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UnJustified
Episode 111 | History Will Judge
01:07:41
Jack Smith has resigned; the Justice Department released Volume One of the special counsel’s final report; the fate of Volume Two remains to be seen; plus listener questions.
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- [00:01]
Alison Gill
MSW Media.
- [00:08]
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 6, classified documents and other presidential records.
- [00:24]
Alison Gill
You understand what prison is?
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Andy McCabe
Send me to jail.
- [00:27]
Alison Gill
Foreign welcome to the final episode of Jack the Podcast about all things special counsel. It's Sunday, January 19, 2025. I'm Alison Gill.
- [00:44]
Andy McCabe
And I'm Andy McCabe. And you heard that, right. It is January 19, and this will be the series finale of the Jack Podcast. But we're going to be back next week with a new name and a new mission, and that is to report on the Trump administration's Department of justice.
- [01:02]
Alison Gill
Yes, 100%. And you don't have to do anything to continue to receive the new podcast and all patrons of the Daily Beans and the Jack Podcast, you'll automatically be patrons of the new show and receive it ad free. So if you signed up at the level that gives you both this podcast and the Daily Beans, you will now have the new podcast and the Daily Beans. You don't have to do anything. It's very important that we stay informed about the Justice Department in the coming months and years, if we take seriously at least the mission outlined in Chapter two of Timothy Snyder's On Tyranny, Defending Institutions. So that's what we've decided to do, and that's where we're going to have our focus.
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Andy McCabe
Yeah, And I think in some ways it's very similar to our original mission, which was to watch how the government tried to hold people accountable for what were offenses against the government, offenses against us all. And so it's, I think it's perfectly natural that now we're going to see, okay, well, how does the government pursue justice in this new age, under this new administration, with some very, very different characters making the decisions.
- [02:12]
Alison Gill
Yeah, that's one way to put it, especially, you know, and we'll talk about Pam Bondi's confirmation a little bit later and much more robustly on the very first episode of the new show. But she wouldn't say she's not going to prosecute Jack Smith or prosecute Liz Cheney or. Or prosecute any of the investigators that. That worked on this. And then if, if she's confirmed along with Kash Patel, it's going to be really important that we understand what they're doing.
- [02:41]
Andy McCabe
Exactly, exactly. Yeah. So as for today's episode, Jack Smith has resigned, and the Justice Department was able to release Volume 1 of the Special counsel's final report. We're going to go over the highlights and what's different from the 165 page immunity brief that Jack Smith released before the election in September.
- [03:03]
Alison Gill
Yeah, a lot of folks were like, we could have used this before the election. And I'm like, we had this before the election.
- [03:09]
Andy McCabe
We had a lot of it.
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Alison Gill
We had a lot of it. What we didn't have was some of the investigative procedures, other charges considered, some of the delays because of protracted privilege battles, Trump's defenses, how Jack Smith planned to, to take care of those, overcome those defenses. And then of course, all of the reasons why he decided to prosecute. All of that is new, but most of the rest of the stuff is the same. We'll get into it shortly. And keep in mind that in this podcast feed you will find an audio version of Volume One that you can listen to. We have two more installments of that coming out this week and I believe we're the only outlet providing this service.
- [03:54]
Andy McCabe
Nice.
- [03:55]
Alison Gill
Today we'll also cover the fate of Volume two of the final report. That's the classified documents report, along with, like I said, a little bit of Pam Bondi's confirmation hearings, a comprehensive timeline of the January 6th investigation, and we'll take some listener questions. So, Andy, let's start with the battle to release Volume one that had us all on our toes last week.
- [04:18]
Andy McCabe
Yeah, it was a bizarre and hotly fought exchange. You'll recall that when we last met, Judge Cannon had had issued an order blocking the release of the entire report until the 11th Circuit ruled on NADA and de Oliveira's emergency motion. The 11th Circuit denied their motion, but didn't vacate Judge Cannon's order, saying the DOJ had to go back and notice appeal to Cannon's court, which they did. The 11th Circuit has still not ruled on that appeal. Now, this past week began with Carlos de Oliveira and Walt Nauta asking Judge Cannon to extend the three day hold she issued in her injunction order. That order was going to expire last Monday at midnight.
- [05:04]
Alison Gill
Yes, it was. And that was a very interesting day. In response to Nauta and de Oliveira's motion To extend the three day block, which they filed last Friday, January 10, Judge Cannon ordered the Department of Justice to confirm to her that there was nothing in Volume One that had anything to do with Volume Two, which they already had. But she wanted it in different words. And she ordered the Department of Justice to submit any relevant language about Volume two that appeared in Volume one so that she could consider it Herself. Now, that was due to her by Saturday at 2pm Eastern. Now, mind you, she has no jurisdiction to do any of this. But the 11th Circuit had not ruled on the DOJ's motion to vacate her order blocking the report. So the DOJ complied with her order and confirmed that volume one doesn't mention volume two, it doesn't mention the remaining defendants, and they filed the relevant language from volume one under seal on the docket. And then on Monday, about 12 hours before her order to block it expired, Judge Cannon denied Nouda and de Oliveira's motion to extend the block of volume one. Surprising everyone.
- [06:14]
Andy McCabe
Yeah.
- [06:15]
Alison Gill
But granted an extension to block volume two from being sent to Congress and set a hearing on volume two for Friday, January 17, just a couple days ago. So, because she wants to go over volume two and decide whether to block Merrick Garland and the Department of Justice from allowing four congressmen to review the report in camera. They weren't even going to get to keep a copy.
- [06:37]
Andy McCabe
No, it's a simple read through. You can't take notes, can't bring devices in. Can't bring devices in. It's pretty strict. Well, after that, the clock started ticking on the Release of Volume 1. There was speculation about whether Merrick Garland would release it at midnight or wait until the morning. But then a bit later on Monday, the DOJ filed notice with Judge Cannon that they also intended to release a cover letter written by Jack Smith, Trump's letter to the Attorney General asking him to block it. And the DOJ response to the Trump letter.
- [07:11]
Alison Gill
Yeah, and you know, the thing, the thing about that was I was like standing there when that hit the docket, and I was like, no, why are you giving her something to deny? Stop. Just.
- [07:23]
Andy McCabe
Shh.
- [07:24]
Alison Gill
Why are you. Stop talking.
- [07:25]
Andy McCabe
Just stupid it. Dump it out. Right? I mean, like you could easily say, this is part of the report. Just come on.
- [07:32]
Alison Gill
You already said that too. That was already said. But she didn't, she didn't deny it or respond to it. But within two hours of midnight, Trump filed a last minute motion begging Cannon to stop it. He did all of his stuff. He complained DOJ was trying to interfere with the innocent incoming presidential transition of power, and he asked to hear arguments. We need a hearing. Stop this. We need a hearing from your sister. Can I get a hearing and can I get a hearing on the law thingy?
- [08:04]
Andy McCabe
Can I get a witness? No, wait a minute. I don't want to witness.
- [08:08]
Alison Gill
No, no, no witnesses. So he actually said, you know, you're gonna check out volume two on Friday. Let's have a hearing on this on Friday. Don't release it. Don't release it. And I was like, oh, here's where she'll do something. But she didn't. She actually, an hour later, denied that too. And then just after midnight, we got word that Merrick Garland had released the report to Congress. Then the press got it. And then around 12:30 in the morning, the public got it. And Andy, I ran into the studio. I ran to the studio, breathlessly ran to the studio. I recorded the first episode of the audio version of the report for our podcast listeners and the public. It was like a mad late night scramble with our network director, producers, audio engineers. We're all running around with our hair on fire trying to get this first part out to the public before anybody else did. I wanted to be first. And when it was all said and done, our amazing team got it out first thing Tuesday morning. And I was like, we did it. We're first. High five, team. And then I sat there and I waited for all the other audio versions to come in. And no one else bothered. Nothing happened. We were racing against no one. But it's been downloaded tens of thousands of times.
- [09:23]
Andy McCabe
Andy, that's awesome.
- [09:25]
Alison Gill
People are listening. People care about the truth. People care about the facts. And I think that that's pretty, pretty awesome.
- [09:31]
Andy McCabe
Hey, listen, winning the race, even when there's no one else racing, it's still a win. All right, A win's a win. Come on. That's amazing. I can just hear your slippers scuffling their way into the studio on. Get it on. Get on this guy. Let's go.
- [09:48]
Alison Gill
You know, pat my hair out because it's on fire. No, but, you know, I. I don't want to confuse this with my long held belief that an anger with the corporate media is rushed to be first and not right. That wasn't this. Because I'm just reading a thing that already exists, so I couldn't be wrong. I mean, you could disagree with some stuff Jack Smith said, but that's not on me.
- [10:11]
Andy McCabe
That's not on us.
- [10:12]
Alison Gill
That's not on me.
- [10:13]
Andy McCabe
Not on us.
- [10:13]
Alison Gill
So I don't want you to be like, oh, why do you care about being first instead of right. No, this is just reading a. I just wanted to be the first to get an audio version out there. So we are currently the only podcast and we're currently the only network, including the bigs, that have released an audio version.
- [10:30]
Andy McCabe
Hey, so this is the place you gotta go. You want to know all things about the special counsel.
- [10:37]
Alison Gill
Okay, that's, that's, hence the tagline. You're right.
- [10:40]
Andy McCabe
Saying that for 111 episodes. And gosh darn it, it's still true.
- [10:45]
Alison Gill
I figured people would parse through it and, and we'd get information about the standout points and what was different. So I actually didn't, when it first came out, I just, I just went right into the studio and started reading. So I didn't get to read the whole report at first. Of course I did after that, after getting a nap in, because it was the middle of the night and people were like, how come Andy wasn't on that first one? I was sleeping.
- [11:11]
Andy McCabe
I was sleeping, all right.
- [11:12]
Alison Gill
I wasn't gonna. Shame, I wasn't gonna wake Andy up and, and be like, come on, we gotta do this now. I'm, I'm the, I'm the obsessive one here. So I'm, I'm very glad. Thank you, everybody, for listening to it. I, I think I've posted on Blue Sky a couple of times. You know, my heart is full that people are, Tens of tens of thousands of people are interested in listening to what Jack Smith had to say. And in particular, and we're going to go over this a little bit. That cover letter was amazing.
- [11:45]
Andy McCabe
Yeah. Truly, I, I didn't expect that. I wasn't kind of, I wasn't aware of the filing on the docket the night before, but when I downloaded it that morning and started with the letter, it's like, wow. Even the letter is pretty revealing. It's very raw. There's some emotion in it. And some people reacted negatively to that. Some of the commentators on tv, I was kind of surprised by that. But this seemed to suggest that Jack Smith's kind of emotional. Not, I mean, I think emotional is overstating it. It's just kind of is a very potent letter. And by, by charging it in that way, he sacrificed his kind of nonpartisan, you know, approach, which I really don't agree with at all. It's the thing that he speaks most, most kind of passionately about is his team and what they've gone through. And under the circumstances, like, I mean, how can you fault the guy for wanting to represent how, how much he thinks of the people that he worked with, and certainly in light of what they've had to go through, the threats, the security questions, how hard, you know, they must have worked over the course of, of these, whatever, two years. Yeah, I, I, My hat's off to the guy. I, I think it was a Good thing what he did.
- [13:06]
Alison Gill
Yeah, I, I agree too. And, and also when we get into this, as we read the report on the, in the audio version, which is also in, in the feed here for this podcast, that I appreciated that he took the time to, to explain what took so long.
- [13:22]
Andy McCabe
Yeah.
- [13:23]
Alison Gill
Because there was a vacuum of non. Information for years about what went on. And I felt like Jack Smith felt that and wanted to explain.
- [13:39]
Andy McCabe
Yeah. Well, and it's a big part of this narrative. Right. People will spend the next however many dozens and dozens of years talking about this and evaluating, you know, whether or not the government lost an opportunity to hold Donald Trump accountable because they, they ran out time on the clock. And to some degree the answer to that is yes. But the qu. It's more complicated as to whether that was the result of poor choices by the government, either the Attorney General and the department or the special counsel, or whether it was entirely bad luck. I think it's a much more complicated. It's not a binary. I think both of those.
- [14:19]
Alison Gill
There's a million things, possibilities can be true and we go over them in the report. Perfect storm to not get this done.
- [14:26]
Andy McCabe
Right. Very helpful, though, to hear those things in the report, to see that side of it. Right. Understand why it took so long because.
- [14:32]
Alison Gill
These are things that must be addressed if a future Attorney General is going to be successful at holding accountable somebody who tries to overthrow or retain power. Overthrow the government or retain power. So if we ever do get to appoint an Attorney General again and this happens again, which now there is a higher likelihood because there's criminal immunity in the Oval Office, as Katanji Brown Jackson warned it might become the seed of criminality in the United States.
- [15:01]
Andy McCabe
Yep.
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Alison Gill
We have to make sure that our processes and our justice processes for these types of prosecutions need reform. Otherwise it doesn't matter who you put in as Attorney General, you're going to end up running out the clock again. So.
- [15:19]
Andy McCabe
Yeah. Yeah, I think so. And I mean, to be fair, I think there, there are some fair criticisms of decisions that were made very early on in the immediate aftermath of, of January 6th by DOJ and by the FBI in terms of the way they thought about the investigation and the way they pursued it initially, that I think if those decisions have been made differently, the timing would have been slightly more favorable to them. Now, would it have made a difference in the long run? Probably not.
- [15:48]
Alison Gill
No. And that's the, that's the problem. That's what needs to be addressed is we need to have, you know, a constitutional amendment overturning this immunity ruling. And we need to have better processes to overcome bunk privilege. Like another decision that could have been made early on that wasn't is instead of going through all of this to get these eight key witnesses, plus there were actually several more than that that we didn't know about that are revealed in the report. Not by name, but numbers wise. If they had just all been immunized upfront, they would have gotten this testimony much sooner, but they wouldn't have been able to bring charges against those folks. But they didn't bring charges against anybody else, so. And inevitably Kash Patel and Mark Meadows got immunity anyway after that whole almost year long thing. And it's like, well, we just spent a year to compel testimony and they're still not giving it. All right, immunity fine. Well, they could have maybe saved eight months had they just given everybody immunity up front. But again, I imagine Jack Smith wanted to indict some of these co conspirators and just ran out of time.
- [17:03]
Andy McCabe
Yeah, yeah, I think so.
- [17:05]
Alison Gill
Because he wanted to do it after the Trump trial. All right, we have a lot more to talk about, including some of the highlights of volume one, but we have to take a quick break, so stick around. We'll be right back.
- [17:24]
Andy McCabe
Welcome back. All right, let's talk about the Highlights of Volume 1 of the Special Counsel report. As we expected, there's not much new about Trump's crimes that we didn't already learn from the immunity brief filed with Judge Chutkan back in September. Though there were a few things we noticed that weren't discussed in the immunity brief. First, Jack Smith found some non related crimes committed by one of Trump's six co conspirators that he referred to the D.C. u.S. Attorney's office. On page 67, Jack Smith writes. In addition, the office referred to a United States Attorney's office for further investigation. Evidence that an investigative subject may have committed unrelated crimes. Wow. What is that?
- [18:10]
Alison Gill
I know, I was like, what? Tell me where is. And, and unlike Mueller's report, there's no appendix D here with referred criminal cases to. Yeah, even though they were all mostly redacted when we got the Mueller report. So I thought it was like that jumped out at me like who did what? What was it? And we have no idea.
- [18:32]
Andy McCabe
None. None. I mean it's presumably it's one of the six. Right. One of the six co conspirators. Although we don't know that for sure.
- [18:41]
Alison Gill
Right. It could have just been a subject.
- [18:44]
Andy McCabe
Some other rando, you know, easily described co conspirator who wasn't one of the top six that was referred to in the indictment. So, yeah, I don't know.
- [18:56]
Alison Gill
That person may have been indicted, and we just don't know for whatever it is they did. And we have no idea who it is.
- [19:01]
Andy McCabe
Yep, no idea. Okay. So also we got some additional detail on the exchanges between Trump and Pence. Specifically that Trump told Pence he would have to attack him publicly if Pence put out the statement about not having the authority to essentially disqualify the electors. Like, I don't think we had that specific. You know, we'd heard a lot about Trump's phone calls with Pence and the meeting in the Oval Office with Pence, the phone call the morning of the of January 6th before they went to the ellipse. But this was like a weekend contact in which Pence says, no, I can't do this and I'm gonna put out this statement. And Trump says, yeah, well, I'm gonna come after you.
- [19:49]
Alison Gill
Yeah. And I, I do remember there being Some, I think, January 6th committee testimony about someone saying that Trump said he would have to, you know, publicly say that. But I don't recall if that was different than this instance. You know what I mean?
- [20:08]
Andy McCabe
To me, this felt like it probably came from Pence. Now, we don't know that for a fact, but I should have the. I don't have the page number cite here, but it's very specific.
- [20:17]
Alison Gill
Right.
- [20:18]
Andy McCabe
So it seems like it had to been certainly wasn't Trump.
- [20:21]
Alison Gill
So came from the Pence testimony, which is something else they had to sue to get. And they talk about that later in the report. We also learned Jeffrey Clark and Scott Perry had some secret messages on signal that the special counsel obtained from a warrant issued before he was the special counsel. That was a Merrick Garland warrant. That's the warrant for Scott Perry's phone. And here it says in the report, Co Conspirator 4 obtained a highly classified briefing. This is Jeffrey Clark, who Trump wanted to make. The Attorney General obtained a highly classified briefing on foreign interference in the 2020 election on January 2, 2021. A briefing that yielded nothing to support the co. The conspirators allegations, as demonstrated by contemporaneous electronic messages between Jeffrey Clark and Scott Perry, the same member of Congress who introduced Jeff Clark to Mr. Trump. That really stood out to me because I was trying to figure out how you're going to prove that Donald Trump. Because one of Donald Trump's defenses here is, I thought I heard my DNI said there was foreign interference in the election. And so that's why I was having everyone investigate and claiming fraud, and you'll. And so that's a big part of his defense. And he ordered his dni, who was Ratcliffe, to brief Jeffrey Clark, But Ratcliffe said there's a foreign interference and there's none. And the DOJ had signal messages from Clark to Scott Perry confirming that. So apparently, either Jeffrey Clark told Scott Perry, hey, ratcliffe said there was no foreign interference. What do we try now? Or, you know, I don't know, I'm just making it up. But he had those text messages. This is a crucial piece of evidence, a trial to overcome that trump defense. But, Andy, what it took to get that one piece of evidence is nuts, okay? Because Merrick garland ordered the seizure of Scott Perry's phone, and then they had to unlock it, which took a minute, and then they had to. Then Scott Perry sued and said no speech or debate clause, and it went through this whole long trial. So it couldn't just immunize Scott Perry here.
- [22:34]
Andy McCabe
Right.
- [22:35]
Alison Gill
And then they got what they needed. And then also on a parallel track, Ratcliffe sued, saying, I'm not going to not sued, but said, I refused to try to quash his subpoena to testify to the grand jury using executive privilege. Ratcliffe was one of the ocha nostra, one of the eight key witnesses that fought this in court. So to get that one key piece of evidence to overcome a trump defense, you had to get a warrant to get a phone, unlock the phone, get the contents of the phone in a second search warrant, do the whole speech or debate clause thing, finally get the piece of evidence you needed, while also trying to compel Ratcliffe to testify to things that he claims are executive privilege or work product privilege or attorney client privilege. And, and so finally, after months and months and months, you get that one piece of evidence that's, again, I think, goes toward understanding everything that's involved in proving your case and how long it can take and the roadblocks that are in place.
- [23:37]
Andy McCabe
Yeah. Particularly when your case is an investigation of a whole bunch of people, basically all of whom have access to limitless legal representation. Right. Like most criminal defendants could never fight on these on this many grounds at the same time.
- [23:58]
Alison Gill
Right.
- [23:59]
Andy McCabe
Most witnesses in, in federal investigations don't fight subpoenas. They don't claim crazy privileges. They just, they show up and they, you know, they get interviewed by the u. S. Attorney's office or whatever. This is a. A uniquely intense level of litigation of every little micro point Right. Because there's lawyers to the time, there's.
- [24:23]
Alison Gill
Lawyers, members of Congress and a president.
- [24:26]
Andy McCabe
Yeah.
- [24:26]
Alison Gill
So there's all sorts of other privilege.
- [24:28]
Andy McCabe
And a president who has access to a limitless fund to pay for everybody's legal defense.
- [24:34]
Alison Gill
Yeah, absolutely.
- [24:35]
Andy McCabe
Yeah. All right, so that brings us to what's included in the report that isn't about Trump's crimes, but rather about the investigative process, other charges that Smith might have considered, and also rebuttals of Trump's defenses.
- [24:51]
Alison Gill
Yeah. And one of those main defenses was the advice of counsel defense. And the way that Jack Smith writes this up is brilliant because Trump said, well, I was just listening to my lawyers, Jeffrey Clark and Rudy Giuliani, and they told me, Sidney Powell told me. And there's so much evidence, first of all, that Trump called Sidney Powell crazy. There's evidence to rebut this defense, especially the advice of counsel defense, that they weren't there to advise you of legal stuff. Right. That wasn't their purpose in this thing. And, you know, he even brings up the fact, Jack Smith brings up the fact of something that we covered pretty extensively on the Jack podcast, and that was when Jack Smith went to Judge Chutkan and said, you need to order Trump to tell us whether or not he's going to use an advice, accountable defense, because if he does that waives his attorney client privilege with that counsel. And we're going to get a whole bunch of new evidence and we're going to need time to go over it before trial. And Trump's argument was, well, I only want a little bit of defense advice to counsel defense. I want the kind where I don't have to turn over my communications like.
- [26:08]
Andy McCabe
I want the cake and eat it too approach to the defense.
- [26:13]
Alison Gill
Check was like, yeah, no sign, Judge check in. And so we, that, you know, I thought that that was a really interesting part of the deport of the report is how Jack Smith talked about how he was going to push back on that defense were it used at trial.
- [26:28]
Andy McCabe
Yeah, yeah, I agree. I, it's, it's on the, even on the legal side of the report where he gets into the rationale as to why they brought charges at all and what the purpose of bringing the charges were in the, he, he believes compelling federal interests that he felt he had to defend by bringing a criminal action against the President of the United States. And, you know, it really kind of helps put the entire effort into a better perspective. This isn't just a Jack Smith versus Donald Trump, you know, former Democratic administration lawyer going after Former Republican president. We tend to personalize everything into these binary conflicts. That is not really how these decisions are made in the Department of Justice. At least it hasn't been so far. We'll see going forward. But you know, the idea that, you know, every prosecutor I've ever known thinks about and refers to that like the touchstone of their work is like, what am I, what is the right thing for me to do here in light of my obligation to seek the truth and to seek justice? And you really get that when Jack Smith is going through each. He's describing in detail each of the compelling federal interests that he thought were essential and could only be defended and pursued by taking this course of filing criminal charges.
- [28:08]
Alison Gill
Yeah, that and, you know, it's all in the federal rules of criminal procedure. You have to be able to obtain and maintain a conviction before you're going to bring charges.
- [28:18]
Andy McCabe
Yeah. The Justice Manual.
- [28:20]
Alison Gill
The Justice Manual, excuse me.
- [28:21]
Andy McCabe
Yep.
- [28:22]
Alison Gill
You have to ensure, you know, ensure that they're not being properly prosecuted in a different. Are they being effectively prosecuted for these crimes in a different jurisdiction? And he weighed that. He thought, well, maybe what Fulton county is going to bring here because, you know, he indicted before fallen county did, but if they bring charges, will that satisfy this or do we still need to proceed? And he determined, and we go over this as we read the report, that it is correct to proceed with criminal charges here. There were, there are a lot of different factors that have to go into it.
- [28:55]
Andy McCabe
Yeah. The fact that there was no alternative process to pursue accountability through a non criminal process. This was the only way to do this. And it was a challenging case, no question about it, but also one with a lot of evidence.
- [29:11]
Alison Gill
Yeah. And speaking of challenging case, something else that he went over in this report is why he did not bring Title 18, U.S. code 2383 charges inciting an insurrection. And I thought that was a fascinating exercise. It's kind of what we thought. You know, I sort of, at least me, I sort of on the surface thought, well, that just seems way harder because of First Amendment and political, protected political speech. But Jack's Smith goes into it, the history of the statute, how it's been brought, what the two elements are, how meeting each element in this case would be different. Something I hadn't thought of that insurrection charges have always been successfully brought when someone's trying to overthrow a sitting government. But Trump was trying to maintain his sitting government. So how would he go about proving insurrection when he's not trying to overthrow something, he's trying to maintain Power. And there's not a single analog, another any case where he can get the information or, or hints on how to proceed with proof for that. So I thought that was a really interesting discussion as well.
- [30:21]
Andy McCabe
Yeah, for sure. He talks about a question that we debated on this show so many times, like why weren't other people charged? Right. And you know, we've, I think kind of come to the conclusion we had a while ago because it was all about time, it was all about timing, it was about keeping this thing tight and focused on by far, without a doubt, the most significant possible target of this investigation. That is President Donald J. Trump. He was the center of the conspiracy and he was the beneficiary of the conspiracy, the intended beneficiary of the conspiracy. And he is the person who essentially incited the riot and advocated, you know, directed his, his followers, at least those on the ellipse that day, to march up to the Capitol. So yeah, it was good to kind of see him walk through that. It kind of confirmed the way that we've been analyzing this for a while. You definitely got the sense that he felt like there were cases to be made there.
- [31:26]
Alison Gill
Right.
- [31:26]
Andy McCabe
But it just couldn't be done before Trump. And the only chance they had of getting this thing completed before the election was to focus on the President.
- [31:37]
Alison Gill
Yeah. And that's kind of a between the lines reading. He doesn't come out and say, well, I didn't want to slow this thing down, we had to get this done. He basically says, look, we considered whether or not to bring this other co conspirators charges against them in separate cases or consolidated case. And as we were considering all of this, Trump won the election. So yeah, you know, and I thought it was interesting at the, at the very end of that section he said, by the way, so we aren't actually accusing any of the co conspirators or subjects of this investigation of committing crimes, but we are also not exonerating them.
- [32:15]
Andy McCabe
Yeah.
- [32:16]
Alison Gill
And I thought that that was well said. And something, you know, talking about accusing people of committing crimes, that's all over this report with Donald Trump, which was not in Mueller's report because Mueller concluded he couldn't accuse Trump, he couldn't accuse a sitting president of committing a crime because you can't indict him. And if you can't indict him, he can't face you in court. So you're violating his constitutional rights and his due process by accusing him of a crime without giving him the opportunity to defend himself.
- [32:45]
Andy McCabe
That's Right.
- [32:46]
Alison Gill
That was nowhere in here. And it was very clear. Jack Smith was like, he committed crimes. We prosecuted him.
- [32:53]
Andy McCabe
He.
- [32:54]
Alison Gill
Yeah, it was.
- [32:55]
Andy McCabe
But as we've said, he meets all.
- [32:56]
Alison Gill
The elements of this crime. Yeah.
- [32:58]
Andy McCabe
He's been accusing him of committing crimes for a year now. So he was indicted and then a superseding indictment. So. And then, you know, many, many times in extensive motion practice. So it's. There was no hiding the, Hiding the football here. He's. This is the fact that Jack Smith believes, and a grand jury believed, that there was probable cause to believe that, that the President committed these, These four offenses. So there you go.
- [33:26]
Alison Gill
And he talked about his process of, of considering whether to bring a superseding indictment after the immunity ruling and how that whole decision went down. Very interesting.
- [33:35]
Andy McCabe
Yep.
- [33:35]
Alison Gill
But that, that last line, there were some really, There were some really standout lines in this report.
- [33:42]
Andy McCabe
No, no doubt, no doubt. I, And I think generally the report is. It's a rare opportunity to hear to, to get this kind of perspective on these decisions. Like, decisions not, maybe not on this volume of them or the. In a matter as significant as this, but these sorts of tactical and legal decisions are made every day in prosecutions. You never hear about it. Right. The only thing you hear about is the indictment and then what's entered at trial, if there is one. And then, of course, the sentencing phase, and that's it. Prosecutors walk away. They fold the file up in boxes and send it off to be stored. And that's it. You get in this report, the real behind the scenes kind of, here's what we were worried about. Here's how we read the law. Here's how we applied it to these facts. Here's what we thought was strong about it or weak about it. So it's really kind of fascinating. If you're someone who has an interest in criminal prosecution and the law, it's a rare opportunity to kind of see behind the curtain.
- [34:47]
Alison Gill
Yeah, I agree. And what was that other quote that you were talking. You reminded me of that you thought.
- [34:54]
Andy McCabe
You know, this is really like almost kind of my favorite part of the report. And it comes from the COVID letter that he sent to Merrick Garland. And for me, this, this answers the question that I get so frequently now about Jack Smith from friends and people I talk to, and they're like, oh, it was all for nothing, and what's the big deal? You know, you can't hold people accountable anymore. But I understand that disappointment. I share it to some degree. But Jack Smith said this in his letter to the ag, he said, and I'm quoting here, while we were not able to bring the cases we charged to trial, I believe the fact that our team stood up for the rule of law matters. I believe the example our team set for others to fight for justice without regard for the personal cost matters, the facts as we uncovered them in our investigation and as set forth in my report, matter. Experienced prosecutors know that you cannot control outcomes. You can only do your job in the right way for the right reasons. And I just think that's a brilliantly pointed statement of why we do this, why these cases got investigated in the first place. It wasn't to cost Donald Trump the election. That was never the goal. No matter what you hear from Republicans and people on the Hill and Donald Trump himself, that was never the goal. The goal was to find out what happened here and hold people accountable if they had broken the law. And whether or not Donald Trump won the election was not a matter of concern for Jack Smith. It wasn't then, and I don't think it is now.
- [36:32]
Alison Gill
Hmm. Yeah, that quote really got. Really got me, as did the final sentence of the report, which. Let me see if I bring it up. Yes, I have the report, like, ready to go in one of my windows.
- [36:50]
Andy McCabe
It's never far away.
- [36:51]
Alison Gill
No, it's kind of always just right where I need it. All right, the final paragraph. The department's view that the Constitution prohibits the continued indictment and prosecution of a president is categorical and does not turn on the gravity of the crimes charged, the strength of the government's proof, or the merits of the prosecution, which the office stands fully behind. Indeed. But for Mr. Trump's election, an imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial. And I know that that was the big headline everywhere. Yeah, we. We believe and that we would be able to do this. And it was funny because I saw, like, Barb McQuaid and Joyce Vance and a bunch of U.S. attorneys is like, well, yeah, you can't bring charges if you don't believe that you can obtain and sustain a conviction at trial. But that was, I think, a pretty good closing statement.
- [37:43]
Andy McCabe
It's as strong what he says is as strong as what he's not explicitly saying, but very clearly communicating, which is, we got this. I mean, yeah, that's the standard, and it's appropriate that he ends the report that way. And he must have been able to conclude that if he was going to bring the indictment in the first place. But when you Read this report. You realize, man, there is a mountain of really impressive evidence here. And I have every, I have every confidence that Jack Smith and his team believe to this day that had this case gone to trial, Donald Trump would have been convicted of federal charges. And I believe that as well.
- [38:20]
Alison Gill
Yeah, I agree. All right, we're, thanks for listening, by the way, to the audio report. Again, we have two more episodes of that to conclude the audio version of volume one. But I want to talk a little bit about volume two. But we have to take a quick break, so stick around. We'll be right back. Hey, everybody, welcome back. All right, let's talk about the fate of volume two of this report. This is the one about the classified documents case. Glenn Kirschner sums it up pretty well writing for msnbc. He says it's a win for transparency. Volume one of the special Counsel Jack Smith's investigative report documenting Donald Trump's alleged 2020 election subversion crimes was released Tuesday, reminding readers of what the report calls Trump's unprecedented criminal effort to overturn the legitimate results of the election in order to retain power. Now, the less good news, Judge Cannon, who had temporarily blocked the release of volume one of Smith's report, has made it less likely that volume two will be released to the leadership of the House and Senate Judiciary Committees by scheduling a hearing on the matter for Friday, January 17th.
- [39:29]
Andy McCabe
Yeah, Garland agreed with Smith's recommendation against publicly releasing volume two, but he announced his intent to make it available for, quote, in camera review by the chairman and ranking members of the House and Senate Judicial Committees. Now, prosecutors note that such limited non public disclosures to members of Congress are routine and necessary to ensure that Congress can fulfill its own constitutional oversight functions. To minimize the risk of public release and potential harm to Nada and de Oliveira, the chair and ranking members of the House and Senate Judiciary Committees would be required to agree to specified conditions of confidentiality, including an agreement not to share information in volume two publicly.
- [40:13]
Alison Gill
Yeah. So as we discussed in the A block there, Cannon has extended her injunction to block volume two from going to Congress. And the 11th Circuit has yet to weigh in, maybe because they think Trump's about to put her on the 11th Circuit with them and they don't want to make real bad enemies, more enemies than they have. They've overturned her several times and maybe they'd rather just let this whole thing expire past January 20th. But Cannon held a hearing Friday, and actually she's holding the hearing as we sit here and record this, because we record this show on Friday and They're only a couple hours into it right now, but I'll break in here with an update if we. If we get one, if we need one. Like if that information comes out before the. In enough time before the episode airs. Yeah, to get it in. However, on Wednesday before the hearing, Cannon ordered a paper copy of volume 2 of the report to be hand delivered to her court for review in camera, she said. In anticipation of the January 17 hearing, parties in perspective intervener President Elect Trump are advised as follows. First, the court is prepared to hear argument on President Elect Trump's motion to intervene as to Volume 2. Accordingly, on or before January 16, 2025, counsel for President Elect Trump shall file a notice advising of his intent to present argument as to volume two only and if argument is requested, specifying the name of the counsel designated to present the argument during the hearing. Second. Now that sounds simple, right? But I'm sure they'll find a way to screw it up by not signing it or putting it on the wrong docket or something.
- [41:46]
Andy McCabe
Yeah, for sure.
- [41:47]
Alison Gill
Second, to facilitate the court's review of the defendant's joint emergency motion as narrowed by the court's order, the United States is directed on or before 2pm January 16, 2025, to hand deliver a copy of Volume 2 to the court to be reviewed in camera. Counsel shall contact chambers via email for the limited purpose of arranging delivery and shall communicate promptly with the Classified Information Security Officer in this matter to The Extent Volume 2 contains classified information, further, counsel for the United States shall provide a reasonable opportunity for the defendant's counsel to further review Volume two prior to the hearing if that opportunity is requested by the defendant's counsel. So she's ordered the DOJ to not give this to anybody, and now she's ordering the DOJ to give this to his attorneys if they ask. The hearing is a public hearing, but any discussions of specified content in Volume two will be conducted in closed sealed session to preserve the defendant's fair trial rights and to fully respect protective orders previously entered in the case. And maybe I'm a cynic, but this sounds to me like she just doesn't want a copy on the docket. I feel like a hard copy would have to be preserved by the court because it was reviewed in camera as part of a case, as part of litigation. But would it be safe from Trump in Cannon's care? I don't know. But because several journalists have filed FOIA requests for this volume, I imagine there'll be litigation. But if all the copies are destroyed, what are you Going to hand over to the journalists. You know, I don't know.
- [43:18]
Andy McCabe
Yeah, this is hard one to figure out, actually. The only piece of this that, like, makes a lot of sense to me is the fact that they. That the government might be obligated to share the hard copy with the defendants if they. If they request it. Because the reason they are not. The reason they're doing this is because there aren't electronic copies of the report floating around. Right. They want to be. They're not sending. It's not on the docket because you don't. The existence of the electronic copies that can then be downloaded, then the cat gets out of the bag. So they're trying to be very, very careful about not creating a situation in which an electronic copy could be mishandled or misappropriated.
- [44:00]
Alison Gill
Yeah, but if I'm a doj, I would be like, oops, I forgot. I just put it on the docket for the public. Just pull a Manafort. Right. He did that, like four times. Remember when he tried to redact something and only used black highlighter and journalists just removed it? Yeah, that was pretty fun.
- [44:18]
Andy McCabe
I mean. Yeah, it's. I'm trying to remember there's some big DOJ document scandal where they posted something to a docket they were not supposed to, and it got all downloaded in the middle of the night by a bunch of people. That happens fairly. Not frequently, but it does happen. So they don't want that happening here because that would just give rise to all kinds of outraged lawsuits.
- [44:40]
Alison Gill
And, oh, you know what? At this point, I'm like, fine, bring it. But I'm, you know, I'm don't work at the doj.
- [44:46]
Andy McCabe
I think it's a security thing. They're trying to do everything on, like, limited hand copies.
- [44:51]
Alison Gill
But there was no classified information. The DOJ said, well, here. Well, we delivered your copy. There's no classified information in it, so we don't have to contact the.
- [45:01]
Andy McCabe
Yeah, it's not classified. But, man, they don't want this thing getting out.
- [45:04]
Alison Gill
No, they really don't. Yeah. And, you know, that kind of brought up the. The whole idea of you. You. We. We discussed this, like, last week. You brought it up like, why don't they just drop the charges, dump them, or drop the appeal. They're not going anywhere and just release the report.
- [45:20]
Andy McCabe
Yeah.
- [45:21]
Alison Gill
But some lawyers have argued. I got a lot of pushback on this. Some. Some people argued that the Department of Justice can't do that because if Merrick Garland drops the appeal and the 11th Circuit never overturns Cannon's dismissal, which. That's. That's what would happen if they dropped the appeal. They would never overturn her dismissal. Then her ruling that Jack Smith was appointed unconstitutionally stands until it's overturned at some point in the future. And if we're ruling that the Special Counsel's appointment is unconstitutional stands, then his reports and work product are unconstitutional. But other legal experts and the Department of Justice argued against that in their 11th Circuit appeal.
- [46:00]
Andy McCabe
That's right. So the DOJ argued the attorney General is the Senate confirmed head of the Department of Justice and is vested with the authority to supervise all officers and employees of the Department. The Attorney General thus has the authority to decide whether to release an investigative report prepared by his subordinates. That authority is inherent in the Office of the Attorney General. It does not depend on the lawfulness of the Special Counsel's appointment to take actions as an inferior officer of the United States or on the Department's specific regulations authorizing the Attorney General to approve the public release of Special Counsel reports. Indeed, the Attorney General would have the authority to decide whether to publicly release a report prepared and provided to the Department by wholly private citizens Defendants objections to the Special Counsel's appointment thus simply have no bearing on the Attorney General's authority here.
- [46:57]
Alison Gill
Right. Great argument. But the 11th Circuit hasn't ruled on that argument, nor have they ruled on Cannon's dismissal of the case. But regardless, a week ago, I still thought this was a good idea that you brought up Andy. So I asked our listeners of the Daily Beans to write to Attorney General Merrick Garland and ask him to dismiss the appeal and release volume two. And guess what? On Thursday, four days later, Democrats on the House Judiciary did the same thing.
- [47:24]
Andy McCabe
Yeah. Coincidence? I think not. Yeah. So the Judiciary Democrats wrote, as Attorney General, it is incumbent upon you to take all necessary steps to ensure the report is released before the end of your tenure, including, if necessary, by simply dismissing the remaining criminal charges against Mr. Trump's co conspirators, Waltine Nada and Carlos de Oliveira. To the extent that such a decision to dismiss these cases might encourage these defendants to keep enabling the corruption of their superiors, those concerns are outweighed by the many indications that Mr. Trump will simply end the prosecutions against his co conspirators upon taking office anyway, and then instruct his Department of Justice to permanently bury this report. Mr. Trump has not been selective about his plans to weaponize the doj. For his own personal whims and preferences, he has promised to name a special prosecutor to target Political opponents stated he would use the department to prosecute his enemies and threatened to, quote, direct the DOJ to investigate progressive district attorneys who have not supported his personal agenda. And, of course, we are all well aware that his administration plans to give, quote, loyalty tests only extending government positions to those who pledged to put Donald Trump's interests above the Constitution.
- [48:50]
Alison Gill
The letter goes on to say, based on a review of court filings by the special counsel, this report presumably not only outlines the evidence supporting the 40 felony counts against Mr. Trump related to willfully hiding and mishandling extremely sensitive national defense information, but. But also explains why he retained and concealed classified documents and what they intended to do with those materials.
- [49:11]
Andy McCabe
Wow.
- [49:12]
Alison Gill
Neither of which was included in the indictment.
- [49:15]
Andy McCabe
Now, how do they know that?
- [49:17]
Alison Gill
Yeah, that's my question. It is essential that the American people in Congress understand how Mr. Trump mishandled our nation's most sensitive classified information, especially because he'll be sworn in as commander in chief and taking leadership of our national security apparatus in just five days. So, yeah. How did they know that? This report says that. It says why he. He hoarded these documents and what he intended to do with them. And then I also wanted to point out the fact that they. They assume a lot in that part that you read that there's still charges against Nauta and de Oliveira. They're asking Merrick Garland to dismiss the charges.
- [49:52]
Andy McCabe
Yeah, I think that's just a mistake and. And really kind of a. A silly one. I can't imagine. I mean, there's probably 50 lawyers who could have read this thing before they sent it out. They don't. There aren't charges, as we both know. As we all know, because the case was. There's only a pending appeal, and it's only pending because the government filed it. So the government could. Without seeking leave of court or any of the sort of things that you need to do when you dismiss a charge against a person here. They could just file something on the docket that says, we hereby withdraw our appeal. So, yeah, it's. It's very easy. But this is really remarkable how they know that there are these comments in the report about what they intended to do with this information is.
- [50:40]
Alison Gill
That's really right, because I'm looking at it. It doesn't say the report could contain that.
- [50:48]
Andy McCabe
No, it doubles down. Right. It says the report. Well, it says, presumably not only. Not only outlines the evidence against Mr. Trump related to willfully hiding and mishandling, but also explained. So they do have that, presumably in there. Okay, so maybe it's just a little, a little creative on their part.
- [51:09]
Alison Gill
But they, yeah, they also don't mention anything about the DOJ's argument that the Attorney General has. They don't cite any case law like, yeah, or the regs, or 509, 510, which give the Attorney General the power to release a report. I do like the, the thing that the, that Jack Smith argued in his 11th Circuit appeal where he's like, the Attorney General could release a report from Krusty the Clown if he wanted to. It doesn't matter if Judge Cannon thinks that Jack Smith wasn't appointed appropriately. The Attorney General has the, is vested with the power to release reports.
- [51:48]
Andy McCabe
There's never going to be some judicial determination that all of the work product that Jack Smith and his team did is now unconstitutional. Like, that's not really a thing. And in fact, once the report's out, it's out. You know, the detractors can say, I'm not going to read it. I don't believe it. It has no credibility because he was unconstitutionally appointed. I mean, who cares?
- [52:13]
Alison Gill
Like, right.
- [52:13]
Andy McCabe
People are going to say that anyway. I don't think it, I don't think that's a big deal. I do think that DOJ, on some level feels like it's important to them institutionally to get this ruling overturned because of what we've discussed before, that it's, it does, it does take a, it lands a shot at this concept of the special counsel. But honestly, it's from a district court judge in Florida who has a particularly challenging reputation, has almost no precedential value, certainly not outside of that 11th Circuit. So I don't know. I would, you know, balance that against the importance of getting this information out to people. To me, it's a clear case. But.
- [52:58]
Alison Gill
Yeah. And we're not going to get a ruling from the 11th Circuit on her overturning or dismissing the case or saying that Jack Smith was appointed unconstitutionally because there haven't even been oral arguments on that. So there's no way we're going to get a ruling that before January 20th. We might get a ruling vacating Judge Cannon's order, making this whole stupid hearing moot.
- [53:18]
Andy McCabe
Right.
- [53:19]
Alison Gill
And it might, that might be the one last thing that stands in the way of Merrick Garland releasing the report if he dismissed or withdrew his appeal or the appeal down there in Florida. But it's not looking good for volume two. But we do have volume one.
- [53:37]
Andy McCabe
Yeah. And again, we have to remember the question is not like, release the report entirely. It's release it to four people in Congress because Garland has already said it's not coming out publicly until the case is resolved. I guess if he pulled back the appeal, he could just push the send button and send it out to the world.
- [53:58]
Alison Gill
And what I don't get is why Dick Durbin hasn't written a similar letter saying, I'm one of the people that would be reviewing this report, and I need to review it because I'm about to provide advice and consent on the confirmation of Kash Patel, who is mentioned in this report.
- [54:13]
Andy McCabe
Right.
- [54:14]
Alison Gill
That's my constitutional duty. He's got a kind of a stronger case here than anybody over on the House Judiciary Committee.
- [54:22]
Andy McCabe
Yeah.
- [54:23]
Alison Gill
So we haven't seen anything like that. And I have asked listeners to write to Dick Durbin and ask him to do that, but he hasn't, but the Judiciary Dems did. So high five. Even though you made a little bit of a mistake there saying that he needs to dismiss the charges when there are none. He just needs to withdraw the appeal.
- [54:39]
Andy McCabe
Yeah. Total high five. They're appealing to the boldness of Merrick Garland, of which there is not much. So I don't want to raise expectations.
- [54:49]
Alison Gill
I wanted them to put all the law citations in there. Not like the be bold man. Don't. That's not the way to get Merrick Garland to do a thing. The way to get him to do a thing is to say, hey, here's the law.
- [55:00]
Andy McCabe
Yeah.
- [55:00]
Alison Gill
You even argued in your 11th Circuit appeal that you have the authority, regardless of Jack Smith's constitutionality of his appointment, you have the authority, so release it. But no, they didn't. But we'll see what happens. Keep writing those letters. My instructions and links are on my substack. All right, we have run out of time to talk about Pam Bondi's confirmation hearing and the comprehensive, I guess, timeline of the. The Trump prosecution starting back in January of 2021 by the Department of Justice. But those are going to be great things, I think, to discuss on the first episode of the new podcast that comes out next week. So we're going to save that. And I. The reason I want to do that is because I think it's important that we take some listener questions. But we do have to take one last quick break, and then we'll come back with a couple questions. So stick around. We'll be.
- [56:06]
Andy McCabe
Welcome back. Okay, here we are. And this is for the last round of listener questions for the Jack podcast. I'm kind of. I feel like a tear coming to my eye here, it's been such a great adventure. Had so much fun doing it, and we have heard so many great things from all the listeners who've taken the time to hit the link and send us their thoughts. They're sometimes really crazy. Jack, new podcast name, recommendations and just to ask questions about things that really forced me to think differently about the material we were covering. So I thank you so much for all these questions.
- [56:45]
Alison Gill
And we will continue answering your questions starting next week. So any questions you have about Pam Bondi, Trump's Justice Department, anything like that, any concerns that you may have, I.
- [56:58]
Andy McCabe
Can tell the FBI, if anything, the aperture is widening now and there's going to be even more subjects and investigations and people and personnel moves and things like that that I think are going to be interesting to people. So I'm looking forward to what we hear from this amazing audience then.
- [57:14]
Alison Gill
Me too.
- [57:15]
Andy McCabe
So today we're going to start with a pretty direct one from Jackie, and I think it's perfect with what we've covered today. Jackie says, Andy, you've read lots of indictments. On a scale from 1 to 10, how bad is this report compared to what you've seen before? So, Jackie, that's a great question. And I have to say, yes, bad or good?
- [57:36]
Alison Gill
Like, bad for Trump or like, that's.
- [57:38]
Andy McCabe
How I interpret it. I think she means, like, how strong is the indictment? Like, how, how, how confident are you in, you know, that the government's got a strong case?
- [57:48]
Alison Gill
How bad are these crimes?
- [57:49]
Andy McCabe
Yeah, yeah, that too. I read a lot of them. Some of them are like, really so ironclad that they are even stronger than this one. You know, an indictment in a drug case where somebody is seen selling drugs and then they are arrested and they have all the evidence on them. So, you know, there's like those run of the mill crimes, but, like, really strong indictments. But I have to say that this indictment and the report that talks about it is really, really amazing. It's an incredible thing because this is a very hard case. It's using charges that have never, ever been used in this context before against a President of the United States with limitless legal resources to employ to defend them. A super biased Supreme Court, I'm just going to call it out. This is a Supreme Court that is absolutely biased towards the President and this idea of an imperial presidency. So this was a big, big ask and I think they were able to do it because they have a ton of very powerful evidence. You read the report and you imagine what it would be like to be in the room as witnesses, like, oh, I don't know. Mike Pence is sitting on the stand and talking about a conversation he had with the president in which the president basically is extorting him to abandon his oath and do something to overturn the results of a free and fair election. I think it's the scope of matters that are up in the air here that are the subject of this indictment and the report. Incredibly important to all Americans and truly historic. And I think it's a very strong case. And like I said before, I'm confident that they would have gotten, they would likely have gotten some convictions if this thing had gone to trial.
- [59:38]
Alison Gill
Yeah, if this thing had gone to trial, you have to recall there was gonna. We still had another second interlocutory appeal. After all the back and forth and the briefings. Judge Chutkan would have to rule on what she thought were official acts and what was immune and what wasn't immune. I'm assuming she would have ruled in favor of the DOJ and most of the requests, and then that would be appealed by Trump, and then that would go to the D.C. circuit Court of Appeals, and then we would have to wait for a ruling there. And I'm sure that they would uphold whatever Judge Chin said, depending on who was on the panel. If not, it would have to go en banc, and then I think it would pass and then it would have to be appealed to the Supreme Court. And at that point, sometime at the end of next year, the Supreme Court, I'm sure, would have taken the longest time possible to consider the, their arguments. They would have set some oral arguments. We would have had to hear John Sauer again, who, you know, we're going to hear a lot more of because he's going to be the Solicitor General for the next four years, but he would have argued the case to the Supreme Court. And I am, if you have faith that the Supreme Court would let Judge Chutkan's ruling stand, you have more faith in the Supreme Court than I have in the Supreme Court.
- [60:55]
Andy McCabe
I think they would have gotten a couple of shots through to the net. I think the evidence that's in the superseding indictment that is based on non official conduct might have survived. I think the stuff in which they believe the, the, the presumption of immunity has been reported. The, the presumption of immunity arguments, that's a 50, 50 at best. And they could have lost some of that stuff. But you get just the non presidential official act evidence in and some of these Some of these charges survive and now it's game on. Yeah, I don't know, Maybe I'm an optimist. I've never seen.
- [61:36]
Alison Gill
I feel like if they got rid of the pen stuff that when reevaluated, there might not be enough to go forward. But we'll never know.
- [61:45]
Andy McCabe
Never know.
- [61:46]
Alison Gill
But yeah. I just want to make clear, everybody, it would be another at least year and a half before.
- [61:51]
Andy McCabe
Oh my God, two years. Probably two years once you get through all that litigation in the Supreme Court cycle, which would not have any sort of, you know, they wouldn't be on the hurry up schedule, which turned out not to be much of a hurry up anyway. Yeah, Long, long time away. All right, last question. You ready?
- [62:10]
Alison Gill
Yep.
- [62:11]
Andy McCabe
This one comes from Sally. Sally says my question is a wide angle lens inquiry. This podcast has provided so much information and education, not only about the special counsel investigation, but also our judicial system writ large. While I'm grateful for this podcast and all of your hard work, I do feel a sense of anxiety now that I better understand the vulnerabilities of our legal system, the inequities that can be exploited, and possibly the lack of constitutional or institutional mechanisms to check these abuses of power. So my question is, do you foresee a path forward for those who wish to uphold the rule of law? Will it be possible to move in the direction of a rules based system? The far right looks at the vulnerabilities of our system and figures out how to exploit them. Are there people on the pro democracy, pro rule of law side learning from the ways that the system gets exploited so that they can close the loopholes or shore up the vulnerability? Well, the answer to that part of your question, Sally, is yes, there are. I don't think those voices are nearly as loud and insistent right now in our political environment as the voices from the other side that you've pointed out, but they are there. And I think that fundamentally our constitutional system is based on ideas of fairness that are more enduring than one litigant's opportunity to game the system. I'm not trying to be Pollyanna here. I do think that we are in a tough spot and the next four years could be really challenging. And so we need to keep our eyes wide open and listen and consume information intelligently and to keep track onto how things are going. But at the end of those. But four years are going to come and go and then we'll have another big decision to make as to who's going to take this country forward for the next four years. And the four years after that, and on and on and on. And I do think that our institutions will survive. They'll be battered and weakened in some ways four years from now, but the opportunity begins anew to rebuild, rededicate ourselves, to do better, about explaining to our fellow citizens about what we think is important and why they should maybe make political decisions one way and not another. So I do think that there's hope and light in the future. We're a big, strong country. We've been here a long time, and we've endured worse times than this. And I think that we'll get through it. And there's always the chance to get better.
- [64:41]
Alison Gill
Yeah. And, Sally, I'm so glad you brought this up. It reminds me, you and I are great minds, think alike. I wrote up a substack that's called between the Lines of Jack Smith's Report. But because over a quarter of this is dedicated to the processes and how they were slowed down and exploited by Trump and his allies through witness intimidation and protracted privilege battles and doing battles with Twitter and about handing over Donald Trump's account and making them not tell Donald Trump they handed over his stuff. I mean, all of these things are things that have to be addressed. These privileged communications, these presidential communications, immunity granted by the Supreme Court, they all need to be addressed. And these guardrails need to be shored up. And that's what I think. Something I think. I think Jack Smith is trying to tell us that because. But if not for the election of Donald Trump, we would have got a conviction. And, you know, I hear all the time, you know, AG, I love your work. I love your stuff, but why do you keep defending Merrick Garland? What's that about? Why are you. They call me a Merrick Garland apologist, and I'm like, look, I've criticized him on a ton of occasions, especially, and including in this investigation, but in other things, too. And Jack Smith, I think, has. Has made a couple of unforced errors. We talked about one of those last week, Andy. But I'm not necessarily defending Garland as much as I'm defending the facts and why this thing was so slow and why, you know, people at the FBI pushing back Trump holdovers, pushing back systems that are in place, maybe the, The OLC memos that say you can't indict a sitting president. And I. My worry is I'm not so much defending Garland as I'm pleading with people to, please, don't only blame Garland and then throw the rest of this away. Because if we, if we blame Garland in favor of not updating our systems, I'm afraid that any future attorney general is going to face the same problems. And so that's kind of why I wanted to write that up. And so I appreciate you bringing that up, but I'm, I'm with you, Andy. I do think that the rule of law matters, and it's going to be a lot, like you said, a lot harder to defend it over the next four years. That's why we want to have this podcast going forward. And I appreciate you, Sally, writing this question because it's, it's kind of a, a good segue to end, to end the Jack podcast and, and begin the new podcast. So we appreciate you. And we still have our link in the show notes that the same link. So if you have a question for us for next week's show, the new show, please click that link and send it in. We really appreciate your questions, and thanks for listening.
- [67:25]
Andy McCabe
Yeah, thank you so much. Thanks for going on this journey with us. And hey, come with us on the next one.
- [67:32]
Alison Gill
Yep. We're not going anywhere. So we'll see you next week. I've been Allison Gill.
- [67:36]
Andy McCabe
And I'm Andy McCabe.