← UnJustified
UnJustified
Final Report Volume 1 | Part 4
01:01:08
Allison and Andy read the first volume of Jack Smith’s final report.
Loading summary
Transcript60 lines
- [00:01]
A
MSW Media. Welcome to Jack the podcast about all things special counsel. This is a very special episode. This is part four of the audio version, which is totally free to the public, of volume one of Jack Smith's final report on the January 6th case against Donald Trump. I'm Alison Gill.
- [00:27]
B
And I'm Andy McCabe.
- [00:28]
A
So we are in the middle of reading this report currently. We are going to start here on the bottom of page 87 with subsection B that Mr. Trump was not subject to effective prosecution in another jurisdiction. This is one of the reasons that federal interests were served by bringing a prosecution against Donald Trump. We covered section A and its four subsections in the last episode. So that's where we're at. And of course, you know, we'll be doing some sidebar commentary. We'll, you know, we'll let you know, we'll say sidebar when we're not reading the report directly to you so we can talk a little bit about some of the things that came up. So let's dive in again. Bottom of page 87, section subsection B. Mr. Trump was not subject to Effective Prosecution in Another Jurisdiction the next consideration under principles of federal prosecution is whether Mr. Trump was subject to effective prosecution in another jurisdiction. The office concluded that a prosecution carried out by a single local authority could not effectively hold him accountable for his efforts targeting the only election for national office. Although Mr. Trump was theoretically subject to state criminal charges for his conduct, based on the scope and magnitude of Mr. Trump's alleged crimes, no local prosecution could effectively hold Mr. Trump accountable for his attempts to overturn the valid results of the election, obstruct the congressional certification and disenfranchise millions of voters. Indeed, all citizens, not just the citizens in the seven contested states that he targeted with his criminal plan, suffered the impact of Mr. Trump's crimes, warranting a federal prosecution accounting for all his conduct and the federal interests it implicated. In addition, when the office was making its charging decision in the summer of 2023, no other jurisdiction had initiated charges against Mr. Trump or his co conspirators. After the grand jury returned the original indictment against Mr. Trump in this case, however, he subsequently was also charged with racketeering conspiracy in Georgia. And although the 40 count indictment in Fulton county encompasses some of the core conduct for which Mr. Trump was charged federally in the District of Columbia, its focus is is on a conspiracy to commit fraud that is to change the outcome of the election, including through false statements to Georgia state legislators and other high ranking state officials. It does not fully address Mr. Trump's alleged criminal conduct in furtherance of a conspiracy to obstruct the January 6th certification proceeding or a conspiracy against voters rights as described above. There are strong federal interests in protecting the integrity of the certification proceeding and the right to vote and have one's vote counted. So Andy, sidebar. This is something new, the consideration of whether or not to bring charges. And so I think he makes a good point. The Fulton county stuff didn't encompass some of the federal issues that happened. Plus he hadn't been indicted yet. We, we know that DOJ was the first to indict Trump for January 6th.
- [03:41]
B
Yeah, that's correct. It, it raises interesting questions about how much they knew about what was going to happen in Georgia, whether or not they had any kind of read about what Georgia had in store or what they were trying to accomplish. My guess is no. They probably looked at this situation and remember, you know, this was, this, this was a perspective that, that Jack Smith had to take at the very beginning. Right. So it's what, November of 22 when he is appointed. And so at that point, Georgia is far off.
- [04:15]
A
Right?
- [04:16]
B
Right. So they wouldn't have even really had a sniff that there was something coming that might, you know, obviate their, their reason for moving forward. They were really the only boat in the water, I'm sure, from their perspective in, in 22, November of 22.
- [04:30]
A
Yeah. And I imagine if there were an effective state prosecution that resulted in a conviction that encompassed the obstruction of the congressional hearing on January 6 and the conspiracy against voters rights, all voters, that there would have been an appeal filed. There would have been a motion or something from Donald Trump saying I was effectively criminally prosecuted in another jurisdiction, dropped these charges, but we never got there.
- [05:01]
B
Yeah. And let's also acknowledge the constant bias among federal prosecutors that they can do it better than any state, that anything that falls into their bucket should be done by them and no one else. So there's a little bit of that going on here too, don't kid yourself. But it is an inherently federal issue. Yeah. You have multiple states involved here, but even that fact alone points towards addressing it at the federal level.
- [05:34]
A
True. And not foreseeing any charges brought against Donald Trump in Arizona or Michigan or Wisconsin where they were not. Where they were not brought.
- [05:43]
B
Right. That's correct. All right, shall we jump back in?
- [05:47]
A
Yeah, let's jump back in. Bottom of page 88.
- [05:49]
B
Bottom of page 88, it is subsection C, which is entitled. There was no adequate non criminal alternative to prosecution given the strong federal interests. In holding Mr. Trump accountable described above, the office could not identify any adequate non criminal alternative to prosecution. To be sure, because he was president at the time of his alleged offenses, Mr. Trump was subject to impeachment and was in fact impeached, though he was not convicted. Impeachment, however, was never intended to be a substitute for criminal prosecution. Then they quote, the Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses, the impeachment trial and a separate criminal trial. And that is from Nixon versus United States. The Impeachment judgment clause itself expressly contemplates separate proceedings stating that the punishment for impeachment and conviction shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States, but the party convicted shall nevertheless be liable and subject to to indictment, trial, judgment and punishment. According to the law. Not only are impeachment and prosecution separate and distinct proceedings, they apply different standards and pursue different objectives. When Congress decides whether a president should be impeached and convicted, that process does not depend on rigorously adjudicating facts and applying law or on finding a criminal violation. Instead, the impeachment process is, by design, an inherently political remedy for the dangers to governance posed by an office holder who has committed treason, bribery, or other high crimes and misdemeanors. Congress may decide not to impeach or convict for reasons that have little or no connection to the nature of the evidence of the officer's culpable conduct. For example, the political alignment of Congress may prevent impeachment and conviction while without regard to the officer's conduct. Indeed, prior to 2020, no senator had ever voted to convict an impeached president of the same political party. And in cases like this one, where the President has left office by the time an impeachment trial occurs, senators may question their authority to convict regardless of the egregiousness of the conduct at issue.
- [08:19]
A
I. E. Senator McConnell.
- [08:21]
B
Exactly.
- [08:22]
A
Yeah. And I think it's really interesting that he brings up the impeachment judgment laws because that was actually something Trump used as a defense in his immunity trial.
- [08:34]
B
I was impeached, therefore I can't be put on criminal trial, which.
- [08:38]
A
And of course, it says the opposite. It goes on to say, during Mr. Trump's impeachment trial, his counsel insisted that the outcome of the proceeding would have no bearing on any future criminal prosecution, stating, quote, clearly, a former civil officer who is not impeached is subject to criminal prosecution. Senators who voted to acquit Mr. Trump expressed a similar view. For example, statement of Senator McConnell stating that Mr. Trump is still liable for everything he did while he was in office as an ordinary citizen and noting that we have a criminal justice system in this country. Thus, even if Mr. Trump had been convicted by the Senate, political accountability in the form of impeachment would not have been an adequate alternative for criminal accountability, especially considering the scope of Mr. Trump's offenses and the substantial federal interests they targeted. All right, we're on to subsection D in Reasons why the Federal There was a federal interest in in pursuing charges, and this is called Mr. Trump's conduct had no historical analog. During pre trial litigation, Mr. Trump contended that his conduct was materially indistinguishable from that of other actors throughout American history, including past presidents and vice presidents who had either claimed that an election was tainted by fraud or presided over a certification proceeding at the joint session where electoral votes were in dispute. Mr. Trump further argued that because those actors had not been prosecuted for their purportedly similar conduct, it would be unconstitutional to prosecute him for his conduct because doing so would either violate his right to fair notice or result in selective or vindictive prosecution. That is, even accepting that Mr. Trump engaged in the conduct alleged in the indictment and that such conduct violated the charged statutes, he maintained that prosecution was improper because it conflicted with historical practice.
- [10:37]
B
The historical episodes that Mr. Trump invoked arising from elections in 1800-1824-1876-1960, 2000, 2004 and 2016 did not involve similar conduct and did not supply a valid reason to decline to bring charges here. In litigation, the office addressed each historical episode he cited and explained why none was meaningfully similar to the charged conduct. Taken together, those episodes showed that, quote, there have been times, as in 1800, 1876 and 1960, when genuine questions have arisen over which slate of electors from a particular state has been duly appointed. Quote There have also been times, as in 1824, when the failure of any candidate to obtain a majority of electoral votes has thrown the election to the House of Representatives. And quote, there have been times, as in 2000, 2004 and 2016, when those dissatisfied with the results have sought to raise objections to the electoral vote count, resulting in either the objections being overruled or, in one case, a brief adjournment designed as an Ohio focused protest vote without the hope or even the hint of overturning the victory of the President. But none of the historical episodes at issue involved any attempt by any person to use fraud and deceit to obstruct or defeat the governmental function that would result in the certification of the lawful winner of a presidential election. The district court found that there were no historical analogues to Mr. Trump's alleged criminal conduct. When Mr. Trump filed a motion to dismiss the indictment on a claim that he was being selectively prosecuted because of a historical, quote, track record of similar unprosecuted efforts to challenge elections, the district court rejected it, explaining that Mr. Trump was not being prosecuted for publicly contesting the results of the election. He is being prosecuted for knowingly making false statements in furtherance of a criminal conspiracy and for obstruction of election certification proceedings. Likewise, in its opinion denying Mr. Trump's immunity motion, the district court found that, quote, none of the contested elections Mr. Trump invokes is analogous to this case as none involved any allegation that any official engaged in criminal conduct to obstruct the electoral process.
- [13:13]
A
And it's funny, he brought up the same defense in his classified documents case, saying, hey, you didn't indict Bill Clinton for the socks and you didn't do that, you know, and of course, they were very different situations. And that would have borne out were it not on a secret Judge Eileen Cannon docket. And it didn't matter because she ended up dismissing, wrongly dismissing those cases anyway. All right, we're going to take a quick break. We'll be back with Section four, Investigative Procedure and Policy. Stick around. We'll be right back. Hey, everybody, welcome back. We are reading the audio version of volume one of Jack Smith's final report, and we are now on page 92, section 4, investigative procedure and Policy. Upon appointing the Special Counsel, the attorney General explained that the appointment underscores the department's commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors and agents to continue their work expeditiously and to make decisions indisputably guided only by the facts and the law. So let's talk a little bit about they quote, by the way, some of the supporting documentation from from inside that Attorney General appointment memo. And it says the office conducted its work accordingly. So subsection A here in the Investigative Procedure and Policy is the investigative process. Employing traditional investigative tools, including voluntary interviews, grand jury subpoenas, and search warrants, and subject to the same legal requirements binding on all federal prosecutors, the office spanning the period predating the special Counsel's appointment to the completion of its work, developed a thorough record of independently verified facts on which it based its prosecutive decisions in the election case. Now, I'M going to take a sidebar here and I want everybody to hear that part. This is Jack Smith saying every all of the work, there was a lot of work that was done before he was appointed and they developed a thorough record of independently verified facts and then the Office based its prosecutive decisions on those in the election case. And they also developed a lot of facts and they'll talk about that too. The investigative record comprised voluntary witness interviews and grand jury testimony from numerous individuals, as well as voluminous records such as emails, text messages, encrypted messages, memoranda, and other documents. These records were obtained through both voluntary productions, by dozens of witnesses and through compulsory process and court orders, including grand jury subpoenas directed to witnesses and entities, court orders for non content information such as sender recipient date and time from electronic communications accounts and search warrants to obtain evidence from physical sources and or locations, electronic devices and email and iCloud accounts. The office also obtained records from other components of the Department of justice, including the U.S. attorney's Office for the District of Columbia and other federal agencies, including the National Archives, the Department of Homeland Security, the Department of Defense, and the Office of the Director of National Intelligence. Further, the Office collected more than 1 terabyte of data from publicly available sources such as social media postings and websites. All discoverable material was provided or made available to Mr. Trump in discovery during the prosecution of the election case.
- [16:52]
B
Throughout its work, the Office complied with the rules, regulations, procedures, practices, and policies of the Department of Justice, including consulting the Justice Manual, the Department's publicly available guidebook on policies and procedures, and consulting or obtaining requisite approvals from other Departments components. For example, as required under the Justice Manual, the Office obtained approvals from the Criminal Division's Office of Enforcement Operations, which provides legal guidance on the use of sensitive law enforcement tools such as certain subpoenas and search warrants involving attorneys and as discussed more below, the Office consulted the Criminal Division's Public Integrity Section, which oversees the investigation and prosecution of federal crimes affecting government integrity. Pursuant to the Justice Manual requirements pertaining to the service of subpoenas and other process on Members of Congress, the use of election fraud charges, and the Department's election year sensitivities Policy, a long standing Department policy regarding the conduct of sensitive investigations during an election year. Even when not required in accordance with the best traditions of the Department, the Office actively sought advice and guidance from subject matter experts throughout the Department. For example, the Office requested assistance from the Civil Division and Office of Information Policy on Civil Litigation for Public Access to investigative and prosecutive materials. And the office conferred with the Office of Solicitor General, which is responsible for supervising and conducting government litigation in the United States Supreme Court the Office of Legal Counsel, which provides binding legal advice to the Executive branch and the Criminal Division's Appellate Section, which conducts and oversees the Department's criminal appellate litigation on complex statutory, constitutional and other legal issues, including regarding charging decisions in the original and superseding indictments.
- [18:54]
A
Well, I'm really glad he laid all that out in the section because it's, I think it's important for people to understand the multiple steps in departments and agencies and advice of counsel that is sought to take every single investigative step in, in the process. It really does add to the time.
- [19:12]
B
It's also, if I let me say one thing, it's also remarkable that we learned so little about, about what was going on, because there were a lot of people who were brought into that tent of, of security and, and consideration as they were mulling over very serious decisions in this investigation, but yet none of this stuff leaked out. It's really pretty impressive.
- [19:36]
A
Yeah, I've got to say, unless you wanted it to, and then you're probably angry. Section B Investigative and Prosecutive Procedures in an election year, this is one of those considerations, right, where you can't take any overt investigative steps within, what, 60 days of an election. So this section begins. Mr. Trump's announcement of his candidacy for president while two federal criminal investigations were ongoing, presented an unprecedented challenge for the Department of Justice and the courts. Given the timing and circumstances of the special counsel's appointment and the office's work, it was unavoidable that the regular process of the criminal law and the judicial system would run parallel to the election campaign. Mr. Trump's position was that when the judicial process conflicted with his election campaign, the courts should always yield. As discussed below, the courts did not agree. Under these unique circumstances, the department's actions would be criticized by one constituency or another, regardless of which path the investigations took. Accordingly, the office leaned on established department policy, practice and wisdom, and focused on doing its job promptly and thoroughly. From the outset and throughout its work, the office recognized the weighty issues presented by matters under its mandate and operated on the principle that the best interests of the department and the nation required prompt investigation and decision making. The office's exceptional working pace ensured that its investigative work could be completed, charging decisions could be made, and any necessary indictments could be returned. By the summer of 2023, long before the election, the office had no interest in affecting the presidential election. And it complied fully with the letter and spirit of the Department's policy regarding election year sensitivities. It did so through fundamentally sound practices, moving its investigations swiftly, making charging decisions and returning indictments well before the election, litigating its cases on the timetables set by the courts, and consulting with the public. What is it? The Public Integrity Unit pin. Yes, understood. Very interesting paragraph there, talking about mentioning twice that these trials were scheduled well before the election.
- [22:01]
B
Yeah, yeah, it's a good point. Okay, now we move to subsection 1, the department's election year sensitivities policy. The staff of the office was deeply familiar with and committed to the Department's election year sensitivities policy as it included fraud and public corruption. Prosecutors with many years of experience working in and leading pin. Again, that's the Public Integrity section of the Department of Justice. The Special Counsel himself and one of his counselors had served as Chief of Penn. Two of the attorneys had been Deputy Chiefs in Pennsylvania, and two other attorneys in the office had been trial attorneys in Penn. Collectively, prosecutors in the office had many years of experience providing training, advice and guidance to prosecutors and law enforcement agents throughout the Department on how to comply with the Department's election related policies. In fact, the counselor in the office who had previously served as Chief of Penn was one of the drafters of the first election year sensitivities memorandum issued to Department attorneys. The Department's policy regarding elections has two overlapping components. The first is focused on the prosecutor's purpose. It prohibits prosecutors from taking any action or timing any action for the purpose of effecting an election. That flat prohibition applies to all actions by prosecutors and at all times during an investigation or prosecution. The second and overlapping component focuses on safeguarding the Department's reputation for fairness and nonpartisanship, requiring that prosecutors take particular care in an election year and consult with pen when an action is, quote, likely to raise an issue or the perception of an issue. And that's from the Justice Manual.
- [23:58]
A
Interesting. All right, onto page 97. We're at the top. These policies are well established within the department. In 2008, in the wake of allegations and investigations concerning politicization in the Department and recognizing that there was uncertainty regarding the terms of the Department's policies and practices in election years, the Criminal Division and PIN evaluated the feasibility of establishing a specific and definitive set of rules regarding the duty to avoid interference with elections in the run up to an election. While prosecutors had long been advised to exercise particular care in in politically sensitive cases, in the two or three months immediately prior to an election, the Department had never had a formal 60 or 90 day rule that governs such situations. As part of its evaluation in 2008, the department considered whether to codify a particular rule, but ultimately concluded that the best course was instead to provide guidance in the form of an Attorney General Memorandum addressing the need for particular care to protect the Department's reputation from impartiality in an election year and setting forth in writing the core principle that prosecutors and agents may not act for a political purpose. On March 5, 2008, Attorney General Mike Mukase issued the first Election Year Sensitivities Memorandum setting forth this guidance in relevant part. The Attorney General Memorandum stated, department of justice employees are entrusted with the authority to enforce the laws of the United States and with the responsibility to do so in a neutral and impartial manner. This is particularly important in an election year. Now that the election season is upon us, I want to remind you of the Department's existing policies with respect to political activities. The Department of Justice has a strong interest in the prosecution of election fraud and other election related crimes, such as those involving federal and state campaign finance laws, federal patronage laws, and corruption of the election process. As Department employees, however, we must be particularly sensitive to safeguard the Department's reputation for fairness, neutrality, and nonpartisanship. Simply put, politics must play no role in the decisions of Federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department's mission and with the principles of Federal prosecution. If you are faced with a question regarding the timing of charges or overt investigative steps near the time of a primary or general election, please contact the Public Integrity Section of the Criminal Division for further guidance.
- [26:47]
B
Since 2008, attorneys general have issued memoranda containing substantially the same guidance to prosecutors and agents in each election year. In August 2022, just three months before the Attorney General appointed the Special Counsel, the Department codified its election year policies in the Justice Manual. Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department's mission and with the principles of Federal prosecution. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section and such action shall not be taken if the Public Integrity Section is advises that further consultation is required with the Deputy Attorney General or Attorney General. Implementation of the election year sensitivities policy can raise challenging questions. Taking action may be viewed as hurting a candidate, while refraining from action may be viewed as helping that candidate. This challenging landscape counsels in favor of structuring and timing investigations in a manner that enables prosecutors and agents to to avoid these issues as much as possible and do what they do best. Focus on the needs of the case. Consistent with that PEN often counsels prosecutors to move their investigations along promptly and avoid unnecessary delay that could needlessly place them in the position of deciding whether to take overt action or bring charges in the period immediately before an election. Because of the Office's deep familiarity and experience with these policies, it focused on completing both of its investigations promptly and making timely charging decisions long before the election. Well, maybe not long enough, but that was the idea, I guess.
- [28:54]
A
Who saw SCOTUS coming? I mean seriously, with that immunity decision and putting everything off. That must have been the subject of a lot of discussions, and it comes up here in this report too, and we'll get to that. But we have to take a quick break first, so stick around. We'll be right back. All right, everybody, welcome back. We are at the bottom of page 99. Subsection 2 pre indictment procedures during the investigation and prosecution of this case, the Office consulted regularly with pin. For example, because the election case involved election fraud charges under Title 18, U.S. code 241 and 371, the office consulted with PIN and its Election Crimes Branch prior to returning the election case indictment in the District of Columbia as required by the Justice Manual. In addition, the Office consulted with PIN regarding investigative steps that involved gathering evidence connected to Congressional staff pursuant to the Justice Manual. As discussed below in section 5, the office also consulted PIN regarding issues that arose in litigation involving the Speech or Debate Clause. And that's all has to do with Donald Trump and also members of Congress. However, because the Office proceeded expeditiously with its investigation and charging decisions, no election year sensitivities consultation with PIN was required prior to returning the original indictment in either the Classified Documents case in June of 2023 or the election case in August of 2023. Subsection 3 Post indictment procedures the two components of the Department's elections year sensitivity policy play out differently in the context of post indictment litigation. First, the bedrock principle that prosecutors may not take any action for the purpose of affecting an Election or providing an advantage or disadvantage to any candidate or party applies fully during post indictment litigation. On this score, the Office did not take a single action at any time for any such purpose. Rather, the Office's mission was at all times to uphold the law and carefully follow the requirements of the justice of the Criminal justice process.
- [31:18]
B
Unlike the purpose focused component of Department policy, the component that focuses on the Department's reputation for impartiality stands on a different footing with respect to pre indictment and post indictment activity. This component of the policy applies fully to the timing of actions by prosecutors prior to indictment, bringing charges, taking over investigative steps, and making public statements. For such actions, prosecutors must take election year sensitivities into account and they are required to consult with pin. However, once the case is charged, this component of the policy does not limit the ability to litigate according to the schedule set down by the Court and does not require consultation with PIN for such litigation, whether it is during an election year or at any other time. The duty of prosecutors after indictment is to litigate their cases fully and zealously. Considered consistent with the Constitution, the United States Code, Federal Rules of Criminal Procedure, Rules of Professional Responsibility, and dictates of the calendar set forth by the Court once a case is charged, no policy of the Department limits the ability of prosecutors to litigate effectively on schedule set by the court. And that is what the office did. Sidebar here for one second.
- [32:41]
A
Yeah. Really? I love this.
- [32:42]
B
So glad to finally read this because I've gotten the question a thousand times on television. Well, why are they doing this so close to the election? The case was brought long before the election.
- [32:55]
A
Yeah. And the only time you have to consult with Pen or consider this 60 day or 90 day policy is pre indictment. Once the charges are brought, your job is to litigate the case.
- [33:06]
B
That's right. When you, when you bring charges now, the case is in the court's hands and you have to just deal with whatever schedule the judge gives you. You don't get to control that anymore.
- [33:17]
A
Right. And that's why we were always like when Trump was telling Judge Chuck in it's the election, it's close to the election. She's like, I don't follow. I am not bound by that Department of Justice policy, sir.
- [33:27]
B
Yeah.
- [33:28]
A
And I'm glad she said that. And I'm really glad Jack Smith explained it here.
- [33:31]
B
Yes.
- [33:32]
A
All right. Bona page 101. Consistent with the Department's policy after indictment, the office litigated the election case according to the schedule set down by the District Court. The D.C. circuit and the Supreme Court. Given the gravity of the issues presented by the charges, the Office sought to move the case forward expeditiously for two central reasons unrelated to the election. First, the Speedy Trial act mandates expeditious resolution of criminal cases, and it does so not only for the benefit of the accused but in the best interest of the public. The act was designed with the public interest firmly in mind, and that's quoting Zedner v. United States. Couple other quotes here and citations Strunk the United States the public interest in a broad sense, as well as the constitutional guarantee command prompt disposition of criminal charges and Cobble Dick the United States Everybody remembers that name. Encouragement of delay is fatal to the vindication of criminal law. Second, those fundamental interests were heightened in this case, which raised matters of utmost gravity, urgency and national concern, charging a former President with conspiring to thwart the peaceful transfer of power through lies that undermined the democratic process and ultimately fueled a violent attack on the United States Capitol. These criminal charges warranted prompt and fair disposition, and that is what the Office sought to achieve both during the investigation and after the case was charged. However, Mr. Trump sought to delay the proceedings, taking the position that when the judicial process conflicted with his election campaign, the courts should always yield.
- [35:09]
B
The courts did not agree. They consistently rejected Mr. Trump's efforts to delay or stop the proceedings. The Court's words and actions throughout the litigation reflected their fundamental commitment to the operation of the judicial process notwithstanding the election campaign. The Office also sought to move the election case forward expeditiously in the Supreme Court based on the public interest of a prompt resolution of the case and the precedent set by the Watergate special prosecutor in United States v. Nixon, where the Court granted both the United States Petition for cert before judgment and also the President's cross petition for cert before judgment. Because of the public importance of the issues presented and the need for prompt resolution, the Office filed a petition for certiori before judgment which would have moved the election case directly to the Supreme Court from the District Court and argued that the Court should follow the Nixon model. The Supreme Court did not grant the Office's petition for certiori before judgment. However, like the D.C. circuit, the Supreme Court ultimately expedited its consideration of the case, further confirming the Office's emphasis on the strong public interest in a prompt resolution.
- [36:28]
A
Following the Supreme Court's immunity decision, the Office again proceeded in a manner that was fully consistent with the letter and spirit of the Department's election year Sensitivities policy litigating the case according to the schedule established by the District court, taking action based upon the law and the best interest of the case, and consulting with pin. Upon receiving the decision, the Office immediately began a multifaceted process to determine the best way forward, including one A thorough evaluation of the opinion itself that probably involved Bourbon 2 an exhaustive that was a sidebar, by the way, that's not in Jack Smith's report 2 an exhaustive and detailed review of the evidence and the allegations in the original indictment to determine whether there was sufficient non immune evidence to support the charges in light of the opinion 3 Once the office determined that there was sufficient non immunized evidence, an evaluation of whether to litigate the case based on the existing grand jury record and indictment, or instead seeking a superseding indictment that would be presented to a grand jury that had not heard any immunized evidence and 4 given the timing, evaluate whether all of the necessary steps could be undertaken consistent with election year sensitivities policy. The Office determined that there was sufficient non immunized evidence to support the charges and that the best course of action for the case was to obtain a superseding indictment that implemented the Supreme Court's holding in Trump and presented and present that new indictment to a grand jury that had not heard evidence of immunized conduct. Before doing so, the Office consulted with PIN for two purposes. 1 To obtain PIN's concurrence regarding the proposed election fraud charges under Title 18, U.S. code 241 and 371 as required by the Justice Manual and given the timing of the superseding indictment, to consult with PIN regarding election year sensitivities pursuant to the Justice Manual and the Attorney General's Election Year Sensitivities Memo. PIN concurred with the return of a superseding indictment which was returned by the Grand Jury on August 27, 2024. Following the superseding indictment and consistent with the District Court's instructions On August 30, 2024, the party submitted their positions regarding the schedule for pretrial proceedings. The Office proposed that it file an opening brief regarding immunity in which it would provide detailed information without which the Court could not undertake the fact bound analysis that was required by the Supreme Court's remand. The Office argued that its filing would include the information that the defense would need to address and that their district court would need to make its immunity determinations regarding both the allegations in the superseding indictment and the evidence that the Office would introduce at trial in a manner that would avoid the prospect of multiple interlocutory appeals. Were the defense to file first on remand, it would leave a large gap in the analysis that the district court was required to undertake because only the office could identify all of the evidence upon which the charges were based and upon which it would rely at trial. The office did not propose a particular date or filing for its immunity brief or a schedule for conducting the immunity litigation. It left those matters to the court's discretion. Mr. Trump proposed that the immunity litigation should not begin until December 2024.
- [39:59]
B
The district court issued an order setting a new schedule for pretrial litigation and directing the office to file its opening immunity brief on September 26, 2024. Prior to filing its immunity brief, the office again confirmed with Penn that the election year sensitivities policy did not apply to conducting such post indictment litigation according to the court's schedule and that the Justice Manual did not require consultation with Penn regarding such litigation. And after the office filed its immunity brief and Mr. Trump attempted to delay its public disclosure, the district court again rejected his attempt to conflate the election and and the criminal justice process. Quote in addition to the assertions discussed above, defendants opposition brief repeatedly accuses the government of bad faith partisan bias. These accusations, for which the defendant provides no support, continue a pattern of defense filings focusing on political rhetoric rather than addressing the legal issues at hand. Not only is that focus unresponsive and unhelpful to the court, but it is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in this case. Throughout its work, the office was focused entirely on its mandate to uphold the law and nothing more. The career prosecutors in the office conducted its investigation and prosecution in a manner that complied fully with the Department's policies regarding election year sensitivities.
- [41:30]
A
All right, we're going to take another quick break, but when we get back, we're going to talk about Section 5, the investigative challenges and litigation issues. And this is where, you know, we've been discussing that at least a quarter of this report is dedicated to the stonewalling from Trump and his allies and the Supreme Court that really threw this prosecution off track. And we'll get to that after this break. Stick around. We'll be right back. All right, everybody, welcome back. We are going on now to section five of the report, beginning in the middle of page 107 as the page numbers appear in the report itself. These are the investigative challenges and litigation issues. And this is where we get a full briefing from Jack Smith and almost a warning about how we have to figure this out for any future despots that we might want to bring charges against. So it says, in a corruption or conspiracy investigation, it's not unusual for a subject or target of the investigation to continue to wield significant influence over or command strong loyalty from potential witnesses, often complicating the ability of prosecutors to obtain evidence. That dynamic was amplified in this case given Mr. Trump's political and financial status and and the prospect of his future election to the presidency. As described below, one company resisted a lawful court order issued during the office's investigation, and important witnesses made the choice to assert privileges against providing evidence based on their own official positions in the government. In addition, after his indictment, Mr. Trump used his considerable social media presence to make extrajudicial comments, sometimes of a threatening nature, about the case, and the office was forced to pursue litigation to preserve the integrity of the proceeding and prevent witness intimidation. Mr. Trump also was able to raise claims of executive privilege and presidential immunity, and this section discusses each of those challenges and how the office addressed them. Section A Pre Indictment Litigation with Third Parties Number one the Twitter Search Warrant Remember this? I remember this, yes.
- [43:53]
B
How could I forget Mr. Trump's public.
- [43:56]
A
Statements and specifically his posts on social media Twitter constituted important potential evidence of his criminal conduct and intent. Accordingly, on January 17, 2023, the office applied for and the District Court authorized a search warrant requiring Twitter to provide certain information regarding Mr. Trump's Twitter account. At the same time, as is common in non public criminal investigations, to prevent individuals under investigation from destroying evidence or otherwise hampering the process, the office asked the District court to issue a non disclosure order which would direct Twitter that it could not inform Mr. Trump that the office was seeking information regarding his account. The District Court granted the request and issued the non disclosure order.
- [44:43]
B
The search warrant required Twitter's compliance within 10 days of its issuance, but the day before that deadline, its senior Director of legal informed the office that, quote, it would not comply with the warrant by the next day. Shortly thereafter, Twitter's senior Director of legal further informed the office that it would not comply with the warrant, quote, without changes to the NDO permitting Twitter to notify Mr. Trump of the warrant. Twitter claimed that the NDO impinged on its First Amendment interests in communicating with the former president, which, according to Twitter, were heightened because the warrant purportedly could implicate issues of executive privilege, though it conceded that it had no standing to raise any privilege issues. The District Court later described Twitter's actions as quote, extraordinary and noted that its resistance to the NDO appeared to be a first in the company's history. And then they quote, for what appears to be the first time in their nearly 17 year existence as a company, Twitter seeks to vacate or modify an order issued under the Stored Communications act commanding that the company not disclose the existence of a search warrant for a user's Twitter account and further seeks to condition any compliance by the company with that search warrant on the user or user's representatives who first being notified about the warrant and given an opportunity to stop or otherwise intervene in the execution of the warrant. That's all a quote from from the court there. The office promptly moved in District Court to have Twitter show cause why it should not be held in contempt of court, asking the District Court to impose a penalty that doubled with each day of non compliance, starting at $50,000. In rejecting Twitter's basis for refusing to comply with the warrant, the District Court emphasized that the search warrant and NDO had been, quote, issued by this court after being apprised of extensive reasons sufficient to establish probable cause for issuance of the warrant and to meet the statutory requirements for an ndo, to which reasons Twitter is neither privy nor entitled to be privy. The District Court rejected Twitter's contentions, finding that there existed compelling government interests to maintain the NDO to preserve the integrity of the investigation, and that as a practical matter, if accepted, Twitter's argument would invite repeated litigation by Twitter and other electronic communication services to providers to challenge ndos in order to alert users to Stored Communications act orders, particularly for high profile, highly placed users such as current or former government officials with whom the providers might want to curry favor with concomitant and inevitable delays in execution of Stored Communications act orders and resultant frustrations in expeditiously conducting criminal investigations.
- [47:42]
A
Mm, interesting.
- [47:44]
B
Pretty prophetic.
- [47:46]
A
Who own Twitter?
- [47:47]
B
Yeah.
- [47:48]
A
What's his name?
- [47:49]
B
Curry. Favorite.
- [47:51]
A
He'll be on the dais on January 20th. Let's just say that. All right. Ick goes on to say, by the way, we are now at the top of page 110. The district court ultimately held that the NDO lawfully prohibited Twitter from notifying Mr. Trump about the warrant and fined Twitter $350,000 for failing to comply with the court order search warrant in a timely fashion, finding that Twitter failed to show good faith and substantial compliance in response to the warrant. The sanction and NDO were both upheld by the DC Circuit, and the Supreme Court declined to review the case and to quote the ruling here upholding NDO where the order was narrowly tailored and the district court specifically found reason to believe that disclosure of the warrant would jeopardize the criminal investigation. And also a quote, holding that the sanction ultimately imposed was not unreasonable given Twitter's $40 billion valuation and the court's goal of coercing Twitter compliance. All right, so that's Twitter subject to number two, subsection two. This is the legislative privilege under the speech or debate clause. So these are the. The protracted battles over this particular privilege.
- [49:01]
B
And we're getting to see them now. Yeah, we were guessing a lot as. As it happened, but yeah, a lot.
- [49:07]
A
Of this stuff wasn't unsealed until we got on ceiling orders from, like, Judge Barrel, Hal and Boasberg, and we didn't see those until 2023, 2024. So this section says the speech or DEB provides that for any speech or debate in either House, senators or Representatives shall not be questioned in any other place. The clause affords members of Congress a number of distinct protections, including testimonial privilege that guarantees the member may not be made to answer questions about his or her legislative acts during the investigation. Former Vice President Pence, in his capacity as president of the Senate, invoked his privilege under the speech or debate clause. Through litigation over the scope and applicability of the claimed privilege, the office obtained important evidence. After the grand jury subpoenaed Mr. Pence to testify about Mr. Trump's alleged efforts to overturn the results of the 2020 election, Mr. Pence moved to quash the subpoena. Invoking the speech or debate clause, Mr. Pence argued that the vice president should receive the protections of the speech or debate clause when acting in his constitutional capacity as President of the Senate, as he did while presiding over the joint session of Congress on January 6, 2021. According to Mr. Pence, the speech or debate clause therefore foreclosed questioning before the grand jury about his legislative acts relating to the joint session. Sidebar. Real hero. That makes sense. All right. Coming.
- [50:29]
B
You know it. Okay. The chief judge of the United States District Court for the District of Columbia, who presides over grand jury matters in that district, denied, quote, in large part, Mr. Pence's motion to quash. The court held, quote, that while the clause does apply to the vice President, it does not cover the vast majority of what the special counsel seeks to ask him about. The court determined that although the speech or debate clause foreclosed questioning about Mr. Pence's legislative acts, much of the conduct the office sought to question Mr. Pence about did not qualify as legislative acts under the Speech or debate clause, including, for example, Mr. Trump's conversations exhorting Pence to reject electors on January 6, the court concluded that the Speech or Debate clause precluded government questioning in two subject areas one Mr. Pence's drafting and recitation of the statement he made on the floor of the Senate on January 6 and two internal advice from Mr. Pence's staff about the scope of his authority on January 6. Neither the office nor Mr. Pence appealed the district court's ruling, and now we move to Subsection B, which is entitled Threats and Harassment of Witnesses. A significant challenge that the office faced after Mr. Trump's indictment was his ability and willingness to use his influence and following on social media to target witnesses, courts and department employees, which required the office to engage in time consuming litigation to protect witnesses from threats and harassment. Mr. Trump's resort to intimidation and harassment during the investigation was not new, as he demonstrated by his actions during the charged conspiracies. A fundamental component of Mr. Trump's conduct underlying the charges in the election case was his pattern of using social media at the time Twitter to publicly attack and seek to influence state and federal officials, judges and election workers who refused to support false claims that the election had been stolen or who otherwise resisted complicity in Mr. Trump's scheme. After Mr. Trump publicly assailed these individuals, threats and harassment from his followers inevitably followed. Then they quote one witness identifying Mr. Trump's tweets about him as the cause of specific and graphic threats about his family and a public official providing testimony that after Mr. Trump's tweets, he required additional police protection. In the context of the attack on the Capitol on January 6, Mr. Trump acknowledged that his supporters, quote, listened to him like no one else.
- [53:13]
A
Yes, and the same pattern transpired after Mr. Trump's indictment in the election case. As the D.C. circuit later found, Mr. Trump, quote, repeatedly attacked those involved in the case through threatening public statements as well as messaging daggered at likely witnesses and their testimony. Those attacks had, quote, real time, real world consequences, exposing those on the receiving end to a torrent of threats and intimidation, unquote, and turning their lives upside down. The day after his arraignment, for example, Mr. Trump posted on social media, truth social, if you go after me, I'm coming after you. The next day, one of his supporters called the District Court judges chambers and said, hey you stupid slave, N word, R word. If Trump doesn't get elected in 2024, we're coming to kill you, so tread lightly B word you will be targeted personally, publicly, your family, all of it. End quote. Mr. Trump also, quote, took aim at potential witnesses named in the indictment and lashed out at government officials closely involved in the criminal proceeding, as well as members of their families to protect the integrity of the proceedings. On September 5, 2023, the office filed a motion seeking an order pursuant to the District Court's rules restricting certain out of court statements by either party. The District Court heard argument and granted the office's motion, finding that Mr. Trump's public attacks, quote, pose a significant risk and immediate risk that one witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats and two attorneys, public servants and other court staff will themselves become targets for threats and harassment. Because no alternative means could adequately address the grave threats to the integrity of these proceedings. The court prohibited the parties and their counsel from making public statements that one target the special counsel prosecuting the case or his staff 2 defense counsel or their staff 3 any of the court's staff or other supporting personnel or 4 any reasonably foreseeable witness or the substance of their testimony. The court emphasized, however, that Mr. Trump remained free to, quote, make statements criticizing the government generally, including the current administration or the Department of Justice statements asserting that he is innocent of the charges against him or that he has prosecution, that his prosecution is politically motivated, or statements criticizing the campaign platforms or policies of his current political rivals.
- [55:39]
B
Mr. Trump appealed and the D.C. circuit affirmed in large part, finding that Mr. Trump's attacks on witnesses in this case posed, quote, a significant and imminent threat to individuals willingness to participate fully and candidly in the process, to the content of their testimony and evidence and to the trial's essential truth finding function with the undertow generated by such statements likely to influence other witnesses and deter those not yet publicly identified out of fear that if they come forward, they may well be the next target. Likewise, certain speech about counsel and staff working on this case poses a significant and imminent risk of impeding the adjudication of the case, since messages designed to generate alarm and dread and to trigger extraordinary safety precautions will necessarily hinder the trial process and slow the administration of justice. The Court of Appeals explained that the District Court's order involved the confluence of two paramount constitutional the freedom of speech guaranteed by the First Amendment and the federal court's vital Article 3 duty to ensure the fair and orderly administration of criminal justice. Balancing these interests, the court explained, required consideration of three related 1 whether the order is justified by a sufficiently serious risk of prejudice to an ongoing judicial proceeding two, whether less restrictive alternatives would adequately address that risk and three whether the order is narrowly tailored, including whether the order effectively addresses the potential prejudice. Because the record amply supported the district court's finding that when Mr. Trump has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed and because no less speech restrictive alternative could viably protect against the imminent threat to the participation of witnesses, trial participants and staff in this criminal matter or the full, fair and unobstructed receipt of relevant evidence, the court affirmed the decision to impose some limitation on trial participant speech. Indeed, given the record in this case, the district court had a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from from performing their functions within the trial process. The Court of Appeals therefore affirmed the district court's order to the extent that it prohibited parties and their counsel from making, quote, public statements about known or reasonably foreseeable witnesses concerning the potential participation in the investigation or in this criminal proceeding or public statements about one counsel in this case other than the special counsel, two members of the court's staff and council staffs, or three, the family members of any counsel or staff member, if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with counsels or staff's work in this criminal case or with the knowledge that such interference is highly likely to result. To ensure that going forward, the order was as narrowly tailored as possible, the court vacated the district court to order to the extent it covered speech beyond those specified categories.
- [59:12]
A
Very, very interesting. All right, so you know, we're in the section now of all these delays and problems caused by Trump and his allies, and we've talked about the threats and harassment of witnesses. We talked about the speech or debate clause, we spoke about Twitter trying to help Trump by telling him about the warrant against him. And on the next episode is when we're going to start getting into the executive privilege and presidential communications delays. And if you've been following me on social media for any amount of time, you've probably heard me repeatedly say that one of the reasons this investigation took so long was a very protracted court battle over those eight key witnesses, which you and I, Andy, called the Ocha Nostra.
- [60:02]
B
Ocha Nostradamus.
- [60:03]
A
We came up with that moniker from a suggestion from a listener. So thank you, listener, for that and how much time that took out of the investigative process. So we're going to start with that on the very next episode of the audio version of volume one of Jack Smith's final report. Thank you for listening. If you know anybody who you would like to share the report with, but maybe they don't have the hours necessary to read the report and would rather listen to it on their commute mute or listen to it while they're out walking in nature and touching grass, which I highly recommend. I'm doing that more often now. Please send it their way. It's a, it's, this is a free service that we're providing and it's, it's, it's basically because of the patrons to the Daily Beans and the Jack Podcast that we're able to do this and bring this to you. So thank you to our patrons. All right, everybody, we will see you next time. And thank you so much for listening to the Jack Podcast. I've been Alison Gill.
- [61:03]
B
And I'm Andy McCabe.