Jack - Episode 30 - Consent Search

Episode Date: June 25, 2023

This week: Judge Cannon has set a trial date, but it’s unclear where the proceedings will be; the January 6th probe continues along with a new witness testifying before that grand jury in DC; findings of the GA investigation into voter fraud; plus listener questions.Do 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

M.S.W. Media. 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! Hey, everybody. Welcome to episode 30 of Jack, the podcast about all things special counsel. It is Sunday, June 25. I'm Allison Gill. And I'm Andy McCabe. So first, we want to thank Brian Greer for speaking with us last week about the SEAPA process or the Classified Information Procedures Act. If you haven't listened to that episode yet, I highly recommend checking it out.

There's lots of important information about what will likely be the next steps in the documents case. And you get to hear it from a guy, total pro guy who spent his career in the CIA litigating those issues day in and day out. So speaking of the documents case, this week we had a magistrate judge granted Jack Smith's motion for a protective order over the unclassified discovery. And then of course Jack filed notice that he's begun production of that material. Additionally, Judge Cannon has set the trial date and it

is unclear whether she'll hold the proceedings, you know, the final trial in West Palm Beach, Miami, or the more conservative Fort Pierce. Yeah. And she said that trial date for August 14th. I don't know that that'll hold. We'll talk about that in a second. But a lot of money that it will not. But. But we also have a lot of January 6th investigation news. That probe continues. We'll discuss the Washington Post reporting this week about early delays in opening the investigation along with new witnesses testifying before that grand jury in DC. And what that could signal about how far along Jack Smith is in the probe. This includes major breaking news about new witnesses, and finally, we'll cover the

findings of the Georgia investigation into voter fraud and how that bears on the special council's January 6th investigation. But Andy, let's start out with the documents case. What did we learn this week? So much. Well, as we do every week, we pick up the pieces and can really kind of make some interesting observations about what's happening.

So really the first thing that happened this week is Judge Reinhart. You're gonna remember him as being the judge who signed the search warrant that enabled the FBI to go in and search Mar-a-Lago last August. Well, Judge Reinhart this week approved the protective order for unclassified materials. So a couple of things are relevant here.

First, this is a very, very standard first step in any federal criminal case. And in fact, what happens usually, and what happened here, is the two sides get together. The government usually drafts the protective order. The protective order lays out the rules around how the evidence in the case that has to be given from the prosecution to the defendant, how that stuff can be handled. So in this case, they said things like, you can only share this information, this evidence

with people who are on the defense team. So that's the defendant himself and his team of lawyers. Trump can't post on social media things that he's learned in the evidence, things of that nature. So the government rights, those rules, and the defendant's attorneys have already agreed to it. So they present the order and draft form to the judge.

The judge really just basically rubber stamps it agrees with the terms that the two sides have already agreed to. Yeah. And one thing that really stood out to me in the protective order, we talked about this a little bit last week that has been approved this week, is that, you know, they said there's going to be, you know, witness testimony, et cetera, et cetera. But of the unclassified production of discovery, you can't, the reason that you can't share this with the public or put it out on true social

or the reason Trump has to sit in a room with his lawyers to look at it and can't take copies with him is because it could harm ongoing investigations and they say plural. So I don't, Andy, I'm assuming they're, like, what other ongoing investigations? If this is it for the documents case, I imagine maybe there are some cross witnesses

in January 6th or the right, I'm like I'm not sure what other ongoing investigations that he's talking about, unless that's just something you put in the standard form to say that this is why there's a protected border, but he mentions that specifically. It is pretty standard language, but for a lot of reasons that are relevant

here to this case. So it's important to remember that even when you're preparing for trial, there is still a fair amount of investigative activity that's still going on. So the government might be identifying new witnesses and interviewing people for the first time. You certainly wouldn't want to have someone publicly exposing evidence like on truth social, that might undermine witness's independent recollections that you might want to have them testify about, right? You never want to like, you know, you never want to poison a witness with information from someplace else. You just want what they saw or heard or experienced. So there's ongoing investigation relative to this actual case. But we also know that in this case, you've got the January 6 case going on. You have all these other

kind of splintery investigative matters that seem to be connected, like potential financial frauds. We have the infamous live golf subpoena that we still haven't quite figured out. So really any of that stuff that's arguably connected to Trump, you could fall into that category of ongoing investigation. So there's a lot of potential here on that count. And I think it was judicious of them to include that language in the order. Yeah, I agree.

Also, aside from Judge Reinhart approving that protective order, pretty much immediately, Jack Smith turned around and filed his discovery production information, briefing on what he's producing. And that says to me a lot of things. First of all, I mean, he was ready to go with everything. And not only is he ready to go with everything, but I mean, some of the things in here, he's got all the testimony transcripts. So Trump has probably presumably now found out everyone who testified against him. That's absolutely right. Audio recordings, plural, by the way, of Trump during

meetings with writers. We only know of one. And that those have been handed over. Trump's own public statements that are going to be used against him in court, which is important. That's a big bucket. There's a huge list of things. Because we know it's a huge bucket. Even this week, he's continued to make really bad public statements. Confessions. Yeah, basically confessions on Fox News that there's a whole file of confessions on Fox News.

I'm sure the special counsel's office. Yep. And he's handing over Brady material. He's made a demand for reciprocal discovery. One, like even he's like not only has he is he handed over the surveillance footage of Walt Notta doing, you know, playing musical boxes, but he's actually said, and to save you time, here are the exact time stamps of the relevant video that we will be using in court. So he's got, you know, you and I talked a little bit about it.

I'm like, do you think he waits and then prepares his whole proce memo first or does he do to have it as he goes along? He's been clearly doing this as he goes along because he waited, he wasted no time. He just, once the protective order was signed, he said, all right, here we're producing. Here's everything we have right down to the timestamps for you. It's all ready to go. And again, this is the unclassified stuff, but it's, it's all still relevant to this particular prosecution and is under protective order. So Donald Trump can't share it.

But again, what struck me, there's a lot of, you know, templated language in this document. But really what struck me is how ready Jack Smith and his team was to just get the ball rolling. Yeah, no question. One of the biggest things that lawyers on both sides try to do over the course of this sort of litigation is to kind of manage their relationship with the judge. And so they're very conscious of not wanting to ask for too much. Like if I make the judge mad now, they'll take it out on me later, that sort of stuff. So I see part of this is being the special counsel team

once this start out on a very solid footing with this judge, like, hey, judge, we're ready. Here's all of our stuff, prepare to head of time. We're not delaying at all. We are not gonna slow this thing down one minute. We're gonna do the opposite. We're gonna try to meet all our obligations immediately and keep the pressure on the defense. Now, the defense, they have a lot of options to do the opposite. We're going to try to meet all our obligations immediately and keep the pressure on the defense.

Now, the defense, you know, they have a lot of options to slow things down. I'm sure we'll see that later. But again, I see this as part of the issue of trying to manage that relationship with the judge. The other thing I thought was interesting is, is good to shed a little bit of light on what constitutes Brady material. Brady is kind of the reference to Supreme Court holdings that establish information, defines the information that the government has to turn over to the defendant. And this is particularly stuff that people who aren't

familiar with trials would say like, why on earth would you want to turn that over to a defendant? It's all stuff that could be good for the defendant. So it's right. Exculpatory information. That's right. And it is a protection for criminal defendants, as is like the Fourth Amendment or your ability to plead the Fifth. That's exactly right.

It protects you from the government withholding any evidence that might help your case. That's right. They can't do that. We saw it in Manafort. Do you remember when he got some additional stuff from Rick Gates? And Mueller was like, oh, oh, oh, we just got some additional testimony from Rick Gates that could be a sculptor under Brady for Manafort. Here we're handing it all over here, here, here, here.

Yeah. And that just protects the case. The Brady laws recognize the fact that the government has many, many more investigative resources than the defendant does. And there, whenever they come across information that's relevant and helpful to the defendant, they have to turn it over. So it's, you know, exculpatory, like you said, could also be information that could mitigate or reduce the defendant's potential sentence exposure or information that you could use to attack one of the government's witnesses when they testify.

So if I'm the government and I have a witness and I know that this witness may be committed fraud, at some point in their life, took a fraud conviction, I have to turn that over. You know, it's not relevant to this case. The defendant's attorney might want to attack my witness on cross examination and expose the fact that they've been convicted once before, essentially, of lying or committing fraud. That's relevant to what they call the witness's truth and veracity, like their history of telling the truth or not. So like all that bad stuff Rick Gates did, the government had to say, look, this guy's

a scumbag. He's our witness. Here had to say, let's disguise this. Let's disguise a scumbag. He's our witness. Here's all of his scumbag stuff. Exactly. And we have to hand that over. And if they don't, that's detrimental to the case. If you withhold Brady material,

knowingly, I mean, that's, yeah, that's. If you commit a Brady violation, that's reversal. So that could, you know, that can reverse a conviction throughout the entire case out permanently. So that the stakes are pretty high.

Yeah, also Some stuff going on with the judge Aileen Cannon our favorite As I said earlier she set the trial date for August 14th of this year folks Not next year It is a rocket docket down there. They get things done very fast. And that is probably the next available date because the government said we would need 21 days. So that's probably the soonest of 21 day trial could happen.

And so she scheduled it. But as Brian Greer told us, former Assistant General Counsel over at CIA, CEPA expert, there's going to be so many motions. And we haven't even gone over the handing over of the classified documents in discovery. This is all just all the unclassified stuff that's been approved recently and production started on.

All of that stuff is going to be litigated behind closed doors with the judge, the DOJ, the prosecutors, the defense counsel, motions and limine, regarding the classified documents are going to happen all behind closed doors. All of that stuff's gonna take time. I imagine, even with the unclassified stuff, Andy, in this motion filed,

or I guess the briefing filed by Jack Smith about what he's starting to produce or what he has produced, there's a demand for reciprocal discovery from the defense team over to the Department of Justice. And I imagine Trump's going to be like, we need 10 million years to hand that over. And so then there'll be a battle about the briefing schedule for that.

And then the discovery. It's a beautiful brief. The best brief tremendous. You've never seen anything like it. What he's ever seen. Yes, it's a brief. It's the best brief. The brief called me with tears in his eyes.

Sorry. Yeah. Um, people have asked me to stop doing the Trump voice on this very serious podcast. I apologize. All right. I'll stop as well. I'm yeah. You're you're taking you're teaching me bad habits.

I'm sorry. I've got to straighten up my game here. I probably won't stop. But you know, those those things are going to take months and months as Brian Greer predicted, and many experts have said, this trial might not start until after the election because of all of that stuff that has to happen under SEPA processes before we even

get to public motions in lemonade, trying to get rid of the cork run notes or whatever, which would trigger that 11th circuit appeal pretty quickly, but it's still going to take time. Yeah, and like I just said, any one of those adverse rulings, particularly against the defendant, could likely launch it into a series of appeals and that slows things down even more. So, yeah, the August 14th is, that's fun to think that that might happen, but it's really

not. Yeah, and I'm hoping that Jack's just like, here's all my things. Whatever you want to object to, just do it in bulk, so we only have to go to the 11th Circuit once, okay? Right. Because we don't have six times to go two months up to an 11th Circuit of Pellet. But I imagine as the 11th Circuit was pretty expedited in the special master case. I don't know why I just said that,

like Christopher Wogan, special master case. Wow, I imagine it would be expedited here too, but again, even expedited 11th circuit quarter, or circuit quarter appeals rulings take two to three months. So it's, you know, it's delay, delay. And we'll see that. And part of that is hard to avoid. They're complicated issues and they have to be researched and briefed and then the

movement submissive readjusts what the words mean. That's right. And then the other side gets to file a response brief and then the moving gets to file a response to the response. So that process really directs out. I think the really interesting question that came up is the one you mentioned about where all this is gonna take place. So as I understand it, the judge has indicated

that she is gonna basically start this case in Fort Pierce, which is where she sets, she is the only judge in that courthouse. It's another kind of satellite courthouse from Miami and that's her home base. So she's going to start there. Doesn't necessarily mean that the trial will be there, but it could. So really, it could be there. It could be in West Palm Beach, which is another slightly larger kind of satellite office, or it could be in Miami. The big thing, though, is wherever the case is, that's essentially where they will pull the jury from.

And when you start thinking about whether or not the local population is more or less friendly to the defendant, that raises some real issues for the prosecution. Yeah, although I will say I doubt that Jack Smith hasn't thought of that. Oh sure, yeah. He seems like the kind of guy like, I don't care where the case is or who the judge is. These are the facts. And I'm gonna, I have the facts, I'm gonna pound the facts, I have the law, I'm gonna pound the law, they can pound the table all day. So kind of a, I mean, kind of a baller move, honestly.

Yeah, I mean it is. And it does not try to play games, like try to get it in DC or a friendlier venue and bend the rules around it to make it happen. Like he's like, no, a crime's happening in Florida. We'll go down there. Judge Eileen Cannon bring it. Fine. Yeah.

He's insulating himself and his team and the prosecution from all kinds of potential complaints and motions and, you know, or even just the appearance of unfairness or rigged the game or any of that nonsense, he's really gone overboard, I think, to address that. But we'll see, you know, it only takes one really committed Trump supporting juror to get in there and- Or judge.

Yeah, and then this case with an acquittal. So, yeah, it takes her pretty high. Yeah, I concur. We with an acquittal. So yeah, it takes her pretty high. Yeah, I concur. We'll see what happens though. Again, this is one of many investigations by the Special Council. We'll talk about more of them, but we have to take a quick break. Everybody stick around. We'll be right back.

And we're back. All right, AG, we have got to move now to, of course, the January 6 case, but that amazing article in the Washington Post this week from Carolinig who talks about, tells the story essentially of what seems like reluctance on the part of the FBI and the Department of Justice to really start the January investigation focusing at the top and this sort of pushback that went on behind the scene. So what do you think about the article? Well, I have my own feelings about this article. I want to start off by saying that the fact that it was delayed to open this case for eight months is bad. I don't disagree with that. I don't think it would make a difference if Trump

were indicted eight months earlier or eight months late. If a Republican gets into office in 2024, it'll be pardoned. So I don't really see, I mean, I understand we want to get this done before the election, obviously, but, but, but being convicted of any of these crimes will not stop him from running for or even winning the presidency if we don't vote. There's nothing that bars him from holding office. Unless, of course, somehow the DOJ goes through the third section of the 14th Amendment, but that's a whole other show.

I would have called this article Trump Holdovers, Sabotage, Opening of 1-6 Probe. That's the way I would have put it, because this seems to be a whitewashing of what Mike Sherwin and a guy named Antono did to folks who were trying to get the fraudional electors scheme opened the investigation into Ali Alexander and Alex Jones and all of those leaders of the Trump, I guess, above the boots on the ground, people. And when you read the article, all of the information in it sort of supports my thoughts here, right? Coony, first of all, J.P. Coony, who now works under Jack Smith, came to Mike Sherwin in February of 2021, a month after the insurrection. And he said, I wanna open an investigation into Alex Jones,

Ali Alexander, Roger Stone. And Sherwin said, no, no, you don't have the evidence. And then Sherwin met with Garland the following month when Garland got there and told him, we're doing a boots on the ground, we're doing a bottom up investigation, we're starting with the boots on the ground, that's the way to go.

Here's where we are with the oath keepers. He didn't allow Cuny to attend that meeting, nor did he bring up the fact that Cuny wanted to open that investigation or that Cuny thought it was predicated. So Garland just didn't have that information. And then it wasn't until November, eight months later, when after a lot of hemming and hawing and delay by Republicans in the Senate, did we get a DC U.S. attorney and did we get

Olsen who is the a NatSAC assistant attorney general. That's the team that would investigate the top of the coup. They didn't even get there until November. But as soon as they got there, Andy, graves put Windham in charge of the January of investigating the fraudulent electors. Brownman from Maryland to do that, yeah. Brownman from Maryland. And then Windom was like, all right, cool. Ready, I'm gonna subpoena all these guys. I want a subpoena stone. I want a subpoena, I need to get Eastman's phone.

I need to get Clark's phone. And Dan Twono told him no. And Andy, you and I talked about this early on in the show. Why was it the Inspector General agents from DOJ that seized Clark's phone and Eastman's phone and Scott Perry's phone? Why? And then the DOJ had to come in and put in a second warrant. We called it the search warrant two step to get what was on those phones from the Inspector General. And it appears that that's because Wyndham couldn't get the FBI or Dan Twono to sign off on these search warrants or subpoenas.

So he went around. This was the work around that him and Graves came up with was we'll go to the inspector. We'll go to the postal inspector. We'll go to the inspector, DOJ inspector general. We'll get them to seize the phones. They had, the DOJ had Eastman, Clark, and Perry's emails and information well before the January 6th committee got them. And I'm not just guessing or going off of the Washington Post reporting. It's an unsealed court filing that shows

when that investigation began. It didn't, the Washington Post here says it didn't, it didn't get opened until May or June of 2022 or April of 2022, but they were investigating it, circumventing the FBI that was being reluctant to allow them to do this as far back as November of 2021. So that whole thing was sort of left out of this article. And also what was left out of this article was Sherwin's previous shenanigans with trying to sabotage the Oathkeeper's investigation. So I'm a little on a different side of this.

Now, I'm not saying, you know, and I've asked, why didn't Merrick Garland, why didn't Windham go to Garland? Why didn't somebody go to Garland and say, do what's going on? We can't get any, we can't get search warrants, we can't get this. And, you know, why wasn't Garland and say, do what's going on? We can't get any, we can't get search once, we can't get this. And you know, why wasn't Garland more hands on there or have a bigger sense of urgency or put more resources into this?

And that is a problem. And I have long criticized that. But I'm afraid that it wasn't the Department of Justice. It wasn't Garland who was saying no to these things. It was the FBI, Dantono, and Sherland, who was saying no to these things, it was the FBI, Dantono, and Sherwin, who was the previous DCUS attorney. So those are kind of my thoughts. And I was wondering what you thought about that, because when I talked to Pete about it,

he was like, well, that kind of stuff generally, you know, if Wyndham couldn't get a subpoena or whatever from Dantono, that's not the kind of stuff that goes up to the attorney general. It goes up to the Graves, the US attorney, and then they figure out, oh, what would just go to the IG or something like that. But it seems like there's a lot that Garland didn't know. It does. I have a lot of concerns with the stuff in the article, and I should, to be fair, I've been the subject of articles like this before when I was leading the FBI, and I should, to be fair, I've been the subject of articles like this before when I was leading the FBI, and I know that what actually happens in meetings

is not as hardly ever accurately reflected in articles about meetings and decisions and things like that. There's always more to the story than what we get in the reporting. That's just the nature of things. It's not to say it's bad reporting. But with that caveat that there's probably more to both sides of this story, there's a couple of things that really caused me great concern walking away from it.

The first and most kind of remarkable thing to me is the absence of Chris Ray in this whole process. So the article makes clear that there was a decision made at headquarters early on that the Washington Field Office would handle the January 6 case and that headquarters would not get involved. Then that's posed as some sort of like, oh, this is a great correction from the many mistakes made by the prior regime, IE, me and my colleagues, of having a strong headquarters involvement in the biggest most impactful cases,

which I should add, which is a long, the entire history of the FBI is basically that, right? The biggest, most impactful national, international cases, whatever, are typically managed pretty closely by headquarters. But I'll put that aside for a minute. Chris Ray, by my count, went 22 months without getting a briefing on January 6, according to this article, if that's true, this is the FBI director doesn't get a briefing on

what the FBI itself says is the largest, most complicated, most significant case in its entire history. There is no logical explanation for that. Combine that with the fact that they've basically pushed the entire thing off on the Washington Field Office, which is led by Steve Dantuono, who, you know, I was a little bit surprised when I found out he was running the office. I'm really not sure what sort of experience Steve has with hands-on management of large complicated criminal or national security cases. Yeah, and I just want to throw this in here during Durham's testimony this week in front of Jim Jordan's House Judiciary Committee. Jim Jordan spent several minutes praising Dan Twenthal. So that makes him sus to me just based on that.

He's done a bunch of sus things, as my daughter would say. He, Steve Dan Twenthal was the guy that got up in front of the country on either the day over the day after January 6th and said the FBI had no information to indicate that there be any hostility or something. I don't remember how exactly phrased it. He basically said the FBI knew nothing. We now know that that was absolutely not true. In the many of the January 6th defendant cases through the course of discovery, like the

kind of discovery we were just talking about here, we now know that there were numerous FBI informants who were in touch with the oathkeepers, the proud boys and others and talked about the planning and things that were going on. So, um, so that's Steve Nantuano. We also know Steve Nantuano notably went in and gave, I guess, private testimony to that Jim Jordan committee and said a bunch of very critical things about the justice department. He has, he's the guy who allegedly refused to execute the search warrant for Marlago until he was essentially forced to do it. He seems like up the bottleneck, right?

You seem like a bottleneck. Right. If you have a leader of the field office who's really kind of out of step, at least with the way the Justice Department sees the investigation in the case, and you also have no involvement by the deputy or the director, the director of the FBI, or the deputy director of the FBI. That's a situation where you could get a really lackluster response to a case that needs to be investigated through.

And I'm not saying that the FBI didn't investigate January 6th, they did. They did a very aggressive and thorough and complete job of going from the ground up, but they waited a long time before they turned their investigative focus to Donald Trump and the people around him. And it wasn't until... And it wasn't even until Graves got there, sorry, I didn't know you. That they were able to nail down the Oathkeeper's Citizens Conspiracy case because Sherwin messed it up.

That's right. So, yeah. You know, the danger there is you lose time, you lose evidence, you lose memories, you lose track of people. That is not a good idea for any investigation. So I have a lot of concerns about that. I also think that, I mean, again, trying to be fair here, a lot of the meetings that are referred to in the article at DOJ and other places where they're talking

about should we shift the focus to look at the bigger fish that targets up above and decisions are ultimately made not to do that because DOJ and lawyers involved decide maybe there's not enough evidence to open particular cases, those are very hard decisions and reasonable people can differ about them, right? It's not unreasonable for, and it's, in fact, very common for the FBI to come in and be pushing things and say, hey, we want to open these five cases and DOJ pushing back and saying you don't have quite enough predication to do that.

And that's a frustrating at times, but still a comfortable tension between the two entities. It kind of keeps things in a reasonable balance. Here, it's totally different. Like, eventually you have to, Jay screaming, here take the search warrant, please go do something. And the Bureau seems to be really reluctant.

So my question is, is that reluctance based on one person's, whatever, poor judgment, bias, view of the case, maybe, maybe in the, that's the role of the guy who's leading the charge from the Washington field off of C.V.20, or is this the very foreseeable result of an agency that has been relentlessly under attack for five years, being dragged through the woodshed time and time and time again for decisions that were made in 2016 and 2017, all of which have been validated, by the way, nevertheless,

let's put that aside. This is what happens. These sorts of baseless attacks about politicization in the FBI raise the threshold of how decisions are made and how investigations are pursued because people don't want to become the next me. Nobody wants to be fired and publicly drag through the mud and humiliated and investigated by one entity after another, after another, after another, and John Durham's of the world and your bill bars going out and tell the world, you know, what terrible things the FBI did. Now we're going to go investigate them.

All of that stuff has a corrosive impact on the people in the organization who very reasonably conclude like, I don't want to be a part of that. And even unconsciously, I think it causes leaders in those meetings around those tables to really question, double question, triple question, whether or not they could or should go forward with a particular matter. And that I think can end up being a very dangerous thing for the country. Ah, yeah, that's what I think. And I agree, even if it's the one or two guys that are bottlenecking it, using that as an excuse, it's a very real threat to the actual agents and analysts on the ground.

Like when I think of the National Guard being delayed, being sent out and I think of Piot and those guys, like five guys in an office on a telephone saying, we don't like the optics since the George Floyd stuff. I'm like, really is that the reason, but it can be used as an excuse and I 100% agree that the relentless attack. I mean, think about you're in the FBI,

you and 30 of your friends are being criminally questioned by John Durham special counsel. Thank you very much. After he's sipping scotch with Bill Barr, the attorney general, and you're like, is, you know, that's going to have a chilling effect. And that's actually the purpose of the relentless attacks on the intelligence community and the FBI coming from Donald Trump and his ilk. So whether it's one guy using it as an excuse to sabotage stuff,

because there's a lot of stuff that Dan Tono threw a wrench in, to be honest. And I don't know if it's really because he truly is afraid of being investigated by Durham or a combination, but he can certainly use that as an excuse because it does impact everybody else. Hey, it could be something as simple as the message he got from the seventh floor, the director's office at the FBI was,

don't use caution, use triple caution before going forward on these political cases. We don't want to subject this organization to the same sort of scrutiny as we have in the last few years. So be careful, be double careful, be triple careful. And that's enough right there to change the battlefield in terms of is the FBI doing its job enforcing the law against everyone, including the political class in an equal way. And the more you shift that balance,

the further away from that, you get. It's really concerned, I like this, this idea that, oh no, we're gonna do this like an organized crime case. We're gonna start from the bottom up. I got news for you. I did nothing but organized crime cases for the first 10 years of my career.

Organized crime cases aren't run that way. Yes, you look at the little fish because they're the people who you can develop into witnesses more easily than, you know, the head of the family. But you also target the head of the family from day one, from the very beginning, with things like Title III, electronic surveillance, undercover operations. Because you don't just go start with Joe on the street doing hand-to-hand deals on the corner, you've got to go at all levels. You have to keep your eye on the price. So the fact that they were satisfied with,

let's just look at people for trespassing and not worry about whatever, Donald Trump might have done. Um, that's not how any case, certainly not how an organized crime case is investigated. No, and Cooney wanted to do it that way. In February of 2021, got shot down. Windom wanted to do that when he got there and Graves, when he got there and Olsen, when he got there at the end of 2021, got shot down.

They had to circumvent. They had to go around and use the inspector general to seize the Eastman's phone and Clark's phone. So it's a good piece. I think it's framed, I think it could be framed a little bit better. These, I think, you know, anyway, we can have discussions about this for a very long time. I'm not saying that it was cool that it took eight months

to start this investigation by any stretch, but you know, people just laying the blame, putting up a chiroin, DOJ, twiddled its thumbs for eight months. I don't think it's accurate. I think there's a lot of nuance here. I agree. I think that's an overly simplistic analysis. There's a lot going on here. I think it's important that we get to these things. And I think it's a good piece for that reason. And I'd like to see more reporting on these lines for sure. Yeah, and we do have some new reporting today in the January 6th Probe, but we have to take another quick break. Everybody stick around.

We'll be right back. All right, everybody. Welcome back. News today, we have New Testimony in the January 6th probe in DC. That is, that grand jury is still working. Now, you know, last week, Andy, we talked about the two Nevada fraudulent electors that testified. Well, this week per NBC, Gary Michael Brown was seen entering the

prettyman courthouse where the January 6th grand jury meets. He is, he was the deputy director of election day operations for Donald. He helped coordinate the fraudulent electors. He helped put pressure on state legislatures to, to turn in fraudulent slates of electors. He's also repped by Stanley Woodward. I mean, who isn't, really, at this point? He's got an employee of the month plaque up in the bathroom at Mar-a-Lago, I think. He is paid for by the Save America Pack. And Andy, you and I discussed the possibility. I said, you know what, if these guys are coming in now,

these guys had their phones seized. If you're coming in to testify to a grand jury, I don't feel like you're a target, I feel like you're a witness. I feel like these guys have flipped. And, you know, I think you were like, yeah, I mean, generally, you don't bring a target in, and these are lower level folks in the fraudulent electors scheme.

But we just got news today from Polans and Reed, Polarietit, CNN. Those two Republican fake electors had received limited immunity. They had come in to testify earlier in the spring with all of the hundred or so fraudulent electors. A bunch says, well, some of them, a handful of them said, I'll take the fifth. And apparently, Jack Smith said, nope, immunity, you got to come in now by the end of this month. I mean, he's putting timelines on this and getting it done. And it seems to me like, these are the stragglers. These

are the last little bits of information that he needs, opposed to the people who cooperated voluntarily, like the eight fraudulent electors who wanted immunity deals down in Georgia. So I think that's sort of where we're at. I think that's a fair assumption. And that is, you start out in front of your grand jury bringing like basic fact witnesses, victims, people who were there, saw who shot John, that sort of thing. And then as you get deeper and deeper into your investigation, you really start to identify those people who could really provide key testimony. And many of those people are facing potential charges

themselves. And it is, you know, it is that possibility of being charged criminally that causes those folks to go in front of the grand jury and evoke their Fifth Amendment right, which they have every, you know, they have every right to do. So I do think that as you see them coming back now, this is the end of a process. It's obviously like everything's more complicated than it looks. It's not just about like saying, okay, I am here by immunize you, get in tomorrow. They've been interviewed for days

by the prosecutors and the agents back in the office. These are people who have been told, this is what we're planning on doing and they've indicated a willingness to go along with that because you want someone who's going to ultimately testify willingly, like even if it is under a grant of immunity, you want someone who's gonna be there, tell a story fully, completely with detail,

and make sense, and all that kind of stuff. You don't want a hostile witness. So they've probably looked at all those people who were potentially chargeable, picked out the two or three that are most, they think could be most relevant till that's, you know, had the best access, best, you know, were in the right positions to hear

and hear the right things and talk to the right people. And then they developed them as witnesses and this is then how you get them in front of the jury just to nail down the testimony that you already heard back in the office. So it's probably what's going on here. Yeah. And CNN reported also that at least one other witness has spoken to investigators in the past two weeks outside the grand jury with an agreement that the person would be protected

from potential prosecution. At least half a dozen witnesses have testified before the federal grand jury in DC over four days in the past two weeks. Half a dozen in four days, because they meet twice a week. Yep. In recent weeks, the special counsel's office has also shown interest in several members of Trump's post election legal team, who promoted baseless claims of widespread voter fraud, including Rudy Giuliani and Sydney Powell, as well as Jeffrey Clark. So a lot of these questions are swirling around those folks. And finally CNN mentions that prosecutors have also continued to focus on potential financial

crimes and money laundering after Trump raised millions of dollars off of false claims that the election was stolen. You and I have been talking about this pretty easy fraud case. Right. Yeah. For sure. One former Trump campaign official who testified this month before the grand jury was asked about specific campaign ads and messaging produced as part of those fundraising activities.

I mean, that all goes right to the heart of an alleged fraud. Right. And that is one way that you can take a group of people who are by their own account, I'm sure, providing legal advice to Trump and as he navigated the quandary of legal challenges of the election and kind of separate them out from that. We're not going after you for the legal advice you provided. We're investigating you for having been a co-conspirator in this fraud to raise money off of fraudulent

claims. You knew there was no validity to these statements. They were used in these advertisements and you collected money as a result of that. So it's a pretty heavy hammer, especially to bring at a bunch of attorneys who typically to see themselves operating under the cloak of attorney-client privilege at all times. Yeah, and I wonder if these fraudulent electors, like, for example, the Nevada guys that were recently testified last week, the two Nevada Trump electors were given limited immunity. The state's Republican Party chairman, that's Michael McDonald. We talked about him and Jim DeGraphenread. They both testified. They spoke to the grand jury about the actions

of Nevada's former GOP attorney, General Adam Lacksalt and Jesse Benal, a lawyer who worked for the Trump campaign in Nevada. So it's unclear as to whether these fraudulent electors are part of a larger investigation into Donald Trump himself with his pressure campaign to state legislatures to hand over fraudulent electors, or if they're simply building cases against Rudy Giuliani and Eastman and Jeffrey Clark, and then maybe going up from there, it's unclear also whether Jack Smith is going to charge the money laundering, you know, big lie thing separately from the fraudulent electors thing separately from the incitation of the riot at the Capitol separately from

Trump's Pence pressure campaign separately, or if he's going to roll this all up into, I don't know, a Rico. I mean, it's hard to know by just the little bits of crumbs that we get coming out of just seeing people headed toward a building to know exactly what's in his head if he's going to wait and charge everybody at once, if he's going to start charging Eastman first and Clark and then rolling up from there, like Mueller did, it's, well, Mueller was never going to charge Trump, but you know what I mean? Yeah. It'll be interesting to see. I think that's, I don't have anything to base this on,

but it feels like biting that, you know, swallowing that entire burger with the first bite would be hard to do. You gotta imagine a case that comes on very, very strong charges if the Marlago case is any example, it's gonna be a speaking indictment, and it's gonna be based on scientists' empty accusations. It's going to be based on verifiable fact, but I would expect it here with the diversity

of potential charges that it seems that they're looking at. It will be a situation where you see that initial indictment followed by numerous superseding indictments that add defendants or add charges to what will end up being a very, very large and complicated case. Yeah, and definitely large and complicated, whether he does it all at once or puts it out in a piecemeal, we'll see. I have faith in him though, I think he's a great prosecutor so far from what I've seen in the Mar-A-Lago documents case, and he's pretty speedy, so who knows when we could start seeing that? It could be any time between now and the end pretty speedy. So who knows when we could start seeing that? It could be any time between now and the end of the summer. I would imagine. Any day could be, I could be getting the call. Get down here.

In fact, Andy, 10 minutes after we're done recording this episode, how many coasts it down in the couch? We're going to get, we're going to get, they're voting. and we're gonna get, we're gonna get, they're voting. They're voting. I'm going to go to True Bill. I got the time. We'll have to. We'll have to. I was like, it's gonna be another week.

And then next day. Yeah. Then we'll have to record another second episode for the second week in a row. I want to talk a little bit about a couple of just wrap up things that's going on. Some evidence that will help in January 6th case. Somebody else who is cooperating with the government today that could be relevant.

It's a little hard to tell from the cooperation agreement. And then we want to take some listener questions, but we're going to take one more quick break and we'll be right back with that. Stick around. All right, everybody. Welcome back. Andy, just to kind of piggyback on the last thing that we were talking about, massing all of his evidence that Donald Trump knew that there was no voter fraud, particularly when he's trying to defraud donors to the non-existent election defense fund or the Save America pack. Raffins, no, the attorney general in Georgia came back with, they've done an exhaustive

investigation, particularly into voter fraud in Georgia, the suitcases claim that Rudy makes. The suitcases of ballots. Yeah, the Rudy video, right? Yeah, and I was there in the committee room during the January 6th hearings when Shay Moss testified, and Ruby Freeman was there. That was just heart wrenching.

I remember Harry Dunn getting up afterwards and making a beeline right for Shayoss, giving her a hug and saying thank you for telling your story. You know, that's bravery, you're brave. And I know this would have a lot of bearing on the Georgia, Fountain County, Georgia case. I know we'll have a lot of bearing on Shemoss and Ruby Freeman's defamation lawsuit against Rudy Giuliani. But it also, I think, bears on Jack Smith's January 6th or at least wire fraud investigation in that it is yet another exhaustive investigation as to whether voter fraud happened or not that shows that it did not happen. I mean, the stack of proof against voter fraud just keeps growing. And I'm a, I assume

he might subsume this into his, um, his arsenal of evidence as well. Yeah, it's, it's a way of kind of slamming the doors shut on what could be brought up by you name the defendant and any one of these January six related cases. It's a way of kind of, you know, having that card to play, let's say Rudy Giuliani gets charged at some point, whether it's in Georgia or in federal court, and his defense is, well, I really thought there was, I'm telling you, there was fraud, I saw the video, there's fraud, there's fraud, there's fraud. They could then turn to the results of this other investigation and enter that as evidence. They'd have to have someone come in and testify from the attorney general's office, but that's pretty easy to do. And they could

really kind of slam that door closed right on that defense. So it's definitely a good thing for him to have. I think it's a really good thing for Fanny Willis to have before she goes forward with her case. Yeah. Along with folks like BJ Pack, who wouldn't say he was like, we looked at this, there was nothing. That's right. And then he, you know, so there's just so much, so much evidence that they knew. And this is just going to add to it. And then we're going to get to listener questions in a second,

but I have a question before the listener question. Andy, because I saw the weirdest thing today, Owen Shroyer, who is Info Wars co-host Alex Jones' right-hand man, he was at the Willard in the War Room on January 5th and January 6th. He was in the Friends of Stone encrypted messaging group. He had a deal. I'm not in that one. I'm just really a friend. He was wondering. Whatever deep state. I know what you're. He, uh, that would be actually deep state. Um, he, he, he, uh, he kind of deal with the government. Uh, today they, uh, I guess, uh, alleviated him of a few felonies in favor of pleading guilty to a misdemeanor.

And when I looked, I'm like, oh, he flipped. He's got a cooperation deal because there was a minute order a few days ago that said he was, they were changing his, I guess, what's I call a status of adhering to a change of plea hearing. I'm like, oh, maybe he's flipped. And then we get this thing. Here's the cooperation agreement. I finally look at the cooperation agreement. And it's really narrow. And I'm very confused.

Because generally, if you give up a couple of felonies and let somebody plead down to a misdemeanor, you're getting a full cooperation out of that person. I've never seen this sort of cooperation. Can you read? There's only one sentence here, what he has to do in order to get this deal? Yeah, so the sentence is,

it's very conveniently written under the heading of cooperation with additional investigation. So that kind of draws your eye right in. And it says, your client agrees to allow law enforcement agents to review any social media accounts operated by your client for statements and postings in and around January 6, 2021 prior to sentencing. Meaning he has to grant the agents that access to those accounts before he's sentenced on this Mr. Meanor that he played guilty to.

So that is the sum total of the outstanding bill he has with the federal government, which is remarkable because I've never seen one like this. Typically when you sign someone up as a cooperator, as a whole process that you go through. You start with proper sessions where they tell you everything bad they ever did. Also, those are frequently referred to as queen for a day because you can't actually get charged with anything you say in that session. And then you come to an agreement, okay, this is the charge or charges that you'll plead guilty to, but you're obligated to cooperate with the government. And the cooperation piece has always written very nebulously.

Like, basically, you have to meet with the government, provide information, and testimony. That can involve testifying in other trials and things, wherever and whenever the government wants you to. The government really holds a lot of leverage over you for an undefined period of time. And you don't get sentenced until the government decides

that you are no longer of use to them and anything. This thing is the opposite. It's like, all you gotta do is let us into your Facebook account apparently before you get sentenced or whatever other social media. Yeah, that's what it says, right? So social media acts, we get access to your social media accounts. I immediately go through the entire document and look for the government's definition of social media. Yeah, that's what it says, right? It's a social media act. We get access to your social media accounts. I immediately go through the entire document

and look for the government's definition of social media. Yeah. Does it include signal? Does it include WhatsApp? Or is it just Facebook and Twitter and Instagram and Telegram and put like, it's truth social on there? So, but and at first I was like, well, this is bullshit.

Like, why, who cares? You know, your Facebook posts are public. They must already have those. But then it occurred to me that if they have access to his social media accounts, that includes the private messaging that happens. And I was like, aha, because that would include any messages he sent to anybody via Facebook,

whether it's a Facebook Messenger group or a telegram messenger group that to anybody on or around January 6th. And that then could include people like Roger Stone and Ali Alexander and maybe some other folks are looking at because it didn't make sense to me just to get some Facebook posts to find and get his other co-rieters that day. You generally don't give a plea deal to somebody to get a lateral arrest of another co-writer. No. It seems like you would go up from there. And so I think that, to me, that makes more sense. They clearly have a compelling interest in his communications on social media. And as you said, that wouldn't, that interest would go beyond just like,

who were you standing next to when you walked up to the Capitol? It's gonna be, he's interesting because he has access to people like Alex Jones and others. So that's probably what they're looking at. It's just a weird way to do it. It's almost like a consensus. It's like, if you imagine he had exposure in a criminal case, that was basically based

on his presence on the Capitol during the riot, right? And so they charge him with a couple of felonies. They end up pleading down to a misdemeanor. That has happened to many, many defendants so far, many of whom probably didn't have to cooperate at all. But keep in mind, like if what they really are interested in his communications with these other people, even in the days leading up to January 6th, they probably wouldn't have had probable cause to get a search warrant for those accounts. So they're not going

to get cooperation from Roger Stone and Mike Flynn and Van and then. This is a way to get to that content through this guy as part of his plea agreement. Now, there's another way you could have done it. You could have just said to him, hey, we'll plead you out. But first, you got to sign this consent to search. And we want to review all your accounts before the plea even goes through. I mean, I would have done it that way, because who knows what happens after the plea goes through. but it seems like that's their goal here. What they think is important about this guy is his communications with other people, and this was a way to get at those communications. Not really easy to say exactly what people they're interested in, but when you look at where

he comes from and who he hangs out with, it's a pretty interesting list. Yeah, and I would imagine that the DOJ here doesn't really know what they're looking for either because if they did know what was in there and they had probable cause to know what was in there, they probably would have been able to get a search warrant to get at what was in there. It's a bit of a fishing expedition via a plea agreement, which is I've never seen that done before, but great, good for you. Wouldn't you do the consent search? expedition via a plea agreement, which is I've never seen that done before, but great. Good for you. Wouldn't you do the consent search?

Right. It just seems like I bet there's some really juicy stuff in there. We don't have enough proof to get a search warrant, so we'll plead you down if you let us in. It's going to be interesting. It will. All right. All right.

So we do some questions and then wrap this one up. Yeah. That sounds good. All right. So the first one is really just to tie back to a topic we talked about, I think last week, we talked a bit about sentencing. And this question comes from Joe. Joe says, I find it hard to believe that the penalty

for illegally retaining a one-page classified document is the same as it would be for retaining thousands of pages of classified documents. Do I understand the law correctly? It doesn't make sense to me. Well, Joe, you have it basically in substance. So the example you've given, it is there's a very big difference between having one document,

one page long, or having thousands of documents that are classified. And that difference would typically be played out in the way that case was charged. So it's a big difference being charged with one count of violating the SBN Aj Act or a thousand counts, right? But it is true that if convicted on all those counts, no matter how many you're facing, it's likely, especially if it was part of the same unlawful retention of classified or national defense information. It's likely that the sentence you received for each one of those counts would be served

concurrently. So yeah, it seems, you know, you were convicted of, let's say, oh, I don't know, I'll pick a number at random, 31 counts of violating the espionage act. How random. If you're convicted on all 31, it's likely they'll, you know, you can get what is a 10 years, I think, as the max. It's 10, but also there are actors in that as well. Right.

So it's not just limited to 10, and we saw that in the sentence and guidelines we went over. Right. As you, as you noticed, it was 17 and a half to 22 years. And that is because of the number of classified documents. That is right. And because he was a leader and because he obstructed. So there's other factors that bring that number up a little bit above the maximum.

Even though you'd be sentenced, probably concurrently, the sentence that you receive would reflect, to some degree, the number of documents that you had. It's complicated math, but it's not quite as absurd as it seems in your question. That's like getting a VA disability rating, you know. Yeah. You got 10% for your left foot, 10% for your right foot, 50% for your brain, and somehow that adds up to 33%. You see, a 30%. You can't figure it out. It's the government. Nope.

Nope. All right. So last question, and this is one, I didn't get a name on this one, but a listener writes an Andy, when you appear on CNN, where do you draw the line between giving law enforcement perspective and a pining on politics? That's a great question. So I'm, I'm, I was very clear when I started with CNN that I was not interested in doing politics or political commentary that my my where I come from is law

enforcement and intelligence and I think that's where I can help people understand those issues and comment on them. So I really try to I try not to appear on panels with people that I know are going to be like really very focused on politics, which is fine. That's part of what CNN does. It's just not really my thing. The work that gets a little tight is, you know, I feel like, especially on a criminal matters, I can maybe shed some light on like how investigations happen, how prosecutors make decisions, why some evidence is more important investigations happen, how prosecutors make decisions,

why some evidence is more important than others, or in the case of an accused person, why certain conduct is maybe more easy to prove guilt, or flagrant, or what have you. Where it gets tight is that there's so much criminal commentary to provide these days on political people. Speaking of course of our former president, Trump, and many of the folks around him.

So I try to keep my commentary on the criminal and investigative relevance, but it invariably puts me in a position of having to address his alleged conduct, like for instance, in the documents case. And I do, so it's my opinion that it's a very strong case. And I think it's likely he'll be convicted. And just what we know so far shows that he did many, many things that he should not have

done with some very sensitive material. Now just because I'm saying a negative thing about the conduct of a political person, I don't believe that makes it political commentary. So I'm fortunate that political people get involved sometimes in criminal matters, but you got to call it as you see it. So just like whether you decide to open an investigation or not, if you didn't make those comments, that would be a political consideration. And you know, I think it's also just, they're always going to on the on like people like Jim Jordan are always going to say, you are politicizing the DOJ,

you are weaponizing the DOJ just because you go after facts, right? Or people. It just so happens, your party is breaking the law more often. I'm sorry. I mean, it is what it is, right? And I'm sure that over the arc of time, those things even out you can look at DOJ and the FBI and see a pretty even Stephen approach to one side and the other. But if the DOJ or the FBI stops investigating or opening cases because they're wary of doing work that involves or targets political people, that's the politicization of the Department of Justice and the FBI that we should be really, really concerned about. I never saw that in my work.

But anyway, I don't feel like pointing the finger when the finger is deservedly pointed is a political act. Yeah. No, I agree. And that takes us back to that Carolina piece and then Washington Post with some of the some of the reluctance within the FBI to get things done. That's right. All right. Well, thank you so much for your questions. If you have questions, you can send them into hello at mullersheywrote.com, put Jack in the subject line. Otherwise, it'll get lost in the shuffle.

And we'll answer your questions. Andy, do you have anything else you want to talk about before we get out of here and find out that indictments are going to drop ten minutes after we're done recording? No, I just want to get off this recording and run away before that happens. I'll be, I'll be, so we be doing something fun instead of reading another indictment. Now, I'm just kidding. I look forward to all the indictments that are coming and no doubt they're on their way. And we will be right here, dicing through them and examining them with all of you.

And I look forward to doing that. Yeah, me too. Everybody, I've been Allison Gil. And I'm Andy McKayne. We'll see you next week, or maybe later tomorrow on Jav. Stop. M-S-W-Media. Media.