Jack - Episode 29 - CIPA and the Silent Witness (feat. Brian Greer)

Episode Date: June 18, 2023

This week: Allison and Andy are joined by Brian Greer. Brian is a former associate counsel at the CIA. He’ll help us understand CIPA rules, so-called “Goldilocks Docs,” the “silent witness” rule, and more; plus the January 6th investigation keeps moving along.Follow Brian Greer on Twitter:https://twitter.com/secretsandlawsDo you have questions about the cases and investigations? Email [e-mail] and put Jack in the subject line.OrClick here: https://formfaca.de/sm/PTk_BSogJFollow the Podcast on Apple Podcasts:https://apple.co/3BoVRhNCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AG on Twitter:Dr. Allison Gill https://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on Twitter, but you can buy his book The Threathttps://www.amazon.com/Threat-Protects-America-Terror-Trump-ebook/dp/B07HFMYQPGWe would like to know more about our listeners. Please participate in this brief surveyhttp://survey.podtrac.com/start-survey.aspx?pubid=BffJOlI7qQcF&ver=shortThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

I signed in order appointing Jack Smith. And those who say Jack is a finesse. Mr. Smith is a veteran career prosecutor. What law have I grew? The events leading up to and on January 6. Classified documents and other presidential records. You understand what prison is? Send me to jail.

Welcome to episode 29 of Jack, the podcast about all things special council. And special thanks to everyone who listened to both episodes from last week. Today is Sunday, June 18th, and I'm your host, Andy McCabe. Hey Andy, I'm Allison Gill. And we have so much to cover this week, including sentencing guidelines, possible pre-trial motions we expect to be filed by the Trump lawyer team, the legal team, the Blunderdome down there. We have the ongoing January 6th investigation in DC. And what happened at Arainment this week?

But first we want to discuss how you actually use classified information in the national security prosecution. How do you use that information without exposing it or doing damage to the national security in the process of the trial? And the answer, the overall answer to those questions is you use the classified information procedures act or SEEPA. So joining us today is an expert who's uniquely positioned to be able to talk to us about the use of SEEPA in prosecutions. We have former assistant general counsel for the CIA. You know him on social media as secrets and laws. Please welcome Brian Greer. Brian, thanks so much for joining us today.

Thank you very much for having me. So, Brian, I'm so glad you're here. Let's talk a little bit about what SEPA is just in general. Because we know that these are the, this is the law that governs the process that we have to go through when we take to court and prosecute somebody who has retained or stolen or transmitted or whatever, uh, mishandled, classified or classified documents or national defense

information as is explained in the espionage act. Yeah, it's a little surreal for me to be talking about SEPA on national broadcast now, having it been, you know, an obscure statute that just a few lawyers at the CIA and the Department of Justice knew about before now. It's really going to become a household name in the next year. So it's a little surreal, but I'm happy to explain it. So SEPA was passed. A lot of people think it was to prevent the practice of graymail,

which is basically where the defense would exploit the use of classified information in a criminal trial to try to get DOJ to drop the charges. So that's one purpose. But another one which people overlook is it's really to prevent surprise for both the government and the defense lawyers throughout the case, through the discovery process and then especially at trial. Normally, in a normal case, you might have motions

eliminate a few weeks before trial starts. And then you have all sorts of motions being made during the trial itself, objections for hearsay and misabiliating and all that. And what SEPA does is basically moves that whole process much earlier, keeps it in secret, and it allows both sides to litigate all this in secret and have basically certainty going to into trial what about what the trial is going to look like. And then the other thing it does, it's important and I'm going to come out with this little chart, sort of visualizing this, but picture it as a funnel. And what it really does is try to progressively narrow the scope

of classified information at issue in the case by first through the discovery process, saying there's some information that we're going to exclude or we're going to use certain tools to exclude through substitutions or summaries. And then it moves to getting ready for trial. And again, the next phase after that is the defense has to say, okay, of that discoverable information, here's what I want to use at trial. And then the government and the defense fight about that and how it's going to work at trial. So basically takes this broad universe of class of information, in this case, and narrows it into a much much tighter universe that they can figure out how to use a trial. So the motions in lemonade are at least over the classified information are handled

pre-trial. So the only motions in lemonade we might see are about like would be about like Corcoran's notes or some some other type of evidence that isn't part of these 31 classified documents. Do I have that right? Yeah, that's right. There'll still be those motions effectively, but they'll be done through what's called CEPA Section 6, which is about use relevance and immiscibility, what you would normally see in a normal motion limine. Unfortunately, that'll just all be going on in secret, so we won't know much what's happening.

And just so our listeners can understand, I love your image of the funnel, starting with everything that's discoverable and then boiling down to what's actually used a trial. But for that universe of, at the widest end of the funnel, all those things that are discoverable, what does that look like in this case? I mean, it, from my perspective, it seems like really everything the government recovered

as a result of the search warrant and adding to that the documents that Corcoran and crew turned over to the government in that infamous meeting before the search warrant. So what's that look like to you? Yeah, well, first I'll hit the legal standard and then the actual documents. So normally, in a criminal case, the government would be entitled to turn over anything that's relevant to the preparation of a defense. But with classified information, it's a little narrower. And it's not because of SEPA, but it's because of a case law that exists out there. And the most prominent case is called the UNIS, why UNIS. And there, the court said, when you have classified information at issue because it's more sensitive,

they analogize to cases involving FBI informants, right? Like, you don't want to turn everything over about an FBI informant, even if it's relevant. So they adopted the same standard there for classified information. It said, it has to be relevant and helpful to the preparation of the defense. And so the first litigation we'll have in this case with discovery is the government saying, look, there's some information out there that's relevant, but it's not helpful. We want to remove that from discovery. So that's sort of the legal standard. Then what's going to be turned over? Yes, all the search warrant returns, all 300 plus documents will be turned over. I would say unredacted, I think will be turned over.

Anything in the FBI's investigative files, I think is probably going to go show over with maybe some exceptions that are extraordinarily sensitive. Then, the government has been doing all these classification reviews and intelligence communities. The results of those, maybe even communications about those. If there have been damage assessments, I don't think they've really done a real damage assessment. I think they've done sort of fake ones to make Congress happy that just looked at hypothetical harm.

That'll go over if it's relevant and helpful to the defense. And then the big question is, let's say you have a charge document, one of those 31s, what's your scope of discovery for that document? Let's just say hypothetically, it's the RAN war plan that we've heard about. That may not be a charge document, but just for hypothetical. What else do you have to turn over about that document? There's actually not a lot of case law and not even a wholly consistent approach that DOJ has taken to that. So do you have to produce any document about the RAN war plan separate from that one? I would say no, that's silly because that's not relevant and helpful to the defense. But DOJ might at least have to go search and see are there documents about that leaking to the press, which would indicate that it's

not closely held, or documents about again, a damage assessment about that leaking such that it's not harmful. So that's the biggest ray zone. How about underlying intelligence that may have informed the Rainwater plan? Yeah, that's another great example. Do you go beyond the four corners and pull the underlying intelligence because we want to see who was that source, like this is what the defense will argue, we want to know about that source because we want to argue that it wasn't national defense and information or it wasn't closely held. There's a bunch of hypothetical arguments and that's just definitely a gray

zone where I've argued we don't need to go down that road unless it's helpful and almost all that stuff is not helpful to the defense. So when DOJ speaks with the intelligence community because this seems like a real narrow row to hoe, right? Like something that we can show jurors, but that is also not just out there and not close hell that doesn't look like national defense information. What does that sort of negotiation look like? Because it seems very difficult to say this is important, national defense information, but it's also not so important we can't show it to 12 jurors. Like, first of all, how do they

negotiate that with the intelligence community and how do they walk that line? Yeah, I think the first thing you gotta do is decide what your strategy for using that document at trial. So maybe we can first talk about the silent witness rule and how that's gonna be used because if I'm the agency lawyer, that's my first question to DOJ is,

I can't talk to anyone about this unless you tell me what your trial plan for this. And so you would have that discussion and say, are we going to use what's called the silent witness rule where the document would be only shown to the jurors and the lawyers in the room and the judge, but no one in the public in the courtroom would see the document. And nobody at home, it would not be filed as a public exhibit or any like that. Only those people in the courtroom would see it. If that strat, that's used in many espionage cases,

traditional espionage cases, and it's also used in other unlawful retention cases, and the government makes compelling case, right? This document hasn't been exposed to the public yet. This person's still committed a crime and how they handle it. Why should we have to bear the burden of further harming national security to try this person?

And that argument has been pretty compelling with judges in the past and it's been upheld. And I should just mention how that would work is you would have a witness testify about the document in generalities. But the defense then argues that's not fair to them. They can effectively cross-examine the witness. They also have a right to an open trial. So there's not a lot of case law. Even though it's been used in dozens and dozens of cases, it hasn't percolated up to the court of appeals a lot. And there's really only a one for circuit opinion that just came out, I think last year that upheld this. And so I think DOJ is going to be very concerned about, can we effectively use this tool in this case or not?

And what's the alternative to the silent witness approach in that strategy? The alternative would be just to be prepared to declassify the document and use it at trial. You might still withhold the most sensitive aspects. There's like a modified version of the silent witness rule where you would make most of the document public, but maybe withhold a few in the most sensitive details.

There's even a thing you could use, so you basically modify the document with the court's approval, with the defense knowledge, it's on the up and up, but the jury wouldn't know that you've basically edited the document to take out some sensitive but irrelevant details to the government's case. So that's another sort of modification.

But yeah, the alternative is you're just gotta be prepared to show it to the jury end of the public, which is not been done that often, but it's something they have to be prepared to do. And can you walk us through what does it mean to use substitutions? Yeah, so a substitution would be where there is a sensitive detail in the document and you want to put in basically different words for that that would still be make it so you can litigate whatever the issue is as effectively as you could but still protect sets of information. So one example is let's say a foreign intelligence service gave us some information that was useful. The identity of that service, whether it was UK or France or whoever, is probably not going to be relevant. And so they would just, the government would say, let's just substitute foreign intelligence service A for that. Sometimes I've seen more in terrorism cases like when the US government collected information, that exact date is very source-identified. If you said we got it on September 19th,

that source identifying. But if you just said fall, that's much less source identifying. So it's usually more subtle substitutions like that that you might see. So when I was running the counterintelligence division at the FBI, I used to have to sign these affidavits. And it was almost always late on a Friday night. I don't know why the lawyers always show up at the office on a Friday night

with these monstrous affidavits and some crazy seep-a-litigation. And typically, I was in the position of basically attesting that the document or the information or the individual who were trying to keep protected is actually still a fact necessary to national security and has never been disclosed before or is not at least hasn't been publicly acknowledged by the government and occasionally approving these substitutions. But I had the, I had the great luxury of letting smart lawyers

like you actually fight these battles. I just had to come in and read the affirmation and sign it. So yeah, yeah, that is, that is what I did for several years. It's a difficult process, but also it is, it's difficult, but that part is not that difficult and that you're just explaining the court, hey, this is very sensitive. And it's a pretty easy case to make usually of why it's sensitive. So there's really no such thing as a Goldilocks document. Yeah. I've heard that phrase tossed around quite a bit.

Like, it's not too classified, it's not too not classified. It's just right, you know, like the Goldilocks fairy tale. Yeah, let's talk about then your original question of then how do you, once you've picked your strategy, how do you sort of select? And yeah, the, I think it was Brandon Van Grack, who I, one of my former colleagues at DOJ, when I was at CA and he coined that phrase. And I think it's great in that it helped the public zero in on. You've

got to find this just right document. But to your point, and what we've talked about offline, like there's no real perfect document. They all suck. It all sucks. Yeah. No one is going to be, it's either going to be, it's going to be the Holdger nose document. So I think it's what we should really call them, right? Yeah. Either it's going to be the Hold Your Nose documents, I think, is what we should really call them, right? Like, yeah. Either it's going to be not that sensitive, which means the intelligence community can live with it, but DOJ's not going to be very happy about that. I was so with you, because I remember hearing the phrase when they were charging Tom Barrick that 951 is called SB&AJ Lite, and I'm like, really, it's more like Farrah on steroids. I mean, I don't feel like it's that so much. But yeah, that's really, I think really interesting. And we're going to have to take a break here in a minute.

But have you ever participated in any negotiations with intelligence community about what documents you would use and what they don't let you use? And because my first thought is that there are things that aren't being used here because Holy Cal, they're so sensitive and they aren't even marked. We don't even get to see how they're marked. Can you talk a little bit about that bargaining, that negotiation?

Yeah. So typically, anything human source related is probably going to be off the table. Unless that source has been exfiltrated to the US and they're living safely and there's really no ongoing harm to them. And you can still protect their identity. I think that's going to be off the table. And if you look at the charged documents, I think there's only two that have HCS, which is indicates that it's human source driving information.

And it's HCSP, which stands for product, which is typically for disseminated intelligence. And there they really burp, you know, blur anything about who that person could be, because they know it's being widely disseminated. And identity is not really relevant. So I think they've tried to avoid HCS for the most part, which makes a lot of sense. You know, I would always tell people, go talk to the NSA, but even then, like the NSA is not going to want to expose a significant platform either. Right. Now, the question is really with these documents, there are almost all look like analytical products of some sort. And so there, they're not going to usually say exactly how they got the information.

So the question is really from what it says about what a foreign leader said or what their capability is, does that reveal, if you read the four corners of it, does that reveal to the foreign intelligence service, how we got it? And so that's really the processes is sort of reverse engineering these documents with counter intelligence experts in figuring out that process of, okay,

if someone a bad guy read this, could they figure it out and connect the dots? That process is very difficult. One big question to me is how robust was that process here? Normally in a case, I would talk to whoever, I would feel even though it was all these least cases are sensitive, I would still try to keep it as closely how this possible, but I would still have authority to talk to whoever I wanted. Here, I'm sure the Department of Justice wants to keep that cone of people involved to a bare minimum. But at the price of doing that,

are they not talking to the right people? Like, did the CI director just say, hey, let me make all these calls. They ultimately should make the calls, but they really shouldn't. If you need a chief of station and the head of ops for the right division to be making these calls, so they really know it. So I worry a little bit if they kept it too closely how they did they do all the right coordination. Yeah, and you have to assume they had a lot, well, I hope. Yeah. My fingers across it, a lot of this, a lot of the basic selection issues were coordinated across the agencies because they had a lot to work with, right? So it's this were a case of, you know, the unlawful retention of one TSS, CI, HCS document, you're kind of painted into a corner. That's the only one you have to work with,

to go to court with and so it becomes a binary choice of if it's just too sensitive, you can't use it, then that case might go away or you work, asides you just lead to, to plead it out out. But you know, hundreds of documents here, they probably had a pretty good array to choose from. Yeah, the other little inside baseball tidbit I'll close with is, you know, the higher up you go in the agencies to get approvals, the more likely they are to say yes to the

Department of Justice in these cases. Like the lower level folks, they think about, yeah, they dig in, they're very procreole and just think about their little area, and they're more likely to say no, but the department of justice knows if I go to the director or the to the DNI, they're more likely to say yes. So I'm sure that they were the ones making the final call here, and they were probably much more likely to green light things than a working level person would be. I think that's right. And actually, Allison, if I could make one final point on this discussion, just to kind of take everything we've learned about the silent witness rule and the search for the mythical Goldilocks documents and apply that to the indictment that we've seen now. So looking at

the indictment, the thing that stood out to me was that they charged 31 documents, 21 of which were top secret. That was much higher than I expected. I expected a few of them to be top secret and more to be secret, given that those would be less damaging to be classified. So what that suggests to me is that the Department of Justice has decided we are going to try to use that silent winters rule because I frankly believe like there's not 31 documents of this nature most of which are top secret most of which have compartment after compartment on them. Ibook, let's apply the silo in this rule, see if it works, if Canon rejects it, either we can go to 11th Circuit, or if we don't want to do that, at least we won't be the ones voluntarily putting this classified information on the public record, it will be an adverse court ruling that does that. And what's critical then is, what is the Department of Justice's plan B?

Do they have a subset of those 31 documents that they can live with the classifying for trial if they lose in the silent winter school? These are very smart prosecutors. I think they do, I really hope they do. But that's something we hopefully don't find out, but we might, and that may be what this case comes down to. Yeah, interesting.

We need to take a quick break, but Brian, I'd like you to stick around because I still have more questions about section seven. And, 7, and we know with Joyce Vance talked a little bit about that, and everybody breathed a huge sigh of relief. But then it was Pete Struck sent me a text message like, there's limitations, there's limitations. So I amended that tweet. So I want to talk to you about that, and I also want to talk to you about the Clinton Sox case and Rule 29, all these different

considerations, but we do have to take a quick break. So everybody stick around. We'll be right back. Hey everybody, welcome back. We're talking with a former Assistant General Counsel, the CIA Brian Greer, about SEPA and the procedures in place to govern, the rules that govern these kinds of prosecutions that have national defense information or classified documents, confidential information. And before the break, Brian, I had asked you, I brought up section 7. And what section 7 says, and I pulled this out of, from what Joyce Vance was talking to MSNBC about the other

day. There are immediate and expedited appeals that can be triggered, where the DOJ can go directly to, in this case, the 11th circuit, but the next higher court, which is the circuit court of appeals for whatever, the governs whatever district you're in, immediately can go to challenger ruling. And everybody was like, yay! And they can even immediately go on expedited appeal to ask for a different judge. I have the case reassigned. It probably would go to another MAGA judge,

but maybe one with less controversial decisions in this specific case in the past. So, but there are restrictions to section, this is section seven, I believe, of SEPA, for what can be immediately appealed and expedited to the 11th Circuit. Can you talk a little bit about those limitations? Because I have some hypotheticals that I want to run by you.

Yeah, and first just to step back a little bit. I'm not a criminal procedure expert, but in general, if a judge in a criminal case gives an adverse ruling to the government about the missibility of information or things like that, normally they can't appeal, though they can't just stop the case and appeal. There's some exceptions for that one. I think we'll hear about is, search warrant returns.

If she ruled that the search warrant lacked probable cause and excluded that, the government would be able to appeal that, thankfully. But the vast majority of adverse rulings, the government could get pre-trial in a criminal case. They can't appeal. They just have to kind of take their lumps and go. Thankfully, with SEPA, that's not the case. And I remember when I was first taught SEPA by someone who knows way more about it than I do at the agency, he explained like one of the most important things, if not the most important about it, is this section 7 appeal. If there is an adverse ruling, and let's just review, it's an adverse ruling to the government

that would authorize to the disclosure of classified information and post sanctions on the government for non-disclosing it, or refusing a protective order sought by the Department justice to prevent its disclosure. There's a number of ways that could occur. First could be the first thing DOJ is going to do is seek an actual general protective order governing how the classified information discovery process is going to take place, like the rules, viewing the documents in a skiff, things like that. And one of the big things is what documents are, is Donald Trump going to be able to see himself versus just his clear defense lawyers?

And a lot of cases, DOJ would argue only clear defense lawyers should be able to get classified information. In these types of cases, usually the person, whether it's a leaks case or the person was in government or Miss Handling, the person would get access to anything they had access to while in government. Well, with the president, right, like there's a big, maybe that's everything. But DOJ might say, okay, like there's a big maybe that's everything. But DOJ might say, okay, we're not gonna fight about that, but we're still not gonna give him anything that's been done since he left government.

So like that section three litigation, well, maybe one of the first things that could go up, then in the discovery process, if she rules, that certain things, DOJ, what doesn't wanna turn over, have to go over, they could appeal. And then when we start getting ready for trial, like we talked about, any of those pre-trial reloins about how classified information is going to be used could be appealed.

But the hook is, it's got to be about classified information. Yeah, because that's a lot of people, here's the two hypotheticals that I keep seeing that a lot of people are concerned about. The first one is emotion to dismiss for prosecutorial misconduct. Everyone is afraid that because, I guess, Jay Bratt mentioned the judgeship of Stanley Woodward and his application and that that's prosecutorial misconduct and everyone is concerned that Judge Eileen Cannon may grant a motion to dismiss the case because of prosecutorial misconduct. Can that be appealed?

Not under SEPA because it doesnorial misconduct? Can that be appealed? Not under SEPA, because it doesn't involve classified information in that deferred criminal procedure expert on whether that could be appealed. I think if it basically dismissed the case, at that point, you could appeal. Obviously, because there's nothing left to litigate.

So I would think that could be appealed. Okay. And then the second one is like a stupid scheduling, like a briefing schedule, where she's like, all right, I want everything by October of 2025. You know, like, yeah. I don't think you could appeal. That's like something. I don't think you could appeal even

another normal criminal rules. Even with the speedy trial determination or okay. Unless it was adverse to Trump, I don't think the government could appeal that. No. Yeah, the other thing I'd add is it's, it says expedited in the statute, but you can't tell a court of appeals how

expedited it should be. They're going to do whatever they want. In the Jeffrey Sterling case, there was a see like the whole issue with the reporter having to testify in that case. That was appealed pretrial and there was a super ruling appealed pretrial and it took forever for I forget how long but like forever for the force that it could resolve that. Even when you had the expedited litigation with the judge can and litigation in the fall, right, I look back at about two to and a half months for that to get resolved in an expedited basis. So any of those it could longer, could be shorter, could very well be longer, but it's all going to slow down the litigation and

potentially this is why I think it's not going to happen before the election. Yeah, I totally agree. There are so much pretrial litigation that is likely to take place here and any piece of that could end up in an appeal. There's just a lot of opportunity for delay and not even necessarily improper delay. There's briefing schedules, there's arguments, there's time to think about it, there's opinions that have to be written on every one of these things. So if Trump really decides to dig in and just fight, you know, appeal every ruling, every adverse ruling, you can drive this thing up forever. And of course, speedy trial rights, you know, those are the province of the defendant.

And he certainly does not want to speed trial here. So he can do, he can wave a speedy trial rights and, you know, enforce his ability to appeal on at every opportunity. And we are well past the election by then, I think. Yeah. And let's talk about the Clinton socks thing. That seems to be a very huge, what about is him, that, you know, what about the Clinton socks thing. That seems to be a very huge, what aboutism, but what about the Clinton socks case? Can you just sort of outline the differences here for us? Yeah, I love how much attention has been given to this and that the critics of it have been doing a very good job and explaining why this doesn't make sense,

but it's also kind of mind numbing to me because it's just so obviously different that I hate that we've had all spent so much time. Could you tell me why red isn't blue, Brian, please? Yeah, exactly. Yeah, that's I feel like what we keep arguing about. But you know, this is basically an argument from them that based on this judicial watch litigation brought against the national archives relating to some recordings that President

Clinton had made that they think some what was essentially dictated in that case about the president being able to determine what's personal or not. They think that governs here and that means that Trump had a unilateral right to determine what was a personal document or not. Obviously, there's nothing in the statute of the presidential Erichers Act that says anything like that. And the real issue in the in the Clinton socks case was judicial watch was trying to compile the national archives to go get the records and take them. And so with the real holding was there was the courts can't force NARA to go do that. So like that's the holding of that case. But beyond that, the Presidential Records acts clearly defines what is a presidential record versus a personal record. And also defines agency records,

right? So some of these may actually be agency records, not presidential records. So, but I don't think there's any argument that they're really personal records or that the president can you know how to determine that. There's also no argument, I think, that the presidential act should act trumps a criminal statute, right? Like, it's not like a get out of jail free card for a criminal statute and there's, you know, rules of statutory construction in case law about that. Like, there's no way they could find that.

It basically gives you, you get out of jail free card for the S&J Act. And then the biggest thing I tweeted about is if their argument is these were personal records, that's actually a bigger scandal. How was he going to take these classified records and make them personal, which is classified information is defined in the executive order information

that is owned by or produced for the government. It's by definition government information. What personal use is the argument that he was making of that information? And you know, this also cuts or I should say Shed's light on the careful job that Jack Smith and his team did in constructing the indictment. There is no there is no evidence referred to in that indictment that could reasonably be characterized as personal. All the hats and newspaper clippings and photographs of thumbs up behind the desk, that's not in there. That stuff, they're not fighting over that. They're fighting over highly classified documents that are very clearly were created for the government.

They're the property of the government, and they remain the government's property to this day. Yeah, I think the only time they might use that kind of personal stuff is to show that it was commingled with these classified documents to show knowledgeable possession. And we'll see how that comes down. Final question for you. Steve Vladik Final question for you, Steve Latick has tweeted, just to clarify, if a district court enters a rule 29 judgment of a quiddle after a criminal jury has returned to guilty verdict, that

judgment can be challenged and if necessary reversed on appeal. And then he, of course, gives citations because he's Steve Latick. He says, as I explained on the National Security Law Podcast, rule 29 motions are generally not reviewable, including if they are granted after a mistrial, but Wilson holds that one circumstance in which a judgment of a quiddle under rule 29 can be appealed as if it comes after a guilty verdict. So talk a little bit about rule 29. I think people are very just afraid that she's just that this judge is just going to be

like rule 29, the whole case is dismissed. He's not guilty. I declare it and with prejudice have a nice day. I think I don't know that that's a reasonable fear. Yeah, I think so. I mean, if she's going to muck up the case, we're going to know way, way before there's so many opportunities for money. Yeah. And you know, both Charlie Savage and political articles this week about the ways in which she could basically thwart this case. All of them, I think, came before rule 29. I can think of others that they didn't put in there that I'm not going to suggest. But if we've gotten to that point, like, I just don't think we'll get to that point one or another. Either the case is going to have to be trapped by then because it's been so difficult or we may, I'm not, I don't think we'll get to that point one or another. Either the case is going to have to be trapped by then because it's been so difficult or we may,

I don't think she'll ever recuse, but if she issues extreme, really and after extreme, really maybe the government finally will move for recusal. So I don't, I just think it's, we're not going to get to that point. Okay.

Well, thank you so much for lending your expertise here on the Jack podcast. I really appreciate it. Everybody follow secrets ands on Twitter. And you know, having experts like you on the show here, I think is so helpful to explain what's going on, but also to set reasonable expectations. And so I really appreciate you.

A former assistant general counsel at the CIA, Brian Greer. Thanks so much for joining us today. Yeah, thank you so much, Brian. It was great talking to you. A former assistant general counsel at the CIA, Brian Greer. Thanks so much for joining us today. Yeah, thank you so much, Brian. It was great talking to you. Thanks for doing the pod. Yeah, likewise. Thank you for having me. All right, everybody.

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, everybody, welcome back. I want to go over the sentencing guidelines. I've seen a lot of people on both sides, by the way, claim that Trump is facing 100 to 400 years in prison. And that's just simply not the case. If you add up each individual charge and stacked the max sentence for each individual charge, end to end, yes, you would come up with 400 years.

But that's not how sentencing works. Let's think about like the Oathkeeper sentencing, for example. 678 felonies with 20 year max sentences. Isn't 160 years, and then you go down from there or up from there. It's they do something called grouping. Well, they'll, you know, and they're gonna do this here in this, they're, you know, and they're going to do this here in, in this, they're going to group the 31 counts under 793 ESPN Ajax violation. They'll group those 31 counts. They'll

group the obstruction counts into like one thing. And then they'll, you know, and then you've got the false statement. So this is very cool. Although I wonder though, Andy, I don't know if they'll group the 1512 obstruction because that's witness tampering. That's him trying to get nodded to do bad stuff with the 1519, which is obstruction of the documents. I don't know if they'll group those together or keep them separate or not, but regardless, 220-year max sentences, up to the full 20 years, you're not going to see 20 and 20 is 40. I don't think they're going to stack them like that. So, yeah, I agree with that.

And I think this is a good conversation, not because he's been convicted. He certainly has and he's still innocent. He hasn't, he hasn't had his day in court yet, but because it's such a topic of conversation, it falls in that category of kind of like resetting people's expectations a little bit. But generally, the federal courts are inclined to sentence people who have been convicted on multiple offenses to serve the sentence for each one of those offenses concurrently, not consecutively. And they do that exactly by the way you talked about

by grouping them together. Usually when people are sentenced to consecutive sentences, it's because it's called out explicitly in the statute. So, like a firearm enhancement or something. Exactly, 924 C is use of a firearm during a felony. And if you, you know, brandish a firearm during during the commission of a violent felony, the statute explicitly says you can, you know, I think first offense is four, second is nine, or maybe it's nine and then 10. I don't remember the actual numbers, but it gets

added onto the conviction for the underlying felony. So those have to be served consecutively. But generally, the preference in the courts is to do these things concurrently. So those have to be served consecutively. But generally, the preference in the courts is to do these things concurrently. So in this case, you're exactly right. You would end up basically serving the time for the longest sentence you received under whatever you've been convicted for. Yeah. And like you said, and this happened in the oath keepers with the sentencing recommendation, they recommended that these sentences be served consecutively, but there's a limit to that. It's up to the max penalty for the biggest felony

you've committed, so it wouldn't have been more than 20 years. Of course, he only got 17, so we didn't get to see if that applied, specifically talking about Stuart Rhodes. But David Aaron, over at Just Security, it gained out the sentencing for us. He went to the guidelines and the charts, and again, the guidelines are advisory, but let's run through these. The base level, the sentencing for us. He went to the guidelines and the charts. And again, the guidelines are advisory,

but let's run through these. The base level, the base level for willfully retaining national defense information, 793E is 24. But it goes up to 29 if the information at issue was classified top secret. And that's to be clear, that's just a base score. That's not years. That's like, this is the complicated math of the

sentencing guidelines. Everybody starts with a base number and then it goes from there. So go ahead. Yeah. So you get a number and then you look on the table to see what the years are. So these aren't years. Yeah. A defendant's leadership role adds four points. If the defendant was an organizer or leader of criminal conduct that involved at least five people or was otherwise extensive, for example, conduct that relied on the assistance of unwitting outsiders, or just two points of the defendant organized or led criminal activity that involved fewer people and was not as extensive. But this indictment, the defendant, is the organizer or leader that involved at least five other people, whether or not all were winning. And that's Walt Nauda,

employee two, and attorneys one through three. So the defendant's attorneys will consider calculations based on a four point increase according to David Aaron. And then they add two points for a defendant's abuse of public or private trust. And since he was the president, this is an abuse of public or private trust

to additional points for willful obstruction of the investigation. And that's separate from the actual obstruction charge. So base level with top secret 29, leadership role four, abusive trust, two, obstruction two, that's 37. And for a defendant with no prior criminal convictions, and believe it or not, Trump has no prior criminal convictions. For now, for now. An offense level of 37 yields 210 to 262 months. That's 17 and a half to almost 22 years.

And then we can look at obstruction, which will all be grouped together. And the base level there is 19. Leadership role is four. Abuse of trust is two. So the total there is 29, which is seven, about seven to nine years. And so, you know, talk about,

we talked a little bit about consecutive or concurrently. Andy, talk a little bit about what factors go into that. Yeah, first it's helpful to know that, as we walked through here, there's a little bit of black math involved in the sentencing guidelines. And these decisions about adding two or four for leadership and abusive trust or doing the abusive trust just in one part for some offenses and not

others, people have very reasonable disagreements over how these things might be calculated. At the end of the day, those kind of adjustments at the margins aren't really that significant because the guidelines themselves are only advisory. When I started working in New York doing cases, organized crime cases, that was like OG sentencing guidelines, right? They were, they set the range for the sentence and the judge was limited to sentencing a defendant within that range with one major exception. If a defendant had cooperated, the department of justice would come and present what's called a 5K one letter to the

judge and the receipt of that 5K one letter, which detailed the cooperation would empower the judge to depart downward from the lowest end of the sentencing guideline range. It's much less specific now. The judges can basically pick whatever number they want. They can sentence in accordance with the somewhere in the guideline range or somewhere completely above or below it. So it's pretty squishy. Yeah, and some of the factors that determine

concurrent or consecutive include the evidence at trial. And that may be one reason they brought in 31 documents here. We usually only see like a handful. And the, you know, the, we already have added the, you know, the, the extra points for the fact that they're top secret, but also the amount of counts or counts of conviction. And then of course grouping is taken into consideration. So there's multiple things, but we know when we went over step by step on the daily beans, that oath keepers sentencing recommendation, I think it was pretty clearly laid out.

But like you said, judge Emmett Meta came back from, they were recommending 25 years for Stuart Rhodes, because that fell right in the middle of the guidelines range for everything that they laid out, including their argument for consecutive and the max that, you know, of the highest statute, et cetera. And the judge came back with 17. That's eight years under. And, you know, and they could argue that, you know, if Trump actually admits wrongdoing, he can get a downward departure, you know, we see this a lot in sentencing for January 6th

defendants that we've been keeping an eye on is that if you take responsibility and you show remorse, you can have a little bit of downward departure on sentencing recommendations. But I don't see that coming from. I would hold my breath for that one. In this case, that doesn't seem like one-hilton getting a job.

But you're absolutely right. This is where the discretion really comes in and the judges are, they index on different parts of the case. Like some judges are really focused on maybe the amount of evidence. In this case, you can see the amount of classified documents that have been charged, which is really high in this case, comparatively speaking, might be very impressive. On the other hand, in terms of grouping, it's pretty clear that they'll group the documents together, the question whether they consider the instruction stuff totally separate. That's a good question. It's also possibly a group the whole thing together and say, it really was really all part of the same overall offensive conduct. We'll do everything,

we'll do everything served concurrently. So very much up in the air, there's a, I think by any calculation, the maximum range that the calculation we just went through 17 and a half to 22 for on just the documents counts, that is a very long sentence. I mean, let's, you know, throwing around numbers like 100 to 400, really kind of blows your sensitivity for this. In reality, people sentenced to, you know, anywhere from 15 to 20 years. Those are considered monster sentences in the federal system.

I've had Russian organized crime figures who pled guilty to Rico cases that included numerous, numerous underlying acts, underlying crimes, extortions, traficking stolen cars, narcotics, firearms, and who, you know, pled out, so they're pleading guilty, so their sentences are a little bit lower, but the things like in the 12 to 15 range, I think a former president, and that does matter at this level when we're talking about sentencing, it does matter, with no prior criminal convictions

on a crime that involves no violence, I have a hard time believing he'll be sentenced to something even in that 17 to 22. I think nine to 12. Honestly, if we get to that point and if they decide to do prison, that's the number I've heard people talk about. Ellie Honey and I were talking about this the other night in between hits at CNN and he had done his own calculation to kind of come up with his own prediction of somewhere around

eight to 12, which sounds probably reasonable to me, but we'll see. Yeah, and one real cool thing. Well, first just two quick bites before we take a break and we're going to have to come back and talk about January 6th for a minute because that's still going on. Jim trustee has filed to withdraw his counsel from everything. He has said that he and Trump have irreconcilable differences. I think that's interesting, given trustee used to work near or around or in proximity is counsel from everything. He has said that he and Trump have irreconcilable differences.

I think that's interesting given trustee used to work near or around or in proximity to Jack Smith when Jack Smith was in the public integrity unit. I think trustee was in the criminal division, but they both worked at the DOJ at the same time. They surely crossed paths. And something else interesting, because you brought up, I feel like these 31 documents charges are less about espionage and more about the obstruction, right? This is what was obstructed. These are the documents that were obstructed. I feel like this indictment is about the obstruction.

That's the central piece of this. But what's very cool about this is that Bill Barr, in 2019, right, when the Mueller report came out, wrote, had an OLC memo whipped up in a couple of hours that said, in order, we can't charge Trump because he's a sitting president, but even if we could, he mused, we're not going to, because in order for him to obstruct justice, there has to be an underlying crime. And there is no underlying crime of conspiracy with Russia. So what's fucking

beautiful, excuse me, about this particular indictment is that we have an underlying crime. We have retention and national defense information and we have 31 counts of it. So in one fell swoop, Jack Smith has wiped out the possibility of Trump using as a defense that it wouldn't really do it. Yeah. Which is absolutely ridiculous. By the way. You know, you can't obstruct if there's no underlying crime. Because early on, last, you know, when this whole thing was going down, he was putting that out on true social. You know, and I'm like, he's talking about that bill, bar memo. He's going to use that OLC memo to say he can't be charged because there's no underlying

crime. And it's just been that whole defense has just been taken completely off the table. So I thought that that was well done. Yeah, and you know, that goes to how he's talked about this from the very beginning. All these, you know, these wacko theories of, well, I declassified everything in my mind. And that so that all goes to this idea of I didn't do anything wrong. And therefore I couldn't, I also could not have obstructed anything. I didn't do anything wrong and therefore I couldn't, I also could not have obstructed anything. Both of those sides, both sides of that argument are completely false. But nevertheless, I think it's a great point and it comes back again to the,

to the elegance of this indictment. And this thing was written so carefully, so thoughtfully based entirely on evidence that the government recovered after the subpoena was served. So none of the stuff that was turned over to NARA initially only those things that they brought into government custody after the subpoena was served. So things that were either turned over by the defense to the government in that infamous meeting with Jay Braddown at Mar-a-Lago. So that stuff can't be challenged because they handed it to the government. They gave it to the government or documents that were recovered as a result of the search

warrant. In order to exclude that evidence, they have to attack the probable cause finding in the search warrant by Barrel Howell and good luck with that. Those are, that's very, very hard to overturn a federal judge's factual determination or probable cause. Very hard to review that. Which we just learned from Brian Greer is immediately appealable to the 11th Circuit. That's right. So I think that's important.

They built such solidity and protection into, they, into this indictment. They wrote it in a way specifically designed to filter out and eliminate many of these possible lines of attack. It's just a really masterful job by that team. Also, I think one of the reasons that they brought it in Florida, there would be venue challenges. That could add to the delay, the probable inevitable delay that is Donald Trump's only defense. So, all right, we're going to be right back because I want to talk a little bit about what happened at the arrangement and because I think there's some interesting information in there and especially, you know, why he wasn't remanded. I know a lot of people are upset. They wanted

him thrown in jail you know until impending trial, but there are very specific reasons that didn't happen. We'll go over that after this quick break. Stick around. Welcome back. All right. Let's go over the Aramignment AG. It was as if any of us could forget Tuesday at 3 p.m. in downtown Miami. Okay, so a couple of things that occurred to me, hats off to the DOJ, deterrence and law enforcement, only 20.

I've heard this reported as 20 or so Trump supporters showed up and did not really engage in any kind of significant violence. Now, my own watching of TV, which I did, the entirety of that day from inside the CNN studio, I feel like the crowd was a little bit bigger than that, but doesn't really matter. The end of the day, people showed up, they waved their flags, they yelled through their bull horns, but they were peaceful. They got their voices out there, and I think that was the most important thing. Yeah, testament to the DOJ, right?

I mean, that's the whole point of deterrence. And I think a lot of people, a lot of especially Trump supporters recognize, man, if I show up and participate in mob violence, I could go to jail for 17 years. I'm not gonna do it. I totally agree with you. I totally agree with you.

I think the size of that crowd and the way they conducted themselves are to some degree a direct result of the prosecutions of the one six defendants. I was very skeptical about the security arrangements before beforehand that not using really any significant barricades, you know, putting a bunch of cards out there that anybody could have walked past and some yellow tape that really does nothing more than attract people. I think in some ways, they left themselves at the mercy of the crowd. Fortunately, the crowd was under control and conducted themselves well.

Gooding on the other way, and I think Miami would have been very embarrassed, but never less than that. Well, they prepped for like 50,000 people. They were out and forced to Miami PD. So I don't think we were going to see much of anything, because we did have some thinly veiled threats of violence from the president, even members of Congress, you know, one to 50,000, hold your bridge or whatever the anti-painter order. Yeah. But the day before, the law enforcement community started sounding a little less confident the day about 24 hours before and then you started hearing like they're thinking thousands like plural based on online

chatter. And at that point, I think they probably would have been well advised to harden up the courthouse there a little more. Nevertheless, they decided not to work out, you know, went their way so good for them. Yeah. Yeah. Also, Jack Smith was in the front row. And apparently that trained his steely gaze on Trump the entire time.

Hugo Lohl reported, he was in the room there, that Donald appeared frustrated. He repeatedly folded and unfolded his arms. And then his lawyer Todd Blanche, one of his two lawyers who's left, pled not guilty on behalf of Trump. So Trump didn't even speak. Now, Walte Nauta was not arraigned because he didn't. This is unbelievable.

Unbelievable to me. He hadn't secured a local attorney. Why didn't Kies do pro-Hawk V.J. for Stanley Woodward? Maybe Kies was like, I'm not touching Stanley Woodward, we're the 10-foot pole. We don't know, but he wasn't arraigned. He will be arraigned on June 29th, I believe, 9.45 AM. And the whole thing about conditions came up.

And what seems to have happened per like Anna Bauer and some people who were in there, the people who didn't run out as soon as they got the plea. I remember I think there was a reporter for NBC who ran out to the camera, he putt not guilty. He's like, we knew that was gonna happen, but then they were like, so are there any conditions? What's the bail? What about Walt?

He's like, I don't know, I left right after. So for the folks who stayed in the room, what seems to have happened is that the DOJ didn't ask for any restrictions. And that's a very prudent move in my personal opinion because you're gonna get more motions and arguments and possible appeals and all this other stuff. So, but once the judge decided,

hey, I think I want some conditions on this, then DOJ was like, yeah, yeah, conditions. Cause these come from the judge, not us. And that way, why are you gagging a presidential candidate? Hey, it was the judge, it candidate? Hey, it was the judge. It wasn't us. It was the judge. That's right.

And they taught the judge wanted him, Trump, to not be able to speak to anybody at all. And they were like, that's not really a blanch argued. That's not really tenable. Walton out of his valet blah, blah, blah. And so they argued about it for a little bit and landed on, okay, he cannot talk to Walton out about the case. And that's sort of the one condition that they left with. Yeah, so this is kind of interesting.

I mean, I think it was a reasonable thing to do. It's heads up with the judge to ask for it. It's essentially completely unenforceable, right? Everybody knows, like, no one's going to know what takes place in a conversation between Trump and Nauta locked away in the office together at Mar-a-Lago over at Die Cokes. How well, Rodge, with the radio on and their hands over their mouths like in Cassena. A walk-and-talk or something.

So, okay. So, agreed. It's unenforceable. And we all know, like basically everything is unenforceable to Donald Trump who does whatever the heck he wants, despite rules, the law, whatever a judge tells him who cares. However, the one thing this does accomplish is if he violates the terms of this order in some sort of a notorious or significant way, he's already under a court order. So it kind of gives the judge the foundation to then impose real sanctions.

Otherwise, if you was doing something stupid and messing with witnesses maybe in a way that you couldn't prove but was still seem damaging, then we'd be in here for the first hearing and they'd be imposing an order like this. We've gone past that. And now if he does something dumb, it's going to be a violation of this order and then he's going to be looking at more significant repercussions. Yeah. Now, on the other hand, he's allowed to leave.

You know, without leave of the court, he's allowed to travel around. He's allowed to, this feels like as much as, okay, let me, let me start with this because a lot of people are upset that he wasn't remanded and he he shouldn't have been because he was not charged with transmittal or dissemination. That's not here in the in the indictment within the four corners of the indictment. A lot of people argue, but he did. He showed those documents to Kid Rock or whoever is pack rep or the, you know, the meeting in bedminster.

He did it twice. Sure, but it's not charged and you really can't lock somebody up for something that they're not being charged with. He also, you know, a lot of people are like, but Jack Tashara, he's going to jail. Yeah, he had an arsenal and made violent threats and also was transmitting this to foreign people, these classified documents. So these are different cases. Also, you know, a lot of people want to compare this to what happened with reality winner But we have to remember reality winner was made an example out of a Trump-appointing US attorney for disseminating Russian in you know

Russia information the Russia was that right so she was hung out to drive by the Trump administration That's wrong. She should not have been treated that way We shouldn't treat everybody like the wrongest person we treat We should treat everybody like the best part like the we do our best We should be elevating our justice system to treat everyone equally not lowering the bar That's right. And I do think it was incredibly unfair what happened to reality winner. I hope she gets her you know her a pardon. I mean, I know she's out, but you know, I think that think that she was, she was made an example of, but I, you know, I want to talk about that in the way we look at how he's being treated, because he's also being treated differently and better than most other people

are being treated. Most people would have their passport, yank, they'd have to get courts permission to leave the city. So I feel like they are showing a little fear or favor because he's running for president. And I don't, I don't know how I feel about that. I realize we're an uncharted territory, but it seems like he should be treated like everybody else. Well, he should. And, and we have, I totally agree with your take on this. Like what we should be doing is trying to achieve the standards that we've set for ourselves legally and ethically in every case. And the fact that we maybe didn't do that in another case,

like in this case, reality winner, shouldn't, that doesn't reset the standard or tee up some sort of, you know, judicial retribution. There are two systems of justice that we should aim for the better one. That's right. So in this case, let's talk about just the bond decision, right? Whether he gets released on bond or he gets remanded, that in the federal system, that comes down to a consideration of only two factors, risk of flight and danger to the community.

There's not much of a traditional argument for danger to the community. There's really, there's not much of a traditional argument for danger to the community here, right? He's never been convicted of another offense. He's never been convicted, certainly not of a violent offense. And that's basically what judges look at first. Now, okay, you could make a partial Jack Tashera argument, one of the arguments that the government made about Jack Tashera being a danger to the community was that they weren't sure.

They had recovered all of the classified material. This is kind of a novel thing. There was the argument that he could be a violent danger to the community from his prior writings, comments about mass shootings, research about mass shootings, he's heavily armed, all that kind of stuff. And that really would have gotten them there. But they also argued that if he still has more of this material around that we don't know where it is or what he has, we haven't figured out the full scope of what he's taken, he could continue releasing that stuff and danger the national security. Continue releasing it. It's because he had released it, right?

And we don't have any evidence or at least it's not charged in this indictment that Trump actually released any of this information. That could still be an ongoing investigation. But I'm with you because we know there are boxes unaccounted for. Never searched, never searched, Bedminster, never searched, Trump tower. Never searched, Trump Tower.

So I think the government could, if they wanted to be super aggressive, they could have pushed in that direction, they obviously chose not to. And I'm gonna come back to that in a second, because I think that gets to your last point. The second factor is risk of flight. And you would think, you know,

the pretty obvious argument is like, holy cow, the guy has his own 737. If that's not risk of flight, I don't know what is. It's a junker though. I'm not sure how far I would make it. Yeah, maybe it only. Maybe that was taken into consideration. So yes, and an enormous situation, you know, the fact that somebody had access to private

aircraft would certainly go into that calculation. Part of the reason why there's not really that much risk of flight with him is because like, where's he gonna go and not be known for exactly who he is? There's not really much chance of him going on the lamb and hiding, right? Miss Rue going undercover, hiding who he is endodging justice. He's also not made any indication that he would do that

quite the opposite. He's pretty bella coast in terms of, you know, he showed up with the government. He showed up in New York, right? We have a recent arrangement of him showing up and not fleeing. So. Yeah. So there's really not when you get beneath the headline, it's not really a significant argument for risk of flight either. Now, I think they could have taken his passport and said, okay, well, either way, you're not going to, I think you're not going to leave the country. Yeah, I probably would have done that if I were the judge, but nevertheless, same, same sort of argument supply. So now let's look at the broader picture. Are they handling him differently? And with their resoundingly, or I should say resoundingly, yes, I think they are. They gave him incredible

deference and respect in the way they decided venue in this case, in the way they conducted his arrangement. He was provided with this absurdly large, super heavily secured caravan to get himself from his derailleur club to the courthouse with the assistance of through, you know, a hundred limos and 200 mocusile motorcycle cops completely shutting down the highway. That is not anything that anyone else would ever get. And it also contradicts their claims that, oh, we don't need any barricades at the courthouse. I hate to belabor my point. But why was there really that significant concern, security concern about his movement from the club to the courthouse and really no similar concern

at the courthouse itself? That seems kind of strange to me. Nevertheless, I think that the government has gone out of its way to be as non-confrontational about these small-ball irrelevant issues as they possibly can. And that, I believe, is an effort to kind of take the heat off of this thing as much as they can. That's not going to be completely possible, but they are going out of their way to be fair and to not provoke, you know, some sort of up, and the appearance that they're really hectoring and persecuting this man rather than just prosecuting him. Yeah.

And we should push that everyone be treated this way. If we're going to, if we're going to treat everyone the same, everyone equal under law, let's do it and do it this way. That's just my two cents because they are definitely going out of their way and not to cause conflict and give him every opportunity that many folks don't think he deserves because it feels like he's above the law. But we'll see how this all shakes out. There's more going on though.

The January 6th investigation is continuing. What's that? Member January 6th. So for anybody worried that Jack Smith would like own like after looking at January 6th in the insurrection and the coup and all that you know, all the wire fraud and the big lie and the documents and they were, a lot of people were afraid he might just go with the documents case only because it's easy and that's it. That's not happening. And we know that because they're continuing to bring witnesses into the grand jury in DC in the January 6th case. You can't use a grand jury if you're not

investigating things, right? You can't just, let's just keep it going and see what we case, you can't use a grand jury if you're not investigating things, right? Let's just keep it going and see what we find. You know, that's not, you can't use a grand jury for that. That means he is continuing with the January 6th probe. And Donald Trump is the, you know, it is the investigation of Donald Trump. That's why he was appointed specifically Jack Smith. Multiple witnesses were questioned before the grand jury this week, including Nevada, Nevada GOP chair Michael McDonald, who is a close Trump political ally, as well as Jim DeGravenry. That's the state party's vice chair. They were spotted by NBC entering the grand jury. The same day Trump was arraigned in Miami. And this is funny, Andy, when asked about having to appear the same day as Trump's court date,

McDonald joked on a to an NBC news reporter, not on my bucket list. Now, he had previously, uh, props to him for the, for the humor. I don't know anything about the guy, but I give him some credit for that. Now, McDonald had previously confirmed to NBC news. The federal authority seized his cell phone as part of the investigation a while ago. And Andy, this feels like how in the documents case when they were bringing in those last few witnesses to close up potential defenses these feel like either people who have flipped or like

Because they see his just phone now he's coming into the grand jury That means he's not a target in my mind and maybe he's cooperating and now he's going to give his testimony before the grand jury These seem like wrapping up loose ends because we've already got pens in, we've already got meadows and we've already got the big, you know, big, uh, players in here. So this feels like loose ends. It feels like he's still getting toward the end of this investigation. But the good news, if you were worried that he was only going to go after the documents case to make it easy for himself, that's not happening. Yeah, I think that's right. I mean, it definitely looks more witnessing to me than targeting.

So that's generally the case with the grand jury. So I'm not going out on a limb there. And it hardly seems like he's the major kind of case cracker sort of witness. He's likely one person involved in one potential, from in any potential charges that could result from the activities that took place in his state, which likely would be just one of many parts.

His communications with Eastman or Rudy or some other bigger fish. That's right. That's right. It would be interesting to see how soon and when and if these charges come. I'm assuming that even if Trump isn't for some reason indicted in January 6th, which I'm pretty sure he will be,

there are others. I mean, it's not like if Trump didn't do it nobody did. Yeah. And interestingly, I think Meadows is an interesting issue here because now having seen the indictment, we know there's really nothing in the indictment that you would source back to Meadows is an interesting issue here because now having seen the indictment, we know there's really nothing in the indictment that you would source back to Meadows and knowing that it's really only post-Sapina conduct

that we're looking at Meadows is from our understanding, pretty much out of the mix by then. So it's hard to see how Meadows would even really be used in that case, which means if he's been in front of the grand jury, it's probably about January 6th. Yeah. For real. All right. I think we have time for one question from a listener, Andy.

If you guys have questions, you can send them into us at helloatmullarsherote.com. That's helloatmullarsherote.com. Just put Jack in the subject line. What do we have this week? All right. This week we got a bunch of questions on this topic, so I teed it up. This particular one comes from Nancy,

but we also got a very similar one from Nick. Nancy's question is, if Trump goes to prison, does he get secret service protection in prison? Does he still get his presidential pension? Just like everyone else, he should lose all privileges of being a free man. Also, do you think that simply because he has secret service protection, that would preclude him from being sentenced to prison?

All right. So, to unpack that a little bit, people don't actually Nancy lose every legal right and privilege they have as a free person when they go to prison. Yes, they're not technically, they're not free. They're stuck in prison, but you don't necessarily lose a government pension after you've been convicted of a crime, unless, you know, the laws or the policies around that pension explicitly state that unless you're Andy McKay and Trump fires you and wants to put you. You got to give him credit, Alesson. They came up with a very ingenious way to denying me my pension, which was to fire me the

day before I was old enough to receive it, but I digress. Anyway, so no, I don't believe he'd lose any sort of pension. The bigger question of can he go to prison as a former president of the United States? And that is an open one. We don't know. I cannot imagine a set of conditions that would, I mean, the secret service is obligated to protect him for the rest of his life wherever he is. I cannot imagine a set of circumstances that they could ever come to that would essentially assure his safety insecurity in a federal correctional institution. That's just me. Maybe I have a lack of a,

well, let's talk a lack of imagination there. Let's talk nuts and bolts. I mean, wouldn't it be easier to protect them if he wasn't present? I mean, hey, prison is dangerous. I'm just saying some more dangerous than others certainly, but yeah, it's, that would be, I think that would be very hard on the secret service agency. Yeah. It's, that, no one knows the answer to this question. And it would be really a massive issue in the hands of the sentencing judge to determine, you know, let's say hypothetically, he goes to trial, he gets convicted, he's facing a sentence of 12 years, judge could send him to nothing or could send him to some period of time and home confinement or wearing an

ankle bracelet or whatever. You wouldn't really need an ankle bracelet though if you're surrounded by federal law enforcement agencies, IE the Secret Service, 24 hours a day, it's not like he really goes anywhere, can go anywhere without them. So there's all kinds of things here, putting ourselves, we're getting way ahead of ourselves about trying to figure that out, but I understand that people are really interested in it. And that's just one that we'll have to wait and see what happens. There's a lot of hurdles to get over between now and then. Yeah, it's going to be a long couple years. That's for sure. However, however, the cookie crumbles, whether they bring charges in DC,

what happens with Fanny Willis, what goes on with the adjournment in New York with the DA, Alvin Bragg and the New York Attorney General. We're just going to have to see how this all plays out. But I rest well knowing that forever, probably the rest of his life, he will be dealing with criminal issues in an out-of-court, no good days left for Donald. That brings me a little sense of justice. Yes. And while he is, we'll be here talking about it. Thanks so much. And thanks again to Brian Greer for coming on and explaining some of these things to us. It's been exceptional to get that kind of expertise on the show. So thank you. And do you have any last thoughts before we get out of here today, Andy?

No, I just can't wait to see what happens over the course of the next week. Every week has been like, every week we're like, what's next? Next. That's right. So I'm course of the next week. Every week has been like, holy cow. Holy cow. That's right. So I'm looking forward to next week already. Question, do you think Jack Smith will indict on January 6th before Fannie Willis announces hers in August? What are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are you, what are I don't, I can't really handicap it, but I will say it's possible. He could be that close on that indictment wrapping up his last witnesses in front of the grand jury. If that's the case, he's got a whole month to bring it.

That one clearly comes in DC. Good happen. I don't think it's likely. I think probably the next thing we'll see is Georgia, but I wouldn't rule it out. That's a very lorryly back and forth answer that commits to nothing. Sorry about that. I think it'll be in July, maybe by the end of July, but either way, it's going to be close to,

I think it'll be close to when Georgia goes. So we'll see. Yeah, it sounds like it. That's just a gas total speculation. All right, we'll see everybody next week. I've been Allison Gil. And I'm Andy McCabe. And this is a Jack Podcast.

And this is the Jack Podcast.