Jack - Episode 16 - The Ted Cruz Of Pickleball

Episode Date: March 19, 2023

This week: Allison and Andy new chief judge for the DC District Court that will be overseeing Jack Smith’s Grand Juries; some new insights on trump lawyers Boris Epshteyn & Evan Corcoran; plus listener questions. Do you have questions about the cases and investigations? Click here: https://formfaca.de/sm/PTk_BSogJ Follow the Podcast on Apple Podcasts:https://apple.co/3BoVRhN Check out other MSW Media podcastshttps://mswmedia.com/shows/ Follow AG on Twitter:Dr. Allison Gill https://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspod Andrew McCabe isn’t on Twitter, but you can buy his book The Threathttps://www.amazon.com/Threat-Protects-America-Terror-Trump-ebook/dp/B07HFMYQPG We would like to know more about our listeners. Please participate in this brief surveyhttp://survey.podtrac.com/start-survey.aspx?pubid=BffJOlI7qQcF&ver=short This 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

I signed in order appointing Jack Smith. And those who say Jack is a finesse. Mr. Smith is a veteran career prosecutor. Wait, 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 16 of Jack, the podcast about all things special counsel. It is Sunday, March 19th and I'm your host, Andy McCabe. And before I turn it over to my intrepid co-host, I just want to throw one shout out to my nephew and his wonderful wife who are literally in the hospital right now, Allison, having their third child. And I'm told they have decided if that child is a male child, it will be named Jack. Excellent. After Jack Smith or just... You know, I'm hoping... I'm going to tell myself that that's why they have the name Jack.

So I'm not going to ask because I want to be able to maintain that illusion. Well, Jack seems to have left an indelible mark over at the International Criminal Court. We got a warrant for Putin this morning issued by the Hague. And so that's fascinating. And the charges are legit. These are war crimes. I mean, I wasn't expecting that this soon or from that body, to be honest. So.

No, and but let's say, you know, who knows? Maybe working with Jack Smith for a while, those guys figured out how to go out on a ledge and swing for the fence. That's, again, that's how I'm going to think about it. I can't prove that, but that's what I like to think. Yeah, we're just going to say that that's real. And hello, I'm Allison Gill.

By the way, this week, we're about to get a new chief judge for the DC District Court that will be overseeing Jack Smith's grand juries. We have some new insights on Trump lawyer Boris Epstein, your favorite guy. And of course Evan Corcoran too. But Andy, let's kick this off with our new DC District Court chief judge James Boesberg. Thanks to reporting from Zoe Tillman at Bloomberg.

So this guy is an Obama appointee. He was sworn in Friday, March 17th. And these chief judges serve seven-year terms. He'll be taking over from, as we know, well by now, Chief Judge Barrel Howell. And she's not retiring. She's just no longer the chief judge. She's going to go back to being a non-chief DC District Court judge. So I may be helpful for our listeners to understand how that works. Every district court around the country has one of their district court judges becomes the chief judge and is kind of the king of all judges in that courthouse.

They do a number of things. Definitely, they can still sit and preside over federal trials, criminal and civil, just like any other judge, but they have other administrative responsibilities. They typically oversee the assignment process, so however, that courthouse hands out cases to judges and magistrate judges, they're in charge of all that. And as we know from the experience in DC, the chief judge presides over all disputes coming out of the grand jury process. The vast majority of grand juries don't have many disputes.

Grand jurors are presented with evidence and they vote to indict or not to indict a subject with a crime. And it just goes on from there. But as we know, with these wonderful cases, we've been following, it seems like everything, every subpoena, every hearing, or at least the most significant ones end up in some sort of a dispute over privilege or other sorts of things, and those issues end up on the desk of the chief judge. Yep. And Bozberg, a little more about Bozberg here. He was appointed by Obama in 2011.

He was confirmed 96 to nothing in the Senate. This is back when we used to just confirm judges. Right. He's been a judge for more than two decades. He goes by Jeb, case you're wondering. Who knew? That I did not know about him. Jeb Boesberg, former federal prosecutor, by the way, served as a presiding judge on the Fisk.

So he has experience handling secret court proceedings. Tell us, remind us what the Fisk is. Andy, I don't know, have you ever worked with anything? I've heard of it before. The FISK is, of course, the foreign intelligence surveillance court. That is a small group of judges. They're picked from around the country, and they serve on the FISA court,

the foreign intelligence surveillance court. And they basically decide whether or not the federal government will get warrants to conduct electronic surveillance in national security cases. So he was on the fests, very familiar with that process, with dealing with very sensitive, highly classified evidence. So that's a great experience for a chief Judge to have. I'm assuming he didn't preside over the Fisk during the Trump era in 2016, lest he would need to recuse himself. I would imagine from from any Trump things. I don't know. I'm guessing there. And also, I don't know if they choose the chief, like how the next chief judge

is chosen. I don't know if it's seniority. It seems like seniority because they're kind of going down the order of when these folks were appointed. Or if there are considerations about, well, 98% of the shit you're going to see is going to be from Trump cases. So if you had anything to do with Trump before or maybe not, but also even if he had presided over the Fisk, I don't know that that would necessarily be a conflict of interest in any of this, you know what I mean? Yeah, so a couple of things there. I'm not 100% sure of everything that's considered

in the appointment process, seniority certainly part of it, but also general kind of health and ability, like some of the most senior judges in any courthouse are, sometimes we have really been at it for a long time and they some of them handle reduced loads, so you wouldn't want that in your chief judge. As far as substantive recusal issues, I would doubt that that's considered because they don't like to look into the future and predict what sort of cases may show up. And also, there is of course, no one, there's no elements of recusal for federal judges that are required. It's entirely up to every judge

to make that decision in each individual case. That's something that's I think think, thought about by a lot of people is something that might need to change, but nevertheless, that's the situation we're in. And then finally, I don't think that his Pfizer experience would be much of a bar to presiding over cases that impact on the form of president. You know, as we know, from the public information, there was only one series, one Pfizer, renewed three times, that had really anything to do with Trump and the Trump campaign in 2016. And that was, of course, the Carter Page Pfizer.

I just, I can't see how anything that he saw or heard in the course of those applications, if in fact he was involved in them and I do not know that he was. I can't see how that would be a recusal sort of issue. Interestingly enough though, he was for a very brief period, the district court judge presiding over the Carter Page civil suit. So that's the suit that Carter Page brought against me and many of my former colleagues and many other people basically complaining about the Pfizer that he was subjected to. And Bozberg was the judge on that case for a very short period of time and he did recuse

from that case. And I can't for the life of me remember exactly why that was. I think he had some sort of personal connection to one of the lawyers involved, but I'd have to go back through the pleadings and figure that out. Yeah, we don't necessarily know that it was because he presided it over the surveillance application in the FISC court.

And it's not listed here. In the, Zoe Tillman, who's great. She put a list of some of the cases that he's recently worked on, including the FTC anti-trust case against meta. That's the parent company of Facebook and Instagram. And he also presided over the foreign lobbying suit against Steve Winn, former RNC finance chair,

Casino Mogul guy. He also ordered the draining of the Dakota Access Pipeline, and he denied Medicaid work requirements. That was a Trump-related case because Trump wanted to slap work requirements on Medicaid. He threw that out. He's going to be faced immediately with multiple key potential decisions as we have been following on this podcast, with all of these executive privilege claims and immunity claims and lawful obstruction of justice.

The standard, the sort of obstruction that's built in, we call it delay, not obstruction, but it does built into the process, unfortunately. I should call it a defendant, criminal defendant's rights, but it's the delay tactic. So he's going to have to look at Pence's speech or debate clause argument against his subpoena, which Pence may have just given himself a harder time with that with his gridiron comments. You know, saying he tried to make me overthrow the government. I said, no, I can't do that. Like he just, well, okay, if you were publicly talking about all of these conversations that you had with the president, you might find an uphill battle to try to,

you know, shield those conversations with privilege. That's just one of multiple. There's many others. Yeah, you know, and on that one, honestly, I think that it's more important. The battle is more important than the victory depends. And he's looking at this through an almost exclusively political lens, fighting the subpoena is good for him on the kind of far right spectrum of, you know,

voters that he's looking for, the Trump supporters, and then standing up and kind of, you know, trying to be independent of Trump helps him on the other side. So we'll see. But in addition to Pence, you have Trump's claims of attorney client privilege over Pence's testimony. You have Jack Smith's contempt motion, which still has not been ruled on. And that's the motion, of course, that he filed a alleging contempt on the part of the Trump lawyers with respect to the return of documents. You have Jack Smith's attempted use of the crime fraud exception to Pierce Attorney Client privilege for Evan Corcoran. That's a really interesting one. We're going to talk about that in more depth in a few minutes. And then what else has he got on there?

Well, he's got Scott Perry's speech or debate clause invocation. He's got other attorney client privilege claims from other Trump lawyers. He has declined to comment on the scope of the work yet to come. He, which is totally reasonable. Yeah. Now, Judge Barrel Howell, Chief Judge Barrel Howell says, she's still processing the

last seven years as Chief Judge. Think about everything that's happened in the last seven years. Right? She says, a lot of my work in the grand jury arena remains under seal. So it's going to be very hard to say what my legacy will be until after some of that work gets unsealed and people are able to evaluate it. But 2016, she was presiding over the grand jury. She was the chief judge.

We have COVID. She was presiding as chief judge. I mean, it's the, everything that's happened in the last seven years. It's been a very, like one of the most tumultuous seven years, I think, in the history of our country. For sure. And, you know, I have great respect for Judge Howell,

and also, look, my own personal bias as an investigator, as an FBI agent, member of the department of justice, you know, she was very investigator-friendly in many of her rulings, the ones that we know about. Now, there's, of course, probably plenty of cases where she went against the investigators. We just don't know about those, because they're still under seal. But in the ones we know about. Now, there's, of course, probably plenty of cases where she went against the investigators, we just don't know about those because they're still under seal.

But in the ones we know of, she always took a very strong line that would have permitted law enforcement to get to the information that they need to do a full investigation. That's got very ruling come straight to mind. That's right. She's like, you don't have any F and privilege, bro, I'm paraphrasing.

Yeah. Like get out of my face. And, and you know, it's going to be interesting to see because judges not only have to make up their own minds about stuff, but Bozberg is going to have to consider previous rulings by her and take those into account as he goes forward. And the speech or debate issues that were brought up in her ruling against Scott Perry will come into play when he rules eventually on, on Scott Perry. And when he rules on, eventually on Pence's speech or debate, he's gonna be here for seven years.

So all of this will be resolved as he sits as Chief Judge. Yeah, and no doubt he's very aware of the fact that most of these highly charged political cases, no matter what his decisions are in any given issue, it's fair likelihood that they'll be appealed to the DC Circuit. The DC Circuit Court of Appeals is widely seen as the most influential circuit court in the country.

It's almost like the minor leagues for the Supreme Court. So he's, you know, every decision you make as chief judge in the DC District Court, which Bozberg now is, you do that with the DC circuit court staring very closely over your shoulder and with the knowledge that cases from there frequently get sent up to the Supreme Court for final decision. So yeah, he's got a lot of pressure, a lot of hanging on him, but he's a solid judge. It's got a great reputation in Washington in the legal community. And I don't mean as a conservative or a liberal or an a**, so if I'm just saying in the legal community, he's known as a smart, effective guy who runs a tight docket, gets things done. So those are

all good things for this investigation. Yeah, agreed. And like you said earlier, if the DOJ does charge Trump in DC, that case would be randomly assigned to one of the DC district court judges and he would be part of that administrative assignment. I think it's random. So we would see that case be assigned to one of the district court judges. It could be it could be assigned to Judge Barrel Howe. It could be assigned to a Trump-appointed judge. We just don't know and I'm not really familiar with the randomization process of how those cases are assigned. One parting, some parting more parting words from Judge Barrel Howe. She said, she will miss some of the daily excitement of not knowing what's walking in the door. And I just imagined like seeing

like, cork or an in gym traffic coming out like, walk it through the door. But she says she's looking forward to returning to the much more regular existence of a district judge. So I'm just just- Yeah, so to use a medical analogy, you know, the district court judges are like, they're like the surgeon, you know, that comes in very carefully,

having planned out what they're doing, and they apply their skills to a hard problem. But what she's been doing is more like the head of the ER. You're just in there, you know, you get your mask on, you just wait and see the door open up and see the next like bloody wretch that they roll down the hallway for you to fix. So I can imagine that is a much more exciting existence and also probably a very trying and exhausting one. So good for her. She's going back to normal duty. Yes. And a big thanks for her service. Again, she served as chief judge of the DC District Court during the seven most tumultuous years in recent American history. I can I can safely

say that. And I think that her legacy, even though she said it's mostly under seal. Right now, like a sea, even though she said it's mostly under seal. Right now, I think we'll be a pretty amazing one. And I wouldn't be surprised if she isn't destined for the DC Circuit Court of Appeals. We'll see. We'll see. All right, well, everybody, we're gonna take a quick break.

We have a lot more news to get to. Stick around. We'll be right back. Welcome back. Allison, let's talk about something new chief judge Bozberg will definitely have to decide. And that is Evan Corcoran's attorney client privilege claims. So before we get into Corcoran, level set,

the attorney client privilege, obviously, is the privilege between an attorney and a client, and it prevents either side from disclosing the substance of those privileged conversations. Now, of course, in order to be privileged, the conversations have to be just between the attorney and client. If anyone else is there, the privilege is waived. If the client talks about those conversations to any other person, that also can waive the privilege. In this case, what we're talking about is the crime fraud exception,

which means that the privilege is waived or as they say pierced, if the client and the attorney are using the privilege to commit a crime or to conceal the existence of a prior crime. Or did, to may have discussions that are in furtherance of a crime. That's right. And so this is a very interesting case because we were, first of all, court testified before the federal grand jury. We know that he was brought in. He invoked attorney client privilege over several questions, several discussions that

he had with Donald Trump. We reported last week that Jack Smith is seeking to pierce that attorney client privilege. We've talked about this, but we have more details now because he, as we know, we knew he's trying to use the crime fraud exception because the Department of Justice believes that Korkren helped Trump obstruct justice. So here's the new details. At Jack Smith wants to get answers, specifically focusing on among other questions,

a phone call that occurred between Evan Corcoran and Donald Trump on June 24th, 2022, which just happens to be the same day they got a subpoena from the Department of Justice, you know, to the Trump organization for those Mar-a-Lago surveillance tapes, and maybe more surveillance tapes, but we know for sure the Mar-a-Lago surveillance tapes, which as we later found out, showed people moving boxes, including a guy named Walt Nata, not a good witness. The Diet Coke Valley, who told that first, told the DOJ, I didn't move anything and then they showed him the video, he was like, oh yeah, I moved some stuff. And then he said, Trump told me to

move that stuff. And that's again, that changing of his story is what makes him not a good artist. Not a good artist. I never get old. I never get old. I never get old. So I want to talk about with you Andy, because you've been in these investigations before. When you want to appear to turn a client privilege,

or you want to get a phone, or you want to execute a search warrant, you got to have some evidence. and you got to present that evidence to a judge. So how did and how does Jack Smith know that this phone call took place if it's a phone call between Donald Trump and Evan Corcoran and I came up with four different scenarios. Okay. And help me out if I if I'm missing anything. So first of all, they could have gotten Corcoran's phone and maybe pursue it to a warrant. And we don't know. We might not know because the battle is under seal. Although we've learned about a lot of these phone seizures, I feel like we would know if his phone was seized. So let me address that one first. I think your instincts are right there.

I think this is probably unlikely, the way they know about the existence of the call. And the reason is, first of all, we probably would have heard about it. It definitely would have been a battle because anytime you take an attorney's phone, you have all kinds of very legitimate attorney client privilege issues to have to navigate.

The other thing is the main reason to take the phone as we discussed last week is to get the text messages. Content that otherwise would have been encrypted if you'd gone to the service provider and asked for it. You can't get it because it's encrypted. So you need the only way to get it in a decrypted readable format is on the phone. However, the all Jack Smith needs to know

is the existence, the time and date of this call to then drive at it in the grand jury questioning. And that, you could get through a different means. So give me your next one. Yeah, and I think I'm going to bring that up in the next one, right? Because they could have gotten Trump's just the phone records, either through something called a title 18 US code 27,

2703, which was also known as rule 2703, or just Trump's lawyers handed over the phone records and maybe a cooperative, you know, maybe Chris Kaiser, Jim trusty walked in and said, let's be a little more cooperative today and handed over these phone records and maybe a cooperative, you know, maybe Chris Kaiser, Jim trusty walked in and said, let's be a little more cooperative today and hand it over these phone records because they don't, the phone records don't include the content of the phone call. And so it's possible Trump's lawyers could have handed them over saying, well, if they ask about the content of the call, we'll just assert attorney client privilege or whatever.

But talk a little bit about rule 2703 because I've seen this come up a few times and this basically allows the Department of Justice with a warrant that would need evidence to get somebody's phone records without notifying the person that they're getting their phone records. That's right. So with the 2703D order,

that's where you can serve an order on a service provider. So that's either going to be a phone company and you're seeking phone records, metadata records, not actual content of phone call conversations, but just the date, the time, the duration of the call, and the numbers on both sides to who you're who made the call to who. Or you can serve that, here's another example, on a service provider, like an ISP and internet service provider, like Google. Let's say you wanted that same sort of metadata about somebody's email account,

you can get the same stuff. And the 2703D order. That might be how they got, sorry to interrupt, but that might be how they got Eastman's emails, because the DOJ got Eastman's Chapman University emails before January 6th committee fought over them for eight months in the court. That's right. And these are not controversial You know that these are records that are held in the normal course of the service providers business

Therefore, they are considered business records. And you don't have the same level of privacy, the same degree of the same expectation of privacy in a business record as you would have over the actual content of your conversations or your text or email. So 27.03 gets you that metadata, the twos and fronds, date, time, whatever, whatever. And it also can have with it a non-disclosure requirement that legally prevents the service

provider from telling the target of this order that their records have been turned over. Question for you, is there a way to get the content of phone conversations? Is that like a pen register through the fisc or like, how do you, I don't even know if there was enough time or if the DOJ was even thinking about anything like that when the subpoena went down because you and I've reported previously that the DOJ wanted to search, they wanted to go search in the FBI,

some leadership at the FBI was like, let's do a subpoena first and they did the subpoena first and the FBI was reluctant. And that's devil and bear it reporting. So I'm not sure what the source is there. I think green assault there. Yeah, green assault. But I don't even know that it would have been,

but maybe it was. I mean, the did the prosecution. The DOJ really wanted to go in there and get these things. And so I don't know if they sought a pen register from the Fisk. And if that even gets you the content of the phone calls. So great question. It does not.

A pen register gets you the same sort of information that we've just been talking about on the 27.03-D order, but it's live. So you're getting the date, the time, the duration, and the twos and frums on either an email account or a telephone account as it's happening, which is very important, particularly when you're building up to the point that you would add to go back in front of the court and ask for an order that would give you content. And that would have to be either a Title III order on to this target, he calls this guy every day, a lot, a lot, that sort of thing. And on the national security side, it would be in the Pfizer

court. The only way to get the content of telephone calls is through a Title III order or a Pfizer order because it has to be live. There's no service provider that's recording all of your phone calls and then can turn them over to the government after the fact. Okay, so I hope everyone rests easy knowing that. But regardless of whether they went through a pen register in the FISC or whether they did a 2703 or whether they got these phone records from the Trump lawyers themselves, they would not have the content of that phone call. That's right. And then they could have, here's another option, which I think might be the most likely, unless the Trump lawyers just handed over the call records, is whether or not a third party

witnessed either end of that phone call. We know now through some reporting that at least two dozen subpoenas have gone out to staffers, Mar-a-Lago staffers, aides, all the way up to Trump lawyers. And if say Christina Bob was in the room when Corcoran was on the phone with Trump, she could have testified to the DOJ, hey, I heard him say this, I heard him say that.

They were talking about the surveillance subpoena, they were talking about moving records, they were talking, I'm speculate, I don't know what took place in the call. But if she had an ear on one side of that phone call, much like many people had an ear on one side of the Pence Trump phone call in January 6th, and that's why Jack Smith is trying to get Pence to testify as to what he said on that phone call. Then they may be able to present evidence to the judge, the chief judge, which is now Bozberg, to say, hey, our evidence, we have developed evidence from a witness from witness testimony, one or multiple, that there are potential crimes in, further in some crimes

in this conversation. Here's our evidence, and they would submit that to the court to pierce the privilege with the crime fraud exception. Yeah, so that's a really interesting possibility, and here's why I think that's, I can't say that that's what happened, but it's a pretty good chance.

So let's go back to the crime fraud exception. What you have to show to the judge is you're trying to pierce attorney client privilege and force this attorney to answer questions about a specific conversation with this client. You have to show that you have evidence that that conversation you're trying to get to was actually in the commission or concealment of a crime. of a crime. So if all you had was the metadata that Evan Corcoran called Donald Trump on such and such a day also happen to be the day that they received the subpoena, think about that. It's not unreasonable at all that you would have a conversation with your attorney on the day you received a very significant subpoena. So there's a very, if that's all they have, I think it's a pretty weak case to go before a judge

and ask to pierce the privilege. There's no assumption of, you know, malfeasant, simply because of the phone call took place. But if someone who is in sitting in Evan Corcoran's office and listening to his side of the conversation, and if let's go one step further and say that that person, that witness, is a lawyer themselves and could say, listen, I only heard half the conversation, but I heard Corcoran say X, Y and Z. And to me, the sense that I got was they were discussing ways to, you

know, cheat the subpoena or hide the evidence or whatever. This is all speculation here. I'm just using as an example. That would be powerful evidence in front of a federal judge to make the case that that conversation contained evidence of commission of a crime. Yeah, because with the Eastman emails and the crime fraud exception with the January 6th committee, they had to get the emails and then they have the content of the emails so they don't have to get a witness testimony about what was said in those emails and Judge Carter found that

these conversations between Eastman and people on Trump allies were in the further ends of a crime, specifically 371, which is the title 18 conspiracy, and 1512C2, obstructing an official proceeding. So that's when we got that order from the judge that Eastman would have to hand certain emails over to the January 6th committee, DOJ already had them all. So very, very interesting possibilities. Yeah, for sure. So those are the ways, I think, that the DOJ could know,

because like you said, if they only are going by, because we've had some previous reporting saying that they're going by, they're trying to pierce the attorney's client privilege with information in their original search warrant affidavit And if there's nothing specific about this call in there and it's just that well obstruction was everywhere that day You know or that month and they don't have any witness testimony Corroborating that what was said on that phone call was a crime

I mean you would really have to evaluate what was said to determine whether or not the crime fraud exception applies. If you can't determine what was said, it's going to be really an uphill battle for Jack Smith to get a crime fraud exception to be able to compel anyone to testify about what happened on that phone call. That's one of the reasons why the privilege, the way you're supposed to invoke the privilege is questioned by question. So you're not supposed to say, oh, I have a privilege with this person there for I'm not going to show up for the grand jury test. No, you have to show up. You get sworn in and you assert the privilege to a specific or several specific questions.

So that lets Smith and his investigators narrow in on the most important questions and most important issues where they think that the crime fraud exception might actually apply. We know that this is one that gets right to the heart of the conversation between he and Trump on the day the subpoena was served. That's obviously super relevant. There are other questions that Korker and Refuse to answer. For instance, his efforts to locate classified documents pursuant to the May-Sepena. That's one that goes more broadly to Jack Smith's contempt motion, which hasn't been ruled on yet. And this question about how adequate was the search that they conducted and how did they represent the results of that search?

Yeah. Yeah. And some other interesting questions that he refused to answer due to attorney client privilege was his role in drafting the letter, Christina Bob signed. June 3, saying everything had been handed over, which kind of leads me to believe, could we know Christina Bob has spoken to the Department of Justice? Yep. And that's sort of why I'm really sort of stuck on this, maybe Christina Bob heard that 20 for that June 24 conversation, which is a different subpoena. The May subpoena is the one where they subpoenaed

the classified documents. The June 24th subpoena was the surveillance tapes. So there were a few subpoenas involved here. Also, he didn't wanna talk about whether Trump or anyone else in his office knew about Bob's certification letter. Like did Trump know that you went to Bob and put this letter together?

And also he didn't want to answer the questions about the reasons that Christina Bob wanted to edit the certification letter. And all of those questions really seemed to hinge on probably testimony that Christina Bob gave to the department. That's right. That's right. Yeah. So there's a lot of ground to cover here. That's right. That's right. Yeah. So there's a lot of ground to cover here. I think it's important to to keep it in perspective that this motion to pierce the privilege doesn't require, they're not required to improve the whole case. They're not required to prove that there was obstruction everywhere. It's simply on this question by question issue by issue kind of agenda, whether or not there's evidence to believe that the specific conversations involve the concealment or commission of a crime.

Yeah, and the standard is the preponderance of the evidence. That's right. It's more likely than not. Like you said, you don't have to prove beyond a reasonable doubt as you would on trial that these crimes were committed. That is what Judge Carter did in his Eastman email crime fraud exception decisions, saying, look, this is propondercy evidence, more likely than not,

50.1%, that these discussions were in further into a crime. So it's a lower standard than what you need to convict, but it's a higher standard than what you need to convict, but it's a higher standard than what you need to indict. So we'll see how that goes. But this is also a former president. So the standard might, and you just be ticked up a little bit.

Oh, there's no question. This is the repercussions of every decision in this case, echo with like what does this say about with like what's what does this say about our democratic process? What does this say about the way we treat former presidents? What does this say about the politicization of the justice department or the criminal justice process in general? So it's everything is more complicated here. But I think we, you know, step back and remember also that if this decision or these decisions go against Trump, he still has an avenues to protect himself, right?

If he's in fact indicted during the pre-trial phase, he can fight any of the information that actually comes out of the answers given if the privilege is pierced, right? So he can, he can file motions to exclude this evidence that was, that was collected through the grand jury testimony to keep it away from the eyes and ears of the jurors in some cases. Yeah, motion eliminate, right? That's right. So it doesn't necessarily mean that this is the last time we'll hear people fighting a court over what does or does not happen here in this motion. No, and all that's appealable. It's along. It's a long process.

We interrupt this program to bring you a special report. This is Allison Gill with Breaking News. Chief Judge Barrel Howell has ruled in the Evan Corcoran crime fraud exception. She has sided with the Department of Defense, saying that Jack Smith has provided enough evidence to pierce Attorney Client privilege, and therefore, Evan Corcoran must testify and answer the questions that he initially exerted an invoked Attorney Client privilege over because of the crime fraud exception. Now, Corcoran has a couple of options here. He can come in and testify, or the more likely scenario, he can appeal this decision, or he can come in and

plead the fifth, in which case then the Department of Justice may grant him immunity. We will see, but I just wanted to give you that breaking news. Again, Judge Barrel Howell, on her last day as the chief judge of the DC District Court, in Colombo style, oh sir, just one more thing, has ruled in favor of the Department of Justice and is compelling Evan Corcoran to testify because of the crime fraud exception. That means that the Department of Justice was able to prove beyond a preponderance of the evidence more likely than not that he had committed or had his discussions with Donald Trump or the things he was trying to shield with Attorney Client privilege were actually in furtherance of a crime. All right, back to your regularly scheduled program.

There was one other attorney by the way that Jack Smith is trying to compel the testimony of to Pierce Attorney Client privilege. That's somebody named Jennifer Little. I had not heard of her before. I had not heard. She's asserted to turn client privilege. She's been representing Trump in the Fulton County, Georgia matter. She did not respond to request for comment for the story.

But he's trying to get her testimony as well. And that again, maybe that's somebody who witnessed part of the call or maybe that's somebody who witnessed something else, but he's really trying. He's, I think it's, I haven't seen this kind of crime fraud exception being brought up to the chief judge like this, but I'm new, so. Hey, listen.

I did this stuff for 21 years, and I'm not sure I ever dealt personally with the case in which the crime fraud exception was used and succeeded. So it's very rare. And I have to also imagine that this has got to have a chilling effect on Trump's potential universe of lawyers. People are lawyers getting roped into the grand jury right and left. Lawyers do not like that. They know not. They don't want to be in the witness chair really

under any circumstances. So this can't be making getting good legal advice any easier. No, yeah. We just found out Takapino today might have a conflict with Stormy Daniels. Oh gosh. Just fun. But that's for another show. Spokesperson for Trump, by the way, said that, of course, President Trump has done nothing wrong. Radical Democrats continue to weaponize the justice system against President Trump, including in their attempts to demolish our constitution, not by overthrowing the government, but by stripping away President Trump's right to counsel, because they, by the way, Trump is stripping away his own right to counsel, just like, by how you said, for sending every single one of his lawyers to either the bar association or

with his chair, because they know he will win back at back though, he will win back the White House as he leads both Republicans and Democrats by wide margins. Trump will not be deterred and will always continue to fight for the American people. This is the same defense that we've seen brought up again and again. He's running for president. Therefore, it's political. That's the whole reason he's running for president. It's the whole reason he ran in 2020 was because he didn't want to face any of the crimes that he committed in his previous administration. But anyway, that's the Trump response. Nobody else responded to request for comment for this piece. So. Got it. Got it.

Well, I mean, it's pretty standard response and one that we would expect. That's actually a little bit reigned in from what we normally get from Marlago. So this is a little less hyperbolic and hysterical and fewer prophecies of doom gloom. So good for them. Maybe they're trying to normalize a little bit. That'd be nice. Yeah. I doubt it, but perhaps all right. We'll see. We're going to be right back. We have one little story left here about Boris Epstein, your favorite guy in the world. Everybody's favorite guy in the world apparently stick around. We'll be right back. All right, everybody. Welcome back. The New York Times has some new reporting out on Trump attorney, Boris Epstein. Let's just get through the main points of this story here. This

is a Haberman joint, just, you know, so you're aware. First of all, Epstein speaks with Trump several times a day. He has massive access to Trump. People and, you know, in this article, people running for office have paid him upwards of six figures to just get him to talk to Trump for them. So the Trump would endorse them. All these candidates lost, by the way, but gave him like $90,000, $100,000 because he has that much access to Donald Trump. He recommends and helps hire and negotiates the pay for several Trump lawyers. But everybody really hates him. He's like the Ted Cruz of Trump attorneys. His attack style

grates on a lot of those around him. So nobody likes this guy. Yeah. And you know, he, I think he's a Georgetown law grad, if I have that correct. So he's definitely a lawyer. But I do think one of the concerns about him is he's never actually like practiced law. I don't think in a significant way, he's really more of a political operative, which is great, that's his chosen field. But you know, you now have someone

who is literally a kind of controlling quarterbacking the legal representation of not just a former president, but a former president who has massive legal problems coming at him from presumably like every direction. And the kind of quarterback role coordinating all those different efforts and the lawyers that you need to work with is a guy who really, you know, arguably doesn't have a lot of that big picture, strategic, huge case experience. It's just, you know, it's just another indication that the former president has a hard time kind of lining up the folks that he would need to navigate this stuff. Well, here's something fun. He's been a consultant to the Trump Save America pack for a long time.

a consultant to the Trump Save America pack for a long time. And he has been paid as a consultant by the Trump Save America pack. But recently, when all of this document stuff started happening, he retroactively called himself a lawyer, legally representing the Trump Save America pack, presumably so that anything that they talked about in the last, you know, year and a half could be considered attorney client privilege. He was also trying to get Trump to sign a retroactive letter saying he's his attorney, but he dropped that effort. And once he changed his role retroactively to the save America Pack as a legal representation.

He doubled his monthly retainer from 15,000 a month to $30,000 a month. And so I don't know how that's going to sit with anybody trying to pierce attorney client privilege with him by saying you were a consultant, being paid as a consultant and then all of a sudden saying, oh, no, no, no, no, no, I was a lawyer. I've been a lawyer this whole time. That's, I mean, I guess there's really maybe not much you can do about that, but I found that to be very interesting. Well, I mean, it didn't work for them in the Stormy Daniels case,

which of course is still an ongoing thing. We don't know how that's going to resolve, but you'll remember in that case, Michael Cohen was reimbursed for making the payment, the hush money payment to Stormy Daniels, was reimbursed like monthly or every couple of weeks, several of the checks signed by Trump himself, one, I think at least one signed by Don Jr. And then after the fact, they represented that that money was actually for legal services and that there was a retainer agreement as the basis for those transactions, all of which was a lie and is now being exposed in the course of the ongoing stormy dental suit.

So the simple fact that he's going back and trying to call it something after the fact, if that's what's happening here with Epstein, doesn't necessarily mean that's going to work or protect him in a significant way. It could be a falsification of business records, but I don't know how they would rule on the attorney client privilege. We will probably find out. Now here's another fun fact, even though Epstein's phone was seized by the Department of Justice, which means you have to have at least some probable cause of a crime.

Part of a tour, who's another lawyer, says absent any solid indication that Boris is a target here, I don't think this affects us. It seems to me like having your phone confiscated is a pretty solid indication that Boris is a target here, I don't think this affects us. It seems to me like having your phone confiscated is a pretty solid indication that you can get trouble. It's certainly affecting you. I mean, at least the day they take your phone, you got no phone left. But yeah, if they thought that that Epstein was

absolutely purely no question, just a witness, you wouldn't even be hearing about this stuff because like witnesses turn their phones over consensually to the government most of the time to be, you know, to have that evidence looked at or removed or whatever than they just go on their way. So yeah, I mean, he's very clearly

in the crosshairs of the investigation. So, well, it's like the phone call with Corcoran, right? If there was nothing in furtherance of a crime, just tell us what you said, like just testify to it. But, you know, there's always wanting to bring up the attorney client process. Of course.

There's a long list of stuff that Epstein's being criminally investigated for. First of all, he's worked with Rudy Giuliani on assembling the false slates of electors, right? That's the obstructing and official proceeding case. He also testified before the Fulton County Special Purpose Grand Jury. He testified there.

He's being investigated for improperly seeking a common interest agreement among witnesses in the classified documents case. Andy, what is a common interest agreement? Well, a common interest agreement. We've talked about joint defense agreements between people who are all accused of committing crimes together. Sometimes they sign these joint agreements so that they can share information without destroying their attorney-client privilege. In a situation where the agreement was between people who were witnesses, not

actually defendants or people charged with crimes, that would be referred to as a common interest agreement among witnesses. So it's kind of the same thing. It's an agreement so that you can change exchange information without losing the privilege that you hold with your own attorney. And what would make it improper if you're like subordinate perjury or if you're pressuring those witnesses? I mean, what would make it illegal?

Because that's what they say here is that improperly seeking a common interest agreement among witnesses. So it would be fine to do that if you are all witnesses. Let's say you were all employees of a corporation and the corporations now, the subject of a federal criminal probe. And you had to go out and get attorneys because you work in the company, you're not nobody's suspect you have wrongdoing. It would be easier and probably more economical to have your attorney sharing information with

each other so you could have a common interest agreement there. What's not proper is if you use the common interest agreement as a means of exerting coercing or exerting pressure over different witnesses to only cooperate on certain things or only provide certain information or even just to keep track of what other witnesses are doing. You can't, as an attorney, you cannot try to control the representation of other people's clients. That's basically would be outside the acceptable parameters for a common interest agreement.

Well, most of these lawyers were paid by the Save America Pack. That's also in the year, so maybe that's it. And finally, he's being investigated for his role in managing a pro-Trump crypto firm with Steve Bannon in the Southern District of New York. So, you know, I mean, why not? Why not? I mean, you know, that's like the icing on the cake, I guess. You know, we always say you got to lead from the front. You got to always be if you want to be a successful leader, you have to be willing to do the work that you're asking your subordinates to

do. And maybe I'm trying to see the bright side here. Maybe that's what Epstein is all about. He's like, hey, come on board, help represent Trump. And I know you're probably going to end up in front of the grand jury or subject investigation, but I'm doing it too. All right, I'm already subject to all these investigations that I've already testified in front of a grand jury. So, it's okay.

It makes you feel better, I'll go commit some more crime. That's right. And then we could sign a common interest agreement and I can then stop you from actually So, tell you what, it makes you feel better. I'll go commit some more crime. That's right. We're all in the same boat. And then we could sign a common interest agreement and I can then stop you from actually testifying. I don't know, obviously making that. Here's a bunch of money from the Save America Pack and Maro Meadows, nonprofit organization.

And you have a job and you can get a job too. And I don't think they'll testify to the weaponization committee. That's cool. Yeah, it's just a big cluster. It's a mess. Yeah, it's a total mess. If a mess. Yeah, it's a toll. If you look at it. All right, thank you so much for going over all the good boars.

Epstein news. What a what a peach. The Ted Cruz of Trump lawyers, I think is the. Yeah, when you're the Ted Cruz of anything, you're in a bad place. Oh, yeah, you know, everyone to hear your friends say, he's like the Ted Cruz of Pickleball. No, you don't want that. Ted Cruz of Pickleball, we have our title. It took us the whole episode to get to it, but we got there eventually.

Yeah, you don't want to be Ted Cruz of Pickleball. Or anything. We have a listener, a listener question we want to answer this week before we get out of here. Yeah, we do. I'm going to throw into. They're both very quick, but I thought they were both great. Okay.

The first one is from Christie. And Christie says, we've been hearing a lot about how Trump could run for office from prison because of how hard it is to disqualify candidate. It just seems like the DOJ would bump up against some constitutional concerns if they tried to prevent an otherwise qualified candidate from running. Give me some good news, guys. Okay, so this comes out of, we talked last week about one of the possible resolutions of a federal indictment against Trump might be, and I say might, just like one of many

possibilities, you could imagine a plea bargain situation in which the government offered to allow him to plead guilty, to let's say an offense that didn't carry a prison sentence, but in return, they would require him to refrain from ever running for federal office again. It's kind of similar to what happened in the Spiro Agnew situation many years ago. So those kinds of arrangements are essentially a contract, and like every contract, they are predicated on offer and acceptance. So no, I don't think an offer like that would have a constitutional issue. Of course, Trump wouldn't have to agree to it, but part of the agreement, if he agreed to do that, any plea agreement for whatever the terms are always

includes the fact that the defendant will not challenge the efficacy of the plea, will not appeal the result of the plea. It just ends the entire process never to be brought up again and it imposes conditions on both sides. I concur. I don't really have anything to add to that one other than, you know, you're thinking exactly what I was thinking is when you enter into that play agreement, that's just the way it is. However, his indictment and potential conviction does not bar him from running for

office. It does not bar him from being president. If he gets indicted and ends up getting maybe home arrest, no prison time because of, you know, secret service concerns or security concerns, or if he gets a short prison sentence or if he gets a prison sentence that anybody else would be given, which all the crimes add up, maybe like four to eight years, something like that, potentially more, he doesn't have to not run for president.

I don't see him winning. Well, you never know. Didn't see him winning the first time, but okay. And once he's indicted, he can't, I think he would have a really hard time bringing up, you know, if he ran and won somehow. I think in his trial was still going on. I think he would have a really hard time trying to say you have to drop the whole case because I'm president now. I think one, you know, yeah, I think he'd already been defending himself.

Yeah. It wasn't something that happened while he was president, which is hence the DOJ, you know, memo saying you can't. That's right. And died a sitting president. That's right. So all right. Those are my thoughts. Got it. It's okay. Last question and then we'll wrap this up. This one comes to us from Madeline. Madeline says, thank you both so much for doing this. I just want to comment on the closing note of the most recent podcast. You said there's very little chance, the, and I'll quote her here, orange liar, like Colbert, I can't say his name, likely won't see the inside of a jail cell. That's not right.

Accountability needs to go beyond indictment and you end with the sound of a jail slamming. That gets our hopes up, Madeline. So Madeline, you're not going to like my answer on this one, but I agree, but yeah. Yeah, it's just that. So obviously we're, you know, we were working through the options here with you in different ways that his situation might resolve, but it's important to remember as much as we focus on this and where it's going and what might happen, we have to always rely on and believe in the system of criminal justice. I know it has flawed.

It has some serious problems, but it works overall every day in many different ways. And that system does not work for any defendant by beginning with the presumption that we want to hear the jail cell slam. It's the same reason why it was offensive and weird to hear people screaming, lock her up about Hillary Clinton years ago, like, that's not who we are. And when we think there is probable cause and believe a crime is committed, people then have to answer for those charges. They're innocent until proven guilty in court. And we don't just like, you know, stand there pounding torches on the ground,

demanding the head of the accused. That's not what we do in this country. Thank God. And we'll see. We'll see what happens with Trump in the way the whole process resolves is perfectly reasonable to have strong feelings about what you'd like to see happen, but at the end of the day, we all have to be confident that the process will work in the same way that it does for everybody else. But if he is convicted, I'm just going to push back a tad on. If he is convicted, I would want to see the same sentence and guidelines used that would be used on anyone else. to see the same sentence and guidelines used that would be used on anyone else. And while I fear that there might be some special considerations made

because he is a former president and there might be security considerations and all that other stuff, my personal preference would be that he is treated as any other person who committed these crimes if he's convicted by a jury. And I think that I'm going to maybe go out on a limb here and say, you know, I've been worried about that, but I'm going to say hearing Garland's remarks, the thing that he says the most because he never

talks about anything except, you know, a handful of things is how important it is that people are treated alike, regardless of rich, poor, black, white, those with means, those without means. That has been very, very central to the tenant that he brings to the Justice Department. And I'm not sure I'm, I'm, we'll have to ask, but I'm pretty sure it would be the special council in this case, Jack Smith, who would be making the sentencing recommendations and making those agreements and things like that. Although I imagine the attorney general would be involved, but he's taken a real hands-off approach here. And I, Jack Smith might not be as kind as as a Merrick Garland or or even anybody else any other attorney general will have to see how it

happens, but I you know given the over and over again speeches knowing what's coming, knowing the crimes that he's having to look at Merrick Garland saying we have to treat like crimes alike and we can't be disparate in our treatment of criminals. We'll see what happens, but maybe not. I think that's absolutely right. And it's absolutely essential that at this phase, the investigative phase and the considering the indictment phase, you're right. Nobody is different.

It's the facts and the law period. But if it goes to trial and there is a conviction, now you're in the sentencing phase. And the sentencing phase, as you said, should start as everyone does with the sentencing guidelines that are a part of our federal law. After that, each case, there are individual concerns, they're mitigating and aggravating factors that are considered in the decision of the court, not the OJ, but of the judge, when imposing sentence. You know, those factors for someone who is a former president of the United States are going to be a little bit different than anybody else.

That doesn't mean that, oh, he's getting special treatment. It just means that his mitigating and aggravating factors are distinct to him as everybody should be distinct to theirs. And it's not like how we can't treat him the same because he does have some executive, perhaps executive privilege claim or presidential record claim or declassification ability. There are things that you have to consider because he's president legally would have an impact and I think that that has to be sentencing. You start with the guidelines for what you were convicted with

and that gives you basically the range. And then from there the judge has to use some discretion and decide where to land in that range. You know, that is a long way down the road of this process, but. Right, because I think you're mostly talking about a pre-trial sort of agreement, a settlement, right?

Not necessarily if after he's convicted, but before we even go to trial, there may be some sort of a, you don't run for president, moved to Moscow. Right. We don't want to see you again, and we'll, you know, that's the only time something like that could be done. But after you've been charged, then you have these lawyers have discussions with the prosecutors about resolving the case through plea bargain could not happen after.

You show up for the first day of trial and decide, okay, now I'm gonna plea guilty. You basically eat the indictment. That's what we say in the system. There's no bargaining. There's no favor for doing that. Yeah, I think it's in good hands though. If it's Jack Smith, he's making this decision.

Again, he's a bulldog dude. I don't see him. I have faith in the decision that he makes will be the, probably the harshest punishment we would be able to see if that makes sense. It could be. It could be. I'll tell you, I have a lot of faith that he's professional. He's got a proven track record. I have faith in the system and the judges and the prosecutors, the professional prosecutors, the DOJ. It's not as much as some people still,

really don't believe this. It's not a right left red, blue Republican Democrat thing. The law is the law of the facts or the facts, you apply them and see where it lands. That's the way it goes. Yeah, agreed. All right. Well, thank you so much for those questions. If you have any questions, you can send them to us at hello at mullersheyroot.com.

Just put Jack in the subject line. That's the best way to get a hold of us. To ask your questions, we appreciate you submitting them. This has been a heck of a week and I don't see the news slowing down anytime soon, my friends. So thank you for taking the time today. I know you're on the road and we will be back next week. I've been Allison Gil. And I'm Andy McCabe. You're listening to Jack. Thank you.