Jack - Episode 103 | The Disposition

Episode Date: November 17, 2024

We all have questions about what will happen as Jack Smith winds down the prosecutions of Donald Trump.Would Trump’s DOJ release a report from Smith?Could it  have ever gotten to trial?What happens to future special counsels?We’re going to answer these questions in this episode and the next episodes until it’s fully wrapped up.A Sitting President’s Amenability to Indictment and Criminal Prosecution | United States Department of Justice Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to knowRule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis 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/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

MSW Media I signed an order appointing Jack Smith. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. Wait, what law have I broken? 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 103 of Jack, the podcast about all things special counsel. It's Sunday, November 17th, 2024. I'm Alison Gill. And I'm Andy McCabe. And this is our special questions episode. All right. So more than 250 of you sent in questions this week, and we're going to get to as many of those as we can. But we also have some news to share, including a motion from special counsel to hold the 11th circuit appeal of the documents case in abeyance and some reporting that Jack Smith does intend to resign before he's fired. Right. That's right. But before we get to those stories and to your questions, it's time for another installment of Good Week, Bad Week. What do you got this week, Andy?

Oh man. I mean, bad week for the people of the CIA, worst week for the people of the Department of Defense, and really massively bad week for the people at the Department of Justice, I think. Bad week for justice, I think, all around. Yeah, yeah, I think so. These, you know, this is kind of what we expected that Donald Trump's picks for his second administration would be really exclusively given to loyalists and people who committed to this, who were committed to this

vision of just going in and tearing everything apart. And they are certainly living up to those expectations. I think Matt Gaetz in as possible attorney general is like maybe one of the worst, I can't even think of a worse attorney general nomination in the history of the department. It's just preposterous, but I don't know. What do you think? I agree. Yeah. And I'm glad you added the, for the department in the history of the department, because if Matt Gates for some reason is not confirmed, you know, we got John Thune elected as majority leader, I think, which is a better pick than Rick Scott, at least for us. I mean, still not who I want to be in charge of the

Senate. But, you know, we'll see how these confirmation hearings and confirmations go. If he doesn't get in, I'm sure he'll find someone worse to put there. So yeah, so far in the history of the department, yes. But also, you know, putting Tulsi Gabbard on top of the entire intelligence apparatus. Good point. And now I heard on CNN that the Cosh Patel is being considered to run the FBI. Like just the guy who doesn't believe in medical sciences in charge of health and human services.

It's obviously, and we knew this because we saw it in the first administration. He's not picking people to run these departments. He's picking people to dismantle these departments. Totally. I was just talking about that on CNN hit. He's not looking for public servants. He's looking for Trump's servants. He wants people who will do what he wants, whether it's ethical, lawful, a good idea, bad idea, it doesn't matter. He just wants people who do what he wants. That's the bottom line requirement.

Secondly, we know he wants to just cause chaos, to disrupt these organizations, to throw out the legacy employees, the accumulated expertise that are currently, thankfully, in all these government agencies. He wants that gone. So, these picks are people who have to pledge to that. And I think lastly, he loves what we're doing right now, what you and I are doing, what everybody's doing on cable news is talking about how horrible they are. He wants to enrage and trigger people and get them out there yelling about what goons these folks

are and how bad they'll be at their jobs because that helps him continue to perpetuate his narrative of like, I am here to not to lead the government, but to champion the rebellion against it. Yeah, from within and atop. And so we will keep track of all of that that happens. And then here on this podcast, we're gonna talk in a minute here with this reporting from NBC. We're gonna talk about whether or not

Jack Smith writes a report, whether or not Merrick Garland releases it, what kind of evidence we might see in that. But whatever comes out, let's assume that Jack Smith writes a report and it's released. We will read it here on this podcast for you, much like we did the five parts, five hour series on the 165 page immunity brief. But I'm not sure that there's, I mean, maybe they'll go into more detail, you know, like the Mueller report, for example, 500 pages, a lot of detail.

And there may be an obstruction of justice of volume to this as well that didn't show up in the indictments. There may be cases handed off to other units, which will eventually be, you know, circular filed by the incoming US attorneys at those particular US attorney's offices that they're handed off to. But we may see something like that. And I think we should talk about that because it's kind of where we ended up in our last episode about, because we had all these options laid out

about what Jack Smith could do. And this reporting sort of gets at the heart of that, doesn't it? It does, it does. So let's start with this story from Laura Jarrett and Ryan Reilly at NBC. So they wrote, special counsel Jack Smith and his team plan to resign before president-elect Donald Trump takes office, a source familiar with the matter said.

Smith's office has been evaluating the best path for winding down its work on the two outstanding federal criminal cases against Trump, as the Justice Department's long-standing position is that it cannot charge a sitting president with a crime. The New York Times first reported on Smith's plans to step down. The looming question in the weeks ahead is whether Smith's final report detailing his charging decisions will be made public before Inauguration Day. The Special Counsel's office is required, under Justice Department regulations, to provide a confidential report to Attorney General Merrick Garland, who can choose to make it public.

Before Trump's election last week, Smith and his team had continued moving forward in their election interference case against him. After Trump's victory, however, a federal judge overseeing the case agreed to give the special counsel's office until December 2nd to decide how to proceed. And so this is kind of what we had discussed last week, because in order for us to get a report, you have to end the case. You can't release a report while the case is still ongoing.

We saw this when Trump pressured John Durham to release an interim report before he wrapped up his investigation into the oranges of the Russia investigation. That's origins of the Russia investigation, but Trump famously called it the oranges twice. So now I sort of colloquially refer to it as the Orange's investigation. But you know, I think his number two step down in protest because they were being pressured to release an interim report before the investigation wrapped up. It is against special counsel regulations, so in order for us to get any kind of report, it has to be closed. And somebody brought up something

really interesting. If Jack Smith says, we're going to withdraw our case, move, we motion to withdraw, you know, with prejudice or without prejudice, those two considerations, I think, could make a difference in whether this could be picked up again at a later date. I mean, obviously he'll do everything he can to toss it out, but he can't overrule a judge's decision to dismiss without prejudice, I don't think. No, it'll be really interesting to see if, when, if, and I think he will,

but if and when he goes into court or puts a motion before the court for, to dismiss the case, how he characterized that, right? And just as a reminder, a dismissal without prejudice means you can still bring the case back at a later date. A dismissal with prejudice means it's gone forever. Any sort of charge based on that conduct that's referred to in the charging document can never be brought again. So ultimately it's the judge's decision how to do that.

As we discussed a little bit last week, there's a lot of other factors to consider as to whether or not any prosecutor would consider bringing, kind of reviving these charges after the Trump term is over. That's a very big if. But yeah, I think that's going to be an interesting thing to look for. Like how does Jack Smith, if in fact he goes in and asks for the case to be shut down, what's the language he uses? How does he characterize that? What is he actually asking for? And then which way does the judge go with it?

Yeah. Because I have to imagine they're at least considering how they can preserve this case. You were involved in something similar back during the crossfire hurricane or the Trump Russia investigation because at that time, after Trump had won the election, there were discussions about appointing a special counsel to protect the crossfire hurricane case by having it move under an independent counsel. Back then in those days, you know, that before we knew, you know, Trump would just fire special counsel.

That was the way to preserve that case. And it did continue. And even though he did want to curtail it and end it and fire Mueller, it never actually came to fruition. Mueller was able to generate his report. But that was an act of preservation. And so I am confident that they are at least considering new ways in this new reality where they fire special counsel immediately upon taking office, that they're considering ways to preserve the case, preserve the evidence and things like that. Not that it would ever work, not that it would be brought up again, but I'm sure they're considering it because y'all

considered it back then. Yeah, we did. And that was, you know, that was the whole effort to try to get Rod Rosenstein to appoint a special counsel to take the case, which we started literally the day after Jim Comey was fired. It was a series of meetings. I won't bore you with the details now, but took place over the course of about a week and a half. And we slowly kind of kept increasing the pressure on Rod to force him, well, let's just say to help him see that this was the best path forward for the Department of Justice and the FBI with respect to this investigative matter. And eventually he did and he appointed Mueller, which was a great choice. In addition to that, we knew that the records,

the investigative work of the work product from the investigators and the attorneys on a day-to-day basis was something that we really needed to protect. We also had this crazy wild card hanging over our heads that I was the acting director. We had no idea who was going to come in as the permanent director. And therefore, we were concerned that if there was some sort of radical change in leadership, that the records, the day-to-day records and documents, it's all electronic, obviously, might actually be in jeopardy. So we spent some time coming up with a system that would enable us to preserve that

stuff, even if somebody showed up one day and said, shut it down, it's all finished. Or, let's say, other agents showed up at the offices of the special counsel and said, you're hereby out of business. We're seizing all this material. We wanted to make sure that that material would not disappear in a puff of smoke or in a stroke of the delete key or something on someone's computer. So we had the kind of physical infrastructure set up to protect that from happening because all of that information is the property of the federal government, and it should be maintained. Doesn't mean you'll ever see it or it's ever going to be published in a book or something. There's all kinds of problems with doing that. But

it is nevertheless, that's the work product that these government agents have conducted and you as citizens have all paid for with your tax dollars. So it should be preserved and protected just like all FBI and DOJ investigative work is preserved and protected. But I can't think of a way to preserve and protect all this evidence now in the environment that we're in. I'm sure you can't give us your sources and methods or anything, but like, I mean, you can't take it because then you're taking classified materials. You can't give it, put it in the FBI for safekeeping. Like I don't know how you guys protected it unless it was just because it was under special counsel's guise or special counsel's purview. And that is how it was

protected. But I don't see a way to protect all of that evidence now with this administration. Whatever it was, I can't think of a way to do it. Yeah. Traditionally, I know that's ridiculous to begin any statement with that word because we're so far away from tradition or norms or anything. Traditionally, the heads of those two departments, the Bureau and DOJ, in the form of the Director and the AG, really go out of their way to protect the information of their institution. Like for instance, Congress is constantly asking for information from the FBI and a lot of those requests we push back on because we're only obligated to give them some information. So, we don't want to give them more than what they're entitled to because if you start doing

that, you can never get back to where you started. The funnel only gets bigger as you force more stuff through it. So we were always very protective of the sensitivity of FBI investigative files. So when they would ask for information, we would give it to them in a form that protected those records and the identities of sources and things like that. But if you have a very different non-traditional head of either of those agencies. And if they are aligned not with the agency and its objectives and its strategy and its institutional kind of consistency, but rather aligned only with the political interests of the president, anything's possible. They might decide to publish it all. They might decide to eliminate

it. Oh, they'll cherry pick it and publish pieces of it that make them look good is what's going to happen, which is the Republican way, right? They're going to take all that evidence, black out all the stuff that makes them look bad and release all the stuff that they could use. It could happen. It could happen. And then you've basically turned sensitive investigative files into political tools, like just part of this horrible political environment that we live in.

So yeah, this is one example of one aspect of politicizing these departments in the way that Donald Trump has pledged to the country while he was running for office. This is exactly what he intends to do. So yeah, it's something to keep an eye on. Yeah. There's not, I think, a corner of the government where you could hide anything that he couldn't get to at this point. No, he's the president. Well, he will be once he's inaugurated. Right now, nothing. But

once you're president, all of the government's information, sensitive, nonsensitive, classified, whatever, that is all under the legal authority of the elected president, period. So even like the classification system, that's simply a system that was designed to facilitate and administer access to sensitive information that the president controls, right? President doesn't want to be deciding these things himself every day, who gets this, who gets that. So we have a system that has standards and background checks and all that stuff. But he could decide, and we've heard reporting on this recently, that he doesn't intend to

pursue FBI background checks for people who would have access to classified information in his administration. He can do that if he wants. He absolutely can. And he's proven to us before that he has no respect for the sensitivity of really highly classified stuff, case in point Mar-a-Lago and the boxes in the bathroom. So he absolutely has the constitutional authority to do that, to treat that information that way if he wants. But as with many things with Donald Trump, just because you have the authority to do something doesn't mean that it's a good idea to do it.

No, right. Of course not. Or good for the country. And keep that in the back of your mind as we go through the next few years. Yeah. And speaking of the documents case, Jack Smith filed a motion with the 11th Circuit Court of Appeals. That's where the case sits now because Judge Cannon dismissed it and Jack Smith appealed it to the 11th Circuit. And he writes to the court, as a result of

the election held November 5th, one of the defendants in the case, one of them, Donald J. Trump, is expected to be certified as president-elect on January 6th and inaugurated on January 20th. The government respectfully requests that the court hold this appeal in abeyance and stay the deadline for the government's reply brief, which is currently due November 15th, 2024, until December 2nd, 2024, to afford the government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with the Department of Justice policy. If the court grants the abeyance,

the government will inform the court of the result of its deliberations and, if appropriate, file its reply brief no later than December 2nd, 2024. The government is consulted with counsel for the defendants who do not object to this request. And that's pretty much exactly what he wrote to Judge Chutkin in the January 6th case. And the 11th circuit pretty much immediately granted this unopposed request. So now we wait until December 2nd. So they aren't saying we're dropping the case, just

like they said in the January 6th case, they said, give us till December 2nd this time, which interestingly is before the December 17th electoral vote, when the electors vote and before the January 6th certification. So we'll see what he does. Again, with that reporting from New York Times slash NBC, it seems like he's going to close these cases and resign, but we'll see. We'll know more on December 2nd. So we'll keep you posted. I mean, I know that we're going to hit this one in some of the questions. We got a few questions about whether or not they should allow the appeal to continue forward. I totally understand why people want to see this issue decided. They want to hear what the court has to say about it.

They want to see the ridiculous decision by Eileen Cannon get overturned. And I share all those desires, but under the circumstances, I just don't think he can. He knows that this case is over, just like he knows the case in DC is over. And I don't think you can let the court continue to consider and then rule on an issue that you know is really no longer an issue, right? It's like there's no longer a case or controversy underlying this appeal because the case is going to be dismissed by decision of the Department of Justice in all likelihood. And it's not something to, it's not a thing to continue an appeal on a, based on a case

that doesn't exist anymore. Exactly. Even if the question is important and needs to be decided, because like this could affect Hunter Biden, for example. If Supreme Court makes a rule for the ages and decides that special counsels aren't a thing, then all of his charges go away. But then they have to use their case to go up and get that answer, not through this case. And because it's even in different jurisdiction, what the 11th circuit decides doesn't really matter to what is going on with Hunter Biden. It would only matter, you know, dependent upon what the Supreme Court said. And none of that's going to happen before January 20th. So, and that now that

there's no underlying case, which honestly, the Supreme Court didn't need in the immunity situation, but you know, the 11th circuits operates a little different. We may get a reply brief on the remaining two defendants that could go forward with the remaining two defendants. And we'll talk about this when we hit the question in the next segment or two. And then speaking of questions, we're going to answer yours, but we have to take a quick break. So everyone stick around. We'll be right back. Welcome back. All right, here we go. It's the question episode. You will remember, Allison, last week, we felt like, hey, this is a good time. At least render something, silver lining in the middle of the cloud. This gives us an opportunity without a lot of legal maneuverings to talk about this week.

Let's go through the questions and see if we can address a lot of the stuff that's been on our listeners' minds. Sure enough,, we asked for questions and we got them. Oh boy, did we get them. We got hundreds. It's really a great response. So thank you so much. Yeah. And unlike the Kavanaugh tip line, we're not going to ignore these.

That's right. We'll actually address your questions and not leave hanging out there. Really important questions to this day are still unanswered. All right. So let's dive right in. This first one comes to us from, I'll just say, Stacey. I'm not sure where she is. But Stacey writes in, I'm so glad that you were both staying to help us understand and

make sense of this impending morass. Texas AG Ken Paxson has recently announced that he has sued the Department of Justice to preserve the special counsel's records because, quote, the American people deserve transparency and those responsible for these unlawful witch hunts must not destroy the evidence of their own misdeeds. What are your thoughts on this strategy and what do you think the end result will be? It was kind of fascinating because your question actually takes the opposite logical position from what we were just talking about on the very same issue. Right. What Ken Paxton wants to do.

Right. Like he's presuming that the current administration will destroy all the records because they don't want to be held accountable. We discussed it in the context of the next administration might destroy it because they didn't want evidence of their problems getting aired publicly. Honestly, I don't think that Ken Paxson's lawsuit makes any difference in this issue whatsoever. It's really incumbent upon the Department of Justice to come up with its own policies and procedures for taking care of, maintaining custody of these records. They have all those things in place. There is absolutely no reason whatsoever to believe that Jack Smith or anyone else would violate those rules to destroy evidence of the work that they have done. And if anything,

I think we've learned from this administration that these are people that follow the rules. Like even the Republicans aren't complaining about the election now, right? Because it was a free and fair election. So yeah, I don't think his lawsuit means anything. The question will be what happens to these records when somebody is in charge of the Justice Department and the next administration and if that person has a kind of political reason to want to get rid of that stuff. Yeah, this seems to come at it from like, Ken Paxton seems to be thinking, we want to be in charge. Once we get there January 20th at noon, we want to be in charge of all of this stuff and we want to make sure it's all there when we get there. And it assumes that some for some reason, special counsel, Jack Smith, agents who worked on the case, investigators

who worked on the case would somehow try to destroy the evidence. And that doesn't make any sense to me. It doesn't make any sense to me whatsoever because they're not, as we were talking about in the first segment, Andy, they want to preserve all of this. Exactly. And they're worried, like you said, about what happens to it once it's handed over to this administration. So I'm, I'm with you on this. I don't think this strat, I think what I think his strategy is, is so that he can put a seed out there that somehow Jack Smith and the deep state are destroying evidence so that when they get their hands on all of it and can't find all the exoneration materials, that they can blame the special counsel for having destroyed it. That's what I think this

strategy is. I don't think he intends to win this lawsuit. I just think he intends to send the message or create the idea that somehow the investigators in this case destroyed evidence that would exonerate Donald Trump. That's my thought. I think you're dead on this. Ken Paxson is relevant only because he files these lawsuits that get media attention. That's it. And so this enables him to do that, get some attention and perpetuate this narrative that, oh, they're all a bunch of crooks, a bunch of deep state operatives who are breaking the law. So that none of that is true. And Ken can keep saying that forever and doesn't make it true. So I agree with you. I think this is just hot air. Kind of like, you know, one of the, we talked about in the last segment, one of the

benefits to Donald Trump of appointing these pretty clearly unqualified people is it gets everybody all fired up and, you know, people who don't approve of them start ranting and raving on TV and stuff like that. This is the same kind of thing. They just want, they're just trying to dust up more controversy. Well, this is an MO of the Republican Party for a long time now. Jim Jordan, for example, demanding documents from the Department of Justice that he knows he can't get

so that he can say, what are they hiding? Yeah. I'm thinking of perhaps the Alexander Smirnoff 1023, where he's like, release it now. And FBI is like, we don't release that stuff. And he's like, release it now. But the FBI then called his bluff.

Okay, here it is. Look, here it is for yourself. So this is kind of what they do. They ask for stuff that doesn't exist. Remember Donald Trump in discovery demanding the deleted January 6th files. Yeah. And then they don't exist and then he comes out and says they deleted these files they and they then they said they don't exist and and they're hiding it from us. That's what this is a pretext for and they'll continue to do it. They cannot

exist without an enemy who they claim is doing them dirty. That's why they've attacked the FBI and DOJ for eight years. So anyway, all right, should we go jump to the next one? Yeah. Yeah. We have one from Katherine here. It says, Allison and Andy, thank you for all you've done and will continue to do. You've provided a public service thus far. And while this investigation may be winding down, the overall mission continues. I couldn't have said it better myself, Katherine. Thank you. Please continue to keep up the good fight. If Matt Gaetz does happen to make it as far as the Senate confirmation process, will the standard FBI background check performed on him as a nominee

be a moot point in the end in that Donald Trump may refuse to have this part of the nomination process apply? And I think it might be a good time to sort of explain what the background check process is like. Whenever, like when I got my job at the Department of Veterans Affairs, everyone gets an FBI background check. And in the background check space, the client is the agency asking for the background check. That's right. So the FBI performs the background check and says, here, we recommend this.

Here's the information. We recommend you. It's good to hire them. We recommend it's bad to hire them. Here's our recommendation. Here's the background check. Here it is for you. And then it's out of the FBI's hands.

And the agency can decide themselves whether they want to take the information that the FBI has given them into account or not. This is how, by the way, earlier I mentioned the Kavanaugh tip line, this is how they did that as well. He didn't say, Trump didn't say investigate Kavanaugh. He said, the White House, I, the president, am asking for an expanded background check on Kavanaugh. He said, the White House, I, the president, am asking for an expanded background check on Kavanaugh. And so the FBI set up a tip line, got all the information and gave it to the White House and the White House promptly threw it in the garbage. That's how these

background checks work. We know in his first administration, several people didn't pass their background checks, but he overrode that. He didn't take it into account when he put Jared Kushner as a White House advisor, et cetera. So he absolutely can ignore anything that the FBI tells him. And I think we're actually getting reports that he's not even asking for background checks at this point. Yeah. So it's even a little more ambiguous than that. You're absolutely right. The Bureau does it at the request of an agency. Traditionally, us in that. You're absolutely right. The Bureau does it at the request of an agency. Traditionally, for these level appointees, it's the White House is that agency they ask for the background check. And the Bureau doesn't really give them a recommendation to proceed or pull the

guys record. They just say, here's what we found. Here's what we found. And here's why we think it's relevant. They might say, we found that this person is a habitual legal drug user and we think that that could provide, that might provide opportunity for blackmail. It's all about your worthiness for the position in terms of your ability to hold sensitive information and whether or not you could become a liability for the government. Like if you had massive outstanding debts or something like that, that might come up in a background check. Or you have major business involvement with... With foreign governments, right? Yeah, same thing. Foreign governments that could compromise you. Yeah.

Right. Counterintelligence concerns. So the Bureau looks around, they uncover whatever they uncover, and then they report back. What typically has happened in the past is the White House, the Senate requests from the White House a copy of the background check. And that's how, and it gets shared with the committee, and that's how the candidate in the public confirmation process will get questioned by senators about what's in the background check. Typically, the opposing party goes after them about anything that's negative, and the supporting party

comes in and tries to rehabilitate them. The Kavanaugh thing was weird, because in the Kavanaugh thing, the White House was, it's been reported, White House was very specific about things they didn't want the Bureau to do with these leads that came up derived from the accusation about what Kavanaugh may or may not have done as a young person with respect to women. So, they didn't, you know, typically the Bureau goes out there, they do what they do, they uncover leads that point them in different directions, they follow those leads.

And that didn't happen with Kavanaugh. And I think that raises some really, really significant questions that have never been answered. But let's put that aside for the time being. Yeah, because you're, you know, you make a great point about how, you know, the agency, the White House then gives all of that information to Congress for confirmation hearings. That explains why he's not asking for background checks because then he doesn't have to hand over that information to the Senate.

They just might not ask for them at all. Now then the question becomes like, could the Senate ask the FBI to do it? I mean, I don't know. I don't know the answer to that, but it's possible that they would. They could be considered a client because they are considering the appointment of this person. Yeah. Yeah.

So perhaps they could. You know, I'm not going to prejudge it for all the many lawyers that would be involved in figuring that out. But yeah. Yeah, there might be something that stops them from doing that. It's certainly reasonable when you're considering someone for positions at this level that you would have some investigative agency do like a decent background check. It's certainly reasonable when you're considering someone for positions at this level that you'd have some investigative agency do a decent background check.

So I hope that happens, but we'll have to see. We'll have to keep an eye on that one. Yes, we will. All right. We have more questions to get to, but we're going to take another quick break. So everybody stick around. We'll be right back. Welcome back. All right, let's keep going with our questions. This next one comes to

us from Greg. Greg says, can the Democratic controlled Senate subpoena Jack Smith and hold hearings before their term expires. And if so, how much could Smith reveal of his investigation? Even if we likely know much of the story, it seems like a way to focus the nation on what has transpired. It's a really good question. And not one that I've thought about before, to be perfectly honest. No. And, you know, to answer the subpoena question, no, they would need 60 votes to issue a subpoena. That's why we haven't had any, that's why we've had a democratic hold on the Senate and no real investigations of substances because of the filibuster.

I didn't know that. I thought they could do that in committee, but no, you need 60 votes in the full Senate to issue a subpoena. However, there's nothing stopping the Democrats at the judiciary committee from simply inviting Jack Smith, I think, to come and answer questions in committee. But again, I don't know that Jack Smith would necessarily do that. There's rules in place. You probably know better than me, Andy. I mean, you've appeared before Congress. And so what's kind of the rule there? Do you see that even

happening? You could come and answer questions about his report once it's released like Mueller did. Yeah. Here's, it's a little, it's a little bit of a ball in the air. So typically people who work for the government, with Jack Smith clearly does, don't get subpoenaed. They don't, you don't hold out for a subpoena. If you're a lay witness, like many of the January 6th witnesses, even if you're a cooperative, many of them told the committee, I want you to subpoena me because they want to be able to say they were forced to give testimony. That doesn't happen when you're in the government.

When you're asked, you go. So those invitations, those requests come all the time. Oftentimes, there's a period of bargaining between the agency and the congressional committee as to who's going to go, what they can talk about, defining the scope of the question, stuff like that. Do they have a lawyer? Yeah. Yeah. And they have to agree on a date and yada, yada, yada. And then you pretty much go. Now, traditionally, the department does not go up and discuss ongoing criminal cases with Congress. But here, it's possible if they have the cases,

let's say he gets the cases dismissed on, let's say, December 2 for lack of any other day, then the cases are closed and under normal circumstances, a request to go brief Congress would be met with a compliance. I think it's something that could happen. The question of whether it's politically advantageous or not, that's much more complicated from my perspective and I'm not, you know, an expert on those things. But we'll have to see, you know, and you also got to figure they're dealing with some limited time, right? Because I don't know when they

go on recess, but pretty, at some point in December, they're gone until the new Congress comes back in January. Yeah. Although Jack Smith might show up on December 2nd and say, we're dismissing all the cases. And then December 2nd at noon, bam, here's my 500 page report. I'm available for questioning. And then maybe we get him in, you know, in the second week of January or something like that. It'd be a badass way to go out.

It would. Goodbye. And, you know, for that fact alone, I think it's possible because he's that kind of guy, I think. Yeah. And I mean, we didn't know for those that two week extension, we didn't know he was writing a whole new GD indictment and getting another indict, superseding indictment from a grand jury. And then he just shows up on August 30th and goes, bam, I'm back. Here you go. New indictment. Or week one when he gets the nod and then spends the entire Thanksgiving holiday writing

letters to the court. And they all get filed like that Monday or something. Yeah. So you never know with this guy, he's very focused. And we don't know what he's planning right now. It's what kind of makes this whole thing a little bit excruciating, quite frankly, but whatever. I know. All right, let's see. Let's go to the next question here. This is from Susan P. And Susan asks,

could Biden release the FBI files on Matt Gaetz? Could he release Trump grand jury testimony? I can start with that grand jury part. I think only a court can release grand jury stuff. It has to be up to the court. And that would be up to, in the January 6th case, Judge Chutkin. So there is a non-zero chance she might release some of the grand jury materials, but it's generally you do not. That's correct. You probably have better information

about whether or not the president of the United States, Joe Biden, could release the investigative files on Matt Gaetz. And I'm assuming they're talking about the federal investigation into his criminal sex trafficking that did not result in charges. That's right. Could Biden release those? Well, he certainly could issue an order to the Department of Justice to release them.

Would he? That's a totally different question. We'll get to that in a minute. But he has the authority to tell the Department of Justice to take some sort of action like that. There would still be things standing in the way of those records coming out. Like you said, first and foremost, grand jury material, you'd have to get the court to approve it. I think it's unlikely they would. Secondly, there's this thing called the Privacy Act that prohibits the government from releasing private information about people. So that would be a problem. Thirdly, you got the justice department policy not to discuss a criminal investigation that does not result in a charge. And that's a good policy. It's important.

Right. And that's my thought, right? Is because, and that's based on federal rules or criminal procedure, which are passed by the judicial conference, which was the courts, that we don't tell you all the bad things someone did if we're not bringing charges. It's against the rules. So I mean, Joe Biden could say, hey, DOJ release what you can, but we wouldn't probably get any information on Matt Gaetz because he was not charged. I think DOJ would push back on that. I don't see Biden ever making that sort of request. He is an institutionalist. He would not put the department in that position. I think it would be an unseemly

thing to do. As much as everybody would love to read that file, I think it would be destructive. Well, that and as much as everybody's like, what institutions now? Yeah, but also Gates could turn around and file a lawsuit and request an injunction and stop the whole process and bind it up in litigation. So that would probably be successful. Probably. So I don't see that as high likelihood of probability. Oh, okay. Well, how about the, uh, but I do, I do like the idea, um, of judge Chuck can possibly releasing some of the grand jury information. I don't see it happening because she's also an institutionalist. She follows the

rules. She's very traditional. But it's theatrical, right? But it's cool. We have some drama to it. All right. What do we have next, Andy? All right. Next we have a question from Sarah. Sarah says, thank you all for the knowledge and information you have imparted over the last two years. After listening to you guys, I try to explain to people that the government did indeed try and didn't just fully let Trump get away with things. That said, with the advantage of hindsight, do you think there were steps that could have

been taken to ensure Trump was prosecuted and sentenced before the election on the state or and or federal cases. I have pretty strong opinions about this. Yeah, as do I. I'll keep my comments relevant to the federal cases, but the answer is time. I think that as historians go back and look at this, the glaring error is the mistaken way that they looked at this issue from January 6th, moving forward. On January 7th, they should have started thinking about their investigation of whether or not Donald Trump had committed any acts that could make him criminally responsible for January 6th. Instead, what we got was a series of bland comments

from people in the government and DOJ saying, we're looking at, we're starting with the rioters and working our way up just like any organized crime case. As I have said many times here, that is a fallacy. That is not how organized crime cases or enterprise cases are worked. You always start with the target you are most concerned about, the person or the organization that poses the threat to the community or the nation. In this case, that person was Donald Trump. Yes, sometimes you target lower level people in an effort to kind of generate witnesses and testimony and things like that, but you always have an eye on the target.

I don't think anyone had an eye on Donald Trump and that possibility until way too late. And that's what put us up against the clock. Well, JP Cooney did in January. But he was blocked by Mike Sherwin from giving his ideas on how to shape the investigation when Garland got there in March. And when Garland got there in March, he said, we need to investigate this all the way to the top to Donald Trump. And he even created something called, he dubbed the investigation unit, unquote.

And it only had a handful of people in it because he didn't want any leaks to get out. And he did start with like Bannon and Stone and the oath keepers and how that connected to the White House. And he said, don't be afraid to go all the way up to Donald Trump. So he didn't start with the boots on the ground. He started in the middle with the lieutenants, but as they started looking at that case, well, first of all, they were blocked on all sides by all kinds of people who, Dan Tuono, who didn't want to subpoena the Willard and people who refused to execute search warrants, which is why we got those two, we called it the search warrant two step when we found out that Garland went around the FBI who wasn't really keen

on executing search warrants on members of Congress and Jeffrey Clark and John Eastman. So they went to the post office cops and the inspector general. But yeah, to have started in the middle there and worked your way up and then found that you didn't really have a case or a tie between those two things, I think it would have been more efficient to start with Trump, the fraudulent elector scheme, which is where they eventually ended up. But a couple other things we have to consider. There was a year long battle, we called it the La Ocha Nostra, the eight recalcitrant witnesses who claimed executive privilege and that battle took a year in the courts and there was no way to make that go any faster. And you had to have those witnesses. You had to have, you know,

in the documents case, Corcoran's notes, for example, you had to have in January 6th, Mike Pence's testimony. You couldn't have made that year go faster. It just started at the end of 2021 instead of the middle of 2021. And that's because at the end of 2021 is when he brought Windermen. But I will die on this Hill, Andy, that if he was arrested in 2022, instead of 2023, the Supreme Court would have still granted him immunity, delayed the case for eight months. We would have had to have hashed out immunity at the lower court level, have another interlocutory appeal, go all the way back up to the Supreme Court, and there still would not have been a trial before the election. I mean, I think that's possible. And you've, you've made a number of great points there.

And I'm not saying like this timing issue, I can't sit here and tell you it should be laid at the feet of Merrick Garland or Mike Sherwin or Christopher Ray or Steve D'Antuendo or all of them. I don't know. I just think, what is it? November of 2022, before you finally get a special council in there to really run this thing with the resources it should have had from the beginning. I think there should have been a special council appointed straight away. Straight away. I agree with that.

But I still think there wouldn't have been a trial before the election. That's possible. I can't sit here and say it would have definitely changed the outcome, but there would have been no... We wouldn't be having this conversation because the issue wouldn't exist. Mueller got on board, what, two weeks after Comey was fired. Three weeks, maybe I got my days wrong, but immediately, within a week and a half, Rosenstein and I are sitting in front of the Gang of Eight briefing Congress on the fact that he's identified and now is appointing

a special counsel. Had they done that in the days and weeks after January 6th, this thing would have been down the road in terms of its addressing Donald Trump's culpability much earlier on. Would the Supreme Court still have come in and saved his bacon? Probably. But if you want to, in the hot wash, which they should be doing at DOJ or the FBI, this is an issue that they should be focused on. Not that I'm confident that they're doing any sort of that review, but nevertheless. No. But I do agree that they should have appointed a special. It wouldn't have been Jack Smith,

though. He was still working on his case over at the Hague and was not yet available. But I do think they should have appointed a special counsel in 2021. You know, like when he brought in Wyndham, for example, like why not just make him special counsel? I don't know. Yeah. Why have the guy working out of DC, why have him like scrabbling around with IG agents? And I mean, he should have had a massive investigative team given to him as we did with Mueller and a team that was basically what we call chopped to him. Like no reporting back to your field offices, no reporting back to headquarters.

You take all direction from the special counsel. Then there's no problems with Steve Dantuono saying, I won't send my agents to execute a search warrant in Miami. But they didn't go that way. Nicole Forrest No, they sure didn't. And whether we're here because of that or because of the Supreme Court, here we are. Yeah, yeah, for sure. I put my blame goes to the Supreme Court on this personally because this was indicted with plenty of time. The trial was set to go for March, last March, you know, and until the Supreme Court screwed it up.

But a lot of people say, well, he should have seen that coming. He should have seen an immunity thing coming and had worked faster at the beginning. So thank you for that question. Should we take one more quick break and answer a couple more? Yeah, for sure. All right, everybody, we'll be right back.

Da da da da da da da da da da da. Da da da da da da da da da. Ah. Welcome back. Okay, we continue with the parade of questions here this week. All right, this one does not have a name on it, but I'm going to read it anyway. Faneu Lanou says, it seems to me that Jack Smith and Merrick Garland would want resolution to the appeal to the 11th Circuit regarding Cannon's dismissal of the documents case. If they quit the case before the 11th Circuit rules on the legitimacy of the special counsel appointment,

does that establish precedent thereby kneecapping all special counsel cases in the future? Great question, I love the way you focused it on kind of a different aspect of this issue. We've talked about it a little bit earlier in the show in terms of whether we think Jack will pull the case before the 11th Circuit decides it. I think that he will. I think that he has to, and we talked about that earlier. But here, the question is, does that leave Eileen

Cannon's decision as precedential and basically making a problem for the appointment of future special councils. My spin on this one, Allison, is no, it does not. It is simply one trial court's decision and I think it will be looked upon as an anomaly and a decision that was wrong on the law when she made it. I don't believe it would even be presidential in Florida in the 11th circuit. It's not an appellate decision. So it doesn't normally trial court decisions don't carry that sort of presidential weight. And in this case it's so clearly rejected by so many legal analysts. It is contradicted as so many other opinions on the same issue. I don't think it has any weight. Does it give some light of hope to future subjects of special counsel investigations to file a similar motion? Absolutely it does. But in reality, they probably file that motion

anyway. So anyway, that's, that's my thoughts. Yeah. And that's what I think too. I think he's going to close this case and he'll have to close it against everybody if he wants to write a report on this case as well. Otherwise, no report. If the case is ongoing, you can't write the report. And he wants to get out of there before January 20th. And I think it'll be up to the next person who files a motion to dismiss based on inappropriate

appointment and funding of special counsel for any court to address what happened in the 11th circuit, because they'll bring it up, whoever it is. We might see a filing from Biden's lawyers saying, hey, Judge Cannon said this, and then it'll go up and then some court in a different jurisdiction, probably eventually the Supreme Court will either leave it alone and don't touch it as an anomaly or actually say, yeah, no, that was wrong or it doesn't apply here or they refuse to hear it. And so it continues to go forward. A lot of times the Supreme Court will allow things to happen without saying anything. And that isn't necessarily an indication whether they don't have to say whether they are not, or not they agree with Judge Cannon. So I agree with you.

Soterios Johnson 19er, Judge of the United States of America Excellent. And the sad reality is there's a lot of trial level decisions out there that happen every year that are just wrong, that are wrong in the facts and the law, and judges make mistakes, and those bad decisions don't change the direction or the course of legal decisions in that district going forward, thankfully. Anyway, all right. Next question. Yeah, that's from Ed, right? And Ed says, is there any way Smith can toll the statute of limitations for four years in both cases? One dismissal is being appealed based on his

policy of prohibiting prosecution of sitting presidents. And I think here that there's no need to toll the statute of limitations because the charges have been filed. Statute of limitations is from when the crime is when you understand or know that the crime has been committed to when you file charges. So, statute of limitations no longer applies in this case. Soterios Johnson I think, yeah, also this gets back to whether it gets dismissed with prejudice or not. That's a bigger factor here as to whether there's anything that lives on or could potentially live on. The other thing is like statues of limitations are statutory by definition.

They are part of the law that's enacted by Congress. So a DOJ policy doesn't really affect the statute of limitations in any way. If DOJ says you can't prosecute somebody because they're a president, and that means that when they're no longer president, the statute would have told, because you hadn't indicted the case or whatever, that's just too bad. That's just the policy. Or you have to litigate that. have a court decide whether or not you could toll a statute of limitations for that. Like the court decided that New York could toll statute of limitations for crimes because

of COVID, which is what allowed the Manhattan DA to bring the charges that resulted in 34 felony counts. So yeah. Yeah. It's not just up to the DOJ, I guess is my point there. So it's, you'd have to kind of, there's a lot of stuff that would come to play there. All right. Next one comes from Christopher.

Christopher says, so I really hope you and Andy can provide an answer either on Jack or wherever. Is the president or unfortunately in this case, soon to be president, able to create new agencies out of whole cloth by fiat? Example, the government efficiency, which is going to be headed by Elon Musk. Wouldn't it require legislative approval since AFAIK, the legislative branch, controls appropriations and all funding for government agencies. Would it require a vote in the House and Senate? Would such a vote be a simple up down or require more than a simple majority?

All right. So there's a lot packed in there. But I had, Chris, I had the same thought when I started hearing about this government efficiency, whatever. So yes, if it's going to be a government agency, there has to be some legislative authorization. Congress, which means somebody's got to write a bill and put it forward, both sides of the Hill have to approve it, and then the president has to sign it as well. And then yes, the government, the Congress would fund

that agency through the normal appropriations process. However, the president does have a lot of leeway with being able to hire people who are essentially part of the White House, right? Part of the executive branch. And he could create an office of efficiency or just hire Elon and Vivek Ramaswamy as advisors on government efficiency and then he can decide to take part of his budget, the White House budget, and give it to them for the purpose of hiring staff and other people and stuff like that. So can they actually have some resources to make some mischief with? Definitely. But technically it wouldn't be like a full blown government agency. Yeah. And that's what he's done here. He's made the Department of Government Efficiency,

which should be called the Department of Government Dismantling. He's decided to make that a consultancy to the Office of Management and Budget. And he can use his White House funds that have been appropriated already on it. So, and in doing so, Elon Musk and Vivek Ramaswamy don't have to give up their private businesses. So- And they never have to be confirmed by the Senate. Nope. Nothing. It's fair game, whatever they want to do. It's fair game, whatever they want to do. Yep. So, yay? No, it's very bad.

One last question here. Actually, it says, sorry, not a question. This is from a Pente. Hector. Thank you, Hector. Sorry, not a question, but thank you for the work you've done over the last couple years. I listened to every episode you put out and waited patiently for the next. Your work mattered.

Thank you. That's so nice. Hector, thank you. Because I have to say, I've been feeling for the last couple, like last week or so, all of the work that we've done on this podcast, all of the work that Jack Smith did, all of the work that the Department of Justice did before that feels like it was for nothing, but it's not because now we have so much more information than most. And it informed us when we exercised our biggest check against executive power, which is our vote. So thank you, Hector, for saying that. And we will continue to cover the Jack Smith cases as long as they're around.

And then afterwards, if there's a report, we will continue to cover those. And then we'll move forward and we'll talk about what's going on with the Department of Justice from here on out. But I appreciate that sentiment. Andy? Yeah, I do as well. I really feel like there's no question. There's a lot of frustration around You know how much we all how much everyone was investing in this idea of accountability

which I think is so important where we live in this democracy under the rule of law and So it's frustrating that we didn't see these things through to conclusion but on the other hand, like the fact that so many of you are out there like Hector, listening to every episode of this podcast, listening to us go through in detail, all these court filings, understanding, having a better understanding about how these things work and why they work one way and don't work another way. And what's the kind of impact, the interaction of the constitution and statutory law and things like that. You are smarter, you're better informed. You will have such a wealth of experience and knowledge that

you can then bring to your understanding and your critical thinking about other cases, other investigations, and there will be plenty as we go through the next four years, eight years, whatever. And so I feel like, I still feel like we have all together, this community done something good here in answering each other's questions and encouraging each other's curiosity and adding to each other's understanding of these issues. So all is not lost. It didn't end the way we maybe anticipated

or would have liked it to have, but we all walk away, I think, richer for the experience that we've created together with this podcast. Yeah, and as evidenced by your amazing, thoughtful questions. Yes. So thank you for submitting them. Please continue to submit your questions.

There will be more episodes. And we will still continue to answer your questions. You can do that by clicking on the link in the show notes to fill out the form to submit a question to Andy and me. But that's our show for this week. And hang in there. We're going to continue to be kind and do the work. And I hope you continue to listen.

So we'll see you next week. I've been Alison Gill. And I'm Andy McCabe.