Jack - Episode 39 - The Public Docket

Episode Date: August 27, 2023

This week, in Fulton County, all 19 racketeering defendants have been booked; the DoJ responded to Trump’s April 2026 trial date request, and an update on three key cases awaiting DC Circuit rulings. Meanwhile, in Coannonland, Florida; de Oliveira is subject to the deadlines in the court’s scheduling order; the DoJ entered a detailed filing responding to Woodward and Cannon’s questions about Woodward’s conflict of interest and the use of grand juries in two jurisdictions. Plus a couple of listener questions and more!Questions for the pod:https://formfacade.com/sm/PTk_BSogJOr Email us at [e-mail] and put “Jack” in the subject lineCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AG:Follow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, 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. 2023, I'm Allison Gill. And I'm Andy McCabe. As you know, it was a big week in Atlanta. It's all 19 racketeering defendants, including Donald Trump, have been now booked at the Fulton County jail. But meanwhile, in the Jack Smith investigations, the DOJ has responded to Trump's April 2026 trial date request. It's hard to say that without laughing. It's apparently impossible to say that without laughing. And we have an update on three cases awaiting DC circuit,

rulings that could impact Jack Smith's case against Donald Trump. Yeah. And we've been following those cases here on this program, but we wanted to give you an update. And it was, it just so happens that your colleagues at CNN, put together a wonderful update on all three of those cases. but we wanted to give you an update. And it just so happens that your colleagues at CNN put together a wonderful update on all three of those cases. So it's good, it's timely, and I look forward to discussing that.

And then down in Florida, judge Aileen Cannon did not take the opportunity to delay the May 2024 trial date when she ordered superseding defendant, Day Olivera, to be subject to the deadlines in the court's scheduling order. Also, Department of Justice entered a detailed filing responding to Woodward and Cannon's questions about Stanley Woodward's conflict of interest

and the use of grand juries in two jurisdictions. And if you have any questions for Andy or I, or even Brian Greer, who is our in-house SEPA expert, you can send them to us via email at hello at mullershearout.com. Just put Jack in the subject line. All right, Andy, let's start in DC today. Yeah, let's go right to that filing by DOJ opposing Trump's motion for an April 2026 trial date. Okay, so you will recall, A.G., I have no doubt that Trump had a bunch of reasons

for requesting the somewhat ridiculously long date. And those reasons included, first what he referred to as this massive amount of discovery that they had been so unfairly burdened with. And he notoriously described it in his request as being if you stacked it all up, I don't know, end to end. It would be taller than the Washington Monument and longer than reading War and Peace 72 times a day.

I don't, I don't see how they could be possible. Maybe saying War and Peace 72 times a day, I'm not sure. And I like how it stacked end to end. Not how regular people stack paper. Yeah, it's like, I mean, okay. So in addition to all this crazy discovery, they also cited, they claimed that the median length of a conspiracy case from commencement determination is 29.4 months.

And I remember hearing that initially and thinking like based on what exactly, right? Yeah. I'm not even sure that DOJ keeps those numbers, but we'll get into Jack's response in a second. Trump also cited seepah hearings as something that would require this incredibly long trial date.

And then finally, he referred to the fact that Jack Smith had requested that jury selection in the case in DC, the Jan 6 case, begin on December 11th, which conflicts with a hearing in the documents case that had previously been scheduled for the same day. Keeping all that straight. Yeah. So the first thing that you asked about the 29.4 months based on what? Well, Jack Smith obliterates

this argument as saying the average time to try what it was at a title 18 US code 371 charge. That's right. 371. And they said 29.4 months because of errors in how Trump's team calculated that, Jack Smith tears this apart. First of all, Jack Smith says, and I love that he figured this out. So first of all, 29.4 is the average time through sentencing. Right, which just not the beginning of trial,

meaning it included not just how long it took to get to trial, but the entire trial, and then sentencing, sentencing recommendations, responses to sentencing recommendations, and then sentencing. That's right. That's the equivalent of saying the Christmas season extends for six months, as long as you begin counting in the summer. It's just not part of the same thing. Cases get hung up on sentencing for all kinds of reasons. If you have cooperators, they can't be sentenced even after the cases over until their cooperation has concluded. So there's all kinds of crazy factors like

that that could add to the overall time that a matter is still pending, but it's not the length of the trial. Right. Remember Greenberg? I mean, his sentencing was put off for two years. Yeah. Yeah. Exactly. Exactly. Also, Andy Trump's team only used cases in the years 2021 and 2022 after the massive COVID court backlog. And during those time, only 22 cases were heard those years because of the shutdown. Yeah, little cherry picking of the years for the statistics there for sure. Let's pick the slowest years in the history of American jurisprudence and use those as our example. Yep. And third, he used January six cases that also included supereding indictments, plea negotiations,

pretrial detention hearings, and one of the cases had 19 defendants. So again, not comparable at all. So just totally obliterated that argument. And of course, with the regard to the volume of discovery, Jack Smith first argued, hey, about 65% of this, you've already seen, Trump's already seen.

That's right. We're about two thirds up at the Washington Monument now. There you go. You've climbed two thirds of the monument and no doubt the expert services of e-discovery firms are lined up behind you to help you get up the final third. Because as we know, electronic discovery is not, okay, I've been given 6,000 binders of paper, and now I have to leave through them one after another. There's all sorts of really effective electronic searches that you run through that material

to kind of direct you to those things that you need to look at and it speeds the review. A lot of it is duplicative. Jack Smith uses an example in his response. There's apparently 3.1 million pages of secret service emails. Many of those are duplicates. Interesting also he wanted us to know that, especially given the recent crew investigation, showing emails back and forth between the service and oath keepers, leader, Stuart Rhodes, and also kind of noting that they're still

investigating the infamous missing secret service text messages. So that was kind of an interesting little Easter egg hidden in the motion papers. Yeah, I pointed that out. I was like, it jumped off the page at me. I was like, oh, 3.1 million secret service emails fascinating. Yeah, for sure. Now also with regard to the discovery and the Washington Monument graph that they put in there and the reference to Warren Peace. Jack Smith says, quote,

In cases such as this one, the burden of reviewing discovery cannot be measured by page count alone, and comparisons to the height of the Washington Monument and the length of a Tolstoy novel are neither helpful nor insightful. In fact, comparison such as those are a distraction from the issue at hand, which is determining what is required to prepare for trial. Very well said. Yeah, full on, full on. And then responding to the SEAPA argument, like, oh, we need 2026 because there's so much SEAPA here. Jack Smith's team states, quote, the defendant also contends that the existence

of classified discovery necessitates delay. But this is not a case about classified information, and the government does not anticipate introducing classified materials in its case in chief. As the government will explain during the August 28 hearing under section two of the classified information procedures act, SEPA, there's no reason that the SEPA discovery process, in this case, cannot proceed quickly and in parallel

with the schedule proposed by the government. And this is really interesting to me in light of our conversations with Brian, because as he walked us through the kind of several phases of the SEPA process. Those initial phases just kind of defining the scope of what's going to be turned over and what's not going to be turned over. The fact that the government is not actually going to rely on any classified evidence at the trial, which means they don't have to bring in classified sensitive material and protect it from

sensitive material and protect it from public exposure and things like that. That cuts most of the most challenging phases of the process out, right? You're not fighting over substitutions and things of that nature. It's just really more mechanical in terms of there's probably a very limited amount of classified discovery. They have to figure out how and when and where they're gonna hand that, make that information available, but that's probably the extent of it.

Yeah, and when I would read that passage, case in chief, I'm a huge nerd, so I look up case in chief, and the case in chief is the evidence in the part of the trial that the prosecution presents. Right? So if there is a rebuttal of defense evidence by the prosecutors, that is not part of your case in chief.

The case in chief is what you present as evidence, not what you use evidence that you might use to rebut what the defense puts up as a defense. And so I asked Brian, so not using this in a case in chief, could that mean that maybe they have a couple of classified documents that they might use to rebut some defense? And he's like, that's one guess. He said, yep, that's one thing that they could mean by that. But also it could simply mean that it is relevant or adjacent to this case, but isn't

going to be presented at trial or used as a rebuttal to a potential defense. So again, he agreed that these minimal marginal seat by hearings or hearing could be done in parallel with the rest of the court schedule. Yeah, I think that's a great explanation. I think really the use of the term case in chief here is very artful way of them saying essentially, we're not gonna use any classified material in the case,

but we don't wanna rule out the possibility. You know, you got to be very careful when you're making these statements to the court, because you don't want to make a mistake. You don't want to say something that you have to go back on later. So by framing it that way, I think they're saying, hey, we're basically 99% sure we're not going to have to. We're not going to close the door entirely at this point, but it's unlikely. Yeah. And the final argument here, and Andy, you called it on the December 11th jury selection, conflicting with December 11th, evidentiary hearings down in Florida. Let's listen to what you and I said about this particular, because this was a filing Trump made in Florida, right? He's like, you're honor.

Can you believe the gall of the Department of Justice scheduling jury selection in a whole other crime that I did during a evidentiary hearing for a crime I did over here? How dare they? And we talked briefly about it in last week's episode. Let's replay what we said last week. I imagine DOJ will pry file something quickly to say, oh, well, let's remedy this and we'll put this here and this here. We hereby inform Judge Chudkin that we've decided to move our proposed date for the beginning of jury selection to December 12th. Okay, so now let's let's read what the what the DOJ had to say about this conflict.

The defense points out that the government's proposal to start jury selection on December 11th, 2023 conflicts with emotions hearing in the criminal case in the Southern just Central Florida. Such true conflicts are easily addressed. The government now proposes instead that jury selection begin later during the week of, move later during the week of December 11th to accommodate the hearing date in the Florida case. I mean, it's exactly what you said. I mean, they didn't, they didn't say December 12, but they, you know, they basically did. I, you know, despite the, uh, the high and mighty tone of their alerting the judge to this dastardly conflict, it just seemed like a really easy

problem to solve. Okay, we'll take the next day or the one after that. Whatever, it's fine. It's just so good. Uh, and they put it at the end too, right? Like, oh, and by the way. So it's just kind of those silly boys on the other side of the aisle. Let's put them back in their place. Yeah, that didn't seem like it was going to really break the process in half. So we'll see.

We'll see where this one comes out. I still think our kind of spin on it last week is holding. You know, I doubt it's going to go quite as quickly. I think the trial date they get won't be quite as aggressive as the one that the government has asked for, but I don't think it'll be nearly as lackadaisical as the one that Trump has asked for in 2026. Of course not. Yeah.

And I think we'll know tomorrow. I think we'll know sooner rather than later that is the hearing is on on the 28th. So we'll we'll know soon. All right, we have more to discuss about the DCKs, but we need to take a quick break. So everybody stick around. We'll be right back. Welcome back. Okay, let's talk about several key cases that are pending decision in the DC Circuit Court that could impact Jack Smith's case against Trump. So this reporting comes from Sneed and Polans at CNN. And they tell us that at least three court cases touching legal issues that could affect

special counsel Jack Smith's approach are ripe for rulings in the DC circuit. The rulings, once they come, will likely shape how U.S. District Judge Tanya Chutkin may may view the law and the charges against the former president in the criminal election subversion proceedings over which she is presiding. Okay, in one case, Trump ally and Republican representative Scott Perry is challenging the access federal investigators can have to his phone in the 2020 elections subversion probe. Another dispute is over Trump's sweeping immunity claims in the civil lawsuits that have

sought to hold him accountable for his actions leading up to the January 6, 2021 Capitol assault. And the third case relates to the obstruction statute that's been a central charge in the Capitol riot prosecutions. Smith's indictment of the former president in the election case includes two charges based on this provision in question. Now, there's no guarantee that the rulings will come out in the coming weeks, but the start of the new DC circuit term in early September puts additional pressure on the circuit judges

to clear out their opinions in lingering cases. Judges do not generally like to take old business into the new session, and they get some pressure from the presiding judge to move their dockets forward. So I think it's a fair guess that we could see some movement on some of these cases. Yeah. And the first one, I don't really see how this, it's called the Robertson case. So I'm not really sure how it impacts Trump because the arguments about how, you know, it could possibly impact the writers on the ground, it's about whether or not they personally benefited.

And we know Donald Trump personally benefited, you know, from, from, try, you know, had the obstruction been successful at more than just delaying the count, right? That's right. That the presidency has value. So this case is really more about asking whether the January 6th rioters would benefit. So basically, Robertson is focused on how the word correctly should be interpreted. He claims it should only apply to defendants who acted dishonestly to benefit themselves. And his argument to the DC Circuit is sought to distinguish him from how Trump

may have personally benefited. This case is before Judge Karen Henderson, Nina Pillard and Florence Pan. The latter two were appointed to the bench by Barack Obama and then Joe Biden, respectively. So that's, that case is there. And, you know, like I said, I don't think that this really particularly has any impact on whether Trump can be prosecuted under under 1512, title 18, 1512. I think that's right. I think, I think Robertson has a legitimate appeal here. He's trying to say, and has a legitimate appeal here. He's trying to say, you know, he didn't do, he didn't do this corruptly, attack the Capitol, because there was nothing in it for him personally.

It wasn't doing it for some to corruptly or inappropriately acquire some benefit for himself. You could make the opposite argument, but I'm just saying that I think he's got a decent, he has a decent argument to make there, but Trump really does not, right? This was all about him retaining power, retaining the presidency, hard to imagine a greater benefit to him. So I think that I don't think the corruptly interpretation is going to be, you know,

however they decide to define it, I think it's probably a pretty good chance that Trump will fall within that definition. Yeah, and I do think that they'll uphold the current view of the statute. I don't think it's ambiguous. And I think that it'll still apply to all these January 6th rioters. What about the case about Scott Perry's phone? Yeah, so this one is interesting. It's been kind of a hotly contested matter since it happened. We've talked about it quite a few times.

So some of the legal dispute over the FBI's search of Perry's phone remains under seal, so it's a little bit hard to get perfect clarity on this. But the appeals court did hold a portion of its February argument in the case in public. And at that hearing, which was before Trump appointed Circuit Judges Gregory Katzis and Naomi Rao and Ronald Reagan appointee Henderson, the judges had tough questions from both sides of the case. What the DC Circuit ultimately says will likely affect not just prosecutors pursuit of information from Perry's phone and what the special counsel can obtain of

his communications with alleged conspirators or Trump himself, but also future law enforcement efforts that touch on members of Congress more broadly, both in the 2020 election context and in other criminal investigations down the road. And as we've discussed on this before, AG, this, any investigative efforts that run at a sitting member of Congress invariably raise arguments along the speech and debate clause lines. And there are some guidelines as to what fits within that clause and therefore cannot be kind of the subject of criminal action and what doesn't. But it seems that each case is so different. They're all very fact dependent. We kind of end up with these appellate

arguments. One of the reasons why investigating members of Congress is so complicated and sensitive in the FBI? Absolutely. And also, the third thing here is a decision in the dispute heard by the DC Circuit last December over whether Trump enjoys sweeping immunity in the civil lawsuits that have been brought against him, namely by Democratic members of Congress. We know Swalwell and both Benny Johnson sued him, but Benny Johnson tabled his lawsuit because he became the chair of the January 6th Select Committee and then a blashing game at all, which are Capitol Police Officers.

That's right. For allegedly egging on the mob that interrupted Congress's January 6th certification. The other department called on the DC Circuit to reject Trump's broad immunity claims and argued that the president cannot be immune for speech on a matter of public concern if the speech is found to have incited violence. That's an early signal in court that the DOJ would look critically at Trump's actions after the 2020 elections and not defend him as acting within the duties of his job. However, Smith's case is a criminal prosecution differs,

as we know, to the approach taken by the civil lit against in other ways, but the special counsel has not brought any charges that require to look critically or legally at the speech that he gave on the ellipse. There's no incitement charge. The charge here is under 241, title 18 section 241, which is conspiracy against rights, specifically our rights to have our vote counted.

But the ruling in Trump's civil immunity could shape the defense in a criminal case, right? Because if he can somehow get some sort of sweeping immunity here, then maybe that's a defense that he brings up. And he's already brought it up to the public, right? Like, I'm immune from everything. We know meadows is claiming immunity down in Georgia, where he's been indicted, saying, you know, as an officer of the government, I enjoy absolute immunity in these situations.

So I don't think this one's going to hold up, but we are waiting for that decision. Yeah, I don't think it'll hold up either, but it was crucially important that DOJ take a position on these cases that's consistent with the position they'll have to take in the criminal cases and Jack Smith's cases in reaction to those Trump defenses, right? We know that Trump is going to say, hey, this can't, you know, I was with acting within the scope of my duties. I should be immune from criminal prosecution for these things that I was doing as president. And so if in the civil cases, the department was going to support that interpretation, he would bring that up in the criminal cases as evidence of the fact that he was acting

within the scope of his duty. So the fact that they are saying that he cannot be absolutely immune for speech on a matter of public concern if the speech is found to have incited violence, that's a good foundation for Jack Smith it or I guess you can think of it as it they avoid they avoided creating a problem for him, which is good. Yeah, and I think that that was very clearly to me on purpose. Yeah, for sure. I do appreciate there's a lot of there's so many things that go into and you know, we know this from just looking at the Mueller investigation So many considerations go into future dealings

Well a lot of these privilege arguments that Merrick Garland got out of the way early have really helped These you know these subsequent investigation investigatory steps, because all of the, you know, all the privilege battles took six minutes, you know. We already contended with all of this. And so every single subsequent privilege battle

was able to just bam, bam, bam, be hashed out pretty immediately and pretty quickly. So, I mean, it's good to remember that DOJ bears the burden of precedent, right? They have to take positions that they can maintain consistently across multiple prosecutions, multiple civil lawsuits. The defense doesn't have to do anything about that. The job of prosecutors is to create,

and build a castle out of sand, right? Create a narrative, bring in the evidence, show how it fits the elements of the crime, tell it all to a jury in a compelling and convincing way. That's a, you know, this is a creation of a theme and a narrative and a story that can be believed and accepted is true. All the defense has to do is come in with the wrecking ball and knock it down. In one way, and in big ways or small and walk away. And so DOJ's always got that longer term mentality. Like, if we take this position in this case, how is it going to affect us down the road in different cases? So they seem to be doing that here, which is good. Yeah, absolutely. Indeed.

All right, we have to take another quick break before we head down to Florida. So we're going to do that now. And we've got we've got a lot more to discuss, but we'll be right back after this quick break. Stay with us. Hey, everybody. Welcome back. Let's head down to Florida and talk about the back and forth between Jack Smith and Judge Aileen Cannon in the documents case specifically. This is a big story and it kind of got drowned out by what's going on in Atlanta. Yes, it did. But this specifically questions surrounding a pair of Garcia hearings. Garcia hearings, as we talked about last week, are conflict of interest hearings, right, for people for witnesses and defendants who are being represented by

the same lawyer. And then, of course, Judge Cannon's questions about the utilization of two grand juries or the continuation of using a grand jury in DC after the Mar-a-Lago indictments came down. Now, we know Andrew Weissman has pointed out that the Stanley Woodward complained about these two grand juries on Fox News, and that's what apparently gave Judge Cannon this idea. But to be fair, he also raised, Woodward also raised this in a hearing in front of Judge Cannon, quite a bit back in July. So what the Department of Justice is doing in this filing is responding to, to Alene Cannon's suggestion on her own, that there's something abusive about the use of a DC grand jury

after the Mar-a-Lago indictments had already happened, right? She's like, I'll read you the little bit of it, but she's like, well, you know, Stanley Woodward, Nudge, Nudge, Wink, Wink, you might also want to ask about why Jack Smith is using a DC grand jury, continuing to use that after you've already been indicted. You know, like just... And it came up so out of any kind of context, right?

It comes up out of the conversation about whether or not they should actually have a Garcia hearing over Woodward's representation of these two witnesses' defendants. And she just pulls it out of the blue, like by the way of Woodward, don't forget to complain about this because I've noticed it and I think it's suspicious as well. That's certainly, you know, the way you could interpret what she said. That seems like it to me. She's given a cup, she's dropped a couple hints for Trump's side in minute orders before and in rulings before and this one was no different. She did it a lot during the special master and ended up embarrassing her by having to have her

rulings vacated by the 11th Circuit. Now, the Department of Justice wanted a Garcia here. They want a Garcia hearing about Stanley Woodward because he represents Tavaris, right? Tavaris is the IT guy, butward because he represents Tavaris, right? And Tavaris is the IT guy, but he also represents Walt Nauta and also two other potential witnesses.

So DOJ tried to file the details of the conflict of interest under seal, but can instruct that and invited Woodward, like I said, to file a response and basically coached him. She said the response shall address the legal propriety of using an out of district grand jury. You know, that's what she said. And then right on cue, Stanley Woodward files his response to the motion for the Garcia

hearing and accused Jack Smith of attempting to quote, diminish Judge Cannon's authority by using the DC grand jury to abusively continue to investigate an already indicted case, which is just absolute horseshit and pardon the French Andy, but like, that's just not what happened. And we talked about this filing last week. Woodward's solution to the conflict of interest, he was like, oh, well, all you have to do is just not allow Tavarice to testify. Yeah.

I mean, this whole thing was just like, it's unbelievable. You know, Woodward basically takes the hint, right? She says, I hint, hint, wink, wink, you might want to take a swing at this topic. And he's like, oh, I'll take a swing, all right. I'll go ahead and swing for the fences. And I'll call the grand jury,

I'll call it abusively continue to investigate and already indicted case. And you know, when this first came out, I thought to myself, is it possible that she is not familiar with this idea that often times more than one grand jury is involved in the same case. Because even on just timing, grand jurors don't sit forever. And some cases, some investigations go on longer than the term of a grand jury. So you put a bunch of evidence in front of one grand jury,

they expire, then you have to represent it to a new grand jury to finish out the case. Like, I don't, it just left so many holes. Like, and again, with Eileen Cannon, I'm trying really hard not to just reflexively assume that she says and does these things as a reflection of some sort of bias. That, but the only other explanation for a reflection of some sort of bias.

But the only other explanation for a lot of these just crazy rulings is that she's just not that capable. So I don't know at the end of the day, I don't know which is worse, but I guess we'll find out. Right. Yeah. Which is worse in competence or bad guy. We'll see. So the Department of Justice

was like, you want us to file this under seal? Why we need a Garcia hearing? She's like, no. And they're like, all right. I just see Jack cracking his knuckles. Like, you want to know why? You want the public to know why? We're using a DC grand jury.

You, that's what you want. Okay. Here you go. And so we filed. It's full on Jack Nicholsonson you can't handle the timeline. I'll do on the public docket he was forced to. But almost I can almost be like. Like you know like he's probably I don't think he's sad that he had to.

He had to file this on the public docket so he goes. He goes all right here's what happened in March of this year, Tavaris and Dale Lavera, lied their faces off to the grand jury in DC. And then Jack Smith tells the world that Tavaris was repped by Stanley Woodward, who by the way was referred to him by a Trump lawyer, which is important, it's an important distinction that Tavarice didn't go out and find this lawyer himself.

That's right. And that this lawyer is being paid for by Trump's Save America Pack. By Trump, yep. So he's like, all right, we'll put this all on the public docket you wanna go? Let's fucking go. Excuse my French. Then on June 8th, Jack indites Nauta and Trump, not

De La Vera. Yeah. Right. Right. He comes around to Yep. And then on June 20th, a couple weeks later, the Department of Justice informs to Varys through Woodward, which he points out, which is very important. They didn't inform Tveris directly. They went through his lawyer Woodward who's paid for by a Trump pack who was referred to by a Trump lawyer. They informed him that he was a target of perjury in DC because he lied to the DC Grand jury.

That's why DC is investigating this perjury. Which is in D.C. Just to be clear. That's why the D.C. grand jury is investigating this perjury in D.C. It's not to subvert your honors authority or what was it? Abusively investigate the already indicted case. No, no, this is like cleaning up the the mess. The new case. Yeah. Whole brand new case. This is called perjury. And we're going to tell you all on the public docket. And when they sent that target letter, DOJ says that crystallized the conflict of interest. Because having to

various correct his testimony would implicate NADA. So if Woodward advised to various to correct his testimony would implicate Nauta. So if Woodward advised to Veris to correct his testimony, he screws one of his clients. Right. But if he tell, it's now impossible for Woodward to act in the best interest of both clients, right? So.

It's what we said last week. It's the most obvious and direct conflict in representation. There's sometimes, you know, a family hires a lawyer because two kids are in trouble. And there's a one in a million chance that one kid might wanna point the finger at the other kid, but it's probably never gonna happen.

In a case like that, you might say, okay, we let both kids know, both defendants know what the potential conflict is, and give them the opportunity to wave it. This is not a potential conflict. This is like a full-on fist fight in the lunchroom. We're going at it. There's no way out. It's a conflict. It's unavoidable. It's yeah. He cannot represent both to the best interest. And so that week, the Department of Justice asked for a Garcia hearing in DC, a conflict of interest hearing, right?

Yep. And Woodward, Jack Smith puts in this filing, by the way, Woodward, you didn't object to the Garcia hearing back then. So why are you objecting to a Garcia hearing now? Interesting. Very interesting. Then this was in front of Chief Judge Bozberg because he handles grand jury matters. He's the Chief Judge. And Bozberg immediately asked a public defender to advise Tavaris. And when Tavaris was advised by this public defender, immediately

Tavaris fired Woodward, wanted to be wrapped by the public defender and corrected his testimony, which is what we imagined happened, right? And to be fair, I think the Washington Post reported that that something to that effect did happen. But now we have it in writing from the DOJ who wanted to originally file this under seal, but now must tell the public this series of events. Now we know. Could you imagine what that first meeting was like between the public defender and Tveris?

It must have been very short. It starts with, do you want to go to jail? Tveris says no. And then the public defender says, okay, well then here's what you gotta do. You gotta get rid of that guy. I'll represent you. And then we go from there.

Yeah, very simple. And you will avoid indictment. Yeah. And he did. And he did. And now everybody knows, including De La Vera and Walton Outa, who were both being represented by lawyers, paper, they have to be sitting there, right?

Going, my wonder if my Trump paid for attorney isn't representing me in my best interests, because now we've got this public filing on the docket from Jack Smith about what happened with their pal to Varus. And that's why the DC Grand jury was investigating after the indictment. Jack notes that the Grand jury in DC, by the way, wrapped up their investigation August 17th.

That was last week. And the government notes it could find no precedent, by the way, in which a district judge struck incriminating testimony against a defendant in order to solve the conflict of interest, except in one case where the judge was overturned on appeal for having done so. So you're a stupid idea of, well, we just won't, just, you don't need to hear Tavarice's testimony. We just won't have it.

Even though the entire superseding indictment case and conspiracy to, you know, delete the surveillance footage relies specifically on Tavarice's testimony, well, we just, delete the surveillance footage relies specifically on Tavares' testimony. Well, we just, we just won't have that in court. Yeah, DOJ is like, there's, that has never once happened in the history of the universe except once and that judge was overturned. You know, that, that suggestion from Woodward is so absurd, but I almost have to give him a little bit of credit because knowing his audience is Eileen Cannon, he figures,

hey, why not? I might just throw out, hey, the remedy here is to deny the testimony of the witness that makes my remaining client look bad. I mean, it's just so ridiculous, but I, in this world, you know, a ridiculous suggestion from a defense attorney could very easily be acceptable by the judge. Yeah, yeah, we'll see, right? You will see. Okay, we have just a couple more things to cover before taking your listener questions. Again, if you have any questions, not just from your Andy, but for Brian Greer, our

SEPA expert too. He goes by secrets and laws on Twitter. You should give him a follow. You can send those to us at hello at mullershearout.com. Just put Jack in the subject line and we'll get to listener questions after a couple more stories, but we have to take a quick break. So stick around. We'll be right back. ["Bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum entered a minute order on the Marlago docket stating that Daila Vera is subject to all the deadlines

in the current court schedule. So in other words, she didn't push the May 2024 court date out any further based on the addition of the superseding indictment, which she could have done when you start adding defendants to a case with, as they did, adding Daila Vera and the superseder, the later you get in doing that, you put that defendant kind of in a tight spot to be able to review the discovery and get up to speed and all that stuff. But so far, so far, she's holding, she's certainly holding Dale Lavera account to the current schedule, which I think is a good sign. I agreed. And something else that came out yesterday that I thought was interesting because it connects

the Atlanta case to what Jack Smith is doing. We know we now have, as we mentioned at the top of the show, all 19 co-defendants in the racketeering case brought by Fannie Willis have been booked into the Fulton County jail, Rice Street jail down there. And all of them are out on bail except one. And that is Harrison Floyd. That's one of the people part of the conspiracy to intimidate election worker Ruby Freeman. And the reason that he is not out on bail is because he had, I guess, well, let me just

read you the headline. A Trump supporter and died last week in Fountain County, Georgia for harassing Ruby Freeman was charged earlier this year with attacking an FBI agent working on the Justice Department's parallel investigations of efforts to overturn the 2020 election. That's Harrison Floyd and it was his arrest had not previously been reported. We just found out about this. Offer's new information about the breadth of the federal probe led by special counsel Jack Smith. So we learned two things. We learned that this guy was arrested for going after an FBI agent body slamming him, going chest to chest with him, and shouting profanities at this FBI agent. And we learned that Jack Smith is investigating, or was at least at the beginning of this year,

the intimidation of Ruby Freeman and some of the things that have been indicted down in Georgia. Yeah, really interesting development because it gets us back to this question. I think that a lot of people had when they finally saw the Trump Jan 6 indictment, which of course only included Trump and mentioned those other notorious unindicted co-conspirators. It raised a question of like, what is Jack Smith still doing? Is he just going to draw a beat on Trump for January 6th and when that case is over, walk away? to draw a beat on Trump for January 6th and when that case is over, walk away. Or will there be other cases, other prosecutions

after we get through the time crunch of addressing Trump first? And I've always thought, A.G. and I've told you this before, that's my guess. I don't see Jack Smith as the kind of guy who's gonna leave the table crowded with a bunch of unindicted co-conspirators. If you can make the case against Trump, I think there's a very good argument

to make that you could be successful against. At least some of those major co-conspirators, and who knows, maybe others like people like Floyd who were involved in the witness tampering efforts in Fulton County. And, you know, that, that ab sure could expand to include the activities in Michigan, Arizona, who knows where else it goes from there. Yep.

And, and I think Arizona, you know, I think I've been all eyes on Arizona. We've had reporting this week that that investigation is ramping up quite a bit and that the prosecutors are aggressively investigating. And you know, you and I have also talked about the potential federal investigations if they aren't happening already, should already be happening about the, you know, the, that whole nationwide effort to tamper with steel voter data, steel voting machines, databases, the breaches in Mesa County, Colorado, Antrim County, Michigan, Alton County, coffee county, I should say in Atlanta. And then all of the cyber cyber ninja stuff. And then there was another arm of the cyber ninjas that also tried to do the same stuff in Michigan, but they couldn't use their cyber ninja

name. So anyway, I mean, like all of this, I can't imagine that it's not being investigated. However, I know that some of the very intrepid reporters in Atlanta have said that no one in the coffee county breach conspiracy said that they've been reached by anybody at the Department of Justice. So who knows? But it's these kinds of stories where we find out all these months later that the Department of Justice has been investigating. And everybody goes, oh, wow, didn't even know. And it's like, yeah, think about the 900 other things that we don't know about then at this

particular time. So we'll see. And again, even if it's like the IRS and the Department of Justice looking into his tax fraud, like that has to be happening somewhere. And if it's not, that's just a complete like, travesty. So I imagine it's happening somewhere. Hopefully we'll learn. Fun raising fraud. Fun raising fraud. I've been waving that flag for 39 weeks now. Some day it's going to come true. I swear. And the cool thing about having a special counsel is he has to talk about all the things he

investigated and his declination decisions if he decided to talk about his all the things he investigated and his Declination decisions if he decided not to bring charges and why he didn't bring charges some day we'll be pouring over his 400 page report In 10 minutes and then talking about it on television. Oh, it was that out loud. I'm sorry That's what do you mean we there? I'm mouse in your pocket. They don't invite me on television andy I think it's because I say, I've dropped the F bomb too much, but I could instantly bring them 50,000 more viewers.

That they never, I have no doubt. I have never invite me on. And I can read those things on the fly. Anyway, I would only be so lucky to be able to be in that awful position. It's both good and bad. It has its ups and downs. There's four hours last night of talking about the mug shot

was by hour four, it was like, wow. I don't know if I have any more spins on this, but okay, here we go. More mug shot, J.C. can do it. It's a mug shot. Is it a mug shot coming? Is this the real mug shot? Is it that fake?

I mean, wow. It was like, I got a fake one. Yeah, we did. All right, so you jumped mug shot. We got a fake one, yeah. Oh, we did. All right. Should we jump to questions? Yep. Let's definitely. All right, I got two for you.

And they're both again picked for their substance and also for their flattery. Okay. So the first one comes to us from Pete and he starts off with Hello Gorgeous hosts. So right there, you know, his question is making it not to the show. He says, I really like his analogy here, though, too. So Pete says, sometimes I hit a bad drive in golf, and I'm not sure if I'll be able to find it,

but I'm also not sure I won't. So I hit a provisional ball only to be used if I cannot find the first drive. And he says parenthetically, then if I need to use a provisional shot, I take the penalty stroke and I'm hitting three. So Pete is putting it out there that he's following the rules.

He's counting all of the strokes, which I like that. So now the question, what distinguishes the quote, fake electors from what would have been quote, provisional electors to be used only if the count changes from the initial projections. I thought this is an interesting question because it does get at one of the main defenses that particularly some of the actual fake electors, I think you'll see them use this in Fulton County.

You may even see Trump refer to this in his January 6th federal case. And the way that they charged it, at least federally, kind of reflects this. So in some states, the electors, the fake electors were specifically assured that their fake ballots would not be used, would only be used if Trump was successful in his litigation challenging the election. So in other words, some of those fake electors can mount the defense that, hey, we didn't really intend to do anything fraudulent here. We were simply providing these votes in the case that they were legally necessary later,

like if Trump's lawsuits had prevailed. In other states, however, they knew from the beginning that what they were doing was something fraudulent. There's more evidence than just the ballots themselves. And that evidence, mostly the conversations, emails, text messages between the people who organized the electors, shows that everyone knew that this was a fraud. And it was done specifically to create delay in the certification of the election so that the, you know, you would delay it by sending the, the, the sort out fake electors from real electors thing back to the states. And then by doing that, they would cast

the election, the resolution of the election into the House of Representatives, which would very clearly have voted for Trump. So there are differences in the differences in the different fake electors schemes state-to-state. And some of them, Pete, I think, can take shelter in the kind of reasoning you lay out in your question. Agreed. And they do. Yeah, definitely Pennsylvania was one of those where they specifically said, hey, we aren't saying we're the duly elected electors here, only if this were contingent electors. And

what was funny is, you know, along those lines, one of the fraudulent electors in Georgia has filed to have her case moved from state court to federal court saying that because she was a, and she called herself a contingent, like, she's trying to add that language now that it's too late. But she said, because I was a contingent elector, that makes me a federal officer at which, like, I mean, that's like saying because you wore a nix and mask last Halloween, you're a federal officer, like it doesn't make any sense whatsoever. No, actually, you weren't an elector and you weren't a federal official, like,

but all that's fake. And you can't add contingent now that you feel bad that you've been arrested. That's like, somebody steals the money from your checking account. They're like, no, I'm a contingent owner of that account. I'm not the actual owner, but I had access. I might one day be. Yeah, exactly. You can't count me out. Okay, so let's go to our second and last question. And this comes to us from Robert B. And he says,

I start my Sundays by listening to Jack. Thanks to the two of you, I can now hold my own when discussing brothel agreements, how to pierce the two of you, I can now hold my own when discussing proper agreements, how to pierce the attorney client privilege, and I now know that Queen for a Day was not just an old TV game show. Okay, his question is, Mark Meadows has been indicted in Georgia, although he is trying to get his trial moved to federal court.

You have suggested in the New York Times article also stated that he testified to the January 6th grand jury. This, this we know. If called to testify in federal court, can that be used against him in Georgia? Can he be compelled to testify in federal court with a pending state court trial in Georgia? So in other words, if he's brought into the January 6 trial, federal trial in DC, to testify against, can he be compelled to testify against Trump? And the answer there is no because of his Fifth Amendment right against self-incrimination. He can assert his Fifth Amendment right to in federal court or in

state court. It's not like double jeopardy, right, which only applies in one place, essentially, if you, you know, if you're tried in federal court, you can turn around and be tried in state court for the same conduct because they are two separate sovereigns. Double jeopardy does not apply. The Fifth Amendment privilege goes with you wherever you go. You have the right state court, federal court, to assert the Fifth Amendment privilege

to prevent incriminating yourself. Now, the key though is you have to be an actual jeopardy of incriminating yourself. And in this question, the way you phrase it, he would be an uncertain jeopardy of incriminating yourself. And in this question, the way you phrase it, he would be uncertain jeopardy of incriminating himself. If you laid out in federal court, all the bad stuff that he did with Trump, Fannie Willis would be more than happy to use that

against him in the state court proceeding. Yeah, so if he did testify and said stuff, yes, that can be used, whether it's state or whether it's federal. We saw this go on with the New York Attorney General, Tiss James, in her case, using depositions for Trump from different things, from E. Jean Carroll to bring over to Alvin Bragg's case, stuff like that. So yeah, anytime you talk and open your mouth in any criminal proceeding, whether it's state or federal, it can be used anywhere else. That's right. That's right.

And we saw it with witnesses like Jim Baker in the Durham Susman trial, a stuff that he told the Inspector General, versus stuff that he told Congress, versus stuff that he told the Grand jury, versus stuff that he told Durham's prosecutors, and all of that sort of conflicting testimony, not lies, not perjury, but just conflicting testimony, is what the defense attorneys used to impeach him as a witness. Yeah, absolutely. So all of that can be used. And that is why it was so important.

And we had to wait. And there was a delay in the Department of Justice's case because they had to wait for those transcripts from the January 6 hearings. You, you know, Jack Smith, but at this time it was Merrick Garland absolutely had to have all of those transcripts to ensure that when he brought people before the grand jury or people he had already brought before the grand jury to ensure that their testimony was consistent so that if they were going to use that person as a witness, they wouldn't be impeached at trial for telling something different to the January 6th select committee that they told to the grand jury or that they told

in a queen for a day, a proper session or to any prosecutor or agent. Yeah, that's right. You a proper session or to any prosecutor or agent. Yeah, that's right. You can unintentionally walk your witness into a conflict that will then undermine their effectiveness at trial. And it's one of those things that, you know, you think about a lot as an, and when you're an agent, you're going out there finding witnesses, victims,

and interviewing them, talking to them on the street, maybe in their homes. And it's maybe only after a couple meetings that you actually get them back into the US Attorney's Office with a US Attorney in their kind of interviewed in a more formal way. You just really hope that they keep telling the same story, the same way, because all your notes

from those earlier meetings can be used to impeach the witness if you haven't been doing your job carefully. But anyway, great question, Robert B. Appreciate it and also Pete. And anyway, great question. Robert B. Appreciate it. And also Pete. And those are our questions for this week. Yep. Thank you so much.

Those were amazing questions. And if you have any questions for us or for Brian, you can send it to us at hello at mullersheyroad.com. Just put Jack in the subject line so we can filter those out. And we know to get to them. Thank you. Everybody so much for listening to this show. And it's again, it, the news will not slow down

and we will keep bringing it to you. I think we will probably have a trial date for the January 6th Donald Trump conspiracy against rights and obstructing an official proceeding case by the time we speak again. Looking forward to that another big week coming up, uh, and we will be here to go over it all with you. The nuances, the details, and of course, the comedy implicit in, in so much of this. So it's all good.

A. G. Thanks again for another great week. All right, we'll talk to you next week. I've been Allison Gill and I'm Andy McKay. Alright, we'll talk to you next week. I've been Allison Gill. I'm Andy McKee. M.S.W. Media.