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0:54

Media I

1:06

signed an order appointing Jack Smith

1:09

and those who say Jack is

1:11

a finesse. Mr. Smith is a

1:14

veteran career prosecutor. The

1:17

events leading up to and on

1:19

January 6th. Classified documents and other

1:21

presidential records. You understand what prison

1:23

is? Send me to jail. Welcome

1:33

to episode 63 of

1:36

Jack, the podcast about all things special

1:38

counsel. It is Sunday, February 11,

1:40

2024. I'm Andy McCabe. Hey,

1:44

Andy, I'm Allison Gill. And thanks to

1:46

everybody who listened to the bonus episode

1:48

on the immunity ruling in D.C. And

1:51

Andy, I'm really glad we did a separate

1:53

episode because otherwise, this episode

1:55

would be like two hours long. Yeah, we

1:57

need an intermission in the middle of it.

2:00

And by the way, that, it's out now

2:02

if you haven't listened to it. It is the first episode

2:05

after 62 weeks that we have had

2:07

to break in and do an extra episode. So I

2:09

encourage everybody to listen to it. But

2:12

we have a lot to get to today.

2:14

We'll go over potential new trial timelines for

2:16

DC. But we have so

2:18

much to cover down in Florida with

2:20

the Mar-a-Lago documents case, including Jack Smith's

2:23

response to Trump's ridiculous, overbroad

2:26

motion to compel discovery, along with a

2:28

ruling on that motion from Judge Cannon

2:30

that Jack Smith says contains a clear

2:33

error and manifest

2:35

injustice and could be

2:37

what leads to the first appeal to the

2:39

11th Circuit by the government, depending on how

2:41

she ruled. I'm thinking

2:43

clear error and manifest injustice is

2:45

not what you're gunning for as

2:47

a federal judge. But we'll see

2:49

how that plays out. Maybe I'm wrong. We

2:52

also have another Trump motion to delay in

2:54

Florida. This one's

2:57

asking for more time to

2:59

file pretrial motions, including one

3:01

on absolute presidential monarchy. I'm

3:04

sorry, immunity. But

3:06

first we need to discuss the latest in the

3:08

SEPA process, which means it's

3:10

time to talk to SEPA expert

3:12

Brian Greer for our Under Seal

3:14

segment. Brian

3:27

Greer, welcome to

3:30

the show. Thanks

3:38

for having me back. We

3:40

needed you this week because we have a lot of

3:42

weird stuff going back and forth with this SEPA section

3:44

four stuff. So I

3:46

was hoping you could give us a little

3:48

reminder about how it's supposed to normally go

3:51

and then what we're seeing happens in the

3:53

last couple of weeks here. Well,

3:56

first, you know, we named this segment Under Seal

3:58

probably like six months ago. I think

4:00

the name is finally coming to fruition like we

4:02

have now finally all these sealed

4:04

proceedings which are all sort of bubbling

4:07

up this week with the CPA section 4 with the

4:09

motion compel everything so I'm glad the name

4:11

is really finally Playing out. Let's

4:13

hope the name doesn't change to no longer under

4:15

seal It

4:19

could be expedited appeal So

4:22

yeah, it's just we've covered this before but just

4:24

to refresh everyone on what is CPA section 4

4:26

so in short It's

4:29

a tool under CPA that allows the government

4:31

to protect Classified information

4:33

that technically meets the standards of

4:35

discovery that it is relevant

4:37

to the case and discoverable under rule 16 of

4:40

the rules of criminal procedure But

4:43

because it's classified the government wants to

4:45

assert with essentially a classified information privilege

4:47

Just like executive privilege or attorney client

4:49

privilege to protect it in discovery

4:52

and then CPA provides the tool For

4:54

doing that and so what the government

4:56

does was it'll go in in a motion and

4:58

with supporting declarations and say hey There

5:00

are some documents out there information that

5:03

is technically discoverable, but we want to basically

5:05

sanitize it in different ways It

5:08

could be redacting it it could

5:10

be excising a discoverable sentence and

5:12

putting it in a new document or summarizing

5:14

it any of those tools But they need the courts

5:17

blessing to do that because the court needs to look

5:19

at all and make sure that the defendant is In

5:21

substantially the same places to defend themselves

5:24

as if that hadn't happened And so

5:26

that's pretty normal and every single case

5:29

involved in class for information It's

5:31

gonna be a lot different here and we'll talk about that,

5:33

but that's the normal process and I would just add

5:36

The normal stance of DOJ is to aggressively

5:38

use it in the DOJ

5:40

guidance It says you should

5:43

use section 4 to remove anything from

5:45

discovery that you can't that's the

5:47

guidance prosecutors That's not really what's happening here, but

5:49

we'll talk about that, right? Right

5:52

and and so, you know when we get to

5:54

see the section 4 that's when The

5:57

DOJ the government is supposed to meet with

6:00

judge in-camera ex parte

6:02

without the defense there at all,

6:04

lawyers or defendants, to

6:06

go over how they're going to sanitize

6:09

the information so that the

6:11

judge can make the call. And

6:13

then usually after the judge and the DOJ

6:16

come to some sort of an agreement, the

6:18

defense will have an opportunity to challenge

6:21

any of that, right? But

6:24

what are we seeing here that's different? Well,

6:28

one thing that's different is just the fact

6:30

that she's giving consideration to Trump's motion and

6:32

the other defendant's motion for getting

6:34

access to the information. They

6:36

have said, we want to see what DOJ

6:39

is filing in their briefs under

6:41

Section 4. And obviously, just to say

6:43

it's obvious, the whole point of the DOJ litigation is

6:45

they shouldn't see it. So if they get to see it,

6:48

it just defeats the whole purpose of CIPA Section

6:50

4. So I think they even they kind

6:52

of get that and say, well, if you won't let us see

6:54

the classified information, at least let

6:56

us see the unclassified portions of

6:59

DOJ's motions and briefs. That's

7:01

a little harder issue. Judges don't normally

7:03

do that. Frankly, that stuff is just

7:05

boilerplate legal standards. So

7:08

I don't think it would be the end of the world if she let them

7:10

see that. It would still be abnormal

7:12

just because there's no real point to it

7:14

usually. But her letting them make

7:16

all these motions, well,

7:18

they can make the motions, but seriously

7:21

entertaining to the point of giving them hours

7:23

of argument coming up next week about it

7:26

is definitely unusual. Normally this would have

7:28

been dismissed pretty easily. And

7:30

I know you can't answer this question, and now I'm going to ask

7:32

you anyway. Why? Why

7:34

are we here? Do you think that what's motivating

7:37

her or driving some of these

7:40

really outlier decisions

7:43

about CIPA is that

7:45

she doesn't understand the process or she's

7:47

never dealt with it before, maybe doesn't

7:49

have the right context about why

7:51

it's so important for the government

7:53

to be able to protect classified

7:55

and sensitive information, but it's

7:58

also important for them to be able to use it

8:00

in a... transparent way that's clear

8:02

and relevant to the defendant

8:04

in a trial. It's like you have these two

8:07

totally at odds competing

8:09

ideas at play here.

8:13

And what she's doing is really rattling

8:15

the foundation of the process that we

8:17

came up with years ago to facilitate

8:20

actually having fair trials about this

8:22

stuff. Yeah, the

8:25

question is, is judge cannon

8:27

incompetent or evil? I

8:29

think it's more to boil down to. There's

8:32

definitely the evil element which everyone can draw

8:34

their own conclusions on in

8:37

the bias issues. Incompetence, I

8:39

think, is definitely absolutely part of it. There's

8:42

still, I'm not really an optimist,

8:44

but I try to present an optimistic view to

8:46

everyone. And I'll do that here, which

8:48

is to say she's never been through it before, and now

8:50

she has, right? Like the first thing she did was instead

8:53

of having, she does have this hearing coming

8:55

up this upcoming week, two day

8:57

hearing about SIPA, but then she asked DOJ for an

8:59

earlier one back on January 31st, which is

9:02

sort of a pre SIPA Section 4

9:04

hearing where she met with them for a couple of hours

9:06

to talk about all this, which is what she normally should

9:08

have done. So the fact that she

9:10

even realized after looking at the motions and stuff,

9:12

hey, I should meet with them ahead of time,

9:15

a little bit of a good sign. And then this

9:17

might be a good transition into the Trump, what's going to

9:19

happen with Trump? So because I

9:21

think there's maybe some reason for optimism there. She

9:24

has no idea what DOJ has been planning until

9:26

she read their briefs and their motion.

9:29

At DOJ with Trump, I think it's

9:31

going to certainly take an extremely narrow

9:33

limited use of SIPA Section 4. He

9:36

was the former president of the United States. And

9:38

normally any defendant would get access to the

9:40

classified information in an SBIJ case

9:42

that they had access to while in

9:44

government. And so they're probably turning

9:46

all that stuff over to him. What

9:49

they're only really probably withholding is very limited things

9:51

that occurred after he was president and

9:54

that are probably a pretty limited document. The

9:56

hypothetical example I think of is, let's

9:59

say the... CIA sent a cable out

10:01

overseas to the station and said, hey, go talk to

10:04

the liaison service. Tell them we regret to

10:06

inform you that there was some identifying

10:08

information about your source in

10:11

one of the Trump documents. And here's what

10:13

it said. And they wrote back to

10:15

the CIA and said, you know what, we looked at it,

10:17

not a big deal. We don't think it identifies them, he's

10:19

good. That would be

10:21

technically discoverable. But DOJ may want

10:23

to say, hey, we don't want to turn over this whole

10:25

cable, maybe it talked about other things. Maybe

10:27

it revealed the name of the source, which isn't really

10:29

relevant to this case. There's

10:32

all sorts of other information cables, just not relevant.

10:34

Let us just take that little sentence out, hand

10:36

it to Trump's lawyers in classified discovery, delete

10:39

the rest. It could be very

10:41

narrow things like that, that she should have

10:43

no heartburn with. And these are

10:45

smart prosecutors. So I'm hoping that with Trump, they

10:48

see, oh wow, they're actually being very tailored

10:50

with this. Maybe I'm good

10:52

with it. And then at the same time, she

10:54

is hearing there the Trumps

10:56

and other lawyers arguments as to why, what

11:00

their discovery theories are, so she can better

11:02

evaluate that. So if you put those

11:04

two together, maybe, just maybe, she'll come to the

11:06

reasonable conclusion. All right, fingers crossed.

11:09

Now can DOJ respond to

11:11

Donald Trump's assertions, like

11:15

how you generally have a brief and a response and

11:17

a sur-reply, or reply and a sur-reply. Like

11:21

if Trump's like, look, we need

11:23

to see these and here's why, can

11:26

Jack Smith or Jay Brad or somebody on the

11:28

prosecution team have an opportunity

11:30

to say, to rebut

11:33

those arguments and say, there's no

11:35

law here, there's no citation. Because

11:37

commonly Trump will misquote

11:39

or cherry pick or miss

11:42

cite cases or the law

11:45

and get the facts wrong on the law. Does

11:48

the DOJ have an opportunity to

11:50

rebut those arguments that Trump might

11:53

put forward to get access

11:55

to these things? Yeah, I mean, there's

11:57

two distinct but related issues. One is, there's a

11:59

lot of arguments about why we should be

12:01

able to participate in the Section 4

12:03

process and see the briefs. That's been

12:05

briefed and that's been adversarial. But then there's the

12:08

second thing that we talked about, which I think

12:10

is what you're getting at, which is they

12:13

are going to be allowed this upcoming week to

12:15

go into her chambers and explain their defense theories

12:18

without the prosecutors being present. That

12:20

is not abnormal in a CPA Section 4

12:22

case and permitted and something that

12:25

would happen in a normal case. Sometimes the

12:27

defendants just don't do it for various reasons,

12:29

but DOJ is normally fine with

12:31

that and they have no objection to that here

12:33

because it's the one sort of

12:35

carrot that's given the defense of saying, hey, you

12:37

can go tell the judge what you think your

12:39

best defenses are so they can evaluate it. It's

12:42

basically like an olive branch, right?

12:44

We let the government have all this private

12:46

time with the judge, okay, we'll let you

12:49

have some too, although it's technically not nearly

12:51

as relevant to the process which is necessary

12:53

to protect sensitive information. Yeah, yeah. Exactly.

12:57

And one last thing

12:59

on this, why are these hearings

13:02

taking place now and not last

13:04

November or last December? I don't

13:06

understand the delay. Yeah, and

13:08

I think even with, you know,

13:10

she delayed everything in the fall, but even

13:13

with the delays, the government's CPA

13:15

Section 4 motion was filed December

13:18

4th. The same day, Trump

13:20

and other defendants put forth

13:22

their arguments about why they should

13:24

be given access to that stuff. I think DOJ

13:26

responded a couple weeks later about why

13:28

they shouldn't be given access. So this

13:31

litigation was done in

13:33

late December and we've

13:35

now waited all this

13:37

time, over a month and a half since then, to

13:40

have this hearing. There's nothing that's happened

13:42

in the last month and a half that would affect

13:44

this at all. Trump may argue, well, we've learned some

13:46

stuff in discovery that was a little

13:48

bit relevant. Like maybe that'll help on

13:51

the margins, but we've just wasted a month and a

13:53

half for no reason. This has been fully

13:55

breached and ready since December.

13:58

Yeah, and so far up to this point. It seems like these

14:00

nickel and dime delay is a month here,

14:03

three months here to make rulings and make

14:05

decisions and set hearing dates has

14:07

kind of been the MO, but

14:10

nothing overly egregious yet, right?

14:12

Breaking violating the law or the

14:15

SIPA process is from Judge

14:17

Cannon. Yeah. I mean, we're up on the

14:19

edge. We'll see what happens with the motion to compel that

14:21

you guys will talk about later. We're

14:24

on the edge here, but other than the

14:26

delays for no good reason, we

14:28

have... She hasn't just gone over that edge

14:30

yet and to create an appealable issue. Yeah.

14:33

Yeah. She's a bit like my frustration

14:36

with the Duke basketball team

14:38

this season. No sense

14:40

of urgency. Come on, fellas, hustle down

14:42

the court for God's sakes. There's

14:45

no hustling down the court happening in

14:48

Florida on this case either. So it's a

14:50

little bit frustrating to watch. Yeah.

14:53

Hey, Brian, what's... Can

14:55

you tell us a little bit about what's

14:58

happening with Walt Nauta and

15:00

his partner there,

15:02

Deo Lavera? They're in a little bit

15:04

of a different track, but relevant to

15:06

the Section 4 stuff. Yeah.

15:09

So remember, they're not charged under the

15:11

Espinage Act, which means the contents of

15:13

the documents that Mar-a-Lago that Trump's charged

15:15

with aren't relevant to the case

15:17

against them. DOJ isn't alleging that they've

15:20

seen them except for the one that Nauta took

15:22

a picture of, and they have shared

15:24

that with Nauta, the cover of

15:26

that document that he's written through. The

15:28

rest of it, DOJ's position is the

15:30

defendants do not need to see those documents because

15:33

they're not relevant to their case, the contents of

15:35

them. They still shared them

15:37

with their defense counsel though, unredacted

15:39

and classified discovery. And

15:41

normally in a protective order, that's something that would

15:43

be sort of permitted is to

15:45

share it with outside counsel only, cleared counsel

15:47

only, not the defendant. And

15:50

then if they want to make a case, hey, we

15:52

should be able to see that I need to show this document

15:54

by the defendant. They asked DOJ, DOJ says

15:56

no, they get to go to the court. Here Cannon

15:58

flipped all that on its head. She

16:00

said everything basically is presumptively going

16:03

to be shared with the defendants, and

16:05

DOJ has to use Section 4 to prevent

16:09

Nauda and D'Olovera from

16:11

seeing these documents. It's just like

16:13

reversing the burden of the

16:15

whole process. Exactly. So

16:18

it's a little nutty, but they're, again, to

16:20

put the optimist's tint

16:22

on it. What that means, though,

16:24

is in DOJ Section 4 litigation and

16:27

their briefs and supporting declarations, which are

16:29

from probably very senior

16:31

intelligence officials in way more detail than

16:33

they would be in a normal case, they have

16:35

to go through all those documents one by

16:37

one and explain why they're

16:39

classified and what the harm national security

16:41

would be from their unauthorized disclosure. That

16:44

wouldn't have happened in this case but for this

16:46

quirky thing that she ruled. She would have never

16:48

heard until they were getting ready for trial about

16:50

that. And so now DOJ is going to

16:52

get this chance to make their case to her, here's

16:55

the real harm in this case, and they can

16:57

do it right now sort of while

16:59

we're still, frankly, early in

17:02

the pretrial process. So, again,

17:04

probably not going to change her mind about

17:06

anything, but maybe it will. So

17:10

we'll see. If she's ever going to change her mind, it's

17:12

going to be now. If she comes out of this same

17:14

as always, then I think nothing's

17:17

ever going to change her mind. So

17:19

it's more delay, but it's possibly an

17:21

opportunity to kind of open the judge's

17:23

eyes as to what's really at stake

17:25

here. Yeah, exactly. All right.

17:27

So – and speaking of delay, Donald

17:30

Trump has filed a motion to

17:32

extend pretrial motion deadlines. And

17:35

in it he says, defendants currently

17:37

plan to file on February

17:40

22nd at minimum a

17:42

series of motions to dismiss the superseding

17:44

indictment and certain of the charges

17:46

therein. Specifically, although the

17:48

defense is still evaluating potential motions,

17:51

we expect to file motions on

17:54

February 22nd relating to the presidential

17:56

immunity, the Presidential Records Act, and

17:58

the Federal Government. President Trump's

18:00

security clearances, the vagueness

18:03

doctrine, impermissible pre-indictment

18:05

delay, that's a funny

18:07

one, and selective

18:09

and vindictive prosecution. Trump

18:12

asked for the deadline to be within one month

18:14

of the court's resolution of the pending motions, so

18:17

basically never. So Brian,

18:20

what's your top line thoughts

18:22

about that little grenade getting

18:24

thrown into the process? Yeah,

18:26

well on the delay points, I'd refer people

18:28

to DOJ's brief that they just

18:31

filed on this that was I think short

18:33

but excellent, saying, look, this was all supposed

18:35

to be done on November 3rd. She

18:37

didn't actually delay the pretrial schedule until November 3rd,

18:39

so they should have been ready on all this

18:42

on November 3rd. They point

18:45

out that they get the legal standard wrong because

18:48

normally, the whole point, as everyone knows who's

18:51

been tracking the DC cases, is when you

18:53

file these motions to dismiss you accept what's

18:55

in the indictment as true. So

18:58

you don't need discovery. Their whole argument is we need

19:00

more discovery to delay this. You don't need discovery under

19:03

the law, which they conveniently omitted

19:05

from their briefing with her. And

19:08

then they came up with this use of, hey, they just gave

19:10

us these 2200 pages of documents, we

19:13

need a delay for that. Can't possibly go forward now. Well,

19:16

DOJ explained in the motion in their

19:18

response, that 2200 is from probably

19:20

the DC grand jury proceeding litigation

19:22

about privilege.

19:25

Half of them, Trump's lawyers were given in that

19:27

case. It's just that those lawyers didn't

19:29

give them to some of the new lawyers. And

19:32

then the other half have already been produced in

19:34

discovery in this case. And

19:36

they didn't disclose any of that to Judge Cannon

19:38

when they cited this. So

19:41

hopefully, she'll get upset by all this. The

19:44

other thing that jumped out is the

19:46

presidential immunity piece, which I think, it's

19:48

funny, but

19:51

it's also going to be aggravating when there is another delay

19:53

because of this. But if you

19:55

thought it was crazy to argue that he

19:57

could order SEAL Team Sticks to kill.

20:00

his presidential opponent and be entitled presidential

20:02

immunity, here they're going to

20:04

be saying his post presidential conduct, remember

20:06

this is all post presidential conduct, is

20:10

immunized under

20:12

presidential immunity, which is just a whole

20:14

new level of craziness on

20:17

this argument. And you know, there may

20:19

be some more serious elements. Hey, I was still president

20:22

when I took him to Mar-a-Lago, and

20:24

then I shouldn't be prosecuted because when the

20:26

clock struck midnight or noon, excuse me, on

20:29

January 20th, I was no longer president

20:31

anymore. So they'll say he probably

20:33

like effectively declassified them by doing that.

20:36

But still, the fact of the

20:38

matter is he's only charged with post

20:40

presidential conduct. That doesn't mean you can

20:42

just keep them forever and be absolved

20:44

from criminal liability forever, especially when the

20:46

government's asking for them back. So it

20:49

will be silly, ultimately dismissed. Will it cause

20:51

some delay? Sure, sure.

20:53

It will. Yeah,

20:55

but it says we plan on filing

20:57

these against the superseding

21:00

indictment. And the

21:02

superseding indictment is just

21:04

obstruction. It has nothing to do with it.

21:07

Well, it's still, I think they just

21:09

mean it's still considered the operative indictment.

21:12

Okay. Oh, I got it. I see.

21:14

Not just the superseding charges. But to your

21:16

point, though, this argument

21:18

would have no bearing

21:21

on obstruction. Or the other

21:23

related obstruction charges. They may still come

21:25

with some crazy argument, similar

21:27

to what we saw with Barr

21:29

in the OLC memo of if

21:32

this was an invalid investigation, I would

21:34

even tell to instruct it. The transitive

21:36

property of presidential immunity. Yeah, yeah. So

21:38

they may come up with something pretty

21:40

extreme, but it should be

21:42

dismissed. The question is just how long is it going

21:44

to delay things? Yeah, I do expect to

21:46

see the argument that Bill Barr made that you

21:49

can't obstruct justice without an underlying

21:51

crime. And then he'll try to argue that

21:53

there's no underlying crime here because he was

21:55

president and he's immune or whatever. But it's

21:57

all fruit of the. fruity

22:00

tree. If

22:04

DOJ probably could do it over, they'd probably, I was looking

22:06

back at the indictment, for each charge it says the criminal

22:08

conduct started on January 20th. They'd

22:11

probably like make up some date further back potentially

22:14

on that. Because they're going to point to

22:16

that, I think Trump's lawyers won't say, see

22:19

it was immediate on noon. That's not

22:21

fair to a former president. But we'll

22:23

see. Well, thank you very much,

22:26

my friend. I really appreciate you coming on here and

22:28

summing this up for us these

22:30

last few weeks of SIPA stuff. And then of

22:32

course, love

22:35

to hear your opinion about the immunity, post-presidential

22:37

immunity. That's going to be a whole

22:39

new thing. And, you know, because we

22:41

waited forever for that DC immunity ruling.

22:44

And now we could actually see that here. So

22:48

anyway, we'll see how

22:51

that goes. But we appreciate your time. Can you tell

22:53

everybody where to find and follow you? Oh,

22:55

yeah, I'm on Twitter and other

22:57

platforms at SecretsAndLaws. Thank

22:59

you so much. Brian, thanks so much. Great to

23:01

see you again. Thanks a lot. Likewise. Everybody

23:04

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24:15

Hey, everybody, welcome back. We're staying

24:17

in Florida to cover Jack Smith's

24:19

reply to Trump's motion

24:22

to compel. You'll recall from

24:24

previous episodes that Trump filed

24:26

a similarly overbroad motion in

24:29

D.C. and special counsel

24:31

took it apart piece by piece. We've covered

24:33

that on the show. Well, now we're doing

24:35

the same do-si-do in Florida.

24:38

We went over Trump's motion to compel in

24:41

a previous episode. So now we

24:44

have Jack Smith's 67-page response

24:46

to Trump's motion to compel. Yeah,

24:48

and it's a doozy. So Jack

24:51

Smith opens with this. The

24:53

government will explain below why the

24:56

defendant's showings fall short of applicable

24:58

legal requirements. But before

25:00

turning to those arguments, it is

25:02

necessary to set the record straight

25:04

on the underlying facts that led

25:06

to this prosecution because the defendant's

25:08

motion paints an inaccurate and distorted

25:11

picture of events. The

25:13

government will clear the air on those issues,

25:15

not because the court needs to resolve factual

25:17

disputes before denying the motion. It

25:19

need not resolve the facts. But

25:22

because the defendant's misstatements, if unanswered,

25:24

leave a highly misleading impression on

25:26

a number of matters. After

25:29

that discussion, the government will turn to

25:31

the underlying legal principles and their application

25:33

to defendant's requests, all of which should

25:35

be denied. The

25:38

defendants rely on a pervasively

25:40

false narrative of the investigation's

25:42

origins. Their apparent

25:44

aim is to cast a cloud

25:46

of suspicion over responsible actions by

25:48

government officials diligently doing their jobs.

25:51

The defendant's insinuations have scant

25:53

factual or legal relevance to

25:56

their discovery requests, but

25:58

they should not stand on Put

26:01

simply, the government here

26:03

confronted an extraordinary situation, a

26:05

former president engaging in calculated

26:07

and persistent obstruction of the

26:09

collection of presidential records, which,

26:11

as a matter of law,

26:13

belonged to the United States

26:15

for the benefit of history

26:17

and posterity. And as

26:19

a matter of fact, here included

26:21

a trove of highly classified documents

26:23

containing some of the nation's most

26:25

sensitive information. The law required

26:28

that those documents be collected, and

26:30

the record establishes that the

26:32

relevant government officials perform their

26:35

tasks with professionalism and patience

26:37

in the face of unprecedented

26:39

defiance. Defendants are

26:42

not entitled to discovery of items

26:44

that are not within the government's

26:46

possession, custody, or control. Yeah,

26:49

I mean, this is

26:51

why I think this brief is

26:54

67 pages is because,

26:57

as you're about to cover, Jack

26:59

Smith goes through the entire

27:02

investigative process and crime going

27:05

back to the beginning and

27:07

basically saying, look, the

27:09

court doesn't need to know this, but

27:11

we need to set the record straight

27:13

before we even get into the legal implications

27:16

of what Donald Trump's asking for. Yeah,

27:18

there is definitely – this

27:20

thing rings with a sense of

27:23

we are sick of this BS. You

27:26

don't typically get that from government

27:28

filings. It's always very nothing but

27:30

the facts, straightforward. Sometimes

27:33

they get a little bit more heated

27:36

when they're talking about alleged wrongdoing, actions,

27:38

things like that. But this

27:40

is really almost like a settling score

27:42

sort of thing. But clearly,

27:44

the special counsel team

27:46

felt it's necessary to do this,

27:49

to stand up to this barrage

27:51

of false information. Yep,

27:53

exactly. And then Jack Smith outlines

27:56

all the facts, like I said, including the

27:59

removal of presidential rights. records by Trump

28:01

starting back on January 20th, the

28:03

retrieval efforts by the National

28:05

Archives, the delays and the continued

28:07

efforts by the National Archives. There's even

28:09

a section called Fall Comes with, and

28:12

we still don't have it, you know. The

28:15

leaves turn and there's no documents.

28:18

And then the leaves turn and snow begins

28:20

to fall. Yeah, and then finally 15 boxes

28:22

make their way

28:24

to the National Archives. National Archives

28:27

finds classified documents in those

28:29

boxes. Then in January of

28:31

2022, the archivist

28:33

reaches out to the DOJ and says,

28:35

hey, we got some classified stuff here. DOJ

28:38

actually says to the archivist, go

28:41

back to your inspector general,

28:43

have them review this, and

28:46

then have them contact us. That

28:48

is the proper process by

28:50

which you make a referral to the

28:52

Department of Justice. And Jack

28:54

Smith and the special counsel's office

28:57

outlines this as a

28:59

way to say there's nothing nefarious going

29:02

on here. We put every layer of

29:04

every process of every step of the

29:06

entire thing in its correct

29:09

place. We did this the right way. So then

29:11

in February, the next

29:13

month of 2022, that's

29:15

when they make their official

29:17

referral to the Department of Justice.

29:20

And then finally, he goes into the

29:22

investigation, including the subpoena, what happened, the

29:24

search warrant, and then the indictment. And

29:27

after laying out all the facts of

29:30

the whole timeline, special counsel's

29:33

office dives in to the

29:35

motion to compel. Right? So he

29:37

set the record straight. And

29:39

now, Andy, what does he have to say

29:41

about the motion to compel? Well,

29:44

he starts with kind of laying it out,

29:46

right? He says, to prevail

29:48

on a motion to compel, the

29:50

defendants must make three showings. First,

29:53

they must describe the information they

29:55

seek with sufficient particularity to demonstrate

29:57

that the evidence is, quote, material.

29:59

to preparing the defense under Rule

30:01

16 or material

30:04

to guilt or punishment under

30:06

Brady. Second, they must

30:08

demonstrate that the information they seek is

30:10

within the government's possession, custody,

30:12

or control. Third,

30:14

the information they seek must not

30:16

be protected from disclosure

30:19

by an applicable privilege. Each

30:21

of the defendant's discovery requests fails to

30:24

satisfy one or more of these requirements.

30:28

Many fail to seek evidence material

30:30

to preparing their defense because they are

30:32

not specific, are not accompanied

30:34

by an explanation of how the item

30:36

sought will significantly alter the proof in

30:38

the defense's favor, or are

30:40

grounded in speculation and conjecture. Other

30:43

requests seek evidence that even if it

30:45

existed would fall outside the scope of

30:48

Rule 16 in Brady because

30:50

it has nothing to do with factual

30:52

guilt or innocence. I

30:54

mean, it's like you would expect to

30:57

see this on a review of like

30:59

a first year law student's paper, you

31:01

know, like, no, you

31:03

got the law all wrong,

31:05

stuff's irrelevant, it's nonsense. Yeah,

31:08

and we saw this in the DC filing too, where

31:11

Jack Smith is like, this stuff doesn't even exist. Remember

31:13

when he wanted all the deleted January 6th

31:15

committee material? And

31:19

he did this in, by the way, he did this

31:21

in Fulton County too, in the state prosecution by

31:23

DA Fonney Willis. And the judge

31:25

there was like, just like two

31:28

sentences. He's like, this stuff doesn't exist,

31:30

motion denied. Like it was just in

31:32

and out. That's the difference

31:34

in the state. They know how to like

31:36

grind through things quickly because they have such

31:38

a massive volume to handle. Yeah.

31:41

So he also just like in

31:43

the DC motion to compel, Trump

31:45

tries to expand what's called expanding

31:48

the scope of the investigative team.

31:50

Right? Because as Jack Smith

31:52

says, you can only get stuff

31:55

that's in control and custody of

31:57

the investigative team. So

31:59

Trump comes in and says, the Department of

32:01

Energy is investigating me, I need memos from

32:03

the Department of Energy. Or in the

32:06

DC case, there was a

32:08

briefing between the ODNI and Jeff Clark,

32:10

and I need that, notes on that

32:12

briefing. Stuff

32:15

from the intelligence community, underlying

32:17

materials from the ICA, the

32:19

intelligence community assessment on

32:21

Russia, those things. And

32:25

Jack Smith explained succinctly

32:28

there, they're not part of

32:30

the investigative team, bro. Department of

32:32

Energy is not in the special counsel's office, so you

32:34

can't ask for that stuff, even if it existed. And

32:37

the same thing happens here. Trump

32:40

is trying to expand the scope of the

32:42

investigative team to seek documents from multiple

32:44

agencies that he's not entitled to. And

32:46

then, when documents are from the investigative

32:48

team that they might have, that

32:50

Jack Smith or the investigative team might actually have

32:52

control or custody over, a lot

32:55

of those documents, as Jack Smith

32:58

says, are covered by privilege, attorney-client

33:00

privilege, work product doctrine, speech or

33:02

debate privilege, deliberative process privilege. Trump

33:04

can't have those either. Yeah,

33:07

I mean, again,

33:09

he's having to give a lesson to

33:11

the defense in how discovery is conducted

33:14

and kind of to the judge at

33:16

the same time. So Jack

33:18

Smith sums it up like this. Adding

33:21

these principles to the defendant's discovery request

33:23

shows that their motion to compel should

33:25

be denied in full. The

33:27

defendants group their requests into six main

33:30

categories in which they seek, one,

33:32

evidence of improper coordination with the

33:35

National Archives to abuse the grand

33:37

jury process, and

33:39

two, evidence relating to the

33:41

attempt to retroactively terminate President

33:43

Trump's security clearance and related

33:46

disclosures. Three, evidence

33:48

relating to the use of

33:50

secure facilities at President Trump's

33:52

residences. Four, evidence

33:54

of bias and investigative misconduct.

33:57

Five, all correspond...

34:00

and or communications concerning the search of

34:02

Mar-a-Lago, and 6. CCTV

34:05

footage. These also

34:07

include two additional uncategorized requests

34:10

seeking 7. The

34:12

removal of redactions and 8. The

34:15

production in unclassified discovery of

34:17

certain materials produced in classified

34:20

discovery. Each request, to

34:22

the extent that it seeks evidence that has

34:24

not already been turned over, fails

34:26

to establish one or more of the requirements

34:28

for a motion to compel. Namely,

34:30

that the evidence sought must be material

34:32

to the defense, it must be

34:34

within the government's possession, custody, or control,

34:37

and must not be protected from

34:39

disclosure by an applicable privilege.

34:42

Yeah, and Andy, I think my favorite

34:44

part is

34:47

the couple pages that are spent where

34:50

Jack Smith is responding to Trump alleging

34:53

that the DOJ failed to produce the CCTV

34:55

footage, number 6 in your list up there. When

34:58

it was actually Trump, Walt,

35:00

and Carlos' months-long inability to

35:02

figure out how to work

35:04

the video player. Like

35:07

at first, they were trying

35:09

to watch it on an iPad, and so the government's like,

35:11

no, you can't do that, let's bring you. So they

35:13

run a laptop over to him. And

35:16

then like a month goes by, and they contact

35:18

the DOJ, we can't get this to work. And

35:21

the DOJ responds, it's your proprietary

35:24

video player from the Trump organization.

35:27

All right, let's send an IT, like it was an

35:30

IT nightmare back and forth to just try to

35:32

get them to be able to watch the video. And

35:36

so that's why- Let's

35:38

remember, this is not like

35:40

some closed circuit, surreptitious surveillance video

35:42

that the government installed in Mar-a-Lago.

35:46

It's their CCTV. I mean,

35:48

presumably, they have access to as much or as little

35:50

of that stuff as they want to look at any

35:52

time they want on their own system. But-

35:56

Yeah, and they should be calling Alan Fuderfoss or the IT guy

35:58

over at- isn't Dale Rivera an IT

36:00

guy? Well, they can't talk

36:02

to Taveras anymore. But you know, why

36:05

don't they call the Trump organization and say, hey, how

36:07

do we figure out how to watch our own CCTV

36:09

video? No, they wait and wait and

36:11

wait, and then complain to the judge, we can't

36:14

even view this. And we need more time. And

36:16

we need the calamari twins on it. Come

36:18

on, get somebody down here. Bust open a

36:20

CCTV, our defense is getting stale. I

36:22

mean, oh my gosh. Yeah, so

36:25

that I thought that was kind of, that's just

36:27

a little entertainment that he put that in

36:29

there. But there's more than

36:31

meets the eye to this motion to compel. Trump

36:34

attached some protected discovery

36:37

to the motion in what appears

36:39

to be an attempt to release that

36:41

discovery, which includes the names of

36:43

witnesses and some of their testimony to the public.

36:47

This, I don't know how this is going to work

36:49

out, but we'll talk about it. It's getting real.

36:51

Yeah, it seems like it seems like trickery.

36:54

But we'll talk about it after the break. Stick around. I'm

37:01

Roman Mars, host of 99% Invisible. I'm

37:04

excited to be teaming up with LexusGX

37:06

and SiriusXM on some very special 99

37:08

PI episodes. We're heading to some of

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the cities in the US that have

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and SiriusXM and Lexus vehicles, visit lexus.com/GX

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and siriusxm.com/LexusTrium. The all new LexusGX. Live

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up to it. Check out the 99%

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38:02

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38:04

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38:07

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38:09

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code WELCOME. Welcome

38:38

back. Allison, as you hinted

38:40

before the break, there's something nefarious going

38:42

on with Trump motions to unseal that

38:45

include the names of witnesses and evidence

38:47

that's actually under a protective order. So

38:50

what can you tell us about this? Okay,

38:52

wow. This was

38:55

late Thursday night, right? Like

38:58

almost midnight. Jack

39:00

Smith filed what I read as

39:02

his most stunning rebuke of

39:04

Judge Cannon on the Mar-a-Lago docket. I mean,

39:07

we thought that his reply to the motion

39:09

to compel was on fire. This

39:11

was beyond. He

39:13

filed a motion for reconsideration and

39:16

a stay on her previous order to

39:18

unseal documents filed as supplements to that

39:20

motion to compel we just talked about.

39:23

In his motion, Jack Smith

39:26

said Judge Cannon made a

39:28

quote, clear error, unquote, and

39:30

that she must reverse it to

39:33

prevent quote, manifest injustice, unquote.

39:36

I have never, you know, like thinking

39:38

back to when we had our very first conversation

39:40

on the old Mueller She Wrote podcast about Mueller

39:43

going to paper and his letter about

39:46

how his bar

39:48

mischaracterized his findings and all that strong

39:50

language in there. I have

39:52

never seen a manifest

39:55

injustice and clear error in

39:58

a filing. feeling like this yet

40:00

in this case, but we have it now. Pretty

40:03

serious accusation against the federal judge. You

40:06

know, you sometimes see from defense attorneys

40:08

who are, you know,

40:10

working a strategy of trying to like

40:13

light everybody's hair on fire, thrown

40:16

around big words about this is

40:18

an absolute travesty of justice, that sort of

40:20

thing. You don't really see that on the

40:22

prosecution side. So

40:25

to basically throw the

40:27

possibility of clear error, which equals

40:29

you're going to get overturned on

40:32

appeal and manifest injustice into a

40:34

federal judge's face by the prosecution

40:36

is pretty rare. Yeah,

40:39

I've only seen language like this back when

40:42

Jack Smith was dealing with Judge Cannon

40:44

in the special master situation,

40:47

which by the way, got overturned because

40:51

she made a clear error. So Trump attached

40:53

sealed supplements to that motion to compel that

40:55

we just talked about that

40:57

include over two dozen witness names

40:59

and evidence transcripts that are covered

41:01

by the discovery protective order, which

41:03

was issued by Cannon. And

41:06

that's when you know, when you, when you

41:08

put a protective order on discovery, it means

41:10

that when you send it over to Trump's

41:12

camp, they can't release it to the public.

41:15

That's right. Yeah. And it's

41:17

you can't violate the protective order.

41:20

So he's attaching all of this

41:22

protected discovery to this motion

41:24

to compel and then asking Cannon to unseal

41:26

it. And she granted that. So I think

41:28

he's doing this so he can make public

41:31

the names of potential witnesses and their testimony.

41:34

And I think Jack Smith knew instantly

41:36

that this was Trump's goal. And

41:38

of course, that's speculation about what's going on

41:40

in the minds and hearts of the parties here.

41:44

Yeah. But before he filed his

41:46

motion for consideration, reconsideration before Jack Smith

41:48

filed this motion. He filed

41:50

to ask permission, leave of the court, to

41:53

add evidence to his motion, under

41:55

seal, showing online threats made

41:57

against one of the government's potential witnesses.

42:00

Jack Smith asked to file an

42:03

under seal because those threats, Andy,

42:05

are actually currently under federal criminal

42:07

investigation. And you

42:10

don't want to reveal stuff that

42:12

is under federal criminal investigation. The

42:14

definition of sensitive information in a criminal

42:16

case. Yeah, and that's how bad

42:18

these threats are. And though

42:20

we can't see that supplemental filing, we don't know

42:23

the threats, we don't know the witness. I imagine

42:25

it contains evidence that Trump's motive here is to

42:27

release the names of these individuals to unleash threats

42:29

of violence against them. Jack Smith

42:32

has pointed this out in both

42:34

jurisdictions in multiple filings, especially

42:36

I'm thinking of the limited don't call it a gag

42:38

order motions. Trump

42:41

then claimed, and Judge Cannon ruled,

42:44

that the standard for the government to keep

42:47

those records sealed is much

42:49

higher than the actual standard,

42:51

right? Judge Cannon said

42:53

that the, quote, government bore the

42:55

burden to demonstrate that sealing or

42:58

redaction is necessitated by

43:00

a compelling governmental interest and

43:03

is narrowly tailored to serve that interest.

43:06

But that's incorrect. That's the clear

43:08

error, right? Yeah,

43:10

that's exactly right. So Jack Smith

43:13

writes, first, the 11th

43:15

Circuit has held that the compelling

43:17

interest standard applied by the court

43:19

does not apply to, quote, documents

43:21

filed in connection with motions to

43:23

compel discovery, which instead

43:26

may be sealed or redacted simply

43:28

upon a showing of good cause.

43:31

He says that given the evidence

43:33

of online threats currently under federal

43:35

criminal investigation, combined with

43:37

the standard practice of not releasing protected

43:39

discovery to the public, as

43:42

it would hinder this case, is

43:44

well beyond the good cause needed to keep

43:46

them under seal. So

43:48

he's asked Judge Cannon to reconsider her

43:50

ruling, which contains a clear error on

43:52

the law and to stay the release

43:54

of the witness information and evidence until

43:57

she rules on Jack Smith's motion. All

44:00

of that protected discovery was going to

44:02

be unsealed Friday, but early this morning,

44:04

Judge Cannon issued a paperless order on

44:06

the docket that she is extending this

44:09

decision and giving Trump, Nada, and De

44:11

La Vera until February 23rd to respond.

44:16

This seems, you know, the

44:19

fact that he cited the 11th Circuit. Now, I know that

44:21

you generally cite rulings

44:23

in your circuit

44:25

when you're citing cases

44:28

in a

44:30

pleading, right? Right. That's

44:32

the precedential value, right? I

44:34

also feel like there's a nudge, like

44:36

a elbow in the rib to Eileen Cannon,

44:38

like the 11th Circuit

44:41

says you're wrong. Remember what happened the

44:43

last time the 11th

44:45

Circuit said you were wrong? And

44:47

so I really think that this

44:51

is the strongest indication yet

44:54

that he's setting this up

44:57

to appeal if she doesn't rule

44:59

within the law and correct

45:01

her error. I fully

45:04

expect that he'll appeal if she goes against

45:06

his request. He

45:09

almost has no choice. The prosecutor has

45:11

to do whatever he possibly can to

45:14

protect the

45:16

witnesses in the case and to

45:18

ensure that those people aren't harmed

45:21

or discouraged or dissuaded from

45:23

providing truthful testimony in any

45:25

way. So yeah, I mean

45:27

I don't – this does not sound like he's going to

45:29

just shrug his shoulders and walk

45:31

away if she says, nah, don't worry about it.

45:33

Let's put it all out there. The whole thing

45:35

is so weird because it defies the purpose of

45:38

the protective order in the first place.

45:41

Like none of that stuff would

45:43

have been under a protective order if it

45:45

was okay to share it with the public.

45:47

So how did she just let this curveball

45:50

slip right past her? I don't really know. Yeah,

45:53

I don't know either but – Again,

46:00

it boils down to incompetence

46:02

or, you know, purposefully

46:08

trying to take the case. I mean,

46:10

this would do serious damage to

46:13

his case and the ongoing investigation into the

46:15

threats that were made online to this witness

46:17

that are filed under seal here. And

46:22

I mean, I'm assuming she's not going to –

46:24

because she granted permission for him to file that

46:26

under seal, so I don't think that she would

46:28

end up releasing that. So I wouldn't be surprised

46:32

that Donald Trump asked for it to be

46:34

unsealed. Who knows? And I'd

46:36

be interested to see how Trump

46:39

and de la Vera and Nada come

46:41

in and argue against Smith's

46:44

petition here. Like they

46:46

already have the names of the witnesses, right?

46:48

They're not – you know, the protective

46:51

order doesn't conceal the witnesses from them. What's

46:55

the argument in favor of sharing the

46:57

witness list with the public? There's

47:00

just no compelling interest to the defendant

47:02

there at all. And I mean, maybe

47:04

I'm not seeing it, but yeah,

47:07

I'd be interested to hear what they articulate.

47:10

Yeah, but that she found that Jack Smith

47:12

didn't meet the wrong burden,

47:14

by the way, the too high burden

47:18

to keep these things sealed is like

47:20

why? Like what

47:23

even – what reason even is there, like

47:25

you said, to release these witness names to the public

47:27

other than you and I know what it is, but you

47:30

know, what – and everybody else, but what

47:33

could possibly be the reason? It makes no sense, but

47:35

we'll keep an eye on it for

47:37

you. All right, before we get to the HER report,

47:40

Just Security has just issued

47:42

a very handy graphic outlining the

47:45

new potential DC trial

47:47

timeline. Back up to Judge Chutkin now,

47:50

and this is based on the fact that

47:52

we got the immunity ruling this past Tuesday.

47:54

It's a flowchart, so let me see if I

47:57

can go through it here, right? Well,

48:00

they say that, just

48:03

security says that SCOTUS

48:05

is more, probably more likely to

48:08

actually grant CERT in this

48:10

case. So their timelines are based

48:12

on the Supreme Court granting CERT.

48:15

And honestly, if they don't grant CERT, that's the

48:18

fastest of all the timelines.

48:21

But they don't really lay that out. They just

48:23

say that granting CERT is probably

48:26

not on the table. I disagree

48:28

a little bit. I think that there's

48:31

a strong possibility that the Supreme Court

48:33

might deny CERT here. But let's go through what happens

48:35

if they grant CERT. If

48:38

they treat the stay as

48:41

a CERT petition on

48:44

February 12th, then

48:48

by around March 5th through 15th, like the

48:50

first half of March, they will have

48:52

the oral arguments. Then

48:55

sometime between April 5th

48:58

and 15th, there will be a Supreme Court decision. A

49:00

lot of folks are saying it wouldn't have – they

49:02

don't have to have that decision until

49:05

June. But they can release

49:07

it earlier. And so they're putting it

49:09

at about April 5th through the 15th. And

49:12

then saying the trial will begin sometime around the

49:14

5th of July, right,

49:17

the first half of July, and

49:19

conclude in the first half

49:21

of October, which is, gosh,

49:25

a month before the election.

49:27

Squeaking it in right before the door closes.

49:30

So that is the timeline if they

49:32

treat the stay as a CERT petition.

49:35

Now let's say they grant a stay with

49:37

a 10-day limit. Meaning

49:39

grant the stay and give them 10 days

49:42

to actually file their official petition for CERT.

49:45

Mm-hmm. Yeah. So

49:47

if the petition for CERT would be granted

49:51

February 29th, they say, then

49:53

oral arguments are pushed back to the end of

49:55

March. And then a SCOTUS

49:58

decision at the end of April, trial begins. begins

50:00

at the end of July and trial

50:02

concludes at the end of October. And

50:04

that's the longest timeline that they have here.

50:07

Yeah. But if they

50:09

grant the stay, petition for cert, there's a

50:11

second option here that let's say that the

50:14

petition for cert is denied,

50:16

it returns to the district court. And

50:19

trial begins June 1st and is

50:21

over by September 1st, right?

50:25

Closer to your dream scenario. And I

50:27

should say one that a lot

50:30

of people think is the most likely. I'm a

50:32

little surprised that they're really leaning hard in the

50:35

direction of the court will grant

50:37

cert because there's a lot of

50:39

folks that are saying the opposite, but that's an

50:41

interesting perspective. It is. And then

50:43

the third option is if they grant a

50:45

stay without limits, like you don't have any

50:47

time limit to file, then

50:50

that puts the cert, the petition for

50:52

cert not due until May 12th. Okay.

50:56

And I actually think that that's probably the longest

50:58

timeline. It doesn't really have what

51:01

happens the rest of the way probably because in

51:03

that scenario, I don't think the trial goes before

51:06

the election. And that's the worst

51:08

case scenario everybody's talking about. If

51:11

they grant cert and don't put a time

51:13

limit on it and grant a stay, then

51:15

they could just sit on it for however

51:17

long they wanted and it's not due for 45

51:19

days. Right. If

51:21

they grant cert, you're getting a stay. It's going to

51:24

come with the granting of cert triari.

51:27

And if they just keep it on

51:29

the normal track, which is that last

51:32

possibility number three that you just talked about,

51:34

yeah, there's no chance that the case goes

51:37

before the election. Well,

51:39

there is another scenario where they could grant

51:43

cert, but not a stay.

51:46

Because it's interlocutory, you need five votes on

51:48

the Supreme Court to grant the stay, but

51:50

only four to grant cert. I

51:53

don't know that this would, this seems like

51:55

a real, one of those real outliers, because

51:58

that would mean that they. And

52:00

what we've seen this happen a few times,

52:02

especially with privilege battles in

52:05

these particular cases, where the

52:07

court says, we'll hear your appeal, but we're not

52:09

going to stay the DC trial. And the

52:11

DC trial is allowed to continue, well,

52:13

the proceedings are allowed to continue while

52:16

they make their decision on

52:18

certiorari. But

52:20

then you run into the problem of the

52:22

interlocutory nature of the appeal. You can't have

52:25

the trial start until there is a decision,

52:27

but they could, that decision making process could

52:29

run parallel to some of the behind the

52:31

scenes trial stuff going on in DC. And

52:34

maybe at some point the twain shall meet, and

52:36

they can decide whether they're going to go forward

52:38

or block the trial. That

52:43

seems like a real outlying thing where they would only

52:45

get four votes and not five for this day, but

52:47

who knows? I mean, maybe John Roberts

52:50

will be like, I'm not granting a stay, but

52:53

then they have to grant cert. Yeah, I

52:55

find that highly unlikely. If

52:57

they're going to dig in and say, yeah,

52:59

we're coming into this one, we're wading into

53:01

this pool, they're

53:04

going to stop the DC case in the process. It

53:08

wouldn't make sense for them to go forward. Yeah,

53:11

and tomorrow is the deadline. The mandate

53:13

goes into effect tomorrow. So

53:16

unless the Supreme Court intervenes

53:19

and grants cert and a stay

53:21

or a cert without a stay or

53:23

a stay without cert yet, whatever

53:26

they decide to do, if they

53:28

don't issue a stay by

53:31

the close of day Monday,

53:33

then the proceedings can continue down

53:37

in or up in the DC

53:39

trial proceedings can go forward.

53:42

She can rule on motions or more

53:44

discovery can go over or stuff like

53:46

that because the mandate issues on Monday. Now

53:48

it was built into this. Remember how we

53:50

said, wouldn't it be great if they lifted the stay when

53:53

they came up with their decision on immunity? That's kind of

53:55

what this is. Yeah. Yeah.

53:58

Interesting. The

54:01

final option way

54:03

over here on the end is that they deny

54:05

cert. Denied game on. And

54:08

then they put unlikely. And

54:11

they don't want to explain why, but I think the

54:13

reasons I've heard from what I'm reading at

54:15

least is that people think that the

54:17

Supreme Court is really going to want to weigh

54:19

in on this because they're full of themselves. That's

54:22

sort of... Man, I don't know. I didn't

54:24

hear a lot of like real

54:26

positivity coming from their involvement in the

54:29

arguments this week on the 14th Amendment

54:31

thing. They sounded reluctant as hell. And

54:37

I kind of feel like there's

54:39

a solid ruling for them

54:41

to defer to and I

54:43

still feel like it's that's

54:45

likely. But

54:48

who knows? Who knows? There's no picking

54:50

them. Yeah. My

54:54

favorite is they deny cert. The

54:56

most likely I'm hearing is that they

54:58

grant cert and a limited stay and

55:01

then make a pretty fast ruling. And

55:05

the ruling would be to deny immunity. I

55:08

was watching the arguments on the 14th

55:10

Amendment and all of the conservative justices

55:12

are like, yeah, but you can indict

55:14

a former president. You

55:17

could charge him with 2383. That's the

55:19

thing. And that would make it so that

55:21

he wasn't eligible to be on the ballot.

55:24

So they all seemed to... To be

55:26

embracing this idea that there is no presidential

55:28

immunity. Yeah. Right. And

55:31

look at it very weird way. If they did

55:33

weigh in and resolve the issue conclusively from the

55:35

mouth of the Supreme Court, it would

55:37

kill it in the Florida case. Motion

55:41

for immunity in the Florida case denied.

55:44

I mean... But it's special. It's

55:46

different because I was no longer president. And

55:48

so they carry over and I had a queue

55:50

clearance and then that was Department of Energy, which is why

55:52

I need their documents. I don't know. Even

55:55

Judge Cannon would have a hard time...

56:00

hosting that motion, hearing it and

56:02

giving a consideration after the Supreme

56:04

Court, just in an emergency rush

56:06

process, weighed in to say,

56:08

no way, not here, never. Yeah.

56:11

And she actually, my judge, Cannon might actually

56:13

be like, I'm not going to rule on

56:15

any immunity motion until it's resolved in the

56:17

DC case. And that's what I would do, honestly.

56:20

So she gets to delay a little bit, not really do

56:22

any work and gets

56:26

to make a reasonable

56:28

ruling. But- All

56:30

right. Should we go to how the Americans feel

56:33

about this? Yeah, this was great. This

56:35

came from your colleagues at CNN. Yeah.

56:38

So new polling shows about half of

56:40

Americans, 48%, say

56:42

it's essential that a verdict is reached before

56:44

the 2024 presidential election. And

56:47

another 16% say they'd prefer to see one.

56:51

Just 11% say that a trial on the

56:53

charges should be postponed until following the election,

56:56

with another quarter saying the trial's

56:58

timing doesn't matter to them. Fascinating

57:01

group of people that quarter. Okay. Well,

57:04

it doesn't matter to me. I'm not

57:06

voting for them regardless of when a trial is.

57:08

So maybe I would fall in that 25%. I

57:11

mean, I think you still want it to happen before. It's

57:14

not going to change your vote, but when you

57:16

like to see the result, how it affects everybody

57:18

else. I think it's pretty important. Yeah. Yeah.

57:22

All right. So with respect to

57:24

72% majority of Democrats and a

57:26

52% majority of independents say it's

57:31

essential that a verdict is reached pre-election.

57:34

Republicans are more split,

57:36

while 38% say that a verdict should

57:39

be reached before the presidential election, including

57:41

20% who call that essential. Another

57:45

39% say that it doesn't

57:47

matter when the trial is held, and 23% say

57:49

they think the trial should

57:52

be held after this election.

57:54

So I don't know.

57:56

I still think that those numbers show a pretty

57:59

compelling interest. in how this

58:01

is going to turn out. And you

58:03

could extrapolate that this echoes

58:06

kind of what some of the exit polling

58:08

showed in Iowa and New Hampshire, that people

58:12

are watching this and there is

58:14

some significant percentage of folks

58:16

who would consider it a

58:19

problem if a candidate, a

58:21

nominee, had been convicted of

58:23

a felony. Yeah, I

58:25

think that 52% of independence is bad

58:27

news for him politically. And the fact

58:29

that 38% of Republicans won

58:32

a verdict before the election, I think that's a

58:34

big number. So. Well,

58:37

we'll see. We'll see how it turns out.

58:40

It kind of all depends on what the

58:42

Supreme Court does on Monday. Yes.

58:45

So we'll keep an eye on that for you. Everybody, we

58:47

need to take one more quick break. But

58:50

we have more news, so stick around. We'll be right back. ♪

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1:00:02

Hey everybody, welcome back. Before

1:00:04

we get to listener questions, we have

1:00:06

to discuss Robert Herr

1:00:09

and his report. But before

1:00:11

we get into it, Andy, I want to play our

1:00:14

discussion about special counsel Robert

1:00:16

Herr on episode 7 of

1:00:19

Jack. We're on 63. This is

1:00:21

from episode How is it

1:00:24

for the baby podcaster back then? This

1:00:28

is a little more than a year ago before

1:00:30

you got your good microphone so everybody note.

1:00:34

This is when he was appointed special

1:00:36

counsel to investigate President Biden's handling of

1:00:38

classified documents. Let's listen to that clip.

1:00:43

So yes, in the Mueller special

1:00:46

counsel case, Rob was

1:00:48

essentially the number two. And

1:00:50

this is where I think the

1:00:53

kind of perfection of his resume is great,

1:00:56

but let's put that aside and

1:00:58

think a little bit deeper here. Rob

1:01:00

was part of the Trump DOJ

1:01:03

leadership team. And that is

1:01:05

a team that was involved

1:01:07

with a number

1:01:09

of decisions and things that I

1:01:11

think raise important questions now about

1:01:13

Rob's current job. And

1:01:16

the first would be the Mueller investigation.

1:01:18

So we now know, of course, that

1:01:20

Rob Herr was Rod Rosenstein's guy that

1:01:23

he used to oversee the special counsel

1:01:26

work. Rob Herr met with, according to

1:01:28

reports, the special counsel team like twice

1:01:30

a week. And he was the

1:01:32

guy that talked to Mueller and the Mueller

1:01:34

team and brought that information back and reported

1:01:36

it back to the acting attorney general for

1:01:38

that case, who was Rod Rosenstein. We

1:01:41

also know that Rod and

1:01:43

Rob Herr, presumably, very,

1:01:45

very carefully and quietly curtailed the investigative

1:01:48

scope of that investigation in ways that

1:01:50

were not disclosed to the public. We

1:01:52

only found that out later on with

1:01:54

the infamous second memo

1:01:57

telling Mueller how to do his

1:01:59

job. So he had

1:02:01

a lot of interaction with that team. He

1:02:03

was involved in kind of keeping it in

1:02:06

a lane that everybody was more comfortable with.

1:02:08

And I think that's interesting. So he

1:02:10

held, quote-unquote, Land the Plain, presumably.

1:02:13

You know, I think that's – I don't know

1:02:15

that for a fact, because by that point I

1:02:17

was gone. But I think that's a fair question.

1:02:21

And he also – I mean, look, we know

1:02:23

there was a lot – I know from my

1:02:25

own personal experience with these guys before I left.

1:02:27

There was a lot of – I

1:02:30

think what could be described as questionable

1:02:32

or uncomfortable kind of bleed over of

1:02:35

White House politics into DOJ

1:02:38

operations and decision-making. And I think a

1:02:40

good example of that is Rob Hurr

1:02:43

taking the podium at the White House

1:02:45

to announce some

1:02:47

accomplishments in a big MS-13 arrest. I

1:02:50

mean that is not done, right?

1:02:53

DOJ criminal operations

1:02:55

are supposed

1:02:58

to be independent of White House

1:03:00

political direction, and so that was

1:03:02

an act that I thought was

1:03:05

really questionable. So I just

1:03:07

throw this out there to say there

1:03:09

are some things that stand out in

1:03:11

my mind as good questions to

1:03:13

keep in the back of your head as we

1:03:16

watch Rob Hurr do his job on this very

1:03:18

important case. And

1:03:20

at the end of the day, we'll see. We're going to watch it. We're

1:03:23

going to talk to you all about it. We're going to report on

1:03:25

it. And we're going to overanalyze everything

1:03:27

as we typically do, and we'll

1:03:29

see how he does. So,

1:03:31

wow, my friend, very

1:03:34

prescient. You telling us

1:03:36

that we needed to keep this in

1:03:38

mind as this investigation goes forward,

1:03:40

especially the part where he likes to

1:03:43

inject politics into

1:03:47

Department of Justice stuff, like particularly that

1:03:49

took the podium at the White House.

1:03:52

I know that you've got actual

1:03:55

experience working with him, which is why that

1:03:57

whole thing – we

1:04:00

discussed it a year ago. Yeah. And,

1:04:02

you know, I got to say this is a little bit

1:04:05

uncomfortable for me. And

1:04:08

I'm talking about this on CNN yesterday

1:04:11

and a couple times today. And

1:04:14

so I just kind of feel like I should throw

1:04:16

this out there as a full disclosure item before

1:04:19

I go on to tell you about what I

1:04:22

think about the report. So I do know Rob

1:04:24

and I worked with him when he was what

1:04:26

we call the pay-dag, which is I think the

1:04:30

principal assistant

1:04:33

attorney general. Deputy

1:04:35

Attorney General. There you go. I know

1:04:37

who's going to get that wrong. So basically… Yeah, O'Callaghan

1:04:39

was that after… Right. The

1:04:41

pay-dag is the

1:04:44

deputy attorney general, the DAG, okay?

1:04:47

Pay-dag is the DAG's right hand. Pay-dag

1:04:50

is the person who executes all of

1:04:52

the deputy attorney general's commands. And that

1:04:54

is a very significant role because the

1:04:57

deputy attorney general is actually the person

1:04:59

who runs the Justice Department. The

1:05:02

attorney general has all the authority, but

1:05:06

the day-to-day runnings of

1:05:08

that massive, massive machine

1:05:10

are conducted by the deputy

1:05:12

attorney general, the DAG, and also

1:05:14

his right hand man or woman,

1:05:16

the pay-dag. So

1:05:18

when I was deputy director of the bureau,

1:05:20

the first part of the Trump administration, Rob

1:05:23

Herr came in. He was very close to

1:05:25

Rod Rosenstein, who was the DAG at the

1:05:27

time, and so I worked with him in

1:05:29

that capacity. And he was

1:05:31

the acting attorney general in the Mueller

1:05:33

investigation because Jeff Sessions had recused himself.

1:05:36

That's right. So Rosenstein was the acting

1:05:38

attorney general over the Mueller investigation, and

1:05:40

Rob Herr was basically the

1:05:42

guy that Rosenstein designated to

1:05:44

be the primary point of contact between

1:05:47

DOJ and the Mueller investigation. So he

1:05:49

was the guy that was getting

1:05:51

the regular briefings from Mueller's team and

1:05:54

everything else. And that calls into question.

1:05:56

That's why I mentioned in that clip that we

1:05:58

should wonder about... Rob Hur's

1:06:00

role in what we now know

1:06:02

was a pretty considered

1:06:05

effort by Rosenstein and

1:06:07

undoubtedly her to curtail

1:06:10

Mueller's investigation while it was in

1:06:13

process. So

1:06:15

I should also, but the full

1:06:18

disclosure part of this is that

1:06:20

Rob Hur was also personally involved

1:06:23

in several of the aspects of my

1:06:25

firing and things that

1:06:27

in my lawsuit against the Department

1:06:29

of Justice. We

1:06:32

alleged that Hur was really

1:06:34

a key player in

1:06:37

overriding and essentially

1:06:39

abandoning all of the process that

1:06:41

I was entitled to and basically

1:06:44

accelerating the

1:06:48

decision to fire me in an effort to

1:06:50

get it done before I could retire. So

1:06:54

that lawsuit we settled and that's widely known.

1:06:56

So I don't want to go into the

1:06:58

details of the settlement, but I

1:07:00

feel like it's important. That

1:07:03

doesn't affect the way that I analyze

1:07:05

Rob Hur's performance on

1:07:07

this special counsel investigation in his report. I have

1:07:09

some critical things to say, but I feel like

1:07:12

the listeners deserve to know some of

1:07:15

that history and consider it however

1:07:17

you will. So

1:07:20

with respect to his current report,

1:07:24

I was struck by the language in the report as

1:07:26

many people have been. The

1:07:30

requirements on the special counsel – the requirement

1:07:32

is simply that they must produce a report

1:07:34

and turn it over to the attorney general

1:07:36

at the conclusion of their work. And

1:07:40

the report is supposed to explain

1:07:42

whether they've chosen to prosecute or

1:07:44

decline prosecution. And the report certainly

1:07:46

does that. I was

1:07:48

struck by the language in the report as many people

1:07:50

have been. I think it's

1:07:52

important to point out that the

1:07:54

requirement from the regulations over the

1:07:57

special counsel is simply that they…

1:08:00

produce a report and give it to the attorney general. But

1:08:02

in addition to that, the

1:08:05

special counsels function under

1:08:08

the authorization of

1:08:10

the Department of Justice. And it

1:08:12

is, I think, universally accepted that they're

1:08:14

also supposed to comply with DOJ policies and

1:08:16

procedures. And some of those policies, as we

1:08:19

talked about in the last couple of shows,

1:08:22

include things like you don't impugn

1:08:24

the reputations of people who

1:08:27

aren't charged with wrongdoing. And

1:08:30

I do think that there's a lot of

1:08:32

ways that this report

1:08:34

really goes right to the edge or over the

1:08:36

edge in doing that

1:08:38

and their characterizations of Biden and his memory

1:08:40

and other things. At least

1:08:42

not outside of the facts, right? Because the

1:08:44

Mueller report certainly impunes the

1:08:47

character of Donald Trump and

1:08:49

his campaign and his

1:08:51

obstructive ways, but it doesn't

1:08:53

go beyond the facts of the case,

1:08:56

right? They're like, well, he tried to

1:08:58

fire special counsel, he went

1:09:00

through Don McGahn, they didn't add like, he smelled

1:09:02

bad and seemed stupid. It

1:09:05

was just the facts of the case. The,

1:09:07

what the investigation uncovered was

1:09:10

Trump's behavior and actions around

1:09:12

these things. And so

1:09:14

that's what you relate in the report.

1:09:17

Here's what we found. You also relate

1:09:19

in the report, here's why we've decided

1:09:21

to prosecute or not prosecute. I think

1:09:23

the better comparison to the Mueller report

1:09:25

is that Mueller, to

1:09:27

the massive frustration probably of half of

1:09:29

the country, would

1:09:32

not answer the question of whether

1:09:34

or not any other citizen

1:09:36

who engaged in this sort of conduct

1:09:38

would have been indicted. Mueller

1:09:41

proceeding from the assumption that he cannot

1:09:43

be indicted because he was a sitting

1:09:45

president would not say that but for

1:09:47

his sitting president status he would have

1:09:49

been indicted. Now you can read- And

1:09:51

his reason was is because if I come

1:09:54

out and say that he obstructed justice, then

1:09:56

I am taking from him his constitutional right

1:09:58

to face me in a- court of law

1:10:00

because he can't be indicted. That was his reason.

1:10:02

That's right. He won't have an opportunity to go

1:10:05

into court and clear his name and confront that

1:10:07

accusation because we're not going to indict him. So,

1:10:10

you know, and I know that was very frustrating to

1:10:12

many people, but that was Mueller adhering

1:10:14

to what he perceived as

1:10:16

DOJ guidelines and policies writ

1:10:19

large. I'm not so sure that Rob Hurd

1:10:21

did that here. There is definitely a sense,

1:10:23

when you read this report, that there

1:10:25

was some writing for the headline value,

1:10:27

and then you get deeper into the

1:10:29

analysis, and it just doesn't hold up

1:10:32

the headline. For instance, he says

1:10:34

in several places, makes

1:10:36

the very bold and absolute statement

1:10:38

that Biden intentionally

1:10:41

withheld national defense willfully

1:10:44

and withheld or retained national

1:10:46

defense information. So

1:10:49

much so that in, I

1:10:51

think it's chapter 11, first

1:10:53

paragraph, he repeats that same

1:10:55

accusation. And then a paragraph

1:10:57

later says there is insufficient

1:10:59

evidence to establish beyond

1:11:02

a reasonable doubt that Biden

1:11:04

willfully retained national defense

1:11:07

information. So in addition to that being

1:11:09

like head-spinningly confusing, I mean, even

1:11:11

as a sophisticated reader, when you read that

1:11:13

chapter, you're just like, wait a second, didn't

1:11:15

he just say in the previous paragraph that

1:11:18

the guy did it? It's

1:11:21

like the absolute

1:11:23

statement gets the headline, and then he

1:11:25

goes on to explain that that's not

1:11:27

really the case. The same thing is

1:11:29

true for everything, all this conversation around

1:11:32

the comment that Biden made in a

1:11:35

recording of a conversation with

1:11:37

his ghostwriter. So here's

1:11:40

the deal on that one. It's February 2017. Biden

1:11:44

is in his house in Virginia, and he

1:11:46

says to his

1:11:48

ghostwriter – must have been somehow

1:11:51

recorded. I don't know how it was recorded. He says, I

1:11:54

found all the classified stuff downstairs,

1:11:57

her in many places in the report.

1:12:00

declares that what Biden was talking

1:12:02

about was these papers about Afghanistan

1:12:04

and the policy in Afghanistan and

1:12:06

that sort of thing. It's

1:12:09

not until well past page

1:12:11

200 that he explains that

1:12:14

in that conversation, after making

1:12:16

that comment, Biden never explains

1:12:18

or identifies what papers or

1:12:20

what stuff or what classified

1:12:22

stuff he was talking about.

1:12:25

Not only that, the rest of

1:12:27

the entire conversation between he and

1:12:29

the Ghost Rider never includes any

1:12:31

classified information. And finally,

1:12:34

the actual Afghanistan papers

1:12:37

weren't found in the house

1:12:39

in Virginia. They were found

1:12:41

in the garage in Delaware

1:12:43

years later. So there's absolutely

1:12:46

no chance any prosecutor could

1:12:48

ever tie that statement

1:12:51

or could look at that statement as an admission

1:12:54

of holding or willfully

1:12:56

retaining the national defense

1:12:58

information of the Afghanistan papers in

1:13:00

Virginia in 2017. Nevertheless,

1:13:02

Robert Herr refers to Biden's

1:13:05

– at some point, he

1:13:08

says the best case would be

1:13:10

for willfully retaining the Afghanistan papers

1:13:13

in 2017 in the house in Virginia. It's

1:13:16

just not there. And it's conflicting.

1:13:18

And I think it's – I

1:13:21

don't know. It raises a lot of

1:13:23

questions about why he would

1:13:25

have characterized the evidence in that way

1:13:28

and drawn these conclusions about Biden

1:13:30

in the report that really aren't

1:13:34

substantiated by the facts and the analysis

1:13:36

in the report. Yeah,

1:13:39

and the part that got me was that, well, we

1:13:41

didn't indict him because he's old and

1:13:43

cute and cuddly and memories

1:13:46

bad. When in

1:13:48

fact, the report lays out that the reason that

1:13:50

he wasn't indicted – and he wouldn't even be

1:13:52

indicted if it weren't a sitting president – is

1:13:55

because they don't have the evidence to

1:13:57

prove beyond a reasonable doubt that he willfully retained

1:13:59

documents. That's the statement that should be made about

1:14:01

why you stand up to prosecute someone. They

1:14:04

don't have the evidence, and he readily

1:14:06

not only acknowledges, he goes through

1:14:09

a detailed analysis of the fact

1:14:11

that Biden would have several very

1:14:14

capable and likely successful defenses to these

1:14:16

charges if it were to go to

1:14:19

trial. So no evidence

1:14:22

and clearly likely successful

1:14:24

defenses. That doesn't lead you to

1:14:26

excoriating the guy. And even

1:14:29

if, as you were explaining why

1:14:31

you decided to decline prosecution, one

1:14:34

of your reasons was based on

1:14:36

the fact that it

1:14:38

would be hard to prove Biden's intent,

1:14:41

willful intent to retain this material,

1:14:44

partially because he didn't really remember it

1:14:46

very clearly. He showed no memory of

1:14:48

having taken or had this stuff. If

1:14:51

Biden had stumbled in the interviews over

1:14:53

issues like that, about his memory, you

1:14:55

might want to make reference to that.

1:14:58

But you do that by saying

1:15:00

the witness was unable to recollect X

1:15:03

or the witness was unable to claim

1:15:05

he didn't remember Y. You don't say

1:15:07

– Which Donald Trump did 40 times

1:15:09

in his written responses to Bob Mueller.

1:15:13

Every witness who's ever been interviewed has failed

1:15:15

to remember something. Me among them, I've failed

1:15:17

to remember really important stuff that I wish

1:15:19

I had remembered, but nevertheless – There are

1:15:21

a ton of people in the United States who've never sat through

1:15:23

a depot and it shows because

1:15:26

I've been in depositions, and they're like, don't

1:15:28

try to tell us through vague

1:15:30

recollection. You either

1:15:33

recall something or you don't, and if you don't, say

1:15:35

you don't. Don't speculate. I

1:15:38

got this sense about the report literally

1:15:40

in the very first couple of pages,

1:15:42

but where the first part, he

1:15:44

starts off by talking about Joe

1:15:46

Biden, and Joe Biden

1:15:49

had all these materials because

1:15:51

he's someone who always considered himself a

1:15:54

statesman or something like that. He thinks

1:15:56

he's very important than political. He

1:16:01

says something like he wanted these

1:16:03

materials as evidence of his presidential

1:16:05

timber. Now that

1:16:07

statement is not cited, there's

1:16:10

no footnote, it's not cited to any

1:16:13

actual statement of Biden. So

1:16:15

the question is, why are

1:16:17

you characterizing his motivation

1:16:20

for retaining this material? Like what is

1:16:22

that based on? It

1:16:24

comes off as, I hate to use

1:16:26

the word because people are throwing it

1:16:28

all around, but it does come off

1:16:30

as gratuitous and unnecessary and kind of like

1:16:33

underhanded. So he's

1:16:35

also not a psychologist, he's not a

1:16:37

psychiatrist, he's not a doctor, he's a prosecutor

1:16:40

and he should be using prosecutorial legal terms

1:16:42

of art. If

1:16:45

he asked Joe Biden why did you have this

1:16:47

stuff and Joe Biden said I felt like it

1:16:49

was great evidence of my presidential timber, then fine,

1:16:51

put it in the report. But barring that –

1:16:53

There's no citation. No, no. No,

1:16:56

so – And I think that's

1:16:58

why the White House is now considering they

1:17:01

want the transcripts. Yeah. So

1:17:04

when you look at all this together, I think

1:17:07

it raises some very significant

1:17:10

questions about the decisions

1:17:13

that Rob Herr made

1:17:15

in presenting how he

1:17:17

presented this information. Look, he had to write

1:17:19

a report, good on you. The

1:17:21

report is very detailed, that's great. When

1:17:24

you get into the analysis, if you're like

1:17:27

me and reading past page 200, you'll see

1:17:31

some very clear explanations as to why there's no

1:17:33

case here. But

1:17:35

the headline value is off from

1:17:38

what the report actually

1:17:40

contains. It's super political

1:17:43

and as you warned us to keep an eye on

1:17:45

the political nature of what

1:17:47

Robert Herr may or may not do. But

1:17:52

yeah, no charges. First

1:17:54

special counsel in history. Not

1:17:56

to bring in – That's crazy. I

1:17:58

didn't realize that, but yeah, really. interesting. Yeah

1:18:01

and you know I think you know I

1:18:03

think there'll be testimony. I'm looking

1:18:06

forward to that. I mean honestly I

1:18:09

think it should be totally exonerated and we can

1:18:12

just move on. Totally

1:18:15

exoneration. Oh my gosh. But

1:18:17

you know it does show

1:18:19

that we have some we have gaps in our

1:18:21

classification system. I know he's put together a task

1:18:23

force now to look at this and

1:18:26

how classified is handled. I thought

1:18:28

when the investigation into Trump

1:18:31

was announced and then Vice President

1:18:33

Pence, former Vice President Pence and

1:18:35

Biden, I thought there

1:18:37

should have been an announcement that we're

1:18:39

going to have a moonshot 10-year plan

1:18:41

to digitize and modernize the classification system.

1:18:44

I still think that that should take

1:18:46

place but we haven't seen that

1:18:48

either. But you know this

1:18:51

seems very political in nature. I am

1:18:53

kind of not surprised based on what

1:18:55

we now know, what we knew a

1:18:57

year ago, what he taught us about

1:19:00

Robert Herr. But here we

1:19:03

are and it will have to be dealt with. It's

1:19:05

a black eye politically

1:19:07

and that's

1:19:10

I think a problem. It goes

1:19:13

against DOJ. And

1:19:15

let's be honest, top line, Merrick Garland

1:19:17

should not have chosen Robert Herr.

1:19:20

Well I thought it was a questionable choice at the

1:19:22

time. My review of the report

1:19:24

kind of confirms what I initially thought. And I

1:19:26

can't sit here and tell you why Herr did

1:19:28

this. Whether it was an

1:19:31

affirmative political decision, he's trying to give Joe

1:19:33

Biden a black eye, or he was trying

1:19:35

to throw a bone to his conservative

1:19:38

friends who probably aren't crazy about the idea that

1:19:40

he didn't recommend charges. I have no idea. Could

1:19:42

be any of those things. You should ask Robert

1:19:45

Herr and you should answer those questions. But

1:19:47

I want to ask Merrick Garland why he picked Robert

1:19:49

Herr. I mean he's only one of two Trump holdovers.

1:19:52

Yeah, I mean like, you know,

1:19:55

Jack Smith wasn't a member of

1:19:58

the Biden administration. I

1:20:01

mean you – I'm

1:20:03

trying to remember his resume from –

1:20:05

that would have been episode one

1:20:07

or two or something. But

1:20:10

he was a career professional on DOJ. He was at

1:20:12

the Hague. He was at the pen a long time

1:20:14

ago, like 2004 to 2014 or something like that. At

1:20:19

the Hague. Then came back and

1:20:21

he was actually an acting U.S.

1:20:23

attorney somewhere. I don't think that that's

1:20:25

a political appointee.

1:20:28

That's just like you're in as an acting. I don't

1:20:30

think you have to be Senate confirmed to be an

1:20:33

– if you'd been Senate confirmed, you wouldn't

1:20:35

have been an acting. But he was

1:20:37

at the Hague when he was appointed special counsel. Yeah,

1:20:39

of course. And he couldn't fly back immediately because he

1:20:41

injured himself running an ultra-marathon because he gets the guy

1:20:43

like – Of course. And he's a guy that has

1:20:46

no history of partisanship. He

1:20:49

– we served in DOJ but down

1:20:51

– layers down that are beyond kind

1:20:54

of the touch of politics. Not

1:20:56

the same with Rob Herr. Rob Herr was an

1:20:59

essential element of

1:21:01

Donald Trump's legal team at DOJ. Full

1:21:04

stop. And I just felt like

1:21:06

at the time, like I get it, Garland

1:21:09

is maybe trying to pick a

1:21:11

conservative, a prominent conservative to take

1:21:13

this investigation of Biden, keep everything

1:21:16

neutral, whatever. But it

1:21:18

was an overreach. I don't think he needed to pick someone from

1:21:20

the Trump team. Washington,

1:21:22

D.C., is full of really good lawyers,

1:21:24

many of whom are former prosecutors and

1:21:27

many of those who served in Republican

1:21:29

administrations, not the one that's running

1:21:31

against the other guy. I mean it – Yeah,

1:21:34

I mean if you're trying to swing the pendulum so

1:21:36

hard the other way that you're going to allow Durham

1:21:38

to continue being Durham and you're going to

1:21:41

appoint the only other Trump holdover to

1:21:43

investigate this. Just

1:21:46

to be able to say, hey, I

1:21:49

was trying to – I would be fair. I

1:21:52

would be fair. But it was – I don't

1:21:55

really – It

1:21:58

was the wrong decision. It was the wrong decision. I

1:22:00

would love to be able

1:22:03

to know the decision making process

1:22:05

there. Like, did you think it was

1:22:07

cooler that you'd be able to say, hey, he's a Republican

1:22:09

than what

1:22:11

we're facing now? I mean, and it affected it

1:22:13

took a year and, you know, Mike Pence's took

1:22:16

a couple months open and shut the DOJ did

1:22:18

it itself. Yeah. So

1:22:20

I think there should have been a special counsel.

1:22:22

I just don't think it should have been her.

1:22:24

And yes, I know everyone. Have

1:22:27

your fainting couch. I'm criticizing the Department

1:22:29

of Justice. Oh my goodness. I

1:22:31

do that from time to time when it's necessary. And

1:22:34

I think this was a long choice. All

1:22:37

right. Should we go to listener questions and wrap

1:22:39

this incredibly long show up? Yes. And

1:22:41

if, can you imagine if we had to cover the immunity

1:22:44

ruling this week in this episode, my friend?

1:22:47

Yeah. Yeah. All right.

1:22:50

I got two very quick ones for you. The first one comes to

1:22:52

us from Joy. And Joy asks,

1:22:54

has Andy McCabe ever been mistaken for

1:22:56

Michael Kelly? Michael's portrayal

1:22:58

of Mike November in Tom Clancy's Jack

1:23:00

Ryan sure looks like Andy, especially with

1:23:03

those lovely black frames on. Any possibility

1:23:05

of Michael Kelly playing Andy in a

1:23:07

film or TV adaptation of his life?

1:23:11

Yeah. Joy,

1:23:13

it happened already. Michael

1:23:15

Kelly played me in the movie version

1:23:18

of Jim Comey's book. What

1:23:21

was it called? The Comey Rule. Yes.

1:23:25

And I met Michael. Yeah. I

1:23:27

met him before the movie after he'd gotten

1:23:30

the job. We had lunch together one day.

1:23:32

It was just awesome. He's such a nice

1:23:34

guy. And we have all these similarities in

1:23:37

our past. We're both like cross

1:23:39

country runners in high school and all this other

1:23:41

kind of stuff. And at the end

1:23:43

of our lunch, he was leaving and he said, well, I

1:23:45

have to go because I have an appointment uptown to have

1:23:47

a wig made of your hair. I

1:23:50

was like, that's the grossest and weirdest thing

1:23:52

anyone's ever said to me. But it worked.

1:23:54

Did you have to donate the hair? No,

1:23:57

I guess they just gin up some sort of wig that

1:23:59

looks like a wig. like you. No, he did

1:24:01

a really great job portraying you in that.

1:24:04

Yeah, he did. He's terrific. So that's question

1:24:06

one. All right. So question

1:24:08

two comes to us from Kathy. I

1:24:10

think Chloe Sevigny would play me in

1:24:14

the movie about- Yeah, yeah. I could see

1:24:16

that. I could totally see that. Yeah. Because

1:24:18

I'm a little too old for Drew Barrymore to play me now.

1:24:21

The movie version of Jack. I

1:24:24

used to get Drew Barrymore all the time, but now

1:24:26

I think Chloe Sevigny. Yeah, no,

1:24:28

I'm there. I agree. All right.

1:24:31

Last question comes to us from

1:24:33

Kathy. Kathy says, I'd really

1:24:35

like to know if special counsel Robert Her

1:24:37

was required to present a report on President

1:24:40

Biden's document case to the AG. If he

1:24:42

did, why would AG Garland allow some of

1:24:44

the issues regarding to the president's age and

1:24:46

some memory lapses to be included in the

1:24:49

report? It's totally unnecessary and seems to have

1:24:51

been included on purpose to cause an uproar.

1:24:54

So Kathy, we obviously just talked about that. 28

1:24:57

CFR section 600 is

1:25:03

where you can find the regulations for

1:25:05

special counsel, DOJ special counsel. And it

1:25:07

is 600.9 that

1:25:09

has the requirement, it says closing documentation

1:25:11

at the conclusion of the special counsel's

1:25:13

work. He or she shall provide the

1:25:16

attorney general with a confidential report explaining

1:25:18

the prosecution or declination decisions reached by

1:25:20

the special counsel. That's it. But

1:25:22

later on, it

1:25:24

also makes clear that if

1:25:26

the attorney general disagrees with the

1:25:29

report or wants to

1:25:31

change a finding or something like that,

1:25:33

which that's

1:25:36

what would have essentially happened. If Garland had

1:25:38

said, no, no, I don't want this language

1:25:40

in there. I don't want you to refer

1:25:42

to Biden in this way, that

1:25:44

would have triggered a whole process whereby

1:25:46

the AG would have had to report

1:25:48

that to Congress that he had essentially

1:25:50

gotten involved at the last minute and

1:25:52

changed the substance of the report. Can

1:25:54

you imagine? Oh my God, that

1:25:56

would have just turned the whole thing into a kind of a. That

1:25:59

would have been like what? Bill Barr did. Yeah,

1:26:02

I wouldn't encourage anybody to

1:26:06

wish that Garland was more like Bill Barr. I

1:26:09

think, again, the top line problem here is

1:26:11

that her shouldn't have been the person that

1:26:14

was appointed. It would have avoided that. Maybe,

1:26:17

necessarily, but I think

1:26:19

more attention to that. That's the mistake.

1:26:21

The mistake started there with the appointment.

1:26:23

But coming in, covering up, redacting stuff,

1:26:25

changing it, injecting yourself

1:26:27

into it, it would

1:26:29

be a lot like Bill Barr

1:26:31

meeting with Durham every week to have

1:26:34

whiskey and cigars. That's the kind of

1:26:36

stuff we want to avoid. It

1:26:38

wouldn't have been good for Biden, because

1:26:41

it would have looked like, oh, Biden

1:26:43

told Garland to change the text of

1:26:45

the reverse. It would have been a

1:26:47

whole came up. No, I think the

1:26:49

fact that we have this adversarial thing

1:26:51

between the Attorney General and the President

1:26:54

playing out right now is actually

1:26:56

a benefit to the President. I

1:26:58

mean, the whole thing is a black eye, but

1:27:00

it's better than if

1:27:03

they were colluding and came up with a thing

1:27:05

that made everybody happier, or if Garland

1:27:08

had written a four-page characterization

1:27:10

of the findings and sat on the report

1:27:12

for three weeks. Right. Yeah.

1:27:14

Look, I mean, it's a black eye for

1:27:17

Biden. It's going to probably cause them all

1:27:19

kinds of campaign issues. It's not the narrative

1:27:21

they, I would assume, like to have out

1:27:23

there, but that's it.

1:27:25

Nobody's sitting back saying like,

1:27:27

oh, look, Garland is going

1:27:29

after the President's enemies forum.

1:27:32

Although, actually, Trump says that every day, but

1:27:34

the facts don't bear

1:27:36

it out. So anyway. Yeah.

1:27:39

Agreed. Thank you for the questions. If you have

1:27:41

any questions, there is a link in the show

1:27:44

notes where you can click

1:27:46

that link and follow. It follows to a form

1:27:48

that you can fill out and send us a

1:27:50

question. Thank you so much for your questions. They're

1:27:52

so thoughtful and fun.

1:27:54

I like to know who plays you in the

1:27:56

movie thing. Yeah. Yeah.

1:27:59

Sorry about those long. episode today. We did

1:28:01

as much as we can by putting out that

1:28:03

emergency episode. So thank you very much for listening.

1:28:05

Do you have any final thoughts, Andy? No,

1:28:07

I think we've given them enough this week,

1:28:09

but hang in there because who knows where

1:28:11

we end up next week. It's an adventure

1:28:13

with every episode. Absolutely. Thank you

1:28:15

so much for listening. I've been Alison Gill. And

1:28:18

I'm Andy McCabe. I'm

1:28:20

Amanda Sturgill. I've

1:28:26

been a reporter, and today I teach future reporters to cut the

1:28:42

spin and think critically about what newsmakers say.

1:28:45

My podcast, Unspeed, shows you how

1:28:47

to know when you're being manipulated by the news.

1:28:50

Learn to spot the trick on how to make

1:28:52

up your own mind about what's true. So if

1:28:54

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1:28:56

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1:28:59

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