B (16:53)

Hi, how are you? It is actually I really hate plugging a book and let alone my book. But actually now that we're going to have it be under another special counsel, it wouldn't be bad for people to read about upsides and downsides of the current rules, which I definitely address.

A (17:16)

Yeah, agree, agree 100%. And a lot of people are already likening this to possibly the Manafort investigation, which you were the lead on Team M, which you write about extensively in your book about how that went down. Although I think from what the experts are saying, by the way, everyone, breaking news. Merrick Garland has appointed a special counsel. It's Jack Smith.

B (17:37)

Yeah, so, yeah, that, yeah.

A (17:39)

To investigate.

B (17:40)

Allison, that's so five minutes ago.

A (17:42)

I know, I know. I'm like, I'm talking like everyone already knows everything, but they probably do, folks who listen to this program. So his name is Jack Smith. He's a former prosecutor from the Hague. He was chief of the Public Integrity Unit, Department of Justice. He's an ausa, worked at the Eastern District of New York, among other places. And so now it would be his baby. You know, I kind of assume that this is, you know, per his statement that came out, he wants to do this expeditiously and there won't be any slowdown or flag of this. And Renato Marioti is saying this is not really an indication that Merrick Garland wants to wind down these investigations, but he's going to be looking at the, you know, the fraudulent elector scheme January 6, but not the boots on the ground. And he's going to be looking at the Mar A Lago documents case that those are his two and any other things that arose or will arise out of those two, according to the press release that I just a second ago got through reading, because this is very fresh news. But your book is, I think, and you know, if we talk about the Manafort case, a lot of folks are like, oh, this is going to take years now. But I really don't see it that way. What do you think? What are your thoughts on the timeline?

B (18:49)

Well, I think one thing that is useful for people to know is that Jack Smith is an extremely experienced prosecutor. I know him from my EDNY days. We overlapped for a considerable amount of time. We also overlapped when I was at the fraud section because he, I believe he was the number two in one of the U.S. attorney's offices. And he's extremely aggressive. He's handled a whole series of cases. I don't think anything about the purview that's been given to him is going to in any way be a challenge. I think the sort of huge public nature of it is going to be new for anyone. But he's also I think the other thing is he's an extremely aggressive prosecutor. In other words, he is not a timid choice. He is not going to be concerned if he thinks that it is the right thing to do to bring a case and it is consistent with Department of Justice policy and precedent. He is going to do it. He is not somebody who's concerned that he might lose for some extraneous reason and is not going to bring a case for that reason. He is not going to be concerned about his next job and how this affects it. He is going to he is sort of in that sense, he is the best of the department. He's going to be doing it, making decisions for the right reasons, consistent with the department policy.

A (20:27)

Well, that's good news. That's very good to hear because a lot of us are now just learning who he is. But you know him from experience, from working alongside of him, overlapping at EDNY and whatnot. Now, something that as the special counsel, he would be tasked with doing is to either make a prosecution memo or a declination decision. And speaking of that, you along with several other just experts in the field, Ryan Goodman, Joyce Vance, Norm Eisen, the whole there's just A whole long list here of folks you got together and you wrote 175, almost 175 page model prosecution memoirs for the Mar A Lago documents case. And of course, we know Barb McQuaid back in February did a model prosecution memo for the January 6th fraudulent elector scheme. So can you talk a little bit about what, how much work went into this? How long have you been working on this memo?

B (21:26)

Quite a long time. You know, it started out where we were going to do something a little bit shorter and sweeter. We looked at Barb's model, which was terrific. Then as we were doing it, and we thought about the topic and what the department would be doing, we just decided we would just do as thorough a job as possible. Our main audience really wasn't the Department of Justice to have them read it and to get ideas or help them think through it. Our main audience is the public. And that because the public doesn't see a Department of justice prosecution memo. And this was sort of a way of saying, you know, this is the kind of memo that is prepared every single day at the department before an indictment is brought. Maybe not as detailed as this one because of the nature of the case. So we just thought it would be very useful to lay out the facts as known the law that could apply. And we identified a number of other statutes that had not been flagged as potential crimes, application of the facts to the law, and then going through defenses. And then finally we looked at, I think, a really important issue. And in many ways, this is always my favorite part of this, which is we looked at the Department of Justice precedent for cases that were comparable because we knew that Merrick Garland and now Jack Smith will be really governed by making sure that Donald Trump is treated no better or worse than other people in similar situations. And so we really did a deep, deep dive into that topic.

A (23:19)

Yeah. And that, honestly, that was. I mean, the whole thing is incredible. That was my favorite part too, was reading all the prosecutions that are similar, starting with Kingsbury, I believe, and listing just so many of them and then also some declinations that similarly situated, but not enough for them to be prosecuted. And I thought that that was, you know, that was likewise. That's when I started asking, who's this for? Is this for the public or is this for the Department of Justice to read? Yeah.

B (23:50)

And, you know, this could be an. It's not A, A or B. It can be A and B.

A (23:56)

Right, Exactly.

B (23:57)

But I do think that when I was at least thinking about it, I was thinking about it as something for the public. I obviously thought that the department might be interested in read it, but you never know if that's going to happen.

A (24:09)

Oh, I'm sure they will. I'm sure they will. And I also wanted to talk about. You said that there were a couple other statutes in here that hadn't been addressed previously in the search warrant affidavit or anything like that. And that is 18 US code 641 and 18 US code 402. Can you talk a little bit about those?

B (24:28)

Sure. So first, those statutes were not listed as one of the three crimes in the search warrant. But it's important for listeners to know that the government isn't limited in bringing charges to just those three that was the basis for doing the search. But in deciding what to charge, any facts that support any particular appropriate legal theory can be included. So with that in mind, and this is where I do think we have something to add to the department because at least at the time of the search, the people who are on the case were sort of national security folks. And641 is a sort of sort of standard fare for criminal folks like me. I think of myself as like an AUSA who is, you know, very steeped in normal criminal law and then only afterwards became a national security lawyer. So641 is just theft of government property, really simple case. And we talk about how that is really the core of what happened here. And it avoids a lot of potential downsides. It doesn't matter if the documents are classified or not classified. It doesn't matter about the president's intent at the moment they were taken from the White House to Mar a Lago. It's a question of did he convert them thereafter to his own use without returning them. It doesn't raise all these issues about if there's really sensitive information in there. That's not something that would have to be used at trial. It is simply a question of did he take government property? So it's a nice, clean, easy thing. And I think it's, you know, when you're a prosecutor, you look for things that are very sort of just the things that fit really closely with the facts so that it's just an easy story to tell to a jury. And jurors tend to have a lot of common sense. So this is just, you know, when you leave your job, don't take your employers things.

A (26:45)

And something that I'm really glad that you explained in detail because I was having a little bit of some nightmares from the Trump 2016 Trump Tower meeting, where Mueller said that they would have a hard time assigning value to that dirt, which really surprised me, because why? I mean, there's a whole industry and a market that assigns value to OPPA Research. But you spelled it out in there because I think if it's less than $1,000, it's a misdemeanor. If it's more than $1,000, it'S felony. And you said this would be more than $1,000. And here's why. Can you talk about why we shouldn't worry about somebody saying we had a hard time assigning value to these documents?

B (27:27)

Sure. By the way, the Trump Tower meeting had other issues related to that because they never gave the dirt. So it was hard to assign a value because nothing sort of came out of it. So it was a more complicated situation. So here's the simplest, which is the classified documents are the kind of thing that you're entitled to sort of ask what would the thieves market be for that? So for some of these, we're not talking about over $1,000. We could be talking about substantially more than $1 million. This is one where the government doesn't have to worry about that. It just has to be $1,000 plus, you know, plus a nickel. So one easy way is, is just that, what would somebody pay for this? And the other is there's value in terms of that you can infer from, like, what the government has to do to get the stuff back. If it was really not worth a lot to them, it would also be something that the court and the jury can consider in determining a value. So I just think that's going to be the least of it. It's also, given this, it's also in the aggregate. So if you had each thing worth a dollar and you took 1,000 things, you're at $1,000. And so, you know, just ask yourself, if somebody was putting up for auction the Kim Jong Un love letters, would somebody bid over $1,000 in the aggregate for those letters? All of those are ways. And just to. By going through the various things with you, you see how this is not even a speed bump. And just to be clear, the worst case scenario is it would be a misdemeanor, and somebody can do up to a year in jail for.

A (29:23)

For a misdemeanor and then tell us about 402.

B (29:28)

Yeah. So 402 is also a very simple or seemingly simple case, which is if you get a subpoena, whether it's a grand Jury subpoena or a trial subpoena, and you intentionally disobey it. That's a violation of 402. It's just, it's failure to comply with a subpoena. So again, it's like a nice, simple, clear basic construct. I do think that the 1519 obstruction charge is also a good one and is strong, and it goes to sort of the overarching obstruction of not just the department, but the archives, but 402 would go to the disobeying of the grand jury subpoena. We do flag something that I, I do think it's worth people noting, and it's a little in the weeds, which is the department did something that I still find a little inexplicable, and there may be facts that help explain it, but the grand jury subpoena was not issued to Donald Trump personally. The grand jury subpoena was directed to the office of Donald J. Trump. And so that means that the only entity that had to comply was that office. And that meant they only had to produce documents that were in the possession custody control of the office of Donald J. Trump. So if you were trying to bring a charge based on a failure, an intentional failure to comply with that, you would have to show that the documents at issue that were not returned were in the custody of that office and that Donald Trump knew that as well, that he didn't believe they were in his personal custody and to the exclusion of the office. And I actually think that may, depending on what additional facts the government may have, that could make this not a good charge. Because it's not clear to me why the government didn't issue two grand jury subpoenas, one to the former president personally and one to the office. So that's a wrinkle that we identify. And one of the things we do in this memo is do just that. We want to flesh out potential issues that could be raised that the government would need to consider so that its case is meritorious.

A (31:59)

Yeah. Now, of course, the question of the year that I'm sure will be asked of you a million times. Have you gotten any phone calls to be on this team?

B (32:10)

Oh, I'm. I'm not going back to the government. I'm not going back to the government. And high five.

A (32:16)

Me neither, dude. Me neither.

B (32:19)

And I mean, I love the department. I was there for 21 years. It is nothing about the department or its current people. Also, I would be, you know, I was, you know, I just think they don't want, and they shouldn't want people who are on the Mueller special counsel, there'll be a whole fresh crew of people to be attacked by Donald Trump, Right?

A (32:42)

Yeah. All new. Yeah. New punching bags. So I'm assuming that folks like David Raskin, who was brought over from Kansas City, Mo. And Windom, who was brought in, will probably be on that team since they've been working these investigations themselves.

B (32:56)

Oh, yeah. I can't imagine that they would be. They would be. I can't imagine they'd be taken off. I mean, there's, you know, even, even with Mueller, the, the couple people who had actually, maybe it's just one who had been working on the matter transitioned to us. So here, where there's so much work that had been done and they can't imagine that's not going to be the case.

A (33:24)

Yeah. All right. Well, I appreciate your time today and I really encourage, I've shared this on all my social medias. This document, it's fascinating to read through it and to sort of see how the statutes apply, the elements of the statutes that need to be met. But again, that whole section on the comparison of, like, cases I think is so important to understand. It gives you a really solid idea of, boy, if Garland or, well, now John Smith, Jack Smith doesn't indict here he is not, you know, seemingly going by the history of, of these typical kinds of cases. So it'd be interesting to see how this plays out. But also, I mean, you know, with David Raskin, who was a very knowledgeable prosecutor who has gone to trial for these kinds of, you know, he's sipa, well known, you know, and that from my understanding. Is it true that because it's a SIPA case, it could take longer to get on the docket. Is that, do you know anything about that?

B (34:24)

If they indict, if there's an indictment, there's a provision that the government can use to, to protect highly classified information from being disseminated. Yes, it does take a little bit longer when you're invoking that in terms of filings that need to be made, there does usually need to be at least one person on the defense team who has appropriate clearance for some of those discussions, not all. So it can take a little bit longer, but it shouldn't have any effect on the issue of whether and when a charge occurs.

A (35:07)

Yeah. And I think you had mentioned in your document in this prosecution memo that Kingsbury, even though she had tons of documents, they only used like 20 of them at trial. Like, you don't have to use them. All right.

B (35:20)

Yeah, absolutely. I Mean, this is one where the things that you're most concerned about, you don't have to charge. And here it appears by all accounts that there will be quite a large choice of things to rely on. And one of the reasons, again, to go Back to the 641 theft of government property case is, you know, you don't have to. For that charge. You wouldn't have to even use any classified documents. You could, but you don't have to.

A (35:47)

Yeah. And I think we're about. We're only a few weeks away from them getting the rest of the unclassified stuff back from Judge Deary. Whether it be finishing that review or the 11th Circuit tossing it out, I think we'll. I think they'll have everything in their hands that they need. So thank you so much.

B (36:02)

You're welcome. Thanks. Thank you.

A (36:04)

Yeah. And everybody, you really should. If you haven't read Where Law Ends by Andrew, you need to pick it up. It's gonna be a great refresher. And with this new appointment of this special counsel, there's a lot of things that are in there that are gonna really help you understand and navigate your way through the news as it happens with this. With regard to this appointment. Thank you so much, Andrew Weissman. Thank you, everybody. Welcome back. It's time for the good news. Who likes good news?

B (36:30)

Everyone?

A (36:31)

Then good news, everyone. Good news, good news. And if you have any good news or confessions or corrections or you want to send me a shout out to somebody you love or you want to tell me about your small business or what you're creating or Halloween photos, holiday pictures, show me your Thanksgiving spread. I want to see it. Send it all to us@dailybeanspod.com and click on contact. First up from Erica Pronouns, she and her hi beans Queens. I heard your request for more what the mutt submissions and I'm happy to oblige. Quick backstory, which is also a bit of good news. My husband had never had a pet when I met him, so it took a little convincing before he would consider the possibility. Enter the COVID pandemic and a sudden abundance of downtime at home. And I finally had my opportunity to get him to the local shelter where we met five month old Trace. Within weeks, he had turned my main man into a full fledged dog dad and proponent of the adopt, don't shop mentality. These two can frequently be spotted snuggling on the couch, and Trace has become an expert at convincing my husband to surrender a few scraps from his dinner plate. I'm attaching a picture of trace, who's about 35 pounds for reference. Perhaps that'll help you guess. I've also attached his DNA test results. To say that we were surprised is an understatement. Thank you for giving me the news I'm not hearing on TV or seeing in the daily headlines. Your information and insights are so valuable and the daily dose of humor is much appreciated. Okay. All right, Pitbull staffy. I'm gonna say Pitbull staffy and Jack Russell. And then of course we ought to put a chow chow in there. All right, let's see what we've got. We have Pitbull, Chihuahua, Treeing Walker, Coonhound, Happy on American Eskimo, Staffordshire Terrier. There's the Staffy and supermount. All right, I got two. I got two of the 1, 2, 3, 4, 5, 6, 7 mixes. What a beautiful baby. Hi, Trace. Looks like a good dog. Congratulations. Next up, proud grand auntie. Hello, beans Queens. Some good news sprinkled in with some things kids say wrapped into a burrito of joy. My 8 year old grandniece modeled my refashioned size small crimes and crimes T shirt. One of those received an error over top a coincidental justice bathing suit. You can see part of the U and the S peeking through. I briefly explained what the numbers meant to her Canadian grandparents, one of which is my brother who had been raising her since she was three months old. She instantly broke into a little song and dance, chanting, I'm a Trump. Uh huh. I'm a Trump. Later, she went on to win the photography competition for her age at the modeling conference where we all attended and placed third in Sports Runway. Third. Awesome. A huge confidence booster for this young girl. But her precious realization was the moment after she won and ran back to us sitting in the audience, certificates in hand, and blurted out, all I get is a piece of paper. Thanks for all you do to educate us on both sides of the border about justice and the power of democracy. Let us know when you have a version 2 of the Crimes and crimes and crimes shirt they're building up. Oh my God, she's adorable. How funny. That's incredible. Look at this beautiful family. Thank you so much for sending that in and congrats on the piece of paper. Next up, from Keith, he and him. Hi AG and dg. Longtime listener and patron, I'm writing to express anger and sadness over the mass shooting in Colorado Springs, but also to express love and support for the LGBTQ community. This morning I looked up LGBTQ organizations in Colorado and found one called One Colorado and made a donation. I also donated to the Human Rights Campaign and posted on my socials to encourage friends and family to donate to those groups like PFLAG or GLAAD or the Trevor Project. Over the past year, I've also made donations to orgs in red states where elected officials have been attacking the community, such as Equality Texas, Equality Florida and Equality Ohio. I encourage anyone trying to find ways to help to donate to such organizations, but also post on your socials and offer support and love to those who need it. Our LGBTQ friends and family need to know we love them for good news. My wife and both my children, ages 18 and 20, spent the last few days volunteering for a local veterans organization, assembling bags for Thanksgiving, and moving large boxes of frozen turkeys off a truck for food distribution event. My back is sore, but it was worth it. Thanks to all veterans for your service like my dad who served in the army in 1965 and of course UAG for pet tax. I'm sending along this pic of our 10 year old Beagle Jack Russell Mix Ellie Last week was her Gotcha day and she's here with her rainbow toy that she loves so much. Unlike the other toys, she has not destroyed this one. Look at that. How adorable. Yeah, that looks pretty durable. I gotta get me one of those. What a sweet baby dog. And thank you for that. And thank you for all the amazing, incredible support you're giving to the community. I'm going to make sure that Dana reads this Jen Pronoun she and her Things Kids say hey AG and DG and the entire fabulous world of Leguminati. Love you too Beans Queens, you're the joy of my morning commute. And thanks for all you do. So kids say all sorts of things. My son came home from school today and I actually got him to help me put some groceries away. Shocker. I know. He asked me what these blue and gray cans were in the fridge. I said, that's beer. Is that alcohol? He asked. I replied, yes, it is. Quote Officer Mark came to school today and told me every hour is a good hour to drink alcohol. Yep, that's what he said. Overcoming my snickering, I realized the lesson was actually to limit yourself to one drink an hour. However, my son is in the third grade and I don't think kids need those life lessons just yet for my Pet tax. And since you haven't had some what the mutt lately, I present to you my Woofee pronounced Woo fay. I got it. She's nicknamed Boo Boo for short, but it's the same number of syllables. I digress. What's the mutt? Okay, Old English Sheepdog. This is an interesting mix. Old English sheepdog, Wheaten, Maybe a wheaten and maybe some poodle. And then of course, chow. Chow. Let's see. Old English sheepdog and Irish wolfhound. I was so close. Maybe I just didn't know how big was, but what a beautiful baby. I can't believe I got the Old English Sheepdog. I don't think we've had a mix with an OES before because I was thinking that poodle is what gave her the gray. But anyway, gorgeous pup. Thank you for sharing and everybody, send in your stuff to us. Send in all the good news. We need it now more than ever. You can do that by going to DailyBeansPod.com and clicking on Contact. Thanks to Andrew Weissman. Pick up a copy of Where Law Ends. Read it from COVID to cover. You're gonna need that information for this Special Counsel investigation and I will be covering it all with Dana here on the Beans. Dana will be back tomorrow. Until then, please take care of yourselves. Take care of each other, take care of the planet, take care of your mental health. Vote blue over Q and bring someone with you. I've been ag and them's refried beans.

B (44:05)

I like refried beans.

A (44:06)

The Daily Bean Beans Executive produced by Allison Gill with additional research and reporting by Dana Goldberg and Amy Carrero. Sound design and editing is by Desiree McFarlane with art and web design by Joelle Reeder with Moxie Design Studios. Music for the Daily Beans is written and performed by they Might Be Giants and the show is a proud member of the MSW Media Network, a collection of creator owned podcasts dedicated to news, politics and justice. For more information please visit mswmedia.com msw media.