Intriguing ties involving interviews by investigators, subpoenaed phone records, and a call covertly recorded for the FBI by Wiles’s lawyer.
I have a new piece about FBI Director Kash Patel’s firing of FBI personnel who worked on the Mar-a-Lago documents investigation of Trump conducted by the bureau and Biden DOJ special counsel Jack Smith starting in 2022. Patel is also publicly feigning astonishment that the FBI subpoenaed telephone toll records (not the contents of his conversations) pertaining to him and to Susie Wiles — then a Trump confidante who eventually ran the 2024 campaign and is now the president’s White House chief of staff.
As I explain in the article, it’s odd for Patel to claim shock over the phone records subpoena. Putting aside that it’s been previously reported, the director obviously knows that he was also subpoenaed for grand jury testimony in the Mar-a-Lago investigation, and that, initially, he refused to testify, asserting his Fifth Amendment privilege against self-incrimination. Subsequently, he was compelled to testify after Smith gave him immunity.
Senate Judiciary Committee Democrats asked for the unsealing of this testimony during his confirmation hearings. Although Patel said he did not object (knowing that it was not his call), the Trump Justice Department took no steps to unseal the testimony, and committee Republicans declined to issue a subpoena or otherwise support the Democrats’ request. The testimony remains sealed.
In the article, I said I’d separately address the news relating to Susie Wiles that emerged yesterday. So let’s get to that.
Like Patel, Wiles was interviewed by investigators during the Mar-a-Lago documents investigation. That does not necessarily mean she was suspected of wrongdoing. It’s at least as likely that she was seen as a potential witness with relevant information. The target of the investigation was Trump, who was suspected of hoarding classified intelligence documents and obstructing the grand jury’s investigation into that matter. Investigators may well have believed that Trump may have spoken to Wiles about the documents or about how he was handling the government’s requests — including the grand jury subpoena demanding that he surrender any documents marked classified that were still in his possession.
As I detailed in today’s piece, Smith gave Patel immunity because the investigation was focused on Trump. That is, Smith wanted Patel as a witness; it was not his objective to make Patel a defendant. Unlike Patel, Wiles made no public statements suggesting that Trump had declassified documents. There is not much publicly reported about her involvement in the probe, so I’ve always assumed that Smith and the FBI saw her mainly as a potential source of germane information about the activities of Trump (who was eventually indicted), not as someone who may herself have committed a crime.
On the other hand, there is this curious revelation: Reuters reports that, in the course of the Mar-a-Lago investigation, Wiles’s then-attorney (whose identity is not revealed in the article) consented to the FBI’s recording of a phone call he had with Wiles, who was unaware that her attorney was allowing the FBI to monitor their conversation.
Consensual recordings are a common federal investigative tactic. In many states, it is illegal to record a conversation unless both parties (or all parties) consent. But those state laws do not restrict federal investigators. Consequently, the FBI will often have its informants, undercover agents, or cooperating witnesses record conversations with subjects of an investigation.
In investigative parlance, a subject is someone whose conduct is under review and who may or may not be charged with a crime. This distinguishes a subject from (1) a target, who is a person highly likely to be charged, and (2) a witness, who is not suspected of wrongdoing but has relevant information (e.g., a person on the street who happens to see bank robbers jump into the getaway car).
What was Wiles’s status in Smith’s Mar-a-Lago investigation? We don’t know. I have always assumed that she was just a potential witness. But it would be unusual to have an informant or other cooperating witness record a phone call so the FBI could monitor the statements of a mere witness.
That said, this was a highly unusual investigation involving a former American president who was, at the time, his party’s likely nominee to seek the office in 2024. It may have been that the agents were not trying to develop a case against Wiles but believed she might be more forthcoming about her dealings with Trump (the target) in a conversation with someone she trusted (her lawyer) than in an interview by FBI agents.
(To be clear, I am not implying that Wiles, whom I do not know, would mislead the agents. I am simply observing that any of us would tend to be more guarded in an interview by law enforcement officers conducting a criminal investigation than we would in having what we were led to believe was a routine conversation with a person we know.)
Another strange fact here is that the person who allowed the FBI to monitor a conversation with Wiles was — reportedly — her attorney. Ordinarily, the attorney–client privilege (ACP) would shield such communications. And the law takes the ACP so seriously that charges can be thrown out if any part of them resulted from information investigators derived in violation of the ACP.
There are two exceptions to the ACP’s confidentiality protection against government monitoring.
First, the privilege only applies to communications in which legal advice is sought. If my lawyer happens also to be a friend of mine, and we are discussing topics in a friendly conversation in which I am not seeking legal advice, there is no ACP.
Second, even if the client is seeking legal counsel, the so-called crime-fraud exception can eviscerate the privilege. That exception applies when the conversation is in furtherance of an ongoing crime or fraudulent scheme. Obviously, the exception does not apply to all conversations about crime: People hire lawyers to defend them from allegations of misconduct or to advise them so they can avoid committing misconduct; the ACP exists to encourage frank conversations in those contexts. But if you are asking your lawyer for help in committing a crime or carrying out a fraud, there is no ACP protection.
Just as we don’t know who the lawyer is and why the agents wanted to monitor a conversation between the lawyer and Wiles, we also don’t know what was discussed in the conversation.
It is possible that the final special counsel report Smith completed regarding the Mar-a-Lago investigation could shed light on these questions. We don’t know that because the report was never disclosed. An appeal in the case (involving Trump’s two co-defendants) was pending when Trump took office. So, unlike Smith’s final report in the January 6 investigation, the final Mar-a-Lago documents report was not made public. After Trump took office, his Justice Department dismissed the appeal, so the case is now closed. By regulation, it is up to Attorney General Pam Bondi whether the report, or any parts of it, should be disclosed.
Not only has Bondi refused to disclose the report (on the rationalization that Smith was on a political witch hunt against Trump, rendering his work illegitimate); the Justice Department (of course) did not object when President Trump asked Judge Aileen Cannon (a Trump appointee to the federal district court in South Florida) to direct the DOJ not to disclose the report. Judge Cannon issued that order last week, in a 15-page order. I do not think that ruling is persuasive, but more on that over the weekend.
Bottom line: I suspect we would know a lot more about the relevance of Wiles and Patel to the Mar-a-Lago investigation if Patel’s grand jury testimony and Smith’s final report (or at least pertinent portions of it) were disclosed. I would not hold my breath waiting for that to happen.
If Democrats win the midterms and take over at least one chamber of Congress, I would expect the subpoenas and the fur to start flying. But not before.