Jack - Episode 3 - The Search Warrant Two-Step (feat. Andrew Weissman & Ryan Goodman)

Episode Date: December 19, 2022

Allison and Andy talk about what the avalanche of subpoenas around the fake electors scheme; the dismissal of the civil suit Trump brought to block DoJ from using the documents they seized from Mar-a-Lago; plus they talk with Andrew Weissmann and Ryan Goodman about Just Security’s model prosecution memo and what a special counsel investigation looks like from the inside.Follow our guests:Andrew Weissmannhttps://twitter.com/AWeissmann_Ryan Goodman:https://twitter.com/rgoodlawJust Security:https://twitter.com/just_securityFollow 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 abovehttps://dailybeans.supercast.techOrhttps://patreon.com/thedailybeans

Season 4 of How We Win Is Here For the past four years, we've been making history in critical elections all over the country. And last year, we made history again by expanding our majority in the Senate, eating election denying Republicans and crucial state house races, and fighting back a non-existent red wave. But the Maga Republicans who plotted and pardoned the attempted overthrow of our government now control the house. Thanks to gerrymandered maps and repressive anti-voter laws. And the chaotic spectacle we've already seen shows us just how far they will go to seize

power, dismantle our government, and take away our freedoms. So, the official podcast of the persistence is back with season 4. There's so much more important work ahead of us to fight for equity, justice, and our very democracy itself. We'll take you behind the lines and inside the rooms where it happens with strategy and inspiration from progressive change makers all over the country. And we'll dig deep into the weekly news that matters most and what you can do about it, with messaging and communications expert,

co-founder of Way to Win, and our new co-host, Jennifer Fernandez-Ancona. So join Steve and I every Wednesday for your weekly dose of inspiration, action and hope. I'm Steve Pearson. And I'm Jennifer Fernandez-Ancona. And this is How We Win. I signed in order appointing Jack Smith.

And nobody knows you. And those who say Jack is a finesse. Mr. Smith is a veteran career prosecutor. Wait, what law have I grew? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is? Send me to jail.

Hello everyone and welcome to episode three of Jack, the only podcast to get all the special counsel news in one place. It is Sunday, December 18th. I'm Allison Gill and I'm Andy McCabe and this week, wow, we've seen an avalanche of subpoenas from the special council's office. It began with subpoenas to election officials in Michigan, Wisconsin, and Arizona, and then expanded to Pennsylvania, Georgia, Nevada, and now New Mexico. All states that for those of you who are following along, you will remember we're part of the post 2020 election efforts to overturn the results.

So these subpoenas hit also some secretaries of state and we're going to go over those and just what they're asking for in just a few minutes. Yep, and we'll also cover the contempt motion filed against Donald in the documents case that was rejected by Chief Judge Barrel Howe and what that says about the investigation as well as the official dismissal of the order issued by Judge Eileen Cannon appointing a special master along with the Trump civil suit, which she had to dismiss as well. And last week, Andy, we posited that the Save America pack would likely fall under special council purview.

It was previously under criminal investigation. I we were kind of like that feels like it should go up under his umbrella. And CNN confirmed it this week. It does. And we'll talk about that. And finally, I have some questions about the Special Council warrant application to access the data from a congressional reps phone. That's Scott Perry's phone. I'm calling it, Andrew.

I'm calling it the search warrant to step. We've seen it in a few of these seizures of phones, like Eastman, Clark, Lindell, where they get the warrant to get the phone and then they image it and then they get the warrant to get the additional stuff. It's like this extra step and I'll ask you about that. Absolutely. And we're going to be talking to two of the authors of the just security model prosecution memo for the documents case. Andrew Weissman, NYU Law Professor of Longtime Prosecutor, member of Special Counsel Mueller's team, and of course a former general counsel of the FBI and Andrew's partner, Ryan Goodman,

is also an NYU Law professor. He's the co-editor and chief of just security, and he's the former special counsel to the general counsel to the general counsel of the Department of Defense. Yeah, wow. So already we have a huge show. We're already just what, three minutes into it, just talking about what we're going to talk about.

It's going to be a lot. And I was worried, Andrew, when we started this, is there going to be enough special prosecutor news to put together a whole thing? Yes. Yes. So far, no problems in that category. Totally not. Also, I'd like to tell everyone there will be episodes of Jack on Christmas and New Year, so you can look forward to that. Let's start because of first half of the show, we're going to focus on the January 6th investigation. Second half of the show, we're going to look at documents, the documents investigation.

Let's start with the subpoena party and the January 6th fraudulent electors scheme. And I feel like I'm about to start that Rock Me Amadea song, you know. Oh my God, you did not just go to Rock Me Amadea's Tuesday, December 6th. The Donna election officials in Dane County and Milwaukee County, Wisconsin, Allegheny County, Pennsylvania, Wayne County, Michigan, America, but County Arizona confirmed receipt of subpoenas. Dun dun. Thursday, December 8, two days later, secretaries of state in Michigan and Arizona confirmed receipt of subpoenas.

Dun dun. Monday, December 12, Secretary of State Brad Raffensberger in Georgia, under a new grand jury number, by the way. And Clark County Nevada election division confirmed they were subpoenaed. And finally, don't, don't, Tuesday, December 13th, the next day, officials in New Mexico confirmed that they received subpoenas. That is right.

And what we know about those subpoenas, if they all look exactly the same. I guess one way to characterize them, really without even getting the details is huge, broad, massive. So here's what the subpoena is actually asked for. And I'll quote some of this. For the period of June 1st, 2020 through January 20th, 2021, produce any and all communications in any form. Okay, so that's recorded calls, emails, text messages, whatever. From or involving Donald J. Trump for president here and after the campaign,

Donald J. Trump or any employee or agent of or attorney for the Trump campaign. So this is a very, very broad request for communications from the list of people I'm going to give you connecting to really anything, having to do with Donald Trump, his campaign, or any of the people working for his campaign. Yeah. And Andrew, you're going to go over the list of those two from, et cetera, but we had a lot of questions. I put a whole thread on who all these people were. If you want to check that out on Twitter at MullerSheRote. But a lot of people are like, where's Jenny Thomas?

And I think it's important to note that she isn't Trump campaign, Donald Trump, or an employer agent of, or attorney for, the Trump campaign. So she would be subpoenaed for these things, not in the list of things that they're looking for communications for. If that makes sense, I just sort of wanted to touch on that because people are like, where's Jenny?

So that's what's happening. That's absolutely right. So, so the subpoenas are actually targeted at individuals who may have been in contact or had communications with anyone that fits that description that I just gave you. And that list of people starts out with my favorite name of the whole list, which is Kenneth Cheesebro. I don't know why I just like that.

And then includes Justin Clark, Joe DeGinova, John Eastman, Jenna Ellis, Boris Epstein, Rudolph Giuliani, Bernard Carrick, Bruce Marks, Cleedham Mitchell, Matthew Morgan, Kurt Olsen, William Olsen, Stephen Pasatino, Sydney Powell, William, aka Bill, Steppian, Victoria's Tozing, James Troopers, and L. Lin Wood, Jr. So that is a heck of a list of people who we really know just from the reporting that we've all seen over the last year or so these are folks who were involved played some role in the lead up to January 6 a planning of events, discussions of potential now we think of them as potential crimes right, the the lectures issues, congressional issues, all kinds of stuff like that. So definitely a wide swath here. So if I could, Allison, just for a second, I want to talk about what this means from an, from a investigator's point of view. Yeah, please. Yeah, I think it's helpful to

remember that the standard, the legal standard for, for a subpoena is very, very low. It's a simple relevant standard. So US attorney is working with a grand jury. standard for a subpoena is very, very low. It's a simple relevant standard. So US attorney is working with a grand jury. Can essentially send subpoenas out to whoever and for whatever they want. Subpoenas can be, if you object to them and go to court and try to fight to not have to comply with it, they can be quashed as they stay in the legal world, which means basically exactly what it sounds like. Or curtailed, they can be like, the scope can be less, as they stay in the legal world, which means basically exactly what it sounds like. Or curtailed, they can be like the scope can be less like made less broad.

We've seen this happen a million times with all the January 6th Camino's. That's right. But typically to do that, you've got to be able to show that the subpoena was in fact over broad or irrelevant or for some reason improper. And that's that's pretty tough to do because prosecutors have such a wide latitude. That being said, as an investigator, subpoenas are usually like 1.0 investigative step, right? It's one of the first things you do when you're starting a big conspiracy type

investigation like this. And what you're doing with a broad subpoena is you're essentially trying to define the outer limits of people who might be involved in this network or this group of co-conspirators. Sometimes negative results can be just as important to you. So let's say you know Joe Johnson was on that list I just gave you and he responds to the subpoena indicating that he has no Communications responsive to this request that's actually a good thing for investigators because they can then write that person off and say Okay, Joe Johnson wasn't really, you know a a central member in this thing here We don't have to waste any more time on him. So it is kind of a way of ruling people in and ruling people out So it is kind of a way of ruling people in and ruling people out. Now, that being said, is that kind of a typical initial step in investigation.

It does raise some legitimate questions about why DOJ is just sending these subpoenas out. Now, however, it is also common that once you've done some investigating and talked to some witnesses and found some things out, you then have to send out another whole round of broad subpoenas because you're following up on investigative development. So I don't think we can draw too many conclusions here other than, I think, the new regime, Jack Smith and the team, he's put together, they are making an effort to be very expansive to make sure they've swept up every single thing that's relevant. Yeah. And we're going to talk in a little bit about something very like one, just one

aspect of this entire thing, which is Rep Scott Perry's phone. And we found out that going back to May, they have been trying to prioritize getting communications with that particular Congress person, and how that leads to another search warrant, which leads to another search warrant, which then leads to analyzing and gathering the information, which leads to another search for it, which then leads to analyzing and gathering the information which leads to, oh, we have some more questions about communications with some folks, but that we see right here that have been copied

maybe on emails and we're gonna ask you specifically to hand those over to, but we probably already have them, so don't mess with us. So that is always an excellent question though, like what took so long. But something else that came out, a really great Caitlin Pollance report from CNN about additional questions, we covered the scope of this investigation in a previous episode

of Jack. And we got some more information. We got some news about it. And so last week, I asked you, Andrew, if the ongoing investigation into Trump's Save America pack, it's been under investigation for like 10 months now. Would be part of the special counsel investigations. And we posited that it probably is and CNN confirmed that this week. Here's a quote from CNN,

top prosecutor, J.P. CUNY, the former head of public corruption in the DC US Attorney's Office is overseeing a significant financial probe that Smith will now become part of his office. The probe includes examining the possible misuse of political contributions according to some of the sources. The DCU's attorney's office,

before the special counsel's arrival, had examined potential financial crimes related to the January 6th riot, including possible money laundering and the support of rioters hotels, days, and bus trips to Washington ahead of the 6th. The financial investigation has sought information about Trump's post-election save America pack and other funding of people who assisted Trump.

That's according to subpoenas viewed by CNN. That's from Caitlin Pollance. I just a quick question. Andy, do you know J.P. Coney, who's been previously and probably will continue to oversee the financial arm of this investigation? Well, I do. Actually, I don't know him personally. I probably have met him once or twice, but I have a bit of a history with JP. He is known to be kind of a public integrity and public corruption expert at DOJ. He was, I think, at one time the head of the public integrity section in DOJ, which is the section that oversees all the investigations of public corruption issues. He also,

strangely enough, left DOJ went to the US Attorney's Office in DC and took over the investigation of me. If you will remember, after I left the FBI, it was a referral made on involving the IG's findings and the DC-US Attorney's Office opened a criminal investigation based on basically nothing that continued for almost two years until it was ultimately declined. They sent a letter saying they declined to pursue any charges because of course there was nothing to charge.

JP Kuhn, he played a role in that case towards the end. He somewhat notably brought the grand jury back after they had expired without returning an indictment and essentially was involved in kind of the last gasp effort to try to get the grand jury to return some sort of indictment. They, of course, did not. And JP was from what we know of the proceedings in a FOIA case filed by crew,

Oregon's non-profit citizens for responsibility and ethics in Washington. They were seeking documents involving my firing and the department used the criminal investigation as essentially an excuse to not have to comply with the FOIA requirements. And they did that for a long time until Judge Reggie Walton held them accountable. And I think actually told Mr. Cuney on the record that he could no longer continue to hold the

sword of Damocles over this man that being me, this man's head. So that's really my interaction with JP CUNY. It's interesting because, you know, I mean, what that reminds me of, using that criminal investigation to deny a FOIA request and get the truth out about what happened with your firing, sounds like, hey, why don't you just do me a favor though and just say you're investigating the Biden's, Mr. Zelensky, or hey, Rosen, why don't and just say you're investigating the Biden's, Mr. Zelensky, or, hey, Rosen,

why don't you just say you're investigating electoral malfeasance and let me and the Republicans in Congress do the rest? Hey, just announce that there's some sort of investigation. I guess we can't really know though, like why Cuny didn't resign in a protest or was he just trying to keep his job or is he a bad guy or is he a white hat? Like, I think it's kind of a sort of impossible to know that whole department was just completely weaponized at that point. Yeah, it's impossible to know.

And this is all kind of a lot of very kind of disturbing water under the bridge. But the question for us is, what's the significance of his role now in the special counsel team? Because that's what we're here to talk about. I think there are, I mean, I have some questions about his judgment and motivations. However, the guy has a legitimate experience in background in these sort of white collar financially sort of investigations. So I understand why he would have been on the short list as someone to oversee the financial side of this thing.

The proof is in the pudding. We'll see how it does or what that investigation leads to or doesn't lead to. So we'll just have to watch it closely. Yeah, definitely. Just a, yeah, an area of concern that I have. So we'll see how it goes. We also learned this week,

and as I mentioned a little bit earlier, Special Counsel's office has tried to gain access to Scott Perry's text messages. They seized his phone in August. Now they've applied for a warrant for the information in it. And I have a couple of questions. First, explain the search warrant to Step because it seems like you should just be able to, if you get a search warrant for a phone, you should just be able to go in and get the stuff. They're taking a second step process. We've seen this in court filings, we've seen this in,

you know, previously I believe, uh, uh, Eastman tried to sue to stop them from getting access to the phone and the DOJ said, Hey, we just imaged it. We haven't even looked at the stuff yet. We're going to put in a second warrant. And there was really, you know, obviously the courts were like, you can't have your phone back, dude. And we saw it, I think, with Clark, maybe even the pillow man who was at his phone taking it from him. Mike Lindell. Mike Lindell. From him at hearties. And maybe Navarro as well. Talk a little bit about that two-step process. Have you seen that before? Is that new? Sure. Yeah, it's kind of something that's evolved over the last several years as getting data

off of phones has gotten more and more complicated, but there is that initial step that investigators need to take, which is basically you got to get that phone in your hand. So you need to be able to convince a federal judge that there's enough evidence to indicate probable cause to believe that there's potentially evidence of a crime on that phone. So you can imagine getting the phone getting into the phone is another issue Technical issue of getting past past words or having the person who contributes to the phone actually provide the password And once you're in there then you have you get you get to see what sort of information is in the phone have, you get you get to see what sort of information is in the phone, maybe what sort of contacts and metadata sort of things that you can find from the phone records, but that might, you know, you might then want to be able to exploit that information or maybe access backup

copies of that information that might exist on an associated like iCloud account or something like that cloud storage. And then of course, you need that second search warrant to do a more thorough exploitation of the data on the phone. Okay, that's yeah, that's interesting. I feel like it's one of those buttoned up type things too, where you just taken away another argument that they could probably use in defense. So I'm glad they're doing that. Yeah, I mean, you never want to leave yourself vulnerable to a claim that you went beyond the legal authorization of the initial search warrant, right? So DOJ is always going to take the cautious approach. They're always going to try to do these things as cleanly as possible to eliminate any potential

efforts by the defense and a trial later on to exclude evidence. So if they think there's any question that they need additional authority to take that next step, they're going to put the brakes on, write another warrant request, and take it into court. Yeah, that makes sense. And I'm really glad you mentioned that you have to get a warrant. You have to, it's probable cause. And I want people to sort of frame this as if you remember the probable cause that was necessary to get a search warrant to search Mara Lago for the classified documents, they had to show evidence in an affidavit that there was probable cause to believe that there were fruits of a crime at that location. And so what

that says to me is that they have evidence, at least probably raising to the level of probable cause, that there's evidence of crimes on a congressman's phone. That's a big deal. It really is. It really is. I mean, it's an incredible allegation to make, you know, seizing the telephone and communications device of a elected member of Congress is not something that the FBI does every day. You can guarantee, I can tell you having sat at those tables and had these conversations

and made these decisions. You do not take a step like that unless you are absolutely positive that you've got your ducks lined up, that your evidence is solid. It's a very impactful thing to have to do. Yeah, that's why I was kind of like, it's probably even more than probable the cause, but that's the threshold. When you're talking about these high profile cases, and Andrew, we learned Friday that just this past Friday, the Department of Justice asked Judge Barrel how to unseal

previously secret court proceedings that have to do with Rep Perry. They show the DOJ trying to get emails between Scott Perry and three people, Eastman, Jeffrey Clark, and Kukowski. Now there were two proceedings, one in June of this year and one in September of this year. The Department of Justice investigative team asked the Department of Justice filter team because when you see stuff from a lawyer, you set up a filter team, because that's what you do. They go through the stuff.

The investigative team asked the filter team, hey, knock, knock, knock, can you prioritize communications between these three guys, East McClarke and Klukowski and Congressman Scott Perry, please? Can you prioritize those Perry communications? They tried to argue, the defense people tried to argue that they were protected by privilege, and the judge disagreed, and the Department of Justice got the emails. And then a couple months later, Andrew, we know the DOJ got a search warrant to seize his phone, Perry's phone. And then as we just said, they asked for that second warrant to get data from the

phone. But why would DOJ unseal these secret proceedings pre-endipment, like during an ongoing investigation, like why now? Yeah, really interesting, kind of series of filings here. So in this case, as you mentioned, with in the spirit of an abundance of caution, you're seizing the communications of three lawyers, as possible, they could be a attorney-client privilege material on there.

So all that stuff goes to the filter team. of three lawyers as possible. They could be attorney-client privilege material on there. So all that stuff goes to the filter team. The filter team process was basically approved by the judge before any of this took place, likely in the context of the warrant request and that first, very first step. And the process required after the filter team reviews the material and they determined that some portion of it

does not include any sort of privilege material, they have to go back to the judge and essentially make a report and get the judges authorization before they hand that stuff over to the investigators. So that's what they did in June of last year and September of last year. So the orders from those two proceedings were themselves sealed until yesterday. Was it this, was it last year or was it, was it 2021 or was it this year? I'm sorry, 2022, you're correct. Oh, okay. You're correct, 2022.

So it's in the last several months. So yesterday, what you had was the department going in front of the judge and saying judge those two orders, the order from June and the order for September, we believe that those orders can now be unsealed and shared with the general public. So filed on the court docket. Why would DOJ make a request like that? Well, first, it's possible that the judge told them to make that request. I mean, it's every single time you see a filing and, you know, DOJ is the movement, it's not necessarily the case that they did that

entirely independently. It may have been that the judge said, I would like you to file a request to do XYZ. So there's always that. The other thing is the courts, and particularly DC courts, they have a strong preference for not keeping things sealed unless it's absolutely necessary.

And that's a good thing, right? That leads to greater transparency and judicial proceedings and more information in the hands of the public when it's safe to do so. And so clearly there was some sort of a determination made here that those two orders from June and September last year really no longer needed to remain sealed and protected from the public. And so they've been shared now in a slightly redacted form with the, they're on the court docket available to see. Could the like, not necessary to keep the proceedings secret anymore. So we're going to go ahead and unseal them. What would make these kinds of proceedings

not subject to sealing anymore? Could it be because they got their second search warrant to get at what was in Scott Perry's phone? They used this material to get the search warrant, to get his phone, and then to go in further and get the data office phone. So it's no longer, it doesn't have to be a secret anymore, that we did this because he's not been indicted.

Nobody's been indicted. So it's not because of that. And this is a very narrow piece. It's not like they're going after an indictment here, but they very well might be. But I guess what confuses me is, how does this sort of thing, how is it cool with regard to a search warrant, but, you know, also still we can unseal it and there hasn't been an indictment. It's still

a non-going investigation. I guess because it's such a narrow thing. Yeah, you know, each situation is a little bit different. There is a hint built into the order that Judge Howell signed yesterday. It's the very last paragraph, bottom of page two, which he says something along the lines of, essentially, the government will unseal, further unseal, like remove the redactions, essentially, and unseal things. 30 days after, it's no longer necessary to remove the redactions, essentially, and unseal things 30 days after it's no longer

necessary to maintain the ceiling or one year from today, one year from yesterday. So I think that shows she's like leaving on the record in a documented form, she is saying she's indicating her preference, that like when you don't need to keep this stuff from the public eye, I want you to expose it. Now what could be, what could meet that, what could happen to meet that standard of no longer necessary to remain sealed? It could be something as simple as, you know, the person implicated by the search warrant talks about it publicly.

Maybe they did. And he did. He told talking. He told talking points memo that these aren't my texts or what I these are fake somebody made them up. So, you know, maybe that could do it. Blue, I could do it. You know, he in this case, he's the person, you know, one of the people who's privacy is being protected. And he can talk about whatever he wants. It's not like, you know, an FBI agent can't talk about what happens at a grand jury proceeding, but the person who

testifies in front of the grand jury is allowed to. So the same kind of thing. You go on and talk about it, and then it's no longer necessary to be sealed, then the judge is indicating she wants to stay on top of that and unseal things as soon as you can. But what this is probably not is the DOJ saying, oh, you know, this is going to make us look good, or we want people to know what we're doing or this is for the public's benefit or anything like that.

It's probably not that, right? I find that really, really hard to believe. It's not the way that DOJ operates. They're not, you know, they don't typically get involved in, especially in a proceeding that's in front of a judge. It's almost impossible to imagine how you would argue that. Like, hey, you know, you're on or we want these facts out there because it makes our case look stronger.

I mean, that kind of thing just doesn't really happen in an ongoing judicial proceeding. I gotcha. All right, well, thank you for that. We'll be right back everybody with a second half of the show covering the documents investigation where we'll be joined by Andrew Weissman and Ryan Goodman. So stick around, we'll be right back.

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

And they still have time for other songs. They're fooling around. Who can stop? They might be giants and their liberal rocket gender. Who? No one. Disadmirs pay for it with somebody else's money. So, Renato, do you still have your own podcast? Yeah, it's complicated. What's so complicated about a podcast?

That's the name of the podcast, remember? Oh! Will you still be exploring topics that help us understand the week's news? You bet, but we'll have a new name because we're going to be working together to explore complicated issues that are done in the news. Working together? Yeah, your hosting it with me, remember? Oh, right.

Wait. Does that mean our podcast is going to have a steam op segment? Let's not get carried away. But we'll discuss hot new legal topics, so check out our new episode coming soon to everywhere you get podcasts as well as YouTube Welcome back about a month ago a team at Just Security penned a model prosecution memo for the Mar-a-Lago documents case. Here to talk about the Special Counsel Investigations and the PROS memo are two of its authors,

former Special Prosecutor on the Mueller team, Andrew Weissman, and former Special Counsel to the General Counsel of DOD, and also co-editor in chief of just security, Ryan Goodman. Gentlemen, thanks so much for taking some time out to talk to us a little bit today about your perspectives on the new Special Counsel assignment and also to talk about the process memo that we had an opportunity to look at a week or so ago. So Andrew, if I could start with you real quickly, you know, my own experience

with director Mueller special counsel team was really limited to the very, very beginning, right, working with Rosenstein to get it to get someone appointed. And then of course, working with director Mueller and trying to stand things up, sending people and getting space and computers and resources and all that sort of stuff. But after that, it was completely hands off for the Bureau. And that was intentionally, right? We wanted you and your team to be able to have complete authority to direct and supervise that investigation without any interference from FBI leaders. So I'm fascinated to know, can you tell us a little bit about what it was like day to day

working on that team? Was it like working in any US attorney's office or DOJ or did it have a different feel to it? That's so interesting that you said that, Andy. And I suspect that's both a reflection in terms of the FBI's relationship to the special counsel because of who you are and also maybe in part sort of who you are in relation to who director Mueller was, you know, because his, you know, he'd been the director for 12 years of the FBI. So I think there may have been more distance there and more of a sense of we provide you this backup and assistance and personnel and all of that, but that your investigation is your investigation. That's the way it felt on the what I'll call the attorney side.

And as I said, I actually have never had more oversight than when I worked in the special council. And I don't mean from Robert Mueller. I mean, of course, given the nature of the investigation, you would expect that, and we welcomed it. You want that. I mean, I had the same thing when I worked on the N Ron case, you want senior supervision. But when I was in the US turning office, you know, admittedly, I was in New York, where both Eastern and Southern tend to have this sort of, we never really want to hear from Manchester at all. I've never heard that before.

Yeah. I mean, I'm sure you've heard that it's certainly at the FBI side. Yes. Yeah, many times. There's problems that that can create. But I used to joke around that I've never complied so punctiliously with the US Attorney's Manual,

now called the Justice Manual, as I was in the, when I was on the special council, because it's important to remember the way the special council rules work, you're part of the Department of Justice in order for it to be legal. It actually has to be the case that it reports within the department and there is that oversight.

I do think that the deputy attorney general and his staff had a lot of reporting. I don't know how great we were at pushing back at that. I mean, again, I think that that was sort of above my pay grade. I was, I beat myself more of Sir Worker B of, you know, dealing with my particular team and, and moving that along and dealing with having those issues dealt with somebody else. But the, a long way to say is that in the structure that I saw, there actually was quite a lot of interaction and oversight and give and take with the deputy attorney general on attorney and eventually the attorney general's office once once the attorney general was no longer recused. It's really interesting to hear that because from you know, from our I guess fairly unique perspective at FBI headquarters, we had taken those steps to beat distance and.

we had taken those steps to be distanced. And in fact, to communicate to our folks, you're not to report back to your field office leadership. We actually assigned people to the team who could do things like approve financial spendatures and things like that, so that people who were on the team didn't have to go back to their field offices for approval on things. We wouldn't be routing their 302s

to their old squad supervisor and stuff like that. So we just kind of assumed, I know I did, that the same thing would be true on the DOJ side, but I guess what I'm hearing is that it was the opposite. They were pretty plugged in at least at the DAGs office. Yeah, I mean, at the DAGs office, and at the, and then when Bill Barr took over and he was recused at the AG's office,

we didn't, however, do sort of the more mundane reporting. So as under the justice manual, we did have to get certain approvals to do certain things such as when you're going to use a M-LAT, which is a mutual legal assistance treaty, and we're going to seek approval to get information overseas. There's certain people within the department to add to approve it. We did have to get approval, but the way that worked was much more, what I would say is that the work will be level at worked much more like what you just said Andy, which is somebody would be assigned within that function to be our approver or disapprover and they would make the decision and it would not be shared

outside of their office so that we would have to comply with the DOJ regulation but it wouldn't go through what I would say is normal channels to do that. So that sounds a little bit closer to what was happening at the FBI side, but what I'm talking about is sort of true oversight. I mean, and frankly, and not sure it's totally how the rules were expected to work. It is true, however, that the attorney general at the end of the day has the power to say, no, there will not be an indictment here. This is not going forward. Now there's different reporting requirements if that happens, but that that actual structure because we have to litigate it three times in front of in front of different judges when this could special special council regulations were challenged. It's constitutional because special council Mueller was a subordinate officer and just to add a joke.

I mean, we had no end of teasing of the director Mueller that he was just a subordinate officer, which, you know, not something he'd like to hear. But we go around with him, but he under, I mean, we were joking, because he, of course, completely understood that that was a necessary component to this being constitutional. Yeah, that's a joke that you launch at your peril. Yeah. That's a new yard. Oh, Andy, I think you've said this in the past, which maybe Ken's

consumer book, which is as long as director Mueller was joking with you, you knew you were in good graces. That's absolutely right. If you were teasing you, then you knew things were fine. It's when he wasn't that you had to really worry. He really only has one speed socially and that is like breaking your chops. And so if you're not getting dealt with that way, you're kind of getting left aside. So I have a question. And this sort of piggyback on what you were talking about. First of all, I love the reporting requirements. It's one of the reasons I wanted a special counsel to look into these newer investigations in the first place.

But along the lines of talking earlier about sequestration and stuff like that, I was curious. And then we've got a couple of questions for Ryan. But how closely Andrew did Mueller's team follow the political tax, attacks, the news coverage? Did you guys kind of insulate yourself from that? Maybe I don't know. Podcasts about the Mueller investigation. Did you sort of insulate yourself from that? And I'm wondering how that might apply to this particular special counsel as well because now they're expecting it. Now they know what they're facing. And I think that that's actually a big advantage

that they have. Well, we were in, I think it had been former FBI space. I mean, so we were in space where, unlike a US churn in his office, there are televisions everywhere. And, you know, I'm not going to leave the commentary as to that aside. So there was like a television in my office. I never turned it on unless there was some breaking news development, you know, almost uniformly, something about our case where it was going to be important to see.

There were other people who, I don't know how they did it. This would have the news on all the time and I just found that way to distracting. So I was very much in the permit, sort of like just do your job because it was too distracting. I know other people, some people would just be a chance like watching Fox News all the time to see, like, what incoming attacks were being made. So I think it sort of ran the gamut as to how people dealt with that. And I'm really sorry to say that when it came to podcasts, I did not listen to any podcasts at all. You know, and I would say whether it was political or not, I mean, it was political. Yeah, I didn't listen to more things to get my head out of the inside of the ballet just because

of I thought being General Counsel the FBI was a full-time job and this was seven days a week and we were just very concerned about even being seen outside socializing like like going to dinner or having a drink. I mean, there's just an enormous sense of you were just going to be in this bubble and it was very insular. And, you know, I think also you're having been on task force before. It's there also to pluses and monises, but I imagine it must be what it's like when you go to war. I mean, you really do become incredibly close to and trust the people you're with because you're just living in this constant amount of pressure and also you only have each other. Yeah, for sure. It's kind of a commonality in like crisis management situations, right?

You always see a team that manages a really tough event on that 24, seven schedule. They become closer and faster and stronger and better the next time. But it takes an incredible toll on you as well. Could I jump in with a question for Andrew? I'm showing that. Do you think Andrew that the Jack Smith Special Council Office should maybe be different in that regard, because you've written the New York Times up in which you encourage them and Smith to be more proactive in reaching out publicly on particular issues that might be important

to speak on, but I suppose he can only really do that if he's attuned to what is actually in the information environment that he needs to be responding to or against what backdrop that the public understands or misunderstands certain things about his activities or him to be truly engaging and conversant or able to be conversant when he needs to speak. So do you think that that would be also something you would think of as different with the Smith? Yeah, I mean I didn't I wouldn't fault the way we did it. I mean I actually think it's kind of useful for the people like me to just keep their heads down

and not worry about that part of the job, but that's not a luxury that I take to your point. I don't think that's a luxury that the special council can have. I think that the special council needs to be very aware of the public education and communication side of his job. And just to be clear, it's not this is not a black and white issue. This is one where people have to be nuanced and keep two ideas in their head at the same time. And with no offense to anyone here, I take as one sort of life lesson that you don't want to be as something you don't want to do is in my, in my opinion, is you don't want to be, as something you don't want to do is in my opinion, is you don't want to be like James Comey and the Hillary Clinton investigation,

where I thought he spoke too much. And I thought it was inappropriate to talk about somebody who was not being charged. And again, I'm not, I'm sure their pluses and minuses to that. But on the other hand, there's what I'll call the Robert Mueller model, which is not saying anything at all. And I think that you can modulate this in the way that Archbau Cox did, for instance, in the Watergate case where he really explained in a really wonderful press conference that you can still listen to, by the way, on this good part of YouTube, explaining why he was seeking the actual

presidential tapes and explaining it to the public. Now, he could have just let put that in a brief, and he ultimately did put that in a brief, but I thought it was really important for him to explain it in sort of very simple terms. And frankly, not something he would normally say to a court about why you're doing what you're doing. You would just put your legal arguments in. And it was really useful for the public to understand that. When thinking through what's an example of what I think

that Jack Smith could do, assuming that the former president were to be charged, I think it would be really useful for him to explain not why he's guilty. I mean, that I think is, that would cross the line. But why the evidence is consonant with all of the other cases that the department has brought such that he is being treated comparably to other people who have been charged. And it really explains the public why this is complying with the rule of law. I'm making it also clear that there will be evidence

has to be shown in court and all of the things that do process. But I think it's complicated, but I do think that, especially if we're going to go down the road of inditing a former president, if the public is not understanding what the department's doing, I think it's kind of almost doomed at the start. And so somebody has to speak.

And as much as this group is wonderful and really knowledgeable, that's not where it needs to come from. Totally agree. And also, by the way, the other advantage is, so Andy and I have been fortunate enough to work with Robert Moller. He's such a wonderful human being and so has such integrity. And I think, for instance, when Attorney General Garland speaks, in many ways, when you speak, both Robert Mueller and Attorney General Garland can be an exhibit. I mean, they are, they show who they are to the American public.

They're not household names in any real sense. They are to us, but not to the average citizen. So I think being out there in a measured way is gonna be really integral to the role. I totally agree with that. And I share your concerns from our past experiences both with the Mueller approach and the Komi approach, which I feel very differently now than I did when we were

in the trenches trying to figure that out. Although I have to say that it's a different, it'll be a different prospect for this special counsel, depending on what the outcome of their judgment is. You know, if your judgment is that you should not pursue an indictment, then you're really facing the kind of dilemma that that comey and the rest of us faced, how to explain that decision without going overboard and sharing too much and raising questions that can, by definition, never be answered in a court of law. So he's got a lot of,

uh, he's going to have a lot of tough, uh, questions on his, on his hands as he goes forward, but he sounds like a good guy to get it done. So Ryan, I'm curious, uh, is, as a, a Sidious watcher of all these things, and of course, with all the work that you guys both put into on the, on the pros memo, I guess without trying to jump to the end first, one of the things that you guys both put into on the on the PROS memo, I guess without trying to jump to the end first, one of the things that I'm struggling with a little bit explaining to friends and followers of this podcast, like, what does success look like for this special count? So how do you, how do you as a legal watch, define success for Jack Smith and his team? Is it simply indictments and convictions and the normal kind of stat approach that we

think about in day-to-day law enforcement, or is there some other standard of proof that we should be looking for here? That's a great question. I suppose it's the catch word of accountability. And if indeed the evidence supports bringing in indictment that he succeeds in bringing in a successful indictment that results in some significant form of accountability. And I think at some level, even the indictment itself is form of accountability in some significant formal accountability.

And I think at some level, even the indictment itself is a form of accountability because it's putting the justice department itself behind that claim that Trump has indeed done something like put the US national security at risk through the retention of ID class by government documents, which is what we get into in the prosecution memo. I do think that the measure of success, the needs to be tailored to what the imperfections of our system. And one of the things that we do in this prosecution memo, I think that

Anne and I both believe is one of its greatest contributions to be candid is by comparing all the prior cases in which the department has brought charges for at least similar, brought charges for retention of the National Defense Information. And I say at least similar because if you then compare them to the allegations of the reported information and the government's information about what Donald Trump did, his activities are far more egregious than average case by far. And I think it's even hard to think of what

is a more egregious case if you add up all the factors. So, but the reason I say that we have to temper what we think of as accountability and what would count as success is, just even though it is the case that the department has pursued accountability, has brought charges, you also have to, we have to understand the public needs to understand. In many of those instances, it does actually end up in light sentences. Yeah, that's absolutely true. And it fascinated me that you guys did that because that was actually, for me, one of the most persuasive final steps in our investigation of Hillary Clinton's use of her private, private email server.

And we, I remember asking, I won't share his name, but my primary contact at DOJ, that the director had requested a spreadsheet of every similar case, dating back as far as they could reach. And just a comparison of the facts of the case, the aggravating and mitigating circumstances, and what was the outcome? Was that person indicted? Where were the charges proven?

And what sort of sentence did they receive? And when we looked at it across that scope, it was so clear that we didn't have the facts that we needed in this case to even to go forward with the indictment that, you know, everyone was expecting we would consider. So I thought that was a great, a great thing to do. But I guess I, I can't let the discussion of the prox memo go without hitting you guys on one kind of point, which would be intent, right? The the wreckage of so many so many white collar cases generally public corruption cases, Miss handling cases is always that key of proving intent. And because I guess Jack Smith's history with the McDonald case and the challenges they had, this is of course former governor of Virginia, who was tried for a variety of kind of alleged corruption while in office and case went to trial, Jack Smith was kind of overseeing that prosecution, and of course the jury returned an acquittal enlargedly on the issue after being pulled afterwards on the issue. They just didn't feel like the government proved

that he met the burden of proof on it. Ten. Is there the same challenge here? Are we looking at a situation where Donald Trump could ifundite it's essentially say, hey, I was following the guidance of my counsel and they told me that this was fine and I didn't even know what they were saying back and forth in the I just you know whatever whatever and you can't really put my fingerprints on this thing. Well you know what that goes to one of the main drawbacks of doing this from outside of the government which is you know we we only know what's been reported. My We only know what's been reported. My strong suspicion is that we'll be in a situation where if there's a charge, some of the key witnesses on intent will be lawyers who said to the president,

these are not your documents, they have to go to back to the archives that you will have a former White House council saying that. And I'm pretty sure that's what they would say. I mean, these are reputable people. So I think that we may find ourselves in a situation where he may be able to dredge up somebody, appears maybe somebody who's not even a lawyer who says, oh, these are yours, but I mean,

that's just not true. And he'd be stuck coming to a somehow who should prove up that he had a good faith intent that these were his. It's a little hard right now to see what evidence he would rely on other than his taking the stand. And I have to say if he were to take the stand, I don't think it would go very well.

So I mean, I just want to see that. That would be it. That would be an idea. Andrew, well, we know that when the Pats, right, Patsy Baloney, Patsy Baloney and Pat Philbon were testifying for the second time after overcoming some executive privilege questions and were compelled to you know, answer the rest of the questions. They were kind of swapping back and forth.

There were two grand juries going out at the time and we can assume for an outside perspective that one of them was the January 6th stuff and one of them was the document stuff. So I have a pretty good feeling that the former White House Counsel and Deputy White House counsel did testify in this documents case, and did tell them, hey, we told him you can't do this. So I'm interested to see how that all plays out. But just one other question back to this prosecution memo,

Ryan, you were talking about all of the cases that you presented, and McCabe, you were talking about how people wanted spreadshe that you presented and McCabe, you were talking about how people wanted spreadsheets of all of the similar cases when you were doing mid-term exam. And mid-term exam is one of the examples that they use in the Prost memo and how this is different from that. And that's why there was no indictment there. But I'm interested how you would think Ryan how the 11th circuits decision

To vacate judge isleon cannons order because of lack of equitable jurisdiction They mentioned several times in that decision and in the hearing that we have to treat you like anyone else And I think that that sort of really does that sort of bolster the Department of Justice's ability to say look we we No one's above all we have to follow the law on this and that's why we're gonna do that And do you think Jack Smith is the kind of guy that would go down that route that wouldn't be afraid of Some sort of political implication or something beyond what the law in the fact state The thing is such a great question. I in fact it's something I have even been thinking about writing about coming out of the 11th Circuit opinion.

And to see some of the commentators out there, like John Dean and others, focus in on this, the way in which the 11th Circuit frames it as for us to reach a different opinion, we would have to carve out an exception for a former president. As though there's some former president exception for private citizens, we can't do that. We have to apply the rule of law equally. And to me sometimes I think that's such an abstraction. It's not really useful in a certain sense, but I think it is very meaningful that that is a framework that's has grain traction. The 11th circuit, a conservative panel, including Trump appointees saying this Attorney General Garland saying this.

And I think to me at the end of the day, the way in which Trump would escape accountability is if that principle is violated. He can only escape accountability based on the body of evidence that we have before us if the law is not applied equally to him. If there is some kind of exception made. So I think at the end of the day, when Jack Smith looks at the evidence, looks at the law,

it's just some of this is just absolutely clear. It fits like a hand-in-dlove with the the Espionage Act, a Wilford retention of national defense information. And because it's a special counsel, I also think that it's even more likely that what he will do is faithfully apply the facts to the law as his remit, then give that to the Attorney General. And then in some sense, is this open question of what is the Attorney General permitted to include in a question of, you know, threats of domestic violence or things like that or political turmoil within a country and the like, but not for the Special Counsel. And my answer to whether or not the Attorney General

should consider that is no, that's the question of the pardon power, and it's for the president to decide. And Garland should follow through. And his own principle saying the same thing that he will apply to the law to the facts and that nobody's about the law. So I think that is really essential that that does become understood as the prison

through which we should evaluate the case. And Brian, do you agree that both for Jack and maybe even Morseau for Attorney General Garland, given his history as a judge, that the kind of exercise that you and the just security fix did in the Prost-Memo is going to be really critical because it's not just the law and the just security fix did in the prosimmon is gonna be really critical because it's not just the law and the facts, but it's then essentially what's the DOJ precedent for charging this, because if there weren't any,

I would actually be the first person to say, you know, why is he being singled out? There has to be some good reason for why he would be charged when we have not charged other people. Very much frankly, as we did when we talked about some of the more lenient sentences that Donald Trump could be charged and convicted should be able to point to as being potentially comparable. But I think what you think that they will be spending, particularly I think, Garland, a lot of time on DOJ precedent.

Yeah, I think that's absolutely right. Because you could even say, yes, the facts with the Black Letter Law hand in love, but we've never had a case prosecuted under that Black Letter Law. But here we have dozens of cases prosecuted under the Black Letter Law in which people engage in very similar behavior and far less egregious as Trump's behavior. And when I say far less egregious, just to be specific, not retaining the information for a long period of time, not hurting as highly sensitive information, not ever receiving

warnings from the Justice Department and from the archives multiple times that they needed the information back, not defying a subpoena to retrieve the information. All of those added up and you have all this Department of Justice precedents in which they prosecuted cases with far less than that. So I do think it's the big question of treating like cases alike equal application of the long. And to me, it, I don't wanna put it too strongly, but it inexperably leads to a certain conclusion. Yeah, and whatever that conclusion is,

one seems much more likely to me than the other. You've essentially cut to the heart of what we were talking about earlier in terms of what and how likely Jack Smith communicates his decision to the country. That's the theme. That's this idea that we're all the same. We all get treated by the law equally, whether that the conclusion lends to not pursuing an indictment or pursuing one. People should understand that the process was fair and it was the same one. They would be subjected to which is

Really the most important thing and in the long run. Yeah, I agree and I really appreciate you both coming on to answer these questions I highly recommend everybody check out just securities I highly recommend everybody to check out just securities, Prost Memo. It's really great. Earlier in the year, just security put out a bar McQuade Prost Memo on January 6th. And we talked at length about that on my other podcast. But thank you so much for coming and answering these questions.

Former Special Prosecutor for the Mueller team. Andrew Weissman, former Special Counselor, General Counsel at DOD and co-editor and chief of just security Ryan Goodman. I appreciate your time today. Thank you. That's a great conversation. Thanks guys. It's always so great to talk to the both of them.

They're both so smart. They're both so knowledgeable, so that was an awesome discussion, and we didn't get a chance to ask them, Andrew, but I wanted to ask you about it. There was a contempt proceeding that happened this week where Jack Smith, special counsel, went to Judge Braille Hall and said, look, I'm tired of this. We found two additional documents down a storage facility. I'm paraphrasing, by the way. I'm tired of this. We found two additional documents down a storage facility. I'm paraphrasing, by the way.

We're tired of this. We're not gonna mess around like Nara did for however many months. I would like to hold the office of Donald J. Trump in contempt for not basically not putting forward a documents custodian and signing an attestation that they've handed everything over. Not one single person is willing to quote,

put their neck in the attestation that they've handed everything over. Not one single person is willing to quote, put their neck in the attestation noose as it were. And so, I was a little curious as to, I mean, it was a sealed proceeding grand jury, so we don't know much about it. That's the thing. There's limited details about what happened. We know he went in, he asked for it. She said no.

We know that the DOJ is insisting that Donald Trump has additional classified. And we also know that Judge Braille Hall thought that the contempt wouldn't hold, which potentially leaves the door open for coming back later and asking again at some point. That's right. I'm just wondering what your top line thoughts are on this.

Did you ever have any, I mean, I know that at once you were handed over the investigation, there wasn't a lot of FBI contact, but do any other investigations, particularly with classified, were you had any contempt proceedings that were denied? Not specifically, but I have to say, like, I've never seen another investigation quite along the lines of this one, just for this particular issue, right? This, the course of dealing, as they would say in contract law, is just horrendous here. In terms of the government's requests for this information, that is government information, presidential records, classified information, and the Trump team's response, obfuscation, denial, here's something, don't have any more. We looked, there's none left. Oh,

yeah, here's some more. It's, it's really unique. I think that your instincts are, are right on in that this is an effort by the special counsel team, maybe with, you know, a new sense of vigor and sharpness under its new leader, Jack Smith, to say, to really kind of hold them accountable in a way that they haven't been held accountable so far. That said, it's the effort seems to have kind of fallen on deaf ears. It's possible that the judge saw this as, well, wait a second, we had conversations on the record in which the judge strongly encouraged the Trump lawyers to go back and search other locations. They did that. They found documents and then handed them over.

So my guess is it probably felt a little bit to the judge like, hey, you're now penalizing them for actually producing more stuff. But you know, the end of the day, I don't blame DOJ and the special counsel team for not having really any faith in the Trump teams responses and production on this so far. I wouldn't be confident that there weren't more documents stashed away somewhere. Yeah, and I kind of feel like if I were the judge, I'd be like, look, if you have probable cause that he's got additional stuff at a location like Bedminster, then go get a search

warrant, man. Tear it up. Tear up and go, do your work. You don't figure it out. Do it yourselves. Of course, again, man. Tear it up. Tear it up and go, do your work. You don't figure it out. Do it yourselves. Of course, again, paraphrasing and total speculation. But, you know, Ryan Goodman, who, you know, we were just talking to, he, he posited that it's sort of a sign that, that Jack Smith is, is, take is being aggressive on this.

And not sort of pussy footing around, like the National Archives did for however many months. They went back and forth with this team. And then, you know, of course, we had the search warrant and then the Red Weldon, Volope, and all that back and forth that you were just mentioning. So we'll see how it goes. But it should be, should prove to be very interesting

to see if they come back for a contempt or if they come back with a search warrant. We'll soon know. And of course, we will be here next week to tell you about any news that drops. And also, just so you know, we are going to have an episode on Christmas, we are going to have an episode on New Year's. The New Year's episode is going to kind of be a die. We don't expect a lot of special counsel news between Christmas and New Year's, although he did issues. He never know.

A letter on Thanksgiving to the 11th Circuit. But we'd also like on that episode, the New Year's Eve episode, to talk a little bit about who, more about who Jack Smith is. So I'm looking forward to that conversation too. Andrew, it's been great talking to you again. It's been another episode of Jack. Everyone please subscribe where you get your podcasts. I'm Anaheim Gilles.

Alison, thanks. I'm Andy McCabe. This has been a thrill and looking forward to doing it again next week. We'll see you all then. Hi I'm Dan Dunn, host of what we're drinking with Dan Dunn, the most wildly entertaining adult beverage-themed podcast in the history of the medium. That's right, the boozy best of the best baby, and we have the cool celebrity

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