Jack - Episode 1 - The Scope

Episode Date: December 4, 2022

In the first episode, Allison and Andy cover the differences between the current Special Counsel, Jack Smith, and the previous Special Counsel, Robert Mueller, in terms of scope and purview. They discuss the 11th Circuit’s ruling in the Special Master case with Hugo Lowell; plus Richey factors and jurisdiction; the two Pats testify (separately), and they dispel some myths about the new Congress’ ability to choke funding to the investigation.Follow the Podcast on Apple:https://apple.co/3gRNCnrCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AG on Twitter:Dr. Allison Gillhttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on Twitter, but you can buy his bookThe Threathttps://www.amazon.com/Threat-Protects-America-Terror-Trump-ebook/dp/B07HFMYQPGThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at $5/month and Abovehttps://dailybeans.supercast.techOrhttps://patreon.com/thedailybeans

When is the last time you didn't fill enough? If you relate to that question, check out the podcast authentically us. This is where we talk about what it means to be authentic and everything that you do in every space that you occupy. Join us on this journey. I signed in order appointing Jack Smith. And nobody knows you. And those who say Jack is a finesse. Mr. Smith is a veteran career prosecutor.

What law have I written? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is? Send me to jail. Welcome to Jack, podcast for all things special counsel. I'm your host and I might know a thing or two about special counsel investigations into Donald Trump, Andy McCabe. And I'm I'm a G, you know, a G from Muller Shear Out.

And Andy, if you had told me five years ago, as I was setting up $59 microphones at my kitchen table to record the very first episode of Muller Shear Out back in November of 2017, if you told me back then that in five years time, there'd be a second special counsel investigation and I'd be hosting a podcast about it with you, I'd have never believed it, but here we are.

Yes, here we are. So let's talk a little bit about the podcast. There's our first episode, and it will serve as a kind of intro into who Jack Smith is, what a special counsel is, what they can do, what are some of the main differences between the conditions here and the conditions during the Mueller investigation?

And finally, what makes this special counsel different? Yeah, I feel like a lot of people are hung up on what happened in the Mueller investigation and worried that that will happen here, too. But we're also going to cover news that's relevant to the special counsel investigations, including some new testimony. We're going to talk about in this show. And the recent 11th Circuit ruling, which we'll discuss with the Guardians new Trump Department of Justice, Political Investigations reporter, and our friend Hugo Loll.

But first, I wanna ask everyone, please follow this podcast, rate this podcast, subscribe to this podcast. That small act takes a couple of seconds. It's free, but it really doesn't mean a lot to us. So thank you very much. All right, so let's dive in and let's talk a little bit about what a special council does and why Merritt Garland appointed one. And so I think AG there's no better place to start here on the Y question than to point out the value. There's really only one value that the special counsel brings to

DOJ and the AG. And that is the ability to distance the department to bring a sense of a political independence to what otherwise would be a politically charged kind of a high-profile intricate investigation. Jack Smith is a guy who at the end of the day does not owe his job to the current president of the United States. And that's really the important thing to remember here. We are in a situation where the main target of this case is, of course, Donald Trump and Donald Trump recently announced he's going to run for president. He is running for president now in the in the 2024 election. We can all assume probably pretty confidently that our current president, Joe Biden, will also be running against him.

So think of the weirdness there. If Merritt Garland keeps the investigation under his direct supervision, Garland to some, you know, owes his job to Joe Biden, the guy who's running against the person you're investigating, very sticky, very weird. So you bring in a special counsel to get some arms length distance from that kind of stink of politicization. Yeah. I think that's a really important point. And so, you know, when you have the, you know, the political opponent running for president,

but also this investigation is running up against possible criminal probes into members of Congress, right? Like they seized Perry's, Rep Perry's phone, the DOJ did, and if it gets to a point where they find something, it also does not look good for the Attorney General appointed by the current Democratic president to be in charge of that kind of investigation as well. And that kind of brings me into the scope because this seems like a much

broader scope than we had when we were looking at the Mueller investigation. And also the way in which the Mueller investigation started, which I know you have intimate knowledge of and the way that this one started. I think there are two different things there. We'll talk a little bit more about it when we talk about the differences, but let's talk about the scope of this special council investigation. Sure. So Jack Smith has been given a very broad scope to begin with.

So technically, he's given the authority to continue the investigation into the potential mishandling of government property, sensitive documents and presidential records at the Marlaga resort, Donald Trump's residents at the moment as well. And also to kind of oversee all of the government investigation around January 6th, the attack on our capital. So if you think about the vast numbers of people who have already been indicted and prosecuted

in that case, the potentially hundreds more who may, and then put that chunk of work aside and then think about like where this investigation is clearly going. And that is looking at the former president, his aides, his staffers, the political figures, like you mentioned, who may have been involved or communicating with him in the lead up to January 6, may have known about it, may have had some role in helping plan for that activity. So Smith has got his hands fully. He's got a very, very wide lane to drive this investigation down. And it'll be interesting to see, of course, where it lands. Yeah. And how does the recent conviction of two Oathkeepers, Stuart Rhodes and Kelly Megs of seditious

conspiracy play into an investigation into Donald Trump? Does it make it easier for for Jack Smith? Can he now say that this was seditious conspiracy? Does it play a role at all this recent conviction because it was a big deal. Yeah. Yeah, really big deal. I'm gonna give you the hated sports analogy here. This is like if you're this is like you got two NBA teams playing, they're fighting each other under the paint and you're scoring on your opponent, you know, from kind of mid-range jumpers,

and then all of a sudden, someone on your team backs it way behind the three-point line and starts burying the ball. You've just shown your opponent that you can take it to a whole new level, that you're capable of beating them in a way that they didn't think about, and that's kind of what's happened with this result. This is a loud message, not

just to Donald Trump, but to anyone who might fall within the scope of that investigation. The DOJ is prepared and capable of putting on a complicated case, a moonshot, right, a charge of seditious conspiracy. They're able to take that in front of a jury, put the evidence in front of them, a convinceism, and bring back a conviction against a top level in this case with the Oathkeeper's trial planner. Somebody who wasn't breaking windows, wasn't attacking the Capitol. Didn't even step foot on the grounds during that day, if you believe him. And we're able to get the most significant conviction against him. So if you think you're in the scope at that level, that kind of organizational level

of the January 6th investigation, this just sent a chill down your spine because DOJ has the will and the ability to convince a jury that planners, you know, the top of the food chain should pay a high price for what they did. Yeah, and I think if I'm a defense attorney for somebody like Enrique Tario who is charged

with citizenship conspiracy and has a trial coming up soon, I might be saying, hey, maybe now is a good time to cut a deal. That's right. And if there are any ties between the leaders of these militia groups, Proud Boys, Oath Keepers, 3% and other figures like Roger Stone or Michael Flynn or Alex Jones or anybody at the Willard, you know, then you, I think you can start rolling uphill a little bit. That would be the one thing I would think would impact perhaps Jack Smith's work the most is maybe getting some of these oath keepers, leaders and proud boys, or folks who have been charged who haven't gone to trial yet,

now see that the government can win these trials might be having second thoughts about rolling on bigger fish. Totally. There is nothing that motivates co-operators like the increased prospect of getting convicted and sentenced to a lot of time. And so the absolutely those two trials, particularly the Proud Boys trial that's coming up in the second Oathkeeper's trial, those folks are reevaluating the math right now. They're trying to think, okay, maybe is it too late to come in and tell them what I really

know. And in addition to that, you now have convicted some pretty big fish, roads, megs, these other guys in the from the trial this week, who are looking at serious time. I mean, megs, particularly he got convicted of the most charges of any of them. And some of those folks might be like, okay, now it's time to get real. Maybe I could go for a rule 32. If I cooperate with the government after I've been convicted,

I could open myself up to a potential sentencing reduction down the road. So yeah, there's all kinds of opportunity here. All the pieces on the chess board are rethinking their positions right now. Yeah, and I think that Jack Smith is well aware of that. I mean, something else that is within the scope is the same thing that was in the scope

of the Mueller investigation is obstructions into the investigation itself. And I wanted to ask you a little bit about that. I think you might have some familiarity with obstruction of justice as in you became the acting director of the FBI after a very obstructed act on, you know, by, by the former president by firing Jim Comey. So let's talk a little bit about obstruction. And also if that extends in his scope to obstructing another official proceeding, the January 6th committee hearings and investigations, I'm wondering about that myself.

I think it's all on the table, Allison. I think, you know, people tend to reflexively think about obstruction in the context of witness tampering in a trial, right? The mob boss goes on trial and he gets the witness to change his story at the last minute or something like that. That obstruction of justice is much, much broader than that. All you have to have is evidence that somebody obstructed an official proceeding. It could be any proceeding, it could be a grand jury investigation, it could be a special

council investigation, it certainly could be a congressional investigation. So if Jack Smith and his team believe, let's say, for example, there was witness tampering with respect to the committee's work and putting on their public hearings and that sort of thing, that is certainly related to January 6. All that arises out of January 6, though I think it would be well within the scope of his authority in terms of his, you know, investigative authority. Yeah, I agree.

I want to talk next about some of the differences between the Mueller probe and the Jack Smith investigations, because a lot of folks were understandably underwhelmed by the Mueller investigation because we didn't know, as he knew, right off the bat that he wasn't going to indict Donald Trump. So a lot of that feeling, that public feeling had to do with things that were beyond Mueller and his team's control. I mean, you asked Rod Rosenstein to appoint a special counsel under some pretty extraordinary circumstances. I definitely did. I'm having a PTSD moment just thinking back on it now, but

CSD moment just thinking back on it now, but it was abundantly clear to me and my team at that time that we had to get this investigation in the hands of a special counsel, get it out of the FBI generally and out of DOJs, generally put it in a special counsel's hands. So it was a torturous series of meetings with Rosenstein over about a week and a half. I imagine any meeting with Rosenstein is torturous. Oh, you have no idea. Just trying to persuade him, he was really initially dead set against it and slowly kind of persuading him, but also turning up the pressure by opening the case and then informing him that we were going to go forth and brief Congress on the fact that we'd open the case.

And then you really, he had to move at that point, but it was our intention and very clearly communicated to him in those meetings. And also in the documents that we created to to memorialize the opening of the case that we were opening the case for two reasons. It's not one. It was the possibility that there may have been criminal obstruction and that, you know, coming out of the firing of Jim Comey, but also that there was a potential national security threat, if the campaign had colluded with the Russians, which we didn't know, but we had reason to believe that that was possible, that that could present a threat to national security. We now know that Rod Rosenstein in a series of memos to special counsel Mueller really narrowed the scope of that investigation.

Narrowed Mueller's authority as special counsel to really focus very tightly on primarily that the idea of could he be charged with a crime? They didn't really do much with the broader counterintelligence concerns around the Trump connections, potential connections to Russia. Well, the many connections that people within the campaign had to Russians. So, yeah, I think the difference here is we had an acting attorney general, Rod Rosenstein, who worked diligently to limit Mueller's authority, what he could and would do, and also limited him in a particularly opaque way. This was a series of memos that he was giving to Mueller that we never

even found out about until the whole thing was over and those documents were later released to the public. Very different situation here, right? Garland has been very clear. Hey, Jack Smith is coming in. He gets Marlago, he gets one six and everything and that comes from either of those. So he looks, I think, I think Smith has a much stronger hand here. Yeah. And he also doesn't have this sort of damocles hanging over his head, a.k.a. the threat of being fired, which is an obstructive act. But we now know there were many times, especially with the testimony of Don McGahn, that Trump tried seriously to curtail and or fire special counsel and we don't have now we don't have a Rod Rosenstein and we don't have a bill bar here.

That's absolutely right. And and let's be let's be honest to the president's very different now than it was then right Joe Biden is an institutionalist. He has exhibited, I think, a great deal of restraint and acknowledgement of the independence of the Department of Justice. It doesn't appear that since he's been president in two years now, it doesn't appear to have interfered with DOJ in any way. He certainly hasn't tweeted about criminal cases. He certainly hasn't attacked federal judges on Twitter. And all, and you know, he hasn't like said that subjects of criminal cases should like shut up and not talk to the government, discouraging people from like doing the right thing and providing information. So yeah, we have a very different present. And I couldn't imagine Biden threatening to, you know, try to take some action or pressure someone

to fire Jack Smith. The other thing I think is important for our folks to understand is like the legal kind of framework around the special counsel, it's not a law, it's simply a DOJ policy, but it is codified at, I'll give you the site for those nerds out there, 28 CFR 600.7. And it's very clear that a special counsel can only be fired by the attorney general, not the president, not Congress, but the attorney general, and he can only be fired for really pretty serious stuff, misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause. So essentially for Garland to step in and fire the guy he appointed, he would have to very publicly, and at least to the hill, make a case for Jack Smith having, you know, done something really wrong or, you know, showed some other good cause that

he couldn't continue his job. And that's obviously, you know, not something that anybody imagines will happen at this point. Yeah. And something else that's different is, you know, I think Muller from the jump knew that he was not going to indict Donald Trump because of an office illegal council memo prohibiting him from inditing a sitting president. We don't have that problem anymore. In fact, the only office illegal councilmembers that have been raised recently with regard to the one six investigation or when Meadows, I think, was trying to cite some sort of total blanket immunity

based on off-solute council memos. And DOJ, in a filing said, that's not the case, we can indict you if we want to. And so DOJ, there are no restrictions here for who can be indicted. That's right, no restrictions. And, you know, logistically, I mean, one of our biggest challenges

when Mueller got designated was we had to basically build a mini U.S. attorney's office for Mueller. We had to grab investigators, which we did from all over the country, from all the different field offices that had been looking at the Russia case. We had to pull secretaries and analysts and, you know,

computer IT people and computers themselves, like build an entirely independent IT system that where they could do their work and hold their records that wouldn't be accessible by DOJ and the FBI. So there was this massive kind of logistical effort in standing up a team. DOJ has been very clear in this case that Jackson Smith is basically coming in to oversee the big team primarily out of the FBI Washington Field Office and the DC US Attorney's Office. He's just coming in and sitting on top of that infrastructure that already exists. He's made it clear with his own statement that he's not going to slow this thing down in any way. So you can be confident that the investigators and the attorneys

who are really the nuts and bolts of this work who've already been doing it for quite some time have that institutional knowledge, they're going to stay in place and keep doing that. That will help him really maintain or accelerate the pace rather than having to take this pause to kind of rebuild the wheel. Yeah, for real. And that kind of myth-busting is one of the things that I'm glad that we're talking about. And I want to dispel some additional myths, but we need to take a quick break. So everybody stick around. We'll be right back. miss but we need to take a quick break so everybody stick around we'll be right back. When till last time you didn't feel enough, if you relate to this question you want to

check out our podcast authentically us. Yes guys our podcast authentically us will talk about, what it means to be authentic and everything that you do in every space that you occupy. Tony and I created this podcast, the creative space to talk about just who we are, our experiences, and just things that we are going through. Yes, so come join us with the journey as we figure out what it means to be authentic together. So Renato, do you still have your own podcast? Yeah, it's complicated. What's so complicated about a podcast? That's the name of the podcast, remember?

Oh! Will you still be exploring topics that help us understand the week's news? You bet, but we'll have a new name because we're gonna be working together to explore complicated issues that are done in the news. Working together?

Yeah, your hosting it with me, remember? Oh, right. Wait, does that mean our podcast is going to have a steam mop segment? Let's not get carried away. But we'll discuss hot new legal topics, so check out our new episode, coming soon to everywhere you get podcasts as well as YouTube. Everybody, welcome back. Before the break, I said I wanted to dispel some myths, and you were, you briefly touched on Andrew, that the investigation has not been delayed or slowed down at all.

And I just want to talk about some of the components that show that, including just today, we saw Pat Sepolone going into the grand jury with Wyndham, who was brought in in January. And we know that all of the subpoenas have stayed in place and the deadlines to turn in documents and testimony have been maintained. And so talk a little bit more about some of the things that have just kept going in, you know, with respect to the fact that Jack Smith, just like you said, comes in and just sits on top now of this infrastructure that already exists. We've got Raskin who came in and Windom who was brought in

and it's seemingly like Mary Dorman, like all of these folks are just now reporting up through the special counsel office, quote unquote, rather than having to build a whole new sort of infrastructure. Yeah, that's so important. And so on a couple different levels, I think first, and I can say this as an attorney, I'm allowed to throw shots at attorneys generally and I will now. No one likes to delay things and ask for more time more than attorneys. Having an attorney meet the first deadline is almost impossible, it never happens.

Here you have a guy who comes in very publicly is now responsible for easily the most controversial investigations in the country. He has some important deadlines, like he's bumping up against them, like days into the new job, right? The appeal before the 11th Circuit is a great example. He could easily have had DOJ ask the court for more time to get up to speed on the issues,

to understand the pleadings better, to get debrief by his team and all that stuff, but he didn't. Not only did he not ask for time, he actually weighed in and oversaw kind of some of the submissions, and I know we're gonna talk about that in a minute. So I think that's a great sign.

Another indicator that things are gonna move quickly is the result in that 11th circuit finding that basically takes all those more log of documents out of the hands of the special master. And now DOJ and those FBI investigators can just charge forward full speed ahead conducting the investigation that they've been wanting to do for the last couple months, but couldn't because they didn't officially have investigative access to those documents. So I think there's all kinds of good signs here that the team and its new leader, Jack Smith, appreciate the fact that clock is ticking over their heads. They don't have a lot of runway to deal with on these cases until

they're going to find themselves right in the middle of a heated election, which makes things infinitely more complicated. So they are, they are charging forward with all due haste. Yeah, although it seems like a lot of Republicans are now taking the off ramp that they should have taken in 2015 from supporting Donald Trump. No doubt. But one other myth I wanted to bust here before we get into another bit of news is that Congress cannot defund the special council. Now, they can do a lot to muck up and gum up the works, the Republican Congress, when

they take over in January. But they cannot defund the special counsel because the special counsel is funded out of a permanent treasury fund. If I remember correctly from the from the Mueller investigation, and I think that you and I discussed that way back in the day because a lot of people had concerns that the that the Mueller would be to fund it. And I just kind of wanted to dispel the myth that they can just marjorie Taylor Kreen can just come in with the Holman rule and and a deep fund Jack Smith without getting the signature of the president and having it pass the Senate or

anything like that. Yeah, that's exactly right. The funding for the special counsel activities is pretty secure. It's pretty outside the reach of politics, which is great. Because of course, you know, we had in another thing that makes the Mueller investigation so strange, we had a special counsel appointed and then basically was opposed or frustrated by the DOJ that appointed them and the president that oversees the DOJ. So they were like kind of fighting for their lives from the very beginning. That's of course not the case here. But so back in the Mueller days, we were worried about DOJ defunding the special counsel activities, but not a concern because those funds are protected and designated for the special council.

Congress can always come back the next year and try to retaliate against DOJ and maybe kind of chop their budget down a little bit because they don't like the things that are happening, the decisions that are being made over there. But I think again, it's important to look at the authorizing policy, which says very clearly that while the AG is the only person who oversees the special counsel, he doesn't do it on a day-to-day basis. He's allowed to ask for explanations of decisions that were made and things like that and kind of get briefed on things every once in a while, but it is not a day to day briefing by briefing level of supervision.

So Jack Smith has got the independence to do what he needs to do. He'll have the money to do it. It's not a ton of money in terms of government work, right? We're talking about a couple million bucks, which is really a drop in a bucket. When I was deputy director in the FBI or our budget was about $9 billion a year. So million here, million there, you can pretty much, you can always find that if you look hard enough. Yeah, very true. All right, thanks for that. And now I want to talk about one of the very first acts that Jack Smith took as special counsel. And I mean, first of all, he was, you know,

we'll talk about him being read in on, you know, the 11th Circuit stuff because he made an appearance there. But on Thanksgiving, Jack Smith wrote a letter to the 11th Circuit in response to a letter that Trump's lawyer, Jim trusty wrote to the 11th Circuit, the day after oral arguments. And during oral arguments in the special master case, the court asked trusty to name a single case where equitable jurisdiction to appoint a special master and Enjoying the government happened like name just give me a single case and Jim trustee couldn't name a case That's never the the preferred response to a judge's question, but you're you're exactly right

so to make up for that For that lack of having a case when he needed it, Jim trustee did write the 11th circuit the next day and told him that he thought of a case. And so he brought up or referred them to the, I'll call it the Rudy case. If you remember, A.G. Rudy Giuliani's office was searched in April of 2018, as law office,

and a special master was appointed by the court to go through all the evidence that was seized as a pursuant to the search warrant and filter out anything that might have been covered by attorney-client privilege. So Jim trustee tried to tell the 11th Circuit that these cases were the same. He tried to tell the 11th Circuit that these cases were the same. I mean, they're so clearly not, but Jack Smith had none of it. And I'm going to quote him here because it's pretty direct. Jack wrote, Plaintiff Asserts that the Rudy Case is an example of a case in which a court has previously asserted equitable jurisdiction to enjoy the government from using seized materials in an investigation

pending review by a special master. That is incorrect. Smack down by Jack right there. As plaintiff recognizes, the court did not enjoy the government, instead the government itself volunteered that approach. Moreover, the records there were seized from an attorney's office. The review was conducted on a rolling basis basis and the case did not involve a separate civil proceeding invoking a district court's anomalous jurisdiction. None of those is true here. Yours truly, special counsel Jack Smith. So pretty, pretty concise, pretty to the point that sorry, Jim,

none of this applies to the current case. Yeah, absolutely. And you know, I remember when you were the first time you were on Muller She wrote, the episode was called Muller Goes to Paper. And we talked about something that you mentioned in your book, The Threat, by the way, excellent book, everyone get it if you haven't already. And that's how extraordinary it was for Muller to write a letter, to go to paper. Were you surprised to see a letter signed by special counsel, yours, truly, Jack Smith, on Thanksgiving, no less, within days of his appointment?

Jack Smith, you know, I, what, okay, I'm going to give you the attorney answer here. Yes, and no. I was surprised that Smith is so engaged and involved on this thing, not only, you know, it first of all, immediately and during the holiday. So I think it was an impressive performance by Smith to really step in and drive the bus on this letter, this response to trustees, pretty silly suggestion. But also not so surprised because this came in the context of like ongoing litigation. And you know, in that context of litigation, it's not uncommon to see the sides really shooting pretty,

pretty pointed darts at each other in their filings and also in letters, which are not quite as formal as official filings. And so lawyers tend to get, you know, they let, they let, they get a little, they let their snarky out a little bit more in the letters than they do like an official brief. So, you know, it doesn't look like this particular litigation is going to continue. So we won't get to see too many more of these fireworks.

But I think Jackson in this show, he's ready to take the gloves off right away. So these things should be fun to read as we go on. Yeah. And I'm glad. And I hope to see more of him than we saw of Mueller. Maybe do some press conferences. I know we can't really talk about much, but I think it would go a long way to show the

country that there is a sense of urgency here. And he has made statements to that effect. And I really appreciate that. And I also have to wonder, do you think this has been planned for a while? I mean, how long is Garland known? He would appoint a special counsel because Jack Smith seems pretty red in and Garland doesn't like surprises. So I can imagine him sitting here a year ago saying Donald's going to run for president

any second. We got to be ready. And, you know, wondering, I guess within policy and with what's ethical, how much Jack Smith knew before he was appointed, that he was going to be appointed and what he needed to be caught up on if he was already caught up on it? Well, I think there's no question. This thing has been deliberated in DOJ for a long time. You're right. They knew it was coming. The likelihood that Trump would run again, you know, that was not hard to figure out.

I also know from having suffered through so many of these, you know, meetings over really controversial issues of first impression. You never decide anything in the first meeting, maybe not even in the first five meetings. DOJ likes to admire a problem for a while before they, before they commit to it. So I'm sure, and Garland is a very careful guy. He is a jurist by heart, not a prosecutor's so much. And so he's going to really kind of look at this thing from every possible angle before

he makes a decision. I'm sure that he did that here. My guess is they probably did decide pretty recently. He's clear he wanted to he wanted to kind of choreograph the announcement of the decision with Trump's announcement of running again. I thought that was a kind of an art full touch by him. He's not a guy that seems to kind of go for that sort of sequencing naturally, but maybe he's there now. Whether or not Smith had any access to materials beforehand, that's a tougher one to answer.

I don't know. My instinct would tell me, no, they probably wouldn't have read him in early. However, I think Jack Smith has been on their radar for a long time. I think he's someone probably at the very earliest discussions about who could maybe be a special council. I would guess that his name was discussed very early on. He is an incredibly capable prosecutor. He's got a sterling reputation with Indio J. He's done all this really cool stuff pursuing big political people overseas in the in the war crimes context. He also is kind of known to be not to have any sort of clear political preference for

one side or the other, which is always helpful. So I think he's probably been in the mix for a long time, but he probably didn't have access to the actual data, the case file until he got binad. Well, speaking of the 11th Circuit and the argument, the Department of Justice was making to shut down the special master reviewing the non-classified documents, the court has issued its ruling and here to discuss as political investigations reporter for Trump and the Department of Justice at the Guardian Hugo Lohl. Welcome, Hugo.

Thanks for having me. Yeah, so just a couple of questions for you. I mean, we sort of saw this coming, first of all, because of the first 11th Circuit appeal for the classified documents, which was based on something called a decision called Chapman out of the 5th Circuit, which is where the 11th Circuit came from. And then also, the writing was pretty clear on the wall after the oral arguments. Can you talk a little bit about what the 11th Circuit found, and particularly as it connects to what is called equitable jurisdiction? Yeah, no, you're absolutely right.

The 11th Circuit seemed incredibly skeptical of Trump's arguments that he should get special treatment because he's a former president during all arguments. And he had the added disadvantage that two of the judges on this panel were also on the previous panel that ruled that canon had abused her discretion and granting a special master in the first place. So I think it came as no surprise to anyone that they decided to vacate the special mass school lane. But I think, you know, this was a real evisceration, real bench slap.

I mean, the, the, the, the, the, the circuit basically looked at each of the tests under Richie, the, the standards that you have to meet, um, to, to get equitable jurisdiction here. Um, and I guess Canon decided that Trump met some of the other tests, but pointedly also agreed that Trump did not meet that first test about whether Trump suffered countless disregards constitutional rights when the FBI searched Mara Lago. And this seemed to be the tipping point. And the 11th Circuit, I think, was pretty clear. And if you don't meet that kind of disregard standard,

the foremost standard, then frankly, you should not be getting any intervention. But then more on a fundamental basis, the 11th Circuit was like, well, you shouldn't have got this special master in the first place because that's just not how this works. There was a search warrant that was roughly executed Justice Department sees these documents. It doesn't matter whether they were personal or privileged documents

They were seized. You're not an attorney and so you really don't have Any any basis here to request a special mastering can then have any basis to grant you one Yeah, and I want to talk a little bit about the personal records designation. But first, I wanted to ask Andrew, and if you could jump in here because of your, you know, investigatory expertise, why is it necessary to have the non-classified documents that were commingled with the classified documents as part of evidence

in a criminal investigation for having the classified documents. Sure. And I think that's, that goes right to kind of what's been everyone's focus on this story has been on the classified documents and the incredibly sensitive nature of the stuff that they seem to have found at Mar-a-Lago. And that's, rightfully so, that's a very concerning national security matters there. But we have to remember that the government is also investigating the mishandling or the taking essentially of, essentially, presidential records writ large. So, almost everything you do as, as President of the United States is considered a presidential record and all that material is the property essentially of all of us, right?

The United States citizens and it's entrusted to the national archives. So even the non classified records that they were able to seize at Mar-a-Lago are directly relevant to whether or not the president, mishandled, presidential records. So in a very general sense, they are basic evidence in that part of the inquiry. Also, the fact that many of these less sensitive, non-classified items were commingled with highly sensitive stuff, shows a number of different things. It shows you what kind of disregard Trump had for the sensitivity of the materials he had. The fact that some of this was just kind of sitting in his desk or on the floor in his closet mixed up with

like gift bag t-shirts and golf hats or, you know, articles from the newspaper. So there's that. But also he had sensitive materials in his desk together, comangled with records that are not sensitive, but can be dated, right? So like newspaper articles and things like that, that shows you that he had an awareness, a recent awareness of the fact that he had the sensitive items in his desk because he's storing them with other things that we know are very current. So if he's got yesterday's

paper on top of a top secret, SCI document in his desk, you can infer, and this is very powerful evidence to a jury, that he was dealing with this stuff recently, the sensitive stuff. It was out of his in of place where he should have seen it. And in a desk drawer that he's been going into recently, we know this by virtue of the article being there. Right. And so Hugo, when we know that by the baits numbers, they found like three letters comingled with some classified documents in the end that dust drawer that were dated post presidency kind of gives

way to that awareness. What did the 11th circuit say about things that are personal effects like that and, and also please, please tell us about the Celine Dion photos? Well, I mean, to kind of just stop by saying so the, the documents in the drawer, we actually are reporting on this back in mid-November because this kind of discovery was mentioned in a filing with the Special Master. So, you know, I think even if the Justice Department didn't want to release details of its investigation, I think for the general public and for kind of reporters like me, this was fantastic, the Special Master because we, you know, we learned a whole bunch of things about how, you know, he had communications from a poll, so, and a communication from a book author, co-mingled with a secret document and a confidential document.

So, this was really, really fascinating. With respect to the personal effects, it was funny because in the oral arguments, this was the time that we learned the oral arguments. This was the kind of the time that we learned that Trump was upset, that his photo of Celine Dion got seized in the August A search. And I thought this was kind of ironic anyway, because like, if it was a photograph taken while, you know, he was president, and let's say taken by a, you know, the White House photographer,

that would be a presidential racket, right? That it's government property, so it's not his to begin with. And if it was his personal one, then, you know, it's even more ironic because Trump wanted Celine Dion to play out his inauguration and she declined. And so declined and sales kind of brought everything for circle, right? Like she didn't want to start the presidency. He didn't get it at the end of the presidency either.

But, you know, it comes back to what we were saying earlier about how the lens circuit was very clear that the documents, the status of the documents doesn't matter. And they actually say in the ruling that all of these arguments are a side show. The fact of a matter is, there was this search warrant, the warrant spelled out what could be taken, what could not be taken. And that included things that were documents or materials that might be adjacent to government records. And if it was adjacent, in this case, it appears to have been, then that's lawfully seized by the Justice Department. And I think the other circuit really

got to the crux of the issue because we've been arguing around this for months and months and months. And the fact of the matter is, at a pre-end timing stage, Trump doesn't really have any recalls to get these documents back, especially if there's no need for that. And this was the other thing identified on the rich. Yeah, you know, I think that's such an important point you go because by, you know, I think

some people may have been put off by this news at, oh, well, the 11th circuit really focused on the jurisdictional question. And maybe that's like a legal technicality that doesn't matter. No, it's like unbelievably important because it goes right to this question of are we going to treat this person different because he was the president? Are we going to carve out a piece of equitable jurisdiction? Simply, you know, because he he was the president. He's more important. Are we going to give him a privilege that every single person who is the subject of a search warrant and that happens? Thousands of times

a day around the country and all kinds of different cases. None of those people get that consideration or that extra kind of bite at the apple. So I think it was an incredibly important. It was important for the department to pursue this appeal for this reason exactly because it goes right to kind of the fair application of the rule of law. Yeah, and that was going to be my question to both of you because that is the core, that's the crux of this decision here. I mean, the 11th Circuit was saying, if we do this, we have to do this for everybody. And also, that would be opening up the door for the courts to interfere in criminal investigations,

which is a separation of powers issue. It's unconstitutional, basically. I mean, Hugo, and then Andrew, you can add on, but I mean, isn't that sort of what the entire thing is getting at? Is it like those core constitutional separation of powers issues? Yeah, I think that's right.

And this came up again at our arguments, federal courts are courts of limited jurisdiction. You know, they can't just come in and join in this case, the government from conducting a criminal investigation. And I think this was kind of the fundamental issue at play here, right? What? And then kind of they then said it was, what does, what is so special in this case that Trump gets the special treatment? And really what it seemed to come down to at the end of the day was canon decided. Because Trump was a former president, she would show him extraordinary deference. And the 11th Circuit basically said, look, we're not creating new case law. There has been no case law in this circumstance where a potential defendant can enjoy the government during an exact branch criminal investigation.

And we're not going to create new case law that says, presence or former presence, can basically undermine an ongoing criminal investigation. Yeah, I think that's exactly right. And from a kind of operational perspective, as speaking from the investigative side, it's absolutely unsustainable. The idea that every or even just some percentage of defense or subjects of investigation who have search warrants executed at their homes or their offices or what have you would then have the opportunity to tie up the government for months and months and months and

possibly start excluding evidence from their case before they're even charged. That is just something that would not be sustainable for the FBI or for any federal investigators. And I think it was a great thing that DOJ stepped in, took some risk on by pursuing this appeal, but did it to kind of preserve the government's ability to continue doing investigations in an efficient way. Yeah. And before we let you go, you go, what are the next steps? Because obviously Donald Trump and his Jim trustee will probably appeal, but remind us what happened the last time Trump went to the Supreme Court with an 11th Circuit appeal, because as we know, Justice Thomas sits atop the 11th Circuit as the Chief Justice of that particular Circuit. So what do you think we can expect from

the Supreme Court and how quickly can we expect it? Well, the last time Trump tried to appeal to the Supreme Court, it did not end well. And I think in this instance, he's probably going to fare even more poorly. Look, the under local rules at the LEMC circuit, Trump can't get an on-bond caring. He has to go to SCOTUS. And given this three-judge panel, included Bill Priya, the appellate chief, Even this three-judge panel included Bill Pryor, the Appellate Chief, I would be hugely surprised. It would just be extraordinary for Justice Thomas to, you know, over time, or kind of reverse part of the 11th Circuit ruling, or even refer it to the four core. I actually think they just weren't grant cert. I mean, it's really open and shut.

And we've already had a taster in a preview of what the Supreme Court and what Justice Thomas thinks about this case in general, because in the earlier appeal, when the Justice Department was trying to regain access to the 103 classified documents and Trump appealed that, the Supreme Court basically said, no dice. And so I think the expectation among everyone, including Trump's own lawyers, by the way, who I spoke to, one of whom I spoke to last night, is that the Supreme Court is probably not going to rule in Trump's

favor. They might try it on because it might buy them extra time if they can get like an injunction or a stay pending appeal, but I don't think anyone realistic he believes the eleventh set gets ruling is going to get changed in any way. Yeah, and I think Andrew, I think that's a common misconception that people have that these cases are different because one had classified documents and one had non-classified documents, but the core of each case was the equitable jurisdiction. And if you don't have it and one, you don't have it in the other. And I don't see the scot as doing anything differently. No, that's, that's absolutely right. And, and look, the, the tenor and the tone of this opinion is total smackdown for judge canon.

And they're essentially saying there is no question here. There is, this is a matter of very clear settled law. And on these facts, the result is clear. And you know, you need to be able to bring more to the table to get the interest of the Supreme Court. Yeah. Agreed. All right. Thank you so much. Political Investigations reporter for Trump in the Department of Justice at the Guardian. Everyone follow Hugo Lowell on social media. And don't go anywhere. We'll be right back with more news after this quick break. Welcome back. We've got some more news in the Special Council investigation. So, A.G. just this morning, Pat Sipelone was seen entering the courthouse in D.C. where the Grand Jury meets. This is his second round of questioning. During the first round,

apparently, he did not answer some of the questions because Trump had asserted executive privilege over those conversations, those communications that he had when he was White House counsel. Well, DOJ went to court to argue that there is no executive privilege here. And one, Chief Judge Barrel Howell, who presides over the grand juries in these cases, ruled that there was no privilege and cleared the way for Pat Zipaloni and Pat Philbin, his deputy, while he was White House counsel, to answer questions. So you'll remember this privilege battle happened previously with top vice president Pence aides, Greg Jacob and Mark Short. Trump lost that one,

and both men had to return to testify fully. Yeah, and correct me if I'm wrong, but Cipollone's testimony can cover both the January 6th investigation, the Penn's Pressure campaign, all of the meetings that Crazy December 18th meeting, and the documents case, because wasn't Cipollone answering some of the NARA documents questions early on? That's absolutely right. Cipolloni was right in the middle of this issue from the beginning, really issuing guidance, not just this is key here, not just to then President Trump, but to the entire White House staff

about how presidential records needed to be handled at the end of the administration. So had that communication simply been between the two of them, you could have a stronger argument that it was covered by executive privilege or attorney-client privilege. But in this case, he's, you know, a Cypillonian issuing legal guidance to the entire White House staff. That stuff is going to be fair game. We also know that Philbin played a pretty prominent role in the White House's first interactions with and responses to the National Archives question.

So the two of them could really have some interesting information for the grand jury about the Marlago case. Yeah, totally. And I wanted to ask you before we get out of here, what your thoughts are on the timeline of this case? Because I know back in the muller days, you guys were investigating like 10 months before Mueller was appointed, and then within five months is when the first indictments came down for Manafort and Rick Gates in that investigation.

What do you see as the timeline here? What restrictions do we have with regard to getting a trial done before a presidential election? Do you think that Trump faces an indictment in either of these cases or both? Sure. Again, going back to that theme of the differences between our current situation and the situation my team and I had leading up to Mueller, a special counsel, we were engaged in a much more kind of typical counterintelligence investigation. I see that because often counterintelligence investigations are very amorphous. You have information that indicates a threat to national security might exist, and then you have to go out there and figure out whether that actually

is the case. It is something happening that we need to be careful about. So there's, they're harder to get started. They typically take a lot longer. That's essentially what we turned over to Mueller. This case is very, very different. You have those two primary investigations, Mar-a-Lago in January 6th. Mar-a-Lago is like a three quarters baked loaf of bread, right? We all know from what's been in the public reporting what kind of evidence they got when

they got it. We now know from all the filings, the court filings and the battle over the special master, all of the interactions between DOJ and the Trump folks leading up to the search warrant. So they have, we know the government already has a lot of really significant evidence. I'm sure they have some work to do, i think that mara lago comes to ahead a decisional point um... pretty quickly and yeah and you and i you know i would have to mention here the eleventh

circuit actually mentioned in their ruling um... overturning the judge canons order for special master that when there was a subpoena trump responded in his team the office of donald john trump responded to the subpoena trump responded in his team the office of donald john trump responded to the subpoena with a double taped red weld envelope indicative of how you would handle classified materials and and so they pointed that out in their decision and I think this is a pretty open and open and shut case as even with obstruction. Yeah, I mean that they have painted themselves into so many corners on this thing. I think we could probably do a whole episode on that. But, you know, and I know from a hard experience,

there are, there's no such thing as a slam dunk, but this thing is pretty much three quarters baked. So I think it's comes to that decision of whether or not Trump and anyone else around him gets indicted strictly over the Marlago issue, I think that's coming up pretty soon. And quite frankly, I can't, it's hard for me to imagine a scenario in which he does not get indicted. Just based on the information that we know, there's probably much more that we don't know that the government also has. And it, it holds echoes of the 11th circuit's decision, right? Are we going to treat this person so much differently than we would any other person, simply because he was president?

I think the answer to that has to be no. And I'll tell you from having investigated, mishandling cases and all kinds of different espionage matters. If you were a former government employee or government officer on these facts, you're getting indicted. I guarantee you. So I kind of expected to go in that direction, who knows anything can happen. January 6 is the longer term target, right? That one's a little further out, much more complicated set of facts, much tougher decisions for the prosecutors to make for Jack Smith to make at the end of the day. You know, I would expect they're going to have to kind of fish or cut bait to some extent before we get too deep

into the election cycle. So I would expect that certainly by the end of 2023, we should know what's happening in that case as well. But you know But my predictions are worth what you paid for them. Now, if we go by Watergate Timeline, which lines up really nicely, by the way, with the Mueller investigation timeline, my prediction has been since the beginning that indictments would start coming for the top of the coup plotters in January 6th, for those in charge who directed the January 6th fraudulent electors scheme and Pence pressure campaign, obstructing an official proceeding and conspiracy to defraud the United States. If we go by those timelines, it's April of next year.

And as we know, the Watergate investigation was much simpler than what we are looking at with the January 6th Fraudian Electro Scheme. Yeah, way. And so April 2023 would be rocket ship lightning fast. I know everyone for the last year and it has been like, why it's taken so long, it's taken so long, it's taken so long. I've said from the beginning, don't expect anything before April 2023. If this cannot go faster than Watergate went.

Yeah, I think that's probably, there's no perfect analogs here, but that's probably about the best one you're gonna get. Yeah, we don't really have a lot of coup-plotting insurrection investigations to compare it to. Thank God. Thank you, God.

All right, well thank you so much. This has been a wonderful first show. I appreciate all of your insight. Thank you for doing this show with me. Thanks to our patrons who will get this show early and add free at the $5 level or higher. Thanks to everybody who's listening. Thanks for subscribing.

I'm really excited to see where the show goes and where the investigations go. With that, you know, hey, I've been AG. And I am Andrew McCabe. So a big thanks to Hugo Lull at the Guardian, we'll be back next Sunday with all things special counsel. Send me to jail! Woof! Hi, I'm Dan Dunn, host of What We're Drinking with Dan Dunn, the most wildly entertaining adult beverage-themed podcast in the history of the medium.

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