Jack - Episode 14 - The Clash

Episode Date: March 5, 2023

This week: DoJ response to Trump’s claims of absolute immunity in civil suits for January 6th; clashes happen between investigators in the FBI and prosecutors in the DOJ including clashes they had in the Trump documents case as reported by the Washington Post this week; plus listener questions.Do 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

Welcome to Teacher Quit Talk, I'm Miss Redacted, and I'm Mrs. Frazzled. Every week we explore the teacher- Exodus to find out what if anything could get these educators back in the classroom. We've all had our moments where we thought, what the hell am I doing here? From burnout to bureaucracy to soul-secing stressors and creative dead ends, from recognizing when it was time to go, to navigating feelings of guilt and regret afterwards, we're here to cut off a gaslighting and get real about what it means to leave teaching. We've got insights from former teachers from all over the country who have seen it all. So get ready to be disturbed and join us on teacher quit talk to laugh through the pain

of the US education system. We'll see you there. I signed in order appointing Jack Smith. And those who say Jack is a veneer. Mr. Smith is a veteran career prosecutor. What law have I given? The events leading up to a finesse. Mr. Smith is a veteran career prosecutor. Wait, what law have I been doing? The events leading up to an on January 6th. Classified documents and other presidential records.

You understand what prison is. Send me to jail. Hey everyone, welcome to episode 14 of Jack. It is Sunday, March 5, 2023. I'm your host, Alison Gill. And I'm Andy McCabe. Today we're going to touch briefly on a DOJ response to Trump's claims of absolute immunity and civil suits for January 6th. And we're going to talk about some of the clashes that can happen between investigators

in the FBI and prosecutors in the DOJ, the clashes that can happen between investigators in the FBI and prosecutors in the DOJ, including clashes they had in the Trump documents case as reported by the Washington Post this week. And before we dive into that, maybe I can touch on that just for a second. So this is something that is very common, that prosecutors on one side of the street and agents on the other side of the street and that street is Pennsylvania Avenue by the way, they don't always see everything in the exact same way. The typical way that this, these conflicts or this tension kind of shows its ugly head is when the agents usually want to push the more aggressive, more forward-leaning, more accessing evidence and witnesses through compulsion, like compulsory process, like search warrants and subpoenas and things like that. And the prosecutors usually argue for

a little bit more subtlety going about things a little, maybe a little more slowly, but getting access to that sort of material through consent agreements. Perfect example of this is the Hillary Clinton email investigation. In that case, we knocked heads about this quite a few times, but it just so happened that in, I think, if I remember correctly, in each instance when there was a computer or an old server

that we needed to get access to to examine, we were able to get access to that material through consent agreements. It didn't actually have to serve search warrants. It wasn't until the very end of the case where we were arguing with Hillary Clinton's defense attorneys about access to one particular laptop that we actually threatened to go forward with the search warrant and then, lo and behold, they agreed to let us examine it. So that's a good example of a case where that happened frequently. The weird difference here, AG, is we're seeing the

exact opposite of that typical fight between DOJ and FBI. According to the reporting, the agents were the ones that we're arguing for, let's slow down, let's take the less controversial, confrontational approach, and the prosecutors were allegedly pushing for, let's go faster and let's demand access. Yeah, and let's just start by letting me read the lead

from the Washington Post. Months of disputes between Justice Department prosecutors and FBI agents over how to best try to recover classified documents from Donald Trump's Moral Alogo Club in residence led to a tense showdown, quote unquote, near the end of July last year, according to four people, four people familiar with the discussions. And we should talk a little bit about the folks that are writing this article because

people who listen to the daily beans and Jack and clean up on off 45, some of my other podcasts to know that I can sometimes take a bridge with Devlin Barrett's reporting. But Carolinic is also on this story, and there are a couple of other contributors to this piece as well, and they include, let me look at it, the byline here, Perry Stein and Aaron Davis. But there are some, we're going to go through the points of this article. But there is Andy a little bit of Devlin Barrett Flair, very apparent in this article, wouldn't you agree? Yeah, absolutely. And I certainly have, well, I have my own concerns about Devlin Barrett. Most of them are based on some really negative interactions that I had with him years ago.

So I won't bore our listeners with going through that whole story again. But let me just say that it's been my experience with him that Devlin has, I think he has a tendency to really enhance the most Newsy or kind of hysterical aspect of a story by really kind of, you know, portraying things in one way rather than a balanced way. And so that's always something, we've talked before on this podcast about always consider your sources, always keep in the back of your mind

who you're when you're reading a piece, who wrote it, what sort of experiences have you had with them and their pieces in the past. So that, I think that's just a good cautionary note in really going deep on this article. Yeah, and one of the first things I noticed is that the article repeatedly referred to the legally executed search warrant

of August 8th on Mar-a-Lago as a raid. Now, generally, when we speak colloquially about these things, like they raided Rudy Giuliani's house, they raided Mar-a-Lago, da-da-da. But I think it's very important to note that this is not a raid, and that use of that term was brought up in hearings before the 11th Circuit,

where Trump's lawyers continually referred to it as a raid, where the judges in the 11th Circuit, the very conservative judges in the 11th Circuit, the very conservative judges in the 11th Circuit, were like, you should probably stop saying that. And he continued to use that word, and then apologized again. It was almost like one of those, you know, oh, well, with drama, comment,

your honor, you know, type of a situation. So I did notice that repeatedly, it's referred to as a raid throughout this article. But there are some interesting and important breaking news in here that first of all they talk about the subpoena that went out in May of last year and that we learned through this article that in early spring the Department of Justice prosecutors wanted to do a surprise search of Mara Lago. But because of the FBI officials, there were two FBI officials, and we'll talk about them in a second, because of some pushback, they

said, let's do a subpoena first. And let's try to do this in a less combative way. You know, and I, on one hand, I don't think optics should be considered when we make these kinds of judgment calls, particularly when we would do it differently for a former president than we would for any, like Patreus, for example, any other government official. But also, I just don't, I think that's politicizing really what you're trying to depoliticize most of all when these when these really sort of sensitive types of searches come up. So that was a very interesting bit. And I think in the end, it turns out that that subpoena now has added a layer of due process that makes the crime of obstruction almost unimpeachable here, you

know, that from a DOJ perspective, from a prosecution perspective, meaning, look, we went through NARA dealt with them for 16 months on a friendly basis, then the FBI, then we did a subpoena, then we got surveillance tape. It's just, it sort of adds a layer of due process. Do you agree? I do agree. And in this case, that kind of course of dealing, as they say in contract law, of this escalation of means to try to recover sensitive, classified documents, I think really goes to the adds to the strength of the case now. But let's remember, long time, a lot of reach out by NARA to try to get this stuff back. Finally, they get back 15 boxes in January. They look at it, they immediately realize there's reason to believe that there's more down at Mar-a-Lago. And then in April, the Trump lawyers go to court to try to block the FBI's

ability to review the documents that have already been given back to NARA. So it's at that point that DOJ realizes, holy cow, we got a problem on our hands. This is a very aggressive move to make. It's like legally nonsensical in my mind, but an aggressive move to make and indicates that they may be trying to hide things from DOJ and from the FBI. So that's why the prosecutors immediately start thinking in April and May, we need to go in there with a search warrant on no notice to recover national security material that

might still be on that premises. And it is with that kind of understanding of the brewing hostility between the two sides that the FBI starts cautioning, wait, wait, let's use this a peon of first. So again, not an unreasonable thing for the FBI to caution about. And I think in the long run, it probably plays to the strength of the case, so not a bad thing. But boy, it continues to go a bit off the rails from there. Right. Because when we get to this confrontation in July that we're gonna talk about in a second, in a meeting with the head of the FBI Washington field office

and some of the top DOJ officials for NATSEC and another counter-intel, et cetera, where Jay Bratt says during this thing that they are very concerned that sensitive docs were still at Mar-a-Lago, and that they could, quote, be destroyed or spirited away if they didn't act soon. And so they started feeling that pressure back in May in the spring, and then in June when they executed the search warrant, and then as they continued to get more evidence, because apparently what happened here was the FBI was saying, Hey, why don't

we just work cooperatively with Trump's lawyers? They signed a thing saying everything got handed over. We tend to believe them, right? The FBI agents who spoke to Devlin Barrett, you know, these sources said that the FBI tended to believe that the Trump lawyers and the DOJ prosecutors were like, we don't. And, uh, and so, you know, we are good at, you know, we're going to make moves based on what we think versus what you think.

And apparently that's what sort of fueled this confrontation about whether or not to have a surprise search, whereas the FBI wanted to sort of go in. Let's talk about the FBI Washington field office guy, because his suggestion was, he basically said, if you want a surprise search warrant, you're going to have to order me to do it, because I want to do it more cooperatively, is sort of what the feeling I'm getting here. That's a really provocative thing to say in a meeting like this to just, you know, put your foot down and say, I'm not going to, I will, I so disagree with what you're proposing that I will

not do it unless directly ordered to do so by my own superiors. And, you know, again, this is as reported by apparently two people said that to Devlin Barrett or the authors of this piece as it appears here. Other people kind of, I guess caution that he didn't take quite such a strident position. It's really, really fascinating. That does not, I mean, as kind of heated as some of these discussions get, you know, we all understand that we're all operating on the same footing and that what we're talking about doing

is entirely lawful options. And so to say, absolutely, I'm not gonna do it. You're suggesting almost carries with it the suggestion that you are telling me to do something that I think is improper or unauthorized or what have you, which is really pretty dramatic. I think we should also point out here, Allison, that according to the article, the bureau was willing to accept the way they were treated by the Trump's attorneys when they went

down in May, served the subpoena, and of course, we're allegedly handed a small envelope full of some classified documents. And also at that time, they were shown the storage room in the basement or wherever that is, where boxes of records were kept. But as we know from the reporting at that time, they were not allowed to go into the room and examine the contents of any of those boxes. So with that fact, which they didn't have in this article, I think it puts that's the FBI's willingness to accept what the Trump attorneys had basically given them

on that day is really curious to me, because coming away from that exchange, if Trump's attorneys were being so forthcoming and honest and you had faith in the search they had done, and then they show you a room filled with boxes of other records that they very, very adamantly will not let you look at. They won't let you open the boxes and when you let you take a sample, I don't know about you, but I come away from that thinking, okay, there's more here.

They're clearly hiding something. And so it makes the FBI's willingness to accept those representations from Trump's attorneys, even I think more questionable under the circumstances. But you know, at least the circumstances that we are hearing about in this article. Yeah, and it seems, you know, along these timelines here, though, that the DROJ, the prosecutors were like, no, we, you shouldn't trust these Trump lawyers. Just take our word for it. Let's go in and try to get more evidence.

And then they did. They got the subpoena for the surveillance footage. They got some of the testimony, witness testimony from, you know, Walt Notta, for example, who, not a good witness, I think was the joke. You may have lost it. You're taking me right back to dad joke, man. I'm so satisfied with that. I'm just so proud of myself. It was very good. We named the whole episode that just for you. But, you know, that whole sort of idea,

and then, you know, of course, it sort of became, well, let's make an agreement. We'll go in, we won't notify them, but we want to do it when Trump isn't there, and we want to do it in khakis and polos, and we want to do it when Trump isn't there, and we want to do it in khakis and polos, and we want to give the Secret Service a couple hours heads up, and there was an agreement to go in.

So, you know, it was resolved, and they went in, but I think the thing that bothers me the most about this article, and we should talk about this because it's the, when they talk about, when the FBI, you know, from the sources talks about the optics of going into a former president's home, meaning we should treat a former president differently than we would treat anyone else. And that is something that I don't think

is a good way to look at stuff. But, you know, there's, you know, FBI is gonna be able to look at stuff, but there's, you know, FBI is going to be able to have candid conversations about this, but this is the product of people being afraid of ending up like what happened to you. Yeah, yeah, absolutely. So this like hits on what I think is the most significant part

of this, and we know this from a bunch of different statements in the article. You know, there were references to the fact that FBI agents were concerned about political backlash. They were concerned about, you know, doing anything that might lead to a OIG investigation or congressional oversight. They talk about the Crossfire Hurricane hangover syndrome, right? That this kind of black cloud of suspicion and attacks that the FBI has sustained since the Crossfire Hurricane investigation. And, you know, for the last several years, I've been really worried that I hope, I hope, and I trust that they're not doing this, but I hope

that my former colleagues are not becoming cowed by that, by the horrible way that so many of us were treated by the former administration and people on the hill and many, many whom are still there, you just hope that they aren't pulling back from the aggressive forward leaning edge that the FBI typically occupies because they're afraid of the backlash, personally and professionally. So this story really highlights that in I think a very concerning way.

And you know, Allison, I've always maintained and I felt very strongly this way back in 2016 and 2017 really, when making decisions after Jim Comey got fired, deciding to open up the individual case on Donald Trump, deciding to really kind of, you know, pressure, Rod Rosenstein to point a special counsel. You know, my feeling at that time was,

we knew that there would be lots of negatives feedback and backlash, whatever you want to call it, on us for taking these steps. But I felt very strongly that it was our obligation to investigate the concerning information that had come our way about possible national security threats and possible criminal activity. When you decide not to investigate, well, let me back up, when you, the decision to investigate a political figure is not politicizing your work.

In the FBI, that's part of your job, that's part of your jurisdiction, public corruption. You have to, and sometimes, under some circumstances, investigate political people. That doesn't make your work political. What makes your work political is making decisions about how you're going to work those cases or how you're not going to work them because you're afraid of political fallout and political feedback. That, to me, is injecting politics into the way you do your work.

And I don't think that's advisable or acceptable under any circumstances. You have to be prepared to go forward to the full extent of your authority and the laws that you are investigating and not be worried. You know, they always say without fear or favor. It's really true. You got to put those concerns aside and be willing to accept you know the tough times that can come as a result of it. Nobody likes that, but at the highest level positions in the FBI, you better believe and you better be willing to get fired for doing your job well if that's the price of doing your job well.

Yeah, and that's why I push back on a lot of people who criticize Merrick Garland for appointing a special counsel saying that that is politicizing. The act of not wanting to look political is inherently politicization. Yeah, I disagree. I think politicization is when you're looking

at the Washington field office FBI head guy saying, I don't like the optics of going in to a former president's home. That is politicizing, I think, by lacking to, you know, by not wanting to do something. Although, you know, we can explain it with the crossfire hurricane hangover. But for those brave people who went ahead with crossfire hurricane, despite that sort of backlash and knowing that it was coming, you know, hats off. That's that's hero shit right there. But with regards to, I mean, with regards to special

count, yeah, it's doing your job. It's your new job. But with regard to special counsel Jack Smith, I don't think you could say that he's avoiding politicization by pulling back, by appointing somebody who's the head of the former head of the pin, the public integrity unit, which is dedicated to investigating political, highly sensitive political shit. So I just wanted to kind of bring that up.

I think that there's a bring that up. I think that there's a huge difference there. Yeah, absolutely. I mean, that's what the special council regulations are for, right? It's like you acknowledge that you're the investigation, if you're the IG, you acknowledge the investigation you're doing is has an unavoidably political you know, side to it. You're investigating a political figure. And so you bring in a special council simply to convey to the American people that you are doing this in the most independent way possible. So it's really, it's really to commune. It's not because a current U.S. attorney couldn't do that investigation. It's because you're trying to communicate like, hey, we're doing everything we

possibly can to distance this investigation from the AG. And let's, let me hit one more point here before we move on. I want to be perfectly clear, the end of the day, those FBI agents went into Mar-a-Lago and the people who had to approve that, approved it and were willing to take whatever comes of it. And so my hat is off to them. They, at the end of the day,

no matter what happened in this meeting, no matter how accurate or close this reporting is to the conversations that actually took place, they did what they needed to do and they're moving forward with this case. It's now in the right hands. So my hat is off to them. It's they're gonna have to weather a storm.

As a result of it, they're in the middle of a storm. Now, they've already been accused of planting evidence, which is absolutely ridiculous. I have no concern whatsoever that that happened. That's just a standard Donald Trump defensive posture. But yeah, it's already started for them. Now, they're dealing with this house judiciary, special select committee to investigate the weaponization

of the FBI. I mean, here you go, boys, this is exactly what you were worried about, but you know what? You did the right thing and that's all that matters. Yeah, and that committee is just a laughing stock, so don't worry. Yeah. The last bit of news that I caught from this article was that they said that Jay Bratt, by the way, who's, you know, Natsec, DOJ, in late fall, October, he and his team began sketching out evidence of obstruction of justice with the understanding they were ready to make a charging decision at that point after the, you know, after the search and everything went down.

And that, of course, is when Merrick Garland came in and said, look, fellas, I'm thinking of appointing a special counsel here because Donald Trump's about to announce for president, and he's running against the guy who appointed me. So now, all of that, that outline, there might have been potential prosecution memos drafts written up for obstruction of justice in the documents case.

All of that is in Jack Smith's hands now, who's been very aggressive about, you know, with his contempt stuff, with questioning the two PIs who searched everything, getting a compelling order to hand over their names to, you know, even most recently, trying to assert a crime fraud over attorney client privilege for Corcoran's testimony. So very aggressively going after this case from what Jay Bratt was able to put together before the special counsel was named. So, and that's what we're doing here.

Yeah, that's absolutely right. You know, the meetings you have, Assistant A.G. Olson, who's the head of the National Security Division, you have Jay Bratt, who's the guy that's in charge overlooking this case specifically. You also have George Toscus, who is a long time attorney in the National Security Division at DOJ, and a total veteran. Somebody's been there for a long enough that he's very highly respected by agents and prosecutors alike.

I can only imagine what that meeting was like at DOJ kind of surprises me that Paula Bate, who's the current deputy director, wasn't involved. I know that one of the decisions went to him after the fact because he wasn't there. But this is a, you know, a powwow at that level over an issue as controversial as this. That sounds like it was a pretty intense moment.

I know all these folks, I know Steve Deantilano, Steve kind of comes from more of an Intel background inside the FBI. And, you know, like I said, at the end of the day, I think they did the right thing. It's a little concerning that they were so reticent to move forward aggressively. And I wonder and worry about the reasons for that. But also, you know, anytime

I see these accounts in the media of literally specific comments in a particular that were allegedly made in a particular meeting between, you know, over an issue like this, I was wonder like, who is sharing this stuff with the Devon and Barrett or anybody else? And the answer to that question is usually the same person who stands to benefit from this version of these events coming out in the paper. So this story does not really shed a lot of glory on the FBI. It does make the Department of Justice look very good. So you have to again question your sources and wonder like, what was the motivation behind putting this thing out in the press, which would normally, you know, you're not, you're not supposed to share details from private meetings like this with the

With the media, but it clearly happened here from multiple people According to the authors, which is a little concerning. Yeah, and that will remain unknown That's right as we go forward, so that's right All right, well, we'll be right back. We're gonna take a quick break and when we come back we're gonna talk a little bit All right, well, we'll be right back. We're going to take a quick break. And when we come back, we're going to talk a little bit about some more Department of Justice news about whether Donald can be sued civilly, which

isn't really in the purview of Jack Smith's investigations. But there are footnote about criminal men's raya in this particular filing is. So we'll talk about that. And then we're going to answer some list of questions, too. So everybody stick around. We'll be right back. They might be giants have been on the road for too long, too long, and they might be giants aren't even sorry, not even sorry. And audiences like the shows too much, too much.

And now they might be giants who are playing their breakthrough album, FLEU, and they still have time for other songs. They're fooling around. Who can stop? They might be giants and their liberal rocket gender. Who? No one. Disadvantaged pay for with somebody else's money. 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 soon to everywhere you get podcasts,

as well as YouTube. Welcome back. We have some other news from the DOJ about whether Donald has immunity in civil cases, but also a footnote about how that claim of immunity might impact the special counsel's criminal investigation into the former president for the attack on the Capitol on January 6. Yeah, yeah, that's right. Now you'll remember last week, Andy, we reported that it appeared Jack Smith was not only investigating the documents, not only investigating obstruction, not only investigating the fraudulent electors scheme, was not only investigating the documents, not only investigating obstruction, not only investigating the fraudulent electors scheme, and not only investigating the finance

part, right, the wire fraud case for possible defrauding donors, right, wire fraud for the big lie. But also the jacksmith appears now to be investigating Trump's role in the physical attack on the capital. Now separately, in the civil lawsuits filed by Capitol police officers in blashing game, V Donald Trump, and members of Congress in like, swallwell, V Donald Trump, many Thompson also had a civil suit against Donald Trump, but withdrew that suit when he became chair of the one sixth committee. All of the, all of these different

suits, civil cases, right, looking for, looking for damages from Donald Trump, the courts actually asked the Department of Justice to weigh in on whether Donald enjoyed absolute immunity from civil lawsuits as the former president. And DOJ was loathed to do this. They're like, okay, give us till February 17th, okay, give us till, well, January 17th and February 21st, okay,

make it March 2nd. They did not want to really weigh on on this, but they ended up doing it. Yeah, they did. They ended up coming in and saying in essence that Trump does not enjoy absolute immunity from civil suits. Now, that is not relevant for the criminal prosecution, but DOJ did mention the criminal liability in one of the footnotes. Yep.

And it's footnote number one. And it says, the absolute immunity issue in this appeal concerns only a president's liability in private suit for damages. In addressing that question, the United States does not express any of you regarding the potential criminal liability of any person for the events of January 6th or acts connected with those events. The government also expresses no view on any other issues decided by the district court, including where plaintiffs have stated a valid claim for relief under Title 42, US Code 1985, Section Section 1 or any

other cause of action. And basically that's the DOJ saying, you can sue Trump, but we aren't saying you have a valid claim. That's 42 US Code 1985. That's what allows you to sue civilly for. That's right. So, dishes conspiracy. We're not saying you have a valid claim.

We're just saying that you can. You can sue him. And we aren't telling you whether or not we think it can be indicted for it or anybody can be indicted for anything that happened on January 6th. That's right. And we'll cover this in depth on the Cleanup file on aisle 45 pod next week, because it mostly deals with civil claims,

not the criminal liability, which is the special counsel's part. But we wanted to point that footnote out about criminal liability. Yeah, I think it's important because they really went out of their way to make it clear that they weren't putting any kind of obstacle in the path between Donald Trump and a potential indictment.

So definitely relevant for our audience on that ground. So I'm glad we were able to squeeze that in. Yeah, yeah, it's very, very cool too. And you know, I mean, I just, I thought it was, I was expecting this to be the decision because they basically said, look, you can't incite an insurrection and call it part of your job as president, which is what sort of they were hinting at when they came in and weighed in on the Mo Brooks certification for civil suit, right? Mo Brooks wanted the Department of Justice to represent him in people suing him for his incitation of the insurrection on January 6th, and they came in and said, first of all,

you were campaigning, bro. So that's not covered by your job. But then even if the court disagrees with our finding that you were campaigning, you can't overthrowing the government cannot be part of your job in the government. And nor, and they said, and that is also true for any federal employee. And I was like, that is a shout out to Donald Trump right there.

You certainly could be. Now we have the official, you know, odd for civil suits only though. I like how they were like, I know any other claims, nothing criminal about anything for anyone that ever happened in the history of the universe, just this very narrow thing that we're weighing in on. You can hear there, you know, that they were just not want to do this, but you can hear it in their voices.

But that is their decision. So. Yeah. but you can hear it in their voices, but that is their decision. So yeah. And it all comes down, it all comes from that determination of scope of duties, right? If you are being sued, even after you've left your position, I've been in this situation, been sued by people for all kinds of crazy allegations about things that happened when I was deputy director,

and you can go to the department of justice and say, hey, I'm being sued for things that I did within the scope of my authority, within the scope of my duties, you know, you, DOJ, should represent me. And of course, if they do, then you get good representation for no cost. Each one of those decisions is very individual,

though they have this kind of catch all ability to deny your request if they believe it is not in the interests of government. Which is why I'm still surprised they took the EG and Carol case at all. That was really controversial. People are still kind of scratching their heads over it, but I think, you know, they thought that there was some sort of piece of presidential authority that they were trying to defend there, which I far be it for me to understand exactly what that was, but that was likely what was behind their decision. But in any case, it's always they have a lot of

discretion to make these calls. And you kind of as the person asking, you know, in the Mo Brooks example, as Mo Brooks, you just kind of stuck with the answer they give you. So interesting to see how those play out. Yeah, and I think a lot of that also had to do with decisions that were made by Barr, by previous Department of Justice, that probably this Department of Justice was reluctant to overturn. I guess in not wanting to give itself a black eye, I don't agree with that. If something is wrong, I think it should be overturned, but that's just me. By the way, Andrew, we just got some breaking news coming in from the Washington Post. We should cover federal prosecutors, Jack Smith, investigating efforts to overturn the election,

have asked witnesses extensive questions about the actions of Rudy Giuliani, including where he got his information about alleged fraud, what he did in the days leading up to January 6th, and what he knew about the actions coming that day. That is according to people who have appeared in front of the federal grand jury. So that is some, you know, I guess some people coming forward talking about what they've been asked in the federal grand jury by Jack Smith. This, we've talked about a couple times, AG, the prosecutors and the grand jurors are all bound

by courtroom 6E, which requires everything that's said in the grand jury to be maintained secret and not leaked. The only person not bound by that is the witness. So witnesses can come out and tell their lawyers or anybody else, reporters or whoever, what sort of questions they were asked. Now these questions about Rudy are totally predictable, right? Of course they would ask those questions.

It is, and this, a lot of this refers back to the essence of that potential fraud. You knew these claims of a stolen election were baseless. You knew there was nothing to this and yet you went out there and sold them like you believed it. You made money off of that. You tried to overturn the results of the election. That would be fraud against the government. making money off of it, could be fraud against people who contributed those funds. So, it really is a central piece of many of these investigations. Yep. And then, of course, we know in the documents case, Trump lawyers are under scrutiny.

The headline here is the 2024 race begins, special counsel advances with a focus on Trump's lawyers. So, we've got the Rudy Giuliani and the one six stuff. And then in the documents case, we've got Corcoran, Christina Bob, but now Alina Haba, Epstein, you know, I mean, you name the lawyer. Everybody but Chris Kies and Jim trusty, I think, have been dragged in and asked questions. So these guys should be getting hazard pay at this point. That's what it should be. There should be a retainer plus establishing a defense fund for yourself if you decide to represent Donald Trump. Yeah.

And that's exactly why Chris Kies was like, you're going to need to give me $3 million cash up front. And then we can have a chat. Then we'll talk. All right. So what kind of listener questions do we have this week? By the way, we're moving the listener questions portion of the show to the end of the show. So we can maybe, if we have additional time, we can answer more questions. I thought that that would be a more,

you know, Andrew and I we talked about it. We thought it'd be a more flexible way to get in some more listener queries. So what do we have this week, sir? There you go. So I've got two for you. Both of these are pretty quick. So I think but I think they hit on good issues that I think most people are wondering about. So the first one is from Bill. And Bill says, will immunity granted to witnesses by the Georgia prosecutors carry over to a potential federal prosecution? Thanks for that, Bill. And it really cuts at a kind of long-known legal theory, which is like the two sovereigns theory. And it's kind of the same reason. It gets back to, I think we had a discussion about this in the context of double jeopardy. So, in double jeopardy,

if you are placed in jeopardy, put on trial for an offense by the federal courts, a state court can still come in and put you on trial for the same thing. There is no double jeopardy because those two governments are separate sovereigns and they're the acts of one, don't bar the acts of another. The same would be true here. So if the federal prosecutors wanted you to testify

as a witness and maybe if they end up inditing Rudy Giuliani or Donald Trump or any of these other people who were allegedly the subjects of that special grand jury investigation, if they wanted you to testify as a witness and they were willing to give you immunity and return for your testimony, that would not stop the federal government from coming after you as a defendant in a criminal matter. So, what about civil suits? What if somebody was given immunity

to testify in a civil suit? Because we've seen this happen where that testimony can kind of or a congressional immunity, for example, we're looking at a wrong counter. I'm thinking, this is because they can, that can impact those other federal sorts of immunity, congressional federal immunity and civil federal immunity,

immunity can actually make it difficult to get those answers in front of a grand jury, but state not so much. Yeah, so those two examples are in contra and maybe a federal civil case because that's all has to do with the federal government. There are aspects to the granting immunity that might bar certain actions in, you know, if you were granted immunity in a civil case that might have an impact on future criminal prosecutions.

Now, this, I'm being pretty general about this. There are different types of immunity that you can get. There are different scopes of immunity get. There's transactional immunity, all kinds of different immunity. So it's not a very, limited use, very fact specific determination, but across different governments, state to federal, you don't have the sorts of obstacles.

All right, cool. All right. I think we have time for one more. Let's go one more. And this is a good one just because I like her choice of words here. This one comes to us from Bethany and Bethany says, what are the odds that Sean Hannity, Laura Angrom, Tucker Carlson and the other slime balls at Fox News get subpoenaed by Jack Smith. Okay, slime balls is her word choice, but you know, mad respect. That's kind.

You know, that's a very kind. This is going to be slime balls a lot, but it's, it's vivid. So what are the odds that the other, any other slime balls, if Fox News gets subpoenaed by Jack Smith following news from the dominion lawsuit that Fox News coordinated with the White House and lied about the election. Bethany, you're probably not going to like my answer. I think the odds of them getting subpoenaed for that sort of stuff are pretty low because even though they're comments or the fact that they put people like Mike Lindell on their show and let them spout off things that they all apparently knew or false, even though

that might lead to some civil liability in the dominion case, it's unlikely that it would be connected to, you know, evidential information in the criminal case. And also, they're, you know, they're, the federal government is really kind of careful about not going after reporters for anything that they do in the context of their reporting function. And like what they refer to as legitimate news gathering activities. Now, okay, I know everybody sit down. I know if you're jumping out of your seats and spilling your coffee as I'm referring to Laura Angrom and Tucker Carlson

has engaged in legitimate news gathering activity. But yes, that's what they do, even if you don't approve of the way they go about it. So I find it to be unlikely that they would be subpoenaed. Now, if for some reason the government came across information that, let's say, Sean Hannity had a particular private conversation with Donald Trump, the substance of which Jack Smith believes might lead to relevant evidence in the criminal case. That's the sort of thing that in this example, Sean Hannity could be looking at a subpoena for, but not so much the things that say on TV. That's what I was thinking.

Any evidence that could be relevant to, again, proving that Donald Trump defrauded donors because he knowingly lied to them about their being election fraud. If there are any communications with Fox News that can add to that totality of the evidence because we already have 800 people telling him that there was no fraud. We already have the Berkeley research firm after doing a thorough investigation telling him that there was no fraud. We already have the Berkeley research firm after doing a thorough investigation telling him that there's no fraud. Now we've got Fox News admitting to each other that there was no fraud. But that's sort of irrelevant to the Trump case unless there was communications with it directly or indirectly, you'd have to prove indirectly, became directly with Donald Trump about

the fey. We know that you lost the election or that they acknowledged that he did. But yeah, that's a really good question. You know, because I would like to see, but I think they're gonna have to pay a pretty hefty dollar amount, pursue it to this dominion defamation case. So they're not totally off the hook. It's a fascinating case.

The revelations over the last two weeks have been amazing. And these cases are so, so rare, so hard to prove. It's so hard to go after a news organization for defamation. But man, this might be the case that gets over the hurdle. It's looking stronger than anyone, certainly I've ever seen. So we'll see. Yeah, we'll definitely see. All right. Thank you so much for listening to Jack at the podcast. We appreciate you. Appreciate the patrons. We appreciate everybody who's listening and get this podcast free wherever you get your

podcasts. We will be back next week with whatever news they throw at us between now and then with regard to the special counsel investigation. Do you have any final thoughts before we get out of here? No, it's been a good week and I look forward to talking to you next week about whatever comes out of this investigation between now and then. Yeah, totally. And if you have any questions you want to send to us, you could send them to hello at mullersherote.com and put Jack in the subject line and we will answer

your questions. We look forward to it. So until next week, I've been Allison Gil. And I'm been Allison Gil. And I'm Andy McCabe. And this is Jack. Hi, I'm Dan Dunn, host of What We're Drinking With Dan Dunn, the most wildly entertaining adult beverage-themed podcast in the history of the medium. That's right, the boozy best of the best, baby! And we have the cool celebrity promos to prove it. Check this out!

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