Jack - Episode 109 | Jack Smith Report Watch

Episode Date: January 5, 2025

Jack Smith has handed off what remains of the Mar-a-Lago case to the US Attorney’s office in the Southern District of Florida; what that means to Trump’s co-conspirators and the eventual report; plus listener questions.Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ 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 109 of Jack the podcast about all things special counsel while we still have it. It's Sunday January 5 2025. Andy. I'm Alison Gill. And I'm Andy McCabe. Get it while you can, folks. We are still here. Today, we have the answer to our questions about what the Department of Justice was going to do with the appeal to the 11th Circuit to overturn Judge Eileen Kennan's decision to dismiss the classified documents case on the grounds that Jack Smith was appointed and funded inappropriately. So we're going to go over that outcome. Yes. And it's something I hadn't considered. So that's interesting. And we'll discuss what

we should expect from the Jack Smith report and whether Merrick Garland will release it. And if he does, how much of it he'll release. Then we'll take some time to answer listener questions. There's a link in the show notes if you want to submit a question to us. But first, we might as well throw in another installment of Good Week, Bad Week. Why not? Why not? Go back to the well because we got a couple of good eligible topics here. I think the first one super super relevant on Friday afternoon, was the speaker elections.

Yep, I was pretty sure it would take multiple ballots. But it only took one ballot. He almost lost on the first vote. But the holdouts, he made some sort of deal with us. Yes, he did. It's a good day for him, I guess. Yeah, it's a good week for him. Yeah, good week for him.

Yeah, good week for Johnson. Bad week for democracy. Good week for the Republicans. Bad week for democracy. Those two seem to go together a lot lately. A pretty cagey maneuver by those holdouts on the initial balloting, right? You had nine, I think?

Six. Six, right. Three voted for someone else, and then six just stood there in the room but didn't say a word, so they get logged as not there, which reduces the overall number, which impacts the number he needs for the majority. But that was-

But then they came back and voted for Johnson, all six of them. Of course, yeah, because you can vote before the gavel goes down. And it was a way of threatening Johnson with a possible Democratic speaker. Because if the vote had gone forward, you're getting close to the point where the Democrats would have had a majority. Yeah.

But see, if I were Johnson, I'd be like, yeah, go ahead. Maycock, Kim, Jeffries, the speaker. See if I care. Like I'd be like, yeah, go ahead, make Hakeem Jeffries the speaker. See if I care. Like, they're really going to do that. Yeah. Charlie Dent was the former congressman on CNN. I was listening to him in the car and he was like, this, you gotta give it to this group of Freedom Caucus people.

They're really good at taking hostages and they're really good at shooting the hostage. So you never really know what's going to happen either way. So bizarre thing to watch, but they eventually got it done more quickly than the last couple of times. So I guess that's good for them. Yeah. I'd like to add very bad week for one Rudy Giuliani. He is, as we record this on the stand testifying in his defense in a contempt hearing and it is not going well. He is being dicey. As it turns out, you know, there are still things he hasn't handed over, a signed Joe DiMaggio jersey, another piece of sports memorabilia that was

put in the turnover order that he seems to be hiding somewhere and is just being like, I don't know where they are. It doesn't even exist. I don't even know what you're talking about. And then there's also discovery going on for a trial for him that starts on January 16th because he is claiming that his Palm Beach condo is his primary residence and under homestead rules in Florida, that means it's not subject to bankruptcy. And so he's trying to hang on to his Florida condo by saying that that's his primary residence. But Ruby Freeman and Shane Moss's lawyer just handed him a piece of paper that shows he recently applied to a credit union and checked

the box that he's a New Hampshire resident. So it's like really going not well for him. And he's being very like, no, I don't have any, I don't have any recollection of that. And they're like, well, why didn't you hand over any emails? Emails are communications. He's like, I don't think they are. Everybody's just kind of like scratching their heads and he's just, you know, being him himself, which judges don't like these days. So the sanctions on the line in this particular hearing, at least for the discovery failure to hand over discovery in the Homestead case for his Florida condo are what we call adverse inferences and preclusions.

Basically Ruby Freeman and Shay Moss are saying during trial, you need to instruct the jury that it's not his primary residence. And that basically loses the whole case for them. So if he does make that, if he does enter that adverse inference and a preclusion from for Rudy is not going to be allowed to argue that it's his main residence and a preclusion that he's not allowed to be sad and weepy about the fact that he's poor. Like it's not going to go well for him. But there's also this turnover stuff. This is the same judge where he's failing to hand over stuff. He turned over his actual Mercedes Benz, but not the title. No title, no keys. Yeah.

Just jerk moves on his part. He's delaying the turnover of the New York apartment, which is the most valuable asset by saying like the paperwork is bound up and he can't get it done because his, I guess his ex-wife owns half of it. Like that can be fixed pretty quickly. And how about his lawyers, the whole legal team that abandoned him about a month ago, citing some sort of bizarre, I don't know if it was a conflict of interest or... Well what happened was his new lawyer Joe Camerata actually argued in a court filing that the reason his previous attorneys left was because the judge is

unfair or you know some act like really wrong thing and also said that the reason that his former attorneys didn't hand over any discovery was not because of Rudy, but because the lawyers hadn't been served. And they have evidence in court today that that is also a lie because the lawyers actually said in their withdrawal notice that Rudy failed to hand over his devices for discovery. So it's, it's just not looking good for Rudy. So that makes me happy. It's a, it's a little bright spot and also bad week for Donald Trump. Judge Sean, judge Juan Marchand just made a determination that the 34 felony counts cannot be vacated, the jury's verdict

will not be vacated, he remains a convicted felon, and he will be sentenced at 930 a.m. on January 10th. Now the judge has said, because of the Constitution and all that, I'm not going to incarcerate you, but your felony convictions still stand, my friend, and you can't vacate them and I'm not throwing them out. And so obviously this will be appealed. But that's not good because it's not going to be overturned before January 10th. We have an incoming president that's going to be sentenced on January 10th.

Another first for Donald Trump. And I don't know, maybe we should like retroactively rename this segment, the bad, bad, very bad weeks of Donald Trump. Because he seems to find his way into our discussion every week, week after week. But yet, he got reelected president and is now facing no federal cases. So yeah, many bad weeks later,

he still manages to keep his head on above water. That's incredible. Yeah, he still manages to fail forward as he has his whole life, right? If you've read any of Mary Trump's books and memoirs about her family and even at a very young age, Donald Trump was a complete and total failure and loser, but still managed to, you know, fail forward. Yeah, yeah. Anyway, I'm really happy about this sentencing thing. I'm really happy about January 10th also, by the way, Rudy Giuliani has a hearing in

front of Judge Barrell Howell for another contempt motion because Rudy continues to defame Ruby Freeman and Shea Moss and his defense against that and we'll talk about all this in detail on clean up on L45 next week but his defense was hilarious he submitted it yester January 2nd and it said of all the hundreds of hours of podcasting I've done only 93 seconds of those of that time was dedicated to defaming three minutes. Ron Johnson was like, I only I was only doing seditious conspiracy for two minutes. Just for a few minutes. It's okay. There's the it's like the five second rule version when it comes to law. It's like if you only did it for 5% of your podcast time, it doesn't really count or less than five

minutes on the Senate floor doesn't count. Right. And so I don't think that's going to go over well, but what other defense does he have? He doesn't really have any defense. And that's why, that's honestly why no lawyers, I think, or he's having a hard time getting new lawyers after his old ones ditched him. He actually told Judge Barrel Howell in a ruling that the reason he needed 30 more days to file the response that he handed in on January 2nd was because he talked to four lawyers and the lawyers wouldn't take his case because Judge Barrel Howell is awful.

It's not because Rudy is awful. He actually- It's not because Rudy is awful, a terrible client, impossible to advise. And also, by the way, has no money. He's got no money, which is something that lawyers have to have. Lawyers like that. They're going to represent you. They like to have money.

Yeah. But he went ahead and instead of just saying that he blamed the judge, said it's all your fault Judge Barrelhow. You're so biased and terrible. They were like, we can't win against that judge because you're a Republican and she hates Republicans. Like it was bizarre, the filings that he's been lodging. I think he was also ordered by the judge in the bankruptcy case that he cannot go to Trump's inauguration. Because there's a hearing on that day as well.

Right. Because the trial starts- Yeah, trial starts January 16th, I think. And he wanted to delay the beginning of the trial so that he could enjoy his right to go to the presidential inauguration. I didn't know that was a right, but that's what he was like. Yeah. It's a little known constitutional right. It comes right after your right to retain Joe DiMaggio's signed jersey. Which amendment is that? It's the, not really an amendment, amendment, but yeah. Amendment 3.3?

Yeah. So it's not very well known, but Rudy being the legal beagle that he is, is on top of these things. Yeah. And Judge Barrel Howell was not having it in her minute orders either. His first time he tried to ask for an extension for time, he failed to sign it and he docketed it incorrectly. And she's like, I can't believe you've been the US attorney. And even she

goes, I think the way she said it was great. She was like, people who haven't been former US attorneys of large USAOs understand how to docket requests and motions. It was a really nice backhanded bench slap. But yeah, he's having a bad week. He'll continue to have bad weeks. Bannon in February is going to start having some bad weeks. He's going to go to trial with Judge Juan Marchand who just denied Trump his request to vacate his 34 felony counts. We laugh because we cry, Andy, but the fact that a president-elect is going to be sentenced 10 days before he's sworn in is something I would never have thought we would see in the history of this country,

especially given like, you know, we've been talking about Jimmy Carter's legacy for so long. He divested a peanut farm, you know? Yeah, I agree with you. It's like tragic on two different levels. Yeah, it's another, it's something that you never thought you'd, it just seemed incomprehensible in this country, that someone with that kind of background, this kind of criminal involvement convictions could succeed really in any political office, much less the presidency. But it's also tragic from the perspective that we have seen, we have swallowed so many pills that we, that we never imagined we would ever have to swallow in the last 10 years.

We've seen so many things that we never thought we would ever see in the course of our lives that this is just another. It's like at some point you start to lose the sensibility for how monumental these things are and how we've changed culturally so dramatically in the last 10 years. Yeah, when I was writing this script today, and we'll get into this later because we're going to talk about that 11th Circuit appeal from Jack Smith that was still and is still active

for Wout Nauta and Carlos de la Vera. And I just, I'm writing the script and I'm typing and I say something about I wonder whether or not, and again we'll talk about this in a minute, whether or not he'll pardon these two guys on day one. And then I had to stop and like reread that sentence and say, I am wondering aloud whether an incoming president is going to pardon his co-conspirators once he takes office. Like just that thought alone and there we have a million of them a day. Yeah, yeah. Eventually they all, the offense, the shock, the awe, it all

starts to just, it doesn't even register for many people because it's, we've normalized it. Yeah, that's just, it's a sad thing to come to grips with. It's like, you know, every once in a while, you step back and look at the big picture and it's just, it's mind blowing. But that's why we're here and, you know, going forward, we're gonna keep an eye on the Department of Justice

and tell you about everything that happens. And we have a lot more to go over in this show as well, but we have to take a quick break. So everybody stick around, we'll be right back. ["The Last Supper"] Welcome back. Okay, in past episodes, we discussed what would happen with the classified documents appeal in the 11th circuit.

Now, as we know, Jack Smith dropped the appeal as to Donald Trump, but he left it in place for Walt Nauta and Carlos de O. Laveras. This week, Jack Smith filed the following on the docket. Pursuant to federal rule of appellate procedure 27 and 11th Circuit rule 27-1, the United States of America moves to withdraw from this case the following attorneys,

Jay Bratt, David Harbaugh, James Pierce, John Pelletieri, and Cecil van de Venner. Those attorneys are associated with the special counsel's office, which initiated the criminal prosecution from which this appeal arose. The special counsel has now referred This case to the US Attorney's Office for the Southern District of Florida, which has separately entered an appearance

All right, so I didn't I honestly didn't see this coming I thought well it makes sense though, right? Because it couldn't stay in the special counsel's office because the special counsel's office is closing up shop. That's right. So I had to go somewhere if it was going to continue to exist. And let's remember this is a very important issue for the Department of Justice. This is beyond whether or not Nauta and Dale Lavera will ever actually be held criminally liable for their participation in a conspiracy to conceal documents and obstruct justice. Put that aside for a minute.

This is whether or not the special counsel process and the appointment and use of special counsels will still be available to the Department of Justice and the federal government because this challenge and the judge's ruling that's currently still valid undermines everything about how we've used that process for decades. Yeah. And Trump isn't going to need a special counsel for anything because he's got a special counsel in Pam Bondi who will probably and likely do his bidding. I initially thought, you'll remember Andy, I was actually surprised when Jack Smith dismissed

the appeal for Donald Trump only, but left it in place for Nada and De Lavera. I thought he was just going to dismiss the whole appeal and kind of leave it hanging out in the wind whether or not Judge Cannon appropriately or inappropriately dismissed this case on the grounds she dismissed it on. Because I was like, well, where is it even going to go? Well, he's decided to put it in the US Attorney's Office for the Southern District, which right now has a Biden appointee sitting there. Right? Right. So I have to ask, given the incoming administration, will this case even survive? I have to think no, but let's talk it out.

Let's talk it out. Yeah. Because like, let's talk about what it means for the case to survive, right? Right, so again, that gets back to this, this kind of underlying issue that the resolution, the overturning of Cannon's opinion is important to DOJ writ large

because they want to reestablish the actual legal standard for being able to use special counsels. Not to help Jack Smith or this prosecution, but to avoid losing essentially the use of this tool, this technique in the decades to come. And for that reason alone, in a sane world, which I know we no longer live in, but let's pretend we do, I think DOJ would continue the appeal even under a new administration because it's still very important to DOJ. Now they could continue the appeal, get a decision from the 11th Circuit. And

if the 11th Circuit ruled with Cannon, then the whole case would go away. If they ruled with DOJ, then essentially the case would be reinstated against Nauta and Dale Lavera. They could then dismiss the case at that point. Right. And likely would because it's hard to hold a case against a couple of co-conspirators without the main guy. Without the main guy. Exactly.

Whether you've got Pam Bondi in there or somebody else. Right. or somebody else. Right, but as long as you have two defendants involved in the case, then the issue is still alive. The appeal can still continue. Right. Yeah. But now here's the other scenario, right? The other scenario is if those two, let's say those two defendants are pardoned on day one,

the whole thing goes away. There is no issue to go to the 11th circuit at that point. And that yeah, and that was my other question, right? Like what happens if they're just pardon on day one? I mean, you know, Trump won the election. Jack Smith dropped his appeal as to Trump. You and I were wondering how it was going to go forward. Yeah. But now, now we know it's handed off.

So I believe that was the last thing he needed, Jack Smith, to officially end his probe. Right? Because as long as he's still with special counsel, his investigation is still ongoing. And you can't write a report when your investigation is still ongoing. So this actually frees him up to submit his confidential report to Merrick Garland. But before we get into that and what we can expect from the report, which way do you think this is going to go? You said you think the DOJ might continue this. I have to imagine, like, first of all,

he's got a Republican Senate, so he's not gonna run into what Joe Biden ran into when Joe Biden was trying to appoint and confirm his US attorneys, right? Right. We remember the DC US attorney didn't get into his job and wasn't sworn in until November of 2021, almost a year. Right. Because like Ted Cruz and Ron Johnson wrote letters to Merrick Garland saying, torn in until November of 2021, almost a year.

Because Ted Cruz and Ron Johnson wrote letters to Merrick Garland saying, we're going to block all of Joe Biden's US attorneys, all of your incoming staff, until you stop messing with the January 6th people and start going after the peaceful George Floyd protesters. That was their big stink. Really, what happened was Ted Cruz and Ron Johnson didn't want a new attorney in DC at the US Attorney's Office to investigate the coup

because they were afraid of him. You never know when that guy starts looking at you. Yeah. And you know, Ron Johnson, I only could for two minutes. Because he was part of that whole handing off. Should we call him two minute Johnson? No, that's probably not a good idea. That's awful. I think that Mike Johnson's app just went off. The one that he shares with his adopted son for that specific comment. But you know, also, so we don't have the Republican blockade to get

the nominees in because we have a Republican majority in the Senate. And I have to think that Donald Trump believes the Southern District of Florida is a very important US Attorney's office for him. Oh, you think? I think it's probably a priority that he gets somebody in there that'll do his bit. Give him a little home field advantage. But like you said, if he just on day one, if he pardons all of it, he doesn't care about whether a special counsel is legal. No, no, he doesn't care.

And even, I mean, even if he decides a year or two from now that he wants one, he'll just do it anyway. So I think what happens is he gets inaugurated. I'm sorry to interrupt, but her dismissal doesn't preclude him from appointing a new special counsel. Not at all. He could appoint one. Of course, whoever gets investigated by that person will immediately file this motion

and cite Judge Eileen Cannon's decision. But nevertheless, let's say he appoints one in DC. Let's say he appoints one in DC to investigate, oh, I don't know, how about a former deputy director of the FBI? Let's just, just for- Do you know anybody? Shits and giggles there. Sorry, My bad. Let's say, you know, if he does that, that special

counsel will, it will be in DC under DC rules, normal rules where the law actually applies and precedent is followed by district court judges. So that won't matter that there's a problematic decision. It won't matter so much that there's a problematic decision for it. But anyway. But you could get it to SCOTUS and if the Supreme Court was like, no, special councils are fine. We would have known that the 11th circuit would have overturned Eileen Cannon. I mean, I'm pretty sure they would have anyway.

And I'm pretty sure the Supreme Court would have upheld that, although it's impossible to predict what they're going to do these days. They like to make rules for the ages that make no sense. Yeah. So I think what happens here is he gets inaugurated and then everybody just holds their water. The current US attorney has to resign. There will be an acting in place until he nominates and gets his new US attorney approved, which could happen, as you said, very quickly. and gets his new US attorney approved, which could happen, as you said, very quickly. And then, and the 11th Circuit, they hold their water too. Because nobody wants to go forward

until they get a signal from the White House as to whether or not that pardon is coming. Because if the pardon is coming, everything they do is just wasted time. Right. Right? Nobody wants to pour time and effort into this thing, realizing that like those two might walk off the indictment and then there's no issue to go forward on appeal. So I think we have to, you know, we could all lay bets down on the likelihood of pardon,

but that's really the deciding factor here. And he has no, I mean, there's actually the time, once again, the timing works perfectly for him because the fact that there are two guys, and I know we're gonna talk about this in the next break, but the fact that there are two guys still under indictment in an active case creates problems for the report and the public release of information around that case.

report and the public release of information around that case. But, you know, so it's good that he's got two people under indictment right now. Well, kind of, because, I mean, there were, I think, 14 cases in Appendix D of the Mueller report that he handed off. Absolutely. And was able to write those up. But because they were ongoing, it was redacted in the Mueller report when it came out because you can't release information about open and ongoing investigations,

at least into those two. So it would make its way into the report, but it would be, whatever went in would probably be heavily redacted so the public doesn't get to see it. But yeah, we'll perseverate over, we'll, we'll, we'll perseverate over that, that conundrum in the next break. But yeah, I think that's tactically how this will end up. I think both the U S attorney's office in Florida and the 11th circuit will kind of pause and

wait to see what happens. Yeah. But I'll tell you, if he doesn't pardon them, like maybe just for the risk of not using a corrupt pardon that could come back to bite him probably never in the ass, but still just to keep his powder dry. Maybe it may be some advice from one of his lawyers would be don't pardon these guys. Just let the 11th Circuit and the Supreme Court decide that special councils are illegal. They're good. They're okay to go. And then you can just drop the case and it'll go away. DOJ could. Yeah. I guess that's another potential here. The new, the incoming US attorney could

just drop the case before the 11th circuit gets a chance. Then there's no pardon and there's no issue. So it doesn't go forward. Yeah. And so the 11th Circuit might wait until his choice for US attorney in the Southern District is in place to see what they're going to do. JONATHAN FRAZIER And they kind of have to, right? Because the acting US attorney will say, well, we'll request an adjournment or a delay. That gives time for the new person to come in. On day one, the new person orders his staff to dismiss the indictment on the grounds that, you know, the central issue

in the case is no longer relevant since the main guy's out, blah, blah, blah. Either way, those guys don't get prosecuted. They're going to get rewarded for their loyalty to him. They stood up for him. And as it stands right now, they aren't currently under indictment because the case has been dismissed. That's right. Yeah. It's going to go, it's not going anywhere, folks, I think is what we're saying. We're just interested in how it goes to nowhere.

Yeah, that's right. You're right about that. I misspoke. They wouldn't have to drop the case because there is no case, but they would have to drop the appeal. Right. So. Yeah. All right. So we have something else that we want to talk about. And we mentioned it briefly a few moments ago, and that's the report. As we know, Jack Smith is required by special counsel regulations to file a report. So we're going to talk about what we can expect, maybe what we shouldn't expect, what's gone on in the past with Merrick

Garland and special counsel reports that can give us some hints about what might happen here. But there are differences between obviously this particular special counsel investigation and others under the Garland DOJ. And we'll talk about all of that after this quick break. Stick around. We'll be right back. All right. Welcome back.

Now that Jack Smith has taken that last step necessary to officially end his investigation by handing off the 11th Circuit Appeal to the U.S. Attorney's Office in the Southern District of Florida, he is now free to submit his report. Special counsel regulations require Jack Smith and all special counsels to submit a confidential report to the attorney general. And it is then the attorney general who decides whether to release it and if he releases it, he or she decides how much of it should be redacted. And then of course, I think maybe agencies get a crack at that too if there's a little

bit of classified in here, they'll probably redact all that. But that could take days. But also maybe they've already know exactly what they're going to do when this lands on the desk so they don't have to deliberate. But let's answer some key questions about the report. And the first big one is, will Garland release the report? Yeah. You know, my instinct is yes, for a variety of reasons. I mean, let's look.

Historically, we know he released the Her report and the Durham report with, as you've said, minimal redactions. And I feel like he's- Yeah, I don't think I saw a single redaction in the Durham report. And the only ones I saw in the Her report were email addresses in photos of emails that were shared embedded in the report. So that personal kind of PPI stuff. And I think he's also made several public statements about generally his understanding, his belief and his intention is that Jack Smith

would submit a report and that he would release it as much as he possibly could. He's a man of his word and he's pretty consistent. So those are all reasons to think that he likely will. Mitigating against that just a little bit is you have a fundamental difference here in that you compare to her in Durham, there was no prosecution suggested by either of those reports. And so it was easier because you didn't have this kind of, we don't talk about an ongoing investigation or a possible prosecution. Are you pretty close to that here because of the math equation we were

just working out in the last break? But I still think he'll do what he can to try to get it in some form released. Yeah, because my concern, and I've written about this and talked a little bit about it, is that Merrick Garth, because he's a president-elect, right, which is different than a private citizen. Yep. I mean, he is a private citizen, but like recently when you know, Jack Smith went to

explain on why he was dropping the case and dismissing the charges was because OLC told him that you can't even hold anything in abeyance on a president elect. That would be considered part of a prosecution. Something else that hasn't been litigated except by Judge Marshawn is that a president like sentencing is part of a prosecution, but we aren't even anywhere close to sentencing on this. But me, you know, wondering if Merrick Garland asks the Office of Legal Counsel, their opinion on whether he can release a report or can he release what's in the report if it's a president-elect? And my concern was the OLC coming back and saying, yeah, that seems like prosecution

to us. And so, even though he's not a sitting president yet, he's the president-elect, so it counts. It would be a brand new opinion. They wouldn't be relying on the old, you know, 73 and 2000 whatever, uh, office of legal counsel memos about not indicting a sitting president because obviously he's a president elect. So it would be a new thing. But that's like where my concern is, is because this is a little bit different. And when I say also the OLC considering what's in the report, um, you remember, I know, you know, I know you and I've talked about this at length, when Mueller released

his report, he failed to accuse Donald Trump of obstructing justice criminally. He did. And he put a very long explanation in his report as to why he didn't do that. And it basically boiled down to the Constitution guarantees someone who is accused of crimes by a prosecutor to face his accuser in a court of law. And Mueller said, since I am unable to indict Donald Trump, he'll never get to face me in a court of law. So if I accuse him of committing crimes, I am violating his constitutional rights. I'm paraphrasing, obviously, he put it in a very much more succinct way, with a little more legalese, but that was his reason for not doing that.

And it's the same reason that they don't release information about people they don't charge. Right. It's a fairness issue. Mm-hmm. So here we have though, Jack Smith's already accused this man of crimes because he indicted him. And so, but now he can't face trial because he's a sitting president. And that's where I'm worried that the OLC might be like, you can't even accuse him of a crime in your report. But he did in his filing to dismiss say, and he was very adamant about it, and I don't think Merrick Garland would have let that be filed if he didn't agree.

But he said, look, the only reason I'm doing this is because I can't go forward with prosecuting a sitting president and he's been elected president. This does not detract from the veracity of the alleged crimes or the veracity of our indictment. Or the strength of the case. Or the strength of the case. So he's already publicly said on the docket, he's committed crimes.

He did it with indictments. So I find it would be very difficult for the Department of Justice, Office Legal Counsel Merrick Garland to decide that he can no longer say that. Yeah. So two things I think are important here. One, Mueller did what Mueller did because he was being Mueller. He wasn't following an OLC rule or anything. He just decided for himself that he thought this was the fair, this is the best way to be fair

to Donald Trump. And of course, many people disagreed with him and still do. And that's a debate that rages on. I think Jack Smith would probably not make that decision the exact same way, partially for the reasons that you've noted that you can't unring the bell. He's already made the accusation in an indictment and a superseding indictment. We've had extensive litigation, appeals, all kinds of things in this case. So to some extent, Trump has already had an opportunity

to deny the charges. They've gone back and forth. So there is that. But also Jack Smith is, I think, a fundamentally different, he has a different view of these things than Mueller does. The other thing is, I'm not so sure that OLC could rule on this issue in any substantive way without being asked to. Jack Smith is not going to ask.

No, but I figured Merrick Garland might ask about releasing it because it's his choice to release it. Yeah, he might. But it puts another impediment in the way. So I don't know. I think it's hard to say. I think you're you are smart to think that there's always a possibility of OLC kind of shoving their nose in this thing and trying to throw a wet blanket over the whole process. That's pretty much what

they do. But I still think there's a better than not chance that absolutely, well, not better than not guaranteed. Jack Smith's going to submit a report. The regulations say you have to, and he follows the regulations. Something is going to Garland. When he gets it, how big it is, what it looks like, who knows. I think Garland is, for reasons I said before, inclined to release it. Now, Jack Smith could take somewhat of a Mueller-esque tact with the report and just say simply,

like, this is what we found. Because remember, the only thing Mueller stopped himself from doing was saying if this, if anyone else had committed the same conduct, they should be indicted for obstruction of justice. So he didn't make that recommendation, but Mueller did detail all the things that Trump did wrong, right?

In great detail, he addressed every single element of each crime and showed the evidence that supported the conclusion that, you know, the evidence was there to support a charge. Jack Smith could do the same thing. This is, in essence, issuing a report that says this is what we found. Yeah. And then if he fails to make a declaration, even though he already did through indictments, a new attorney general under Donald Trump could come in and say the opposite, same, this is what happened with Bill Barr, right? When Mueller failed to declare there was obstruction of justice that left a lane for bill Barr to drive into with a

back truck and say Hey, my OLC says that even if he weren't the sitting president, we wouldn't bring obstruction charges for legal reasons So we declined to prosecute if he were not if he were, you know, a private citizen we would still decline to prosecute because obstruction of justice requires an underlying crime and And we would still decline to prosecute because obstruction of justice requires an underlying crime and Mueller found no underlying conspiracy with Russia and the Trump campaign. So that's why, and you know, we're not going to do any of that. And that is basically what killed Merrick Garland's chance of ever bringing this case again.

Once an attorney general, it doesn't matter if whose attorney general it was or who the attorney general is, once they say they're declining to prosecute on something, you can't revive that case. Immediately Trump will file a motion to dismiss to say, look, they declined to prosecute, can't take a second bite of the apple, double jeopardy, whatever. But interestingly though, like here is so fundamentally different than the Mueller situation. Like we don't need Jack Smith.

The question everyone had for Mueller was, did this guy commit a crime? If it was anyone else, would they be indicted for this conduct? Well, we already know the answer to that here because he wasn't indicted already. So we don't need Jack Smith to say that. So all we're really waiting to hear from Jack Smith is how would you have proved the case? We know he would have brought the case. We know he still believes in the

case. He just said, dismissals are not relevant to the strength of the case. The case is strong and we believe it should go forward, but for the OLC opinion and the DOJ policy. So it doesn't matter. All we're looking to hear from him is what'd you find? And the question is how much of that will he share with us? That's going to be limited by a bunch of different factors. And by the way, once Jack Smith closes this investigation, even if he comes out and says,

yes, he committed all these crimes, we believe he committed these crimes, the new attorney general could still come in and write a declamation to prosecute and screw the whole case up. Not that there's any, you know, modicum of a chance for this case to be reopened in 2029 anyway. The door is technically still open, but Pam Bondi, if she's the new attorney general, can close that door very easily, regardless of what Jack Smith puts in this report. Sure. Yeah. It's not coming back.

Just by simply declaring that she would decline to prosecute this case. Yeah. Yeah. It depends. I mean, yeah, she could do that just because she wanted to be smiled upon favorably by the dear leader. One day she just decided to do it because it would make her look good in his eyes.

You never know, these are politicians at heart. Yeah, very true. Anyway, sorry, I know that's not the best news, but I am, I'm with you, I think there will be a report released based on the fact that Merrick Garland has released all the previous reports from Durham, like you said, her. I think that and he did it unredacted. I think he'll do the same here. Now, the only other question

that's kind of hanging out there is what about the co-conspirators? You and I have long posited that the reason the co-conspirators weren't indicted is because the case was built for speed. And if you added a bunch of co-conspirators to the case, it would end up like the Fonny Willis case, there'd be a million pretrial motions. It would have never had a chance to go before the election. But because it was just Donald Trump and it was those four charges, we were able to get the trial on the calendar in March of 2024. Now, the Supreme Court made sure that didn't happen, but it was a trial

built for speed. And so the rest weren't indicted. And Andy, you've talked about doing mop up cases with like the mafia where you get the big guy first and you go after the littles afterwards. But I guess my question is, he can't indict these co-conspirators. Otherwise his investigation is still ongoing. He won't be able to release a report. If he wants to release a report, he can't indict these guys. And since he hasn't indicted these guys, will he be allowed to say he was gonna, or will he say we declined to prosecute? Yeah, they committed crimes, but we declined to prosecute because, I mean, you have to in your special counsel reports, talk about your prosecutions and your declinations.

That's a requirement too. But if you also can't accuse people of crimes, that you can't indict. Yeah, you didn't indict them. And you can't indict them now. They're certainly not going to be indicted by the incoming administration. So it's a challenging, I think it's a dubious position for him to be in legally and ethically kind of at the same time. You know, it depends on how kind of granular he gets about the evidence that he wants to talk about in the in the report. There's almost it's hard it will be hard to tell that story about trump without. Referring to the people on the other side of the conversation with the people on the other side of the communication of the email or the whatever. So that's gonna be challenging but you know he can he can keep them anonymized with their

current co-conspirator monikers but we'll see through that very quickly. We all know the story pretty well now who was in what meeting and what day these things all happened. So I don't think they're gonna come away unscathed, but I also don't think he'll put any sort of recommendation in there about these people should be, these investigations should go on or these people should be prosecuted, because realistically it's never gonna happen.

So, and it's almost not even important. I think what he'll focus on in the same way he focused on Donald Trump and his solitary indictment and superseder in DC, is he going to talk about why he believes Donald Trump is culpable for what happened on January 6th, criminally culpable. Why? What he did, much of which is not even in dispute, right? We know. He has like very clear records of what he said where he was how we conducted himself things He did and things he didn't do in the lead-up to and on the day of January 6 And I think he's going to try to explain why that behavior

constitutes a crime Yeah, and and he has in pretty good detail In the indictment, but also in more incredible detail in that 165 page immunity brief that we saw. So I don't know that it's going to be any a lot more broad, broader than that. I think it's going to be very, it's going to be similar for us, for all of us in this community that have been following these things closely. It's going to be a lot of what you've heard of.

Yeah, but like, you know, talking about, you know, it's hard to talk, talk about other people involved in the crimes without bringing them up or, you know, talking about, you know, it's hard to talk, talk about other people involved in the crimes without bringing them up, or, you know, Trump's crimes without bringing the other people involved into it. Like, like when Garland released the her report, there was no redactions about Biden's stenographer, for example, and he wasn't charged. But we learned all about that. And there we could see a situation like we did in the Mueller case. And I want to say, I don't have any confirmation on this, but I think that the Mueller investigation was ended preemptively. There seemed to be a lot of lawyers that were surprised by it. That's just a theory based on some court transcripts I read about some attorneys being like, yeah, no, we scheduled a

thing for April 4th because we thought we'd still be here. But, you know, we could see a situation like appendix D in the Mueller report where maybe Jack Smith has 15 redacted handoffs to the DC US Attorney's Office that we will likely never know about. And those could all be the co-conspirators. Could be. it could be. But they weren't indicted. So I don't know. You can hand off the investigation without an indictment, right?

Yeah, well, interestingly though, if that's what happens, and those people, of course, will not be pursued by the incoming DC US Attorney's Office, they will likely find themselves to be the subject of FOIA action. You know, an institute, a group like CREW or any name, any other, I come in and say, we want to know. We want to know. We want all the documents from this redacted reference.

But who's going to answer those FOIA requests? They're not going to be able to not answer them because they'll turn into lawsuits and then they're going to have to come in front of a judge and explain how keeping those records secret falls within one of the exceptions to FOIA. And if they've declined those cases, they can't refuse to turn over the documents on the grounds that it comes from an ongoing investigation because there is no investigation. They'll have to come up with something else. But well, what I think they'll do is they'll keep those investigations open and just sit on them and then use that as a reason to not hand anything over.

Could be. Maybe you get a Reggie Walton who says, no, sir, I'm going to order all this turned over. I don't know. We'll see. I don't think, I think there's going to be plenty of people who are interested in digging to the bottom of whatever's left of this. And they're not going to let them just kind of walk away quietly. Well, here's hoping. I mean, a lot changed on November 5th, not just in these investigations, but nationally. But that's a big thing. We had very robust cases going forward. I personally don't think that the second immunity interlocutory appeal would have survived the Supreme Court. But we had a place to go and now it's going nowhere. And the only thing we've got

left is this report. And we'll bring it to you when it comes out. Like I said, he has done his last thing handing off these cases or this case, particularly the 11th Circuit to the U.S. Attorney's Office in the Southern District of Florida. Maybe he's handing off other cases or ongoing investigations into unindicted co-conspirators to the DC US Attorney's Office. I have to assume he's done or doing that and that we can see the report anytime. Yep. All right. Countdown. We're in it.

We'll let you know. And one last thing. I don't necessarily think we're going to know once Jack Smith is done with the report and it is handed off to Garland, I don't think we're going to know when that happens. I think we're just going to get it from Garland when we get it because one thing this particular DOJ is really good at is not telling us anything. So I don't know if we'll know how long, if Garland takes days or weeks or whatever to release this. Well, it can't be weeks now.

But we won't know how long it took Garland to release the report once it lands on his desk. Yeah. And he may have gotten a draft copy to start that whole like, they review it for like personally identifying information and Privacy Act covered information and potentially classified information or even just other agency information. You got to get a clearance from the other agency. So they may have started that process already. That's just pretty administrative more than kind of a substantively. No substantive

judgments there. It's more like checking the boxes. So who knows? I don't think we'll know. I want I'd like to know that stuff, but it's just not something they generally speak about. No, we wouldn't know. All right. We are going to take some listener questions. Again, there's a link in the show notes. If you want to submit a question to us, please, please do that. Click on the link and let us know if we can answer anything for you.

And it doesn't have to be necessarily restricted to what's going on with Jack Smith, because as you know, this show going forward is going to be a new show focused on what the Department of Justice is doing, which includes all the intelligence community and several other agencies that are subsumed up under main justice. And so if you have any questions about that going forward,

or if you have a suggestion for a title of that show, we would love to hear from you too. And we'll take those questions as soon as we take this quick break. Stick around, we'll be right back. ["The Last Supper"] ["The Last Supper"] ["The Last Supper"] ["The Last Supper"]

Welcome back. Okay, here we are at the last break of the show, which is traditionally listener questions. Thank you again for your wonderful questions, a lot of them this week and still the names, the suggestions of names for the new show continue to pour in. We're going to have to pull that together and do like maybe a dramatic reading of multiple names, but keep your eyes open for that in the next couple of weeks. Okay, so first question this week comes from Michelle,

and this one really tells right on to the conversation we've just been having, but with a slightly different spin. Because Nauta and Olvera are still part of ongoing litigation, Smith may be limited in what he can put in the special counsel's report about the documents case, which is unfortunate because that's also the case where we've seen less of the evidence presented

in court documents. I mean, hats off to Michelle for giving us this perfect transition, right? OK, she goes on to say, is it possible that he can write a more complete report with that info redacted, and then the info can be unredacted at some point in the future after Donald pardons them? Mueller's report was ordered to be unredacted at some point in the future after Donald pardons them. Mueller's report was ordered to be unredacted by a judge, wasn't it? Can Donald's DOJ deep

six this report in a way that such unredactions could never see the light of day? So those are three really good questions. She even hit your Reggie Walton point. Yes. Because wasn't it him who decided that that Bill Barr's redactions were inappropriate and he lacked candor and he ordered them removed? It might be. Or was it Sullivan? I'm not sure.

I was hitting Reggie because he's the one that ordered the government to stop investigating me in the FOIA case brought by Krew. But anyway. He's also the one that asked the lawyers if they had looked into treason for Mike Flynn. Like he wasn't playing around. No, he's not. My gosh, he was, he hit us with some rough judgments

when I was working. You could not, Reggie's no joke. I'm sorry, it's Justice Walton, but, uh, or judge Walton. Nevertheless, back to Michelle's question. Um, okay. I definitely think it's possible that Jack Smith will put some solid information into his report about the Florida case. And a lot of that might end up being redacted. Um, when the case completely goes down the toilet, as it

almost completely has, it's just the appeal that lingers. Um, then now you're into the scenario in which, as we said before, in the context of the DC case, organizations could, or individuals or, or media entities could come in and and Submit FOIA requests to have that information Unredacted and then sue if they're denied DOJ will fight it they will sue and then it'll be hashed out in court Can D Donald's DOJ deep six the report in a way that such unredactions could never see the light of day.

I mean, I'm having a hard time thinking of a specific scenario in which that would happen. However, I have great confidence in Trump and his supporters and the people that he's putting into these positions, their inclination to basically just do whatever the hell they want. And this seems like the kind of thing that might be right, right up their alley. So I wouldn't write it off completely, but I can't sit here and give you a likely scenario in which that happens. When the report is released, and let's say, you know say they hand off these cases, all that's redacted like they did in the Mueller report, is the report docketed with the court, with Judge Chuck Kinn?

Because if it's on a docket, I feel like it can't be, you know, destroyed. I don't think Jack Smith's submission of the report to DOJ gets docketed anywhere. But if you file the lawsuit seeking the unredaction of these things, then that would be docketed as an appendix to your lawsuit. So yeah and I also want to just bring up really quick the fact that 2,000 pages of grand jury material is docketed with Judge Chuckkin. Yeah. Remember the 165 page immunity brief

followed by a 1,889 page if memory serves, mostly fully redacted giant submission on the court docket for the judge to look at in the immunity case. But all of that stuff was redacted for us because it's grand jury material. So all that still exists as well and can be subject to FOIA lawsuits. Yeah. So now in the Florida case, we don't have quite that same massive tranche of stuff because it was, um, the litigation never got that far because it was so freaking slow, but never anywhere. Right. But they've like, what about the

actual evidence? What about, I want to know what documents he had. I want, I wanted to see in court those documents come out in that you wouldn't get all the granular detail because of SIPA and everything else. But at least you get an understanding of like, this is, you know, whatever an analyst, summarizing, you know, problems with North Korea or whatever. I don't know. So yeah, I, I, um, I don't think that the Trump DOJ will be able to really conceal Jack Smith's report, but what they do with the, the underlying evidence in that case, I don't know. It'd be really interesting though. Imagine somebody sues, files a FOIA suit to get access to that material.

That puts Trump's DOJ in the position of fighting that FOIA suit on the grounds that it's highly sensitive national security material that shouldn't be revealed. Well, duh, that's why it shouldn't have been at Mar-a-Lago. He won't have a problem with that. He's a walking contradiction. Yeah, that's true. Anyway, thank you so much for that question, Michelle. Andy, Chris wants to know, he says, in the last episode, you said the Russians supported Bernie Sanders. Since there

isn't an investigation into that, could you explain what you mean by support? Thanks. I've always wondered what people meant by this. So he's heard it elsewhere. This pod has been so informative, especially for someone not in law or law enforcement. Can't wait. Can't wait for new Jack City. So what are your thoughts? I mean, you know, I could say I don't know that the Russians supported Bernie Sanders. I think they supported sowing discord, whether that was supporting Hillary against Bernie

or Bernie against Hillary. I mean, they'll pick whoever it is. I mean, you know, just recently in this election, Russia on one side supported Gaza and on the other side supported Israel and sent it to the opposite groups to stoke division. So I don't know if supports the right word, but. I don't, if I said that last week said that last week, that was not very clear. I didn't mean it that way.

But when you look back at what the Russians did in 2016, they went all in on releasing the emails that revealed essentially the accusation was that there was this kind of Essentially the accusation was that there was this kind of precooked deal within the Democratic Party to favor Clinton over Sanders. And by exposing that, I think some people have argued that the Russians were supporting Sanders in that intra-democratic battle. Now you're absolutely right. I do not mean to suggest that, oh, the Russians like Bernie better than Hillary or anyone else. I think they just were stoking

the flames. What they wanted to see was Democrats fighting against Democrats. So that's why they released those emails. They wanted, again, you know, they did definitely did not want Hillary Clinton to win. And so undermining the unity of support within the Democratic ranks was a fair target for them and a strategic target for them. I think that's why they came out and released stuff that ended up making Sanders look like the Democrats had treated him unfairly. Right. I think... Sanders does have some significant, very long time ago contacts to Russia.

He notably made, I think when he was mayor, or was he mayor or governor? I think he was mayor early on in his political career. He traveled to Russia. He was a big advocate for improving our relations with Russia. Well, Tad Devine was his campaign manager who had worked with Manafort's people or something. I don't think any of that stuff has been relevant for 25 years. So I'm not saying that to suggest that it's part of this discussion. But yeah, this is really Russians doing what Russians do. They want us to fight with each other.

And so that's why they sow chaos. Yeah, the only candidate they support is Donald Trump. Yeah, for real. Aside from that, on the Democratic side, they don't really support anybody. They just want to make us fight each other. Split the Democrats, and that gives the Republicans a chance to win.

There you go. They prefer that. Final question from Mary Alice. Trump and his associates are relentless in their criminality and corruption, so my question gets to the source of his success, innovating accountability, various and copious amounts of money to pay off his inner circle, and crooked lawyers whom he has rewarded with government positions. Is there anything that can be done to investigate the Trump family's sketchy and timely foray into crypto,

considering all of that industry's unsavory connections to the international crime funding and money laundering? Will any investigation into that activity be blocked as long as Trump controls the DOJ and FBI and obviously tries to undermine the SEC's investigations with his pro crypto cabinet pick. Yes, there won't be any investigations on the federal level into this. And I'm not sure if state prosecutors can go after people for, investigate people for that kind of thing. Yeah, I mean, to be clear, a lot of what we know

about the Trump family's involvement in starting or investing in a crypto platform is not on its face illegal. It creates all kinds of ethical problems and things, issues that might in any other administration be considered too risky and create conflicts of interest and all sorts of things like that. We know that they will just sprint past those sort of mileposts. They don't care about that sort of thing. It's definitely worth watching.

And yes, Trump will now be in a position to determine the regulatory environment around cryptocurrency and these platforms and exchanges and all that stuff. And he's directly benefiting. He will also directly benefit from those regulatory decisions and positions that the new administration takes. So like, yeah, it's super, super sus, as my daughter would say. But, is it criminal probably not will it be investigated never uh but this is where non-profits come in this is where watchdog groups come in like these things need to be uncovered they need to be written about in major investigative news reporting outlets, places like ProPublica and to a lesser extent, I guess, New York Times, CNN, whatever, like big media entities

that have the resources and the money and the personnel and the experience to do longer-term complicated investigations. Hopefully they will do those because that's the only way we're going to know about this Yeah, and there's currently I think I read over 20 SEC and federal investigations into Elon Musk and his companies. Yeah, those are those will all go away and When they do that needs to be brought to light perfect example, maybe Elon Musk now in his new I don't know what it is position as advisor or whatever he is and responsible for reducing the government's budget by a third, according

to him, maybe he just guts the SEC. Seemed like a little self-dealing there to you. Let's destroy the agency and neuter the agency that's already investigating him. I'm sure that deal was already in place before he handed 250 million over to Trump. This would not have been tolerated in any other administration ever, Republican or Democrat. This is literally the foxes watching the hen house. You remember when Republicans had a fit that the secretary of defense, Lloyd Austin, went to the hospital for a day and didn't tell Joe Biden about it? Yeah, that's the outrage on the right.

And now we've got a nominee for the secretary of defense that's been accused incredibly of sexual assault and drunkenness at work. It's yeah. And destroying two nonprofits. An alcohol problem. Yeah. Through mismanagement.

And yet, you know, it was only a couple of years ago that they got all over Obama for wearing a brown suit. Yeah. But hey, it was tan. It was the tan suit. Andy. Yeah, that's right. That's right. Brown. A brown suit would suit, Andy. Yeah, that's right. That's right.

A brown suit would have been fine. No, it probably wouldn't. I don't think he could have worn anything that would be fine with them. It wouldn't have been. You're right. Anyway, thanks for those great questions. Again, there's a link in the show notes to ask us questions, make suggestions on the show name going forward.

Anything that you want to share with us, anything you'd like us to look into or maybe do some research on, send it to us at the link in the show notes and you know we really appreciate you listening and we'll be back in your ears next week. Do you have any final thoughts? No, I'm just counting the minutes until the big report drop. So sit on your the edge of your seats and wait till you hear us jump back on here and start reading it. Yeah, we are on ReportWatch. It could happen at any minute. So thanks very much for listening and we'll tell you about it when it happens. I've been Alison Gill.

And I'm Andy McCabe.