Jack - Episode 19 - 1512(c)(2)

Episode Date: April 9, 2023

This week, Trump’s request for an emergency stay to block Meadows and 7 others from Trump’s inner circle from testifying is denied; more evidence of obstruction in the Mar-a-Lago documents case; members of the Secret Service will have to testify; Pence will not appeal his partial win; and more; plus listener questions.Do you have questions about the cases and investigations? Click here: https://formfaca.de/sm/PTk_BSogJFollow the Podcast on Apple Podcasts:https://apple.co/3BoVRhNCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AG on Twitter:Dr. Allison Gill https://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on Twitter, but you can buy his book The Threathttps://www.amazon.com/Threat-Protects-America-Terror-Trump-ebook/dp/B07HFMYQPGWe would like to know more about our listeners. Please participate in this brief surveyhttp://survey.podtrac.com/start-survey.aspx?pubid=BffJOlI7qQcF&ver=shortThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

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.

Hey everybody, welcome to episode 19 of Jack, the podcast for all things, special counsel. It is Sunday, April 9, 2023. And despite the historic news of the arrangement of the former president and the autocracy of foot in Tennessee, we do have some stunning news out this week, the special council investigations. I'm your host, Alison Gill. And I'm Andy McCabe and Alison, you are so right. There were major advancements in the Jack Smith probes, including the appellate court denying Trump's request for an emergency stay to block the testimony of Meadows at all. So by Meadows at all, of course, I'm talking about Meadows, Cuchinelli, Scavino, Steven Miller, Nick Luna, John McIntee, Robert O'Brien, and John Rackliffe. So that's eight distinguished former guvies. And, you know, I was thinking we really need a name for this

group. So go with me here. I'm going to suggest that we run a contest. The first ever Jack contest. And what I would propose is that if our listeners want to send in, you know, creative, funny, not completely riballed names for this distinguished eight, we will pick them next week and we'll announce the winner and whoever wins I will agree to record the outgoing message on their voicemail. Very cool. That was very, very, very wait, wait, don't tell me of you. I'm absolutely Yeah, yeah, I might have just discouraged a lot of people from Funding Yang because of the figure who the hell would want that? But, uh, yeah, so there we go. Contest for the name of the eight. And you can just send those into the

address that you normally use for questions, which is remind us again. Uh, that's hello at mullershiwrote.com. Uh, and that's a really, I think, a great first contest for us to have the unpriviled eight, however you want to refer to these guys, these guys who testified and then were invoked some sort of executive privilege because of discussions directly with Donald Trump. And we'll talk about that a little bit later. But not only that, we have other major news. We just got an appellate court decision in the DC Circuit Court of Appeals on that final,

what I call like a legal hanging chat. And that was Judge Nichols ruling, dismissing the charges against a couple of January 6th rioters. They were charged with Title 18, code 1512 C2 and Nichols held that C2 was somehow married to C1 and because of the word otherwise and that that meant that not only just assaulting a cop on that day isn't enough. You also have to have had some sort of document or record or something like that involved. And it's like, I think 17 other judges ruled that it was an appropriate charge, but this one guy, Judge Nichols said it wasn't. And that was being heard by the appeals court, the DOJ appealed that. And we'll talk a little bit about that because it

was really important that the DOJ get a decision on that because when you charge, let's say you go to charge Trump with 1512C2 obstructing an official proceeding, if if there's an outstanding ruling out there that it doesn't apply, you could risk having your decision or your conviction or your charges dismissed or your conviction overturned on appeal on an ambiguous interpretation of the law. We've seen it before and we'll talk about that a little bit. We saw it with, you know, when we talk about in our episode, who is Jack Smith, he was the one who prosecuted the governor of McDonald, McDonald, right? And the Supreme Court overturned his conviction, that Jack Smith, as a matter of fact,

misinterpreted the statute of bribery. And that is what now makes bribery so hard to charge. Yeah, almost impossible. Because you have to basically say, hey, here is a sack of money. Please tank this legislation. You know, in order for it to be considered bribery, and funnily enough, Justice Thomas was accepting bribes when he made that ruling. It's all a kids' rat, right? It comes all back around, or back around to the circle of life with corruption anyway. But yeah, you're absolutely right. And this thing, we'll get into the details of it in a bit, but it does show how DOJ carries another

burden in all these cases. And that is to make sure that they're not bringing a case that might create bad law. That would not only impact that negatively, impact that case, that prosecution, but many prosecutions to come. And so it's really important that they fought this thing and they did, and they look like they've cleaned it up a bit, which is nice. Yeah, we got it up a bit, which is nice. Yeah, we got it up through the appellate court. There was one dissenting opinion in the Trump appointee, Rao, I believe, but we'll talk

a little bit about that. And we got major news in the classified documents case, including secret service testimony, which is rare. And reports that the special counsel, Jack Smith, has amassed more evidence of obstruction at Mar-a-Lago. But first, Andy, we made a prediction last week. We did. Well, let's listen to a couple of clips from last week's episode of Jack as a reminder.

A pen says been asked about whether or not he's going to appeal, and he said, we're looking at that, we're weighing that, and we haven't heard a decision as of this recording as to whether or not Pence is going to appeal this to the DC Circuit Court of Appeals. But in my opinion, I don't think he will. I think he's going to take, because he's spun it as a partial win, I think he's going to take this win, because if he appeals, he risks a total loss. And that would be bad. I think he's going to take this little w that he's

found here. And by the way, this has changed the way that vice presidents, they have a privilege now when they're as sitting as president of the Senate on the speech or debate class. But I think they'll take that. I think you'll take this win and you won't appeal it. And finally, I will say that in talking to a couple of very well-connected folks in town last night, Pence was interviewed on CNN last night by Wolf Blitzer, which was a pre-planned kind of scheduled event before the news broke about the indictment. And a few of the folks that I was talking to seemed very confident that Pence was going to say during that interview that he was not going

to appeal the verdict. Oh, we got a little inside scoop. Yeah, I mean, Eddie McCabe and the Thumbnail. This is speculative and so who knows? Well, now we know from ABC news, former vice president Mike Pence will not appeal a district court ruling and will comply with the grand jury subpoena requesting documents and testimony related to attempts to overturn the 2020 election. Quote, vice president Pence will not appeal the judges ruling and will comply with the subpoena as required by

law. And that's what we were sort of speculating, that's exactly what we were speculating he would do. He would take his little win, his partial win, and say, see Trump supporters. I fought and I won a little. And but now I have to, the law requires me to go in and testify and, you know, take out my opponent. Yeah. This was essentially, this is the equivalent of like winning the coin toss and then claiming you won the entire Super Bowl.

Like, right, eaked out a non-defined but now judicially recognized a speech and debate privilege application to the vice president of the United States when he's performing his duties as president of the Senate. So it's pretty narrow, but nevertheless, and in the lost column, he still has to go in, get sworn in, sit in front of the grand jury and answer questions about all of his interactions with Trump in the lead up to January 6th. And the lead up to his execution of his president of the Senate responsibilities, which really is probably 99% of what Jack Smith wanted to ask

him about anyway. Yeah, and that's why I figured Jack Smith wouldn't appeal either. So far, he hasn't. I don't think he will. He got everything he wanted, basically, out of this whole thing. Judge Bozberg also ruled that Pence would have to provide answers to the special counsel on any questions that implicate any illegal acts on Trump's part. And this isn't totally unprecedented.

Andy, there was a ruling like this that granted speech or debate clause privilege to vice president Dick Cheney back in the day when he was supposed to testify. I forget what he was testifying about hunting accident where he shot somebody in the face. No, probably not. Probably more like a Scooter Libby thing or something, I honestly don't remember. But that finding kind of matches this finding, and now Pence is gonna have to go in. And that's good for Pence,

because he gets to act like he fought and the law and won. Yeah, a little bit. Yeah, gives him a little cover. So he, you know, I resisted. I was, I was down with the magas. I was, I was resisting Jack Smith and the, and the awful weaponized DOJ. But I'm also, I'm long order guy. He also gets to go in and take out his opponent with testimony that

will be extremely damaged. Revenge is a dish best served cold or something. I guess this one's pretty cold by now, but yeah, he gets to play, you know, Mike Pence, I'm trying to clean this up a little bit. In my mind, it's coming out much more profane. Mike Pence has one half of his butt on one side of every fence and the other half on the other side. He is the consummate, ride it right down the middle. Don't come out and take a hard stand, just like trying to make everybody happy. And by doing so, we know that he usually makes basically nobody happy, but that's what he's done here. Hey, I resisted.

That's his appeal to the hard right. But also, I'm going in to do my duty. I'm a rule of law guy. I don't stand with what Trump did on January 6th. So he's trying to appeal to those, you know, less extreme more middle of the road, conservatives and stuff. And like you said, he also gets to sit behind closed doors and say whatever he wants now about throwing his former boss onto the bus, if in fact he's going to do that.

I think he will. And we can talk about that. A lot of folks have asked if he will go in and plead the fifth. I don't think he will because he's not a target in this investigation. I don't think Jack Smith is investigating Pence in, you know, with regard to January 6th and the obstructing and official proceeding there or even seditious conspiracy. I think if he does feel like he might incriminate himself and if he pleads to fifth, I think the way that it can work sometimes is that the prosecutor in the grand jury will say, oh, you're going to take the fifth. All right, hold on.

And then do, do, do, do, do, run across the hall to Judge Bozberg and say, hey, Judge Bozberg, we want to give an immunity deal to Pence or we want to, you know, tell you, we want you to tell him he can't plead the fifth because he's not being a criminal. He's not, yeah, investigator. Either way, same result. And they can settle that like right there. And then, right? Yeah, so it's entirely up to DOJ. It's a, it's a DOJ prosecutor's decision to grant immunity and so they could just do that, but it then would, they would rely on the judge to then order the vice president to testify because he'd been granted immunity. So it's like a two-step process there, so it would be very helpful to be able to get that done quickly. Yeah, and so yeah, that's what, that's what Pence did here. He took his little win.

And you know, instead of risking a total loss by appealing, he gets to he gets to ride both sides of the fence. Like you said, like a fly fly on the head is worth to on George Bush. I don't know. Either way, he gets he gets to's, it's a win-win for everybody. I think that's right. It's a loss for Trump. So we have other privileged news. It's like the nonstop river of a privilege battles. I don't think they're, they're quite, we're quite at the end of this one yet. We'll probably see a few more, but you're right. Trump lost his shot for emergency help from the federal appeals court in Washington to block some of his closest advisors from testifying about him. Yeah, and it was fast, right? Oh, super fast.

Yeah. Monday night, Trump's attorney's asked for an emergency stay to block the testimony of Meadows et al, which is just a temporary name for that group. Until next week when we have our official contest winner name, another, you know, overnight homework assignment for the court, the sides had to brief their issues, get that stuff submitted on a super fast basis. Overnight. That's right, overnight.

And then the appeals court made their ruling public on Tuesday in the middle of indictment, Mania. So it was a brief kind of a chiron at the bottom of the screen for 15 seconds, but actually a very significant instead for a couple of reasons. First and foremost, I put these guys right in the crosshairs of Jack Smith's grand jury. So they've got to go in there. They got to show up and they have to answer questions. They can't claim privilege. And secondly, it is just the latest in a string of resounding losses in Trump's efforts

to exert executive privilege. Now, no, you're not surprised by that. And probably our listeners aren't surprised by either. But legally, it's pretty significant because at some point, he either has to stop filing these ridiculous things or they're just absolutely blatant attempts to delay the process. Nobody should have really much hope of succeeding on an executive privilege claim in this investigation. Certainly not on the grounds that he's been using so far because they've lost them, lost them, lost them. Yeah, executive privilege of former presidents must give way. USV Nixon, right?

Particularly when there's a grand jury. So yep, yep. And I think it might be sinking in because he is according to sources unlikely to appeal to the Supreme Court, this decision. So that's good. That's good news. But this was so fast, Andy, that Monday night, right, they asked for the emergency stay. The court said, give us all your filings by the morning.

The next day, Tuesday, a rainment central, they denied the emergency stay. Now the underlying appeal can go forward, but it doesn't matter because these folks are going to testify. And so they made their decision Tuesday. And then as early as Tuesday afternoon, Kuchinelli was back in front of the grand jury the same day. The coach back in front of the grand jury. It's, it's just moving quick. And that's a good thing because they got seven more of these, not particularly distinguished gentlemen, that'll be following close behind him, hopefully in the next few weeks. Jack Smith is running the table on the grand jury. I mean, I don't, you know, there may be sealed battles that were not aware of at this point,

but so far, all the high profile stuff that we've learned about from sources or from appellate rulings and things like that, he is coming out on top in each one of these fights. And that's a pretty good record for him and his team of lawyers. Yeah, he's batting a thousand. I mean, unless you want to consider, you know, Pence's sliver of a win, but that doesn't exempt Pence from testifying about anything that Jack Smith wants him to testify about, which are the crimes that Trump committed.

That's right. I call that a win. But I don't want to take that W away from Mr. Pence, okay? Because he's living in that, he's built a city around it. That's what he needs to get himself there. It's fine with me, just show up. Yeah, these appellate judges, by the way, that decided this privilege case were millet,

Wilkins and Cotsis. And that's an Obama, Obamakins, and Cotsis. And that's an Obama, Obama, and a Trump appointee. And I don't know if this was unanimous or not. I don't think that they actually, it's filed. It's under seal. So we don't know if there were any dissents or anything like that that we can see. All right, we have some information about what Kuchinelli testified to, at least earlier

in the year, but we're gonna have to take a quick break first. So everybody stick around, we'll be right back. ["Fantastic Song"] Welcome back. All right, this week, Zachary Cohen at CNN reported, and I quote, former top national security officials have told prosecutors and testified to a federal grand jury that they repeatedly told former

president Donald Trump and his allies that the government did not have the authority to seize voting machines after the 2020 election. That's big. And I think it because it goes toward intent, right? Like just how we had to, you know, we're trying to prove that Trump knew he lost. This kind of adds to that pile, right? Yeah. Nobody's trying to build a case against Trump for attempting to seize voting machines. That's not really a thing. But it's one more piece that goes to this picture that the special counsel team is trying to paint that everything he was hearing from his cabinet secretaries, to his

senior staffers, to his lawyers, to even personal advisors, was in the same vein. It was, there's nothing to this. You don't have the legal authority to seize voting machines. This election was not a fraud. It was not stolen. There's no significant fraud. Bill Barr famously saying it wasn't enough fraud to attack the election. All of that undermines what will likely be Trump's defense in the event he is indicted, which is, I truly believe the election was stolen and I was doing what I thought was necessary to, you know, restore the

rightful result. Be, ask, you had to have known it was stolen because of all this input you were getting from all these people. Yeah, 100%. And, you know, the thing that I think is really important here is that, you know, we saw it in the Mueller report, right, with the obstruction stuff. They weren't going after Trump specifically for dangling a pardon to Cohen, for example. Right. Right.

That was just a giant, that was like a log on the pile, the giant pile of intent and proving a pattern. I believe the words totality of evidence were thrown around quite a bit. Absolutely. But he, you know, Kuchinelli, who is the former second in command at DHS, right? He was asked about those discussions earlier this year, earlier in 2023. And I have to imagine that what happened was, and so was Chad Wolff, right?

And they both testified, we told him a million times, you can't seize voting machines. You can't. He, Trump also went to the DOJ to try to seize voting machines. He went to the US Marshals to try to seize voting machines. He went to the Pentagon to try to seize voting machines. He went to the Pentagon to try to seize voting machines. And what Kuchinelli and Wolf have testified to earlier in the years, no. And they probably asked him, OK, well, who did you tell?

Well, we told Rudy, right? And they can testify about what they told Rudy Giuliani, because there's no executive privilege blocking that. But what they probably said was what did you discuss with Trump, is particularly on that December 18th chaos meeting in the Oval Office, and they probably said, look, there's a privilege battle going on right now,

and we want that resolved before we answer that question. I don't want to testify to any discussions that I had with the former president until that privilege question is answered. until that privilege question is answered. Now that privilege question is answered. And the same day it was answered, they dragged the coup, the coups back in. And so I'd right now tell us what you discussed with Trump with regard to seizing voting machines. So that's pretty significant.

It really is. And you have to imagine a guy like Kuchinelli, I mean, he's kind of a figure in Virginia politics. He ran for governor unsuccessfully. I think against McCall. He's a guy who is probably going to try to remain in Republican politics in this area. He, like kind of like we talked about Pence, right? He claimed the privilege, refused to answer the questions. The privilege battle goes to the chief judge and now to the pellet court. Now he's off the privilege hook, right?

So he's going to come in and relate whatever those conversations were with Trump and hopefully we'll get some more detail about eventually. We'll get more detail about that crazy meeting on December 18th, where after being told presumably by Kuchinelli and others that he did not have the legal authority to seize voting machines, the Wonder Twins, Sydney Powell, and Mike Flynn are in the room.

They love a coup, form of a treason. It's so crazy. Yeah, they had written up some executive orders, right? They drafted them. They brought them in. Handily drafted some executive orders, seizing the voting machines and hand them those over over to Trump, which I don't think there's any information that those were ever signed, but, but we'll see as the story develops. Yeah, we'll see. And I think it's fascinating, by the way, this little buried lead here in this story from CNN, at the very end, they're like, oh, by the way, Rudy Giuliani's lawyer, Robert Costello says Rudy has not received a subpoena, not a peep since November 2022. That's bad news. And by the way, Bob Costello, he's the one who came in to try to testify for Trump on a rainment week

in the Manhattan DA's grand jury. But, and he was also subpoenaed by the Department of Justice and Steve Bannon's contempt hearing. Because, you know, he was trying to tell Steve, just ignore it, it's totally fine. But the fact that Rudy hasn't received, hasn't, they haven't heard a peep, that's bad news for Rudy. Yeah. It's, it's, it's, it's bad news in one of two potential

directions. It could be bad news for Rudy because they are just exclusively looking at him as maybe a co-conspirator or, you know, a potential defendant in his own right, or it's really bad news for Trump if Rudy has unbeknownst to anyone else decided to start cooperating and spilling the beans to DOJ. So that might, if that were the case, if you had a blockbuster cooperator who was providing you with great information that you were using, you were able to go out and corroborate what they were saying, really building your case around some of the things you're telling you, you would wait. You might not put that person in front of a grand jury at all.

If you did, you would do it on a very limited basis and you would do it right at the end, because especially, especially, I'll just say, a witness who has a propensity for just talking complete BS off the top of his head, you would not want that person to be in front of the grand jury under oath on record and then have to deal with potential conflicting testimony later a trial. So that's why I wouldn't even call him. Yeah. Yeah, honestly, I can get all the information about Rudy from other places. And I'm not gonna use him at trial.

You know, so like, you know, I mean, maybe you can have discussions with him to get leads on other stuff and find documentary evidence that you can bring in other more reliable witnesses to corroborate and put them on the stand or put them in front of the grand jury if he's you know because sometimes people cooperate that way right like it's sort of like a white label cooperator like a like a silent partner. Yeah, almost more of a more of an informant than a cooperator, but You you could I know they're gonna be lawyers like stabbing themselves in the eye when they hear me say this. You could potentially use somebody like Rudy as a witness at trial.

What it would require is like a complete and total 180 of Rudy getting on the stand and talking about how all you'd have to expose all the stupid things that he had done and all the lies that he'd told for Donald Trump in the past and why he's not doing that anymore. And then you'd have to corroborate everything he said with other really unassailable pieces of evidence. So, you know, look, the government is really good at putting on people as witnesses who have done terrible things and have all kinds of activities,

blemishes in their past crimes that they've been involved then lies that they've told. The way to do that is by getting them on the scene to tell the story and then having other things like documents and bank records and phone records and things like that to bolster and corroborate what they say. Yep, 100%.

All right, and we have some, I mean, this is pretty breaking. bolster and corroborate what they say. Yep, 100%. All right, and we have some, I mean, this is pretty breaking. I haven't even had a chance to review the entire ruling. But in the January 6th case, we have another appellate court decision. And I shouldn't, I shouldn't say in the Jack Smith case, because this has something to do with him maybe in the future, but right now this is about boots on the ground, rioters of January 6th, who were charged with Title 18,

US code, 1512C2, obstructing an official proceeding. And one judge, we talked about this at the top of the show, Judge Nichols decided that you can't use that law because of the word otherwise. Let me see if I can explain this. The statute is broken down into two things. Your guilty of obstructing an official proceeding.

If number one, you use a document or a record or something to obstruct an official proceeding. And two, any basically otherwise, any other kind of creative way you can obstruct an official proceeding as meant as a catch all, right? And Judge Nichol said, no, otherwise, the word otherwise marries these two things. Even though the word or is stuck right between them, he uses the word otherwise to determine that he should dismiss the charges against these January 6th defendants who assaulted Capitol Police officers because they didn't also have, you know, used documents or records to obstruct an official proceeding.

And the word otherwise, Mary's 1512C1 and 1512C2. And all the other judges that have had this question come up because a lot of other defendants were like, you can't charge us with this because of whatever, you know, or whatever different things they said. And I think 17, more than a dozen judges were like, no, this law applies here except for judge Nichols. Yeah. Yeah. So that's exactly right.

It really comes out of a very kind of somatic interpretation of the statute. And when you read it, the natural reading of it, it's so obvious. The first one, paragraph one, talks about documents and stuff. And so that's designed to attack conduct where you are in an official proceeding. And so you destroy evidence or let's say you retain evidence. Let's say the grant, you're being investigated by a grand jury and you receive a subpoena for documents and rather than turning all those documents over, you keep many of them at your beach side home. I know some of our loyal listeners

will understand the fact pattern. I've just laid out here. That's the first paragraph. It's specifically about destroying or obstructing or mucking with an official proceeding by messing around with the evidence. The second one is interfering with that. C2 is interfering with an official proceeding through any other means, something other than destroying evidence. The court was really clear about it. There's one quote I'll read here from the ruling that I think sums it up well. They say, in our view, the meaning of the statute is unambiguous. Subsection C1 contains a specific

prohibition against corruptly tampering with a record document or other object to impair or prevent its use in an official proceeding. While subsection C2 prescribes corrupt conduct that otherwise obstructs influenza or impedes any official proceeding or attempts to do so. Under the most natural reading of the statute, C2 applies to all forms of corrupt obstruction of an official proceeding other than the conduct that is described and C1. So they just like said, this is nonsense. And they may later point out like there's a reason why there's only one judge has found as ruled in this direction in 17 others have gone the other way. Yeah. And this reminds me of some, you know, right wing Supreme Court stuff about enumerated rights, right?

Initially, some of the framers of the Constitution did not want to enumerate any rights because they didn't want people to fall victim to the classic blunder, never go in against a Sicilian. No, they didn't want people to think that because they spelled out these 10 rights that there weren't other rights that were covered by the Constitution.

And they tried to make very clear, look, here's 10. There's others, but we wanted, these are the enumerated rights we wanna specifically talk about. And that's why you hear a lot of right wing originalists say, well, the guns are protected, but abortions not mentioned. So that's not protected. Privacy is not mentioned.

And everybody in the Federalist papers like, no, it's inferred, dude, it's not protected. Privacy is not mentioned. And everybody in the Federalist papers like, no, it's inferred, dude, it's inferred just because we didn't name it, doesn't mean it doesn't exist. And that's sort of what's going on here. And I'm glad you picked that quote because that was my quote to that. And thus, the broad interpretation of the statute encompassing all forms of obstructive acts is unambiguous and natural and is confirmed by the ordinary, contemporary, et cetera, et cetera. And so that's hugely important, particularly, so they don't have to go vacate convictions that they've gotten on 1512-C2 for boots on the grounds, guys,

and or previous, any other previous convictions that stem from that, that don't have to do with January 6th, and they don't have to dismiss any current charges pending or trials that are underway, like the proud boys. For example, this is what I've mentioned earlier. This is so important. This is a burden that DOJ bears in a way that the defendant and the defense team, they don't really think about this.

In addition to trying to prove their case and convict someone and do justice, DOJ's always got one eye on the law. They won't charge something if they think the charge might provoke an appeal that could eviscerate the statute. Good example is Rico, right? Rico is so valuable to the Department of Justice. If you're a prosecutor anywhere in the country, you cannot charge Rico in a criminal case unless that brief goes down to main justice and gets reviewed by the Criminal Division and approved. They don't want weak cases going forward charging Rico because you could end up with bad law that ultimately weakens the statute. And that's what they were doing here. They're protecting C2 as a way to attack this sort of obstructive behavior that didn't actually involve, you know, destroying a document or falsifying a record or something

like that. And having a mob of your supporters attack the Capitol, waving flags about how much they love you at the time when you were about to officially lose the election, or at least the certification of the election, that certainly falls within the DOJ view that that conduct, tacking the Capitol, assaulting police officers, destroying property, constitutes an effort to obstruct that process. Now, there are some on Twitter saying that this could make it more difficult for DOJ to charge Trump with 1512 C2.

And I personally disagree with that. They say that it could make it harder because they, you know, these judges bring up the fact that you have to prove corrupt intent. However, Jack Smith would have to prove corrupt intent regardless of whether C2 and C1 were married. You still have to, he always has had to prove corrupt intent. As have all of the people who've been charged or currently pending charges are on trial for this. I don't see how this makes it more difficult to charge Trump.

I think this makes it easier for Jack Smith to charge Trump, especially if Scott is declines to hear it or decides and agrees with this appellate court decision, because now there is no judge. There's nothing out there. There's no hanging Chad, like I like to call it, that says that this law is ambiguous. It is unambiguous. And, you know, this was about assault specifically, and they aren't even looking at Trump for assault. So in my opinion, the way that I interpret this ruling is that Jack Smith is going to have to prove corrupt intent regardless of the disputes that the January 6th rioters,

boots on the ground rioters, were having and that judge Nichols had ruled on. That's absolutely right. It's actually easier to prove corrupt intent if you charge Trump. It's easier to prove Trump's corrupt intent than it is to prove Joe random rioter who could say, I didn't know that the certification was going on. I was just up. Everybody went to the Capitol, so I went with them. You know, a lot of people have claimed that as some sort of a defense. So,

so corrupt intent is kind of, they describe it in the opinion as being the guard rail on an overuse of C2, right? It cut you, if you want to charge under C2, you have to prove corrupt intent. But here's, so the cork goes on to define basically what corrupt intent means in the context of C2. And one of the references they point to is some language from Justice Scalia in his partial concurrence in United States v. Aguilar, which examined the phrase corruptly endeavors to influence obstructive and pede, the due administration of justice. Okay. currently endeavors to influence obstruct or impede the due administration of justice. Okay, so Scalia quoted with approval,

a jury instruction specifying that, and I quote, an act is done corruptly if it's done voluntarily and intentionally to bring about either an unlawful result or a lawful result by some unlawful method with a hope or expectation of either financial gain or other benefit to oneself or benefit to another person.

Now you'll remember that voluntarily and intentionally, that's the standard of intent that Jack Smith has to prove for all these charges anyway. So that's kind of baked in. And it's not so hard to show like, yeah, Trump knew they were certifying the election that day. That's why he called the mob to attack the capital. And it was to get a benefit for him to try to retain the presidency. So yeah, I agree with you. I don't see that as a as much of a long shot. Yeah. And they addressed that thing that you brought up in a footnote, right? The idea that in order to have corrupt intent, you have to benefit yourself,

right, in some sort of financial or ex-culpatory way. And they addressed that in a footnote, because Cotsis was the dissent at Trump appointee. And one of the judges pan, she came back and said she disagreed with that dissent, saying that dissenting opinion says a defendant can act corruptly only if the benefit he intends to procure is a financial professional or ex-culpatory advantage. I am not so sure. And then there's a case site, case site. Besides this case may involve a professional benefit.

The defendant's conduct, the January 6th rioters, may have been an attempt to help Donald Trump on lawfully secure a professional advantage, the presidency. Like the clerkship that Samuel Vaughn corruptly sought hundreds of years ago, the presidency is a coveted professional position. And then it goes on to say true, the defendants were allegedly trying to secure the presidency of Donald Trump, not for themselves or their closest associates. But the beneficiary of an unlawful benefit need not be the defendant or his friends. That doesn't apply to Trump.

That Trump is the person who directly benefits. So that argument would not stand, particularly if it doesn't stand for others who didn't personally get the presidency. You know what I mean? That's right. That's right. Yeah. So I mean, it's, I'm going to go and really down, down the hole in the legality year, but

there are broad impacts that this decision, in addition to cleaning up the one hanging chat, the one bad decision we had from Judge Nichols and kind of clearing the way for DOJ to continue using this against folks on a capital riot cases. For Jack Smith, it washes a problem out of the soup here, right? He's now really free to use this either in the January 6th context or in fact the Marlago documents. Although Marlago documents are probably a better example for C1, but nevertheless. Yeah, because if this ruling had stood, if Nichols ruling had gone on challenge, a defendant Trump could say, hey, C1 and C2 are married. So I would have had to have done it with a document and by other means.

You would have to have two ways that I obstructed this proceeding and this separates them out and says it's one or the other and otherwise doesn't attach them. So to me, again, makes it easier. Yeah. And so think about all the time we've spent talking about people who, and we heard this from the January 6th committee, so many people who were talking to Trump in the days in between the election in January 6th and telling him advocating for delay, you know, one of Eastman's theories to Trump was like just get Pence to bolux up the certification because it'll slow things down, it'll give us another week.

All that testimony could be, could be, we don't have it yet, but could be relevant to a charge to obstruct an official proceeding through conduct that would be C2 conduct, right? Conduct other than related documents and evidence. So yeah, I think it's super relevant to the special counsel team and I'm sure they're probably very happy with this appellate ruling. Yeah, and we won't know because they aren't going to tell us, yay, or boo. But I think we will see it perhaps in some of the charging documents. All right, we have big news in the documents case.

Big, big news. We'll discuss that after the break. Stick around. All right, everybody. Welcome back. Major, major news in the obstruction piece of the classified documents investigation. Now underway by Jack Smith. A lot of this, we kind of figured, right, but now there's confirmation, along with a couple bits of previously unknown news. And this is from Barrett, Dozzy, and Stein at the Washington Post. Justice Department and FBI investigators have a mass-fresh evidence pointing to possible obstruction by the former guy in the investigation into top secret documents. Here's the first bit of previously unknown news, Andy.

Investigators have used emails and text messages from former Trump aide Molly Michael to help understand key moments last year. This is one of the ways they're piecing together the events and how they unfolded. Yeah, so Molly Michael just to remind people she was the young woman who started, I think she worked on the campaign and then originally went into the White House working for Melania in the first lady's office. And then at some point got a scooped over and started working as an assistant sitting

just outside the Oval Office and Trump's office. You know, her, she gave testimony to the January 6th committee, really made, went to great efforts to kind of portray herself as someone who had no decision making authority to do. Anything didn't have any significant memories from any of the most significant days, like January 5th and other times. Yeah, I'm wondering if her council was paid for by Trump and Co. And she was coached the way Hutchinson was. I mean, I would suspect that. I can't say conclusively, but I would suspect it. There's one point in her testimony where she says the only thing, the only thing she remembers

from January 5th was at some point that evening she could hear music. I hate that. That's the only thing you remember. Oh my gosh. That reminds me of my favorite comedian, Mitch Hedberg. I hear music. You're not special.

That's how I receive it to. Yeah. So anyway, she really, so what we're here, what we're understanding from this reporting about her emails and taxes that it basically lays the roadmap for what was happening around Mar-a-Lago in and around the period of the fight over the documents. Yeah, and this second bit of previously unknown news pretty much puts the nail in the coffin for obstruction charges, which is Title 18, US Code 1519, if memory serves. And that is that federal investigators have gathered new and significant evidence that after the subpoena was delivered, after they were subpoenaed in May, Trump looked through

the contents of some of the boxes of documents in his home. And investigators now suspect, based on witness statements, security camera footage, and other documentary evidence. That's a pile of evidence. That boxes, including classified material, were moved from a Marlago storage area after the subpoena was served, and that Trump personally examined at least some of those boxes. I mean, you mean after they said, oh no agents, you can't look at these boxes. They're going to be stored in here, safe and secure behind a locked door, forever,

no one can touch them. You mean after they said that, they move the boxes out and brought them to Trump's office so he could take a look at them. Yeah, so now the question becomes, did he tell Evan Corcoran, I moved some into my desk drawer, don't tell anyone, please sign the thing, or did he mislead his lawyers and say, all that's left is in this box. Never touched them, never saw them. That's my guess. It's a straight up guess,

but based upon what we know about that court fight over the piercing the attorney client privilege, the OJ represented to the judge from what we've heard from reporting that they believe that Trump lied to his lawyer in an effort to conceal a crime. That was there. That's what they had to prove. Depends the privilege. And this makes that June 24th phone call. So interesting. On June 24th, the Trump, the office of the former president or whatever, was subpoenaed for surveillance footage. Yes. And, and, and then, Corcoran and Trump were on a call. And is that where Trump said, uh-oh, uh-oh, we moved stuff or, or what, you know, like what was the substance of that conversation?

And as we know, Judge Braille Howell has ruled that Corcoran, because of the crime fraud exception, it's more likely than not that Trump obstructed justice that Corcoran has to go in and spill the beans about what that phone call and other things were about why he changed the letter. There's like six lines of questions, that he's six lines of questioning. He has to now answer that he was not answering before because he was, he was claiming attorney

client privilege, which we know has been pierced by the crime products. Yeah, and he had to turn over notes of those conversations and some sort of a transcript of a meeting or some or notes. Yeah. So really a treasure trove evidence there. And if that obstruction cake wasn't enough, the cherry on top, the little frosting rose, rose set on the top of the cake might have been when during his half an hour rant from Mar-a-Lago after being arraigned, Trump said in the middle of his speech that he personally decided openly and transparently to take all the documents from the White House to Mar-a-Lago. So, you know, in that interview with Hannity too, on Fox News, where he's like, well,

now, and Hannity threw him a softball. Like, we know you didn't go through any of these boxes or no, but he's like, well, I could, and I would, and I would have, and I would have, and I would have the back. Yeah. And he's like, all right, let's move on. Like he was like, shut the fuck up, bro. Excuse me, my friend, but he was like, could you not admit to crimes on my show? Dude, you're blowing up my spot.

Yeah, not of a good moment. I harsh in my, I harsh in my five, dude. I can't imagine what his lawyers are thinking when they hear that. So, although they've heard it so many times and they must be numb to the number of really, really destructive admissions that he makes, whether it's on truth social or in speeches, at rallies or whatever. It's a lot of good material for the special prosecutor

to use there. A couple of other things in this WAPO story, investigators have amassed evidence indicating Trump told others to mislead government officials, especially at the National Archives when they were working with the Department of Justice. So he told others, and they have evidence of that to lie to government officials, which is obstruction. By the way, you can obstruct an official proceeding is pretty well defined. And the National Archives actually has an investigative unit and they were investigating this and you can obstruct that investigation. Oh yeah.

So I just want everybody to remember when Rachel Maddo was like, we have history cops, that's the coolest thing. Also, investigators have evidence Trump sought advice from other lawyers and advisors on how he could keep the documents after being told by everyone on his team that he couldn't. And that multiple advisors warned Trump that trying to keep the documents could be illegal. They have evidence that he's been told, and this goes back to the January 6th investigation. He'd been told a million times that he lost the election. Well, now he's been told a million times keeping the documents is illegal, just because Tim

Fitton, is that his name? Tom Fitton. Tom Fitton, is that his name? Tom Fitton. Tom Fitton, yeah. It tells you that if Fitton said it was okay, I think that's a defense to anything in our law. Fitton says, that's the Fitton says rule.

Fitton is the Sidney Powell of documents. Of the documents case, he could be. He very welcome. Yeah. Also, Jack Smith has been asking, not himself, but Jack Smith's team has been asking witnesses if Trump showed classified documents, including maps to political donors.

Tell me about this because if he truly believes that these are declassified because he can declassify whatever he wants to declassify simply by stealing them, what does this tell you? Showing donors, these documents, because he referenced that Nixon, Nixon's what he took, the tapes were worth $18 million.

Does that show intent of his, why he wanted these things was for profit? I mean, it could, it could. It's hard to say without knowing more about who these people were, or why he was showing them things and what he was showing them. It's hard to say how it would affect the charges that we know have been contemplated in this investigation. So the retention of classified, that's different. Retention of national defense information that's different. This, as described, is wildly irresponsible and potentially damaging to national security, but the way that we investigate and penalize that activity is in the context of basically

taking it out of the place it's supposed to be and keeping it when you're supposed to give it back. If you shared it with a foreign government, then it starts to feel more like traditional espionage. If you give classified material to someone who's not supposed to have it. So I'd really have to take a harder look at the espionage act and say, if it's just some rando political donor who doesn't really have, just doing it to impress them in an effort to romance some more money out of people. I'm not 100% sure how that falls out under the act because I've never confronted in 21 years, much of that during national security investigations. I mean, that's just not the kind of thing that

happens, but once again, here we are with first-timer guy. Yeah. And in the espionage statute, 793F, all of this information and evidence might not just be about investigating obstruction of justice, but 793F says, whoever being entrusted with or having lawful possession or control of any document through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust or to be lost stolen, abstracted or destroyed or to having knowledge that the same has been illegally removed from its proper place or custody or delivered to anyone in violation of his trust, lost stolen stolen, abstracted or destroyed, and

fails to make a prompt report of such loss theft, abstraction or destruction to superior officers. She'll be fined or imprisoned no more than 10 years. Yeah. There's a lot of ways. I think it goes toward espionage too. Yeah. There's a lot of ways that he could have run afoul, the espionage act on the facts that we know so far. This is potentially another one, but we, you know, we'd have to

kind of know a little bit more about it to say how likely it is, but nevertheless, the trouble doesn't get any less. Particularly since national defense information cannot be declassified by a president, and somewhat something else that came up to speaking of this kind of fits in with this, investigators have been asking witnesses of Trump showed any particular interest in material relating to general Mark Milley. That's weird. That is odd. And more news now from ABC, multiple secret service agents connected to the former president and his security detail have been subpoenaed and testified this past Friday, by the way. And that's pretty rare, isn't it, Andy, to be able to get secret service to testify? I mean, it's unbelievably rare. It's the last place on earth they want to be,

you know, they see their responsibilities to the present, particularly these guys. These are protective detail people. These are not like secret service agents who are doing financial crimes and things like that. They're actually assigned to the president. And the last thing any of these dudes would want to do is testify against him. So I'm sure that the service obviously tried to get in the way of this. They lost that battle and they're going to have to go in. They are first and foremost, I always argue, they are what we call 1811s. They're federal agents. They swore no to the Constitution, not to the President. And when subpoenaed, I think they should have to testify, but it looks like in this case they're going to.

Yeah. And this looks like they're in the final stages of this particular part of the investigation, but who knows how broad this is. So we'll see. We know that he's subpoenaed and spoken to at least two dozen people with regard to the documents Corcoran was kind of the final frontier. It seems and now he's gonna have he might already have that testimony We haven't heard tell that Corcoran has been near the courthouse except when he was there to as the president's lawyer to try to fight the the pens privilege stuff So we'll see we'll see how all of that goes.

All right. So do we have a listener question this week Andy? Yes, we do. Okay. So I'm going to give you two one very quick one and then a slightly more evolved one. And the first one comes from Karen and she says, hello, Allison, which I feel a little bit slighted by, my name's not in there, but whatever. Hello, Allison. This may have been addressed previously. If any jury returns a not guilty vote, though all the evidence indicates guilt, can a judge overrule the verdict? So the short answer to that, Karen, is no. That's basically the description of what we refer to as jury nullification.

Sometimes the juries will just decide that they don't want to convict someone, despite the fact that there is compelling evidence to do so. And once the jury returns the not guilty verdict, you cannot be tried again. That's a double it would be a double jeopardy issue. So. Right, because a not guilty verdict would have to be a unanimous not guilty verdict. If it's a split decision, it's a hung jury. And then the DOJ can decide to bring again the charges that the jury was hung on. Isn't that correct? Yes. They rarely do that. Very rarely. It's a, we think about hung jury in terms of like not being able to make

a decision at all, right? They are like some of them want to vote guilty. Others are saying they will never and they basically go back to the judge and say we can't make a decision. And that's typically what you think of as a hung jury. There are jurors, juries that will say we voted and we voted not guilty. And that's it. That's a not guilty vote that you think doesn't isn't really supported by the evidence is still acknowledged by the court. The opposite is not true. If the jury returns a guilty verdict, the defendant can then appeal saying, listen, there was no evidence of my guilt here. It's a very tough appeal to be successful on, but there's no appeal from a not guilty verdict.

A unanimous not guilty verdict. A unanimous not guilty verdict. No, it's correct. Because the metaphor of his 18 charges, the jury found him guilty on 11, they were hung on seven, and the DOJ decided not to come back and retry those seven counts. So you can come, if it's not a unanimous, the DOJ can come and try to retry those hung counts, but I've never seen a half. That's like John Edwards, right? He six counts, not guilty on one, hung on five, and DOJ let it go.

Okay. So here we go. The next question is from Marine. Marine says, super podcasts, I listen and frequently listen again. Thank you, Marine. Question, if Trump is indicted and convicted of crimes related to January 6, can he be disqualified from holding office under the 14th Amendment Section 31? Okay, and for those following along, Section 31 says, basically, I'll give you a

truncated version here. No person shall be a senator or representative in Congress or a elector of President and vice president or hold any Office civil or military under the United States who having previously taken an oath to support the Constitution of the United States Shall have engaged in an insurrection or rebellion against the same and then it goes on to say that Congress can basically by two-thirds of vote And then it goes on to say that Congress can basically, by two thirds of vote, can let someone who fills all those requirements still occupy an office if they so choose. So this is the question, like if Trump, it would depend what he was convicted on. So if he was convicted on an offense that involved insurrection or rebellion, then it would be possible that he would be excluded from holding federal office, but it would require some other things as well.

Like, he could still probably run, but someone would have to sue to legally prohibit him from running or from holding the office that he was elected to. So there are steps involved there. He could file a suit, he could file a federal suit that could potentially go to the Supreme Court, challenging the application of this part of the constitution to his unique facts situation.

So it's, while it seems to be cut and dry, many things do, it's not actually as cut and dry as it seems. And it would all be predicated on him being convicted for an offense that involved insurrection or rebellion. So like obstruction of an official proceeding would not get you there. Right. And like, for example, what's happening with,

or what happened with like Madison, Cothorn, right? Yes. It wasn't just automatic that because he was involved in an insurrection or Marjorie Taylor Green, they had to go the North Carolina elections officials, for example, had to file suit to keep him off the ballot, be appealed, they won and they kept him off the ballot. In this particular case, I'm assuming the Department of Justice would have to file a suit or somebody would have to file a lawsuit

Like you said, and they would have to eliticate this To see if it applies specifically to his the best thing. I mean if he gets the nomination I'm kind of like yay because he's the biggest loser ever in the world and he'd be the easiest person to beat Or at least one of the easiest people to beat But you know, we should be prepared to vote in numbers to big to manipulate. That is the best way to keep a person out of the White House is to vote.

So, but I think it would be an interesting thing. And Jack Smith is kind of a bulldog. And, but I don't know that he's gonna get him for insurrection or seditious conspiracy. Again, I think it's 1512 C2 obstructing the official proceeding, which would not allow you to. I mean, it doesn't, you don't have to be convicted of insurrection or charged with insurrection according to the way that legal scholars are playing this out, but it is something that

Trump could fight and say I wasn't convicted or charged with those crimes. Yes. Yes. Because Madison, Cotheren was not charged with insurrection, but he was kept out on 14 three. A an ambitious lawyer could file claiming that a conviction for on 15 12 C two counts. And it was really he got convicted of obstruction but it was obstruction and the course of a insurrection and therefore you know it would go to the courts to sort that

out. So it's a little bit a little bit hazy it's possibility but we're a long way from there. I will say one thing though I know a lot of people this week were disappointed with the somewhat factually thin statement of facts in the New York indictment, myself included, I have to say that from everything worth the rare watching with the special

council actions in a grand jury with the subpoenas and winning the privilege battles and there is so much here that they could work with if this comes through in an indictment either on the documents or in the January 6th stuff, it's going to be a resoundingly massive case. You won't walk away from reading any federal indictment and say, okay, what exactly is

the second crime that makes this a felony? You won't have that experience twice, which is probably a good thing. Well, no, because in New York law, you don't have that experience twice, which is probably a good thing. Well, no, because in New York law, you don't have to talk about the other laws. You don't have to charge them and they don't have to be. Now, they'll fill out a bill of particulars and file for one and ask. But yeah, in New York, you don't have to do that, but the feds will. Except for obstruction, you don't have to be guilty of the underlying crime, despite what

Bill Barr might want you to think. You just have to obstruct that official proceeding. Three elements, clear elements of obstruction of justice. They're all in the Mueller report. If you want to read it, that is super fun. There you go. There you go. Super page turner, the old Mueller report.

Anyway, thank you so much for listening. If you have a question, you can send it to us at helloatmullarshiwrote.com, put Jack in the subject line, or if you want to enter the contest to name the eight, you know, boomerang witnesses. The anglerious eight, the hateful eight. The hateful eight, something. Come up with something. You guys can do it.

You can send that to us at the same address. Helloatmullarshiwrote.com. All right. It's been a wonderful show. It's been an interesting week. We've got more. It's just every day for him is going to be worse than the last. And that's a little bit of justice for you.

So thank you very much. I've been Allison Gil. And I'm Andy McKibb. We'll see you next week on Jack. you