0:00

I signed

0:01

an order appointing Jack Smith.

0:03

And nobody knows he. And those who say

0:05

Jack is a Mister Smith is

0:07

a veteran career prosecutor.

0:10

Wait. What long are I doing? Events

0:12

leading up to and on January

0:14

six. Classified documents and other presidential

0:16

records. You understand what prison is? Send

0:18

me to jail.

0:28

Welcome to episode two of

0:30

Jack. It is Sunday, December eleventh.

0:32

And I'm your host, Alison Gil.

0:34

And I'm Andy McCabe, and there's a lot

0:36

of special counsel news this week. which

0:38

I think reflects the point I was making the

0:40

first episode about the investigations moving

0:43

forward without delay. We're gonna

0:45

cover it all today, including additional

0:47

classified documents being found in a storage

0:49

unit in Florida, a flurry

0:52

of subpoenas issued by the special counsel's

0:54

office, and judge Cannon siding

0:56

with the DOJ and a skirmish over putting

0:58

the special master on hold. Yep.

1:00

We also have a story about Donald's

1:02

pack, the Save America pack, paying

1:04

the legal bills of key witnesses.

1:06

sale

1:07

We have additional testimony from Steven

1:09

Miller And Donald's comment

1:11

about terminating the constitution or

1:14

parts of it. And Andy, I'm I'm

1:16

so glad you're here. Before we get into this,

1:18

I have a lot of questions about a lot of stuff that's happened

1:20

this week, but just wanna let everybody know and

1:22

acknowledge we've changed the name of the show to Jack.

1:25

So

1:25

we just didn't wanna cause any confusion.

1:27

We want to clean it up a little.

1:29

And and so I just

1:31

wanted to let everybody know from now on

1:33

If you wanna look for this show, it's called

1:36

Jack. I thought it was simpler and

1:38

easier

1:38

to follow, and I don't know, just looks

1:40

cleaner to me. So just wanted to acknowledge

1:43

that But let's move

1:45

forward because I have some questions for you,

1:47

Andy, about some of the news that's come out this

1:49

week. Let's start with the documents investigation.

1:52

So we're gonna we're gonna do the documents investigation

1:55

in the

1:55

first segment of the show, and then we'll switch over

1:57

to the January sixth part of

1:59

the investigation.

1:59

nation And

2:00

we'll we'll kick it off with the news

2:03

that apparently additional searches

2:05

were conducted for classified documents

2:07

or documents bearing classifications, markings

2:10

because I have a lot questions about

2:12

this. From Caitlin Collins

2:14

and Sarah Murray at CNN, here's the lead,

2:17

quote, two documents with classified markings

2:19

were found in a Florida storage unit

2:22

during a search by a team hired

2:23

by former president Donald Trump's lawyers,

2:25

according to a person familiar with the situation

2:27

who spoke to CNN. Those

2:29

documents were handed over to the FBI,

2:32

No other documents with classification markings

2:34

were found during a search of four

2:36

of Trump's properties, the source set.

2:39

Andrew, there was an earlier story,

2:41

you know, besides CNN in

2:43

the Washington Post by Dublin Baron among others.

2:46

that probably went out too early

2:48

because they said two properties were searched

2:50

and they failed to mention to CNN or

2:52

as CNN did, that the lawyers

2:54

had not yet attested. Trump's lawyers had not

2:56

yet attested that no documents were found.

2:59

It it also framed the entire stories though

3:01

Donald was being transparent

3:03

and cooperative, which I would

3:05

disagree with. Because this was

3:07

ordered by a judge, chief judge Berrow,

3:10

and a search like this has

3:12

been recommended by Trump lawyer

3:14

Chris Keis earlier, but Trump rebuffed

3:17

him I think Barrett wanted to be

3:19

the first out with his story, but think in the rush,

3:21

he might have missed a lot of key details. And

3:24

then Barrett went on MSNBC and posited that

3:26

this was the Department of Justice and Donald

3:29

working together hand in hand like Buddy is

3:31

to prevent having to execute another search warrant.

3:33

And that opinion of his,

3:35

I don't believe, was sourced And that's

3:38

where my questions come in. The Department

3:40

of Justice has already shown

3:42

that if it has evidence to get a search warrant,

3:44

it gets a search warrant. We saw on August

3:47

eight that

3:47

Mar a Lago. I

3:48

don't see this as the DOJ cow

3:50

telling to Donald to prevent another search.

3:52

Can you talk little bit about what's required

3:55

to search a person's property

3:57

and how finding evidence at Mar a Lago

3:59

doesn't really give law enforcement

4:02

the right to enter his other properties.

4:04

Absolutely.

4:05

Absolutely. There's a lot packed

4:07

into the story as you've you've detailed

4:09

well. So let's start with the very basics.

4:12

A search warrant is issued by

4:15

a federal judge only after the Department

4:17

of Justice information

4:19

and evidence to the judge in a request

4:21

for search warrant. that proves

4:24

that there is probable cause to believe

4:27

there is evidence of a crime located

4:30

at the at the location described

4:32

in the search warrant application. So

4:34

couple of things to to really focus on

4:36

here. DOJ is restricted.

4:39

They can only search the property

4:42

or or the business or whatever

4:44

it is that's specifically described

4:47

in the warrant application. And this

4:49

is important because they can only look

4:51

within that place. Let's say it's a house.

4:54

Okay. Let's say maybe it's a

4:57

an aged beach resort in

4:59

Florida that also serves as the

5:01

residents of a former president.

5:03

They're only allowed to look in

5:05

spaces and places within that residence

5:08

that could potentially contain

5:12

the items of evidence that

5:14

you've also described in the warrant. So

5:16

in other words, if you go looking for

5:18

a stolen car, you can't look in the refrigerator

5:21

because you can't park a car in a refrigerator. greater.

5:23

But if you go looking for Documents, because

5:25

documents can be contained anywhere, that

5:27

essentially gets you access to

5:30

any part of the property described

5:32

in the warrant and also any container

5:35

therein. So every every box can be

5:37

opened, every drawer can be opened So

5:39

it's with a search warrant, like the one we

5:42

know we had in Marlago, it really gives

5:44

the government great authority to look

5:46

in every space that could potentially find

5:49

documents. Now as to

5:51

the question of whether

5:53

or not the department is kind of,

5:55

you know, playing kind of cooperatively

5:59

with the Trump team in this in this

6:02

kind of follow on period after the initial

6:04

search warrant. I would say absolutely not.

6:06

That is not a

6:09

road that DOJ would go down.

6:11

I think it's highly likely that

6:14

they communicated to Trump's attorneys

6:16

that they thought there might be additional

6:19

documents located either

6:21

at Mar Lago or at other properties

6:23

controlled by Trump that weren't searched

6:25

with the initial August search warrant.

6:27

So that could be obviously Bedminster, Trump

6:29

Tower, and whatever other

6:31

properties he has. If

6:34

the department felt they

6:36

had an ironclad case

6:38

of probable cause to present a judge,

6:41

I am confident they would have done that

6:43

and they would have proceeded with a second search

6:45

warrant. So the fact that they never went and asked

6:47

for a second search warrant indicates

6:50

to me that they probably didn't feel

6:52

like the level of proof

6:54

that they had to support that weren't requests

6:57

was sufficient. Nevertheless, they

6:59

likely told Trump's team look you

7:01

should go look in these other places to

7:04

make sure that you don't also have

7:06

classified information or material

7:08

or even presidential records.

7:11

secreted away at other locations. Sounds

7:13

like Trump's lawyers beginning

7:16

with Keith made that same suggestion

7:18

to Trump, it was not received well if you believe

7:20

the reporting, but eventually they came around

7:22

to the idea to saying, hey, you know what? We need to

7:24

bring in our own team of independent attorneys

7:27

to go to each of these places and see

7:29

if there's anything there. and lo and behold

7:31

what they find sounds like a couple more classified

7:34

documents. Yeah.

7:35

And and also it's it's a

7:37

little, like, less of coming around.

7:39

Right? Because I believe that

7:42

Judge Beryl How asked the Trump

7:44

lawyer legal team to

7:46

attest to her in court under

7:48

penalty of perjury, obviously, that

7:50

all documents had been handed over.

7:53

And they said yes. And then

7:55

at that point, the Department of Justice was like, we don't

7:57

believe you. And so judge Beryl How was

7:59

ordered

8:00

them to hire this outside firm and

8:02

said, go forth and search other

8:04

properties. And so, you

8:07

know, I don't see this as any kind of a we're

8:09

working together like a great team to

8:11

to, you know, make all these things

8:13

happen. I'm I'm with you if they had

8:16

an ironclad evidence or at least probable

8:18

cause to put in an affidavit

8:21

and get it signed off by a judge to search

8:23

additional properties I think they would have.

8:25

And, you know, I wanna I wanna put the

8:27

shoe on the other foot a little bit here. That's

8:29

a good thing. These are criminal Documents

8:32

rights protected in the constitution. we

8:34

don't want to live in a

8:36

country where just because

8:39

we think you're a bad dude and

8:41

you've stolen stuff before, we can just

8:43

go into a different property and search

8:45

it. Any fruits of

8:47

that search would be I think easily

8:50

tossed out in court. And

8:52

we I think we need to kind of respect

8:55

the as much as, you know, if you don't like

8:57

Trump, I understand. But Why I think we have

8:59

to respect those constitutional protections

9:01

for criminal defendants? Donald Berwick: Well,

9:03

of course, right? You don't I'll

9:05

because your beach resortsresidents get

9:08

searched by the federal government, it doesn't mean that

9:10

you have now given up your right privacy

9:13

of your golf club in New Jersey or

9:15

your house apartment in New York

9:17

whatever else he has. So, yeah, you're

9:20

you've hit on a very important piece of

9:22

kind criminal jurisprudence. Another thing

9:24

I'd point out is there was this kind

9:26

of weird invitation by

9:28

the Trump team and some of the filings

9:30

in the Marlago case where they said, well, you

9:32

you know, we invite kind of DOJ come

9:35

in and search again in

9:37

a to conduct a search that would be over

9:39

seen by the Trump folks. That

9:41

is a non starter from day one. DOJ,

9:44

especially in a case like this, where every step

9:46

of the way is is

9:49

Yeah. There's no there's no, like,

9:51

consent here. Right? Everything is being

9:53

fought over. Every each of those fights

9:55

are are resulting in appeal, some of them to

9:57

the Supreme Court. So DOJ is gonna

9:59

try to keep this as black and white as possible.

10:01

If they have PC, they're gonna go in and get a search

10:03

warrant, and then they're gonna come, you know,

10:06

rushing into whatever location has

10:08

been described in that warrant, and they're gonna search

10:10

it in the to the full extent of the law.

10:12

They're not gonna come knocking the door and ask

10:14

for permission to come in, maybe sign a

10:16

consent, or you can look here, but you can't

10:18

look there. because the result of process

10:20

like that is just an incomplete search

10:23

it doesn't serve the department, and

10:25

it doesn't really it doesn't

10:27

really serve the defendant either. So it's gonna be

10:29

search warrant or nothing for DOJ. And

10:31

it looks like without a

10:33

new warrant, they strongly suggested that

10:35

the Trump team independently of their own

10:38

kind of volition go and look for additional

10:40

documents and the

10:41

important thing is that they found them. Bauchner:

10:44

Yeah,

10:44

and I'm I'm also, like,

10:46

I don't know if those

10:49

documents being in a

10:52

I almost said offshore storage facility. Storage

10:54

facility is, you know, separate from Mar Lago

10:57

that that made its way through Virginia

11:00

they were these boxes were in Virginia for

11:02

six months, which could maybe have an impact

11:04

on venue.

11:05

I don't necessarily know that that could

11:07

be easily proven as something done intentionally,

11:10

but it's certainly mishandling of

11:13

classified information. And I don't think while

11:15

we were in a hurry to pack up is really a defense

11:18

for for mishandling

11:21

either, you

11:22

know, on purpose willfully or inadvertently,

11:25

classified Documents. Can you talk a little bit about

11:27

because you've worked on handling

11:29

cases

11:29

before. Does

11:30

it have to be proven to be willful

11:33

and you have to have

11:35

knowledge of it, or does inadvertent mishandling

11:37

of classified, you know,

11:39

information also carry a penalty

11:41

with it? It

11:43

certainly can. You know, these these

11:45

cases are so fact specific.

11:49

I haven't seen all the mishandling cases

11:51

I've been familiar with quite honestly, haven't

11:53

seen many felony

11:56

mishandling cases go forward

11:58

against people who

12:01

remove documents or material in

12:03

a way that could have been not unintentional. It's

12:06

also possible to resolve mishandling cases

12:08

with a misdemeanor conviction and penalty

12:11

But again, you know, it's

12:14

the criminal route on these sorts

12:16

of interactions is typically reserved

12:18

for people who you know executed

12:21

some level of intentional judgment

12:23

that resulted in the material being

12:26

taken to or stored in a place that was not

12:28

authorized for classified you know, there's

12:30

all kinds of other resolutions to those

12:32

cases. Sometimes people if they've been

12:34

reckless

12:34

in their handling of things

12:36

or unintentionally mishandled

12:38

things. They can be disciplined at work. They can

12:40

lose their access to classified material. But

12:42

all that's none of that stuff are are those

12:44

aren't criminal results.

12:46

Andy, can you think of any other person

12:48

that we might know about that perhaps

12:51

recklessly or unintentionally mishandled

12:53

classified potentially classified information?

12:55

I'm not I can't think of anyone. Maybe

12:57

you can think of

13:00

I can think of one. That's

13:03

man, this is talk about PTSD. Okay.

13:05

This is episode two, and I'm having my second

13:07

PTSD moment. So hopefully, that's

13:10

a trend that doesn't continue across the podcast.

13:12

But you know, that was really

13:14

where all the heated debate took

13:16

place in terms of the resolution

13:19

of the Hillary Clinton email

13:21

and best stigation in which we famously

13:25

and very publicly announced

13:28

our position with the which

13:30

was I say we I mean, just

13:32

the FBI in terms of saying that we

13:34

would not go request a

13:36

an indictment of former

13:39

secretary Clinton based

13:41

on our investigative results because we

13:44

couldn't prove that element of intent.

13:46

We've and Jim Comey opined

13:49

to that, you know, he thought that she had

13:51

been reckless in the way that she handled her

13:53

emails and and some classified information

13:56

that had been that had traversed her

13:58

personal email network,

14:01

also a wildly controversial statement.

14:03

So but again, it comes down to that. That really

14:05

our investigative finding, which

14:08

was valid then and I think remains valid

14:10

now is that we were not able to prove

14:12

that those classified materials

14:15

ended up and Hillary Clinton's email

14:17

through any act or intentional act

14:19

by Hillary Clinton. It's a tough

14:22

thing to prove and very frequently becomes

14:24

really the nugget of these investigations.

14:26

Yeah. That and none of those were

14:27

actually marked classified. None of

14:29

those emails actually had classification markings

14:32

like we've seen in the Yeah.

14:34

I mean, huge differences

14:37

right between what was found in that

14:39

case and what we, you know,

14:41

what we know about the materials from the Mar

14:43

a Lago search. We could spend an entire

14:45

episode on that, maybe we should later. But

14:47

there's essentially no comparison between

14:49

these two. And which is why I think

14:51

to get back to your earlier point, AG, the

14:54

fact that we found two documents

14:56

or Trump's team found two documents in storage

14:58

facility that was part of the transportation

15:01

process that ultimately, you know,

15:04

started in the White House, packed up some stuff,

15:06

went to another warehouse in Virginia, ultimately

15:08

made it way to Florida to now we know another

15:11

storage location, and some

15:13

of that material ends up in Marlago.

15:15

Some in the present in the former president's office,

15:17

some downstairs in

15:20

some sort of closet with probably

15:22

like banquet equipment and

15:24

stuff. The fact that there's additional

15:27

materials in the storage facility,

15:29

it really reflects a little bit on

15:31

the chaotic and maybe

15:34

not very professional, not very effective way

15:36

this stuff was ultimately packed

15:38

up at the White House. Like, it

15:41

kind of opens that can of worms of were

15:43

these intentional decisions at

15:45

the White House as to what would be included in Trump's

15:47

boxes? Or was it just like every

15:50

piece of paper on the desk got scraped into

15:52

container and and sent south. So

15:55

in some ways, it almost opens up

15:57

additional questions that I think could be

16:00

actually very complicated for

16:03

the prosecution to answer

16:05

if, of course, this case goes

16:07

forward to a criminal prosecution.

16:09

I think the morselam dunk is the subpoena

16:11

and then the attestation that everything had

16:13

been handed over and thirty eight documents

16:15

handed over in a double RedWeld envelope, and

16:18

then they're having been video

16:20

showing boxes moving around. And then the

16:22

search warrant showing more More

16:24

documents -- I think about that.

16:26

-- don't think these two new documents really

16:29

are are any sort of a significant

16:31

plus for the investigators, they

16:34

have plenty to work with that they found at Marlato.

16:37

Yeah.

16:37

And just another little part here on

16:39

the part of the classified We'll

16:41

talk about the non classified documents in a second.

16:44

But with the with the classified documents, we learned

16:46

this week that the ODNI has

16:48

concluded its initial risk assessment

16:50

into the Mar a Lago Documents, and

16:52

congressional briefings are being scheduled. A

16:55

rep Mike Turner of Ohio said

16:57

this to face the nation. He said we're scheduling these briefings.

17:00

Andrew, you've been through these. What does a briefing

17:02

like this look like? What does it consist of? And

17:04

can Congress answer questions

17:06

about can they talk about these kinds of briefings

17:09

publicly without revealing classified

17:11

information? Howard Bauchner:

17:13

Sure, so the answer to your last

17:15

question depends on the answer to your first question.

17:18

So if the briefing is intended

17:20

for an audience on the hill

17:22

that is classified and the brief is scheduled

17:25

as a classified briefing,

17:28

no, the members cannot talk about it

17:30

after the fact. So imagine if briefing

17:33

is scheduled for, let's say, it's gonna take place in

17:35

front of the intelligence committee, either

17:37

in the House or Senate side. Those

17:40

committee members all have requisite

17:42

clearances in a briefing before

17:44

them. You could actually talk about the

17:46

specifics of individual documents

17:49

that were found in

17:52

as a result of a search. But

17:54

at the end of that briefing, the members cannot

17:56

then, you know, walk outside the

17:58

the briefing room and describe

18:01

what they saw to the huddled masses

18:03

of reporters who who stand there waiting for

18:05

those kind of comments. if the

18:07

briefing is to another group in which

18:09

some of them have clearances and some don't,

18:12

it would likely be scheduled as

18:14

an unclassified briefing. case, the DNI

18:17

folks will come in, and they'll basically describe

18:20

in general terms the sorts of things

18:22

that were found. members are

18:24

still not supposed to immediately go out and talk about

18:26

that to the press because it's an ongoing criminal investigation

18:29

and you

18:31

know, they they usually

18:33

provide even unclassified briefings at what

18:35

they call for official use only sort

18:37

of circumstances. But

18:39

that stuff has a

18:42

history of being shared with

18:44

the media in in some degree. So

18:46

it really comes out of who's gonna be briefed and whether

18:48

it's gonna be classified or unclassified briefing.

18:50

Howard Bauchner: Yeah,

18:51

and I think that it's Mike Turner that's

18:53

talking about this I don't he's not

18:55

in the gang of 8II didn't look

18:57

up to see whether Harry was on the Intelligence Committee or not,

18:59

but it it seems like he's part of this briefing,

19:01

then at least

19:02

it's not a gang of eight briefing.

19:04

But, you know, who knows? We'll see. Yeah,

19:06

we'll see. And, you know, another complication

19:08

here is the fact that it's part of an ongoing criminal

19:10

investigation. So DNI folks are gonna

19:12

try to stay away from talking about anything

19:14

having to do with the legality of these things

19:16

being in Marlago or how they might impact

19:19

a potential prosecution. They're not even gonna opine

19:21

on that stuff. they're simply gonna say,

19:23

this is the Documents, here's what it says,

19:25

or here's a description of what it says,

19:28

and here's why we think that

19:30

it that it's storage

19:32

at a place like Mar Lago might be a danger

19:34

to national security or maybe not. Maybe

19:36

the things in every single Documents

19:39

so old, they're no longer relevant. They don't think

19:41

it's a danger to national security. I

19:43

find that almost impossible to believe,

19:45

but we have to kind of keep our minds open to both

19:47

sides. And

19:48

and we also know that because the classified

19:50

documents because of an eleventh Circuit

19:52

victory,

19:53

not this most recent one, but a previous one,

19:55

We know those classified documents did not have to be

19:58

handed over to a special master for review

19:59

or given to the Trump team,

20:02

which think is what they they seem to really

20:04

want

20:04

that information. They

20:06

wanted they filed another thing to unseal the

20:08

affidavit

20:09

that got them to search warrant to the the redacted

20:11

parts.

20:12

they did that recently with judge Cannon.

20:15

I I feel like she ignored that request.

20:18

And and, you know, they

20:21

didn't get turned over to

20:23

the special master for review because that would compromise

20:26

things. That would be part of a risk assessment and,

20:28

you know, they were able to fight and say, hey,

20:30

this risk risk assessment is too important.

20:32

We can't interrupt We're gonna continue doing

20:34

it. You can't have the

20:35

classified documents handed over to,

20:38

you know, Jim trustee.

20:39

and and and the special

20:41

master. So I think this

20:43

would be a good time to pivot from from

20:45

that information about the classified documents

20:48

to what now is going

20:48

on with the non classifieds. Howard Bauchner:

20:51

Sure, sure. And, you know, I think, you

20:54

know,

20:54

to remember, the original Judge

20:56

Cannon order was so broad

20:58

and so vague that even DOJ

21:01

walked away not really clear as

21:03

to whether or not the order would prohibit

21:05

the DNI folks from conducting

21:07

their risk assessment as to whether or not,

21:10

you know, what sort of damage may have been done by

21:12

the mishandling of this stuff.

21:14

Of course, she then said in a follow-up,

21:17

oh no, DNI can go forward, but FBI

21:19

can't use or conduct any investigation

21:21

off of the classified documents That

21:24

was the first appeal to the eleventh Circuit,

21:26

which got the classified stuff back in

21:29

DOJ and FBI's hands. It

21:31

is it has been strange though, AG,

21:33

that the Trump team

21:35

seems to be really focused on just trying

21:37

to understand what they had.

21:40

So they had all this classified stuff. It's

21:42

all over his office. It's in boxes in

21:44

Florida's closet. It's in desk

21:46

drawers that he's clearly opening and

21:48

going into and even they are

21:50

not sure of the extent of all the classified

21:53

that was seized from Mar a Lago.

21:55

But nevertheless, we had

21:57

the victory just a

21:59

week or so ago in the eleventh circuit

22:01

that basically eliminated the

22:04

process of the special master

22:06

reviewing non classified documents

22:09

and making determinations about whether or not

22:11

those documents should be withheld

22:14

from the prosecutors because they

22:16

were client privilege or subject to

22:18

executive privilege, things like that.

22:21

So in the in the aftermath of that victory,

22:23

We saw this week that DOJ submitted

22:25

a motion to extend the deadlines in

22:28

the special master case to

22:30

judge Canon pending an issuance of the eleventh

22:32

circuits mandate basically, what this means

22:34

is

22:35

in that

22:36

civil case that Donald Trump

22:38

filed in front of judge Aileen Cannon,

22:41

which has been just kind of defangmed

22:44

by the eleven circuit. There

22:46

are still deadlines

22:48

and essentially due dates and the one that's

22:50

coming up and is likely most significant to

22:52

both sides is the report by

22:55

the special master to Judge

22:57

Cannon. So that date

22:59

is likely to come up before

23:02

the eleventh circuit can officially write

23:04

up and issue their guidance to

23:07

judge Canada about how they want that case

23:09

dismissed. So it's

23:12

a it's a really odd situation where

23:15

you know nothing's gonna come up this case we

23:17

know from what the court has already said that the

23:19

case is going to be dismissed. And now we

23:21

have DOJ kind of stepping in and trying

23:23

to stop all proceedings immediately

23:26

So it doesn't even inch forward any

23:28

further before the eleventh circuit

23:30

gets chance to blow it up.

23:32

So her minute order, she

23:34

issued Recently about

23:36

this, she actually sided with the Department of

23:38

Justice because basically the eleven circuit

23:40

needs a few days to issue a mandate to judge

23:42

Cannon to dismiss Trump's case asking for

23:44

a special master. And DOJ

23:47

asked her to pause all those deadlines like you said

23:49

in a special master review to give the eleven

23:51

circuits some time to do that. So they're kinda saying

23:53

there's no need for us to do any work in special

23:56

master review because the higher court just said you didn't

23:58

have jurisdiction to appoint him in the first

23:59

place. So Why would Donald

24:02

oppose that just to be contrary?

24:04

Well, that's always good guess.

24:07

It's a pretty contrary legal team he's

24:09

he's got over there. But my guess

24:11

here is really comes down to

24:13

a factor of time. So

24:16

Trump, likely and Trump's

24:18

lawyers, likely want to

24:20

see what the special master

24:22

would have concluded about those Documents,

24:25

whether he would have found executive privilege or

24:27

attorney client privilege and how even things

24:29

like how he would have described those

24:31

documents in any official

24:33

filings that he would make in front of the judge,

24:36

even though that case we know is going to

24:38

get dismissed, the judge's

24:40

comments and findings and descriptions of

24:42

those documents would make it on the record.

24:44

And my a suspicion is

24:47

that the Trump legal team is thinking

24:49

that those sorts of comments might

24:51

be helpful to them later. So

24:54

If Trump is charged in this case,

24:56

then one of the things that will happen is he'll

24:58

get an opportunity to challenge the evidence

25:01

that the government is using against him in

25:03

the course of those challenges, it

25:05

might be helpful to him to have had

25:07

a former federal judge saying

25:09

to this judge Cannon on the record

25:12

even in a case that's been to missed at that

25:14

point, that he found that there was,

25:16

you know, the stuff was covered by privilege

25:18

or or what have you. In the

25:20

same way, DOJ doesn't want that.

25:23

They don't want any straight fire, any

25:25

extraneous comments, any, you know,

25:27

kinda pseudo judicially sounding

25:30

sort of rulings on the record in

25:32

this case that might cause

25:34

problems for them. So for DOJ,

25:37

there's absolutely nothing to gain from

25:39

even hearing what the special master has

25:42

to say about the work that he has done

25:44

thus far. they're trying to kind of just cut

25:46

it off at the past. Howard Bauchner: Yeah,

25:47

that makes sense to me. I

25:50

hadn't thought of that then That's

25:52

why you're here, Andrew. So, you

25:53

know, we can dig into those things by

25:56

himself.

25:56

So to wrap up the

25:59

documents portion of

25:59

the show, we have more news

26:01

from this week.

26:02

apparently, according to the Washington Post,

26:05

former president Trump's political action committee

26:07

is paying legal bills for some key witnesses. The

26:10

Washington Post goes on to say the witnesses include

26:12

Kash Patel who's testifying in front of the grand

26:14

jury and is key to Trump's defense. Dan

26:17

Scavino, who also recently testified the

26:19

grand jury, and Walt, not a

26:21

a potentially critical prosecution witness

26:24

according to these people, who, like others,

26:26

interviewed, spoke on the condition of anonymity.

26:29

Now, Nada, we know as a Trump valet,

26:31

he told FBI agents he was instructed by

26:34

Donald himself

26:35

to move those boxes at Mar Lago even

26:37

as government investigators were trying to recover classified

26:40

documents at the private club.

26:41

So we all know who

26:43

Cosh Patel is. Just wanna

26:45

remind everybody. Real quick, he plead

26:47

the fifth to some of the questions during his first testimony.

26:50

The DOJ went to judge girl how and

26:52

I've never seen this before, but they objected to him

26:54

to being able to plead the fifth. And

26:57

she said, no. The fifth is broad

26:59

people can use it if if if nothing

27:01

you're asking will implicated him a crime in

27:04

him in a crime, then you need to give him

27:06

limited

27:06

immunity. So they did.

27:08

So what Andrew,

27:12

I I don't understand how I

27:14

mean, I guess it's not illegal. for

27:16

someone to pay the legal fees of

27:18

people who could potentially testify

27:22

against him or negatively about him

27:24

but it sure seems like there could be a

27:26

heavy conflict of interest. What are some of the remedies

27:29

for DOJ on this? Yes.

27:31

This is a really interesting question, I

27:33

think, because You have to

27:35

begin with that assumption that

27:38

it is neither illegal nor is it

27:40

unethical. And footnote

27:42

here, you know, lawyers have to kind of keep

27:44

their eye on both of those issues at all

27:46

times because obviously they don't wanna do anything

27:49

illegal. They don't want their clients to do anything illegal.

27:51

But they also if they're involved in doing

27:53

something unethical, that could cost them their

27:55

law license. So they

27:58

follow very closely the attorney code

28:00

of ethics. So in this case, a

28:02

third party paying the

28:05

the defense expenses or the

28:07

lawyer's fees of someone else

28:09

is neither illegal nor is

28:11

it a violation of the attorney ethics. And

28:13

you can see, like, in situations like,

28:16

let's say, you know, you you work for a

28:18

company and somebody

28:20

sues that company for, you know,

28:22

in civil court for whatever reason. and

28:24

you as an employee, the company gets get

28:27

subpoenaed to come in and be deposed,

28:30

you know, give information under oath.

28:34

if your company pays for your attorneys

28:36

an attorney to represent you in that deposition,

28:39

that's not illegal or inappropriate

28:41

in any way. So there are many,

28:44

many examples you can come up with where it's fine

28:46

for a third party to pay for someone else's

28:49

legal expenses. where it gets

28:51

dicey is why

28:54

is the third party paying for someone

28:56

else's attorney expenses. If

28:58

they're making that payment for the purpose of controlling

29:00

your testimony or making sure that

29:03

you don't, you know, say or do anything

29:05

that might inculcate the third party.

29:07

then that is a violation of

29:09

the attorney ethics and could also depending

29:11

on the circumstances be illegal. So

29:13

in this case, you have Donald

29:16

Trump paying the legal

29:18

fees of people who are testifying

29:21

in grand jury investigations or, quite

29:23

frankly, in front of January committee about

29:26

matters that could affect Donald Trump

29:28

personally. So this is a very, very

29:30

close call. it reminds

29:33

me a lot of situations we

29:35

ran into like this when I was doing organized

29:37

crime work in New York. So

29:39

often, you know, you'd have a bunch of lower

29:41

level people arrested

29:44

as part of an investigation. And let's say

29:47

the boss of the family comes in and

29:49

provides them all with lawyers. And

29:51

the reason the boss of the family is doing that is because

29:53

he doesn't want those people to cooperate. He doesn't want

29:55

them to provide truthful information to government. He doesn't

29:57

want them to say anything that could get the boss.

29:59

in trouble. In cases like that,

30:02

occasionally, one of those defendants

30:04

would make it known either directly or

30:07

through a family member that they didn't

30:09

want the lawyer who the crime boss

30:12

had appointed for them because they wanted

30:14

to try to make their own situation better

30:16

by cooperating. It's a

30:18

really sensitive thing and what typically

30:21

ends up happening is the judge has

30:23

to sit down and question that person

30:25

In the example I've given, it would be a criminal

30:27

defendant, but in any other case, it could just be

30:30

a random witness who's been asked to testify.

30:33

And to find out, like, do they really

30:36

want that attorney? And is that attorney legitimately

30:38

representing their interests? Or is

30:40

that attorney really in a kind of shadowy

30:42

way representing the interests of the

30:44

person who's paying the bill. And

30:47

that's where this question of

30:49

who Trump and his legal team are

30:51

paying for? Why are they paying

30:53

for those people? Do those people really want

30:55

that representation or not? And what's

30:58

what's the purpose for kind of providing

31:00

them with representation?

31:01

Yeah. And it reminds me of the Cassidy Hutchinson

31:04

situation. she was not forthcoming

31:06

she was not forthcoming when she was be when

31:08

her attorney was bought and paid for by

31:10

Donald Trump and paid for by save America pack. And

31:12

then when she decided this, I don't think this isn't

31:15

my best interest and switched attorneys,

31:17

she

31:18

but, you know, was able to testify

31:20

fully

31:21

and truthfully in front of the committee. And I

31:23

think that that made a a huge difference.

31:25

And and so you know, that's

31:27

kinda why I'm wondering how

31:30

this might influence that. And there's

31:32

somebody who was quoted in the Washington

31:34

Post, Andrew named Jim Walden,

31:36

Yes. Can you tell us who

31:39

he is and and what he said? Yeah.

31:41

Sure. I know Jim Walden well.

31:43

He was assistant US attorney

31:45

in the eastern district of New York back in

31:47

yearend times when I was an agent

31:50

in New York City. He actually

31:52

handled bunch of big organized crime cases

31:54

for a a very close friend of mine. He's

31:56

a great attorney, definitely in

31:58

a already on these matters. I'm sure this is

32:00

something that he's run into, you

32:02

know, many times. And Jim

32:04

said, in the Washington Post, the payment arrangement

32:07

raises concerns about whether the reimbursement of

32:10

legal fees may influence what the witness says

32:12

and does. And now Jim also

32:14

pointed out that if DOJ

32:16

officials have ethical concerns, as I mentioned,

32:19

they could ask a judge to question the

32:21

clients about whether or not they're certain their interests

32:23

are being protected. Jim went on

32:25

to state, it looks like the Trump political

32:27

action committee is either paying for the silence

32:29

of his witnesses for them to take the fifth

32:31

or for favorable testimony. These

32:34

circumstances should look very suspicious to the

32:36

justice department, and there's a judicial mechanism

32:38

for them to get court oversight

32:40

if there's a conflict. So think What Jim is saying

32:42

there is like, yeah, there could be an

32:44

issue here. DOJ is very capable

32:46

and experienced at navigating these

32:49

somewhat strange waters. And I

32:51

I agree with that would fully expect that they're

32:53

keeping a close eye on it. Yeah.

32:54

It's also of note, by the way, that the SafeAmerica

32:56

pact is the subject of a federal investigation

32:59

for its fundraising tactics around false claims

33:02

the election was stolen.

33:03

I'm wondering if that now is under the purview

33:05

of special

33:06

counsel Jack Smith, and separately, federal

33:08

investigators have issued subpoenas seeking details

33:10

about the formation and operation of the pack

33:13

as part of the DOJ's probe of

33:15

efforts by Donald and his allies to reverse

33:17

the result of the twenty twenty election, which I think

33:20

that right there puts it squarely within the

33:22

purview. of of special counsel.

33:25

There's

33:26

no question. Right? So the pact has

33:28

kind of like exerted themselves into this

33:31

investigative scope by making

33:34

these payments to witnesses who

33:36

are providing key testimony, not only

33:38

likely if if they haven't already, but

33:40

to the federal grand jury, but also appearing

33:43

in other places. Right? To the grand jury, maybe

33:45

the grand jury in Georgia or the or

33:47

or responding to legal

33:49

process out of some of the New York investigation. So

33:52

you could certainly see how a

33:55

a broad but reasonable read

33:57

of Jack Smith's

34:00

authority as special counsel

34:03

could certainly include taking

34:05

a look at these payments by the PAC

34:07

or other pack activity. And as you mentioned, we know

34:10

that there have been some questions raised about

34:12

whether or not their fundraising around

34:14

January sixth could constitute some

34:16

sort of a fraud. Yeah.

34:18

And I know that the January sixth Committee was

34:20

trying to subpoena information from Salesforce

34:22

about emails that went out from the pack.

34:24

And we also know that Rhonda McDaniel

34:26

was partly in charge, and the R and C was

34:28

partly put in charge of finding and gathering

34:31

some people who would potentially be

34:33

fraudulent electors, which will We'll

34:35

talk about that after this quick

34:37

break when we get into the second half of the show,

34:39

which will cover the January sixth

34:42

part of the investigation

34:43

by special counsel. everybody stick around,

34:45

we'll be right back.

34:55

Welcome back to Jack. AG, we've

34:57

covered the Mar a Lago documents news of the week.

34:59

So let's shift over to the sprawling

35:01

investigation into the events leading up

35:03

to January sixth and really everything

35:05

that followed. Yeah,

35:07

I have some more questions about the scope with

35:09

regard to the one sixth arm of the investigation

35:11

because it's way more complex than the

35:13

so

35:13

far seem so far, seemingly open

35:15

and shut Documents probe. That could get complex.

35:17

Right.

35:18

So far, I can see how

35:20

the Penn's pressure

35:20

campaign falls into the scope. along

35:22

with the fraudulent elector scheme, which

35:24

is

35:25

mostly what Funny Willis the Fulton

35:27

County DA is focusing on there. and

35:29

the interference into the Georgia election along

35:33

also the possible seditious conspiracy

35:36

if there's a connection between Trump and the violence

35:38

at the cap but it'll either directly like through

35:40

incitement to insurrection or indirectly

35:43

whether Trump can be considered part of the oathkeepers

35:45

and Proud Boys conspiracies. And we

35:47

touched on this briefly in episode one, but I'm curious

35:49

about the January sixth committee, preparing

35:52

to make possible criminal referrals to

35:54

the Department of Justice, Andrew,

35:57

would all the one six findings be submitted

35:59

to special counsel or would they filter through

36:01

main justice

36:02

to be doled out to the appropriate offices,

36:04

do you think? Well,

36:06

typically, the way a congressional referral

36:09

to DOJ would take place is

36:11

the committee to decide exactly what

36:13

they wanted to refer and

36:15

they would communicate that to the AG.

36:18

Now here since we know that

36:20

there's already a special council who is looking

36:22

into the same stuff, What I

36:24

fully expect would happen here is that

36:26

AG Garland would then take that referral and

36:28

simply hand it over to

36:30

Jack Smith to make the decisions about

36:33

what he thinks of the referral and and what

36:36

parts he might wanna follow-up on.

36:39

But, really, all of that then, Ray, is this the big

36:41

question of, like, what's gonna be

36:43

in this referral? And honestly, there's

36:45

no, you know, there's no

36:47

there's no agreed upon format for this. They

36:50

could essentially take their entire

36:52

report of everything they found and done

36:54

and hand that over to the AG and say, therefore,

36:57

we recommend that you pursue

36:59

criminal investigations of the following

37:02

people for the following reasons, or

37:04

they could do something more vague,

37:06

just saying, you know, our investigative

37:08

efforts of raise the question of

37:10

whether or not, you know, former president

37:12

Trump engaged in obstruction of justice or

37:15

or obstruction of congress or or what have

37:17

you. So we really have to

37:19

kind of wait and see. I

37:22

think that the most important

37:24

thing to remember here, AG, is that

37:26

at the end of the day, The

37:28

referral really doesn't mean

37:30

that much. It is not binding

37:33

upon the department in

37:35

any way. Right? So they're they

37:37

make their referral DOJ could throw it out

37:40

the window and say, you know,

37:42

we don't care comb your hair and then just take no

37:44

action. That's entirely entirely

37:46

possible. That actually happens all the time.

37:48

Right? Members not necessarily committees,

37:51

but members are constantly writing letters to

37:53

DOJ about things that they don't

37:55

like or curious about and demanding

37:57

investigations be started up and, you

37:59

know, many of those that

38:01

DOJ does not take up.

38:04

The second thing to remember

38:06

is, of course, that DOJ's already doing it,

38:08

and they've been doing it for a long time, doing

38:10

it Sounds like pretty well. They've really

38:12

turned up the volume and the intensity on this

38:14

by bringing in Jack Smith as special counsel.

38:16

So it's I think unlikely that

38:20

the referral will initiate

38:23

new investigative activities not already going on.

38:26

What's way more significant here is

38:28

what they hand over with the referral.

38:31

What DOJ really needs is

38:33

access to all of the evidence,

38:35

all of the transcripts of the interviews, to

38:38

have a complete and very detailed understanding

38:40

of exactly who the committee talked to

38:42

and when and under what circumstances did

38:44

those people interact

38:46

with the committee and who was represented by counsel

38:48

and who wasn't. Those are all

38:50

details that will make that will

38:52

affect

38:54

how well or not well, those

38:56

witnesses interact with DOJ.

38:59

So in other words, all

39:02

of that stuff, here's just one way to think about that.

39:04

All of that stuff, let's say, indictments

39:07

come in the one six

39:10

cases against, you know, fill

39:13

out your name of players later. Those

39:17

defendants, whoever they are, will

39:20

likely be entitled. They'll all be entitled

39:22

to discovery. That's part of the federal rules. That's part of

39:24

your constitutional rights. All

39:26

of this f all this work that Congress did,

39:29

a lot of that will likely fall within

39:31

the scope of things that the defendants are entitled

39:33

to. So DOJ can't hand over

39:35

for instance a transcript of an

39:37

interview of a witness, hand

39:39

that over to a defendant. If there's

39:42

exculpatory information in that or there's

39:44

information in that that undermines the value

39:46

of the witness. DOJ really needs to know

39:48

that before they go forward. So

39:50

there's a lot of very kind

39:52

of detailed legal implications as

39:54

to all the work that's already been done by

39:57

Congress. That's imperative that Congress shares

39:59

that stuff

39:59

with DOJ so they can handle

40:01

it correctly, but also

40:03

make good strategic decisions

40:05

going forward based upon knowing that the

40:07

full universe of information that's out there

40:09

about these witnesses.

40:11

And that's an important myth. I also

40:13

wanted to to kind of try

40:15

to dispel. I see a lot of

40:17

folks saying, oh, DOJ just

40:18

doesn't wanna do the work. They're having the one committee

40:20

do the work for them, and that's why they want all of their

40:23

work product. And

40:24

I don't see it that way.

40:26

That's definitely not the case. Because of what

40:28

you just described,

40:29

I I mean, first

40:31

of all, if

40:33

we think back to

40:34

the Durham

40:36

indictment

40:37

of Sussman,

40:39

and we see that Jim Baker, who

40:41

was the star witness for the

40:43

Durham side, was

40:46

easily impeached because he told three different

40:48

things, not lies, but just

40:50

had three different sets of testimony, some

40:52

of it conflicting to the inspector

40:54

general, to congress, and to the grand jury.

40:57

And

40:58

I don't think that Durham was prepared for

41:00

those inconsistencies. And if he was, he just

41:02

went forward anyway for political reasons.

41:04

But what we have to make sure happens

41:07

is that all of that information is

41:09

read in and understood so that any

41:11

conflicts of any witnesses that

41:14

could be impeached at trial if they've

41:16

had inconsistent testimony from,

41:18

you know, what they told the Congress was different from what

41:20

they said to the grand jury. that has

41:22

to be addressed

41:23

before you go to trial, before you put

41:25

your witnesses together, before you,

41:27

you know, come up with how you're going to

41:29

question your witnesses. That stuff has to

41:31

be resolved first. There's an absolutely no

41:33

way that DOJ could or should

41:35

go forward with any indictments of anyone

41:38

without knowing what they've said to

41:40

an inspector general, what they've said, like,

41:42

because we know the inspector general opened up investigations

41:44

into the Department of Justice and likely

41:46

questioned Rosen and Donna

41:48

Hu and you know,

41:51

Clark and all those people. And

41:53

so we have to have consistent testimony between

41:55

the inspector general. What happened in Congress

41:57

and what happened

41:58

in the grand jury in order to

41:59

to have a concrete case

42:02

to go forward so you don't get blown

42:04

up like Durham did at trial. That

42:06

is absolutely right. And, you know, first

42:08

of all, as a threshold matter, and I'm

42:11

happy to point out things that DOJ does

42:13

poorly or wrong, but laziness

42:15

is not one of them. There's

42:17

not a attorney worth their weight and

42:19

salt and certainly not a DOJ attorney

42:22

who would ever go forward with

42:24

a case that relied on a particular witness

42:26

without extensively interviewing

42:30

and and fact checking

42:33

and vetting that witness directly.

42:35

And part of that process would be consuming

42:37

every single sworn statement that witness

42:40

provided to anyone else about the

42:42

same matters. They're in line why

42:44

they need to hear, you know, read those transcripts

42:46

from the IG from the January

42:48

sixth committee. It's a huge

42:51

it's actually a massive additional burden

42:54

on the DOJ investigators and attorneys

42:57

to have this enormous tranche

42:59

of interviews and material out

43:01

there that were created by Congress.

43:03

It's a huge burden. It also puts it

43:06

opens up some significant potential

43:08

liabilities or weaknesses for

43:11

those witnesses. If they weren't interviewed

43:13

well, if their statements

43:16

weren't like clarified will and things

43:18

like that, it could be a real problem for DOJ.

43:20

Howard Bauchner: Yeah,

43:21

and and speaking about some challenges that

43:23

DOJ might face. Let's talk about

43:26

intent for a second because it's one of the things

43:28

that makes this case a bit tougher to prosecute than

43:30

the documents case or at least the obstruction

43:32

in the documents case. There's a boatload of evidence

43:35

out in the public already, thanks to the January

43:37

six hearings that goes toward intent

43:39

with regard to January six, but this week,

43:41

Donald wrote on truth social which

43:44

is also under federal criminal investigation

43:46

for how they were funded. He

43:49

wrote that we should terminate provisions

43:51

of the institution so we could install him again as

43:53

president. Now, given what we learned

43:56

about and what you taught me, Andrew,

43:58

about totality of evidence

43:59

in the Mueller investigation,

44:01

Could not be seen as Donald understanding

44:04

that in order to be president, he

44:06

would have had to have bro broken some laws.

44:09

And I'm wondering if that statement could be used

44:12

not as a smoking gun because there's

44:14

plenty of those out there already, but

44:16

added on to the pile of evidence to show

44:18

intent And is that why do

44:20

you think? Is that why he walked it back the next

44:22

day? Like, his lawyers were like,

44:24

dude, you just admitted that it's against the law for

44:26

you to be president?

44:27

What are your thoughts

44:29

on on that being used as evidence?

44:31

I just saw it with

44:32

a with a Bates number on top

44:34

as it as it came across my feet.

44:37

Yeah. I mean, where

44:39

do you even start with this one other than

44:41

just wow. Right? And

44:44

there are so many reasons why he

44:48

likely and should have walked that back.

44:50

It's hard to really pin down exactly or get

44:52

inside his head certainly, which is the place I

44:54

do not wish to be. So

44:56

I can't say exactly why I walked it back.

44:59

But to the question of What

45:02

does this help us prove in terms of

45:04

criminal case? I think

45:06

the comments as as

45:10

completely bizarre and maybe even

45:12

offensive certainly to

45:14

people who who understand and

45:17

value the constitution. As

45:21

crazy as they were, I'm

45:23

finding it hard to imagine a scenario in which

45:25

those comments would be direct

45:28

proof of intent for

45:30

a specific crime. Right? So

45:32

we know that every crime is

45:35

basically comes down to you have to prove two

45:38

two things or as they teach

45:40

every first semester a law student.

45:42

And actus Reyes or acts

45:45

in men'sraya, which is the mental

45:47

intent necessary to be for those acts

45:49

to be criminal. So depending

45:51

on the on the statute that we're talking about,

45:55

that intent that the the level

45:57

and the specificity of intent that you have

45:59

to be able to prove is prosecutor is

46:02

different. So in other words, three seventy

46:04

one, which is the statute that makes it a crime

46:06

to defraud the United States, says if

46:08

two two more persons conspire either

46:10

to commit any offense against the United States

46:12

or to defraud the United States, and

46:16

one of such persons commits an

46:18

act to affect that conspiracy. See,

46:21

and then each is fined under the title or prison,

46:23

not more than five years. Blah blah blah. So

46:25

you have to intend to

46:28

commit an offense against the United States government

46:30

or to defraud the United States government. So that's gonna

46:33

take a pretty specific

46:35

showing of what

46:37

was in your mind at the time

46:39

you made that agreement and those acts

46:42

were taken. So his

46:44

abandonment, I

46:47

guess, recommendation to the

46:49

destroyer, remove

46:51

of the constitution certainly,

46:53

I guess, from applying to him. don't know that

46:55

it would would suit suit the

46:57

day in terms of approving the crime. But what

46:59

it does do is that it is incredibly

47:02

powerful descriptor

47:05

of his kind

47:07

of mental state generally

47:10

the lengths that he's willing to go to.

47:13

It's certainly a comment that makes him

47:15

look unfit

47:17

to be president of the United States. And

47:19

there's any number of reasons why

47:21

prosecutors might wanna try to get

47:23

those either that one or

47:25

many of the other and saying statements

47:27

he's made over the years in

47:31

front of a jury in a criminal trial. So

47:33

every time he goes out and does something like

47:35

this, He is definitely making

47:38

his own legal play more

47:40

perilous and making the job

47:42

for his growing list of

47:44

attorneys a lot tougher. Yeah.

47:46

Yeah.

47:47

And then we also got some news. Finally,

47:49

we'll wrap up with this. There's there's a push now from

47:51

special counsel obviously to obtain direct evidence

47:53

in the fraudulent elector scheme. We saw that

47:55

in the form of multiple subpoenas you mentioned at

47:57

the top of the show to key election

48:00

officials in battleground states

48:03

And I think that the Washington

48:05

Post is the one who covered

48:07

this story. Can you tell us what the Washington Post

48:10

had to say about this?

48:12

Yeah, sure. According

48:14

to the Washington Post, and

48:17

I quote here special counsel Jack Smith and sent

48:19

Grand Jerry subpoenas to local officials in Arizona,

48:22

Michigan, and Wisconsin. Three states that

48:24

were central to president Donald Trump's failed

48:26

plan to stay in power following the

48:28

twenty twenty election, seeking any and all

48:30

communications with Trump, its campaign,

48:33

and a long list of allies.

48:36

And we also know that the request

48:38

for records arrived in Wisconsin

48:41

I'm sorry, Wisconsin Arizona

48:43

and Michigan late last week, and in Milwaukee

48:45

on Monday, they are among the first known subpoenas

48:48

issued since Smith was named special

48:50

counsel last month. And

48:53

we know that all

48:55

of them are, of course, focused on

48:57

the investigation of January

48:59

sixth and the attack of the capital. I

49:02

think the key thing to focus on

49:04

here, AG, is

49:06

that these subpoenas cut right to

49:08

the heart of that potential offense

49:11

that I mentioned just a minute or so ago,

49:13

and that is a conspiracy to

49:15

defraud the United States. you know,

49:17

we know just from watching the hearings of

49:19

the January sixth committee that that

49:21

effort with the fake electors is at the

49:23

heart of not just Trump,

49:26

but the team around him. So you're talking about people

49:28

like John Eastman and maybe Rudy Giuliani

49:30

and others to concoct a

49:33

fraudulent scheme that

49:35

would basically steal the

49:37

election from Joe Biden and

49:39

from the American people and

49:41

allow on Donald Trump to remain in power

49:44

even though he lost the election. So

49:47

it does not surprise me at all that

49:49

Jack Smith and his team is going out

49:51

there and basically going after

49:53

the evidence of how that

49:55

agreement those agreements or those conspiracies

49:58

got started, who was in them? What

50:00

communications do they have? Because communications

50:03

between co conspirators are often

50:05

some of the most powerful evidence

50:07

of agreement. Right? for that conspiracy, you

50:09

have to have an agreement and an act. The

50:12

communications are key to proving agreement

50:14

typically. So Not

50:16

surprised you're doing it. We know that the January

50:18

sixth committee went down the same road. You're gonna

50:20

see a lot of duplication of effort

50:22

here. The special council kind of

50:24

talking to people that already appeared in front of the January

50:27

sixth committee, dropping subpoenas on

50:29

people and institutions to grab

50:31

some of that same evidence. but this is something

50:33

they have to do. DOJ has got to acquire

50:35

that evidence through official channels

50:37

with legal process in order to be able

50:39

to use it later in financial

50:42

prosecution. Howard Bauchner:

50:43

Yeah, Andrew, a lot folks are

50:45

asking why have they waited

50:47

so

50:47

long to

50:48

well, I wanna say this. I wanna ask

50:50

this question. In light of the fact that before

50:52

the sixty day pre election blackout

50:55

window, like fifty or sixty

50:57

subpoenas were sent out to the actual fraudulent

50:59

electors themselves. And now

51:01

these subpoenas are being sent out

51:03

after the appointment of special counsel

51:06

to the election officials who

51:08

may be less recalcitrant than

51:09

some of the actual fraudulent electors themselves.

51:12

But a lot of folks are asking why now? Why didn't

51:14

you subpoena these guys last year?

51:16

and I was wondering if you could maybe provide

51:18

some sort of insight

51:19

as to why it has taken so long

51:22

for these subpoenas to now just

51:24

now kind of reach

51:25

these key election officials in these

51:27

battleground states? It's

51:29

a really good question, AG. And

51:31

it's impossible to know exactly

51:33

without obviously being on the inside of the

51:35

investigation. I mean, the possibilities

51:38

can range from, like, maybe some

51:40

of these election officials did

51:42

speak to investigators kind of informally

51:45

months ago to kind of let them know what happened,

51:48

but now they have to go back and get

51:50

the actual records, communications,

51:53

phone records, official

51:56

records of election officials, acts

51:59

things of that nature. And

52:01

again, you wanna get that stuff through legal

52:04

process, through subpoenas because

52:06

that's how you authenticate it in order

52:08

to be present did first

52:10

of the grand jury, but ultimately in

52:13

a trial. Right? So something

52:16

else that occurs

52:17

to me, Andrew, and I'm sorry to interrupt you, but

52:19

something else just occurred to me. You know,

52:21

I I remember one of the things that the

52:23

Department of Justice asked

52:25

the committee for first was their information

52:27

on fraudulent electors. And

52:29

so perhaps they had to wait to

52:31

get that information from the committee as

52:33

we were talking about before before they

52:35

go into the grand jury room to make sure there's consistency

52:38

with testimony. Perhaps that's the reason.

52:40

It's

52:41

really possible. mean any there's

52:43

a pretty wide open feel, and we're kind

52:45

of feeling our way through it a little

52:47

bit. So I wouldn't wanna say

52:49

with with great confidence, like, oh, I

52:51

know exactly why they're doing it now. I mean,

52:53

honestly, some of it could come down to There

52:56

is still, I think, lingering question as

52:58

to what level of will there

53:01

was within the department and quite

53:03

frankly, within the FBI, my former institution,

53:06

months and months ago, you know, at a time

53:08

when many folks were thinking like,

53:10

Of course, somebody should be looking at

53:13

the former or president and the team

53:15

of of, I'll

53:17

just say, advisors, but take that with

53:19

air quotes around him in a

53:21

lead up to January sixth. And

53:24

for quite some time, we really wondered

53:26

if the if the DOJ invest instigation

53:28

was going kind of, you

53:31

know, in a concerted way in that direction.

53:34

We now know they are. But

53:36

I think there is a question as to when you roll the clock

53:38

back five months, six months, seven months,

53:42

was it the same commitment to

53:44

that direction? I don't know. We won't

53:46

know that until the case becomes public

53:49

if it if in fact it does with indictments

53:51

later on and a trial and all that stuff. But

53:54

I think it's a good thing to remember. Howard Bauchner:

53:56

Yeah,

53:56

and I definitely think that the Documents

53:59

is

53:59

more straightforward

53:59

than the fraudulent elector scheme, and I

54:02

think the fraudulent elector scheme is a lot more

54:04

straightforward than linking Donald to

54:06

violence at the capital. But there's a lot

54:08

we don't know and we're just gonna have

54:10

to see how it goes as this investigation unfolds.

54:13

But I I wanted to bring up a third

54:15

piece. I was like, oh, we'll do the first path

54:17

on Documents, second half on

54:19

January sixth, I keep leaving

54:21

out the obstruction part of this

54:23

investigation, which is unlike me because

54:25

it is my favorite volume of

54:28

the Mueller report. Meaning,

54:30

favorite meaning so just well

54:32

laid out, all the elements are addressed

54:35

in three elements of obstruct of justice.

54:37

Let's talk to me just a bit before we

54:39

get out of here, and then then I have

54:40

one more question for you.

54:42

Because, you know, we know Donald's pack is paying for

54:44

some of the legal bills for key witnesses. Donald

54:47

has made several public statements about pardoning

54:49

people who participated in the attack

54:51

on the capital, and we saw several pardoned

54:53

offers used in the Mueller report

54:55

on obstruction. I I

54:57

think I feel like I and maybe

54:59

others are kind of underestimating the

55:01

importance of the obstruction piece

55:04

of this investigation?

55:05

There there's no question. It is a key part

55:07

of the investigation. Yeah.

55:10

It seems like there's a there's a lot of the it's

55:12

here. It's a corn Copia of potential

55:14

investigative activity and directions

55:17

in which to go, but obstruction is

55:20

always plays a primary role when you're

55:22

talking about the activities of the former president.

55:25

An obstruction in this investigation

55:28

has many has many different possible

55:30

forms. Right? If you're thinking about

55:33

paying for witnesses to influence their

55:35

testimony, there were some allegations to

55:38

during the January six hearings that phone calls

55:40

were being made from possibly

55:43

the former president or people around him

55:45

to people to witnesses before

55:47

they would go in and testify. So all those things

55:49

go to kind of the traditional witness

55:52

tampering type obstruction. But

55:54

here we also have and likely

55:56

more significantly one of

55:58

the primary allegations about

56:00

the entire effort leading up to January

56:02

sixth is that it was an effort or conspiracy

56:05

to obstruct to

56:07

obstruct government. Right? To obstruct

56:10

congress, to obstruct the certification of the real

56:12

electors and the peaceful transfer of power.

56:14

So I think you have to

56:16

kind of always keep that shadow

56:18

of obstruction kind of in the back

56:21

of your mind as you're looking at these Documents.

56:23

And hopefully, as we see we learn

56:26

more and more about the evidence and

56:28

the witnesses that

56:30

are that are appearing in front of somebody's committees

56:33

and grand jury's and things.

56:35

Yeah.

56:35

And I think that that might be something

56:37

that the depart or that the one sixth committee

56:40

could possibly hand over to the Department of Justice

56:42

that they

56:42

might not have already had with, you

56:45

know, with regard to

56:46

who possibly might

56:48

have participated in witness intimidation

56:51

of January six witnesses and things like that. That

56:53

I think that could be something there.

56:55

And one last question

56:57

for you back to the scope. recently,

57:00

and this goes I'm I'm piggybacking

57:03

on stuff that's recently happened in the January sixth

57:05

committee. Robin Voss, chair

57:07

g o GOP head of the GOP in

57:09

Wisconsin, was recently called in to testify

57:12

to the January sixth committee.

57:13

I don't know that he if he's been subpoenaed

57:16

as part of this group of subpoenas to election

57:18

officials in key swing states.

57:20

But he twenty months

57:22

after January sixth. A pursuant

57:25

to a Wisconsin court decision about

57:27

ballot drop boxes, I think. Donald

57:29

Trump called up Robin Voss

57:31

and said, hey, why don't you overturn the election

57:33

based on this court finding?

57:35

It seems like the interference, I think what's

57:37

also, I guess, I'm trying to say is it's important

57:39

we understand that this kind of stuff

57:41

didn't end on January sixth. It

57:43

continued and it does continue. And it

57:46

continues to this day, and I think also

57:48

sort

57:48

of piggybacks on the obstruction piece. There could be

57:50

obstruction going on

57:51

right this second that,

57:53

you know, that we don't know about that the DOJ is

57:55

looking into. But do you

57:56

think that that kind of stuff

57:58

that happened twenty months after the attack on the

58:00

capital is is I I think it would fall within

58:02

the scope

58:03

of what the special council is investigating.

58:06

I

58:06

I mean, it certainly would fall within the

58:08

scope of what they're doing. And

58:10

there also is just