Jack - Episode 4 - Testify

Episode Date: December 25, 2022

Allison and Andy talk about new extensive cooperation between the January 6th Committee and the special counsel; a potential for expansion or assistance with the special counsel investigation into obstruction of justice; what some of the January 6th committee materials say about one of the central special counsel investigation - the fraudulent electors scheme, and more.Follow our guest:Chuck Rosenberghttps://www.lawfareblog.com/contributors/crosenbergFollow the Podcast on Apple Podcasts:https://apple.co/3BoVRhNCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AG on Twitter:Dr. Allison Gillhttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on Twitter, but you can buy his bookThe Threathttps://www.amazon.com/Threat-Protects-America-Terror-Trump-ebook/dp/B07HFMYQPGWe would like to know more about our listeners. Please participate in this brief surveyhttp://survey.podtrac.com/start-survey.aspx?pubid=BffJOlI7qQcF&ver=shortThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and abovehttps://dailybeans.supercast.techOrhttps://patreon.com/thedailybeans

Welcome to Teacher Quit Talk, I'm Miss Redacted, and I'm Mrs. Frazzled. Every week we explore the teacher exodus to find out what if anything could get these educators back in the classroom. We've all had our moments where we thought, what the hell am I doing here? From burnout to bureaucracy to soul-sucking stressors and creative dead ends, from recognizing when it was time to go, to navigating feelings of guilt and regret afterwards, we're here to cut off a gaslighting and get real about what it means to leave teaching. We've got insights from former teachers from all over the country who have seen it all. So get ready to be disturbed and join us on teacher quit talk to laugh through the pain

of the U.S. education system. We'll see you there. I signed an order appointing Jack Smith. And those who say Jack is a finesse. Mr. Smith is a veteran career prosecutor. Wait, what law have I been doing? The events leading up to an on January 6, classified documents and other presidential records. You understand what prison is?

Send me to jail. Hi, everybody. Welcome to episode four of Jack. It is Sunday, December 25th. Mary Christmas to those who celebrate. Andrew, I'm wearing my Eastern State penitentiary hoodie today. Oh nice touch. Happy holidays to all. I'm Allison Gill. And I'm Andy McCabe. We have a big show today, including new extensive cooperation between the Gen 6 Committee and the Special Counsel and a potential for expansion of assistance with the Special Counsel investigation into obstruction of justice. We'll also discuss what some of the January 6 committee materials say about one of the main parts of the Special Counsel investigation, which is the fraudulent electors scheme. Yes, and that is always part one of our episode

that might flip up as the investigation goes on. And as we see where the focus ends up eventually. But also today, Andrew, we have a special guest joining us who has one of the most extensive and impressive resumes I've seen. He was US Attorney at the Eastern District of Virginia and the Southern District of Texas. He was also a senior FBI official under two directors, both Robert Muller and Jim Comey. He's also got experience at the Department of Justice as a counselor for the Attorney General

John Ashcroft at the time and the Chief of Staff to the Deputy Attorney General who was Jim Comey at the time. Now he's an MSNBC contributor. It's Chuck Rosenberg, so I'm very excited to speak with him. Before he joins us, what are we going to start with today, Andrew? Well, let's talk about the cooperation between the 16th Committee and the special council. As we saw this week, Punchbowl News was first to report, and I will quote, the House Select Committee investigating the January 6th insurrection has begun extensively cooperating with the Justice Department's special counsel charged with overseeing investigations into former president Donald Trump.

Jack Smith, who attorney general Mary Garland appointed as special counsel last month, sent the select committee a letter on December 5, requesting all of the panel's materials from the 18- month probe. Hunch bowl news has reviewed Smith's letter. So, wow, lucky for them, really nice, really nice scoop there. And it allows us to focus our attention once again on the letters from Smith. Yeah, because we were talking about that a little bit in the lead up, especially in the last episode with Andrew Weissman, who was reporting that, you know, maybe this is a good time for, you know, learning from what happened in the Mueller investigation and going forward into the next, into this special counsel investigation that perhaps Jack Smith could be somewhere in between like Mueller, who really never said anything anything and Komi who kind of said everything. And so this sort of seems like this. We had

the letter on Thanksgiving. Now we've got this December 5th letter, you know, where he's basically reaching out to the Justice Department again and saying, hey, we need we need all of your stuff and we need it now. Although my understanding was and correct me if I'm wrong, some some time in late summer, maybe September, the Department of Justice had already sort of started handing over information and transcripts and evidence that they had with regard to the fraudulent electors scheme. Yeah, you know, I think it's it's not hard to kind of imagine that as Jack Smith gets his hands around everything that's going on with this team, Just like we talked about last week, those kind of broad base subpoenas reaching

for, you know, very basic communications between select people and anyone connected with the Trump campaign or Donald Trump himself. It seems that that Smith is really kind of reorienting things, making sure he's got all of his ducks in a row, making sure he's got all of his ducks in a row, making sure he's kind of laid the foundation for the things that he needs, right? I'm quite confident there were probably communications between DOJ and the committee over the last several months, but now that Jack Smith is on board and obviously fully

in charge, it doesn't surprise me that he wants to kind of, you know, clean the slate and make sure in writing, they understand exactly what his position is with retrieving the information they feel they need to keep this investigation moving forward. And like we saw in the Thanksgiving letter, what we're seeing is that Jackson Smith is not afraid to put his pen to paper, put his name on the letter, make it clear exactly what he wants and why he thinks he's entitled to it, which is a very proactive lead from the front style. I think that's the right way to go. We'll see how it works for him, but from my perspective, he seems to be off to a good

start. Yeah, and I also kind of want to touch on a little bit. My concerns over the past eight months or so with the seeming public reticence of the committee to share their work product with the Department of Justice. Although I also, on the other hand, understand how the Department of Justice, you know, probably doesn't, wants to, they want to keep that giant wall

of separation to avoid politicization. And at, you know, at first, before Jack Smith was even appointed, I was like, maybe don't even make criminal referrals because I think bad actors could take that and run with it as some sort of evidence that the Department of Justice is working hand in hand with House Democrats. But with this extra insulery buffer zone of having a special counsel that's totally independent.

I was like, all right, we'll make the criminal referrals because it's your duty to make those criminal referrals. So what are your thoughts on that? I mean, where do you stand on that sort of, because we know that the Department of Justice can't really move forward with prosecutions until they get all the testimony that happened in Congress because you don't want to have what happened to Durham in the assessment case happen, where Jim Baker had sort of conflicting testimony

from Congress to the Inspector General to a grand jury, as we talked about before. Yeah, you know, they were out... The committee, look, was... had a great deal of independence, and a great deal of momentum in the work that they did. It didn't surprise me that they wanted to maintain that independence throughout the kind of course

of their investigation. I think during that time, there's a lot that DOJ could do. It seems now we're finding out more and more each day that they were actually engaged, maybe even more actively earlier on than any of us suspected. A lot of folks criticized what they perceived to be a lack of, you know, forward motion on these investigative issues by DOJ. Now we know that they are deeply

engaged. At some point, these two paths had to cross. You know, there was a lot DOJ could do, but now they're at the point where they really need to see and to understand the full scope, the full details of who the committee spoke to and what those folks told them. What kind of records the committee was able to put their hands on, which ones they didn't ask for, which ones maybe they asked for but didn't get. So there is a lot of coordination that's happened now. Committee's done, and so it's appropriate for them

to kind of open up the floodgates and really hand over a lot of that work. So with that, kind of tee up on all these issues, we have an incredibly special guest to talk to today about this stuff. Seems like a good time to welcome that gentleman, former US attorney and current MSNBC contributor Chuck Rosenberg, Chuck welcome to the show. And thanks for joining us. Oh, my pleasure, Andy. Thanks for having me. And full disclosure, Chuck and I worked together

in the FBI for a good period of time and we remain good friends to this day. So it's a rare treat to have you on here with us today. Yeah, I'm actually especially honored to meet you, Mr. Rosenberg. And I'm very glad you're joining us to help explain a few things because I've been watching your work for a very long time and you're always so good at succinctly explaining things. A friend of mine once said, if I had more time, I would have written a shorter letter and

your word economy is super on point. And I've had, personally, I've had a lot of concerns about how the committee's work could negatively impact the work of criminal prosecutors. I'm old enough to remember the Iran counter hearings and some of the immunization problems they ran into. And I was also concerned how the delay in standing up the committee in the first place could eventually delay the work of the Department of Justice and the reticence of the committee to hand over their work product to DOJ.

Not because I thought DOJ couldn't or wasn't doing the work, but as I had said, you know, mentioned previously, DOJ needs those transcripts to look for those inconsistencies that could potentially derail prosecutions and witnesses. Now my go-to example for that, as I said, is Jim Baker in the Durham prosecution assessment. But now the committee is releasing their underlying evidence to the public. And while I'm all for transparency and very curious about it, I've seen you repeatedly warning

of potential negative impacts that could have for prosecutors. Can you explain how releasing certain evidence could imperil the Department of Justice prosecutions and maybe give us a hypothetical that would illustrate why it could potentially be a bad idea. Yeah, sure, Allison, happy to try. And thanks for having me.

So think of it this way. From the standpoint of Congress, it makes a lot of sense to show their work, right? Like on a math test when you're in middle school, you get some credit for showing your work. And Congress has done that, and hearings and report, and now by dumping into the public domain, all of the transcripts. From the perspective of the Department of Justice, I have said, and I continue to believe,

it's a terrible idea, because as Andy well knows, we don't do our investigations in public. So, the hypothetical, what can go wrong? So think of it this way. Alice, and you're the witness. On day one, you told investigators the light was green. On day two, you told investigators the light was red. And on day three, you told investigators, you didn't see a light.

At least you don't recall seeing one. First of all, that happens. Witnesses change their stories, they remember things, they forget things, and there are always discrepancies, often not nefarious. But here, every other witness will know Alice and what it is you said, and could theoretically alignimony to yours. That's problem number one. I'll intention witnesses will see everyone else's deposition testimony and could align their, you know, what they tell investigators

to what other people told investigators. Problem number two. Witnesses and Andy also knows this from his work at the FBI. I often come forward with some degree of trepidation. Nobody really wants to be a witness. When you meet somebody who really wants to be a witness, you get a little concerned about their motives.

Most people don't want to do this. And we know witnesses can be harassed. They can be intimidated. In worst case scenarios, it can be, well, even worse. And so you want to protect witnesses from retaliation or from intimidation and putting everyone's name out there with everything they said about everyone else. I think it could open that path for something bad to happen. I hope it doesn't. By the way, Alison, the mere fact that nothing bad happens, let's say nobody aligns their testimony with anyone else or no witnesses intimidated or

harassed doesn't mean it was a good idea to dump this stuff into the public sphere. It just means you got lucky. That is so true. I remember one of the hardest things to teach new FBI agents was the kind of subtle art of going into an interview room with a witness or a target of an investigation and to question them and interview them without revealing what you actually know because you essentially pollute the witnesses' recollection with your own information. And then you've just basically ruined it. You've, you know, you're, what they learn from you is not testimonial. It's what they learn from their experience or observations, what they saw, what they heard, is what you need in court. So yeah, it's a really good point.

Also think Chuck, that it's's as much as it's important for DOJ to review those transcripts for inconsistencies and to understand what maybe weaknesses their witnesses have. It's also a great opportunity for the defense to start doing that work long in advance. They're going to, they would probably get those transcripts anyway in discovery, but they have the opportunity to really dig deep long in advance on where the weak spots might be with any with any given witness and it all comes back to this point that like, hey, what we all saw in those 10 hearings was or witnesses performing some incredibly well telling compelling stories with what seemed to be good recollections, but they were not subjected to cross-examination. And that is a totally different ballgame. Totally different ballgame. There was no judge. There were no rules of evidence. Here say it was completely, I wouldn't even say admissible because there was no one to admit or deny the admission of anything. You know, there are no rules in front of Congress, really.

The way you authenticate a document in a hearing room is by waving it in front of a television camera. That's not quite the way you do it in a courtroom. But Andy, you're right in a real criminal trial, the defendant or defendants would get discovery in the forms of what other witnesses say. So let's say again, Alison's our witness. We would have to turn over to the defendants, everything she said. It's called Jank's material and it's mandated by rule that the other side gets to see what the witnesses against them have said. But, but Andy, they wouldn't get the

deposition testimony of a thousand witnesses. They would get the deposition testimony of the witnesses we were calling a trial. But to your point, here they have access to everything. And so it does, it's a gold mine for defense attorneys, not that they're not entitled to the occasional gold mine, but this is not the type of information they would get under the federal rules of criminal procedure. I think most many, the majority of defense attorneys are, you know, honest law-abiding, played by the rules, but there are some who don't, and this is going to enable them to help shade testimony

to protect their clients at trial. Yeah, no question. Yeah, and there already seems to be, even prior to the release of any of these transcripts or the hearings, some sort of, some coordination among, you know, Trump lawyers, some of the paid by the Save America Pack, the Cassidy Hutchinson testimony, for example,

and Pasantino. And then of course, a lot of these transcripts that have come out already are mostly the first batch that they put out was like 30 or so people who just basically all pled the fifth. And I have to imagine that they all, as soon as they heard what the committee was asking them, went back and shared with their group in Trump World what the committee knew and what they were looking

for and what they were asking for. So there was already, and there was already some intimidation, as we now know, at least on behalf of one witness or in with regard to one witness, Cassidy Hutchinson, what are your thoughts on what they've released so far? I wasn't too concerned about all the stuff where they pled the fifth, because like I said, I'm sure they were already coordinating prior to them being released. But I feel like this Cassidy Hutchinson testimony has a lot more to it and could potentially make life hard for some prosecutors, particularly when investigating obstruction of justice. So there's a bunch of things in your question, Alice. And first, I didn't like dumping into the public sphere any of the testimony.

And even though I am no fan of former president Trump or his minions, I also don't think it was particularly fair to dump into the public sphere. People invoking their Fifth Amendment privilege against self-incrimination. Right? The Supreme Court has been clear. That privilege, if you believe a truthful answer to a question would tend to incriminate you, is to protect the innocent as well as the guilty. Now, most of the time, practically speaking, folks who invoke the fifth are more likely to be guilty than innocent, but not always. And so why is that going into the public domain? For what purient interest are we doing that? I mean, if you don't learn anything about the substance of the investigation from them, then it's only there so we can demonstrate that they took the fifth.

That doesn't seem like a good idea to me. And I don't think it's something the Department of Justice would do. A second question that you asked has to do with something called joint defense agreements. If you and me and Andy are all subjects of an investigation and likely to be charged, we could hire lawyers who know one another, who trust one another, and who are friends with one another, and it's perfectly okay with our consent as clients for them to coordinate

and our defense and to share information. That happens all the time, and there's nothing wrong with it. Each attorney, your attorney Allison for you, Andy's attorney for him, my attorney for me, Andy's attorney for him, my attorney for me, asked to first and foremost, protect their individual clients. That's their ethical obligation. But they can share information. And so I'm not concerned when attorneys form joint defense agreements or share information,

as long as they're doing it, with the knowledge of their clients and the interest of their clients. But there's a third question I think that embedded in what you asked, which is, well, what about what seems to have happened with Cassidy Hutchinson and her lawyer? So there's two ways to think about it. And frankly, we don't know which of these things happened. Her lawyer could have said to her, look, Cassidy, if they go in there, if you go in there and

they ask you a question and you genuinely don't know the answer to it. Tell them you don't know, tell them you don't remember. It's okay not to remember. There's nothing wrong with not remembering. That's fine if that's what happened. On the other hand, if her attorney said to her, hey, Cassidy, if they ask you about Alison, you've never met her and you've never heard of her, even if that's not true. Don't give up anything on Alison. Protect Alison at all costs. That's a problem because then you would be subordinate perjury. So she may have one recollection of what happened. He may have another, I wasn't there, I don't know. But I think you have to be careful about jumping to conclusions about one transpired

between the two of them. The first thing is fine. If they ask you something and you don't know the answer, it's okay to say I don't know. Don't guess, not remembering is not a crime. The second thing, you know, asking someone to lie or to shade the truth, that's a problem. But I don't know how we know which of those two things happened. It's a tough situation and as you read through her transcript, which of course, to your point, Chuck, is entirely her recollection, right, of these things that she conversations

she had with him and experiences she had with him and she's relating it in what would have been, I guess, at least a fourth interview with the committee. So that transcript, it shows kind of both things happening, right? There are some things that her lawyer does over the course of their representation that might strike people as strange, but really is just very standard aggressive advocacy representing your client, like working with, calling the committee back and trying to discourage them from calling your client in for another interview, trying, you know, trying to downplay to the committee what you think, you know, what your client knows. Oh, she doesn't really know that much. She didn't have great access. These are the sorts of things that lawyers do every day

in representing their client, especially clients who have an interest in maybe not wanting to appear for whatever reason. And so that's really on the regular side of the equation. But then there's these other very strange things that happen. Again, according to Ms. Hutchinson, between the two of them, like the fact that he won't give her a letter of engagement, the fact that he won't disclose to her where the money is coming from to pay his bill. According to her recollection, things that he says along the lines of, where she says, she

apparently tells the committee at some point that she doesn't recollect something. She walks out into a recess, really has an emotional reaction to that and tells the attorney, I think I lied, I think I lied, I might be in trouble. And his reaction is, it's okay, they don't know what you know. So therefore, it's okay to say you don't recall. That, to me, is pretty clearly over the line into encouraging your client to use, I don't recall, as an obfuscation for knowledge that you actually have, which is kind of beyond the pale. I agree with you on that last thing. If in fact she knew and he encouraged her to say that she didn't know or didn't recall, that's a problem, clearly a problem. You know, I think Cassidy Hutchinson is a really good example of a couple of things.

Let me give you another, I mean, another thing that I'm concerned about with respect to her. I thought she was incredibly articulate and truthful. In other words, when I saw her testimony, her public testimony during the committee hearing, I believe that she was telling the truth. I don't know that, but that's how it came across to me. And like you, Andy, I've seen hundreds of not thousands of witnesses. That doesn't mean she was right. So for instance, when she talked about what happened in the president's limousine, she could have been faithfully relaying to the committee what somebody told her. And that somebody could have either been wrong or aligned to her. That's why her

testimony before the committee was hearsay and would not have been admissible in federal court. So hearsay is an out-of-court statement, something that you say outside of court that's offered for the truth in court. So the president tried to grab the steering wheel, or the president said X, Y, and Z or the president lost his temper or the president said X, Y, and Z, or the president lost his temper, or the president threw a cheeseburger, or whatever she was told that the president did. If she saw it or heard it, she's the recipient witness, and it's admissible. If so, it's told her that the president said X, Y, and Z, or grab for the steering wheel, you'd have to call that other person as the witness at trial,

because they would be the recipient witness. And so I found her both entirely credible, very articulate, very bright, and perhaps wrong. Yeah, and that difference between a hearing and a trial. I totally agree. And as a side note, I also felt, even that day when she gave that testimony, I felt like the committee

really committed a strategic error. And I think did a disservice to her. I agree. Drawing that really very high profile, that was clearly the line and the element of her testimony that the media was going to latch on to. It's a, it's a really powerful story, but it's one in which they put her all the way out on a limb, giving that kind of almost double hearsay testimony. It wasn't artfully presented And they left her out there vulnerable to these attacks

that she had made it upward. She lied or a recollection wasn't any good, which is of course exactly what happened in the week that followed all sorts of unnamed people speaking to the press saying that contradicting what she said or said there were other people closer to the events who disputed what she said. So it was kind of an unforced error,

I thought by the committee and one that had the ultimate effect of damaging their witness and damaging potentially an important prosecutorial witness if there is ever a trial based on these events. Well, there are other things where she is a precipiant witness. There are things that she directly heard and things that she directly saw. And again, I found her incredibly articulate and thoroughly

credible in the retelling doesn't mean she was right. You know, go back to the analogy I used before. If Allison tells me the light was green and I tell you Andy, the FBI agent that Allison said the light was green, you don't actually know what color the light was green, and I tell you, Andy, the FBI agent that Allison said the light was green, you don't actually know what color the light was. You just know what I told you based on what Allison told me. And that's a very different thing. So I agree with you. It's an unforced error.

Also, and this goes, this harkens back to something we talked about a few minutes ago, the attacks on Cassidy Hutchinson. This is what happens when you put people out there. They get attacked fairly or unfairly. And some number of witnesses probably seeing what happened to Cassidy Hutchinson didn't want to come forward. So now that a thousand transcripts are being dumped into the public sphere, how does that help the Justice Department do its work?

Yeah, and of course, when Tony Ornato came back in to testify about that exchange, he said, I do not recall. And so that's how you can help the other side with releasing what you know, so that they can prepare to go in and say things like that. Chuck, I have a question about the future because I'm asking this because I have had multiple people concerned with what the 118th Republican Congress could do to perhaps kneecap the

Department of Justice, prosecutions and investigations, specifically dragging in witnesses like Scott Perry, who we know the DOJ has been looking at since at least May, and immunizing them, or bringing in other witnesses and immunizing them so that they can't be prosecuted in the Department of Justice. But that seems to cross some sort of a separation of powers boundary to me. Can you talk a little bit about, because that didn't happen during the Mueller investigation. You know, they didn't try to sabotage the Mueller investigation by bringing everybody in and immunizing. I just don't think that that's a possibility,

but a lot of people are asking about that and are concerned about some of the, I guess, shenanigans as the best way I can put it of what this Republican Congress might have in store. Can you address that? Yeah, it seems remote that they could kneecap the Department of Justice by immunizing witnesses. Let me explain that though.

If a witness is immunized before Congress and he or she gives full accurate and honest testimony pursue into immunity, then generally speaking, they've gotten a get out of jail card. That can't be used against them because immunity essentially substitutes for your Fifth Amendment privilege. Allison, if you were invoking your Fifth Amendment privilege in a bank robbery that you committed, and we immunize you, and we compel you to test invoking your Fifth Amendment privilege in a bank robbery that you committed.

And we immunize you and we compel you to testify. We're doing that in return for a promise that we are giving to you not to use your incriminatory testimony against you. So I guess theoretically Congress could immunize witnesses, get them to tell the truth. It would have to be the truth. You can't be immunized for a lie. It has to be for the truth. And then tell the Department of Justice, okay, well, there you go, guys. You now have immunized testimony in the public sphere. And so, you know, you can't use him or anything he said or any leads that are derived from that.

That's not entirely true. The Department of Justice could have a clean team. They could filter, they could wall themselves off from the immunized testimony. They could demonstrate to a judge in a court one day that information they obtained about Allison or about some congressman was obtained independently and not pursuant to any immunized testimony that you gave Allison. That gets pretty cumbersome.

And without going into sort of great detail, that was a problem in the Oliver North trial, immunized by Congress, prosecuted by the Department of Justice and the Department of Justice as I recall was not satisfactorily able to demonstrate that the information it used that the information it used came from a source other than his public immunized testimony. So could they complicate things through the Department of Justice? Perhaps could they kneecap the Department of Justice? I don't think so. I think that's a little far-fetched. Good to know.

Well, I don't know that I'm right by the way, Andy. Oh, it doesn't matter. I'll just take I like your opinion. So I'll just accept it. I enjoy your confidence. So I'm gonna go with it. I'm gonna run with it. So okay, Chuck, how about a big picture? As you look at what the special counsel is doing, having responsibility both for the kind, I'll call the Mar-Lago case, the documents case, and then of course the January 6th cases, whatever spins out of all of that inquiry. What do you think in terms of timing with respect to the two of those,

the two, those two separate efforts, and when do you think we'll see kind of big moves, possibility of charges or a decision on whether or not to charge in those cases? I want you to pay attention to how I do not answer your question, Andy. This is a master class and how to comment on television. Let me just say it this way. I know folks have been upset that the Department of Justice has not been moving more quickly. Number one, I don't know that that's true. I know folks have been upset that the Department of Justice has not been moving more quickly. Number one, I don't know that that's true. I mean, most of an investigation is done,

forgive the analogy, underwater, like a submarine, which only occasionally surfaces, fires a torpedo and goes back down. So they could be doing a lot and they could have been doing it quickly. We're just not seeing it. And so I don't think folks should assume that silence means in action. Second, if I have a choice only between going fast or being thorough, I'm going to take being thorough every time because you really only have one shot at this. Third, we know they've been investigating this for a long time. I mean, the attorney general has said as much, and that's a big, complex, cumbersome investigation. You know those things, Andy, from your own experience, take a long time. So I don't know that this strikes me as being particularly slow.

I don't know to try and answer your specific question when we're going to see a charge, but you know, it doesn't strike me that this has been sort of particularly or egregiously slow. I would also say that I don't think of these as separate cases. I've heard people comment that the Mar-a-Lago case seems really easy and discrete and should be brought now and independently. I don't know if I was a prosecutor that I would bring two separate cases against a former president. I would wait till I had everything, and if possible, join them in a single indictment, in one place, in one proceeding.

I also don't know that the Mar-a-Lago case is as simple as people make it out to be. You would also have to show that he had a role in moving the documents knowing there were classified. Now, finding someone is desk is pretty helpful. That's pretty good evidence. I remember a case I had where we had charged someone with structuring a hard thing to prove that someone knows is unlawful, except that we found the statute in his desk drawer. It helps, but I don't know that it's conclusive. It helps to have a subject who's studying the law you're going to charge him with as you're trying to prove his knowledge of the law.

You know, it's a really interesting point about holding off and bringing both together, because I've heard the same sort of commentary about these two. I also don't think that Mar-a-Lago is nearly as simple as it's been portrayed by some folks in the media. I have an agent's ingrained learned understanding and perspective that there is no such thing as a slam dunk that every case is more complicated and harder to prove. And then you think it is at first that when you think you're rolling into a case just to make that, you know, it's the wrap up case, the one that you did

on the side of your big Rico investigation, just because it was there and it needed to be done. Those are the ones that turn into the Vietnam that never ends and leads to widows of trial or something. So yeah, I think Mar-a-Lago, there's more than meets the eye at Mar-a-Lago, would be an interesting tactic for them to take though to combine all that stuff in one effort. Well, Andy, I always thought my job as a federal prosecutor was to think of the hundred

things that could go wrong, not the hundred things that could go right. And so, you know, maybe I drove the agents with whom I worked. Crazy. I'm confident of that. I'm confident that you're confident of that. Yeah, but like, I mean, you know, a lot of times we hear, we'll just get them on one thing and then bring superseding indictments later. But I mean, don't you then start the speedy trial clock and put yourself under the gun when you do something like that? It doesn't seem like a

reasonable way to go. I wouldn't recommend that here, Alison. And so superseding indictments, bringing one charge and then adding others, makes sense under certain circumstances. Let's say you Alice in that violent bank robbery we talked about earlier. And we think you're probably good for a dozen bank robberies, but we got you on one, we charge you, we arrest you, we detain you, we get you off the street, and then we have

a little bit of time to investigate the other 11 and charge those subsequently. That's fine. And that makes sense because you're a threat to public safety. But here you have a document's case at Mar-a-Lago, and you have a whole series of different cases related to January 6 in correction, an obstruction of government processes, defrauding of the United States, but no ongoing immediate public threat, I would say, not in the same way as a bank robber walking into a lobby of a bank with an automatic weapon, right? It's sort of different. And so the government has, I would say the luxury of time to do it at once and do it all right and doesn't need to charge a piece of it and then another piece of it and yet another piece. That doesn't make sense to me here.

Yeah. I mean, I do hear a lot of people is concerned, well, when he's out, he's still spreading the lie and spreading the big lie. I mean, it was 20 months after the election. He called up Robin Voss over in Wisconsin and tried to get him to overturn the election again and he's out there still doing it. Well, he's always going to be out there. Alison, I mean, even if you charged him tomorrow, it's not like he's going to be detained

or muscled. Always been my point. That's always, but if we indicted him six months ago, he'd still be out doing his thing, waiting trial, waiting trial out on bail. He is every attorney's nightmare client. He's the, he's the biggest nightmare client ever. I mean, I can't even imagine that. But hey, he's fine as he finds attorneys when he needs them. So good for him. Yeah, that

$3 million a pop, right? Here you go. Thank you so much for joining us today, explaining this to us in a way that's easy to understand. Former US attorney, MSNBC contributor Chuck Rosenberg, we appreciate your time. Thanks so so much Chuck. Well, thanks for having me, Allison and Andy. Everybody, stick around. We'll be right back to discuss the obstruction of justice considerations pursuant to the release of the January 6th Committee findings. Stay with us. I'm Greg Oliar. Four years ago, I stopped writing novels to report on the crimes of Donald Trump and his associates. In 2018, I wrote a best-selling book about it, Dirty Rubles.

In 2019, I launched Proveil, a bi-weekly column about Trump and Putin, spies and mobsters, and so many traders! Trump may be gone, but the damage he wrought will take years to fully understand. Join me, and a revolving crew of contributors and guests, as we try to make sense of it all. This is Preveil. So, Renato, do you still have your own podcast? Yeah, it's complicated. What's so complicated about a podcast?

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

Wait, does that mean our podcast is going to have a steam op segment? Let's not get carried away. But we'll discuss hot new legal topics. So check out our new episode, coming soon to everywhere you get podcasts as well as YouTube. Welcome back. Okay, let's switch up a little bit this week and talk about potential obstruction of justice. One of our guests last week, Ryan Goodman, wrote this for just security after the January 6 executive summary came out. And I'll quote, on Monday, the House Select Committee investigating the January 6th executive summary came out."

On Monday, the House Select Committee investigating the January 6th attack on the United States Capitol released an executive summary of its final report, which focuses primarily on former President Donald Trump's alleged criminal efforts to overturn the 2020 election. The committee, however, also presented new evidence of criminal efforts to interfere with its investigation. On the part of some witnesses, their attorneys, and others associated with the former president, it's the kind of evidence that may have far-reaching implications, including bolstering special counsel Jack Smith's January 6th and Marlago investigations." So really great summary from Ryan about what we all heard in the special counts. I'm sorry, in the January 6th committee's presentation

earlier this week. It was definitely one of those moments. As I was watching it, Alice, and I thought, like, oh, wow, they're digging in deeper on this issue than they ever have before. Yeah. And I thought, you know, interestingly with, you know, just talking with Chuck Rosenberg saying that we don't necessarily think these things aren't connected. Ryan says, this evidence could have implications bolstering Jack Smith's inquiry into January 6th and Mar-a-Lago. And of course, you and I had talked about in the, I think it was the episode that we discussed the scope of the investigation

and how obstruction of justice fits in there. And it's not just obstructing Jack Smith's investigation, but it could be obstructing the January 6th committees investigation. And that's, you know, and this is where we learned, I mean, so much has come out with this Cassidy Hutchinson, these two transcripts and what the committee came forward with on Monday, but particularly confirming that it was, in fact, Stefan Pasantino, her first attorney who tried to, you know, get her to say she didn't

recall when she actually did recall. And of course, as Chuck reminds us, that's her recollection of what happened. But apparently she might have some text messages that can be added. I heard Barbara McQuade talk about potential text messages. That would be very, very important evidence if you were trying to prove some sort of witness tampering or subordinate purgerie obstruction of justice or even a 1,000 and one charge. But, you know, saying I do not recall, when you do recall, to me that's telling you're, if that happened, that's telling your client to lie. And then also dangling jobs with

high compensation and payment just prior to her depositions seems like. Yeah, really problematic. I was reading that transcript just yesterday and just kind of like each page, you know, there's another like, oh my gosh, moment. Now, to be clear, as we discuss with with Chuck, that transcript is Cassidy Hutchins' recollection of her interactions with her former attorney, Stefan Pasantino. He may have a very different recollection of those things. He may recollect things that he said that were, you know, advising her not to abuse the,

I do not recall, and that she didn't remember that in her testimony, who knows. So we can't sit here and say with perfect clarity, whether any sort of kind of nefarious conduct took place here. But I do think it's probably helpful to talk about a couple of the laws very quickly that could form the basis of kind of an obstruction,

certainly an obstruction inquiry. So this is probably some of the laws that the special council team is focusing on right now. As you mentioned, Alison, you always kind of start with what we call 2001. So it's 18 US code, 2001. And it's basically the false statements statute and what the false statement statute requires is that you make a false statement is that you make a false statement to a representative of the government and the thing that you falsify is a material fact. So not just some kind of, doesn't really matter type of fact, but something that's material, you know, to the inquiry

that's being conducted. Honestly, it's hard for me on this, on the very discreet question of the interactions between Hutchins and Pasantino. It's hard for me to see how 1,001 would really apply. Unless you brought one or both of them in for an interview about this later, and you had some feeling that they misled the agents or attorneys in the course of that interview.

The next law they might be looking at is 18 US code 1505, which is obstruction of proceedings before departments, agencies, and committees. This is an interesting one because, you know, technically you could use this against either Hutchinson or Pasantino. So the first part of the code requires, it says whoever with intent to avoid evade or prevent or obstruct compliance will fully with withholds, sorry, misrepresent.

Basically lies in answers to written in our agitories or oral testimony, which is the subject of obviously an official inquiry. So that's the part of the statute you would use if you actually thought for some reason you wanted to hold Cassidy Hutchinson accountable for what she indicates might not have been completely forthcoming testimony. However, the second paragraph of the statute says, whoever corruptly obstructs or endeavors to influence, obstruct or impede the due and proper exercise of the power of inquiry under which any investigation

is being had by either the House, a committee of the House or any joint committee of Congress. So obviously I've kind of truncated this statute there to get to what matters. But that's essentially forcing someone else to mislead or withhold information from, in this case, a congressional inquiry. So that's the one that you could see might apply to an attorney who overtly influenced their client to kind of, you know, say they didn't recall when they knew they actually did recall. And finally, there's 18 USC 1512, which is tampering with a witness. This is a long statute in relevant part, most relevant part. There's two little pieces that I think are relevant here. Section B1, which is whoever corruptly persuades another person with intent to influence, delay,

or prevent the testimony of that person in an official proceeding. Obviously, that could impact a lawyer who kind of nefariously guides their client into misrepresenting or falsely answering questions, or section B2A, which is causing or inducing any person to withhold testimony from an official proceeding. So there are some significant federal criminal laws here that could probably form the basis of the special councils. And we haven't even talked about ethics problems. So attorneys drifting into this, onto this thin ice and putting their law licenses at risk by violating the attorney's ethical code. Yeah.

And I'm assuming this could be investigated by getting a hold of passantinos, emails and devices, setting up a filter team, determining what's attorney client privilege and determining what might fall in the crime fraud exception. For example, like what happened with Eastman perhaps. I mean, that's again something that makes this just one of those tiny little elements that makes these kinds of investigations so cumbersome and take so long is because you have to go through those prosecutorial steps. And we all learned very well the three elements of obstruction

of justice, right? The obstructive act, the nexus to an official proceeding. And we have most decidedly determined multiple times in court that the one six committee is a official, is an official proceeding. Sure. And remember when Manafort sued like a hundred times to say that the Mueller investigation wasn't, you know, official proceeding and wasn't, you know, legitimate. Well, interestingly enough, you saw that in the transcripts of this week, right? Jeff Clark does that. John Eastman does that. They start off their testimony, which in which they never don't actually say anything is a privilege. And I don't recall, but they start off by giving

these impassioned statements of how the committee is illegitimate and they don't have the power to issue with subpoena and all all stuff that's been litigated a hundred times. It's kind of just kind of ridiculous to listen to. Yeah. And then the third thing is intent, which we've talked about a lot. And Ryan Goodman, he says it can be, as you just said, a federal crime for any witness to tell congressional investigators that she does not recall information when she does. In fact, clearly recall.

And as you said, it's also a federal crime for counsel to tell someone to commit that act. And he actually comes up with the Nixon-Halderman example, right? When Nixon says to Halderman, remember, I can't recall. I can't give any honest, an answer honest to that that I can recall. That's it. That's all you say, you know, and that we know how that turned out. Let's talk about how special counsel can use this information because Ryan Goodman reminds us that these individuals, these lawyers might not have any criminal exposure in

the scheme to overturn the election itself, but now could have criminal exposure for their actions toward the congressional investigation as part of a cover-up, he says. He says, quote, their potential criminal liability could provide leverage for special counsel Smith. And here's the key, not to charge him, but to try to flip individuals to cooperate against Trump in the January six investigations. And if they also have insights into Mara Lago, then that investigation as well. And that's one of those things that brings these two things together, you know, like Pat Sipaloni and Pat Filben, the Pats, they both have information on both of these investigations.

Yeah, that's absolutely right. So in the mind of the investigator, criminal exposure equals leverage. You're not going to ever charge every single person that might, maybe somehow, could have committed a potential offense, but you'll use the prospect of that as a way to open doors to sitting down and talking to people and getting them to cooperate with the investigation. So that really turns into a very effective thing. Now, let's remember, as we said earlier, very hard to say conclusively with any confidence what the situation was or will be between Cassidy Hutchinson and Stefan Pasatino. It's all based on those conversations that they had between the two of them. That can be a very hard thing to reconstruct in a prosecution. But interestingly enough, at the beginning of her testimony, the transcript that we received yesterday,

you see that she, before she starts talking to the committee, she waves all of her attorney-client privilege with Pasantino. So there's no longer a privilege between them that would restrict Pasantino from responding to, let's say, a subpoena or something like that. So you can, this is a fundamentally different situation. There's also, there would be verifiable facts to buttress Hutchinson's claims in the testimony.

For instance, and things that are just, if not indicative of criminal behavior, just show you that this was not the traditional attorney-client relationship. For instance, she asks for an engagement letter, which is the basic letter you sign with any attorney that you hire to do anything. It's basically them saying what they will do and what you can expect and what they can expect from you. It's kind of a standard, right, an expected standard in the business. And he allegedly refuses to give her one. She then asks him who is paying your bill, because that was her primary concern at that

time, finding an attorney that she could actually afford. And he doesn't tell her who's paying the bill. He then makes it clear to her that without her consent, he's communicating to others, the results of her interviews with the committee. So there's all kinds of indicators that there's something else going on here. There is a relationship here that matters more than the one between the two of them. And my suspicion is, of course, that that relationship was between Pasantino and either Donald

Trump or people in and around Donald Trump and who were protecting his interests above and beyond everybody else's. Yeah. And interestingly, Pasantino's law firm has scrubbed his information from their website. I have to imagine he's being investigated for this at the very least, at the very least, and maybe that's why or they just were like,

okay, we don't wanna know you know more. And we also know Cassidy Hutchinson started cooperating with the Department of Justice way earlier in the year. And so it's very, it's also interesting, like you said, that she waived that attorney client privilege because that kind of removes the need for a filter team if they do try to confiscate, or if she hands over any of the communications

that kind of show or bolster her claims that she's testifying to. And we also confirmed another bit of news, to confirm that that phone call to her, where she got that phone call where they said, hey, redacted says, he knows you'll do the right thing and you're loyal to the team and blah, blah, blah. Right, right.

We've confirmed it was Ben Williamson. I thought it was Ben Williamson. And we've confirmed that the redacted person was Mark Meadows, who again, also just up to his eyeballs in this. I can't imagine he's not cooperating with the department of justice right now, but who knows or at least slow rolling them with his very good lawyers. Very, very concerning behavior. That, and all these conversations with her about job offers, okay, we'll talk about the job offer

at the end of the testimony today, like very, very clearly attaching the conversation about a potential job offer with, let's see how you perform in the interview first. Just a lot of really very suspicious and off-putting behaviors that most attorneys would never engage in. So, very, very strange situation there. One question for you. There is a part in this transcript. I mean, and you know, you and I spoke, we've been texting back and forth and talking to each other before putting together this episode, but just the whole story of her driving to New Jersey in a rainy cold night and googling Watergate to see how to be a whistleblower and buying Butterfield's books to figure out what he did

and wanting to do the right thing. But something that interesting in her transcripts is when she says, I lied. I lied, I lied, I lied, I lied, I lied. And I know that you had some concerns about, and this goes back to Chuck Rosenberg's concerns about releasing these kinds of things to the public. I mean, that could come back to kind of bite them, right?

Yeah, I mean, her, the, the transcript is really riveting on a number of levels. It's, it's kind of heart-wrenching when you put yourself in her position. Is she, she describes it incredibly well vividly, right? About young person having had this crazy experience working the White House now out of a job, no income, understanding that she's about to be served with a congressional subpoena, desperately looking for a lawyer, doesn't have money to hire one, trying to find one that would be independent

and really only have her interest at heart, but kind of gets drawn back into as she refers to Trump world, that Trump, you know, associated community because she's really under the gun and is struggling to find someone that she can, that Trump, you know, associated community because she's really under the gun and is struggling to find someone that she can, you rely on to help her through this testimony. Talks about these, these like really wrenching trips

back to see members of her family and asking people for financial support and not getting it and it's really compelling. But as you said, in one place, she goes in for her first interview with the committee and following what she believes is the guidance she's been given by her attorney, Stefan Pasatino, says, I do not recall to questions in which she knows she has relevant details to provide. And so at the first break from that, during interview, she and her turnie go into a private

room and she kind of freaks out and she's like saying to him, oh my God, oh my God, I lied, I'm going to get in trouble, I lied, I lied, I lied. And he then tries to calm her down and says, no, you didn't, you're fine, it's okay, they don't know what you know. So therefore it's okay to tell them that you didn't recall. And that's, you know, we've been saying like incredibly He even says Something something like

They don't know what you know And I know you think I know you think that they know yeah, but you only think that because you know it You have to remember you know like they don't know what you know, it's really amazing. But then, you know, now here she is. She's got on the record made these statements that she admits relies. So I can tell you, it's unlikely she'll ever testify under oath in a trial in which on, um, on cross examination defense attorney doesn't bring this up and say, by your own admission, you're a

liar. You lot, you've lied under oath before. Are you lying to us now? Now there's all ways, all kinds of ways you can rehabilitate that testimony, prosecutor would then stand up on redirect and point out that you voluntarily kind of admitted this to the committee went out of your way to find a new lawyer and be helpful and so So there's all kinds of you know elements in her favor But boy, it's tough when a jury hears that you called yourself a liar Yeah, I would I if I were the prosecutor I would

Smoke that out in the opening statement. Yeah, you have to I would say you're gonna hear the defense say that she's a Color a liar because she felt like she lied. That was only because she was being pressured by her Trump paid attorney to do so. And she was very concerned about, you know, I would I would preamp that I would what they call it draw the sting like right in the opening. Yeah, it's the time honored strategy of taking the sting out of it. So it's likely on direct examination on her first, you know, first several hours of testimony of, well, undoubtedly, be days if there's ever a trial, you know, the prosecutors would bring that out. They'd bring it up, they'd go through the whole thing, give her a chance to explain

it. But these are the kind of, you know, these are the kind of problems that witnesses are going to have having had all of this pre-existing testimony under oath before DOJ gets in gets a chance to really dig in and figure out what's going on. Yeah, the Trump, the Trumplers are going to know now that the prosecutors are going to draw that thing and have a, have a better way to respond to it and prepare their defense. It's something else really interesting I wanted to ask you about. And apparently according to Cassie Hutchinson, an unnamed Republican Congress person, eventually, you know, as you said, you were talking about her story, heart wrenching, talking about

not being able to find a lawyer, having the Pasantino problem, having concerns. And apparently she consulted with Liz Cheney. She was back channeling through Farah Griffin to get back to the council, to the committee to testify again, and an unnamed Republican Congressperson I guess introduced her to her now attorney who is working pro bono by the way, and it's somebody that you know it's Jody Hunt. It is Jody Hunt. So this is like classic DC world of everybody knows everybody I guess.

I was kind of surprised to see Jody in this role of being the not essentially what I confident Cassidy Hutchinson would describe as the non-Trump world attorney that she was able to rely on to help her get away from the previous attorney, she thought was maybe improperly influencing her performance. Jody Hunt was the essentially the number three in the department of justice under Jeff Sessions. So at the very beginning of the Trump administration, he was the head of the civil division

of the department of justice. I know Jody from having sat with him through many, many meetings and intelligence briefings we used to meet with the Attorney General at least three times a week to do the morning briefings, and Jody was off in there. I also know at that time, I didn't realize how kind of tightly plugged in Jody was to the White House and to the Trump administration. I learned that after Jim Comey was fired,

I had a series of well reported and bizarre and uncomfortable meetings with then President Trump. And in each one of those, Jody was there in the Oval Office, sometimes standing right behind President Trump, which I remember even at the time thinking, wow, this guy's the head of this civil division of DOJ, like what is he doing over here? So the meetings where Donald was like

denigrating your wife and talking about the fundraising and all that, that the plane ride back and, you know, for Komi, why did you let that happen, et cetera? All those meetings, Jody, yeah, that's it. I mean, there were three of them. They happened in pretty quick succession. He was definitely there. I'm going to say probably two out of three.

I couldn't tell you exactly which ones, but, um, yeah, he seemed to be like really very, very tightly connected to the Trump administration and certainly to the White House Council's office at that time, the White House Council was of course, Don McGann. So it just surprised me in this context to see Jody kind of riding in at the last minute and kind of rescuing Cassidy Hutchinson from her Trump-provided attorneys.

But hey, she seems to have the, uh, representation she needs and, uh, he's providing it. So I'm sure that's a good thing for her. Yeah, I would love to hear the Jody Hunt story of when he got off the Trump train and started hanging out and conutling with like Liz Cheney, you know, and that's that set of Republic, the other set of Republicans. That would be very interesting to you. you can't tell the players without a scorecard is my grandmother was said, but you know, that's just DC for you. I'm very interested to know that I hope you do. I hope you write a book that, you know, maybe a future witness can can order in the middle

of the night on her way home to New Jersey. There you go. Thank you so much to Chuck Rosenberg for taking time out of his schedule to come and speak with us. Absolutely. Just a wonderful guy, very knowledgeable. And like I said, he's the epitome of word economy and succinct and able to break down complex issues. He's one of my heroes in that respect. And Andy, thank you. Thank you for doing this, this whole podcast with me. And thanks for episode four. And I hope you have a really, really happy holiday and Merry Christmas. And we know, and we will be doing another episode

before the new year or I would wish you a new year as well. There you go. And thank you, Allison. It's been a pleasure as always, It's always interesting and of course to chuck my friend. Thank you for pitching in this week and look forward to meeting with you same time next week. Yeah, we'll see you then. Everybody until then, I've been Allison Go. And I'm Andy McKay. We'll see you next time. Hi, I'm Harry Lickman, host of Talking Feds. Around table, it brings together prominent figures from government law and journalism for a dynamic discussion of the most important topics of the day.

Each Monday, I'm joined by a slate of Feds favorites and new voices to break down the headlines and give the insiders view of what's going on in Washington and beyond. Plus, sidebar is explaining important legal concepts read by your favorite celebrities. Find Talking Feds wherever you get your podcasts. M-S-O-W-Media. you