Jack - Episode 13 - Nauta Good Witness (feat. Lisa Rubin)

Episode Date: February 26, 2023

This week: new subpoenas for Ivanka and Jared: a motionto compel Mike Pence to testify; how the box containing classified schedules ended up at Mar-a-Lago; a ruling regarding Rep. Perry’s phone; FEC filing showing nearly $10M of save America PAC money was spent on legal bills; new evidence suggests Trump Admin was aware there was no election fraud in Arizona; and more.Lisa Rubinhttps://twitter.com/lawofrubyDo you have questions? Click here: https://formfaca.de/sm/PTk_BSogJFollow the Podcast on Apple Podcasts:https://apple.co/3BoVRhNCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AG on Twitter:Dr. Allison Gill https://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on Twitter, but you can buy his book The Threathttps://www.amazon.com/Threat-Protects-America-Terror-Trump-ebook/dp/B07HFMYQPGWe would like to know more about our listeners. Please participate in this brief surveyhttp://survey.podtrac.com/start-survey.aspx?pubid=BffJOlI7qQcF&ver=shortThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

Hey, it's Kimberly Host of The Start Me Up Podcast. If you like your politics with some loose talk and salty language, you're going to love my show. I interview the coolest people like Mary Trump, Kathy Griffin, and DNC Chair Jamie Harrison. The Start Me Up Podcast has an easygoing, casual style and a strong emphasis on left-leaning politics. We also have Frank discussions about sex and more than a few spirited rants. Just visit patreon.com slash start me up or wherever you get your podcast and start listening today.

I signed an order appointing Jack Smith. And nobody knows you. And those who say if Jack is a finesse. Mr. Smith is a veteran career prosecutor. What law have I grew? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is.

Send me to jail. Hello and welcome to episode 13 of Jack. It is Sunday, February 26th and I'm your host, Andy McCabe. Hey, Andy. I'm Allison Gill. Everybody, big show today, including new subpoenas. It's subpoena time for Ivanka and Jared. A motion to compel Mike Pence to testify and how the box containing classified schedules ended up at Mara Lago. It took quite a journey. We'll also be talking to MSNBC

legal analyst Lisa Rubin to discuss Pence and Jarvaca. So I'm looking forward to that. Absolutely. And we will have a discussion about the DC Circuit Court of Appeals hearing over whether special counsel can access the evidence on representative Scott Perry's phone, along with some potential new evidence that the former administration knew there was no election fraud in Arizona, and an FEC filing showing nearly $10 million of the Save America Pack Money was spent on legal bills. But first, Allison, as you know, we will start with a listener question. All right, a lot of questions this week about Mike Pence and his presumed attack on his grand jury,

Sapena, but I'm gonna pass on all those because we're gonna talk about that later in the show with Lisa Rubin. So instead, I'm gonna go to a question from Paul, whose last name I will not include. Paul says, loving the show, it seems to answer all the questions that are often on the tip of my tongue as news drips out.

But I'm trying to understand the tactics and strategies of a prosecutor and how they use those strategies they use to go up the ladder. Why would prosecutors tap dance around high profile people who are likely to be insincere in their assistance, but have committed crimes, hoping to get cooperation to go up the ladder before enditing them on fewer or lesser crimes. Why not whack people with everything an investigation has found from J-walking to Ms. Prison all the way up to light treason and everything in between and then reduce the remove if they cooperate nicely. Well, Paul, that's a really good question and it goes to the heart of how prosecutors have developed

and investigators, I should say, have developed working big cases against hard targets over the last probably 50 years now. In the FBI, we refer to this as the Enterprise Theory of Investigation. And in the US Attorney's Office, they think of it more in terms of the RICO statute, the racketeer influenced and corrupt organization statute. That's the one that's typically used to go after mobsters, you know, narcotics syndicates, things like that. And really the point of those things is to be able to get those people at the very top of the food chain. Prior to RICO, the way conspiracy, prosecutions, and investigations used to go,

you basically would look for an agreement between two people who engaged in a crime. And that would really relegate you to just looking at the actual people on the ground who committed the crime itself. And you could really only take, you know, you had to go kind of crime by crime, kind of trying to take people out one after another.

What Rico and the Enterprise Theory enabled prosecutors and investigators to do is to look more broadly and try to take out an entire organization kind of with one prosecution. There's a lot of details to it that I won't go into. But essentially you have to prove the existence of kind of an organization or an enterprise. And by acknowledging that someone is at the top of that food chain, like the mob boss or let's say the leader of a political party, you want to take that person to everyone beneath

him or her who is involved in the criminal activity out in the same prosecution. And the easiest way to do that is you go to the crimes that you can see, right? Whether that's like, you know, in the mob case, it's the actual guys selling drugs on the street where the guys are actually going out and doing the committing assaults or the homicides. And you, you, you, you charge them on very strong cases that face long sentencing time. And with that leverage, you convince them to provide evidence about the people

above them who may have ordered them to do that or knew that they were committing these crimes on their behalf. And that's how you work your way up the ladder. It's really hard to get to build a case against someone who is the shot caller, the captain, the top of the food chain, especially when that person is very good at communicating elliptically. Let's say that person doesn't ever write anything down or doesn't actually use an email account or really doesn't ever type anything,

except maybe crazy stuff on Twitter. People in those positions are doing very good at keeping themselves out of trouble. So you need solid witnesses, people who talk to them, did things at their direction, took action on behalf of the boss as it were. That's the only way to get to that top level of leadership of a criminal organization, and you really have to do it by building upon the cases at the bottom and

then through the middle and then all the way up to the top. So I would expect that that is the same process, the same basic theory that Jack Smith is using now in his efforts to see who is going to get charged for the activity, the attack on our capital on January 6th, and to a lesser extent the Mar-a-Lago documents case as well. Now, I'm wondering, you know, from what the listener there was asking, can you maybe go ask squeezing with totally unrelated crimes? I mean, I think I've seen this in some criminal prosecutions.

And like, for example, let's say, you know, with Sydney Powell's pack that she was fundraising on the big lie. And then you go to Powell and Rudy Giuliani who was part of that, Mike Flynn, who was part of that, and you say, all right, look, we've got you on wire fraud. to Powell and Rudy Giuliani who was part of that and Mike Flynn who was part of that. And you say, all right, look, we've got you on wire fraud. That's a max 20 year sentence and money laundering.

You're hiding where these funds are being used. And in your little side pack, your little side hustle here, Kraken, we'll go easy on you. If you'd let us know what you know about the pet, the Penn's pressure campaign or the fraudulent electors scheme or, or some, you know, something that's more under the umbrella of the, of the enterprise as you, as you might say. So can you just like maybe, maybe two weeks ago at Sydney, Powell, Rob DeBank, can you use that to pressure her to cooperate in a different set of circumstances? You absolutely can.

That gets to the heart of the federal prosecutor's cooperation agreement. So if you have one of those lower level people or a mid-level person who you, it's like a gift from heaven. When you find that that person who is instrumental in a criminal enterprise is also doing some stupid thing on the side like, you know, selling drugs or, you know, it's caught as a felon in

possession or something like that, it's a gift because you can, you can make a very clean, unrelated case, which is important because that case doesn't implicate the main target over here and the bigger investigation. And so therefore, they may not know anything about it. And you can sit down with that person and say, okay, do you want to cooperate? Because if you do, the way you cooperate in the federal system is you have to be willing to do two things. You have to be willing to tell the prosecutors every single thing you know about crimes that you've committed and anyone else you know may have committed, and you have to be entirely truthful about all of it.

And if you can do that successfully, the government will then go before the judge in your case, whether it's part of the big investigation or maybe just some side nonsense that you got hooked up in, and we'll say to the judge, you judge, you know, she pled guilty to this crime, but she also cooperated significantly uh, cooperated, uh, significantly with the federal government and all these other matters. And we recommend that you depart downward in her sentence. That means give her less than what the sentence in guidelines call for. And that can be nothing. Um, my first big cooperator, my first big

Russian O.C. Rico case was a guy that was looking at like 200 years. And he did end up going to jail for a couple of years while we were finishing up all of our prosecutions of his co-defendants. And he provided testimony at trial, at a trial that we lost, actually, if you can believe that. And as a result of all the information he'd given us, he basically was released, time served. And it was a very short period of time, and I'm pretty confident he went on to commit other crimes in different places, but nevertheless,

the cooperation agreement is very valuable, and it gives prosecutors in the United States a lot of leverage to make bigger, more important cases. And there's a third way too. to make bigger, more important cases. And there's a third way, too. Going after family members and friends, we saw it with Manafort's kid in the Manafort case. We saw it with Flynn's kid in the Flynn case. We saw it with Weiselberg's kid in the Weiselberg case, where you know, it's like, okay, yeah, you know,

you're willing to go up the river. But how about we send your son with you for these crimes and et cetera, et cetera, Cohen happened with Cohen in Southern District in New York with his work and indict you and your wife for tax fraud. If you don't plead guilty here, and now that was, I think, a little corrupt weaponization of the Department of Justice in that particular case, but the way that Cohen tells it in his book Revenge. But that's another way that you can get at a potential witness is through family members and friends and their crimes.

That's absolutely right. And it all comes down to two words, the black hole of prosecutorial discretion. Prosecutors have enormous latitude in deciding not just what they'll charge or how they'll charge, but who they will charge. And, you know, they're not supposed to use that discretion vindictively or in an extortionate way. But, you know, if you have a guy and his son and you have them both in the same crime and you know that the father is Someone who could provide significant evidence against a major major target You know a prosecutor in those circumstances might say look will go easier on your son if you agree to cooperate Those are the sort of decisions that some people look at as abusive and

that some people look at as abusive and manipulative and others look at as, hey, that's the cost of doing criminal business. You know, the alternative, both the father and son get prosecuted to the full extent of the law and go to jail. So, the alternative is don't break the law. That means that's the alternative. Yeah, yeah. So I mean, these are, there's a lot of gray area that goes on in investigations and prosecutions and leave bargaining is a big part of our criminal justice system

And that's that's just how it works. Awesome. Well, thank you so much for that question That was a great question if you have any questions you can send them to us by emailing us at hello at mullersherote.com. That's hello at mullersherote.com. Put Jack in the subject line and we will go through them. We read them all. Thank you very much. Everybody, stick around. We're going to be right back with MSNBC Legal Analyst Lisa Rubin. Talk about some breaking news. Stay with us. I'm Greg Oliar. Four years ago, I stopped writing novels to report on the crimes of Donald Trump and his associates. In 2018, I wrote a best-selling book about it, Dirty Rubles.

In 2019, I launched Proveil, a biweekly column about Trump and Putin, spies and mobsters, and so many traders. Trump may be gone, but the damage he wrought will take years to fully understand. Join me, and a revolving crew of contributors and guests as we try to make sense of it all. This is Preveil. So, Renato, do you still have your own podcast? Yeah, it's complicated. What's so complicated about a podcast?

That's the name of the podcast, remember? Oh! Will you still be exploring topics that help us understand the week's news? You bet. But we'll have a new name because we're going to be working together to explore complicated issues that are done in the news. Working together? Yeah, you're hosting it with me, remember? Oh, right.

Wait. Does that mean our podcast is going to have a steam op segment? Let's not get carried away. But we'll discuss hot new legal topics, so check out our new episode, Coming Student to Everywhere You Get Podcasts, as well as YouTube. Hey everybody, welcome back. So let me read you the lead from Haberman and Schmidt at the New York Times. They say, quote, former president Donald J. Trump's daughter Ivanka and his son-in-law, Jared Kushner, have been subpoenaed by the special counsel to testify before a federal grand jury about the former guy's efforts to stay in power after he lost Capitol L, the 2020 election, and his role

in a pro-Trump mob's attack on the Capitol on January 6, 2021. That's according to two people briefed on the matter. And joining us to discuss is former litigator and MSNBC legal analyst Lisa Rubin. Hi Lisa, how are you? Hi Allison, hi Andy, I'm so happy to be here. So good to have you. It's really great to have you.

And you know what I think is the most interesting part of this statement, this lead from the New York Times, is that second part, the part that they end with where they say not just the investigation, the loss to 2020 election, but his role in the pro Trump mob's attack on the Capitol on January 6th. And I could be wrong, but that seems like the first public reporting confirmation we've gotten that Donald Trump is being investigated for the physical attack on the Capitol.

And of course, Ivanka would have information on that. So besides, well, we'll talk a little bit about that because I know, I know that at least that you read the transcripts where they both testified to the January 6th committee. What information do Ivanka and Jared have that bears on the special counsel investigations? Well, let's start, Alison, from the proposition that both Jared and Ivanka were much less forthcoming as witnesses than many other people who spent time in the White House. And in fact, the January 6th report goes out of its way to say that, that for example, that Ivanka as compared with Patsybelone, for example, was not as forthcoming a witness.

So there is information that I think both the January 6th Committee and the Department of Justice and the Special Counsel rightfully believe that they have. Whether they'll testify to that information is a different story. Both of their deposition transcripts were chock-full of idoreical or just vague assertions. And in fact, many of the people who worked with them or for them had more specific recollections about particular episodes than they did. With that caveat, one of the things I think that the special counsel most wants to know

from Ivanka is how she spent that day with her dad, Keith Kellogg, who was the Vice President of the National Security Advisor, when he testified, he told the January 6th committee that he viewed Ivanka as somewhat of a stable pony and he didn't mean that disparagingly. What he meant was, she was like the horse that you brought into the barn to calm all the other horses down, and of course, the horse that he's really referring to is her father.

Throughout that day, Ivanka was repeatedly called back to the Oval Office Dining Room, by Cipalone, by Meadows, by Eric Hirschman, as a person who could be both a moderating and calming influence on her father. She also accompanied him to the ellipse. And if you believe the testimony of Sarah Matthews, which I do, she is the person who came up with the phrase, stay peaceful in that infamous tweet. That presumes that you think they're being peaceful in the first place, which of course, if you're watching the television screen from the Oval Office, as many people testified that Donald

Trump did, hard to believe that he viewed them as having been peaceful, given what we saw on CNN, on my network, and on others all throughout that day. So, you know, the utility of Ivanka Trump is all about January 6th, what he said, what he did, who he was surrounded by, and whether or not he was amenable to doing more. Jared, is it your own story? Yeah, I totally agree with your read on it. She goes to that most critical and elusive piece of the case, which is proving Donald Trump's intent and particularly proving it on January 6th.

As you said, who was he with? Who was he talking to? What was he saying? What could you imagine the offhand comments that may have been coming out of his mouth while he's watching the writers do their thing, pose that attack on television? So she is there, she's in the room,

she's working on massaging the statement, she was taken aback by the confrontational quality of his conversation with Mike Pence earlier in that morning. You know, admittedly, she only hears one side of that. She's in the room with Trump. She's not in the room with Pence. But nevertheless, there is a lot of really intricate, corroborative detail that she could provide, you know, whether she will or not

is a very, very different question. And to be fair, to your point, there are lots of other people around during most of those conversations. You know, we know that Sipalone and Hirschman were present for a number of them, that conversation that Trump had with Pence over the full map morning. The January 6th report drops a footnote about all the other people who were in the room. So it's not just Ivanka. It's Eric and Elara, and John Jr. and Hirschman and Melania. There is a whole constellation

of people that are in the room on the Trump side of that conversation that morning. There are probably very few instances where she is alone giving advice to him, but at the very least they need it for cooperative effect. That's right. And unlike many of those other people who may have been in the rooms, she's not a lawyer. She's not part of the White House council team. She has no, there's no, you know, there's no family privilege. There's no daughter privilege.

She clearly doesn't have attorney-client privilege. Now of course they'll, they'll make their, you know, typical claims of executive privilege, but those are likely to stand in the way of her testimony. Yeah, and particularly with respect to Jared and Ivanka, because unlike some of the people who wanted to go into the January 6th Committee on the thinking specifically about Phil Benin-Sipalone, for whom the Trump world did make an assertion of executive privilege, there was no assertion of executive privilege. There was no assertion of executive privilege from Trump, recognizing that he's not the one ultimately in control of that assertion of privilege.

They didn't even do that for Jared and Ivanka in connection with the January 6th committee. So there's a really colorable argument of waiver, even before you get to the substance of whether or not those conversations were within the realm of presidential communications privilege or deliberative process privilege. Which I think they're not. That's right. Hey, Andy, let me ask you a question. Going back to what Lisa was talking with all the,

I don't recall, you know, testimony that came from Ivanka and Jared. You ran into that a lot in the Mueller investigation. Did that hamper, did that ultimately hamper some of, or I don't want to use the word obstruct because I don't want to use a legal term of art, but can that be problematic when you're trying to get evidence like that?

Yeah, there's no question. And that is unfortunately a strategy or a tactic used by witnesses that's very hard to penetrate because it's virtually impossible to go back and you can't prove that someone actually recalls something that they say they don't recall. But the takeaway, and I think you see this in the January 6th committee report, prosecutors

and investigators know who's actually being truthful and cooperative and forthcoming and who's not. You know, people who abuse that kind of, I don't recall, it really stands out after the fact. Of course, that's too late and now you don't have the testimony you need to help your investigation. Unless they're in a position to be able to prompt recollection. So it is possible that in the grand jury, if asked a question about a conversation, you know, that let's say you have witnessed and you're asking about a conversation, a text conversation they had with another person and they say they don't remember if you can then hand

them a transcript of that text and it refreshes their recollection as we like to say, then they're kind of backed into a corner and have to have to say something. But it can often be a bit of an impenetrable shield against providing truthful testimony. Hey, Lisa, let's shift gears and talk about Pence for a minute. We've been getting so many questions from our listeners over the last week about Pence and his his battle that he's setting up with Jack Smith team over his grand jury subpoena. So according to reporting from the Guardian, they say that, and I quote, here,

Pence is not expected to ignore the grand jury subpoena in recognition that some of the special counsel's questions might pertain to issues beyond his role as presiding officer on January 6th. What are your thoughts about Pence's strategy going into this subpoena and whether or not this gambit of trying to claim speech and debate clause protection is going to keep him out of the crosshairs in the grand jury? I don't think it's going to keep him out of the crosshairs of the grand jury.

I do think that there's a small possibility that it'll cut away at the margins of what he wants to be able to testify to because it's such an open question. I think where I probably come out is closer to the Eric Columbus view, Eric Columbus is a lawyer who worked in the House Special Counsel's office and in that capacity was litigating for the January 6th committee. And he's sort of off the view that,

A, what Pence was doing was ministerial, with ceremonial, it doesn't fall within speech and debate protection. That's not to say that the vice president might not get speech and debate clause protection for other things like tie breaking votes, for example. But it doesn't qualify here. Where I don't agree is former Judge Michael Ludic

has gone on record, including in the Times today, is basically saying, even if the speech and debate clause protection were to apply to Pence, it should fall away where there's evidence of the crime. And the case law is pretty clear that that's not the case. If speech and debate clause protection applies because an act is within the wheelhouse

of what's legislative, it's absolute. It's not on a sliding scale dependent on need. That's executive privilege, right? We can all understand that even where executive privilege applies, it can fall away based on the showing of need. For example, you can't get that testimony from anybody else. Pents is the perfect example of that.

The only person who knows what Trump said depends on the morning of January 6th, or I'm sorry, what Pence said to Trump on the morning of January 6th is Mike Pence, right? Because Greg Jacob basically said, Vice President never talked about his conversations with the president with me. He went into another room.

He took the call while we were at the residence and nobody knows other than Mike Pence what was said. But where the speech and big clause is concerned, if it applies, it's absolute Mike Pence and his lawyers know that. That's why they're trying this because they are trying to toe the line of being sufficiently obsequious to the Maguah movement without actually being trapped. You know, I thought the same thing in reading Judge Ludig's piece in the Times today. First, his claim at the beginning that it'll be embarrassing for

Pence to have to be summoned in front of the grand jury during or dragged in front of the grand jury during his potential run for the presidency is like some sort of that embarrassment would be something that would keep him from doing that. I see it entirely the other way. I feel like the being dragged in, you know, by the, by the heels, by the heels in front of Jack Smith and the grand jury is exactly the look he wants if he's running for president at that moment and still trying to keep some of those hard-right supporters, trump voters and things like that in his corner. I also was not convinced, I mean, I like the way he's thinking that it would all happen

very quickly, that these legal challenges would be dispensed of quickly and not pose any sort of a time problem, but I'm just not so sure that it'll play out that way. Well, you know, the other problem with that is, of course, as outsiders, we don't know how things are playing out in terms of timing. We can only see what people from networks like mine can observe in terms of who's going in and out of the Rangerie room at the DC Federal Courthouse, they can see who's coming in and out of Barrel Howell, the Chief Judges courtroom, maybe they see who's going into the DC Circuit, but none of us really know because these proceedings are under seal,

exactly how quickly they're playing out. We have a sense that the Special Counsel is teeing up a number of these disputes and may even be doing so in a strategic order. So for example, the reporting indicates now that the meadows subpoena, to mark meadows the president's former chief of staff, came before the subpoena depends. I think that's because they want a ruling

on executive privilege that is as clear as day because if it doesn't apply to the White House, she must have not been applied to anybody else. I think they want to fully and finally litigate the ultimate issue on executive privilege before they get to PENSE. That the only thing that's remaining is the speech and Bay cause issue. But that's not to say even if they structure it and plan it and sort of strategically go in a particular order that it will all happen as fast as they will want to or as ludicic expects.

And none of the rest of us have any insight into that because these proceedings are sealed. Yeah, and I also, you know, we have to say here that Ludic's op-ed, at least a previous one, assumed that Pence is going to like not show up at all, but the new reporting indicates that he will do this the way that, you know, Lindsey Graham should have done it, that anybody who is subpoena should do it, you go in and you answer questions and when privilege arises, you assert it, and then it can be fought after that. But my concern is how long this will take, because this assertion of speech or debate seems like a much better legal argument than an executive privilege in vocation. And that seems like something that the Supreme Court may be

more likely to take up, taking more time to litigate that. So my question here is, that it seems like everyone's saying that the end all be all evidence that is needed that would would be protected by speech or debate if it applies to Pence is that what like you said least of what he said to Trump on that phone call. I'm thinking that if I were Jack Smith, I would start acting like I'm not going to get that anytime soon or in a timely enough fashion to prosecute. Why is that necessary? Is it necessary that piece of evidence to go

forward with a prosecution, given that Fanny Willis, for example, didn't even subpoena Mike Pence at all? Well, I mean, the reason Fanny Willis didn't subpoena Mike Pence is because the interaction between Trump and Pence, at least vis-a-vis the pressure campaign on Pence, is not a Georgia event, right? That is a squarely Washington-based nucleus of facts. But Alcindy, your question, do they need that testimony to make a prosecutorial decision about up or down whether to bring charges? No, although they might need it for certain charges. And the way I think about it is, you know, when when all of this was first coming out,

people would think about the various plots to overturn the 2020 election as sort of occurring in concentric circles or maybe even occurring in order. And it wasn't really until the January 6th report that you could see actually there are multiple different schemes operating, many of which overlap in timing. There's a campaign to pressure the Department of Justice, for example, to pressure state legislatures. There's the direct campaign to pressure Mike Pence. There are a series of other actions that Donald Trump and his allies took

in service of overturning the election. And you don't have to prove that he improperly pressured Mike Pence to not count certain votes in order to be able to prosecute him for other conduct that falls within federal criminal violations. Would it be nice? Probably. And is it helpful with respect to the events of that day?

Absolutely. Because in order to show that he had an intent to do harm, I think it's at least helpful if not necessary to show that he knew full well how the day was gonna play out. Yeah, I agree with that. I think it's potentially big upside. It's hard to say because we don't know what Pence's testimony would be.

We don't know what that evidence would be, but potentially it could be greatly significant. Could you go forward without it? Sure. If you had all of the testimony you needed from every other witness, we know that they've approached so far. Yeah, they probably have plenty to go forward with. But that kind of keystone sitting on top from the vice president's own mouth could be very powerful,

and that makes it worth going for. Yeah, and look, I think any the way that you framed it is exactly right. The upside is tremendous, but on the contrary, it doesn't mean that they wouldn't be able to go forward with some case. That having been said, I think the strongest case against Trump is one that concerns events during the day of, or at least involves events concerning the day of, and it's hard to see how that case gets made without the side story of the direct conversations between those two men in the days leading up to January 6th. And on January 6th, it's all.

Yeah. And we also know now, Trump has, seems like he wants to fight Pence's testimony using executive privilege, which he's done in the past. But as you said, I think that that is a more protracted fight and a shorter fight. And I'm, I still haven't heard whether Pence is going to wait for the outcome of that to testify much like Mark Short. And I know Hirschman wanted to wait, although we haven't really heard if he had, you know, if that had been overcome, a lot of these things are done under seal.

Well, all of them are because they're, you know, grand jury proceedings, and I know that Kyle Cheney and I think Greg Sargent were denied today for getting those things out from under seal, from from from from Chief Judge Bar judge barrel how. I also think maybe we could subpoena Dan Quail. I think he would probably have a lot of information from from Mike Pence. I want to ask you one more question before we let you go. And this I'm going to go back down to Georgia here for a second. The Fountain County DA, Grand

Jury for person for the Fountain County DA. Oh, dear Lord. Among other things, we could talk for hours about everything that she said and did in the faces that she made. But the thing that stood out to me beside the popsicle party was that she noted that about a dozen witnesses or so were granted some form of immunity. Would that have been discussed with the Department of Justice and Jack Smith, and would that immunity apply in Jack Smith's investigations, or is it a whole separate immunity? They would have to get whole separate immunity, whether or not that's discussed with the Department of Justice is probably a subject that Andy would know and you

else and would know too much better than I would, but my expectation is that no, it probably wasn't discussed in advance. But I'm interested in your perspective on that too. Yeah, I would really doubt it. I would expect they had to go back to Fahni Willis, and that's where the immunity would have come from in this state investigation to make sure that they weren't, you know, in culpating themselves of vis-a-vis state potential state charges.

I also think that DOJ probably wanted to keep a very clean, you know, margin, a distance from what was happening in Georgia to avoid any sort of complaints or concerns about whether or not they were, sort of complaints or concerns about whether or not they were, you know, working with the Georgia team or having any involvement with the special grand jury, which seems like it was pretty independent to begin with. So I would guess there was probably not much or even any contact between the two. You know, and there's one compounding aspect of that, which is that funny willis is an elected DA.

And there have been a couple of times in the investigation that we've been reminded of the fact that she is an elected Democratic official, right? There was this moment where she was precluded from taking part in the questioning of a particular witness slash target because she was involved in fundraising for the person's opponent. The popsicle party, as Alison referred to it, and a moment ago is also another show that while not necessarily partisan,

the judgment that's being used by the DA's office is maybe not the judgment that the Department of Justice could use. And I was just explaining this to my, some of my colleagues on one of their shows in a misunderstanding. He said, well, what's wrong about having an ice cream party? And they said, I want you to imagine for a second that we're talking about a federal investigation and a federal pettit jury, right?

A jury hearing a case. And the Southern District decides in the midst of a month-long trial, what would be the harm of sending some pizzas to the jury room? People would freak out. That would make the front page of the New York Times. And you might say to yourself, it's just pizza, but anything that prosecutors do that could be perceived as carrying favor with jurors, whether they be granders,

special granders, pedagers, is just a no-no. And so for those reasons as well, I think the Department of Justice might be trying to keep their distance. Yeah, I think that's very sound. Yeah, I've seen runaway jury. I well, I think the Department of Justice might be trying to keep their distance. Yeah, I think that's very sound. Yeah, I've seen runaway jury. I know, I know the drill. All right, thank you. Thank you so much. I really appreciate your time today.

This has been really enlightening and we really value your expertise. So thank you very much MSNBC, legal analyst, Lisa Rubin. Appreciate your time today. Thanks guys. Thanks, Lisa. Everybody stick around. We'll be right back. Bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum How about Scott Perry's phone now? Political reports, I quote, a three judge federal appeals court panel wrestled Thursday with tangled questions about Congress's immunity from criminal inquiries and whether it might apply to efforts

by representative Scott Perry to aid Donald Trump's bid to subvert the 2020 election. Okay, a little background. The DOJ IG got a warrant to seize an image Scott Perry's phone in August. And then the DOJ IG got a warrant to seize an image Scott Perry's phone in August. And then the DOJ obtained a second search warrant to actually take the data from the phone. Representative Scott Perry is trying to block DOJ from getting that information by using our favorite privilege of the week.

And I Allison, the speech and debate clause. The privilege of the week. I love it. Yes, indeed. That's what Pence is trying to assert over some of his conversations, saying that he is also a legislator when he was presiding over the January 6th counting of the electoral votes, which we just talked with Lisa Rubin about. I listened to the public part of that hearing, Andrew.

You are a real diehard fan of federal court proceedings. Okay, go ahead. This is what I do with my Friday night. I just pop a little white claw, you know, eight, no laws when you're drinking the claws. And then I listen to, yeah, speech or debate claws, no white claws. That's some, that's some must see TV in the guilt household. Okay. That's my privilege. But yeah, nerd alert. But the second part of the hearing was sealed. And at first, Andrew, it seemed as though two of the three judges, Cotsis and Rao, who are both Trump appointees,

which we never used to have to talk about who appointed what judges. But now here we are. Two of them were highly skeptical of the Justice Department's very narrow definition of the speech or debate clause. Yeah, so the heart of the matter is whether Perry's pushed to get Jeffrey Clark installed as the Attorney General falls within legislative responsibilities. I mean, I mean, I, of those of us who analyze these things with just straight up common sense, I think like, how does trying to hijack the Department of Justice and executive branch agency by throwing out the guy that's in the job and replacing him with some flunky who has agreed to do our bidding?

How does that fall within the purview of legislative responsibility? Since, as we all know, Congress cannot legislate who runs the Department of Justice. But that's without my sarcasm. That's kind of the tact, I guess, that DOJ kind of push back with, right? Mm-hmm. Yeah, yeah. And, of course, Perry is arguing that all of his outreach prior to January 6th, apparently, including trying to install, you know, his, his pal over there, Jeffrey Clark, all of that, he says, is, is part of him trying to get information, a fact-finding mission to inform his vote to support or oppose certification of the election, and to inform his vote on

an election reform bill that passed the House on January 3rd. Now, I thought that there was a pretty clear argument, and maybe this is what happened behind the scenes, but the DOJ seemed to have a pretty clear argument like, hey, there's no way that trying to install Jeffrey Clark as acting attorney general is within the purview of legislative responsibilities. But what they did argue was that his fact-finding wasn't authorized by a committee or the house itself suggesting that that's actually a requirement for something to be protected by the speech or debate clause.

And I didn't quite understand that argument unless it was the only one they could make in a public forum. And then the rest of it was, you know, I mean, maybe for the Department of Justice to say, hey, he tried to install an attorney general is something that isn't a publicly known or acknowledged fact by the department at this point. You know, it does, it does seem that way. It almost feels like DOJ is kind of overreaching a little bit trying to kind of create a new boundary for the speech and debate clause with this, oh, it must have been, you know, your inquiries must have been conducted pursuant to some sort of an official legislative hearing.

Committee, in authorized congressional activity or something like that. But maybe what they were doing is just trying to capitalize on a tactic that was more successful in front of Judge Howell prior to this appellate, to this appellate fight in which, and I guess we learned this at the hearing, we learned that Judge Barrel Howell had ruled under seal that Perry's activities related to certification of the election were not shielded by the speech or debate clause because they were not part of any formally authorized congressional inquiry. So in real and, you know, connected to that revelation, it almost seems like DOJ is trying to kind of like, you know, that worked with howell, maybe that sort of a theme would work here at the appellate level as well? I don't know. Just trying to read the minds of the DOJ appellate lawyers here, which is not easy. Yeah, no, that's a really good point. I think that that's one of the biggest pieces of news that came out of the little tiny

public sliver of a hearing that we got was that that was what barrel howl ruled. And that is actually in a sealed proceeding, which is interesting because as you know, I brought up with Lisa Rubin, these under seal privilege battles. And judge how did rule just today, we record this show on Friday, that the media, namely Kyle Cheney from Politico and Sargent from New York Times, can't have any of these sealed proceedings, because the DOJ apparently filed a response under seal and said, look, we can't redact this. None of it. It's all to intertwined and you can't see any of it.

It's all just going to give the way of the whole game. And she agreed and she said, you can't, you can't, none shall pass. She said, you can't have it. But she didn't mention that Scott Perry himself has admitted that he's doing these proceedings under seal. And we know that in this hearing that happened the day before that the DOJ let slip something that Judge Burrell Howell had ruled on in a sealed proceeding. That's right. So if you know if I maybe they'll file a second amended motion to get it these sealed proceedings, I don't know that that necessarily will make a difference, but it's like hey if you've acknowledged this Perry's acknowledged these sealed proceedings publicly. And if the DOJ themselves gave away part of a...

A little chunk. argument in the public. Yeah, and again, that's why I think maybe that's why it went under. Because right after that, the sound went out and they went into private sealed hearing. And probably was like, doody were supposed to say that shit. Oh shit, you're right. Okay. And that's why they were only, you know, kind of making that very dude, you were supposed to say that shit. Oh, shit, you're right. Okay. And that's why they were only, you know,

kind of making that very, you know, making that argument without revealing that the judge for all help that scratch on your cell phone. Oh, you're really low. We can hear you. I keep saying it with Judd. Yeah, they, yeah, they. Nice.

Nothing but the latest and greatest for DOJ. Yeah, they, yeah, they, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, over conversations that members have with non-members. And that's going to be very relevant in the question of Mike Pence's claim for speech and debate clause protection, right? So he, as we were talking with Lisa, is using the same constitutional protection and claiming it in his role as president of the Senate and would theoretically use that to shield his conversations with Donald Trump. Well, he seems to be one giant step off of Scott Perry here along in the old, a logical world since, uh, Pence is not and has, well, he used to be, but he's not a member of Congress now.

And he certainly, uh, does not seem to have been performing a strictly legislative function while counting the votes. But anyway, we'll, we'll see how that goes in his suit. Yeah. And, you know, like I said, I'm pretty sure that the department will win the Pence case on a speech or debate, either on that or even my personal little novel legal theory, which is that the checks on the privilege of speech or debate are expulsion from the Senate and censure in the Senate. And he can't be expelled from the Senate by a majority of vote and he can't be censored as a senator. So without those checks on the privilege of speech or debate,

how can he be possibly granted the privilege of speech or debate? That's just my little personal legal argument. I don't know if anybody, on the privilege of speech or debate, how can he be possibly granted the privilege of speech or debate? That's just my little personal legal argument. I don't know if anybody did Department of Justice if you're listening. Maybe that works somehow, but you know, there's an order that these things go in. And first of all, if it's proven that he's not a legislator,

or legislator, because he's not paid as a legislator or whatever, then we don't even have to get to those kinds of novel separation of powers arguments. But even if they win, I think it might be too late, it might be pushed out past any comfortable time frame, Jack Smith has in his head for when he wants to wrap this up, which my understanding is, and the reporting is from sources that he wants to wrap this up, which my understanding is, and the reporting is from sources, that he wants to wrap this up by the summer.

Yeah, it could be. I mean, and to your point, I think that Perry's claim of speech and debate here is, I don't know that a win, but I think it's more, he's got a better shot than Penn's does. He's a member. Of course, there's always this solemn on, to split the baby potential here, the

court saying, okay, they can have all the data from the phone that are contacts between Perry and these subjects of investigation who are not members of Congress. But none of the data from, you know, conversations or contacts he had with other members or staffers, something like that. There's a way to resolve that. Or topics that aren't legislative in nature, like trying to get Jeffrey Clark put in as attorney general. And I think that that, and Cheney writes that in his piece in Politico.

He said that judges appear to be interested in both upholding like broad speech or debate protections. Yeah. But also not, you also not allowing the deal, or not allowing a parry to cover everything with speech or debate. So they just generally don't want to set precedent and put parentheses around a speech or debate clause,

which is, again, a very broad protection. And so on the other hand, is not a member, and not only is he not a member, he's having the conversations, Jack Smith is most interested in are the ones that Pence is having with his boss, the president of the United States. So in that role, in his, you know, if we're saying what role is he functioning in? Well, when he's talking to the president of the United States, he is certainly functioning in his vice president role, not in his maybe Europe member of the United States, he is certainly functioning in his vice president role, not in his maybe Europe member of the Senate

partially kind of role. So, I really don't think that, I think Pence is way out there on the limb on this one, but we'll see, we'll see. Yeah, and we have to also consider that Pence shouldn't wanna drag this out into where they get a decision that he has to, where we get a decision that he has to testify and answer those specific questions because he's not covered by the privilege.

It's smack dab in the middle of the, yeah, of the presidential campaign. He hasn't announced yet. Of the Pence 2024 campaign, which no, has not been announced yet, but I won't be surprised when it is. Yeah, it's not got a snowball's chance, but he thinks it does for some reason, and he thinks that he'll make more friends. Hey, keep hope alive, right? Come on.

Be positive. Hope. And change or in our growth. right. That's enough of that. All right. We're going to be right back with our, with our final segment. We've got a couple of, like, a spattering of other news stories that have happened. We're going to cover those as soon as we come back. Stick around. We interrupt this program to bring you a special report. Hello, this is Allison Gill.

And I'm Andy McCabe. And we interrupt this program to bring you this breaking news. Chief Judge Barrel Howell has released her December 28th ruling previously under seal, ordering Representative Scott Perry to release the majority of his contested phone communications. Allison, you had just said that the DOJ revealed Judge Howell's reason for denying Perry his motion to keep his phone data secret under the speech and debate clause. And according to the unceiling order released late Friday night, she's decided to unceil a redacted version of her December 28th ruling in part because DOJ revealed that during

Thursday's hearing and because of overwhelming public interest, I should also add that we're gonna go deep on this order that's the December 28th order. It's really interesting and it shows us a lot about the issue, but it's not decisional in terms of whether or not Jack Smith will get a look at this phone data Simply because we now know it's already been appealed that December 28th order was appealed to the DC circuit

That case was argued on Thursday presumably will get a order from them at some point Deciding the issue and either resolving it or teaming it up for yet another appeal Yeah, and that was part of a reason for unceiling was that the circuit court was talking about it publicly. So let's break this down. She states that the Department of Justice used the two step warrant process so that there could be an in-camera review of material potentially covered by this feature debate clause, which also makes me think that some of the other two step warrant processes may have had communications with Congress members in them because it seems to rely on the fact that

those communications happened. And that's why they did this two-step process. So they didn't just all of a sudden get to look at these communications that might be covered by speech or debate. That's right. So basically Perry had to review 10,000 records. And he slow walked this. He was like, you know, lollygagging, delaying the process by months.

So she ordered him to speed it up. And then he came back with a log saying 2,219 documents were protected by the clause. She reviewed them in camera and determined that only 161 of them were protected and that the remaining 2055 or so must be handed over to the Department of Justice. That's right. First, she ruled that most of his communications are actually extra legislative and merely tangential to matters coming before Congress, and therefore not protected by the speech and debate clause.

She cites the Supreme Court case of USV Brewster, a 1972 case that held that a member of Congress may be prosecuted under a criminal statute provided that the government's case does not rely on legislative acts or the motive for legislative acts. So those two references there to legislative acts are motivation for legislative acts kind of framed the courts understanding of the limits of the speech and debate clause. Yeah. And then on page 21 of her 51 page ruling, again, this is the December 28th ruling, she gets to the heart of the matter. It appears that Perry's argument is that he was conducting a fact-finding investigation of election fraud to inform his vote on whether or not to certify the election results on January 6th in that joint session, the one that Pence presided over.

Howl says, quote, a members informal investigative efforts or fact-finding inquiries untethered to a formally sanctioned congressional inquiry remain unprotected. And that's the argument we were just talking about that the DOJ was making in the hearing before it went behind closed doors. Remember we were like, what was the fact finding? Turns out he was fact finding about whether there was election fraud. She says, yeah, sure, the power to investigate falls under legitimate legislative spheres, which is why the January 6th Committee members were protected by speech or debate in the ban in case.

But per Bastion V. Campbell, she says, quote, no Supreme Court opinion, none, no Supreme Court opinion indicates that the speech or debate clause immunity extends to informal information gathering by individual members of Congress. To extend protection to informal information gathering, either personally by a member of Congress or by congressional aides, would be the equivalent

of extending speech or debate clause immunity to debates before local radio stations or rotary clubs. Unquote. Yeah, it's really, it's incredibly clearly written opinion. It's 50 pages, but worth every page of the read. I really like that section before she gets to that punchline of page 21, where she lays out the three categories of basically matters that are not protected by speech and debate clause. And she defines the first one as being conduct that's only tangentially related,

but not necessary or integral to official legislative action. And the examples there are accepting bribes, which I thought was fascinating, or also negotiations that are not legislative acts. The second category is general political activity. So that's like stuff you do for constituents or making appointments with other government agencies or helping someone get a government contract or something like that. All of that stuff, you might think of as part of a member's official duties, but for the speech and debate clause, it's not considered official legislative acts, and therefore it's not covered. And then that final category is the one that she really drives home, which you referred to, and that's members' informal investigative efforts,

the fact-finding inquiries untethered to formally sanctioned congressional inquiries. So that made me think, A.G. like it puts a different light on the Lindsey Graham argument that we remember from a couple months ago and he tried to quash the subpoena from the special grand jury in Georgia. And essentially, Lindsey Graham was essentially found to be able to be considered to be involved in an official fact finding. And that seems to stand in contradiction to what we're hearing from Judge Howell.

And the reason for that is because there is an 11th Circuit decision that says that tangential and casual investigations not sanctioned by the Senate are still protected by the speech and debate clause. So we have a little conflict there between that ruling and what Howell ruled, but howell actually addresses this. She says she thinks that that decision is wrong, first of all, and second of all, it's not binding on her because she is issuing her order in the DC circuit, and there are many cases in the DC circuit that say

the opposite from that 11th circuit hearing. So she's really bound to follow the precedent in her own circuit. Yeah, and that's really interesting too, because it's just this one little part of Eastland that determined that Lindsey Graham didn't have to talk about his election fraud fact-finding questions with Brad Raffinsberger. But the Spear debate clause did not cover his discussions with Raffinsberger about matching signatures on ballots or trying to toss ballots out, so they were kind of splitting the pony there. But yeah, but yeah, she's basically like, look, that's an 11th circuit ruling. I'm not bound by 11th Circuit precedent. I'm in the DC District Court. I'm bound by DC Circuit Court

precedent. There's tons of precedent that says without a legitimate or sanctioned tons of precedent that says without a legitimate or sanctioned fact finding investigation by a legislative body, a committee, or the House or the Senate, you're not protected. That's right. That was an interesting thing. This part might speak to Pence's speech or debate argument. She says the Department of Justice raises no objection that activities integral to Perry's electoral count act vote. That's the January 6th vote or the ECA vote. Yep. They are protected under speech and debate.

So his communications with fellow members about his ECA vote and his ECA vote strategies like you, you know, you object to this state. I'll object to this state. We'll get this senator to sign on to this state. Those are all protected. But not everything a member does is a legislative act and his fact finding doesn't qualify. He communicated with outside so-called private cybersecurity experts. Sounds like Lindell to me. Sounds like the ninjas might be back there. And the funny thing about Lindell is his phone was seized in the two-step warrant process. So that makes sense if he was having communications with Perry about fact finding about election for voter fraud. That's right. Along with Trump lawyers, he spoke to a lot of Trump lawyers and a quote grab bag of others and other topics to determine, quote, whether there were enough unlawful

votes to question the outcome of the election. What is plain is that the clause does not shield Rep Perry's random musings with private individuals, touting an expertise in cybersecurity or political discussions with attorneys from a presidential campaign, or with state legislators, state legislators concerning hearings before them about possible local election fraud or actions they could take to challenge election results in Pennsylvania specifically, because those communications are just casually quote or incidentally related to legislative affairs, but not part of the legislative process itself. Sure, and it's easy to see that, right? Most of that activity that you've, or she's just described there, that's really political activity. It's not relevant to a specific piece of legislation or a legislative function,

like committee oversight or something like that, or you know, budgetary inquiries or what have you. It's straight up, hey, how can you challenge the election results in your own state? And that is in pursuit of a political result, not a legislative one. So, she also says, she rules that while some communications between House members relating to legislative functions are protected, his communications with House staff and members about, quote, alleged election fraud and security concerns in the 2020 election, as well as legal efforts to challenge the results of that election are not privileged because they are purely political

rather than legislative in nature. And that's what we've been saying. Yeah, that's really interesting too. Like, she's withdrawing those communications from being legislative because they're just political. And then finally, we get to his communications with executive branch officials. And this is my favorite. This would include trying to install Jeffrey Clark as attorney general, for example, so that the executive branch could obstruct the electoral vote count. And Perry contends these communications were part of his election fraud fact-finding.

And here's the quote, rep Perry is wrong. None of these communications are protected by the clause. Perry's entire argument would quote, turn the clause's foundational purpose on its head. And what does she mean by that? I tweeted this early out. Like it's like, you know, when I went maddo and I went back to 1661 and the birth

of the whole speech or debate clause. She says that, you know, I mean, and this is truly, truly fascinating to me, like aren't you trying to protect the legislature from a seditious king, right? That communicating with executive branch officials to encourage them to interfere with the legislative act of counting the electoral votes

is akin to a seditious king interfering with the legislative act of counting the electoral votes is akin to a seditious king interfering with the legislative branch, which is exactly what the speech or debate clause is supposed to prevent. I thought that was very, very fascinating. She's like, look, you you can't call up the king and tell him to interfere in your shit and then say it's part of the speech or debate clause that's supposed to protect you from the king interfering in your shit. It's genius. That's absolutely right. And you know, she makes that point, I think, so well.

This is, you know, very clearly, we know this because of not just the fact that it's in the Constitution, but the fact that the speech and debate clause was there was not even any really arguments or negotiations around it or how it would read or what it would include. And then, of course, founders who later ended up on the Supreme Court writing opinions about the interpretation of the speech and debate clause. So it's got a very clear kind of history to it. And the history is that it was made to protect that sort of legislative activity, debates

and negotiations around legislation, and the voting and passing of legislation from the interference with the executive branch. So here you have Perry basically begging the executive branch to interfere with the certification of the election. So yeah, it's really, she's spot on there, I think. Yeah, yeah. It's like you can't help the executive branch interfere with legislative stuff and then claim speech or debate, right? That's right. And then, of course, Grovel comes into this quite a bit too.

And if you remember, Grovel is the one who read the Pentagon papers into the congressional record in order to, you remember, Gravel is the one who read the Pentagon papers into the congressional record in order to get them on the record, right? And she quotes him or she quotes Gravel on this very particular point, right? She says members of Congress are constantly in touch with the executive branch of the government and with administrative agencies. They may cajole and exhort with respect to the administration of a federal statute, but such conduct is not protected legislative activity.

So, yeah, I mean, really interesting, very, very strong opinion for the government here. I think there's obviously a couple of points that, you know, we know just from the coverage of, and of course, you're close watching of the arguments on Thursday, and we know that there did seem to be some strong concerns on the part of the judges in the district court, I'm sorry, in the circuit court. They seem to be, their questions, if they're indicative of anything, could be that they're thinking of it differently than how old did.

So I think just a blanket affirmation of how old's order is probably unlikely in some respect. And also then you have that lingering kind of dissonance between the DC circuit and the 11th circuit on the overall issue of speech and debate, which kind of, which could, depending on how you look at it, make the issue more ripe for Supreme Court intervention if it goes that far. But we'll have to see. Again, we still have a little bit of road to travel on this one. Yeah.

And I think we'll probably get a ruling where it's denied in part and granted in part and if any of the part that is denied is objected to by the Department of Justice, I imagine they will take this on bonk to be heard in front of the entire DC Circuit Court panel, which of course is going to rule in favor of its own precedent. And so I think throughout the circuit court And so I think throughout the circuit court, we'll get an upholding of howls decision, but then it's up to the Supreme Court, whether they want to hear what we know and talk about their determinations in the Eastman case. And just to say whether the 11th circuit got it right or whether the DC circuit got it right or they may just say we don't want to have any part of this. You guys continue to have your own little circuit decisions and follow your own little circuit things. We'll see where it ends up, but that's where it is today.

Excellent. Well, this has been Breaking News, and we now return you to your regularly scheduled programming. Welcome back. Just a few more special counsel news stories this week. First, from Rolling Stone, quote, some of the former president's lawyers have explicitly told Trump that based on information they have privately reviewed, they believe the Department of Justice has a strong case against Corcoran, arguing charges, including potentially for obstruction of justice, are quote, very likely.

So I was stretching that out a little bit there for dramatic effect. I'm sure you picked up on that. But what we're talking about here is whether or not Donald Trump's attorney who was supposedly leading his, I guess, defense, his legal representation over the Mara logo documents issue. And the attorney's name is Evan Quirkren. So what do you think, A.G.? Charges for Mr. Quirkren? Dude's F'd. And he actually might end up being the fall guy for all of this. And that's kind of, just brings me to one quick question about this story.

Well, first of all, you know, a year ago when Christina Bob dropped out as a lawyer and lawyer it up, I was like, Quarkron, you should probably do that too since you wrote that letter. She signed it. But he didn't, and he's still very, you know, resistant to that. He's still on Trump's legal team. He's of witness in the case against Trump and could be in a lot of trouble. But you know, I'm wondering if is it possible that he takes the fall for all this like,

like, can they connect, can Jack Smith connect Trump directly to the obstruction of the subpoena? Or are you going to blame it all on, on Mr. Corcoran there? Will Corcoran take a 20 year max, you know, account of obstruction of justice, 18, title, 18 U.S. code 15, 19, to, to spare his boss? You know, as much as I love the drama behind that ethical dilemma, I don't think I don't think that's possible. And here's why. Corcoran may very well find himself at the point the end of this investigation and facing an indictment. But the question is to whether or not Trump gets charged is really entirely based

on how good is the evidence that Trump was knowingly involved in obstructing justice or retaining national defense information or whatever they decide to proceed on. And it's hard for me to imagine a scenario in which Corcoran admitting his own role in this, the captain of Trump's defense, you know, drafting that letter or affidavit, whatever it was that Christina Bob signed in which they swore they had no more documents and that they had conducted a diligent search

when in fact the government came in a month later and found hundreds more documents. So he yes, he could get in a lot of trouble for doing that, but I don't see how falling on the sword there would absolve Trump. It may be that they can't ever come up with enough strong evidence to charge Trump, but I think those two things are separate, if that makes sense. Yeah, I know that makes sense. Plus we have a publicly reported testimony from the Diet Coke Valley Walt Nauta that Trump himself instructed him to move boxes after the subpoena and that they have video surveillance evidence of that.

So that's pretty strong testimony there as well. Although, although that's from Walt Nada, the K-A, not a good witness, because he lied to the FBI about it the first time. And we've just confirmed that Andy McCabe is in fact a dad, because he made a, Walt Nada more like not a good witness in my right, dad joke, I love it.

I love it. I've been thinking about that for weeks, but anyway, you've been waiting for that. I have been waiting for that. So yeah, he's got issues. You know, you don't want to base your entire case on the testimony of a witness who's going to have to get on the stand and immediately tell the jury that he lied the first time you asked them. That's not ideal.

But nevertheless, they've got the videotapes,, that's not ideal. But nevertheless, they've got the video tapes, they've got the documents. I mean, they were there. They were in very obvious places that if you were Donald Trump or someone using the his office, you would have seen them in the drawer and the closet. And, you know, so anyway, we, but they did subpoena the office of Donald J. Trump and not Trump himself. So I don't know, it would be interesting to see how he tries to weasel his way out of it, which I'm sure he will. All right, also in the news from the Washington Post, newly released documents show how

Republican Mark Bernavich and Arizona publicized an incomplete account of his office's investigation of the 2020 election in Maricopa County. Apparently Bernavich's office kept secret his findings that there was no voter fraud. Andy, if these findings were shared with the Trump campaign, could this be used as yet, as if we needed more evidence that the administration knew that the election hadn't been stolen? Sure. Yes, they could, but, you know, of course, you would have to, you know, the, the, the, the devils in the details here as well. So we'd have to know like if they were shared who actually

received them, who got the email, who opened the email, who read the attachment, all, you know, we'd have to go down to that level of detail. And as you alluded to, it's just one more of many, many indications and witnesses and documents that that show pretty clearly that at the absolute highest levels, people in the Trump campaign, people in the Trump administration, and Trump himself had absolutely every reason to know that there was nothing to these claims of fraud. Yep. All right, what's next on the docket here? And from the New York Times, we now have FEC filings to show the Save America Pack spent $16 million on legal fees for Trump and other witnesses and investigations into Trump.

Honestly, this is one I am not surprised by at all. I mean, there's every time you turn around, there's another lawyer that's actually representing Trump. And it's a tough job. They're getting subheated right and left and getting drawn into court to defend themselves shortly after their representative representation of the former president.

And then you lay around top of that, like the issue that we watch very closely with Cassidy Hutchinson, who was provided an attorney, Stefan Pasantino, from what she referred to as, quote, Trump world. So how many other times has that happened? There certainly have been many, many people subpoenaed in front of the January 6th committee and now all these, the Jack Smith investigations.

So yeah, there's a lot of opportunity for massive attorney fees there. Yeah, and I remember the judge, I'm at Meta in the Oathkeeper's trial requiring the defense counsel to say who's paying them. And I, we never, I think that was all that was filed under seal or handled under seal because I never really got the answer to that question. But we, there was public reporting that it was a Sydney Powell's pack that was paying for a lot of these defense counsel teams, you know, over there, at least on the Oathkeepers and Proud Boys side. So, um, and which, by the way, not illegal unless there's some shady stuff going on, like

some of the things that we saw at least in public reporting with with Pasantino and Hutchinson. Yep. All right. Finally, this is from Hugo Lowell. Uh, he broke this late last night, late breaking. Uh, he's reporting on that box of schedules that contained two documents marked classified. Remember that the low level AIDS scanned into a laptop?

Remember that box? Yeah. Well, we now, like, we're in the world as Carmen Sandiego version of that box because apparently that box was initially kept at a converted bungalow called the tennis house or something at Mar-a-Lago. It was like a guest bungalow that was converted into an office, and that's where it was.

Then it made its way to a GSA-leased office space off site in the Palm Beach area where it stayed for most of 2022, which is why it was not found by law enforcement during the August search of Mar-a-Lago. In September, after the search, the box was moved to Mar-a-Lago in an anti-room outside of Trump's office because I guess Molly Michael left that office vacant and then this low-level aid came in and moved into her office. She was promoted, I guess. Now they called her rotis, by the way, receptionist of the United States in 2022,

yeah, after, way after, he left office. Now, in, no, that was September when she moved into the Mar-a-Lago office. Now, in November, Trump had those two private investigators, searches properties, which is when they found those two other classified documents in that offsite storage facility. But the DOJ conducted a third search of Mar-a-Lago.

No, not the DOJ. The DOJ told Trump that the private investigators needed to conduct a third search of Mar-a-Lago, and they did that in December, which is when they finally found the box. Now, this is the fun part. This is how they found out about the laptop Andy. A few weeks later, DOJ came down,

got that box of documents. A few weeks later, DOJ came down, got that box of documents. A few weeks later, Trump's lawyers were wishing they had more info about what was in that box. Gosh, if we knew what was in that box, we could maybe put a defense together, it would be great to know, at which point, the low-level aid piped up and said, oh, I can tell you exactly what was in the box.

I scanned them all into my laptop. And if Homer Simpson had been in the room, you would have heard, and then have him back slowly into the shrubbery. Oh, yeah. So they were like, oh, shit. And so then they told the DOJ and the DOJ was like, if you don't give us the laptop and the password of that laptop, we're going to subpoena you.

Now, CNN reports they did subpoena the password to the laptop, but the Guardian is reporting that they threatened to subpoena to the laptop. But either way, they got the laptop and the password to the laptop. So what? I don't know that this rises to any level of criminality. It seems pretty banal enough,

but I mean, all that, that because if these were the classified documents that I'm thinking of, then these are schedules and movements of the president, which are no longer classified after the movements happen. And the markings can be real small down at the bottom of the page. So maybe you didn't know, I don't think she knew,

she doesn't seem like she knew. But this kind of recklessness is just sort of par for the course when you take it in totality with everything else, right? But if this were the only spill, they'd be like, all right, get it back and we're done. And we're good. But this is part of a huge, a huge pattern. You know, compare them to the documents that could very well end up getting the former president and any number of his attorneys and trouble.

Those documents were in his office. They were in the storage room. They were the subject allegedly of orders by the former president. Move this here, bring that there, give this back, don't give these back. So there's such a level of intentionality around the movements, the retention, the return, the not return decisions on those documents. This thing is like, like you said, it's kind of, you know, where's Waldo, where's the box, who knows? Somebody without, you know, you never know this, this low level employee

may not have even had any requisite level of training on classified documents. I may not even know what the, what the classification markings mean and how they're supposed to be on. So there's a lot there that doesn't look like it adds much to the overall documents case itself. It's just more another indicator of a very kind of poorly organized and slobably executed. You know, internal administrative process really. And it's probably was no different when they were packing up the West Wing, to be honest. Yeah, I could see it in a, in a totality of evidence narrative, maybe in a speaking indictment of just the general sloppiness and carelessness with which they handle classified information, the unlocked bags that sat on his desk, the phone at the, at Mar-a-Lago

with, you know, President-G, the, you know, just the whole stuff in the toilet, the ripped up stuff at NARA, like just the kind of maybe a narrative of, you suck at this, but let's talk about where it became intentional, and then, you know, you separate that from the crime. When you've got, how, who knows, I can't even keep track of the numbers anymore,

you've got all that stuff down there. And then in January of how, who knows, I can't even keep track of the numbers anymore. You got all that stuff down there. And then in January of 22, I guess, when they decide to return stuff to the National Archives, they sent 15 boxes back and they keep what? Another 15, 20, 30, who knows? And allegedly, according to reporting, Trump had a role in determining what he wanted to keep and what he wanted to give back. That's an unavoidable problem. That is like you decided to retain classified

and or national defense information. That also goes to obstruction. And then even after the subpoena, right? Right, and that's not even getting to the subpoena. And then the turnover of one red- red weld and the affidavit, but not getting any of the red. There are so many levels of obfuscation and obstruction and retention in.

It's, that's why, and I know that people have said this a lot, that there are major differences between the Trump situation and the Biden situation and the Penn situation. But this is what really distinguishes Trump's conduct from the conduct of either Biden or Pence as far as we know right now with what little we know about those investigations. Yeah. And there are going to be some stuff that's found in the Trump sphere that doesn't fall under the umbrella of criminality, the two documents in a tape box that hadn't been

touched since they left DC. That's kind of a kin to the documents that were found in Biden's office, right? That's right. He didn't even know they were there. And that's, you have to show some sort of like an active possession, which is why those commingled non-classified documents in Trump's desk are so important as evidence, and they wanted to get them back from the special master. and Trump's desk are so important as evidence and they wanted to get him back from the special master. And, you know, actually just like, stomp Judge Eileen Cannon on jurisdiction, you know, for future president reasons.

But, you know, I mean, it's just such a different scenario. And I honestly don't think that this box is gonna be anything that they look at criminally, but it was important to get that stuff back. And it also shows that the Department of Justice knows where this stuff is. They were like, no, we're not done. You need to go back down there and do another search.

And that's when they found the box. It's like, did DOJ know that that box was there and how? And cool. And I mean, whenever I saw, like, speaking indictments come out from the Mueller investigation, all of the evidence that they had, it was just beyond just blew my mind, like down to the very granular details of Erased what's that message is like how did you guys get those? That's so friggin cool So I wouldn't be surprised if DOJ knew exactly about where that box was or why you know where it needed to to be turned back over You are well-counseled if you

Always assume that they know more than you know they know and always assume that they know more than you know they know. And we've said it a million times. The first step in any one of these spill cases is recover the material. Don't worry about the prosecution first. Just get the stuff back. National defense information are classified. And they've been very focused on that.

They're not going to let up and trying to get the stuff back. But it doesn't mean that everything they recover is going to lead to a charge. Yeah. Cool. Agreed. Thank you so much. Andrew, this has been a heck of an episode. I also want to give a big thanks to Lisa Rubin, MSNBC Legal Analyst for joining us this week.

It's not, it doesn't slow down. No. I keep thinking, I keep thinking, we'll get it in an hour. We'll get it in an hour and an hour and an hour and an hour and an hour and an hour. We never do. Well, it's been a great week and thanks so much to Lisa. She was awesome and I'm looking forward to doing this again next week. So I am Andrew McCabe.

I'm Allison Gill. We'll see you next week. Season 4 of How We Win Is Here. For the past four years, we've been making history in critical elections all over the country. And last year, we made history again by expanding our majority in the Senate, eating election denying Republicans and crucial state house races, and fighting back a non-existent red wave. But the Maga Republicans who plotted and pardoned the attempted overthrow of our government now control the house. Thanks to gerrymandered maps and repressive anti-voter laws. And the chaotic spectacle we've already seen shows us just how far they will go to

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