A (3:53)

Can I kick in on that first one real quick?

B (3:55)

Yeah, of course, of course.

A (3:56)

Because I, I was thinking, you know, because that person. Yes. Also asked, you know, doesn't that seem to disrupt the checks and balances? Yep, because it says, they say having the power seems to negate any judicial check on the executive branch, as crime quite literally can be repaid through pardons. And yes, we have checks right from each branch on the other branch, but there's also the balances part. And so the judiciary has a check. And a lot of things that the President does are reviewable. I mean, unless you sit on this Supreme Court, then they have that unitary executive thing that limits the Court's abilities to review some of the decisions by the executive branch. But the initial intention was for the judiciary to check the executive. Now to balance that out, there has to be a check on the judiciary by the executive. And that's right in power.

B (4:52)

That's right. That's exactly right. It's seen as an, it's a chance for, for the pre. The President in our case to actually push back against over aggressive use of judicial powers. Okay, so the second question comes to us from if you like, which presumably was this person's answer to the question of whether or not we could identify them. In any case, if you like, says the pardon power of the President is described in the Constitution as, quote, the President shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. How does the exception impact this power? Does it only restrict the president from pardoning someone's impeachment, or does it mean that someone who is impeached can't be pardoned? Or does it mean that a president who is impeached can't pardon anyone? Well, the restriction. Yeah, definitely not. Or kind of, in a way, if you get impeached and convicted, you lose the presidency and therefore lose the pardon power.

A (5:54)

If you get removed. Right. If you get removed because we have a. Donald Trump has been impeached twice, but he is the president.

B (6:01)

Yeah. Dodged conviction twice. But no, the. The exception applies specifically to. It limits. It is the only explicit limit on the pardon power, and it limits the president from pardoning someone else who has been impeached. So let's say you're a federal judge from being impeached. Yeah.

A (6:24)

If you like. They can't pardon the impeachment because that negates the legislative check on the executive.

B (6:30)

Yes. You can't pardon the person before they're impeached, during the process of impeachment or after. So if you get, let's say you're a federal judge and you get impeached and you lose your job, the president can't come in and say, oh, I pardon you. Give him his job back. Does not work that way. And the reason for that limitation is because the impeachment process is distinctively political. Even though it sounds like a criminal process or a judicial process, it's not. It's political. It's done by Congress, and therefore the president's kind of benevolence and the pardon power doesn't apply there.

A (7:13)

Yeah. And you'll remember that the Republicans argued quite a bit during Trump's two impeachments that there was no crime committed. And they were trying to say it says high crimes and misdemeanors. But the argument to that is it's not criminal, it is political. And there doesn't have to be an actual crime named, although the Democrats did name crimes like actual.

B (7:36)

Plenty of crimes.

A (7:37)

Crimes under, under criminal law. That kind of strengthens your case for impeachment.

B (7:41)

But.

A (7:42)

Yeah. And, and also it's important to note that let's say that federal judge gets impeached and then while a civilian, you know, does some fraud. And since. And, and gets convicted for fraud. And since Trump really likes people who do fraud because he's one of them, he can impeach for the fraud or he can pardon for the fraud, but he can't pardon the impeachment.

B (8:05)

That's right. That's exactly.

A (8:06)

So even if you are impeached, you can still be pardoned for crimes. Just you can't be unimpeached.

B (8:14)

That's right. That's right. All right, and last one on the pardon issue, this comes to us from Worried in Denver. Sure, there's probably a lot of people worried in Denver, but this is one of them. Worried in Denver says we can all agree that this duo is the hottest, most lovely sounding pair of hosts across the Internet. And we are. We're all not worthy of your services that you provide. Thank you. Worried in Denver. I appreciate that. Worried says there was a pardon issued for Tina Peters for Mesa county election interference in a state crime. Worried, why on earth is the president making a spectacle of giving a pardon when it does not apply to state crimes? We all know this is for show, but seriously, why? It accomplishes nothing other than a bragging point at a rally. And then they finish by saying, what else am I missing in regards to spectacle? Yeah, Worried, you're not missing anything. You're absolutely right. The federal, the pardon power applies only to federal crimes. It does not apply to state crimes of any sort in any context. Now, why would Trump do a thing like this that's, you know, that puts us into the very shaky ground of, like, trying to get inside Trump's head and understand his intentions. Sometimes I think he just does these things because he knows that it'll take people like us who are actually, like, observant of the law and think that it's important and follow it. And he knows it twists us into knots. And I think he enjoys that kind of creating that sort of stress. And I also think, like, there's a chance that he thinks I'll just do it and we'll see if it works, even though, you know, many people tell him it won't.

A (10:02)

Yeah, that's what I think. I think he really wants to pardon himself for New York and. Or have his successor pardon him for New York for his New York state crimes of 34 felony counts. He's testing the law. He's testing his unitary executive with the Supreme Court. He wants to see if the conservative justices, and I use the word conservative kind of jokingly here, if the, you know, the six justices that were bought and paid for by dark money, if they will allow him to pardon state crimes, if they'll expand the presidential power under the unitary executive theory to allow a President to pardon state crimes. I think he's testing that. You know how he kind of tests boundaries, and he won with the immunity boundary that we. That we all thought for sure the Supreme Court would never allow a president to be above the law, but here we are. So that's honestly what I think it is, and it's red meat for the base. And if he loses, he can have another grievance when he airs his grievances against the corrupt judicial branch that he's trying to so desperately discredit and tear down.

B (11:14)

Yeah, all fair. All fair game.

A (11:18)

All right, so these are all good questions. I mean, I. I don't think that there's a way, especially with this Supreme Court, to curtail the pardon power. It's pretty clear in the Constitution. I think it would require a constitutional amendment. This isn't like, for example, there. There are certain ways we can overturn Citizens United by having state laws that impact the power of corporations, because states have power over the power of corporations in their specific states. So you can kind of sort of effectively overturn Citizens United in your state. Same with Roe v. Wade. Once that was overturned in the Hobbs decision, you have individual states putting in their Constitution to protect those rights. And that federalism, that ability for states to manage themselves, pushes back on the president's ability to pardon state crimes. But, you know, I think that he's probably looking for the same sort of result by dismantling federal ideas and making. Leaving them up to the states. But with the pardon power, you can't really do that. And there wouldn't be any way for. Even if we get Congress back, even if we get a super majority and pass a law trying to curtail Trump's pardon power, it would be akin to a Voting Rights act or a codification of Roe v. Wade or gun control on a federal level, this Supreme Court will quickly and swiftly dismantle it and gut it. So it would require a constitutional amendment, which the Republicans for a very long time have been working on getting control of many states through their legislatures and governorships and redistricting and gerrymandering so that no one can get a coalition of 37 states together to amend the Constitution.

B (13:19)

Yeah, I think constitutional amendment is. Is a stretch in. Under any facts. And on this one, I don't think there's any support for this whatsoever to limit the pardon power. Each side wants it as exclusive and unlimited as it is right now in the event that their party takes the White House. So. And it's kind of always been accepted that way all The Supreme Court rulings on pardon power, very consistent. They all go in the same way. That it is, is absolutely limited by that exception we talked about earlier. It is absolutely limited to federal crimes, but beyond that, there's no limits on it. And so I don't see this really changing in any substantive way. Certainly not by this nonsensical pardon of Tina. Non pardon of Tina Peters.

A (14:04)

Yeah. And I remember a lot of folks wondering if we could litigate corrupt pardons. And I think the answer there is no as well. It's such a broad power. I mean, you could try to bring a fraud case by saying somebody handed somebody a bag of $50,000 and received a pardon, but I still think that you would lose, especially since the Supreme Court gutted the bribery laws. But, you know, that's neither here nor there. But selling pardons, I don't think you'll ever see anybody brought to court for selling a pardon. No, because it's being done.

B (14:43)

Not a president. You could stumble into a fraud case by, by helping a president because you're not the president. You don't have that same, you don't have the power. So you're not shielded by that. But, yeah, it's not, it's not going away. It's not, it's not going to be substantively changed in any way that I could see.

A (15:02)

I agree, but, and you know, I wish I could say that the Supreme Court will definitively say that Donald Trump can't pardon Tina Peters, but I don't put anything past the Supreme Court at this particular juncture. Feel the same way about the birthright citizenship question. I'm, I'm like, I feel a hundred percent sure they won't curtail birthright citizenship, but I felt the exact same sureness about presidential immunity. And here we are.

B (15:30)

Well, that's the perfect segue because our next question deals with that. Exactly.

A (15:35)

Amazing. Well, we're going to take a quick break first and then we'll come back with that. Thank you so much, everybody. Stick around. We'll be right back.

B (15:49)

Welcome back. All right, welcome back, everybody, to the Back by Popular Demand all question show. The next question comes to us from Sam, and Sam says since birthright citizenship is an executive order, if Trump does win, will the next Democratic president just be able to rescind said executive order? So I'm not sure I understand the if Trump does win piece there, but obviously the president signed an executive order basically eliminating birthright citizenship under certain circumstances, and that is currently before the Supreme Court. So it's a good question. And it, and it tells off your comments that we, that we were just touching on in the context of the pardon in this one. Sam I'd say, I'd say, Alison, I share, I don't know why, it's probably irrational, but I share your optimism that the Supreme Court is going to come down and preserve birthright citizenship. But here's where it gets a little sketchy. If the Supreme Court goes the other way and they eliminate birthright citizenship, they could do so in a way that not just affirms what the presidential order said, but, but also eliminates the legality of birthright citizenship in a way that would stand beyond the presidential order. So, yeah, generally any presidential order, executive order can be rescinded and replaced by the next president. But whether or not the next president could fix a problem with birthright citizenship, we won't know that until we know what the Supreme Court decides and what they base that decision on.

A (17:33)

Right. Because they could say, yeah, I know there's no such thing as birthright citizenship that was meant for confederates in the Confederate times, for freed people, et cetera. Right. And that would then apply. Rescinding the executive order wouldn't change that precedent of interpretation of law by the Supreme Court. Again, I don't think they'll do it. I did recently have a win, though, on being sure that the Supreme Court would do something. I was pretty sure back on November 3rd when they asked in the deployment of the National Guard to the Northern District of Illinois case, when considering the stay, they asked the parties to define regular forces under Title 10, Section 12, 406. And I thought because of Marty Lederman's amicus brief on, on what the definition of regular forces was meaning regular forces. Does it mean the military, Army, Navy, Air Force, Marine, or does it mean local federal officers?

B (18:39)

Right.

A (18:40)

Because Trump was arguing the local federal cops weren't taking care of crime. So 12406 allows me to send in the National Guard. Marty Lederman was arguing and Illinois was, they were arguing no regular forces means the military. So you can only send in the National Guard when regular forces fail. You haven't deployed the military, so they haven't failed or not. And so the conditions haven't been met to deploy the National Guard under 12406. And I was like, the very fact that the Supreme Court is asking the parties to define regular forces leads me to believe, and I said this two months ago, that the Supreme Court will rule against Donald Trump's authorization to deploy the national guard under 12406 and that's what they did this week. They came back. Now, of course, Gorsuch, Alito, and Thomas dissented, so we know where they stand on this. But six to three, they came back and said, no, the president doesn't have authority in this instance to deploy the National Guard because regular forces didn't fail. So there's no authority here right now, as things stand under 12406, for him to do that. And I was like, oh, my God, you did something right. I felt like Inigo Montoya in Princess Bride Fezzi. You did something right. I won't let it go to my head. You know, I felt very surprised, pleasantly surprised. And I think they'll rule the same on birthright citizenship, and I hope they'll rule the same on the. On the state pardon power thing, state crime pardon power thing, if it. If it comes to it. But again, I am a lot less certain than I have been in years past with what the Supreme Court will do. Because you think the law is the law. It's pretty black and white.

B (20:25)

Yeah. I mean, well, look, burn me once, shame on you. Burn me twice, shame on me. Right? So we all got burned with the immunity order in a way that none of us will ever forget. And so you have to go into every one of these issues with a degree of skepticism.

A (20:41)

But you're now like it now like an abused spouse. We're like, oh, they did something nice. You know, they said, it's okay.

B (20:49)

Not for the president to come in. The president can't send the state National Guard into the state. I mean, like, of course, but. No, there's no. Of courses anymore. It's like, I agree with you. It was a rare pushback by basically Roberts, Kavanaugh, and. And Barrett. Right? That's the. Those are the deciders of these things. So, yeah, that was a good. A good ruling. Glad to see it. All right, shall we continue?

A (21:17)

Yeah, let's. Let's keep going.

B (21:20)

This one next comes to us from Anonymous. Anonymous says, dear sanity Savers, thank you for all you do to help explain why we are not all crazy and that, yes, our system is designed to be better than this. My question this week is, can shouldn't Lindsey Halligan be disbarred for what she tried to pull with the grand jury? Or is ignorance of process a legitimate excuse not to hold her responsible?

A (21:47)

Oh, good question.

B (21:49)

Yeah. Yeah.

A (21:50)

Because, like, yeah, I think the answer is, no, you can't. You can't plead ignorance when you're a lawyer.

B (21:57)

No, you cannot. I mean, yeah, you can't. Do a job that you had to take a really hard test just to qualify and be licensed to perform. You can't then just like shrug your shoulders and go, well, I didn't know. Every time you wildly screw something up and violate somebody's rights or prejudice the rights of your client. So, yeah, I mean, I think there's a very solid argument for, for some state to go after Lindsay Halligan's license to practice law. I don't know where she's licensed now. I assume Florida and possibly in other states as well. And that's actually the group that monitors that. So I know we had a bunch of questions people asked about like the State Bar Association. The State Bar association is really just like, it's just like a professional organization of lawyers that they get. They do charitable things. They do like professional, you know, career training, stuff like that. It's actually the state bar itself. There's some. Usually it's run out of the Supreme Court of any given state that maintains the standards for licensing attorneys for providing the testing, you know, the bar exam that's necessary, you have to pass to get in. They also establish the rules of continuing education. Attorneys have to take, you know, so many credits every couple of years. And they are typically the, the spot where you file a complaint against an attorney who is alleged to have committed malpractice or, you know, basically failed to live up to those standards that the bar maintains. I mean, Lindsey Halligan stepped into a situation she had no experience, no direction for. I think it's entirely possible that she deliberately misled the grand jury. And we're going to find that out as hopefully if more details come out as to exactly how she presented the Comey case and potentially in the Letitia James case as well. So, yeah, we'll have to see what happens. What do you think?

A (24:04)

Yeah, and we might see some of those details. We know Jim Comey was able to access the grand jury materials at least after three or four rounds of them, handing over bits and pieces of them. But now they seem to have given up on trying to re indict everybody. And they are, they're now appealing these, the decision to, to disqualify Lindsay Halligan, private citizen who went into a grand jury room and got, got a, got some indictments. So they are, they have, I think, abandoned their re indictment campaign after the fourth try for Letitia James. And I think they're moving to, to appeal and they are moving to appeal in both cases. And in the responses provided by Jim Comey and Letitia James's lawyers, we may see some of that information, but we may not. They may be focusing solely on her, the legality of her appointment, because I think that's the argument before the court. They might say all that stuff is extraneous. We don't know what that's going to look like. I think we may, you know, if they, if for some reason the Supreme Court decides that Lindsay Halligan was appointed properly. And again, I'm not going to put it past him. Even though Clarence Thomas said Jack Smith was not appointed properly, non sequitur, apropos of nothing in, in his concurrence in the immunity ruling which led to Eileen Cannon dismissing the documents case. I'm worried that we won't learn what happened behind those grand jury doors until and unless Lindsey Halligan is reinstated and those cases come back to life and we get back to remember how we said if she's tossed out, the only way we're going to learn about the vindictive and selective prosecution motion, the Bronston literal truth defense motion, all of those misconduct in the grand jury is if the case is back on, and then they have to turn to those reasons to dismiss pretrial. So I don't know. It's. It's a long shot and there's a long way to go to find out anything about what went on in the grand jury room. But she certainly can be, there can be motions for sanctions. Sanctions can include referral to the state bar, which can include up to and including the punishment can be fines or disbarment. But Andy, what I think we really need is like considerable reform at the bar level. I mean, it took years to disbar Rudy Giuliani and John Eastman. Years. And then in Texas, the complaint to disbar Sidney Powell was just thrown out and never refiled again. I think that some good trouble and some really good work that people can do and can start doing now to help reform our system is to take a look at your state bar association because, you know, we were, we were never in a position where top lawyers in the country would be lying crooks. So it wasn't ever. We really didn't need like super big state bar reform for the, you know, the disciplinary councils that happen. And I think we should. If you, you know, if you're in that field, it might be a good opportunity to start really focusing on like, rules, you know, bar disciplinary rules that have teeth and that totally. Ears.

B (27:31)

Totally agree. The processes are, are opaque.

A (27:34)

There's.

B (27:34)

It takes forever. You don't know what's going on? It's hard. It's obviously wildly different state to state. You know, you look at medicine, not that medicine's perfect, but at least there is a system where patients who believe they haven't received the appropriate standard of care can file lawsuits against their physicians. And, you know, that that's sorted out through malpractice cases. It really isn't an equivalent in, in the legal profession. Can you sue a lawyer for malpractice? You can, but there's so many kind of privileges and, you know, the, the, the deck is really kind of stacked against you. They're, you know, handling a legal case is not the same as diagnosing someone's illness and prescribing the correct medicine. So it's a, A much. Kind of. Much more of a gray area, not a subjective. Yeah. The only really recourse you have is like the lawyers policing themselves.

A (28:28)

Yeah.

B (28:29)

And so that's the process that I agree with you. I think should be more clear, more transparent and quicker. I mean, for God's sakes.

A (28:37)

But anyway, it shouldn't take that long. But no. All right, we have to take another quick break, but we have a lot more questions to go, so everybody stick around. We'll be right back.

B (28:49)

Foreign. Welcome back. All right, on we go with more questions. This one comes to us from Susan in the boonies. She says, I realize Andy knows a lot about anti terrorism regarding the shooting of the two West Virginia National Guardsmen in D.C. on Wednesday by an Afghani. I'm curious as to Andy's opinion about this Instagram post regarding a false flag operation. I have not included the act. The. The very long link to the Instagram post, and that is an intentional edit. All right, a couple things about this one. First of all, anytime you start, like, seriously considering false flag operations, you're drifting dangerously close to conspiracy world. So false flag operation. I have no concerns that the murder committed by this, a former Afghani soldier who is here in the country on a. First on a visa and later on a. An asylum grant of asylum. I have no concerns that this was a false flag operation. A false flag operation. Also a wildly misused term. It actually is it. The definition of a false flag is when someone reaches out to the agent of a government. Let's say someone reaches out to the Russian government. If the US Government finds out about that person's interest in talking to a u. A Russian government official, and then they insert a US Operative posing as a Russian to interact with that person, that's a false flag. Operation.

A (30:34)

Okay, but the, I think the more colloquial term that we've all come to know from the right wing media sphere is hired. People hired to commit a crime in order to generate some political idea. Right. Like a Wag the dog type thing. And I think what, I haven't seen this Instagram post, but I'm assuming they're saying that Donald Trump sent this person to do this shooting so that he could then say we have to block all asylum seekers from Afghanistan or whatever. Do I have that right?

B (31:09)

Yes, yes, that's right.

A (31:11)

So.

B (31:12)

And that's why, you know, I cannot. From my background, my training and experience, I really, I try to limit myself to the facts that we know, and none of the facts we know support that conclusion. This, I think when the investigation is done and when we may find some of this out, because there will be a prosecution of this individual, what we're going to find out is this was a guy who lived a very tough, violent life in Afghanistan during the war, work that he did at the behest of and at the request of the American government and particularly the CIA, and was brought to this country because he probably would have been killed after we exited Afghanistan that that assessment was made and his family was one of the first to get out based upon the work that he had done at our request. Then once here, he lost it. He lost his kind of connection to reality. He. All accounts are that he went into a deep depression and exhibited all kinds of symptoms of really startling mental illness and depression and became disconnected from his ptsd. And, you know, as you can imagine, from someone who's experienced all these things, and I'm not trying to generate sympathy for him or, or certainly not trying to defend what he did, but that's, I think, the most of what we're going to find out here. So I don't really hold out a lot. I don't see the very elaborate conspiracy that it would have taken to recruit this individual, cause him to do this thing. I feel like this is probably more someone who ended up at a really bad place and did a terrible. Made a terrible, terrible decision.

A (32:59)

Yeah, I tend to agree with you. There would have to have been so many people to, to orchestrate that and pull that off, of course, that I don't think that it's a reasonable assumption. So. Yeah, yeah, yeah, we'll be watching the trial. For sure.

B (33:15)

For sure. For sure. Okay, next question comes to us from Laura M. And Laura starts by saying to the most splendiferous speakers, I was wondering about the need for a separate warrant for the Comey investigation. I know that, for example, police can't go looking for an illegal weapon if the warrant is to search for drugs. But if they find an illegal weapon while searching for drugs, they can absolutely prosecute that unless mock trial has completely failed me. I believe that is called the plain sight doctrine, established under Horton. But I'm not a lawyer, so please don't quote me on that. Sor. Sorry, Laura already quoted you. Is it possible they garnered information they used against Comey that way? I doubt their intentions were that benevolent or legitimate, but inquiring minds still want to know. Thanks for all you do. Well, that's a great.

A (34:03)

I think I know the answer to this.

B (34:05)

Yeah, it's a great question. Okay, go ahead, fire away.

A (34:09)

When in the plain sight doctrine, in your example, where they see some other crime going on, when they're in there searching for some other crime, they have a warrant to be there. Yeah, they have a warrant to be there. The people did not have a warrant to be rummaging around in those documents at all for this particular crime. But, I mean, that's a really interesting thing. Like somebody's strolling along through the DOJ files and, oh, hey, look at this. And they find a new crime that's illegal search and seizure. So, but. But talk a little bit, Andy, about how this squares with the plain sight doctrine.

B (34:44)

Yeah, for sure. And. And that, Laura, well done. You got the name of it correct. And I think also that Horton site is probably right, but don't quote me on that one. Plain sight is basically what he described. If, while if you have a warrant that gives you the legal right to search a place or a thing, and while in that space you see something that's obviously contraband, you can seize it under the plain sight doctrine. But here's the catch. If you have a search warrant, as you said, for drugs, and let's say it's a search warrant to enter a home because of the nature of drugs, they're small, they could be hidden anywhere. That gives you the ability to search any space in that house where drugs could be hidden. And therefore your op. Your opportunity to see other things in quote, unquote, plain sight is pretty broad. But let's say your warrant was for a stolen car, that warrant for a house, like to search a house for a stolen car, that's only going to give you the right, the legal right as a law enforcement officer to go and search a space that could house a car. So you're talking about the Garage, maybe the backyard behind a fence or something like that. So that would limit what you could see in plain sight. So that's basically how plain sight works. But you are correct, Allison, that in this case, the problem is that the warrant they used in 2017 or 19, I can't remember, 19.

A (36:10)

There were four warrants. 2017, 2019. Durham did it again in 2020.

B (36:14)

Yeah, the. The original warrant that was used to seize Dan Richmond's information, computer information, specifically said, specifically limited how the agents could use that information. The warrant itself says once you've reviewed this in pursuit of this investigation, if you don't find it, and you have to get rid of any irrelevant information, so anything you don't actually use in a prosecution, you must get rid of. And of course, they never brought a prosecution at that time, so they were legally required by the warrant itself to get rid of all those things. They couldn't go back and look, and they shouldn't have held it at all. And even if they did unlawfully hold it, they shouldn't have gone back and looked at it later. This is very different than the typical warrant. If you get a warrant for someone's telephone information, let's say, their toll. Congressman, perfect example. Typically. Now, I don't think this would apply in that case, but usually in a normal criminal investigation, like, let's say, of a drug gang, and you find out someone who's a member of the gang and you get their telephone number and you. You serve a warrant to get toll records. Probably would only need a subpoena, but whatever. Once you receive those toll records, you can. You can keep them in your system and you can go back to them and look at them in other times. And that's how, over years and years and years, you build up a intelligence base regarding the communications of a crime family or a drug gang or what have you. But this warrant, according to what we've read in the legal filings, was specifically limited to that investigation.

A (37:51)

Yeah, that's super interesting. And I mean, you're right, Andy. When the. When the judge puts on the warrant, these are the four corners of this warrant. You can't go outside of them.

B (38:00)

That's it. Yeah, you're stuck. You're stuck.

A (38:02)

There's some sort of a fairness doctrine, but, I mean, like you and I talked about, we saw this. One of the very first things Lisa Monaco did when she got to the Department of Justice after the insurrection was she applied for a warrant. They had a ton of stuff that they had just seized from Rudy Giuliani. But that investigation was about what he had done in Ukraine.

B (38:26)

Right, right.

A (38:28)

And so one of the very first things she did even before Merrick Garland got there, was applied for a warrant to go through his stuff again. But in search of evidence for January 6th.

B (38:39)

Yeah.

A (38:40)

And so, you know, and that took a long time to get that warrant. And again, you know, I know that a lot of people are like, oh, it takes so long. It takes so long. But the reason they go through those due process steps is so that it doesn't, you know, that the, if, you know, you bring a case and there's a pretrial motion for unlawful search and seizure, you get the Jim Comey treatment for, for your prosecution.

B (39:03)

That's right.

A (39:04)

I say you, you illegally went through. If Lisa Monaco just said, hey, we have all this Rudy Giuliani stuff for the Ukraine thing. Let's, let's go look at it for January 6th stuff. And you do that without getting a warrant.

B (39:14)

Yeah.

A (39:14)

When the, when the warrant specifically to collect that stuff was for Ukraine only. And these specific crimes only, they even sometimes, you know, they're supposed to list crimes on judicial warrants and subpoenas. Sometimes. This administration doesn't do that.

B (39:28)

Apparently not. I'll give you another example. Anthony Wieners laptop, which was seized by the New York office of the FBI for the purpose of looking for evidence that he may have had a relationship with an underage female. And during the course of looking through the laptop for that information, they saw emails in there that were consistent with, I think, some of the Hillary Clinton email domains that were part of the Clinton email case. And they asked us, oh, we have this laptop and we want to look at it for these other emails. And our response was, no, you cannot. You must get a search warrant. And of course, they didn't. And then there was this delay of about a month, I think, before they finally got the search warrant. And at that point, it was very late in the investigation. Everybody knows what happened then, but, yeah, that's just how it works. You can only deal with evidence in the way that you legally obtained it. And when you need to go beyond whatever that initial authorization was, it requires going back and getting any warrant, which is a good thing to protect people's rights.

A (40:34)

Right. Especially if you're the person being searched.

B (40:36)

That's right.

A (40:36)

Okay, we have a couple more questions. We're going to take one last quick break and, and please stick around. We'll be right back.

B (40:52)

Welcome back. All right, the questions continue. This one comes to us from picky 19. Picky says damn. Love the pod. I love that this is like. It's such a high energy beginning. Well done, Picky. Just to complete the circle, re Nachmanov's particular complaint about the missing time from the grand jury, the two signed indictments, and having essentially less than grand jury quorum for the updated indictment. So just to back up this is Picky wanting to give us additional details about the kind of jury grand jury nonsense precipitated by Lindsay, the infamous Lindsay Halligan in the Jim Comey case, and whether this problem should have ever happened. So Picky goes on to say this paperwork snafu was so avoidable having been a grand juror and serving as the clerk for three months. I remember the ada, that's the assistant district attorney, submitting each charge of the accusations on a separate piece of paper so that if there was a no bill on one charge, it would not affect the other charges from the presentation. So what he's referring to here is the infamous. They submitted three charges in the Comey indictment and they got no billed on one of them. So they just wrote up a new charge sheet and never had the grand jury even vote on it, which is absolutely not good grand jury proceeding.

A (42:22)

No, they have the jury four person sign it and then somebody the, the deputy for a person just watch like, yeah, that's not. Grand juryism is not a, a way to indict someone.

B (42:35)

That's right. That's right. So Piggy goes on to say a 15 count bill, meaning a 15 count indictment. Well, we'd take 15 separate votes and hand up 15 signed pieces of paper to the judge. Had Halligan just provided the jury three separate doc documents each with one charge. All she needed to do is present two true bills. Nothing irregular there. The grand jury has a person's life in their hands and each count needs to be reviewed. So I, I put that in here. Although there's not really like a clear question. I, I appreciate getting this kind of perspective of an actual grand juror who did this for three months in some state and was also served as the foreperson. So Picky knows what they're talking about.

A (43:17)

Hmm, that's really interesting. Yeah, I have never served on a grand jury, so. And I'm kind of sad about it. Like.

B (43:26)

Be careful what you wish for. The next subpoena will be dropping for you. Or not. Subpoena, jury, jury notice.

A (43:33)

Who knows, we might get a subpoena for podcast could happen too. You never don't rule it out, but especially now. I mean there was a whole a great Book, I think called we the Jury or the Power of the Jury. There's a lot, especially in this administration where, you know, Andy, you and I talked about last week, 79. They have a 79% success rate now at the D.C. u.S. Attorney's office. 21% in the last eight weeks have been dismissed 21% of the cases, whereas their normal record for the last decade is half a percent. It's just absolutely unheard of, which we say like every other day in this administration. I understand, but it's the, that's the power of the jury. Right. We got the sandwich guy jury. We got the.

B (44:20)

Yeah.

A (44:21)

I mean there's so many petit and grand juries that are acquitting these trumped up charges on assaulting ICE officers, things like that, that there's a lot of power in a jury. We had that split verdict this past week for Milwaukee Judge Hannah Dugan, which I didn't see coming. I thought she would be acquitted. But you can do, you can deliver an inconsistent verdict under the inconsistent verdict doctrine from USV. Done 1932. I think I'm off the top of my head.

B (44:52)

That's true.

A (44:52)

It doesn't have to make sense. You can, you, you can actually use that as a negotiating tactic in a jury room to, to split a verdict like that, even if the stuff for one count has to be present for the second count to.

B (45:05)

Yep.

A (45:05)

Count anyway, they're totally allowed to do that. They have a lot of power. And I think, I think that we're starting to see exactly how much power they have to push back against a weaponized Justice Department.

B (45:21)

Totally. And look, this is kind of like goes back to what we talked about in that very first pardon question. This was built into the system intentionally by our founding father because they were sick of a system where the king got to decide everything. And they wanted a system where essentially the community could weigh in on whether or not something was a crime and should be prosecuted. This is the, that's the opportunity for the mores and the standards and the traditions of the community to weigh in to the process that determines whether or not somebody's liberty is taken away. And yeah. Does it happen in normal times? Does it happen a lot that people don't, that people get a no bill? That the grand jury refuses to believe? The prosecutor's presentation of probable cause? No, it's incredibly rare because the standard is so low. But you're seeing it now. It's the community saying this is bullshit. We don't agree. We don't think a guy in A fit of pique, throwing a sandwich at a guy wearing a Kevlar vest amounts to a crime? It's nonsense.

A (46:25)

Body armor? Yeah.

B (46:26)

I mean, geez, come on. So it's.

A (46:30)

This.

B (46:30)

Is the system working? Like you said, grand juries and pettiguries are allowed to find someone innocent of a crime without any basis in evidence. They're allowed to ignore all the evidence and just declare you innocent. They can't do it the other way. They can't say, we think you're guilty and render that judgment without considering the evidence. But they can do it in a way that's merciful. So, yeah, it's. It's. Who.

A (46:57)

Who.

B (46:58)

Whoever thought we would need the grand juries and the pedigrees to be standing up and protecting us from authoritarianism in this day and age, but here we are.

A (47:08)

I think the House of Representatives should work like jury duty. You just, you know, you get a letter in the mail, it's like, hey, you're going to represent your district for the next two years, that we're going to pay you $174,000 a year, and you're going to get health care and stuff. You're right. It's you. Congratulations.

B (47:25)

I totally love that you filter out all the political strivers and just get a bunch of people like, all right, you know, I'm gonna count by day, but I'll light up the books and tell people what I think. That'd be awesome.

A (47:41)

I think so, too. And there I was actually a cool proposal in a book I read. I think. I can't remember which one it was. It might have been Brian Kloss's book on power corrupting people. That, that there's an idea of, you know, we have the House Representatives, we have the Senate, but let's have a people's house like jury duty, where you also get a vote. And you. You just get called up. Just the regular average citizen gets called up. And you, you know, you. You. You also get to vote on a bill. Yeah.

B (48:07)

Nah, this budget seems like too much. I don't know why. It's just a lot.

A (48:11)

This is stupid. Yeah. Hey, that's. That's. That's. That's direct government by the people. And.

B (48:19)

But I'll tell you, big props to the jurors of the world because everybody knows about jury duty. You think of that in the terms of a pet jury, you know, oh, no, I'm gonna have to go sit in the courthouse for a few days, and if I get put on a trial, I might have to, like, spend a week or two doing that, it seems it's a big responsibility, and it really can disrupt your life. Times 10 for being on a grand jury. Grand jury sit for months and. And they meet once or twice a week for every week during that period. And it's not a quick meeting. Cause they might. They're usually there for, like, the most. The better part of the day, and they get. They sit there for one case after another after another after another. I have testified in front of many grand juries as an agent, and it's tough, so. And I actually had an agent friend who got selected for grand jury duty, and she, you know, went to the Bureau and said, like, can I get out of this? And they were like, no, you have to do it. So every, I think, two afternoons a week, she had to go over to the courthouse and sit on a grand jury. But, yeah, it's. It's really important work, and I appreciate people doing it.

A (49:24)

Yeah. And they're very smart. I. You know those questions that came back in the Dugan trial? I was like, is there a lawyer on this jury? Um, they were very thoughtful and very considerate. I. Again, I think. I think they got it wrong on the 1505 felony count, but, I mean.

B (49:38)

Yeah, Yeah. I mean, they put some time into it, so. Yeah. Yeah, we'll see. All right, do we have time for one more?

A (49:47)

And we have time for one more.

B (49:48)

All right, here we go. This one comes to us from Carrie W. In Illinois. Now, Carrie has sent us a couple questions, and I really like the way that she framed this one, so I think it's a good one to end this show on. Carrie says. Hi, Allison and Andy, thank you for making a podcast that actually makes dense legal stuff feel human and urgent instead of abstract. In this episode, you tied together the Comey grand jury mess, the lethal boat strikes, and the Epstein Transparency act, all circling. What happens when the people enforcing the law don't feel bound by it. If you could wave a wand and make one structural reform to DOJ the courts or Congress to rein that in, what would you choose and why? It's a tough question.

A (50:37)

I like my. I like my People's House idea.

B (50:40)

Yeah, yeah, that's one.

A (50:41)

I mean, but honestly, wait until Democrats have the White House again and then add four Supreme Court justices. There needs. There needs to be one for each circuit court.

B (50:51)

That's not a bad one. I. It's funny that you went right to the Supreme Court, because that was. That's my. That's my reform as well.

A (50:58)

They saw.

B (50:59)

I think they should be term limited.

A (51:01)

Oh, yeah.

B (51:01)

They should be out after the fact that we are locking ourselves into nine. People's very unique perspective on the law for the term of their natural life is insane. Like, that's the limiter here, is who's healthy then.

A (51:22)

We only live to be 50 years old.

B (51:25)

That's what I'm saying. This is not like, what if one of them, God forbid, suffers from Alzheimer's and loses the ability to continue on? And having had a very close relative go through this path for years and years and years, I know they're. What if they're not. They're not capable of deciding not to do it anymore. Like we have no recourse.

A (51:48)

Yeah. And there's a way to do this, by the way, without amending the Constitution. And I learned this from Ellie Mistall, who's written some amazing books about the Constitution and why we are where we are. And it kind of all starts with the Confederacy being let off the hook. But he talks about instead of changing the lifetime appointment thing to a term limited thing, he says, like regular, like other federal courts, there should be a senior status involved. You're. You're still appointed for life, like the Constitution says, but at some point you go into senior status and somebody else takes your seat on the bench. And maybe you do some, you know, you're on the Judicial Review or the judicial conference, or you do some other work for the court, but you're no longer a vote on the 9. At a certain point after. After serving a certain amount of years, you are automatically put into senior status on the court.

B (52:41)

Yeah, something. Something's got to change that. And yeah, I just this. We have the incentive. Right. The structure builds an incentive into every administration to do whatever is necessary to pack the court with people who are consistent with their ideology and to do it with younger and younger people of less and less experience. I just feel like that's. There are so many obvious drawbacks to that. And tell me what's good about it.

A (53:13)

Nothing's good about it.

B (53:14)

No.

A (53:15)

But yeah, I think you get 10 years and then you're in senior status. Right.

B (53:18)

There you go. I mean, 10 years is a nice long time.

A (53:21)

Yeah. And it's not something that, I mean, because when you're on the court for 40, 50, 60 years, that's multi. Generational.

B (53:30)

Yeah. Yeah. And I just, you know, you have.

A (53:34)

No, not in the spirit of the Constitution.

B (53:36)

Right. There's nothing about our government that convey. Should convey your right, you know, forever. It's not a Right. It's a privilege to serve, and it should have some boundary on it to. To bring in new blood, bring in new perspectives, to open, you know, not to just like now you get a bad. Like, look at the situation we're in right now. Presidential immunity. You get a bad. A terrible opinion. And we are stuck with that until this super majority of conservatives, what ages out, moves on. And then, of course, there's other factors that impede the ability to change that. You'd have to get a case, which means somebody, some president would have to get, like, basically commit a crime they couldn't be investigated for. I mean, it's. That's very complicated. But, yeah, that's the one I would go for if I had.

A (54:28)

In these times of heightened political violence because of certain presidents, it puts justices in danger, you know, for the longer they're on the court. So, yeah, I'm with you. Thirteen justices, one for each circuit, 10 years, and then you're put into senior status and then jury duty for a people's house.

B (54:51)

Yeah.

A (54:52)

Oh, man, I got a House of Representatives summons.

B (54:56)

You could get, I don't know, a physicist or you could get like, whatever. You're just gonna. Exactly. Upstanding American with no criminal record. That's. That's the. This, The. The requirements.

A (55:13)

Very cool thought exercise, Carrie. So thank you so much for that. Thank you for all of your questions. Again, we're going to be doing these questions episodes more and more because we get so many thoughtful questions from y'.

B (55:24)

All.

A (55:25)

The. The Unjustified Jury submitting jury notes to us. You can do that by clicking on the link in the show notes and submitting your questions, and we will do our best to answer them. These are always so much fun, and I enjoy doing them. Everybody, I hope you had a wonderful holiday season. It's going to be a long year. It's going to be an interesting year. We've got midterms, we've got primaries coming up, and we're going to be covering the Department of Justice for the foreseeable future. There is still a Department of Justice. I believe.

B (55:56)

There is, but it kind of sucks.

A (55:59)

That should. That should have been what we called the podcast. It's part of the Justice Sucks.

B (56:08)

Yes, we do have one, but it sucks. I'm sorry. Yeah.

A (56:12)

Yeah. All right, everybody, thank you so much. Any final thoughts before we get out here today?

B (56:16)

Same. You know what? It's. It's a new year. Let's, like, let's get fired up and charge into the burning barn together.

A (56:25)

So.

B (56:26)

Yeah, I mean, like, I hope everybody has had some chance to have good times over the holidays. Recharge the battery a little bit and bring your, your energy and your, your curiosity is just as important and your good health and, and strength into this year. We're gonna need it. But we're all in here together doing the same thing, trying to find our way through this, this craziness. So we're, it's a privilege for us to be here every week to talk to you about it and we look forward to doing that.

A (56:55)

It is, it's truly a privilege. Thank you, everybody. We'll see you next week on Unjustified. I'm Alison Gill.

B (57:00)

And I'm Andy McCabe.

A (57:02)

Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey with art and web design by Joel Reeder at Moxie Design Studios. The theme music, music for Unjustified is written and performed by Ben Folds and the show is a proud member of the MSW Media Network, a collection of creator owned independent podcasts dedicated to news, politics and justice. For more information, please visit mswmedia.com.