Jack - Episode 20 - The Ocho Nostra

Episode Date: April 16, 2023

This week: Jack Smith issues new subpoenas and gets new testimony in the Jan. 6 investigation and the Save America PAC; the investigation into the DHS IG over missing Secret Service text messages; the Gang of Eight has begun getting access to the classified documents found at Mar-a-Lago; 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. 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 20 of Jack, the podcast about all things special counsel. It is Sunday, April 16th and I'm your host Andy McCabe. Hey Andy, it's me, Alison Gil. Once again, a very busy week for Jack Smith. I think you referred to him as a subpoena factory because you know during the week you and I text back and forth about some of the stories that are coming out. But there's all kinds of new subpoenas and testimony and some news about witness requests made by Fanny Willis to the Department of Justice last year. There's also been an expansion and an investigation into the Department of Homeland Security Inspector General Kufari over the missing secret service text messages from January 6th among other things.

And there's been a gang of eight briefing on all the classified documents. And I'm going to ask you about that because I know you've got some experience there. But first, Andrew, who is the winner of the contest naming the eight Trump AIDS and allies that the court, Jeb Bosberg, compelled to testify over arguments of executive privilege? Because remember, we were tired of naming them all. I know. It's a drag, right? There are so many people in that list. So I have to tell you, it was a hard fought battle. AG, we got over 150 submissions, which just completely knocked me out. They were mostly very creative, although I have to say the most over submitted suggestion was the hateful eight. If you subtract out the hateful eight, I think we only got

like four or five. No, it wasn't that bad. But yeah, we got some great ones. I'll give you some of my favorites, the Ocho Fraudz, which, or how about Scheme team or Steel Team Eight, which I don't know, I just love that one. Shout out to all my San Diego Compadres. The Trader Aiders, the Insurectile Disfunctionals, let your mind go with that one, the IncootCoup8, or how about the Unappealables, which is actually a shout out to the eighth grade English class Rollo's Writing Room.

I don't know what any of that means, but if I can do anything to help an eighth grade English class, I'm doing it. And then another, another really good one. Only the bee best. That was quite funny, but none of those are the winner. I think you and I were really on the same page here with the one that we thought should win. And the winner is... Ocho Nostra. I mean, it is so great. Ocho Nostra, it's like both creepy and like subversive in the reference to the Koso Nostra, of course. But yeah, it gives it kind of like a, I don't know, like a very kind of, um, Cinco de Mayo vibe or something. I don't know what it is, but I really dig it. Ocho Nostra. Yeah Yeah, or the Ocho, that one football player guy.

So, so yeah, very, very good. I think that submission came from Aaron H. And so we are going to refer to them. I mean, we'll probably pick, you know, pull all these at some point in tweets and things that we talk about. But yeah, well, Ocho and Ostrich. Ocho and Ostrich, it is for now, and at least we talk about. But yeah, low-chownostra. Low-chownostra it is for now, and at least for this episode. And yes, we have to talk to our audio folks and figure out how to connect with Aaron

and record an outgoing voicemail for her. I don't have any idea how to do this thing, but we are gonna work it out, Aaron, and we'll get this figured out. So speaking of low- Nosera, several of them have already testified for a second time before the grand jury, including our favorite coach, Ken Cuchinelli, Steven Miller, and John Ratcliffe. So, what are your thoughts about that, that wrecking crew there?

I guess Miller, probably the first one to mention. Of course, he's going to have information about the last minute edits made to Trump's of lip speech, including the addition of a line about how Mike Pence should do the right thing and throw the votes back to the States. Miller always at the right hand of the president throughout his term. We know that he previously appeared in November and December, but on April 4, Judge Bozberg ordered Miller to return to testify about things he had previously invoked executive privilege over. Yeah, and I assume those have to be those discussions with

Donald about how to, you know, put those last minute Pence references in his speech, right? Because we know that from stuff we learned from the January 6th select committee, that those, like, I think it was Representative Gloria, who presented that particular piece of information that the speech didn't include any mention of Mike Pence until the very last minute when those edits were made. And then there were some additional, I guess, riffs by Donald Trump while he was giving the speech that added some different references to Pence. And if he has the courage to do the right thing and, yeah, I mean, it's, it's a very direct line of questioning, right?

First, you wrote the speech, it didn't have that reference. Then you put that reference in. Why? What conversation did you had to Trump tell you to put that in? Was that entirely your idea? What did you mean by that? When you put it in, what did Trump say about it? How did he react to the inclusion of that? So it really isn't. It's yet, and I don't know. We say this a lot, but it's yet another small piece that gives you some insight into what Trump was thinking. What was his actual intent in that moment? Crafting that statement says something about what he actually wanted done. So it's an interesting and important line of questioning, I think.

Yeah, I agree. If Jack Smith maybe goes after incitation of an insurrection or anything like that, that could be evidence in that. It could also be evidence in the fraudulent electric scheme, the Penn's pressure campaign, any of those eight prongs of cooing that went on, that went on with regard to Donald Trump. And then we have former DNI, John Ratcliffe, director of national intelligence. He testified before a federal grand jury Thursday, and he is likely of interest to investigators, because he personally told Trump and his allies that there was no evidence of foreign election

interference or widespread fraud. And we know that when Sydney Powell and Mike Flynn and Rudy Giuliani were pushing for executive orders to seize voting machines, that there was some discussion about, you know, we can't really do that unless there's foreign election interference. And that's when these Italian satellite conspiracy theories started coming to light and Sydney Powell is bringing up Venezuela and Rudy Giuliani is talking about Venezuela, all these different conspiracy theories about foreign election interference and how that plays into it. And Ratcliffe would be able to, you know, testify assuming that he came in and said, I'm not going to testify to any discussions about that I had with Donald Trump because

of executive privilege, or I want to wait until that privilege question is settled before I, you know, talk about that because a lot of these guys who have testified were, I think willing to testify about their discussions with Donald Trump, but wanted to wait until the executive privilege question was resolved before they did that. I know Herschmann was one of those. He said, hey, if they asked me to testify

and there's no executive privilege, I'm gonna. We know that the Pats, Pat Filbon and Pat Sepoloni were on that train, Mark Jacob, Engel, some of the guys that are our Pence, close to Pence, Pence, general counsel and deputy general counsel. So, I don't know if Ratcliffe was just being recalcitrant and being a dick, or if he was just like really waiting for the chief judge, overseeing grand juries, to say, to give him the go ahead. You know, it's the go ahead, but it's also coverage, right?

It's the same reason why you got to talk to somebody, typically this happens when you're doing an investigation, you have to go approach a company or an organization for records or some sort of testimony. They're happy to cooperate, but they want you to serve in a subpoena first. So then they can turn around and say, oh, I had to do it. There was no choice here. This is the law I had to comply.

Same thing is happening here with, I think, a lot of these witnesses. They went in and claimed executive privilege to avoid having to relate conversations and statements they had with Trump. But half of them are not really, you know, their heart wasn't in it. They wanted that peace to be litigated. And if there was a determination that there's no privilege, then they were likely fine with going in and talking. And I think Radcliffe is probably one of those guys because if you think about it, he was

in his perch as DNI, director of national intelligence. He has access to all of the nation's foreign intelligence collection. The issue of election security was certainly a big deal leading into that 2020 election. You'll recall, he was giving briefings on at Chris Ray, Chris Krebs, who was the head of Sesso, were giving briefings to Congress on these issues. So he saw all that stuff. He's also a guy that previously went along with a lot of Trump's crazy demands about declassifying intelligence from the Russia investigation, things that really there was no reason to declassify that stuff other than giving in to Trump's kind of demands,

supporting his grievance theory of life, basically. So he went along with all that stuff previously and then at this moment, when asked, okay, okay, now give us the foreign intelligence that shows that Venezuela or Lord knows who else were messed with the election, that was the breaking point for him. And he allegedly told Trump and others that it's not there. I have no proof for you.

I can't help you with this. So I'd expect these probably not reluctant to say that into the grand jury, but he just wanted the coverage of having the privilege issue resolved. Yeah. And same with Kuchinelli, right? He had testified previously in January, and he appeared again last week, part of the low-chonostra. The House Select Committee reported Kuchinelli fielded a question from Trump and his top advisors about the executive branch seizing voting machines, right? To DHS.

Now Kuchinelli also messaged with Mark Meadows in November 2020 about Dominion voting machines. And Trump also considered Kuchinelli for special counsel to seek out election fraud on behalf of the White House after the election. He tried to appoint Kucinelli. He floated Sydney Powell as being the special counsel to investigate election fraud because I guess his $600,000 report from the research firm didn't give him the... Didn't go the way he wanted. Yeah, it didn't go the way he wanted. So he was trying to appoint a special counsel to do that.

And again, weaponize the Department of Justice in that way. So that leaves Meadows McIntee, Johnny McIntee, Robert O'Brien, Dan Scovino, and Nicoluna left to testify as part of this, you know, the Ochoenostra. As far as we know, they may have snuck in without the press scene, but this seems to be going really quickly. I mean, that's, that's, you know, they got Cuchineleon the day that the appellate court wouldn't issue the stay blocking these guys from testifying under executive privilege. He came in that afternoon. Yeah, and that's the advantage to having a prosecutor like Jack Smith and his

team. They are continuing to drop grand jury subpoenas on these people while the privilege issue is being litigated. And the advantage there is it forces the litigation to go forward more quickly, because you have an upcoming deadline of having that witness in front of the grand jury. And it does seem that the judges, now Bozberg, of course, are helping to keep that schedule intact, to keep these witnesses getting in front of the grand jury. And that's going to help us get to the end of this process sooner rather than later.

Yeah. So a stay was denied, but the underlying appeal continues. And these arguments are going to be heard in May, along with arguments about the Pence executive privilege case. That's going to be heard in May as well, but I didn't see any stay even asked for or issued in the Pence case. Maybe they were just like, well, we shouldn't even bother asking for a stay or there was a stay and it was denied and everything's under seal.

We just don't know. As a pastime isn't talking. Because again, all of these are under seal. We're getting all of this information likely from the lawyers of the people who are being forced to testify so that they can get out ahead of it and spin it like, hey, I'm just doing my job and they forced me to come in or whatever. That's right. But all of that is set to be heard in May. Now, Andrew, what happens if they get the testimony, you know, the executive privilege, the previously privileged testimony that's

no longer privileged because the stay wasn't granted and they must testify to, you know, to these lines of questioning, what happens if in May the arguments are heard and then in June or July or something like that, somehow Trump wins this executive privilege battle. Do they just then not use that testimony in court, but they have it now? Are you allowed to just get it and then it gets clawed back after a potentially litigation like this? Yeah, it's a really weird fact pattern because quite frankly, I just, I've never seen a situation like this before. But what my, my strong suspicion, I just, I've never seen a situation like this before.

But what my, my strong suspicion, he's not going to win. I'm just wondering if, like, what happens in that situation? The mechanics of it. Yeah, sure. So the mechanics of it would be that, that, that testimony would be declared inadmissible. So it would not be able to be used in a prosecution or a trial that might follow an indictment. However, the sticky point here is the grand jurors have already heard it. So, and in that famous saying, you can't unring the bell. It's already had an impact on those grand jurors. Now, they can be instructed by the chief judge to disregard that testimony, because it's no longer admissible.

It won't go any further, and they shouldn't factor it into their decision, but geez, that's really hard to do, especially if you imagine having sat through hours of, let's say, for instance, Mike Pence testimony, that's like remarkable and riveting, you know, riveting and they, although it's hard to imagine anybody riveted by, like, Pence talking, but okay, maybe they sat there for hours on the edge of their seats and listened to everything he had

to say. And then to have a judge come back to you a few weeks later and say, oh, yeah, just forget about all that. Don't factor it into your decision when you're deciding whether or not to vote for an indictment. That's right. It's not just what ends up being admissible in court for motions and lemonade. It's what they use to decide whether or not to indict. Now, what if they indict before that decision is done? Because I can't figure out why Jack Smith would go ahead and get this testimony while they're still an appeal pending, like why he wouldn't wait for that resolution, or for, you know, for the appeal to the Supreme

Court, the Supreme Court refuses to hear it. Like they have before it either says to me that he's on a time crunch or he's 100% certain that this isn't going to be a winner for Trump because it has not in the past. He is, he won, for example, the Pat Philbin Pat, a Sepilone executive privilege battle. And he's won other ones all the way up to the Supreme Court. So perhaps he's just like, I don't even care. I just don't, I just don't get why he's not waiting for the resolution.

It's maybe a, like I said, a time crunch. But because if he goes and he uses this testimony to indict Donald before the resolution, it's maybe like I said, a time crunch, but because if he goes and he uses this testimony to indict Donald before the resolution of that appeal, and then the appeal comes, he like, I don't think he's going to win, but he wins after the indictment comes down, then there can be pretrial challenges to the indictment. Yeah, it's, it's messy. And I think you're, I tend to agree with your assessment that he is likely motivated by prior victories. He doesn't hold out nobody, I think holds out much hope for the appeals of these executive

privilege decisions, turning things around. And he is under a time crunch. He's trying to get this thing done. You know, we'll have all this information. And then when the arguments come out in May, and then there's a decision against Trump, and then it goes to the Supreme Court, and the Supreme Court refuses to hear it maybe in June,

then it's resolved, then he can indict, you know, maybe he's waiting to indict until it's,, but getting the locking in the testimony now as opposed to waiting until later. Yeah. He's taking the chance that he may have to unwind it later if the rulings don't go his way, but that's a low likelihood event. And because the appellate courts are not issuing stays of the lower courts order,

the witnesses don't have the option of going in front of the grand jury and saying, nope, I appealed and I still expect that executive privilege is going to hold. And I don't have to answer these questions. They have to answer because they are bound by the lower courts ruling that has not been stayed. So he'll get the testimony. He may be creating a problem for himself later, uh, if the rulings, if the appeals don't go his way, but it's probably a pretty safe bet to move forward. Yeah. They haven't gone Trump's way yet. I mean, and he, uh, Jack Smith is batting a thousand and there's been a few of these already. So, and other news to news to former, another former director of national intelligence

under Trump, Rick Grinnell testified this past Thursday, but this time in the Mar-a-Lago documents case. So we just have a revolving door in two different grand juries going in and out of this test. That's a peanut factory. I'm telling you. That's a peanut factory. The comment out of that article I sent to you was indicated they have two separate grand juries meeting I think twice a week each in DC every week, which is a phenomenal amount of grand jury time. That is a lot of grand jury time. And you know, with that kind of that number of prosecutors in front of grand juries, that often you're gonna you're gonna get a lot of witnesses through

the door. And that's what we're saying. Yeah, definitely. So Grinnell is also part of this declassification of the Russia documents, right? He was, he embarked upon an effort to declassify documents that were of interest to Trump, because Trump believed they could delegitimize the Russian investigation. Grinnell remained in Trump's orbit, even after the former president left office, and has been seen at Mar-a-Lago as recently as last week, Grinnell. He also commented publicly about Trump's retention of classified documents, and the former president's still-unproven claims that the materials have been declassified.

The same grand jury investigating the documents kept at Mar-a-Lago has also heard testimony from Trump's former National Security Advisor, Robert O'Brien, who is also being investigated in the other grand jury for January 6th. But I think what's interesting here is that we're going to see a similar situation to some other people who have testified and what they say to the public like Kosh Patel, for example, or have told the public on Fox News that, you know, Trump absolutely called for the National Guard multiple times on January 6th. But then in testimony, under oath, I said, nope, he never ever called for it. I think we're going to see

another situation where what Grinnell has said to the public differs wildly from what he testifies to under oath regarding the declassification of this material. But it could, you know, it could also reveal to Jack Smith what Donald Trump thought might be declassified or whether he knew that these items were not declassified or whether he was told don't take them. They're not officially declassified yet. Stuff like that. Sure. Yeah. And we'll see how that turns out. I think that's possible. I think it's also possible that this is like a bit of a parrying move, right? And a fight you would, you expect a blow to come, you see it heading your way and you deflect it before it gets there. So that's

kind of how I think about the Rick Grinnell testimony. I think that's possible that the prosecutors think that one of Trump's possible defenses in the document case might be, oh no, I thought Rick Grinnell, you know, declassified this stuff for me. So they're getting to the source first. They're going to put him in there and find out exactly what he declassified and what he didn't and when he was in a position to do so and when he wasn't. So they have all that stuff in the tank in the event. He Trump is indicted and he presents this or a similar defense point, essentially pointing the finger at Rick or now at trial. The prosecutors will have the information. They need lockdown sworn under oath in a way that makes it very effective to shoot that

defense down at trial. Yeah, very good point because, you know, Trump's defense say, I mean, hey, he told me they were declassified. That's why I took them. That's exactly right. And then you get Grinnell up with perhaps some emails and statements and notes where he specifically said that certain things were not declassified, but they were taken anyway, because we know also Mark Meadows wrote a memo at the very end of Trump's

tenure, like a third week, a January, second week, a January 2021, telling that some of, you know, telling Trump that a lot of these documents haven't been declassified, they haven't gone through. There's concerns over at FBI and DOJ about declassifying these certain documents. And then he went ran and grabbed a bunch of them and gave them back to the DOJ. So I mean, there's a lot going on. Right. And that's a part of the documents case that I think goes a little bit off the radar. And we'll keep, we'll keep you posted on it.

And Andy, we have a really big update on that sleeper case that you talked about back in December that Jack Smith is looking into wire fraud and Randall Elias and wrote that piece saying, you know, hey, if it's, if it's white collar, it's going to be wire fraud. That's right. And so we've got some new stuff about Jack Smith looking into the wire fraud and the Trump packs will have more on that after this quick break. Everybody stick around. Welcome back.

Okay. So back in December, there was some reporting that you and I discussed about subpoenas that were sent out requesting information on Trump's super PACs. So let's take a little trip down memory lane here, A.G. So you'll recall that it was first reported by ABC in September of last year. And ABC said, the subpoenas, which were sent to several individuals in recent weeks, are specifically seeking to understand the timeline of Save America's formation, the organization's fundraising activities, and how the money is both received and spent by the Trump aligned pack.

Okay. So that's going all the way back to September, meaning the, you know, and that those subpoenas went out in August, I just want to, you know, point out that that's before Jack Smith got here. That's right. And, and let's remember, that was kind of a, a new subtext, right? It was not something that featured prominently in the work of the January 6th committee, at least not in the hearings that we that we all watched on TV. This kind of

direct investigative action or investigative action directed at the packs. All right. So then that could have come out from the January 6th select committee because you know, they did call it the big fraud. They did. The big, the big grift, umzolovgren dead. And it was in July, actually, after a good number of those hearings had taken place that Jackson, or that Mara, Garland, excuse me, appointed JP Cooney to be in charge of the financial part of the investigation of Trump Super PAC. So this is going back eight or nine months now. Yes, that's right. So then in December, after Garland appointed Jack Smith, Caitlin Pollance at CNN reported the following. She said in recent months, however, the financial investigation has sought information about Trump's post-election save America

pack and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators and listed cooperators months after the 2021 riot. So this now has been going on since, since right after the right happened. That's right. That's right. Because we remember they sent out a bunch of subpoenas soon after Merrick Garland got there asking for information about fundraising and the money that supported the rally on the ellipse on January 6th, right? That's right. So then in January, Dawsey at the Washington Post reported an expansion of the probe into

Trump's election fraud fundraising. And I quote, one person with knowledge of the prosecutors' inquiries said they appeared to be exploring whether people who approved the ads saying the election was stolen separately acknowledged their fundraising pitches were based on lies. Prosecutors also sought information about a quote, election defense fund cited in some fundraising emails that asked for donor money to challenge the election and any documents about whether such a fund existed or whether there are plans for such a fund. Yeah, now, and I have a prediction here because I know the January 6th committee had subpoenaed

a company called sales force and sales force was responsible for putting all the ads together and the fundraising emails and text messages that were sent out by the Trump organization and the Trump campaign to fraudulently raise money off of these election lies. And people at Salesforce, like you were talking about in the first segment, got, you know, said, hey, just subpoena us for this stuff. We're happy to hand it over. But then Trump came in and sued to block it and held it up in the courts with his, you know, delay magic wand. And so eventually, the select committee disbanded and they had to cancel that

subpoena for sales force and they just dropped it because they weren't going to get that information. I am willing to bet you all the beans that Jack Smith or the Department of Justice before Jack Smith got there did not have a hard time getting the documents and information from sales forces. Not at all. Those people were like, Hey, we do not want to be in the middle of this thing. Here you go. Here's the documents.

Thank you very much. So, yeah. And Jack Smith's got the power, you know, overseeing the DC grand jury that he's running as would of the DOJ before Jack Smith got there. So, I wouldn't be surprised if we hear sometime in the next week or two that Department of Justice has the records from Salesforce with regards to Trump's pack and the fraudulent fundraising. But here's what's cool.

Now we have more subpoenas related to this investigation. Sipena. All right, so again, from Dossie at the Washington Post, just this past week on April 12, quote, the new subpoenas received since the beginning of March, which have not been previously reported, show the breadth of Smith's investigation. The subpoena seek more information and specific types of communications so the prosecutors want to compare what Trump allies and advisors were telling one another privately about voter fraud claims with what they were saying publicly in appeals that generated more than $200 million in donations from conservatives. So that's really, really big news. And can you explain just for a second,

why some people might be subpoenaed again or what, like if subpoenas went out in August and then December and then January and then March, why are there so many rounds of subpoenas? Does it have to do with getting more leads and information at each level that you question folks? Yeah. You know, you can think of the first round of subpoena is like that's throwing the net out and to see what kind of fish fall into it. You get the results from that from that first inquiry back and that leads you, you know, it may uncover for you things like, you know, you can imagine like bank account numbers or identify people who are involved in particular

communications. Well, that gives you a whole new round of targets that you want to subpoena in your next round of subpoena. So this is the sort of iterative process that happens when you are conducting a grand jury investigation. You are constantly asking for information and then analyzing that information to develop new leads, new targets, new directions. And I should...

Much like with the documents, they subpoenaed them. They got the... Well, first they got the boxes, noticed classified stuff was missing. Then they'd sent out a subpoena, then they go down, then they get more, they develop more information that there was additional documents. So they get a search warrant signed off by a judge and they go down and get that. And then they send out subpoenas to 27 different aids and valleys. And you just keep kind of, and then, and then finally you get to core, crin. And it's very, yeah, exactly.

You very rarely ever open an investigation, you know, knowing or having a strong idea of who was involved, who's responsible for the crime or whatever you're looking into. And then you go out and make one request and get the piece of evidence to convict that person and then it's all done. That's like TV, you know, it happens over the course of an hour. In reality, these big investigations, particularly white collar investigations that are by definition very document intensive communication like historical communication intensive. So emails, text messages, things like that. It takes time to get the legal process, to serve the legal process, to wait for those entities to either pull them information together and get it to you or maybe fight you in court over it

over privilege or other things. You get it back and then it all has to be analyzed. You know, you kind of buried in reams and reams of data. You got to sort through it and figure out where to go next. So it's definitely a process, but I should also say, this is the meat and potatoes of DOJ white collar investigations. So many of these investigations come back to your basic fraud charges, wire fraud, mail fraud, securities fraud. They are tried and true prosecutors. They come up as prosecutors. They're trained and they cut their teeth

on these fraud cases for years and years and years. So they have a great sense of what sort of evidence you need to make these cases stick. They're not that complicated. And you have these tangible things to put in front of jurors in a trial. Like phone records, like emails, like bank records, or a witness that's gonna, you know,

kind of put context and interpretation around those things. So it's much easier to prove a fraud case than it is to prove a case for, you know, sedition or seditious conspiracy. Or inciting an insurrection. Exactly. Yeah, and I do to mention that the fraud statute carries with it a 20 year max sentence,

a 30 year max sentence, if it negatively impacts a financial institution. That's right. So it's not just a throwaway case, you know, it's their significant charge. Very significant. It's significant charge. It's what Bannon was charged with in his We Build the Wall

scheme where he defrauded donors saying he would raise money to build his own private wall on the Mexico border and then used it to, I don't know, fix up Gua Wangwei's yacht or whatever the hell. You know, pay his mortgage and stuff like that. So that's defrauding donor. When you tell a group of people that you are fundraising for one thing and then you spend the money on other things or that that one thing that you're raising money off of is all the lie, like the big lie.

And you can prove it, and then intent, then you end up with these, like you said, the bread and butter wire fried charges. Now, of course, banning was pardoned by Trump. Yeah, so there you go, but, so like in this case, so just in terms of the questions around the legal defense fund, if you say, if you raise money off of the claim that like,

hey, contribute money to my legal defense fund, you actually have to have a legal defense fund. And if you have one, and I know this, AG, because I used to have one, it's not just like, oh, I cooked it up in the back of my mind, give me some money, I'll throw it in my bank account and call that stuff I'm going to use for the words. No, you actually have to set it up. It's almost kind of like you incorporate it in a way. I don't know what the correct legal term is for that, but you set it up, it's on file in the state where you live or where the entity is based. you have to file tax returns for the defense fund.

That's why they're asking all these questions. They can prove that none of that stuff ever happened with the PACs legal defense fund. Or the election fraud defense fund didn't exist. Exactly. If they haven't taken any of those steps to actually, you know, file the right paperwork to file, you know, tax returns at the end of the year to declare the money that they've that they've brought in, then the thing didn't really exist, which makes all of the fundraising emails a complete fraud. Yeah. And that leads us right into our

next story from Caitlin Polenz at CNN, who's just by the way, excellent reporting. I recommend you follow her. And this is reported on Friday, April 14th, quote, federal prosecutors investigating former president Trump's handling of classified documents. This is the documents case are pressing multiple witnesses for details about their attorneys, including whether any of them have attempted to influence testimony in order to protect the former president. Many of those lawyers have been paid out of the money raised on fraudulent electrolytes. And by the end of 2022, save America packet paid $16 million for lawyers. And this is clearly not a legal defense fund who defend Trump himself and people who work for him in the

ongoing probes and in response to other legal issues. And of course, several of Trump's closest aides who are now witnesses remain on his payroll and also receive hefty consulting fees through the Save America pack. Now, again, it's not illegal to have your defense paid for by a third party. That's right. But if it's being used nefariously or corruptly to suborn perjury or to coerce witnesses, that's when you start running into trouble. It's a little harder to prove than just straightforward wired fraud. Like you're just, you know, you're raising money off of fraudulent stuff. But that Jack Smith is looking into this. And this has to do with the January

6th committee and perhaps obstructing their work. It has to do with the documents case. It has to do with the pack, the Save America pack case has to do with Sydney Powell and her and the investigation into her pack and has to do with the January 6th investigation by Jack Smith. This touches every single investigation, and now we know that Jack Smith, and probably is part of his obstruction investigation, is looking into where this money went and if it paid for these attorneys, and if that is, in fact, illegal, or just normal course of events. Yeah, it's a very tough thing to prove. You basically have to have evidence that the

attorney, let's say in this, in this, in this example, Trump is the third party. So let's say you have a witness who's been into the grand jury and Trump decides to pay for that witness's attorney. So that attorney, you'd have to prove is actually not, not really genuinely representing the witness in the best interest of the witness. They're actually representing the witness in an effort to control them, or manipulate their testimony for the benefit of the person who's paying the bill, which in this hypothetical Donald Trump. Those are very kind of complicated proof issues there, and all of many of which are bound up in attorney client privilege between the attorney and the person they're representing, either for

good or for ill. So hard to see how like a specific charge comes out of that, but it could also spell headaches for the attorneys involved. It could sort of thing that could lead to sanctions and complaints with bar associations. Yeah. And even if you don't have enough to charge a crime, right, like of subordinate purgeary or coercion or obstruction, like let's just take the Pasantino Hutchinson situation that we know Pasantino was being paid. Hutchinson testified or said that Pasantino told her to say she didn't recall certain

facts when she actually did, he says that didn't happen and there's no documentary communication proving that. It's going to be probably not something that you can charge a crime for, but it is certainly something that you can put in the body of a report that shows totality of evidence of obstruction, of a pattern of behavior of interference and obstruction, if you're looking to charge him for obstruction of justice on some other very provable thing. It just kind of goes to it, like just like it did in the Mueller report with the pardons he dangled for Cohen. And he didn't have, he couldn't indict the sitting president.

And in some cases, he did have enough to charge obstruction per the way that he laid it out in volume two. But there were other things that didn't meet all three elements of obstruction of justice that had to do with the pressure that he put on certain witnesses. But it was included to show a pattern of behavior. That's right. That's right. Or, you know, even if you had, if you could show that the payments to the attorneys for these witnesses actually came out of this sham legal defense fund that could that could substantiate your claim that, oh, the legal defense fund is actually

a fraud because it wasn't they weren't people's money wasn't actually being used to, you know, overturn the election or something like that. Yeah, for sure. All right, we got a couple more pieces of news. We'll hit in a lightning round style as soon as we take another quick break and then we'll also answer a listener question. So everybody stick around. We'll be right back. All right, welcome back. So a couple quick things. First of all, we had a gang of eight

briefing. Congressional leaders known as the gang of eight, right? That's the leaders of the Senate and the House and then the leader, the chair, co-chair of the intelligence committees in both houses or both, you know, in the Senate and the House. Eight of them. So four Democrats, four Republicans have begun receiving access to classified documents found in the possession of the former guy, Trump, President Biden, and former vice president Mike Pence. And normally the DOJ wouldn't share documents that are part of an ongoing criminal investigation with Congress. Why are they doing so now?

Does this signal that maybe Jack has the testimony locked in that he needs? Locked in and is fine with sharing these documents now with the gang of eight? You know, I can't imagine that Jack is very comfortable with this. Even if he's got his the lion's share of his testimony locked in, you don't want your evidence. The actual documents, you're going to use this evidence in a potential prosecution. You don't want your evidence. The actual documents, you're going to use this evidence in a potential prosecution. You don't want that floating around up in Capitol Hill. And it also does put you in this awkward position of sharing something evidence in a criminal investigation, likely criminal prosecution with Congress.

That's like a line in the sand that DOJ never wants to go over. So that's all on one side of the equation. The problem is there's another side to that equation. And that is that the intelligence committees specifically have an obligation to conduct oversight, and particularly oversight of matters that are considered intelligence failures. And the loss of classified material, although we seem to be talking about that a lot these days, the loss of classified material or the spillage as we like to say, have classified outside of approved places and containers is, qualifies as that sort of intelligence failure.

So Congress has a legitimate oversight role here, and that's what they're using to demand access to the documents. Now, and I couldn't Jack Smith have written a letter like Alvin Bragg wrote to Jim Kud saying, look, well, these documents are part of an ongoing criminal investigation. You can't see them yet. He could, but here's here's where they have an opening. In addition to the criminal investigation, you also have the intelligence community conducting a damage assessment. So risk assessment? The risk assessment. Right. So they've already looked at all the documents and determined like to make decisions about which sources and methods now need to be protected. Maybe accesses that we had in foreign places need to be shut down. Maybe sources need to be moved.

That's all very real and important work that has to get done. And that's right in the lane of Intel stuff that Congress has oversight over. So my guess is that I would have hoped that the only thing Congress would have seen were summaries of the documents to kind of address this issue of what sort of danger does this spill present

to classified sources and methods. It's likely Congress wasn't satisfied with that or demanding looking at some of the exact documents. So if they're getting them from, let's say, the DNI or from Intel community representatives rather than the prosecutors who are investigating the case, they can kind of fig Lee fit a little bit and say, well, go, we're not asking for evidence from the prosecutors. We're asking for for for intelligence from the intelligence community. Essentially, it's the same material. So there's there's jeopardy there. But um, yeah, but Jack Smith fought tooth and nail

the Eileen cannon special master or classified documents thing to keep those documents out of the hands of even the special master with the argument that yes, we're doing a risk assessment, but these are inextricably linked to a criminal pro. They cannot be pulled apart. It's odd to me because they say that the gang of eight saw actual documents, perhaps, and there's things that we don't know. Maybe the Goldilocks documents that are going to be used in the case were not shown, I honestly don't know, but it seems like from the reporting, at least, that all the classified documents they have were shown to the gang of eights, like the actual

docs. It's hard to say how they arrived at that, if that's in fact what happened. In my own personal experience, these things, sometimes you will lash yourself to the mast and go down with this ship, fighting, yelling and screaming at the AG and the DAG and everybody else saying, no, no, no, don't do it. You can't do it. You're going to ruin my case. But they are subjected to political pressures and

political realities. and sometimes they'll split the baby and do something that they wouldn't normally do. This feels like one of those moments. Now, and I'm not trying to defend it, but the gange of eight is typically the smallest, most discreet group that you can convene up on the hill. So when you have something like super creepy, sensitive that you feel like you absolutely have to notify a congress about, but you wanna do it in the most secure way,

the way least susceptible to leakage and stuff like that, you just request a gang of eight briefing. So that's obviously what they did here. And I think there's a good chance that you won't hear things leaking out of that briefing. But look, it's Congress you never know. Well, I have to imagine Kevin McCarthy would run back to Donald and let him know what they've got. But I mean, again, like he said, split the baby. And we'll see, we'll see. We'll see. Well, I think we'll probably know more as time goes on. Yeah. Uh, what they got to peek at.

Also, Kufari, who I've been like hammering on, he's the Inspector General at the DHS, Trump appointee. He's suing the Council of the Inspector's General on Integrity and Efficiency. So if you ever wonder, like, if you've got a nefarious Inspector General, what is the check on that guy? And the answer is the council of the inspector's general on integrity and efficiency. It's a panel of inspector's

general that investigate others, other inspector's general. Well, Kufari is suing them. And the lawsuit revealed that on Monday, investigators demanded records related to the deleted text messages of the office of inspector general Kufari, his deleted text messages, right? Now Cufari was investigating the disappearance of the Secret Service text messages, and he waited until the day after 18 months had passed, after January 6th, to talk, to tell Congress that text messages were missing. And I find that that's a very interesting period of time because there are some records retention rules

in the department, in the US Secret Service Department, in that agency or DHS that say, after 18 months, you can delete anything. We don't keep records after 18 months. And so that's when he came to Congress and said, we can't find any of these text messages. It just happened to me. And then they were like, oh, well, why did you delete them? Oh and said, we can't find any of these text messages. It just happened to me.

And then they were like, oh, well, why did you delete them? Oh, well, we kept them for 18 months. So this investigation has paralyzed the Inspector General's office, alienated Kufari from the watchdog community and led to calls for Biden to fire him. Now the lawsuit and an usual broad side

against the federal watchdog community by one of its own accuses the panel, that that Sige council of investigators, of exceeding its authority and of illegal interference in the operations of one of the government's largest oversight offices. This sounds like something Trump would say. But this panel said, quote, he's Cufari challenged the structure of a body statutorily created by Congress. We're appalled and exhausted by him.

They said. I love that. Appalled, not just appalled, appalled and exhausted. That is so visual. And you know, the, the, the, everything about him is just so suspicious and weird. And now you have a guy who is an IG, whose job is to conduct oversight, and he's suing the other IGs for conducting oversight. I mean, it's just how is he still in his job?

I don't understand it. I'm the only thing I can guess is maybe Biden is just waiting, but you guys figure this out, have Siji investigate. I'm going to stay out of it. And also, if you still work for the department, it's easier to get your testimony if it comes down to that, or it's easier for the inspector's general to question you

because inspector's general generally can only question people who still work for the department, although Merrick Garland allowed for former Department of Justice employees to be questioned by the Inspector General at DOJ right after January 6th. So, I don't know, we'll see, but that investigation is now broadening. And then finally, some interesting insight into the Fannie Willis investigation, something I didn't know. I don't know if this has been previously reported, but AIDS to Fannie Willis filed what are known as Tui requests. That's named after a 1951 Supreme court case. And she filed those requests for Donna Hue and Clark to former

DOJ Trump people. And under that rule, local prosecutors are required. They're required to get authorization from the DOJ to question current or former employees. But the requests were ultimately rejected. And I'm wondering if DOJ was like, they didn't have any way to stop Fanny Willis from bringing in meadows and Rudy and Lindsey Graham, but they do have that ability to stop former DOJ employees. Departement employees.

So the basic policy at DOJ is an all quoted here. No present or former employee of the Department of Justice may testify or produce departmental records in response to subpoenas or demands of courts or other authorities issued in any state or federal proceeding without obtaining prior approval by an appropriate department official. So that's what opens the door for what you've referred to as the two-year request. And here, it's not crazy to think that Fannie Willis would love to get Donnie you and Clark in front of the grand jury, find out what they'd say and potentially use their testimony

in a possible indictment of Donald Trump or Rudy or anybody else that's involved in the Georgia investigation. So she files the request to get their testimony and DOJ says, no, thank you very much. You cannot have them as witnesses. Also not unreasonable under the circumstances, because DOJ, in the form of Jack Smith, he wants those witnesses first.

He doesn't want those guys testifying under oath anywhere, except for him. So he can control the questioning and make sure that that grand jury testimony in Georgia or anywhere else isn't creating problems that he would then have to deal with if if he uses them and as witnesses in his potential proceeding on the Trump investigations. Could the department of justice could Jack Smith special counsel office have called Fannie Willis and asked her to stand down

much like Berman at the Southern District of New York called the Manhattan District Attorney's Office and asked them to stand down. Is that a normal request? Is that why Fannie Willis's imminent indictments have not happened for now three months? You know, I doubt it. I don't think they would do that, especially with the way this issue of, and it's not

even really a real thing, but the question of prosecutorial coordination, you know, coordinating, seeking indictments and different jurisdictions has come up largely out of the the Trump New York indictment That's become such a controversial and disgusting. I would expect that Jack Smith doesn't want to get anywhere near that He just want to be involved in that at all. That could just make things look Suspicious later and he doesn't have to do it because by policy suspicious later and he doesn't have to do it because by policy, DOJ can stop Fannie Willis from reaching any of the witnesses that he really relies on any of these current or former employees and the way to block her officially without getting involved in anything that could be accused later of being suspicious is just a rely on the policy.

She makes the request. They turn it down. Thanks very much. See you next time. Yeah, but he can only do that for former DOJ employees, which he did, or which Garland did actually, because this was before Jack Smith came on board. Yeah, so he can't do anything about non-DOJ employees, but he'll shut her down as much as he can, I think, on those folks. I think that kind of shows that he's not doing any coordination with Fanny Willis. Otherwise, we wouldn't have seen, you know, her be able to, you know, question Mark Meadows and question Rudy Giuliani and other witnesses that the DOJ probably didn't want anybody else to go testify anywhere else with. And then he also has to worry about the January 6th testimony that a lot of these folks gave and whether that all that testimony matches up. So that's right.

All right, we got a couple minutes left. Do we have a listener question? We do. We have a question this week from Kim Z and Kim writes regarding Pence's testimony. Will the special counsel have to revisit the question of immunity when it comes to the fake electors? That was the plot that his role on the day is involved. How will the appellate division affect that? How will, I'm sorry, how will the appellate decision affect that case? So here's how I think about that, Kim, and AG tell me if you see it differently. I don't think that it will be much of an issue because the questions that Jack Smith wants to ask might pence

are really more generated or geared towards the things that happen in the lead up to January 6th. Like, ending probably on the morning of January 6th with that infamous, you know, kind of aggressive phone call between Trump and Pence. And I would expect that he'll probably stay away from, all the bad stuff, all the things that could possibly be evidence of criminal intent

and crimes, even regarding the fake electors, that stuff all happened in conversations leading up to Pence's arrival at the Senate and his role in certifying the election. So the actual mechanics of what was he thinking when he was certifying the votes and what kind of conversations was he having with people on the Senate floor that day, that stuff is probably going to fall within the specter of, you know, privilege that he's now created with this wacky thing. But it's not the meat really of what Jack

Smith is going to be looking for. No, and even if a court determines that the discussions Pence had with Trump about what he was going to do or what he wanted him to do as president of the Senate would not be protected by speech or debate clause privilege because Judge Boasberg determined that anything that was discussed, even if it has to do with him being a president of the Senate or his role that day, anything that was discussed that is a crime or that could be in the furtherance of a crime is not protected by this feature debate. Just like Judge Barrel howl decided in the Scott Perry case. Like sure at your stuff as a, as a member

of Congress, but any discussions you had with the executive branch about overthrowing the government aren't protected by speech or debate, you know, because it's supposed to protect Congress from the large hand of the executive branch, right? And you can't coordinate and, uh, and conspire with that if, uh, and expect to be covered by that privilege. So, Jack Smith's gonna get the answers to every question he wants answered. That's right, and if Pence tries to avoid answering a question by making a claim of fifth amendment privilege,

which is different from the speech and debate clause privilege, that's really the only circumstances where immunity comes in. And, you know, it would, it's likely, I can't imagine that happening because he doesn't really have any sort of a credible claim of, of criminal liability under the matters that he's being questioned about. But even if he did claim the fifth, as we discussed last week, the prosecutors would very quickly immunize him and then he'd be compelled to answer the question. So I don't know.

They're not after pens. They're not going after pens on any of this. All right. Cool. Thank you so much for that question. Very good question. If you have questions, you can send them to us a hello at mullersherote.com. Just put Jack in the subject line.

Wow. What a week of news. And I imagine it's only going to get busier as time goes on. So thank you so much everybody for listening to this episode of Jack. We look forward to talking to you next week. I've been Allison Gil. And I'm Andy McKay. We'll see you next time. Bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum