Jack - Episode 69 | Dismiss or Get Off The Pot (feat. Brian Greer)

Episode Date: March 24, 2024

This week: the New York Times sheds light on the timeline of DoJ’s investigation into the coup plot; Trump’s immunity brief has been filed with the Supreme Court; Brian Greer joins us to discuss Judge Cannon’s odd order regarding jury instructions and the PRA. Plus, a couple of listener questions, and more!Our GuestBrian GreerSecrets and Laws (@secretsandlaws) on Twitter Follow AG Substack|MuellershewroteBlueSky|@muellershewroteAndrew 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 Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

M-S-W Media. I signed an order appointing Jack Smith. And nobody knows you. And those who say Jack is a finetic. Mr. Smith is a veteran career prosecutor. Wait, what law have I moved? The events leading up to and on January 6th. Classified documents and other presidential records.

You understand what prison is? Send me to jail. Welcome to episode 69 of Jack, a podcast about all things special counsel. It is Sunday, March 24. And I'm your host, Andy McCabe. Hey, Andy. I'm Alison Gill. We have a lot to cover today. We didn't get 300 pages of responses to motions to dismiss. But we do have a new article out from the New York Times that gives us some insight into the chronology of the Department of Justice's investigation into the plot to subvert the 2020 election, along with Trump's immunity brief filed with the Supreme Court. Yes, and of course in Florida this week, Judge Eileen Cannon issued a bizarre order about the Presidential Records Act motion to dismiss. And of course, we finally have a CIPA Section 4 ruling.

So, Allison, let's start in Florida with this order from Judge Cannon on the Presidential Records Act motion. So the order is only two pages long, and it hit the docket on March 18th, my birthday. Thank you very much. It was not the birthday gift I was hoping for. But nevertheless, the order hit the docket on that day. It was four days after she heard oral arguments on Trump's motions to dismiss based on the unconstitutional vagueness of the Espionage Act and the Presidential Records Act. Okay, so you'll recall that she dismissed the unconstitutional vagueness motion without prejudice,

saying she wouldn't dismiss the case now, but that Trump could raise the issue again at trial or that it might impact how she instructs the jury, which would really put the prosecution in a pickle because they wouldn't be able to appeal it at that point. But nevertheless, she hasn't ruled on the Presidential Records Act motion yet. Now, Trump argued that the PRA, the Presidential Records Act, allows him to designate anything he wants to take with him as a personal record. An argument the 11th Circuit has already said is in crucial. act and vacated in a previous ruling by Canon in the special master debacle. Yeah, wow, that was like a year and a half ago.

That happened at the end of 2022. And Trump was trying to get all the classified documents to a special master for review, arguing that they were his personal documents under the Presidential Records Act. And he lost that battle. And Cannon, well, he won with Cannon, but he lost the battle with the 11th Circuit Court of Appeals because Cannon's ruling was overturned. As related in a Washington Post article this week, Trump, quote, does not have a possessory interest in the documents at issue, so he does not suffer from cognizable harm if the United States reviews documents he neither owns nor has a personal interest in. And that's what the appeals court found in September of 2022 after Trump asked them to appoint a special master or a neutral arbiter to sort through the materials the FBI seized when they executed the lawful search warrant at Marilago, August 18th. 8th of 2022.

Yeah, so we've been down this road already, and the 11th Circuit and a, in a bruising rejection of her decision made it very clear that there's no, there is no personal property interest in the stuff covered by the PRA. But this week, Cannon issued an order in her consideration of Trump's motion to dismiss based on his PRA defense. It is entitled Order Requiring Preliminary Proposed Jury Instructions and Verdict Forms on Counts 1 to 32. I know you're thinking, boy, are we close to jury instructions and a verdict sheet in this trial? Well, no, boys and girls, the answer is nowhere near that.

So right from the top, the order seems a little bit odd. But in any case, it reads, Defendant Trump and the Special Counsel, counsel shall each file proposed jury instructions limited to the essential elements of the offenses charged in counts 1 through 32. The proposals shall take care to specify in incorporated briefing as necessary exactly what factual questions are reserved for the jury on counts 1 through 32. So just an explanation here, it is in these trials, it is the responsibility of the judge to answer questions of law and is the responsibility of the jury to answer questions of fact, right? The judge decides the law and the jury decides like the fact, what happened? Who shot John? That sort of stuff.

So it goes on to say, the parties must engage with the following competing scenarios and offer alternative draft text that assumes each scenario be a correct formulation of the law. Okay, so now another brief explanation here. This is complete. bizarre. What normally happens is a defendant submits a motion to dismiss and it raises some issue of law. They say, judge, this case should be dismissed because under, you know, this law doesn't apply or it's unconstitutionally vague or what have you. And the judge decides that matter of law. And they either grant or deny the motion. And then the case goes on. And later, the jury, before the jury goes out, each party has to participate in drafting jury instructions

on how they want the jurors to think about the facts under that law. But you don't do jury instructions until after the judge has made the interpretation of the law. Here, she's flipping it around because she has yet to decide the motion on the law. So she's asking each side, pretend the law is this and then then pretend that the law is that. And in each of those two scenarios give me a new jury instruction. So it goes on to say,

here's the scenarios that she lays out. A, in a prosecution of former president for allegedly retaining documents in violation of 18 U.S.C. 7093, a jury is permitted to examine a record retained by a former president in his or her personal possession

at the end of his or her president and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Act. Okay, that's scenario one that you have to draft your instructions for. Scenario 2 is B. And this is where it gets a little curvy. A president has sole authority under the PRA to categorize records as personal or personal. presidential during his or her presidency.

Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president's decision to exclude what he or she considers to be personal records from the presidential records transmitted to the National Archives and Records Administration constitutes a president's categorization of those records, as personal under the PRA. So she wants the parties to assume that the PRA says something that it doesn't and that the 11th Circuit has said it doesn't and write a jury instruction based on that misinterpretation of the law.

Yeah, the first two sentences of this scenario are contradictory to the law. They are not legal. This is not what the law is. She says a president has sole authority under the PRA to Cater. categorize records as personal or presidential. That's not, that's not what the PRA says. And then she goes on to say, neither a court nor a jury is permitted to make a review such a categorization decision. That's, that's not true either. And then she acknowledges there's no, there's nothing in the PRA that actually references or defines or lays out how a president is supposed to make these, these, this categorization

decision. So that would be a clue to any jurist that if the law doesn't even speak to this, it's probably not part of the law. But nevertheless, she goes on to say, she basically paints a scenario in which if this is the case, I mean, like, I don't even know what the jury instruction would be here, because if what she has proposed is the case, that's the ruling, then the entire case gets dismissed. There's nothing to do. He's waived his magic wand over all of these documents that are national defense information and likely highly classified. And he's just decided, no, they're his. They're just like the golf hats and sweaters and newspaper clippings. And they're all mine. Yeah. And that is kind of, when I first read that, my very first thought and

response was that if I were Jack Smith, I would reply to this saying, I can't write your jury instructions based on a misinterpretation of the law. So I'm not going to. Yeah. If you believe that the law says this, if this is your interpretation, because it's your job to interpret the law here, then you need to dismiss these charges. Dismiss the charges. And let's get it on. Let's go to the 11th Circuit. I think I said dismiss or get off the pot. I think we're my exact words. Like, it doesn't make any sense to entertain the possibility that the law says something that it doesn't. And I personally, if I were a prosecutor or a legal person, I wouldn't be able to write something based on what I know to not be correct, especially from interpretation of the 11th Circuit, right? My response would be like, 11th Circuit says, this isn't correct.

I can't write anything. I won't entertain this. That's right. It's preposterous. It's almost, it would, you know, there is an argument to be made that the best thing that could happen here is this is what she decides. And she dismisses the case next week, which would open up the path for the government to take the case, take that decision to the 11th Circuit. And through that process, you could potentially, you could get that they could remand the case to a different judge. So that's another whole canter worms that we're going to talk about later.

But the other thing that's amazing to me about this is she still has this incredible conflation between the Presidential Records Act and the Espionage Act. let's remember Trump is not charged under the Presidential Records Act. He's been charged under the Espionage Act, 18 U.S.C. 793. So a little refresher here. That prohibits the intentional withholding of national defense information. Okay, regardless of classification and not irrelevantly, regardless of whether or not someone considers the national defense information to be their personal property, right? So if I work in the White House, I'm a staffer, I go out one night, I buy a notebook, bring it home. Next day, I bring it to work. I go to a meeting. National defense information is discussed. I write that stuff down in my notebook and that night I take it home.

I may very well have violated the Espionage Act. Even though it's my notebook, I bought it, I wrote in it. They're my notes. If it's national defense information, even though I think it's my personal stuff, it might actually be a violation of the act. So even if she thinks that the Presidential Record Act says what she's laid out in scenario too, it doesn't matter. If the facts show that what he's been charged with is national defense information and he intentionally withheld it, he's guilty. And that has to go to a jury.

Well, 100 bucks says she'll dismiss this one without prejudice. Because, you know, a lot of folks were like, where does you even get this preposterous idea? Well, thanks to Roger Parloff and our friend Brian Greer, who's going to join us in the next segment, who retweeted this. This was brought up specifically in the oral arguments on this, the unconstitutional vagueness and PRA that were just held on March 14th. And basically, Cannon asked Bov, who is one of Trump's lawyers, let's say I deny your motion, what would the jury instructions be for unauthorized, for unauthorized, right? And Trump's lawyer says they would absolutely have to include language from the PRA, discussing Trump's designation of the records as personal.

And so now here she is saying, write me up a jury instruction, assuming that these were personal records. under the PRA. And she even said, what if I deny your motion? What about jury instructions? So it sounds to me like she's going to do what she did with unconstitutional vagueness, dismiss this without prejudice, allow it to come up again later, kick the can down the road, because she doesn't want to go to the 11th Circuit. She knows what's up.

I think that that's absolutely right. And I think to me, this kind of further supports a theory I have about her. she is afraid to make a call. Strong permanent decisions. And you see this in the way that she treats some of these really preposterous arguments, many that we're getting from the Trump team on many of these motions that should not be countenanced. You know, they can make any motion they want, but ridiculous, frivolous, nonsensical motions should be handled as such,

should be decided quickly and gotten out of the way and then you move along. If they want to raise it again in the event that he gets convicted and they want to raise these things on appeal, they can try that later. But she's afraid to do that. She shows that in the way she entertains this nonsense and also in the way she makes decisions, oh, but not with prejudice, meaning we can bring it up again later, meaning it's not a final appealable order. As you mentioned, that enables her to dodge the 11th Circuit, getting slapped down again. And, you know, the pre- trial process. And I think it just kind of, it enables her to just keep everything hanging. Nothing ever gets resolved in a definitive way. Yeah, and it also kind of gives her the ability to stay the

whole case pending the immunity argument that Trump has filed here in Florida, not the one that's going on up in D.C. Because that hinges, his defense is that Presidential Records Act allows me to make these personal when I take them. And so, you know, if she dismisses but without prejudice and that it could come up later, she might then be able to say, we now have to wait for the Supreme Court on the PRA before I can make any decision on this or something like that. I don't know. How do you see that being involved? Because his immunity claimed down here in Florida hinges on the PRI. That's right. So if she decided the PRA motion definitively, let's say Monday, she puts an order up that says motion denied, that would cut the knees out from under his

immunity motion in this case. Because as you mentioned, it's it's deep, it's, it's, it's, it's, it relies on this same theory that I wave the magic wand, turn them all into personal records and therefore committed no, you know, you can't you, that was my that was my, that was within my purview as president, and I have immunity for all that. That's so you know that's never going to happen. There's many reasons to distinguish what the Supreme Court is going to consider in the D.C. case from the immunity or any kind of arguable immunity issue in this case, the PRA Foundation is one way.

Also, like, he did these things after they were very careful to charge him, only. only with things that he did after he was present. So it's she could just dismiss that motion on the merits right now. But that's ridiculous. Thinking that she's going to do that, he's just crazy. You're telling yourself stories. That would cut that off at the legs, right? But would dismissing it without prejudice allow her to make those determinations on the immunity

motion or a stay or anything like that? There's not, the immunity motion is kind of unique because if you dismiss it without prejudice, there would be no reason to dismiss it without prejudice because then you're saying like, oh, well, we're going to go forward with this prosecution and think about whether or not you should have been immune from it later, which is kind of flies in the face of the point of the motion. Oh, no, I meant the PRA motion. If she dismisses that without prejudice, would that allow her to wait to see what SCOTUS does? Because you said if she dismisses the PRA motion outright with prejudice,

then it cuts his defense in the immunity motion off at the knees. Right. And if she does the opposite, it has the opposite effect. Well, the opposite being... If she dismisses the PRA motion without prejudice, it means like I'm denying it now, but you can bring it up later. So the theory underlying the motion hasn't been conclusively, legally decided upon until it's dismissed with prejudice.

Gotcha. So that's why I think she would dismiss it without prejudice because it still leaves open this immunity thing that relies on the PRA. Gives her a back door later to say, well, it's kind of tangentially related to the Supreme Court issue, so we should just wait.

Got it. Stay the case, see what the Supreme Court does. Which, honestly, is not that big of a surprise. I think most of us who watch this closely have believed for many months now that this case really doesn't have a chance of going before trial. We had a trial scheduling conference, what, however many weeks ago now, we still have not heard a result. Scheduling conferences are usually decided at the bench during the conference. Everybody gets heard, and then the judge says, okay, here's how it's going to be. Not here.

So, you know, there's like really no effective trial schedule right now. Everyone knows the one that's on the books is wildly out of date and we just drift along. Yeah. And we know that there's still so much more to go, particularly in the SEPA area. And speaking of that, we're going to be right back with our SEPA expert, Brian Greer, to discuss the latest in SEPA Section 4. Everybody stick around. We'll be right back. Hey, everybody, welcome back.

let's go under seal. That's classified. It's what? It's classified. I could tell you, but then I'd have to kill you. All right, let's stay in Florida and discuss Eileen Cannon's recent movement on SEPA Section 4 with our resident SEPA expert, former chief of staff for general counsel at the CIA. Brian Greer.

Hey, Brian. Hey, thanks for having me back. Hey, Brian. So the Section 4 motion from the Department of Justice had been pending for a while. and we finally got a public summary from Canon on Friday. I know, Brian, you and I went back on forth on Twitter when she first released her decisions and they were just all sort of covered up in a Xerox machine. Like, it was just, it was odd the way she docketed those.

And we're like, oh, so everything is transparent, except now you have a secret docket and you're not going to say anything about this. And you were like, it'd be nice if we could get a little summary like Judge Chetkin gave us. And that's when she decided to grant your wish. she was listening to you. Yeah. Like I said, I hope my dream is that she has a burner account and she checks in every once in a while and takes a suggestion here or there. And as was proven, like, it was very easy to do a public summary of this order, even though this is something that's normally, there would normally not be a public summary of a CEPA Section 4 order. The public wouldn't care.

There'd be a question about that, what, you know, what the relevance of the judge doing it is. But it was totally appropriate for her to do that here. And obviously it was possible to be a little transparent. So that was a good thing. Maybe she's got a law clerk who's a listener. Oh, wait a minute. That's right. There are no law clerks. Okay, maybe there are law clerks now, but it's a bit of a rotating door there. What Andy's referring to is that two of her law clerks quit, which is very unusual. But I think that after a couple of updates, we found out that it was probably for legit reasons. Probably. It sounds like there's really not much to that. It is weird for them to leave in the middle of a clerk position, which runs a term of one or two years. Very odd for a clerk to leave before the term is over, but they seem to have both had some sort of personal explanations,

so no big deal. All right. Well, tell us what's going on with Cepa Section 4. She gave a ruling that was totally sealed, and then she gave another ruling that was totally sealed. Why were there two, and what do we know now that she's released your requested summary? the unclassified summary that she docketed. Yeah, well, as to the like, I think there were actually under being three prior docketed orders from her. We still don't know why there were three except I think now probably the first two were just sort of preliminary request from her, like maybe to adjust certain things or follow up questions or whatever. And then finally that third one was her final order because that was the only one where she said granting and denying in part the motion. So I think that's probably those first two were just sort of like preliminary matters leading up to the final order.

So the good news is she mostly granted DOJ's motion. She granted the majority of it, and that is to withhold certain information from Trump and his cleared lawyers in classified discovery. But then she withheld sort of held in abeyance two categories of records. one were two intelligence reports that they wanted to withhold from him related to one of the charged documents. And other were just sort of discrete redactions to these things called after-action reports, which I believe the PDB briefer goes and briefs the president. They come back to CIA or DNI.

And then they want to tell the equity holders in the briefing, what questions did the president ask? What was their feedback? Did they like the product? Did they not? did they, you know, all that kind of stuff that these people would want to know. They've apparently provided all those in discovery, but then they did some surgical redactions to those. And she said on those two categories, I want to wait until the motions to compel that she thought

are related or resolved and potentially have another hearing with DOJ to resolve them as well. Yeah, that reminds me of a story that Miles Taylor told in his book, blowback about giving the PDB, the president's daily brief, and how they had to translate it into a way that would make Trump happy about it. Like with the withdrawal from, I think Syria or Afghanistan, one of the two, they had to be like, the PDF, the PDB was entitled, Do you want to be a loser? And like, because pulling out of Afghanistan would make you look like a weak loser. And so they had to like completely sort of write it in his voice, like, in his voice, like, in his. his head to get him to not do something like that, which is interesting because I know some of these

one through 32 counts are premised on documents that have to do with withdraw. So anyway, just I thought that was interesting. Yeah. I'm slightly skeptical of that anecdote, but I do know for sure they tried to, they're always trying to brief to their audience. He like, he did really like pictures. I worked for a component who sent him a picture they'd collected once and he loved it. It was one of his favorite things he got that month. So there's definitely, they were trying to do that to some extent. We did the same thing. If we knew that Director Ray was kind of on point to brief something, or had been tapped to brief something, the conversation started with, okay, what do we have on video? Like, what's a good video that we can show him? Because you're just not going to get his attention

unless you have something that's like interesting to look at. He's not a reader. And he had a habit kind of just kind of zoning out in the middle of a lot of those conversations. So the only way to grab his attention was something moving. All right. So Canon actually ended up doing something right. Isaac, you did something right. Oh, what? I wanted it to go to my head. Anyway, your response, sir. Yeah, well, the first thing was she followed the law and she didn't.

there's, you know, again, SEP is a pretty basic statute, but there's a bunch of case law interpreting it. We'd seen a couple points earlier in the case where she sort of thought she knew better than the established case law around the protective order and things like that. Here, she didn't question any of it. She just followed it all to the T. So good for her for that. And again, she did agree to DOJ withholding a couple different categories. A couple other takeaways I had here was, you know, credit DOJ. It looks like they were very surgical in what they withheld from these documents. I'd always sort of predicted that that was going to be the case, but they were even more surgical than I thought if you just read the summary. Like, they really weren't withholding very much at all from him. So that's smart on their

part. We've talked a theme throughout this has been following the playbook versus throwing it out. I'm just in favor of throwing it out when it makes sense to get this case done. So good for them for that. But on the flip side, they're probably still a little more worried of, hey, we were surgical and she still didn't go with us on these two categories of records yet. So what does that say about how she's going to rule later in SEPA when it gets time to figure out what's going to be used at trial? Is she going to think that this stuff, like whatever this very specific information is, which is probably highly classified, which is why they wanted to withhold it,

she seems to think it's potentially relevant. Does that mean she's going to let them bring up in trial is what DOJ's ultimate concern is going to be based on reading the tea leaves in her order? And at that point, if not, do you just drop those counts and march on? I mean... Yeah, potentially. I mean, the beauty of 32 charged documents is you can always drop some before trial. I think that's probably one of the reasons they picked so many is to give them that

flexibility so they can always do that. And if she's still reluctant, do they have the opportunity to go back and re-redact in a less objectionable way or make a new substitution or something? Yeah, that's what I'm curious. That was what I was curious about too is, yeah, there's going to be another hearing. So they may talk about that there. And certainly, while I don't know what's being redacted or withheld, a substitution might be sort of the compromise.

It doesn't appear that they propose that here. but that might be the compromise if they're still super sensitive about whatever it is, do they do a substitution instead and make everybody happy? And I know we've talked about substitutions before, but can you remind everybody what that sort of looks like? Yeah, I mean, it could have been the name of an intelligence service. It would be a common thing that you might redact. The very specific country, we just don't want to have to go get them all concerned that

this information is at issue in their case or has a risk of coming out. so they might redact the name of that country in the substitute country A, you know, as an example. Or it could be that a very specific date is sensitive because it shows the very specific date we collected something about a terrorist or a foreign spy. But if we said we learned it in fall of 2020 instead of September 13th, 2020, you know, that can help. So stuff like that. usually it's it gives them what it gives the reader context but it's not really it doesn't like harm their ability to make their case right and there's nothing to appeal here are my correct that yeah that's right so she she even specifically said although i thought i was apparent she's not ordering DOJ to disclose

anything they haven't already proposed to disclose that is essentially saying to least people like me the only way you can appeal under CIPA Section 7 is if she has ordered DOJ to disclose something classified, even in just in discovery, that they didn't want to. She did not do that here. So there's nothing to appeal. And could her reserving on those other two categories be because she doesn't want anybody to appeal her to the 11th Circuit? I mean, right now there's a huge chorus for Jack Smith to go to the 11th Circuit based on her really weird request for jury. instructions based on things that don't exist. And, you know, also she ruled on without prejudice on that unconstitutional vagueness thing so that it can't be appealed.

It seems like she's doing everything she can to not, you know, have to go to the 11th circuit. Yeah. I mean, well, the chorus of getting her off the case is growing. You know, we have to think about the procedural aspects of all this. And I'm not a procedural expert, but you have to have a final. First of all, she's never going to recuse herself. So the only way she's going to get off is the 11th Circuit is going to have to remove her on a remand.

And so then you've got to have an appealable issue. Well, you've got to have a final adverse order to the Department of Justice. Very, very few of those so far whatsoever. The jury instruction issue as of today, there's nothing final appealable about that. The vagueness thing you mentioned, nothing, no final appealable order about that. She hasn't ruled on the reconsideration motion. to release the witness lists as part of that motion to compel. And honestly, if I'm her, I just would never rule on it. Right, right. Just wait until, you know, it all comes out. Because that would

launch her to the 11th Circuit for sure. He has said, Jack Smith has said, I'm going to take this to the 11th circuit if you don't follow my reconsideration order. And then the rest of it is just the scheduling stuff. And no, while it's annoying, while she's done stuff that's people don't agree with, no court of appeals is going to remove a judge for a case over going a little bit too slow. A scheduling order? Forget it. No way. Yeah. And even though, and remember, Jack Smith has refused to say in any of these cases that there's a public interest in getting these cases done before the election. He has not made that argument yet. He dodges that like, you know, I don't know, like what, but he dodges it a lot. Right. Right. And so there's just nothing to appeal. Yeah. I'm sorry. Yeah. And the effort itself just, just, just going in that, making the decision to drop that anchor and attack her essentially in her presence in this case is if it doesn't work, you're hosed because you went to war with a judge who's

going to decide every motion and every issue in this case. And that does not bode well for, you know, close calls going your way, not that they're getting a lot of those anyway. And it also puts DOJ in a really rough spot from a political optics perspective. It looks like, oh, they don't like this judge. They're trying to handpick a hanging judge and it shows you a two-tiered system of justice, yada, yada, yada. It plays into that kind of course of nonsense. The political implications of a Trump victory would also probably be pretty damaging. Yeah. I mean, to your point, Andy, and you could speak better to this than me. People at DOJ who've been there for a while, they are institutionalists, right? Like they believe in the institution of the Department of Justice and they

believe in its reputation in the courts. And they don't like pissing off judges, even adverse ones like Judge Cannon, like they'll still go to the bat, to the mat and defend themselves, but they, they don't, they'll see if they do this with Cannon, they'll think it's some other judge going to get pissed off at us because we did this down the road. Completely. They have to work with these judges, you know, like them or not. And sometimes they adjust their strategy based on how high or low they think of a judge. So there's all that's factored in. But the, on its face, they remain respectful and they don't try to attack them. And really, case, you know, you remove a judge when you, when as the prosecution, you've uncovered some link between the judge

to the defendant, a relationship or a financial relationship or something like that. Like, we're not even close to that. I know this is offensive to a lot of people who are following this case very closely, you know, at least half of them are outraged by her. There's a lot of bad judges out there. There's a lot of judges who issue, you know, illogical or unreasonable, seemingly unreasonable orders every day. And prosecutors, that's their job, is to work in these courts and figure it out. Well, I remember when they were litigating the citizenship question on the census. And everybody thought it was all a done and closed deal. And the lawyers presented to the court, yeah, okay, we're done, blah, blah, blah.

But then Trump wanted him to go back and keep fighting. and there was an emergency call and they had it over the weekend and the judge was like WTF and the line prosecutors were like, we are so sorry. We thought this was like they were, you know, prostrating themselves before the judge, so you know, apologizing for having to come back and reopen the issue. So yeah, I've seen that. I've seen that in practice a couple times, but y'all have a lot more experience with it. So make sense. Now, one other thing I wanted to talk to you about is this, there's a pending motion that you're worried about, Brian, that many people have overlooked. And it's the motion to expand the size of the prosecution team. And, you know, we've talked on this show many times about Jack Smith and his briefings saying, look, you can't compel discovery from every person in every executive branch and every agency that you're trying to expand the scope of the prosecution team. So why are you worried about this motion? Yeah. So with all these motions to compel that can get into a classified matter, there's a general concern I have, which is just on the timing.

So, right, DOJ filed this current Section 4 motion on December 6th. I had to go back and refresh myself. So now it's three and a half months later and we just finally resolved it. That was just the first push of discovery. So for any more classified discovery she grants, that process will have to start over. Hopefully quicker, hopefully a lot more discreet. But as we saw, this was pretty. discreet at the end of the day what they were withholding here. So where that's most likely to be

acute is with this notion of expanding the prosecution team where Trump's lawyers want DOJ to search all the files of either all the intelligence community agencies or at minimum the lawyers at those agencies who assisted on the prosecution and NARA and the White House. I think NARA and the White House are a little easier. Hopefully, well, I think the White House hopefully will be easy to dismiss for canon. We'll see. NARA. maybe a little closer. But the intelligence community, it would be worrisome because it would bring in a lot of classified records

that would slow things down. She said at one of the hearings, this didn't get a lot of press coverage, that she was willing to entertain an evidentiary hearing to decide if she should grant this motion. So, like, that would be bonkers. That means bringing in, like, lawyers like me from the CIA, whoever's doing that job now,

to go sit in the courtroom and talk about what role I played in the case. And the role at the end of the day, just to agency lawyers like me would have been probably had a decent amount of involvement. But you are not investigating the case and you are not deciding what charges are brought. You are representing the victim agency, the victim, right? You are representing the classified information at issue deciding whether it can be used or not and what protections can be afforded to it. But that doesn't determine the charges or the investigation or anything like that. So for her to sort of go down that road, it thinks she misunderstands the role that the IC plays in these cases. That still doesn't mean it's not involved quite a bit, but it is playing its role as representing these victim agencies, not as advocate, not as investigator.

I worked on one case where we were. We actually figured out who the leaker was. CIA did it on its own. And there we were treated as part of the prosecution team, which was fine because we figured it out on our own who it was and just told Dio. So that made sense. Here, everyone knew from day one who committed the crime, right? It was, everything else was up to DOJ at that point. So that, that worries me the most of all the various pending motions to compel. And what are your thoughts? Because we talked about this in the first segment before we let you go, your thoughts on this weird. I know you talked to Katie Fang

for like a good 30 minutes offline to try to figure this out. But, those two hypothetical situations under which the judge canon is asking the DOJ and I guess both parties to write jury instructions as though the PRA says something that it doesn't, Presidential Records Act. Yeah. I mean, the one positive thing I'll say is I actually some people criticized her inexperienced that you do jury instructions at trial. Why is you doing it now? I think it's actually good that we're figuring this out now instead of on the eve of trial or post. jury and paneling, right? Like, if she does issue a ruling now, you can appeal now.

There's plenty of time. So the exercise I don't object to, but obviously the formulations are both favorable in varying degrees to Trump's interpretation of the statute. The first one is, you know, one where DOJ could still establish that they were presidential records. That's annoying, but they could do that, I think, pretty easily. The second one, obviously, I'm sure you guys have talked about. is just what we would have to require a dismissal of the case at that point because there's

just nothing left. And I'm sure they'll point out like the indictment actually alleges that Trump did not return them to Nara. And under her formulation in that second prong, that means they're personal. So, so I don't know what's left for the jury to even decide other than just establishing that, yeah, they weren't set back. But the parties could like stipulate to that. And just, I don't, I, it's very weird to be doing jury instructions now. Yeah. I understand your argument for, I could help us later. But this idea that we're going to like, before the judge weighs in and tells the parties what the law is, you have to build a jury instruction about what it could be.

Yeah. It's insane. And courts don't run that way. The judge's responsibility is to tell the parties. what their interpretation of the law is, and that's how it's going to be. And if you don't like it and you want to appeal the result after the trial, you're probably welcome to do that, depending on the issue. But it's just inexplicable.

But the terms are ever fluctuating, and the definitions are judicial glasses are ever changing. Oh, it's those judicial glosses again. I mean, my optimistic take is on the second prong, maybe she'll see this makes no sense. I'm not going there. Yeah. I hope. I mean, I don't know.

How about if there's no formal means in the PRA by which a president is to make that categorization, maybe that's a hint that it's not something that's supposed to do. Or at minimum it doesn't get you criminal immunity. I mean, we've, I'm returning to my rant. But then the pessimistic take, and I tweeted this, was, back during the search warrant litigation, she had not seen any of these records, and there were a bunch of unclassified records that DOJ took. So there, obviously she was wrong in the law completely, but at least she could have been somewhat sympathetic to, hey, maybe some of these are personal records. She now, through the Section 4 litigation that we talked about, has seen all the records.

And she's seen declarations from intelligence officials explaining what's in them and why it's classified, how they were made, all this stuff. And she's still entertaining this after that. Despite all that, she is still holding in her head the idea that the argument that Trump's team made on this issue might actually be lawful and appropriate. And that's absurd. Like she should have ruled on this from the bench. Immediately, no written order, motion denied. Move on. Like, there's not a hearing, honestly. There's not a handful of federal judges in this country, including my recent statement that there are many bad ones. Even those wouldn't have let this go on as far as had, much less, you know, order the parties to draft jury instructions around this nonsensical theory of non-law. All right. Well, thank you so much, Brian. I know we are only on SEPA Section 4.

We have many sections to go, and we'll be bringing you back as those unfold before us, unless, you know, of course they're all redacted and we don't get cool summaries like we did this time because our burner account saw what you tweeted. That's just speculation, everyone. So thank you again for joining us today. Thank you for having me. Appreciate it. Yeah.

Thanks, Brian. Have a great weekend. You too. Everybody, stick around. We'll be right back. All right. Let's head to D.C. Partly because Florida is like a flaming dustbin of nonsense.

So let's at least go to D.C. to change up the topic a little. And also because we have a fascinating new article out from the New York Times by Glenn Thrush and Adam Goldman, which really gives us more insight into the chronology of opening the investigation that ultimately led to the indictment of Donald Trump for election subversion. So the article starts off in part by saying, after being sworn in as Attorney General in March of 2021, Merrick Garland gathered his closest aides to discuss a topic too sensitive to broach in bigger groups, the possibility that evidence from the far-ranging January 6th investigation

could quickly lead to former president Donald J. Trump and his inner circle. At the time, some in the Justice Department were pushing for the chance to look at ties between pro-Trump rioters who assaulted the Capitol on Jan 6 and his allies who had camped out at the Willard Hotel in what we refer to as the war room and possibly Mr. Trump himself. Mr. Garland said he would place no restrictions on their work, even if the evidence leads to Trump, according to people with knowledge. of several conversations held over his first months in office. So, AG, that's new. We didn't know before that Garland was greenlighting an investigation that could lead to Trump from the very start. Previous reports and public interpretation, I think, suggested that the Attorney General was pushing for a very active investigation from the beginning. But in the end, focusing on the Willard and working their way to the top would eventually lead to a dead end. Now, that's not because the

people at the war room or in the White House hadn't done anything wrong. But as the article explains, it's more because DOJ didn't ever find the type of financial connections between the war room folks and the major rioters that they expected to see from the beginning. That stuff would have formed the basis of a simple, tried and true kind of follow the money conspiracy case, kind of like the type of investigation you and I discussed and predicted a year ago that would have focused on packed fundraising fraud, right? We always thought that's an easy one. It's, you know, obvious evidence. It's a go-to. And of course, that one has not happened yet. But the article goes on to say, Mr. Garland proceeded with characteristic by the book caution, pressure testing every significant

legal maneuver, demanding that prosecutors take no shortcuts and declaring the inquiry would, quote, take as long as it takes. It would take the department nearly a year to focus on the action. contained in the indictment ultimately brought by Jack Smith. Yeah, and, you know, we did. You and I talked a lot about that fraud over at the Save America PAC and the Sydney Powell Pack. And I think probably about a handful of episodes back, we learned that those subpoenas had been pulled.

And it seems like they met a dead end at that follow the money investigation as well. And I know Merrick Garland brought up follow the money in his October hearing when Congress had questions about the pace of the investigation too. The article then goes on to explain why it would take nearly a year. The Times points out that the White House was very frustrated with the pace, as were members of the January 6th Select Committee, given that DA Fannie Willis, for example, was going head on at Trump before Garland was even sworn in. Now, the article fails to mention that the Department of Justice ultimately indicted Trump before the Fulton County of DA's office did, though the indictment into Trump is just him and it's just four counts, whereas the DA's

indictment has 18, 19 co-defendant, sprawling RICO case, 13 counts against Trump. Now, the article goes on to say, people around Mr. Garland say there would be no case against Donald Trump had Mr. Garland not acted as decisively as he did. At any perception, and any perception that the department had made Mr. Trump a target from the outset without exploring other avenues would have doomed the investigation. Now, I looked, I read this article 100 times. There's no explanation for why or how going after Trump as the target from the outset would have doomed the investigation. Andy, do you have any insight as to why that would be the case? I think this is just another example of DOJ being very cautious around the politics and the optics of this investigation.

I think they were trying to dodge the perception that like, oh, they just went into this with a preconceived notion that it's all Trump's fault. And it was, you know, kind of a sham from the beginning. Now, now we know the fallacy and thinking that way is kind of multi-leveled. One, you're going to get that criticism anyway from this crowd. It's all two-tiered system of justice, not fair. Joe Biden's pulling the leverage, all that nonsense. And, you know, even though there is a concern about optics and they want to make sure that

the public, they want to maintain public trust in the objective nature of the department and all those sorts of things, that doesn't obligate you to investigate every single other person in the world before you focus on the one person who's obviously involved in the case. I mean, it's not the kind of consideration you would give to any other defendant or subject of investigation. So on that ground alone, I think it's a bit illegitimate. And it's also just kind of, it's illogical, right? You'd be crazy to do that in investigation after investigation because, like, you're obligated to make quick determinations and follow the most obvious productive leads first. And really, there's only one person that's at the center or tied to every effort around that attempt to overturn the election.

And that was Donald Trump. He was the obvious subject from day one. Yeah. And that's why I want to know more about who said that, who sourced it. Because what we have so far here is that the week that Merrick Garland got there, he got everybody together and said, we got to go after this, even if it goes all the way up to Trump. Go. Make it so. engage. Right. Then this is pretty new by the summer of 2021, after a couple months, after that

happened, after he gave it to the DC U.S. Attorney's Office, who by the way was headed up by Mike Sherwin, if he said, go, make it so, even if it goes all the way up to Trump, da-da-da. By the summer, Merrick Garland and Lisa Monaco were so frustrated with the pace of the work that they created a special team to investigate Trump allies who gathered at the Willi hotel, John Eastman, Boris Epstein, Rudy Giuliani, Roger Stones, et cetera, and possible connections. They wanted to look at possible connections to Trump, and that's according to former officials. So by summer of 2021, Merrick Garland's like, hey, DCUS Attorney's Office, I gave this to you when I got here.

What's taken so long? Yeah. And, you know, so he was very frustrated along with Lisa Monaco. And I didn't know that. Because the way that all the public reporting and the media would have me believe is that Merrick Garland wanted it to be slow and boots on the ground and bottom up and was not at all frustrated with the pace, but the cause of the slow pace instead. So that was surprising to me coming from these sources. Yeah, that theme comes up in a lot of places in this article in ways that we really, you know, we haven't heard before, which is really. interesting. Yeah, I think, I think it is. And again, that's the first time that we hear it. Now,

let's talk about Mike Sherwin, because he was who was in charge at the DC U.S. Attorney's Office. He repeatedly blocked J.P. Cooney from pitching his top-down approach to Merrick Garland. And this article doesn't mention him at all, by the way, nor does it mention the assistant director in charge, ADIC of the FBI Washington Field Office, one Steve Dan Twono, refusing to issue subpoenas for the Willard and the Trump allies associated with the war room. We learned all that from the incredible article in Washington Post by Carol Lennox. And so that was June of last year that we learned all of that. And that's not really, that's not mentioned here in the article. It goes on to say there were also problems inside the part of the Justice Department leading

the investigation, the U.S. Attorney's Office in Washington. So they kind of walk up to it here. The office was racked by personnel issues and buckling under the weight of identifying and prosecuting January 6th rioters, an investigation that became the largest ever undertaken by the department. Garland and his team decided early on not to take direct control of the investigation themselves, as the department had done after the Oklahoma City bombing. And this to me was probably an early error, giving it to Mike Sherwin in the DC-U.S. Attorney's Office instead of, creating the investigative team that we'll talk about in a minute that would eventually turn into what the Jack Smith investigation is now. So this is a really interesting point. And if you go back

to our decision in 2016 when we opened Crossfire Hurricane and it was infamously handled as a quote headquarters special, we got savaged for that in the aftermath of, you know, the IG investigation and everything else. There was all these, quite frankly, uninvolved people who like to sit on the sidelines and say, oh, that was a crucial fault. Actually, to be fair, there's a lot of like former FBI agents who had no involvement in the investigation whatsoever, people who'd retired years before, who sat back and used this as an example of like headquarters, hubris. This is typical headquarters people taking control of things. and they can't really run them, and they should just have handled it as any other case.

And Chris Ray really kind of, I think, sided with that criticism. Kind of in a gun-shy way to avoid it from happening again? My point in bringing it up is this is the example of why you do it that way. I'm not saying either approach is perfect. Each one has potential pitfalls and places where that running it in a centralized way, out of headquarters and in a centralized way at a DOJ can create some problems, but it also puts you in a better position to control things like the pace, right? If they had decided at the highest leadership level, that's the director of the FBI and the deputy attorney general, hey, we need to do

this is the most important case right now in the country, and we need to make sure it's done correctly, quickly, on schedule, closely monitored and overseen, one way to do that would have been handling it from headquarters rather than farming it out to the Washington field office, especially when WFO was probably buried with January 6 cases, the rioter cases. So, you know. And seditious conspiracy, right? Yeah, there's a reason to do that and had they done it in this case might have made a big difference, but we'll never know.

At least a four-month difference. Yeah. So then they start getting into the details of the timeline. Yeah. So the article breaks down the timeline. They say in February, while Mr. Garland awaited Senate confirmation, J. P. Cooney, a veteran prosecutor in the U.S. Attorney's Office, who ran the group investigating the riots ringleaders,

drafted a proposal to fast-track elements of the investigation. And that proposal would also include seizing the phone of Mr. Stone, Roger Stone. Some at the department worried Mr. Cooney might be trying to settle unfinished business, according to two former officials who now believe those doubts were misplaced. Now, that's a reference to the fact that Cooney had worked on the prosecution of Roger Stone, which was derailed by Bill Barr, and then ultimately expunged, by Donald Trump. He wrote the sentencing memo, that Barr came back and said, no, we're not going to sentence

him for that long. Exactly, exactly. So now the sum that they're referring to here are basically Mike Sherwin, who worked on the commutation of Roger Stone and Steve Dantuano at FBI WFO and Matt Axelrod, a top Justice Department official during the Obama administration. They had been tapped by Biden's transition committee to help run the deported. day to day until Garland and Monaco could be confirmed. Now, we know all that detail from Carol Lennox reporting last year. Okay, back to the Times article. For the next several months,

the Willard inquiry led by Mr. Cooney, took a backseat to another high-profile high-risk effort, which was drafting the novel seditious conspiracy charges against the leaders of the oathkeepers and the proud boys for their roles in the capital attack. Mr. Garland, like most attorney, General did not weigh in himself on day-to-day decision-making. Instead, he would transmit his preferences on the Jan 6 investigations every Thursday evening during a briefing with about a half a dozen aides. The team included L. Rush Atkinson, a senior counselor to Mr. Garland, whose work for the special counsel Robert S. Mueller, offered valuable insight. Who? Robert, who? I don't know. Who's that? I'm kidding. I'm kidding. Bobby Triple sticks himself.

Triple sticks. I forgot about that because he played hockey. The hockey player. On June 30th, the Democratic majority in the House voted to create a January 6th committee with teams assigned to investigate the fake electors plot and Mr. Trump's effort to overturn the election. Justice Department officials vehemently deny that external pressure spurred them to move faster and maintain that their decisions were prompted solely by the collection of evidence. By the third week of June 2021, Mr. Garland had decided investigators had accumulated enough evidence to justify channeling more resources into the Willard investigation. Okay. So June 2021, that's two and a half months after he got there? Yes. Right?

So at the outset, he's like, go, make it so. And then in June, him and Monaco were like, this is going way too slow. I'm channeling more resources into this investigation because whatever you're doing up there, Mike Sherry. win, you know, either because I personally don't like that guy, maybe he's blocking all this or just sitting on it or putting it in the backseat or also because, again, like you said, they were inundated with January 6th investigations. Yeah. I mean, nobody pushes additional resources to an investigation that they think is on track and going

fast enough. So that decision alone is indicative of the fact that they were frustrated with how things were going. So they go on to say, but the U.S. Attorney's Office, which was supposed to be coordinating the investigation, did not have the bandwidth to do it in Mr. Garland's view. He groused about a lack of updates on the inquiry. In late June, Mr. Garland, Ms. Monaco, and several aides decided they need to take a dramatic step, creating an independent team separate from Mr. Cooney's original group, tasked with investigating the Willard plotters with no restriction on moving up the letter. to Mr. Trump if the evidence justified it. Wow.

Okay. So Garland took a dramatic step in June of 2021. Yeah. And basically took that, we'll keep calling it, the Willard investigation out of the hands of J.P. Cooney, who was the guy who pitched it originally. But, of course, he's been distracted, you know, focusing on the Oathkeeper and Proud Boys cases. So they build this. Distracted going on 60 minutes talking about.

about it and then having to quit before he was fired for doing that. Yeah. Yeah. Okay. So they didn't want too many people knowing about this effort. So they gave it a vanilla name. They called it the investigations unit. Dun dun. I mean, man, alive. They couldn't have gotten more vanilla than that. Jesus. A lack of creativity there. But anyway, back to the article. then things appear to have stalled. The investigations unit would not begin operating until November 2021, more than four months after its creation. And there in lies the rub, right?

That when I said earlier that this maybe could have saved four months, right? Not 18 months or two years, as we sometimes hear. But that's a lot of time. And there's nothing in here about why those investigations, the investigations unit, Dung, Dung, stalled for four months. There's nothing in here about why. But it was November when Biden's pick for U.S. attorney was finally sworn in.

It was being blocked. This isn't in the article, I'm just telling you. It was blocked by Republican senators Mike Lee, Rick Scott, Ron Johnson, Ted Cruz, and Tommy Tuberville. Huh, that's an interesting group of senators that wouldn't want an investigation into the coup to begin. Gee, what else is a commonality between them? Hmm. I don't know. Supporting the objections is the certification of the election on January 6th? Weird. So they wrote a letter to Garland in June saying we're going to block confirmation of Matthew Graves at the U.S. Attorney's Office in D.C. unless and until you, Merrick Garland, start investigating the Black Lives Matter protesters with the same vigor you have going after the peaceful protesters at January 6th.

Yeah. That same month, by the way, in November, when Matthew Graves finally got confirmed after getting that blockade, Garland put Thomas Windham in charge of the Investigations Unit. And that's when things began in earnest once Biden's team was fully there. It says Mr. Windham had begun joining with investigators from other agencies, including the Postal Service, to track the trail of fake electors. And that's fascinating to me because these certificates were mailed. He also teamed up with the Justice Department's Inspector General, who had begun investigating Mr. Clark. And Andy, we know from Carol Lennox reporting that Dan Twono at the FBI was blocking search warrants and subpoenas left and right. I'm not going to subpoena the friggin' Willard. And, you know, I'm not going to go get Eastman's phone or whatever. He was blocking those. So Wyndham used the Inspector General and the postal inspectors to execute his search warrants. Now, what's new here is that Wyndham teamed up with the IG's investigation into Clark,

which began, by the way, way, way back in January of 2021, right after the insurrection. DOJ opened that IG investigation. Yeah, yeah. I mean, this is all amazing to me. I mean, I think those points are all totally valid. But I also kind of feel like the side of the story they're not really highlighting is that Windham was not getting the resources or the support from what is the U.S. Attorney's Office's main line of investigators, and that is the Federal Bureau of Investigation.

So, you know, that could be because FBI folks were all tapped out on the January 6th case, or it could be that they or their boss were not willing to do it, right? And that gets you back to the Dantuano question. Or it could be some combination of the two. But in either case, like Tom Windham, having. to rely on IG agents to serve that subpoena on Jeff Clark or sees his phone. Or is it Eastman? He sees the Eastman phone in New Mexico or something around that time. I remember seeing that search warrant when it was revealed. And it was just like, this is crazy. You and I called it. We called it

the search warrant two-step. We're like, this is weird. Why are you having the post-cote, the mail cops come in and do this? No, no shame on the, you. U.S. Postal Inspection Service. Great service. They have terrific agents. They have a really unique mandate, but it's just not really done that way very often. Right. So the article goes on to say that then Mr. Windham's former boss in Maryland, Jonathan Lensner, was named as chief of staff to Chris Ray.

And that gave the prosecutor, Wyndham, a direct line to the highest echelons of the Bureau. Mr. Ray also instructed deputies to ensure that Wyndham had everything he needed. That seemed to shake the tree loose. Yeah, it's interesting because I've heard that in different contexts recently. I was talking to someone, a former colleague who, like me, talks to other former and current colleagues. And it seems like Lenzor's arrival really kind of changed things a little bit on the seventh floor around the director. I think his previous chief of staff was a guy who was basically his job was to keep people away from Director Ray. And Lenser seemed to have brought a little bit of a little bit more openness or connection there, which is probably greatly needed.

Yeah, and I would be very interested to see why the chief of staff was replaced. Did it have to do with Merrick Garland's frustration at the pace to give Mr. Windham a clearer direct line to the FBI? it would be interesting to know that inside baseball, we never will, I promise. Yeah, that'd be hard to find because he basically serves at the will of Christopher Ray. So you're not going to unlock that box. Yeah, no, probably not. But shortly after that, by the way, the massive round of subpoenas would go out in early 2022.

And that's when Trump deployed his executive privilege delay tactics. And here's from the Times article, the Justice Department set up a secret team of prosecutors eventually employing more than a dozen lawyers to review the potentially protected materials including emails. It was known internally by the code named coconut. That's according to people familiar with the planning, led by a prosecutor from Portland, Oregon,

who was the only person authorized to talk to Mr. Windham's team. Now, the January 6th committee hearings then began in June. And Mr. Garland has said time and again that the hearings had no impact on the Trump investigation. And honestly, looking at this timeline of events, Andy, it seems to be the case that they were trying to get this going and did get it going before the January 6th committee hearings happened. Now, they go on to say the department was motivated only by the need to get it right, which entailed imagining the mistakes that we could make and making sure that we don't make them. As he told the Barr said, that's what Merrick Garland told the Bar Association Conference recently. But the pressure was building and what Mr. Windham's team wanted most were hundreds of raw.

transcripts of committee interviews, something that the one-six committee refused to overturn quickly. And this has always bugged me where members of the committee were, you know, criticizing the Department of Justice for their slowness while also refusing to hand over those transcripts in a quick manner. Yeah, it seemed really petty and very kind of parochial, like, this is our stuff. You can't have our stuff. when everybody knew all along that they would get it all eventually anyway. So, you know, it's a big article and goes in a lot of directions. It's a fascinating story, well done by these reporters.

But I feel like my takeaway, AG, is like there was a lot of things that slowed it down. There was no dedicated effort, at least on Merrick Garland's part, or the people directly around him to slow things down. but he does have a bit of a cautious approach, didn't want to make any mistakes. There's nothing crazy or stupid about that. But you have all these, you know, you have all these factors that all contributed to making this thing at its early stages take way too long, longer than it should have. Everything from Trump's aggressive presidential immunity, you know, efforts to stop people from testifying all that stuff, all the way down to what may. have been reluctance on the part of some law enforcement entities, particularly my own, to really dig into this thing early in an aggressive way.

Yeah, and you got D. And you got D-And you got D-And-you-got-Sherwin, and then you got the thousands and thousands of other January 6th boots on the ground investigation. You got COVID backing everything up. Sure. Yeah. And then, of course, you've got these wonderful Republican senators. slowing things down. A bit of a perfect storm, right, of things that all were very different,

but all pointed in the same direction. That was to delay. Yeah, I think the one thing in hindsight, I mean, well, two things in hindsight I would have done differently was to keep this investigation at Maine Justice and enlist that team rather than dole it out to the U.S. Attorney's Office in D.C. at first. And then also, I personally would have appointed a special counsel in 2021. Because that is a full-on dedicated team with all the powers of a U.S. attorney and resources and all that other stuff. Well, that's the fact that they did do that, and that's when things went from like lagging to like hyperspeed, that proves your point. Had they kept this investigation in FBI headquarters and monitored by DOJ-based attorneys, you know, what the, what the investigation is, it needed was some centralization and very direct oversight at a level that was able to make decisions. And

they ultimately got that with the special counsel, and that's when things picked up. Yeah. And, well, it picked up pretty significantly when Wyndham got there. But again, he had all those other roadblocks trying to get his search warrants executed and his subpoenas issued. Yeah. So, yeah, it's a very interesting article. I recommend everybody check it out. But also really, really, I think a great companion to this article is the June 2023 article in the Washington Post by Carolenig. Yes. Because it fills in some of the gaps that are in this story as well. All right, everybody, we have to take one more quick break, but stick around. We'll be right back.

All right, everybody, welcome back. So our final story today, back up in D.C., Donald Trump has filed his brief on absolute presidential monarchy, also known as immunity with the Supreme Court this week. Now, Hugo Lowell, the Guardian, has written that Trump re-advanced his argument that he enjoys absolute immunity from prosecution because the conduct charged by Jack Smith over his plot to stop the transfer of power is within the outer perimeter of his duties. I can't even say it with a straight face. Within the outer perimeter of his duties as president. Trump reiterated that presidents can only be prosecuted if they've been convicted in the Senate by, you know, through impeachment, pointing to language. in the U.S. Constitution that a party convicted by the Senate shall nevertheless be liable and subject

to indictment, trial, judgment, and punishment. Now, Trump claims that without the guarantee of absolute immunity, the threat of potential prosecution would prevent future presidents from feeling free to take decisive action without being second guessed by prosecutors later on. Quote, every future president will face de facto blackmail and extortion while in office. The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial presidential decisions. But Andy, he also argued that no president in history has ever faced indictment, which blatantly undercuts his position that the threat of prosecution would stymie a president's ability to do his or her job. Oral arguments, as you know, are set for

April 25th, the last possible day in the term to have oral arguments. And the courts have no rule barring them from holding trial in the middle of elections. So I just want to put that out there, too. Yeah, this is exactly what we expected. Cudos to Hugo for kind of summing it up for us. You know, there's nothing new here. The whole double immunity argument is not even in the question that the court agreed to hear. So it seems like they've kind of pushed that one aside right from the beginning. Yeah. That was the basis of my dream scenario.

Yeah. Yeah. And the whole kind of every future president would blackmailed and won't be able to make bold decisions. I mean, I don't know. I think you could very easily decide, you know what? I like the idea of future presidents feeling constrained by the criminal laws of the United States of America.

Like, that's a good thing. We have been this whole time. There's been no presidential immunity this whole time. That gets back to our. absolute monarchy. Like, if the president gets to just do whatever they want and violate whatever law they want, that's not the presidency that was anticipated by the Constitution. So there's that. The problematic one here is this whole within the outer perimeter issue. And this worries me because the court loves an off ramp. And sometimes the off ramp will be, well, this raises a fact question,

We're going to have to remand it back to the court to make these determinations of fact. That scares the crap out of me. Yeah, they could come up with some sort of test for how we draw the line at the outer perimeter and then kick the case back for Judge Chutkin to make the factual determinations. Now, it's also possible they could say, as the lower courts did, no, as a matter of law, the conduct alleged in the indictment, which you have to assume you have to take on. on its face at this point in the proceeding, as a matter of law, that can't possibly be within the scope of a president's duties.

Yeah, but if they were going to address that question, then they should have just denied the stay. I mean, if that's the question, that was answered thoroughly by the D.C. Circuit Court of Appeals. And, you know, I mean, I guess they could have said, we're only going to look at what the D.C. Circuit Court of Appeals looked at. But the fact that they've expanded it is just like what you see. said is it leaves open the possibility that they remand us back to Judge Chuckin and we have to go

through this whole thing again. I think that that's a, I'm not going to say that's the likely outcome because I'm done trying to predict these things. But that's a very possible result that we get here and one that will delay the trial significantly. Significantly, well past the election. Yeah. All right. Do we have any listener questions today, my friend? We got a bunch of this week and most of them were very, very much in the same orbit. So I'll just read you a little sampling of them and then we'll get at this. The issue is not going to surprise you. James gets right to it and the entirety of his question is, is there no way to get rid of Judge Cannon? Jen says, thank you both for sharing your insights into all things Jack with us every week. Jack

is the first podcast I listened to. My question relates to the questionable rulings from Judge Eileen Cannon. Is the appeals process, the only remedy available to Jack, when it's a ruling that can be appealed? Is there no supervisory board or senior judge that oversees federal judges and their non-appealable rulings? And Nate says, I am thinking of Judge Cannon, but who can judges legally seek advice from about court cases and motions prior to making a ruling?

I thought that was kind of interesting. So we did hit this a little bit earlier in the show, so I won't really beat the dead horse. But there's not much that the government can do here. If they are appealing a final ruling on a motion from Judge Cannon, they can get in front of the 11th Circuit. And they can try if their appeal is granted, you know, they can try to get the court to remand the case back to a different judge. That would be a bit of a bank shot. It's very hard to do. The standard for taking a case away from a judge is incredibly high.

It's essentially only when you, you know, through the pendency of the case, you reveal like an improper relationship between the judge and one of the parties. We certainly don't have that here. And there's all kinds of negative implications to even bringing that sort of challenge. It, you know, as I said earlier, you're going to war with the judge in the case that in all likelihood is going to make all the decisions that are important to you. It's generally a bad idea for that case. So I know it's frustrating. There isn't much supervision on federal judges. They're appointed for life. Technically, there is a presiding judge in the court, you know, in the district where each of them work. And those judges are kind of nominally in charge of them. But really, the presiding judge

just makes decisions about like scheduling and assigning cases and stuff like that. Ultimately, I think it's the judicial conference and, you know, that makes bigger decisions about the court system and ultimately could weigh in. That's the judicial conference. It's a committee, which the chief justice of the Supreme Court is kind of in charge of. But again, there's not like a clear, tried and true path to getting a judge recused. Really, the only way to get a judge off is through impeachment, which we're not even close to that yet. No, and there was another option that I think Andrew Weissman brought up in responding to Judge Cannon's weird order to write up jury instructions based on things that don't exist.

And he said, well, because, you know, what I said I would do is I would, if I were Jacksmith, I would respond and say, I'm not going to do that, either dismiss or get off the pot. But Weissman said another option is what's called a writ of mandamus, where he would go, based on this order, to write up something that's not consistent with the law in the 11th Circuit, he could go to the 11th Circuit and say, I need you to tell Judge Cannon to stop it. And also can we have another judge. So it is possible that this order to write these weird jury instructions is a reason to go to the 11th Circuit and say, this is bizarre and can you order her to stop me to tell her to not ask me to do this. But again, like you said earlier earlier when we were talking with Brian, that you risk losing and that can backfire and blow up in your face and now you've pissed off the judge. It's super provocative. And I would say in that circumstance, even if the 11th Circuit was willing to weigh in,

it would be a very narrow way in. It would be some sort of a directive to her that would countermand this particular order. But, you know, the prosecution's concerns with her far beyond this one crazy let's pretend the law goes in two different directions and have you make your instructions for both. And she's shown us that she would rather not go to the 11th Circuit and makes rulings that punt the issues down the road like she did in the unconstitutional vagueness. She's got an outstanding motion for reconsideration where she wanted to release those witness lists. I don't, like I said, if I were, I just wouldn't make a ruling in that case, just wait. But, you know, she could come back and rule that, you know, give me proposed redactions or which the government already has,

or she might challenge those or have another hearing on them and just drag the whole thing out. But she really, you really do need some sort of an action by the judge, at least to appealable action by the judge to take it to the 11th Circuit. Yeah. And so that's kind of where we are. I think she's intentionally dodging that. She's doing it on purpose, for sure. Yeah. She doesn't want to go back to the 11th Circuit.

They embarrassed the heck out of her the last time. And then as to Nate's question, like, who could she go to for counselor advice? I mean, judges generally do not go to any other judges to figure out how they should rule on a case. what they do do is consult with they look at the law right they look at legislative history they look at other elements of history the statements of the founders when it's a constitutional thing they can consider any sources they want but they generally like don't go uh i don't think anyway unless it's a totally private thing that's behind uh kind of behind the robe as it were but uh we we don't really see that in cases judges i'm not familiar with the judge

ever saying like, well, I talk to judge so and so about this very tricky decision. And she said, you know, so yeah, it's a weird element of our system. They are pointed for life. They are, they hold immense discretion and make big decisions on cases every day. And some are really good at it and others, not so much. So that's, we seem to be in the not so much bucket this time. Right. And I know they get a lot of advice from their law clerks as, well, or input, I should say, not necessarily advice. And I was talking to somebody of great import who said that sometimes the circuit will call the judge and say, you should probably step down before we make you step down, but I don't think we're there quite yet. Super rare. There's actually

a case here near me, I think in the Eastern District of Virginia, there is a judge who is very old and who is docket, I think, I think, I don't know all the details around this, but I think that the presiding judge in that courthouse is, they're all concerned about her productivity and how long her docket is getting. And so they're making some efforts like that

to get her to step down or take, you know, take, what do they call that? Like, almost like retired status. Like a sabbatical? Oh, senior status. Senior status. That's it. You take like a lighter load and she's really resisting it. She's not taking it from anybody. So, stuff. Yeah, that's the thing. Nobody has to do anything as a federal judge. I mean, you're there for life. Unpeachment is really the only remedy. Right. And that's a high bar.

Especially of this Congress. Well, I mean, how many, we just lost another congressman on the Republican side. This could have quit before his term. It's down to one vote margin. And then Marjorie Taylor Green wants to vacate Johnson. It's just a, it's just a. like, wow, we'll talk about that on other shows. But thank you very much for your questions. They always make us think and then they're very thoughtful and we appreciate them. There's a link in the show notes if you want to submit a question for us as you can follow and we really appreciate it. Do you have any final thoughts before we get out of this real short show today? I thought for sure. It was supposed to be so short. We had so few rulings to go over and then we got that whopper. Well, the one ruling we did go over really needed to be dissected and we did that. And then we had that huge article. So, yeah, interesting show, a little bit different.

Always fun to do. And look forward to see what next week delivers. Yeah, and we will be back in your ears. What is it going to be Sunday? Is that April 1st or March 31st? I think March 31st be the end of the month, my friend. We'll be less than a month away from those amazing oral arguments. So we'll see what the news guides bring us for next time.

Until then, everybody, please take care. I've been Alison Gill. And I'm Andy McCabe.