0:00

Hi, I'm Mojie Alaureal from the Feminist

0:02

BuzzKills Live pod, the only podcast

0:04

that helps you navigate the news in this post-pro

0:06

anti-abortion hellscape. Each week with

0:09

co-hosts Marie Kahn and Liz Winstead, we

0:11

dissect all the news from that sketchy intersection

0:13

of abortion and misogyny with providers

0:16

and activists working on the ground. The

0:18

cherry on top is we have amazing comedy guests

0:20

who help us laugh through the rage.

0:22

Feminist BuzzKills Live

0:24

drops Fridays wherever you pod. Listen

0:27

and subscribe, because when BS is popping,

0:29

we pop off.

0:30

MSW

0:57

Media

1:34

Welcome to Episode 32 of

1:37

Jack, the podcast about all things

1:39

special counsel. It is Sunday,

1:42

July 9th, and I'm your host, Andy

1:44

McCabe.

1:45

Hey, Andy, I'm Alison Gill. We have

1:47

a packed show today. As we ask every

1:49

week, what could possibly happen this week? Well, a

1:52

lot has happened this week. And we have newly reported

1:54

details about Rudy Giuliani's two-day

1:57

proffer session with prosecutors. We have

1:59

newly unsealed... portions of the Mar-a-Lago

2:01

search warrant affidavit and new

2:03

subpoenas for Arizona officials.

2:06

Yes, and we have a DC

2:08

disciplinary panel recommending the

2:10

disbarment of Rudy Giuliani

2:13

and reporting on another member of the Ochinostra

2:16

being brought back in for questioning. But

2:18

first, first, AG, we have

2:21

a new segment on the

2:23

pod. I'm so excited about this. We

2:25

are bringing back former

2:28

Assistant General Counsel for the CIA

2:30

and SEPA expert, Brian

2:32

Greer, and this segment is going

2:34

to be called

2:35

Under Seal.

2:37

Doesn't matter anyway.

2:42

Filed Under Seal. Brian,

2:46

welcome. Tell us about this new

2:48

segment. I'm so excited about it and what you have

2:50

for us today.

2:51

Yeah, thanks for having me. This is an idea

2:54

that we had together, I think, where we're

2:56

going to enter a new phase in the case where we've

2:58

been very spoiled to date. We had this litigation

3:00

in August and September, which gave us sort of unprecedented

3:04

access in insight into

3:06

a criminal and national security investigation that's

3:08

probably never happened before. And even now

3:10

with indictment, we've had with the speaking

3:12

indictment that all the detail we've learned

3:15

all these details, but we're going to go into a darker

3:17

period of the case now where everything

3:19

is going to go into a classified setting. There'll still be

3:22

a lot of stuff happening on the public docket,

3:24

but there'll be a whole secret classified docket going

3:26

on that I think will be a mystery to most of

3:28

your listeners. And so what I'm hoping to do is

3:31

give them my experience from the CIA working

3:33

with the Department of Justice on these cases to

3:35

educate your listeners about what's sort of going on

3:37

behind the scenes. What are these mystery

3:40

provisions of SEPA that you may be hearing about?

3:43

And as we go through each new phase of the case, we'll do

3:45

a new segment and explain what's really

3:47

happening.

3:48

This is so awesome. You're going to shine

3:51

a light into that dark part of the case

3:53

that continues to churn away outside

3:56

of our vision. So really

3:59

appreciate you for doing that.

3:59

doing that. Sure thing. Yeah.

4:03

So what are we looking at first here? Because Andy and I went

4:05

over some of the recent Department of Justice

4:07

filings about the classified

4:10

SEPA stuff and the schedule that he's outlined

4:12

for how he sort of, Jack Smith wants

4:15

the process to go up until

4:18

December 11th, which

4:20

he has asked for a delay for

4:22

the trial to start in December. So

4:25

looking at some of these filings, what have you

4:27

noticed? And what are some of the things that stand

4:29

out to you?

4:30

Yeah. Well, I refer to this phase

4:32

of the case as the education of

4:34

Judge Aileen Cannon, where back

4:38

during the litigation in August and September, Department

4:40

of Justice, I think was caught a little flat footed,

4:43

didn't realize how inexperienced she was

4:45

in dealing with classified information and

4:47

probably was a little late in educating her on some of

4:49

that. Well, now they get a second bite of the apple with

4:51

these initial filings under

4:53

SEPA. And the first thing

4:56

they get to do is have this hearing, which

4:58

is going to be held on Friday,

5:00

July 14th, which is called the SEPA

5:02

section two hearing. And the purpose of that

5:04

is the government can request it and so can the defendant

5:07

and they'll talk about one, they'll just talk

5:09

to her about the issues that are going to be upcoming

5:12

in the case, just to sort of preview the classified

5:14

issues. But specifically, they're going to talk

5:16

about the SEPA schedule. And we've already

5:18

seen that from the defense

5:21

or the Department of Justice's proposal. I

5:24

think as of Monday, we will see

5:26

the Trump team's response to that. And

5:29

then we'll get a hearing where they can hash that

5:32

out. And what this section of SEPA does

5:34

is it actually forces the judge to have this

5:36

hearing. It actually says that

5:39

the judge shall promptly hold the hearing

5:41

when requested by the government. And

5:43

so it forces the judge to actually sit down and

5:46

map out each progressive phase leading

5:48

up to trial. It's not really about scheduling

5:51

the trial itself, but everything before

5:53

that. And that's what they're going to talk about next Friday.

5:56

So we're going to get our first look really

5:58

at what the runway.

5:59

looks like to get to this trial in

6:02

terms of time. Is that right? That's right.

6:04

That's right. The Department of Justice has already laid

6:06

out what they think that should be. You know,

6:08

that's a great litigation tactic, right?

6:11

At least get your proposal out there first. Yeah.

6:14

Because that at least sets the tone,

6:16

right? If they

6:17

responded to Trump proposing

6:19

like after the election, I think that'd be much harder. But

6:21

by proposing December as

6:24

the schedule for the trial, now

6:26

it's going to be much harder for Trump to come back and say, oh,

6:29

I want

6:29

a December trial of the following year,

6:32

right?

6:32

I think DOJ's goal is to really

6:35

get a June trial. And this really

6:37

sort of sets that up as compromising in

6:39

the middle there. But more important to me

6:41

is everything that's got to happen before trial.

6:44

They've at least, even if the dates don't hold,

6:46

they've set up,

6:48

they've told judge Cannon, you have to schedule every

6:50

single one of these things individually in

6:52

this order. And that becomes very important

6:54

for reasons we'll talk about as the segment unfolds.

6:58

Yeah. Because I was thinking, you know,

7:00

Andy and I talked about this last week, I thought it was pretty shrewd

7:02

to be the first to ask for a delay for

7:04

December 11th on the month, the part of the Department

7:07

of Justice, because like you said, I think

7:10

we sort of all know with all of those SIPA

7:12

steps that have to happen between now and trial,

7:15

there are myriad opportunities

7:18

for delay. And we

7:20

all sort of had, when the last time you were

7:22

on the show, we're like, this could go after the election next

7:24

year, but definitely probably

7:26

looking at a spring or a June trial,

7:29

but by asking for that December date,

7:31

it sort of precludes Donald Trump from stepping

7:33

in and saying, well, if we're going to delay, let's just do

7:35

it until the end of next year. So I

7:38

think that that was really

7:40

well done, well thought out

7:41

on the part of the

7:43

Department of Justice. But let's talk about some of these

7:46

interim steps, these things that have to be individually

7:48

scheduled by Aileen Cannon, Judge

7:51

Aileen Cannon, that honestly

7:54

are ripe for delay. Yeah,

7:57

so I think the first one, so I'll

7:59

give.

8:00

the Department of Justice, the benefit of the doubt that this

8:02

proposal was made in good faith, but having

8:04

litigated these cases, I'm very skeptical that

8:08

this schedule could hold, even if things went very

8:10

well. It really takes

8:12

two, there's three parties here, right? There's the

8:15

Department of Justice, Trump's team, and Judge Cannon.

8:18

It's going to take two of them

8:20

to agree to hold any sort of schedule,

8:22

right? Like,

8:23

we'll see which side Cannon

8:25

falls on, but that's going to be critical,

8:27

is what does she want. But

8:30

if you look at DOJ schedule, like, you can already

8:32

see things that are going to slip. By

8:34

July 10th, which I think will be the date maybe this

8:36

podcast comes out, Monday, July

8:38

10th, DOJ had proposed that they will start

8:40

producing classified discovery by that date.

8:43

Well, that's not going to happen now. We

8:45

still don't know, right, if any of

8:47

Trump's lawyers or Nada's lawyers who were

8:49

just appeared have been cleared

8:52

yet at all. They can't get any classified

8:54

information until they've been cleared. She just

8:56

entered an order, Judge Cannon did, giving them

8:58

a deadline to complete all that paperwork,

9:01

which I think is actually after July 10th.

9:03

So they may-

9:04

July 13th, yeah. July

9:05

13th. So they may not even

9:07

have submitted their clearance paperwork by then. You

9:10

also have to have a super protective order, which

9:12

maybe we'll talk about in a minute, entered

9:14

and agreed to and signed by the defense counsel

9:17

before you even produce any classified information.

9:19

And then you've got to have all the logistics work out. Where

9:22

are the skiffs going to be where they produce

9:24

these documents? They may fight about that, right? Like

9:26

some of the lawyers may want them in DC, others may want

9:28

them in West Palm or Miami

9:31

or whatever. They've got to work all those logistics

9:33

out before they can even produce a single

9:35

classified record. So our first

9:38

step, July 10th, where DOJ said they're

9:40

going to start producing classified documents, that's

9:43

probably going to slip by weeks.

9:44

And if there's litigation over this protective

9:46

order, it could be like mid-August before anything

9:49

is produced.

9:50

That's just the first step. We

9:53

don't have time to go through all the other steps, but like, that's

9:56

just example one of how like this

9:58

is going to slip.

9:59

Yeah. So we've already tripped. The first

10:02

step has been attempted and it's already tripped.

10:04

Right. And now we're stopping and

10:06

stumbling and figuring out what to do next. Yeah.

10:08

I mean, it's

10:11

a tough process under the best circumstances.

10:13

I don't know that I've ever seen a criminal defendant

10:16

who is so motivated

10:18

to push for as much delay as they possibly can. So

10:20

this is going to kind of define like how

10:23

much can a defendant squeeze

10:25

in terms of delay out of a criminal

10:27

proceeding through SIPA

10:29

and

10:29

then any other means he brings up. So it's, yeah,

10:32

I think this is going to be a beginning of a long conversation.

10:35

And just a general thing also

10:37

that the schedule sort of overlooks is at

10:39

each step, she has to rule in

10:42

order to move to the next phase of the litigation.

10:45

So she's got a rule on all the discovery before

10:47

you move into preparing for the trial. And then

10:50

even at each step of the trial prep, she's got

10:52

a rule and like they don't really build

10:54

much time in for that at all. They just sort of assume she's

10:56

going to rule in a week. She's going to want to all

10:58

her rulings obviously to be in writing, they're

11:01

going to be classified. She's going to have to work in

11:03

a classified setting on a classified computer.

11:05

Like that's all going to take time. And it's

11:08

just not really built into the schedule.

11:10

Yeah. And speaking of how

11:12

she might rule and you know, all of

11:14

these opportunities for delay, including

11:17

that, you actually went back and took a

11:19

look at her rulings back

11:21

in August, September timeframe, how

11:24

they related to the special master case through

11:26

the lens of how that could impact the

11:28

SEPA process. Tell us what you found

11:30

out

11:30

through that review.

11:32

Yeah. So if you follow me on Twitter,

11:34

I think people know that I'm, I'm not like

11:36

an alarmist. Usually I try to like calmly

11:38

analyze issues and not be overly reactionary.

11:42

And so when she was assigned, I thought, well, this

11:44

is obviously seems very bad, let's be honest. But

11:48

can I look back at her August rulings

11:50

and see, is there any silver lining potentially?

11:54

And so these were the things that stood out. So obviously

11:56

there's all just the frankly, crazy rulings

11:59

on.

11:59

on the search warrant and that these

12:02

might be personal

12:03

records and all that stuff. So let's put all that aside. I

12:05

just focused on national security. So

12:07

the first thing that jumped out is she's obviously very

12:09

just uneducated and unfamiliar

12:11

on these issues. That's generally bad,

12:14

right? But also she's a blank slate.

12:16

So could be potentially malleable

12:20

to or at least open to being educated by

12:22

the government. Most conservative jurists at

12:24

least traditionally still care about national security.

12:26

So the Department

12:28

of Justice, like I talked about, has a good opportunity to educate

12:31

her. So I think there's still, she's

12:33

a blank slate, so maybe there's opportunity for education.

12:36

The second thing that jumped out is she

12:38

did say repeatedly, right, that the

12:40

national security reviews could go on. She

12:42

did not want to stop those. So at least

12:45

showed some attempt on her F

12:47

part to say, hey, let's

12:49

let the national security imperatives play out.

12:52

I want to defer to those. So that's the sort

12:54

of good to medium. The

12:57

bad though is where I got to, so

12:59

remember she issued her first ruling, then DOJ moved

13:01

to stay her ruling only

13:04

in regard to the classified records. They said, let's

13:06

take the classified records out of the special master

13:08

litigation.

13:10

And they filed, smartly, the declaration

13:12

from

13:13

Alan Kohler, and he probably knows

13:15

him very well. Yeah, very well.

13:17

I'm head of counter intelligence from the FBI.

13:20

And he explained what I was screaming about on Twitter,

13:22

which is she couldn't, she

13:24

couldn't separate the criminal investigation

13:27

from the national security investigation.

13:29

She said the criminal investigation has to be paused.

13:31

And, but the national security investigation

13:33

can continue.

13:34

But as Andy knows from working on these, like you can't

13:37

do that. Like the number one thing the national

13:39

security community wants to know is what

13:42

conditions were these documents stored in

13:44

and who accessed them. That all comes

13:46

from the criminal investigation, right? That's right. Because

13:49

if they were safe with a super secure lock

13:52

that had never been accessed and had complete audit

13:55

records, like they would want to know that that

13:57

would be great to know. Right. And obviously

13:59

the opposite.

13:59

be true if they had been accessed. So they

14:02

tried to explain to her through that declaration

14:05

why you couldn't split the baby, that

14:07

they were inextricably intertwined.

14:09

So she read that declaration and basically

14:12

just rejected it. Normally,

14:14

judges would at least give some deference to that

14:16

assessment. She said, you know,

14:19

it's not he was speaking

14:21

in hypotheticals. He didn't

14:23

speak in specifics. I was trying to

14:25

pull up some of the language.

14:29

The declarations do not firmly

14:31

maintain that the described processes are inextricably

14:33

intertwined and instead rely

14:36

heavily on hypothetical scenarios and generalized

14:38

explanations that do not establish

14:40

irreparable injury. Like that

14:43

part of ruling right there gives me the most

14:45

heartburn that she's

14:48

looked at this declaration from the head of counterintelligence

14:51

for the FBI

14:52

and said, I really don't believe you. You

14:55

know, I'm not going to listen to you. So that's what's

14:57

troubling me. There's some lessons DOJ can learn from that, which

15:00

we can talk about, but that's what's most troubling to me. You

15:02

know, and I remember at the time

15:05

thinking like, this woman just doesn't

15:07

get it. Like, and that may be explainable.

15:09

It's I don't mean to suggest any sort

15:12

of animus there, but it's

15:14

it seemed painfully evident that she has absolutely

15:16

had no

15:18

connection to this sort of work

15:20

in her past. And if you look at a resume,

15:22

that's that it bears that out. She doesn't really

15:24

have any national security experience. So

15:27

when reading Kohler's affidavit,

15:30

she doesn't even understand that speaking

15:32

in some level of generality

15:35

is necessary when you're filling,

15:38

you know, you're submitting an affidavit

15:40

in court about highly classified

15:43

matter. So like, she couldn't read between the

15:45

lines to realize like, oh, wait, this is

15:47

really a very

15:48

serious thing. So

15:50

that that I think that piece

15:53

really still bothers me a lot. Yeah.

15:55

And not only that, but

15:58

she doesn't even recognize her own.

15:59

lack of knowledge and will not

16:02

take the premier experts

16:04

advice on it or

16:07

point of view. It's like, who else would

16:09

you get? Who will you believe,

16:11

Judge Cannon, if it's not that

16:13

counterintelligence about how these things

16:15

are inextricably linked? The 11th

16:17

Circuit, I guess, because they

16:19

also agreed that those things were

16:22

inextricably linked and that's why a lot

16:24

of the stuff was reversed and that and no

16:26

standing, no jurisdiction. It

16:29

is true. Like, oh,

16:31

look, all judges are different and some are

16:33

better than others and that's

16:35

certainly the case. But I found

16:37

in my limited SEPA experience

16:39

being usually the declarant or the affiant

16:42

and those sorts of things. When the FBI

16:44

expert comes in and says, yes,

16:47

if you do this, it will harm our

16:49

national security in the following way. Most

16:52

judges are not going to insert

16:55

their own judgment about harm to national

16:58

security over that of the national

17:00

security community. They're going to say, okay,

17:02

you said it's harm, then for

17:04

this purpose, that's what we'll go with.

17:07

She doesn't seem to be indicating that sort

17:10

of, I don't know. Deference.

17:13

Deference. Obviously, we want

17:15

our judges to think independently and

17:18

not overly defer at the government.

17:21

On a legal determination, obviously they shouldn't,

17:23

but on the just the pure national security assessment,

17:26

obviously, I think she should defer

17:29

typically to that. And here she

17:31

showed no such interest. So I think

17:34

that's going to be a big question. What does she do when she starts

17:36

getting these classified declarations, which that's

17:38

a great point, Andy. I mean, that declaration was

17:41

maybe a little high level, not

17:43

maybe as detailed as it could have been. So

17:46

I think it's going to be incumbent on the government in the SEPA

17:48

declarations is

17:50

having worked on those. 90% of those are boiler

17:52

plate usually too. Yeah. So

17:54

I think they need to like put aside the boiler

17:56

plate and really put some meat

17:59

on the bone. in details about

18:01

the very specific harms from these documents,

18:04

which again is a great opportunity to educate

18:06

her.

18:07

We'll just see if she's receptive.

18:09

Yeah. Yeah. And we're

18:11

gonna talk more about that the next time you appear.

18:14

We're gonna cover probably SIPA Section 4

18:17

and some of the classified discovery fights

18:19

and we'll look forward to it. So Brian,

18:21

thank you so much. I'm really excited about this new

18:24

segment and we look forward to having you back.

18:25

Yeah. Yeah, great to have you, Brian. Thanks so

18:27

much. Thank you. Take care. Everybody

18:30

stick around. We'll be right back.

18:57

I'm joined by a slate of Feds favorites

18:59

and new voices to break down the headlines

19:01

and give the insiders view of what's going

19:04

on in Washington and beyond.

19:06

We dig deep but keep it fun.

19:08

Plus sidebar is detailing important

19:10

legal concepts read by your favorite celebrities,

19:13

such as Robert De Niro explaining whether

19:16

the president can pardon himself and

19:18

Carole King explaining whether members

19:20

of Congress can be disqualified from higher

19:23

office and music by

19:25

Philip Glass. Find Talking Feds

19:27

wherever you get your podcasts and don't

19:30

worry. As long as you need answers,

19:32

the Feds will keep talking.

19:36

There's only one way to get

19:38

perfect air inside your home and

19:41

that's from a Linux dealer because your

19:43

comfort and health are the reason they go to work every

19:45

day. Right now you can receive up

19:47

to $2,000 in rebates on our

19:49

ultimate comfort system or qualified

19:52

buyers can make no payments and pay no

19:54

interest for six months. To see how

19:56

perfect your air can be, find your preferred

19:58

Linux dealer and come

19:59

Confirm available offers at linux.com.

20:05

Just in and so good. Thousands

20:07

of summer deals at your Nordstrom Rack store. Save

20:09

big on the season's best new arrivals from

20:12

Free People, Adidas, Kurt Geiger London, Steve

20:14

Madden, and more, starting at just $30. Seriously.

20:17

So rack your look for summer. Score

20:19

great brands and great prices at Nordstrom

20:21

Rack today. Hurry in and get first dibs

20:24

on the sun-ready styles you want from just $30

20:26

at your Nordstrom Rack store. What will

20:28

you find?

20:34

Hey, everybody. Welcome back. That's so great. I'm

20:37

so honored that we have such

20:39

a seasoned expert on SEPA

20:42

here to talk to us about it on

20:45

the pod, Andy.

20:46

Yeah, he's so good

20:49

at explaining these things. And I have sat across

20:51

tables with many, many lawyers in my day trying

20:53

to understand the latest problem

20:56

in a SEPA filing. And Brian has a way of just

20:58

kind of boiling it down and

21:00

getting you on board very

21:02

quickly and simply. So we're very lucky

21:05

to have him.

21:05

Yeah, definitely. All right, we're

21:08

going to talk a little bit. We're going to shift gears

21:11

from documents over to January 6. And we're

21:13

going to talk about Rudy. We're starting

21:15

to get new details about where Rudy Giuliani

21:17

was asked during his recent

21:19

Queen for a Day, also known as a proffer

21:21

session, with special counsel prosecutors.

21:25

And Wall Street Journal picked up some of this

21:27

reporting on July 3. And CNN sort of

21:29

finished it off with Collins, Cohen,

21:32

Reed, Murray, and Polance.

21:34

It's like a law firm. I know. And

21:36

Flom. No, no Flom. And

21:39

they reported that special counsel Jack Smith's team has

21:42

signaled a continued interest in

21:44

a chaotic Oval Office meeting that took

21:47

place in the final days of the Trump administration. It

21:49

was in December of 2020, during which the former

21:51

president considered some of his most desperate

21:53

proposals to keep him in power

21:56

over objections from his White

21:58

House counsel.

21:59

We heard a lot about this contentious shouting

22:02

match of a meeting, knock

22:04

down, drag out meeting, through

22:07

the hearings by the select

22:09

committee investigating January 6th. So

22:12

I mean, the aspects

22:14

of this meeting were actually

22:16

pretty shocking. Yeah, totally.

22:19

Totally, right. And this is, of course, the

22:21

infamous December 18th, I

22:23

think, probably late afternoon, the guests show

22:26

up. The

22:28

roll call of those present are, of course,

22:30

Trump, Giuliani, Pat Byrne,

22:32

who is the former CEO of overstock.com,

22:35

Sidney Powell, Mike Flynn, and

22:38

then on the kind of White House lawyer side,

22:40

Eric Hirschman, Pat Cipollone,

22:43

Derek Lyons, and of course, the enigmatic

22:46

Mark Meadows was there lurking in the shadows as

22:49

well. So they show up late

22:51

in the afternoon, if I'm recalling correctly

22:53

from the Jan 6 hearings, and it goes

22:56

on for hours. And so late, at one

22:58

point, they retire

23:00

to the whole meeting moves up to

23:02

the residence, the White House residence. And

23:04

then, of course, later that night

23:06

at 142 AM,

23:09

I assume that

23:12

most of these folks are gone by then, and Trump

23:14

sends out the infamous will be wild tweet.

23:16

So yeah, that was

23:19

a really unique moment in time because

23:21

you have, for prosecutors

23:23

anyway, you have this amazing

23:26

combination of people in the room. Half the room

23:28

is pushing insane things, many

23:31

of which are illegal, and the other half of the

23:33

room, the lawyers are saying, you cannot possibly

23:35

do that. You don't have that authority. It's not

23:37

legal. And all of this buffet

23:41

of yeses and nos is being laid

23:43

out at the table of

23:45

the President of the United States. Really remarkable

23:48

moment in time.

23:49

Yeah, absolutely. And what

23:51

the reporting shows is that some witnesses were

23:54

asked about this meeting months ago, and even last

23:57

year, while several others have faced questions

23:59

about it more recently.

23:59

recently, including Rudy Giuliani, as we

24:02

know last month, for two consecutive days,

24:04

Giuliani sat down with investigators

24:06

for a voluntary interview about

24:08

a range of topics, including that meeting,

24:11

because he was there, as you said. That's right. I

24:13

think he was like led in by a guy named Ziegler,

24:16

and then he was escorted out afterwards, like

24:18

he had to leave. Nobody wants

24:20

Rudy rambling around their house, unsupervised

24:23

in the middle of the night.

24:25

Prosecutors have specifically inquired

24:28

about three outside Trump advisors, and

24:30

that is, like you said, Sidney Powell, Michael

24:33

Flynn, and Patrick Byrne. During

24:36

that meeting, outside advisors

24:38

faced off with top West Wing attorneys like

24:40

Hirschman, like you said, Derek Lyons, Philbin,

24:44

Cipollone. I don't know Philbin was there. I think it was just Cipollone.

24:47

One of the plans that you talk about was he wanted to have

24:50

the military, the Department of

24:52

Defense, seize voting machines

24:54

in swing states that he

24:55

has lost. And they also

24:58

discussed naming Sidney Powell special

25:00

counsel to investigate voter fraud.

25:04

And Trump, they talked about him possibly, and this

25:06

was a Mike Flynn idea, invoking martial

25:08

law

25:09

as part of his efforts to overturn the election.

25:11

And as you said, that night ended with the

25:14

Will B. Wilde tweet, which has been invoked

25:17

in multiple indictments

25:19

of some of the boots on the ground folks, like the Oath

25:21

Keepers and the Proud Boys. It's

25:25

mentioned quite a bit, that

25:28

Will B. Wilde tweet, that it was a call to action.

25:30

I know January 6th, the committee there covered

25:32

it pretty extensively

25:33

too. Yeah, and the committee

25:36

presented that almost

25:38

with the suggestion of ... And

25:41

nobody knows. This is a speculation, but I

25:43

get the speculation that this

25:45

intense fight takes

25:48

place over the course of hours

25:51

in front of the president. Martial law,

25:53

and the attorneys probably say no, seize

25:55

the voting machines. The attorneys say, you can't

25:57

do that. You don't have the authority.

25:59

Sidney Powell asking for a job as special counsel,

26:02

a lawyer saying that's preposterous. And

26:05

having not come upon a single

26:07

plan for moving forward, the

26:11

suggestion is that Trump decides,

26:14

you know what, the only way to do this is

26:16

to summon a mob to the Capitol. Now, again,

26:19

this is speculation, this is what

26:22

prosecutors and investigators are inferring

26:25

from what we do know about

26:27

that meeting. But it certainly

26:29

makes sense that the evening

26:31

ending at a quarter to two in the morning

26:33

with that tweet is just incredibly

26:36

significant. And hopefully

26:38

we'll get that unwound at one of these trials.

26:40

Yeah, and Meadows being part

26:42

of that meeting, obviously is an

26:45

important piece. He wanted to go to the Willard

26:47

War Room. There seems to

26:49

be some

26:51

peripheral connections between

26:53

the White House and the

26:56

physical attack on the Capitol, but

26:58

proving that beyond

27:00

a reasonable doubt in court is

27:03

a very different story

27:04

from the inferences that were made in

27:07

the January 6th select committee hearings. But

27:10

we did get another member of confirmed from

27:12

the Ochinostra. We learned from this reporting

27:14

at CNN that

27:17

Robert O'Brien has been in a second time

27:20

to testify. Now, if you remember the Ochinostra

27:22

with the eight people How could you forget?

27:24

That had testified like maybe,

27:27

I don't know, like six months ago or something like

27:29

that, or in the spring, and

27:31

had

27:32

raised executive privilege concerns, not

27:35

because they were fighting for

27:38

executive privilege, but because Donald had

27:40

filed lawsuits trying to block their testimony

27:42

using executive privilege. And they said, I got to wait until

27:44

this is litigated before I

27:47

can testify. And it was, and Trump

27:49

lost. There was no stay

27:51

put on there. Although some of the appeals did continue.

27:54

We'll talk about that in a second.

27:55

But yeah, Robert

27:57

O'Brien went in. He told the January 6th select committee.

27:59

committee, he was patched into that December 18th

28:02

meeting by phone after it had

28:04

already devolved into a screaming match

28:06

between Flynn Powell and the White House lawyers.

28:09

And some breaking news just today, Friday

28:11

as we record this, Trump's appeal of

28:14

the ruling that compelled Mike Pence's testimony

28:17

has been dismissed. Now, you and I had

28:20

wondered why after the

28:22

emergency stay, Trump's

28:25

appeal and ask for an emergency stay

28:27

was denied. He brought Pence

28:29

in

28:30

before the appeal

28:31

wound its way through the courts. And

28:33

we were like, I guess he's pretty sure he's going to win this

28:36

one. There's no stay, there's nothing stopping the testimony.

28:38

How do you claw that back if Trump

28:39

somehow does win this

28:42

privilege battle? But that privilege

28:45

appeal was dismissed.

28:47

Yeah, and that was a bold move by Jack Smith.

28:49

I feel like we've said that a lot now, certainly

28:52

a common occurrence. But

28:54

if you think about it, he did win, at

28:56

least when he needed to, because part

28:59

of the consideration for the stay is

29:01

the movement's chances of

29:04

winning the appeal.

29:06

And it's not hard to imagine

29:08

that the court in deciding the stay

29:10

said, yeah, you have very little chance

29:12

of winning here. So we're not even going to grant you a stay.

29:15

And I'm sure that gave the special counsel

29:18

a fair amount of comfort in

29:20

saying, we're just going to move forward

29:22

and it'll be fine.

29:23

Yeah,

29:26

it's likely that we'll win on the merits. Like

29:29

you said, that's one of the requirements for a stay.

29:32

Now all that's left

29:34

is your pal in mind, Johnny McEntee. We

29:37

still haven't gotten public confirmation. He's

29:39

been brought back into the grand jury. It doesn't mean

29:42

he hasn't. We didn't know about Robert O'Brien until

29:44

today or yesterday. So

29:47

he may have already come in. He may be cooperating.

29:51

He may not be. And then of course Meadows.

29:53

The only thing we know about Meadows is that he has at least

29:55

testified once, but that could be the original

29:57

time that he testified and invoked.

29:59

Trump's

30:01

claim of executive privilege. We

30:04

also don't know if he's cooperating. There's

30:06

some outlets like the Independent UK

30:09

who are saying that he is going to plead to

30:11

lesser charges to do a deal,

30:13

that no US news

30:16

outlet is corroborating or confirming

30:19

that particular reporting. Terwilliger, whose

30:21

Meadows attorney has outright

30:24

and flatly denied that he is going to

30:26

take guilty to lesser charges and

30:28

is cooperating. He's shrouded

30:31

in mystery

30:31

and we haven't heard about Mac and

30:33

T. We've got six now confirmed of

30:35

the Ochonoster that have been brought back in for

30:38

their testimony.

30:40

There's a little bit more here. At

30:42

least one witness has told prosecutors

30:45

in recent weeks that Trump allies

30:47

asked Pence

30:49

to question the legitimacy of Biden's electors

30:51

in those seven states based on unfounded

30:53

claims about voter fraud and kick

30:55

the decision of certification back

30:58

to the states themselves. They are really

31:00

homing in on this fraudulent electors

31:02

scheme and it seems to be, and makes

31:05

sense it's directly tied to the Pence

31:07

pressure campaign.

31:08

If you look at pretty

31:11

much everything we've just gone over, I believe

31:14

it gives you an interesting foreshadowing

31:17

of where a potential indictment

31:19

would go. My theory,

31:22

you're not going to be surprised by, is that

31:24

the strongest and most likely

31:26

charges if they indict will involve

31:29

those two things, the fraudulent electors

31:31

scheme and, well,

31:34

three actually if we want to be complete, fraudulent

31:37

electors fraud

31:39

against the government by Trump and

31:41

his band of merry

31:43

lawyers and that is in the effort to

31:45

obstruct the certification of the election,

31:48

that sort of thing. A

31:50

bunch of different ways you can charge that, but essentially that

31:53

effort, you know, the Mike Pence pressure,

31:55

try to get the whole thing, try

31:58

to block the function.

31:59

of government, which is the certification

32:02

of the election. And the last thing is, of course,

32:05

the

32:05

wire fraud around the

32:08

money, the solicitation of money based on the

32:11

lie that the election was fraudulent.

32:14

Those are

32:15

the mediest, tangible

32:18

charges

32:19

that you could bring in this

32:21

context. It also has the advantage of

32:23

wrapping in, like potentially

32:25

most of the people we just talked about. The

32:27

other case, the pressure

32:30

campaign on the states, the reaching

32:32

out to the states, the governors,

32:35

and we'll talk a little bit about that, Arizona,

32:38

and of course in the Georgia context, those

32:40

are much, much harder cases to prove.

32:43

There's all kinds of defenses

32:45

that could be effective

32:47

in those cases. You also have the

32:49

strongest of those is clearly Georgia, because you have the

32:51

recording, and Georgia

32:54

state officials are probably gonna move forward with

32:56

the prosecution based on that before

32:58

we see anything on the January 6th investigation.

33:02

So I think I

33:02

would not be surprised to see those pieces

33:05

not addressed

33:08

in a potential January 6th federal

33:10

indictment.

33:12

Yeah, agreed, but I think definitely

33:14

at the top, where we have Eastman,

33:17

Jeffrey Clark with his letters, and

33:21

it's sort of like what point does it sever

33:24

and get kicked back to the states for their own prosecutorial

33:28

purposes, and

33:31

when is it included in a federal indictment?

33:33

And will he indict these separately

33:36

as separate charges, or will he put it under

33:38

a racketeering umbrella? Good

33:40

question. I mean, you're definitely looking at

33:42

conspiracies here based on all this

33:45

activity, right? So, and it goes,

33:47

fake electors is somebody that you could be rolling

33:49

up people from John Eastman all the way down

33:52

to Joe Schmo, who served as a fake

33:54

elector and name your state. Solid

33:57

crimes, tangible evidence, the letters

33:59

actually...

33:59

submitted by these fake electors in

34:04

the National Archives. So there's like

34:06

tangible things that you can put your hands

34:08

on here and put in front of a jury. Yeah,

34:11

with documentary evidence and not so

34:13

much subjective sort of,

34:15

it feels seditiony.

34:18

No, it is obstructing official proceeding.

34:20

It is conspiracy to defraud the United

34:22

States. It's conspiracy to obstruct.

34:25

It's wire fraud, mail fraud when you mailed

34:28

the certificates to NARA and Congress.

34:31

And they've brought in the

34:33

Mike Kelly guy and

34:34

the people who they were trying to hand deliver the

34:36

fraudulent certificates through Ron Johnson

34:39

and his staff. So

34:42

yeah, I think that it's still a hugely

34:44

sprawling case. And Andy, if the

34:46

documents case has 84 witnesses.

34:49

Oh my God.

34:52

This thing could go on forever. It's

34:55

almost overwhelming to

34:57

try to wrap your head around the size,

35:00

the enormity of

35:02

these crimes, of this case, of

35:05

these potential indictments.

35:07

It makes what y'all

35:09

were looking at in the Mueller

35:11

investigation seem very small

35:13

in comparison.

35:14

It really does. And from the

35:16

prosecutor's perspective, you have to

35:18

be able to stand up there for the first day

35:21

of this, imagine it's a trial

35:23

and paint a

35:25

coherent picture. Tell a story

35:27

that 12 citizens are going to

35:31

be able to listen to and follow

35:34

and understand how each one of these separate kind

35:36

of criminal conspiracies or criminal acts,

35:38

whatever they are, supports

35:41

this narrative that this group of people

35:43

ultimately

35:44

headed by the former president

35:46

conducted this activity. It's

35:48

a really tall order. You've got to be incredibly

35:51

skillful,

35:52

not to mention just the command of

35:54

the information and the witnesses and the statements

35:56

and the evidence is really challenging.

35:59

But

36:01

to deliver all that in a coherent and persuasive

36:03

way is tough. Yeah,

36:06

and Jack Smith has a decided advantage of

36:08

having recently lived through the Mueller investigation

36:11

and having recently seen the presentation

36:14

the January 6th select committee put

36:16

forth, which I thought was a very, I mean,

36:19

it went over months and months and months, but

36:21

it was about as succinct as you could get. Yeah,

36:23

totally agree. And because there

36:26

was a lot of folks

36:27

that were

36:28

upset that it only

36:30

really focused on Trump and his actions or lack

36:33

of actions on January 6th and leading up to January

36:35

6th. And the pressure campaign,

36:37

the fraudulent electors, Rusty Bowers comes

36:40

in, Raffi Burger comes in. But

36:42

they didn't really follow the money. They didn't really

36:44

look at the PACs. They didn't look at the big fraud

36:47

and the defrauding donors.

36:49

They didn't really look at Roger Stone and the...

36:52

There was so much that was sort of left out of that for

36:55

the sole reason of making it easy for

36:57

the American public to understand. And it

36:58

still took a series of six or seven, eight

37:01

hearings. That's right. That's

37:03

right. And legitimate questions about

37:05

those decisions, but at the end of the day, you have

37:07

to make decisions like that to decide

37:10

what to go with and what to leave on the cutting room

37:12

floor if you're going to tell a coherent,

37:14

understandable, compelling story. Yeah.

37:16

There aren't insurrection

37:19

incitement charges or seditious

37:22

conspiracy charges. There will be people who

37:24

are going to be upset about that. But

37:26

that is the prosecutorial discretion that

37:29

lays at the feet of Jack Smith. For

37:31

sure. He's going to go with the most

37:34

open and shut, easiest to prove,

37:37

and easiest to explain with

37:39

the likely 400 plus witnesses

37:41

that are going

37:42

to be... Yeah,

37:44

that's a very good one. That's a very good one. All

37:47

right. We have a lot more news to get

37:49

to from this week, including some interesting

37:51

information about new subpoenas headed out

37:54

to the Arizona way. So everybody

37:56

stick around. We'll be right back.

38:02

Hi, I'm Harry

38:03

Litman, host of the Talking Feds podcast,

38:06

a weekly roundtable that brings together prominent

38:08

figures from government, law, and journalism

38:10

for a dynamic discussion of the most important

38:13

topics of the day. Most news

38:15

commentary is delivered in 90-second

38:17

sound bites that just scratch the surface of

38:19

a new development. Not Talking Feds.

38:22

Each Monday I'm joined by a slate of Feds'

38:24

favorites and new voices to break down

38:26

the headlines and give the insiders' view

38:29

of what's going on in Washington and

38:31

beyond.

38:32

We dig deep, but keep it fun.

38:34

Plus sidebars detailing important

38:36

legal concepts read by your favorite

38:38

celebrities, such as Robert De Niro

38:41

explaining whether the president can pardon

38:43

himself, and Carole King explaining

38:45

whether members of Congress can be disqualified

38:48

from higher office. And

38:50

music by Philip Glass. Find

38:53

Talking Feds wherever you get your podcasts

38:55

and don't worry. As long as you need

38:57

answers, the Feds will keep

39:00

talking.

39:02

There's only one way to get

39:04

perfect air inside your home, and

39:06

that's from a Lenox dealer. Because your

39:09

comfort and health are the reason they go to work

39:11

every day. Right now, you can receive

39:13

up to $2,000 in rebates on

39:15

our Ultimate Comfort System. Or

39:17

qualified buyers can make no payments and

39:19

pay no interest for six months. To

39:22

see how perfect your air can be, find your

39:24

preferred Lenox dealer and confirm available

39:26

offers at Lenox.com.

39:31

Rack your look for summer now at Nordstrom

39:33

Rack and save up to 60% on brands

39:35

you love. We've got them. Rag & Bone,

39:37

Vince, Stuart Weitzman, Calvin Klein, Kurt

39:40

Geiger London, Madewell, Steve Madden and

39:42

Adidas score great brands, great prices

39:45

every day at Nordstrom Rack. What will you

39:47

find? Breezy dresses, easy tops,

39:49

designer bags and sunglasses, sandals,

39:52

swim and activewear, plus updates

39:54

for your family and home. Get summer's

39:56

best for less. Up to 60% less. Today

39:59

at your Nordstrom.

39:59

from Rackstore.

40:06

Welcome back. Okay, more

40:08

news about new testimony in the fraudulent

40:11

electors scheme from Mary Jo Pitzel at

40:13

AZ Central. So, AG,

40:16

we've heard that Jack Smith subpoenaed

40:18

the Arizona Secretary of State's office

40:20

as recently as May as

40:23

a part of his investigation into the events

40:25

leading up to the January 6th insurrection

40:27

at the Capitol. So they sought

40:29

with these subpoenas information related

40:32

to two lawsuits, one from Trump's campaign

40:35

and another one from former Arizona

40:36

Republican Party Chairwoman Kelly

40:39

Ward. Both suits basically

40:41

alleging that errors and fraud in

40:43

the 2020 presidential election undermined

40:47

the results.

40:48

Now, special counsel has

40:50

apparently not reached out to former

40:53

Arizona Governor Doug Ducey.

40:55

Kelly Ducey talking

40:57

to an unnamed donor earlier this year

41:00

marveled that Smith or his investigators

41:02

had not contacted him, according

41:04

to the Washington Post.

41:06

Ducey famously silenced

41:08

a call from Trump. You'll remember this. He was actually

41:10

sitting at his desk in front of the cameras signing

41:13

the certification of the election when

41:16

his phone rang to the tune of

41:18

Hail to the Chief, which he very nervously

41:20

then turned off.

41:22

On

41:24

Face the Nation last week, we learned

41:27

that former Vice President Mike Pence confirmed

41:29

that Trump asked him to

41:31

talk to Ducey about the election results.

41:34

But of course, Pence went on to say that he had no

41:37

pressure from the president to find evidence

41:39

that Trump actually won the Arizona vote. So a

41:42

lot packed in there. What's

41:45

your view on this, the

41:47

Doug Ducey drama, not drama?

41:50

Well, I don't believe Mike

41:52

Pence. Next

41:56

question. Next question,

41:58

issue number four. It's

42:01

pretty obvious through some

42:03

of the phone calls we know that he

42:05

made to the likes of Dan Quayle

42:07

and Judge Luttig where he's like, please,

42:10

is there a way that I can

42:11

not certify these?

42:14

You don't understand the pressure I'm under. Let this

42:16

cup pass from me. Quote

42:19

on quote. Deliver me from this fate.

42:20

So when he's like, you don't, he tells Dan

42:23

Quayle, you don't even know what pressure I'm under

42:25

and then comes out to the public and says, I wasn't

42:27

under any pressure. That just seems to me

42:29

like him riding the fence like he did with his small

42:32

W in the speech or debate

42:35

privilege

42:36

battle that he most decidedly

42:38

lost, but won like a couple of tiny little

42:40

pieces of. So I don't believe him. I

42:42

think he's just trying to hang on to the 17

42:46

MAGA voters that might vote for him.

42:50

If that many, am I being kind? Yeah,

42:53

I think you might be overshooting it, but what the heck? I

42:55

mean, let's be charitable. I

42:58

think you're right. I mean,

43:00

you

43:00

know, but the interesting thing

43:03

here though is for me, this really shines

43:05

a light on what we were just talking about. If you

43:07

are, if you're going to look at the

43:10

Trump pressuring state

43:13

electors, state

43:15

election officials, state

43:17

governors to pull back their

43:19

certifications and basically overturn the election.

43:22

If you're looking at that pressure as a criminal

43:25

charge, that is a very hard case

43:27

to succeed on because anyone

43:29

involved in this case, Mike Pence can

43:32

say, Oh yeah, I talked to the governor,

43:34

but I didn't put any pressure on him and no

43:36

one was putting pressure on me. I was just calling

43:38

for an update to see how things were going. We were investigating

43:41

all these claims of fraud and wanted to see

43:43

what they were finding in those investigations. It

43:45

all sounds very reasonable

43:47

in hindsight. Those

43:51

cases are coin flips and nobody wants

43:53

to go to trial with a coin flip.

43:55

Yeah, that and the electors can say, I honestly

43:57

thought that they would only use these alternate

43:59

electors if they won some

44:02

of their lawsuits. And that's

44:04

why I find the lawsuit piece interesting

44:07

about the subpoena story you just read from AZ

44:09

Central. And something

44:11

that always stuck in my head was

44:13

when Jamie Raskin told,

44:15

I think it was probably Rachel

44:18

Maddow or somebody on MSNBC, that

44:21

one of the keys to this entire criminal

44:23

investigation that the

44:25

Department of Justice is undertaking are

44:28

these lawsuits. These lawsuits

44:30

brought by Rudy, brought by the Trump campaign,

44:33

brought by Republican friendlies in these

44:35

individual states. And

44:38

we know that in one of the Eastman emails,

44:40

the Georgia lawsuit is mentioned and

44:43

say, hey, the president now knows that

44:45

these voter fraud numbers

44:48

are not accurate probably after

44:50

the reports that they got from those two

44:53

Berkeley research firm and the other one that

44:56

showed that there was no voter fraud

44:58

and then signed anyway that

45:00

lawsuit after receiving those results

45:04

and not making those results public.

45:07

So I

45:07

kind of think that all of this outreach

45:10

to the states will show up as evidence

45:13

of a pattern. Yeah, I agree. And not

45:15

a crime specifically, but we don't

45:18

know. But I think it's interesting

45:20

that they're looking at the

45:20

lawsuits. It's really interesting. Even

45:23

the infamous, what is it, Raffensperger

45:26

recorded phone call. I mean, a lot of people

45:28

listen to that, right? Well, it's a smoking gun. There's

45:30

a clear crime here. And

45:32

it does sound terrible. And it is terrible.

45:34

The phone call is terrible. But it's not

45:37

actually a smoking gun. It's not a slam

45:39

dunk. There's not a very clear violation

45:42

of law there. I think it either

45:44

is for Georgia. Right, correct. And

45:47

I'm no expert on Georgia law, but on the federal

45:49

level, there's a lot of wiggle room there

45:51

and exactly what was said. And then

45:54

you layer in what was meant and there

45:56

can be all kinds of arguments over this. So it's

45:58

harder than it looks.

45:59

harder in an Arizona situation where

46:02

you have no recorded calls with

46:04

Ducey or whoever else. The difference

46:06

in the fake elector thing, I agree with

46:08

you, there are some potentially strong defenses

46:10

there if you're one of the electors because

46:13

you could basically and maybe very credibly

46:15

say, I didn't know, I thought

46:17

this was only going to be a backup, whatever,

46:20

whatever. But the people who you would

46:22

actually want to ensnare in

46:25

that charge are the organizers. And

46:27

they are not going to be able to

46:29

make that credible claim

46:31

of, oh, geez, I thought this wasn't going

46:33

to be used until after we've proven our case

46:36

in court or something. And that's who you want.

46:38

You want the Eastmans, you want the Rudy's, you

46:40

want Sidney Powell's, whoever else is

46:42

involved.

46:42

Ellis, all those folks. Yeah. And

46:45

that's, I think, where they're homing in. So we'll

46:47

see what these charges look like. It

46:49

appears that they are getting closer

46:52

to charging decisions, as we know. And

46:55

obviously, we'll keep an eye on it.

46:58

Also from Zoe Tillman at

47:00

Bloomberg, speaking of Rudy,

47:02

attorney disciplinary regulators recommended

47:04

Rudy Giuliani be disbarred in Washington,

47:06

DC. How does that happen? After

47:09

a local bar association panel's preliminary

47:11

finding that he likely committed misconduct

47:13

in pressing Donald Trump's failed legal challenge to

47:16

President Joe Biden's 2020 win in Pennsylvania, specifically.

47:19

The hearing committee's decision Thursday is tentative.

47:23

The committee will submit a final report with its

47:25

recommendations to disbar to

47:27

the DC Bar's Board of Professional Responsibility,

47:30

which will decide whether to accept it. And

47:32

then the District of Columbia Court of Appeals

47:35

is the final arbiter. The

47:37

DC disciplinary counsel's office accused

47:39

Rudy of violating attorney practice

47:41

rules in his handling of that litigation,

47:44

which involved asking the Pennsylvania judge

47:46

to invalidate large quantities of ballots

47:48

cast across the state or alternatively

47:51

order a new election. A

47:53

state court in New York also previously

47:56

suspended Giuliani's license after

47:59

finding he the public at risk by

48:01

spreading lies about the 2020 election, his license

48:03

in DC has also been suspended while he

48:05

fights this ethics complaint. So he

48:08

is one step closer to

48:09

being disbarred.

48:11

Yeah, Rudy's life doesn't get any less complicated

48:14

as this, as all these things start to ramble forward.

48:16

Interesting thing to me in this is that DC

48:19

is taking such a definitive

48:21

stance on things that

48:24

Rudy allegedly did in a lawsuit

48:26

in Pennsylvania, which

48:28

I guess they have the authority to do that. I'm

48:31

not questioning it, but it is kind of an interesting

48:33

twist there. All

48:37

of this is probably very concerning to

48:39

Rudy, but none of it is probably quite

48:41

as concerning as the fact that he spent two days

48:43

talking to prosecutors likely under

48:45

a proper agreement for

48:49

the hope

48:51

that he can get himself out from

48:53

under any trouble that might

48:55

be coming from this January 6th investigation.

48:58

Yeah, and Eastman's

49:00

disbarment hearing is well underway, so is Jeffrey

49:02

Clark's. And Lynn Wood

49:05

quit before he could be disbarred. He hung up

49:07

his legal briefs there. And

49:11

he's basically, he's

49:13

like, I think he blamed aliens?

49:16

I know it was just,

49:17

it was whatever. A

49:19

likely story. Yeah, that

49:21

old chestnut. Anyway, we

49:24

do have a little bit more news to get to. So

49:28

we're going to take a quick break, but we'll be right back. Stick

49:30

around.

49:35

There's only one way to get

49:37

perfect air inside your home. And

49:39

that's from a Linux dealer, because your

49:42

comfort and health are the reason they go to work

49:44

every day. Right now, you can receive

49:46

up to $2,000 in rebates on

49:48

our ultimate comfort system, or qualified

49:51

buyers can make no payments and pay no

49:53

interest for six months to see how

49:55

perfect your air can be. Find your preferred

49:57

Linux dealer and confirm available

49:59

offerings.

50:00

at linux.com.

50:04

Welcome

50:30

back.

50:40

Okay, AG, from

50:42

Devlin Barrett at The Post this

50:44

week, we learned that authorities on Wednesday

50:47

unsealed additional portions of

50:50

the search warrant affidavit used

50:52

to get permission to scour Donald Trump's

50:55

Florida home last summer. So this is the infamous

50:57

search warrant, I think on August, was executed

51:00

on August 8th, where the

51:02

government went in and recovered, you

51:04

know, boxes and boxes of evidence, another hundred

51:06

classified documents. And

51:09

pieces of that, large pieces of that search

51:12

warrant affidavit have remained redacted.

51:15

And so the government lifted

51:17

some of those redactions this week. And

51:19

what we find is it reveals more

51:21

about what agents had learned by the time

51:23

they executed this search at Mar-a-Lago

51:26

on August 8th, including specifics

51:29

of how security camera footage captured

51:31

a key Trump aide moving boxes

51:33

both before and after he

51:36

was questioned by the FBI. And of course,

51:38

as

51:39

everyone following along at home

51:42

will know, we are talking about the

51:44

infamous Walt, not a good

51:46

witness, not a.

51:47

Yeah, who recently just pled not a guilty

51:50

at his arraignment. How

51:52

many puns can we do? The

51:55

details in this story offer

51:57

more granular account. And from the, you

51:59

know.

51:59

from the newly unsealed portions

52:02

of this affidavit, a more granular

52:04

account of Nada's movement of the boxes caught

52:06

on video and how that led investigators to

52:08

suspect that Trump was trying to hide

52:11

documents and mislead the Justice Department. And

52:13

it's pretty clearly laid out here as

52:15

it also is in the indictment. And the

52:17

newly unsealed portion of the affidavit says the surveillance

52:19

footage shows that four days after

52:21

the FBI interview, Nada moved

52:24

approximately 50 bankers' boxes

52:26

out of the storage room. The document adds

52:28

that the FBI, quote, did not

52:29

observe the same quantity of boxes being

52:32

returned. And that could account

52:34

for what we thought were gaps in the footage,

52:37

along with him taking specifically 34 minutes to

52:40

remove one box. Like,

52:43

what were you doing in there, buddy? But these

52:45

were motion-activated cameras. And

52:47

so that could be the gaps that

52:50

we, that, you know, that were in the news

52:52

for a while there. Also

52:54

on June 2nd, a day before FBI

52:56

officials arrived at Mar-a-Lago to collect

52:58

the documents in response to the

52:59

May 11th subpoena, security

53:02

camera footage shows Nada moving 25 to 30

53:04

boxes, some of which were brown

53:06

cardboard boxes and others which were bankers' boxes,

53:09

back to the storage room. So the key distinction

53:12

for investigators is

53:14

that Nada, apparently at Trump's

53:16

direction, moved in total about 64 boxes

53:19

from the storage room in

53:21

May of 2022, but only returned about 25

53:23

to 30 boxes.

53:24

And as you know, after

53:26

we read that indictment, I was like, Andy, where's the other 34

53:28

boxes? Where'd they

53:30

go?

53:31

Just so everybody knows, I

53:33

did a side-by-side comparison. I read both

53:35

the first unsealed

53:38

affidavit, because if you remember

53:40

Donald Trump, after his home

53:42

was searched, it was like,

53:44

release the affidavit, release it now. And

53:46

the DOJ is like, sure, cool, bro.

53:49

Called his bluff and released

53:51

a pretty redacted version, and that was back in August.

53:54

And now we have some of the

53:56

redaction bars lifted now that most

53:58

of the information is in there.

53:59

in the speaking indictment. And I

54:02

looked at them side by side and I

54:04

highlighted what has been revealed in

54:07

a Twitter thread on

54:09

my account at molarsherode. So you can see exactly

54:11

what new information has been

54:14

released. And so it's

54:16

out there. Again, it's

54:19

not much new that didn't come

54:21

out of the indictments. And there's still a lot that

54:24

is behind redaction

54:24

bars. Yeah, so this is

54:27

fascinating to me because it

54:29

shows, we knew, obviously

54:31

the indictment told us a lot and even

54:34

the basic math of the 60 out, 30

54:37

back, whatever it was, that's

54:39

in the indictment. But

54:40

we now know that they knew all this stuff

54:43

before the search warrant. So

54:46

the facts and the probable cause

54:49

going into that search warrant was overwhelming.

54:53

There's no daylight here

54:56

between the facts in the search warrant

54:58

affidavit. There's two little

55:00

things that really also jumped out

55:02

at me from the newly released

55:05

portions.

55:07

And both of them are in the category of how

55:10

the Trump team shoots itself in the head. The

55:12

first one is

55:15

in the infamous meeting on,

55:18

I guess it's June 3rd

55:20

between Corcoran, who is I think referred

55:22

to in the affidavit as like

55:24

F. POTUS lawyer

55:27

one or something.

55:28

He's meeting with DOJ down there

55:30

onsite at Mar-a-Lago and he tells

55:33

DOJ that all of the White

55:35

House records

55:36

are in the storage room

55:39

and they've never been moved any place

55:41

else.

55:42

Like that

55:45

statement by Trump's lawyer lays the

55:47

foundation for why

55:49

the videotaped surveillance

55:52

is so significant. And it shows

55:54

one of two things, either Corcoran is

55:56

in on it and lying to the government or

55:59

Corcoran's been.

55:59

deceived and lied to by his client. Either

56:02

way,

56:03

either way you interpret that,

56:05

that's a really great fact

56:07

for your argument of probable cause that there's

56:09

shenanigans going on with the boxes.

56:11

Yeah, that and the whole only

56:14

half of them came back into the room. And

56:16

it's also super interesting that

56:19

he moved boxes both before and after

56:22

he spoke to the FBI, which

56:24

means that he probably changed his

56:27

tune after that and that there

56:29

is still some ongoing investigation

56:31

surrounding that. Yeah,

56:34

it was

56:35

like in the days after they point

56:37

out in the affidavit, we discussed

56:39

the boxes with him at length in his interview,

56:41

you

56:42

know, he of course said he didn't know about

56:44

moving them or anything. And then in the

56:46

days after that, he's on video moving them around.

56:49

So he can't say, Oh, I didn't

56:52

know. I didn't realize it wasn't. It was significant.

56:54

He absolutely knew. And then the other

56:56

thing I thought was fascinating is they point out in

56:59

the affidavit that Corcoran

57:02

when he turns over the Redwell, the 38 documents that he

57:05

found,

57:07

he never describes those

57:09

documents as having been declassified.

57:12

He actually handles them

57:15

in basically the way that you handle classified

57:17

documents. He puts them in the Redwell.

57:19

He tapes the whole Redwell together.

57:22

He signs his name on

57:24

the tape so you can see if it's been tampered with.

57:26

These are all things that you do when

57:29

you're packaging classified documents.

57:31

So they can't now maintain,

57:34

Oh, it's okay because,

57:37

you know,

57:38

President

57:39

Trump, former President Trump declassified

57:42

all the documents before he left the White House

57:44

or in his mind or whatever, whatever, they

57:46

were all clearly, or Corcoran anyway,

57:49

handling this stuff essentially in

57:51

a way that acknowledged that they were still classified.

57:54

Yeah, absolutely. And one question

57:56

for you, Andy, before we get to a listener question, Andrew

57:59

Weissman has tweeted out that, Walt

58:01

Nauta was not charged with lying to the grand jury

58:03

in June, but is charged

58:05

with lying to the FBI in May,

58:08

which means he changed his tune by June.

58:10

Prosecutors would otherwise have charged perjury

58:13

in the grand jury, which is recorded, and

58:16

it's a stronger charge than just lying to

58:18

the FBI in an interview. What are

58:20

your thoughts about that tweet?

58:22

I think Andrew's probably right in his analysis

58:25

of which would have provided a stronger charge.

58:28

It's hard to say with great clarity exactly

58:30

why they would have made that decision, because we don't know

58:32

all the facts that they had to work with.

58:35

It also makes sense that,

58:38

you know, they may have, he may have lied to them,

58:41

and then they exposed it, realized

58:43

he was lying to them, likely with the video surveillance,

58:45

help of the video surveillance. They then meet with

58:48

him on other occasions. They get him to admit

58:50

that he lied, and by the time they put him

58:52

in the front of the grand jury, he's

58:54

telling the truth or some version of

58:56

it. So I think

58:58

Andrew's analysis is probably

59:01

right, although it's hard to be 100% confident

59:04

about that.

59:05

Yeah, hard to know for sure. I just

59:07

love the speculation. Yep. All

59:09

right, we have a listener question

59:11

or questions this week, Andy?

59:13

We do, we do. We have one, and I have to

59:15

say, we are, you know, the question

59:17

pipeline is open. So people, please

59:20

feel free to send us your questions. We address them, as

59:22

you know, every week at the end

59:24

of the show. It's hello at mullershewrote.com,

59:28

and of course, you put

59:30

Jack in the subject line, so that's how

59:32

we know that you're sending a Jack question.

59:34

So anyway, this week,

59:37

we have a question from someone who did not

59:39

include their name. So in the grand FBI

59:41

tradition, I'm going to refer to this person

59:43

as FNU-LNU,

59:45

which of course stands for

59:47

the abbreviation for first name unknown

59:50

and last name unknown.

59:51

There's a lot of cases in the

59:53

bureau that are captioned under FNU-LNU. I

59:55

thought you were going to say listener one.

59:57

I could have, maybe.

59:59

All right, next time. All

1:00:02

right, so the question starts off. First off, thank

1:00:04

you for what you're doing. I'm finding it valuable and

1:00:06

satisfying.

1:00:07

Here's a thought that keeps nudging my brain. You

1:00:10

know how, quote, he, and I

1:00:12

think we can safely assume

1:00:14

she means the former president, used

1:00:16

to flush documents and how he even complained

1:00:19

that high-efficiency toilets took 10 flushes.

1:00:21

I wonder if perhaps the plumbing at his residences

1:00:23

should be checked for clogs of documents

1:00:26

torn into tiny little pieces. Oh,

1:00:28

please let it be so. Well,

1:00:31

thank you, Fanu, for that question. It

1:00:33

does get to the slightly

1:00:36

more serious and legal

1:00:37

analysis of what

1:00:39

can you search when you show up at

1:00:42

the house. So agents and

1:00:44

prosecutors like to say, you are limited

1:00:47

to the four corners of the warrant.

1:00:49

And you can only search those places

1:00:52

that could reasonably be expected

1:00:54

to contain whatever it

1:00:57

is you have described in the warrant that you're looking

1:00:59

for.

1:01:00

Now, documents, you know, they can

1:01:02

pretty much be anywhere.

1:01:06

That would get you into cabinets, boxes,

1:01:09

desk drawers, apparently

1:01:11

the stage in the ballroom, the shower,

1:01:15

wherever these things were actually found. But

1:01:18

the question is, could you

1:01:19

go into the pipes to search for this stuff,

1:01:21

which would require some level of

1:01:25

kind of destructive, I'm sure,

1:01:28

unearthing of sewer pipes at Mar-a-Lago

1:01:30

as disgusting as that sounds? Probably

1:01:32

not. And unless you had some

1:01:34

specific facts that indicated

1:01:36

that there was a probable cause to believe that the

1:01:39

documents were in those pipes. Now,

1:01:41

I get it. There's a reasonable argument here that, sure,

1:01:44

we have all these facts that you've cited in your

1:01:46

question. Maybe that's enough

1:01:48

for probable cause, maybe it's not. You kind of have

1:01:51

to leave that up to the prosecutors to figure out

1:01:53

what they're comfortable going forward with. So I'm guessing

1:01:55

that they did not describe the pipes as

1:01:58

a place that they wanted to search.

1:01:59

But maybe they should have. Good

1:02:02

point. We'll flag that one for the

1:02:04

team. You really have to have the proof that they're

1:02:06

in those pipes right now.

1:02:08

Yeah, yeah. Kind of like how we

1:02:10

all sort of figured, well, why didn't they get a search warrant for

1:02:12

Bedminster? Well, because that evidence was

1:02:15

two years old. And

1:02:17

of course, parlatore and trustee

1:02:19

are like, we bring all those documents back with us

1:02:21

when we travel to Florida. Like,

1:02:24

oh, really? Have a seat, sir. Do

1:02:26

tell. So

1:02:28

yeah, I don't think that there's enough. Even though we have

1:02:30

evidence that he

1:02:32

flushed and tore stuff up in the White

1:02:35

House residence, it would need to be specific

1:02:38

evidence that it's in Mar-a-Lago.

1:02:40

Have you ever searched pipes for anything?

1:02:41

Oh, yeah, sure.

1:02:43

I mean, pipes are a common place

1:02:45

to search for biological

1:02:48

evidence. So if you're looking for DNA, if you're looking

1:02:50

for, you suspect that

1:02:52

whatever sort of a crime,

1:02:54

an assault, a homicide, sometimes

1:02:56

drug trafficking, people try to destroy

1:02:58

things by flushing them or sending it down

1:03:02

the drain. If you

1:03:03

cleaned something off in the shower,

1:03:06

you could definitely go into the pipe and pull some genetic

1:03:09

material, DNA, and things like that.

1:03:11

It's pretty common for those things.

1:03:13

Although I have to say, I've never seen anybody dive

1:03:15

into the sewer pipes looking for documents.

1:03:18

Well, stay tuned. This

1:03:21

thing isn't over. As we know, more subpoenas have gone

1:03:24

out. Thank you so much for your question. And

1:03:26

if you have, again, any questions at all, send them

1:03:28

to us. Hello at mullershewrote.com. Put

1:03:30

Jack in the subject line, and

1:03:33

we'll read it on the air and answer it on the air. Another

1:03:37

big show full of news, my friend. Again,

1:03:39

I can't wait to see what happens this week. There

1:03:42

was probably news that dropped while we were sitting

1:03:44

here recording this on a Friday

1:03:46

that we still don't know about. The only thing you can

1:03:48

know for sure is that there will be more

1:03:50

between now and next week. And

1:03:53

we'll be here to go over it for everybody.

1:03:56

All right, thank you so much again for

1:03:58

listening. We'll see you next time. I've been

1:04:01

Alison Gill. And I'm Andy McCabe. You've

1:04:03

been listening to Jack.

1:04:10

When's the last time you didn't fill enough?

1:04:14

If you relate to this question,

1:04:16

you want to check out our podcast, authentically

1:04:20

us. Yes, guys. Our

1:04:22

podcast authentically us is where we talk about what

1:04:24

it means to be authentic in everything

1:04:26

that you do in every space

1:04:29

that you occupy. Tony and

1:04:31

I created this podcast to create

1:04:33

a space to talk about

1:04:35

just who we are, our experiences

1:04:38

and just things that we are going through.

1:04:40

Yes. So come join

1:04:43

us with the journey as we figure

1:04:45

out what it means to be authentic

1:04:48

together.

1:04:50

Rack your look for summer now at Nordstrom

1:04:53

Rack and save up to 60% on brands

1:04:55

you love. We've got them. Ragon Bone,

1:04:57

Vince, Stuart Weitzman, Calvin Klein, Kurt

1:05:00

Geiger London, Madewell, Steve Madden and

1:05:02

Adidas score great brands great prices

1:05:05

every day at Nordstrom Rack. What will you

1:05:07

find? Breezy dresses, easy tops,

1:05:09

designer bags and sunglasses, sandals,

1:05:12

swim and activewear plus updates

1:05:14

for your family and home. Get summer's best

1:05:16

for less up to 60% less

1:05:18

today at your Nordstrom

1:05:20

Rack store.