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1:01

Media Welcome

1:32

to episode 69 of Jack, podcast

1:35

about all things special counsel. It

1:37

is Sunday, March 24th. And

1:40

I'm your host, Andy McCabe. Hey Andy,

1:42

I'm Alison Gill. We have a lot

1:44

to cover today. We didn't get 300

1:46

pages of responses to motions to dismiss,

1:48

but we do have

1:50

a new article out from the New York Times

1:52

that gives us some insight into the chronology of

1:55

the Department of Justice's investigation into the plot to

1:57

subvert the 2020 election along. with

2:00

Trump's immunity brief filed with the Supreme

2:02

Court. Yes. And

2:04

of course in Florida this week, Judge

2:06

Eileen Cannon issued a

2:08

bizarre order about the Presidential Records

2:11

Act motion to dismiss. And

2:13

of course we finally have a CIPA

2:16

Section 4 ruling. So, Allison, let's start

2:18

in Florida with this order from Judge

2:20

Cannon on the Presidential Records Act motion.

2:23

So the order

2:25

is only two pages long and

2:28

it hit the docket on March 18th. My

2:30

birthday, thank you very much. Was

2:33

not the birthday gift I was hoping for,

2:35

but nevertheless, the order hit the docket on

2:37

that day. It was four days after she

2:39

heard oral arguments on Trump's motions to dismiss

2:42

based on the unconstitutional vagueness

2:44

of the Espionage Act and

2:47

the Presidential Records Act. Okay.

2:50

So you'll recall that she dismissed

2:52

the unconstitutional vagueness motion without prejudice

2:54

saying she wouldn't dismiss the case

2:57

now, but that Trump could raise

2:59

the issue again at trial or

3:01

that it might impact how she instructs the

3:03

jury, which would really put the

3:05

prosecution in a pickle because they wouldn't be able

3:08

to appeal it at that point, but nevertheless, she

3:11

hasn't ruled on the Presidential

3:14

Records Act motion yet. Now,

3:17

Trump argued that the PRA,

3:20

the Presidential Records Act, allows him to

3:22

designate anything he wants to take with

3:24

him as a personal record. An

3:27

argument the 11th Circuit has already

3:29

said is incorrect and

3:31

vacated in a previous ruling by

3:33

Cannon in the special master debacle.

3:36

Yeah. Wow. That was like a year and a half ago. That happened at

3:39

the end of 2022. And

3:41

Trump was trying to get all the classified

3:43

documents to a special master for review, arguing

3:46

that they were his personal documents under the

3:48

Presidential Records Act, and he lost that

3:50

battle and Cannon, well, he

3:52

won it with Cannon, but he lost the battle with the

3:55

11th Circuit Court of Appeals because Cannon's

3:57

ruling was overturned. related

4:00

in a Washington Post article this week, Trump,

4:03

quote, does not have a possessory interest

4:05

in the documents at issue. So

4:07

he does not suffer from cognizable harm. If

4:09

the United States reviews documents he neither

4:12

owns nor has a personal interest

4:14

in, and that's what the appeals court found

4:16

in September of 2022 after Trump asked

4:19

them to appoint a special master or

4:21

a neutral arbiter to sort through

4:23

the materials the FBI seized when

4:25

they executed the lawful search warrant

4:27

at Mar-a-Lago August 8th of

4:30

2022. So, yeah. So,

4:32

so we've been down this road

4:34

already and the 11th circuit and

4:37

a, and a bruising rejection of

4:39

her decision made it

4:41

very clear that there's no, there

4:44

is no personal property interest

4:46

in the stuff covered by the PRA, but

4:49

this week, Cannon issued an order

4:51

in her consideration of Trump's motion to

4:53

dismiss based on his PRA defense. It

4:56

is entitled, Order Requiring

4:58

Preliminary Proposed Jury Instructions

5:00

and Verdict Forms on

5:02

Counts 1-32. I

5:05

know you're thinking, boy, are we close to

5:08

jury instructions and a verdict sheet in

5:10

this trial? Oh no, boys and girls,

5:12

the answer is no, we're near that.

5:15

So right from the top, the

5:17

order seems a little bit odd,

5:21

but in any case, it reads and

5:24

defendant Trump and the special counsel

5:26

shall each file proposed jury instructions

5:28

limited to the essential elements of

5:30

the offenses charged in counts 1-32.

5:34

The proposals shall take care to

5:37

specify in incorporated briefing as

5:39

necessary exactly what factual

5:41

questions are reserved for the jury

5:43

on counts 1-32. So

5:46

just an explanation here, it is

5:49

in these trials, it is the

5:51

responsibility of the judge to answer

5:54

questions of law and its responsibility

5:56

of the jury to answer questions

5:58

of the jury. fact, right?

6:00

The judge decides the law and the jury

6:02

decides like the fact, what happened, who shot

6:04

John, that sort of stuff. So

6:08

it goes on to say, the

6:10

parties must engage with the following

6:12

competing scenarios and offer

6:14

alternative draft text that assumes

6:16

each scenario be a correct

6:19

formulation of the law. Okay,

6:22

so now another brief explanation here. This

6:24

is completely bizarre. What

6:27

normally happens is a defendant

6:30

submits a motion to dismiss and it

6:32

raises some issue of law. You only

6:34

see judges case should be dismissed because

6:37

under, you know, this law doesn't apply or

6:39

it's unconstitutionally vague or what have you. And

6:42

the judge decides that matter of

6:44

law and they either grant

6:46

or deny the motion. And then

6:48

the case goes on and later the jury,

6:52

before the jury goes out, each

6:54

party has to participate in drafting jury

6:56

instructions on how they want the jurors

6:58

to think about the facts under that

7:00

law. But you don't

7:02

do jury instructions until after the

7:04

judge has made the interpretation of

7:06

the law. Here, she's

7:09

flipping it around because she has

7:11

yet to decide the motion on

7:14

the law. So she's asking each

7:16

side, pretend the law

7:18

is this and then adult and then then

7:20

pretend that the law is that. And

7:23

in each of those two scenarios, give me a new

7:25

jury instruction. So it goes on to say,

7:28

here's the, here's the scenarios that

7:30

she lays out. A, in a

7:33

prosecution of former president for allegedly

7:35

retaining documents in violation of 18

7:38

USC 7093, a

7:40

jury is permitted to examine a record

7:42

retained by a former president in his

7:44

or her personal possession at

7:46

the end of his or her presidency and

7:49

make a factual finding as

7:51

to whether the government has proven beyond

7:54

a reasonable doubt that it

7:56

is personal or presidential using the

7:58

definition set forth in the Presidential

8:00

Records Act. Okay,

8:03

that's scenario one that you have to draft

8:05

jury instructions for. Scenario

8:07

two is B, and

8:10

this is where it gets a little curvy. A

8:13

president has sole authority under the

8:15

PRA to categorize records as personal

8:17

or presidential during his or her

8:19

presidency. Neither a

8:22

court nor a jury is permitted to

8:24

make or review such a categorization decision.

8:27

Though there is no formal means in

8:29

the PRA by which a president is

8:32

to make that categorization, an

8:34

outgoing president's decision to exclude what

8:36

he or she considers to be

8:38

personal records from the presidential records

8:41

transmitted to the National Archives and

8:43

Records Administration constitutes a

8:45

president's categorization of those

8:47

records as personal under

8:50

the PRA. So

8:53

she wants the

8:56

parties to assume that

8:58

the PRA says something that it doesn't,

9:00

and that the 11th Circuit has said it

9:02

doesn't and write a jury

9:05

instruction based on that misinterpretation of the law.

9:07

Yeah, the first two sentences of

9:09

this scenario are contradictory to the

9:11

law. They're not – this

9:14

is not what the law is. She says a

9:16

president has sole authority under the PRA to categorize

9:18

records as personal or presidential. That's

9:21

not what the PRA says. And

9:23

then she goes on to say neither a court nor

9:25

a jury is permitted to make or review such a

9:28

categorization decision. That's not

9:30

true either. And

9:33

then she acknowledges there's no – there's

9:35

nothing in the PRA that

9:38

actually references or defines

9:40

or lays out how a

9:42

president is supposed to make

9:44

this categorization decision.

9:47

So that would be a clue to any jurist

9:49

that if the law doesn't

9:51

even speak to this, it's probably not

9:53

part of the law. But

9:55

Nevertheless, she goes on to say – she basically

9:58

paints a scenario in which – If

10:00

this is the key M and I got an

10:02

you know what the jury instruction would be here

10:05

because of what she has proposed. Is.

10:07

Is the case as the ruling.

10:10

Then. The entire case gets dismissed. There's nothing

10:12

to do. Plans

10:14

waved his magic wand over all of

10:16

these. Documents.

10:19

That our national defence information

10:21

and likely highly classified. And

10:24

he says decided know there has to Just like

10:26

the. The. Golf hats and sweaters

10:28

and and newspaper clippings. I'm I'm a

10:30

Roll My. Eyes

10:32

N n. That is kind

10:35

of. When. I first read

10:37

that. My. Very first thought and

10:39

response was that if I will

10:41

Jack Smith. I. Would reply

10:43

to this saying. I.

10:46

Can't write. Your

10:49

jury instructions based on and misinterpretation.

10:51

Of a loss I'm not going to. yeah If

10:53

you believe that the law says that if this

10:55

is your interpretation as as your job to interpret

10:58

the law. Here. Then.

11:00

You need to dismiss. These. Charges Dismissed

11:02

the charges and let's get it on. Must

11:04

go to the eleventh Circuit. I think I

11:06

think I said dismiss or get off the pot. I think

11:09

we're. We're mags. Like I

11:11

did isn't make any sense to entertain.

11:15

The. Possibility that the law says something that

11:17

it doesn't. And and

11:19

I personally if I were a

11:21

prosecutor illegal person, I wouldn't. Be.

11:24

Able to write. Something.

11:26

Based on what I know to not

11:28

be correct, especially from interpretation of the

11:31

eleventh circuit, right, I might. Yeah, I

11:33

responsibly like eleventh Circuit says, this is

11:35

incorrect. I can't write anything. I.

11:37

Won't entertain this. Read. That's

11:40

right, it's It's preposterous. It's almost it

11:42

would I. You know there is an

11:44

art. There's an argument to be made

11:46

that the best thing that could happen

11:48

here is this is what she decides

11:50

and she dismisses the case next week.

11:52

which would. Open up the pass.

11:55

For the government to take the case, take

11:57

that decision to the eleventh circuit and through.

12:00

The process you could potentially.

12:02

You. Could get the. You. They

12:05

could remain the case to a different judge. So.

12:08

That. Another whole can of worms are

12:10

going to talk about later, but I'm.

12:13

The other thing that's amazing to me about this

12:15

is she still. Has this

12:18

incredible like. Consolation:

12:20

Between the President Or Records Act

12:22

and the Espionage Act, Let's.

12:25

Remember, Trump is not charged

12:27

under the Presidential Records Act.

12:30

He's been charged under the

12:32

Espionage Act eighteen you se

12:34

Seven Ninety three. So a

12:36

little refresher here that prohibits

12:39

the intentional withholding of National

12:41

Defense information. Okay, regardless of

12:43

classification and not irrelevant leave

12:45

regardless of whether or not

12:48

someone considers the National Defense

12:50

information to be their personal

12:52

property. Rights. So

12:55

if if I. If

12:57

I work in the White House on the staffer

12:59

I go out. when I buy a notebook, bring

13:01

it home. Next day I bring into work I

13:03

go to a meeting. Nationalists. It's

13:05

defensive permissions discuss. I write that stuff down

13:08

in my notebook and that I'd I take

13:10

it home, I may very well have violated

13:12

the espionage act even though it's my notebook.

13:14

I bought it, I wrote in it there.

13:16

My notes is it's National Defense information even

13:18

though I think it's my personal stuff. It

13:21

might actually be a violation of the act. So.

13:25

Even. If she thinks that the. Presidential.

13:27

Record Act says. What

13:31

she's laid out and scenario to

13:33

it doesn't matter. If.

13:36

The facts show that what he's

13:38

been charged with his National Defense

13:40

information and he intentionally withheld it.

13:44

Guilty and that has to go to a jury. Want

13:46

a hundred bucks? Says she'll dismiss this

13:48

one without prejudice. Yeah,

13:51

because you know a lot of folks were like. Where.

13:54

Does he get this? Preposterous.

13:56

Idea Well thanks to. Roger

13:58

Parlous and are from Brian Girl who's Going.

14:00

To. Join us in the next segment Who retweeted this.

14:03

That this was brought up specifically.

14:06

In. The in the oral

14:08

arguments on this the are you

14:10

know unconstitutional vagueness Npr A. That

14:12

dumb that were just held on

14:14

March fourteenth. And will.

14:17

Basically. Can. And

14:19

asked both who was one of Trump's

14:21

law lawyers. Let's. Say I deny your

14:23

motion. What? Would the jury

14:25

instructions be for unauthorized? for

14:28

unauthorized right. And. And

14:30

Trump's lawyer says they would absolutely

14:32

have to include language from the

14:34

Pr. A Discussion Trump discussing Trump's

14:36

designation of the. Records. As personnel.

14:39

And. So now here she is saying right me

14:41

up a Jury instruction. Assuming that.

14:44

These. Were personal records under the P R

14:46

A. N as

14:48

she even said what have I deny. Your

14:50

motion? What about jury instructions?

14:53

So. It sounds to me like

14:55

she's gonna do what she did with unconstitutional

14:57

vagueness. Dismiss this without. Prejudice allow it to

14:59

come up again later. Kick! The

15:01

can down the road because she doesn't wanna

15:03

go to the eleventh circuit. She.

15:06

No doubts us. I. Think

15:08

that that's absolutely right. And I think

15:10

to me this kind of further supports

15:12

the theory I have about her. She

15:14

is afraid to make. A

15:17

call strong. Permanent decisions.

15:20

And you see this in the way that

15:22

she treats some of these pro. Really

15:25

preposterous. Are arguments

15:27

menu for that? we're getting from

15:30

the Trump team on that Many

15:32

of these motions that should not

15:34

be countenanced. You.

15:36

They can make any emotion they want, but

15:38

ridiculous, frivolous nonsensical motions should be handled as

15:40

such be decided quickly and gotten out of

15:42

the way, and then you move along. They

15:45

want to raise it again. In the event

15:47

that he gets convicted and they want to

15:49

raise, he sings on appeal. They can try

15:51

that later, but she's she's afraid to do

15:53

that. she shows that in the

15:55

way she entertains this nonsense and also

15:57

in the way she makes decisions or

16:00

but not with prejudice, meaning we can

16:02

bring it up again later, meaning it's

16:04

not a final appealable order. As

16:06

you mentioned, that enables her to

16:08

dodge the 11th circuit, getting slapped

16:10

down again in the pretrial process.

16:13

And I think it just kind of enables

16:16

her to just keep everything hanging. Nothing

16:18

ever gets resolved in a definitive way.

16:20

Yeah, and it also kind of

16:22

gives her the ability to stay

16:24

the whole case pending the immunity

16:28

argument that Trump has filed here in Florida,

16:30

not the one that's going on up

16:33

in DC, because that

16:35

hinges, his defense is that

16:38

Presidential Records Act allows me to make these

16:40

personal when I take them. And

16:44

so, you know, if she dismisses

16:47

but without prejudice and that it could come

16:49

up later, she might then be able

16:51

to say, we now have to wait

16:53

for the Supreme Court on the

16:55

PRA before I can make

16:57

any decision on this or something like that. I

16:59

don't know, how do you see that being involved?

17:01

Because his immunity claim down here in Florida hinges

17:03

on the PRA. That's right.

17:06

So if she decided the PRA motion

17:08

definitively, let's say Monday, she puts an

17:10

order up that says, motion denied, that

17:14

would cut the knees out from under his

17:16

immunity motion in this case, because as you

17:18

mentioned, it relies

17:21

on this same theory that I waved

17:23

the magic wand to turn them all

17:26

into personal records and therefore

17:28

committed no, you know, you can't,

17:31

that was my, that was within my

17:33

purview as president and I have

17:36

immunity for all that. That's

17:38

so you know, that's never gonna

17:41

happen. There's many reasons to,

17:44

you know, to distinguish what

17:47

the Supreme Court is gonna consider in the

17:49

DC case from the immunity

17:51

or any kind of arguable immunity

17:53

issue in this case. The

17:56

PRA foundation is one

17:58

way. Also like Like he

18:00

did these things after. They were very careful to

18:02

charge him only with things that he did after

18:04

he was present. So it's she

18:07

could just dismiss

18:09

that motion on the

18:11

merits right now. But

18:15

that's ridiculous. The thinking that she's going to

18:17

do that is just crazy. You're

18:19

telling yourself stories. She... That

18:21

would cut that off at the legs, right? But

18:24

would dismissing it without prejudice allow her to

18:26

make those determinations on the immunity motion or

18:28

a stay or anything like that? There's

18:32

not. The immunity motion

18:34

is kind of unique because if

18:36

you dismiss it without prejudice, there would be

18:39

no reason to dismiss it without prejudice because

18:41

then you're saying like, oh, well, we're going to

18:43

go forward with this prosecution and think about whether

18:45

or not you should have been immune from it

18:48

later, which is kind of flies in the face

18:50

of the of the point of the motion. Oh,

18:52

no, I meant the PRA motion. If

18:54

she dismisses that without prejudice, would that

18:57

allow her to wait to see what

18:59

SCOTUS does? Because you said if

19:01

she dismisses the PRA motion outright

19:03

with prejudice, then it

19:05

cuts his defense in the immunity motion off at the

19:07

knees. Right. And if she

19:09

does the opposite, it has the opposite effect.

19:12

Will the opposite being? If

19:14

she dismisses the PRA

19:17

motion without prejudice, it

19:19

means like denying it now, but

19:21

you can bring it up later.

19:23

So the theory underlying the motion

19:26

hasn't been conclusively legally decided

19:29

upon until it's dismissed with prejudice.

19:31

So that's why

19:33

I think she would dismiss it

19:35

without prejudice because it still leaves

19:38

open this immunity thing that relies on

19:40

the PRA. Gives her a backdoor

19:42

later to say, well, it's kind of

19:44

tangentially related to the Supreme Court issue,

19:46

so we should just wait. Got it.

19:49

Stay the case, see what the Supreme Court does.

19:52

Which honestly is not that big of a

19:54

surprise. I think most of us

19:56

who watch this closely have believed for

19:58

many months now. that this case really doesn't

20:01

have a chance of going before trial. We,

20:04

we had a trial, uh, scheduling

20:06

conference, what, however many weeks ago

20:08

now, we still have not heard

20:11

a result. Scheduling conferences are usually

20:13

decided at the bench during the

20:15

conference. And the, everybody gets heard

20:17

and then the judge says, okay, here's how it's going to

20:19

be. Not here. So,

20:22

you know, there's like really no

20:24

effective trial schedule right

20:26

now. Everyone knows the one that's on the

20:29

books is wildly out of date and we

20:32

just drift along. Yeah.

20:34

And, and we know, um, that

20:37

there's still so much more to go,

20:39

particularly in, uh, in the SIPA area

20:42

and speaking of that, we're

20:44

going to be right back with our SIPA

20:46

expert, Brian Greer to discuss the latest in

20:48

SIPA section four. Everybody stick around. We'll be right back.

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Service Plan, only on Verizon. Hey

23:01

everybody, welcome back. Let's go under

23:03

seal. Alright,

23:24

let's stay in Florida and discuss Eileen

23:26

Cannon's recent movement on SIPA Section 4

23:29

with our resident SIPA expert, former Chief

23:31

of Staff for General Counsel at the

23:33

CIA, Brian Greer. Hey Brian. Hey,

23:36

thanks for having me back. Hey Brian. So,

23:39

the Section 4 motion from

23:41

the Department of Justice had been pending for

23:43

a while and we finally got a public

23:45

summary from Cannon on Friday. I know Brian,

23:48

you and I went back on forth on

23:50

Twitter when she first released her decisions and

23:52

they were just all sort of covered

23:54

up in a Xerox machine. Like it was

23:57

just, it was odd the way she'd done

23:59

it. And we're

24:01

like, oh, so everything is transparent, except now you have

24:03

a secret docket and you're not going to say anything

24:05

about this. And you were like, it'd be nice if

24:07

we could get a little summary like Judge Chutkin gave

24:10

us and that's when she decided

24:12

to grant your wish.

24:14

I think she was listening to you. Yeah.

24:17

Like I said, my dream is that she

24:19

has a burner account and she checks in every once in a while

24:22

and takes the suggestion here or there. As

24:25

was proven, it was very easy to do

24:27

a public summary of this order, even though

24:29

this is something that's normally, there would normally

24:32

not be a public summary of a secret section

24:34

four order. The public wouldn't care. There'd

24:36

be a question about that. What's

24:39

the relevance of the judge doing it is, but it was

24:41

totally appropriate for her to do that here. And

24:43

obviously it was possible to be a little transparent. So

24:46

that was a good thing. Maybe

24:48

she's got a law clerk who's a listener. Oh, wait

24:50

a minute. That's right. There are no

24:52

law clerks. Okay. Maybe there

24:54

are law clerks now, but it's a

24:56

bit of a rotating door there. What

24:58

Andy's referring to is that two of

25:00

her law clerks quit, which is very

25:03

unusual. But I think that after a

25:05

couple of updates, we found out that it was probably

25:08

for legit reasons. Probably. Sounds

25:11

like there's really not much to that. It is weird

25:13

for them to leave in the middle of a clerk

25:15

position, which runs a term of one or two years.

25:17

Very odd for a clerk to leave before the term is over,

25:20

but they seem to have both had some sort of personal

25:22

explanation. So no big deal. All

25:25

right. Well, tell us what's going on with secret section four. She

25:28

gave a ruling that was totally sealed and

25:31

then she gave another ruling that was

25:33

totally sealed. Why were there

25:35

two and what do

25:37

we know now that she's released your

25:40

requested summary, the

25:43

unclassified summary that she docketed? Yeah.

25:46

Well, I think there were actually,

25:48

there would be three prior docketed

25:50

orders from her. We still don't

25:52

know why there were three, except I think now probably the

25:54

first two were just sort of preliminary

25:56

requests from her, like maybe two.

26:00

adjust certain things or follow up questions or

26:02

whatever. And then finally, that third one was

26:04

her final order. Um, cause that

26:06

was the only one where she said, uh, granting

26:08

and denying in part the motion.

26:10

So I think that's probably the first two

26:12

were just sort of like preliminary matters

26:15

leading up to the final order. Um,

26:17

so the good news is she

26:20

mostly granted DOJ's motion. Uh,

26:22

she granted the majority of it and

26:24

that is to withhold certain information from

26:27

Trump and his cleared lawyers and classified discovery.

26:29

But then she withheld sort

26:32

of held in advance, um, two

26:34

categories of records. One

26:36

were two intelligence reports that, um, they

26:38

wanted to withhold from him related

26:41

to one of the charge documents. And

26:43

other were just sort of discrete

26:45

redactions to these things called after

26:47

action reports, which I believe are

26:49

the PDB briefer goes and briefs.

26:52

The president, they come back to CIA

26:54

or DNI, and then they want to tell the equity

26:56

holders in the briefing what, what questions did

26:59

the president ask? What was their

27:01

feedback? Did they like the product? Did

27:03

they not? Did they, you know, all, all

27:05

that kind of stuff that these people would want

27:07

to know. They've apparently provided all those in discovery,

27:10

but then they did some surgical redactions to

27:12

those. And she said on those two categories,

27:14

I want to wait until the motions to compel

27:17

that she thought are related or resolved and

27:19

potentially have another hearing with DOJ to resolve

27:22

them as well. Yeah. That

27:24

reminds me of a story that,

27:27

uh, Miles Taylor told in his book,

27:29

a blowback about

27:31

giving the PD be the president's

27:33

daily brief and how they

27:36

had to translate it into a way that

27:38

would make Trump happy about it. Like with

27:40

the withdraw from, uh, I think Syria or

27:42

Afghanistan, one of the two, they

27:44

had to be like the PDF,

27:46

the PDB was entitled, do you want to be

27:49

a loser? And like, because

27:51

pulling out of Afghanistan would make you look like

27:53

a weak loser. And so they had to like

27:55

completely sort of write it in

27:58

his voice, like in his head. get

28:00

him to not do something like that, which is

28:02

interesting because I know some of these one

28:05

through 32 counts are premised on

28:07

documents that have to do with withdraw.

28:10

So anyway, I thought

28:12

that was interesting. Yeah, I'm

28:15

slightly skeptical of that anecdote, but I do

28:17

know for sure they tried to, they're always

28:19

trying to do brief to their audience. He

28:22

liked, he did really like pictures. I worked for a

28:24

component who sent them a

28:26

picture they'd collected once and he loved it. It

28:28

was one of his like favorite things he got

28:30

that month. So there's definitely, they

28:32

were trying to do that to some extent. We did the

28:34

same thing. If we

28:37

knew that director Ray was kind of

28:39

on point to brief something, or

28:42

have been tapped to brief something, the conversation

28:44

started with, okay, what do we have on

28:46

video? Like, what's a good video

28:48

that we can show him because he's just not going to get

28:51

his attention. Unless you have

28:53

something that's like interesting to look at. He's

28:55

not a reader and he

28:57

had a habit of kind of just kind

28:59

of zoning out in the middle of a lot

29:02

of those conversations. So the

29:05

only way to grab his attention was something moving. All

29:08

right, so Cannon actually

29:10

ended up doing something right.

29:13

Isaac, you did something

29:15

right. No way. I wanted to

29:17

go to my head. Anyway,

29:21

your response, sir. Yeah. Well, the

29:23

first thing was she followed the law and

29:25

she didn't, there's, you know, again, SIPA is

29:27

a pretty basic statute, but there's a bunch

29:29

of case law interpreting it. We'd

29:31

seen a couple points earlier in the case where she sort

29:33

of thought she knew better than the established

29:35

case law around the protective order

29:37

and things like that. Here, she didn't question

29:40

any of it. She just followed it all

29:43

to the T. So good for her for that. And

29:45

again, she did agree to

29:47

DOJ withholding a couple of

29:49

different categories. A couple other takeaways

29:52

I had here was, you know, credit DOJ.

29:54

It looks like they were very surgical in

29:56

what they withheld from these documents. I'd

29:59

always sort of predicted that. that was going to be the

30:01

case, but they were even more surgical than I thought. If

30:03

you just read the summary, like they really

30:06

weren't withholding very much at all from him. Um,

30:08

so, so that's smart on their part.

30:11

We've talked a theme throughout. This has

30:13

been throw following the playbook versus throwing

30:15

it out. I'm just in favor

30:17

of throwing it out when it makes sense to

30:19

get this case done. Um, so

30:21

good for them for that. But on

30:24

the flip side, they're probably still a little

30:26

more worried of, Hey, we were surgical and

30:28

she still didn't go with us on these

30:30

two categories of records yet. So

30:32

what does that say about how she's

30:34

going to rule later in SIPA when

30:36

it gets time to figure out what's going to be used at

30:38

trial? Is she going to think that

30:40

this stuff, like whatever this very

30:43

specific information is, which is probably highly classified,

30:45

which is why they wanted to hold it,

30:47

she seems to think it's potentially relevant. Does

30:50

that mean she's going to let them bring up in

30:52

trial is what DOJ's ultimate concern is

30:54

going to be based on reading the tea

30:56

leaves in her order. And

30:58

at that point, if, if not, do you just

31:00

drop those counts and march on? I mean,

31:04

Yeah, potentially. I mean, the beauty of 32 charge

31:06

documents is you can always drop some before, um,

31:09

trial, I think that's probably one of the reasons they picked so many is

31:12

to give them that flexibility so that

31:14

they can always do that. And

31:16

if she's still reluctant, do they have the opportunity

31:19

to go back and, uh,

31:21

re-redact in a less objectionable way or

31:23

make a substitution or Yeah, that's what

31:25

I'm curious. That was what I was

31:28

curious about too is yeah,

31:30

I mean, there's going to be another hearing, so they may talk about

31:32

that there. And, and certainly while

31:34

I don't know what's being redacted or withheld,

31:37

a substitution might be sort of the

31:39

compromise. It doesn't appear that they propose

31:41

that here, but that might be

31:43

the compromise. If they're still super sensitive about

31:45

whatever it is, do they

31:48

do a substitution instead and make everybody

31:50

happy? And I know we've talked about

31:52

substitutions before, but can you remind everybody what that sort

31:54

of looks like? Yeah. I mean, it

31:56

could just be, it could have been the name of

31:58

an intelligence service. it would

32:00

be a common thing that you might redact. The very

32:02

specific country, we just don't wanna have to

32:04

go get them all concerned that

32:06

this information is that issue in their case,

32:10

or has a risk of coming out. So they might redact

32:12

the name of that country in

32:14

this substitute country A,

32:18

as an example, or it could be that a very

32:20

specific date is sensitive because it shows the very specific

32:22

date we selected something about

32:25

a terrorist or a foreign spy.

32:28

But if we said we learned it in fall

32:30

of 2020, instead of September

32:32

13th, 2020, that can help. So

32:37

stuff like that, usually it gives

32:40

them what, it gives the reader context, but

32:42

it's not really, it

32:44

doesn't harm their ability to make their case. Right.

32:47

And there's nothing to appeal here, am

32:49

I correct? Yeah,

32:51

that's right. So she even

32:53

specifically said, although I thought I was a

32:55

parent, she's not ordering DOJ to disclose anything

32:58

that they haven't already proposed to disclose. That is essentially

33:01

saying to at least to people like me, there's

33:04

the only way you can appeal under CPA

33:06

section seven is if she has

33:08

ordered DOJ to disclose something classified, even

33:10

in just in discovery that they

33:12

didn't want to, she did not do that here.

33:15

So there's nothing to appeal. And

33:17

could her reserving on those other two categories

33:19

be because she doesn't want anybody to appeal

33:21

or to the 11th circuit? I mean, right

33:24

now there's a huge chorus for Jack Smith

33:26

to go to the 11th circuit based

33:29

on her really weird request

33:32

for jury instructions based on

33:35

things that don't exist. And

33:39

also she ruled on without

33:41

prejudice on that unconstitutional

33:43

vagueness thing

33:46

so that it can't be appealed. It

33:48

seems like she's doing everything she can

33:50

to not have to go to the 11th circuit. Yeah,

33:52

I mean, while that the chorus of getting

33:54

her off the case is growing, we

33:57

have to think about the procedural aspects of all this.

34:00

and I'm not a procedural expert, but you

34:02

have to have a final. First of all, she's

34:04

never going to recuse herself. So the

34:06

only way she's going to get off is the 11th Circuit is

34:08

going to have to remove her on a remand. And

34:11

so then you've got to have an appealable issue. Well,

34:13

you've got to have a final adverse order to the

34:15

Department of Justice. Very, very few

34:18

of those so far whatsoever.

34:20

The jury instruction issue as of

34:22

today, there's nothing final appealable about

34:24

that. The vagueness thing you

34:27

mentioned, nothing, no final appealable order about

34:29

that. She hasn't

34:31

ruled on the reconsideration motion to release the

34:33

witness list as part of that motion to compel.

34:35

And honestly, if I'm her, I just would never rule

34:37

on it. Just

34:40

wait until it all comes out. Because

34:44

that would launch her to the 11th Circuit

34:46

for sure. He has said, Jack Smith has said, I'm

34:48

going to take this to the 11th Circuit if you

34:50

don't follow my reconsideration order.

34:52

And then the rest of it is just the

34:54

scheduling stuff. While

34:56

it's annoying, while she's done stuff that people

34:59

don't agree with, no Court of

35:01

Appeals is going to remove a judge from the

35:04

case over going a little bit too slow.

35:06

Scheduling order? Forget it. Yeah, why? Yeah. And

35:08

even though, and remember, Jack Smith has refused

35:10

to say in any of these cases that

35:13

there's a public interest in getting these cases done

35:15

before the election. He has not made

35:17

that argument yet. He dodges that like, I don't

35:21

know, like what? But he dodges it a lot. Right.

35:23

Yeah. So there's just

35:25

nothing to appeal yet. I'm sorry. Yeah.

35:27

And the effort itself, just going in

35:30

that, making the decision to drop that

35:33

anchor and attack her essentially

35:35

in her presence in

35:37

this case, is if it doesn't

35:39

work, you're hosed. Because you went to

35:41

war with the judge who's going to decide every

35:43

motion and every issue in this case. And

35:46

that does not bode well for close

35:49

calls going your way. Not that they're getting a lot

35:51

of those anyway. And it

35:53

also puts DOJ in a really rough

35:55

spot from a political optics perspective. It

35:57

looks like, oh, they don't like this.

36:00

judge, they're trying to handpick a hanging

36:02

judge and it shows you a two-tiered

36:04

system of justice, yada, yada, yada, plays

36:06

into that kind of

36:08

course of nonsense. So we have a- Plus

36:10

the political implications of a Trump victory would

36:13

also probably be

36:16

pretty damaging. Yeah. And I mean, to

36:18

your point, Andy, and you could speak better to this than me,

36:20

people at DOJ who've been there for a while,

36:22

they are institutionalists, right? Absolutely. Like

36:25

they believe in the institution of the Department of Justice

36:27

and they believe in its reputation in the courts and

36:29

they don't like pissing off judges. Even

36:32

adverse ones like Judge Cannon, they'll

36:34

still go to the

36:37

mat and defend themselves, but they'll

36:39

see if they do this with Cannon, they'll

36:42

think, is some other judge going to get pissed off at us

36:44

because we did this down the road. Completely.

36:46

They have to work with these judges, like

36:48

them or not, and sometimes they adjust their

36:50

strategy based on how high or

36:52

low they think of a judge. All

36:56

that's factored in, but on its face,

36:58

they remain respectful and they

37:00

don't try to attack them. And

37:04

really, you remove a judge when,

37:06

as the prosecution, you've uncovered some

37:08

link between the judge to the

37:10

defendant, a relationship or a financial

37:12

relationship or something like that. Like

37:15

we're not even close to that. I know

37:18

this is offensive to a lot of people

37:20

who are following this case very closely. At

37:22

least half of them are outraged by her.

37:25

There's a lot of bad judges out there. There's a lot

37:27

of judges who issue illogical

37:29

or unreasonable, seemingly unreasonable orders every

37:31

day. And prosecutors, that's their job,

37:33

is to work in these courts

37:36

and figure it out. Well, I

37:38

remember when they were

37:40

litigating the citizenship question on the

37:42

census and everybody

37:45

thought it was all a done and closed deal

37:47

and the lawyers presented to the court, yeah, okay,

37:49

we're done, blah, blah, blah. But then

37:52

Trump wanted him to go back and keep

37:54

fighting and there was an emergency call and

37:56

they had over the weekend and the judge

37:58

was like, WTF? And

38:01

the line prosecutors were like, we are

38:03

so sorry. We thought this was like

38:05

they were, you know, prostrating

38:08

themselves before the judge, you know,

38:10

apologizing for having to

38:12

come back and reopen the issue. So

38:15

yeah, I've seen that in practice

38:17

a couple times, but you all have a

38:20

lot more experience with it. So

38:22

make sense. Now, one

38:24

other thing I wanted to talk to you about is

38:27

this. There's a

38:29

pending motion that you're worried about, Brian,

38:32

that many people have overlooked. And it's the

38:34

motion to expand the size of the prosecution

38:36

team. And, you know, we've talked on this

38:38

show many times about Jack Smith and his

38:41

briefings saying, look,

38:43

you can't compel discovery from every person

38:45

in every executive branch in every agency

38:47

that you're trying to expand

38:49

the scope of the prosecution team. So

38:52

why are you worried about this motion?

38:55

Yeah. So with all these emotions compelled that can get

38:57

into a classified matter, there's a general concern I have,

38:59

which is just on the timing. So,

39:02

right, DOJ filed this current Section

39:04

4 motion on December 6th. I

39:07

had to go back and refresh myself. So now

39:09

it's three and a half months later and we

39:11

just finally resolved it. That was just the first

39:13

push of discovery. So for any more classified discovery

39:15

she grants, that process will have to

39:18

start over, hopefully quicker, hopefully a lot more discreet.

39:21

This was pretty discreet at the end of the day, what

39:23

they were withholding here. So

39:25

where that's most likely to be acute

39:28

is with this notion of expanding the

39:30

prosecution team, where Trump's lawyers

39:32

want DOJ to search all the files of

39:35

all, either all the intelligence community agencies,

39:37

or at minimum, the lawyers at

39:39

those agencies who assisted on

39:41

the prosecution and NARA and the White

39:43

House. I think NARA and the White House are

39:45

a little easier. Hopefully, well, I think the White

39:47

House hopefully will be easy to dismiss for canon.

39:50

We'll see. NARA may be a

39:52

little closer, but the intelligence community, it

39:54

would be worrisome because it would bring in a

39:56

lot of classified Records that

39:58

would slow things down. I'm. She

40:00

said a one of the hearing system get a lot

40:02

of press coverage that she was willing to. Entertain

40:05

an evidentiary hearing. To.

40:07

Decide if she should grand this motion

40:09

so like odd that would be barkers,

40:11

that means bringing in like lawyers like

40:14

me from the. Whoever. Is doing

40:16

their job now to go sit in the courtroom

40:18

and talk about what role I played. In

40:20

the case and the role at the end of the

40:22

day easy just to for. Aid

40:24

agency warriors like me would have been probably

40:27

had a decent amount of involvement. But.

40:29

Your you are not investigating the case in

40:31

you are not deciding what charges are brought.

40:34

You. Are at. You are representing the victim

40:36

agency. The victim right

40:38

you are representing the a classified information

40:40

issue. Deciding whether it can be used

40:42

are not. In what protections can be

40:44

afforded to it. But. That doesn't determine

40:47

the charges or that investigates or

40:49

anything like that. So. For.

40:51

Her to sort of go down that road if

40:53

it thinks she misunderstand the roll the dice he

40:55

plays in these cases. That. Sold them into

40:58

thought, That. Involves quite a bit

41:00

by. It is plain it's role

41:02

as as representing these victim agencies, not.

41:04

As. Advocate not as investigator. Our

41:07

to one case where we were.

41:09

We. Actually figured out who the leaker was as

41:11

it's yeah see I did I phone and they

41:13

are. We were treated as part of prosecution in

41:16

which was fine because we we figured it out

41:18

our own. Who. Was in. Just told the

41:20

O J. So. That made sense here.

41:23

Everyone. Knew from day one. Who. Who

41:25

committed the crime? Rate A with everything

41:27

else without the deo to hit that

41:29

part of that point so that that

41:31

worries me the most of all the

41:33

various and emotions to compel. And.

41:37

And. Were.

41:39

Your Thoughts as we talked about this in the

41:42

first segment. A formula to tell your thoughts on

41:44

this weird i know you tuck katie saying for

41:46

like as a thirty minute and are dying to

41:48

try to figure this out. That. And

41:51

those this to. Hypothetical

41:53

situations. Under which. The

41:57

judge. Cannon is asking the D O

41:59

J and. If both parties to

42:01

write jury. Instructions as though the pr he

42:03

says something that. It doesn't purr. Presidential Records Act.

42:06

Yeah. I mean. Do the

42:08

one part of the gulf is actually to

42:10

some people criticize or inexperienced. The Td jury

42:12

instructions the trial was during the mouth. I.

42:15

Think it's actually good that we're figuring this

42:17

out now, but instead of on the eve

42:19

of trial or or post, Ah,

42:21

jury panel and right like it's if she does

42:23

is your really now he can appeal Now there's

42:25

plenty of time. So. So the

42:27

exercise I don't object to, but

42:30

obviously the formulations, but are both.

42:32

Favorable in varying degrees to

42:34

Trump's interpretation. Of the

42:36

statue. The. First one is you know

42:39

one where the O J could still

42:41

stab? was there presidential records? That's

42:44

annoying, but they can do that I

42:46

think pretty easily. I'm the second

42:48

one obviously I'm sure for you guys have

42:50

talked about would is. Is just

42:52

what we would have required dismissal of the

42:54

case. For. Her at that point for there's

42:56

nothing left and I'm sure they'll point out. Like.

42:59

Been Diamond actually alleges. That.

43:01

Trump did not return home. Dinara

43:03

and under her formulation in that

43:05

second prong, that means their personal

43:07

so. So. I don't know

43:09

what's left that the for the jury to even decide.

43:13

Other than just establishing that the yeah

43:15

they were sent back with the parties

43:17

can like stipulated that and just it.

43:20

I don't I I it's It's very

43:22

weird to be doing jury instructions now.

43:24

Yeah, I understand your argument for a

43:26

could help us later. But.

43:28

This idea that we're gonna like

43:31

before the judge ways in and

43:33

tells the party's what the law

43:35

is. You. Have to build

43:37

a jury instruction about what it could be

43:39

like. Yeah, It's. It it's

43:42

insane is and and course don't run

43:44

that way. The judges. Responsibilities.

43:46

To tell the party's what their interpretation of laws in

43:48

that house and to be. And if you want skin

43:51

or like it you want to appeal the result. After

43:53

the trial you're. Probably. Welcome to

43:55

do that depending on the issue, but

43:57

it's just I'm. Only ever

43:59

in. But the terms are

44:01

ever fluctuating and the definitions are

44:04

judicial glasses are ever changing those

44:06

judicial glosses again, I mean

44:10

the the my Optimistic

44:12

take is on the second prong. Maybe

44:15

you shall see this makes no sense.

44:18

I'm not going there Yeah, I hope but I

44:21

mean, I don't know how

44:23

about if there's no formal means

44:25

in the PRA by which a president

44:27

is to make that Categorization,

44:29

maybe that's a hint that it's not

44:31

something that you're supposed to do or

44:33

at minimum. It's not it doesn't get

44:35

you criminal immunity We've

44:39

been returning to my rant but

44:41

then the the pessimistic take and

44:43

I tweeted this was Back

44:46

during the search warrant litigation She

44:48

had not seen any of these records and there were

44:50

a bunch of unclassified records that DOJ took so

44:52

there Obviously she was wrong in the

44:54

law completely But at least she could

44:57

have been somewhat sympathetic to hey, maybe

44:59

some of these are personal records She

45:01

now through the section for litigation that we

45:03

talked about has seen all the records and

45:05

she's seen declarations from intelligence

45:07

officials Explaining what's in them and why

45:09

it's classified how they were made all

45:11

this stuff and she's still entertaining

45:14

this fight all that despite all that

45:16

She is still holding in her head

45:18

the idea that the argument that Trump's

45:20

team made on this issue might

45:23

might actually be lawful

45:25

and appropriate and that's Absurd

45:29

like she should have ruled on this from

45:32

the bench Immediately no

45:34

written order motion denied move on like

45:36

I shouldn't have been hearing honest There's

45:38

not a handful of federal judges in

45:41

this country Including my

45:43

recent statement that there are many bad ones

45:45

even those wouldn't have let this go on

45:47

as far as had much less You

45:50

know order the parties to draft

45:52

jury instructions around this nonsensical theory

45:55

of non-law Alright,

45:57

well, thank you so much Brian. I know we are only

45:59

on stage CPA section four. We have many

46:01

sections to go and we'll be bringing you

46:03

back as those unfold before us unless, you

46:05

know, of course, they're all redacted and we

46:08

don't get cool summaries like we did this time because

46:10

our burner account saw what you

46:12

tweeted. That's just speculation, everyone.

46:14

So thank you again for joining us today.

46:17

Thank you for having me. Appreciate it. Thanks, Brian. Have

46:19

a great weekend. You too. Everybody

46:21

stick around. We'll be right back. Skip

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48:31

right, let's head to DC, partly because

48:34

Florida is like a flaming dustbin of

48:36

nonsense. So let's at least go to

48:38

DC to change up the topic

48:41

a little. And also because we have

48:43

a fascinating new article out from the

48:45

New York Times by Glenn Thrush and

48:47

Adam Goldman, which really

48:50

gives us more insight into the

48:52

chronology of opening the investigation that

48:54

ultimately led to the indictment of

48:56

Donald Trump for election subversion. So

48:59

the article starts off in

49:02

part by saying, after being sworn in

49:04

as Attorney General in March of

49:06

2021, Merrick Garland gathered his closest

49:09

aides to discuss a topic too sensitive

49:11

to broach in bigger groups, the

49:13

possibility that evidence from the far

49:16

ranging January 6th investigation could quickly

49:18

lead to former President Donald J.

49:20

Trump and his inner circle. At

49:23

the time, some in the Justice

49:25

Department were pushing for the chance to look

49:27

at ties between pro-Trump rioters who assaulted the

49:29

Capitol on Jan 6th and

49:31

his allies who had camped out at the

49:34

Willard Hotel in what we refer

49:36

to as the War Room and possibly

49:38

Mr. Trump himself. Mr.

49:41

Garland said he would place no restrictions on

49:43

their work, even if the evidence leads to

49:45

Trump, according to people with knowledge

49:47

of several conversations held over his first

49:50

months in office. So,

49:52

AG, that's new. We didn't know before

49:54

that Garland was greenlighting an investigation that

49:56

could lead to Trump from the very

49:59

start. Previous reports and

50:01

public interpretation I think suggested that

50:03

the Attorney General was pushing for

50:06

a very active investigation from the

50:08

beginning. But in the end,

50:10

focusing on the willard and working their way

50:12

to the top would eventually lead to a

50:14

dead end. Now that's not

50:16

because the people at the war room or in the

50:19

White House hadn't done anything wrong, but

50:21

as the article explains, it's more because DOJ

50:24

didn't ever find the type of

50:26

financial connections between the war room

50:28

folks and the major rioters

50:30

that they expected to see from the beginning.

50:33

That stuff would have formed the basis of

50:35

a simple tried and true kind

50:38

of follow the money conspiracy case, kind

50:41

of like the type of investigation

50:43

you and I discussed and predicted

50:45

a year ago that would have

50:47

focused on PAC fundraising fraud, right?

50:50

We always thought that's an easy

50:52

one, obvious evidence, it's a go-to,

50:54

and of course that one has not

50:56

happened yet. But the article

50:58

goes on to say, Mr.

51:00

Garland proceeded with characteristic by-the-book

51:02

caution, pressure testing, every significant

51:04

legal maneuver, demanding that prosecutors

51:06

take no shortcuts and declaring

51:08

the inquiry would, quote, take

51:10

as long as it takes.

51:14

It would take the department nearly a

51:16

year to focus on the actions contained

51:18

in the indictment ultimately brought by Jack

51:20

Smith. Yeah,

51:23

and we did, you and I talked a

51:25

lot about that fraud over at the Save

51:27

America PAC and the Sidney Powell

51:29

PAC, and I think probably

51:31

about a handful of episodes back, we learned that

51:33

those subpoenas had been pulled, and it seems like

51:35

they met a dead end at that follow

51:38

the money investigation as well. I know

51:40

Merrick Garland brought up follow the money in

51:43

his October hearing when

51:46

Congress had questions about the pace

51:48

of the investigation too. The

51:50

article then goes on to explain why

51:52

it would take nearly a year. The

51:56

Times points out that the White House

51:58

was very frustrated with the pace. as

52:01

were members of the January 6th Select Committee,

52:03

given that D.A. Fonney Willis, for example,

52:06

was going head-on at Trump before Garland

52:08

was even sworn in. Now

52:11

the article fails to mention that the

52:13

Department of Justice ultimately indicted Trump before

52:15

the Fulton County DA's office did, though

52:17

the indictment into Trump is just him and

52:19

it's just four counts, whereas the DA's indictment

52:22

has 19 codefended, 18-19

52:24

codefended, sprawling RICO case, 13

52:26

counts against Trump. Now

52:29

the article goes on to say, people around Mr.

52:31

Garland say there would be

52:33

no case against Donald Trump had

52:35

Mr. Garland not acted as decisively as

52:38

he did. Any

52:40

perception and any perception that

52:42

the Department had made Mr. Trump a

52:44

target from the outset without exploring

52:47

other avenues would have

52:49

doomed the investigation. Now

52:52

I looked, I read this article a hundred

52:54

times, there's no explanation for why or how

52:58

going after Trump as the target from

53:00

the outset would have doomed the

53:02

investigation. Andy, do you have any insight as to

53:05

why that would be the case? I

53:07

think this is just another example

53:09

of DOJ being very cautious

53:13

around the politics and the

53:16

optics of this investigation.

53:19

I think they were trying to dodge the

53:22

perception that like, oh, they just went into

53:24

this with a preconceived notion that it's all

53:26

Trump's fault and it

53:28

was kind of a sham from

53:31

the beginning. Now

53:33

we know the fallacy in thinking

53:35

that way is kind of multi-leveled.

53:37

One, you're going to get that criticism

53:40

anyway from this crowd. It's all a

53:42

two-tiered system of justice, not fair, Joe

53:44

Biden's pulling the levers, all that nonsense.

53:48

And even though there

53:50

is a concern about optics and they want to

53:52

make sure that the public, they

53:54

want to maintain public trust in

53:56

the objective nature of the Department and

53:58

all those sorts of things. things? That

54:01

doesn't obligate you to investigate

54:03

every single other person in

54:05

the world before you

54:07

focus on the one person who's obviously

54:10

involved in the case. I

54:12

mean, it's not

54:14

the kind of consideration you would

54:16

give to any other defendant or

54:19

subject of investigation. So

54:21

on that ground alone, I think it's a bit

54:23

illegitimate. And it's

54:25

also just kind of, it's

54:27

illogical, right? You'd be crazy

54:30

to do that in investigation

54:32

after investigation because like you're

54:35

obligated to make quick determinations

54:37

and follow the most obvious

54:39

productive leads first. And

54:42

really, there's only one person that's

54:44

at the center or tied to

54:46

every effort around that attempt

54:50

to overturn the election. And that was Donald

54:52

Trump. He was the obvious subject from

54:55

day one. Yeah. And that's why I want to know

54:57

more about who said that, who sourced it,

54:59

because what we have so far here

55:02

is that the week that Merrick Garland

55:04

got there, he got everybody together and said, we

55:06

got to go after this, even if it goes

55:08

all the way up to Trump, go make it so, engage.

55:12

Then this is pretty new. By

55:14

the summer of 2021, after a couple months, after

55:17

that happened, after he gave

55:19

it to the DC US Attorney's Office, who

55:21

by the way, was headed up by Mike

55:23

Sherwin, if we should go make it so,

55:25

even if it goes all the way up to Trump, by

55:29

the summer, Merrick Garland

55:31

and Lisa Monaco were so frustrated

55:34

with the pace of the work that they

55:36

created a special team to investigate Trump allies

55:39

who gathered at the Willard Hotel, John

55:42

Eastman, Boris Epstein, Rudy Giuliani,

55:44

Roger Stones, et cetera, and

55:47

possible connections. They wanted to look at

55:49

possible connections to Trump. And

55:51

that's according to former officials. So by summer of

55:53

2021, Merrick Garland's like, Hey, DC US

55:55

Attorney's Office, I gave this to you when

55:58

I got here. What's taking taken so

56:00

long. He

56:05

was very frustrated along with Lisa Monaco.

56:07

I didn't know that because the way

56:09

that all the public reporting in the

56:11

media would have me believe is that Merrick

56:14

Garland wanted it to be slow

56:17

and boots on the ground and bottom up

56:19

and was not at all frustrated with the

56:21

pace but the cause of the slow pace

56:24

instead. That was surprising

56:27

to me coming

56:29

from these sources. Yeah, that theme

56:31

comes up in a lot of places

56:33

in this article in ways that

56:35

we really haven't heard before

56:38

which is really interesting. Yeah, I

56:40

think it is. Again,

56:43

that's the first time that we hear it. Now, let's

56:45

talk about Mike Sherwin because he was in charge at

56:48

the DC US Attorney's Office. He

56:50

repeatedly blocked JP Cooney from pitching

56:52

his top-down approach to Merrick Garland.

56:55

This article doesn't mention him at all,

56:57

by the way, nor does it mention

56:59

the Assistant Director in Charge ADIC of

57:01

the FBI Washington's field office, one

57:04

Steve D'Antwono refusing to

57:07

issue subpoenas for the Willard and

57:09

the Trump allies associated with the

57:11

war room. We learned all that

57:13

from the incredible article in Washington

57:15

Post by Carol Lening. That

57:19

was June of last year that we learned all of

57:21

that. That's

57:23

not mentioned here in the article. It

57:25

goes on to say there were also

57:27

problems inside the part of the Justice

57:29

Department leading the investigation, the US Attorney's

57:31

Office in Washington. They

57:34

kind of walk up to it here. The

57:36

office was racked by personnel issues and

57:39

buckling under the weight of identifying and prosecuting

57:41

January 6th rioters, an investigation that

57:43

became the largest ever undertaken by

57:45

the department. Garland and

57:48

his team decided early on not to

57:50

take direct control of the investigation

57:52

themselves as the department had

57:54

done after the Oklahoma City

57:56

bombing. And this to me

57:59

was probably the case. possibly an early error,

58:01

giving it to Mike Sherwin in the DC

58:04

US Attorney's Office, instead of creating

58:06

the investigative team that we'll talk about

58:08

in a minute that would eventually turn

58:10

into what the Jack Smith investigation is

58:12

now. So this is a really

58:14

interesting point. And

58:17

if you go back to our

58:19

decision in 2016 when we opened

58:21

Crossfire Hurricane, and it was

58:26

infamously handled as a,

58:28

quote, headquarters special, we

58:31

got savaged for that in the

58:33

aftermath of the IG investigation and

58:35

everything else. There was all these,

58:39

quite frankly, uninvolved

58:41

people who like to sit on the sidelines

58:43

and say, oh, that was a crucial fault.

58:46

Actually, to be fair, there's a lot of former

58:51

FBI agents who had no involvement

58:53

in the investigation whatsoever, people who

58:55

had retired years before who sat

58:57

back and used this

58:59

as an example of like headquarters hubris.

59:02

This is typical headquarters people taking control

59:04

of things and they can't really run

59:06

them. And they should just have

59:08

handled it as any other case. And Chris

59:11

Ray really kind of, I think,

59:14

sided with that criticism. Kind

59:17

of an event shy way to avoid it

59:19

from happening again. My

59:22

point in bringing it up is this is

59:24

the example of why you do it that

59:26

way. I'm not saying either approach is perfect.

59:28

Each one has potential pitfalls

59:31

and places where that

59:34

running it in a centralized way out of headquarters

59:37

and in a centralized way at a DOJ can create

59:40

some problems, but it also puts

59:42

you in a better position to control

59:45

things like the pace, right? If they

59:47

had decided at the highest

59:49

leadership level, that's the director of the FBI

59:51

and the deputy attorney

59:54

general, hey, we need to do this.

59:57

This is the most important case right now in the

1:00:00

country and we need to make sure it's done

1:00:03

correctly, quickly, on schedule,

1:00:06

closely monitored

1:00:09

and overseen. One

1:00:11

way to do that would have been

1:00:13

handling it from headquarters rather than farming

1:00:15

it out to the Washington Field Office,

1:00:17

especially when WFO was probably buried with

1:00:19

January 6 cases, the rioter

1:00:22

cases. And

1:00:24

seditious conspiracy, right? Yeah,

1:00:27

there's a reason to do that,

1:00:29

and had they done it in this case, might

1:00:32

have made a big difference, but we'll never know. At

1:00:34

least a four-month difference. Yeah. So

1:00:37

then they start getting into the details

1:00:39

of the timeline. Yeah. So

1:00:41

the article breaks down the timeline.

1:00:45

They say in February, while Mr.

1:00:47

Garland awaited Senate confirmation, J.P. Cooney,

1:00:49

a veteran prosecutor in the U.S.

1:00:51

Attorney's Office, who ran the group

1:00:53

investigating the riot's ringleaders, drafted

1:00:56

a proposal to fast-track elements

1:00:58

of the investigation. And

1:01:01

that proposal would also include seizing the

1:01:03

phone of Mr. Stone, Roger Stone. Some

1:01:06

at the department worried Mr. Cooney might

1:01:08

be trying to settle unfinished business according

1:01:10

to two former officials who

1:01:13

now believe those doubts were misplaced. Now,

1:01:17

that's a reference to the fact

1:01:19

that Cooney had worked on the

1:01:22

prosecution of Roger Stone, which was

1:01:24

derailed by Bill Barr, and

1:01:27

then ultimately expunged by

1:01:29

Donald Trump. So

1:01:32

you wrote the sentencing memo that Barr

1:01:34

came back and said, no, we're not

1:01:36

going to sentence him for that long.

1:01:38

Exactly. Exactly. So now the

1:01:40

sum that they're referring to here are

1:01:42

basically Mike Sherwin, who worked on

1:01:45

the commutation of Roger Stone, and

1:01:48

Steve D'Antwono at FBIWFO, and

1:01:50

Matt Axelrod, a top Justice

1:01:52

Department official during the Obama

1:01:54

administration. They had been tapped

1:01:57

by Biden's transition committee to help run

1:01:59

the department data. today until Garland

1:02:01

and Monaco could be confirmed. Now

1:02:04

we know all that detail from Carol

1:02:06

Lening's reporting last year. Okay,

1:02:08

back to the Times article. For

1:02:11

the next several months, the Willard inquiry,

1:02:13

led by Mr. Cooney, took a back

1:02:16

seat to another high-profile high-risk effort, which

1:02:18

was drafting the novel seditious conspiracy charges

1:02:20

against the leaders of the Oath Keepers

1:02:23

and the Proud Boys for their roles

1:02:25

in the Capitol attack. Mr.

1:02:27

Garland, like most attorneys general,

1:02:30

did not weigh in himself

1:02:32

on day-to-day decision-making. Instead, he

1:02:34

would transmit his preferences on the

1:02:37

Jan 6 investigations every Thursday

1:02:39

evening during a briefing with about

1:02:41

a half a dozen aides. The

1:02:44

team included L. Rush Atkinson, a

1:02:46

senior counselor to Mr. Garland, whose

1:02:48

work for the special counsel Robert

1:02:51

S. Muller offered valuable insight. Ooh,

1:02:53

Robert, who? I don't know. Who's

1:02:55

that? I'm kidding. He's probably Triple

1:02:57

Sticks himself. Triple

1:03:00

Sticks. I forgot about that because he said

1:03:02

hockey. The

1:03:04

hockey player. On June 30th, the

1:03:06

Democratic majority in the House voted to

1:03:08

create a January 6 committee with teams

1:03:11

assigned to investigate the fake electors plot

1:03:13

and Mr. Trump's effort to overturn the

1:03:15

election. Justice Department

1:03:17

officials vehemently denied that external pressure

1:03:20

spurred them to move faster and

1:03:22

maintain that their decisions were prompted

1:03:24

solely by the collection of evidence.

1:03:27

By the third week of

1:03:29

June 2021, Mr. Garland had

1:03:32

decided investigators had accumulated enough

1:03:34

evidence to justify channeling more

1:03:36

resources into the Willard investigation.

1:03:39

Okay, so June 2021,

1:03:41

that's two and a half months after he got

1:03:43

there? Yes. Right? So

1:03:46

at the outset, he's like, go, make it so. And

1:03:48

then in June, him and Monica were like, this is

1:03:50

going way too slow. I'm channeling

1:03:52

more resources into this investigation because

1:03:55

whatever you're doing up there, Mike

1:03:57

Sherwin, you know, either because I

1:03:59

personally don't. like that guy. Maybe

1:04:02

he's blocking all this or just sitting on it or

1:04:04

putting it in the back seat. Or also

1:04:06

because again, like you said, they

1:04:08

were inundated with January

1:04:10

6th investigations. Yeah.

1:04:13

I mean, nobody pushes additional resources

1:04:15

to an investigation that they think

1:04:17

is on track and going fast

1:04:19

enough. So that decision

1:04:22

alone is indicative of the fact that they

1:04:24

were frustrated with how things

1:04:26

were going. So

1:04:30

they go on to say, but the U.S.

1:04:32

Attorney's Office, which was supposed to be coordinating

1:04:34

the investigation, did not have the bandwidth to

1:04:36

do it in Mr. Garland's view. He

1:04:38

groused about a lack of updates on the inquiry.

1:04:41

In late June, Mr. Garland, Ms. Monaco,

1:04:43

and several aides decided they need to

1:04:46

take a dramatic step, creating

1:04:48

an independent team separate from

1:04:50

Mr. Cooney's original group tasked

1:04:52

with investigating the Willard plotters with no

1:04:54

restriction on moving up the ladder to

1:04:57

Mr. Trump if the evidence justified it.

1:05:00

Wow. Okay. So Garland

1:05:03

took a dramatic step in June of 2021. Yeah.

1:05:08

And basically took that, we'll

1:05:10

call it, we'll keep calling it the Willard

1:05:13

investigation out of the hands of Jay P.

1:05:15

Cooney, who was the guy who pitched it

1:05:17

originally. But of course, he'd been distracted, you

1:05:20

know, focusing on the Oathkeeper and Proud

1:05:22

Boys cases. So they

1:05:24

build this, distracted going on 60 minutes talking

1:05:26

about it and then having to quit before

1:05:28

he was fired for doing that. Yeah. Yeah.

1:05:31

Okay. So they didn't want too many people knowing

1:05:34

about this effort. So they gave it a vanilla

1:05:36

name. They called it the

1:05:39

Investigations Unit. Dun-dun.

1:05:43

I mean, man alive. I couldn't

1:05:46

have gotten more vanilla than that. Jesus,

1:05:48

lack of creativity there. But

1:05:50

anyway, back to

1:05:52

the article, then things appear to have stalled.

1:05:55

The Investigations Unit would

1:05:57

not begin operating until November 2021. more

1:06:00

than four months after its creation.

1:06:03

And there in lies the

1:06:05

rub, right? That when I said earlier

1:06:07

that this maybe could have saved

1:06:10

four months, right? Not 18

1:06:12

months or two years as we sometimes hear,

1:06:16

but that's a lot of time. And

1:06:19

there's nothing in here about why those

1:06:21

investigations, the investigations unit, dung-dung

1:06:23

stalled for four months. There's

1:06:25

nothing in here about why. But

1:06:28

it was November when Biden's pick

1:06:30

for US Attorney was finally sworn in. It

1:06:33

was being blocked, this isn't in the

1:06:35

article, I'm just telling you, it was

1:06:37

blocked by Republican Senators Mike Lee, Rick

1:06:39

Scott, Ron Johnson, Ted Cruz, and Tommy

1:06:41

Tuberville. Huh, that's an interesting group of

1:06:43

senators that wouldn't want an investigation into

1:06:45

the coup to begin. Gee,

1:06:47

what else is a commonality between them? I

1:06:51

know this is

1:06:53

supporting the objections of the certification of the

1:06:55

election on January 6th. Wow.

1:06:58

So they wrote a letter to Garland in June

1:07:00

saying, we're going to block confirmation of Matthew Graves

1:07:02

at the US Attorney's office in

1:07:04

DC unless and until

1:07:07

you, Merrick Garland, start investigating the

1:07:09

Black Lives Matter protesters with

1:07:11

the same vigor you have

1:07:13

going after the peaceful

1:07:16

protesters at January 6th. Yeah.

1:07:19

That same month, by

1:07:21

the way, in November when

1:07:23

Matthew Graves finally got confirmed

1:07:26

after getting that blockade,

1:07:28

Garland put Thomas Windham in charge of

1:07:30

the investigations unit, and that's when

1:07:33

things began in earnest once Biden's team was

1:07:35

fully there. It says Mr.

1:07:37

Windham had begun joining with

1:07:39

investigators from other agencies, including the

1:07:41

Postal Service, to track the trail

1:07:43

of fake electors. And

1:07:45

that's fascinating to me because these

1:07:48

certificates were mailed. Yeah.

1:07:50

He also teamed up with the Justice Department's Inspector

1:07:52

General who had begun investigating Mr. Clark.

1:07:54

And Andy, we know from Carol Lennox

1:07:56

reporting that Dan Twonow at the FBI

1:07:59

was blocking search horns and subpoenas left

1:08:01

and right. I'm not going to subpoena

1:08:03

the frigging Willard and I'm

1:08:06

not going to go get Eastman's phone or

1:08:09

whatever. He was blocking those. So

1:08:11

Wyndham used the Inspector General and the

1:08:13

postal inspectors to execute his search horns.

1:08:16

Now what's new here is that Wyndham teamed

1:08:18

up with the IG's investigation into Clark, which

1:08:21

began by the way way back in

1:08:23

January of 2021, right

1:08:25

after the insurrection. DOJ opened

1:08:28

that IG investigation. Yeah,

1:08:30

yeah. I mean this is all amazing to me.

1:08:32

I mean I

1:08:35

think those points are all totally valid,

1:08:38

but I also kind of feel like the

1:08:40

side of the story they're not really highlighting

1:08:43

is that Wyndham was not getting

1:08:45

the resources or the support from

1:08:47

what is the U.S. Attorney's Office's

1:08:49

main line of investigators and that

1:08:51

is the Federal Bureau of Investigation.

1:08:54

You know that could be because FBI folks were

1:08:57

all tapped out on the January 6th case or

1:09:00

it could be that they

1:09:02

or their boss were not willing to

1:09:04

do it, right? And that

1:09:06

gets you back to the Dantuono question

1:09:09

or it could be some combination of the two, but

1:09:12

in either case like Tom

1:09:14

Wyndham having to rely on IG agents

1:09:18

to serve that subpoena on Jeff Clark

1:09:20

or sees his phone or is

1:09:23

it Eastman? He sees the Eastman phone

1:09:25

in New Mexico or something around that

1:09:27

time. I remember seeing

1:09:29

that search warrant when it was revealed

1:09:31

and it was just like this is

1:09:33

crazy. You and I called it, we

1:09:35

called it the search warrant two-step. We're

1:09:37

like this is weird. Why are you

1:09:39

having the post cop, the mail cops

1:09:41

come in and do this? No

1:09:44

shame on the U.S. Postal Inspection

1:09:46

Service. Great service. It's

1:09:49

a terrific agency. They have a really unique mandate,

1:09:52

but it's just not really done that

1:09:54

way very often. So

1:09:58

the article goes on to say. that

1:10:02

then Mr. Windham's former boss

1:10:04

in Maryland, Jonathan Lensner, was

1:10:07

named as Chief of Staff to

1:10:09

Chris Ray. And that gave

1:10:11

the prosecutor Windham a direct line

1:10:13

to the highest echelons of the bureau. Mr.

1:10:15

Ray also instructed deputies to ensure that Windham had

1:10:17

everything he needed. That seemed to shake the tree

1:10:19

loose. Yeah,

1:10:22

it's interesting because I've heard that in different

1:10:24

contexts recently. I was talking to someone, a

1:10:28

former colleague who, like me, talks

1:10:31

to other former and current colleagues.

1:10:33

And it seems like

1:10:35

Lensner's arrival really kind of changed

1:10:39

things a little bit on the seventh floor

1:10:41

around the director. I

1:10:44

think this previous Chief of Staff was

1:10:46

a guy who was basically – his

1:10:48

job was to keep people away from Director

1:10:50

Ray. And Lensner seems to have brought a

1:10:52

little bit more openness

1:10:55

or connection there,

1:10:58

which is probably greatly needed. Yeah, and

1:11:01

I would be very interested to see why the Chief

1:11:03

of Staff was replaced. Did it have to do

1:11:05

with Merrick Garland's frustration at the pace

1:11:07

to give Mr. Windham a clearer direct

1:11:09

line to the FBI? It

1:11:12

would be interesting to know that inside baseball. We

1:11:14

never will, I promise. That

1:11:16

would be hard to find because he basically

1:11:18

serves at the will of Christopher Ray. You're

1:11:22

not going to unlock that box? No,

1:11:25

probably not. But shortly after that, by the way,

1:11:27

the massive round of subpoenas would go out in

1:11:29

early 2022. And

1:11:31

that's when Trump deployed his executive privilege

1:11:33

delay tactics. And that's from

1:11:35

the Times article, the Justice Department set up

1:11:37

a secret team of prosecutors, eventually employing

1:11:39

more than a dozen lawyers to

1:11:41

review the potentially protected materials, including emails.

1:11:44

It was known internally by the code

1:11:46

named Coconut. That's

1:11:48

according to people familiar with the planning, led

1:11:51

by a prosecutor from Portland, Oregon, who was

1:11:53

the only person authorized to talk to Mr.

1:11:55

Windham's team. Now, the

1:11:58

January 6th committee hearings. then

1:12:00

began in June. And

1:12:02

Mr. Garland has said time and again, that

1:12:04

the hearings had no impact on the Trump

1:12:06

investigation. And honestly, looking

1:12:09

at this timeline of events, Andy, it seems to be the

1:12:11

case that they were trying to

1:12:13

get this going and did get it going

1:12:15

before the January 6th committee hearings happened. Now,

1:12:18

they go on to say, the department was motivated

1:12:20

only by the need to get it right, which

1:12:23

entailed imagining the mistakes that we could make and

1:12:25

making sure that we don't make them. As

1:12:28

he told the bar, so that's what Merrick Garland told the

1:12:30

Bar Association conference recently. But

1:12:32

the pressure was building and

1:12:34

what Mr. Wyndham's team wanted most were hundreds

1:12:36

of raw transcripts of committee interviews,

1:12:38

something that the 1-6 committee

1:12:41

refused to overturn quickly. And this

1:12:43

has always bugged me, where

1:12:46

members of the committee were

1:12:48

criticizing the

1:12:50

Department of Justice for their slowness

1:12:53

while also refusing to hand over those

1:12:55

transcripts in a quick manner.

1:12:58

Yeah, it seemed really petty and

1:13:01

very kind of parochial, like, this is

1:13:03

our stuff, you can't have our stuff,

1:13:05

when everybody knew all along that they

1:13:08

would get it all eventually anyway. So,

1:13:10

you know, it's a big article and

1:13:12

goes in a lot of directions. It's

1:13:14

a fascinating story, well done by these

1:13:17

reporters. But

1:13:19

I feel like my takeaway, AG, is

1:13:22

like there was a lot of

1:13:24

things that slowed it down. There

1:13:26

was no dedicated effort, at

1:13:29

least on Merrick Garland's part or

1:13:31

the people directly around him to slow things

1:13:33

down. But he does have a bit of

1:13:35

a cautious approach, didn't wanna make any mistakes,

1:13:37

there's nothing crazy or stupid

1:13:39

about that. But

1:13:41

you have all these, you know, you

1:13:43

have all these factors that all contributed

1:13:46

to making this thing at its early

1:13:48

stages take way too long, longer

1:13:50

than it should have. Everything

1:13:53

from Trump's aggressive presidential

1:13:56

immunity, you know, efforts

1:13:59

to stop people. from testifying on stuff all

1:14:02

the way down to what may

1:14:04

have been reluctance on

1:14:06

the part of some law enforcement entities, particularly

1:14:09

my own, to really

1:14:11

dig into this thing early

1:14:14

in an aggressive way. So

1:14:16

yeah, and you got Dan Tohono and

1:14:18

you got Sherwin and then you got

1:14:20

the thousands and thousands of other January

1:14:23

6 boots on the ground investigation. You

1:14:25

got COVID backing everything up. Sure, yeah.

1:14:27

And then of course, you've got these

1:14:30

wonderful Republican senators

1:14:34

flowing things down. Bit of a perfect

1:14:36

storm, right? Of things

1:14:38

that all were very different, but all pointed

1:14:40

in the same direction, that was to delay.

1:14:43

Yeah, I think the one thing in hindsight, I

1:14:45

mean, well, two things in hindsight I would have

1:14:48

done differently was to keep this investigation

1:14:50

at main justice and enlist

1:14:52

that team rather than dole it to

1:14:54

the US Attorney's Office in DC

1:14:56

at first. And then also,

1:14:58

I personally would have appointed a special counsel in

1:15:01

2021, just because

1:15:04

that is a full on dedicated team with

1:15:06

all the powers of a US Attorney

1:15:08

and resources and all that other stuff.

1:15:10

Well, the fact that

1:15:12

they did do that, and that's

1:15:14

when things went from lagging to

1:15:16

hyperspeed, that proves your point. Had

1:15:19

they kept this

1:15:21

investigation in FBI

1:15:24

headquarters and monitored by

1:15:27

DOJ-based attorneys, what

1:15:30

the investigator needed was some

1:15:32

centralization and very direct oversight

1:15:35

at a level that was

1:15:37

able to make decisions. And

1:15:40

they ultimately got that with the special

1:15:42

counsel and that's when things picked up.

1:15:44

Yeah, and well, it picked up pretty significantly when

1:15:47

Wyndham got there. But again, he had all those

1:15:49

other roadblocks trying to get his

1:15:51

search warrants executed and his subpoenas

1:15:54

issued. So yeah,

1:15:56

it's a very

1:15:58

interesting article. I recommend everybody check it out,

1:16:01

but also really, I think a great companion to

1:16:03

this article is the June 2023 article

1:16:05

in the Washington Post by Carol Enig. Because

1:16:08

it fills in some of the gaps that are

1:16:10

in this story as well. All

1:16:13

right, everybody, we have to take one more quick break,

1:16:15

but stick around. We'll be right back. Skip

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1:17:54

right, everybody. Welcome back. So our final

1:17:56

story today, back up in DC. Donald

1:17:58

Trump has filed his brief. He found

1:18:00

absolute presidential monarchy, also

1:18:04

known as immunity, with the Supreme Court this

1:18:06

week. Now Hugo Lowell, the Guardian,

1:18:08

has written that Trump re-advanced his

1:18:10

argument that he enjoys absolute immunity

1:18:13

from prosecution because the conduct charged

1:18:15

by Jack Smith over his plot to stop the

1:18:18

transfer of power is within the outer

1:18:20

perimeter of his duties. I can't even say it

1:18:22

with a straight face. Within the

1:18:24

outer perimeter of his duties as president. Trump

1:18:27

reiterated that presidents can only be prosecuted if

1:18:29

they've been convicted in the Senate by,

1:18:31

you know, through impeachment, pointing to

1:18:34

language in the US Constitution that

1:18:36

a party convicted by the Senate

1:18:38

shall nevertheless be liable and subject

1:18:41

to indictment, trial, judgment, and punishment.

1:18:44

Now Trump claims that without the

1:18:46

guarantee of absolute immunity, the

1:18:48

threat of potential prosecution would prevent future

1:18:50

presidents from feeling free to take decisive

1:18:53

action without being second guessed by

1:18:55

prosecutors later on. Quote, every

1:18:57

future president will face de facto

1:19:00

blackmail and extortion while in office. The

1:19:02

threat of future prosecution and imprisonment would

1:19:04

become a political cudgel to influence the

1:19:07

most sensitive and controversial presidential decisions. But

1:19:09

Andy, he also argued that no president in

1:19:11

history has ever faced indictment, which

1:19:14

blatantly undercuts his position that the threat

1:19:16

of prosecution would stymie a president's ability

1:19:18

to do his or her job. Oral

1:19:22

arguments, as you know, are set for April

1:19:24

25th, the last possible day in the term

1:19:26

to have oral arguments. And

1:19:29

the courts have no rule barring them

1:19:31

from holding trial in the middle of

1:19:33

elections. So I just wanted to put that out there too. Yeah,

1:19:37

this is exactly what we expected. Kudos

1:19:40

to Hugo for kind of summing it

1:19:42

up for us. You

1:19:45

know, there's nothing new here. The whole

1:19:48

double immunity argument is not even in the

1:19:50

question that the court agreed to hear. So

1:19:53

it seems like they've kind of pushed that

1:19:56

one aside right from the beginning. Yeah,

1:19:58

that was the basis of my dream. Yeah,

1:20:02

and the whole kind of every

1:20:04

future president will blackmail them and we'll be

1:20:06

able to make bold decisions. I mean I

1:20:08

don't know. I think you could very easily

1:20:10

decide, you know what? I

1:20:13

like the idea of future presidents feeling

1:20:15

constrained by the criminal laws of the

1:20:17

United States of America. Well,

1:20:19

they have been this whole time. That's a good

1:20:21

thing. They have been this whole time.

1:20:23

There's been no presidential immunity this whole

1:20:25

time. That gets back to our absolute

1:20:27

monarchy. Like if

1:20:30

the president gets to just do whatever they

1:20:32

want and violate whatever law they want, that's

1:20:34

not the presidency that

1:20:36

was anticipated by the Constitution.

1:20:40

So there's that. The problematic one here

1:20:42

is this whole within

1:20:45

the outer perimeter issue. And

1:20:47

this worries me because

1:20:49

the court loves an

1:20:51

off-ramp. And sometimes the

1:20:53

off-ramp will be, well, this raises a fact question,

1:20:55

so we're going to have to remand it back

1:20:57

to the court to make these determinations of fact.

1:21:00

That scares the crap out of me. Yeah,

1:21:03

they could come up with some sort of

1:21:05

test for what – where –

1:21:07

how we draw the line at the outer

1:21:09

perimeter and then kick the

1:21:11

case back for Judge Chutkin to

1:21:14

make the factual determinations. Now,

1:21:16

it's also possible they could say, as the

1:21:18

lower courts did, no, as

1:21:21

a matter of law, the

1:21:23

conduct alleged in the indictment, which you have to

1:21:25

assume you have to take on its face at

1:21:27

this point in the proceeding, as

1:21:29

a matter of law that can't possibly

1:21:32

be within the scope of a president's

1:21:34

duties. But if they were going to address

1:21:36

that question, then they should have just

1:21:39

denied the stay. I mean, if that's

1:21:41

the question, that was answered thoroughly

1:21:44

by the DC Circuit Court of Appeals. And

1:21:47

I mean, I guess they

1:21:49

could have said we're only going to look at what

1:21:51

the DC Circuit Court of Appeals looked at. But the

1:21:53

fact that they've expanded it is

1:21:56

just like what you said, is – leaves

1:21:58

open the possibility that they were – remand

1:22:00

us back to Judge Chukin and we have to

1:22:02

go through this whole thing again. I

1:22:04

think that that's a, I'm not

1:22:06

going to say that's the likely outcome because I'm

1:22:08

done trying to predict these things, but that's

1:22:11

a very possible result

1:22:14

that we get here and one

1:22:16

that will delay the trial significantly.

1:22:19

Significantly, well past the election.

1:22:22

Yeah. All right, do we have any

1:22:24

listener questions today, my friend? We got a

1:22:26

bunch this week and most of them were

1:22:29

very, very much in the same orbit. So

1:22:31

I'll just read you a little sampling of

1:22:33

them and then we'll get at

1:22:35

this. The issue is not going to surprise you. James

1:22:38

gets right to it and the entirety of

1:22:40

his question is, is there no way to

1:22:42

get rid of Judge Chukin? Jen

1:22:47

says, thank you both for sharing your insights into

1:22:49

all things Jack with us every week. Jack

1:22:52

is the first podcast I listened to. My

1:22:54

question relates to the questionable rulings from

1:22:57

Judge Eileen Cannon. Is the appeals process

1:22:59

the only remedy available to Jack when

1:23:03

it's a ruling that can be appealed?

1:23:05

Is there no supervisory board or senior

1:23:07

judge that oversees federal judges and their

1:23:09

non-appealable rulings? And Nate

1:23:11

says, I am thinking of Judge Cannon, but who

1:23:14

can judges legally seek advice from

1:23:16

about court cases and motions prior

1:23:18

to making a ruling? I thought

1:23:21

that was kind of interesting. So

1:23:25

we did hit this a little bit earlier in the show, so

1:23:27

I won't really beat the dead

1:23:30

horse, but there's not much that

1:23:32

the government can do here. If

1:23:34

they are appealing a final ruling

1:23:37

on a motion from Judge Cannon, they can

1:23:39

get in front of the 11th Circuit and

1:23:42

they can try, if their

1:23:44

appeal is granted, they can try

1:23:47

to get the court to

1:23:49

remand the case back to a different judge.

1:23:51

That would be a bit of

1:23:53

a bank shot. It's very hard to do. The

1:23:56

standard for taking a case away from a

1:23:58

judge is incredibly high. It's essentially only when

1:24:01

you, you know, through the pendency of the

1:24:03

case, you reveal like an improper relationship between

1:24:05

the judge and one of the parties. We

1:24:07

certainly don't have that here. And

1:24:10

there's all kinds of negative implications to

1:24:12

even bringing that sort of challenge. It,

1:24:16

you know, as I said earlier, going to war

1:24:18

with the judge in the case that in all

1:24:21

likelihood is going to make all the decisions that

1:24:23

are important to you, it's generally a bad idea

1:24:26

for that case. So I know it's

1:24:28

frustrating. There isn't much supervision on federal

1:24:30

judges. They're appointed for life. Technically

1:24:34

there is a presiding judge in the court,

1:24:36

you know, in the district where each of

1:24:38

them work. And

1:24:41

those judges are kind of nominally in

1:24:44

charge of them. But really the presiding judge

1:24:46

just makes decisions about like scheduling and assigning

1:24:48

cases and stuff like that. Ultimately,

1:24:51

I think it's the judicial conference

1:24:53

and, you

1:24:55

know, that makes bigger

1:24:57

decisions about the court system

1:24:59

and ultimately could weigh

1:25:02

in. That's the judicial conference. It's a

1:25:04

committee which the Chief Justice

1:25:06

of the Supreme Court is kind of in

1:25:08

charge of. But again, there's not like a

1:25:10

clear tried and true path to

1:25:13

getting a judge recused. Certainly

1:25:15

the only way to get a judge off

1:25:18

is through impeachment, which

1:25:21

we're not even close to that yet. Now,

1:25:23

and there was another option that

1:25:26

I think Andrew Weissman brought up

1:25:30

in responding to Judge Cannon's

1:25:32

weird order to write

1:25:34

up jury instructions based on things

1:25:36

that don't exist. And

1:25:39

he said, well, because you know what

1:25:41

I said I would do is I would, if I were Jack

1:25:44

Smith, I would respond and say I'm not going to do that,

1:25:46

either dismiss or get off the pot. But

1:25:48

Weissman said another option is what's called

1:25:50

a writ of mandamus, where he would

1:25:52

go based on this order to write

1:25:54

up something that's not consistent with the law in the

1:25:56

11th Circuit. He could go to the 11th Circuit and

1:25:59

say, I need you to tell

1:26:01

Judge Cannon to stop it. And

1:26:04

also, can we have another judge? So

1:26:06

it is possible that

1:26:09

this order to write

1:26:11

these weird jury instructions is

1:26:13

a reason to go to

1:26:15

the 11th Circuit and say, this is

1:26:18

bizarre and can

1:26:20

you order her to stop me, to tell

1:26:22

her to not ask me to do this? But

1:26:26

again, like you said earlier, earlier when we were

1:26:28

talking with Brian, that you

1:26:30

risk losing and

1:26:32

that backfire and blow up in your face and

1:26:34

now you've pissed off the judge and – It's

1:26:37

super provocative. And I

1:26:39

would say in that circumstance, even

1:26:43

if the 11th Circuit was willing to weigh in,

1:26:45

it would be a very narrow weigh-in. It would

1:26:47

be some sort of a directive to her that

1:26:49

would countermand this particular

1:26:51

order. But

1:26:53

the prosecution's concerns with her are

1:26:56

far beyond this one crazy, let's

1:26:59

pretend the law goes in two different directions and

1:27:02

have you make your instructions for both. And

1:27:04

she's shown us that she would rather not

1:27:07

go to the 11th Circuit and

1:27:09

makes rulings that punt the issues down

1:27:11

the road like she did in the

1:27:14

unconstitutional vagueness thing. She's got

1:27:17

an outstanding motion for reconsideration where

1:27:19

she wanted to release those witness

1:27:21

lists. I don't – like

1:27:24

I said, if I were her, I just wouldn't make a ruling

1:27:27

in that case, just wait. But

1:27:30

she could come back

1:27:33

and rule that, give

1:27:35

me a proposed redactions, which

1:27:38

the government already has, or she might challenge those

1:27:40

or have another hearing on them and just drag

1:27:42

the whole thing out. But

1:27:45

she really – you really do need some sort of an

1:27:47

action by the judge, at least appealable action by

1:27:49

the judge to take it to the 11th Circuit.

1:27:53

And so that's kind of where we are.

1:27:55

I think she's intentionally dodging that. She's doing it

1:27:57

on purpose for sure. She doesn't want to

1:27:59

go back to – the 11th Circuit, they embarrassed the heck out of

1:28:01

her the last time. And then that's

1:28:04

the Nate's question, like who could she

1:28:06

go to for counsel or advice? I

1:28:08

mean judges generally do not go to

1:28:10

any other judges to figure out

1:28:12

how they should rule on a case. What

1:28:14

they do do is consult with – they

1:28:17

look at the law, right? They look

1:28:19

at legislative history. They look at other

1:28:21

elements of history, the statements of the

1:28:23

founders when it's a constitutional thing. They

1:28:26

can consider any sources they want, but

1:28:28

they generally like don't go – I

1:28:32

don't think anyway unless it's a totally private

1:28:34

thing that's behind the – kind of behind

1:28:36

the robe as it were. But we

1:28:39

don't really see that in cases. Judges –

1:28:42

I'm not familiar with a judge ever saying

1:28:44

like, well, I talked to Judge so-and-so about

1:28:46

this very tricky decision and she

1:28:49

said, so

1:28:51

yeah, it's a weird element

1:28:54

of our system. They are pointed for

1:28:56

life. They hold immense discretion

1:28:59

and make big decisions on

1:29:01

cases every day. And some are

1:29:03

really good at it and others, not so much. So

1:29:06

that's – we seem to be in the not so much

1:29:09

bucket this time. Right. And I

1:29:11

know they get a lot of advice from their law

1:29:13

clerks as well, or input I

1:29:15

should say, not necessarily advice. And

1:29:17

I was talking to somebody of

1:29:20

great import who said that sometimes the

1:29:24

circuit will call the judge and say,

1:29:27

you should probably step down before we

1:29:29

make you step down, but I don't

1:29:31

think we're there quite yet. Super rare.

1:29:33

There's actually a case here

1:29:35

near me. I think

1:29:37

in the Eastern District of

1:29:39

Virginia, there is a judge who

1:29:41

is very old

1:29:44

and whose docket I

1:29:46

think – I don't know all the details

1:29:48

around this, but I think that the

1:29:51

presiding judge in that courthouse is –

1:29:53

they're all concerned about her productivity

1:29:56

and how long her

1:29:58

docket is getting. So they're

1:30:00

making some efforts like that to get her to

1:30:02

step down or take – what

1:30:09

do they call that? Like almost like retired

1:30:11

status. Like a sabbatical – oh, senior status.

1:30:13

Senior status. That's it. No, you take like

1:30:15

a lighter load and she's really resisting it.

1:30:17

She's not taking it from anybody. So

1:30:20

yeah, that's the thing. Nobody has to do anything

1:30:22

as a federal judge. I mean you're there for life. That's

1:30:25

right. A keyment is really the only remedy. Right, and

1:30:27

that's a high bar. Especially if this

1:30:29

Congress – well, I mean how many

1:30:31

– we just lost another congressman on the

1:30:33

Republican side. He's going

1:30:35

to quit before his term. He's found a

1:30:38

one-vote margin and then Marjorie Taylor Greene wants to

1:30:40

vacate Johnson. It's just a wow. We'll talk about

1:30:42

that on other shows. But

1:30:45

thank you very much for your questions.

1:30:47

They always make us think and they're

1:30:49

very thoughtful and we appreciate them. There's

1:30:52

a link in the show notes if you want to submit a question

1:30:54

for us as you can follow and we really

1:30:56

appreciate it. Do you have any final

1:30:58

thoughts before we get out of this? A real short

1:31:00

show today I thought for sure. It was supposed to

1:31:02

be so short. We had so few rulings to go

1:31:04

over and then we got that whopper – well, the

1:31:07

one ruling we did go over really needed to

1:31:09

be dissected and we did that. And then we

1:31:11

had that huge article. So yeah, interesting show, a

1:31:14

little bit different, always fun to do and look

1:31:16

forward to see what next week delivers. Yeah,

1:31:19

and we will be back in your ears. What is

1:31:22

it going to be Sunday? Is that April 1st or

1:31:24

March 31st? I think March 31st will be the end

1:31:26

of the month, my friend. We

1:31:30

will be less than a month away from those immediate

1:31:32

oral arguments. So we'll see what the

1:31:34

news gods bring us for next time. Until

1:31:36

then, everybody, please take care. I've been Allison

1:31:38

Gill. And I'm Andy McCabe. Time

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