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Refried Beans | Zero Malarkeys Left to Give (feat. Andrew Weissmann) | Aug 26, 2022
00:44:02
Friday, August 26th, 2022 In the Hot Notes: Mark Meadows, Sidney Powell, and James Waldron have been beckoned by the Fulton County DA for testimony; two individuals have pled guilty to stealing Ashley Biden’s journal and selling it to Project Veritas; eight sources say the feds aren’t done with Matt Gaetz; Judicial Watch president Tom Fitton has been advising Trump on his dealings with the National Archives; Kenneth Chesebro is resisting a subpoena from the Fulton County DA; a judge rebukes Georgia fraudulent electors trying to wiggle out of prosecution; Judge Reinhart has ordered the release of a heavily redacted Mar-a-Lago search warrant affidavit; President Biden drops the F bomb – fascism – referring to the GOP, the Uvalde school board unanimously fires police chief Arredondo; and the Interior Inspector General finds Trump appointee Ryan Zinke lied to investigators.
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A
MSW Media. Hey, everybody, it's Ag. And welcome to Refried Beans, where we play an episode of the Daily Beans podcast from the same week either one, two or three years ago so we can see how far we've come. So please enjoy this episode from days gone by and note the date in the intro.
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B
Refried beans. I like refried beans. That's why I want to try fried beans, because maybe they're just as good and we're wasting time whispering. Daily beans. Daily beans. Daily beans. Daily Beans.
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Hello and welcome to the Daily beans for Friday, August 26, 2022. Today, Mark Meadows, Sidney Powell, and James Waldron have all been beckoned by the Fulton county district attorney for testimony two individuals have pled guilty to stealing Ashley Biden's journal and selling it to project Veritas for $40,000. Eight sources say the feds aren't done with Matt Gaetz. Judicial Watch President Tom Fitton has been advising Trump on his dealings with the National Archives. Kenneth Cheesebrough is resisting a subpoena from the Fulton county district attorney. A judge rebukes Georgia fraudulent electors trying to wiggle out a prosecution. Judge Reinhart has ordered the release of a heavily redacted Mar? A Lago search warrant affidavit. President Biden drops the F bomb Fascism one referring to the gop. And the Uvalde school board unanimously fires Police Chief Arredondo while the Interior inspector general finds Trump appointee Ryan Zinke lied to investigators. I'm your host, Alison Gill, who I thought that would be a record. That was a lot of news. And I told you, I told you yesterday today was going to be wild. Also today I have a full 25 minute interview with Andrew Weissman, former Mueller prosecutor. We're going to talk about the Barr memo that came out yesterday. And yes, I will release a Mueller She Wrote bonus episode for patrons this weekend. And that'll be me going over this Barr memo line by line. This memo that was written by, you know, for Barr, by Engel, the pay dag principal, Assistant Deputy Attorney General o' Callaghan and Engel. And that's, you know, it was to sort of spin the findings of the Mueller report. And I'll also rerun that Andrew Weissman interview this weekend on that bonus episode. You need to be a patron to get it. So you can do that by going to patreon.com mueller she wrote. I may also include in that bonus episode what comes out in that affidavit, the Mar? A Lago search warrant affidavit tomorrow, since we won't be covering it here on the beans until Monday morning. All right. There's a lot to get to. We're going to forego the good news just today because we do have that extended Andrew Weissman interview. And a lot of this news in the hot notes is good news. So let's do it. Let's hit the hot notes. Hot notes. All right. We're going to take a trip around the country today. We're going to travel by map because it's the fastest way to travel. And we'll start in the Southern District of Florida, where the Department of Justice submitted their proposed redactions to the Mar A Lago search warrant affidavit today. And the judge, Judge Reinhart, accepted them and pretty much immediately ordered the redacted affidavit released by noon today, noon Friday Eastern time. So if the DOJ doesn't appeal this decision, we should see that today if it wasn't already released last night after I recorded this episode. The judge agreed with the Department of Justice's reasoning for the redactions they made. They said their redactions were appropriate. So I don't think we'll see much, but what we do see will not be good for Donald. And not long after the National Archives acknowledged in February that it had retrieved 15 boxes of presidential records from the former guy, Trump began fielding calls from Tom Fitton. He's a prominent conservative activist. He's a longtime head of the legal activist group Judicial Watch, and he had a simple message for Trump. It was a mistake to give the records back to the archives, and his team should never have let the archives, quote, strong arm him into returning them. And that's according to three sources familiar with these discussions. According to Fitton, those records belong to Trump. And Fitton was citing a 2012 court case involving his organization that he said gave the former president authority to do what he wanted with the records from his own term in office. Pro tip don't listen to Tom Fitton. The Judicial Watch president suggested to Trump that if the archives came back, he should not give up any additional records. And that's according to sources with knowledge of the conversations, which have not been previously reported. While Trump continued publicly to tout his cooperation with the archives, privately, Trump began obsessing over Fitton's arguments, complaining to aides about the 15 boxes that were handed over, and becoming increasingly convinced that he should have full control over records that remained at Mar A Lago, according to people with knowledge of his behavior at the time. Trump even asked Fitton at one point to brief his lawyers. In a phone interview with cnn, Fitton would neither confirm nor deny conversations with Trump or the ones that he had with Trump, but noted that he's been a vocal person on social media and television, saying Trump had the right to keep those documents that he took with him at the end of his presidency because they inherently were personal. Trump's interactions with Fitton shed new light on his evolving and often conflicting posture toward the archives, dating back before he even left office, and his recent reluctance to hand over more documents after initially giving up the 15 boxes in January. While he was in contact with Fitton behind the scenes, Trump continued to claim publicly he was cooperating with government officials. Trump didn't completely stonewall the government, as Fitton had advised. He did turn over some material in June following that meeting between his lawyers and federal investigators at Mar A Lago. But after a Trump lawyer claimed all classified material had been provided, investigators developed evidence to suggest that that wasn't the case. And that is what led to the search on August 8th. So listening to the wrong people again. Now let's head from the Southern District of Florida to the Southern District of New York. Two Florida residents pleaded guilty on Thursday to conspiring to to trafficking in stolen goods for selling a diary and other personal effects of Biden's daughter, Ashley Biden. And that's according to the Justice Department. The criminal charges are the first to emerge from a federal investigation into how, prior to the 2020 election, the Journal reached the conservative video outlet Project Veritas. The group has said it paid for rights to publish the diary but never did so because it couldn't authenticate it. Contents from the diary later emerged on a more obscure conservative site. Last November, the FBI carried out search warrants at the home of founder Project Veritas, James o', Keefe and those of two of his colleagues in connection with the investigation. None of those individuals have been charged, but o' Keefe has denounced the raids as an attack on press freedom. In a Manhattan federal court hearing on Thursday, Amy Harris, 40, of Palm beach, and Robert Kurlander, 58, of Jupiter, each pled guilty to a single conspiracy charge stemming from their involvement in selling the Journal. That's according to U.S. attorney's office in Manhattan. Harris and Curlander, quote, stole property from an immediate family member of a candidate for national political office. That's what Damian Williams, U.S. attorney for the SDNY, said in a statement. They sold the property to an organization in New York for $40,000 and even returned to take more of the victim's property. When asked to do so, Harris and Kurlander sought to profit from the theft of another person's personal property, and they now stand convicted of a felony as a result. So freedom of press doesn't apply when you steal it. The charging document filed on Thursday, says that after Harris told Curlander what she had discovered, he texted her they could make a shit ton of money, quote, unquote, off the Journal. The pair tried to offer the diary to the Trump campaign, but an unidentified representative of the campaign turned them down and suggested they give the materials to the FBI. They want it to go to the FBI. There's no way candidate two can use this. It has to be done a different way. That's what Kurlander texted to Harris. According to the filing, both defendants pled guilty. As part of the agreement with prosecutors, Curlander has agreed to cooperate with investigators as part of this deal. And that cooperation could implicate Don Jr. Because he's the one who said, we don't want to send it to the FBI. He was part of this scheme. If he was the one that said, go back and get something else, ugh, I don't know. But he was involved. The status of the federal probe into Project Veritas is unclear. A lawyer for the group, Paul Cali, defended its actions in connection with the diary and suggested the charges against it or personnel would be unwarranted. So now we're going to travel from Southern District of New York to the middle district of Florida. When Rep. Matt Gaetz beat his primary challenger Tuesday, he delivered a speech to family and friends predicting an easy repeat victory in November that would allow him to remain with, quote, Republicans with a will to fight and a backbone, unquote. There was, predictably no mention of the underage sex trafficking investigation that could one day be catastrophic to his career. That federal probe that generated national attention for a few weeks last year has quieted down, but it's not over. Eight people, eight with direct knowledge of the probe, confirmed the Daily Beast that the case is still unfolding, albeit at a methodical pace, as federal prosecutors work their way across a number of spokes of possible criminality. While each zone has its own set of witnesses, subjects and targets, all of it spirals from one man. That's Joel Greenberg. Lyle Mason, a criminal defense attorney who represents one of the witnesses in the case, told the Daily Beast the quiet should not be misconstrued as reluctance on the part of Roger Handburg, federal prosecutor who led the local team conducting the investigation and now leads the Florida Middle District U.S. attorney's office, quote, he's methodical. He doesn't let anything go. If you're going to go after a monster, you have to get it right, especially when you have a bunch of Trump supporters who'll come after you, unquote. As you know, I have my beans on Gates being indicted after the November elections. We're right now in about a week long window, you know, puts us 60 days out of the election or a couple weeks after since the primary election happened August 23rd. I don't think they're gonna try to thread that needle because they still wouldn't be able to get a trial by December. But I figured they would. They would wait until after the midterms in November. And while it would be too late for Greenberg to testify in a Gates trial before he's sentenced in December, the feds can file for a sentence reduction after the fact based on his cooperation. And he's facing a minimum of, I think 10 years. So it's not like he's going anywhere. They have time, they have time to reduce his sentence beyond his minimum. No one who spoke to the Daily Beast believes that the Gates probe was closed. And defense attorneys for witnesses and subjects who have recently enjoyed a quiet season say they expect to hear from prosecutors again. Some have struck agreements for advance notice of charging decisions. All right, now we're going to head from the Middle District of Florida to Uvalde, Texas, where the school board there has unanimously voted to terminate Police Chief Pete Arredondo. Arredondo was not in attendance at his termination hearing out of concerns for safety. That's according to his attorney, George Hyde in a 17 page statement released shortly before the community gathered Wednesday evening. His termination is effective immediately. Now we're going to head from uvalde to Washington, D.C. with a story from the Post. Former Interior Secretary Ryan Zinke, who's favored to win a new House seat representing Montana this fall, lied to investigators several times about conversations he had with federal officials, lawmakers and lobbyists about two Indian tribes petitions to operate a New England casino. That's according to the department watchdog. In their report released Wednesday, investigators with the inspector general, the office's Mark Greenblatt. His office concluded that when questioned about his talks with Interior attorneys and others outside the department, Zinke and his then chief of staff failed to comply with their duty of candor as public officials to tell the truth. According to the report we found both Secretary Zinke and the chief of staff made statements that presented an inaccurate version of the circumstances in which the Interior Department made key decisions. As a result, we concluded Secretary Zinke and the chief of staff did not comply with their duty of candor when questioned. Investigators found that Zinke, who served one term in the House before joining the Trump administration, and his chief of staff made statements to OIG investigators with the overall intent to mislead them. The report also found Zinke had misused his official position by directing some of his staff to arrange a meeting with the developers of his casinos and print documents related to the project. Federal officials are generally prohibited from assigning their employees tasks related to private business. Though Greenblatt, who oversaw the investigation, was appointed by Trump, Zinke slammed the investigation as a political hit job by the Biden administration. Justice Department declined to bring charges related to this investigation. Now we're going to go from Washington, D.C. to Fulton County, Georgia, where Fani Willis, the district attorney, is demanding testimony from Trump's former chief of staff, Mark Meadows, about his involvement in the effort to overturn the 2020 election. Filings in the case show Fani Willis. She's the one overseeing the investigation, ordered Meadows to appear for a September 27 interview, and she's seeking a September 22 appearance from both Sidney Powell and cyber researcher James Waldron. Meadows was an active participant in Trump's effort to press state officials in Georgia to help find enough votes to put Trump ahead of Joe Biden in the state. Meadows traveled to Georgia for an unannounced visit during recount efforts as well. We saw that, we saw pictures of that too during the January 6 hearings, and he joined Trump on a phone call with Raffensperger, during which Trump pressed the state officials to help reverse the outcome. Quote, the special purpose grand jury's investigation has revealed that the witness was involved in setting up the call. The DA's decision to seek Meadows testimony shows the investigation has reached Trump's door. Already. The grand jury has sought testimony from the attorneys and congressional allies who supported and helped devise Trump's strategy to subvert the election. Several of those allies, including attorney Kenneth Cheesebrough and Senator Lindsey Graham, are both fighting subpoenas to testify to the grand jury. Trump ally Rudy Giuliani appeared last week for a closed door interview. It's unclear whether he asserted any privileges. Sidney Powell helped lead a team of outside lawyers to mount challenges to the election results in various states, and she helped drive false claims about foreign interference and vote flipping. Waldron was an ally in that effort as well. Both have been figures of interest to the select Committee. And the judge presiding over the special grand jury is wading into a fight over whether Governor Brian Kemp has to testify before the panel. Fulton County Superior court judge Robert McBurney, who's the supervising the special grand jury, scheduled a hearing for Thursday. It happened today after the dispute between lawyers from the former governor and Fulton County DA and their prosecutors that that escalated. That dispute escalated from tense emails to court filings. The increasingly heated rhetoric is playing out as the Republican governor, who's seeking reelection in the fall, seeks to avoid speaking to a special grand jury looking into whether Trump and his allies broke any laws when they tried to overturn the election. Kemp's lawyers have accused Willis, a Democrat, of pursuing her testimony for improper political purposes, an allegation the DA strongly denies. We do not yet have a ruling from that hearing, but I will keep you posted. But the judge did smack down an attempt by the fraudulent Georgia electors to disqualify the DA over political concerns. Remember the one guy, Jones, who got recused, got her recused from his case because she was at a fundraiser for his political opponent? Well, the rest of the targets, the rest of these fraudulent electors asked for that, too, but the judge pointed out none of them are similarly situated. And in this great footnote, says, quote, remarkably, counsel for the 11 alternate electors cites as proof of the DA's political bias that she's targeting, quote, only Republicans. It eludes the undersigned. He's talking about himself. It eludes the undersigned how an investigation into allegations of Republican interference in the 2020 election would have any other list of targets than Republicans. That's fun. And before we get to the Andrew Weissman interview, Joe Biden is sick of your shit. He has zero malarkeys left to give. The official White House Twitter is now calling out Republicans who are shitting on the student debt forgiveness, calling them out for their PPP loans. They've got Matt Gaetz and they've got Marjorie Taylor Greene so far. And they're going to keep going, I think. So. This is right off of the official White House Twitter account. So Marjorie Taylor Greene put out a video about why it's unfair that student debt be, you know, be wiped out in any amount. And they just retweeted it with, oh, is this you? Did you take this PPP loan? Thanks, bye. And they did it to Gates, too. And then President Biden condemned MAGA at a DNC fundraiser today. Quote, what we're seeing now is the beginning of the end or the death knell of an extreme MAGA philosophy. It's not just Trump. It's the entire philosophy that underpins the. I'm just gonna say something. It's like semi fascism, unquote. Damn. Never expected Joe to drop the F word, the F bomb there. Fascism. He called it semi fascism, but he still said the word. And that's important. It feels good to be on offense. Democrats in array, I think is the headline. All right. After this quick break, an interview with former Mueller prosecutor Andrew Weissman about the bar memo we got yesterday. And yes, I asked him where he's been for the last year.
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B
Stay with us after these messages. We'll be right back.
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A
Everybody. Welcome back. Today we're going to talk about this memo with someone who worked very closely with the Mueller team. In fact, lead prosecutor on the Mueller team and author of the book where the Law Ends, please welcome Andrew Weissman. Hi, Andrew.
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B
Hi. It's really nice to be back.
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A
It's good to see you and I'm so glad you're back. Maybe we can dispel rumors about where you've been for the past eight months in a little bit. But I really want to talk about this memo because as you know, I am not a lawyer. I just was, you know, dove deep into the Mueller investigation and all of this stuff. But the first thing that stood out to me when this memo was released, this memo that we're talking about March 2019 by Barr, Engel, Rosenstein and something called the pay dag, which is the principal Assistant Deputy Attorney General o', Callaghan, was that they were trying to tell us that without an underlying crime being charged, you can't obstruct justice. And that was glaringly, obviously incorrect to even me who doesn't hold a law degree. Can we talk a little bit about this and perhaps the implications implications that that being in an Office of Legal Counsel memo from the Department of Justice could have on future obstruction or current obstruction of justice investigations.
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B
Yeah. So the memo does say that they somewhat walk that back and just say at some point. They say, well, it's conceivable, but it would certainly be very, very strong proof if there was no underlying crime. There's both a legal and factual problem with that. So as Steve and Ed know and Bill Barr, this is simply not the department's position. There have been a host of cases where people are charged with obstruction and convicted of obstruction, where a case is not made on the underlying crime, where there is no underlying crime. And that happens all the time. So here's an example. You obstruct an investigation because you don't want the government, as they pursue the investigation, to learn that personally embarrassing things like you're having an affair. That doesn't mean that you can't be charged with obstructing the investigation. As many people have noted. What this would really mean is if you successfully obstruct the investigation, you can't be prosecuted for obstruction because you can't prove the underlying crime. Amy Berman Jackson made this point to Paul Manafort. She was the district judge in D.C. who had his case saying, you can hardly complain about the fact that the special counsel did not charge a conspiracy between the Trump campaign and the Russians when you obstructed that very investigation. So that's sort of one flaw legally. And of course, that will have ramifications for the department, because, you know, if I'm a defense lawyer, which I have been in my life, you know you're going to use that memo. The second is the factual issue, which is it's simply not the case that we did not find that there was no evidence of that underlying crime. We just said it wasn't chargeable. And we also, meaning we didn't have proof beyond a reasonable doubt. And we also pointed out that the investigation was not done. In other words, there were different aspects of the investigation that were still pending, for Christ's sake. We still had the Roger Stone case that was pending, and who knew if he was going to flip or not? So. And then there was Michael Cohen, and who knew what exactly he was going to give him? There were just all sorts of leads. And our report actually says that. It says this is where we are now, but we're not saying it's going to stay that way. So the predicate for their legal analysis was that we found there was no evidence, and this was conclusively established. So that is just a factual flaw. And, Alison, can I just point out two things that struck me when I read the memo, which was actually not what was in was really what was not in it. What was not in it was any discussion of whether these political appointees in the Trump Department of Justice should have referred the case back to Mueller to say, I need you to make a finding, and a second discussion of why should we at the department, who are political appointees, be making this decision when it had already been determined by the acting Attorney General that a special counsel was needed? In other words, the whole point of the special counsel was precisely so that somebody who was not a political appointee of the president who was under investigation would not be making this decision. There is zero discussion of that. And the memo makes it clear why they didn't want the answer, because they, they clearly could have told Robert Mueller, who reported to the Attorney General he was in the Department of Justice reporting to the Attorney General, that Bill Barr, any day of the week, knowing well in advance what we intended to do, could have easily just said, no, no, no, you know what? I want to know your recommendation. The memo makes clear they don't want that because as they say, when this report from Robert Mueller becomes public, the people who read it may very well conclude that the President committed obstruction of justice. So that was sort of the impetus for what they needed to do here, which was they needed to deal with that before it became public. And then the final point, I'll say is just on a personal note, this is really painful to relive because one of the worst times in my life, and I think for, I don't want to really speak for everyone else, but I know everyone else was very upset during the three week period between the time that we gave our report to Bill Barr and when the report came out, and having to see Bill Barr's alleged suit summary and his own conclusions with no explanation as to how he got them because we didn't have this memo from him. I think if we did, it would have made us even angrier for the reasons we just talked about. Anyway, I've gone long enough, and it's probably because, Allison, you can tell that it's still a little raw.
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A
You have some feelings. So do I. I spent a couple of years on a, on a, a podcast only about this investigation. So we were all waiting with bated breath to see what was going to happen with it. But, you know, you're right, Appendix d had what, 14 ongoing investigations. Well, two of them, I think had been resolved and the rest were still redacted. So those weren't addressed. And of course, you know, we talk about this, particularly what I, you know, I was picking out of the D.C. circuit Appellate Court's decision to release this memoir, along with the lower court's decision to release this memo, Judge Jackson, that this was, you know, why are you engaging in this hypothetical exercise? You know, regardless of constitutional concerns, as Mueller put in his report, his reason was, you know, hey, I can't charge the President because of this OLC memo that says you can't charge a sitting president. And if I can't charge him, I can't accuse him of a crime because he won't be able to face his accuser, et cetera, et Cetera, constitutional considerations, leaving the door open for Barr to come in and make this declaration. One of the things that I wish Mueller hadn't done or would have done differently, but of course, I'm not, I'm not, I don't have that sort of level of expertise. But again, like you said, the bar should have put, put the question back to Mueller saying, hey, constitutional aside, because we're, we're going to put the constitutional considerations aside. You put the constitutional considerations aside and come to a conclusion because that was your job as appointed special counsel. I'm not supposed to do that. You are. That's why we put you in this job.
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B
Yeah. I mean, just to be clear, I, too, and I wrote about this in my book, disagreed with the decision by the special counsel not to come to a conclusion. And I think respawn people can kind of, you know, can take to both sides of that. It is really important to remember that although I disagree with the decision Robert Mueller was motivated by, essentially, it's like the anti. Jim Comey, you don't disparage somebody. You don't say somebody committed a crime as a prosecutor unless they can have their, they're being charged and have their day in court. That's where it came from.
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A
Well, and that's why we don't want to release this affidavit on the search warrant for Mar? A Lago. That's one of the main reasons.
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B
That is one of the. That is, I think that is the most principled reason. I mean, obviously there's the concern about, you know, harm to national security and witnesses and the criminal investigation. But this is what I was taught when I was a young prosecutor, which is essentially put up or shut up. I mean, I, I was in the Brooklyn office, so you can understand that sort of, they would come up with that kind of very direct phrasing. But the reason I can say, by the way, I disagreed with Mueller's decision is under the regulations that govern the special counsel, what we were providing was a private report, just an internal Department of Justice memo to the attorney general. The decision about whether that would be made public or not made public was the attorney General's decision. So I thought that Mueller was anticipating that decision, which wasn't his to make. In other words, that decision about whether somebody should be, whether somebody should be suffering the opprobrium of being accused of having committed a crime without the ability to charge that person was for the attorney General to make. And my point was, you know what, Robert Mueller, stay in your lane, which is Your special counsel. The rules say you should do X, just do that. That was my reasoning. But as I said, although I disagreed with Robert Mueller, the. What he was trying to do was say, look, everyone knows this is going to become public. I don't want to be the person who causes somebody even. Even in this situation where they're, you know, extenuating circumstances, to be accusing somebody of wrongdoing when they're not being charged.
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A
Mm. Yeah. And there's a lot of things wrong with this memo. So let me ask you, a lot of people have been saying, where are the obstruction of justice charges from the Mueller report, from this doj?
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B
Why?
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A
You know, once you leave office, you know, Mueller was pretty clear in his. In his congressional testimony. Can. Can he be charged with obstruction of justice after he leaves office? Yes, he can. Is this OLC memo possibly what's tripping them up?
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B
No, I mean, the OLC memo, I think that. Oh, well, the first, obviously there was the two LLC memos that say you can't charge a sitting president. Those are just internal Department of Justice guidelines. No court has ever actually said that. But I don't think that the reason that you haven't seen the department go forward is because of this memo, because the law and facts are so thin. And it's also, I think, maybe important to note that the current Solicitor General of the United States was one of the four legal members of the special counsel team. So she's well aware of and in accord with the special counsel's position on the law and the facts. And I just don't think she would have read this memo and found it persuasive. And so I just don't think that was the issue. I think it was more, to put it bluntly, sort of let bygones be bygones and we're not going backwards. I also disagree with that. I disagree with it because if you believe that a president is not above the law, but you have a Department of justice policy that says you can't indict a sitting president, then if you don't take their crimes seriously when they are no longer the president, then, and say, you know what? We're always going to be saying, let's bygones, bygones, then you really are saying that the president is.
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A
Well, he's obstructing justice now with 15, 19. And it happens again.
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B
Yeah, Adam Schiff said this directly in one of the impeachment trials. He just said he's going to do it again. He is not correctable.
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A
Now, do we know they're letting bygones be bygones. Do we know that or are we sort of speculating?
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B
We don't. But you know, my view of while it is true that the department speaks through its filings, et cetera, in Washington, there are enough defense lawyers who receive grand jury subpoenas for their clients and people going to the grand jury and being interviewed that I won't say everything leaks out, but enough would leak out that you would know about it. And we've seen it. You know, we, we heard when people are going into the grand jury who were former Trump White House officials, there's just, again, I won't say that we would know everything, but I think if they were locking down that evidence as potential proof at a trial, that we would have heard it.
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A
Yeah. And this DOJ is actually doing a really good job of not leaking anything. I mean, we had all those subpoenas and grand jury with Philbin and Cipollone back in the spring about what was at Mar a Lago. But something else I wanted to ask you about this doj. Boy, they really half assed this keeping the memo under seal case, because first of all, it was Barr's argument that, you know, well, we have to keep it under seal because it's deliberative process privilege and attorney client privilege. And the Garland DOJ took up that mantle, just took up the Barr argument, dropped the attorney client privilege part, went forward with deliberative process, and made the same deliberative process privilege arguments that Barr made without adding an argument that would have let them keep the whole thing under seal, which was we were actually deliberating a decision about what to tell the public. That's what the DOJ was. And so then when the appeals court came out with their decision, they didn't fight it, they didn't appeal on bonk, they didn't put in a stay pending appeal, they didn't appeal to the Supreme Court. They were just kind of like, okay, and, and, and the Citizens for Responsibility and Ethics in Washington, by the way, hat tip to them for all the work they do, got this memo. It just didn't. I don't feel like they, this DOJ really took up a strong mantle forward to try to actually keep this thing under seal with a lot of gusto.
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B
Yeah. I think many people were surprised that this administration continued the litigation on this.
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A
I was angry about that.
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B
And, you know, I'm all for, when there's a principle involved, you need to uphold it, regardless of whether, you know, the outcome is something that would help or hurt a particular administration. So if something's deliberative process or attorney client, you know, you have to, you have to uphold it, even if it, you know, might hurt this administration, that administration, because it's. You're talking about sort of systemic issues. What, what happened here was so deplorable because Amy Berman Jackson insisted on seeing the actual memo. DOJ was fighting her on that. She saw it and basically, in the vernacular, had a cap and said, you've been lying. The whole first part of the memo doesn't even address what you're saying. And the second part of the memo has nothing to do with the decision to charge the President because that wasn't even a possibility.
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A
Yeah. And this DOJ was like, hey, we're sorry, we didn't want you to think we were doing anything in bad faith. It almost felt like we're just making the argument that the DOJ before made because we're the doj. Like, I felt like they were just sort of like kind of stuck between a rock and a hard place of just letting it go or trying to carry this baton. This terrible reasoning, this bad faith reasoning to keep it under seal from the previous DOJ so that they could, you know, look like, hey, we're the doj. We should make the same DOJ argument that the DOJ made before. Institutional situation. Yeah, I wouldn't have done, I wouldn't have done it that way.
- [35:35]
B
You know, it's sort of interesting. Part of it is just sort of. They didn't have a sort of come to Jesus within the department to say, you know, what, if we're going to defend this, we have to call it like it is and just be super candid with the court that this was just deliberations on the issue of how to spin the report. And the Court of Appeals said, you know, if you'd gone with that, you might have been protected. Leave aside that there's a whole issue about whether the decision had been made. And this was not really deliberations. This was just something for Barr to have in his file to say, oh, I relied on olc.
- [36:15]
A
Yeah, it should be, look, hey, this was a thing to spin, how the report was going to be. We don't want to make that argument here at the Department of Justice. We're going to go forward with deliberative process privilege argument, or we don't think that argument holds water, therefore we have no argument here, so we're withdrawing our, you know, opposing this. Something other than. And what they did. It just, it struck Me as odd. Yeah.
- [36:40]
B
I mean, they did try in the district court when it. When it was the sort of new Biden administration to say. To apologize and say, we understand how you could have had that impression. And the court of appeals had great. Lied saying about the misimpression, which, you know, is. Is polite talk for you. Lied. And I do think it's that lie at the outset that really colored the whole thing. And this is a good lesson for young lawyers who might be listening. Just be candid with the court and don't lose your credibility. And if the result is that it's going to cause you to lose, so be it. But you have to be really candid about what's going on and then make your legal arguments based on that set of facts. So this wasn't the department's finest day.
- [37:37]
A
No. So why not appeal it? Why just let it go? I mean, and I don't think they put out any sort of a thing that said, yeah, you know, you're right. We're sorry, we're out. We're not going to file an appeal. They didn't put anything out after this.
- [37:49]
B
Yeah, I mean, they didn't, but they sort of de facto did. Just by saying, we're releasing the memoir. You know, I think the idea of going en banc, where the argument, the only argument that they had on banc was, oh, you should have given us a fourth bite at the apple in the district court. That's a pretty hard issue to go en banc with.
- [38:09]
A
I mean, especially if the circuit court already said, dude, you had five chances and an application for a stay without bringing any of this new legal theory, which we handed you up. So, you know, it's not our job to do your job.
- [38:22]
B
Exactly.
- [38:23]
A
Yeah.
- [38:23]
B
So I could see them going, you know, in any case like this, it's like, it's just embarrassing. I mean, to go en banc when it's your fault is, you know, you have to make a lot of discretionary calls. And that's one where it's like, you don't lose credibility. And that's where, you know, Merrick Garland, you know, sat on that court for many, many, many years. He probably has a very good idea of what would play and what would not, and also what's appropriate for the department.
- [38:51]
A
He should have known not to make this, to not make Barr's argument. I mean, it was. It's so. It was so terrible. There couldn't have been anyone who was like, there's no decision attached to this deliberation. This is the dumbest argument ever. And I guess that's why they apologized up front. And, you know, I don't know, it just seemed like a whole weird exercise, and why even bother?
- [39:11]
B
Yeah. I mean, but part of it is that, you know, now that we have the benefit of seeing the memo, you can understand Judge Jackson's reaction when she saw it, and it. And sort of what she had been told versus what's in the memo. Plus, she knew all of the facts because she had handled a number of the special counsel investigations and seen so much. So she was very aware of what was going on. As I mentioned at the outset, she had that comment to Paul Manafort about, you don't get to criticize the lack of a charge for volume one when you obstructed that investigation. And, you know, she could have read this memo and said, you never even dealt with that issue.
- [39:59]
A
Yeah, it's like, oh, you're saying that there was no underlying crime. It. It was because of your obstruction, that probably that. That, you know, we couldn't make that.
- [40:09]
B
Well, it's one of those things. Either it's because of it. If it doesn't really matter. It's like, it's. So that's just obviously the reason why their statement of the law has to be wrong. Subsequent obstruction is not prosecutable, but inept obstruction may be prosecutable.
- [40:26]
A
And another thing, too, you actually did have, I think, a chargeable, prosecutable crime for conspiracy with Manafort, that there was a prosecutorial discretion not to go forward with that. And so a lot of things get left on the cutting room floor because you went forward with all the tax fraud and business fraud stuff, that it's impossible to say that there wasn't an underlying crime. You just. There was. You just didn't charge it.
- [40:47]
B
And plus, there's the whole issue. Exactly. There's a whole issue about what. What is the standard of proof of that underlying crime. I mean, for God's sake, we did have the campaign manager of the Trump campaign providing repeatedly internal confidential polling data to the Russians. And, you know, when our investigation was over and the Biden administration came in, they actually confirmed that when it went to. To Constantine Kilimnik, who was Paul Manafort's right hand, that he then, of course, as we knew, but didn't have proof yet, gave it to the Russians. And of course he did. I mean, he would have been killed if he didn't. I mean, the idea that he would have kept this and not passed it.
- [41:31]
A
On to the G, that was his loyalty test. Because he owed, he owed Deripaska what, $19 million or something. They needed to be made whole. I remember the whole thing. I remember the whole thing. Andrew. Well, I appreciate your time today talking to me about this. Inquiring minds want to know. We just want to dispel a few rumors. Where have you been the last eight months? Because we've missed you. You've come back at a wonderful time. We're glad you're here. But where, what were you doing?
- [41:56]
B
So it's actually more than eight months. It was, it was almost a year. I was the general counsel of a private company. And during that time I didn't think it was appropriate to be speaking publicly because it was too hard to divorce and, you know, and say, oh, this is just me personally versus my position as general counsel of the company. But I left that position so it made it easier to. And the timing couldn't have been better in terms of all of the things that are going on that merit a lot of legal analysis.
- [42:31]
A
Yes. It's super important to have your voice, especially with this bar memo having been so close to it. And you know, Room Raider is very excited that you're back as well. So thank you for having such a wonderful mid century modern decor, my friend.
- [42:45]
B
Thank you so much. Thanks for the invitation. It's so great to talk to someone who's so knowledgeable about these areas.
- [42:50]
A
Oh, that's very, very nice of you to say. I appreciate that. We'll have you back soon, everybody. Check out the book Where Law Ends. It's going to make a lot more sense now if it didn't make sense before. And we're going to dive into this bar memo, you know, it's not going to end. So thank you so much. Andrew Wiseman, appreciate your time.
- [43:07]
B
Thank you so much.
- [43:09]
A
All right, everybody, thanks so much for joining me today. This was just, it was such a good news day. We didn't need to do the good news. We're going to save your good news. Don't worry, we won't skip you. We're going to save it for Sunday so it'll come out Monday morning. And look for the bonus Mueller She Wrote episode this weekend. It could have Mar A Lago search warrant affidavit stuff in it. It will definitely have me going over the bar memo and I will repeat the Andrew Weissman interview. So don't want to miss that. That's for patrons only. Patreon.com Muller she wrote. You also get the Daily Beans ad free if you sign up for that man. It's been a heck of a week. I don't expect it to slow down much. We will see you this weekend for Mueller, She Wrote Patrons. And, of course, Monday morning, back on the beans. 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. I'm AG and them's the beans.
- [44:00]
B
Refried beans. I like refried beans.