Jack - Episode 10 - Moral Turp (feat. Shanlon Wu)

Episode Date: February 5, 2023

Allison and Andy talk about: Eastman’s disbarment complaint; Shanlon Wu joins to talk about Tom Fitton’s appearance at two different grand juries and the case for giving FBI access to Rep. Perry��s phone; plus how to know which sources to trust.Follow our guest:Shanlon Wu, former federal prosecutor https://twitter.com/shanlonwuDo you have questions about the investigation? Click here: https://formfaca.de/sm/PTk_BSogJFollow the Podcast on Apple Podcasts:https://apple.co/3BoVRhNCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AG on Twitter:Dr. Allison Gill https://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on Twitter, but you can buy his book The Threathttps://www.amazon.com/Threat-Protects-America-Terror-Trump-ebook/dp/B07HFMYQPGWe would like to know more about our listeners. Please participate in this brief surveyhttp://survey.podtrac.com/start-survey.aspx?pubid=BffJOlI7qQcF&ver=shortThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeans

Hi, I'm Harry Lickman, host of Talking Feds. Around table, the brings together prominent figures from government law and journalism for a dynamic discussion of the most important topics of the day. Each Monday, I'm joined by a slate of Feds favorites at new voices to break down the headlines and give the insider's view of what's going on in Washington and beyond. Plus, side bars explaining important legal concepts read by your favorite celebrities. Find Talking Feds where ever you get your podcasts. I signed an 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 grew? 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 episode 10 of Jack.

It is Sunday, February 5, 2023. And we have a lot of news this week and a special council investigations into January 6th and the more log out documents case. I'm your host, Andrew McCabe. And hi, Andrew. I'm Allison Gill, your co-host. And today we're going to talk about Tom Fitton, the judicial watch guy who's seen testifying before one of Jack Smith's grand jury's last Thursday. We're also going to cover John Eastman's referral for disbarment in California, along with a secret privilege battle over the contents of representative Scott Perry's phone. We'll be joined later in the show by former federal prosecutor and CNN legal analyst,

Shannon Wu, to discuss these developments. So I'm looking forward to that. Yes, but first, as always, Alison, we want to answer some listener questions. If you have a question for us, you can send it to helloatmullersherote.com. Just put Jack in the subject line. And like last week, I'm hitting on two questions this week simply because the first one I think is real relevant and quick. And then the second one is a little bit more detailed. So the first question comes from Jennifer. And Jennifer's question is,

the latest reporting from the New York Times about bar and Durham was pretty intense. Okay, big agreement with you there already, Jennifer. No problem there. Quick question, how do we know that this is all accurate when the sources are not named? I thought this is a really good question because it hits on a lot of the information that we talk about on the show and things that I'm sure the listeners are reading and kind of focused on

themselves. And that is how do you assess the kind of accuracy and really how much confidence you should put into much of the open source articles that you see. You'll notice a lot of the use a lot of sources that for who you know they don't provide identities or names for those sources. And the reason for that is simply because many people who are in positions to know things will don't want to be named, don't want to be identified because it could have negative career impacts, got to be in trouble, lose their friends, what have you. So reporters frequently rely on unnamed sources.

So from my perspective, when I'm reading an article and it's using a lot of unnamed sources, couple of the things I look to are first and foremost, the reputation of the institution and the reporter. And I don't just mean like those outlets that you like because they talk about the things you like to read or they, you know, their positions are similar to your own. I mean like, you know, legitimate, established long-term media organizations, most of which comply with understood and widely accepted journalistic standards.

And so, you know, I tend not to put a lot of stock into a lot of the things I read on the internet from these fly-by-night websites, and it's obviously partisan websites. But, you know, you can trust that, you know, the Washington Post, Wall Street Journal, New York Times, Forbes, these long-term institutions that have been reporting and breaking news for many years, they all comply to a similar set of journalistic standards. And the same goes for with the reporters. You have to always consider your source. If it's a reporter that's got Pulitzer Prizes to their name and have been doing it for

a long time, their personal reputation is on the line and everything they write and they tend to be very careful about that sort of stuff. The second thing I look at is the number of sources. An article written based on one unnamed source, I don't put a lot of stock in it, but what you're seeing more and more, especially about things written about stories involving Trump or Trump world, you see many huge numbers of unnamed sources. The New York Times article on William Barr and the Durham investigation, the first paragraph or two, and I'm quoting here, says, more than a dozen current and former officials contributed

to the article. So in a situation like that, you're not putting all of your faith and confidence in one source. It's a whole bunch of sources that are all pointing in the same direction, providing similar information. You can have a little bit more confidence in that.

And then finally, placement of sources. If it's sources that are like clearly inside an investigation and providing very detailed reporting on specific conversations and how decisions were made, that is stuff that's less likely to be made up out of whole cloths. It's not saying it's perfect and we're kind of working in generalities here, but the placement of sources is always important to me as a former intelligence professional. That's one of the things that we always looked at.

You know, can these sources do they, could they possibly have this sort of information or are they coming across these people, that sort of thing. So that's kind of what I think about. I don't know how you think about undying sources, Alison. Yeah, I know. You pretty much hit every point that I would hit.

Journalists all the time rely on anonymous sources. We always, we hear it constantly, you know, according to sources familiar with the matter who spoke on the condition of anonymity, you know, to protect information or protect themselves. And, you know, I've come to find that there are some reporters that I put less stock in because they tend to rely on single law enforcement sources rather than sources from the Department of Justice. We also know that a lot of sources come from,

especially in Trump reporting, come from Trump lawyers. Or from, you know, if it's a specialty in Trump reporting, come from Trump lawyers. Or from, you know, if it's a story about Greg Jacob, or if it's a story about Angle or whatever, it'll come from their lawyers who want to put the story out and get ahead of it, like the Weiselberg reporting we got this week. For example, I'm sure I came from Weiselberg's lawyers because there is grand jury secrecy, so people in the grand jury don't talk about it. The courts who are overseeing the grand jury, Chief Justice Hal, she doesn't talk about stuff that goes on in the grand jury.

And we're going to talk later in the show about one of those secret grand jury proceedings that somehow got out to the press and how that might have happened as well. So, you know, there are some reporters I tend to not listen to. There are reporters I definitely put a lot of those stock and belief in. I tend to like the post more than the times because the times has gotten a few things wrong in the past because on thinly sourced information, right? So yeah, you pretty much covered all the bases that I would tend to talk about. Excellent. It is a good thing to think about though is You're reading all the stuff. Always consider your source. Okay. The second question comes from a person who would prefer to be identified as an alarmed citizen. I could really describe a lot of us these days,

but nevertheless, a large citizen writes in the recent arrest of former FBI agent Charles McGonigal, former counterintelligence lead in the New York City office, and dual indictments, and SDNY and DC on federal corruption charges, stemming from influence peddling on behalf of sanctioned Russian oligarch Oleg Derpaska, raises a slew of questions regarding federal involvement in FBI investigations and actions into Russian interference in 2016. All the more murky given recent New York Times revelations regarding bar, strong army, Durham, and his investigation, and also Burman railroading from the SDNY. So alarm citizens' question is, these revelations haven't received media attention in public

alarm that they seem to deserve. Do these revelations shed light or new angles on the Trump investigation. So I picked this question because alarm citizen is really mashing a lot of stuff in here and he thought it was an opportunity to kind of tease some of it out. So the references to the Charles McGonagall cases, the one in DC and SDNY, is a fascinating situation there. It's one that Allison and I talked about on the beans a couple of days ago. But I would caution you not to get that too tied into what we're looking at in this show about the special council investigations into January 6th, and of course the associated

document investigations. There's really not much overlap there. There's been a lot of talk about what sort of role that Charles McGonigal may have had in the initiation of Crossfire Hurricane, which was the investigation into potential Russian meddling in the 2016 election. I feel like a lot of that talk has been overblown. Having been there at ground zero when that case was started and been a part of all those conversations, at headquarters around the major decisions in that case, I can tell you that Charles McGonagall did not play a big role, certainly at headquarters at all in those decisions.

And so I feel like people are kind of grasping straws on that one. As far as the politicization of the institution, specifically DOJ under the Trump administration, that is a theme and a problem and issue that we've all been really concerned about and talking about for a long time. And I think the bar slash Durham investigation is a great example of that. I mean, there you have it, illegitimate investigation. I was opened really to settle political scores for the president. And therefore, I believe, it's my opinion,

a misuse of the Department of Justice and the criminal justice system to pursue what was essentially a political errand. I think that's emblematic of a lot of what happened during the Trump administration under bars, supervision of DOJ and also under his predecessor, Jeff Sessions. And then, of course, you got Trump himself. You see a million examples of that across the scope of his

administration, attacking judges, publicly, attacking people who cooperate with the federal government in investigations, which is really incredible. It all, you know, probably no better example than the infamous Jeff Clark Caper in the efforts to overturn the election and the lead up to January 6th. So there's a lot there that I think you can point to. So I've gained a consistent theme. How strongly do a themes play into the current investigations of Donald Trump? I think that Jeff Clark, January 6, angle, very relevant, and we'll see how Jack Smith handles all that stuff. The document side, maybe not so much. I don't know what are your thoughts, Allison?

Yeah, I know. I agree with you on all of that., I just want to add, I think it's, you know, really important that in just in this past week, we learned that the Senate Intelligence Committee, Dick Durbin, says he wants to investigate what went on with Durham. I would like to see Durham questioned about this. I'd like to see Bar questioned about this in front of that committee. I'd like to see Garland asked a few questions about this in front of that committee. I like to see Garland asked a few questions about this in front of that committee because I still contend that, you know, you can fire a special counsel for cause and ignoring a judge's order twice and going to a grand jury to get information on a private citizen seems like cause. It seems very cosy. Yeah. And I mean, a lot of us are mad that he had, you know, investigated a Trump crime and didn't tell anybody

and clearly declined to prosecute. I don't see any other than just politicization, but I don't see any, that doesn't feel like cause to me, right? Because you are allowed to investigate and decline to prosecute if that's your, if that's your druthers, that you know bar did it with the obstruction that was found in the Mueller investigation. It's, it's awful and politicized, but it's really kind of difficult to overcome those declinations because of the prosecutorial discretion rules. So, but I'd be really interested to know why very least that actual rebuff, that dual rebuff of the chief judge overseeing the grand jury's barrel hell, where she's like, no, you can't

have this, you can't have these. And then he, she said no twice. And then he went and got it anyway through the grand jury. I think that seems like a misconduct. That I believe is a fireable for cause, but it's at least a question that should be asked. Did you know this happened? Why didn't you fire for cause? I think that's fair.

Durban's indications earlier this week, certainly seeing Belinda in that direction of maybe expecting to see hearings once Durham's report is finally tendered. And you also had a letter this week from freshman Congressman Dan Goldman, and also another Congressman whose name escapes me. Two of them sent a letter to Garland this week, essentially demanding that kind of review.

I think the request was that the IG investigate Durham and how he used his authority and those sorts of things. So who knows we might actually see some some inquiry into how Durham has done his job there, but I guess more on that to follow in the future. Yeah. Can we not have Horowitz look into it? Can we just get this? I mean, I mean, I for one was enough of that guy, but you probably would have guessed that.

I'm biased. I'll admit that, but that's that's where I stand on him. Yeah, for sure. For reals. All right, Andy, check out this lead. This is from Politico. The California bar's top disciplinary official is seeking the disbarment of John Eastman, an architect of Donald Trump's bid to subvert the 2020 election for what he describes as

a strategy unsupported by facts or law to overturn the legitimate results of the 2020 presidential election. Now this is the 25 page document, okay? The amount of stuff this guy did wrong is so voluminous that they couldn't even squeeze into like a free page memo, right? It's 25 pages. There's 11 counts. And we don't have to go over all of these, but I'll give you some, like, there's failure to support the constitution and laws of the United States.

Okay, that's the big one. Oh, that's the big first. Oh, that's the big one. 101. This is what you're supposed to do, and you're not doing it. So that's a rough one. Then we have a couple of instances of seeking to mislead the court. First, when he filed onto that lawsuit to Texas versus Pennsylvania, where he said there were several instances of evidence,

of voter fraud in the election, when he knew there was not. And in this document, there is proof that he knew there was not when he made those allegations. Also, Meslead the court, by filing for injunctive relief in Georgia to decertify their election results, again, based on non-factual allegations of fraud. And they have proof that he knew that they were lies, basically. Now, there's also something in here called moral turpitude.

I love that one. And misrepresentation. That might be my favorite moral Turpitude and misrepresentation. It seems like, I don't know, like you lied about something and then also did something horrible at this time. I don't even want to think about. Yeah, because there are just counts of regular moral Turpitude. But then there are some that tack on misrepresentation. Like when he wrote that memo to pencil, Trump falsely saying that seven states had transmitted like legit dual slates of electors when he knew they were not legit. And they have proved that he knew they were not legit.

There was when he said on Bannon's podcast, there was massive evidence of fraud when he knew there wasn't. There was when he sent the six page memo to Trump and Pence that there was evidence of election fraud and dual slates of electors. There was a different, there was a two-page memo and a six-page memo, both lines, both lines. That's a tough one. I mean, that one's back to, I mean, that one's got receipts, right? You got the actual memo. That one, it really sounds like it's got a little bit more heft to it than let's say when he claimed voter fraud in Georgia during his ellipse rally speech that he knew or false, like, you know, it's different.

Oh, well, that it's bad. It's a moral servitude and misrepresentation, apparently to stand to get all fired up at the ellipse rally and start saying crazy stuff, but it just seems an entire degree worse when your misrepresentation is the product of a six-page memo that you researched and wrote and crafted and edited and then delivered to the vice president of the United States. I mean, that is not a trifling matter. Yeah. No, and more misrepresentation and moral tear-per-two when he wrote an article for a publication

called the American Mind, which had lies that he knew were lies about election fraud, and then counts 10 and 11 are just moral turpitude without the misrepresentation. Straight up moral turp. And one of those is when he encouraged Pents to toss out the certified electors, and the other one was when he told the ellipse crowd that he had, that Pence had the authority to throw out certified electors. So 11 counts is a bit. I've seen a few disbarment filings in my time

following these, you know, following the cracket strike course and everything. This is a big one. This is a lot. And I don't, I feel like we're going to see what we saw in the Rudy Giuliani disbarment investigation where they're going to sit down, they're going to crack their books, they're going to start looking at evidence and they're going to immediately say, we have to suspend his license to immediately say, we have to suspend his license before we even complete our investigation. He's so bad. This is so dangerous.

He's, he's, this is so egregious. And that's because that's what happened to Rudy. They sat down to start to look to investigate him. And normally when you investigate somebody for disbarment, you sit down, you go through all the facts, you have a couple of hearings, and then you decide whether they can have their law license still. But in Rudy's case, they were like, you're so bad we have to suspend you while we investigate. I think we might see the same thing here.

And possibly using Rudy Giuliani as an example in the Eastman case. It certainly could happen. I mean, this is a, first of all, it's rare. I'd seems common because as you said, we've been following these in the Rudy case and others. I'd seem common because as you said, we've been following these in the really case and others, but it is actually rare for a state bar association to kind of come after a prominent lawyer. You see it typically in cases where it's a little more obvious. It's like a lawyer steals millions of dollars from the attorney client, trust fund, things

like that where it's pretty cut and dry instances of theft or fraud or something like that. But this is basically going after Eastman for the content of what of his lawyer. It's basically saying you engaged in a pretty elaborate scheme of fraud and misrepresentations and perpetuating false statements to the court and to the public. You really don't see this very often. I think it's good that we're seeing it as commonly as we are in relation to these events because hopefully other lawyers will think about this a little bit

before they get roped into some of these schemes. If they're seriously considering like, hey, I might lose my license over this. That's typically where you see lawyers back off an aggressive tactic. Yeah, agreed. And I think we'll see more disbarment hearings as time goes on. And as Trump goes through a whole slew of lawyers that he tends to, he tends to chew him up and spin him out. And they end up getting the raw end of the deal.

I'm surprised that these lawyers that keep signing on to Trump cases haven't quite learned their lesson. Although Chris Kies came in and said, I want $3 million up front and I'm not going to lie to the court for you. So that's a smart lawyer right there. I think he's probably the only one that kind of gets where this could be headed. But we'll see how it ends up. And we've got, you know, we've got a $1 million sanctions award for his frivolous lawsuit

as you and the rest of the Western world. And we now see a sanctions filing from a Tish James, which I said, hey, you should get ready, get your sanctions motion ready, Tishish because it happened to her too. And he's, they've dropped a couple of lawsuits in the wake of that, which is good because then those lawsuits don't clog up the court and waste people's time and waste tax taxpayer dollars. So these fines and these sanctions work. They do their job to deter these lawyers from filing these marvelous lawsuits. So I'm glad we're seeing it too. All right. Well, hey, we have a surprise for you. We're going to be right back after this break with former federal prosecutor and CNN legal analyst. Our friend, Shan Wu, is going to join us. We're going to talk about a couple of things including Tom Fitton

testimony to the grand jury, Jack Smith's grand jury. And we're going to talk about the secret clendestine hearings about Scott Perry'sis phones which would be very interesting i'm looking forward to getting his insights on these stories will be right back uh... i'm grego liar four years ago i stopped writing novels report on the crimes of donald trump and his associates in twenty eighteen

i wrote a best-selling book about it, Dirty Rubles. In 2019, I launched Proveil, a biweekly column about Trump and Putin, spies and mobsters, and so many traders! Trump may be gone, but the damage he wrought will take years to fully understand. Join me, and a revolving crew of contributors and guests, as we try to make sense of it all. This is Proveil. 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 going to be working together to explore complicated issues that are dominating the news. Working together?

Yeah, you're hosting it with me, remember? Oh, right. Wait, does that mean our podcast is going to have a steam op 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. All right, everybody. Welcome back. So we are going to be joined right now by a friend of mine, Shan Wu. He's a former federal prosecutor served in the Clinton administration as counsel to attorney general Janet Reno. He's now nationally known criminal defense lawyer.

He appears regularly on CNN. He's a legal analyst for CNN, he's been on NPR, podcast, streaming media, he offers analysis on issues including the Trump impeachments, the Mueller probe, and prosecutions of all sorts and politics inside the Department of Justice. Recent notable cases, by the way, include his representation of Rick Gates, co-defendant with Paul Manafort and the Special Miller Council probe, as well as the case of Mimi Groves, a University of Tennessee cheerleader who was victimized by cancel culture. Shan has an MFA in creative writing

from Sarah Lawrence and an English literature degree from Vassar, graduated from Georgetown University Law School. So very, very background for our friend, Shan, welcome. Welcome. Thank you. So I wanted to open up our conversation by talking about Tom Fitton. We all kind of know, I think listeners of this program are familiar with who Tom Fitton is.

And NBC reported, he's the Judicial Watch guy. He's been around for several decades. He's not a lawyer. But he's been advising Trump on a few things. And NBC reports he was seen with at least one prosecutor from Jack Smith's team entering the courthouse where the grand jury meets. And you know, this could be either about the January 6th probe

because the committee says he played a role in January 6th by telling Trump to declare victory before all the votes were counted or it could be about the documents case. Now we know both grand juries for those investigations are meeting at that, at that courthouse. So we aren't sure. A lot of this would be speculation, but, uh, Shan talk a little bit about, uh, Tom Fitton and, and how his testimony could be important to Jack Smith.

Well, Fitton is sort of a two for, for the special counsel, uh, since he's been given this mandate of looking at both the January 6th plus the moral law request by documents. I think what it says is up until now my guess is that a lot of what they've been doing are kind of simply continuing the momentum. Jack Smith had said he didn't expect there to be any delays and that's proper. The only delay that would have arisen was if he was kind of doing a grandstanding act. Like, okay, I need to review everything that's happened up until this point to direct it. But to me, reading between the lines, he clearly allowed the momentum and the diligent work that had already been done to go forward.

So in that sense, with him coming on board, whether you had to come back into the country, that really didn't cause any delays. But right about now, I would say you're starting to probably see a little bit more of his and or his deputies' influences now in kind of expanding the witnesses at this point. And I think with someone like Fitton, you really get to from a prosecutor's point of view, you really get to exploit some of the weaknesses

in a way that Trump took advice for lack of a better word by having all these folks who are not lawyers, giving him advice sometimes in writing, it really opens up the field for people to ask them questions because they don't really have any privilege issues. There's no way to protect whatever advice he had gotten. So folks like Fitton can be very valuable

because there's not much they can really do to shield their information unless they just want to, you know, fall in the sword and refuse to cooperate and take a contempt violation. So I think people like this are particularly valuable and, you know, he's, you know, like I said, he's a true for you. You got them there. You can put them in both grand juries the same day. Yeah, I think that's absolutely right. And Fidden is also a guy who clearly, you know, he's got a direct mind into Trump.

The fact that he appears on, as you say, the two free appears on both sides of this investigation. I think proves that. He's relevant. If he's relevant to both parts of this investigation, it's because he was in frequent contact with Trump, which opens up a whole other area of like, what else does this guy know?

What other conversations has he had with him? What other documents has he exchanged with him? I think it's probably possible that fit in my sit in front of the grand jury, depending on what questions he's asked, if he thinks that they could get him in any sort of criminal problems. He could certainly take the fifth,

but he's also seems to be the type of guy that, look, Jack Smith isn't the special counsel for the prosecution of Tom Fitt, and Tom Fitt is very clearly someone who they're likely interested as a witness. And if he goes in and claims, Fifth Amendment privilege, he's very much, he could be looking at the grant of immunity

and then he can't keep his mouth shut. He's got to answer the questions or suffer that contempt problem that you referred to. Yeah, no, that's absolutely right. And I think, we've been hearing so much for years now about the question of proving Trump's state of mind, i.e. his intent. And I think folks like this, when they give testimony, we'll go a long way towards establishing that. Now, of course, you know, Trump like

anybody else is free to, you know, just claim to his lawyers or himself where he'd actually Trump like anybody else is free to, you know, just claim to his lawyers or himself where he'd actually testify that, you know, I disagree with that, you know, they didn't say that, I don't remember that, et cetera, et cetera. But I think when you're looking at intent, you know, as we all know, it's circumstantial evidence to prove it, there is a certain point in kind of the spectrum of things where there is so much circumstantial evidence of people saying, I talked to Trump about this, you know, Trump said this, he knew this. At a certain point, it reaches a certain critical mass where even though he will of course deny recollection, deny it knowing all of it, that circumstantial evidence will start to reach a critical mass where

it really becomes, I think, much more appealing to the prosecutors to say, yeah, we're pretty comfortable with showing this. Yeah, that is true. And you think about it again in terms of, in a context of Tom Fetton, he's also a guy who appears in the media all the time. He's very frequent, guest on Fox. He's on, you know, Bannon's podcast and other places frequently. So you all, you have the added possibility of like contemporaneous statements. So in other

words, if he is saying now that I did talk to Trump, you know, six months ago about the documents, and the prosecution can come up with a tape of him making a similar comment like that, you know, five and a half, six months ago, it really substantiates what he would be saying to the grand jury or to prosecutor. So he might point is he's got, it's possible that there are other statements that he's made that are consistent with whatever he may be telling the grand jury which only bolsters the importance of his content. Yeah, no, absolutely.

That's a demonstration investigative abilities there to kind of line up those public statements that he may have made with what was happening at the time. And obviously it also gives the investigators the questioner is a kind of a treasure chest of things to either refresh his memory with or to question, you know, what his version of it is now. So yeah, that's that's a really rich source in terms of things to press him about. Yeah, and you know, I mean, well done by the Jack Smith team because Fitton is a guy with a big profile, big platform constantly in the media.

Clearly, they're not afraid of bringing somebody like that into the grand jury, even though they know that as a witness in front of the grand jury, he could turn around, walk out of his several hour session and immediately talk to the media about all the questions he was asked and the sort of things that the government is interested in and that's our stuff. And they don't, apparently did not disweight them

from bringing him in in front of the grand jurors. So I think that's a good sign of their aggressiveness. Yeah, absolutely. Yeah, and it also seems like, you know, Shan, who he reminds me the most of so far that's already testified. And by the way, Andy, that's a really good point because when you start to get to these loudmouth, recalcit, the, you know, angry guys, it seems like you're getting toward the end of an investigation and not beginning because that that's when they, that's when they blab the most. But,

beginning because that's when they that's when they blab the most. But it reminds me of Cosh Patel. This is like feels like a Cosh Patel type of a witness like just like you said, he could go in, he could plead the fifth, he could be given immunity, which is what happened with Cosh Patel. Cosh Patel knows a little bit about what Trump was thinking about declassifying the documents with his mind or whether he knew the

documents were classified or not or what his intent was in taking them in the first place. And I think Tom Fitton also knows a lot about that because he's the guy who advised Donald to ignore the Department of Justice based on an old Clinton case about how Clinton made journal diary tapes with somebody while a friend of his at the White House

that was gonna write a book and judge. I think it was Amy Berman Jackson actually determined that those tapes were not part of the presidential fall under the presidential records act because they were personal because of what not the content of the tapes, what they were going to be used for. And that is sort of how Tom Fitton, who's not a lawyer, is advising Trump. And so I could see it kind of turning out the same way. And I also wouldn't be surprised if Cosh Patel pointed them in the direction of Tom Fitton or had some testimony

after he was given immunity about, you should ask Tom Fitton about that. So I think it's very interesting that we see him going into the grand jury room. And I wouldn't be surprised if we didn't hear that he was granted immunity. Absolutely, absolutely. Yeah, yeah.

It's one touch on the immunity point from home because it's so interesting to me. You know, Andrew, I'm not sure what your experience had been, but it was very rare to grant immunity. And the circumstances were usually much more where the witness, defendant targets lawyers are making a real pitch for it saying, look, we can give you all this

valuable information, but you got to cut my guy immunity, a lot of proffers, prosecutors being very reluctant, the grant, that because they want to be really certain what they're getting, it seems a little bit different in this Trump world era where communities really much more being used aggressively to compel the testimony, as opposed to being a so I got benefit of the bargain to them. And I think they did that with the tell, if they do that with Fitton, I think it speaks well to the sort of solidity of Smith's officers thinking of being able to adjust to these circumstances.

Because it feels different to me. And these are folks who just generally want to stone wall. And to some extent, tall in the sword. And it's very different than when you bring in people and they're like really sweating, they're nervous about, you know, what's the best deal I can cut from myself and using the immunity in this sort of a more aggressive offensive fashion that I think is interesting to watch.

I totally agree with you. And that was my experience as well. Like, immunity was this kind of idea that you really got to in very, very few, very rare cases. And I think that's because in your garden variety, enterprise case, rico case, narcotics, enterprise case, whatever,

I mean, I think prosecutors are reluctant to hand out immunity to someone who very likely the next witness who walks in the door might tell you that that guy you just immunized also committed a homicide that you weren't aware of. And so you process where you keep their options open to really kind of hold anybody's feet to the fire. In this case, what I think it reflects is a very, very clear focus.

They know where they're going here. They know who it is they're going after. And a more offensive stance, right? We saw it with the contempt filing that they attempted to get for Trump, you know, not appointing a record's guy and all that stuff. So they went after contempt. And also, Andrew, we talked about in one of the first two episodes, Lessons Learned From the Moleur Investigation, the special counsel, Jack Smith, has the benefit of a very recent special counsel probe into Donald Trump. And one of the lessons learned might have been like, Hey, you got to go after these guys

with, with immunity because they're going to blow up their own plea agreements and, and, you know, yeah. And, and mess stuff up. We saw it happen quite a bit in the Mueller investigation. And so that could be a valuable lesson learned and maybe why they're taking, why Jack Smith is taking this more aggressive stance that that that Shann's talking about. I totally agree. I think the signs that we keep seeing from Jack Smith is lean forward, aggressive prosecutor

is willing to push the envelope. And he's also agile, right? He's moving, he's adapting to the, to the targets that he's dealing with to the tech tactics that they seem to have used in recent cases. And he's not afraid to reach back into the toolkit and go to something like community or other tactics to drive this thing to a conclusion. Awesome. All right, we have to take a quick break, but we're going to be back with our friend, former federal prosecutor, CNN, legal analyst, Shannon. We're going to be back with our friend former federal prosecutor, CNN legal analyst, Shannon and Wu.

We're going to talk about the secret grand jury battle to get at what the contents of Rep Scott Perry's phone. So stick around. We'll be right back. Everybody, welcome back. We are talking with our friend, Shannon Wu, former federal prosecutor, CNN legal analyst and Shannon, we already know going back to at least May of last year, the Department of Justice has been trying to get at Scott Perry's phone.

We know that the DOJ investigative team had contacted the DOJ filter team and asked them to prioritize emails back and forth to Scott Perry from a tranche of emails they had gotten pursuant to a search warrant from Klukowski, Clark, and Eastman, right? And they did. And then shortly after that, they got a search warrant. Now this was the Inspector General. Inspector General agents got a search warrant to grab an image, Scott Perry's phone, and then later asked for a second search warrant

to access the contents of the phone. And I wanted to ask before we get into these secret grand jury battles and trying to get overcome these privileged issues with a representative of Congress. Shan, could you tell me why it was Inspector General, agents that seized the phone first, and then DOJ kind of took it over from there for the second search warrant?

Has view of her seen anything like that? I was afraid you're gonna ask me that. I want to ask you that. That was a... That was an idea. I mean, I have an idea. Yeah, we know that, you know, the DOJ Inspector General opened an investigation to investigations into the Department of Justice with respect to January 6th.

And so maybe that would came from that. And then, you know, we're gonna, to further buffer us from politicization, we're gonna have the Inspector General do this. And then the DOJ can get a warrant for the rest of the phone. I'm totally guessing, but I've never seen anything like that. I thought it was, I thought it was very weird. But let's talk about the fact. And this is both to you, Andrew and Shan, the group of a panel of Congress members, a bipartisan panel of Congress members voted unanimously to intervene on behalf of representatives, Scott Perry, to stop the DOJ from getting the contents of his phone, I guess, to apparently to protect their own.

This was a bipartisan panel that include Hawkeye and Jeffries and Kevin McCarthy. And I find that odd. I think that's, I mean, I understand you want to protect your stuff because you're a member of Congress, but when you're, when you're crime, I don't know. What do you think? Well, we'll get to the crime in a minute. I actually wasn't surprised to hear

that they had intervened in the case in this way. So basically this argument over accessing the content of the phone is coming down to an argument about the speech and debate clause, which basically it's the magic force field that protects all sorts of the communications, the documents, the kind of interactions of members of Congress from scrutiny

in criminal matters to ensure that investigations don't impinge upon the function of Congress, lawmakers' abilities to discuss business with each other, you know, that sort of thing. It's the best comparison I could draw to this would be the some of the presidential privileges, right? So it's, it's widely considered privilege, the conversations between the White House Council and the president, not because there's an attorney client privilege there, like you would have with your own personal lawyer, because of course, the White House Council is not the personal lawyer of the president, but because we try to protect the president's, have protect the president's ability to seek counsel and advice from his White House counselor or kind of inner sanctum of advisers.

That's the same sort of idea that is behind the speech and debate clause in Congress. So because that clause is kind of right in the center of this argument, it doesn't surprise me that this bipartisan commission of Congress would weigh in with their concerns about protecting that privilege. Yeah, I agree with that. And I think, well, first, let me make the more aggressive point, which is, I think, that the speech and debate clause is used too much as a field. And it's an extremely unusual circumstance historically here, because at least in my lifetime, there's never been a scenario where so many members of Congress should be under scrutiny for their support, whether overt or more subtle

in trying to stop that election process, and at least giving support to Trump's election and your appearance efforts. So the idea that any of those efforts were legitimately within the speech and debate clause just seems nonsensical to me. And so I think it's an unusual historical situation for it to be coming up. I completely agree

with Andrew. I mean, I get why the members of Congress would not be wanting that because they're concerned, we always talk about precedent in sort of an esoteric way, but frankly, they're thinking, well, gee, you know, if a attorney general from the other party gets in the power, then nothing in the like pull all my records constantly. Yeah, that's right. That's exactly what they're worried about. Yeah, it's an interesting issue. I would like to see it slice and dice a bit and it will be through the court system and it might be nice to see the Supreme Court reaffirmed that, but DOJ is gonna be, if they can avoid it, they're gonna be very reluctant to have a bunch of appellate precedent and maybe have to go this rule on it

because that's the last thing that they want. I mean, the appellate nerds are always saying, think three times before you really have anybody make long this in terms of the judges because it goes wrong. You're stuck with it. You're stuck with it for a long time, right? Yeah. It's interesting.

I'd like to see them clear it up, but I almost don't want to. Yeah. Be careful what you wish for any time. You're dancing this close to the edge is something that would likely end up in front of the Supreme Court. I agree with you. I don't think it's an appropriate application of the privilege on these facts.

I'm not surprised the Congress is trying to defend it. They don't want to lose any part of the privilege, but I can almost imagine a kind of, you know, solomonic resolution here. There would, I can imagine, you know, a careful review of the content of the phone and then separating out any conversations that are not with, let's say, other targets of investigation. That's just one way to do it.

You could basically quarantine stuff that you think would probably be pretty clearly in this beach in debate lane. And really only focus on those things that might be part of an ongoing criminal conspiracy which would likely be, you know, that's one of the ways to pierce that privilege. If you can say that it's the infamous kind of crime fraud exception. So I think there's a compromise judgment here that could we could see that take place at some level that might ward off either party's desire to push this thing

through the Supreme Court. Hopefully. Maybe I'm just being an optimist. We saw it play out with the Lindsey Graham case, right? Because he was claiming it was part of my speech or debate legislative job to call up Raffensberger and ask him to throw out a bunch of ballots. And you know, the courts eventually, it went up and they said, you figure it out, it went back down. And they eventually said, all right, look, here's what you can ask about,

here's what you can't ask about. And in the grand jury, and this was in Fulton County, Georgia, and I imagine it could be potentially the same thing here, and we could have it decided by the appellate court. All three judges are conserved at judges on this appellate panel that the hearing's going to be on February 23rd, but they can go on bog. And then maybe the Supreme Court just doesn't hear it. And you know, because they've done that quite a bit in these Trump related cases, they refuse to hear things.

But they might want to listen to this one because it's got a lot to do with separation of powers. But I mean, there's really kind of no way to know where where this is going. And if this is just one test case or if they're looking at other Congress people's phones as well, we just haven't heard. I'm not sure. But, Shan, what do you think are the are the chances that this could get litigated in a more broad decision that could set precedent versus a more narrow decision or have the courts decide, like Andy said, what you figure

out, what you can ask and what you can't ask? Well, if I have hazard of guess, I mean, I think as you're pointing out, the Supreme Court might take a hands-off approach to it. I mean, the two sides are going to argue very differently. I think in defending the congressional side, wanting the broadest protections possible, are really going to argue in a very broad way that this is a separation power issue. You need to speak very solidly and broadly to our protections. Feel Jay, on the other hand, is going to want to argue very narrowly that this is very

fact specific. And honestly, I don't see any reason why this is different than any other pain team situation. Why can't a regular pain team protection handle it this way? I think it's interesting. You brought up Lindsey Graham's situation. I think there's a very good analogy. There are some important distinctions, I think, which make it more worrisome in terms of what will the courts do with it. And the main distinction, I think, is there's a atmospheric difference

to the federal DOJ seeking this from the federal member of Congress feels more like something that's going to think, oh, it's a little bit different than a state situation, grabs a federal person to state situation. Graham's a federal person, a state investigation. Also, in Paris, defense, I mean, that there is something to the fact that there's so much of our lives in digital form

on your phone that you certainly wouldn't want a Grand Card launch. They just take a look through my phone. And so there's that, in that aspect, it's a far potentially overbroad inquiry. But I do think that the smart path for DOJ to argue, which I'm sure they'll continue to argue, is that it's very narrowly focused and traditional protections through a team team can work. And I'm sort of hopeful that that's how the judges will see it ultimately, too.

Yeah, that's my hope. That's our hope as well. Yeah, agree. We are running short on time though. We are. We are. But there's, I mean, there's no way to rush these things through these particular court battles. I know a lot of people are like,

oh, it's taken so long, what's taken so long. These kinds of fights that have been going on for almost a year to get information and get evidence are what can really drag this thing out. That's right. Shan, thank you so much for joining us today. We really appreciate it. Let everybody know where they can find and follow you before we get out of here. Oh, sure.

You can follow me on Twitter at Shanlon. So that'd be great. Easy enough. Thanks so much. And this has been a great episode. We appreciate your time, Andrew. It's been great. And we'll be back. We'll be back next week. I'm sure there's going to be more Jack Smith news between now and then. There always is. We know it's funny, as we always worry, Shan, we're always like, is there going to be enough to report on? And here we are. We're worried, Shan, we're always like, is there gonna be enough to report on? And here we are.

We're pushing another hour. Yeah, first, sure. I'm sure there'll be plenty to talk about next week. Shan, thank you as well for helping us out here. And I will be calling you back in a few weeks when we hear more about these decisions to say, oh, you got it right. All right, I'm Andrew McCabe.

I'm Allison Gell. We'll see you next week on Jack. 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. That's right, the boozy best of the best baby, and we have the cool celebrity promos to prove it. Check this out. Hi I'm Allison Janie and you're here with me on What We're Drinking with Dan Dunn. And that's my sexy voice. Boom. Boom is right Academy Award winner

Allison Janie. As you can see celebrity's just love this show. How cool is that? Hey this is Skydiving and you're listening to the Dan Dunn show and wait, hold on. The name of the show is what? Alright, sure. Scottie Pippin momentarily forgot the show's name, but there's a first time for everything. Hey everyone, this is Scoot McNary. I'm here with Dan Dunn on what are you drinking? What's it called again? Fine, twice. But famous people really do love this show. Hi this is Will Forte and you're for some reason listening to what we're drinking with Dan Dunn. Now what do you mean for some reason Will Forte? What's

going on? Hi this is Kurt Russell. Listen I escaped from New York but I couldn't get the hell out of Dan Dunn's happy hour. Please send help. Send help. Oh, come on, Kurt Russell. Can somebody out there please help me? I'm Deed of Antease and you're listening to what we're drinking with Dan Dunn. Let me try one more time. Come on. Is it right?

It's amazing. It's amazing. Is it right? Ah, that's better. So be like Deed of Antease friends and listen to what we're drinking with Dan Dunn, available wherever you get your podcasts.