Jack - Episode 24 - The Silence is The Story

Episode Date: May 14, 2023

This week the investigation was pretty quiet; no new subpoenas or dramatic testimony. DoJ has cases winding their way through the courts that interpret the statute Eastman and Trump were found to have violated when a judge used the crime-fraud exception to pierce attorney-client privilege; the Proud Boys sentencing recommendations; Trump tanks his Mar-a-Lago defense at the CNN Town Hall  Rally; plus listener questions and more.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 written? The events leading up to and on January 6. Classified documents and other presidential records. You understand what prison is? Send me to jail.

Hello and welcome to episode 24 of Jack, the podcast about all things special council. It is Sunday, May 14, 2023. And happy Mother's Day, happy Mother's Day to all you moms out there. I'm your host, Andy McKay. Hey, Andy. I'm Allison Gill. And it was a relatively quiet week in the special counsel investigations. We had no big drama, no subpoenas that we heard about, no witness testimony we heard, about no rulings, about executive privilege or no piercing attorney client privilege

with the crime fraud exception this week. But like good television writing, a lot happened this week to move the narrative, right? And perhaps the lack of subpoenas and testimony this week is the story because I think it could be indicative of the special counsel finishing up the overt investigatory steps and maybe moving toward charging decisions, like internal deliberations. I was hoping you could shed a little light on if that's sort of how it worked inside the Crossfire Hurricane or what you like to call the Russia investigation. That's all I was allowed to call it in my book. Yeah, I think that that is, it's certainly a possibility, you know, at some point,

this bigot of subpoenas is going to turn off. Or at least it'll get turned back to an absolute trickle. You could always see a stray subpoena going out here or there, you know, on the verge of an indictment, or even on the verge of trial for that matter, if there's just a record that's out there that you need to pick up or something like that. But the major subpoena work pretty much is done before you finish putting the case in front of the grand jury and you send them out to take a vote. So that could be what we're looking at here. And it would make sense that they're kind of drifting into that period of actually making

some hard decisions about who or when or what to indict. Or, of course, it could mean that Jack Smith is gearing up for a new round of subpoenas. There's still a couple of really juicy potential subpoena targets out there. We still have not heard anything about the elusive Mark Meadows. The Mark Meadows is a rare bird, one that you rarely see. You know, he isn't his natural habitat. That's right. He's facing his palm. The unnatural habitat of the grand juries where we'd prefer to see him, but in any case, we haven't heard a peep about any testimony or cooperation from team Meadows.

But again, you know, I'm giving you a classic kind of attorney spiel here, taking both sides of every issue. But here, unfortunately, it's true. A lot of times you don't hear about things and they're actually going on kind of behind the scenes. George Santos indictment, great example of that. We didn't know really that that was coming until I kind of got dropped on her heads this week. So another sign, I think, that the public corruption unit, the section we refer to as pin, is pretty leak proof. But like you said, Alison, there are things that went on behind the scenes and out in the open on a CNN town hall

this week that really did move the investigative narrative forward. in town hall this week that really did move the investigative narrative forward. Right. Like those developmental episodes, right? Yeah. Exactly. And today, today we're going to talk about cases making their way through the courts that interpret a statute that judge Carter in California found Trump and John Eastman violated, you know, more likely than not.

The notorious title 18 US code section 15 12 C2. Your favorite your phase statute. I've been on this for a while. Proud to report, I recognize the language of that statute during the very first January 6th hearing back in late 2021. As well before the summer blockbuster hearings, right? Of 2022. I tweeted, I'm sure you've noticed by now, the deliberate legalese used by Liz Cheney repeatedly during recent hearings, quote, whether Trump by action or inaction corruptly sought to obstruct or impede Congress's official proceeding. And this is no accident, I said, Liz Cheney's refrain is nearly word for word 18 US code section 1512 C2, whoever

corruptly obstructs influences or impedes any official proceeding or attempts to do so. That's a very important thing there. I find it interesting, I continue, that a member of Congress who can't bring criminal charges is using prosecutorial language. Now at the time, Rachel Maddo erroneously said, Cheney was citing 18 US code 1505, which is obstructing Congress, which is close, but not quite. That only carries a five year Mac sentence where 1512C2 carries a 20 year Mac sentence.

So it's a different statute and it's got much broader consequences. Yes, and I mean props to you. Not often people can fact check Matt out and come out on the right side of that. So well done. And we know that since that time, since the initiation of those hearings, over 300 January 6 rioters have been charged with 15, 12, C2, including now, of course, Oath Keepers and the Proud Boys. 15, 12, C2 is included in the Januaryth committee's criminal referral to DOJ for Trump. So my guess is that's why she quoted the language that you picked up on very early on. She is with that trying to get the attention of prosecutors and people at DOJ who might be watching that early hearing and

think, whoa, they've got something, you know, right in our wheelhouse here. That's probably the reaction she was hoping for. Yeah, and the timeline too is she cited that statute. And then we got the judge Carter, Eastman emails, crime fraud exception case with the January 6th committee the following year, where the judge determined that, you know, in order to pierce attorney client privilege with the crime fraud exception to hand over these Eastman emails to the 16 committee that beyond what's more likely than not, right? A preponderance of the evidence of, you know, 50.1%. That's right. That that Trump and Eastman conspired to obstruct, well, to defraud the United States, but also obstruct an official proceeding, not just Congress, but an official proceeding, which makes this a very damning statute to run a foul of.

That's absolutely right. And that's why that, you know, that, uh, particular ruling really grabbed, uh, everyone's attention. Obviously remarkable to pierce the attorney client privilege, although seems pretty routine in this investigations because I have a couple times now. But yeah, to say that there's in the early investigative phase to have a judge weigh in on a preponderance of evidence indicating that a crime took place,

that's a good day for a prosecution team because you're basically halfway there. You're on your way to an indictment and you're out. So she brings up that language in late 2021 and then 2022, we get that ruling from Judge Carter on crime fraud exception for 1512C2. And then January 6th committee, which Liz Cheney must have just been like dancing and doing a little jig in her hotel room wherever she was watching watching that ruling come out because then

they made that criminal referral. It's been quite a straight line on this particular statute. It's been challenged now several times on various grounds by rioters who've been charged. They've either filed motions to dismiss the charges against them or say that the statute doesn't apply or it's constitutionally ambiguous. I mean, there's all sorts of different grounds that they've been trying to dismiss these 1512C2 charges. And last month, Andy, the appeals court in DC addressed part of the issue by overturning

one judge, Judge Nichols, because Judge Nichols ruled that the statute wasn't applicable because of the word otherwise, connecting C1 and C2 in section 1512. And he was the only one, like 16 or 17 other federal judges saw it differently. He was the only one. And you and I talked about the importance of DOJ wrapping up that little one decision. Because as we talked about Jack Smith previously going after McDonald, was that his name? The governor, Bob McDonald, yep. Governor Bob McDonald, his conviction was overturned because the Supreme Court decided that the statute was applied. Ambiguous or the wording of the statute was too ambiguous to apply to that specific crime. And therefore, you know, the conviction was overturned. And so we now have DOJ wanting to go in and button up this nickels ruling to ensure that everybody up and down the courts, from, you know, from the district court to the SCOTUS, if it goes that far, understands that this is not an ambiguous

statute. And we've got a couple of outstanding cases out there right now, working their way through the courts to determine the definitions within 1512, C2. Yeah, that's right. So if Nichols ruling had been able to stand, you would literally have put the convictions of hundreds of January six defendants in jeopardy. Even people who had pled guilty to the statute would likely have come in and filed appeals after the fact.

And that just comes from that legal kind of Nichols interpretation that the entire statute basically applied only to things like records, you know, people who destroyed records in the course of an investigation and things like that. And it's pretty clear from just a basic reading the statute that that's not what they intended for part C2. So fortunately we got a good ruling on that out of the DC circuit. Now we're still kind of left.

The one dangling issue here is the proper definition or the interpretation of what corruptly means in the statute. And so where are we with that one, Alice? And I guess we're hoping for the court in Robertson to give us some guidance on that one. Yeah. So the one that, oh, you know, overruled the nickels opinion and, you know, throwing out some charges was a case called Fisher. And as you said, the DC Circuit Court of Appeals ruled in favor of the Department of Justice there. They had one dissenting opinion. And then a lot of other January 6th rioters filed motions

for dismissal based on that dissenting opinion, which makes no sense. But those were also thrown out. And now this one about the definition of correctly, because the nickels one was the word otherwise. Now this is the word correctly. And this week the appeals court heard arguments in that Robertson case. That's the one that is talking about the definition of corruptly that you mentioned. And Kyle Cheney at Politico has written that two members of that three judge panel on the DC Circuit Court of Appeals hinted strongly Thursday. This is just last

Thursday that they largely agree with the Department of Justice and the prosecutors' interpretation of the Enron era obstruction law referring to Title 18, US Code 1512, C2. And Randall Eliasin has written now that the bottom line from Fisher, that's the otherwise case, is that a DC circuit panel has definitively rejected the argument that 1512C is limited

to acts that impair the integrity or availability of particular items of evidence, which is what you were talking about. Now, the proper definition of corruptly, according to Eliasin, remains an open issue and hopefully will be resolved in this Robertson case, the one that had the hearing on Thursday, the one that sounds like the appeals court is going to come down on the side of the Department of Justice. Correct. He goes on to say, even if the court were to adopt the narrower, obtain a benefit definition of correctly proposed by Robertson, that won't have much of an impact on future prosecutions.

He says, as both judges Walker and Pan, those are two of the three judges in the Fisher case noted, this standard likely could be satisfied by evidence that the rioters sought to obtain an improper benefit for Trump. So even the narrower view of the definition of corruptly would still include these January 6th riotersers because it would benefit them or someone else. That's someone else being Donald Trump because overturn the election keeps him in power and the presidency is obviously

something of value. Just a bit, just a little bit of value. Just just enough value. He's out of jail. Sorry, enough value that he's still lying about it two years later. So okay. Yeah. So it's interesting, I think also to note that the standard also would not prevent special counsel Jack Smith from charging Trump and others who did not directly participate in

the riot. That's kind of an interesting aspect of what we saw in the conviction of the proud boys this week, which I know we're going to talk about later in the show. But essentially, you don't have to be a participant in that corrupt activity, that illegal activity to actually be a found guilty as a co-conspirator. Right. Yeah. And that's really big. be a found guilty as a co-conspirator. Right. Yeah. And that's really big.

And we will talk about that a little bit later in the show when we hit the Proud Boys. And to talk about the Proud Boys story, but Randall Eliasen goes on to say, the charge would be that through various corrupt means, meaning like fake electors, pressuring state officials like Pence, corrupting the Department of Justice, inciting the riot. Through those, you know, the corrupt, that all is corrupt. Trump and others knowingly used unlawful methods to obstruct the vote certification and obtain an improper benefit for Trump.

So I know there's a lot of sort of swirling opinions out there about how the review of this statute, 1512 C2, could upend hundreds of, you know, convictions and make it impossible to go after Trump for 1512 C2 or, you know, anybody in that conspiracy, Eastman Clark, you know, meadows, anybody who was part of the Rudy Giuliani, Sidney Pat. I mean, there's, there's a numbing, you know, a large number of people who could be considered co-conspirators, incorrectly trying to block the certification of the 2020 election. But as Randall Lies and points out, as I think we're going to find out from the DC circuit court of appeals in both Robertson and points out, as I think we're going to find out from the DC circuit

court of appeals in both Robertson and Robertson, as we found out in Fisher, the statute will remain as it is. I don't think the Supreme Court is going to make a decision. I don't think they're going to want to hear this one because I don't think they want to put parameters on what corruptly means because that will have major, a major ripple effect going through. I think they'll just leave it the way that it is and the way that scotus leaves things the way that it is is they just don't make it, you know, they don't hear the case. And so I think that'll leave us where we are.

And because, you know, like you and I said last week, Jack Smith would have had to prove corrupt intent regardless of any of these decisions. Correct. Correct. Correct. And, you know, your point is well taken, and particularly in light of the reference to the Macdonald case, the Supreme Court ruling that basically eviscerated and reversed Donald's conviction completely cut the legs out from under the public corruption program in DOJ and the FBI. It made the investigation and the proof of corrupt deals among public officials infinitely harder because it essentially

created this hard line of having to prove an explicit quid pro quo you had to have instead of the way these deals are normally done with suggestions and favors and the conveying of gifts that might not have been explicitly requested, but we're ultimately accepted in the post-McDonald era, you really have to have explicit proof of, hey, you give me this and I'll do that for you, which we all know is a very tough thing to include in your investigation. So I agree with you.

I think unless it's absolutely kind of a screaming hair on fire issue, it would be greatly disinventages for the Supreme Court to walk in, to kind of wait into this corruptly interpreting the corrupt intent element of this statute. Yeah, they tend to like to leave it to the courts, the lower courts. And you know, hey, bring the charts. See what happens. It's kind of the way that they tend to view that. But I think buttoning up the Nichols thing, and it would button up.

If Scotus refused to hear it and not make a ruling on it, that would button up. The Nichol, it would button up. Fisher, it would button up. Robertson, it would button up. Everything that you would need to be able to bring this unambiguously bring this charge against the former president provided the evidence is there. You know, we're, we're, we're kind of working from the baseline idea that the evidence is there. And I do think that it is because I don't believe judge Carter. And I understand that the standard is more likely than not,

but to pierce the crime fraud exception for an attorney working with a former president, I think you might go a little bit further in your head than proponderance of the evidence. Do you know what I mean? That's the basement of that standard. And I don't think that Judge Carter would have made that ruling without being a little closer to beyond a reasonable doubt, even though it's not required. Yeah, I mean, like, I was gonna say in a normal situation,

though there's no normal situations where an attorney client privileges pierced. So, in the rare occasions that it comes up, it's always treated very seriously. Like, on a close call, the judge is going to err on the side of caution and say, and leave the privilege in place. So you can only imagine the heightened scrutiny that these fact patterns are received, knowing that the attorney client privilege that we're talking about here is between a former president and his criminal defense attorney. So yeah, I agree with you. There had to be some pretty convincing evidence for both

for all these judges to come out. So consistently on those motions. Yeah, and it reminds me of something else you and I've talked about before, which is the you only need probable cause to issue an indictment, but a prosecutor isn't going to bring charges per the federal criminal rules of procedure unless they can obtain a conviction which has to be done beyond a reasonable doubt and then maintain it on appeal, which is even a little bit beyond that. So I understand that there are the standards and that it's 50.1% for a card to make that assertion, but that's the basement is what I'm saying. That's the basic part.

No, I agree. There's the prosecutors need a confidence level, a margin of confidence before they're going to go forward on any of these things, even in a normal case, and this is pretty far from a normal case. Yeah, I keep saying, oh, well, how long did the last coup investigation take? I think it's a sad. Oh, there wasn't one? Okay, then maybe we should start talking about how long this one should take.

Exactly. All right, very, very interesting stuff. We're going to keep an eye on these 15, 12, C, 2 proceedings. I think everything is going to be fine. But like I said, in the beginning, they're Andy, the silence this week is the news to me. I think he's done with most of his subpoenaing and most of his testimony. We didn't see the other four of the Ochanastra, which includes meadows, but that doesn't

mean they didn't sneak in, it sneak out, and we didn't see him, or that they aren't meeting with the Department of Justice at a different location, instead of in front of the grand jury. I don't know. But, or, you know, meadows could be a target. They might not be trying to bring him in at all, but that seems odd. We don't know. It's just, we don't know what we don't know. There you go. There you go.

Part of it's a mystery. That's what makes it so fascinating. And you know, even even the reporters literally holding a vigil daily out in front of that courthouse get surprised by people who come in and out or they get surprised they find out somebody was in there and they didn't see him. So I walked by the other day. I was like, anybody interesting going in out?

He's like, no, not today. We're watching. You know, I should put on a suit and just go walk in there. It was set off firestorm of people talking about, oh my God, what's he doing here? Would you? No, wait, definitely. Come on, yeah, man.

Why do you give me the... Why do you spit these awesome ideas and then just rip them right out from under us? Because the speculation would probably start with, oh my God, it has something to do with the special council investigation. They don't quickly drift to, all right, they finally got this guy. Right. That's awesome.

Just go in and do you have any friends that work there? Just go say hi to a friend. No, no, I'm not doing it. I'm staying out staying out of the out of the firing zone over there. Man, this is when I wish I had some sort of clout like that. Where I could just do that because that would be fun. That's my idea of fun. All right.

Well, everybody, I will keep trying to persuade Andy to do this, but I don't think we're going to get very far. We do have a lot more news to get to, though, especially on some convictions of seditious conspiracy and some stuff that happened in a town hall, but we have to take a quick break. Stick around, we'll be right back. Hey, everybody, welcome back. So we had an historic conviction last week as the proud boys were found guilty of seditious

conspiracy. There were five proud boys on trial. Four of them were found guilty. One of them was found not guilty. That's Dominic Pizzolo. We'll get to him in a minute. Put a pin in that because it's important that there's some important things to consider when you're found not guilty of conspiracies. And we found that out from the oath keepers sentencing

recommendations for seditious conspiracy that came out that and I'm assuming all of the same principles will be applied to the proud boys and anybody else in the future that goes down for seditious conspiracy. And one of the more interesting things here, like I said, we'll get to Pazolan a second, but is the Enrique Tario conviction. He was found guilty of seditious conspiracy. And before Enrique Tario, the person furthest away from the riot that was found guilty of seditious conspiracy was Stuart Rhodes.

And he was at the Capitol that day, but he did not go inside. And there was a lot of stories about, wow, you can be that you didn't even have to go inside the Capitol that day to be convicted of seditious conspiracy. Well, now we have Enrique Tario, who not only was not at the Capitol, not only did not go inside the Capitol, he wasn't even in DC that day.

That's right. He was in Baltimore in a hotel and he was found guilty of seditious conspiracy. So let's talk a little bit about how he could be guilty of seditious conspiracy, but somebody like Dominic Pizzola, who was there at the front with a stolen riot shield breaking the window, could be found not guilty of seditious conspiracy. Yeah, so there's a couple of things to think about here. I think it's always good to go back and remind ourselves, like, what is a conspiracy? What puts you in the middle of a conspiracy?

And a conspiracy is essentially two elements. It's an agreement and an act in furtherance. So you have to have some sort of agreement between two or more people to commit a particular crime, in this case, sedition. And then you have to take some of the members of that conspiracy, have to take at least one act in furtherance of the conspiracy. So you don't have to participate in every act that takes place in the execution of that conspiracy.

You just have to have participated in the agreement and then committed one act yourself. And I think that's what you're seeing here in the form of Enrique Tario. Another message that I think we all got from the conviction in the oath keepers trial is that the DOJ focused on, and it seems like the jury's really keyed into this idea that seditious conspiracy is really for the organizers, right? It's not, you know, we have a tendency, we look at those videos, we see all the horrible things that these rioters did in their assault on the Capitol, and assaulting police officers, and breaking through barricades and things like that.

And that's all serious, um, felonious conduct. But what's the Dishous Conspiracy's design for is to go after the people who really had the plan and communicated the plan and executed the plan to essentially destroy, to as the statute itself says, to conspire to overthrow, put down or destroy by force the government of the United States or to levy war against them or to oppose by force the authority there of or to prevent by force, prevent hinder or delay the execution of any law. So this is, that's, you're going after the Enrique Tariots of the group when you put that charge on the table. Yeah, and from what I understand,

the jury felt that Dominic Pizzola didn't participate as earnestly in the planning and the preparation and the quick reaction for us and the weapon stash across the Potomac, and therefore he was found not guilty of the seditious conspiracy. He was found guilty of of the seditious conspiracy. He was found guilty of conspiracy to obstruct an official proceeding and obstructing an official proceeding.

That's right. Serious charges that vary will likely bring him an extended sentence. But the, you know, I think your interpretation of that is right. I think what the jury saw was that Pazola wasn't really involved in the planning and execution of the overall effort to essentially overthrow the government. What's that last element of seditious conspiracy? It was put down by force, the government, by levy and war. What was the final thing?

Because I think it's the final thing that is most applicable. Yeah. So it says about halfway through the statute, it is, or by force to prevent, hinder or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States, contrary to the authority thereof. So those two, you know, kind of narrows the scope a little bit. You don't have to actually have planned and tried to completely overthrow the government. You could have simply conspired to

hinder or delay the execution of any law. You can certainly see that applying here in the effort to hinder or delay the certification of the election. And then the second part of that, or by force to seize or take or possess any property of the United States, contrary to the authority thereof, that could be interpreted in essentially the taking over of the capital and the capital building. Yeah, so here's my take, because I think the big question on everybody's minds is,

if Dominic Pazola was found not guilty of seditious conspiracy because he didn't participate as heavily in the planning and preparation for the attack on the Capitol, could Donald Trump be found not guilty if charged with seditious conspiracy? Because while Pizzola didn't participate as earnestly in the violent attack on the Capitol, he certainly had nothing to do with the pressure campaign on Pence, with the fraudulent electors scheme, with anything else, with any other behavior that was intended to impede or delay the execution of any law of the United States. For example, the 12th Amendment or the Electoral Account Act, the counting of the certification of the election.

However, comma, Donald Trump, while he may, they're probably not, but they're, let's say there's not proof that he participated in the planning and the execution of the violent attack on the Capitol. Everybody's sort of waiting for that connection. While he may not have done that, and he might not be found guilty on seditious conspiracy for participating earnestly in the violent attack on the capital, he most certainly spent a lot of time planning, preparing, and scheming to block the certification of electors, to pressure pens to throw out electors,

to organize fraudulent electors and have those false certificates sent to the National Archives and Congress to potentially oust the attorney general and put in his own attorney general who would announce investigations into potential or election fraud that didn't exist in order to delay the Electoral Count Act. So while he might not be guilty of seditious conspiracy with the violent attack on the Capitol, I could see him being charged with seditious conspiracy with regard to preventing or impeding the execution of the law of the United States because he was very involved in those kinds of things.

Does that make sense? So, I mean, yeah, it makes sense. However, you have the problem with that theory. And I think you're right in terms of focusing on the second half of the statute. Clearly, he wanted to hinder or delay the execution of the law, the certification of the elections. No doubt about that. The problem for charging under seditious conspiracy is the force element. Every clause in this statute requires force by force. So you had to, and so for this piece, you have to conspire to buy force, prevent or hinder or delay the execution.

Now, in the Trump situation, if you could make the magical connection between the proud boys or the oath keepers. And Donald Trump, people have theorized that that was through Roger Stone or Mike Flynn or any of these other people. Then that would get you closer to that. But that connection to my understanding is not been made yet. It certainly hasn't been made publicly. Could you make the argument that Trump conspired by force to hinder our delay by summoning the mob, knowing they

were, uh, and then on the morning of knowing they were armed, which we learned from the January 6th, uh, committee hearings, he knew that they were armed before he got up on the stage. He then gets up on the stage and tells them all to go to the Capitol. Could you make that argument? You could, but you're really opening yourself up to a lot of potentially effective defenses on his part. So could you go under that theory, yes, but with the evidence that we're aware of right now, you'd have some pretty high hurdles to get over in terms of proving the force element. In the oath-kebras case, it was easy because everything the oath-kebras did also included staging all these weapons in Virginia

that they were going to rush to their side when the shooting broke out. So you had that, you had really great evidence of that. In the Proud Boys trial, you know, it's really in the text messages and the communications, which I heard some ridiculous number that they had something like 50,000 messages in evidence between all the guys, all the proud boys that were involved in a trial. And then, of course, one of those messages is Enrique Tario at the end of the day saying we did this literally taking responsibility for the sacking of the Capitol. So, you know, I don't know that there is really clear evidence of Trump's conspiracy to prevent a hinder by force, but we'll have to see.

Yeah. And here's something else to consider too, because when we got the sentencing recommendations for the oath keepers, for seditious conspiracy, one of the things they said is there's a few guys here in the oath keepers who were not guilty of any of the conspiracies, however, the DOJ puts this in writing in their sentencing recommendations that you, even if you're found not guilty of the conspiracy, you are, you can still be a member of the conspiracy and are therefore liable for the actions of your co-conspirators. That's how conspiracy works.

So he might not be a member. So like, let's say Rudy and Sidney Powell and Roger Stone and Mike Flynn were all very into helping plan the physical attack on the Capitol. And Donald Trump is somehow part of that conspiracy. He doesn't have to be found guilty of seditious conspiracy to be liable for the actions of his co-conspirators. So there's also that to keep in mind. That's also true for conspiring to obstruct an official proceeding. And I think that that's important to note if, personal proceeding. And I think that that's important to note if, you know, if, let's say, Eastman is found guilty of the conspiracy, but Donald Trump is not. He would still be liable for Eastman's actions as part of as a member of the conspiracy. So I think it's

a very important point that you don't have to be guilty of conspiracy to be considered a member of the conspiracy and liable for the co-conspirators actions. Yeah. And I think that goes to a piece that's a little bit confusing for people who haven't worked inside the criminal justice system. And that is the sentencing process. It's not just a math formula of you got convicted of this crime and therefore you do this amount of time. Once the court knows what you've been convicted of, you then have the probation department as a

pre-sentencing report, which goes to like your, all the aggravating and mitigating circumstances of you in your life and what you did relative to the crime. And all of that information comes before the court. And so somehow they have to come up with, they have the sentencing guidelines, which based on what you did. There's a guideline score, and that's a suggestion of what your sentence should be. But all that is basically converting, you go from the conviction, and then you look at what the person actually, and what did they do? What conducted they involved themselves, and how were they acting, maybe, in concert with their co-defendants now co-convicts, I guess.

And what was the scope of the conspiracy? That has, and then also whether you were a supervisor or a leader or a manager of the conspiracy or there's levels up for that. And then something I was looking for in the Oathkeeper's sentencing recommendations, is there a note for terror enhancement? And there was in this case, which adds six levels to the sentencing level, which is, you know, just a way to find a number and then look on a chart to see the range of the years that you would serve. And that was in there. Right. All those factors go into the alchemy that is the math of the sentencing guidelines score essentially. And it's no longer even binding on the judge.

It's just a suggestion as to what the appropriate sentence might be. So yes, even though you're only being sentenced for the crimes that you were convicted of, the court gets to look at all of your conduct, all of the conduct that you engaged in that's relevant to the crimes you were convicted of, and sometimes that may be, you know, that's taking into consideration things that you do that you did not get convicted of. I know that seems... Yeah, and there's good stuff, too, like if you took responsibility and you felt remorse and you helped maybe the government or, you know, there's things that can lower that level to the guide, the lower the range

for the sentencing guidelines. Something else really interesting in that, both keepers, two things, two other things I was looking for is whether they would have to take a path through treason because there are no sentencing guidelines for seditious conspiracy, which they did. And when you read those elements of seditious conspiracy, one was to levy war against the United States. That's right. So if you commit seditious conspiracy and it says, see treason, and then you go to treason and it says, did they levy war against the United States? If yes, stay here on treason. If no, go to obstruction of justice.

And everything got funneled. All of these conspiracy to obstruct an official proceeding, obstructing an official proceeding. All of these 20-year Mac sentences, the dishes conspiracy all got funneled to the obstruction of justice table. And that's where you start. And I thought that was fascinating. And then finally, the other thing I wanted to know, which actually surprised me, was whether, you know, if you committed seditious conspiracy and obstructing an official proceeding

and conspiracy to obstruct an official proceeding or some other felony, both 20-year max sentences, would the DOJ recommend that those sentences be served concurrently or consecutively? And the DOJ in the sentencing recommendation said consecutively up to a certain point, right, up to the max of the biggest crime that you committed. And then you can add the levels. And that's how they came up with 25 years for Stuart Rhodes, because all of those are 20-year sentences. And so how did it get to 25? Well, because they wanted to serve these multiple felonies

consecutively, and then you add the elements of terror and scope and managerial stuff. And that's how you ended up with a 39-level leadership role. And that's what gives you the sentencing range. I believe it was 22 to 28 years, and they said 25. Yeah. It's confusing as hell. And it's a very complicated process that most people kind of don't look behind the curtain on, even just that decision to pursue consecutive sentences,

you know, to some degree is pretty rare. I can tell you in most cases, DOJ either doesn't recommend that or doesn't take a position on that at all, they just completely leave it up to the court. There are some cases like nine or some charges like 924C, which is like use of a firearm during the commission of a federal felony. There are different levels of 924C that actually mandate consecutive sentences versus concurrent sentences. But those special statutes aside, typically DOJ doesn't even take a position.

So it's interesting to be there. Yeah, and this isn't one that requires a consecutive sentence, none of these things. Nor does adding a terror enhancement make it require consecutive. They said, look, basically there's something you have to take into account, which is being sentenced

to like your peers who have been convicted of this. And they're saying, you know, we tend to not go for the obstructing and official proceeding level because we have 300 people who did that. These guys are special. These guys should be convicted the way other people convicted of seditious conspiracy have been convicted. Because that's an element of fairness that they bring to the sentencing guidelines. So that's where it stands. We'll see

what judge Amit Mehta does with the oath keepers sentencing recommendations. Of course, the oath keepers came back to it roads and said, I want to do time served. Which is a dozen. Doesn't everyone. I mean, Which is a doesn't everyone I mean I'm good try. I'm gonna happen. I'm gonna happen here So we'll see and then I think we'll see very similar if not identical sensing recommendations for the proud boys So dishes can see I think there will be a lot of pressure on DOJ to approach that every consistent matter Which I'm sure they will yeah, I think so too But this is the equivalent of throwing the book at them, honestly, the way that this is written.

Everything was up and high and consecutive and scope and adding the terror enhancement. So we'll see how that goes. But all right, I expect that that will probably take a month or two at least for the proud boys. And we'll see where we stand. We don't have a sensing date yet for all the Othkeepers, but we'll keep you posted. All right, we have one little segment left here.

We're gonna take a quick break and then we're also gonna take some listener questions. If you have any questions for us by the way, you can send them to us at helloatmullershirote.com. Just put Jack in the subject title and we will answer your questions. Everybody stick around, we'll be right back. ["Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum Bum this week. And it seems to have been the car crash that was the CNN town hall with Donald Trump. So we have a couple of quotes that I wanted just to kind of throw out there for people's

consideration about things that Trump said that I think actually could have an impact on his how some of these investigations on the documents case and the January 6 case playout, but before we get to that, there's been so much of a kind of a tempest and a teapot over whether or not CNN should have even put Trump on TV in this sort of setting. So I'm curious to hear what your thoughts were on how it went. Well, my thoughts are all over Twitter. Okay. Which for the non Twitter people like me, we miss those things or is it just me?

Maybe it's just me. It's just you. It's just you. Everybody I've been trying to get Andy to sign up, but I mean, I wouldn't do that to my worst enemy. So I won't do it to my friend. Well, first of all, the event had 3 million viewers. And of course, a lot of the media is positioning that as, whoa, they usually only have like 500,000 in that time slot. But they got 3 million, but I would like to position it a little bit differently because that shouldn't be compared to the normal time slot on CNN.

It should be compared to other major political events. And so I went back to remind myself how many people watched the January 6th Cassidy Hutchinson testimony. Okay. And that was 13 million. So 3 million, wow, I don't consider that a win. I think it's Cassidy Hutchinson for president then. Maybe she's better chance. Maybe she's got to run at the Republican nomination anyway. Sorry. Yeah. Hey, hey, you know, don't make it harder for Democrats. But anyhow, I think that it was not worth the backlash that they got for forgiving not worth the backlash that they got for forgiving a platform to Donald Trump. Of course, our argument is he's the leading candidate in all the polling for the Republican. And it's like, because you're making him that, I know Anderson Cooper came out and said,

look, half of the country is behind him. That is also incorrect. Jim Jordan tries to pull that number out of his butt too. And that is not true. It's like more like 19, 17%, 19%. So I feel like it's, you know, hey, Trump is a cash cow. I get it. But trying to promote him to make him the candidate isn't the job of a news organization. But that, you know, just my two cents. And regardless, there was a lot said on that stage that is probably making Trump's attorneys. The smart ones very sad today.

Yeah, I think so. I tend to agree with their decision that it was a newsworthy thing to do. However, you have to acknowledge that it's also impossible to do without giving him the opportunity to lie pretty much constantly for an hour. And so I think Caitlin Collins did, as good a job as anyone could do,

I think it's essentially, if you're going to give him a platform, you need to try to fact check him in any way that you can. And it's essentially impossible for any host who's in the middle of asking questions and navigating the event and trying to listen to what he says, that also have the responsibility to fact check the guy as he literally goes from lie to lie to lie. So it's, I don't, I don't, I don't disagree with their decision to do it. But I think I also think the way they sculpted or I think they said curated the audience to be exclusively essentially Trump supporters was a, was a huge mistake.

But anyway, that's my, that's my media analysis of the week. Well, apparently, Chris Lick told him to have fun out there. And I think that they were saying that the Trump campaign wanted Caitlin Collins. I think it was important for him to steamroll a woman in front of his base. And they didn't want Jake Tapper to do it because he doesn't platform election deniers. So there was, you know, and there's probably so much, so many decisions that went on behind the scenes. I just don't think it should have. I don't, you know, and there's probably so much, so many decisions went on behind the scenes. I just don't think it should have.

I don't, you don't make the news you report it is kind of where I'm, where I'm at. But let's talk a little bit about how some of the things that he said could impact the Jack Smith investigation. Yeah, sure. So as you would expect, given a platform, it's really more likely than not that he's going to ultimately say things that are self-destructive. And, and. And this episode did not disappoint. So just a couple of these. I think early on, Caitlin started to talk to him about, you know, try to get him to admit that the election was not over, you know, it wasn't fraudulent that he lost. And of course, he wouldn't do any of that. And eventually they get into discussing Mike Pence. Caitlin Collins points out that Pence has now blamed Trump

for endangering his life, which I think is a pretty clear and easy to prove assertion. Trump of course interjected with a lie saying, I don't think he was in any danger. Trump then stated, I mean, I don't know what he was watching on January 6th, but he was watching it. We know he was watching it in that dining room for 187 minutes or whatever.

Yeah, so then Trump goes on to say, Pence quote, did something wrong. He should have put the votes back to the state legislatures. I think we would have had a different outcome. I really do. So that one's really fascinating to me because he's basically admitting the purpose of obstructing the official proceeding. Right? We know that the strategies were down to let's see if we can get pens to reject the electors outright or in the alternative, let's see if we can get Pence to delay this certification.

Give us another week or two to try to figure out how we could overturn this election. We know that because we know there was a meeting on January 4 in the Oval Office between Trump, Pence, John Eastman, probably others, which, well, Eastman basically says that Pence does not, you know, he pitches Pence on either delaying or rejecting the certification of the electors. And then it admits that both would likely be illegal, right? So from Pence's book, now we have, this is Pence, quote, from Pence from his book. At that, I turned to the president who was distracted at the time, big surprise. Okay, that was me. I added that part and said, Mr. President, did you hear that? He turned his attention to me and I said,

even your lawyer doesn't think I have the authority to return the electoral votes. The president nodded. As Eastman tried to get out some explanation, the president replied, quote, I like the other things better, presumably referring to his previous opinion that I could simply choose to reject the electoral votes altogether. So this is really interesting because with Trump's statement in the town hall that Pence did something wrong, he should have sent the votes back to the state legislatures. He's acknowledging that, yeah, this was the plan he was behind. We also know from other evidence that he knew that the plan was illegal from what Pence said, probably consistent with what Pence testified to

in front of the grand jury. So it really, it kind of erases any doubt as to what Trump wanted from Pence on January 6th because apparently he still wants the thing, the same wanted from Pence on January 6th, because apparently he still wants the thing, the same thing from Pence today. Yeah. Yeah. And then when Collins asked, why did you wait three hours to tell them to leave, to leave the Capitol?

They listened to you like no one else, you know that. He said, they do, I agree with that. And then he tried to shift the blame to Nancy Pelosi and Mayor Bowser, which has been debunked as a billion times. Under oath, we know, Kosh Patel and Chris Miller were saying that, you know, no, he never once tried to get the national guard out. And then he, Collins asked about the perfect call to Brad Raffinsperker. And Trump said it was a perfect call. He would make it all over again.

And that could be problematic for a few reasons, because it could show that he's unrepentant and that it was intentional. And he also said, he owes me the votes. He owed me 11,780 votes. Wow. That also goes right to intent. And to be saying these things, when we know that Fannie Willis is right now

considering whether or not to indict him. So I don't know making a completely unrepentant statement about the phone call. This is probably a bad time to do that right now. Also kind of projects that it's intentional. Like what you were saying on that phone call was you absolutely intended to essentially extort additional votes, pressure additional votes out of these state officials. Really bad timing to be making that point explicitly clear. But my favorite I think was the document case, right? The stuff that he says about Mar-a-Lago. So it's just gonna say that that document stuff was

wow. Because Collins says they were found at Mar-a-Lago, why did you take those documents with you when you left the White House? And Trump said, I had every right under the Presidential Records Act. You have the Presidential Records Act. I was there and I took what I took and it gets declassified. Biden on the other hand has 1,850 boxes in Chinatown, etc. where they don't even speak English. In that Chinatown, we're talking about all that conspiracy nonsense. But tell me when he says I was there and I took what I took. Again, I mean, this is unbelievable because he is painting himself into a corner where he can't say, oh my gosh, you know what, it was an administrative error.

My staff took that stuff. I didn't know what was there. Like, that would be the smart thing to do if you're ultimately indicted for unlawfully taking national defense information or classified information from the White House, which of course he had no right to do under the presidential records act, despite the way he refers to the presidential records act. And none of that stuff had been declassified.

He's eliminating possible defenses for himself by saying, hey, it was an intentional act. I took what I took and I had every right to it. And I still have every right to it. It's my stuff. So he may really end up riding that assertion right into a conviction. Yeah. And in that letter to Congress written by Trump lawyers asking the Congress to tell the DOJ to stand down, the whole defense was that they got swept up, they got put into boxes.

We didn't know they were there, kind of like what happened with finding classified documents at Biden's house or at Depences House, right? They were actually swept up and put into boxes and nobody knew they were there. Now he's saying he took them and he completely, he's lawyers who wrote that letter to Congress to try to get DOJ to stand down because it was all an accident. And he was doing his best to give everything back. And it was just the aides who packed up all the boxes and, you know, and DOJ has unfairly

and politically criminalized some conduct that wasn't criminal at all. Well, I mean, that's their defense. That's their only defense. And he just blew it again. They're going to just shove this right, you know, back in his face. So finally wrapping this thing up, Collins says to him, when it comes to your documents, funny that you refers to them as his documents, did you ever show those classified documents to anyone? And Trump says not really, to anyone. And Trump says, not really, I would not really, I would have the right to, by the way, they were declassified after and Collins interrupts him and says, what do you mean

not really? And he says, not, not that I can think of. Let me just tell you, I have the absolute right to do whatever I want with them. I have the right. And then he just blathers on about Nara. I mean, again, he just paints himself into this corner where he's making everything that happened seem like the result of his intentional decision making that he knew what the stuff was, that he wanted to keep it, and he intentionally made the decision to keep it. He's boxing himself out of some of what would have been his most effective defenses. Yeah. And not really, I would have the right to, by the way, means he definitely did. That's just be clear.

Yeah. There are some rules of Trump speak that are always maintained. Like, anytime he says, you know, and they said to me, yes, sir, you can do X. You can guarantee that no one ever said that to him. Anything you've been told, yes, sir, is completely made up. Yeah, or tears in their eyes, right?

Like many, many phone calls from the FBI, from people in the FBI, who said I was right to firecoma or whatever. Or that no. People say, whatever begins no people say whatever begins with people say you can guarantee only Trump is saying that or I read it. Yeah. Everyone saying everyone saying. Everybody saying. Nobody saying that except you. All right. Yeah. Well, yeah, we'll see if any of this pops up from the town hall and any of the speaking

indictments that I expect to come out from the special counsel's office. So that brings us to our questions portion of the show. What do we have today, Andy? All right, two quick ones. The first one comes from Jackie, and she says, I'm wondering how many Washington grandurys are hearing evidence for Jack Smith's investigation. Jackie, I know the answer to this only because I was listening to a really interesting interview

of Alan Feuer from the New York Times about two days ago. Terry Gross asked Alan on fresh air the same question, and he said, too. Right now they know there are two grand juries that are seated, that are hearing evidence. They're not 100% sure like is one for the document case and is one for the gen 6 case. They don't know exactly. And it's always possible that there's another one that they're not aware of, but there are at least two right now.

Yeah, the way I would run it is to have them both hearing anything that came out, wire fraud, obstruction, blah, blah, blah, because if you have two grand juries, you've got one meeting on Monday, Wednesday, you have one, we're needing on Tuesday, Thursday, then you basically have a grand jury all week that you can present any evidence and any case to on any specific day that you need to. And the reason I say that is because as soon as some of those executive privilege overrulings came out within hours, they would have somebody testifying in the grand jury. And you wouldn't want to have to wait till the next day for that specific grand jury. So the mic get, that's just pure speculation. I think

that these grand juries are trained up on all the cases so they can hear him on any day. Yeah, and you know, if one of them times out, they're likely on different schedules, and if one times out, you still are chugging forward with the other one that you have, and that enables you to bring in a replacement for the one that timed out, bring them up to speed. So you could constantly kind of alternate one to the other and always have a grand jury that's capable of ruling or voting on the entire issue. So that's our first and second question is from Steve and he says, if charging Donald Trump for taking classified documents is going to be a lengthy trial due to all the claims of declassification and how to prove the documents are still classified.

It doesn't make more sense to just charge them for violating 18 USC 2071B and get that trial moving so the clock doesn't run. That's the, I think that's the mishandling statute. Mm-hmm. Got a bunch of questions along this line this week. And it's... It's the construction concealment statute. There you go.

Yeah. So, um, people are clearly concerned about the timing issue, which I share your concern about that. The clock is still ticking, but I don't think that the length of the trial really is a factor there. What you want is to toll the clock by returning an indictment before you're too deep in the election season before you're in that in the election season, before you're in that 60 slash 90 day period before the election. And we still have a fair amount of runway to get that done. I don't think that the fact that you're working with classified documents in the trial necessarily makes it a much lengthier process. There are pretty good procedures in place through

the classified information protection act, the seep out rules that allow courts to work with classified evidence in a way that protects the classified information, but it is enables you to get that stuff in and in front of the jury. In the form of things like redactions and substitutions, and you can always get stipulations from both sides that for instance, that both

sides would stipulate that a particular document is in fact classified. So then you don't, you know, you have that's one less factual issue for the jury to worry about. So, I don't see that as a big problem, but of course, you never know until you get there. So we'll stay tuned. Yeah. And there's also things that I've heard him refer to as Goldilocks documents, where they aren't so classified

that they can be used as evidence in one of these trials, but they're classified enough to meet the statutory requirements. And then, that's the easiest way to do it, to actually declassify that stuff, or some version of it, so you can use it a trial. And, you know, it depends on who's document is. If it's an FBI document, then FBI and DOJ have a lot more leverage in terms of deciding what to do with it, to say,

you know, this thing may not be sensitive anymore. If it's a super duper classified NSA thing that has a lot of sources and methods kind of that could be in jeopardy, if it's declassified, that's much harder to work with. So one of the things that investigators and prosecutors do in the lead up to these trials is they identify the evidence that they're gonna use by making decisions like that. Like what's easier, what's gonna be easier to declassify or get agreement from these other agencies to move forward with this stuff.

So. And if they don't have a lot of SPNIs or any SPNIs evidence enough to charge S. So, yeah. And if they don't have a lot of espionage or any espionage evidence enough to charge espionage, but you know, want to go. Actually, even espionage doesn't require the documents to be classified. So, you know, like this, a questioner posed, like, that we could do 2071 and 1519, which is the granddaddy obstructing. Yeah. And 793 without any classified documents at all. Yeah. And espionage, not too. It has to be national defense information.

It's much easier to classify or not classify to kind of qualify something as national defense information than classified. Like you said, it doesn't actually have to be classified to count as national defense information. So that's a little bit easier. And finally, I would say they know what they have, right? They've fought so hard to actually get to look at and analyze this stuff and conduct a damage assessment.

They know what they have to work with. And if they didn't, there wasn't any, if everything in there was so wildly sensitive that you could possibly risk going to trial with it, we wouldn't be here talking about this investigation right now. The thing would have been over a long time ago. So I'm confident that this will be a problem. Yeah, very true. All right. Thank you so much for those questions. Again, if you have a question, you can send it to us at helloatmullarsherote.com and put Jack in the subject line. Andy, it's been a really interesting week. We're going to see what happens next week. I think we're in the calm before the storm, but there could be more subpoenas that go out with regard to the wire fraud and defrauding donors and that investigation.

There could be things that we don't yet know about. There could be things happening right now that, you know, like in the George Santos situation that are going on that we just have absolutely no idea. But it seems quiet this week. And that always makes me think we're there's because there's always that little bit of silence right before the hammer drops. That's right. That's right.

That's right. Thank you so much. And thanks to our patrons who support the show, you make the show possible. We will see you next week. I've been Allison Gil. And I'm Andy McKibble. And I'm Andy McKibb.