Jack - Episode 63 | Clear Error; Manifest Injustice (feat. Brian Greer)

Episode Date: February 11, 2024

Brian Greer joins to discuss the CIPA process and Trump’s latest attempts to derail the Mar-a-Lago case; DoJ’s response to Trump’s motion to compel, and their motion for Judge Cannon to reconsid...er her ruling; Just Security outlines some possible timelines for the DC case to proceed; plus listener questions.Brian Greerhttps://twitter.com/secretsandlaws Brian Greer’s Quick Guide to CIPAhttps://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/  AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to know:Rule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow 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 ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis 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

Discussion (0)
Starting point is 00:00:00 MSOW Media I signed an order appointing Jack Smith and those who say Jack is a finesse Mr. Smith is a veteran career prosecutor What law have I grew? The events leading up to and on January 6th classified documents and other presidential records You understand what prison is?
Starting point is 00:00:24 Send me to jail! Welcome to Episode 63 of Jack, the podcast about all things special counsel. It is Sunday, February 11, 2024. I'm Andy McCabe. Hey Andy, I'm Allison Gill. And thanks to everybody who listened to the bonus episode on the immunity ruling in DC. And Andy, I'm really glad we did a separate episode because otherwise this episode would be like two hours long. Yeah, we need an intermission in the middle of it. And by the way, that, it's out now if you haven't listened to it. It is the first episode after 62 weeks that we have had to break in and do an extra episode.
Starting point is 00:01:09 So I encourage everybody to listen to it. But we have a lot to get to today. We'll go over potential new trial timelines for DC. But we have so much to cover down in Florida with the Mar-a-Lago documents case, including Jack Smith's response to Trump's ridiculous, overbroad motion to compel discovery, along with a ruling on that motion from Judge Cannon that Jack Smith says contains a clear error and manifest injustice and could be what leads to the first appeal to the Eleventh Circuit by the government, depending on how she rules.
Starting point is 00:01:42 I'm thinking clear error and manifest injustice is not what you're gunning for as a federal judge, but we'll see how that plays out. Maybe I'm wrong. We also have another Trump motion to delay in Florida. This one's asking for more time to file pretrial motions, including one on absolute presidential monarchy. I'm sorry, immunity. one on absolute presidential monarchy. I'm sorry, immunity. But first we need to discuss the latest in the SIPA process, which means it's time to talk to SIPA expert Brian Greer for our under seal segment. That's classified.
Starting point is 00:02:20 What? That's classified. What? It's classified. I could tell you, but then I'd have to kill you. Brian Greer, welcome to the show. Thanks for having me back. We needed you this week because we have a lot of weird stuff going back and forth with this Sepa section 4 stuff. So I was hoping you could give us a little reminder about how it's supposed
Starting point is 00:02:50 to normally go and then what we're seeing happening in the last couple of weeks here. Well, first, you know, we named this segment under seal probably like six months ago. And now I think the name has finally come into fruition. like we have now finally all these sealed proceedings Which are all sort of bubbling up this week with the sepa section for with the motion compel everything So I'm glad the name is really finally playing out. Let's hope the name doesn't change to no longer under seal It could be expedited appeal So yeah, it's just we've covered this before but just to refresh everyone on what is SEPA section four.
Starting point is 00:03:27 So in short, it's a tool under SEPA that allows the government to protect classified information that technically meets the standards of discovery, that it is relevant to the case and discoverable under Rule 16 of the Rules of Criminal Procedure. But because it's classified, the government wants to assert what's essentially a classified information privilege, just like executive privilege or attorney-client privilege, to protect it in discovery. And then SEPA provides the tool for doing that.
Starting point is 00:03:55 And so what the government does was it'll go in an emotion and with supporting declarations and say, hey, there are some documents out there, information that is technically discoverable, but we want to basically sanitize it in different ways. It could be redacting it. It could be excising a discoverable sentence and putting it in a new document or summarizing it. Any of those tools, but they need the court's blessing to do that because the court needs to look at all and make sure that the defendant is in substantially the same places to defend themselves as if that hadn't happened. And so that's pretty normal in every single case involving classroom
Starting point is 00:04:29 information. It's going to be a lot different here and we'll talk about that, but that's the normal process. And I would just add the normal stance of DOJ is to aggressively use it. In the DOJ guidance, it says you should use section four to remove anything from discovery that you can. That's the guidance prosecutors. That's not really what's happening here, but we'll talk about that. Right. Right, and so, you know, when we get to see section four,
Starting point is 00:04:55 that's when the DOJ, the government is supposed to meet with the judge in camera ex parte without the defense there at all lawyers or defendants to go over how they're going to sanitize the information so that the judge can make the call. And then usually after the judge and the DOJ come to some sort of agreement, the defense will have an opportunity to challenge any of that, right? But what are we seeing here that's different? Well, one thing that's different is just the fact that she's giving consideration to Trump's motion
Starting point is 00:05:32 and the other defendant's motion for getting access to the information. They have said, we wanna see what DOJ is filing in their briefs under section four. And obviously, just to say it's obvious, the whole point of the DOJ litigation is they shouldn't see it. So if they get to see it, it just defeats the whole purpose of SIPA section 4. So I think that even they kind of get that and say, well, if you won't let us see the classified information, at least let us see the unclassified
Starting point is 00:05:57 portions of DOJ's motions and briefs. That's a little harder. She judges don't normally do that. Frankly, that stuff is just boilerplate Legal standards, right? So I don't think it would be the end of the world if she let him see that But it would still be abnormal just because there's no real point to it usually but her letting them make all these motions Well, they can make the motions but seriously entertaining to the point of giving them hours of argument coming up next week about it is definitely unusual.
Starting point is 00:06:27 Normally, this would have been dismissed pretty easily. And I know you can't answer this question, and now I'm going to ask you anyway. Why? Why are we here? Do you think that what's motivating her or driving some of these really outlier decisions about SIPA is that she doesn't understand the process or she's never dealt with it before, maybe doesn't have the right context about why it's so important for the government to be able to protect classified and sensitive information, but it's also important
Starting point is 00:06:58 for them to be able to use it in a transparent way that's clear and relevant to the defendant in a trial. It's like you have these two totally at odds competing ideas at play here. And what she's doing is really rattling the foundation of the process that we came up with years ago to facilitate actually having fair trials about this stuff. Yeah, the actual question is, is Judge Cannon incompetent or evil? I think it's what it boils down to. So there's definitely the evil element which everyone can draw their own conclusions on in the bias issues. Incompetence I think is definitely absolutely part of it. A play area.
Starting point is 00:07:41 There's still, I'm not really an optimist, but I try to present an optimistic view to everyone and I'll do that here, which is to say she's never been through it before and now she has, right? Like the first thing she did was instead of having, she does have this hearing coming up this upcoming week, two-day hearing about SIPA, but then she asked DOJ for an earlier one back on January 31st, which was sort of a pre SIPA section 4 hearing where she met with them for a couple hours to talk about all this, which is what she normally should have done.
Starting point is 00:08:09 So the fact that he achieved and realized after looking at the motions and stuff, hey, I should meet with them ahead of time, a little bit of a good sign. And then this might be a good transition into the Trump, what's going to happen with Trump? So because I think there's maybe some reason for optimism there. She has no idea what GOJ has been planning until she read their briefs and their motion. GOJ with Trump, I think, is going to certainly take an extremely narrow, limited use of SEPA Section 4. He was the former president of the United States.
Starting point is 00:08:38 And normally any defendant would get access to the classified information in an espionage act case that they had access to while in government. And so they're probably turning all that stuff over to him. What they're only really probably withholding is very limited things that occurred after he was president and that are probably in pretty limited documents. The hypothetical example I think of is, let's say the CIA sent a cable out overseas to the station to say,
Starting point is 00:09:03 hey, go talk to the liaison service. Tell them we regret to inform you that there was some identifying information about your source in one of the Trump documents. And here's what it said. And they wrote back to the CIA and said, you know what, we looked at it, not a big deal, we don't think it identifies them, he's good.
Starting point is 00:09:20 That would be technically discoverable. But DOJ might want to say, hey, we don't want to turn over to this whole cable Maybe it talked about other things. Maybe it revealed the name of the source, which isn't really relevant to this case There's all sorts of other information cables just not relevant Let us just take that little sentence out hand it to Trump's lawyers and classified discovery Delete the rest that it could be very narrow things like that that she she should have no heartburn with. And these are smart prosecutors. So I'm hoping that with Trump, they see, oh, wow, they're actually being very tailored with this. Maybe I'm good with it. And then at the same time, she is hearing
Starting point is 00:09:55 their, the Trump's and other lawyers' arguments as to why, what their discovery theories are, so she can better evaluate that. So if you put those two together, maybe just maybe she'll come to the reasonable conclusion. All right, fingers crossed. Now, can DOJ respond to Donald Trump's assertions? Like, you know, how you generally have a brief and a response and a surreply or reply and a surreply. Like, if Trump's like, look, we need to see these and here's why. Can Jack Smith or Jay Bratt or somebody on the prosecution team have an opportunity to rebut those arguments and say, there's no law here, there's no citation? Because commonly, Trump will misquote or cherry pick or miscite cases or the law and get the facts wrong on the law, does the
Starting point is 00:10:49 DOJ have an opportunity to rebut those arguments that Trump might put forward to get access to these things? Yeah. I mean, there's two distinct but related issues. One is their arguments about why we should be able to participate in the Section 4 process and see the briefs. That's been briefed and that's been adversarial. But then there's the second thing that we talked about, which I think is what you're getting at, which is they are going to be allowed this upcoming week to go
Starting point is 00:11:15 into her chambers and explain their defense theories without the process of teachers being present. That is not abnormal in a SEPA section 4 case and permitted and something that would happen in a normal case. Sometimes the defendants just don't do it for various reasons, but DOJ is normally fine with that and they have no objection about here because it's the one sort of carrot that's given the defense of saying, hey, you can go tell the judge what you think your best defenses are so they can evaluate it. It's basically like an olive branch, right? We let the government have all this private time with the judge.
Starting point is 00:11:47 Okay, we'll let you have some too, although it's technically not nearly as relevant to the process which is necessary to protect sensitive information. Yep, yep, exactly. And one last thing on this, why are these hearings taking place now and not last November or last December? I don't understand the delay. Yeah. And I think even with, you know, she delayed everything in the fall, but even with the delays,
Starting point is 00:12:15 the government's SEPA Section 4 motion was filed December 4th. The same day, Trump and the other defendants put forth their arguments about why they should be given access to that stuff I think DOJ responded a couple weeks later about why they shouldn't be given access so this litigation was was done in late December and We've now waited all this time over a month and a half since then to have this hearing There's really there's nothing that's happened in the last month and a half that would affect this at all Trump might argue well we learned some stuff in discovery
Starting point is 00:12:47 That was real relevant like maybe that'll help on the margins But we've just wasted a month and a half for no reason it's this has been fully briefed and ready Since December so yeah, and so far up to this point It seems like these nickel and dime delay is a month here three months here to make rulings and make decisions and set hearing dates Has kind of been the MO But nothing overly egregious yet, right breaking violate in the law or the CEPA processes from judge cannon Yeah, I mean we're up on the edge. We'll see what happens with the motion to compel that you guys will talk about later We're on the edge here, but other than the delays for no good reason, she hasn't just gone over that
Starting point is 00:13:30 edge yet to create an appealable issue. Yeah. Yeah, she's a bit like my frustration with the Duke basketball team this season. No sense of urgency. Come on, fellas. Hustle down the court for God's sakes. There's no hustling down the court happening in Florida on this case either, so it's a little bit frustrating to watch. Yeah. Hey, Brian, can you tell us a little bit about what's happening with Walt Nauta and his partner there, Dale Lavera? They're in a little bit of a different track,
Starting point is 00:14:05 but relevant to the Section 4 stuff. Yeah, so remember, they're not charged under the Espionage Act, which means the contents of the documents at Mar-a-Lago that Trump's charged with aren't relevant to the case against them. DOJ isn't alleging that they've seen them, except for the one that Nata took a picture of, and they have shared that with Nata, the cover of that document NADA took a picture of and they have shared that with NADA, the cover
Starting point is 00:14:26 of that document that he took a picture of. The rest of it, DOJ's position is the defendants do not need to see those documents because they're not relevant to their case, the contents of them. They still shared them with their defense counsel though, unredacted and classified discovery. And normally in a protective order, that's something that would be sort of permitted is to share it with outside counsel only, cleared counsel only, not the defendant. And then if they want to make a case, hey, we should be able to see the, I need to show this document to my defendant.
Starting point is 00:14:54 Sure, yeah. They asked DOJ, DOJ says no, they get to go to the court. Here, Cannon flipped all that on its head. She said everything basically is presumptively going to be shared with the defendants. And DOJ has to use section four to pretend to prevent said, she said everything basically is presumptively going to be shared with the defendants. And DOJ has to use Section 4 to pretend to prevent Nauda and D'Olo Vera from seeing these documents.
Starting point is 00:15:13 It's just like reversing the burden of the whole process. Exactly. So it's a little nutty, but there again, to put the optimist tint on it, what that means though is in DOJ section four litigation and their briefs and supporting declarations, which are from probably very senior intelligence officials and way more detailed than they would be in a normal case. They have to go through all those documents one by one
Starting point is 00:15:38 and explain why they're classified and what the harm national security would be from the authorized disclosure. That wouldn't have happened in this case, but for this quirky thing that she ruled. She would have never heard till they were getting ready for trial about that. And so now DOJ is going to get this chance to make their case to her. Here's the real harm in this case, and they can do it right now, sort of, we're still frankly early in the pretrial process.
Starting point is 00:16:02 So again, probably not going to change your mind about anything, but maybe it will. So we'll see. If she's ever going to change your mind, it's going to be now. If she comes out of this same as always, then I think nothing's ever going to change your mind. So it's more delay, but it's possibly an opportunity to kind of open the judge's eyes as to what's really at stake here. Yeah, exactly. Yeah. All right, so, and speaking of delay,
Starting point is 00:16:29 Donald Trump has filed a motion to extend pretrial motion deadlines. And in it, he says, defendants currently plan to file on February 22nd at minimum a series of motions to dismiss the superseding indictment and certain of the charges therein. Specifically, although the defense is still evaluating potential motions, we expect to file motions on February 22 relating to the Presidential Immunity, the Presidential Records
Starting point is 00:16:59 Act, President Trump's security clearances, the vagueness doctrine, impermissible pre-indictment delay, that's a funny one, and selective and vindictive prosecution. And Trump asked for the deadline to be within one month of the court's resolution of the pending motions, so basically never. So Brian, what's your top line thoughts about that little grenade getting
Starting point is 00:17:24 thrown into the process? Yeah, well, on the delay points, I would refer people to DOJ's brief that they just filed on this that was, I think, short but excellent, saying, look, this was all supposed to be done on November 3rd. She didn't actually delay the pre-child schedule until November 3rd, so they should have been ready on all this on November 3rd, so they should have been ready on all this on November 3rd. They point out that they get the legal standard wrong because normally the whole point, as everyone knows who's been tracking the DC cases, is when you file these motions to dismiss you, accept what's in the indictment as true.
Starting point is 00:17:57 Right. So you don't need discovery. Their whole argument is we need more discovery to delay this. You don't need discovery under the law, which they conveniently omitted from their briefing with her. And then they came up with the excuse of, hey, they just gave us these 2,200 pages of documents. We need to delay for that. Can't possibly go forward now. Well, DOJ explained in the motion in their response that 2,200 is from probably the DC grand jury proceeding litigation about privilege. Half of them Trump's lawyers were given in that case.
Starting point is 00:18:28 It's just that those lawyers didn't give them to some of the new lawyers. And then the other half have already been produced in discovery in this case. And they didn't disclose any of that to Judge Cannon when they cited this. So hopefully she'll get upset by all this. The other thing that jumped out is the presidential immunity piece, which I think, you know, it's funny,
Starting point is 00:18:50 but it's also going to be aggravating when there is another delay because of this. But if you thought it was crazy to argue that he could order SEAL Team Sticks to kill his presidential opponent and be entitled presidential immunity, here they're going to be saying his post-presidential conduct, remember this is all post-presidential conduct, is immunized under presidential immunity, which is just a whole new level of craziness on this argument. And, you know, there may be some more serious elements. Hey, I was still president when I took him to Mar-a-Lago and then I shouldn't be prosecuted because when the clock struck midnight or noon, excuse me, on January 20th, I was no longer president anymore. They'll say he probably like effectively declassified
Starting point is 00:19:34 them by doing that. But still, the fact of the matter is he's only charged with post-presidential conduct. That doesn't mean you can just keep them forever and be absolved from criminal liability forever, especially when the government's asking for them back. So it will be silly, ultimately dismissed. Will it cause some delay? Sure, sure. I mean, probably, yes.
Starting point is 00:19:55 Yeah, but it says we plan on filing these against the superseding indictment. And the superseding indictment is just obstruction. It has nothing to do with this. Well, it's still, I think they just mean, it's still considered the operative indictment. So that means the full thing. Oh, I got it. I see. Not just the superseding charges. But to your point, though, this argument would have no bearing on obstruction. No bearing on obstruction. Or the other related obstruction charges. They may still come with some crazy argument similar to what we saw with bar in the OLC memo of if this was an invalid investigation, I think he was
Starting point is 00:20:34 Destructive the transitive property of presidential immunity. Yeah. Yeah, so they may come up with something pretty extreme But it should be dismissed the question is just how long is it going to delay things? Yeah. I do expect to see the argument that Bill Barr made that you can't obstruct justice without an underlying crime. And then he'll try to argue that there's no underlying crime here because he was president and he's immune or whatever. Yeah. But if it's all fruit of the fruity tree. If DOJ probably could do it over, they'd probably, I was looking back at the indictment,
Starting point is 00:21:07 for each charge it says the criminal conduct started on January 20th. They'd probably like make up some date further back, potentially on that, because just because they're going to point to that, I think Trump's lawyers won't say, see it was immediate on noon, that's not fair to a foreign president. But yeah But we'll see. Well, thank you very much, my friend. I really appreciate you coming on here and summon this up for us these last few weeks of SIPA stuff. And then, of course, I'd love to hear your opinion
Starting point is 00:21:36 about the immunity, post-presidential immunity. That's going to be a whole new thing. And because we waited forever for that DC immunity ruling. And now we could forever for that DC immunity ruling and now we could actually see that here. So anyway, we'll see how that goes, but we appreciate your time. Can you tell everybody where to find and follow you? Oh yeah, I'm on Twitter and other platforms at Secrets and Laws. Thank you so much.
Starting point is 00:22:00 Thanks so much. Thanks Brian, thanks so much. Great to see you again. Thanks a lot. Likewise. Everybody, stick around. Great to see you again. Thanks a lot. Likewise. Everybody, stick around. We'll be right back. Hey, everybody. Welcome back.
Starting point is 00:22:17 We're staying in Florida to cover Jack Smith's reply to Trump's motion to compel. You'll recall from previous episodes that Trump filed a similarly overbroad motion in DC and special counsel took it apart piece by piece. We've covered that on the show. Well, now we're doing the same do-si-do in Florida. We went over Trump's motion to compel in a previous episode. So now we have Jack Smith's 67 page response to Trump's motion to compel. Yeah, and it's a doozy. So Jack Smith opens with this.
Starting point is 00:22:52 The government will explain below why the defendants' showings fall short of applicable legal requirements. But before turning to those arguments, it is necessary to set the record straight on the underlying facts that led to this prosecution because the defendant's motion paints an inaccurate and distorted picture of events. The government will clear the air on those issues not because the court needs to resolve
Starting point is 00:23:16 factual disputes before denying the motion. It need not resolve the facts. But because the defendant's misstatements, if unanswered, leave a highly misleading impression on a number of matters. After that discussion, the government will turn to the underlying legal principles and their application to defendant's requests, all of which should be denied. The defendants rely on a pervasively false narrative of the investigation's origins. Their apparent aim is to cast a cloud of suspicion over responsible actions by government officials diligently doing their jobs. The defendants'
Starting point is 00:23:51 insinuations have scant factual or legal relevance to their discovery requests, but they should not stand uncorrected. Put simply, the government here confronted an extraordinary situation, a former president engaging in calculated and persistent obstruction of the collection of presidential records, which, as a matter of law, belong to the United States for the benefit of history and posterity, and, as a matter of fact, here included a trove of highly classified documents containing some of the nation's most sensitive information. The law required that those documents be collected, and the record establishes that the relevant
Starting point is 00:24:31 government officials perform their tasks with professionalism and patience in the face of unprecedented defiance. Defendants are not entitled to discovery of items that are not within the government's possession, custody, or control. Yeah. I mean, this is why I think this brief is 67 pages is because as you're about to cover, Jack Smith goes through the entire investigative process and crime going back to the beginnings and basically saying, look, the court doesn't need to know this, but we need to set the record straight before
Starting point is 00:25:13 we even get into the legal implications of what Donald Trump's asking for. Yeah, there is definitely... This thing rings with a sense of, we are sick of this BS. You don't typically get that from government filings. It's always very nothing but the facts straightforward. Sometimes they get a little bit more heated when they're talking about alleged wrongdoing actions, things like that. But this is really almost like a settling score sort of thing, but clearly the special counsel team felt it's necessary to do this, to stand up to this barrage of false information. Yep, exactly.
Starting point is 00:25:53 And then Jack Smith outlines all the facts, like I said, including the removal of presidential records by Trump, starting back on January 20th, the retrieval efforts by the National Archives, the delays and theval efforts by the National Archives, the delays and the continued efforts by the National Archives. There's even a section called, Fall Comes, and we still don't have it, you know. The leaves turn and there's no documents. And then the leaves turn and snow begins to fall. Yeah. And then finally, 15 boxes make their way to the National Archives. National Archives finds classified documents in those boxes.
Starting point is 00:26:29 Then in January of 2022, the archivist reaches out to the DOJ and says, hey, we got some classified stuff here. DOJ actually says to the archivist, go back to your inspector general, have them review this and then have them contact us. That is the proper process by which you make a referral to the Department of Justice. And Jack Smith and the Special Counsel's Office outlines this as a way to say, there's nothing nefarious going on here. We put every layer of every process, of every step of the entire thing.
Starting point is 00:27:07 In its correct place we did this the right way so then in February the next month of twenty twenty two that's when they make their official referral to the department of justice. And then finally he goes into the investigation including the subpoena what, what happened, the search warrant, and then the indictment. And after laying out all the facts of the whole timeline, Special Counsel's office dives in to the motion to compel, right? So he's set the record straight. And now, Andy, what does he have to say about the motion to compel? Well, he starts with kind of laying it out, right? He says, to prevail on a motion to compel, the defendants must make three showings.
Starting point is 00:27:51 First, they must describe the information they seek with sufficient particularity to demonstrate that the evidence is, quote, material to preparing the defense under Rule 16 or material to guilt or punishment under Brady. Second, they must demonstrate that the information they seek is within the government's possession, custody or control. Third, the information they seek must not be protected from disclosure by an applicable privilege. Each of the defendant's discovery requests fails to satisfy one or more of these requirements. Many fail to seek evidence material to preparing their defense because they are not specific,
Starting point is 00:28:33 are not accompanied by an explanation of how the items sought will significantly alter the proof in the defense's favor or are grounded in speculation and conjecture. Other requests seek evidence that even if it existed, would fall outside the scope of Rule 16 in Brady because it has nothing to do with factual guilt or innocence. I mean, it's like you would expect to see this on a review of like a first year law students paper, you know, like, no, you got the law all wrong. Stuff's irrelevant. It's nonsense. Yeah.
Starting point is 00:29:07 And we saw this in the DC filing too, where Jack Smith is like, this stuff doesn't even exist. Remember when he wanted all the deleted January 6th committee material? And he did this in, by the way, he did this in Fulton County too, in the state prosecution by D.A. Fonnie Willis. And the judge there was like like just like two sentences. He's like, this stuff doesn't exist, motion denied. It was just in and out.
Starting point is 00:29:33 That's the difference in the state. They know how to grind through things quickly because they get such a massive volume to handle. Yeah. So also just like in the DC motion to compel, Trump tries to expand what's called expanding the scope of the investigative team, right? Because as Jack Smith says, you can only get stuff that's in control and custody of the investigative team. So Trump comes in and says, the Department of Energy is investigating me. I need memos from
Starting point is 00:30:02 the Department of Energy. Or, you know, in the DC case, there was a briefing between the ODNI and Jeff Clark, and I need that notes on that briefing. Stuff from the intelligence community, underlying materials from the ICA, the Intelligence Community Assessment on Russia. Those things. And Jack Smith explained succinctly there, they're not part of the investigative team, bro. Department of Energy is not in the special counsel's office. So you can't ask for that stuff, even if it existed. And the same thing happens here. Trump is trying to expand the scope of the investigative team
Starting point is 00:30:41 to seek documents from multiple agencies that he's not entitled to. And then when documents are from the investigative team to seek documents from multiple agencies that he's not entitled to. And then when documents are from the investigative team that they might have, that Jack Smith or the investigative team might actually have control or custody over, a lot of those documents as Jack Smith says are covered by privilege. Attorney-client privilege, work product doctrine, speech or debate privilege, deliberative process privilege. Trump can't have those either.
Starting point is 00:31:06 Yeah. Again, he's like having to give a lesson to the defense in how discovery is conducted and kind of to the judge at the same time. So, Jack Smith sums it up like this. Applying these principles to the defendant's discovery request shows that their motion to compel should be denied in full. The defendants group their request into six main categories in which they seek, one, evidence of improper coordination with the National Archives to abuse the grand jury process, and two, evidence relating to the attempt to retroactively terminate President Trump's security clearance and related
Starting point is 00:31:45 disclosures. 3. Evidence relating to the use of secure facilities at President Trump's residences. 4. Evidence of bias and investigative misconduct. 5. All correspondence and or communications concerning the search of Mar-a-Lago. And 6.
Starting point is 00:32:04 CCTV footage. These also include two additional uncategorized requests seeking seven, the removal of redactions, and eight, the production in unclassified discovery of certain materials produced in classified discovery. Each request, to the extent that it seeks evidence that has not already been turned over, fails to establish one or more of the requirements for a motion to compel. Namely, that the evidence sought must be material to the defense, it must be within the government's possession, custody or control, and must not be protected from disclosure by an applicable
Starting point is 00:32:40 privilege. Yeah. And, Andy, I think my favorite part is a couple pages that are spent where Jack Smith is responding to Trump alleging that the DOJ failed to produce the CCTV footage, number six in your list up there. When it was actually Trump, Walt and Carlos' months-long inability to figure out how to work the video player. Like, at first, they were trying to watch it on an iPad, and so the government's like,
Starting point is 00:33:11 no, you can't do that. Let's bring you so they run a laptop over to him. And then, like, a month goes by, and they contact the DOJ, we can't get this to work. And the DOJ responds, it's your proprietary video player from the Trump Organization. All right, let's send an IT, like it was a IT nightmare back and forth to just try to get them to be able to watch the video. And so that's why- And let's remember, this is not like some closed circuit surreptitious surveillance video that the government installed in Mar-a-Lago. It's their CCTV.
Starting point is 00:33:45 Yeah. I mean, presumably they have access to as much or as little of that stuff as they want to look at any time they want on their own system. Yeah, and they should be calling Alan Fudderfoss or the IT guy over at... Isn't Dale Avera an IT guy? Well, they can't talk to Tavares anymore. But why don't they call the Trump Organization and say, hey, how do we figure out how to watch our own CCTV video?
Starting point is 00:34:09 No, they wait and wait and wait. And then complain to the judge, we can't even view this. And we need to have time. Get the Calamari twins on it. Come on, get somebody down here. Bust open the CCTV, our defense is getting stale. I mean, oh my gosh. Yeah.
Starting point is 00:34:24 So that, I thought that was kind of, that was just a little entertainment that he put that in there. But there's more than meets the eye to this motion to compel. Trump attached some protected discovery to the motion in what appears to be an attempt to release that discovery, which includes the names of witnesses and some of their testimony to the public. This, I don't know how this is going to work out, but we'll talk about it. This is getting real. Yeah, it seems like trickery, but we'll talk about it after the break. Stick around. Welcome back. Allison, as you hinted before the break, there's something nefarious going on with Trump motions to unseal that include the names of witnesses and evidence that's actually under a protective
Starting point is 00:35:17 order. So what can you tell us about this? Okay. Wow. This was late Thursday night, almost midnight. Jack Smith filed what I read as his most stunning rebuke of Judge Cannon on the Mar-a-Lago docket. I mean, we thought that his reply to the motion to compel was on fire.
Starting point is 00:35:38 This was beyond. He filed a motion for reconsideration and a stay on her previous order to unsealed documents filed as Supplements to that motion to compel we just talked about in his motion Jack Smith said judge cannon made a quote clear error Unquote and that she must reverse it to prevent quote manifest injustice quote I have never you know like I think I thinking back to when we had our very first conversation on the old Mueller She Wrote podcast about Mueller going to paper and his letter about how his bar mischaracterized his findings and all that strong language in there.
Starting point is 00:36:19 I have never seen a manifest injustice and clear error in filing like this yet in this case, but we have it now. Pretty serious accusation against a federal judge. You know, you sometimes see from defense attorneys who are working a strategy of trying to like light everybody's hair on fire, throwing around big words about, this is an absolute travesty of justice, that sort of thing. You don't really see that on the prosecution side.
Starting point is 00:36:52 So to basically throw the possibility of clear error, which equals you're gonna get overturned on appeal and manifest injustice into a federal judge's face by the prosecution is pretty rare. Yeah, I've only seen language like this back when Jack Smith was dealing with Judge Cannon in the special master situation, which by the way, got overturned
Starting point is 00:37:18 because she made a clear error. So Trump attached sealed supplements to that motion to compel, that we just talked about, that include over two dozen witness names and evidence transcripts that are covered by the discovery protective order, which was issued by Canon and That's when you know when you when you put a protective order on discovery It means that when you send it over to Trump's camp, they can't release it to the public. That's right Yeah, and and it's you can't violate the protective order.
Starting point is 00:37:47 So he's attaching all of this protected discovery to this motion to compel and then asking Cannon to unseal it and she granted that. So I think he's doing this so he can make public the names of potential witnesses and their testimony. And I think Jack Smith knew instantly that this was Trump's goal. And of course, that's speculation about what's going on in the minds and hearts of the parties here. But before he filed his motion for consideration, reconsideration, before Jack Smith filed this motion, he filed to ask permission, leave of the court, to add evidence to his motion
Starting point is 00:38:22 under seal showing online threats made against one of the government's potential witnesses. Jack Smith asked to file an under seal because those threats Andy are actually currently under federal criminal investigation and you don't want to reveal stuff that you know is under federal criminal investigation. It's the definition of sensitive information in a criminal case. Yeah and that's how bad these threats are. And though we can't see that supplemental filing, we don't know the threats, we don't know the witness, I imagine it contains evidence that Trump's motive here
Starting point is 00:38:53 is to release the names of these individuals to unleash threats of violence against them. Jack Smith has pointed this out in both jurisdictions and multiple filings, especially I'm thinking of the limited, don't call it a gag order motions. Trump then claimed and Judge Cannon ruled that the standard for the government to keep those records sealed is much higher than the actual standard, right?
Starting point is 00:39:19 Judge Cannon said that the quote, government bore the burden to demonstrate that ceiling or redaction is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest. But that's incorrect. That's the clear error. Right? Yeah, that's exactly right. So Jack Smith writes, first, the 11th Circuit has held that the compelling interest standard applied by the court does not apply to, quote,
Starting point is 00:39:48 documents filed in connection with motions to compel discovery, which instead may be sealed or redacted simply upon a showing of good cause. He says that, given the evidence of online threats currently under federal criminal investigation, combined with the standard practice of not releasing protected discovery to the public as it would hinder this case is well beyond the good cause needed to keep them under seal. So he's asked Judge Cannon to reconsider her ruling, which contains a clear error on the
Starting point is 00:40:20 law and to stay the release of the witness information and evidence until she rules on Jack Smith's motion. All of that protected discovery was going to be unsealed Friday, but early this morning, Judge Cannon issued a paperless order on the docket that she is extending this decision and giving Trump, Nauda, and Deo Levera until February 23rd to respond. This seems, you know, the fact that he cited the 11th circuit. Now I know that you generally cite rulings in your circuit when you're, when you're citing cases in, in a, in a pleading, right? Right.
Starting point is 00:40:59 That's the presidential value, right? I also feel like there's a nudge, like an elbow in the rib to Eileen Cannon, like the 11th Circuit says you're wrong. Remember what happened the last time? The 11th Circuit said you were wrong. And so I really think that this is the strongest indication yet that he's setting this up to appeal if she doesn't rule within the law and correct her error. I fully expect that he'll appeal if she goes against his request. He almost has no choice.
Starting point is 00:41:38 The prosecutor has to do whatever he possibly can to protect the witnesses in the case and to ensure that those people aren't harmed or discouraged or dissuaded from providing truthful testimony in any way. So, yeah, I mean, I don't... This does not sound like he's going to just shrug his shoulders and walk away if she says, no, don't worry about it. Let's put it all out there. The whole thing is so weird because it defies the purpose of the protective order in the first place. Like, none of that stuff
Starting point is 00:42:10 would have been under a protective order if it was okay to share it with the public. So how did she just let this curveball slip right past her? I don't know either, but... Again, it boils down to incompetence or purposefully trying to tank the case. This would do serious damage to his case and the ongoing investigation into the threats that were made online to this witness that are filed under seal here and I mean, I I'm assuming she's not going to because she she granted permission for him to file that under seal So I don't think that she would end up releasing that although I wouldn't Be surprised if Donald Trump asked for it to be unsealed who knows I and I'd be interested to see how how La Verra are not to come in and argue against Smith's petition here.
Starting point is 00:43:13 They already have the names of the witnesses, right? The protective order doesn't conceal the witnesses from them. What's the argument in favor of sharing the witness list with the public? There's just no compelling interest to the defendant there at all. And I mean, maybe I'm not seeing it, but yeah, I'll be interested to hear what they articulate. Yeah, but that she found that Jack Smith didn't meet the wrong burden, by the way, the too high burden to keep these things sealed is like why? Like what even, what reason even is there, like you said, to release these witness names
Starting point is 00:43:54 to the public other than you and I know what it is, but you know what, and everybody else, but what could possibly be the reason? It makes no sense, but we'll keep an eye on it for you. All right, before we get to the HER report, Just Security has just issued a very handy graphic outlining the new potential DC trial timeline. Back up to Judge Chutkin now,
Starting point is 00:44:17 and this is based on the fact that we got the immunity ruling this past Tuesday. It's a flow chart, so let me see if I can go through it here. Now, they say that, just security says that SCOTUS is probably more likely to actually grant CERT in this case. So their timelines are based on the Supreme Court granting CERT. And honestly, if they don't grant CERT, that's the fastest of all the timelines.
Starting point is 00:44:49 But they don't really lay that out. They just say that granting cert is probably not on the table. I disagree a little bit. I think that there's a strong possibility that the Supreme Court might deny cert here, but let's go through what happens if they grant cert. If they treat the stay as a cert petition on February 12th, okay, then by around March 5th through 15th, like the first half of March, they will have the oral arguments.
Starting point is 00:45:22 Then sometime between April and a 5th and 15th, there will be a Supreme Court decision. A lot of folks are saying it wouldn't have to be the decision until June, but they can release it earlier. And so they're putting it at about April 5th through the 15th, and then saying the trial will begin sometime around the 5th of July, right, the first half of July, and conclude in the first half of October, which is gosh, a month before the election. Stan Mallow Squicken it in right before the door closes. Angela Brown So that is the timeline if they treat the stay as a cert petition. Now, let's say they grant a stay with a 10-day limit.
Starting point is 00:46:05 Meaning grant the stay and give them 10 days to actually file their official petition for cert. Then the petition for cert would be granted February 29th, they say. Then oral arguments are pushed back to the end of March, and then a SCOTUS decision at the end of April trial begins at the end of July, and trial concludes at the end of October. And that's the longest timeline that they have here. But if they grant the stay, petition for cert, there's a second option here that let's say that the petition for cert is denied. It returns to the district court and trial begins June 1st and is over by September 1st, right? That's closer to your dream scenario. And I should say one that a lot of people think
Starting point is 00:46:57 is the most likely. I'm a little surprised that they're really leaning hard in the direction of the court will grant cert, because there's a lot of folks that are saying the opposite, but that's an interesting perspective. It is. And then the third option is if they grant a stay without limits, like you don't have any time limit to file, then that puts the cert, the petition for cert, not due until May 12th. Okay.
Starting point is 00:47:23 And I actually think that that's probably the longest timeline. It doesn't really have a, what happens the rest of the way, probably because in that scenario, I don't think the trial goes before it's the election. And that's the worst case scenario everybody's talking about. If they grant cert and don't put a time limit on it and grant a stay, then they could just sit on it
Starting point is 00:47:44 for however long they wanted and it's not due for 45 days. Right. If they grant cert, you're getting a stay. It's going to come with the granting of cert triage. And if they just keep it on the normal track, which is that last possibility number three that you just talked about, yeah, there's no chance the case goes before the election. Well, there is another scenario where they could grant cert, but not a stay. Because it's interlocutory, you need five votes on the Supreme Court to grant the stay, but only four to grant cert. I don't know that this would, this seems like a real,
Starting point is 00:48:22 one of those real outliers, because that would mean that they, and what we've seen this happen a few times, especially with privilege battles in these particular cases, where the court says, we'll hear your appeal, but we're not going to stay the DC trial. And the DC trial is allowed to continue, well, the proceedings are allowed to continue while they make their decision on certiorari. But then you run into the problem of the interlocutory nature of the appeal. You can't have the trial start until there is a decision, but they could, that decision-making
Starting point is 00:48:56 process could run parallel to some of the behind-the-scenes trial stuff going on in DC, and maybe at some point the Tway and Shell meet, and they can decide whether they're going to go forward or, you know, block the trial. I don't, it's just, that seems like a real outlying thing where they would only get four votes and not five for the stay. But who knows? I mean, maybe there's, maybe John Roberts will be like, I'm not granting a stay. And then they have to grant cert. Yeah.
Starting point is 00:49:23 I find that highly unlikely. If they, if they're going to dig in and say, yeah, we're coming into this one, we're waiting into this cesspool, they're going to stop the DC case in the process. It wouldn't make sense for them to go forward. Yeah, and tomorrow is the deadline. The mandate goes into effect tomorrow. So unless the Supreme Court intervenes and grants cert and a stay or a cert without a stay or a stay without cert yet, whatever they decide to do, if they don't issue a stay by the close of day Monday, then the proceedings can continue down in or up in the DC trial proceedings can can can go forward like
Starting point is 00:50:09 she can rule on motions or more discovery can go over or you know stuff like that because the mandate issues on Monday that was built into this that they remember how we said wouldn't it be great if they lifted the stay when they came up with their decision on immunity, that's kind of what this is. Yeah. So, yeah, interesting. Interesting. Let's see where it goes. Yeah, but the final option way over here on the end is that they deny cert. Denied, game on. And then they put unlikely. And they don't really explain why, but I think the reasons I've heard from what I'm reading at least is that people think that the Supreme Court is really going to want to weigh in on this because they're full of themselves.
Starting point is 00:50:49 That's sort of... Man, I don't know. I didn't hear a lot of real positivity coming from their involvement in the arguments this week on the 14th Amendment thing. They sounded reluctant as hell. And I kind of feel like there's a solid ruling for them to defer to, and I still feel like it's that's likely. But who knows? Who knows? There's no picking them. Mm-hmm. Yeah. My favorite is they deny cert. The most likely I'm hearing is that they grant cert and a limited stay and then make a pretty fast ruling.
Starting point is 00:51:32 And the ruling would be to deny immunity. I was watching the arguments on 14th Amendment and all of the conservative justices are like, yeah, but you can indict a former president. You could charge him with 2383. That's the thing. And that would make it so that he wasn't eligible to be on the ballot. So they all seemed to... To be embracing this idea that there is no presidential immunity yet.
Starting point is 00:51:56 Right. And look at it very weird way. If they did weigh in and resolve the issue conclusively from the mouth of the Supreme Court, it would kill it in the Florida case. Motion for immunity in the Florida case denied. But it's special. It's different because I was no longer president. And so I took a carryover and I had a cue clearance and then that was Department of Energy,
Starting point is 00:52:19 which is why I need their documents. I don't know. Even Judge Cannon would have a hard time hosting that motion, hearing it, and giving a consideration after the Supreme Court just in an emergency rush process weighed in to say, no way, not here, never. Yeah, and she actually might, Judge Cannon might actually be like, I'm not going
Starting point is 00:52:41 to rule on any immunity motion until it's resolved in the DC case. Yeah. And that's what I would do, honestly. So she gets to delay a little bit, not really do any work, and, you know, gets to, you know, make a reasonable ruling. Yeah. All right.
Starting point is 00:52:58 Should we go to how the Americans feel about this? Yeah, this was great. This came from your colleagues at CNN. Yeah. So new polling shows about half of Americans, 48% say it's essential that a verdict is reached before the 2024 presidential election and another 16% say they'd prefer to see one. Just 11% say that a trial on the charges should be postponed until following the election with another quarter
Starting point is 00:53:25 saying the trials timing doesn't matter to them. Fascinating group of people that quarter. Okay. Well, it doesn't matter to me. I'm not voting for them regardless of when a trial is. So maybe I would fall in that 25%. I mean, I think you still want it to happen before the time to change your vote. But when you like to see the result, how it affects everybody else? I think it's pretty important. Yeah. Yeah. All right. So as you would expect, a 72% majority of Democrats and a 52% majority of independents say it's essential that a verdict is reached pre-election. Republicans are more
Starting point is 00:54:02 split, while 38% say that a verdict should be reached before the presidential election, including 20% who call that essential, another 39% say that it doesn't matter when the trial is held and 23% say they think the trial should be held after this election. I don't know. I still think that those numbers show a pretty compelling interest in how this is going to turn out and it's, you could extrapolate that this echoes kind of what some of the exit polling showed in Iowa and New Hampshire that people are watching this
Starting point is 00:54:40 and there is some significant percentage of folks who would consider it a problem if a candidate nominee had been convicted of a felony. Yeah, I think that 52% of independence is bad news for him politically. And the fact that 38% of Republicans want a verdict before the election, I think that's a big number. So, well, we'll see. we'll see how it turns out. That kind of all depends on what the Supreme Court does
Starting point is 00:55:10 on Monday. Yes. So we will keep an eye on that for you. Everybody, we need to take one more quick break. But we have more news. So stick around. We'll be welcome back. Before we get to listener questions, we have to discuss Robert Hear and his report.
Starting point is 00:55:37 But before we get into it, Andy, I want to play our discussion about special counsel Robert Hear on episode seven of Jack. We're on 63. This is from episode seven. I was just a baby podcaster back then. We were just babies. This is a little more than a year ago before you got your good microphone, so everybody note. This is when he was appointed special counsel to investigate President Biden's handling of classified documents.
Starting point is 00:56:05 Let's listen to that clip. So, yes, in the Mueller special counsel case, Rob was essentially the number two. And this is where I think the kind of perfection of his resume is great. But let's put that aside and think a little bit deeper here. Rob was part of the Trump DOJ leadership team, and that is a team that was involved with a number of decisions and things that I think raise important questions now about Rob's current job. And the first would be the Mueller investigation. So we now know, of course, that Rob Hear was Rod Rosenstein's guy that he used to oversee the special counsel
Starting point is 00:56:52 work. Rob Hear met with, according to reports, the special counsel team like twice a week. And he was the guy that talked to Mueller and the Mueller team and brought that information back and reported it back to the acting attorney general for that case who was Rod Rosenstein. We also know that Rod and Rob Her presumably very carefully and quietly curtailed the investigative scope of that investigation in ways that were not disclosed to the public. We only found that out later on with the infamous
Starting point is 00:57:22 second memo telling Mueller how to do his job. So he had a lot of interaction with that team. He was involved in kind of keeping it in a lane that everybody was more comfortable with. So I think that's interesting. So he helped quote unquote land the plane, presumably. You know, I think that's, I think that, I don't know that for a fact because by that point I was gone, but I think that's a fair question. And he also, I mean, look, we know there was a lot I know from my own personal experience with these guys before I left.
Starting point is 00:57:54 There was a lot of, I think what could be described as questionable or uncomfortable, kind of bleed over of White House politics into DOJ operations and decision making. And I think a good example of that is Rob Her taking the podium at the White House to announce some accomplishments in a big MS-13 arrest. I mean, that is not done, right? DOJ criminal operations are supposed to be independent of White House political direction. And so that was an act that I thought was really questionable. So I just throw this out there to say, there are some things that stand out in my mind as good questions to keep in the back of your head as we watch Rob Her do his job on this very important case. And at the end of the day, we watch Rob Her do his job on this very important case. And at the end of the day, we'll see. We're going to watch it. We're going to talk
Starting point is 00:58:49 to you all about it. We're going to report on it and we're going to overanalyze everything as we typically do and we'll see how he does. So wow, my friend, very prescient. You telling us that we needed to keep this in mind as this investigation goes forward especially the part where he likes to inject politics into Department of Justice stuff like particularly that took the podium at the White House and you know I know that you've got actual experience working with him which is why that whole thing, why we discussed it a year ago. Yeah.
Starting point is 00:59:29 And you know, I got to say, this is a little bit uncomfortable for me. And I'm talking about this on CNN yesterday and a couple of times today. And so I just kind of feel like I should throw this out there as a full disclosure item before I go on to tell you about what I think about the report. So I do know Rob and I worked with him when he was the, what we call the pay dag, which is I think the principal assistant attorney general. Assistant deputy attorney general. Assistant deputy attorney general. There you go. I knew I was going to get that wrong. So basically. Yeah, CaliHan was that after... Right. The paydag is the num... Is the deputy attorney general, the DAG, okay? The paydag is the DAG's right hand. Paydag is the person who executes all of the deputy attorney general's commands. And that is a very significant role
Starting point is 01:00:22 because the deputy attorney general is actually the person who runs the justice department. The attorney general has all the authority, but the day-to-day runnings of that massive, massive machine are conducted by the deputy attorney general, the DAG, and also his right-hand man or woman, the pay DAG. So when I was deputy director of the bureau, the first part of the Trump administration, Rob Her came in. He was very close to Rod Rosenstein, who was the DAG at the time. And so I worked with him in that capacity. And he was the acting attorney general in the Mueller investigation because Jeff Sessions
Starting point is 01:01:00 had recused himself. That's right. So Rosenstein was the acting attorney general over the Mueller investigation, and Rob Hear was basically the guy that Rosenstein designated to be the primary point of contact between DOJ and the Mueller investigation. So he was the guy that was getting the regular briefings from Mueller's team and everything else. And that calls into question.
Starting point is 01:01:22 That's why I mentioned in that clip, we should wonder about Rob Hear's role in what we now know was a pretty considered effort by Rosenstein and undoubtedly her to curtail Mueller's investigation while it was in process. So I should also, but the full disclosure part of this is that Rob Hehr was also personally involved in several of the aspects of my firing. And things that in my lawsuit against the Department of Justice, we alleged that Hehr was really a key player in overriding and essentially abandoning all of the process that I was entitled to and basically accelerating the decision to fire me in an effort to get it done before I could retire.
Starting point is 01:02:19 So that lawsuit we settled and that's widely known. So I don't want to go into the details of the settlement, but I feel like it's important. That doesn't affect the way that I analyze Rob Herr's performance on this special counsel investigation, his report. I have some critical things to say, but I feel like the listeners deserve to know some of that history and consider it however you will. So with respect to his current report, I was struck by the language in the report as many people have been.
Starting point is 01:02:56 The requirements on the special counsel, the requirement is simply that they must produce a report and turn it over to the attorney general at the conclusion of their work. And the report is supposed to explain whether they've chosen to prosecute or decline prosecution. And the report certainly does that. I was struck by the language in the report as many people have been. I think it's important to point out that the requirement from the regulations over the special counsel is simply that they produce a report and give it to the attorney general. But in addition to that,
Starting point is 01:03:31 these, the special counsel's function under the authorization of the Department of Justice. And it is, I think, universally accepted that they're also supposed to comply with DOJ policies and procedures. And some of those policies, as we've talked about in the last couple of shows, include things like you don't impugn the reputations of people who aren't charged with wrongdoing. I do think that there's a lot of ways that this report really goes right to the edge
Starting point is 01:04:01 or over the edge in doing that and their characterizations of Biden and his memory and other things. Yeah, at least not outside of the facts, right? Because the Mueller report certainly impunes the character of Donald Trump and his campaign and his obstructive ways. But it doesn't go beyond the facts of the case, right? They're like, well, he tried to fire special counsel, went through Don McGahn, they didn't add like,
Starting point is 01:04:27 he smelled bad and seemed stupid. You know, like it was just the facts of the case. The, what the investigation uncovered was Trump's behavior and actions around these things. And so that's what you relate in the report. Here's what we found. You also relate in the report, here's what we found. You also relate in the report, here's why we've decided to prosecute or not prosecute. I think the better
Starting point is 01:04:49 comparison to the Mueller report is that Mueller, to the massive frustration probably of half of the country, would not answer the question of whether or not any other citizen who engaged in this sort of conduct would have been indicted. Mueller, proceeding from the assumption that he cannot be indicted because he was a sitting president, would not say that but for his sitting president status he would have been indicted. Now you can read- And his reason was is because if I come out and say that he obstructed justice, then I am taking from him his constitutional right
Starting point is 01:05:25 to face me in a court of law because he can't be indicted. That was his reason. That's right. He won't have an opportunity to go into court and clear his name and confront that accusation because we're not going to indict him. So you know, and I know that was very frustrating to many people, but that was Mueller adhering to what he perceived as DOJ guidelines and policies writ large. I'm not so sure that Rob Heard did that here.
Starting point is 01:05:48 There is definitely a sense when you read this report that there was some writing for the headline value, and then you get deeper into the analysis, and it just doesn't hold up the headline. For instance, he says in several places makes the very bold and absolute statement that Biden intentionally withheld national defense willfully and withheld or retained national defense information. So much so that in I think it's chapter 11, first paragraph, he repeats that same accusation. And then a paragraph later says there is insufficient evidence to establish beyond a reasonable doubt that Biden willfully retained national defense information. So in addition to that being like headspinningly confusing, I mean, even as a sophisticated
Starting point is 01:06:39 reader when you read that chapter, you're just like, wait a second, didn't he just say in the previous paragraph that the guy did it? It's like the absolute statement gets the headline and then he goes on to explain that that's not really the case. The same thing is true for everything, all this conversation around the comment that Biden made in a recording of a conversation with his ghostwriter.
Starting point is 01:07:05 So here's the deal on that one. It's February 2017, Biden is in his house in Virginia and he says to his ghostwriter, must have been somehow recorded. I don't know how it was recorded. He says, I found all the classified stuff downstairs. Her, in many places in the report, declares that what Biden was talking about was these papers
Starting point is 01:07:31 about Afghanistan and the policy in Afghanistan and that sort of thing. It's not until well past page 200 that he explains that in that conversation, after making that comment, Biden never explains or identifies what papers or what stuff or what classified stuff he was talking about. Not only that, the rest of the entire conversation
Starting point is 01:07:54 between he and the ghostwriter never includes any classified information. And finally, the actual Afghanistan papers weren't found in the house in Virginia. They were found in the garage in Delaware years later. So there's absolutely no chance any prosecutor could ever tie that statement or could look at that statement as an admission of holding or willfully retaining the national defense information of the Afghanistan papers in Virginia in 2017. Nevertheless, Robert Heur refers to
Starting point is 01:08:31 Biden's, you know, the best case, as some point he says, the best case would be for willfully retaining the Afghanistan papers in 2017 in the House of Virginia. It's just not there. And it's conflicting. And I think it's, I don't know, it raises a lot of questions about why he would have characterized the evidence in that way and drawn these conclusions about Biden in the report that really aren't substantiated by the facts
Starting point is 01:09:02 and the analysis in the report. Yeah, and the part that got me was that, well, we didn't indict him because he's old and cute and cuddly and memories bad. Yeah, that's just crazy. When in fact, the report lays out that the reason that he wasn't indicted and that he wouldn't even be indicted if he weren't a sitting president is because they don't have the evidence to prove beyond a reasonable doubt that he will fully retain documents. That's the statement that should be made about why you can't prosecute someone.
Starting point is 01:09:30 They don't have the evidence and he readily not only acknowledges, he goes through a detailed analysis of the fact that Biden would have several very capable and likely successful defenses to these charges if it were to go to trial. So no evidence and clearly likely successful defenses, that doesn't lead you to excoriating the guy. And even if, even if as you were explaining why you decided to decline prosecution, one of your reasons was based on the fact that it would be hard to prove Biden's willful intent to retain this material, partially because he didn't really remember it very clearly, showed no memory of having taken or had this stuff.
Starting point is 01:10:17 If Biden had stumbled in the interviews about over issues like that, about his memory, you might want to make reference to that, but you do that by saying the witness was unable to recollect X or the witness was unable to claim he didn't remember Y. You don't say- Which Donald Trump did 40 times in his written responses to Bob Mueller. Every witness who's ever been interviewed has failed to remember something. Me among them, I failed to remember really important stuff that I wish I had remembered, but never the less.
Starting point is 01:10:48 There are a ton of people in the United States who've never sat through a depot and it shows because I've been in depositions and they're like, don't try to tell us through vague recollection. You either recall something or you don't and if you don't, say you don't. Don't speculate. Right. I got this sense about the report literally in the very first couple of pages where the first part, he starts off by talking about Joe Biden and Joe Biden had all these materials because he's someone who always considered himself a statesman or something like that.
Starting point is 01:11:22 He thinks he's very important. And he's, you know, he wanted these materials. He says something like he wanted these materials as evidence of his presidential timber. Now that statement is not cited. There's no footnote. It's not cited to any actual statement of Biden. So the question is, why are you characterizing his motivation for retaining this material? Like, what is that based on? It was, it comes off as, I hate to use the
Starting point is 01:11:52 word because people are foreign and all around, but it does come off as gratuitous and unnecessary and kind of like underhanded. So, yeah. Well, he's also not a psychologist. He's not a psychiatrist. He's not a doctor. He's not a doctor. He's a prosecutor. And he should be using prosecutorial legal terms of art. Right. If he asked Joe Biden, why did you have this stuff? And Joe Biden said, I felt like it was great evidence of my presidential timber, then fine.
Starting point is 01:12:18 Put it in the report. But barring that out. There's no citation. No. No. So anyway. And I think that's why the White House is now considering they want the transcripts. Yeah. So when you look at all this together, I think it raises some very significant questions about the decisions that Rob Her
Starting point is 01:12:41 made in presenting how he presented this information. Look, he had to write a report. Good on you. The report is very detailed. That's great. When you get into the analysis, if you're like me and reading past page 200, you'll see some very clear explanations as to why there's no case here. But the headline value is off from what the report actually contains. It's super political.
Starting point is 01:13:09 And as you warned us to keep an eye on the political nature of what Robert Heur may or may not do. But yeah, no charges. First special counsel in history. Not to bring it back. That's crazy. I didn't realize that. but yeah, really interesting. Yeah.
Starting point is 01:13:28 And I think there'll be testimony. I'm looking forward to that. I mean, honestly, I think it should be totally exonerated and we can just move on. Totally exoneration. Oh my gosh. It does show that we have gaps in our classification system. I know he's put together a task force now to look at this and how classified is handled. I thought when the investigation into Trump was announced and then Vice President Pence,
Starting point is 01:14:00 former Vice President Pence and Biden, I thought there should have been an announcement that we're going to have a moonshot 10 year plan to digitize and modernize the classification system. I still think that that should take place. But we haven't seen that either. But you know, it's, this seems very political in nature. I am kind of not surprised based on what we now know what we knew a year ago, kind of not surprised based on what we now know, what we knew a year ago, what you taught us about Robert Her. But here we are and it will have to be dealt with. It's a black eye politically and that's, I think, a problem. It goes against DOJ. And let's be honest, top line, Merrick Garland should not have chosen Robert Hear. Well, I thought it was a questionable choice at the time. My review of the report kind of confirms what I initially thought. And I can't sit here and tell you why Hear did this, whether it
Starting point is 01:14:55 was an affirmative political decision he was trying to give Joe Biden a black eye, or he was trying to throw a bone to his conservative friends who probably aren't crazy about the idea that he didn't recommend charges. I have no idea. Could be any of those things? You should ask Rob Her and he should answer those questions. But I want to ask Merrick Garland why he picked Rob Her. I mean, he's only one of two Trump holdovers. Yeah, I mean like, you know, Jack Smith wasn't a member of the Biden administration. Right? I mean, you, I'm trying to remember his resume from that would have been, would have been episode one or two or something. But he was a career professional.
Starting point is 01:15:38 He was at the pin a long time ago, like 24, 2004 to 2014 or something like that. At the Hague then came back and he was actually an acting US attorney somewhere, but I don't think that that's a political appointee, right? That's just like you're in as an acting. I don't think you have to be Senate confirmed to be an... If you'd been Senate confirmed, you wouldn't have been an acting. So... But he was at the Hague when he was appointed special counsel.
Starting point is 01:16:05 Yeah, yeah, yeah, of course. And he couldn't fly back immediately because he injured himself running an ultramarathon because the guy likes to run with the miles. Of course. And he's a guy that has no history of partisanship. He served in DOJ but down, layers down that are beyond kind of the touch of politics. Not the same with Rob Her. Rob Her was an essential element of Donald Trump's legal team at DOJ. Full stop. And I just felt like at the time, like
Starting point is 01:16:33 I get it, Garland is maybe trying to pick a conservative, a prominent conservative to take this investigation of Biden, keep everything neutral, whatever. But it was an overreach. I don't think you need to pick someone from the Trump team. There's Washington DC's full of really good lawyers, many of whom are former prosecutors, and many of those who served in Republican administrations, not the one that's running against the other guy. I mean, it-
Starting point is 01:17:00 Yeah, I mean, if you're trying to swing the pendulum so hard the other way that you're gonna allow Durham to continue being Durham, and you're to appoint the only other Trump holdover to investigate this, just to be able to say, hey, I was trying to- It was the affair. Yeah. That would be fair. But the wrong decision.
Starting point is 01:17:25 It was the wrong decision. I would love to be able to know. Felt that way at the beginning. It feels that way a little more now. The decision making process there, like did you think it was cooler that you'd be able to say, hey, he's a Republican than what we're facing now?
Starting point is 01:17:38 I mean, and in fact that it took a year and, you know, Mike Pence's took a couple months open and shut. The DOJ did it itself. So I think there should have been a special counsel. I just don't think it should have been her. And yes, I know everyone, grab your fainting count. I'm criticizing the Department of Justice. Oh my goodness.
Starting point is 01:17:57 I do that from time to time when it's necessary. And I think this was a long choice. All right, should we go to listener questions and wrap this incredibly long show up? Yes, and if, Matt, can you imagine if we had to cover the immunity rolling this week in this episode, my friend? Yeah, yeah, all right, I got two very quick ones for you. The first one comes to us from Joy and Joy asks,
Starting point is 01:18:20 has Andy McCabe ever been mistaken for Michael Kelly? Michael's portrayal of Mike November and Tom Clancy's Jack Ryan sure looks like Andy, especially with those lovely black frames on any possibility of Michael Kelly playing Andy in a film or TV adaptation of his life. Yeah, joy, it happened already. Michael Kelly played me in the movie version of Jim Comey's book. What was it called? The Comey Rule. The Comey Rule, yes. And I met Michael. Yeah, I met him before the movie, after he'd gotten the job. We had lunch together one day. It was just awesome. He's such a nice
Starting point is 01:19:01 guy. And we have all these like similarities in our past We're both like cross-country runners in high school and all this other kind of stuff And at the end of our lunch he was leaving and he said well I have to go because I have an appointment uptown to have a wig made of your hair I was like that's the grossest and weirdest thing anyone's ever said to me so but it worked No, I guess they just like gin up some sort of wig that looks like you. No, he did a really great job portraying you in that. Yeah, he did.
Starting point is 01:19:31 He's terrific. So that's question one. All right, so question two comes to us from Kathy. I think Chloe Seven Yee would play me in the movie about. Yeah, yeah, I could see that. I could totally see that. Yeah, because I'm a little too old for Drew Barrymore to blame me now. The movie version of Jack. I used to get Drew Barrymore all the time, but now I think Chloe's 7-Yee. Yeah, no, I'm there. I agree. All right,
Starting point is 01:19:57 last question comes to us from Kathy. Kathy says, I'd really like to know if special counsel Robert Her was required to present a report on President Biden's document case to the AG. If he did, why would AG Garland allow some of the issues regarding to the president's age and some memory lapses to be included in the report? It was totally unnecessary and seems to have been included on purpose to cause an uproar. So Kathy, we obviously just talked about that. 28 CFR section 600 is where you can find the regulations for special counsel, DOJ special counsel, and it is 600.9 that has the requirement, it says closing documentation. At the conclusion of the special counsel's work, he or she shall provide the Attorney
Starting point is 01:20:41 General with a confidential report explaining the prosecution or declination decisions reached by the special counsel. That's it. But later on, it also makes clear that if the Attorney General disagrees with the report or wants to change a finding or something like that, which that's what would have essentially happened. If Garland had said, no, no, I don't want this language in there. I don't want you to refer to Biden in this way. That would have triggered a whole process whereby the AG would have had to report that
Starting point is 01:21:14 to Congress, that he had essentially got involved at the last minute and changed the substance of the report. Can you imagine? Oh my God, that would have just turned the whole thing into a kind of a new platform. That would have been like what Bill Barr did. Yeah, I wouldn't encourage anybody to wish that Garland was more like Bill Barr. I think, again, the top line problem here is that her shouldn't have been the person that was appointed.
Starting point is 01:21:41 It would have avoided that. Maybe necessarily, but I think the more attention should... That's the mistake. The mistake started there with the appointment. But coming in, covering up, redacting stuff, changing it, injecting yourself into it, it would be a lot like... Not a good idea. ...Bill Barr meeting with Durham every week to have whiskey and cigars. Yeah, exactly. That's the kind of stuff we want to avoid.
Starting point is 01:22:05 It wouldn't have been good for Biden because it would have looked like, oh, Biden told Garland to change the text of the reverse. So like it would have been a whole, a whole camp. No, I think the fact that we have this adversarial thing between the Attorney General and the President playing out right now is actually a benefit to the president. I mean, the whole thing is a black eye,
Starting point is 01:22:26 but it's better than if they were colluding and came up with the thing that made everybody happier or if Garland had written a four-page characterization of the findings and sat on the report for three weeks. Right, yeah. Look, I mean, it's a black eye for Biden. It's gonna probably cause them all kinds of campaign issues. It's not the narrative they they would assume like to have out there, but
Starting point is 01:22:50 that's it. You know, nobody's sitting back saying like, oh look, you know, Garland is going after the president's enemies forum and although actually Trump says every day, but it's not actually the facts don't bear it out. So anyway. Yeah, agree. Thank you for the questions. If you have any questions, there is a link in the show notes where you can click that link and follow it follows to a form that you can fill out and send us a question. Thank you so much for your questions. They're so thoughtful. And fun. I liked the who plays you in the movie thing. Yeah, that was funny. Yeah, sorry about the long episode today.
Starting point is 01:23:26 We did as much as we can by putting out that emergency episode. So thank you very much for listening. Do you have any final thoughts, Andy? No, I think we've given them enough this week, but hang in there because who knows where we end up next week. It's an adventure with every episode. Absolutely. Thank you so much for listening. I've been Allison Gill.
Starting point is 01:23:44 And I'm Andy McCabe.

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