Jack - Episode 32 - The Education of Aileen Cannon (feat. Brian Greer)

Episode Date: July 9, 2023

This week: Allison and Andy are joined by former CIA attorney Brian Greer to talk about the handling of classified documents by the court in the Mar-a-Lago case; DoJ and Jack Smith have been investigating Trump’s plans to seize voting machines; Jack Smith subpoenaed the Arizona Secretary of State’s Office as recently as May; Rudy news; plus listener questions, and more.Follow Brian Greerhttps://twitter.com/secretsandlawsDo you have questions about the cases and investigations? Email [e-mail] and put Jack in the subject line.OrClick here: https://formfaca.de/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AG on Twitter:Follow Mueller, She Wrote on Posthttps://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 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. Monday, July 9th, and I'm your host, Andy McKibb. Hey, Andy, I'm Allison Gill. We have a packed show today, as we ask every week, what could possibly happen this week? Well, a lot has happened this week when we have newly reported details about Rudy Giuliani's two-day proffers session with prosecutors. We have newly unsealed portions of the Mar-a-Lago search warrant, Afe-David, and New Sapinas for Arizona officials. Yes. go search warrant, affidavit, and new subpoenas for Arizona officials. Yes, and we have a DC disciplinary panel recommending the disbarment of Rudy Giuliani, and reporting on another member of the Ocha Nosra being brought back in for questioning.

But first, first, AG, we have a new segment on the bottom. So excited about this. segment on the bottom. So excited about this. We are bringing back a former assistant general council for the CIA and C. But expert Brian Greer and this segment is going to be called your seal. Brian, welcome. Tell us about this new segment. I'm so excited about it and what you have for us today. Yeah, thanks for having me. You know, this is an idea that we had together, I think, where we're going to enter a new phase in the case where we've been very spoiled today. We had this litigation in August and September, which gave us sort of unprecedented access

in insight into a criminal and national security investigation that's probably never happened before. And even now with indictment, we've had with the speaking indictment that all the detail we've learned all these details. But we're going to go into a darker period of the case now where everything is going to go into a classified setting. There'll still be a lot of stuff happening on the public docket, but there'll be a whole secret classified docket going on that I think will be a mystery to most of your listeners.

And so what I'm hoping to do is, Edgie gave me my experience from the CIA, working with the Department of Justice on these cases to educate your listeners about what's sort of going on behind the scenes, what are these mystery provisions of SEPA that you may be hearing about. And as we go through each new phase of the case, we'll do a new segment and explain what's really happening. This is so awesome. You're going to shine a light

into that dark part of the case that continues to churn away, you know, outside of our, outside of our vision. So really appreciate you for doing that. Sure thing. Yeah, so what are, what are we looking at first here? Because you know, Andy and I went over some of the recent Department of Justice filings about the classified CEPA stuff and the schedule that he's outlined for how he sort of Jack Smith wants the process to go up until December 11th, which he has asked for a delay for the trial

to start in December. So looking at some of these filings, what have you noticed? What are some of the things that stand out to you? Yeah, well, I've referred to this phase of the case as the education of Judge Aileen Cannon, where, you know, back during the litigation in August and September, Department Justice, I think, was caught a little flat footed, didn't realize how inexperienced she was in dealing with classified information, and probably was a little late in educating her on some of that. Well now they get a second bite at the apple with these initial filings under SEPA.

And the first thing they get to do is have this hearing, which is going to be held on Friday, July 14th, which is called the SEPA section two hearing. And the purpose of that is the government can request it and so can the defendant. And they'll talk about Juan, they'll just talk to her about the issues that are going to be upcoming in the case, just to sort of preview the classified issues. But specifically, they're going to talk about the CEPA schedule. And we've already seen that from the defense,

or the Department of Justice's proposal. I think as of Monday, we will see the Trump team's response to that, and then we'll get a hearing where they can hash that out. And what this section of CIPA does is it actually forces the judge to have this hearing. It actually says that the judge shall promptly hold the hearing when requested by the government. And so it forces the judge to actually sit down and map out each progressive phase, leading up to trial. It's not really about scheduling the trial itself, but everything before that.

And that's what they're gonna talk about next Friday. So we're gonna get our first look really at what the runway looks like to get to this trial in terms of time, is that right? That's right, that's right. The prime of justice is already laid out what they think that should be. That's a great litigation tactic. At least get your proposal out there first, because that at least sets the tone.

If they responded to Trump proposing, like after the election, I think that would be much harder by proposing December as the schedule for the trial, now it's gonna be much harder for Trump to come back and say, oh, I want a December trial of the following year, right? I think DOJ's goal is to really get a June trial and this really sort of sets that up as compromising in the middle there.

But more important to me is everything that's gotta happen before trial. They've at least, even if the dates don't hold, they've set up, they've told Judge Cannon, you have to schedule every single one of these things individually in this order. And that becomes very important for reasons we'll talk about as a segment unfolds. Yeah, because I was thinking, you know, Andy and I talked about this last week. I thought it was pretty shrewd to be the first to ask for a delay for December 11th on the part of the Department of Justice because like you said, I think we all know with all of those seepest steps that have to happen between now and trial.

There are myriad opportunities for delay. We all had, the last time you were on the show, we're like, this could go after the election next year, but definitely probably looking at a spring or a June trial, but by asking for that December date, it sort of precludes Donald Trump from stepping in and saying, well, if we're gonna delay, let's just do it until the end of next year. So I think that that was really well done

and well thought out on the part of the Department of Justice. But let's talk about some of these interim steps, these things that have to be individually scheduled by Aileen Cannon, Judge Aileen Cannon, that honestly are ripe for delay. Yeah. So I think the first one, so I'll give the Department of Justice the benefit of the doubt that this proposal was made in good faith, but having litigated these cases, I'm very skeptical that that this schedule could hold even if things went very well. It really takes two, there's three parties here, right? There's the Department of Justice, Trump's team, and Judge Cannon. It's going to take two of them to agree to hold any sort of schedule,

right? Like, if we'll see which side can and falls on, but that's going to be critical is what does she want. But if you look at DOJ schedule, like you can already see things that are going to slip by July 10th, which I think will be the date, maybe this podcast comes out, Monday, July 10th, DOJ had proposed that they will start producing classified discovery by that date. Well, that's not going to happen now. We still don't know, right? If any of Trump's lawyers or not as lawyers who were just appeared have been cleared yet at all, they can't get any of classified information until they've been cleared. She just entered in order, Judge Cannon did giving them a deadline to complete all that paperwork, which I think

is actually after July 10th. So they made July 13th. So they may not even have submitted their clearance paperwork by then. You also have to have a see per protective order, which maybe we'll talk about in a minute, entered and agreed to and signed by the Defense Council before you even produce any classified information. And then you've got to have all the logistics work out. Where are the skiffs going to be,

where they produce these documents? They may fight about that, right? Like some of the lawyers may want them in DC, others may want them in West Palm or Miami or whatever. They've got to work all those logistics out before they can even produce a single classified record. So our first step July 10th where DOJ said they're going to start producing classified documents, that's probably going to slip by weeks.

And if there's litigation over this protective order, it could be like mid August before anything is produced. That's just the first step. We don't have time to go through all the other steps, but like, that's just example one of how like, this is going to slip. Yeah. So we've already tripped. The first step has been attempted and it's already tripped. And now we're we're stopping and stumbling and figuring out what to do next. Yeah, I mean, it is a tough process under the best circumstances. I don't know that I've ever seen a criminal defendant who is so motivated to push for as much

delay as I possibly can. So this is going to kind of define how much can a defendant squeeze in terms of delay out of a criminal proceeding through SEPA and in any other means he brings up. So it's yeah, I think this is going to be a beginning of a long conversation. In just a general thing also that the schedule sort of overlooks is at each step she has to rule in order to move to the next phase of the litigation. So she's got a rule in all the discovery before you move into preparing for the trial. And then even at each step of the trial prep, she's got a rule. And like, they don't really build much time in for that at all.

They just sort of assume she's going to rule in a week. She's going to want to all her rulings obviously to be in writing. They're going to be classified. She's going to have to work in a classified setting on a classified computer. Like, that's all going to take time. and it's just not really built into the schedule. Yeah. And speaking of how she might rule and all of these opportunities for delay, including that, you actually went back and took a look at her rulings back in August, September,

timeframe, and how they related to the special master case, through the lens of how that could impact the SEPA process. Tell us what you found out through that review. Yeah, so if you follow me on Twitter, I think people know that I'm not like an alarmist, usually I try to like calmly analyze issues and not be overly reactionary. And so when she was assigned, I thought, well, this is obviously seems very bad, let's be honest. But can I look back at her August rulings and see is there any silver lining potentially?

And so these were the things that stood out. So obviously, there's all just the frankly crazy rulings on the search warrant and that these might be personal records and all that stuff. So let's put all that aside. I just focused on national security. So the first thing I jumped out at, is she's obviously very just uneducated and unfamiliar on these issues.

That's generally bad, right? But also, she's a blank slate. So could be potentially malleable to, or at least open to be an educated by the government. Most conservative jurists, at least traditionally, still care about national security. So the department justice, like I talked about, has a good opportunity to educate her. So I think there's still, she's a blank slate, so maybe there's opportunity for education. The second thing that jumped out is she did say repeatedly, right, that the

national security reviews could go on. She did not want to stop those. So at least showed some attempt on her F part to say, hey, let's let the National Security imperatives play out. I wanted to fern those. So that's the sort of good to medium. The bad though is where I got to, so remember she issued her first ruling, then DOJ moved to stay her ruling only in regard to the classified records. They said, let's take the classified records out of the special master litigation. And they filed, smartly, the declaration from Alan Collar, Andy probably knows him. Very well. Yeah, very well. I'm head of counterintelligence from FBI. And he explained what I was screaming about on Twitter, which is she couldn't, she couldn't separate the criminal investigation

from the National Security investigation. She said the criminal investigation has to be paused and but the National Security investigation can continue. But as Andy knows from working on these, like he can't do that. Like the number one thing the National Security community wants to know is what conditions were these documents stored in and who accessed them.

That all comes from the criminal investigation, right? That's right. Because if they were safe with a super secure lock that had never been accessed and had complete audit records, like, they would want to know that. That would be great to know, right? And obviously, the opposite would be true if they had been accessed. So they tried to explain to her through that declaration why you couldn't split the baby, that they were inextricably intertwined.

So she read that declaration and basically just rejected it. Normally, judges would at least give some deference to that assessment. She said, you know, it's not, he was speaking in hypotheticals. He didn't speak in specifics. I was trying to pull up some of the language. They do not, the declarations do not firmly maintain that the described processes are inextricably intertwined and instead rely heavily on hypothetical scenarios

and generalized explanations that do not establish irreparable injury. Like that, that rule, that part of ruling right there gives me the most heartburn that she, she's looked at this declaration from the head of counter intelligence for FBI and said, I really don't believe you, you know, I'm not going to listen to you. So that's what's troubling me. There's some lessons DOJ can learn from that, which we can talk about, but that's what's most troubling to me. You know, and I remember at the time thinking like like this woman just doesn't get it. And that may be

explainable. I don't mean to suggest any sort of animus there, but it seemed to painfully evident that she has absolutely had no connection to this sort of work in her past. And if you look at a resume, that's that it bears that out. She doesn't really have any national security experience. When reading Kohler's affidavit, she doesn't even understand that speaking in some level of generality is necessary when you're submitting an affidavit in court about highly classified matter. She couldn't read between the lines to realize, oh, wait, this is really a very serious thing. So that, I think that piece really still bothers me a lot.

Yeah. And not only that, but she doesn't even recognize her own lack of knowledge and will not take the premier expert's advice on it or point of view. It's like, who else would you get? Like, who will you believe, Judge Cannon, if it's not the counterintelligence about how these things are inextricably linked?

The 11th Circuit, I guess, because they also agreed that those things were inextricably linked. And that's why a lot of the stuff was reversed. And that and no standing, no jurisdiction. Right. So, you know, it is true, like, oh look, all judges are different. And some are better than others. And that's certainly the case.

But I found in my limited SEPA experience being usually the declarant or the affiant and those sorts of things. Like, when the FBI expert comes in and says, yes, if you do this, it will harm our national security in the following way. Most judges are not going to insult their own judgment about harm to national security over that of the national security community. They're going to say, okay, you know, you said that it's harm, then for this purpose, that's what we'll go with.

Yeah. So she doesn't seem to be indicating that sort of, I don't know, difference, yeah. Yeah. Yeah. And obviously, you know, we want our judges to think independently and not overly defer. You know, I'm sure government, but on a legal determination, obviously, they shouldn't, but on the, just the pure, national security assessment, I obviously I think she should defer, typically to that.

And in here, she showed no such interest. So I think that's gonna be a big question. What does she do when she starts getting these classified declarations, which that's a great point Andy. I mean, that declaration was maybe a little high level, well, not maybe as detailed as it could have been. So I think it's going to be incumbent on the government in the CIPa declarations is having worked on those 90% of those are boilerplate

usually too. So I think they need to like put aside the boilerplate and really get in a put some meat on the bone meat in details about the very specific harms from these documents, which is, again, is a great opportunity to educate her. We'll just see if she's receptive. Yeah. Yeah. And we're going to talk more about that. And the next time you appear, we're going to cover probably a CPC section four.

That's right. And some of the classified discovery fights, and we'll look forward to it. So Brian, thank you so much. I'm really excited about this new segment, and we look forward to having you back. Yeah. Yeah, great to have you, Brian. Thanks so much.

Thank you, Ticka. Everybody, stick around. We'll be right back. Hey, everybody. Welcome back. That's so great. I'm so honored that we have such a back. That's so great. I'm so honored that we have such a such a season to expert on on SEPA here to to talk to us about it on the pod Andy. Yeah, he's so good at explaining these things and I have sat across savels with many, many lawyers in my day trying to understand the latest problem in a in a SEPA filing and Brian has a way of just kind of boiling it down and getting you know, getting you on board very quickly and simply. So we're very lucky to have him. Yeah, definitely. All right, we're going to talk a little bit. We're going to shift gears from documents over

to January 6th. And we're going to talk about Rudy. We're starting to get new details about where Rudy Giuliani was asked during his recent Queen for a day, also known as a proffer session with special counsel prosecutors. And Wall Street Journal picked up some of this reporting on July 3rd and CNN sort of finished it off with Collins, Cohen, Reed, Murray, and Polance. It's a law firm. I know. And Flaum.

No, no, Flaum. And they reported that special counsel, Jack Smith's team, has signaled and continued a continued interest in a chaotic oval office meeting that took place in the final days of the Trump administration. It was in December of 2020, during which the former president considered some of the most desperate proposals to keep him in power over objections from his White House counsel. And we heard a lot about this contentious shouting match of a meeting knockdown, drag out meeting through the hearings by the select committee, investigating January 6th.

So, I mean, the aspects of this meeting were actually pretty shocking. Yeah, totally, totally, right? So, and this is, of course, the infamous December 18th, I think, probably late afternoon, the guests show up. The, you know, the roll call of those present are, of course, Trump, Giuliani, Pat Bern, who is the former CEO of Overstock.com, Sidney Powell, Mike Flynn, and then on the kind of White House lawyer side, Eric Hirschman, Pat Sepolone, Derek Lyons, and, Mike Flynn, and then on the kind of White House lawyer side, Eric Hirschman,

Pat Sepolone, Derek Lyons, and of course, the enigmatic Mark Meadows was there lurking in the shadows as well. So they show up late in the afternoon if I'm recalling correctly from the Gen 6 hearings and it goes on for hours. It's so late. At one point, they retire to the whole meeting moves up to the residence, the White House residence. And then, of course, later that night at 1.42 a.m. I assume that most of these folks are gone by then and Trump sends out the infamous

will be wild tweet. So yeah, that was, it's a really unique moment in time because you have, for prosecutors anyway, you have this amazing combination of people in the room. Half the room is pushing insane things, many of which are illegal. And the other half of the room, the lawyers are saying, you cannot possibly do that. You don't have that authority. It's not legal. And all of this, this buffet of yeses and noes is being laid out at the table of the president in the United States, really remarkable moment in time. Yeah, absolutely.

And what the reporting shows is that some witnesses were asked about this meeting months ago, and even last year, while several others have faced questions about it more recently, including Rudy Giuliani. As we know last month, for two consecutive days, Giuliani sat down with investigators for a voluntary interview about a range of topics, including that meeting because he was there, as you said. I think he was like led in by a guy named Ziegler and then he was escorted out afterwards

like he had to leave. Nobody wants Rudy rambling around their house and that you know unsupervised them all the night. So yeah. And the prosecutors have specifically inquired about three outside Trump advisors. And that is like you said, Sydney Powell, Michael Flynn and Patrick Byrne.

During that meeting, outside advisors faced off with top West Wing attorneys, likeschman like you said Derek Lyons Philbin Cipolloni. I don't know Philbin was there. I think it was just Cipolloni But that we know one of the plans that you talk about was he wanted to have the military the the department of defense sees voting machines in swing states that he has lost And they also discussed naming Sydneyney Powell special counsel to investigate voter fraud. And Trump, they talked about him possibly. And this was a Mike Flynn idea invoking

martial law as part of his efforts to overturn the election. And as you said, that night ended with the will be wild tweet, which has been invoked in multiple indictments of some of the boots on the ground folks, like the Oathkeepers and the Proud Boys. It's mentioned quite a bit that that will be wild tweet that it was a call to action. I know January 6th, the committee, they are covered it pretty extensively too. Yeah, and you know, the committee presented that almost with the suggestion of, and nobody knows, this is speculation, but I get the speculation that this, this intense fight goes takes place over the course of hours in front of the president.

Marshall Law, the attorney's probably saying, no, sees the voting machines, the attorney's saying, you can't do that, you don't have the authority. Sydney Powell asking for a job, a special counsel, the lawyer saying that's preposterous. And having not come upon a single net plan for moving forward, the suggestion is that Trump decides, you know what, the only way to do this is to summon a mob to the Capitol. Now, again, this is speculation. This is what prosecutors and investigators are inferring from what we do know about that meeting.

But it certainly makes sense that the evening ending at quarter to two in the morning with that tweet is just incredibly significant. And hopefully we'll get that unwound at one of these trials. Yeah, and Meadows being part of that meeting obviously is an important piece. He wanted to go to the Willard War room. There seems to be some peripheral connections between the White House and the physical attack on the Capitol.

But proving that beyond a reasonable doubt in court is a very different story from the differences that were made in the January 6th select committee hearings. But we did get another member of OO confirmed from the Ocha Nostra. We learned from this reporting at CNN that O'Brien, Robert O'Brien has been in a second time to testify. Now, if you remember the Ocha Nostra with the eight people,

how could you forget? The head testified, like maybe, I don't know, like six months ago or something like that, or in the spring, and had raised executive privilege concerns, not because they were fighting for executive privilege, but because Donald had filed lawsuits trying to block their testimony using executive privilege and they said, I got to wait until this is litigated before I can testify.

And it was and Trump lost. There was no stay put on there. Although some of the appeals did continue. We'll talk about that in a second. But yeah, Robert O'Brien went in. He told the January 6th select committee. He was patched into that December 18th meeting by phone after it had already devolved into a screaming match

between Flynn Powell and the White House layers. And some breaking news just today, if Friday as we record this, Trump's appeal of the ruling that compelled Mike Pence's testimony has been dismissed. Now you and I had wondered why, after the emergency stay, Trump's appeal and were asked for an emergency stay was denied, he brought Pence in before the appeal wound its way through the courts. And where we're like, I guess he's pretty sure he's

going to win this one. There's no stay. There's nothing stop in the testimony. How do you claw that back if Trump somehow does, somehow does win this privilege battle? But that privilege appeal was dismissed. Yeah, and that was a bold move by Jack Smith. I feel like we've said that a lot now. Certainly a common occurrence. But if you think about it, he did win at least when he needed to, because part of the consideration for this day is the movements, chances of winning the appeal.

And it's not hard to imagine that the court in deciding this day said, yeah, you have very little chance of winning here. So we're not even going to grant you a stay. And I'm sure that gave the special counsel a fair amount of comfort in saying, you know, let's, we're just going to move forward and it'll be fine. Yeah. We have a, it's likely that we'll win on the merits if, because like you said, that's one of the requirements for, for a stay.

Now all that's left is your pal and mine, Johnny McIntee. We still haven't gotten public confirmation. He's been brought back into the grand jury. It doesn't mean he hasn't. We didn't know about Robert O'Brien until today. So, or yesterday. So, he may have already come in. He may be cooperating.

He may not be. And then, of course, Meadows. The only thing we know about Meadows is that he has at least testified once. But that could be the original time that he testified and invoked Trump's claim of executive privilege. And we also don't know if he's cooperating.

There's some outlets like the independent UK who are saying that he is going to plead to lesser charges to do a deal, but no US news outlet is corroborating or confirming that particular reporting. And Terwilliger, whose meadows attorney, has outright and flatly denied that he is going to take plead guilty to lesser charges and is cooperating. So he's shrouded in mystery, and we haven't heard about macinties. So we've got six now confirmed of the Ocha Noaster that have been brought back in for their testimony. And there's a little bit more here, at least one witness has told prosecutors in recent a no-ster that had been brought back in for their testimony.

There's a little bit more here, at least one witness has told prosecutors in recent weeks that Trump allies asked Pence to question the legitimacy of Biden's electors in those seven states based on unfounded claims about voter fraud and kick the decision of certification back to the states themselves. They are really homing in on this fraudulent electroskeem and it seems to be and make sense. It's directly tied to the Penn's pressure campaign. If you look at pretty much everything we've just gone over, I believe it gives you an interesting foreshadowing of where a potential indictment would go.

And my theory, which is not going to be surprised by, is that the strongest and most likely charges, if they indict, will involve those two things, the fraudulent electors scheme, and, oh, well, three, actually, if we want to be complete, fraudulent electors, fraud against the government by Trump and his band of Mary Lawyers, and that is in the effort to obstruct the certification, the election, that sort of thing. Bunch of different ways. You charge that, but essentially that effort,

you know, the Mike Pence pressure, try to get the whole thing, try to block the function of government, which is the certification of the election. And the last thing is, of course, the wire fraud around the money, the solicitation of money based on the lie that the election, the election was fraudulent. Those are the mediused, tangible charges that you could bring in this context. It also has the advantage of wrapping in, like, potentially most of the people we just talked about.

The other case, the pressure campaign on the states, they're reaching out to the states, you know, the governors, and we'll talk a little bit about that in Arizona, and of course, in the Georgia context. Those are much, much harder cases to prove there's all kinds of defenses that could be effective in those cases. You also have the strongest of those is clearly Georgia because you have the recording.

And Georgia state officials are probably going to move forward with a prosecution based on that before we see anything on the January 6th investigation. So I think I would not be surprised to see those pieces not addressed in a potential January 6th federal indictment. Yeah, agreed, but I think definitely at the top where we have Eastman, Jeffrey Clark with his letters. And it's sort of like what point does it sever and get kicked back to the States

for their own prosecutorial purposes. And at what point, and when is it included in a federal indictment? And will he indict these separately as separate charges? Or will he put it under a racketeering umbrella? Good question. I mean, you're definitely looking at conspiracies here based on all this activity, right? So, and it goes, you know, fake electors is somebody that you could be rolling up people from John Eastman all the way down to Joe Schmo who served as a fake elector in Namier

State. Solid crimes, tangible evidence, the letters actually submitted by these fake electors in the national archives. Right. So there's like tangible things that you can put your hands on here and put in front of a jury. Yeah, with documentary evidence. Right.

Not so much subjective sort of, it feels seditiony. No, it is obstructing the official proceeding. It is a conspiracy to defraud the United States. It's conspiracy to obstruct. No, it's wire fraud, male fraud. When you mailed the certificates to NARA and Congress, and they've brought in the Mike Kelly guy and the people who they were trying to hand deliver

the fraudulent certificates through Ron Johnson and his staff. So yeah, I think that it's still a hugely sprawling case. And Andy, if the documents case has 84 witnesses, oh my God. I can't think of going forever. It's almost overwhelming to try to wrap your head around the size, the enormity of these crimes,

of this case, of these potential indictments. It makes what y'all were looking at in the Mueller investigation seem very small in comparison. It really does. And from the prosecutor's perspective, you have to be able to stand up there for the first day of this imagine it's a trial and paint a coherent picture. Tell a story that, you know, 12 citizens are going to be able to listen to and follow and understand how each one of these separate kind of criminal conspiracies or criminal acts, whatever they are, supports this narrative that this group of people ultimately headed by the former president conducted

this activity. It's a really tall order. You've got to be incredibly skillful, not to mention just the command of the information and the witnesses and the statements and the evidence is really challenging. But to deliver all that in a coherent and persuasive ways is tough. Yeah. And Jack Smith has a decided advantage of having recently lived through the Mueller investigation and having recently seen the presentation the January 6th select committee put forth, which I thought was a very, I mean, it went over months and months and months, but it was about as succinct as you could get.

Yeah, totally agree. And you know, because there was a lot of folks that were upset that it only really focused on Trump and his actions or lack of actions on January 6th and leading up to January 6th. And the pressure campaign, the fraudulent electors, you know, rusty bowers comes in, rapid burger comes in. But they didn't really follow the money. They didn't really look at the packs. They didn't look at the big fraud and the defrauding donors.

They didn't really look at Roger Stone and the Whitlake. There was so much that was sort of left out of that for the sole reason of making it easy for the American public to understand. And it still took a series of six or seven here, eight hearings. That's right. That's right. And legitimate questions about those decisions. But at the end of the day, you have to make decisions like that to decide what to go with

and what to leave on the cutting room floor if you're going to tell a coherent, understandable, compelling story. Yeah. And if there aren't insurrection and sightment charges or seditious conspiracy charges, there will be people who are going to be upset about that. But that is the prosecutorial discretion that lays at the feet of Jack Smith. For sure. He's going to go with the most open and shut, easy, easiest to prove and easiest to explain with the likely 400 plus witnesses. Yeah, that's a great one.

That's a great one. Alright, we have a lot more news to get to from this week, including some interesting information about Newsypinas headed out to the Arizona way. So everybody, stick around. We'll be right back. Welcome back. Okay, more news about New Testimony in the fraudulent electric scheme from Mary Jo Pizzle at AZ Central. So AG, we've heard that Jack Smith subpoenaed the Arizona Secretary of State's office as

recently as May as a part of his investigation into the events leading up to the January 6 insurrection at the Capitol. So they sought with these subpoenas information related to two lawsuits, one from Trump's campaign and another one from former Arizona Republican Party Chairwoman Kelly Ward. Both suits basically alleging that errors and fraud in the 2020 presidential election undermine the results. Now, special counsel has apparently not reached out to former Arizona governor Doug Ducey. Apparently, Ducey talking to an unnamed donor earlier this year, Marvel that Smith or his investigators had not contacted him according to the Washington Post.

Ducey famously silenced a call from Trump. You'll remember this. He was actually sitting at his desk in front of the cameras, signing the certification of the election when his phone rang to the tune of Hill to the Chief, which he very nervously then turned off. And on Face the Nation last week, we learned that former Vice President Mike Pence confirmed that Trump asked him to talk to Ducey about the election results, but of course Pence went on to say that he had no pressure from the president

to find evidence that Trump actually won the Arizona vote. So a lot packed in there. What's your, what's your view on this, the Doug Ducey drama, not drama? Well, I don't believe Mike Pence. He next question. Next question, issue number four. It's pretty obvious through some of the phone calls we know that he made to like the likes of Dan Quale and Judge Ludic where he's like, please is there a way that I can not certify these? You don't understand the pressure I'm under.

Literally. Let this cup pass from me. Quote. Deliver me from this fate. So when he's like, you don't he tells Dan quail, you don't even know what pressure I'm under and then comes out to the public and says, I wasn't under any pressure. That just seems to me like him riding the fence like he did with his a small W in the in the speech or debate, a privileged battle that he most decidedly lost, but one like a couple of tiny little pieces

of. So I don't, I don't believe him. I think he's just trying to hang on to the 17 Maga voters that might vote for him. If that many, I might be kind. Yeah, I think you might be overshooting it, but what the heck? I mean, let's, you know, let's be charitable. I think you're, I think you're right. I mean, you know, but the interesting thing here though is for me, this really shines a light on what we were just talking about. If you are, if you're gonna look at the Trump pressuring state electors,

state election officials, state governors to pull back their certifications and basically overturn the election. If you're looking at that pressure as a criminal charge, that is a very hard case to succeed on because anyone involved in this case, Mike Pence, can say, oh yeah, I talked to the governor, but I didn't put any pressure on him. No one was putting pressure on me. I was just calling for an update to see how things were going. We were investigating all these claims of fraud. I wanted to see what they were finding in those investigations. It all sounds very reasonable in hindsight. And those cases are coin flips and nobody wants to go to trial with a coin flip. Yeah, that and the electors can say,

I honestly thought that they would only use these alternate slates of electors if they won some of their lawsuits. And that's why I find the lawsuit piece interesting about the subpoena story you just read from AZ Central. And something that always stuck in my head was when Jamie Raskin told, I think it was probably Rachel Maddo or somebody on MSNBC that one of the keys to this entire criminal investigation that the Department of Justice is undertaking are these lawsuits. These lawsuits brought by Rudy, brought by the Trump campaign, brought by Republican friendlies in these individual states. And we know that in one of the Eastman emails, the Georgia lawsuit is mentioned and say, hey, the president now knows that these voter fraud numbers are

not accurate, probably after the reports that they got from those two, you know, Berkeley Research firm and the other one that showed that there was no voter fraud and then signed anyway that lawsuit after receiving those results and not making those results public. So I kind of think that all of this outreach to the states will show up as evidence of a pattern. I agree. I agree. A crime specifically, but we don't know. But I think it's interesting that they're looking at the lawsuits. It's really interesting. Even the infamous, what is it, Raffensberger recorded phone call. I mean, a lot of people listen to that, right?

Well, it's a smoking gun. There's a clear, you know, crime here. And it does sound terrible. And it is terrible, the phone call is terrible. But it's not actually a smoking gun. It's not a slam dunk. There's not a very clear violation of law there. For the feds.

I think it either is for Georgia. Right, correct. And I'm no expert on Georgia law. But on the federal level, there's a lot of wiggle room there and exactly what was said. And then you layer in what was meant and there can be all kinds of arguments over this.

So it's harder than it looks. It's infinitely harder in an Arizona situation where you have no recorded calls with Ducey or whoever else. The difference in the fake electric thing, I agree with you, there are some potentially strong defenses there if you're one of the electors because you could basically, and maybe very credibly say, I didn't know, I thought this was only gonna be a backup,

whatever, whatever. But the people who you would actually want to sneer in that charge are the organizers. And like, really? They're not gonna be able to make that credible claim of, oh geez, I thought this wasn't gonna be used until after we'd proven our case in court or something. And that's who you want.

You want the Eastmans, you want the rootis, you want, you know, Sydney Powell's whoever else is involved. Ellis, all those folks, yeah. And that's I think where they're homing it. So we'll see what these charges look like. It appears that they are getting closer to charging decisions, as we know. And we know, obviously we'll keep an eye on it.

Also, from Zoe Tillman at Bloomberg, speaking of Rudy, attorney disciplinary regulators recommended Rudy Giuliani be disbarred in Washington DC. How does that happen? After a local bar association panels preliminary finding that he likely committed misconduct in pressing Donald Trump's failed legal challenge to President Joe Biden's 2020 win in Pennsylvania, specifically.

The hearing committee's decision Thursday is tentative. The committee will submit a final report with its recommendations to disbar, to the DC Barr's Board of Professional Responsibility, which will decide whether to accept it. And then the District of Columbia Court of Appeals is the final arbiter. The DC Disciplinary Council's office accused Rudy of violating attorney practice rules in his handling of that litigation, which involved asking the Pennsylvania judge to invalidate large quantities of ballots cast across the state, or alternatively order a new election.

A state court in New York also previously suspended Giuliani's license after finding he put the public at risk by spreading lies about the 2020 election, his license in DC has also been suspended while he fights this ethics complaint. So he is one step closer to being disbarred. Yeah, Rudy's life doesn't get any less complicated is this is all these things start to ramble forward. Interesting thing to me, and this is that DC is taking such a definitive stance on things that Rudy allegedly did in a lawsuit in Pennsylvania, which I guess they have the authority to do that.

I'm not questioning it, but it is kind of an interesting twist there. All of this is probably very concerning to Rudy, but none of it is probably quite as concerning as the fact that he spent two days talking to prosecutors likely under a proffer agreement for the hope that he can get himself out from under any trouble that might be coming from this January 6th investigation. Yeah.

And Eastman's disbarment hearing is well underway as so as Jeffrey Clarks. And Lynn Wood quit before he could be disbarred. He hung up his legal briefs there. And he's basically, he's like, I think he blamed aliens. I was just, it was whatever. A likely story. Yeah. That old chestnut. Anyway, we do have a little bit more news to get to. So we're going to take a quick break, but we'll be

right back. Stick around. Welcome back. Okay, AG from Devlin Barrett at the post this week, we learned that authorities on Wednesday unsealed additional portions of the search warrant affidavit used to get permission to scour Donald Trump's Florida home last summer. So this is the infamous search warrant. I think on August was executed on August 8th, where the government went in and recovered, you know, boxes and boxes of evidence, another hundred classified documents. And pieces of that large pieces of that search warrant, Avidavit, have remained redacted. And so the government lifted some of those redactions this week.

And what we find is it reveals more about what agents had learned by the time they executed this search at Mar-a-Lago on August 8, including specifics of how security camera footage captured a key Trump aid moving boxes both before and after he was questioned by the FBI. And of course, as everyone following along at home will know, we are talking about the infamous Walt, not a good witness, not a... Yeah, who recently just pled not a guilty on his arrangement. How many puns can we do? The details in this story offer more granular account, and from the, you know, from the unsealed,

newly unsealed portions of this affidavit, more granular account of not as movement of the boxes caught on video and how that led investigators to suspect that Trump was trying to hide documents and mislead the Justice Department. And it's pretty clearly laid out here as it is also is in the indictment. And the newly unsealed portion of the affidavit

says the surveillance footage shows that four days after the FBI interview, Nada moved approximately 50 bankers boxes out of the storage room. The document adds that the FBI quote, did not observe the same quantity of boxes being returned. And that could account for what we thought were gaps in the footage, along with him taking specifically 34 minutes to remove one box, like what will you do in there, buddy? But these were motion-activated cameras, and so that could be the gaps that we're in

the news for a while there. Also on June 2nd, a day before FBI officials arrived at Mar-a-Lago to collect the documents in response to the May 11th, subpoena. Security camera footage shows NADA moving 25 to 30 boxes, some of which were brown cardboard boxes and others, which were bankers boxes, back to the storage room. So the key distinction for investigators is that NADA, apparently at Trump's direction, moved in total about 64 boxes from the storage room and in May of 2022, but only returned about 25 to 30 boxes. And as you know, after we read that indictment, I was like,

Andy, where's the other 34 boxes? So, where'd he go? Just so everybody knows, I did a side-by-side comparison. I read both the first unsealed affidavit because if you remember, Donald Trump after his home was searched, was like, uh, release the affidavit, release it now. And the DOJ is like, sure, cool bro. Okay. Hald is bluff.

And released a pretty redacted version. And that was back in August. Uh, and now we have a some of the redaction bars lifted now that most of the information is in the indictment, in the speaking indictment. I looked down on side by side and I highlighted what has been revealed in a Twitter thread on my account at Mullershey Road. So you can see exactly what new information has been released. And so it's out there. Again, it's not much new that didn't come out of the indictments and there's still a lot

that is behind red action bars. Yeah. So this is fascinating to me because it shows, you know, we knew obviously the indictment told us a lot and, you know, even the basic math of the 60 out, 30 back, whatever it was, that's in the indictment. But we now know that they knew all this stuff before the search warrant. So the facts and the probable cause going into that search warrant was overwhelming. There's no daylight here between the facts in the search warrant affidavit. There's two little things that really also

jumped out at me from the newly released portions. And both of them were in the category of how the Trump team shoots itself in the head. The first one is in the infamous meeting on, I guess it's June 3rd between Corcoran, who is, I think, referred to in the F. David as like F. Potus lawyer one or something. He's meeting with DOJ down there on site, Emerilago, and he tells DOJ that all of the White House records have are in the storage room and they've never been moved any place else. Like that statement by Trump's lawyer lays the foundation for why the video tape surveillance is so significant. And it shows one of two things.

Either Corcoran is in on it and lying to the government or Corcoran's been deceived and lied to by his client. Either way, either waycoran is in on it and lying to the government or Corcoran's been deceived and lied to by his client either way, either way you interpret that. That's a really great fact for your argument of probable cause that there's shenanigans going on with the boxes. Yeah, that and the whole only half of them came back into the room. It's also super interesting that he moved boxes both before and after. He spoke to the FBI, which means that he probably changed his tune after that and that there

is still some ongoing investigation surrounding that. Yeah, it was like in the days after they pointed out in the affidavit, and we discussed the boxes with him at length in his interviewidavit, we discussed the boxes with him at length in his interview. He of course said he didn't know about moving him or anything. And then in the days after that, he's on video moving them around. So he can't say, oh, I didn't know. I didn't realize it wasn't, it was significant. He absolutely knew. And then the other thing I thought was fascinating is they point out in the affidavit that Corcoran, when he turns over the Redwell,

that's 38 documents that he found, he never describes those documents as having been declassified. He actually handles them in basically the way that you handle classified documents. He puts them in the Redwell, he tapes the whole Redwell together, he signs his name on the tape so you can see if it's been tampered with. These are all things that you do when you're packaging classified documents.

So they can't now maintain, oh, it's okay because, you know, President Trump, former President Trump, declassified all the documents before he left the White House or in his mind or whatever, whatever, they were all clearly or quirk in any way, handling the stuff essentially in a way that acknowledged that they were still classified. Yeah, absolutely. And one question for you, Andy, before we get to a listener question, Andrew Weissman has tweeted out that, Walt Naughty was not charged with lying to the grand jury in June,

but is charged with lying to the FBI in May, which means he changed his tune by June. Prosecutors would otherwise have charged perjury in the grand jury, which is recorded, and it's a stronger charge than just lying to the FBI in an interview. What are your thoughts about that tweet? I think Andrew is probably right in his analysis of which would have provided a stronger charge. It's hard to say with great clarity exactly why they would have made that decision because we don't know all the facts that they had to work with.

It also makes sense that they may have, you may have lied to them and then they exposed it, realized he was lying to them, likely with the video surveillance, they then meet with him on other occasions, they get him to admit that he lied, and by the time they put him in the front of the grand jury, he's telling the truth or some version of it. So I think Andrew's analysis is probably right, although it's hard to be 100% confident about that. Yeah, hard to know for sure. I just love the speculation. Yep. All right, we have a listener question or questions this week, Andy. We do. We do. We have one. And I have to say, we are, you know, the question pipeline is open, so people please feel free to send us your questions.

We address them as you know every week at the end of the show, and it's hello at mullershiroat.com. And of course, you put Jack in the subject line. So that's how we know that you're sending a Jack question. So anyway, this week we have a question from someone who did not include their name. So in the grand FBI tradition, I'm going to refer to this person as Fennel Anu, which of course stands for the abbreviation for first name unknown and last name unknown. There's a lot of cases in the Bureau that are captioned under Fennel Anu for. I thought you were going to say, listen or one. Good, all right, next time. All right. So the question starts off. First off, thank you for what

you're doing. I'm finding it valuable and satisfying. Here's a thought that keeps nudging my brain. You know how, quote, he, and I think we can safely assume she means the former president, used to flush documents and how even complain that high efficiency toilets took 10 flushes. I wonder, perhaps, the plumbing at his residences should be checked for clogs of documents torn into tiny little pieces. Oh, please let it be so. Well, thank you, Faneu, for that question. It does get to the slightly more serious and legal analysis of what can you search when you show up at the house. So agents and prosecutors like to say you are limited to the four corners of the warrant, and you can only search those places that could reasonably be expected to contain whatever it is

you have described in the warrant that you're looking for. Now, documents, you know, they can pretty much be anywhere. That would get you into cabinets, boxes, desk drawers, apparently the stage in the ballroom, the shower, wherever these things were actually found. But the question is, could you go into the pipes to search for this stuff, which would require some level of kind of, destructive, I'm sure, unearthing of sewer pipes at Marlago is disgusting.

Is that sounds? Probably not. Unless you had some specific facts that indicated that there was a probable cause to believe that the documents were in those pipes. Now, I get it. There's a reasonable argument here that, sure, we have all these facts that you've cited in your question.

Maybe that's enough for probable cause. Maybe it's not. You kind of have to leave that up to the prosecutors to figure out what they're comfortable going forward with. So I'm guessing that they did not describe the pipes as a place that they wanted to search, but maybe they should have good point. We'll flag that one for the team.

You really have to have the proof that they are in those pipes right now. Yeah. Kind of like how we all sort of figured, well, why didn't they get a search warrant for Bedminster? Well, because that evidence was two years old. And of course, parlor, Torre and trusty are like, we bring all those documents back with us when we travel to Florida.

Oh, really? Have a seat, sir. Do tell. So yeah, I don't think that there's enough to even though we have evidence that he flushed and tore stuff up in the White House residence, it would need to be specific evidence that it's in moralago. Have you ever researched pipes or anything? Oh, yeah, sure. I mean, pipes are a commonplace to search for biological evidence. So if you're looking for DNA, if you're looking for a view suspect that, you know, whatever

sort of a crime, an assault, a homicide, sometimes drug trafficking, people try to destroy things by flushing them or, you know, sending it down the drain, like if you cleaned, cleaned something off in the, in the shower, you could definitely go into the pipe and pull some genetic material DNA and things like that. It's pretty, pretty common for those things, although I have to say I've never seen anybody dive into the sewer pipes looking for documents. Well, stay tuned. This thing isn't over. As we know, more subpoenas have gone out. anybody dive into the sewer pipes looking for documents. I'll stay tuned.

This thing isn't over as we know more subpoenas have gone out. Thank you so much for your question. And if you have again, any questions at all, send them to us. Hello at mullersheyrope.com, put Jack in the subject line. And we'll read it on the air and answer it on the air. Another big show full of news, my friend again, I can't wait to see what happens this week. There was probably news that dropped while we were sitting here recording this on a Friday that was still there.

I bet. The only thing you can know for sure is that there will be more between now and next week. So, and we'll be here to go over it for everybody. Yeah, 100%. All right. Thank you so much again for listening and we'll see you next time. I've been Allison Gil. And I'm Andy McKayden. You've been listening to Jack.