Jack - Episode 17 -Ham Sandwich (feat. Jennifer Rodgers)

Episode Date: March 26, 2023

This week, Allison and Andy discuss: the Mar-a-Lago documents timeline; Judge Beryl Howell’s order regarding executive privilege claims in the Jan. 6 investigation; Trump’ds incendiary posts towards Bragg; Corcoran's and Little's testimony and document production in the Mar-a-Lago case; plus listener questions.Follow Our Guest:Jennifer Rodgershttps://twitter.com/JenGRodgers 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 17 of Jack, the podcast about all things special counsel. It's Sunday, March 26, 2023. I'm your host, Alison Gill. And I'm Andy McCabe. Lots of news this week, including an order from Judge Barrel Howell over executive privilege claims being invoked by a long list of top Trump aides in Jack Smith's January 6th probe. And I'm going to add to that, uh, AG with a follow up from a comment last week. I am, I am pleased to say that my nephew and his wife, uh, greeted the arrival of a bouncing baby boy, uh, his name is Jack. And he was born on my birthday. So he's got the benefit of a bouncing baby boy. His name is Jack and he was born on my birthday.

So he's got the benefit of the Jack name. He might have been cursed by being born on the least lucky birthday of all time, but nevertheless, we are pulling for him and he looks like a fine young man. Well, happy belated birthday to both you and Jack. And I hope this puts a positive spin on your birthday from now on. It will. It's turned it around. We're breaking that, uh, breaking that sad history.

And we're just moving on me and Jack. Yeah. And now later in the show, toward the end, we'll be taking listener questions. If you have a listener question, you can send it to us at hello at mullersheywrote.com, put Jack in the subject line. But first, the attorney client privilege battle over testimony and documents from Evan

Corcoran, and joining us later to discuss in more detail will be former federal prosecutor from the Southern District, law professor at Columbia and NYU and CNN legal analyst, Jennifer Rogers, excited to speak to her in the second half of the show. But first, let's go over the timeline. Let's set this up. Andy, in May of last year, May of 2022, the Department of Justice, yeah, they found out that there were boxes missing after the National Archives dicked around for however many months, 18 months. So the FBI found out got the boxes. And in May, they subpoenaed the office of Donald John Trump not Trump himself to hand

over any classified documents that he had in his possession and any of his properties, all the stuff. We need all the stuff. Department of Justice prosecutors wanted to get a search warrant, but according to public reporting, the FBI officials were a little gun shy about that at first and wanted us recommended a subpoena. So that's what they agreed on. They subpoenaed the office of Donald John Trump for classified documents at Mar-a-Lago.

Yeah, that, that seems to be what happened. So following the subpoena on June 3rd, Jay Bratt, who is a one of the kind of senior national security prosecutors at DOJ, goes down to Mar-a-Lago. And he brings a few agents with him, so it's a whole, a whole team that goes down there for a meeting with Trump's lawyers. At this meeting, Evan Corcorin, Trump's lawyer on most of this document stuff, handed Brad and his team a taped, red-welled envelope. So that's like one of those, you know, turbo-lawyer envelopes, things. It's kind of thick.

You can put a bunch of documents in it. And this one had allegedly 38 classified documents. Corcoran would not allow any of the DOJ folks to look inside the storage area where they were told that the rest of the documents were contained. Okay, so after this little exchange, Trump lawyer Christina Bob signed a certification that was allegedly written by Evan Quarkren, saying that everything all the classified stuff had been turned over after a diligent search. Quarkren wrote that letter and Bob asked for some, some, a few minor edits to it before she signed it.

Yeah, and that made that letter mushy, right? She wanted to add to the best of my knowledge. That's right. It's a little arm's length there. Like I think this is right, but I it might not be. Yeah. And perhaps some of the new reporting is suggesting that maybe a Corcoran did not know that there were additional documents in that storage space or we don't know what Trump told him, but it appears that Trump based on some of the new reporting we're getting was obstructing justice there. June 24th, a few weeks later, Department of Justice suspicious that they might not have gotten

all the classified subpoenaed the surveillance footage. They subpoenaed the Trump organization for the surveillance footage of Mar-a-Lago. At least at Mar-a-Lago, I don't know if they for the surveillance footage of Mar-a-Lago. I at least at Mar-a-Lago, I don't know if they got the surveillance footage from other properties. And that same day, Corcoran and Donald Trump had a phone call, which is now at issue in one of the grand juries for Jack Smith. Now, on that surveillance video, they saw people moving boxes of documents,

including Walt Nodda, who would eventually, the first lie to the DOJ and say, I didn't move anything, and then they showed, I mean, apparently showed him the video, they saw people moving boxes of documents, including Walt Naughta, who would eventually, the first lie to the DOJ and say, no, I didn't move anything. And then they showed him, apparently showed him the video. And he's like, oh, yeah, that was me. And he told the DOJ that Donald directed him to move those boxes. And that is when they got the search warrant. There was about a three week period in there where they were trying to decide whether or not to have a search warrant. Apparently, FBI was like, we still aren't comfortable with a search warrant or let's go in polos and

khakis instead of our FBI jackets and a little back and forth. Marik Garland was weighing it and then eventually they signed off and Marik Garland did and they went down to the judge, judge Reinhart, to get that search warrant, which was executed on August 8th. That's right. So really interesting. If you think now about that back and forth that took place on the June 3rd meeting with Jay Bratt and his crew and Evan Corcoran. So they were actually brought downstairs in the basement to the infamous storage room. They were out, they were allowed to look inside and they saw where they saw boxes, but

they were not allowed to look in any of the boxes, which I think seemed weird to them at the time, having been told that there was no classified material in any of them, but they were very protective about not allowing the FBI folks to look in the boxes. They must have also noticed that the hallway outside the storage area was under electronic surveillance because how else would they have known to go back and subpoena that surveillance footage? Either they noticed the cameras and asked about them or maybe Corcoran volunteered that,

saying, Hey, this, you know, you can imagine the conversation, this room is super, super secure. We lock on the door and we've got surveillance out here. You said nothing to worry about. Look at all the cameras. Look away, look away. So they go back to DC and now they're really concerned. Like we may not have gotten anything,

but hopefully that room is under surveillance. So all we have to do is serve a subpoena and take a look at the videotapes. And that's of course what led to the search warrant as you laid it out. So after the warrant on August 8, DOJ then spends the next two months fighting judge Eileen Cannon, special master order and the 11th circuit vacated a ruling in October. All the documents were then handed over. So, you know, that was the weird thing where the Trump folks went into

a separate courthouse in front of a judge. who had not been involved in any of this, but who notoriously had been appointed by Trump and filed a lawsuit demanding that a special master review everything that had been seized under this lawful search warrant. And rather than throwing the lawsuit out, which she should should have Judge Cannon really issued an order saying yes, I'll appoint a special master and created this obtuse process that was gonna take forever. DOJ for what it they want.

Yeah, she put on hold the classified documents being an everything to be used by the DOJ. DOJ fought the classified documents thing first and this is a national security shit dude, you can't. And it's an extracurably linked with the criminal investigation. So, first, before we do anything, 11th Circuit, give us the classified, 11th Circuit agreed.

Then they came back and did their full appeal for the entire judge, Eileen Cannon order, saying she didn't have jurisdiction, and one again. And so therefore they got everything back, right? And then we get the appointment. Then we get the appointment of Jack Smith. And then early 2023, now after that whole thing,

we had Christmas, nobody does anything on Christmas and the government. Then Quarkrin, early in 2023, testified pursuant to a subpoena because Jack Smith, and I think it's Jack Smith, but it could have been, you know, the DOJ before Jack Smith, and I don't, I think it's Jack Smith, but it could have been, you know, the DOJ before Jack Smith was appointed, sent out over two dozen subpoenas to people, right? That's right. And that sort of brings us to last week because per sources, the Department of Justice,

is, you know, they subpoenaed testimony and documents from Corcoran and testimony from Jennifer Little. And he came in and testified, or sometime early in 2023, maybe late January, early February, invoked a turning client privilege, and then the DOJ objected, saying, no, these aren't subject to a turning client privilege for a host of reasons, including the crime fraud exception. And then, of course, Corcoran objected to those documents being handed over, created a privilege log. There was probably a taint team. We've seen this with the Eastman emails. And so he he fought that. And then judge barrel house, everyone want to do an in-camera review of this

shit. And she looked at it. And she goes, no, the, you know, some of some of these things had to be handed over under crime fraud exception, piercing attorney client privilege, and he has to testify. So that's sort of where we are now, right? Because Corcoran had to produce documents under the crime fraud exception and had to testify. And then Jennifer Little had to testify, pursuant to the crime prod exception, but she didn't have any documents to turn over. Yeah, I mean, crazy that this stuff is happening. Dragging an attorney in front of the grand jury, the attorney who represents the target of the

grand jury, having to come in to testify. This is like, you know, this does not happen every day, but Korkin really put himself in the crosshairs here, because he's the guy that handed over the Red Weld with only 38 documents in it when they were there were hundreds more on site. He's the guy that wrote the certification saying we did a diligence search and found no more documents. So he seems to be instrumental in what looks to DOJ like an effort to deceive the government about the existence of classified documents on that property. So right from that point, Corcoran is really in a very dangerous place in this case. And now it has resolved with him having to come in to testify

essentially against his own client, which is remarkable. to come in and testify essentially against his own client, which is remarkable. Yeah. And so what I'm wondering is, is did Trump tell Quarkerin that everything had been handed over? They, they know where everything is. Or did he tell him there's other stuff? Don't go look in here. Just or only look in these places or whatever. And did they conspire to conceal those documents from the government? And it peers that it was Trump giving incorrect information to Corcoran, perhaps, to make him take the fall for anything.

I mean, he, you know, Trump's very good at fall guys, meadows, Corcoran, I mean, Cohen, we, you know, named, pick a lawyer, any lawyer. All guys, then in the old 1980s show, the fall guy. So good. Now we need to use that theme song. So and here's the thing that whole appeal, of course, because Corcoran was like, no, I'm going to appeal this judge howl order. And that went at lightning speed. We'll talk about that. a little bit in a minute here with Jennifer Rogers about the speed with which everybody had to reply and go to the appeals court. And the appellate court decision, and we'll go into detail on that.

But it was so fast. And all of a sudden, here we are today, Friday, as we record this. And Corcoran is in the as we say grand jury testifying. That's right. He is not expected to take the fifth. There's all sorts of questions. I have about that. Trump is not expected to appeal to scotus. I want to ask Jennifer about that. So I'm really excited to speak to Jennifer because I think she's going to have some really important insight on all this.

Absolutely. She's super smart and I can't wait to talk to her in just a minute. Yeah, let's do that. Let's take a quick break and we'll be back with Jennifer Rogers. Stick around. Welcome back. Joining us to explain what happened this week with the Corcoran and Little Testimony and document production is former Southern District of New York prosecutor, law professor and CNN legal analyst Jennifer Rogers. Hi, Jennifer. How are you doing? I'm doing

well. Thanks for having me, you guys. Oh, thanks so much for coming on. So, man, there's so much to talk about with respect to this whole privilege battle and everything that's going on down here in DC. I guess the first thing that occurs to me is like, it definitely seemed like certainly the appeal side of this after Judge Howell's ruling went with lightning speed. I don't know that I've ever seen a court docket move so quickly. What, what did you think about that? I thought that if I were the first one to see that pace or notification and then you have to notify the rest of your team, good news, bad news guys. Good news is they're moving fast. Bad news is they're submitting at midnight and where's the meeting at 6 a.m.? I mean, that's just nuts. I have never seen anything quite like that.

I mean, you want them to move fast, but holy moly. They don't think they got any sleep at all that night. Yeah, no doubt. The door dash vehicles were rolling up to the DOJ main building. I'm sure all night long to keep those folks fueled and running. It was really, I think, a really impressive response from the court, acknowledging how quickly this needs to get resolved. Of course, they had the deadline of the impending subpoena. So for Corcoran's, you know, follow on grand jury appearance, which of course seems to be

taking place. So, yeah, they had to get it done and they got it done, which is not always the way the court works. What do you think, Allison? Yeah, I've never seen anything like that. I think the closest I've seen is when I believe it was Mark Shorter Greg Jacob had to testify and they brought him in the next day, but I don't know that that I've seen the response, you know, where you have to file that I've seen the response, where you have to file per the order, go that quickly.

And that whole midnight to 6am is when DOJ had to respond. It was like, reminded me of that bit in clueless where they're like, should we bring him some snacks? Yeah, that would be pretty dope of us. But yeah, but here we are. And it looks like, at least from what Hugo Lowell's sources at the Guardian are telling him, is that Corcoran, in per judge House order, which happened the Friday before, which was

her last day on the bench, because Bozberg was sworn in on Saturday. That's right. That his deadline to hand over the documents, and we'll talk about these documents in a moment because they're pretty interesting that's what i thought the news was you know uh for that particular day because news was dropping every five minutes. Um that he had until wednesday to hand over those documents and that perhaps why the appellate court. why the appellate court moved so quickly was so that they could meet that deadline. I'm not sure about that, but that's according to credible sources from Hugo Loll.

What do you think about that, Jennifer? Is that something you've ever seen? Such a short turnaround for handing stuff over? I think the Eastman emails, they only gave them a couple of days, Judge Carter in California. So it doesn't seem too unusual to give him three business days to hand

over things that were pierced by crime fraud exception. Yeah, it's not a large volume of information. You know, it's not like they're saying put together boxes upon boxes and, you know, that sort of thing. And the other thing is, and this is speculative, but, you know, we're talking about the classified and other sensitive government documents and the possibility still out there that they may not be finished getting back documents from Donald Trump. So this notion of they keep trying to get stuff, they keep getting thwarted at every turn and so on, it may be the case that he is still holding on to some documents

of the government needs back. So that might also have been a reason for the court to move so swiftly, like there's national security implications here. I think that's a great point. And I think Jack Smith's team's series of legal filings, particularly the motion for the contempt motion, really indicates me that there is a burning kind of a lingering feeling on the part of that team likely that there's more out there that they haven't gotten. The other thing that really kind of struck me this week was if we go back to Howell's order from last Friday, we haven't seen the order yet because it's still under seal, but I guess sources who have seen it have been talking to the media.

And they indicated howell wrote that Jack Smith's office had made a prima fascia showing that the former president had committed criminal violations, which is just unbelievable to me, because it's almost like it's not proving the case for obstruction of justice, but it's, it's a significant showing of evidence supporting that case. So it's clearly a indicator of things to come. The first of those is, I think, an indictment. If Jack Smith's team at this point, without Evan Corcoran's disclosures, you know, having Pierce the privilege, if they're able to come in and make that prima fascia showing to the judge that there's criminal activity and the interactions between Korkren and Trump, the idea that they're not going to indict him for something likely obstruction of justice.

It's almost a fate of complete that we will see an indictment. Do you see that the same way? Or am I being a little bit too lean forward? No, I frankly thought that they had enough before this latest development, right? I mean, from the information about all the back and forth and the faults, certification and the surveillance footage of people moving boxes and then more and more things keep showing up. And then Trump keeps talking about them, right? All of which statements are usable in court against him. So I thought really they had the case wrapped up already. This is almost like icing on the cake, the notion that now his lawyer has to go in there

and admit that, you know, yes, in fact, this is what he told me and it turns out not to be true. There's also that amazing conversation that I can't wait when we finally hear how it went, the day that they got the subpoena for the surveillance footage and then the two of them talk on the phone. I mean, to be a fly on the wall for that,

that would have been fact-girding. Mr. Trump, we're getting this subpoena that says they want surveillance footage. Can you tell me what that will show? You know, that's going to be really good stuff. So I kind of thought they are in that case in the bag. And so now I agree with you. Fade a complete for sure.

Yeah. I know. Uh, just looking these very specific rooms, please and, uh, sign a letter saying that everything was handed over. And, uh, then before we turn over the suit, please move some boxes for me also. Walt bring me a diet coke and move some boxes. I think that's, you know, maybe I'm a little dramatization of what went down

in that phone call, but we don't know. It could have just been like, hey, I'm your lawyer, we got a subpoena, what do we do? It could have been totally innocent. And if it was, it wouldn't have been pierced by the crime fraud exception and wouldn't have been pierced by the crime fraud exception and wouldn't have to be testified about. And we don't know because these filings are under seal, what documents and what testimony, although we do know something, there was

public reporting for maybe see that there were six different lines of testimony that he had to that were pierced by crime fraud exception. But we don't know which ones those are. We don't know which documents are being handed over or per the crime fraud exception. We don't know which ones are handed over because of third party exception. We don't know which ones those are. We don't know which documents are being handed over per the crime fraud exception. We don't know which ones are handed over because of third party exception. We don't know which ones are being handed over because they didn't make the work product doctrine. I mean, there's all sorts of those things

that we would see in an unsealed filing that we've gone over before, particularly, I've learned about this by watching the Eastman, Chapman emails drama that happened for most of last year. But can you tell us just for a little legal education, prima fascia showing that the President had committed criminal violations? What does that mean?

And what does it mean? What do you need? What sort of standard of evidence do you have to have in order to pierce the attorney client privilege? Because it's not beyond a reasonable doubt. Yeah, so will you been thrown around some legal terms yourself, Allison? I don't know. You might be the one to answer this just as well as I can, but there's a hierarchy of these standards of proof in American law, right? And it's kind of frustrating because only one of them really has any correlation to a numeric system or something where you can really pin it, right? And that's the highest one, the criminal standard for trial.

You have clear and convincing evidence, which is somewhere in between preponderance and beyond a reasonable doubt. I personally think of that as 67%, but I have no idea why. That's not an official thing. Then below the preponderance, you have probable cause, which is the standard you need to charge someone with the grand jury or to get wire taps, that sort of thing arrest. And then you have primafacia and below that you have reasonable suspicion, you know, there are terms for when you can pull someone over in a car, for example. And even below that, the standard Andy knows well for starting a criminal investigation, say at the FBI. So it's really hard to peg these to anything except in relation to each other, I think.

But primafacial is going to be something concrete, more than in justice suspicion, something based on evidence, in fact, not reaching the level of probable cause, but something that you can kind of to put your hooks into. So she would have required not just a theory, but a showing of evidence that in fact this this should be pierced because Corcoran was either engaged in a crime or a fraud with Trump or was being used to facilitate a crime or a fraud that Trump was trying to perpetrate. So, yeah, and it seems like the latter in this case.

And I just have one quick follow on question. I'm sorry to interrupt Andy, but how do you square as a federal prosecutor? You were former federal prosecutor for the Southern District of New York. The probable cause to indict versus the federal criminal code requirement that you have to be able to obtain and maintain a conviction upon appeal, obtain a conviction and maintain it upon appeal, because that requires beyond a reasonable doubt. So there's a huge gap there between the probable cause needed to indict and to be beyond a reasonable doubt and to be able to maintain. How do you, how do people square that? Is that the old

prosecutorial discretion that comes in? You know, that's such an interesting question. And when you're a prosecutor and you're actually making these decisions, you don't think about it in terms of probable cause. You think about it as, am I going to win this case? Like, is this a case that I'm going to win? So you're thinking about it more in terms of probable cause. You think about it as, am I going to win this case? Like, is this a case that I'm going to win? So you're thinking about it more in terms of beyond a reasonable doubt. But, you know, as a constitutional matter, like, I don't know, could you, could you, I don't know,

if anyone's ever done this, could you challenge a case saying, you know, probable cause is an unconstitutional standard because you need Beyond a Reasonable Doubt to convict me. I mean, I don't know how the problem there with those two together would result in any litigation. But I can tell you as a prosecutor, you're thinking of Beyond a Reasonable Doubt Standard when you charge because that's what you need to charge. And you know, in the federal system, when you can go into the grand jury with just one witness if you want, because hearsay is allowed, it may be that you go in

with less than beyond a reasonable doubt because you don't need it. You indict the ham sandwich and that whole sort of thing. Knowing that at trial, of course, you're gonna bring all of these witnesses in person and you're gonna chase down a couple of other leads that you might have as you get up to trial, things are always happening,

you're always continuing to investigate, in part because you're then meeting with your witnesses to prepare them for trial. And so you always learn new things and kind of chase those down. So typically evidence does get stronger, but you're right, it is very weird that you have these very different burdens of proof that you need to prove at different stages of the same exact case, the same exact prosecution.

I think though it makes sense in a way. If you think about it as a DOJ policy or a direction to prosecutors, like we don't want you bringing cases just on a wing in a prayer. You've got probable cause. Doesn't mean, you know, we should be out there and dieting every single person that you have probable cause on. We should be in dieting only those people that you believe you actually have more than that. You can prove this case a trial. You can sustain the conviction.

I'd appeal it. It would seem to have a great, um, not a narrowing, but really, you know, prioritizing those cases that are the most serious and the ones where you have the best evidence. But let me ask you one more question about prima facia showing and this is just kind of a technical matter, maybe, this is for me more than it is for the listeners. This is for me more than it is for the listeners. My understanding is, particularly in a situation like this where they have to come in and make a prima fascia showing of a crime or fraud that's being committed

in this otherwise privileged exchange between the attorney and client. I don't they have to actually provide some evidence of each element of whatever specific fraud it is they say was being committed. Like it's not just saying, hey, we think that they were crime here or fraudding here. They have to come in and say, we think that this conversation was an act of obstruction of justice, let's say.

And here's the evidence we have for that, and to kind of, you know, that whatever that, it's the minimal showing, I guess, but it's gotta be evidence that covers each element of the crime, or maybe I'm thinking about it too complicated. I mean, I don't think it's that precise. Like, in other words, I don't think you would do with the judge the way that you would do with a jury maybe,

and say, here are my elements, and then you check them off, and the't think you would do with the judge the way that you would do with a jury maybe and say, here are my elements. And then you check them off and the summation as you go through them. Because for obstruction, I think you're right because it's not obstruction unless you both know that there's some sort of investigation going on and you do something affirmative, right, to metal with that in some way. But I could see like, like, what if the crime is some sort of like bang fraud, you're not going to go in there and be like, well, we have evidence that they knew that the institution was FDIC insured or that it was in the venue that we're in. I mean, so I don't think it's that quite technical with respect to the elements. But in this case, you're right that

they can't just go in there and say it's obstruction. They're going to need to show a little bit more to demonstrate what they're talking about here in this particular case with the classified documents that were taken. Got it. Got it. Let me ask you another question. From public reporting, they say Trump is not likely to appeal to the Supreme Court. And that Corcoran is not likely, is not expected to plead the fifth. First of all, why wouldn't Trump appeal

to the Supreme Court? Isn't that his thing? Isn't that his dance? And without pleading the fifth, does that mean that Corcoran's not a target? So I think that Trump didn't appeal because he knew he would lose. And not just like he knew he would lose, but he always wants to appeal any way to delay.

He'd have to get a stay from justice on the Supreme Court in order to make this mean anything, right? So I think he knew that there was just no way in the world he would get that stay. And you know, it doesn't seem to bother him too much, but I think these losses are a little bit embarrassing that he goes and he loses. And so I think they just decided that was just a complete no go. Plus Chris Kies might only have like a couple dollars left and his $3 million retainer. And you know, it's like, you don't want to spend this money on this particular thing.

Until the check clears, the next check clears. And then, yeah, I think I would be shocked to hear that Corcoran would take the fifth. I mean, first of all, I don't don't think there's any point because one of two things would happen if he did either. They would challenge that because he's not seen to be a target. The working theory, at least as far as reporting, is concerned is that he was duped. Basically, he was told a lie by Trump

and then passed it along, which means that he didn't do anything wrong, which means that he doesn't have a good faith belief that he has criminal exposure, which means that he's not supposed to be able to take the fifth. So DOJ could challenge that in vocation, but also they would just turn around and give him immunity, because again, he's not their target,

at least as far as we're hearing. So there's no point. And also think about it, you're a lawyer. You want to maintain your reputation. You go in there, subject to this order, and you take the fifth basically suggesting, okay, yeah, I think I might be in criminal jeopardy. I don't think he wants to do that

just for purposes of his own reputation too. I gotcha. Something else that, you know, I wanted to talk a little bit about these documents. Apparently there's handwritten notes, transcriptions of audio, neat, and invoices. What invoices? Any idea like what, what could these like legal fee invoices to what invoices? Any idea like what, what could these legal fee invoices to prove that he was the attorney? I don't know, what sort of, I don't get it.

What's something about a storage space off site where there was some classified documents held? I think there was a local storage space where the original shipments, they went from the White House to some sort of storage of Virginia, then to Florida, and to another storage space, and ultimately things made their way into Marlaga. So could be with that. I think certainly the notes, the handwritten notes, probably notes that he took after conversations with Trump, be that on the phone or in person. And then, of course, they talked a little bit,

we've seen a little bit of reporting about these transcriptions of audio, which I can only imagine are maybe he's making like audio notes, you know, like after the June 24th phone call, he makes a, you know, he records himself talking, like I just talked to the client, I said this, he said that sort of thing. And then someone else in his office transcribes

those later, I think, you know, there are some attorneys that work that way. But other than that, I can't imagine what the audio would be that they're transcribing. Yeah, I mean, I assume he's not recording conversations with his client. Oh my God. Oh, Lordy, there are tapes again.

But like, I mean, that's a really old-timey thing to do, right? I mean, that's fully like 75 actually dictate and then have their secretary type up those notes anymore. But that brings up a really good point. Andy, when you were talking about the evidence required to get, you know, the prima facia evidence required to pierce the attorney client privilege, you know, that could be a third party who was transcribing those notes. And that's what I was wondering, like, how did DOJ know they existed to subpoena them? Because Judge Barrel Howe didn't just get them and then hand them over, they had to have some sort of knowledge of them,

and that's where I think maybe some of these third party witnesses come into play. And that brings me to Jennifer Little, who is she? And according to public reporting, well, we know she's a lawyer for the Fulton County matter, another whole crime thing that's going on. She was ordered to testify this last week by Judge

Barrel Howe under the Crime for Out exception. No documents though. She didn't have any documents to turn over. There are photos of her on Facebook at Mar-a-Lago in May of 2022, which is before, you know, the DOJ came down to collect their first batch of classified documents where Corcoran and Bob put together that letter. But I'm thinking maybe, and of course everything, speculation, everything's under seal, but Alina Habba was also called in to testify because she was searching Mar-a-Lago pursuant to the New York Attorney General, Tish James' case looking for accounting stuff.

So perhaps, I don't know, maybe Jennifer Little was searching for documents pertaining to the Fault and County case and might have some input there. We know that she had originally been on team cooperate when she advised Donald Trump, you should be more cooperative here, along with Chris Kies, who lost the day on that argument, clearly, and then she left

shortly after, Corcoran came on. So maybe she was dismissed because she was telling people to be cooperative instead of fighting everything. But other than that, we just don't know that much about her. Yeah, I think that's a really interesting angle. And it's now that we have by this count at least two attorneys who are handling other items, whether it's New York AG case with Habba or Fulton County for little, the important thing to remember is in this context, this being the piercing of the privilege and forcing Jennifer little to testify, that's relative to her exposure to things that are relevant to the Jack Smith investigation, not Fulton County, not New York age or anything else she might be doing.

So yeah, in order for her to have seen or heard or discovered something relevant to that grand jury investigation, she had to have been at Mar-a-Lago somehow involved in the document case or the handling of the document case or the obstruction of the document case. However, you want to look at it. So it's hard to say, obviously, from your research photograph with her down there, she could have been in any of those roles. We talked last Friday about the significance of DOJs, really, their focus on the telephone call on June 24th between Corcoran and Trump, and how just knowing that they had spoken on that day from a telephone, you know, phone company records would not be enough to make it evidence in the motion. They had to have had some intel about what was discussed on that phone call and that would not have come from a recording unless it was made by one of the participants,

which seems unlikely. It likely came from someone who was sitting in the room with Trump or maybe sitting in the room with Korkren and heard half of the conversation. And then was then able to indicate that to the grand jury or to the investigator. So. Yeah, a lot like the pen's phone call, right? Exactly. January 6, pen's phone call. And that would be a little evidence. And I was thinking of that too. Like somebody had to witness this stuff. Yeah, because Jennifer, like that phone call doesn't become relevant to the piercing of the privilege until you have some content until you can say what they discussed.

The fact that an attorney talked to his client the day he received a subpoena from DOJ is not unreasonable or outrageous by any stretch. Yeah, that's right. And you know, you start to think about how you breach the attorney client privilege. One way, of course, is to allow a third party who is not part of the privilege to listen in.

So, you know, if that was a case, if someone who's not part of the privilege was there, you wouldn't have a genuine attorney client privilege anyway. Right. But you could also see the scenario in which someone kind of comes into the office and here's a little snippet, you know, and then goes out. So maybe it's not enough to really wave the privilege, but they hear enough that when they're interviewed, they can say, I overheard this. And, you know, that gives them enough to go in and say that there's the crime fraud exception. So we don't know, of course. But you're right. They definitely needed more than just subpoena comes in and phone call

between lawyer and client happens. Yeah. So typically, let's say they have that conversation and another lawyer is present in the room with Evan Corcoran. If it's another lawyer who's working on the same representation, that probably would not waive the privilege, right? But if that lawyer later cooperated with the government, maybe now you have the information you need to know what the content of that call was that allows you to move to get the privilege pierced. I don't know. Maybe that's too complicated. No, but we also don't know if that phone call has to be testified about because of the crime fraud exception or because of third partyparty waiver or you know something else We we aren't we don't know the specifics of each of the lines of questioning and documents and what privilege was pierced by what you know

So I'm assuming at some point we'll find out. I love how judge how when she left She's like look has asked about her legacy and she's like what's all under seal? So I you know there's really not any So it'll be she's like well know in it's all under seal. So, you know, there's really not any. So, it'll be, she's like, well, no, in like 50 years. So, I don't know, but, you know, I'm just, I'm exaggerating there. But one last question before we let you go, Jennifer, and this is about the Manhattan DA's case.

We've been, you know, looking about, looking for imminent indictments from the Manhattan District Attorney. And I know that this isn't under Jack Smith's purview, but it does have national, federal, national security implications because Donald is now calling for violence on his social media platform.

By the way, his social media platform is under federal investigation by your former office at the Southern District of New York for potential Russian money laundering, but I digress. Let's not get distracted. Yeah. Yeah, Another crime.

But he posted on true social calling for death and destruction, if he's indicted. He then posted a photo before that. He posted a photo of him with a baseball bat next to Alvin Bragg. Could this kind of behavior as a prosecutor lead to the DOJ asking for pretrial detention or are we still pretty far away from that? Yeah. It's so outrageous. I mean, just the notion of being targeted in that way and the intimidation attempts and threats,

or I mean, it's, I don't even know what to say about it. I mean, I don't think Elvin will be distracted or deterred, but I mean, it's just, they're just no words. But, you know, the problem in New York, in New York state, which is where the Manhattan DA would charge, is that we had some bail reform up here in New York a few years ago. It is very, very hard to detain someone pre-trial.

Now in New York state, effectively, the only reason you can detain someone is if they are a flight risk. Even if someone is dangerous, it's very, very hard to detain them, or even put bail on them. Most people are now released on their own reconnaissance. So, even if this were personal threats, you could see how they would have a tough time detaining

him. Threats that are more, oh gee, if you do this to me, people are not going to be happy, people should be outraged. This is outrageous. You are a, what was it? I don't know, the psychopath, you know, whatever the language was. Um, animal, he called him, he used the old dehumanization tactic to, you know, help promote violence against out groups by calling an animal. Yeah. I mean, all unbelievably horrible things. But the point being in New York State, it's very, very hard to detain anyone, even people

who are personally dangerous themselves. And, you know, so if Donald Trump were on, we're charged with a violent crime and made an explicit threat of violence towards Alvin Bragg, maybe, but this is not that. And so I don't think there's any chance of pretrial detention at all. You know, I think you also wanted to talk about a gag order. That's certainly more possible. We know that when Roger Stone was tried, he ended up under a gag order and Paul Manafort did too with Amy Berman Jackson for their shenanigans. So that's certainly more possible, I think, but the detention is not going to happen. And I've been thinking about, you know, because of course, any statements by a criminal defendant

are admissible if they're relevant in a trial. So I've been thinking about whether there would be a way for these statements of his that he's now making to come in at this trial. If there's any way that this becomes relevant and I don't know, I can't think of a theory right now that makes it obvious, but I will tell you that the DA's office is collecting these statements and that they will certainly be ready to use them if it becomes relevant, if there's a way that they can to make them admissible. It's really horrific stuff. If you're trying to prove witness intimidation in a different, in another matter, I think it could be used as a totality of evidence kind of thing to prove a pattern of behavior we saw in the, in the Mueller report,

in volume two under obstruction of justice for that too. So I could see, I could see them coming into play and maybe is that kind of evidence to just sort of show a pattern of behavior. Maybe. You just have to think though, this is a, if it is what it is, supposed to be what people are talking about it

being a prosecution about falsifying business records and then maybe intending to benefit your campaign improperly. So unless it steers more towards something like you say, witness intimidation, I don't know that it would come in, but I think it still remains crazy that he's saying these things not only because of what they are and what they are and what they can do, but for his own self preservation reasons, I mean, Donald Trump, if he's good

at anything, he's good at self preservation, right? And so some of these statements he makes are just so, you know, don't seem to make a lot of sense from that perspective. Yeah. So in that regard, it's like, if you're on this prosecution team, it's like just stay tuned because there's no limit to what he'll say or how often he'll say things. It's often to his own detriment. And, you know, yeah, it looks like a business, likely a business records case. And then having to rely also on, you know, campaign finance problems to bootstrap it up to the felony. But who knows? We're a long way from a prosecution here. I mean, witness intimidation.

Sure. Is that on the menu? No doubt. Everything's on the menu with this guy and this team of kind of a gang that couldn't shoot straight. So we'll see how it goes. Yeah, he could he could run the 18s, right? Just run title 18, the whole thing on the entire title. One thick book.

Yeah, get a bit of perfect score, so to speak. I prefer to go know that's just me. Thank you so much for helping break this down and talk about the legal ramifications. Everybody must follow Jennifer Rogers on Twitter if you aren't already and we appreciate your time so, so much CNN legal analyst law professor and former federal prosecutor at seven district of New York. Jennifer Rogers, appreciate your time today. Thanks you guys. This is a lot of fun. I'll come back anytime. Oh, we're going to hold you to that. Thanks so much, Jennifer.

Everybody stick around. We'll be right back. Oh, oh, oh, who is really kicking ass in the scoops this week with the Jack Smith documents case in January six case. We found out that Tim Parlator. Remember, he's the kind of he's a guy that's sort of in charge of the private investigators that searched the rest of the, you know, properties per the the order to compel by Judge Barrel Howe to keep searching. These are the guys whose names they would not reveal.

Yeah, who they eventually did reveal and testified. Well, we found out just this week Tim Parletor testified voluntarily on December 22nd before Jackson, Miss Grand jury. Wow. He was not subpoenaed. He just showed up. And days before he testified, he told DOJ and Judge Barrel Howell that Trump's legal team searched Mar-a-Lago again and found four more classified documents. And here's his statement to ABC.

I voluntarily and happily chose to go into the Grand jury so that I could present my clients case to them in the context of our search efforts. During my testimony, it was clear that the government was not acting appropriately and made several improper attempts to pierce privilege and, in my opinion, made several significant misstatements to the jury, which I believe constitutes prosecutorial misconduct. And what's interesting is we have a... Thank you, Judge Parlator. We have an identical per-curium order, a minute order from Judge Hall about a decision she made,

March 3rd, that someone else has to produce electronic information. And I'm wondering if it's good old Tim, but, you know, we'll see. Hey, could me. I've done a lot of work with grand juries over the year. I've test- or over the years, I've testified many times in front of grand juries

and cases I was working. And I can tell you right now for a fact, nobody voluntarily and happily goes in front of a grand jury, not even the agents whose job it is. So yeah, I feel like there's a little bit of polish on his statement that might not be entirely accurate. Yeah, and when he says that the government was not acting appropriately, that means they were asking him questions that he didn't want to answer.

They did not. They did not. He probably inappropriately invoked privilege and that was probably pierced by Judge Barrow Howe already. He might already be on his way back into the. That's right. You never know. I read this as him saying they did not allow me to make a long self-serving speech.

They were peppering me with questions about things I did not want to ask. Yeah. Just him and Robert Costello, the only two guys who voluntarily go in to talk to you. Yeah. No agenda there at all. Nothing to say. Yeah. Okay.

And also an explosive news from the January 6th grand jury this week, we learned that in a sealed order last week, our favorite, the iron woman of a grand jury proceedings, Judge Barrel Howell, rejected Trump's claims of executive privilege over multiple Trump aid. So it sounds like she was really busy that last week. She cleaned up a lot of, a lot of, a lot of hanging chads as we would say. A lot of things that were lingering out there. And she apparently obliterated the claims of executive privilege for the following folks. So this would be Mark Meadows, Robert O'Brien, John Ratcliffe, Stephen Miller, Dan Scavino, Nick Luna, Ken Kuchinelli,

and maybe my favorite Johnny McIntee. Good old Johnny Schmiernaf ice McIntee has to go in and testify. Now, some of these guys are already testified and invoked some sort of privilege and some of my hadn't, but she just blew the privilege off for all of them. Yeah. Yeah. And this is, I'm sure not the last we'll hear of this because a lot of these guys will likely appeal or Trump will appeal, you know, um, he'll, he'll appeal his privilege on his privilege and trying to stop them from testifying. You know, Meadows obviously is a guy who could be the most significant witness to everything around January 6th.

So I love the idea that the investigators are still really going after getting his testimony. Yeah, me too. But it's definitely gonna be an interesting first week on the job for Judge Bozberg. Oh my gosh, no doubt. As the new chief judge in the DC court, the DC district court. So good luck, Jeb, Godspeed.

I wish you the best. And, Judge Hall was like, you know, there's not a lot going on. I'll leave you a memo and, you know, it's really, there's just a couple of things that I've finished up and it's going to be a light load for you. He's now like, what? Here we go, just these. No biggs. And then one last story, the Washington Post reports that the Berkeley Research firm report, remember that? Trump paid 600 grand for the Berkeley Research firm to look at over a dozen different lines of voter fraud. He wanted them to prove voter fraud.

They came back and they said there was none. That report was given to Trump according to sources on January 1st, 2021, the day before the call with Raffinsberger when he still went on and insisted all that shit, still went on to sign the lawsuits with the claims, the inaccurate claims. And DOJ got a copy of that Berkeley Research Forum report pursuant to a subpoena in January.

They subpoenaed them for this stuff. And I hear my, how it went. The Berkeley Research Forum was like, we didn't get paid. Let's go talk to the DOJ. And DOJ is like, yeah, can we have that? And they're like, yeah, just send us a subpoena, friendly subpoena. And so they did and then they handed it over

because there was no fight, there was no battle here, right? It's got the report. You know, there could have been that motivation over a paid bill or an unpaid bill, but it's also possible, like these outside contractor companies, they don't want to get dragged into this thing. I'm sure they're not banking on additional business from Team Trump because they didn't hit the mark the first time. They gave them a, what sounds like it was probably a truthful report, which

is of course, probably not what they were looking for. And so when they, when DOJ came knocking or FBI agents showed up at the office, they're probably like, we'll give you whatever you want. Just give us some legal process and we're all good. The subpoena protects them from being sued by whoever contracted them from the from the Trump team. So that's a pretty standard thing. Yeah, pretty normal. Mazar's wanted a subpoena.

Yeah. But you know, Mark Short and Greg Jacob wanted subpoenas. They wanted the privilege battle to be over before they testified fully. Chapman University wanted to hand over all Eastman's emails before Eastman jumped in and then tried to sue to block. But nobody, I don't think there was anybody sue into block this unless that's why it didn't do. That's why the DOJ didn't get the report until January, but we don't know what's going

on with the rest of that. But it is time for a listener question. That is right. So we're gonna have, there were a lot of questions this week about the same topic. So I have two questions here, but it's the same thing and I'll address them together. So the first one comes from Jamie.

Jamie says, is there a way for the independent council and the Manhattan DA to coordinate their efforts, i.e. indictments? I know they're separate cases and separate jurisdictions, but everything seems to be moving fast, especially with the latest rulings from Judge Howell. And then Bob writes in, thank you. How does the DOJ coordinate multiple

and possibly concurrent or overlapping criminal prosecutions among multiple state and federal jurisdictions regarding the same defendant? among multiple state and federal jurisdictions regarding the same defendant. So the short answer is they don't. Jamie's references are correct. The fact that these investigations are taking places in entirely different prosecutors' offices. So, you know, you have the special counsel at the federal level and you have, let's say, DA Bragg in New York County, which is essentially

the island of Manhattan. They're very different. They're proceeding under different processes. They have different grand juries and the offenses will be based on different law, federal or state. I brought this issue up because you've heard a lot of commentary this week about people complaining from both, both ends of the political perspective about the Manhattan case and the fact that it seems like the least significant of the investigations that, that the former president is facing right now because it stems from a personal indiscretion, a alleged affair with, with Stormy Daniels, which would, you know, he paid allegedly paid hush money to cover that up. That's in itself not illegal, but then possibly falsified business records to cover up payment, yada yada yada. People thinking

that happened a long time ago, why doesn't Bragg wait and let the more significant cases go first? And the answer to that is they don't really have that choice. You know, the prosecutors on every level, they are presented when the investigation is done, they look at the facts, they look at the law, they have the discretion to go forward or not, but there's not really an opportunity in the system or it's not a part of the system to like call around

to other people that are investigating similar things. And, you know, your case is better, why don't you let that one go first, or we'll go second. It just doesn't happen that way. The systems are drawn so that people, you know, prosecutors move forward when the case is ready, and, you know, they don't want statutes of limitations to tall, they don't want their witnesses to get older and less clear about whatever it

is they're going to testify about. So, yeah, it's not quite as choreographable, if that's a word, as people suggest. I like it. Yeah, no, I'm with you on that. I mean, I wish that Fahnie would be able to go first, but that's just my personal preference. But look, people also have to remember, like you said with regard to the stature limitations,

this hush money payment case that the Manhattan DA is, you know, about to bring if he decides to bring it, if he decides to bring it, I don't want anybody to call me a hopium peddler, if he decides to bring it, is seven't want anybody to call me a hopium peddler. If he decides to bring it is seven years old. This happened seven years ago. And the falsifications of business records happened about five years ago. I don't think that the statute of limitations is anywhere near tolling. Otherwise, they wouldn't even have bothered to come into the

grand jury if that was the case. And we'll find out, I'm sure, because Donald Trump will use stature limitations as a defense, and then we'll find out what the Manhattan District attorneys' calculation, how they calculate what the stature limitations is on this. I don't think we're close to seeing the stature limitations. I don't think we are either. I've heard a lot of, I'm not an expert on New York's

state law, but I've heard a lot of people commenting that it's not an issue in this case, right? Now, I don't know how the math works out exactly, but I can't remember but oh, I do. Even if you go by the last check, which was issued in October of 2017, and you add the 288 days that that Cuomo told the statute of limitations for all crimes in New York because of COVID, that puts us in the first week of June. And that's just on the checks.

If there were back end falsification of business documents, records, filing for tax returns the next year for the previous year, then we would see that be next June of 2024. So you got this thing. And that doesn't even take into account the fact that sometimes the statute of limitations tolls when the person doesn't live in New York

and he moved to Mar-a-Lago, we know. But then, you know, he'll claim he doesn't have residence there because it's a golf club. There's all sorts of weird different things that are playing in. But what was, was that the second question? Yeah, that was both questions. They were both hitting on the same kind of why doesn't, why don't we coordinate these things and send the most important case down the pike first, you know what? Just doesn't happen that way.

So we're going to have to wait and see. Yeah. You want these federal and state and local prosecutors to follow the law and the facts and prosecute when they're ready to prosecute regardless of who's doing what elsewhere. Now, you know, sometimes DOJ is like, hey, don't release that, you know, evidence yet or what, you know, they might like reach down and say, hey, chill for a second on this particular piece of evidence during discovery after a case has already

been indicted or something like that, because we're working on it. But I've seen that here. I've seen different prosecutorial teams fight viciously over things like access to witnesses. So if there's like a federal crime, if there's a federal trial coming up and a state trial and the same basic facts

that are gonna involve the same witnesses, you know, the feds will come in and say, we wanna use the witnesses first because you always wanna have the first go at the witnesses. But it doesn't always go their way. You know, it doesn't, simply coming in and saying we wanna be first,

we think your case is less significant than ours. That doesn't always resolve the issue. They independent sovereigns can go at their own speed. And I think that's what we see happening here. Yeah. And that's going to be especially important in the Fanny Willis case, not so much the Manhattan DA case, because there are overlapping witnesses and crimes between the Fanny Willis case and Jack Smith's January 6th probe, especially over the fraudulent electric scheme. So, you know, I don't know, I believe I've read public reporting that they do talk, but not necessarily coordinate, at least to give each other a heads up about what witnesses they're subpoenaing or evidence they're bringing in, but maybe even sharing evidence between the two offices that I know that that

happens sometimes. It does. But it would be more of an impact, I think, with Fault in County than it would with the Manhattan D.I. Because, you know, Pecker and Stormy Daniels and Cohen, these aren't going to be witnesses that have anything to do with what Jack Smith is looking into. That's absolutely right. That's absolutely right.

Yeah. And I don't mean to downplay any particular crime or prosecution. They, you know, if you've, like I said, if you've got the facts and the law, you, and you can prosecute, you do. Of course, exactly. Yeah. Exactly. All right. We'll be on indictments watch and you can, you can actually follow indictments only on Twitter.

If you aren't interested in news and analysis on Mollart Mollarshi Road, I don't, I don't see how anybody listed to this show wouldn't be interested in that. But indictments only, all it will do is tell you that somebody's been indicted. That's it. I've just created that. That is brilliant. That's for your hardcore people that just want to data feed. Don't tell me what it means.

Just give me the data. Yeah. Yeah, the people who every time I put a new story up are like, y'all, wake me up when he's indicted. Okay, here you go. Here you go. Turn on on notifications, ding ding. You'll get notified at indictments only. Sounds like a weird dating site for Trump lawyers.

All right. Thank you so much, Andy. This has been a wonderful, wonderful show again. Maybe I should have made it. Maybe I should have made it at Grand Jury's only. Okay. Well, then somebody was, somebody said, I'm not holding my breath.

And I said, don't make me create holding my breath as a Twitter account. That's awesome. It's busy week, but hey, always fun to do and look and forward to seeing what happens next week. Yeah. And I got to stay with this whole cork and thing. And the fact that more than two dozen witnesses has already been subpoenaed and they've broken through and lost the appeal, this seems like it's toward the end of this particular obstruction piece of the documents investigation. I don't know what's going on with S.B. and Aj, but it's, yeah, it's got a huge head of

speed. It cannot be, in my opinion, the indictment cannot be stopped. And the opportunity to get this testimony out of Corker and this could be the silver bullet that makes that case just unbelievably strong. Like Jennifer said earlier, they have enough to move forward with indictment now, but they're really going for the icing on the cake, I think. Yeah, that's, yeah, you're right. The exact, the smoking gun, which also is circumstantial evidence, but we can talk about that next week. Cool.

Thank you so much, everybody, for listening to Jack. We appreciate it. If you want to become a patron and get this episode and these episodes, add free, you can do so by going to patreon.com slash muller sheet wrote, if you pledge at the $5 a month level, you get both Jack and the daily beans, add free. We thank you so much. I've been Alesson Gill and I'm Andy McCabe. We thank you so much. I've been Alesson Gill. And I'm Andy McCabe. We'll see you next week.