Jack - Episode 25 - Beyond Blunderdome

Episode Date: May 21, 2023

This week: Trump lawyer Tim Parlatore has resigned from Trump's defense team in the documents case; another of the Ocho Nostra has testified; National Archives is set to turn over documentation that proves Trump was aware of the correct declassification process; plus listener questions and more.Do you have questions about the cases and investigations? Click here: https://formfaca.de/sm/PTk_BSogJOr email [e-mail] and put Jack in the subject line.Follow the Podcast on Apple Podcasts:https://apple.co/3BoVRhNCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AG on Twitter:Dr. Allison Gill https://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on Twitter, but you can buy his book The Threathttps://www.amazon.com/Threat-Protects-America-Terror-Trump-ebook/dp/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.

Welcome to episode 25 of Jack, a podcast about all things special counsel. It is Sunday, May 21st, and I'm your host, Andy McKayne. Hey, Andy, I'm Alison Gill. It was a quiet week last week, and that was the news. But the news picked up a little bit this week, in the now multiple investigations happening in the special counsel's office. First, Trump lawyer Tim Parlatore, or I don't know if it's Parlatore or Parlatore, has resigned from his position, defending the documents case, and another of the Ocho Noestra has testified. And that's always good news. And there's also news of another subpoena from the special council to the National Archives. And we're going to discuss what they're looking for.

We'll also take listener questions at the end. And as always, if you have questions for us, you can send them to the following email address. It is hello at MullersheeRote.com. And don't forget to put Jack in the subject line. All right, let's talk all things parlator. All right, Andrew. There's a lot of layers to this resignation. First of all, we know that Epstein's been backbentched

and we know that Corcoran is off the team. So let's remind folks about Tim parlator's involvement in the classified document situation. First, let's go back to some CNN reporting from March, right, a couple of month and a half ago. Sarah Murray reported, quote, Timothy Parletor, an attorney for the former president, said Thursday that he testified before a grand jury investigating classified documents found at Mar-a-Lago for several hours in December of 2022 about additional searches for classified documents at Trump properties.

And when that reporting came out in March, CNN added that parliator had appeared without being subpoena. Parliator told CNN, quote, I chose to go in there because I felt that it was a good opportunity as a trial lawyer for me to go in and to be able to speak directly to the grand jury and to explain to them what we did to explain how we had complied with this subpoena and how there was no obstruction. Yeah, as far as I know, right, just put that little caveat right at the end, like Korker and Bob did. But Andrew, remember when Chief Judge at the time, barrel howl, because now it's Chief Judge Jeb Bowsberg,

but at the time it was Barrel Howell, and she ordered Donald to conduct additional searches to ensure all remaining classified material was turned over. And then, Parlatore hired two private investigators, I put that in air quotes, to execute that search. And that search ended up finding additional classified material in a storage facility near Marlago. Remember? Yeah, that's right. And then DOJ filed a motion to get the names

of those two investigators and of course judge how ordered that the names have been turned over. So once DOJ got those names, they subpoenaed the investigators and both later testified in front of the federal grand jury. So more from CNN back in March, quote, Harletor City had provided the government with copies of reports, his team wrote on each of the searches of the Trump properties. Prosecutors went over the reports with him in front of the grand jury, as well as details

such as who conducted the searches, which properties were searched, and how the locations were chosen and what was found. The Trump attorney took issue with some of the questions prosecutors asked him during his roughly seven hour appearance on December 22nd, Holy Cow. That's a long one. Yeah, they, they, in fact, they said they repeatedly tried to ask me about my conversations with President Trump, which is totally outside the scope of what I was there for. But now this week, Andrew, we have a new reporting from Alan Foyer at the New York Times that

Parliament has resigned from Trump's legal team. And in a brief interview on Wednesday with Parliament, he declined to discuss the specific reasons for his departure, but said it was not related to the merits of either inquiry, meaning either of the investigations that Jack Smith is conducting. Parlatore said he informed Trump of his decision directly and that he left the legal team on good terms with the former president. And I think that's an important detail because it means he wasn't fired, right? Well, that's certainly what it suggests.

It also sounds pretty rare in terms of how attorneys come and go from Marlago. But we also learned that he actually was subpoenaed to appear back in December. So contrary to what we heard from him then, it apparently was not on his own terms or whatever. I went in on my own and told them what I thought. Yeah. That seemed weird, didn't it? Oh, come on.

I mean, what good trial attorney wants to appear in front of his client's grand jury? I mean, never have it. That is not a thing. Okay. You know, imagine how this goes. Like, uh, uh, the parlor tour walks in and says, trust me, grand jurors, despite the evidence you have heard and will hear, my client is innocent. Like, is that super persuasive?

I mean, come on, it's ridiculous. Yeah. No. So now Jim trusty and John Rowley will continue to take the lead in representing Trump in both cases. Of course, we know there's more cases now, but we know we're talking about what they're referencing is January 6th and the documents case. That's right. Now, the parlator informed Trump's team on Monday that he anticipated withdrawing. So not only did he leave voluntarily or he resigned himself and not only did he leave on good terms, but he anticipated it a couple days before it happened. And our friend Hugo Lohit,

the guardian, reported that it was over a conflict between him and Epstein with that letter that parlator sent to Congress that you and I talked about, the one where he asked Congress to tell the DOJ to stand down. And if you remember in that letter, Parliamentary threw up the defense that they just packed hastily and Donald had no idea those documents were in the boxes, which is, you know, the correct defense for someone like Biden or Pence, where, where their classified documents were. But then Donald said during his CNN town hall, no, I took them. They were mine. They're mine.

And I did classified them with my mind. And he tried to explain that just by the sheer nature of him, moving the documents, they become declassified. Yeah. Yeah. So, so in the infamous Hail Mary letter to Congress, please make these horrible prosecutors go away because there's no crime here. And did I mention there's no crime here.

Parlatore lays out what is probably a pretty reasonable theory, if not a solid defense. And then Trump comes right in behind him and completely cuts his legs out from underneath him and sp does the one thing that of course you should not say. If your defense is, I didn't have anything to do with this. It was a clerical error, you know, that the packers put the wrong stuff in the wrong box. Not a good thing to then come out and say, it was mine, I could take them all.

Yeah, because I guess what happened is parlator didn't present that letter or clear it with trusty or abstain He just went to trump directly with it and trump doesn't read anything. So it's like whatever and that and then there was a big you know conflict and so you know whether this resignation has to do with the conflict inside what now I've Decided to call the Blunder dome, which somebody used to refer to Trump's legal team on social media.

Now I can't unhear it. Whether it's that or whether it's resigning for legal reasons, we don't know. But because this is all coming from all sorts of different stories, different situations. But Parlator was also part of the team trying to assert executive privilege over and over and over again for all the witnesses, including the Oceanostra. Without any success, in fact, Nik Luna testified this week. That's another big piece of news.

Somebody saw Nik Luna coming out of the grand jury. And that's now five. Five down, three to go. Come on. Of the ocean noster that have gone in. Only O'Brien, you are favorite. Andy, Johnny McIntyne. Johnny McIntyne. And Mark Meadows remain. And that we know of. I don't know if I don't know that O'Brien, McIntyne or Meadows could have snuck in, but we don't know. Yeah.

And again, this may be about parlator becoming a witness in the case, or it may be part of the infighting within the Trump legal team. What are your thoughts on this? It seems like most of the pundits kind of agree that along with Epstein being backbenched and along with Korkren, after they both had to testify. And now we found out he testified, Parlatore did, pursuant to a subpoena, that you can't be a trial lawyer for a client in a case that you're possible witness in. That's right.

What are your thoughts on what caused this? It sounds like it could be a whole, any number of reasons. Yeah, I mean, it's really hard to keep track of or speculate with any confidence about why lawyers come and go from Marlago, right? I mean, this has been literally like hand-to-hand mortal combat for lawyers. You got lawyers who's privileged with the client as being pierced and they're testifying in front of the grand jury. You got you got a parlator who also testified, but allegedly on his own, at his own urging

and, and of course, now we realize maybe not so much. You've got lawyers who are not officially working the case, but are weighing in on, you know, on, um, and media appearances on issues of fact that are important in the case, um, like Alina Haba and others. So it is absolutely chaotic. The one thing we know, parlator, like hates Joey Taco pants, like he's, who he was asked about him. And he was like, I have no comment on the talk of peanut.

And how about Chris Kees? Like he seems to have just kind of evaporated from this whole crowd, which when you add all that stuff together, the one thing you can say with a fair amount of confidence is this is not a good sign for a former president who's liberty literally is about to be in jeopardy if he's indicted in these cases, which we expect he probably will be. It's just hard to imagine how such a high profile client in an incredibly

high profile and unprecedented matter has had this sort of on-again, off-again parade of unlikely lawyers who seem to get involved, half of whom anyway seem to get involved, do more trouble than good, and then end up getting shown the door or running for it at their own discretion. Yeah, so while we had a quiet week last week, and I said that that was the news because we don't see that like a huge round of subpoenas or anything, we do have a new subpoena, but it's not a new subpoena. It went out in GNU, we're going to talk about it after the break. But you know, we still have the tail end of the Ocha Noestra to come in and testify.

And that really seems like about it. The only other news is that lawyers keep quitting. So, I really feel like we're getting toward the end of this. And, you know, you and I don't really cover the Fanny Willis investigation down in Georgia, but there was breaking news today on Friday, as we this episode that she is narrowed down her window when she sent a letter out to law enforcement and the judge of the court, you know, the judge in the case that she's working on right now, saying, clear your schedules for August 1st through August 18th. And, you know, we need to make sure security is at its best, and we're all gonna be working remotely

for that time period, you know, for security reasons. And so now it appears that it's gonna be the first half of August when we might have some charging decisions, because before it was like, the mid-July to September, and now it seems to be a little bit narrower of a time. But it's not unheard of with where we're at and maybe you can help steer me in the right direction here because you know a lot more about the timing of these

things and how it must look outside and what's really going on inside. But with seemingly most of the testimony done, we might see indictments or charging decisions from Jack Smith before Fannie Willis goes. I think that that's entirely possible. It's, you know, we can't sit here and say, well, in the Fannie Willis case, great example, we can predict it's likely gonna happen sometime in that two week period because of the con, even if the letter she sent to the judges

in her courthouse, say, don't schedule anything during those two weeks. They're trying to keep the courthouses empty as possible. And also the letter she sent to the judges in her courthouse, they don't schedule anything during those two weeks. They're trying to keep the courthouse as empty as possible. And also the letter she sent to the law enforcement community a week or so ago, or that was reported on a week or so ago. We don't have those kind of tells in the Jack Smith investigation. They've been incredibly disciplined

about their control of keeping their movements and their machinations out of the press so that shouldn't surprise us at all. But yeah, I think they are down to the very last pieces of this investigation. The subpoena that we're going to talk about in just a minute, I think is consistent with that view, right? It's something that you do to kind of perfect a piece of that one particular piece of evidence that speaks to one specific factor allegation. This is lining your ducks up, getting everything in a row, making sure you have all the pieces

of probable cause that you're putting in front of the grand jury ready to go. So, you know, there's really other than the witnesses that we're looking for who we admit could have been in and out without our knowledge at this point, it's hard to imagine that they have a ton more work to do. I would expect to see something from them by the end of the summer. When you are kind of wrapped up with your testimony and your third and fourth and fifth and sixth rounds of subpoenas. And you've talked everybody wanted to talk to.

And it's time to sit down and write your prosse memo, your proscicution memo, which is what you hand in to the boss to say, here's what we think, here's what we've put together before you take it to a grand jury to seek an indictment, right? That's right. That's kind of the process there. Is the proscicution memo sort of created along the way, or is it something you wait to begin until after you've got all your evidence and ducks in a row, like what we're going to talk about in the second half of the show seems like a, like you said, a finishing touch?

And then like how long does it take to prepare? I mean, I guess it depends on the scope of the case, but I can't imagine it takes too long to prepare a prosecution memo and then have to go into the grand jury after that, right? You know, it's a bit of a prosecutor's call. Prosecutors can work in different ways, especially on issues like this that are well within the prosecutor's discretion in terms of how they're going to run the case and the investigation. That said, this is a big case with a lot of witnesses, many of whom are not like, you're not talking about surprise witnesses who've just shown up at the last minute. And the prosimomote itself is really a

road map to the entire prosecution. It is literally a statement of facts that lays out the background, how we got here. You'll have a pretty elaborate kind of a chronology of facts, and then it just lists the evidence supporting each crime that you are investigating and could potentially be inditing on. So they are building the blocks of that foundation all along, right? As the investigation goes, it's strange for me to imagine that Jack Smith hasn't had some attorney on that team kind of drafting this thing out for the last, at least the last several months as they've been proceeding forward. They're going to look at that and needle it and word smith it a thousand times because although the

public will never see it, it is entirely an internal document, that's what goes to Merit Garland before Jackson Smith as a special counsel can seek that indictment, he has to give Garland one final opportunity to say, yeah, your name. Yeah, And Garland's already testified and said multiple times he will just say yay to do whatever to whatever Jackson Smith says. Yeah. But also, hey, look what happened to Fanny Willis on January 24th, five months ago. She said charges are imminent. And then she found out that a lawyer hadn't given an immunity deal to the fraudulent electors. And then she had to bring them all back in, give them immunity deals, get their testimony, and do that, and that added probably three months

to this investigation, and now the charging decisions look like they're gonna come in August instead of January. So, or, you know, imminently after January. So, things like that can pop up too. And I guess my last technical question about how this works is, after he's got all the witnesses, now does he go and start putting the screws to people to flip

or has he been doing that the whole time? He's been doing that the whole time. Yeah, there's no question. He's been doing that the whole time. He wants those witnesses to testify in the grand jury. So you have to be, that's an iterative process. You're constantly developing information that you can use as leverage to convince people to cooperate,

to contradict people's stories when you think that they've given you information that's not true. You go out, vet that information, you find facts that contradict what they've told you, you bring them back in, you confront them with it, that's the way you're gonna break witnesses down into telling you what actually happened. I'm quite sure that's been going on all along.

You know, there's another process that they're going through right now and that is kind of selectively determining what they're putting in front of the grand jury. You don't always put every single piece of evidence or every single witness in front of the grand jury. You certainly don't have to, right? The burden is only probable cause. You know, in a case like this, a big complicated, highly significant case, high profile case, they probably err on the side of putting more rather than less.

But in your day to day, kind of of turn and burn prosecutions that go on in US turnies offices and federal court houses around the country every day. Sometimes those grand jury submissions can be pretty bare bones, you know, like narcotics case, simple fact pattern. You get the undercover in there, you enter the drugs with the report that says what they are. And maybe a couple surveillance photos and you're good to go. This obviously is not that, but you have to make those calls on the fly. Yeah, and not to mention, in the documents case, they're going to have to decide or they probably maybe already have decided what documents can be shown to the grand jury because they

can't see classified information. And there's all those, what is it? The CIPA? Is that the, those requirements? Yeah, and they have very, very knowledgeable and smart, well-trained people who do that for a living. So, but they're also, have to do that consideration when you're talking about classified documents.

Absolutely, absolutely. They're close. I can feel it, they're close. I think so too. All right, everybody, we're gonna take a quick break. We're gonna come back and tell you about that subpoena. Stick around. Hey, everybody. Welcome back. All right. So huge news from Jamie Gangels, Zach Cohen, Evan Perez, and Paul areed at CNN. This came out Thursday.

The National Archives has informed the former guy that it is set to hand over to special counsel, Jack Smith, 16 records that show Trump and his top advisors had knowledge of the correct declassification process when he was president before he left office, which is significant. Absolutely. So an Mace 16 letter obtained by CNN acting Archivist Deborah Stydell Wall writes to Trump,

quote, the 16 records in question all reflect communications involving close presidential advisors, some of them directed to you and personally, concerning whether, why and how you should declassify certain classified records. So according to the letter, Trump tried to block the special counsel from accessing the 16 records by asserting a claim of, quote, constitutionally-based privilege, not further identified. But in her letter, Wall rejects that claim stating that the special counsel's office has represented that it is, quote, prepared to demonstrate with specificity to a court, why it is likely that the 16 records contain evidence that would be important to the grand jury's investigation. That's key right there, isn't it? Yeah, for sure it is.

For sure. Because that's like the whole USV Nixon thing, right, that we found out that if there's a crime being investigated, that trumps your privilege. That's right. That's right. So this is that variance that we've talked about before. This is where congressional investigations sometimes die upon the rocks of these sorts of claims, but grand jury investigations do not. The courts have recognized her quite some time that the imperative of a criminal investigation trumps the sort of quite some time that the imperative of a criminal investigation trumps the sort of nondescript efforts of privilege. Yeah. Now, when the archivist said the special counsel's office has represented that it's prepared

to demonstrate with specificity to a court, does that mean that that evidence was given in the subpoena, or is maybe they just made that representation in the subpoena to the National Archives? You know, I would suspect, A.G., that that reflects a ongoing discussion that NARA had with the Special Counsel's Office in the process of dealing with these documents, right? They're gonna kind of make sure that they're on solid legal ground responding to this

subpoena, and I would expect that the special counsel's office provided that sort of assurance to say, hey, look, this is no kidding absolutely necessary to an ongoing criminal grand jury investigation, and we're confident that we can prove that to a judge. Yeah, and special counsel also told the archives that the evidence is not practically available for many other source. So that's also important because that's one of the factors when you have to determine if you're a court that something needs to be handed over. So that is, that element is also met. Now Trump's team could challenge this in court according to a source, but claimed in the past, the archives has handed over documents before the Trump team has had a chance to challenge the release in court. This has just happened

a few times. And Trump's legal team would not reveal what was in the 16 records, but the source said the former president's attempt to block the special council from accessing them is quote, more of a strategic fight about constitutional and presidential protections rather than keeping evidence from the special council. And I call both of these. Oh, please. Oh, please. Yeah. Yeah. He's litigating this because he cares so deeply about the state of the presidency in the future. Right. Right. It's like Penn saying, hey, this is, I'm doing it for the Constitution. I'm invoking a speech or debate clause for the Constitution.

It's like, no, you're not. No, you're not. You want to be able to say you fought. That's absolutely right. Absolutely. Now, the archivist in her letter said that the National Archives began searching for relevant records after receiving the subpoena from Jack Smith's team on January 23rd 2023. So that's of note, the subpoena went out January 23rd and we are hearing about it five months later. First time, yep. 104 unclassified documents that matched what Jack Smith asked for.

And when notified that the National Archives intended to provide those documents to the grand jury, Trump's legal team raised privileged concerns over 81 of those records. The Biden White House was also notified, but told the National Archives that the incumbent president would not assert privilege to block these records from being shared with the grand jury, which Biden has done at every single time. Every single time. Every single time. So, anybody who's like, oh, Biden just wants to move forward.

He doesn't want to investigate the president. He's interested in, not, he's not interested in justice. It's just absolutely not true. Now, ultimately, the special counsel identified these 16 records in question as relevant. So after the all 104, Trump said 81 are privileged. Biden was like, I'm not blind. I'm going to don't look at me. And then, Jackson Smith said, these 16 are the ones that we need.

Now, talk a little bit more about what you had said earlier, Andrew, about how this seems like putting a cherry on the banana split of a larger pool of evidence, because we're talking about Trump having knowledge that he couldn't declassify things with his mind, basically. Yeah. So this is beyond the phase of the investigation where you are collecting evidence to basically frame out a narrative of how criminal conduct may have taken place, right? That's like the meat and potatoes of your investigation. This is kind of, I'll say like investigation 2.0.

This is not so much trying to construct that narrative to figure out what happened. This is evidence that is going to allow the special counsel to respond to a likely Trump defense, right? Because you're trying to do that as well. Like you're thinking, okay, I have these little pieces that I can put together and make an argument that there's probably a causally this person committed whatever act. But if I do that, their likely defenses will be X, Y, and Z. So I want to then collect additional evidence that it'll allow me to counteract those defenses if they're raised. And that's what this is all about. This is about getting information that they can use if Trump comes in and says, no, you can't find me guilty for having taken, improperly taken these records, because I declass, I think, I thought I had

effectively declassified them, right? So therefore, I didn't have the knowing and willful intent required to violate the statute. I thought I had declassified these adequately. If I haven't, well, that was just a mistake, and I didn't have the intent, you can't convict me. This is Jack Smith lining up evidence that will counteract that defense, that story, because there's these communications will show, well, not really, Mr. President,

because on these 16 occasions, you or one of your close advisors discussed exactly how the declassified records, you knew how to effectively declassify records when it had to be done by I.E. before you're no longer president. The process involved, the sort of communications that you have to issue, the fact that the intelligence entities that are involved in this work have to be officially informed so they can change the the records about what is actually classified and what is no longer classified. So yeah, I think it's this is kind of next level positioning for the special council team. And that's not the kind of stuff that you'd see typically done at the beginning or the middle of an investigation.

That stuff usually comes in closer towards the end. Yeah, still how you would rebut a defense. And you know, listening to this, it occurs to me that Jack Smith probably can already prove that Trump took them and knowingly possessed them, which throws out the whole parliatorial letter to Congress defense that, oh, we just swept them up and they were accidentally in there. And another thing too, we have to remember, Trump wrote a memo on January 19th because it the thing that reminded me of this was that you said, you know, you have to do this before you leave office. This is the process. We told you 16 times, right? You signed a attestation saying that you understood it or, you know, whatever.

And it reminded me that of that memo that Trump wrote on January 19th, the day before he left office, declassifying all sorts of things, and then meadows writing a memo back saying no and give these and gave them back to the Department of Justice, and there was like a little battle going on there. And so now if Trump does knowingly take these documents, knowing that they are not declassified now because he's been told how to declassify stuff. It's been told how long it takes. You've been told you have to have these certain okayes. I mean, I'm sure his reply to that reply is going to be, I'm the president. I can do what I want any minute of any day that I want to. And then they will have to lay out a case about how that's not the case. But I also think it goes toward intent. And this is this moves us away from the obstruction

piece. It also tells me not only is he probably done with proving that he took him and he had knowing possession, but maybe he's he's kind of wrapping up the obstruction part too, because this goes more toward the espionage stuff, doesn't it? Well, it does. In the same way, there, that standard for intent, which most people define as you have to prove that something was done knowingly and willfully, right and these This sort of evidence allows you to puncture that quote unquote willful blindness approach like well No, I thought that I could I thought that I could declassify anything at any time. Oh, oh, oh, well, no, I thought that I could, I thought that I could declass if I had anything at any time, a lot, a lot, a lot. Ultimately, that becomes a question

for the jury, right? And so in order to counteract that willful blindness position, you've got to put something in front of the jury to enable them to say, you know what, we don't believe him. He says he didn't know how to, to, you know, he says he thought he could just wave his magic wand and declassify everything. But yet there's these 16 memos to him laying out exactly what needs to be done to accomplish this effectively. We just don't believe his denials. Right. Right. Along the same lines with the reports that he paid for by Sympathico and Berkeley research firms. Exactly. And he subpoenaed those in January,

got them in January as well. Again, sort of a response to a possible defense for the fraudulent electric scheme, or the big lie, perhaps the wire fraud and the defunding of donors. I mean, that's, to me, is that similar kind of evidence where here you are saying that you know these can't be possibly declassified and you possessed them and took them anyway. And also, same thing with, hey, you knew you lost the election

and you knew there was no voter fraud. You paid $1.5 million to two research firms aside from the litany of everyone else who told him that there was no fraud, including his own hand picked North, Atlanta, US attorney to bill bar, to rose into, I mean, you name it. Eastman. I can't eat. You knew all this stuff was was right. Everybody told them. Rudy. I mean, yes. This campaign told them it was all was all. Yeah. So yeah, I totally agree.

There seems to be piles and piles of intent evidence here. So that's that's kind of what I think. Yeah, I totally agree with you again, just another another sign that were in the Ladder stages if not the wrapping up stages of a lot of these investigations. Yep, totally agree. All right, very cool We have listener questions next and we're gonna we're gonna take a few this time again If you have a listener question you could send it to us at hello at mullershierote.com Don't forget to put Jack in the subject line. We will be right back with your questions. Stick around. Okay, we are back. And this is the part of the show. We're just going to rip through a couple of questions. We're going to get so many good questions this week, A.G. that we're going to give it a little bit more time

than we normally do. All right, so the first one comes from Ray. And Ray says regarding episode 24, if it can be demonstrated that Trump was aware of the violence on the Capitol and was preventing or impeding execution of the law of the United States, he had took no action to stop it for hours.

Would that be enough to make him a part of the seditious conspiracy? Didn't he enable the force used to hinder or delay? To take that effect? You know, Ray, that's a very common sense way of looking at exactly what happened on January 6th. But the problem as we discussed last week is that the language of the statute requires

that you conduct and that you, you know, impede the execution of a law of the United States through force. And the way it's written, it almost seems like the person who's been charged has to have actually applied that force themselves. Or in the case of the conspiracy has to at least have agreed to accomplish that goal with the use of force. And I think that just becomes an issue of proof for the prosecution. The leaves trump a lot of wiggle room, essentially to mount defenses about, well, I didn't know this was going to happen. You don't have me speaking directly to, let's say, one of these proud boys

or one of these oath keepers telling them to inside a riot, telling them to take aggressive action and use force, telling them to amass a cash of guns in Virginia to be used, you know, as a quick reaction force. So you've got to have proof to that issue of the use of force have proof to that issue of the use of force and with the public record, just based on what we know from reporting, it's hard to imagine what they would point to there. Of course, in the oath of Keepers case, they had the weapons cash, and in the Proud Boys case, they had many, many, many text messages between the co-conspirators that talked about use of force and arming themselves and things like that. Yeah, I think the part of the law here,

looking at 18 US code 2384, or by force prevent, hinder, or delay the execution of any law of the United States, I think it would have to say or by negligence allow. Right. Right. Good way of putting it. And it doesn't really say that. It says, you have, it's a positive. You have to, you know, buy force to do this thing. So unless there's a direct connection to his working with, you know, via maybe conduits like Roger Stone and anybody at the Willard Hotel, leaders of these proud boys and three percenters

and stuff, I think maybe inciting an insurrection might be a closer, a closer charge. And because that forced thing, and you know, like he said, that's why Dominic Pizzola was found not guilty of seditious conspiracy. So I'm kind of, I'm with you on that, Andrew. Yeah. Okay, next one, this is a short one, comes to us from Heather A.

And Heather says, why would we have to pay for national security for Trump if he's in jail? That's a great question. And one that I'm sure enrages many of our listeners. And I think what you mean by that is like, why would we have to pay for like secret service protection of Trump if he ends up sentenced to serving some time in jail? I'm not sure it's quite that simple, Heather.

The service has the responsibility to protect the former president for the rest of his life, unless that any former president, this one or any other, at some point declines that protection. So they are kind of in first place to determine how to provide an acceptable level of protection to the president, but that what they do and how they do it is really very dependent on how and where that former president lives. And in this hypothetical, a former president who is confined to an institution to a prison or same sort of protection that secret service gives a free person, a free form of president who's walking around, right?

They're not going to put a secret service listening post in the cell next to Trump's. They would likely factor his unique security and safety requirements into the decision of where they decide to house him essentially. So that's something that's done by the Bureau of Prisons and the Department of Justice after somebody is convicted. And it factors in all kinds of things, your history of violence and flight risk and everything else.

Lots of personal kind of aspects go into that. And so the secret service protection and providing him some level of security that would keep him from getting injured while incarcerated would be a very unique, complicating factor in that math problem. I'm wondering if there's any other official in the United States who gets secret service protection that has gone to prison, that I don't even think we have an example. I can't.

And this is generally why I think that it would probably be, you know, closer to something like a home confinement situation rather than prison sentence. Yeah, it's almost impossible for me to imagine him actually serving time. I don't think some people are probably punching their earphones or something, I'm gonna be saying that, but it's just so

off the charts, strange and hard to do to protect someone who is incarcerated. And on top of that, you're talking about somebody who has no prior criminal convictions and certainly no probably enough. Yeah, right. And certainly no prior violent convictions, convictions for crimes of violence. So from the get go, he is a he would be considered to be a lower risk convict. Yeah. And both the DA's Manhattan and Fountain County, because of the, I mean, the, the DC federal court is backed up, but not as backed up as Georgia and, and New York courts are. And so those trials, even if the indictments come first are likely to happen after a federal trials, but that could also change. So I don't think that those crimes,

I don't think you would be convicted of those crimes to change any calculus and, you know, in the sentencing from the federal indictments or convictions that he may receive. So my thoughts. Okay, all right, we forge on to our next, it's actually two questions from one person. This is, these both come from Michael B. He says, feel free to pick one, but I think we

can cover both pretty quickly. I'll start with a second one first. This is number two question says, it seems as though intent may be a part of Trump's defense in both the January 6th and documents cases. But if Trump does not testify, and how could he possibly, how does he offer that kind of defense? So it's a really good question, Michael.

I think if Trump, I mean, the idea of Trump testifying is so such a... And splitting issue. And I'm sure at some point we'll spend entire episodes going back and forth on Will he or won't he? And if he does, how should it happen and how big of a disaster will it be? Because it's hard to imagine it turning out any other way.

But nevertheless, if he does not testify, he would try to get evidence of his intent entered through other people who observed him taking particular actions or not taking particular actions, people who could relate conversations they had with him that he thinks shed light on his, let's say, honestly held belief in the big lie, because that's kind of one of the things that he would likely be trying to kind of hang his hat on. Now, there's all sorts of issues that those sort of witnesses raise. If it is a conversation with Trump that someone's trying to get in,

that would typically be barred by that rules against hearsay, although there are many exceptions to hearsay, so a lot of that would depend on the exact circumstances of the conversation and the witness. He could also try to enter documents in to get those same sort of ideas or positions in the record. So in other words, if let's say, let's say good old Johnny McIntee sent him a crackerjack bit of legal analysis on a self-drafted memo saying,

you're good, Mr. President. I don't think any of this stuff is illegal. Like he might try to get that document in through the testimony of Johnny McIntee. So there's all kinds of different ways that he might try to get evidence of intent in without a testifying personally. Yeah, and there's also opening statements

and closing arguments. The Trump's attorney could come in and say, you know, we intend to prove that Donald Trump had no knowledge that these classified documents were packed. You'll hear testimony from Jane Doe, who was there packing the documents and never saw Trump come in once. You'll hear testimony for, you know, so I, I, they could set that up in in the opening statements. And then of course, try to hammer that home again in the closing arguments at some point. But yeah, documents and testimony, but what's going to be really fascinating to see and I'm jumping way ahead here, but

is the Department of Justice's motions in lemonade, which is what they argue cannot be entered as evidence and why it cannot be entered as evidence from Trump's side. It'll be really fascinating to see those documents. Absolutely. All right. Here's Michael's first question. I'll call it his other question.

Michael says, you've talked about DOJ having a final meeting where the target's lawyer gets to convince DOJ not to indict. How do these meetings work? Does DOJ present evidence and then allow the lawyer to rebut? Okay, so a couple of things on that. First of all, can I just tell you what my guess is? Yeah, yeah. Because I have it in my head, right?

Yeah. My Perry Mason head. I figure you like the DOJ is like, hey, come on up. Come on down, you're the next contestant on, tell us why we shouldn't indict your client. And then they come in and the DOJ is just like, what do you got? And then they present their case and the DOJ says,

thanks, we'll take it under consideration. That's kind of how I feel that it goes. That's exactly how it goes. Yes! Exactly how it goes. So we've maybe a couple of little fine points here. First of all, absolutely no right to have this beating ever at all, period, right? This is not something that is preserved in policy and certainly it's not law.

And so the vast, vast majority of federal cases or defendants in federal cases never get this opportunity. You typically only see it in, I'm going to say white collar cases, right? Public corruption cases where the defendants are, you know, big time, you know, big name people, and there are major kind of public issues intertwined into the potential prosecution. You also see it a lot in corporate cases, right? Corporations who are being held accountable under, you know, name your statute will come in and try to argue that the criminal resolution of something like that is not appropriate or what have you. Most people never get the chance. I can tell you from my own personal experience

and the baseless, fruitless two-year criminal investigation that they conducted of me after I left the FBI, we asked for that opportunity and we kind of started that process by just talking to the line prosecutors and saying, hey, we want to come in the lawyers and we want to have an opportunity to tell you why we think that you're really not pursuing a valid case here. There is no case and there are facts and reasons that you should understand before you go forward. And having done that without success, then we talk to their supervisors in the US Attorney's Office. And having done that without success, then we said, well, we want an audience with the Attorney General or the Deputy Attorney General.

I think ultimately, we only spoke to the Deputy Attorney General, but it's basically the conversation goes exactly as you described it. It's your chance for your lawyers to go in and lay out why they think this prosecution should not go forward. And DOJ sits there, they listen, they ask very few questions, and then they say, thanks very much for coming, well, what we decide to do. And that's how it goes. And then how do you generally, if you're a high profile here that you're going to be indicted?

Because we know there's a target letter. We know that some folks, some very privileged or higher profile or white collar criminal folks get these meetings or the chance to come in. But then once you're done with that, do you just, I'm assuming DOJ just called your lawyer and says, we're unceiling an indictment today or something to that effect? I'm trying to remember in my own situation, I think they ultimately said, we're gonna leave it to the discretion of the US Attorney's Office. Like another one.

But you were never indicted. You were never indicted. I was never indicted. And the US Attorney's Office had told us they were gonna present it to a grand jury. So, but then, yeah, I'm just wondering about when an indictment, if an indictment happened. So what they told me was,

the, was the frustrating and mildly insulting, if you are ever indicted, we will let you know. Like, of course you will, because like you just have an indictment just lay around out there and you never inform the person that's been indicted. Typically, they get arrested or they surrender. But so that's how they left us for months and months and months. Even after the grand jury came in and while they called and

expired, grand jury back for the purpose of voting and that grand jury did not return an indictment. So I've never been indicted or charged. Da da da. After that point, they let it continue for another, like, I don't know. Yeah, that old no news is good news. It's Monday or something. And we kept calling and saying, what's up?

What's up? And bar did that to Jaffee, too. Durham did that to Jaffee, too, when he was going to testify in the assessment case. And he's like, I don't know if I could testify. I've been threatened with a possible indictment, but nobody will tell me what's going on. And you know, they tried to get his testimony. You know, it was, it's just, that's their way, I guess.

Yeah, they play a lot of hardball, but I would expect that in this situation, I fully expect Trump's lawyers to take advantage or to re, I should say, to request those opportunities to go in and talk to the prosecutors, I think it's possible that they would just ignore Jack Smith and just want to make their appeal direct to the attorney general. Thinking like every month beneath the attorney general is beneath them, you know, one of those sort of power play sort of things,

but we'll see. Either way, they'll they'll It's ultimately, it's the best result, right? If you're a defense attorney, the best result you can possibly get is that your client doesn't actually get charged with a crime. So they'll take a shot at it. Yeah, I mean, you might as well. All right. Is that our last question? I think that is.

I think that's it for the week. Well, thanks everybody for sending your questions in. Again, you could send them to us a hello at mullershearout.com, put Jack in the subject line. It has been a heck of a week. Very interested to see what happens next week. As always. As always. All right it's been really great to see you Andy. Everybody I've been Alice and Gil. Thanks A.G. Great talking to you as well, and talk again next week. I'm Andy McKay.