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for everyone.

1:01

I signed an order appointing Jack

1:03

Smith. And

1:04

nobody knows he.

1:05

And those who say Jack is a

1:07

Mister Smith is a veteran career

1:09

prosecutor.

1:10

Wait. What long am I doing? Events

1:12

leading up to and on January

1:14

six. Classified documents and other presidential

1:16

records. You understand what prison is? Send

1:19

me to jail.

1:29

Welcome to Jack. Podcasts for

1:31

All Things Special Counsel. I'm

1:33

your host and I might know a thing or

1:35

two about special counsel investigations into

1:37

Donald

1:37

Trump. Andy McCabe. And

1:40

I'm I'm AG, you

1:42

know, you know, AG from MuellerShe wrote.

1:44

And Andy, if you had told me five years

1:46

ago, as I was setting up

1:48

fifty nine dollar microphones at my kitchen

1:50

table to record the very first episode

1:52

of Bologna She wrote back in November

1:54

of twenty seventeen, If you told me

1:56

back then that in five years time, there'd be

1:58

a second special counsel investigation,

2:01

and I'd be hosting a podcast about

2:03

it with you. I'd have never

2:05

believed

2:05

it, but here we are. Yes. Here

2:07

we are. So let's

2:10

talk a little bit about the podcast. There's

2:12

our first episode and it will serve

2:15

as a kind of intro into who Jack

2:17

Smith is, what a special council is,

2:19

what they can do, What are some of

2:21

the main differences between the conditions here

2:24

and the conditions during the Mueller

2:26

investigation? And finally, what makes

2:28

this special counsel different?

2:30

Yeah. I feel like a lot of people are

2:32

hung up on what happened in the Mueller investigation

2:34

and worried that that will happen here too.

2:36

But we're also gonna cover news that's relevant to

2:38

the special council investigation. Negations, including

2:41

some new testimony that we're gonna talk

2:43

about in this show, and the recent eleventh

2:45

Circuit ruling, which we'll discuss with the

2:47

Guardian's new Trump the Department of Justice

2:50

political investigations reporter and

2:52

our friend Hugo Lowell. But first,

2:55

I wanna ask 1. Please follow

2:57

this podcast. Rate this podcast. Subscribe

2:59

to this podcast. That small act

3:01

takes a couple of

3:02

seconds. It's free, but it really doesn't

3:04

mean a lot to us. So thank you

3:07

very much. Alright.

3:09

So let's dive in and let's talk a little

3:11

bit about what a special council does and

3:13

why Merritt Garland appointed one.

3:15

And so I think, AG, there's no better place

3:18

to start here on the why question

3:20

than to point out the value.

3:22

There's really only one value that

3:25

the special council brings to DOJ

3:27

and the AG, and that is the ability

3:29

to distance the department, to

3:32

bring a sense of a political independence

3:35

to what otherwise would be a politically

3:38

charged kind of high profile intricate

3:41

investigation. Jack Smith

3:43

is a guy who, at the end of the day,

3:46

does not owe his job

3:48

to the current president of the United

3:51

States. And that's really the important

3:53

thing to remember here. We are in a situation

3:55

where the main target of this case is,

3:57

of course, Donald Trump, and Donald Trump recently

4:00

announced he's going to run for president. He is running

4:02

for president now in the in the twenty twenty four

4:04

election. We can all assume

4:06

probably pretty confidently

4:08

that Our current president, Joe Biden,

4:10

will also be running against him. So think

4:12

of the weirdness there if Merrick Garland

4:15

keeps the investigation under his direct

4:17

supervision, Garland is under

4:19

you know, owes his job to Joe Biden,

4:21

the guy who's running against the person you investigate,

4:24

very sticky, very weird. So you bring in

4:26

special council to get some arm's length

4:28

distance from that kind of stink of

4:30

politicization.

4:31

Yeah. I think that's a really important

4:34

point. And so, you know,

4:36

when you have the, you know, the political opponent running

4:38

for president. But also, this investigation

4:41

is running up against possible

4:45

criminal probes into

4:47

members of Congress. Right? Like, they seized

4:50

Perry's rep Perry's phone

4:53

the DOJ did. And, you know, if if it

4:55

gets to a point where they find something,

4:58

it also does not look good. For

5:00

the attorney general appointed by the current

5:03

Democratic president to be in charge

5:05

of that kind of investigation as well.

5:07

And that kind of brings me into the

5:09

scope because this

5:12

seems like a much broader scope

5:15

than you know, we

5:17

had when we were looking at the

5:19

Mueller investigation and

5:21

and also the way in which the Mueller

5:23

investigation started, which I know you have

5:25

intimate knowledge of. And

5:28

and the way that this one started, I think

5:30

there are two different things there. We'll we'll talk a little bit more

5:32

about it when we talk about the

5:33

differences, but let's talk about the scope of this

5:35

special counsel investigation? Sure.

5:38

So Jack Smith has been given

5:40

a very broad scope

5:42

to begin with. He's So, technically, he's

5:44

been given the authority to continue

5:47

the investigation into the potential

5:49

mishandling of government property,

5:52

sensitive documents, and presidential records

5:55

at the Mar Lago Resort, Donald

5:57

Trump's residence at the moment as

5:59

well. And also

6:01

to kind of oversee all

6:03

of the government investigation around

6:06

January six, the attack on our capital.

6:08

So if you think about the vast

6:10

numbers of people who've already

6:12

been indicted and prosecuted in that case,

6:15

the the potentially hundreds more

6:17

who may and then put that chunk of work

6:19

aside and then think about, like, where this investigation

6:21

is clearly going. And that is looking at

6:24

the former president, his aides,

6:26

his staffers, the political

6:28

figures like you mentioned who may have been

6:30

involved or communicating with him and the lead

6:32

up to January six may have known about it,

6:34

may have had some role in helping

6:37

plan for that activity. So Smith

6:39

has got his hands full. He's got a very,

6:41

very wide lane to drive this

6:43

best stigation down, and it'll be interesting

6:45

to

6:45

see, of course, where it lands. Yeah.

6:47

And how does the recent conviction

6:50

of two oath keepers, Stuart Rhodes? AND

6:53

KELI MEGS OF SEDICIOUS CONSPIRACY

6:56

PLAY INTO AN INVESTIGATION INTO

6:58

DONALD TRUMP. DOES IT MAKE IT easier

7:01

for for Jack Smith, can he now say

7:03

that this was seditious conspiracy? Doesn't

7:05

play a role at all this recent conviction because there

7:07

was a big deal.

7:09

Yeah. Yeah. Really big

7:11

deal. I'm gonna give you the the

7:14

hated sports analogy here. This

7:16

is like if you're this is like you got two

7:18

NBA teams playing and they're fighting each

7:20

other under the paint and you're scoring

7:23

on your opponent, you know, from kind

7:25

of mid range jumpers. And then all of sudden

7:27

1 on your team backs it way behind

7:29

the three point line and starts burying

7:31

the ball. You've just shown your

7:33

opponent that you can take it to a whole

7:36

new level, that you are capable of

7:38

beating them in a way that they didn't think about.

7:41

And that's kind of what's happened with

7:43

this result. This is a loud

7:45

message, not just

7:47

to Donald Trump, but to anyone

7:50

who might fall within the scope of that investigation,

7:52

the DOJ is prepared and capable

7:55

of putting on a complicated

7:57

case, a moonshot, right, a charge

8:00

of seditious conspiracy. They're able

8:02

to take that in front of a jury, put the evidence

8:04

in front of them and convince them and bring back a

8:06

conviction against a top

8:08

level in this case with the oathkeeper's trial,

8:11

planner, somebody who wasn't breaking windows,

8:14

wasn't attacking the capital, didn't even set foot

8:16

on the grounds during that day, if you believe

8:18

him, and we're able to get

8:20

the most significant conviction against him.

8:22

So if you think you're in the scope

8:24

at that level, that organizational level

8:26

of the January six investigation, this

8:29

just sent a chill down your spine because DOJ

8:31

has the will and the ability to convince

8:34

a jury that planners, you

8:36

know, the top of the food chain, should

8:39

pay a high price for what they did.

8:41

Yeah. And I think if I'm a defense attorney

8:43

for somebody like Enrique Tario

8:45

who is charged with seditious conspiracy

8:47

as a trial coming up soon, I

8:50

might be saying, hey, maybe now is a good time

8:52

to cut a deal. And if -- Right. -- and if

8:54

there are any ties between

8:56

the leaders of these militia

8:58

groups, Proud Boys, oathkeepers, three percenters,

9:01

and other figures like Roger Stone

9:03

or Michael Flynn or Alex Jones

9:06

or anybody at the Willard, you

9:08

know, then you I think you can start rolling

9:10

uphill a little bit. That would be the one thing

9:12

I would think would impact perhaps

9:15

Jack Smith's work the most is

9:17

is maybe getting some of these oathkeepers, leaders,

9:20

and and crowdboys, these folks who have been charged,

9:22

who haven't under trial yet now see that

9:24

the government can win these trials might

9:27

be having second thoughts about

9:29

a rolling on bigger fish.

9:30

Totally. There is nothing that motivates co

9:33

operators like the increased prospect

9:35

of getting convicted and sentenced

9:37

to a lot of time. And so, absolutely,

9:40

those two trials, particularly the Proud

9:42

Boys trial that's coming up in the second oath keepers

9:44

trial, those folks reevaluating the

9:47

math right now. They're trying to think, okay, maybe

9:49

is it too late to come in and tell them what I really

9:51

know? And in addition to that, you

9:53

now have convicted some pretty big fish,

9:55

roads, megs, these other guys

9:58

in the from the the trial this week

10:00

who are looking at serious times

10:02

I mean, megs, particularly, he got convicted

10:05

of the most charges of any of them. And

10:07

some of those folks might be like, okay. Now

10:09

it's time to get real. Maybe I could go

10:11

for a rule thirty two. If I cooperate

10:13

with the government after I've been convicted,

10:16

I could open myself up to a potential sentencing

10:18

reduction down the road. Yeah, there's all

10:20

kinds of opportunity here. All the the

10:23

you know, all the pieces on the chessboard are

10:25

are rethinking their positions right

10:27

now.

10:28

Yeah. And and I think that Jack Smith

10:30

is well aware of that. And I mean, something

10:32

else that is within the scope

10:34

is the same thing that was in the scope of the Mueller

10:37

investigation is obstructions into

10:39

the investigation itself. And

10:41

I 1 wanted to ask you a little bit

10:43

about that. I think you think you might have some

10:45

familiarity with obstruction of justice as

10:48

in you became the acting director

10:50

of the FBI after a very obstructy

10:52

act on, you know, by

10:55

by the former president by firing

10:57

Jim Comey. So let's talk a little bit

10:59

about obstruction and Also,

11:01

if that extends in his scope to obstructing

11:04

another official proceeding, the January

11:06

six committee hearings and

11:07

investigations, I I'm wondering about that

11:09

myself. I think it's all on the

11:11

table, Allison, I think, you know, people

11:14

tend to reflexively think about

11:16

obstruction in the context of witness tampering

11:18

in a trial. Right? The mob boss goes

11:20

on trial and he and he gets the witness to

11:22

change his story the last minute or something

11:25

like that. That that obstruction

11:28

of justice is much, much broader than that.

11:30

All you have to have is evidence that somebody

11:32

obstructed an official proceeding. It could

11:34

be any proceeding. It could be a grand jury investigation.

11:37

Could be a special counsel investigation. It certainly

11:39

could be a congressional investigation.

11:42

So if Jack Smith and his

11:44

team believe, let's say, for

11:46

example, there was witness tampering with

11:49

respect to the committee's

11:51

work and putting on their public hearings

11:54

and that sort of thing. That is certainly

11:56

related to January six.

11:58

All that arises out of January

12:01

six, so I think it would be well within

12:03

the scope of his authority in

12:05

terms of his, you

12:06

know, investigative authority. Yeah. I agree.

12:09

I want to talk next about some of the differences

12:11

between the Mueller probe and the Jack Smith investigations,

12:14

because a lot of folks were

12:16

understandably underwhelmed by the Mueller investigation

12:19

because we didn't know as he knew right

12:21

off the bat that he wasn't going to indict

12:23

Donald Trump. So a lot of

12:25

a lot of that feeling, that

12:27

public feeling had to do with things that were

12:29

beyond Mueller and his team's

12:31

control. I mean, you asked Rod

12:34

Rosenstein to appoint a special council under some

12:36

pretty extraordinary circumstances?

12:38

I definitely did, and I'm I'm

12:40

having a PTSD moment just

12:42

thinking back on it now, but it

12:45

was abundantly clear to

12:47

me and my team at that time that

12:49

we had to get this investigation in

12:51

the hands of special council, get it out

12:53

of the FBI, generally, and

12:56

out of DOJ's lane, generally put it in

12:58

special counsel's hands. So it was a

13:00

torturous series of meetings

13:02

with Rosenstein over over about a

13:05

week and a

13:05

half. I imagine any meeting with Rosenstein

13:07

is torturous.

13:09

You have no idea. Just

13:12

trying to persuade him, he was really initially

13:14

dead set against it and slowly

13:16

kind of persuading him but also

13:19

turning up the pressure by opening

13:21

the case and then informing him that we

13:23

were gonna go forth in brief congress on the fact that

13:25

we'd open the case and then he really he

13:28

had to move at that point. But it

13:30

was our intention and very

13:32

clearly communicated to him in those

13:34

meetings and also in the documents that

13:36

we created to

13:39

to memorialize the opening of the case that

13:41

we were opening the case for two reasons, not

13:43

one. It was the possibility that

13:45

there may have been criminal obstruction and

13:48

that, you know, coming

13:50

out of the firing of Jim Comey, but also

13:52

that there was a potential national security

13:54

threat if

13:56

the campaign had colluded with

13:59

the Russians, which we didn't know,

14:01

we had reason to believe that that was possible,

14:04

that that could present a threat to national

14:06

security. We now know that Rod

14:09

Rosenstein and a series of memos

14:11

to special counsel Mueller

14:13

really narrowed the scope of that investigation.

14:16

Narrowed Mueller's authority

14:19

as special counsel to really focus

14:21

very tightly on

14:24

primarily the the idea of could he

14:26

be charged with a crime? They

14:28

didn't really do much with

14:30

the broader counterintelligence concerns

14:34

around the Trump connections, potential

14:36

connections to Russia. Well, the many connections

14:38

that people within the campaign had

14:41

to Russians. So, yeah,

14:43

I think the difference here is

14:45

we had an acting attorney general,

14:47

Rod Rosenstein, who worked

14:51

diligently to limit Mueller's

14:54

authority what he could and would do

14:56

and also limited him In

14:59

a particularly opaque way, this was a

15:01

series of memos that he was giving to

15:03

Mueller that we never even found out about until

15:05

the whole thing was over in documents were

15:07

later released to the public. Very

15:10

different situation here. Right? Garland has

15:12

been very clear, hey, Jack Smith

15:14

is coming in. He gets Mar a Lago.

15:17

He gets one six and everything

15:19

that comes from either of

15:20

those. So he looks I I think I think

15:22

Smith has a much stronger hand here.

15:25

Yeah. And he also doesn't have this

15:27

sort of damocles hanging over

15:29

his head, AKA, the

15:31

threat of being fired, which is an

15:33

obstructive act. But, you

15:35

know, we now know there were many

15:37

times, especially with the testimony

15:39

of Don McGahn, that

15:42

Trump tried seriously to

15:44

curtail and or fire

15:46

special

15:47

counsel. And we simply don't have now. We don't

15:49

have a Rod Rosenstein and we have a bill

15:51

bar here. Bauchner: That's

15:53

absolutely right. And

15:56

let's be honest too, the president's very

15:59

different now than it was in. Right? Joe

16:01

Biden is an institutionalist. He

16:03

has exhibited, I

16:05

think, a a great deal of

16:07

restraint and acknowledgment of

16:09

the independence of the Department of Justice.

16:11

It doesn't appear that since he's been present

16:14

in two years now. It doesn't appear to have

16:16

interfeared with DOJ in any way. He certainly

16:18

hasn't tweeted about criminal cases. He

16:20

certainly hasn't attacked federal judges

16:22

on Twitter. And all and, you know, he hasn't,

16:24

like, said that subjects of criminal

16:27

cases should, like, shut up and not talk to the

16:29

government, discouraging people from, like,

16:31

doing the right thing and providing information. So,

16:33

yeah, we have a very different president. I

16:36

I couldn't imagine Biden

16:38

threatening to, you know, try to take

16:40

some action or pressure someone to fire Jack

16:42

Smith. The other thing I think

16:44

is important for our folks

16:46

to understand is like the legal

16:50

kind of framework around the special council.

16:53

It's not a law. It's simply DOJ

16:55

policy. But it is codified

16:58

at I'll give you the site for those nerds out

17:00

there, twenty eight CFR six hundred

17:02

point seven, and it's very clear

17:04

that a special council can only

17:07

be fired by the attorney general the president,

17:09

not congress, but the attorney general. And

17:11

he can only be fired for really

17:13

pretty serious stuff, misconduct, their

17:16

election of duty, incapacity,

17:19

conflict of interest, or other good

17:21

cause. So essentially for garland

17:23

to step in and fire the guy he appointed,

17:25

he would have to, very publicly, and

17:27

at least to the hill, make a

17:29

case for Jack Smith having,

17:31

you know, done something really wrong

17:34

or, you know, showed some other good cause that

17:36

he that he couldn't continue his

17:37

job. And that's obviously, you

17:39

know, not something that anybody imagines will happen

17:41

at this point. Yeah. And and something

17:44

else that's different is, you know, I

17:46

think Mueller from the jump knew that he was

17:48

not going to indict Donald Trump because of an

17:50

Office of Legal Council memo prehibiting

17:52

him from indicting a sitting

17:54

president. We don't have that problem anymore.

17:56

In fact, the only office of legal

17:58

council members that have been raised recently with

18:00

regard to the one six investigation or

18:03

when Meadows, I think, was trying

18:05

to cite some sort

18:07

of total blanket immunity

18:11

be based on office legal counsel memo. And

18:13

DOJ, in a filing said that's not the case we

18:15

can indict you if we want to. And so

18:17

EOJ, there aren't there's no restrictions

18:20

here for who can be

18:21

indicted.

18:22

Donald Berwick: That's right. No restrictions. And,

18:25

you know, logistically,

18:27

I mean, one of our biggest challenges when Mueller

18:29

got designated was we had to basically

18:31

build a mini US attorney's office

18:34

for Mueller. We had we had to grab investigators,

18:37

which we did from all over the country, from

18:39

all the different field offices that had been looking

18:41

at the Russia case. We had to pull

18:43

secretaries and analysts and,

18:46

you know, computer IT

18:49

people and computers themselves, like

18:51

build an entirely independent IT

18:54

system where they could do their work

18:56

and and hold their records that wouldn't

18:58

be accessible by DOJ and and

19:01

the FBI. And so there was this massive

19:03

kind of logistical effort in standing

19:05

up a team. DOJ has been

19:07

very clear in this case that Jack

19:10

Smith is basically coming in to

19:13

oversee the big team

19:16

primarily out of the FBI Washington

19:18

field office and the DC the US

19:20

attorney's office. He's just coming in and sitting

19:22

on top of that infrastructure that already exists.

19:25

He's made it clear with his own statement that he's

19:27

not gonna slow this thing down in

19:29

any way. So you can be

19:31

confident that the investigators and the attorneys

19:34

who are really the nuts and bolts of this work who've

19:36

already been doing it for quite some time, who have

19:38

that institutional knowledge, they're

19:40

gonna stay in place and keep doing that. That

19:42

will help him really maintain

19:44

or accelerate the pace rather

19:46

than having to take this pause to kind of

19:48

rebuild the wheel.

19:50

Yeah. For real. And that

19:52

that kind of myth busting is

19:54

one of the the things that I'm glad

19:56

that we're we're

19:58

talking about. And I want to dispel some additional

20:01

myths, but we need to take a quick break, so

20:03

everybody stick

20:03

around. We'll be right back.

20:10

At Kroger, we want our fresh produce

20:12

to meet your expectations. To

20:14

make sure a bad apple won't spoil

20:16

the whole bunch, we do up to a twenty seven

20:19

point inspection on our fruits and veggies.

20:21

We check for things like sunburns and scarring,

20:23

making sure you only get the crunchiest apples.

20:26

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20:41

Bernardo, what do you remember most

20:43

about our time to get a law school?

20:45

I remember all those interesting debates we

20:47

had about complicated legal issues.

20:50

What about you? I

20:52

remember law school being a lot of fun.

20:55

Fun. I I don't know about that. But

20:57

okay. Yeah. So do you think we can

20:59

make a podcast that

21:02

talks about complicated legal issues

21:04

and be fun at the same time. I'd

21:06

be down with that. Just leave

21:08

the fun part to me. Do

21:11

you think it would be just the two

21:13

of us?

21:15

In my house, we travel in

21:17

packs and flocks.

21:20

In my house, we're a solo operation.

21:45

Everybody

21:51

welcome back. Before the break, I said

21:53

I wanted to dispel some myths and you were you

21:55

briefly touched on Andrew that

21:57

the investigation has not been delayed or

21:59

slowed down at all. And I just wanna talk

22:02

about some of the components that show

22:04

that, including just today,

22:06

we saw Pat Cipollone going into

22:08

the grand jury

22:11

with Wyndham who was brought in in January.

22:15

And we know that all

22:17

of the subpoenas have stayed in place and

22:19

the deadlines to turn in documents and

22:22

testimony have been maintained.

22:24

And So talk a little bit more about some of the

22:26

things that have just kept going

22:29

in, you know, with respect

22:31

to the the fact that Jack Smith, just

22:33

like you said, comes in and just sits on

22:35

top now of this infrastructure that already

22:37

exists. We've got Raskin who

22:39

came in and Wyndham who was brought in

22:42

and and it's seemingly like

22:44

Mary Dorvin, like all of these folks are just

22:46

now reporting up

22:48

through the special council

22:49

office. Quote unquote rather than having

22:51

to build a whole new sort

22:54

of infrastructure.

22:55

Howard Bauchner: Yeah, that's so important.

22:58

And So on a on a couple

23:00

different levels, I think first and I

23:02

I can say this as an attorney. I'm

23:04

allowed to throw shots at attorneys generally,

23:07

and I will now. No one likes

23:09

to to delay things and ask

23:11

for more time more than attorneys. Like,

23:13

having an attorney meet the first deadline

23:15

is almost impossible, never happens. So

23:18

here you have a guy who comes in

23:20

very publicly is now responsible for

23:23

easily the most controversial investigations

23:26

in the country. And he has

23:28

some important deadlines. Like,

23:30

he's bumping up against them, like, days into

23:32

the new job. Right? The

23:35

the appeal before the eleven circuit is a great

23:37

example. He could easily

23:39

have had DOJ ask

23:41

the court for more time. To get up to speed

23:44

on the issues, to understand the pleadings

23:46

better, to get debriefed by his

23:48

team and all that stuff, but he didn't. Not

23:50

only did he not ask for time, he actually

23:52

weighed in and oversaw kind of

23:54

some of the submissions, and I I know we're gonna talk about

23:57

that in a minute. So think that's

23:59

a great sign. Another indicator

24:01

that things are gonna move quickly is

24:03

the result in that eleventh circuit

24:05

finding that basically takes

24:07

all those Mar Lago documents out of

24:09

the hands of the special master. And

24:12

now DOJ and those FBI investigators

24:15

can just charge forward full

24:17

speed ahead conducting the investigation that

24:19

they've been wanting to do for the last couple months,

24:21

but couldn't because they didn't officially

24:23

have investigative access to

24:25

those documents. So I think there's

24:28

all kinds of good signs here

24:30

that the team and its new leader,

24:32

Jack Smith, appreciate the fact that clock

24:35

is ticking over their heads. They don't have

24:37

a lot of runway to deal

24:39

with on these cases until

24:41

they're gonna find themselves right in the middle of

24:43

a heated election, which makes things

24:45

infinitely more complicated. So they

24:48

are they are charging forward with

24:50

all due

24:50

haste. Yeah. Although it seems like

24:52

a lot of Republicans are now taking the

24:54

off ramp that they should have taken in twenty

24:56

fifteen from supporting Donald

24:59

Trump,

24:59

No doubt. But one other myth I

25:01

wanted to bust here before we get into another bit of

25:03

news is that Congress cannot

25:05

defund the special council. Now they can do a

25:07

lot to muck up and gum up the works,

25:10

the Republican congress when they take over in January.

25:12

But they cannot define the special counsel

25:14

because the special counsel is funded out of

25:16

a permanent treasury fund if I

25:19

remember correctly from the from

25:21

the Mueller investigation. And I think that you and

25:23

I discussed that way back in

25:25

the day because a lot of people had concerns

25:27

that that that that Mueller would

25:29

be defunded. And I just kinda wanted to dispel

25:31

the myth that they can just marjory Taylor

25:34

Green can just come in with the home and rule and

25:36

and defund Jack Smith

25:38

without getting the signature of the

25:40

president having it passed the Senate or anything

25:42

like that?

25:43

Yeah. That's exactly right. The funding

25:45

for the special council activities is pretty

25:48

secure. It's pretty outside

25:50

the reach of politics, which is great.

25:53

Because, of course, you know, we had

25:55

in the another thing that makes the Mueller investigation

25:58

so strange. We had special counsel

26:00

appointed and then basically was

26:02

opposed or or frustrated

26:05

by the the DOJ

26:07

that appointed them and the president that oversees

26:09

that DOJ. So they were like kind of fighting

26:12

for their lives from the very beginning. That's

26:14

of course not the case here. But

26:16

so back in the mueller days, we were worried

26:19

about DOJ defunding the

26:21

special counsel activities, but not a concern

26:24

because those those funds

26:26

are protected and designated for the special

26:28

council. Congress can always come

26:30

back the next year and try to dallyate

26:33

against DOJ and maybe

26:35

kind of chop their budget down a little

26:37

bit because they don't like the things that

26:39

are happening, the decisions that are being made over

26:41

there. But I

26:44

think, again, it's important to look

26:46

at the authorizing policy,

26:49

which says very clearly that while

26:51

the AG is the only person

26:54

who oversees the

26:56

special counsel. He doesn't do it on

26:58

a day to day basis. He's allowed to

27:00

ask for explanations of

27:02

decisions that were made and things like that and

27:04

kind of get briefed on things every once in

27:06

a while. But it is not a day to day

27:09

briefing by briefing level of super vision.

27:11

So Jack Smith has got

27:13

the independence to do what he needs to do. He'll

27:15

have the money to do it. It's not a ton

27:17

of money in terms of government work. Right?

27:19

We're talking about a couple million bucks,

27:21

which is really a drop in a bucket. When

27:24

I was deputy director in the FBI,

27:26

our our budget was about nine billion dollars

27:28

a

27:28

year. So million here, million there,

27:30

you can pretty much you can you always find that

27:32

if you look hard enough. Yeah. Very true.

27:35

Alright. Thanks for that. And now wanna talk

27:38

about one of the very first acts that

27:40

Jack Smith took as special counsel. And

27:42

I mean, first of all, he he was, you know,

27:45

we'll talk about him being read in on, you

27:47

know, the eleven circuits stuff because he

27:49

made an appearance there. But on Thanksgiving,

27:52

Jack Smith wrote a letter to the eleventh Circuit in

27:54

response to a letter that Trump's lawyer,

27:56

Jim Trusty, wrote, to the eleventh

27:59

circuit. The day after

28:01

oral arguments and during oral arguments

28:03

in the special master case, the court

28:05

asked trustee to name a single case

28:08

equitable jurisdiction to appoint a special master

28:10

and enjoying the government happened

28:12

like name just give me a single

28:14

case, and Jim Trusty couldn't name a

28:16

case. That's never the

28:19

the preferred response to a judge's

28:21

question, but you're you're

28:23

exactly right. So to

28:26

make up for that for

28:28

that lack of having case when

28:30

he needed it, Jim Trusty did

28:32

write the eleventh circuit the next

28:34

day and told them that they had thought

28:36

of a case. And so he brought

28:39

up or referred them to the,

28:41

I'll call it, the Rudy case. If you

28:43

remember, g Rudy Giuliani's

28:46

office was searched in April of twenty

28:48

eighteen as law office and

28:50

special master was appointed by the court

28:52

to go through all the evidence that was

28:55

seized as pursuant to the search warrant. And

28:57

filter out anything that might have been

28:59

covered by attorney client privilege. So

29:02

Jim Trusty tried to tell the eleventh circuit

29:04

that these cases were the same. Mean

29:07

they're so clearly not. But Jack

29:10

Smith had none of it, and I'm gonna

29:12

quote him here because it's it's pretty direct.

29:14

Jack wrote Plaintiff

29:17

asserts that the Rudy case

29:19

is an example of a case in which

29:21

a court has previously asserted equitable

29:23

jurisdiction to enjoying the government

29:25

from using seized materials in an

29:27

investigation pending review by a special

29:30

master. That is incorrect.

29:33

Smack Smack down by Jack right there.

29:35

As plaintiff recognizes, the court

29:37

did not enjoy the government instead

29:40

the government itself volunteered that

29:42

approach. Moreover, the records

29:44

there were seized from an attorney's office.

29:47

The review was conducted on a rolling basis,

29:49

and a case did not involve separate

29:51

civil proceeding invoking a district court's

29:54

anomalous jurisdiction. None

29:56

of those is true here, yours truly,

29:59

special counsel Jack Smith. So

30:02

pretty pretty concise, pretty to

30:04

the point that

30:05

sorry, Jim, none of the

30:08

supplies to the current to

30:10

the current case. Yeah. Absolutely.

30:12

And, you know, I remember when you were

30:14

the first time you were on Mueller's, she wrote, the

30:16

episode was called Mueller goes to paper. And

30:18

we talked about something that you mentioned in your book,

30:21

the threat, by the way, excellent book. Everyone get it

30:23

if you haven't already. And and that's how

30:25

extraordinary it was for Mueller to write a letter,

30:27

to go to paper. Were you surprised

30:29

to see a letter signed by special counsel years

30:31

truly Jack Smith on Thanksgiving no less

30:33

within days of his appointment?

30:35

You know, I what? Okay. I'm gonna I'm

30:37

gonna give you the attorney answer here. Yes

30:39

and no. I was surprised

30:42

that Smith is

30:44

so engaged and

30:46

involved on this thing, not only,

30:48

you know first of all, immediately,

30:51

end during the holiday. So I think it was a

30:53

an impressive performance by Smith

30:55

to really step in and

30:57

drive the bus on this letter,

31:00

this response to trustee's pretty

31:02

silly suggestion. But

31:05

also not so surprised because this

31:07

came in the context of, like, ongoing

31:10

litigation. And it, you know, in that

31:12

context of litigation, it's not

31:14

uncommon to see the sides really

31:17

shooting pretty pretty pointed darts

31:19

at each other in their filings and

31:21

also in letters which are not quite

31:23

as formal as official filings. And

31:25

so lawyers tend to get, you

31:28

know, they let they let they get a little they

31:30

let their snarky out little bit more in the

31:32

letters than they do, like, in an official brief.

31:34

So, you know,

31:36

doesn't look like this particular litigation is

31:38

gonna continue, so we won't get to see too many

31:40

more of these fireworks, but I

31:43

think Jack Smith showed he's ready to take

31:45

the gloves off right

31:46

away. So these things should

31:48

be fun to read as we go on. Yeah.

31:50

Yeah. And and I'm glad. And I I hope

31:52

to see more of him than we saw of

31:54

Mueller. Maybe do some press conferences. I know

31:56

we can't really talk about much, but I think it would

31:59

go a long way to show the

32:01

country that there is a sense of

32:03

urgency here. And he has made statements to

32:05

that effect, and I really appreciate that. And also have

32:07

to wonder do you think this has been

32:10

planned for a while? I mean, how long has

32:12

Garland known? He would appoint a special counsel

32:14

because Jack Smith seems pretty

32:17

red in, and Garland doesn't

32:19

like surprises. So I can imagine him

32:21

sitting here a year ago saying Donald's

32:23

gonna run for president any second. We gotta be

32:25

ready And, you know, wondering,

32:30

I guess, within policy and

32:32

with what's ethical, how

32:35

much Jack Smith knew before he was

32:37

appointed, that he was going to be appointed, and what he

32:39

needed to be caught up on if he was already caught

32:41

up on it. Well, I think there's no

32:43

question. This thing has been deliberated in

32:46

DOJ for a long time. You're

32:48

right. They knew it was coming. The likelihood

32:50

that Trump would run again isn't you know, that

32:52

was not hard to figure out. I

32:55

also know from having suffered through so

32:57

many of these you

32:59

know, meetings over really

33:01

controversial issues of first impression.

33:04

You never decide anything in the first meeting,

33:06

maybe not even in the first five meetings. DOJ

33:09

likes to admire a problem for a while before

33:12

they before they commit to it. So I'm sure and

33:14

and Garland is a very careful guy. He

33:16

is a jurist by heart, not a proxy

33:18

cooters so much. And so he's gonna

33:20

really kind of look at this thing from every possible

33:22

angle before he makes a decision. I'm sure

33:25

that he did that here. My

33:27

guess is they probably did decide pretty

33:29

recently. It's clear he wanted a he wanted

33:32

a kind of choreographed the announcement of

33:34

the decision with Trump's

33:36

announcement of running again. I thought that was

33:38

a kind of an artful touch by him. He's not

33:40

a guy that seems to kind of go for that

33:42

sort of sequencing naturally, but

33:44

maybe he's there now. Whether

33:46

or not Smith had any access to

33:49

materials beforehand, That's

33:51

a tougher one to answer. I don't I don't

33:53

know my instinct would tell me,

33:55

no, they wouldn't. They

33:57

probably wouldn't have read him in early.

34:00

However, I think Jack Smith has been on

34:02

their radar for a long time. I think he's

34:04

someone probably at the very earliest

34:06

discussions about who could maybe be

34:08

a special counsel I would guess that his

34:11

name was discussed very early

34:13

on. He is an incredibly capable

34:15

prosecutor. He's got a sterling reputation

34:17

within DOJ. Done all this really cool

34:20

stuff pursuing big political people

34:23

overseas in the in the war crimes

34:25

context. He also is

34:27

is kind of known to be not

34:29

to have any sort of clear political preference

34:32

for one side or the other, which is always helpful.

34:35

So I I think he's probably been in the mix for

34:37

long time, but he probably didn't have access to the actual

34:39

data, you know, the case file until

34:41

he got banade. Well,

34:43

speaking of the eleventh circuit and the argument

34:46

the Department of Justice was making to shut down

34:48

the special master reviewing the non classified

34:50

documents, The court has issued its

34:53

ruling and here to discuss is political

34:55

investigations reporter for Trump and the Department

34:57

of Justice at the Guardian Hugo Lowell.

34:59

Welcome, Hugo. Thanks for having me.

35:01

Yeah. So just a couple of questions for you.

35:04

I mean, we sort of saw this

35:07

coming. First of all, because of the first

35:10

eleventh circuit appeal for the classified

35:12

documents, which was based

35:14

on something called a a decision called Chapman

35:17

out of the fifth circuit, which is

35:19

where the eleventh came from. And

35:21

then also, the writing was pretty

35:23

clear on the wall after the oral arguments. Can

35:26

you talk little bit about what

35:28

the eleven circuit found and

35:31

and particularly as

35:33

as it connects to what is called

35:35

equitable jurisdiction. Yeah.

35:38

No. You're absolutely right. You know,

35:40

the eleventh circuit. Seem

35:42

incredibly skeptical of kind of

35:44

Trump's arguments that you should get

35:46

special treatment because he's former

35:48

president during all arguments. And

35:51

he had the added disadvantage that two

35:53

other judges on this panel were

35:55

also on the previous panel that

35:57

ruled that Kannen had abused her

35:59

discretion in granting a special master in

36:01

the first place. So I think it came

36:03

as no surprise there. Anyone that

36:06

they decided to vacate the special

36:08

mass ruling. But think, you

36:10

know, this is a real evisceration, real

36:13

bench slap. I mean, the

36:15

the eleventh circuit basically looked at each

36:17

of the tests under

36:20

Ritchie, the the standards that

36:22

you have to meet to

36:24

to get equitable jurisdiction here. And

36:27

I guess, Cannon decided that Trump

36:29

met some of the other tests, but

36:31

pointedly also agreed

36:33

that Trump did not meet that first test

36:35

about, you know, whether Trump suffered

36:37

caused this regard as constitutional rights

36:40

when the FBI searched

36:42

tomorrow rather, and this seemed to be the

36:44

kind of a tipping point. And the

36:46

eleven second, I think, was pretty clear and

36:49

if you don't meet that kind of disregard standard,

36:51

the former standard, then frankly,

36:53

you should not be getting any intervention. But

36:55

then more on a fundamental basis, eleven

36:58

circuit was like, well, you shouldn't have got

37:00

this special master in the first place

37:03

because that's just not how this what

37:05

works. Right? There was a search warrant

37:07

that was mostly executed. The justice

37:10

department sees these documents. It doesn't

37:12

matter whether they were personal or or privileged

37:14

documents. They will cease. You're not

37:16

an attorney, and so you really don't

37:18

have any any basis here

37:21

to request a special master and can then have any

37:23

basis to grant you

37:24

one. Yeah. And I wanna talk a little bit

37:26

about the personal records designation. But

37:29

first, I wanted to ask Andrew. Andrew, if you

37:31

could jump in here. Because

37:33

of your, you know, investigatory expertise.

37:36

Why is it necessary to

37:38

have the non classified documents that

37:40

were co mingled with the classified documents

37:43

as part of evidence in a criminal investigation

37:46

for having the classified documents.

37:50

Sure. And I and I think that's that goes

37:52

right to kind of what's been everyone's focus

37:54

on this story has been on the classified

37:57

documents and the and the incredibly

37:59

sensitive nature of the stuff that they

38:01

seem to have found at Mar Lago, and that's

38:04

rightfully so. That's a a very

38:06

concerning national security matters there.

38:08

But we have to remember that the government is

38:10

also investigating the

38:13

mishandling or the

38:15

taking essentially of essentially

38:18

presidential records writ

38:20

large. So every almost everything

38:22

you do as as

38:24

president of United States is considered a

38:26

presidential record and all that material

38:29

is the property essentially of

38:33

all of us, right, the United States

38:35

citizens, and it's entrusted

38:38

to the national archives. So

38:41

even the non classified records

38:43

that they were able to seize at Marlago

38:46

are directly relevant to whether or not

38:48

the president mishandled presidential record.

38:50

So in a very general sense, they

38:52

are basic evidence in that part of

38:54

the inquiry. Also, The

38:57

fact that many of these less

39:00

sensitive, non classified items

39:02

were co mingled with highly

39:05

sensitive stuff shows a number

39:07

of different things. It shows you what kind

39:10

of disregard Trump had

39:12

for the sensitivity of the materials he had.

39:14

The fact that some of this was kinda sitting in

39:16

his desk or on the floor in his closet

39:18

mixed up with, like, gift

39:20

bag t shirts and and golf

39:22

hats or and you know, articles

39:24

from the newspaper, so there's that.

39:27

But also, he had

39:29

sensitive materials in his desk

39:32

together, co mangled with records

39:34

that are not sensitive but can be dated. Right?

39:36

So like newspaper articles

39:39

and things like that. That shows you

39:41

that he had an awareness, a recent

39:43

awareness of the fact that he had the

39:45

sensitive items in his desk because he's

39:48

storing them with other things that we

39:50

know are very current. So if he's got

39:52

yesterday's paper on top of

39:54

a top secret CI

39:57

document in his desk, you can

39:59

infer and this is very powerful evidence

40:01

to a jury that he was

40:03

dealing with this stuff recently, the

40:05

sensitive stuff. It was ours in

40:07

a place where he should have seen it. And in a in a

40:09

desk drawer that he's been going into

40:11

recently, we know this by virtue

40:14

of the of the article being there. Right.

40:16

And so Hugo, when, you know,

40:18

we know that by the Bates numbers,

40:20

they found like three letters commingled

40:22

with some classified documents in the in that

40:25

dust drawer that were dated

40:27

post presidency kind of

40:29

gives way to that awareness. What

40:31

did the eleven circuits say about things

40:33

that are personal effects

40:35

like

40:35

that. And and also, please, please tell

40:38

us about the Celine Dion photos. Well,

40:40

I mean, so can I just start by saying, so

40:42

the the documents in the drawer, we actually

40:44

did a pulling on this back in mid

40:47

November because this

40:49

kind of discovery was mentioned

40:52

in a filing with the special master? So

40:54

you know, I think even if the justice

40:56

department didn't wanna release details over this

40:58

investigation, I think for the general public and for kind

41:00

of report like, we, this fantastic, the special

41:03

master because we, you know, we learned a whole bunch of things

41:05

about how, you know, he had communications from

41:07

a pulse or no communication from a

41:09

book author, commingled, with a secret document

41:11

and a confidential document. So, you know, this

41:14

was this was really, really fascinating. With

41:16

respect to kind of the personal effects,

41:19

you know, it was it was funny

41:21

because in the

41:24

oral arguments this is the kind

41:26

of the time that we learned that

41:28

Trump was upset that his photo

41:30

of selling Dion got

41:33

seized in the oldest age.

41:36

Got you. And

41:38

you hold me like that.

41:42

I just have to admit that

41:44

it's so calming then.

41:46

And I thought this was kind of ironic anyway because,

41:49

like, if it was a photograph taken

41:52

while, you know, he was president and let's say

41:54

taken by a, you know, the White House photographer,

41:57

that would be a presidential racket. Right? That is government

41:59

property, so it's not his to begin with. And

42:02

if it was his personal one, then,

42:04

you know, it's even more ironic because Trump

42:06

wanted Celine Dion to play out as an operation,

42:09

and she declined. And so it was kind of, like, brought

42:11

everything poor circle. Right? Like, he didn't want

42:13

him at the start of the presidency. He didn't

42:15

get her at end of the presidency either.

42:18

But, you know, it comes back to what we were saying earlier

42:20

about how Elanco get

42:22

what's very clear that the

42:25

documents the status of the documents

42:27

doesn't matter. And, you know, they actually say

42:29

in the ruling, you know, that all of these arguments

42:31

are a sideshow. The fact of a

42:33

matter is there was this search warrant.

42:36

The warrant spelled out what could be taken,

42:38

what could not be taken. And that included

42:40

things that were, you know, documents or materials

42:43

that might be adjacent to kind

42:45

of government records. And if it was adjacent,

42:48

In this case, it appears to have been, then

42:50

that's more fully seized by the justice

42:52

department. And I

42:53

think the Ribbon Circuit really got crops of the

42:55

issue because we've been all getting around this for months

42:57

and months and months. And the fact

42:59

of the matter is, at a pre and diamond stage,

43:02

Trump doesn't really have any recourse to

43:04

get these documents back, especially if he's if

43:06

there's no need for them. Right? And this was the other

43:08

thing identified under Ritchie.

43:10

Yeah, you know, I think that's such an important point

43:12

Hugo. Because by, you know, I think some

43:14

people may have been put off by this news at,

43:16

oh, will the eleven circuit really focused

43:19

on the jurisdictional question and maybe

43:21

that's like a legal technicality that doesn't matter.

43:23

No. It's like unbelievably important because

43:25

it goes right to this question of Are

43:27

we gonna treat this person different because

43:29

he was the president? Are we gonna carve out

43:32

a piece of equitable jurisdiction simply,

43:36

you know, because he he

43:38

was the president. He's more important. Are we gonna

43:40

give him a privilege that every

43:43

single person who is the subject of

43:45

a search warrant and that happens thousands

43:47

of times a day around the country in all

43:49

kinds of different cases none of

43:52

those people get that get that consideration

43:54

or that extra kind of bite at the apple.

43:57

So I think it was an incredibly important

43:59

it was important for the department to pursue

44:02

this appeal for this reason exactly because

44:04

it goes right to kind of the

44:07

fair application of the rule of law?

44:09

Yeah. And that was gonna be my question

44:12

to to both of you because that is the

44:14

core that's the crux of this decision

44:16

here. I mean, The eleventh circuit was

44:18

saying, if we do this, we have to do this for

44:20

everybody. And

44:23

also, that would be opening

44:25

up the door for the courts to interfere in

44:27

criminal investigations, which is a separation of

44:29

issue. It is it's unconstitutional, basically.

44:32

I mean, Hugo, And

44:35

then Andrew, you know, you add on.

44:37

But, I mean, isn't that sort of what the

44:39

entire thing is getting

44:40

at? Is it, like, those core constitutional separation

44:43

of powers issues? Yeah. I think that's right.

44:45

And, you know, this this came up again at

44:47

all arguments, you know, federal

44:50

courts are courts limited jurisdiction. They

44:52

can't just come in and join, in this

44:54

case, the government from conducting

44:57

criminal investigation. And

45:00

I think this was kind of the fundamental issue

45:02

at play here. Right? 1? And

45:04

then currently then Sarta was asking, what

45:07

does what is so special in

45:09

this case that Trump gets this

45:11

special treatment? And really what it

45:13

seemed to come down to at the end of the day was Cannon

45:16

decided they

45:18

called Trump as a former president, she

45:20

would show him extraordinary deference.

45:23

And the eleventh circuit basically said, look,

45:26

we're not creating new case law. There so lastly,

45:28

there has been no case law in

45:31

in in this circumstance where, you know,

45:33

the at the at the at the a potential defendant can

45:36

enjoying the government during that executive branch

45:38

criminal investigation, and we're not gonna

45:40

create new case law that says

45:42

presence or former presence. Can

45:44

basically undermine an ongoing criminal

45:46

investigation. Yeah, I think that's exactly

45:48

right. You know, and and from a from a kind

45:51

of operational perspective as speaking

45:53

from the investigative side, it's absolutely

45:55

unsustainable. The idea that every

45:59

or even just some percentage of

46:02

defend or subjects of investigation who

46:04

have search warrants executed at

46:06

their homes or their offices or what have you

46:09

would then have the opportunity to tie up the

46:11

government for months and months and months and months and possibly

46:13

start excluding evidence from their case

46:16

before they're even charged. That

46:18

is just something that would not be

46:21

sustainable for the FBI

46:23

or for any federal investigators And

46:25

I think it was a great thing that DOJ stepped

46:27

in, took some risk on by pursuing

46:30

this appeal, but did it to

46:32

kind of preserve

46:34

the government's ability to continue doing investigations

46:36

in an efficient way. Yeah. And

46:39

and before we let you go, Hugo, what are the next steps?

46:41

Because obviously, Donald Trump and his

46:43

Jim Trusty, will probably appeal,

46:46

but remind us what happened the last

46:48

time Trump went to

46:50

the supreme court with

46:53

an eleventh circuit appeal because

46:55

as we know, justice Thomas sits atop the eleventh

46:58

circuit as the chief justice of that particular

47:00

circuit. So what

47:02

what do you think we can expect from the supreme court

47:04

and how quickly can we expect

47:05

it? Well, the last time Trump tried to appeal to

47:07

the supreme court, it did not end well. And

47:10

I think in this instance, he's probably gonna

47:12

fare even more poorly. Look,

47:15

the on the local rules, at the

47:17

eleventh circuit, Trump can't get an onbond

47:19

hearing. He has to go to Skodus.

47:22

And given this three judge panel

47:24

included Bill Pryor, the appellate

47:26

chief, I would be hugely

47:29

surprised. It it would just be extraordinary

47:31

for justice Thomas to,

47:34

you know, over time or kind

47:36

of reverse part of the eleven circuit ruling

47:38

or even refer it to the forecourt.

47:41

I actually think they just weren't granted. I

47:43

mean, it's really open and shut. And

47:45

we've already had we already

47:47

had a taster in kind of a preview

47:49

of what the supreme court and what justice

47:52

Thomas thinks about this case

47:55

in general because in the earlier appeal,

47:58

when the justice department was trying to regain

48:00

access to the one hundred and three classified documents

48:02

and Trump appealed that. You

48:05

know, the Supreme Court basically

48:07

said no dice. And so

48:09

I think the expectation among

48:11

everyone, including Trump's own lawyers,

48:13

by the way, who I spoke one of whom I spoke

48:15

to last night is that the Spring Court is

48:17

probably not gonna rule in Trump's favor. They

48:20

might try it on because it

48:22

might buy them extra time if they can get like

48:24

an injunction or stay pending

48:26

appeal, but I don't think anyone

48:29

realistically believes eleven

48:31

circuit schooling is gonna get changed

48:33

in any way. Howard

48:34

Bauchner: Yeah,

48:35

and I think, Andrew, I think that's a common misconception

48:37

that people have that these cases are different because

48:39

one had classified documents one had non

48:41

classified documents, but the core

48:43

of each case was the equitable jurisdiction.

48:46

And if you don't have it in

48:47

one, you don't have it in the other. And I don't see the

48:49

scotus doing anything differently. No.

48:51

That's that's absolutely right. And and

48:53

look, the the tenor and the

48:55

tone of this opinion's total smackdown

48:57

for Judge Cannon and they're

49:00

essentially saying, there is no question here.

49:02

There is this is a matter of very clear

49:04

settled law and on these

49:07

facts the result is clear.

49:09

And, you know, you need to be

49:11

able to bring more to the table to get

49:13

the interest of the Supreme Court.

49:15

Yeah. Agreed. Alright. Thank you so much.

49:17

Political investigations reporter for Trump and the

49:19

Department of Justice at the Guardian. Everyone

49:21

follow Hugo Lowell on social media. And

49:24

don't go anywhere. We'll be right back with more news

49:26

after this quick break.

49:33

Welcome back. We've got some more news in

49:35

the special counsel investigation. So

49:38

AG just this morning, Pat Cipollone was

49:40

seen entering the courthouse in DC where

49:42

the grand jury meets. This is his

49:44

second round of questioning. During

49:46

the first round, apparently, he did not answer

49:49

some of the questions because Trump

49:51

had asserted executive privilege over

49:54

those conversations, those communications

49:56

that he had when he was White

49:58

House counsel. While DOJ went

50:00

to court to argue that there is no executive privilege

50:03

here and 1, chief judge, Berrow

50:05

Howell, who presides over the grand jury's

50:07

in these cases, ruled that there was no privilege

50:09

and cleared the way for Pat Cipollone and

50:11

Pat Filden, his deputy while

50:13

he was White House Council, to

50:16

answer questions. So you'll

50:18

remember this privilege battle happened previously

50:20

with top vice president Pence aides,

50:23

Greg Jacob and Mark Short, Trump

50:25

lost that 1, and both men had

50:27

to return to testify

50:29

fully. Yeah. And and correct me if

50:31

I'm wrong, but Cipollone's testimony can cover

50:33

both the January sixth litigation, the

50:35

the Penn's pressure campaign, all of

50:37

the meetings, that crazy December eighteenth meeting,

50:40

and the documents case. Because it wasn't

50:42

Cipollone answering some of the Narra

50:44

documents, questions early on? That's

50:46

absolutely right. Cipollone was

50:48

right in the middle of this issue from

50:51

the beginning, really issuing guidance, not

50:53

just This is key here, not just

50:55

to then president Trump, but to

50:57

the entire White House staff about

50:59

how presidential records needed to be handled

51:02

at the end of the administration. So,

51:05

have that communication simply been between

51:07

the two of them? You could have stronger

51:09

argument it was covered by executive privilege

51:12

or attorney client privilege. But

51:14

in this case, he's, you know, simploning

51:16

issuing legal guidance to the entire White

51:19

House staff That stuff is gonna

51:21

be fair game. We also

51:23

know that Philbin played

51:25

a pretty prominent role in

51:27

the White House's first interactions with

51:29

and responses to the National Archives

51:32

questions. So the two of them could

51:34

really have some interesting information

51:37

for the grand jury about the Marlago

51:39

case. Howard Bauchner: Yeah, yeah, totally. And

51:42

and I wanted to ask you before we get out of here,

51:44

what your thoughts are on the timeline of

51:46

this case because I know back in the molar days,

51:48

you guys were investigating, like, ten months before molar

51:51

was appointed. And then within five months is

51:53

when the first indictments came down for Manafort

51:55

and Rick Gates in

51:58

in that investigation. What

52:00

do you see as the timeline here?

52:03

What were frictions do we have with regard

52:05

to getting a trial done before a presidential

52:08

election? And and do you

52:10

think that that Trump

52:12

faces an indictment in either of these cases

52:15

or both? Sure.

52:17

So again, kind of going

52:19

back to that theme of the differences between our

52:21

current situation and the situation my team and

52:24

I had leading up to Mueller, a special

52:26

counsel. You know, we were engaged

52:28

in a much more kind of kind

52:30

of typical counterintelligence investigation.

52:33

I say that because often counterintelligence investigations

52:36

are very amorphous you know, you have

52:38

information that indicates a threat to national

52:40

security might exist, and then you have to

52:42

go out there and figure out whether that actually

52:45

is the case, is something happening that

52:47

we need to be careful about. And

52:49

so there's they're they're harder to get

52:51

started, they typically take a lot longer. And that's

52:54

essentially what we turned over to Mueller.

52:56

This case is very, very different. You

52:59

have those two primary investigations.

53:01

Mar a Lago in January sixth. Mar

53:03

a Lago is like a three quarters

53:06

baked loaf of bread. Right? We

53:08

all know from what's been in the public reporting,

53:11

what kind of evidence they got, when they got

53:13

it. We now know from all the filings, the court

53:15

filings, and the battle over the special master,

53:17

all of the interactions between DOJ

53:19

and the Trump folks leading up to the search

53:22

warrant. So they have we

53:24

know the government already has a lot of really significant

53:26

evidence. I'm sure they have some work to do,

53:29

but I think that Mar a Lago comes to

53:31

a head, a decisional point

53:33

pretty quickly. And Yeah. And you and

53:36

I you know, I would have to mention here, the eleventh

53:38

Circuit actually mentioned in their ruling

53:41

overturning the Judge Cannon's Order for Special

53:43

Master that when there was a subpoena,

53:46

Trump responded and his team, the office

53:48

of Donald John Trump, responded to the subpoena

53:50

with a double taped redweld envelope, indicative

53:54

of how you would handle classified materials.

53:56

And and so they pointed

53:58

that out in their

53:59

decision. And I think this is a pretty open

54:01

and open and shut case as

54:04

even with obstruction. Yeah.

54:06

I mean, they they have painted

54:08

themselves into so many corners on this

54:10

thing. I think we could probably do a whole episode on

54:12

that. But, you know, and I

54:14

and I know from a hard experience, there

54:16

are there is no such thing as a slam dunk. But

54:19

this thing is pretty much three quarters

54:21

baked. So I think it comes to

54:23

that decision of whether or not Trump

54:26

and anyone else around him gets indicted

54:29

strictly over the Marlago issue. think

54:31

that's coming up pretty soon. And quite

54:34

frankly, I can't it's

54:36

it's hard for me to imagine a scenario

54:38

in which he does not get indicted. Just

54:42

based on the information that we know, there's

54:44

probably much more that we don't know that the government

54:46

also has. And it

54:48

it holds echoes of the eleventh circuits

54:51

decision. Right? Are we gonna treat this

54:53

person so much differently than we

54:55

would any other person simply

54:57

because he was president. I think the answer to that

54:59

has to be no. And I'll tell you from having

55:01

investigated mishandling case and

55:04

all kinds of different espionage matters.

55:06

If you were a former government

55:08

employee or government officer on

55:11

these facts, you're getting indicted. I

55:13

guarantee you. So so

55:15

III kind of expect it to go

55:17

in that direction, you know, who knows anything

55:20

can happen. January sixth is

55:22

the longer term target. Right? That one's

55:24

a little further out. Much more complicated

55:26

set of facts. Much tougher to decisions

55:28

for the prosecutors to make, for Jack

55:30

Smith to make at the end

55:32

of the day. You know, I would expect they're

55:34

gonna have to kind of fish or cut bait

55:36

to some extent before we get

55:38

too deep into the election cycle. So

55:41

I would expect that certainly by the

55:43

end of twenty twenty three, we

55:45

should know what's happening in that case as

55:47

well. But, you know, my predictions are

55:49

worth what you paid for them. Now

55:51

if we go by Watergate

55:53

timeline, which lines up really

55:56

nicely by the way with the Mueller investigation timeline.

55:59

My prediction has been since the beginning

56:01

that indictments would start coming.

56:04

For the top of the the coup plotters in January

56:06

six for the those in charge of, you know, who

56:08

directed the January six fraud

56:10

and electric scheme and Pence Pressure Campaign.

56:13

Obstructing an official proceeding and conspiracy

56:15

to defraud the United States. If

56:17

we go by those timelines, it's April

56:20

of next year. And as

56:22

we know, the watergate investigation was

56:25

much simpler than what

56:27

we are looking at. With the January sixth fraudulent

56:29

electric scheme and way. And

56:31

so April twenty twenty three would

56:33

be rocketship lightning

56:35

fast. I know everyone for the last year

56:37

and a half been like why it's taken so long. It's taken

56:39

so long. It's taken so long. I've said from the beginning,

56:42

don't expect anything before April twenty

56:44

twenty three if this cannot go faster

56:47

than Watergate

56:47

went. Yeah. I think that's I think that's

56:49

probably there there's there's no perfect analogs

56:52

here, but that's probably about the best one you're gonna get.

56:54

Yeah. We don't really have a lot of coup

56:56

plotting insurrection investigations to

56:59

acquire it to

57:00

them. Thank god.

57:02

Thank god. Alright. Well, thank

57:04

you so much. This has been wonderful

57:06

first show. I appreciate all

57:08

of your insight. Thank you for doing this show with

57:10

me. Thanks to our patrons. Who

57:12

will get this show early and

57:14

ad free at the five dollar level or higher.

57:17

Thanks to everybody who's listening thanks for

57:19

subscribing I'm really excited

57:21

to see where the show goes and where the

57:23

investigations

57:24

go. With that, you know,

57:27

hey, I've been AG.

57:28

And I am Andrew McCabe. So

57:30

a big thanks to Hugo Lou at the Guardian. We'll be back

57:32

next Sunday with all things special counsel.

57:34

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