Jack - Episode 2: Even More Documents

Episode Date: December 11, 2022

Allison and Andy talk about more classified documents found in a Trump property; ODNI is preparing its risk assessment; Cannon is off the case and so is the Special Master; Trump’s PAC is paying for the legal defense of some key witnesses to Jan 6; that same PAC is under investigation; and more! Follow 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/B07HFMYQPGThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at $5/month and Abovehttps://dailybeans.supercast.techOrhttps://patreon.com/thedailybeans

They might be giants that have been on the road for too long. Too long. And they might be giants aren't even sorry. Not even sorry. And audiences like the shows too much. Too much. And now they might be giants that are playing their breakthrough album, all of it.

And they still have time for other songs. They're fooling around. Who can stop? They might be giants and their liberal rocket gender. Who? No one. This happens to pay for forward somebody else's money. I signed an order appointing Jack Smith.

And nobody knows you. 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 an on January 6. Classified documents and other presidential records. You understand what prison is? Send me to jail. And I'm your host, Allison Gill. And I'm Andy McCabe, and there's a lot of special counsel news this week, which I think

reflects the point I was making in the first episode about the investigations moving forward without delay. We're going to cover it all today, including additional classified documents being found in a storage unit in Florida, a flurry of subpoenas issued by the special counsel's office, and Judge Cannon siding with the DOJ and Skirmish over putting the special master on hold. Yep, we also have a story about Donald's pack, the Save America pack, paying the legal bills of key witnesses. We have additional testimony from Stephen Miller, and Donald's comment about terminating

the constitution or parts of it. And Andy, I'm so glad you're here. Before we get into this, I have a lot of questions about a lot of stuff that's happened this week, but I just want to let everybody know and acknowledge we've changed the name of the show to Jack. So we just didn't want to cause any confusion, wanted to clean it up a little. And so I just wanted to let everybody know from now on, if you want to look for the show, it's called Jack. I thought it was simpler and easier to follow and I don't know, just looks cleaner to me. So I just want to do acknowledge that. But let's move forward because I have some questions for you Andy about some of the news

that's come out this week. Let's start with the documents investigation. So we're going to do the documents investigation in the first segment of the show and then we'll switch over to the January 6th part of the investigation and We'll kick it off with the news that apparently additional searches were conducted for classified documents or documents bearing classifications markings because I have a lot of questions about this From Caitlin Collins and Sarah Murray at CNN. Here's the lead

this. From Caitlin Collins and Sarah Murray at CNN, here's the lead, quote, two documents with classified markings were found in a Florida storage unit during a search by a team hired by former President Donald Trump's lawyers, according to a person familiar with the situation who spoke to CNN. Those documents were handed over to the FBI. No other documents with classification markings were found during a search of four of Trump's properties, the source said. Andrew, there was an earlier story, you know, besides CNN in the Washington Post by Devlin Baron, among others, that probably went out too early because they said two properties were searched and they failed to mention to CNN as CNN did that the lawyers had not yet attested. Trump's lawyers had not yet attested. Trump's lawyers had not yet attested

that no documents were found. It also framed the entire story as though Donald was being transparent and cooperative, which I would disagree with, because this was ordered by a judge, Chief Judge Barrel Howe, and a search like this has been recommended by Trump lawyer Chris Kies earlier,

but Trump rebuffed him. I think Barrett wanted to be the first out with this story, but I think in the rush, he might have missed a lot of key details. And then Barrett went on MSNBC and posited that this was the Department of Justice and Donald working together hand in hand like buddies to prevent having to execute another search warrant. And that opinion of his, I don't believe was sourced. And that's where my questions come in. The Department of Justice has already shown that if it has evidence to get a search warrant, it gets a search warrant. We saw that on August 8th at Mar-a-Lago. I don't see this as the DOJ cow-towing to Donald to prevent another search. Can you talk a

little bit about what's required to search a person's property and how finding evidence that Mara Lago doesn't really give law enforcement the right to enter his other properties? Absolutely, absolutely. There's a lot packed into the story as you've detailed well. So let's start with the very basics. A search warrant is issued by a federal judge only after the Department of Justice presents information and evidence to the judge in a request for a search warrant that proves that there is probable cause to believe there is evidence of a crime located at the location described in the search warrant application. So a couple of things to really focus on here. DOJ is restricted. They can only search the property or the business or whatever it is that's specifically described in the warrant application. And this is important because they can only look within that place.

Let's say it's a house, okay, let's say maybe it's an aged beach resort in Florida, it also serves as the residence of a former president. They're only allowed to look in spaces and places within that residence that could potentially contain the items of evidence that you've also described in the warrant. So in other words, if you go looking for a stolen car, you can't look in the refrigerator because you can't park a car in a refrigerator. But if you go looking for documents, because documents can be contained anywhere, that essentially gets you access to any part of the property described in the warrant and also any container therein. So every box can be opened, every drawer can be opened.

So it's with a search warrant, like the one we know we had in Marlago, it really gives the government great authority to look in every space that could potentially find documents. Now, as to the question of whether or not the department is kind of, you know, playing kind of cooperatively with the Trump team in this kind of follow on period after the initial search warrant, I would say absolutely not. That is not a road that DOJ would go down. I think it's highly likely that they communicated to Trump's attorneys that they thought there might be additional documents located either at Marlago or at other properties controlled by Trump that weren't

searched with the initial August search warrant. So that could be obviously Bedminster, Trump Tower, and whatever other properties he has. If the department felt they had an ironclad case of probable cause to present a judge, I am confident they would have done that and they would have proceeded with a second search warrant. So the fact that they never went and asked for a second search warrant indicates to me that they probably didn't feel like the level of proof that they had to support that warrant request like the level of proof that they had to support that weren't request was sufficient. Nevertheless, they likely told Trump's team, look, you should go look in these other places to make sure that you don't also have classified information or material or even presidential records secreted away at other locations. It sounds like Trump's lawyers beginning with he's made that same suggestion to Trump.

It was not received well if you believe the reporting, but eventually they came around to the idea to saying, hey, you know what, we need to bring in our own team of independent attorneys to go to each of these places and see if there's anything there. And it'll all be hold, what they find. Sounds like a couple more classified documents. Yeah. and also it's a little less of coming around, right? Because I believe that Judge Barrel Howe asked the Trump lawyer legal team to attest to her in court under penalty of purgeary, obviously, that all documents had been handed over. And they said yes. And then at that point, the Department of Justice was like, we don't believe you.

And so Judge Barrel howl was ordered them to hire this outside firm and said, go forth and search other properties. And so I don't see this as any kind of a, we're working together like a great team to make all these things happen. I'm with you if they had ironclad evidence, or at least probable cause, to put in an affidavit

and get it signed off by a judge to search additional properties that I think they would have. And, you know, I wanna put the shoe on the other foot a little bit here. That's a good thing. These are criminal defendants rights protected in the constitution.

We don't want to live in a country where just because we think you're a bad dude and you've stolen stuff before, we can just go into a different property and search it. Any fruits of that search would be, I think, easily tossed out in court. And I think we need to kind of respect the, as much as, you know, if you don't like Trump, I understand, but I think we have to kind of respect the, as much as, you know, if you don't like Trump, I understand, but I think we have to respect those constitutional protections for criminal defendants. Well, of course, right?

You don't, all because your beach resorts, slash residents get searched by the federal government, it doesn't mean that you have now given up your right to privacy of your golf club in New Jersey or your house apartment in New York, or whatever else he has. So yeah, you've hit on a very important piece of kind of criminal jurisprudence. Another thing I'd point out is there was this kind of weird invitation by the Trump team and some of the filings

in the Marlago case where they said, well, we invite kind of DOJ to come in and search again to conductive search that would be overseen by the Trump folks. That is a nonstarter from day one. DOJ, especially in a case like this where every step of the way is, is, you know, there's no, there's no like consent here, right? Everything is being fought over every, each of those fights are resulting in appeals, some of them to the Supreme Court. So DOJ is going to try to keep this as black and white as possible.

If they have PC, they're going to go in and get a search warrant. And then they're going to come rushing into whatever location has been described in that warrant. And they're going to search it to the full extent of the law. They're not going to come knock on the door and ask for permission to come in and maybe sign a consent or you can look here, but you can't look there because the result of a process like that is just an incomplete search. It doesn't serve the department and it doesn't really, it doesn't really serve the defendant either. So it's going to be search warrant or nothing for DOJ. And it looks like without a new warrant, they strongly suggested that the Trump team independently of their own kind of volition go and look for additional documents and

The important thing is that they found them Yeah, and I'm also like I don't know if those documents being in a I almost had offshore storage facility storage facilities, you know separate from Mara Lago I almost had offshore storage facility. Storage facilities, you know, separate from Mara Lago that made its way through Virginia. They were, these boxes were in Virginia for six months, which could maybe have an impact on venue. I don't necessarily know that that could be easily proven as something done intentionally,

but it's certainly mishandling of classified information. And I don't think, well, we were going to hurry to pack up, is really a defense for for mishandling, either on purpose, willfully or inadvertently classified documents. Can you talk a little bit about, because you've worked on handling cases before. Does it have to be proven to be willful and you have to have knowledge of it,

or does inadvertentishandling of classified, you know, information also carry a penalty with it. It certainly can. You know, these these cases are so fact specific. I haven't seen all the mishandling cases I've been familiar with quite honestly. I haven't seen many felony mishandling cases go forward against people who removed documents or material in a way that could have been unintentional.

It's also possible to resolve mishandling cases with a misdemeanor conviction and penalty. But again, it's the criminal route on these sorts of interactions is typically reserved for people who you know executed some level of intentional judgment that resulted in the material being taken to or stored in a place that was not authorized for classified. You know, there's all kinds of other resolutions to those cases. Sometimes people, if they've been reckless in their handling of things or unintentionally

mishandled things, they can be disciplined at work, they can lose their access to classified material, but all that's none of that stuff are, those aren't criminal results. Andy, can you think of any other person that we might know about that perhaps recklessly or unintentionally mishandled classified, potentially classified information? I'm not, I can't think of anyone. Maybe you can think I can think of one That's a man. This is talking about PTSD. Okay. This is episode two and I'm having my second PTSD moment Hopefully that's a trend that doesn't continue across the podcast, but You know that was really where all the heated debate took place

in terms of the resolution of the Hillary Clinton email investigation in which we famously and very publicly announced our position, which was, I say we, I mean, just the FBI in terms of saying that we would not request an indictment of former Secretary Clinton based on our investigative results because we couldn't prove that element of intent. And Jim Comey opined that, you know, he thought that she had been reckless in the way that she handled her emails and some classified information that had traversed her personal email network, also a wildly controversial statement.

But again, it comes down to that really our investigative finding, which was valid then, and I think remains valid now, is that we were not able to prove that those classified materials ended up in Hillary Clinton's email through any intentional act by Hillary Clinton. It's a tough thing to prove, and very frequently becomes really the nugget of these investigations. Yeah, that and none of those were actually marked classified. None of those emails actually had classification markings. Like we've seen in the...

Yeah, I mean, huge differences between what was found in that case and what we, you know, what we know about the materials from the Marlago search. I mean, we could spend an entire episode on that. Maybe we should later, but there's essentially no comparison between these two. And which is why I think to get back to your earlier point, AG, the fact that we found two documents or Trump's team found two documents in a's team found two documents

in a storage facility that was part of the transportation process that ultimately, you know, started in the White House, packed up some stuff, went to another warehouse in Virginia, ultimately made its way to Florida to now we know another storage location and some of that material ends up in Marlago, some in the former president's office, some downstairs in some sort of closet with probably like banquet equipment and stuff. The fact that there's additional materials in the storage facility,

it really reflects a little bit on the chaotic and maybe not very professional, not very effective way the stuff was ultimately packed up at the White House. Like, it kind of opens that can of worms of where these intentional decisions at the White House as to what would be included in Trump's boxes, or was it just like every piece of paper on the desk that's scraped into a container and sent south. So in some ways, it almost opens up additional questions that I think could be actually very complicated for the prosecution to answer if of course this case goes

forward to a criminal prosecution. Yeah, I think the morselam dunk is the subpoena and then the attestation that everything had been handed over and 38 documents handed over in a double-taped red well envelope and then they're having been video showing boxes moving around and then the search warrant showing more more documents. Absolutely. I don't think these two new documents really are are any sort of a significant plus for the investigators. They have plenty to work with that they found at Marlotto. Yeah, and just another little part here on the part of the classified documents. We'll talk about the non-classified documents in a second.

But with the classified documents, we learned this week that the ODNI has concluded its initial risk assessment into the Marlago classified documents and congressional briefings are being scheduled. A rep Mike Turner of Ohio said this to face the nation. He said, we're scheduling these briefings. Andrew, you've been through these. What does a briefing like this look like?

What does it consist of? And can Congress answer questions about it? Can they talk about these kinds of briefings publicly without revealing classified information? Sure. So the answer to your last question depends on the answer to your first question. So if the briefing is intended for an audience on the hill that is classified and the brief

is scheduled as a classified briefing, no, the members cannot talk about it after the fact. So imagine if the briefing is scheduled for, let's say it's going to take place in front of the intelligence committee, either in the House or scheduled for, let's say it's going to take place in front of the intelligence committee, either in the House or Senate side. Those committee members all have requisite clearances. In a briefing before them, you could actually talk about the specifics of individual documents that were found as a result of the search. But at the end of that briefing, the members cannot then walk outside the briefing room and describe what they saw to the huddled masses of reporters who stand there waiting for those kind of comments. If the briefing is to another group in which some of them have clearances and some don't, it would likely be scheduled as an unclassified brief. In that case, the DNI folks will come in

and they'll basically describe in general terms the sorts of things that were found. You know, members are still not supposed to immediately go out and talk about that to the press because it's an ongoing criminal investigation and you know, they usually provide even unclassified briefings at what they call for official use only sort of circumstances. But that stuff has a history of being shared with the media in some degree. So really comes out

of who's going to be briefed and whether it's going to be a classified or unclassified briefing. Yeah, and I think that it's Mike Turner that's talking about this. I don't, he's not in the gang of eight. I didn't look up to see whether it was on the intelligence committee or not, but it seems like if that's talking about this, I don't, he's not in the gang of eight. I didn't look up to see whether it was on the intelligence committee or not, but it seems like if he's part of this briefing, then at least it's not a gang of eight briefing. But, you know, who knows, we'll see. Yeah, we'll see.

And, you know, another complication here is the fact that it's part of an ongoing criminal investigation. So, DNI folks are gonna try to stay away from talking about anything having to do with the legality of these things being in Mar-Lago or how they might impact a potential prosecution. They're not even going to opine on that stuff. They're simply going to say, this is the document.

Here's what it says, or here's a description of what it says. And here's why we think that it's storage at a place like Mar-Lago might be a danger in national security, or maybe not, maybe the things in every single document are so old they're no longer relevant. They don't think it's a danger to national security. I find that almost impossible to believe, but we have to kind of keep our minds open to both sides. And we also know that because the classified documents, because of an 11th circuit victory, not this most recent one, but a previous one, we know those classified documents did not have to be handed over to a special master for a review or given to the Trump team,

which I think is what they seem to really want that information. They filed another thing to unseal the affidavit that got them the search warrant, the redacted parts. They did that recently with Judge Cannon. I feel like she ignored that request. And they didn't get turned over to the Special Master for Review because that would compromise things. That would be part of a risk assessment and they were able to fight and say, hey, this risk assessment is too important. We can't interrupt it.

We're going to continue doing it. You can't have the classified documents handed over to Jim trusty and the special master. So I think this would be a good time to pivot from that information about the classified documents to what now is going on with the non-classifieds. Sure, sure. And I think, to remember, the original judge canon order was so broad and so vague that

even DOJ walked away not really clear as to whether or not the order would prohibit the DNI folks from conducting their risk assessment as to whether or not what sort of damage may have been done by the mishandling of this stuff. Of course, she then said in a follow-up, oh no, D&I can go forward, but FBI can't use or conduct any investigation off of the classified documents. That was the first appeal to the 11th Circuit, which got the classified stuff back in, uh, DOJ and FBI's hands.

It has been strange, though, AG, that the Trump team seems to be really focused on just trying to understand what they had. So they had all this classified stuff. It's all over his office. It's in boxes in the floor of his closet. It's in desk drawers that he's clearly opening and going into. And even they are not sure of the extent of all the classified that was seized from Mar-a-Lago.

But nevertheless, we have the victory just a week or so ago in the 11th Circuit that basically eliminated the process of the special master reviewing non-classified documents and making determinations about whether or not those documents should be withheld from the prosecutors because they were attorney client privilege or subject to executive privilege, things like that.

So in the aftermath of that victory, we saw this week, the DOJ submitted a motion to extend the deadlines in the special master case to judge canon pending an issuance of the 11th circuits mandate. So basically what this means is in that civil case that Donald Trump filed in front of Judge Eileen Cannon, which has been just kind of defanged by the 11th Circuit, there are still deadlines and essentially due dates. And the one that's coming up and is likely most significant to both sides is the report by the special master to Judge Cannon. So that date is likely to come up before the 11th Circuit can officially write up and issue

their guidance to Judge Cannon about how they want that case dismissed. So it's a really odd situation where you know nothing's going to come of this case. We know from what the court has already said that the case is going to be dismissed. But now we have DOJ kind of stepping in and trying to stop all proceedings immediately. So it doesn't even inch forward any further before the 11th Circuit gets a chance to blow it up. So her minute order, she issued recently about this. She actually sided with the Department

of Justice because basically the 11 circuit needs a few days to issue a mandate to judge Canon to dismiss Trump's case asking for a special master. And DOJ asked her to pause all those deadlines, like you said, in the special master review to give the 11 circuits some time to do that. So they're kind of saying, there's no need for us to do any work in the special master review because the higher court just said you didn't have jurisdiction to appoint him in the first place. So why would Donald oppose that just to be contrary? That's always a good guess. It's a pretty contrary legal team. He's got over there. But my guess here is really comes down to a factor of time. So Trump, likely, and Trump's lawyers, likely want to see what the special

master would have concluded about those documents, whether he would have found executive privilege or attorney-client privilege, and how even things like how he would have described those documents in any official filings that he would make in front of the judge. Even though that case we know is going to get dismissed, the judge's comments, findings, and descriptions of those documents would make it on the record. And my suspicion is that the Trump legal team is thinking that those sorts of comments might be helpful to them later. So if Trump is charged in this case,

then one of the things that will happen is he'll get an opportunity to challenge the evidence that the government is using against him. And the course of those challenges, it might be helpful to him to have had a former federal judge saying to this judge canon on the record, even in a case that's been dismissed at that point, that he found that there was, you know, the stuff was covered by privilege or what have you. In the same way, DOJ doesn't want that. They don't want any straight fire, any extraneous comments, any, you know, kind of pseudo judicially sounding sort of rulings on the record in this case that might cause problems for them. So for DOJ, there's absolutely nothing to gain from even hearing what the special master has to say

about the work that he has done thus far. So they're trying to kind of just cut it off at the pass. Yeah, that makes sense to me. I hadn't thought of that. Then that's why you're here, Andrew. So you can think of those things. I hope so. So to wrap up the documents portion of the show, we have more news from this week.

Apparently, according to the Washington Post, former President Trump's political action committee is paying legal bills for some key witnesses. The Washington Post goes on to say the witnesses include Kosh Patel, who's testified in front of the grand jury and is key to Trump's defense. Dan Scavino, who also recently testified to the grand jury, and Walt Notta, a potentially critical prosecution witness, according to these people who, like others, interviewed, spoke on the condition of anonymity. Now Notta, we know, is a Trump valet.

He told FBI agents he was instructed by Donald himself to move those boxes at Mar-a-Lago, even as government investigators, we're trying to recover classified documents at the private club. So we all know who Kosh Patel is. I just want to remind everybody real quick, he pled the fifth to some of the questions during his first testimony, the DOJ went to Judge Barrel Howe. And I've never seen this before, but they objected to him to being able to plead the fifth. And she said, no, the fifth is broad. People can use it.

If if nothing, you're asking, we'll implicate him a crime and him in a crime. Then you need to give him limited immunity. So they did. So what? Andrew, I don't understand how, I mean, I guess it's not illegal for someone to pay the legal fees of people who could potentially testify against him or negatively about him, but it sure seems like there could be a heavy conflict of interest. What are some of the remedies for DOJ on this?

Yeah, so this is a really interesting question, I think, because you have to begin with that assumption that it is neither illegal nor is it unethical and footnote here, you know, lawyers have to kind of keep their eye on both of those issues at all times because obviously they don't want to do anything illegal, they don't want their clients to do anything illegal, but they also if they're involved in doing something unethical that could cost them their law license. So they follow very closely the attorney code of ethics. So in this case, a third party paying the defense expenses or the lawyer's fees of someone else is neither illegal nor is it a violation of the attorney ethics. And you can see like in situations like let's say you know you work for a company and somebody sues that company for you know in civil court for whatever reason and you as an employee the company gets get subpoenaed to come in and be deposed you know give information under oath. If the if your company pays for your attorney's, an attorney to represent you in that deposition, that's not illegal or inappropriate in any way. So there are many, many examples you can come up with where it's fine for a third party

to pay for someone else's legal expenses. Where it gets dicey is why is the third party paying for someone else's attorney expenses? If they're making that payment for the purpose of controlling your testimony or making sure that you don't, you know, say or do anything that might inculpate the third party, then that is a violation of the attorney. Ethics and could also, depending on the circumstances, be illegal. So in this case, you have Donald Trump paying the legal fees of people who are testifying in grand jury investigations or quite frankly in front of the January 6th committee about matters

that could affect Donald Trump personally. So this is a very, very close call. It reminds me a lot of situations we ran into like this when I was doing organized crime work in New York. So often, you'd have a bunch of lower level people arrested as part of an investigation. And let's say the boss of the family comes in and provides them all with lawyers. And the reason the boss of the family is doing that is because he doesn't want those people to cooperate. He doesn't want them to provide truthful information. The government, he doesn't want them to say anything that

could get the boss in trouble. In cases like that, occasionally, one of those defendants would make it known either directly or through a family member that they didn't want the lawyer who the crime boss had appointed for them because they wanted to try to make their own situation better by cooperating. It's a really sensitive thing and what typically ends up happening is the judge has to sit down and question that person. In the example I've given, it would be a criminal defendant, but in any other case, it could just be a random witness who has been asked to testify.

And to find out, like, do they really want that attorney? And is that attorney legitimately representing their interests? Or is that attorney really in a kind of a shadowy way representing the interest of the person who's paying the bill? And that's where this question of who Trump and his legal team are paying for, why are they paying for those people? Do those people really want that representation or not? And what's the purpose for kind of providing them with representation?

Yeah, and it reminds me of the Cassidy Hutchinson situation. She was not forthcoming when her attorney was bought and paid for by Donald Trump and paid for by the Save America Pack. And then when she decided, this, I don't think this is in my best interest and switched attorneys know, was able to testify fully and truthfully in front of the committee. And I think that that made a huge difference. And so, you know, that's kind of why I'm wondering how this might influence that. And there's somebody who was quoted

in the Washington Post, Andrew named Jim Walden. Yes. Yeah. Can you tell us who he is and what he said? Yeah, sure. I know Jim Walden well. He was a assistant US attorney in the Eastern District of New York back in the older times when I was an agent in New York City. He actually handled a bunch of big organized crime cases

for a very close friend of mine. He's a great attorney, definitely an authority on these matters. I'm sure this is something that he's run into many times. And Jim said in The Washington Post, the payment arrangement raises concerns about whether the reimbursement of legal fees may influence what the witness says and does. And now, Jim also pointed out that if DOJ officials have ethical concerns, as I mentioned, they could ask a judge to question the clients about whether or not they're certain their interests are being protected. Jim went on to state, it looks like the Trump political action

committees need to pay for the silence of these witnesses, for them to take the fifth or for favorable testimony. These circumstances should look very suspicious to the Justice Department, and there's a judicial mechanism for them to get court oversight if there's a conflict. So I think what Jim is saying there is like, yeah, there could be an issue here. DOJ is very capable and experienced that navigating these somewhat strange waters. And I agree with that would fully expect that they're keeping a close eye on it. Yeah, it's also a note, by the way, that the Save America Pack is the subject of a federal investigation for its fundraising tactics around false claims the election

was stolen. I'm wondering if that now is under the purview of Special Counsel Jack Smith and separately, a federal investigator's have issued subpoena seeking details about the formation and operation of the pack as part of the DOJ's probe of efforts by Donald and his allies to reverse the results of the 2020 election, which I think that right there puts it squarely within the purview of special counsel. There's no question, right?

So the pack is kind of like it's certain themselves into this investigative scope by making these payments to witnesses who are providing key testimony, not only if they haven't already, but to the federal grand jury, but also appearing in other places, right? To the grand jury, maybe the grand jury in Georgia, or responding to legal process out of some of the New York investigations.

So you could certainly see how a broad, but reasonable read of Jack Smith's Authority as special counsel could certainly include Taking a look at these payments by the pack or other pack activity and as you mentioned We know that there have been some questions raised about whether or not their fundraising around January 6th Could constitute some sort of a fraud whether or not their fundraising around January 6th could constitute some sort of a fraud. Yeah, and I know that the January 6th committee was trying to subpoena information from sales force about emails that went out from the pack. And we also know that Ron and McDaniel was partly

in charge and the RNC was partly put in charge of finding and gathering some people who would potentially be fraudulent electors, which we'll talk about that after this quick break when we get into the second half of the show, which we'll cover the January 6th part of the investigation by Special Counsel. Everybody stick around, we'll be right back. Boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom,. In 2018, I wrote a best-selling book about it, Dirty Rubles. In 2019, I launched Proveil, a bi-weekly column about Trump and Putin, spies and mobsters, and so many traders!

Trump may be gone, but the damage he wrought will take years to fully understand. Join me, and a revolving crew of contributors and guests guests as we try to make sense of it all. This is Preveil. So Renato, do you still have your own podcast? Yeah, it's complicated. What's so complicated about a podcast? That's the name of the podcast, remember? Oh!

Will you still be exploring topics that help us understand the week's news? You bet, but we'll have a new name because we're going to be working together to explore complicated issues that are done in the news. Working together? Yeah, you're hosting it with me, remember? Oh, right. Wait. Does that mean our podcast is going to have a steam-op segment?

Let's not get carried away. But we'll discuss hot new legal topics, so check out our new episode, coming soon to everywhere you get podcasts, as well as YouTube. Welcome back to Jack. AG, we've covered the Mar-Lago documents news of the week. So let's shift over to the sprawling investigation into the events leading up to January 6th and really everything that followed. Yeah, I have some more questions about the scope with regard to the 1.6 arm of the investigation because it's way more complex than the so far seemingly open and shut documents probe.

That could get complicated. So far, I can see how the Penn's pressure campaign falls into the scope, along with the fraudulent electors scheme, which is mostly what Fannie Willis, the Fulton County DA, is focusing on there and the interference into the Georgia election. Also, the possible seditious conspiracy, if there's a connection between Trump and the violence at the Capitol, either directly, like through incitement to insurrection or indirectly, whether Trump can be considered part of the oath keepers and proud boys' conspiracies. And we touched on this briefly in episode one, but I'm curious about the January 6th committee preparing to make possible criminal referrals to the Department of Justice. And we touched on this briefly in episode one, but I'm curious about the January 6th committee

preparing to make possible criminal referrals to the Department of Justice. Andrew, would all the one-six findings be submitted to special counsel, or would they filter through main justice to be doled out to the appropriate offices, do you think? Well, typically the way a congressional referral to DOJ would take place is the committee

had decided exactly what they wanted to refer, and they would communicate that to the AG. Now here, since we know that there's already a special counsel who is looking into the same stuff, what I fully expect would happen here is that AG Garland would then take that referral and simply hand it over to Jack Smith to make the decisions about what he thinks of the referral and what parts he might want to follow up on. But really all of that then raises the big question of like what's going to be in this referral? And honestly, there's no, you know, there's no, there's no agreed upon format for this. They could

essentially take their entire report of everything they found and done, and hand that over to the AG and say, therefore, we recommend that you pursue criminal investigations of the following people for the following reasons. Or they could do something more vague, just saying our investigative efforts have raised

the question of whether or not former President Trump engaged in obstruction of justice or obstruction of Congress or what have you. So we really have to kind of wait and see. I think that the most important thing to remember here, AG, is that at the end of the day, the referral really doesn't mean that much. It is not binding upon the department in any way, right? So they make their referral DOJ could throw it out the window and say,

you know, we don't care comb your hair and just take no action. That's entirely, entirely possible. That actually happens all the time, right? Members, not necessarily committees, but members are constantly writing letters to DOJ about things that they don't like or are curious about and demanding investigations be started up. And many of those, DOJ does not take up. The second thing to remember is of course that DOJ is already doing it. And they've been doing it for a long time, doing it sounds like pretty well. They've really turned up the volume and the intensity on this by bringing in Jack Smith as special counsel. So it's, I think unlikely that the referral will initiate new investigative activities

not already going on. What's way more significant here is what they hand over with the referral. What DOJ really needs is access to all of the evidence, all of the transcripts of the interviews, to have a complete and very detailed understanding of exactly who the committee talked to and when and under what circumstances did those people interact with the committee and who was representative

I counsel and who wasn't. Those are all details that will make, that will affect how well or not well, those witnesses interact with DOJ. So in other words, all of that stuff, here's just one way to think about that. All of that stuff, let's say indictments come in the one six cases against, you know, fill out your name of players later. Those defendants, whoever they are, will likely be entitled, they'll all be entitled to

discovery. That's part of the federal rules, it's part of your constitutional rights. All of this, all this work that Congress did, a lot of that will likely fall within the scope of things that the defendants are entitled to. So DOJ can't hand over, for instance, a transcript of an interview of a witness hand that over to a defendant. If there's exculpatory information in that, or there's information in that that undermines the value of the witness, DOJ really needs to know that before they go forward. So there's a lot of very kind of detailed

legal implications as to all the work that's already been done by Congress. That's imperative that Congress shares that stuff with DOJ so they can handle it correctly, but also make good strategic decisions going forward based upon knowing the full universe of information that's out there about these witnesses. Yeah, and that's an important myth. I also wanted to kind of try to dispel. I see a lot of folks saying, oh, DOJ just doesn't want to do the work. They're having the one-six committee do the work for them, and that's why they want all of their work product.

And I don't see it that way. That's definitely not the case. Because of what you just described. I mean, first of all, if we think back to the Durham indictment of Susman, and we see that Jim Baker, who was the star witness for the Durham side, was easily impeached because he told three different things, not lies, but just had three different sets of testimony, some of it conflicting to the Inspector General, to Congress, and to the Grand jury. And I don't think that Durham was prepared for those inconsistencies. And if he was, he just went forward anyway for political reasons.

But what we have to make sure happens is that all of that information is read in and understood so that any conflicts of any witnesses that could be impeached at trial if they've had inconsistent testimony for, you know, what they told the Congress was different from what they said to the grand jury, that has to be addressed before you go to trial, before you put your witnesses together, before you, you know, come up with how you're going to question your witnesses. That stuff has to be resolved first. There's absolutely no way that DOJ could or should go forward with any indictments of

anyone without knowing what they've said to an inspector general, what they've said, like, because we know the inspector general opened up investigations into the Department of Justice and likely questioned Rosen and Donahue and Clark and all those people. And so we have to have consistent testimony between the Inspector General, what happened in Congress and what happened in the Grand Jury in order to have a concrete case to go forward so you don't get blown up like Durham did at trial.

That is absolutely right. And you know, first of all, as a threshold matter and I'm happy to point out things that DOJ does poorly or wrong, but laziness is not one of them. There is not an attorney worth their weight and salt, and certainly not a DOJ attorney who would ever go forward with a case that relied on a particular witness without extensively interviewing and fact checking and vetting that witness directly. And part of that process would be consuming every single sworn statement that witness

provided to anyone else about the same matters. They're in lies why they need to hear, you know, read those transcripts from the IG, from the January 6th Committee. It's a huge, it's actually a massive additional burden on the DOJ investigators and attorneys to have this enormous tranche of interviews and material out there that were created by Congress. It's a huge burden, and it also opens up

some significant potential liabilities or weaknesses for those witnesses. If they weren't interviewed well, if their statements weren't like clarified well and things like that, it could be a real problem for DOJ. Yeah, and speaking about some challenges that DOJ might face, let's talk about intent for a second, because it's one of the things that makes this case a bit tougher to prosecute than the documents case, or at least the obstruction in the documents case. There's a boatload of evidence out in the public already, thanks to the January 6 hearing,

that goes toward intent with regard to January 6. But this week, Donald wrote on Truth Social, which is also under federal criminal investigation for how they were funded. He wrote that we should terminate provisions of the Constitution so we could install him again as president. Given what we learned about and what you taught me, Andrew, about totality of evidence in the Mueller investigation, could that be seen as Donald understanding that in order to be president, he would have had to have broken some laws.

And I'm wondering if that statement could be used not as a smoking gun because there's plenty of those out there already, but added on to the pile of evidence to show intent. And is that why do you think is that why he walked it back the next day? Like his lawyers were like, dude, you just admitted that it's against the law for you to be president. What are your thoughts on that being used as evidence? I just saw it with a bait's number on top as it came across my feed. Yeah, I mean, where do you even start with this one other than just wow, right? And there are so many reasons why he likely and should have walked that back. It's hard to really pin down exactly.

Get inside his head, certainly, which is the place I do not wish to be. So I can't say exactly why I walked it back. But to the question of what does this help us prove in terms of a criminal case? I think the comments as completely bizarre and maybe even offensive, certainly to people who understand and value the constitution. As crazy as they were, I'm finding it hard to imagine a scenario in which those comments

would be direct proof of intent for a specific crime. So we know that every crime is, basically comes down, direct proof of intent for a specific crime, right? So we know that every crime is, it basically comes down. So you have to prove two things. There is as they teach every first semester law student and actous rayas or acts in a mens raya, which is the mental intent necessary to be, for those acts to be criminal.

So depending on the, on the statute that we're talking about, that intent that the level and the specificity of intent that you have to be able to prove as a prosecutor is different. So in other words, 371, which is the statute that makes it a crime to defraud the United States, says if two two or more persons conspire either to commit any offense against the United States or to defraud the United States um and one of such persons commits an act to affect that conspiracy. Then each is fine under the title or prison not more than five years blah blah So you have to intend to commit an offense against the United States government or to defraud the United States government. So that's going to take a pretty specific showing of what was in your mind at the time you made

that agreement and those acts were taken. So his abandonment, I guess, recommendation to destroy or remove the Constitution. Certainly, I guess, from applying to him. I don't know that it would suit the day in terms of approving the crime. But what it does do is it is incredibly powerful descriptor of his kind of mental state generally, the lengths that he's willing to go to. It's certainly a comment that makes him look unfit to be president of the United States. And there's any number of reasons why prosecutors might want to try to get those statements, either that one or many of the other insane statements he's made over the years in front of a jury in a criminal trial.

So every time he goes out and does something like this, he's definitely making his own legal play more perilous and making the job for his growing list of attorneys a lot tougher. Yeah. Yeah. And then we also got some news. Finally, we'll wrap up with this. There's a push now from special counsel, obviously, to obtain direct evidence in the fraudulent electors scheme. We saw that in the form of multiple subpoenas.

You mentioned at the top of the show, to key election officials in battleground states. And I think that the Washington Post is the one who covered this story. Can you tell us what the Washington Post had to say about this? who covered this story. Can you can you tell us what the Washington Post had to say about this? Yeah, sure. According to the Washington Post, and I quote here, special counsel Jack Smith has sent grand jury subpoenas to local officials in Arizona, Michigan and Wisconsin. Three states that were central to President Donald Trump's failed plan

to stay in power following the 2020 election, seeking any and all communications with Trump, its campaign, and a long list of allies. And we also know that the request for records arrived in Wisconsin, Arizona, and Michigan late last week, and in Milwaukee on Monday, they are among the first known subpoenas issued since Smith was named special counsel last month. And we know that all of them are of course focused on the investigation of January 6th and the attack of the Capitol. I think the key thing to focus on here, AG, is that these subpoenas cut right to the heart of that potential offense that I mentioned just a minute or so ago.

And that is a conspiracy to defraud the United States. We know just from watching the hearings of the January 6th committee that that effort with the fake electors is at the heart of not just Trump, but the team around him. So you're talking about people like John Eastman and maybe Rudy Giuliani and others to concoct a fraudulent scheme that would basically steal the election from Joe Biden and from the American people and allow Donald Trump to remain in power, even though he lost the election. So it does not surprise me at all that Jack Smith and his team is going out there and basically going after the evidence of how that agreement, those agreements or those conspiracies got started, who was in them,

what communications have they had because communications between co-conspirators are often some of the most powerful evidence of agreement, right? For that conspiracy, you have to have an agreement and an act. The communications are key to proving agreement, typically? For that conspiracy, you have to have an agreement and an act. The communications are key to proving agreement, typically. So, not surprised you're doing it. We know that the January 6th committee went down the same road. You're going to see a lot of duplication of the effort here, the special counsel kind of talking to people that already appeared in front of the January 6th committee, dropping subpoenas on people and institutions to grab some of that same evidence. But this is something they have to do.

DOJ has got to acquire that evidence through official channels with legal process in order to be able to use it later in a potential prosecution. Yeah. And Andrew, a lot of folks are asking, why have they waited so long to, well, I want to say this. I want to ask this question in light of the fact that before the 60-day pre-election blackout window, like 50 or 60 subpoenas were sent out to the actual fraudulent electors themselves.

And now these subpoenas are being sent out after the appointment of special counsel to the election officials who may be less recalcitrant than some of the actual fraudulent electors themselves. But a lot of folks are asking, why now? Why didn't you subpoena these guys last year? And I was wondering if you could maybe provide some sort of insight as to why it has taken so long for these subpoenas to now just now kind of reach these key election officials in these battleground states. It's a really good question, AG. And it's impossible to know exactly without obviously being on the inside of the investigation. I mean, the possibilities could range from, like,

maybe some of these election officials did speak to investigators kind of informally. Months ago to kind of let them know what happened, but now they have to go back and get the actual records, communications, phone records, official records of election officials, acts, things of that nature. And again, you want to get that stuff through legal process, through subpoenas, because that's how you authenticate it in order to be presented, first of the grand jury, but

ultimately in trial, right? So something else that occurs to me, Andrew, and I'm sorry, I didn't rep you, but something else just occurred to me. I remember one of the things that the Department of Justice asked the committee for first was their information on fraudulent electors. And so perhaps they had to wait to get that information from the committee

as we were talking about before, before they go into the grand jury room to make sure there's consistency with testimony. Perhaps that's the reason. It's really possible. I mean, any of there's a pretty wide open field and we're kind of feeling our way through it a little bit. So I wouldn't want to say with with confidence, like, oh, I know exactly why they're doing it now. I mean, honestly, some of it could come down to, there is still I think a lingering question as to what level of will there was within the department and quite frankly, within the FBI, my former institution months and months ago, you know, at a time when many folks were thinking like, of course, somebody should be looking at the former president

and the team of, I'll just say advisors, but I'll take that with air quotes around him in a lead up to January 6th. And for quite some time, we really wondered if the DOJ investigation was going kind of, you know, in a concerted way in that direction. We now know they are, but I think there is a question to see,

when you roll the clock back five months, six months, seven months, was it the same commitment to that direction? I don't know, we won't know that until the case becomes public, if in fact it does with indictments later on and a trial and all that stuff, but I think it's a good thing to remember. Yeah, and I definitely think that the documents case is more straightforward than the fraudulent electors scheme.

And I think the fraudulent electors scheme is a lot more straightforward than linking Donald to violence at the Capitol, but there's a lot we don't know. And we're just going to have to see how it goes as this investigation unfolds. But I wanted to bring up a third piece. I was like, oh, we'll do the first path on documents, second half on January 6th. I keep leaving out the obstruction part of this investigation, which is unlike me, because it is my favorite volume of the Mueller report. Meaning, it's favorite, meaning so just well laid out all the elements are addressed in three elements of obstruction of justice. Let's talk to me just a bit before we get out of here, and then I have one more question

for you. Because we know Donald's pack is paying for some of the legal bills for key witnesses. Donald has made several public statements about pardoning people who participated in the attack on the Capitol, and we saw several pardon offers used in the Mueller report on obstruction. Uh, I, I think I feel like I and maybe others are kind of underestimating the importance of the obstruction piece of this investigation. There, there's no question. It is a key part of the investigation. Um, yeah, it seems like there's a, there's a lot of those here.

It's a cornucopia of potential investigative activity and directions in which to go, but obstruction always plays a primary role when you're talking about the activities of the former president. And obstruction in this investigation has many different possible forms, right? If you're thinking about paying for witnesses to influence their testimony, there were some allegations to during the January 6 hearings

that phone calls were being made from possibly the former president or people around him to people to witnesses before they would go in and testify. So all those things go to kind of the traditional witness tampering type obstruction, but here we also have, and likely more significantly, one of the primary allegations about the entire effort leading up to January 6th, is that it was an effort or a conspiracy to obstruct, uh, to obstruct government, right, to obstruct Congress, to obstruct the certification of the real electors and the peaceful transfer of power. So I think you have to kind of always keep that shadow of obstruction kind of in the back of your mind as you're looking at these developments. And hopefully as we see, we learn more and more about the evidence and the witnesses that are appearing in front of some of these committees and

grand juries and things. Yeah, and I think that that might be something that the department or that the one six committee could possibly hand over to the Department of Justice that they might not have already had with you know with regard to who possibly might have participated in witness intimidation of January six witnesses and things like that. I think that could be something there. And one last question for you back to the scope.

Recently, and this goes, I'm piggybacking on stuff that's recently happened in the January 6th committee, Robin Voss, Chair, GOP, Head of the GOP of Wisconsin, was recently called into testify to the January 6th Committee. I don't know that he, if he's been subpoenaed as part of this group of subpoenas to election officials in key swing states, but he 20 months after January 6th, pursuant to a Wisconsin court decision about ballot drop boxes, I think, Donald Trump called up Robin Voss and said, hey, why don't you

overturn the election based on this court finding? It seems like the interference. I think it's also, I guess, what I'm trying to say is it's important we understand that this kind of stuff didn't end on January 6th. It continued and it does continue and it continues to this day. And I think that also sort of piggybacks on the obstruction piece. There could be obstruction going on right this second that, you know, that we don't know about that the DOJs look again too. But do you think that that kind of stuff that happened 20 months after the attack on the Capitol is, is I think it would fall within the scope of what special counsel is investigating?

I mean, it certainly would fall within the scope of what they're doing. And it also is just another, another thing to put in the already deep and full bucket of stupid and destructive things that Donald Trump has said on the record. This one, you know, I mean, like you're talking about wondering what's going on in his head. This one makes pretty clear. He's still trying to overturn the results of the 2020 election. So it would be very, so in other words, this statement might be relevant in a trial. If as part of his defense, he tried to say, I never intended to overturn the results of the election, you would use this statement to show,

no, in fact, you did in 20 months later, you were still doing it. So these statements don't help him. But yeah, the world didn't stop, thankfully, on January 6th. And Donald Trump's legal problems, as a result of what happened on January 6th, really depend in large part on the month's long effort that landed on January 6th and the thing that happened after January 6th. And Jack Smith is not limited to like the events that took place on that day. He's going to look across the entire scope of the build up actual attack and then of course how people reacted to it in its aftermath, which might say something relevant about Trump and his advisors and his team and what they really intended to do.

All right. Well, thank you so much for answering all of my questions. And again, thank you for everyone for listening to Jack. I really appreciate that. And it's been another enlightening week. We'll see what happens next week. I mean, you know, I know I always when I started the Mueller investigation podcast, I was like, I don't know if we have enough content for a weekly show. But I I I I was proven wrong then and I think that

that will be that will bear out here with this investigation as well. Yeah, I fully expect it will. It's super interesting. So I'm just really glad to be here to sort it out with you and all of our listeners. So thanks very much. All right, that's our show this week. Please subscribe, share with your friends. We'll be back next week to discuss all things special counsel on Jack. I'm Allison Gil.

And I'm Andrew McCabe and even listen to Jack. We'll see you next week. And you've been listening to Jack. We'll see you next week. Season 4 of How We Win Is Here For the past four years, we've been making history in critical elections all over the country. And last year, we made history again by expanding our majority in the Senate, eating election denying Republicans and crucial state house races, and fighting back a non-existent red wave. But the Magga Republicans who plotted and pardoned

the attempted overthrow of our government now control the House. Thanks to gerrymandered maps and repressive anti-voter laws. And the chaotic spectacle we've already seen shows us just how far they will go to seize power, dismantle our government, and take away our freedoms. So the official podcast of the persistence is back with season four. There's so much more important work ahead of us to fight for equity, justice, and our very democracy itself. We'll

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