Jack - Volume 2 - Episode 4 - Slow Grind (feat. Marcy Wheeler)

Episode Date: May 30, 2021

This week: news about an investigation into Rudy and his Russian-backed Ukrainian buddies out of the Eastern District of New York; AG dives into the unredacted portion of the Barr OLC memo, the DoJ's argument against releasing the whole memo, and Judge Jackson's opinion; information about the DC Attorney General's investigation into the Trump Inaugural Committee; the Manhattan DA criminal investigation into Trump is broken wide open with the empaneling of a grand jury; new unsealed Manafort documents; Broidy pay-to-pardon scheme; and more.Follow our guest:Marcy Wheeler -https://twitter.com/emptywheelhttps://www.emptywheel.net/Promo code:https://www.betterhelp.com/AG

Hi, I'm Harry Lickman, host of Talking Feds. Around table, the brings together prominent figures from government law and journalism for a dynamic discussion of the most important topics of the day. Each Monday, I'm joined by a slate of Feds favorites at new voices to break down the headlines and give the insider's view of what's going on in Washington and beyond. Plus, side bars explaining important legal concepts read by your favorite celebrities. Find Talking Feds where ever you get your podcasts. Hey all, this is Glenn Kirschner and you're listening to Muller Shee wrote.

So to be clear, Mr. Trump has no financial relationships with any Russian oligarchs. That's what he said. That's what I said. That's obviously what our position is. I'm not aware of any of those activities. I have been called a surrogate at a time or two in that campaign. And I didn't have, not have, communications at the Russians. What do I have to get involved with Putin

for having nothing to do with Putin? I've never spoken to him. I don't know anything about a mother than he will respect me. Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing. So, it is political.

You're a communist. No, Mr. Green. Communism is just a red herring. Like all members of the oldest profession I'm a capitalist. Hello and welcome to Muller She Wrote. This is volume two, of course. We've been off here for a year, but this is our fourth episode back. I am the host formerly known as AG. You can follow me now at Allison Gill on Twitter. And I just have to let you know they are jackhammering right outside of my studio.

So if you hear that, I do apologize. There's nothing I can do about it. I posted a photo on Twitter a couple days ago of a problem I've been trying to solve with the electric company for a year and a half. I've got a really low power line going over my yard and being held up by a dead tree in my neighbor's yard. So, at the minute I put it on Twitter, well now they've got a crew out here digging a hole to put a pole in. So, I apologize for that noise.

But anyway, we were in a holding pattern last week, but things have loosened up quite a bit. We have news about the Rudy investigation, but actually, it's more of an investigation into his sanctioned Russian-backed Ukrainian buddies. And this time, it's in the Eastern District of New York. We have part of the Bill Barr memo, and around about excuse from the Department of Justice as to why they're not releasing the rest of it, I'll be speaking with Marcy Wheeler about that later in the show and what's behind the still-redacted section 2 of the March 2019 OLC memo.

We have information about the Trump inaugural investigation in the DC Attorney General's office. The man Hatton DA criminal investigation into Trump has broken wide open with a new special grand jury having been impeannled. There's new unsealed man-of-four documents that could put him in federal legal jeopardy despite his pardon.

There's a shake-up and the broiley paid to play pardon investigation, remember that? From December? There's so many things. And we have a potential witness intimidation by Weiselberg, which is interesting. And of course, the judiciary has a date this week with Don McGann. So I want to thank everyone for listening to the resurrected Mueller Sheerate Volume 2 to anyone who is disappointed in Merrick Garland's Justice Department.

I just have a few things to say. It's been 11 weeks after four years of stonewalling, and given everything I just told you, despite the fact that I'm very disappointed that the entire Bill Barr memo wasn't released, I'm seeing a reemergence of old cases and developing new stories that rival the reporting we were doing back in April of 2019. So, hold under your hats, it's going to be an interesting summer, and while no one can promise justice will be served at the degree we would like it to be, it's nice to see the wheels of justice begin to move again, and although they grind exceedingly slowly, they are moving. We do have a lot to cover, so let's jump in with just the facts.

Okay, there are so many competing lead stories that I'm just going to take them in no particular order here. But I've found that they sort of flow into one another very nicely. So I've put them in an order that makes sense. First, Manhattan District Attorney Sy Vance, after issuing multiple subpoenas from a former grand jury, finally getting the Mazaar's documents and Trump tax returns, hiring a forensic accounting firm and appointing former US Attorney Palmer Rance has now impeandled. Oh, and by the way, joining up with the New York Attorney

General, Tiss James, Manhattan DA has now impeannelt a special grand jury to consider charges in the Trump Organization investigation. This is massive news for two reasons. First, it indicates Vance has evidence of a crime. Now, we don't know against whom, but it's someone involved in the Trump Organization probe, and it could be Weiselberg or any of the Crotch Goblins or Trump himself.

Now we may get an indication from lurking media around the building as to who is testifying before the grand jury. And there's a few things you need to know. That's the second point here. If they see Weiselberg headed in there, that will be a clue that Weiselberg has flipped and is cooperating because, as I spoke, as we heard from Harry Littman earlier this week on the Daily Beans, in New York state, their grand jury rules are different. Anyone who testifies before the grand jury has immunity and you can't testify to hearsay. The only other option would be of

Weiselberg waived his right to immunity, which would be really fucking stupid. Although, you know, I will not say he's not beyond doing really stupid shit. This week, it's being reported that his daughter-in-law is being evicted from her apartment by Weiselberg, and it's an apartment he owns and controls. Any dipshit with a podcast app knows that's possible witness intimidation, so that's, you know, I don't know Weiselberg, go ahead and keep racking up charges, all the better to roll you with. And Weiselberg gets around.

Besides the fact that we learned this week that New York Attorney General Tis James has had an open and ongoing criminal investigation into him for at least five months, and besides the fact that the Manhattan DA is going after his kid to roll him on the Trump org, it seems he's got crimes in every port because it was pointed out by David Corn this week that Weiselberg is tied up in the DC Attorney General Carl Ray Seen's Civil Investigation. This is in DC, not New York. That's the investigation into the Trump inaugural fund. If you remember many moons ago, emails were unveiled in a court filing between Weiselberg and our old fantasy indictment draft list or Tom Barrick. Back

when the news was breaking about how the hell a dickbag like Trump doubled the inaugural fund of Obama, breaking in $107 million. Some of which, by the way, was from Russian backstrawdowners that Sam Patton was indicted for. No one could figure out what all that money was spent on. That includes the Presidential Enocheration Committee or PICPIC. And in fact, there are emails showing Tom Barrick sent Weiselberg an email asking him to take a look at the books at the PIC financials, because oh my God, it seems like the balance sheet

doesn't balance. I bet that Weiselberg could fix that. Yet during depositions, Barrick pretended like he really didn't know who Weiselberg was. Just like Ivanka, they're all lying their faces off, Trump Jr. made several false or contradictory statements as well. And this just in today, documents due in DC Superior Court Friday could clear the way for Weiselberg to be deposed in the DC Attorney General lawsuit.

A lawyer for Weiselberg declined to comment. The Trump Organization has asked a judge to rule in its favor, and DC Attorney General lawsuit. A lawyer for Weiselberg declined to comment. The Trump Organization has asked a judge to rule in its favor, and the Attorney General failed to aduse any competent evidence and called the allegations frequently fanciful. That's a lawyer and a lawyer for the company declined to comment. Now, the DC Attorney's General Office first said in March that it wanted to depose Weiselberg as part of its review

of the inaugural committee and their finances but agreed to wait for the judge to rule on motions for summary judgment. The final documents related to those motions are due Friday, and sometime after that, the judge will make a final ruling on the outstanding motions and decide whether to reopen the discovery window, extend it. This is, you know, because Racine asked for an extension so that we could get Weiselberg's deposition. Of course, this is just a civil suit because Trump and bar allies have been helming the DC U.S. attorney's office, the criminal one. That's the one that brings criminal charges for a while now, federal. Remember, Mike Sherwin and Tim Shea, remember they helped coordinate the effort to keep

Flynn and Stone out of prison by going against their own sentence and guidelines? And a Sherwin was the guy that went on 60 minutes to try to tank the insurrection investigation by giving out specific details of an open and ongoing investigation. He's also the guy that shut down the investigation of the Egyptian infusion of cash that Trump took. That's the investigation Mueller handed off to him. So sure-win took over in the DC US Attorney's office

after Tim Shea left. And Tim Shea took over after bar tricked Jesse Liu out of leaving her post by promising her a job at the Treasury Department and then withdrawing the offer when she was walking over to her new office, Trump withdrew that offer. Bar had tried to get rid of her before, but she resisted that other job offer. They offered her the number three job at the DOJ because she wanted to stay in the DC US attorney's office.

Now all of this to say, we haven't had a white hat in that DC federal office until now. And who we have now is just acting. But the new US attorneys haven't been installed yet. So perhaps criminal referrals for the inaugural can be made by DC attorney general Carl Wacine who is conducting that civil investigation. Maybe he can hand those off to a now friendly DCUS attorney for criminal investigation. I'll obviously keep an eye on it for you.

And, wouldn't you know it? We were right. Manafort gave internal polling data to a Russian spy. That's collusion. It's actually conspiracy. I'll talk about that in a minute. It took just a few years to confirm that. Manafort lied to Mueller,

so Mueller didn't have enough evidence for his report, or to charge him with that particular crime. Trump lied to him about it, and for some reason, Mueller didn't subpoena Trump, or send follow-up questions to his written answers. But actually, let me correct myself there. They did have enough evidence to get Manafort based on other documents and emails and testimony of Rick Gates. Now, I can only assume that, you know, it was because when the Mueller didn't follow up

on those questions or subpoena Trump, because he was trying not to get fired, so he could get all the obstruction of justice charges on the record while memories were fresh in the hopes that Trump could be charged after leaving office. And I'll get to that later as well, but back to Manafort, in court documents recently unsealed by Judge Amy Berman Jackson,

Manafort lied repeatedly to Mueller about sharing the polling data, and he lied about his relationship with Columnick, who has gone from Russian adjacent to barely Russian, to mostly a Russian agent to full-blown sanctioned spy over the past three years. We had put beans on Manafort handing data to Columnick at the Grand Havana-Sagar bar inside Kushner's 66 Fifth Avenue Devil Building. Right around the same time a fellow named Oleg Darapaska landed his private jet in Newark. And then they met and the data went back on the plane with Darapaska to his yacht

by way of picking up a Russian Prime Minister where Darapaska shared that information with the Prime Minister. Now, a sex coach named Nastya Rybka filmed all that, then was thrown in a Thai jail, then Navani released the tape, and we know what's happening with him. In any case, what we thought was true is all true, but now it's documented for the first time, for all to see in these court filings.

These court documents, incidentally, were the ones filed by prosecutors to show he blew up his plea deal by lying. It was all redacted back when it came out. We were just guessing. Now, of course, Manifort was pardoned, but it's important to note the Trump pardon is only for crimes that Manifort was convicted of. We learned in Andrew Weiselberg's book, Where Law Ends Inside the Molar Investigation, that they could have, but did not charge Manifort with conspiracy. investigation that they could have but did not charge Maniford with conspiracy. Because remember, there's no such crime as this collusion, but they had him dead to rights in an open and shut tax fraud case. And so that they went with that. So Trump's idiotic pardon doesn't cover this. And while it happened five years ago, this August, which is the statute of limitations for most

federal crimes, I'd like to point out that the pardon happened six months ago. And if that's part of the cover-up and obstruction, it's inextricably linked to the crime. So the statute of limitations would actually expire December 24th, 2025. Maryfuck and Cressmiss, man, for it. And we know Rudy is in trouble in the Southern District. We've been covering that, but did you know the rival gang across town in the Eastern District of New York has a criminal investigation going into a Russian-backed Ukraine interference

in the 2020 presidential election. You probably did because forensic news network broke that story a month ago, but the New York Times called it breaking news this week. The only thing we learned new from the New York Times is that it's the Eastern District of New York in Brooklyn and that the New York Times flubbed the Ardemenco information. Basically, the FBI has been investigating sanctioned Russian agents and Kalludi Rudy Powell, Andre Dirkotch for one, and whether or not he's been using Rudy to interfere in our

2020 elections by way of stuff like the Hunter Biden, dossier, and supplying debunked Russian intelligence to folks like Russia, Ron Johnson, and Lindsey Graham via Rudy Giuliani. The Eastern District investigation so far doesn't have Rudy as a target or a subject, but that could change. And Ellie Honeig set on CNN. There's a bit of a rivalry and perhaps some overlap between the Southern District and the Eastern District. We'll keep an eye on both.

Please read that forensic news network piece. It's called Giuliani Probe Expans Ukrainian ally under criminal investigation. I came out April 30th. And remember the trash heap known as Elliot Broity. He spent a great deal of time on our fantasy indictment draft, but was pardoned at the end. And remember in December when Judge Barrel Howell unsealed some documents in a really old, weird pay for pardon scheme, the 18 page opinion was about the Department of Justice request to see the emails involving an unnamed attorney, and we were all trying to guess who it was.

Turned out to be Kushner's lawyer, Abby Lowell, who at the time was also representing someone named Nikki Davis. That just happens to be the person Brody pled guilty to Farah charges with and is scheme to loot Malaysia's 1MDB fund. Remember that story, Jolo? Anyhow, was Abby Lowell and Brody that were emailing back and forth to lobby Trump for a pardon for some rich guy by taking a bribe from some other rich guy. Well, it appears that while Lowell

was trying to get a plea deal arranged with Davis, Loll himself was under federal investigation for the pardon scheme. So Davis got a new lawyer and is still cooperating in the Jolo case. Trump did not pardon her. Brody's dispute with his legal team, which he insists the split was friendly, came about through a separate circumstance. According to a source familiar with the episode, Brody grew concerned late last year at wine gardens comments to the media defending Lowell and the pardon probe. Given Brody's ties to that inquiry, wine garden is another high-powered attorney that spoke out in defense of Lowell in the bribery scheme, saying Lowell had done nothing wrong. I mean, Brody was like, that's weird. Around the same time, Brody was playing, I was paying Stepto, which is wine garden's law

firm, Millions, to handle a hard fought lucrative civil litigation Brody was playing, I was paying Stepto, which is Winegarten's law firm, Millions to handle a hard fought lucrative civil litigation. Brody brought in 2018 against Qatar. Brody suits accused Qatar and its allies, breaking into his emails and leaking them to the press in what he termed a hack and smear campaign, stemming from his work with groups seeking to put the spotlight on what they alleged were Qatarters ties to terrorism. That's really interesting because of the whole MBS, a Kushner relationship, and trying to put that blockade against Cutter, and then somebody's double building got purchased and bought out,

you know, the debt was paid, and really, and then the block was lifted. So that sounds like fair violations to me. was paid, and really, and then the block was lifted. So that sounds like fair violations to me. In addition, shortly after going to work for Brody on the litigation against Cutter, Steptoe agreed to lobby in the United States for a company controlled by the Cutterie government, this Cutter-Aluminum Limited. And while Steptoe had overseen the hack and smear litigation since its inception, Brody's criminal liability under Farah for the matters

was handled by Jeff Knox of Simpson Thatcher and Bartlett. And George Terwilliger of McGuire Woods, I know you remember him. And on March 1st McGuire Woods lawyers replaced Steptoe and Brody's sprawling civil litigation. That's according to court dockets. So Terwilliger took over for Steptoe because Brody hates Cutter and they were lobbying for Cutter. Meanwhile, the Justice Department's investigation into others involved Brody and Davis's work

for Jolo. Again, that's the Malaysian businessman at the heart of the one MBD scandal. And that continues. That's ongoing. Of course, Brody has been pardoned. Earlier this month, following a court ruling that flagged Davis's travel to Washington to testify to a grand jury, a political reporter observed her entering the federal courthouse near the Capitol accompanied by a lawyer who recently took over her case.

James Bryant, Jr. Davis spent about four hours inside the grand jury. They met on May 6th. So I might be hearing more about that. All right, everybody. I'll be back with a breakdown of what we got and what we didn't get in the bar memo release. Stay with us. back with a breakdown of what we got and what we didn't get in the bar memo release. Stay with us. Hello listeners of Muller She Wrote.

This is A.G. and this portion of the show is brought to you by BetterHelp. They provide licensed professional, convenient online counseling. Life is amazing, it's truly wonderful, it's a gift, but there can be anxiety and stress. It can be unpredictable, things can get overwhelming, and when I'm feeling the pressure and anxiety of tough situations, what I like to think about is that I don't have to face it alone, and neither do you. If you're dealing with anything preventing you from living your best life, I highly recommend BetterHelp.

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at betterhelp.com slash AG. All right, everybody, welcome back. I wanna go over some of the stuff in the newly unsealed Amy Berman Jackson opinion. And the bar memo, what's really interesting is that, I think I said multiple times, I think he's going to release part of it and not the other part. He's going to try to defend the deliberative process privilege, but also not let bar off

the hook. And that seems to be what's happened here, although I will say and I will reiterate this several times, I'm very disappointed that the entire thing was not released because Judge Jackson's opinion was so succinct and made so much sense and had so much case citation that it just legally made sense. And I'm looking at the Department of Justice's response and I'm not quite understanding what their argument is. So going through the newly unsealed opinion here. It's everything in the beginning is the same.

She goes over the FOIA exemption five definitions. She talks about the attorney client privilege. If you want to get it out, I'm on page 12 here, scrolling. So you can pause now, grab that memo. It's 21-0525, ABJ unsealed memo. You can find it on Marcy Wheeler's blog, empty wheel. Anyway, I'm on page 12 here where it says she goes over the attorney client privilege, next page, she talks about that for the next couple pages, then she doesn't analysis.

She says document six was properly withheld, and then there on page 15, document 15 must be released. And then we see the redacted portion of the first page of the memo. And that has all been unredacted now. Then on page 17, defendant has not met its burden to justify withholding the deliberative process privilege. We went over this with Andrew McCabe on the second, I think the first episode of Mueller's Shirope four weeks ago. And it keeps scrolling down to page 20, 21. It starts becoming redacted. Yes.

So if we talk about not meeting the burden to justify withholding, she says the memorandum is largely deliberative, but the court cannot find the record to be pre-decisional. Because the materials in the record, including the memorandum itself, contradict the FOIA declares assertions that the decision-making process, they have identified was in fact underway.

Moreover, the record supplies reasons to question whether the communication preceded any decision that was made. And that's where she starts talking about what she means by that, pre-decisional. And there on page 17, document 15, this memo is a pre-decisional deliberative memorandum to the attorney general through the deputy attorney general authored by OLC Engel and Prince of Paydag at word O'Callahan, as indicated in the portions of the memorandum that were released. It was submitted to the attorney general to assist him in determining whether the fact set forth in volume two would support inditing or declining the prosecution of the president

for obstruction of justice under the principles of federal prosecution. So what that says is clearly that it's, you know, they're trying to decide whether or not they would indict the president. And Judge Jackson says that's not pre- that's not deliberative. You already had made that decision a long time ago when you wrote that 20-page memo that presidents couldn't obstruct justice and when the OLC talked about the OLC memo not being able to indict a sitting president. Now DOJ has come back and said, oh, yeah, sorry about that. What we meant was we meant to say this was submitted to the Attorney General to assist him in determining whether the fact set forth in volume to rise to the level of criminal obstruction of justice.

We weren't trying to decide to indict him. We were trying to decide if we could indict him, you know, if we didn't have this constitutional bar, then, you know, we had to decide and we decided not that that's not the case. Which is based on a hypothetical enemy, Berman Jackson points that out. So Department of Justice's response to this doesn't make it much sense to me at all. She goes on to say the Brinkman Declaration reveals that as Senior Council in the Department of Justice Office of Information Policy, OIP, she's responsible for supervising the handling

of FOIA requests. Brinkman Declaration says she does not claim to have any personal knowledge of why the document was created or what its purpose might be. And while she states generally, at the beginning of the Declaration that she consulted with knowledgeable department personnel, she does not state that she spoke with any particular person

to gain firsthand information about the provenance of this document. Instead she appears to rely on her review of the document itself to make the following unattributed pronouncements. While the March 29 memorandum, 2019 memorandum is a final document, as opposed to a draft, the memo as a whole contains pre-decisional recommendation and advice. So she relied on the document itself to determine that the document was pre-decision and Amy Burman-Jackson pointed that out. A little bit later, Page 19, second paragraph, what the court can say without revealing the content of the redacted material

is that there were two sections. Section one offers strategic, as opposed to legal advice, about whether the attorney general should take a particular course of action, and it made recommendations with respect to that determination. A subject that the agency omitted entirely from its description of the document for the justification of its withholding. So Amy Burma Jackson is saying, hey, you said you withheld this document for the deliberative process. But section

one isn't deliberative. It's just advices to whether to take a particular court of course of action and made recommendations. So you have to unseal that. And Merck Arland agreed. So he did. And what the unsealed memo here shows is that the Department of Justice under bar with angle, rabbit, Rosenstein had some emails involved in this, and the paydag at O'Callahan basically conspired to create a public message about the president not committing obstruction of justice and that and lied about the fact that because Mueller didn't make a determination, he could. Now because Mueller didn't that left the door open for bar and I've talked about this and I'm going to talk to Marcy Wheeler about it, but

had Mueller made a determination without Trump being able to defend himself in a court of law because you can't indict him, that could have given him a pretty good reason for appeal, where he ever charged with obstruction of justice. And I think the intention here from Muller at least was that he be prosecuted when he left office. And he didn't want to jeopardize that. That's my thought on the matter. I've said it a million times and we will see what happens.

We will see what happens because of what's coming up after the Marcy Wheeler interview with sabotage. But for right now, let's talk to Marcy Wheeler. I'm Greg Oliar. Four years ago, I stopped writing novels to report on the crimes of Donald Trump and his associates. In 2018, I wrote a best-selling book about it, Dirty Rubles. In 2019, I launched Proveil, a bi-weekly column about Trump the kids. mobsters and Donald Trump obviously does a lot of construction and so many traders

over the last two years that I've been here I've been accused of all different types of things and all of those things have turned out to be false alternative facts I drank beer with my friends almost everyone did sometimes I have too many beers sometimes others did I liked beer. Trump may be gone, but the damage he rock will take years to fully understand.

The best is yet to come! Join me in a revolving crew of contributors and guests as we try to make sense of it all. This is Preve. Hey everybody, welcome back. I am happy to be joined today by Marcy Wheeler and her blog Empty Wheel Which is seriously I've been following it since the beginning full of incredible information and if you're not already following Her coverage of the insurrection you should definitely be doing that too because it's extremely detailed But what I have you on today for Marcy is the piece that you penned on your blog about what else could be behind the redacted portions of section two of the bar memo that this Department of Justice is appealing the

release of. And I've been going over this earlier in the show, sort of line by line, the DOJs response. And I'm having a hard time putting together exactly what the argument is for not releasing section two. Do you have a handle on what they're trying to say? Well, the basic argument is they always like to withhold OLC memos under what's called the deliberative process exemption. And so they're doing it here because they are arguing that when Steve Engel and Edo Calahan made this recommendation to Bill Barr, that was pre-decisional. It's not necessarily the logic that Barr used in agreeing to their logic. Obviously, he signed it right there.

I think one of the other things that's going on, that's really important for people to understand is it was billed all along as an OLC memo. And this is something that Amy Berman-Jackson complained about and the OJ just completely blew off in the response. And yet it's not just Engle who's on the memo. It's also Ed O'Kellahan, right? And as your listeners undoubtedly remember,

he's the guy who was overseeing Mueller on a day-to-day basis. And so, if I'm Amy Broom-Jexson and I want to release this, I say, look, this isn't a No-L-C memo. This is a hybrid Frankenstein thing. And in DOJ's response to Stamie Brim and Jackson, I kid you not, they said OLC says OLC is not authorized to basically get out of its lane in DOJ.

They use a reference to FBI. They say because OLC has no authorization to get involved in FBI policies. Any advice they give to FBI would not be pre-decision. Except this is a prosecutorial decision they're making. NOLC has no business getting involved in prosecutorial decisions because they're OLC, they're not the prosecutors. Well the way DOJ gets around that is they stick out Edo Callahan on the memo, right?

Okay. He's not OLC, but Edo Callahan, according to OLC, can't make final decisions about prosecuting the president. And so neither of them is doing what they're allowed to do. And then you've got the signature on it. Yeah, so I mean, literally, what DOJ is doing is they're saying there are certain oil see opinions that we will call pre-decisional, pre-deliberative process, and that's what we're doing here. And it may be the least damning or the least interesting interpretation of their response

is we're going to let Amy Berman-Jackson release the really damning stuff and we're going to treat everything else like it was normal, but it was a norm. Yeah, and didn't they also, didn't DOJ also say, hey, but this isn't a prosecutorial decision. Everybody knew that they weren't gonna prosecute. What it really was was a discussion about whether or not what was in the molar report volume to

met the level needed to prosecute obstruction of justice. Not that we were going to prosecute or not because we knew we weren't. It just seemed like, I don't know, it just seemed like. But then once you get there, once you get to that level, then it's a way to get to yes. Yeah. Once know is off the table, and even in section one, they say, well, we can't have it. We can have this hanging over the present. We can't have it, you know, this non-accusation.

And it was just, I mean, the response was ridiculous. They're like, well, you know, DOJ in the memo itself. DOJ only prosecutes or doesn't prosecute. And by not doing anything, we violated DOJ's rules. And then they go on to do the same thing. They violate their own OLC memo, they violate past OLC memos, they violate the memo that says you can't make these prosecutorial decisions about a president. They do it all wrong. And so on that basis, I think Amy Brunjetsen, if she wants to,

should be able to say, you know, this is ridiculous. Yeah. And if not, I think crew will have a very interesting appeal. Yeah. And the whole thing, again, was based on the memo was based on a hypothetical, you know, barring constitutional problems or what, you know, constitutional restrictions. You know, this is the question we were answering. It's like, well, why are you even pondering a hypothetical situation? I think that Amy Berman-Jackson made that very clear. I understood what she was trying to say,

but the logic behind keeping section two behind just didn't make much sense to me as you're explaining. Now, we talked about yesterday and maybe the day before on our show, The Daily Beans, what talked about what was behind the red action bars on sex do, because what was actually released is very damning, but we figured what was behind, what they're holding back is the plot,

all of their sort of talking with each other about why these crimes didn't rise to obstruction of justice, but you point out something very important and very interesting, and that was also that there were pardons dangled. And can you talk a little bit about what else you think is behind those red action bars? Well, okay. So basically what's behind those red action bars is they take what they claim is 10 alleged

instances of obstruction of justice. We can count it different ways. But we know what those 10 are because we've read the Mueller report. And that amazing chart, right? yeah right I mean so you get to 14 I think if you use Quintets chart but but nevertheless we know exactly what the allegations are that they had to address and most of them and and they kind of nod to this in part one they said you know a lot of these we don't think could even be a crime and that is the same argument that Bill Bargat hired by.

He says, if the president is hiring and firing people, those can't be obstruction of justice because those are presidential duties. So then take those out, take those 11 or 10 allegations out that relate to hiring and firing. And what are you left with? You're left with that part of volume two of the Mueller report that says, dangling a pardon to Paul Manafort, dangling a pardon to Roger Stone.

Remember that part was really heavily redacted before his trial. Yeah, dangling a pardon. Judge Jackson had read all of that early on as well. He's the only one who's read all of this, right? And then dangling a pardon to Mike Flynn, all of those are not just things not covered. I mean, you know, Bill Barr might have argued.

Those are also, those are also presidential things, right? Those, you know, the absolute prerogative department whoever you want, except that Bill Barr testified in his confirmation hearing three times said, oh, yeah, that's a crime. I mean, the first time he was asked by Pat Leahy, he was like, oh, yeah, that's a crime. And so what he effectively did or what angle in a call of hand did after Bill Barr had already said that yes, that you have to do analysis of pardoned angles to figure out whether they're a crime or not. And that's literally what Bill Barr said to the Senate. Okay.

So in fewer than eight pages, Engle and O'Callaghan necessarily go through some kind of analysis where they say, these pardoned angles for Manafort stone plan and also Cohen. Yeah. These pardoned angles did not amount to obstruction of justice. And the point I make is when they made that decision, those with the exception of Cohen, who had already pled guilty,

and already decided to cooperate over the objections of Trump. And Flynn was in this kind of middle point now, like weeks later, literally weeks later, he decided he was going to blow up his, his plea agreement for a good reason, because Bar had just said, you know, that Trump can pardon you, and it won't be obstruction. And so, so in those eight pages, they necessarily have to pretend to analyze the pardoned angles, and at least enough depth to be able to distinguish what bar said clearly in public Oh, yeah, you know, that would be a crime from what Trump had done and the problem with that is what I'm arguing the problem with that is That crime wasn't committed. You can't do that analysis on March 24th 2019 because you don't know what's going to come next.

You don't even know, I mean, Stone was not, he hadn't been tried yet, right? This was, this was months, this was six months, eight months before his trial. Stone alleges when he was threatening Trump last year to keep him out of prison, Stone actually alleged that between the time of that decision and the time of his trial, prosecutors who he, you know, must falsely claim is Jeanne Rie. He claims that prosecutors went to him and said, if you tell us the content of these 29 conversations, we know that you had a with Donald Trump, then we'll make sure you don't do prison time. So stone at least claims that after the time that Bill Barr said this pardoned angle was not a crime, the pardoned angle was still doing the work that it needed to do. And so that's, you know, like there are a lot of legal reasons why the B5 shouldn't work in this case, which is the hybrid stuff, the Frankenstein stuff, like is it an OLC memo or is it a prosecutor's memo?

If it's one, then it violates OLC. But the other violates OLC, that's the basis on which him a Burmesexion should say no, release it. You know, this is not a memo. This is an atrocity. But the content of it is all the more interesting because we know it must deal with those pardons. We know Bar was on the record saying that those pardons could be a crime.

Had to be analyzed in detail. And you can't do that level of analysis in A-Pages. You just simply can't. Right, especially if you're going to contradict what you testified to Congress about in your confirmation hearing. But I imagine his argument was something like, well, President can't obstruct justice, just like he wrote in his 20-page audition memo about executive power, sweeping executive power, or something about the pardon power being absolute. And so dangling a pardon couldn't possibly be obstruction of justice as long as you're

the president of the United States. So. And then he gets confirmed by saying that it's a crime. He gets confirmed after having auditioned with this theory that the president can't obstruct. And then gets confirmed. One of those questions was Lindsey Graham. It wasn't just Democrats who were interested in whether he recognized that

pardoning this could be a crime. And he gets confirmed having said, yes, this is a crime. Yeah. This can be a crime at least. And then somehow on March 24th, 2019, he decided it wasn't correct. Well, I for one look forward to what Amy Berman Jackson has to say about this department of justice filing. I'm disappointed that they're not releasing the entire memo. I think it needs to be released.

And, you know, I mean, we even joked multiple times on Twitter. I have like 12 tweets of me just making jokes about, oh well, don't worry. Bill Bar will just write a post-hoc, have a post-hoc, oh well, see memo whipped up and you won't have to worry about it anymore. He did it with Ukraine and being able to withhold the funds, he did it multiple times, right?

Like, well, no, I gotta know, I'll see memo now that says so and such and such and such. And so it's just, I still find it hard to follow the Department of Justice's argument on this, in this Department of Justice. And I think it's just because it doesn't make legal sense. So we'll see what happens, but I hope Judge Jackson swats it down.

Yep. All right. Well, thank you so much, Marsy. Everybody check out empty wheel because you will not be disappointed and thank you so much for your time. Everybody check out empty wheel because you will not be disappointed. And thank you so much for your time. And also, you seriously have to follow her coverage of the insurrection investigations. It's getting interesting to say the least. Thank you so much, Marcey Wheeler.

Hey, take care. Thanks for having me on. Hey, everybody. It's aging. And I am happy and proud to announce we are launching our very own podcast network. It's called MSW Media and it's going to feature the work of some incredibly talented and intelligent people, including Glenn Kirschner with Justice Matters on topic with Renata

Marriotti, prevailed by Greg Oliar, opening arguments with Androtora's and Thomas Smith, the Bureau with Frank Fagluzzi. And that's just to name a few. Of course, there's the Daily Beans, Molar She Wrote, and our newest show, Clean Up on Idle 45. Our network is Woman Run, and Veteran owned, and our mission is to curate news, politics, and justice, and engage voters. I am so proud of this community and this group of content creators, so please check us out at mswmedia.com and listen wherever you get your podcasts. All right everybody, welcome back.

It's time for sabotage. What's your favorite song? What's your favorite song? What's your favorite song? All right, this week we found out that remember last week talked about McGann reaching an agreement with the House Judiciary Committee that he would testify and he would only keep, I talked to Andrew Weissman about it, former Mueller prosecutor, and he would only keep his,

the questions had to be about what's in the public, of publicly available portions of the Mueller report, which is most of it in volume two. Let's be fair. And that sort of, that Trump had nothing to do with this. And we learned that Trump actually tried to object, but as lawyers decided not to it the last minute, probably because Trump released the fucking Mueller report. And so that sort of waves your right to executive privilege. But anyway, that whole thing with McGand at agreement,

he's agreed to testify. And I said, oh, look, they want an update, they're saying they're going to update the court with a status report on June 11th. That means they're doing this fast. Well, they are. That is going to happen. This is the sabotage. That testimony will happen this week, likely Wednesday.

So we're going to keep an eye on that. Now, we can imagine, well, we don't have to imagine. It says that they're going to take seven days in the agreement, agreed upon testimony situation, that they're all going to review the transcript. It's going to be behind closed doors, which I'm very thankful for, honestly. They're going to review the transcripts. They everyone has seven days to review, and then they'll make the final changes and release it. So probably by the end of next week, we might be able to see that transcript.

Now, it's not going to say anything mind-blowing because he can only testify to shit that we already know. But what can happen next is what's important because at that point, the Senate Judiciary Committee could make a criminal referral to the Department of Justice. Not that Merrick Garland couldn't have taken this up already, but I feel like going through the process, you know how these, you know how they like to go through the process. It's called CYA in the government, right? Cover your ass. Oh, I didn't just pick this up and decide to start prosecuting it. Republicans, what

I did was nothing. And then the Congress came to me, a committee, and said, yeah, we're making a criminal referral. So I looked into it and I can't ignore. The law will not allow me to ignore that at least four of these rise to the level needed to charge obstruction of justice. We'll see what happens. I, for one hope, he prosecutes obstruction of justice. I hope a lot of these cases are picked up. The Egypt payment that was being looked at by the Feds, there were 14 redacted handoffs in Appendix D of the Muller Report, volume two. So we'll see what happens, but that means now that we've done sabotage this time to play the fantasy indictment league. I'm gonna be a keep gates up there. It's getting gross. He's getting weird. You know, he's on tour with the Taint Team, which is what I call Marjorie Taylor Green and Matt Gates. They're the Taint Team.

So I'm going to pick gates also. Keeping Trump on there. I know it's early. They still got a ways to go. Same with Rudy, you know, they still have to do this. They still even have an appointed a special master. So yeah, it's going to be a while. And tonesing. But I'm going to put tonesing is a cooperation agreement. Let's see what happens there. She seems, she's gross.

She's a horrible criminal, but she seems like a smaller fish. parnice, fru-man, korea, fraud guarantee, furtosh, etc. So those are my picks this week, and we will see what happens. Again, but you know, just because I'm drafting these folks, I just want to reiterate, justice takes a long time, and Merrick Garland just got there what, 11 weeks ago, so must be patient. I know it's hard and it sucks. But things are starting to break open and I think we should have, I think we should keep a little faith in this department of justice until we shouldn't. And, you know, I am disappointed that they didn't release that bar memo. So, a little chip, a little chip away there for me.

But we'll keep you posted. And as always, everyone, thank you so much for listening. Thanks to Marcy Wheeler. Please check out empty wheel. Just so much incredible, incredible in-depth information. Her murder board game is off the hook. Anyway, please join us next week. And then you can also check us out every morning,

every weekday morning for the news with the Daily Beans podcast. We'd love to see you there. Everyone until then, please take care of yourselves and take care of each other. Take care of your mental health and take care of the planet. I've been Allison Gill and this is Muller She Wrote. Muller She Wrote is written and produced by Allison Gil in partnership with MSW Media. Sound Design and Engineering, or by Molly Hockey, Jesse Egan is our copywriter and our art and web designer by Joa Reader at Moxie Design Studios.

Mollershy Road is a proud member of MSW Media, a group of creator-owned podcasts focused on news, justice, and politics. For more information, visit MSWwmedia.com. [♪ OUTRO MUSIC PLAYING [♪ Hi, I'm Dan Dunn, host of What We're Drinking With Dan Dunn, the most wildly entertaining adult beverage-themed podcast in the history of the medium. That's right. The boozy best of the best, baby.

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