Episode 108 | New Jack City

Summary

Episode Summary: Episode 108 | New Jack City

Release Date: December 29, 2024

Hosted by Alison Gill and Andy McCabe, Episode 108 of Jack delves deep into the intricate web of federal investigations surrounding former President Donald J. Trump. This episode, titled "New Jack City," offers a comprehensive analysis of recent legal developments, potential retaliatory measures by Trump’s team, and significant court cases impacting the landscape of American politics.

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1. The Matt Gaetz Ethics Committee Report

The episode opens with a detailed discussion of the recent findings by the House Ethics Committee concerning Congressman Matt Gaetz. Gill and McCabe explore the implications of the committee's report, highlighting Gaetz’s alleged involvement in statutory rape and potential obstruction of justice.

• Notable Quote:
  • Andy McCabe [02:04]: "It's a roller coaster ride of emotions. I laughed, I cried. I didn't know when to stop."

Gill emphasizes the discrepancy between federal and state laws regarding statutory rape, noting that while the Department of Justice (DOJ) did not pursue federal charges against Gaetz, Florida state laws could have provided a firmer legal basis for prosecution.

• Notable Quote:
  • Alison Gill [04:24]: "Why Pam Bondi didn't open investigations into statutory rape... I think that the answer is pretty clear there."

The hosts critique the DOJ’s reluctance to engage more robustly with congressional investigations, suggesting possible protective measures taken by Trump's allies to shield Gaetz from federal prosecution.

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2. Jack Smith's Team and Trump's Anticipated Retaliation

Transitioning to the broader scope of Trump’s potential second term, Gill and McCabe analyze a Rolling Stone article detailing how members of Special Counsel Jack Smith’s team are preparing for possible retribution from Trump’s incoming administration.

• Notable Quote:
  • Andy McCabe [12:05]: "It's going to be part of it, right? This is the part of internal machinations... who's behind it and who are they going after?"

The discussion underscores the fear among federal investigators and attorneys that Trump might leverage his influence over the DOJ and FBI to target those involved in his previous indictments and investigations. The hosts highlight the preemptive legal counsel sought by Smith’s team members, reflecting the tense atmosphere ahead of Trump’s inauguration.

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3. Conviction of Former D.C. Police Lieutenant

A significant portion of the episode is dedicated to the conviction of Shane Lamond, a former D.C. police lieutenant found guilty of obstructing justice by tipping off Proud Boys leader Henry Enrique Tarrio about his pending arrest before the January 6th Capitol attack.

• Notable Quote:
  • Alison Gill [21:00]: "Do not mess with Judge Amy Berman Jackson."

Gill and McCabe dissect the trial, examining Lamond’s actions in warning Tarrio and the broader implications for law enforcement’s interaction with extremist groups. They discuss Judge Amy Berman Jackson’s stringent sentencing and her remarks on the potential pardoning of Oath Keepers leader Stuart Rhodes.

• Notable Quote:
  • Andy McCabe [26:09]: "That's, you know, what they can do with it. Do whatever they want with it. So we'll see..."

The hosts also touch upon the ethical boundaries of law enforcement in cultivating sources within extremist organizations, emphasizing the thin line between investigation and obstruction.

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4. Pardons and the Future of Oath Keepers

Further exploring the theme of potential pardons, Gill and McCabe discuss Judge Amit Mehta’s concerns about the possibility of Stuart Rhodes receiving a presidential pardon. They connect this to Trump’s expressed intentions to pardon those involved in the January 6th insurrection, highlighting the legal and democratic ramifications.

• Notable Quote:
  • Alison Gill [37:38]: "He could commute sentences. We'll see what happens."

The conversation reflects on the broader impact such pardons could have on democracy, referencing other judges’ criticisms and the specific cases of Oath Keepers members like William Todd Wilson.

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5. Listener Questions and Constitutional Protections

In the latter part of the episode, Gill and McCabe address listener-submitted questions, providing insights into complex legal issues surrounding the Special Counsel investigations.

a. FBI Director Term Lengths and Presidential Authority

Chris questions the purpose behind the FBI director’s ten-year term, debating whether it serves to protect the FBI from the President rather than the other way around.

• Notable Quote:
  • Andy McCabe [46:04]: "The first was to protect the FBI from the politics around the presidency."

The hosts clarify that the ten-year term is designed to insulate the FBI from the transient nature of presidential administrations, ensuring a degree of independence and continuity within the bureau.

b. Russian Interference in Election Narratives

Chris also inquires about Russian involvement in fueling theories that Trump stole the election from Democrats.

• Notable Quote:
  • Alison Gill [50:19]: "They seek to make their enemies weaker and creating chaos."

Gill and McCabe discuss how foreign entities like Russia exploit existing political tensions to sow discord and weaken American societal cohesion, rather than inventing conspiracy theories outright.

c. Congressional Immunity and Potential Prosecutions

Emily raises concerns about the speech or debate clause protecting members of Congress, such as Liz Cheney, from prosecution despite Trump’s antagonistic stance.

• Notable Quote:
  • Alison Gill [54:42]: "You can't use this, the speech or this legislative activity as evidence of any sort of a crime."

The hosts explain the constitutional protections afforded to legislators, emphasizing that actions performed as part of official duties are shielded from legal prosecution, thereby safeguarding the separation of powers.

d. Presidential Immunity in Civil Suits and Potential Disclosures by Jack Smith

J.D. asks about the apparent contradiction in presidential immunity where the President cannot be prosecuted criminally but can engage in civil lawsuits, and whether Special Counsel Jack Smith could disclose grand jury information in a tell-all scenario.

• Notable Quote:
  • Andy McCabe [59:05]: "So I don't think you need to worry about that one."

Gill and McCabe discuss the complexities surrounding presidential immunity, noting that while criminal prosecutions are restricted, civil actions can proceed under specific circumstances. They also highlight the stringent pre-publication reviews that Special Counsel Jack Smith would face, effectively preventing any unauthorized disclosures.

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6. Transition to "New Jack City"

As the episode nears its conclusion, Gill and McCabe reveal their plans to rebrand the podcast to New Jack City, aiming to continue their in-depth coverage of the DOJ's actions and the ongoing Special Counsel investigations.

• Notable Quote:
  • Alison Gill [18:27]: "I like New Jack City, but I think we'll run into some copyright problems."

They invite listeners to submit suggestions for the new show’s name and assure continued comprehensive analysis in future episodes.

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Conclusion

Episode 108 of Jack, titled "New Jack City," offers a thorough examination of pivotal legal battles surrounding Donald Trump and his associates. Through incisive discussions, the hosts illuminate the challenges within the DOJ, the potential for political retaliation, and the broader implications for American democracy. Notable court cases, ethical dilemmas in law enforcement, and constitutional protections for lawmakers are dissected with clarity, providing listeners with a nuanced understanding of the ongoing Special Counsel process.

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Notable Quotes with Timestamps:

• Andy McCabe [02:04]: "It's a roller coaster ride of emotions. I laughed, I cried. I didn't know when to stop."
• Alison Gill [04:24]: "Why Pam Bondi didn't open investigations into statutory rape... I think that the answer is pretty clear there."
• Alison Gill [21:00]: "Do not mess with Judge Amy Berman Jackson."
• Andy McCabe [12:05]: "It's going to be part of it, right? This is the part of internal machinations... who's behind it and who are they going after?"
• Andy McCabe [26:09]: "That's, you know, what they can do with it. Do whatever they want with it. So we'll see..."
• Alison Gill [37:38]: "He could commute sentences. We'll see what happens."
• Andy McCabe [46:04]: "The first was to protect the FBI from the politics around the presidency."
• Alison Gill [50:19]: "They seek to make their enemies weaker and creating chaos."
• Alison Gill [54:42]: "You can't use this, the speech or this legislative activity as evidence of any sort of a crime."
• Andy McCabe [59:05]: "So I don't think you need to worry about that one."

---

For more detailed discussions and updates, stay tuned to future episodes as Alison Gill and Andy McCabe continue to navigate the complexities of the Special Counsel investigations and their impact on American governance.

Transcript

[Alison Gill]

MSW Media.

[Andy McCabe]

I signed an order appointing Jack Smith. Nobody knows you and those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. Wait, what law have I broken? The events leading up to and on January 6th. Classified documents and other presidential records.

[Alison Gill]

You understand what prison is?

[Andy McCabe]

Send me to jail.

[Alison Gill]

FOREIGN welcome to episode 108 of Jack we're back. Jack is Back, the podcast about all things special counsel. It is Sunday, December 29, 2024. I'm Alison Gill.

[Andy McCabe]

And I'm Andy McCabe. All right, we have a few things to cover this week, including a D.C. police officer has been found guilty of leaking information to proud boy Enrique Tario ahead of the January 6th attack on the Capitol.

[Alison Gill]

Yeah, oops. It didn't go well in court either. And we'll talk about that. We also have several members of Jack Smith's team lawyering up ahead of Trump's inauguration. Y how they're preparing for the the backlash and the retribution tour that is sure to begin shortly. Plus, Judge Meta, Amit Meta, speaking from the bench about possible pardons, particularly for Oath Keepers leader Stuart Rhodes, who, as we know, is in prison for seditious conspiracy. But first, we're going to bring back Good Week, Bad Week, but only because it's, it's in honor of Matt Gaetz.

[Andy McCabe]

So it's back and better than ever, I really think.

[Alison Gill]

Bad week.

[Andy McCabe]

It's a very tight good week. Bad week. It's only one person. Oh, my, my. It was a bad week for that boy. Bad boy Matt Gaetz. Bad Week. It's such a remarkable thing. I think that the committee even put this thing out because it's not common, it's not prohibited. They can do it. Contrary to what you're hearing from a lot of people on television.

[Alison Gill]

They did it in 2006, for example.

[Andy McCabe]

Rare, but been done before. It's not super common, but you read the report, which I highly recommend. Hilarious, frightening. It's a roller coaster ride of emotions. I laughed, I cried. I didn't. I didn't know when to stop. But yeah.

[Alison Gill]

And Andy, I did do an audio version of, of this. It's in two parts and those episodes are free to the public in the Daily Beans feed. So if you would rather listen to the Matt Gaetz Report from the House Ethics Committee, it is available in audio format.

[Andy McCabe]

Yes. So take advantage of that. It's, it is a wondrous thing. But I really think that part of the committee's motivation here was fit of pique. They're pissed. They're pissed that DOJ stood them up. That DOJ did not respond to most of their requests for information and witness statements and things like that. And they're very pissed at Matt Gaetz for totally blowing them off, including ignoring a subpoena from the committee. So, yeah, I think they, when they stacked all that up together, they spent a lot of work on this, a lot of time on it. It's pretty, it's pretty impressive. There's a lot of, lot of undeniable facts cited in here. Text messages, phone calls, timing of exchanges between people. You definitely have some witnesses who, who, who cooperated with the committee. You know, some of them have serious credibility problems. Like it's Joel Greenberg.

[Alison Gill]

Greenberg, yeah.

[Andy McCabe]

So some issues there, but also you have some victim witnesses who said things that were, you know, kind of against their own interests and not, not particularly flattering about themselves and what they were up to. So, yeah, call it as you see it, but, boy, any way you look at it, bad day for Matt Gates.

[Alison Gill]

Yeah. And I have to wonder if Trump hadn't won the election, if there might be a criminal referral in here for obstruction of justice. Because that's the thing. Right. Like, if I'm talking about why DOJ didn't bring charges against Matt Gaetz, that's in the report. You know, they said they couldn't establish any evidence that he, he actually sex trafficked a minor, which is the federal criminal charge. But there were state criminal law violations. And, and, you know, if we wonder why Florida state and their Republican attorney general, who's probably friends with Matt Gaetz's dad, didn't bring charges. You know, I think that the answer is pretty clear there.

[Andy McCabe]

Yeah.

[Alison Gill]

Why Pam Bondi didn't open investigations into statutory rape. Because in federal law, you can actually weasel your way out of a statutory rape charge by saying you didn't know how old the person was. Not if you sex trafficked them, but if you just have, you know, if you just statutorily rape them, and there's apparently not enough evidence to show that he sex trafficked the minor. But in Florida, it doesn't matter if you're over 24. The state law says if you have sex with somebody who's 6, 17, 16 or 17, that is statutory rape. And it doesn't matter whether or not, you know, the person was under 18. And in fact, even if the person lied to you and said she was, or he was 21, that is still not grounds for a defense. You're still guilty of statutory rape. So that came out in the report. I didn't know that. I thought that was interesting. Yeah.

[Andy McCabe]

Statutory rape at the state level is what's referred to as a strict liability crime. There's not a lot of strict liability crimes, but that is one. And what the strict liability references is the fact that there is essentially no requirement to prove a mental state. Right. We talk about this all the time. A crime is an actus rea, or the act, the thing that you did and the mens rea, the thing you were thinking when you committed that act. On a strict liability crime, it's just an actus reus. It's what you did. You had sex with someone who was under whatever the statutory age is. That's it. No defense.

[Alison Gill]

But he did obstruct justice. Obstruct Congress. He obstructed Congress. Right. There's a lot of evidence that he violated Title 18, U.S. code 1505. So my question is, did this committee just simply not tell the Department of Justice there's no criminal referral here. They didn't make any interim criminal referrals for obstruction of justice. So how could the Department of Justice have known he was obstructing Congress if they weren't informed of that? And would this committee have made a criminal referral to the Department of Justice had Trump not won the election? Those are just things we'll never know.

[Andy McCabe]

Good questions. I don't know the answer to them, but my guess would be the kind of negative footing between the committee and DOJ probably didn't help. Right. So they may have just said, well, we're not going to send a referral to this doj, the Merrick Garland doj, because they're not going to do anything for us. They didn't even give us any documents or ever respond to half of our requests. So.

[Alison Gill]

And then, of course, normal. Doesn't the DOJ usually not give stuff to Congress because they leak like a sieve and they're, you know, they're very protective of their work product. I'm not excusing it because I, I think DOJ should have cooperated more robustly in this particular investigation or any other congressional investigation. But I think we, you and I have had discussions about, like, look, DOJ rarely hands their stuff over to state prosecutors, to congressional committees, to, to, you know, whatever. And so, you know, not, not excusing it because it's the norm. But I think that, that, you know, that that's just something that DOJ generally doesn't do. I'm, I'm not sure you have a better. You would have A better perspective on that than me.

[Andy McCabe]

It's definitely true that DOJ is loathe to share anything from an ongoing criminal investigation with Congress or anyone else. There are some very limited times when if Congress is, is pursuing hearings on an obviously criminal matter at the same time DOJ is doing an investigation, they may not share evidence, but they will coordinate on some level on things like access to witnesses. Like DOJ will want to interview them first and want their things to resolve before the committee interviews the same witness. That sort of stuff. They don't always get their way. Those are, those are, those can be pretty contentious fights in this case. You have the added oddity that DOJ essentially declined this case at some point. So after that, would they share? You know, there's other barriers to sharing. Like they're not, they may not. If the, if the reason they declined the cases was because the victims didn't want to testify and were uncomfortable having their information made public, then maybe they wouldn't share that stuff for those reasons. So there's, it's complicated. But just not even responding to these requests for like a year at a time.

[Alison Gill]

Right. It took them, took them four months to even say no.

[Andy McCabe]

That's pretty bad.

[Alison Gill]

Yeah, that is really bad. And yeah, this wasn't an ongoing investigation. The investigation was closed and they declined to prosecute. It was actually Trump's U.S. attorney that did, he would, that U.S. attorney was there for quite a long time and Biden's guy didn't get there. I looked it up. Andy Biden's guy got there the week that the previous U.S. attorney declined to prosecute. And so it smells to me like they made Greenberg the fall guy to protect Gates because that's what Trump and his buddies do. They did it with Michael Cohen y to protect Donald Trump in the Southern District of New York. They did it with Lev Paras to protect Rudy Giuliani. May turn him into indicted, you know, not credible witnesses. Of course, Alvin Bragg took his chances and won and got 34 felony. A 34 felony count conviction with, with Cohen as a witness. But I, I, I would be remiss if I didn't say we were a little worried about Cohen testifying.

[Andy McCabe]

Totally.

[Alison Gill]

Yeah. But that's, you know, it's, it's hard once a prosecutor declines to charge to re bring those charges.

[Andy McCabe]

Very much so. Yeah, very much so. But the why do the answer around why DOJ decline? Yeah, we'll never have it, but I feel like it's a legitimate issue for congressional oversight.

[Alison Gill]

I think so, too. And they did say it was because they didn't have credible witnesses.

[Andy McCabe]

Yeah. Yeah. And like that. They should have to explain that, or I don't say they should have to because they technically don't have to, but they should explain it to the Judiciary Committee or to the Ethics Committee as to why their decision was so. So 180 degrees different from the committee's conclusions. But.

[Alison Gill]

Agreed.

[Andy McCabe]

We'll probably never hear that.

[Alison Gill]

No. Probably never hear it. You are correct. And, and even the reporting that it was because they didn't have credible witnesses was, was on, was on background. It was on sourcing. It wasn't on. It wasn't what the, the U.S. attorney put out, as in a statement, they just said they were declining to bring charges.

[Andy McCabe]

Right.

[Alison Gill]

All right. Let's start with a Christmas Day article from Soybe Sing and Perez at Rolling Stone. Who's killing it lately, especially with headlines. This is about Jack Smith's team, what they're doing to prepare for Trump's retribution against those who investigated and indicted Donald Trump before the Supreme Court let him off the hook. It says Donald Trump was elected to a second term on a promise to exact his retribution. So it's no wonder that federal investigators and others who worked with Special Counsel Jack Smith's office are taking the president elect at his word. According to two sources with knowledge of the matter and a former Justice Department official, several attorneys and staffers who were on Special Counsel Jack Smith's team or had done work for its criminal investigation into Donald Trump have already sought legal counsel or retained personal lawyers in case the former and now future president and his incoming administration follow through on his desire to investigate or prosecute his enemies. In less than a month, Trump will be inaugurated for his second term. He plans to mold much of the Department of Justice and FBI into a subsidiary of his own interests and has suggested using these instruments to retaliate against those investigating him. Him.

[Andy McCabe]

That's right. And the article continues to say the precedent on doing what they did with the weaponization, using the DOJ and the FBI to go after their political opponents, that is so bad. Trump said earlier this year, quote, that means that I can do it, too. He added, pandora's box is open, and that means I can do it, too. Trump repeatedly pledged to be voters retribution. When President Joe Biden said during a debate that Trump would go after his political opponents, he did not deny that, instead offering, I said my retribution is going to be success. One of the sources with knowledge of the situation tells Rolling Stone that multiple people who worked with Smith and his Core team have preemptively reviewed their private and professional communications to make sure they hadn't written anything that could be subpoenaed, publicly revealed, and used against them to paint a narrative of alleged misconduct or anti Trump bias.

[Alison Gill]

And that's interesting because we know several Republicans have called on Jack Smith's team to preserve all their stuff. Right. And I think Ken Paxton even sued him, saying he saw a shredding truck out front of like you print out the emails and shred them, they disappear. I don't know.

[Andy McCabe]

But anyway, Paxton's on the DC Shredding truck surveillance team.

[Alison Gill]

Yeah.

[Andy McCabe]

Driving around the capital.

[Alison Gill]

That lawsuit was summarily dismissed for being stupid. Some federal investigators, including more junior staff, have talked to attorneys and legal groups about possible. Possible ways a rejuvenated Trump Justice Department could try to make their lives hell, what precautionary measures they should take, and even how to avoid going bankrupt if the revenge probes come in full force. Right. This is a money thing. At this point, at least one such investigator has privately inquired if there are steps, even extreme ones, they can take to protect their spouse's assets in the event of harmful criminal charges. So, quote, they want to make sure they are protected if worse comes to worst. That's one of the sources. The three sources refused to publicly reveal who on Team Smith was seeking legal counsel or exploring preemptive measures. However, Trump Land is determined to work up a list of potential targets. Indeed, Trump and his circle have been working on just that to some degree or another for years.

[Andy McCabe]

Rolling stone continues. In May 2023, Rolling Stone reported on how for months, Trump had personally grilled close advisors, including at least one of his personal lawyers. Whether, quote, we know the name of every member of the DOJ staff and senior FBI personnel who had been detailed to the federal criminal investigations into Trump and his associates. At the time, Trump had privately discussed with his confidants that if he returned to the White House in 2025, he'd want his new attorney general to purge his second Justice Department and FBI of the agents and staff involved in investigating him, and that at least some of them may, in his mind, deserve some retaliatory probes themselves. On the campaign trail, Trump vowed that if he won the 2024 presidential contest, he and his government would move swiftly to shut down the criminal cases regarding his efforts to overturn the 2020 election results, as well as his hoarding of classified documents in his post presidency. Following Trump's defeat of Vice President Kamala Harris last month, Smith and the Justice Department have been shuttering the cases preemptively, citing the longstanding DOJ policy of not prosecuting sitting American presidents.

[Alison Gill]

Yep. Article goes on to say, since at least last year, as Rolling Stone previously reported, some of Trump's closest political allies had met with him, including at his private club in Florida, to brief him on their work. Compiling a list of DOJ and FBI personnel involved with the Trump focused investigations so that he and his inner circle would have a ready made roster of targets if he won. Two years ago. We know Judicial Watch, the right wing nonprofit fronted by Trump ally and informal advisor Tom Fitton, the one who told him not to not to comply with the subpoena for the classified documents.

[Andy McCabe]

Right.

[Alison Gill]

Filed a FOIA request.

[Andy McCabe]

That went well.

[Alison Gill]

Yeah.

[Andy McCabe]

Good advice.

[Alison Gill]

A Freedom of Information act request. Well, ultimately it did. Right, The Supreme Supreme Court.

[Andy McCabe]

Yeah, but he got indicted instruction along the way.

[Alison Gill]

But okay, so Tom Fitton filed a FOIA seeking information on all employees hired by or detailed to the Office of Special Counsel Jack Smith. Remember that Fitton later told Rolling Stone that the Justice Department was stonewalling Judicial Watch on the names and related details, adding, I don't understand why it is that the names of prosecutors involved in a criminal investigation are a secret. We don't want Social Security numbers or we don't want personal phone numbers, but certainly senior leaders and others who are pushing this need to be, this needs to be disclosed or whatever, whatever. He wanted the names of everybody. Fitton and other Trump boosters didn't get what they wanted out of the Biden era doj, but in a few short weeks, it will once again be the Trump doj. So have access to all of that and we're going to cover all this and we're going to watch all of this on the, you know, the, whatever, the rebranded podcast that we're going to.

[Andy McCabe]

New Jack City.

[Alison Gill]

New Jack City, I'm writing that down.

[Andy McCabe]

Yes. This is going to be part of it, right? This is the part of internal machinations. What's happening at doj is the, is the revenge thing, was that just a campaign bluff or is it actually gaining steam and, and who's behind it and who are they going after? So, yeah, I think there's going to be a lot to talk about. It is kind of crazy to think that all of the information that they've been kind of shooting at and, and clawing FOR and filing FOIAs for and lawsuits and things like that, and just a few ticks of the clock, it's all going to be in their hands. Do whatever they want with it. So we'll see if you, I, I, you know, it just amazes me that people are still debating whether he's actually going to do this or his sycophants and supporters are going to do these things.

[Alison Gill]

Of course.

[Andy McCabe]

I just don't understand why you, why people are still debating that. Like, there's absolutely no reason to think they won't. So, but we'll see. Only time will tell for sure.

[Alison Gill]

Yeah. For real. And we'll tell you all about it on whatever the new iteration of this podcast will be. I like New Jack City, but I think we'll run into some copyright problems. I'm sure we will. All right, everybody, we have to take a quick break, but when we come back, we're going to talk about a former D.C. police lieutenant who was found guilty. I believe in a bench trial. We'll talk about it after this break. Stick around. We'll be right back.

[Andy McCabe]

Welcome back. Okay. Our next story comes from Spencer Sue, Rachel Weiner and Tom Jackman at the Washington post. A former D.C. police lieutenant was found guilty in federal court on Monday on charges that he improperly warned Proud Boys leader Henry Enrique Tarrio of his pending arrest two days before January 6, 2021, then lied to investigators. Shane Lamond, a 24 year department veteran, withheld from colleagues that Tarrio had confessed to to burning a Black Lives Matter banner that was stolen from a historic African American church during a pro Trump rally weeks earlier and leaked word to Tarrio that a warrant had been signed for his arrest. U.S. district Judge Amy Berman Jackson found.

[Alison Gill]

Wow, that's a lot.

[Andy McCabe]

It is a lot. It is a lot. It's a little bit confusing how they, how they strung that whole sentence together. But essentially Tario can. So there was that December 15th rally, the pre rally rally.

[Alison Gill]

Right. The rehearsal dinner.

[Andy McCabe]

The rehearsal. That was the one, I think that really caught everyone's attention that like this could work.

[Alison Gill]

The Stop Seal rally. Yeah.

[Andy McCabe]

Right. This whole group of extremists converge on D.C. and they have this rally and there's like fights breaking out all over the place. And in one of these scuffles, Tario, I guess we can say we don't have to say allegedly anymore. Steals a Black Lives Banner, Black Lives Matter banner off of this historic African American church and he sets it on fire. So that's investigated as a hate crime. And in the days before January 6, this former lieutenant Shane Lamond Tarrio confessed to him that he had done this. And then he then told Tarriot that an arrest warrant had been issued for him. That is like really, really serious.

[Alison Gill]

Yeah. A 24 year veteran.

[Andy McCabe]

Yeah, yeah.

[Alison Gill]

And Judge Jackson said whatever the relationship had been before, after the banner burning, the defendant was not using Terrio as a source. It was the other way around. That's what she said. And also said he knew then and he knows now that it was wrong. And I've said it before and I'll say it again. Do not mess with Judge Amy Berman Jackson.

[Andy McCabe]

Not.

[Alison Gill]

Do not.

[Andy McCabe]

Do not.

[Alison Gill]

I've long said Amy Berman Judge Jackson, if you're nasty. The article continues, she found Lamond guilty of obstructing justice and subsequently making three false statements. In an interview with two U.S. attorney's Office investigators to hide his involvement, Lamond denied tipping off Tarrio to the investigation or the arrest warrant and claimed their communications were mostly one sided from Tarrio, the Proud Boys leader. The week long trial spotlighted D.C. police interactions with extremist groups when liberal groups accused police of appearing to favor right leaning organizers. Lamond, who's 48 of Stafford, Virginia, headed D.C. police's intelligence unit at the time. So I take it this was a bench trial. It doesn't mention there was a jury. I think, I think that Judge Jackson made this determination.

[Andy McCabe]

Yeah, I think that's right. I think that's right. So. Testifying in his own defense, Lamond acknowledged that he shared inside information with Tarrio about the flag burning investigation, but maintained that he acted within the bounds of his job and didn't support the Proud Boys. He vehemently objected to prosecutors characterization of him as a quote, sympathizer or double agent, insisting that he was doing his job by cultivating a source in a group that had a history of violent behavior. Lamont's defense.

[Alison Gill]

Don't you have to get permission to go undercover with the Proud Boys before you start doing it?

[Andy McCabe]

I mean, yeah, you know, yeah, sure.

[Alison Gill]

I was caught with a bunch of cocaine and ecstasy and paid women for sex, but I was going undercover, you guys. I was going undercover to bust this ring.

[Andy McCabe]

And you know, here he doesn't even say that. So in developing and cultivating sources and working sources. Oh, well, I guess the best way to set this up is day one of FBI Academy, Quantico, Virginia. They say there's three things that will get you jammed up in this organization. Money, cars and sources. Not necessarily in that order. These are the areas where so many agents like stumble into making dubious decisions and, and things go horribly wrong for sources. When you are trying to develop, cultivate a relationship with a source. Of information. One of the things that you have to be the most careful about is not sending information the wrong way. You can't be giving the source information because many of these sources are people who are criminals and involved in criminal activity. Of course, you admonish them. You say, you're not allowed to engage in any criminal activity on our behalf, and if we find out you've committed a crime, we'll arrest you. But they go about conducting their criminal lives anyway.

[Alison Gill]

Right.

[Andy McCabe]

So you don't want to be helping them in their criminal. Criminal activities by giving them information about what the police are up to. On the other hand, like, people, you know, guys who are working sources very often go to great lengths to, like, build a friendship, a relationship of trust around that exchange. And that's where things start to. The. The blacks and whites start to turn to gray at that point, and people make mistakes. So I don't. I don't think that this guy probably thought that he was doing some sort of undercover work, but it does sound like he went way over the line and shared things with this guy in order to. With Tario, in order to keep his allegiance and his loyalty and productivity. He shared things that he never should have, and that's. Yeah, it's really, really very serious.

[Alison Gill]

Well, this happened with, what, Jonathan Boomer? Right. He got his source, Chuck Johnson, all involved, and then eventually got his security clearance yanked and got put on probation for doing it wrong. So, yeah, I mean, yeah, top three things on day one of the academy. Makes sense that that's one of them. Yeah. But anyway. What?

[Andy McCabe]

Anyway, yeah, so Lamont's defense attorney said after the verdict, quote, it's unbelievably disappointing to see every single thing that Lt. Lamond did viewed through a lens to make it all appear something other than it was. There's nothing disloyal about him at all. Jackson said it was, quote, not part of this case to determine whether Lamond was a double agent, corrupt, or sympathetic to the Proud Boys. She said there was no evidence he sought to profit from a relationship with the group. She described the lieutenant as, quote, chummy with Terrio, possibly sharing his views on the 2020 election and the Black Lives Matter movement. But she called those opinions far short of the far right white supremacist views with which the Proud Boys have also been associated. What mattered, she said, was that Lamont shared sensitive information with Tario and lied about it. The rest was icing on the cake.

[Alison Gill]

Yeah, just like you said. Lamon's lawyers, this cops lawyer said his Contacts with Tario were simply part of how police run sources and gather intelligence. And that Lamond was instrumental in Tario's arrest. The officer used Tario as a contact to get information about where the Proud Boys were demonstrating to help law enforcement. That's what Shamallon fellow defense attorney Ana Jara argued. And I hope I'm pronouncing that right, but. Yeah, so that kind of goes toward, you know, what you were saying about, like, you can't, as Judge Jackson said, you can't give him information. The information can't go the other way, and then you can't lie about that. Like, yeah, that's it. That's what all this case was about.

[Andy McCabe]

It's. They can be errors of judgment or error or, or simply mistakes. When in an effort to get more information out of a source, a detective or a police officer, whatever, an agent shares some things, things that they know about other people in the community, things that they know about other crimes. You send information in the wrong direction. It's never good, but that can happen. It's almost impossible, though, to think of a scenario in which telling your source, tipping them off to the fact that there's been an arrest warrant issued for them, like, you have an obligation to arrest that person.

[Alison Gill]

Right.

[Andy McCabe]

If you're the cop and you know.

[Alison Gill]

Right.

[Andy McCabe]

So why else would you, A, not arrest him and then B, tell him about the warrant unless you were trying to help him evade getting arrested.

[Alison Gill]

Exactly.

[Andy McCabe]

It's just, I don't know, maybe he has an answer to that question. I can't imagine what it would be.

[Alison Gill]

Yeah, well, Jackson commented on it, right?

[Andy McCabe]

Yeah, yeah, yeah, she did. She said that the defense attorney's arguments were, quote, self serving justifications, saying Lamond was giving out a lot more information than he was taking in. Tarrio received real time updates on the investigation into the banner burning, she said. But Lamond learned little of The Proud Boys. January 6th plans, quote, @ a pretty critical time for the country. Though the evidence was circumstantial, Jackson said she was convinced that Tarrio confessed his role in the flag burning to Lamond at a bar and that Lamond withheld that information from his colleagues while telling Tarrio his arrest was imminent. Lamond ultimately told officers investigating the incident that Tarrio was responsible, but only after the Proud Boys leader declared his guilt on social media. And the end, the judge pointed out, Lamond got no help from Tarrio in identifying anyone else involved in the crime.

[Alison Gill]

Yeah. According to prosecutors, the pair exchanged 676 text messages, encrypted chats or voice messages over 18 months from July 2019 to January 2021, and more than 100 were deleted or unrecoverable. It was Lamont, not Tarrio, Jackson noted, who suggested they switch from imessage to the encrypted telegram service on the day the news networks reported that Joe Bide defeated Trump in the 2020 election. So this police officer is the one who suggested we go to encrypted apps, quote, need to switch to encrypted. Alerts are being sent out to law enforcement about the Proud Boys post election mobilization efforts. That's what Lamond wrote. And it was Lamond, the judge said, who later chose to have their messages self destruct immediately. And Andy, we've talked about how encrypted messaging apps hamstring the FBI, how, how odd it was that the FBI recently suggested we all switch to using encrypted messaging apps. But it was Lamond who suggested that we go to encrypted. And it was at the day Trump lost the election, and it was Lamond who said, I'm going to have my, my messages self destruct.

[Andy McCabe]

So, yeah, again, like if you were starting a relationship with a source, might you suggest to the source that you communicate in encrypted channels so that the sources communications aren't discovered and then put him in jeopardy with his criminal to.

[Alison Gill]

Make him trust you more or whatever.

[Andy McCabe]

Yeah, or just to avoid getting him killed. I mean, like if, if you got a, you know, counterintelligence source that.

[Alison Gill]

Yeah, but then you hand those over to law enforcement and you don't, you don't have your messages self destruct.

[Andy McCabe]

Right, but it's, it's, that's exactly right. It's the circumstances here and the timing that makes this look incriminating for the former lieutenant. So the article continues in December 2020, after the proud Boys had marched through the district in support of Trump in protests that turned violent and destructive, Lamond at least twice alerted Tarrio to developments in the investigation of the Black Lives Matter banner set on fire. Transcripts of their chats on Telegram showed. Police want to talk to you about the Banner, Lamond told Tarrio on December 20. Then on December 25, Lamond wrote, Just a heads up, CID, that's Criminal Investigative Division had me ID you from a photo you posted on a social media platform kneeling down next to the BLM banner. So they may be submitting an arrest Warrant to the U.S. attorney's office. So that was his message to Tarrio. Just a heads up. Criminal Investigative Division had me ID you from a photo you posted kneeling down next to the BLM banner. So they may be submitting an arrest Warrant to the U.S. attorney's office. That is hard to see any way other than the way Amy Berman Jackson saw it.

[Alison Gill]

Yeah.

[Andy McCabe]

The two also had conversations that were not recovered, including right before Tarrio told close associates the warrant for his arrest had been signed. But Jackson said that based on the pattern of their communications, prosecutors proved that Lamond was Tarrio's source.

[Alison Gill]

Yep. And meanwhile, when Lamond asked Tarrio about rumblings of an election protest on January 6 and if the Proud Boys would be there, court records showed Tarrio replied, if we do, it'll be extremely small and not in colors. No night march. In truth, hundreds of Proud Boys and affiliates showed up in colors and marched on the Capitol on January 6th. They were at the front of the mob of supporters of then President Trump that overwhelmed police and smashed their way into the building. Tarrio chose to turn himself in on January 4th, Jackson concluded, so that he could be free on January 6th. Although he was barred from D.C. tario monitored the Capitol riot from Baltimore in a hotel room and celebrated in chats with Proud Boys leaders. And on January 8, Lamond texted Tarrio, quote, of course I can't say it officially, but personally, I support you all and don't want to see your group's name and reputation dragged through the mud, unquote. Tario was convicted alongside other Proud Boys leaders for seditious conspiracy, and he was actually sentenced to 22 years in prison.

[Andy McCabe]

Yeah. How do you. How is the Proud Boys group reputation? Not in the mud ever?

[Alison Gill]

Yeah, well.

[Andy McCabe]

Oh, my gosh.

[Alison Gill]

That is something, though, that maybe if you have a source you want to say to him to make you trust him, but.

[Andy McCabe]

Yeah, yeah, yeah, well, yeah, I guess. Okay. It was a concoction and laughable, Jackson said, for someone with years of experience as an MPD officer to claim these interactions were appropriate. Tarrio testified in Lamond's defense, claiming he figured out his arrest was coming on his own and just pretended to have a source in the D.C. police. Jackson called that testimony, quote, illogical and incredible. That's not a good review of your testimony. Tario, she said, was one of the worst witnesses she had seen in 13 years on the bench.

[Alison Gill]

Wow.

[Andy McCabe]

Flippant, grandiose, and obnoxious. She suggested he only testified to help, quote, his opportunity to receive a pardon when Trump returns to office. Jackson set Lamont's sentencing for April 3. The district obstruction charge is punishable by up to 30 years in prison upon conviction and the federal false statement counts are each punishable by up to five years. But first time offenders rarely receive the maximum sentence. He's not going to get the maximum sentence. No.

[Alison Gill]

He'll get like three years or five years or something. Probably, yeah. Maybe a little bit more.

[Andy McCabe]

But it's possibly his none.

[Alison Gill]

Trump could pardon him.

[Andy McCabe]

He could get sentenced to no time. He could get probation. I mean, the fact that he's what, 24 years on the job is in his favor. So. And presumably has no other criminal convictions. Certainly none for violence. There's no violence here.

[Alison Gill]

Yeah. He wouldn't still have that job if he were a previous offender, I think.

[Andy McCabe]

No, no. So anyway, will he get pardoned? Depends. Might. He might.

[Alison Gill]

Tario might, Yeah. I don't know. Trump is waffled on this. He said he was going to pardon all of them. Then he said he would only pardon people who were there, not fighting police officers.

[Andy McCabe]

Right.

[Alison Gill]

And many of the proud boys and Oath Keepers have police assault charges and convictions in addition to seditious conspiracy. He could commute sentences. We'll see. We'll see what happens. And again, we'll cover it on New Jack City. No, I don't know.

[Andy McCabe]

I think I've started something. So I think you're absolutely right. And the interesting thing for me is like wherever, if he decides to draw a line here, which he's got to at some point, wherever he draws it is going to create a lot of problems for him. If you decide to leave the violent people in, they're going to be a very loud voices there.

[Alison Gill]

Well, that's all that's left in, really. I mean, everybody else either got off on a misdemeanor or probation or served a couple months or a couple years and they're, they're out. Right.

[Andy McCabe]

So you could very small number of.

[Alison Gill]

People still left and they're really all assaulters, the people who are still in, in jail. So, yeah, public cop, you know, people who beat cops. So we'll see, we'll see what happens. All right. Speaking of pardons for insurrectionists, we have another story about what Judge Mehta thinks about pardons, particularly about Stuart Rhodes potentially receiving one. But we have to take another quick break, so everybody stick around. We'll be right back. Hey, everybody, welcome back. So before the break, we were talking about pardons for those involved in the insurrection. Our next story comes from Michael Kunzelman at the Associated Press. The federal judge who presided over the seditious conspiracy case against the Oath Keepers members said Wednesday that It would be, quote, frightening if the antigovernment group's founder, Stuart Rhodes, is pardoned for orchestrating a violent plot to keep Donald Trump in the White House after he lost the election in 2020. President elect Donald Trump repeatedly has vowed to pardon rioters who stormed the Capitol nearly four years ago. Rhodes is serving an 18 year prison sentence after a jury convicted him and other Oath Keepers of seditious conspiracy, the most serious charge stemming from the January 6th attack on the Capitol. So, I mean, 18 years. Tario's got 22. Seditious conspiracy carries a heavy charge. And when we went over this, Merrick Garland actually, or the Department of Justice, I should say, whatever, actually asked for a terrorism enhancement to the sentences and got it, which is unusual, but he got it. So that added a lot of time to, to their, to their sentences, too.

[Andy McCabe]

It certainly did. Those sentences are no joke.

[Alison Gill]

And didn't Merrick Garland actually file that he wanted to appeal those sentences, that they should have been longer? A lot of them that never went anywhere? I think so, yeah.

[Andy McCabe]

Yeah, I think so. But as you were, as you were talking about the terrorism enhancement, I was thinking like, whatever happened to that effort to extend them even further? But haven't heard much on that. U.S. district Judge Amit Mehta alluded to the prospect of Rhodes receiving a presidential pardon as he sentenced William Todd Wilson, a former Oath Keepers member from North Carolina who pleaded guilty to seditious conspiracy. Quote, the notion that Stuart Rhodes could be absolved of his actions is frightening and ought to be frightening to anyone who cares about democracy in this country, Maida said. Maida isn't the first judge at the federal courthouse in Washington, D.C. to criticize the possibility that Trump could pardon hundreds Capitol rioters when he returns to the White house next month. U.S. district Court Judge Carl Nichols, a Trump nominee, said during a hearing last month that it would be beyond frustrating and disappointing if the Republican president elect issues blanket pardons to Capitol rioters.

[Alison Gill]

Yep. But as we all know, on the campaign trail this year, Trump repeatedly referred to the rioters as hostages and patriots. And he has the, has the January 6th hostages choir sing the national anthem at his rallies. And he said he would absolutely pardon rioters who assaulted police if they're innocent, is what he said. Trump also has suggested he would consider pardoning former Proud Boys leader Enrique Tarrio, who was, like we said, sentenced to 22 years in prison for a separate plot to stop the peaceful transfer of presidential power. Over 20 judges have presided over more than 1500 cases against people charged in the January 6 attack on the Capitol and many Capitol riot defendants have asked for post election delays in their cases. But judges have largely denied their requests and forged ahead with sentencings and guilty pleas and other hearings despite them saying Trump won. I'm going to be pardoned, so stop my case. And most judges are like, nah, bro, sorry.

[Andy McCabe]

Yeah, yeah. So Wilson, age 48, of Newton Grove, N.C. was one of several Oath Keepers who cooperated with the Justice Department's investigation of the far right extremist group, one of the most consequential prosecutions arising from the January 6 siege. Maida sentenced Wilson to one year of home detention and three years of probation instead of prison. Prosecutors had recommended one year of incarceration for Wilson, a US army veteran and former firefighter. The judge praised Wilson's courage for acknowledging his guilt, while many of his co conspirators have not. Quote, setting the history book straight came at a great price to you, maida told Wilson, who lost his military benefits after his guilty plea in May of 2022.

[Alison Gill]

Yep, and Rhodes and his followers amassed weapons and set up a quick reaction force, as we know, in a Virginia hotel that could ferry guns to the Capitol if they were needed to support their plot. The guns stayed at the hotel, but Meta said it is chilling to think that, quote, one order from a madman could have led to weapons deployed during the riot. Quote, just to speak those words out loud ought to be shocking to anyone, he said. Now, Wilson, the guy who got a really lenient sentence here for his really robust cooperation, did not testify at any of the trials for the Oath Keepers, leaders, members and associates charged in the Jan. 6 attack. Prosecutors said he harmed his credibility by making contradictory statements to investigators about his criminal conduct. Quote, what we want to hear from witnesses is the truth, unvarnished and without an attempt to curry favor with the government. That's what Assistant U.S. attorney Kathleen Ricozzi said. Wilson expressed remorse and shame for his role in the January 6th attack, something a lot of these rioters didn't do. Quote, I've lost a lot of things since then, he said. The mental burden that this has had on me has been almost unbearable.

[Andy McCabe]

Also on Wednesday, prosecutors asked a different judge to reject a convicted Capitol rioter's request to attend Trump's January 20th inauguration ceremony in Washington while she's under the court's supervision. The rioter, New Hampshire resident Cindy Young hi Cindy was sentenced on November 21st to four months of prison and one year of supervised release. Prosecutors argued that Young poses a danger to the nation's capital that Seems pretty logical to me and to the police officers who defended the Capitol. On January 6, U.S. magistrate Judge Michael Harvey gave Young until December 24 to respond to prosecutors arguments.

[Alison Gill]

Yeah. And I've looked up the docket. I am unable to find that response yet. But as soon as we have that decision about Cindy Young being able to attend the inauguration of Donald Trump after being sentenced to four months in prison for attacking the Capitol, we will, we will let you know.

[Andy McCabe]

What I worked. I did a lot of work on some inaugurations, particularly President Obama's first in 2009. And the idea that someone who got, who, who was convicted for attacking the Capitol would ask the judge if they could attend the inauguration, the next one. I mean, it's just.

[Alison Gill]

Yeah. The DOJ's opposition to this request is, is about, like, what you just said, pretty much like, are you kidding? Are you kidding me? Is what it says.

[Andy McCabe]

You took a conviction for, you know, selling heroin in a school zone, and then now you applied for a job as a janitor at a midd. No, no, you can't have that.

[Alison Gill]

That would be bad.

[Andy McCabe]

That's not a good job for you.

[Alison Gill]

Yep, absolutely. All right, everybody, we're going to take some listener questions and if you have any questions for us, including what we're going to talk about on the upcoming new iteration of this podcast, particularly following what this Department of Justice does as far as retribution against the investigators goes, or perhaps they, you know, Donald Trump wanting to use this Department of Justice to, quote, unquote, investigate the 20, perhaps declare a rebellion or whatever, anything, any questions at all that you have for us as we await the Jack Smith Report, which I don't think is done yet. And we'll see how fast and whether or what happens when Merrick Garland gets it, if he releases it, what happens? We'll keep you posted on that. Those will be our last episodes of this podcast before we start the new one, but send your questions to us. There's going to be a link in the show notes for you to click on so you can submit your queries to Andy and me. I think it's Andy and me, not Andy and I. I always get that wrong.

[Andy McCabe]

I'm terrible at that.

[Alison Gill]

I'm very bad at that because it was like, got my knuckles beat by nuns who said it's always and I. And they were wrong. Anyway, thanks, nuns. But we'll be right back with your listener questions. Thanks, none.

[Andy McCabe]

That's gonna be my new thing to people. Thanks, none. None.

[Alison Gill]

Thanks for you, none. Everybody stick around. We'll Be right back.

[Andy McCabe]

Welcome back. We are at the listener question section of the show. I'm sure you're all waiting on the edges of your seats. All right, so let's dive right in. This first one comes to us from Chris and Chris says, hey, AG And Andy, I have two questions which are kind of unrelated to each other. First, I see an argument that people are saying that the 10 year FBI director term was put into place to guard the President from the FBI, not the FBI from the President. I know that you all say all the time that it is to guard the FBI from politics. I was just hoping you could address this semi legitimate counter argument. All right, so I'll keep reading his second question. I'll go back to the first one. Second. I've heard Andy and Pete on cleanup say that Russians just want chaos. Do you guys think that the Russians are fueling the theory that Trump stole the election from the Democrats? Thank you guys for all you do. Please stay safe in the coming administration. All right, thank you, Chris. Those are two good and yes, totally unrelated questions for the first one, the ten year term had two purposes. The first was to protect the FBI from the politics around the presidency. There's no protecting the FBI from the president because like, you know, the President is kind of, you know.

[Alison Gill]

Well, except for now.

[Andy McCabe]

Yeah, the President got to deal with the FBI director if you choose to do so. But what it was supposed to do is give the FBI director a little insulation from the typical cycle of presidential politics. Because you're there for 10 years, you are by definition going to outlast the President you are working for. And therefore it would make you a little more independent. That was one purpose. But the other purpose was to protect the country from an FBI director that had been in position too long because that's what we had under Hoover, who was, who was director 48 years or something. Yeah, 40. Almost 40 years. He was in some other jobs in DOJ before that. So he was around for a long time. It was. And his term became really abusive to the country and to a lot of our citizens. And the way that he directed the FBI and used its resources for a political intelligence and persecute enemies of the president, things like that. So that's. Those are the two purposes. I don't believe it's a semi legitimate counter argument to say that they would guard the President.

[Alison Gill]

It was from the FBI.

[Andy McCabe]

There's no, that's not really a thing.

[Alison Gill]

No, it was mostly because of Hoover, you know.

[Andy McCabe]

Yeah, it was mostly because of Hoover.

[Alison Gill]

Like it was To. To keep the President out from using and abusing the FBI to.

[Andy McCabe]

Right.

[Alison Gill]

To go after his own interest, Democrat or Republican.

[Andy McCabe]

That's right. There's really nothing the FBI can do to the President. I mean, if the President senses that the FBI is pursuing some sort of illegitimate agenda against him, he can fire the director. Yeah, he can still fire the director. So, yeah, I don't think that's a. It's a interesting argument, but I don't think there's much to it.

[Alison Gill]

All right, what about the Russians wanting chaos? And do I think that Russians are fueling the theory that Trump stole the election from Democrats? Honestly, I think that there are a ton of Democrats, my friends included, who were very confused about the outcome of this election, given the momentum and the joy and the. So there was this incredible whiplash that we didn't necessarily experience in 2016 because we were like, wtf is happening? Oh, he won. What? Like, it was just. This was different because everybody knows Trump. He's a convicted felon. There was a billion dollars spent on the Democratic campaign. There was tons of humongous rallies. And if, you know, if you listen to Trump, the size of your rallies determines whether or not you win an election. But he's shut up about that since. Since this particular election cycle. But I think. I think what Russia does is they take issues that are already in existence in our political discourse, and they exploit them. So it wouldn't surprise me if they are currently or about to. Or trying to exploit the fact that there are a lot of Democrats who think Trump stole this election. But I. I don't necessarily think they invented it. Right. Like. Like the Russians amplified some of the stuff around the. The clashes between Bernie Sanders and Hillary Clinton. But Bernie Sanders wasn't invented by the Russians. Right.

[Andy McCabe]

Yeah. Nor did they really care if Bernie Sanders won in that conflict. Right. They weren't.

[Alison Gill]

No. They were just trying to.

[Andy McCabe]

Trying to secure a victory for Bernie Sanders because they've been supporters of his for so long. No, they did it because what. What, they. They want chaos here. They want Americans pitted against other Americans. They want to divide us because they are. We are weaker when we're divided. We are less politically capable, which means we're less militarily capable or less diplomatically capable, and that's what they want. They seek to make their enemies weaker and creating chaos. And political and social and cultural divisions are one way that they do that. They've been doing it for decades. It's just easier now and way more productive that you can do it on Social media. So Black Lives Matter. Another one.

[Alison Gill]

Yeah.

[Andy McCabe]

They were all over Black lives matter in 2016. They were messed. Creating false groups on both sides of the issue, fanning the flames, trying to stoke anger and division.

[Alison Gill]

Gaza, they're doing with Gaza. There's evidence of that.

[Andy McCabe]

Yeah.

[Alison Gill]

And again, it's not to discredit anyone's belief that about the war in Gaza or what Israel is doing. It's to create division and so chaos. It's to take our already existing disagreements or our already politically charged movements, things that make us emotional and exploit. Exploiting those issues. And so that I think, I don't think that Russia started it, but they might exploit it and they might already be exploiting it, I think.

[Andy McCabe]

Yeah, yeah. I mean, and it doesn't. That doesn't speak to the accuracy of that theory at all. They don't care if it's accurate, if there's anything to it.

[Alison Gill]

They just, they don't care if it's.

[Andy McCabe]

Out there floating around and they think there's some advantage to them by fanning the flames then.

[Alison Gill]

And it makes people mad.

[Andy McCabe]

Yeah.

[Alison Gill]

Especially if it makes people mad.

[Andy McCabe]

Yeah, exactly.

[Alison Gill]

All right, next question from Emily. Hello, Allison and Andy, I hope you had both. Both had a nice Christmas. I did, thank you.

[Andy McCabe]

Yes, same.

[Alison Gill]

I've been a loyal listener of your show for a year plus and from the start have appreciated irrational and thorough insight on all angles of the Special Counsel's investigation, all while delivered in a mellifluous tone. Thank you. Shout out to you, especially on this regard. In this regard, Andy, they do love your voice.

[Andy McCabe]

That's so, so crazy to me, but thank you very much.

[Alison Gill]

While there are substantial protections for congressional members regarding their legislative duties, like the speech or debate clause, that would beggar any of the resulting actions of their work ever seeing a courtroom, is it truly an ironclad guarantee when Trump sends menacing tweets at 3am it sure does seem so. Even if the aforesaid laws should provide ample refuge for Liz Cheney at all, given that Trump desires to break down anything related to the law, can she conceivably be prosecuted under any laws? That is, can he or the DOJ disregard the speech or debate clause. I think that going after these folks, particularly members of Congress like Liz Cheney, will be unsuccessful, but that doesn't make them less expensive and non. Intrusive.

[Andy McCabe]

Yeah, yeah, that's. I mean, the process is the punishment. Right. To some degree. It's interesting, your focus on the speech and debate clause. I, and I presume it's because you're thinking that if prosecuted, Liz Cheney could say, well, hey, because this, this probably there are allegations about. And I don't give any credit to these allegations, but just to kind of pin the discussion down, there's been allegations that, oh, she did something improper with her preparation of witnesses who then testified in front of the committee. And so I think what Emily is suggesting here is that, well, what she did in preparing witnesses and questioning witnesses was covered by the speech and debate clause. So doesn't that give her some level of protection? I guess theoretically it could. Where speech and debate really becomes relevant is when you try to prosecute a member of Congress and you try to use as evidence something they said. Right. That's where speech and debate clause comes in to. To.

[Alison Gill]

Or something they did. Or something they did that has to do with their official duties. We know Pence even got speech or debate protection for a couple things he did as president of the Senate on January 6th. Right. There were two things that weren't allowed into evidence in Jack Smith's investigation, namely memo that his, that Mike Pence's counsel wrote about what he could and couldn't say on January 6, and information and testimony about a meeting he had with the parliamentarian about an announcement he was going to make on January 6th. Those things couldn't be brought into evidence because they're legislative. Yeah. The judge found he was acting in his role as a legislator that day, and you can't review that. And I think this will offer at least the folks on the January 6th committee a lot of protection because this especially goes toward when you're investigating stuff, because that's how Marjorie Taylor Greene tried to weasel out of the insurrection section three of the 14th amendment thing. She's like, speech or debate. I was investigating.

[Andy McCabe]

Yeah.

[Alison Gill]

Fraud in the election.

[Andy McCabe]

Fundamentally, it works as an exclusionary rule. Right. It's like you can't use this, the speech or this legislative activity as evidence of any sort of a crime. And so it could provide some protection to them. I think there's other things that would probably cut off any prosecutorial effort. More broadly, there's a question of whether or not you could possibly even investigate a member of Congress. Like the executive branch cannot or shouldn't. There's a theory that the Constitution would prohibit the executive branch from investigating a member of Congress for something they did in the course of congressional oversight. Because it's like a separation of powers problem.

[Alison Gill]

Yep.

[Andy McCabe]

So I don't I just say that to suggest that I don't see these things going anywhere.

[Alison Gill]

No. And you know if she's going to.

[Andy McCabe]

Get harassed for sure.

[Alison Gill]

If she's subpoenaed for her stuff, she can sue.

[Andy McCabe]

Right.

[Alison Gill]

Saying no, no, no.

[Andy McCabe]

She can evoke all these well founded arguments to block it. It's not going anywhere. I don't think a member of Congress is going to be prosecuted for anything they did that was remotely related to their official duties. So I don't think you need to worry about that one.

[Alison Gill]

Yeah. All right. One more question.

[Andy McCabe]

Yeah, sure. It's a bit of a double, but. Well, let's do it anyway. Here we go. This is from J.D. hi, my favorite podcast hosts. I have two questions. Number one, if the president can't be prosecuted because dealing with court is a hindrance to his duties, how is he allowed to sue someone in a personal capacity? As in the defamation cases, wouldn't he have to be a part of the process even if his DOJ took the case over? That's a good question and I don't have a really complete answer for that one. I think that if he initiates a suit while he's president now, this wouldn't apply to things that he started before he was inaugurated. So those cases that are going on now are a little bit different. But I think to pro, to file civil suits as a sitting president, he would have to weigh that would be considered a waiver of his civil immunity. So he would be vulnerable to countersuits on, on those same issues. That's my guess. But this is a totally unresolved kind of constitutional issue.

[Alison Gill]

Yeah. And there are some standing precedent that the sitting President doesn't have civil immunity, just criminal immunity. Jones v. Clinton. Right.

[Andy McCabe]

He can't be sued civilly. Wiley's president for kind of the same reasons. And I can't remember the precedent the Supreme Court case, but there is some degree of civil immunity and it's again, it comes back to official duties and things of that nature. Doesn't mean he can't be deposed. That's George v. Clinton. You will have to show up and be deposed.

[Alison Gill]

Right. Which is what he's facing in these civil cases that have been allowed to go forward for January 6th. Like Blaszen game at all, for example.

[Andy McCabe]

That's right. Okay, so number two, her second question. I know Jack Smith can't officially leak information about grand jury testimony or possibly even make his report public, but should he want to write a tell all, how much would he be able to say in this kind of non legal venue? I don't believe he would ever consider doing so. But hypothetically, what could he say there.

[Alison Gill]

Don'T you have to get permission? Don't you have to get permission from the Department of Justice?

[Andy McCabe]

Yes, you do. You have to get permission.

[Alison Gill]

And what if you don't? You'll get. You can actually be prosecuted.

[Andy McCabe]

Yeah, it's called pre publication review. When you get a clearance, one of the things you agree to is that you will never write a book or give public speech or something like that without having the content of that communication reviewed by. In his case, it would be doj. For me, it was the FBI. So I submitted my book for pre publication review and we fought about it for months and months and months.

[Alison Gill]

No, you can't call it Crossfire Hurricane.

[Andy McCabe]

Yes, I can.

[Alison Gill]

No, you can't.

[Andy McCabe]

Jerks. What? Come on.

[Alison Gill]

But now you would be submitting it to Trump's FBI and Trump's doj. So yeah, yeah.

[Andy McCabe]

Literally months later, Josh Campbell, who I love, wrote a book, put it through pre pub and it was, the title was Crossfire Hurricane.

[Alison Gill]

I'm like, well, they changed their minds.

[Andy McCabe]

Hold on a second. Anyway, so yeah, he would have to go through pre pub review before he wrote any kind of book about that stuff. If he wants to write a book about triathlon training, I don't think that's covered. I think he could just put that one out. But. But yeah, he'd have to do that. It would not make it out. It would be a very short book because it would be mostly redacted.

[Alison Gill]

Oh, they would just say no altogether. And if he didn't do it, he would put himself in the actual crosshairs of having done something wrong.

[Andy McCabe]

Yeah, you can get sued. They can for or seize all the money that you make from the book. And I guess maybe there's probably a way that could come after you criminally, but I'm not 100% sure. It's been a while since I looked at that agreement.

[Alison Gill]

They would think of a way, I'm sure, and get an OLC memo whipped up by their new paid AG who says, yeah, you can criminally prosecute this. And they would go forward with it. I don't know I'm gonna make it through court. But there you have it. So don't expect a tell all book from Jack Smith. And if we somehow wrangle an interview after all this is done, expect there to be no speaking on behalf of Jack Smith.

[Andy McCabe]

We all be out. The whole interview would be like, what's the Hague like this time?

[Alison Gill]

Tell me about triathlons because I do actually really want to know about. And your Favorite subway sandwich. Let's talk about that.

[Andy McCabe]

But yeah, what's the story with that purple robe? Did you pick that color or is that their color?

[Alison Gill]

Is that the Hague uniform?

[Andy McCabe]

Yeah, it's Hague purple.

[Alison Gill]

So the beard, does your wife like it? You know, that that would be about the extent of the questions that we'd be able to ask Jack Smith and nothing about the investigation outside of the four corners of a publicly released report would be able to be spoken about.

[Andy McCabe]

Exactly.

[Alison Gill]

All right, everybody, thank you for your questions. Again. There's a link in the Show Notes to submit your questions. We'll have another show next week. Thank you very much for letting us have a week off. It was the first time we ever took a day off since the show began. It was our very first day off. And we figured since Jack Smith was probably taking the week off, we could too. Probably the first time he's also been able to enjoy a holiday since he was writing letters on Thanksgiving Day two days after he was appointed back in 2022. But click on the, click on the link in the Show Notes. Send in your questions. We will answer them next week as best we can. And thanks for listening. And also if you have a, if you have a suggestion for the new show name, New Jack City's great, but again, copyright.

[Andy McCabe]

Yes.

[Alison Gill]

Think of something that hasn't been thought of before and send those suggestions in using that same link if you so desire. Do you have any final thoughts?

[Andy McCabe]

No, I think we covered it. We're still on report watch. That never ends, it seems like. But this is a very slow week. You don't, you don't anticipate any big drops are going to be coming in between Christmas and New Year's?

[Alison Gill]

No. And so far your, your money was on Santa won't.

[Andy McCabe]

Santa brings no report.

[Alison Gill]

Yep, you win. You win that bet.

[Andy McCabe]

No report on the sleigh.

[Alison Gill]

All right, everybody, thanks so much. We'll be back in your ears next week. I've been Alison Gill.

[Andy McCabe]

And I'm Andy McCabe.