll have more of me and Jan than you know what to do with. But we appreciate the audience's understanding, especially with the scheduling in the pending 2024 election cycle.”


Kash Patel: Hey, everybody and welcome back to Kash's Corner. We're finally back, Jan and I, and we're excited to be with you. Of course, we're going to dive into the latest Trump indictment by the Department of Justice, but before we get there, here’s an important announcement from both Jan and I. With the campaign for the presidency in full swing, we're going to take a timeout on Kash's Corner's weekly publication. Jan and I are going to come back regularly on Epoch Times, Epoch TV, and NTD to do weekly regular hits and interviews when our schedules permit, and we will return to Kash's Corner after the 2024 election cycle. So fear not, you'll have more of me and Jan than you’ll know what to do with. We appreciate the audience's understanding, especially with the scheduling in the pending 2024 election cycle. Jan, I know it's not easy to break our weekly team, but we'll still be able to keep giving our audience the news they deserve and the truth they deserve to hear.
Jan Jekielek: 100 percent, Kash. I really look forward to having you on American Thought Leaders and American Thought Leaders Now, which we'll be continuing as normal. We'll also have you on other shows like Crossroads and Facts Matter. Kash, it's a very unusual day to be doing this. Most of us knew that something like this was definitely coming down the pike. Certainly, President Trump has been talking about it for some time. There's this third indictment that's happened. There's so much to talk about, but let's start with the substance of the indictment. What exactly is he being indicted for?
Mr. Patel: That is what is turning heads across America and the media landscape. As a former federal prosecutor and public defender, I look for criminal conduct. That's what an indictment is supposed to lay out, the legal basis to charge someone. What the Department of Justice has done is issue a speaking indictment. What that means is they've put out so much information because they want a narrative to be out there, but it's supposed to be underwritten by a legal basis.
What do they say happened? They are saying President Trump conspired and obstructed congressional hearings to have the vote count conducted on January 6th. But to me that sounds like freedom of speech and constitutional due process. If President Trump wants to say from now until the end of time that he won the 2020 election, Jan, it is his constitutional right to say so.
If you disagree with him, that is a political decision for the American public to adjudicate on election day. He has every right under the Constitution to say that and Americans have every right to disagree with him. Where we are in troubled waters here, in my opinion, is the criminalization of thought and free speech.
An interesting point on this indictment is that we had heard for months that Jack Smith, the special counsel, was looking into Trump's conduct on January 6th concerning the so-called treasonous, seditious, insurrectionist riot to overthrow the United States government. When it came time and Jack Smith had the opportunity to issue those indictments and charges, he didn't. By the DOJ's own admission, they have now shot their shot and said President Trump did not incite a riot, did not commit insurrection, was not seditious, was not treasonous, and didn't conspire with others to conduct those illegal activities.
It's akin to what they did in the classified docs case, where the DOJ had the opportunity to charge President Trump with the statute from 1951 of unlawfully possessing classified material, but they didn't. They charged him with a 1917 Espionage Act that predates the classification system. When they superseded that indictment just last week, they again did not charge him with the unlawful possession of any classified document. So, Mr. DOJ, which is it? Is he an insurrectionist, and a seditionist, and treasonous? Is he an unlawful possessor of classified information, or is he not?
By their own two indictments that they chose to bring, they have answered affirmatively that Donald Trump is not either of those. It's very interesting and curious at the same time that these charges are coming so fast and furiously without a legal basis. You can't help but notice the coincidence that it was immediately following the Devon Archer testimony, which all but destroyed President Biden's credibility about his conduct and communications with his son and their involvement with Burisma, Ukraine, and Chinese-affiliated entities in receiving millions of dollars.
Jan, we've said it before, there are no coincidences in government. This DOJ brought this indictment and chose the timing of when to do it for a specific reason, and the American public deserves to know the context behind that.
Mr. Jekielek: Kash, let's talk about what the indictment does say. It's very interesting what it doesn't say, of course. It's talking about lying and it's talking about conspiracies, and that's the substance of it. You tell me.
Kash: Yes, that is the crux of their allegations in the new Trump indictment. But let’s hit pause for a second, Jan. When I was running the Russiagate investigation for then Chairman Nunes, we actually criminally referred all of the people at the FBI that were involved with Russiagate; James Comey, Andy McCabe, Lisa Page, Peter Strzok, Bill Priestap, and so many other individuals. For what?
For the very same charges that Jack Smith is now utilizing to charge President Donald Trump. When we made that referral to the DOJ, and we're going to put the letter up for our audience to see the actual criminal referral that we made and the actual statutes and charges we alleged, the DOJ laughed us out of the halls of justice. They said, "We don't use these statutes to prosecute that kind of conduct, it's political."
Really? That's interesting. Fast-forward five years later and now Jack Smith is allowed to use the statutes of lying and conspiring to commit a conspiracy. The reason I'm using quote marks is because it's a 371 conspiracy. That's what we call a dry conspiracy. It means the DOJ has no other ammunition. By the way, it's a felony punishable by only five years.
They wanted President Trump in prison forever for crimes that were deserving of life sentences. This conspiracy is an all-encompassing catch-all. They are actually saying, "We don't have the substantive charges of treason and sedition, so we're going to say you did a bunch of bad stuff and talked to a bunch of bad people, and then we're going to add a lying and obstruction charge."
Here's the thing, you cannot have the obstruction charge and the lying charge without the underlying conspiracy. But read the indictment, Jan. What is the actual illegality of the conspiracy, that you disagree with Donald Trump's decision on the 2020 election? Again, that's a political decision. I want to remind our audience; in 2001, 2005, and in 2017, the Democrats formally objected to those elections.
Barbara Boxer went so much as to demand Ohio reverse their adjudication of the election cycle. Hakeem Jeffries, the current leader of the Democratic Party in the House of Representatives, objected to the 2016 presidential election, as did then Speaker Nancy Pelosi. That's their right, Jan. Under our Constitution, you have the right to fully challenge any election if you disagree with it. It's not as if on January 21st Donald Trump said, "No, I'm not leaving the White House."
He said he would leave if the election was adjudicated in a manner according to the Constitution. But he's also allowed to continue the conversation past that date and say, "No, I still think I won." You can disagree with him, Americans can disagree with him, but that decision should be made at the polls and not in a grand jury room.
The slippery slope we're on from a political perspective is looking past the Trump cycle of 2024. Go to 2028, or go to 2032. Are we going to say that any president or anybody running for president who decides to say they won the election, but didn't, is going to be prosecuted for that? How are we going to get people to run for elected office if the fear is you can't say you won anymore? If the government says you lost, that's it.
We, the government? We don't live in the Soviet Union. We live in the United States of America where the Constitution guarantees our freedom of speech. If they're going to criminalize like they have done here, it is a very dangerous slope. It exemplifies the two-tier system of justice because it's never been applied before. They could have used substantive criminal statutes. But since Donald Trump didn't commit those acts, Jack Smith and company went after a very thin legal justification to prosecute Donald Trump.
Now, everybody knows, whether you're Democrat, Republican, Libertarian, or Green Party. What I've heard from around the country since the indictment is people saying, "What are they charging him for? I don't understand it. He's just saying that he won, and that he disagrees." Some people are saying, "I also disagree. Why is that a crime?" That is the question that's going to be asked for a long time now.
Jan: There are other unnamed co-conspirators, as they're described in the indictment, who were on his team.
Kash: Right.
Jan: Let me ask one quick question before we continue. Why are you saying that you used the same approach to do those criminal referrals to the DOJ back then during the Russiagate investigation? You believed you had a case when you were doing that, and they disagreed. But now they're using this approach to take on President Trump. Why do you think that it was appropriate then and isn't appropriate now, just to be clear?
Kash: That's a great question. The reason we made the referrals, talking about it retrospectively, five years later after the Durham Report, the IG report, the HSBI report, and the Nunes memo, we knew definitively that the FBI had no lawful basis to launch an investigation of then President Trump. We now know definitively that the DNC and Hillary Clinton campaigns paid for the Steele dossier, the vehicle that the FBI used to lie to a federal court to obtain a surveillance warrant.
We also now know that those surveillance warrants were completely nullified and rescinded by the Department of Justice. It's an extremely rare maneuver, after all these investigations were completed to say there was no lawful basis to ever conduct this kind of surveillance and this kind of warrant.
We've caught Comey, McCabe, and Strzok lying to congressional officials about the credibility of the Steele dossier, hiding Brady evidence, and going into a federal court and knowingly lying to a judge. They didn't make a mistake. That's why we made those referrals because if these individuals in government did that, then they conspired to defraud the United States and the American people, and they conspired at a time when they wanted to upend a presidential election for one party versus the other.
For the DOJ to come back to us and say, "There's nothing here. We're not going to prosecute, you guys are crazy," shows that the two-tier system of justice was alive long before President Trump was elected the first time in 2016. I think we've covered the reason it doesn’t currently apply.
What is the substance of President Trump defrauding the United States? Did he go into a FISA court and demand a surveillance warrant on his opponents? He has continuously said that he won. Agree or disagree, that’s a political argument. He called six people, lawyers and supervisors, to say, "I want you to look into this." The lawyers were telling him, "Sir, there's a way for you to constitutionally challenge this." Trump said, "Okay, let's do that." What part of that is criminal?
You can have a robust disagreement. You can even call them dumb, but that's a far line from calling it criminal. In the speaking indictment, you highlighted something that we haven't talked about with the 6 conspirators, what is the underlying substantive conspiracy? That's why I brought up the 371 thing. It's not like they got together and conspired to kill someone.
It's not like they got together and conspired to commit a bank robbery. It's not like they got together and conspired to defraud the United States by going into a federal court and lying to a federal judge. You see, that's the difference. One is a conspiracy that has substance and legal statutes underpinning it, and then there's this conspiracy about chatter, which the DOJ has said they don't like.
They didn't like President Trump's saying he had won the 2020 election. Now, they're taking him and six people and criminalizing it. Here's another interesting thing, Jan, how many names are on that indictment? Just one, but there's also six conspirators involved? It doesn't add up for me.
Maybe they'll charge them later. But if they start charging lawyers and government officials and political advisors for advising a president they worked for on whether or not they thought they won the election and whether or not there was a vehicle to challenge it, are we going to start prosecuting Hakeem Jeffries, Nancy Pelosi, Barbara Boxer, and everybody else that challenged elections before? What about all the elections to come after 2024?
I know we have to live in the now, and the significance is, "It's all 2024." I'm more worried about '28, '32, '36, '40, '44, and every election that comes after that. This is a legal precedent where the DOJ is putting out a marker, and unless it's stopped by the judicial system, it's going to be very dangerous for Americans.
Jan: You made those criminal referrals back in the day around Russiagate, then later there was a deep investigation into the validity of that investigation. Similarly, there's a criminal indictment that has been made, so perhaps there should be a fine tooth comb examination of the 2020 election and what actually happened.
Kash: You raise a good political issue, which is not something we talk about much on Kash's Corner, because we want to give the people the facts and the law and then let them make the decision. But it's appropriate in this context because what the DOJ has now forced is a re-litigation of January 6th and everything surrounding it, including the 2020 election. They have now welcomed that back into the American discourse by indicting Donald Trump for whatever the conduct is they indicted him for.
The kicker is, are they prepared to have it re-litigated in front of the American public and in the court of law? By the way, Donald Trump is a charged criminal defendant, not civil, but criminal defendant. He has the right to due process. He gets to subpoena any witness he wants to justify his defense, and any witness he thinks has antagonized him and has attacked him personally.
Guess who might be on the list, Jan? It might be Merrick Garland, Christopher Wray, Jack Smith and all of his co-counsel. Some have committed egregious malpractice prosecuting individuals and have been reversed by the United States Supreme Court and other districts. Those are all open. That's fair hunting season, and he gets to go into court and say why he thinks he won the 2020 election.
If people wanted that story to end politically, Jack Smith is the reason it has now just been reopened. If I were Donald Trump's attorney, I would be telling them to take a very expansive view of the defense in this case, because they're saying, "You committed a conspiracy against the United States of America. It's a very broad crime."
He can come in and have dozens of former and current government officials testify, many who probably don't want to be in a federal courtroom testifying in Donald Trump's defense. You can't have it both ways. Jack Smith made the decision to prosecute, Merrick Garland authorized it, and now they're going to have to live with the political consequence of re-litigating that in the court of law. Of course, Jan, as you know, this is going to be the most watched case in United States criminal court history.
Jan: Kash, they have actually made these indictments in different places. Now, this one is being done in Washington DC, so it will be a Washington DC court that will be looking at it. What do you make of that?
Kash: That is jurisdictional venue shopping. They brought the other case in Miami because that's where jurisdiction lay. Now, they are bringing this indictment in Washington DC, and we know what happened to special counsel John Durham's cases in Washington against Sussmann and Danchenko. The jury pools are very different and the judges are very different. The judges are worthy of scrutiny in these cases, and we'll get to that in a second. But the reason the DOJ brought this case here is because they thought it was politically advantageous to them, with a better chance for a judge that saw it from their political vantage point.
It's clear now, and I know we say we don't mix politics and the law, but it's now abundantly clear that Jack Smith, Merrick Garland, and their entire team are anti-Trump. They've shown their hand. For them to bring this case in DC shows their hand even more, based on the charges, or the weakness of the charges that they have brought. It gets more and more interesting when you talk about the judge specifically.
Jan: What about the judge? I'm actually not familiar with those circumstances.
Kash: Judge Chutkan is an Obama appointee, but that doesn't matter. That's never grounds for recusal. Here's what does matter, back in 2017 and 2018, Epoch Times was brilliantly covering the Russiagate scandal that the House Intelligence Committee was undertaken by then Chairman Devin Nunes and I was the chief investigator. During that process, you'll recall we actually set out to acquire the bank records of Fusion GPS.
During our investigation, we had uncovered that the Democratic Party and the Hillary Clinton campaign and Perkins Coie Law firm had all got together to funnel money to Fusion GPS and create the Steele dossier, which was the unverified vehicle that the FBI knowingly used to lie to a federal court. So, they took us to court. We issued a congressional subpoena, and it was their right to challenge it, so they took us to federal court.
Do you know where that case landed? With Judge Chutkan. Do you know what happened in that case? We were adjudicated in the matter. We were on the eve of victory because we knew we had a lawful right as a congressional committee to acquire financial records of people who are under investigation by us, and we had a basis to justify it.
Judge Chutkan recused herself from that case, not on a motion from me, and not on a motion from the Congressional Republican majority. She recused herself because we had figured out that she was an attorney at Boies Schiller at the same time as Hunter Biden. This was the law firm that had represented half of the Democratic entrenchment, the DNC, Fusion GPS, everyone tied to Fusion GPS, and people on the Hillary Clinton campaign.
In my opinion, Jan, if this judge recused herself without us soliciting it in that instance, how can she possibly be the fair, neutral, and detached arbiter of justice for the facts that the Constitution requires in the Trump indictment involving many of the same individuals, many of the same possible witnesses, and many of the same relationships from the Boies Schiller law firm? She should recuse herself from these proceedings based on her own past precedent.
That is a righteous question for the defense team in this case to ask. It's actually incumbent upon the prosecutors to take that to the judge because they know about this. They are obligated under the canons of ethics and the rule of law to say, "Judge, maybe you're not the best for this based on past conduct, because above anything else, your impartiality and the appearance of impartiality is enough to set this aside as a recusal matter." Let's see where this goes, but it's going to be heavily litigated in the weeks to come.
Jan: Absolutely fascinating, Kash, as always. This is a very timely episode, and we want to get it up tonight. We're going to actually publish this on Wednesday, because who knows what else is going to happen over the next couple of days. The news cycle is just spinning like crazy.
Kash: I'm going to miss Kash's Corner with you. But the advantage of putting it up tonight is that I can come back tomorrow Friday on another show and be interviewed on breaking news. There is a give and take to it, but I'm going to miss our weekly show, and I think our audience will too.
Jan: Absolutely, Kash. It's time for our shout out.
Kash: With the last Kash's Corner, here’s a shout out and a reminder to the audience. Although Kash's Corner is off until after the 2024 election, Jan and I will be on many different Epoch shows, including American Thought Leaders and also contributing to NTD, the 24/7 news platform, and Epoch Times as well.
If we're signing off of Kash's Corner, the last shout out has to go to Miss Irene. She has led the production and she has been the leader of this show for years. Without her, we never could have done it. You and your team are absolutely fantastic. Just so you know, it's not like they've got 50 people working behind the scenes.
There are three people who make this come together for Jan and I every week, and not just this show, many other shows at the same time. So, thank you to all the staff there. Thank you, Irene, for your commitment to making the show what it is.
We've built something very special here at Kash's Corner. Jan, thank you for having the audacity to tell me that I belong on TV. Here we are six, seven seasons later. I can't wait for what the future holds for Epoch Times, Epoch TV, and NTD. I'm really looking forward to future episodes.
Jan: Kash, those are some amazing words and I'm absolutely certain Irene is just completely thrilled on the other end. We'll see you all next time on American Thought Leaders, American Thought Leaders Now, or another Epoch Times and NTD show.
This interview has been edited for clarity and brevity.