Tom Fitton on the Durham Probe, Flynn Case Misconduct, and His New Appointment

October 9, 2020 Updated: October 12, 2020

Irregularities in the Mueller investigation keep coming to light, including 22 Mueller team phones that were wiped before having been examined for records, and a guilty plea secured by US Attorney John Durham.

Now, Director of National Intelligence Ratcliffe has ordered the transfer of 1000 pages of material to Durham’s investigators.

Ex-FBI deputy director Andy McCabe recently refused to testify to the Senate Judiciary Committee, and according to Judicial Watch president Tom Fitton, there’s an underlying reason—which has to do with the confirmation of Judge Amy Coney Barrett.

This is American Thought Leaders 🇺🇸, and I’m Jan Jekielek.

Jan Jekielek: Tom Fitton, such a pleasure to have you back on American Thought Leaders.

Tom Fitton: Jan, thank you for having me.

Mr. Jekielek: Tom, you have a new appointment from the president. This is new news. It’s super interesting to me. The D.C. Commission on Judicial Disabilities and Tenure—tell me about this. What is this all about?

Mr. Fitton: The President announced his intention to appoint me to this independent commission here in D.C. that not only advises the president on extending the tenure of essentially the equivalent of municipal or state court judges here in the District of Columbia, because he has some decision-making authority there, but we also provide oversight, the Commission does, of potential judicial misconduct. It’s a big court system here in the District of Columbia.

The President has one appointment, and so obviously, I’m honored to be put in place by President Trump. I look forward to helping D.C. get the best court system it deserves and doing what I’m able to do as one commissioner to try to instill and maintain confidence in the judicial system here in D.C.

Mr. Jekielek: What would be the timeframe on this appointment?

Mr. Fitton: I would presume almost immediately. We’ll see. I should be on soon.

Mr. Jekielek: The big question on everybody’s mind is would this involve folks such as, for example, Judge Sullivan?

Mr. Fitton: No, he’s a U.S. District Court judge. These judges [the Commission looks at] are Superior Court judges or D.C. Court of Appeals judges. They’re confirmed by the Senate, but they’re not even confirmed by the Judiciary Committee. They’re confirmed by the Senate Homeland Committee [U.S. Senate Committee on Homeland Security and Governmental Affairs] because they have the jurisdiction over the District of Columbia. So these are senate-confirmed judges but they’re not of the type of judge that Judge Sullivan is, no.

Mr. Jekielek: There’s one last question I have on this. Of course, you’ve been a very vocal supporter of the president all along. I’ve seen some questions: Can Tom Fitton actually perform these duties without fear or favor as is needed?

Mr. Fitton: The president picked me. We’ve been supporting the president in the sense that he’s been the victim of unprecedented criminal activity by the federal government. We’ve sued the administration repeatedly, dozens of times. I doubt there’s anyone who sued the Trump administration more than Judicial Watch. So the president knows what he’s doing when he appointed me. Obviously, he values Judicial Watch, he values our approach, and he wants to see that on the commission, and that’s what I’m going to keep on, at least personally, pushing for the rule of law in any new seat I have on that commission.

Mr. Jekielek: Let’s talk about—

Mr. Fitton: In short, I’m keeping my day job. I’ll be continuing to work at Judicial Watch. This is a part-time position that doesn’t require me to leave Judicial Watch. In fact, I think it’s unsalaried. It’s not even paid, as best I can tell, or it’s just minimal.

So DNI [Director of National Intelligence] Radcliffe announced that he is giving 1000 pages of documents to U.S. Attorney Durham—declassified documents. Now, the question that I have and maybe you can kind of flush this out for me, Durham didn’t have these things before? What’s your take on this whole situation?

I don’t know. It certainly is a curious development. Director Ratcliffe deserves a lot of credit for declassifying information about the Obamagate corruption scandal. Now, he went out of his way to announce they were sending 1000 pages to Durham. So the question is, is this a new request by Durham, a new lead that he’s following that Mr. Ratcliffe is helping him with, or are these materials that have been withheld since Durham was appointed, more or less, and now are only being disgorged? I don’t know. But what the next step should be is to send that binder to the American people, send it to Congress, and get it all out. We’ve got to know what went on and sooner rather than later.

Mr. Jekielek: Tom, you’re not concerned at all that there might be material in there that needs to remain classified?

Mr. Fitton: Not really, and I’m sure that can be separated out quite quickly. The previous classification excuses were found to be just that—excuses. In our experience, truly classified material, you really don’t even know about in the long run, you’re never going to see it. But this type of material that we’re seeing in being declassified, you can see that the classification was to cover up corruption and government misconduct. It had nothing to do with protecting national security. It had a lot to do with protecting people from being prosecuted or otherwise held accountable.

Mr. Jekielek: There’s a number of things going on right now. For example, you have DNI Ratcliffe and of course, you know what we’re going to talk about here: this issue that in late July 2016, the U.S. intel got a Russian intelligence analysis that Hillary Clinton approved a plan to dirty up the Trump campaign by linking it to Russia via the alleged DNC [Democratic National Committee] hack. I’m trying to figure out: where do things stand with this? Are you digging in further?

Mr. Fitton: This is a disclosure by the Office of Director of National Intelligence, and it’s a disclosure describing what happened. They had intelligence, the Russians had intelligence, that Hillary Clinton was making up these Russia smears against Donald Trump to distract the American people and protect themselves from the criminal consequences, it looks like potentially, of her email scandal.

It was so substantial that President Obama was briefed on it and that it was referred to the FBI for further investigation. So we want to know what the underlying documents are, and hopefully those are the next shoes to drop. I tell you, Jan, we’ve talked about this. It confirms our theory of the case, doesn’t it?

I’ve always highlighted how everyone should understand it wasn’t about Trump; although of course, it was about Trump. But it was about making noise, and Trump was the victim, and they’re willing to do anything that made that noise including with a fake, illegal spying [allegation] and an improper criminal investigation of him. They’re willing to do anything.

Part of it was to get Trump, obviously, but it was in large a measure to protect Hillary Clinton and, in my view frankly, [Barack] Obama from being targeted for serious criminal investigation. It effectively froze the Justice Department and in many ways, the Justice Department is still frozen.

It was always about protecting Hillary Clinton, and it just shows you how petty it was in the end. It was never about Russia collusion in our democracy. Now, someone was caught in likely criminal behavior, and so you had a bunch of political hacks think, “What can we do to distract people from it?” And this is what they did, and they tore the country apart and committed sedition to do it in the end.

Mr. Jekielek: Just to clarify what I was alluding to earlier: basically, according to this new disclosure, Hillary Clinton approved this plan on July 26, and then the FBI opened the Crossfire Hurricane investigation on July 31, and the opening document is the document that you obtained.

Mr. Fitton: That’s the electronic communication. It was the memo written by Peter Strzok to Peter Strzok to approve Peter Strzok’s memo—it was completely ridiculous in that regard and inappropriate—to investigate, at that time, the candidate for the presidency. When you look at the memo, it’s just gossip and innuendo and an absolute joke and would provide no basis for even looking at a newspaper article about [the presidential] candidate let alone an FBI counterintelligence investigation.

The abuse was so outrageous that it just stuns one. I don’t know if the FBI can ever recover from this. I really don’t. They talk about replacing Wray, they talk about having some different people put in like [Richard] Grenell or Sidney Powell, but I don’t know if the FBI can ever really recover from this because no one trusts them after this craziness.

Mr. Jekielek: What would you say would be the top of the list for these declassifications if you were to be speaking with the president about it? What’s most important?

Mr. Fitton: Someone like [Mark] Meadows and the president know more about what needs to be declassified than I do. I know generally the categories of information that need to be declassified. [For example,] let’s say, what was behind this intelligence, what were they doing about the information they had that Hillary Clinton was knowingly lying—and in doing so, working with a potential Russian spy. The FBI was also working with this potential Russian spy to go after Trump—completely treasonous in my view—and all of that needs to come out.

I know specifically, we have document requests or lawsuits that are being slow rolled: Peter Strzok-Lisa Page communications, key text messages from Andrew McCabe, all of which had been slowed in delay. The Justice Department and the State Department are right now in court defending Hillary Clinton and justifying and trying to protect the agencies from having to be held accountable and be questioned further about her email misconduct.

It comes out that Hillary Clinton came up with Russiagate to distract from her email misconduct, we’re still in court with this Justice Department and with the State Department as they defend and collude with her. So all of that, in my view, needs to be undone. And then of course, there’s all this material about Joe Biden that the State Department’s been sitting on.

I’m glad to see this stuff come out, but we’ve been asking for it for years. There’s been no excuse in withholding it. The FBI has been covering this up; the DOJ and other agencies have been covering up—it’s been inexcusable. But we got these wiped phone documents showing the Mueller team had wiped phones. They had that for a year. We’re getting information about Strzok and Page and texts that are coming out. They’ve had that for years, and we’ve been suing over it, but they’ve been slow rolling the release of information. If it’s up to them, we won’t get much of it until 2021 or 2022.

Mr. Jekielek: To you point, Congressman Devin Nunes has actually mentioned that some of these things have been held up for four years, that he was asking for and so forth, and he’s made a suggestion that the agencies should be shut down if they continue to slow roll. What are your thoughts on that kind of drastic action?

Mr. Fitton: The president needs to make transparency a priority, and he needs to let the agencies know in no uncertain terms. Nunes is trying to highlight that with this suggestion, that this is as important a job as anything else they’re doing—letting people know about the worst corruption scandal in American history so that there can be at least limited accountability, as quickly as we’re able, about what will happen.

What he also should do, in my view, is appoint a separate special counsel to investigate this. It’s clear that the Justice Department isn’t going to investigate itself as aggressively as an outsider would. I don’t know what Durham’s doing, but his investigation, necessarily, has failed in the sense that it’s gone on too long and has essentially ended up protecting the perps involved in this corruption from significant accountability in any way. The fact that he hasn’t questioned Obama or Clinton about any of this—to me, I don’t understand what the thinking is.

Mr. Jekielek: What do you make of the timing right now? Of course, we’re very, very close to Election Day which is November 3. How does that reality fit into the need for this declassification or the questioning of some of these folks that you’re mentioning?

Mr. Fitton: The goal of the deep state is to help Joe Biden by hiding records, and they’re politically interfering or interfering in the election by stalling the release of documents past the election, and the president should stop that from happening. It’s not like we’re asking that documents that should never see the light of day, for legal reasons, see the light of day. No, we’re just asking for the process to work in a reasonable way.

We shouldn’t have to wait till 2022 to find out what Lisa Page and Peter Strzok were doing in terms of their malicious seditious conspiracy against President Trump. Now, prosecutions are another matter. I don’t know what Durham’s doing. I’m not confident that anything’s going to happen, but he’s clearly made a decision: He’s not going to be doing anything before the election. Given the late date, he may have no choice but to hold off given the eruption that would happen if he’s to make any significant prosecution decisions.

Mr. Jekielek: There’s another source, Sean Davis over at The Federalist. He’s got sources that are telling him that the CIA director is banking on a Trump loss to keep these Russiagate documents hidden. That’s roughly the headline. What do you think of this?

Mr. Fitton: I don’t know if it’s true. I do know that the CIA and Justice Department have been protecting, for instance, the alleged whistleblower involved with [Adam] Schiff. The reports are that she objected to releasing the information we’re talking about where [John] Brennan, Obama, the FBI, and [James] Comey all knew that Hillary Clinton had likely made it all up to protect herself and distract the American people.

[Gina] Haspel was London CIA Chief. She was our top official in London for the CIA during the time period where this illicit spying was going on. I don’t even know she should be making decisions. I think she should be recused from having any say on the release of documents because what she did is at issue too, in my view.

Mr. Jekielek: Let’s talk about post-Mueller investigation a little bit here. One of the things that I noticed was that there’s been a lot of headlines that Andrew McCabe has declined to testify in front of the committee, not just physically for coronavirus reasons, perhaps [that] makes sense, but also virtually. I haven’t seen that around much, but apparently it was for reasons of fairness or something. I didn’t quite understand what the reasoning was because a number of people have appeared virtually.

Mr. Fitton: It’s about the confirmation process of Judge Amy Coney Barrett. The Democrats have decided that zoom hearings that have gone on for months now on Capitol Hill are not good enough for the Supreme Court confirmation process. So they don’t want the Judiciary Committee to do a significant zoom hearing that Democrats participate in, namely with Andrew McCabe, and I suspect that’s what this is about.

Of course, the happy coincidence is it prevents more information from coming out about the Obamagate scandal and Hillary Clinton’s involvement in it at a time they don’t want, which is shortly before the election, so it’s a twofer. They don’t want any information to come out anyway, and B, they don’t want to have a big zoom hearing by the Judiciary Committee one week, and then say the Judiciary Committee shouldn’t have it the next week for Judge Amy Coney Barrett.

Mr. Jekielek: This is just a general operational thing, of course. Past Director Comey was testifying recently, and one of the things that came to light is that on, I believe it was September 7, 2016, the documents were sent to both Comey and Strzok, of course, critical pieces as you and I know. Strzok received it, [but] Comey never received it, or he says so. Do you accept this type of explanation?

Mr. Fitton: No, I think he’s lying when he says he doesn’t remember or it doesn’t ring a bell. I just don’t buy it. He was intimately involved in running this operation against President Trump. He would have known this fact, and evidently, he thinks there’s no consequence to anything he says. And I don’t blame him because Durham and the Justice Department don’t seem terribly interested in getting justice from folks like Comey. So he’s going to Congress and insult their intelligence—to the limited extent that there is intelligence in Congress—and the intelligence of the American people, more importantly, by professing ignorance on the most important investigation in his life.

Mr. Jekielek: Talking about the Mueller investigation, a number of things now have come to light, a number of things that have happened during this investigation. We have William Barnett complaining to the special counsel that this investigation is being used to get Trump basically, that’s my paraphrase. We have, of course, the actual Clinesmith incident, the modification of the email and so forth.

And then we have what you mentioned earlier which is these phones being wiped. We’ve covered this extensively. I think at least 22 of the phones [in] the Mueller investigations were wiped before they could be checked for records. I think another 44 were turned in without any records after months, at least a year in use, some up to 22 months in use. Seems like there’s just a lot of things that have happened during the Mueller investigation that deserves some more scrutiny. I’m curious what your thoughts are on this?

Mr. Fitton: The investigators need investigating. We uncovered the fact that Mueller had also withdrawn his name from consideration for the FBI. This is a Rod Rosenstein email, and he testified that he wasn’t interested, more or less, in that, and President Trump [said], “I interviewed him for the job.” So it looks like Mueller may have lied to Congress.

It highlights that if he was up for the job, for the FBI, how could he possibly investigate how that job came about, the firing of Comey, which is part of this investigation? It highlights really the fact that the Mueller investigation was corruptly formed, and all sorts of lies and misdeeds occurred to get him appointed, and he was unethical to participate in the process, and it looks like he lied about his interest in taking up the FBI job again under President Trump. The documents show that he withdrew his name from consideration. Were President Trump and the man in the Justice Department responsible for hiring him in theory, both wrong about his interest in the job?

Mr. Jekielek: Is Judicial Watch looking into records around any of this material?

Mr. Fitton: We got some of the records. I’m not sure if we are due any others, but my guess is yes, we are, because they are either usually withheld—some are withheld, and we’ll have to fight it out—or they’ll come straggling in because they’re not done with the production. Jan, we have dozens and dozens of lawsuits about this whole issue of Obamagate and the malicious, seditious conspiracy against President Trump. As far as I’m concerned, the president should go on a transparency tear and release everything immediately, because I’m done with the stonewalling and he should be too, and the American people want the truth.

Mr. Jekielek: Tom, there have also been new documents disclosed related to the General Flynn case that you’ve been commenting on. I’m wondering if you could speak to that?

Mr. Fitton: These are extraordinary new documents. It’s a new document. It’s the notes of an FBI top level meeting about the Flynn case. In it, it shows that they really had no good faith basis to prosecute him. In fact, they were wondering, “How can we prosecute him about lying about something that was not wrong?” meaning the communications with [Sergey] Kislyak, and they talked about the Logan Act never being used before.

And of course, who would push the Logan Act? Who had raised it in addition to a lot of other deep staters? Joe Biden. So the Justice Department turned this over to Judge Sullivan who’s handling General Flynn’s case because it’s more evidence of misconduct and illicit targeting of Flynn, which shows why his case should be dismissed. I like to know why the FBI has been hiding this for years.

Mr. Jekielek: There’s a line in there, in quotes, “no reasonable prosecutor.”

Mr. Fitton: Yes. No reasonable prosecutor would pursue a Logan Act violation. You know what the Logan Act is? It’s an old law, literally goes back to the beginning of the country, that prohibits Americans from conducting their own private foreign policy. Obviously, that would not apply to an incoming National Security advisor talking on behalf of the president-elect of the United States, and it’s acknowledged in the notes, he was doing nothing that no other transition would do in terms of talking and liaison with foreign representatives.

They were looking for an excuse and a pretext to target Trump and really to chop off his head, figuratively speaking, in terms of his ability to conduct foreign policy by taking out his incoming National Security advisor.

Mr. Jekielek: This is all very curious because Judge Sullivan has been known historically to be sort of a champion of Brady [evidence], so to speak, of making sure that all potentially exculpatory evidence is disclosed and so forth. What do you make of the way the trial’s been progressing now?

Mr. Fitton: Judge Sullivan has been engaged in outrageous abuse, judicial abuse. I see General Flynn’s lawyer, Sidney Powell, asked him to recuse himself because of the kind of in-your-face appearance of bias. It’s one of the worst displays of abuse of power by a judge I’ve ever seen. It’s terrible.

Judge Sullivan, I previously had a lot of respect for. He’s been around in the court forever over there but obviously, there’s something about this case that kind of set him off the rails, and we have evidence of criminal misconduct, government misconduct, obstruction of justice by the Justice Department, and he’s still targeting the victim of that misconduct, General Flynn.

I don’t know what the Justice Department’s doing here. They should be, frankly, filing a motion for contempt of court against itself if we’re truly honest here. This is just evidence of contemptuous behavior by the Justice Department and the FBI. What are they doing to hold themselves accountable? We need 50 Durhams to be investigating what went on. Hopefully, one of them does something.

Mr. Jekielek: Do you think that this new potentially exculpatory evidence that’s come out will shift anything here?

Mr. Fitton: No, no. Judge Sullivan isn’t going to do anything with this. He’s ignored the prior disclosures showing dramatic obstruction and dishonesty with the targeting of Flynn. So I don’t think General Flynn is going to get much relief from Judge Sullivan, and they’re going to have to move to other courts or seek a pardon eventually.

Mr. Jekielek: Where do you expect this will go from here?

Mr. Fitton: I think it’s going to go either, again, to the appellate court or maybe straight to the Supreme Court. If I were the president, I’d pardon everybody caught up in this scandal—all the Americans, practically speaking, targeted by Mueller, including Flynn and anyone else, including people that I don’t much care for. There’s no evidence. Frankly, my concern is everyone targeted in Trump-world was targeted for improper political purposes. The prosecution’s are necessarily tainted, the administration of justice is necessarily tainted, and the president should step in and clean up with a pardon or commutations.

Mr. Jekielek: I want to talk about another thing that you, Judicial Watch, work on a lot and this is the voter roll issue. I actually talked about this in another quick interview I was doing. You, of course, did the work on Los Angeles County. I think it was 1.5 million, finally getting 1.5 million people that shouldn’t have been on the rolls, off the rolls. How big an issue does this remain in the country and are there specific cases that you’re working on right now which are priority areas in your view?

Mr. Fitton: One thing we’re trying to do is clean up the rolls. Dirty election rolls can mean dirty elections, and it’s particularly important when you have states, in my view, [in] a willy nilly way, mailing ballots to people who haven’t asked for them. We’ve sued in North Carolina and Pennsylvania just this year. Between those two states, it looks like there are 2 million names in the rolls, almost, that shouldn’t be there. In Colorado, county after county, after county—we just sued Colorado yesterday—has more people on the rolls that are living in the counties [but] ineligible to vote. That’s a pretty good indication that they’re not taking the steps required under federal law to keep their roles clean.

There’s urgency, obviously. It takes a long time for this process to work. That Los Angeles case, that settlement, they’re going to take years before they fully clean up the rolls, and even then, there’s probably still more work to be done. Statewide, California hadn’t cleaned up roles in 20 years, and now they’re going to be mailing ballots to those voter registration rolls, and they’re saying that they’re only mailing to active voters, but when you’ve got all these extra inactive voters, that’s a pretty good indication that your regular list is awful too.

Mr. Jekielek: What is the resistance to cleaning these rolls up?

Mr. Fitton: There’s bureaucratic resistance because government officials don’t like to do their job, and then the left opposes it because they oppose any efforts that make it harder to steal elections. They oppose cleaning up the rolls. They oppose voter ID. They’re trying to change the rules to make it easier in effect to commit voter fraud through mail and balloting by eliminating the witnesses requirement.

Not all of these states have witness requirements and other security measures like that, but to the degree that there are any states with them, they’re trying to undermine them. Heck, they’re trying to count ballots that arrive after election day, but how is that not an invitation to fraud? If you’re counting ballots that arrive after election day, it’s like a dog whistle to people, to fraudsters out there: Get your votes in to game the system, do it by hook or by crook.

I don’t like what’s coming down the pike in terms of our election processes this year between—what people don’t understand is, 100 million ballots and ballot applications are being mailed to people who haven’t asked for them this year. Never before in American history has anything like that happen, and it’s going to lead to increased voter fraud, and Election Day chaos.

If you vote by mail, your ballot is more likely to be intercepted, lost, challenged, and thrown out. That’s what the stats show. It happened in larger numbers. Going back in 2016, during the general election, I think there were 319,000 ballots, mail-in ballots, thrown out. In this year’s primaries alone, there were over 550,000 ballots thrown out. So you’re potentially talking about millions of Americans being disenfranchised because they’ve been fooled into relying on the mails to get their vote. If you want to do it, more power to you, but the best way to ensure your vote is counted is to count in person.

Mr. Jekielek: Since we’re talking about this, I’ve heard a number of people tell me that their expectation, come November 3 and in this general time period, is that we may not actually know the answer on the day or even close to the day, and there could be a lot of turmoil that’s associated with that. People from across the spectrum have mentioned this to me in different contexts. I’m just very curious, based on what you just said, what are your expectations around Election Day?

Mr. Fitton: Unless someone wins in an obvious landslide that kind of overwhelms any concerns like the ones I have raised, I’m concerned about disputes in chaos. The left plans on disputes in chaos. They’re planning, and they’ve war-gamed this scenario out. You can read about it in the New York Times where John Podesta, a central Democratic figure, was war-gaming about having it go into the House and having states threaten to secede from the union in order to get particular Electoral College electors seated. This is a dangerous game the left is playing, and it’s concerning to put it mildly.

Mr. Jekielek: What I find fascinating is that it seems like both Republicans and Democrats expect there to be problems on election day.

Mr. Fitton: They all can be mitigated significantly by shutting down this mail-in ballot process. It may be too late in some states but other states don’t have to mail them out, or mail out the ballot applications. Let’s save the election. Let’s save the integrity of the election by putting a stop to this. I don’t know. Legally, it can be done, but certainly, the states can do it. They can do it on their own.

Mr. Jekielek: Tom, we’re going to finish up in a second. Any final words?

Mr. Fitton: You should vote, and you should vote in the best way to ensure your vote is counted—I think it’s voting in person. But no matter who wins in November, Judicial Watch is going to be suing for the truth about what’s been going on and what will go on after the election as well. So we’re prepared to deal with the election legal fights, obviously, but we’re going to keep on asking questions about what our government is up to, no matter who wins in November.

Mr. Jekielek: Tom Fitton, such a pleasure to have you on.

Mr. Fitton: Thanks, Jan.

This interview has been edited for clarity and brevity. 

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