Jack - Episode 62 | Missing Classified Documents

Episode Date: February 4, 2024

So far, Trump’s delay tactics seem to be workingIn DC, Judge Chutkan has taken Trump’s trial off of her calendar as the DC Court of Appeals has yet to issue its ruling on Trump’s immunity claim.There is reporting about alleged misconduct by Walt Nauta that led to the revocation of his security clearance while he was working at the White House.Also, there are reports of locked closets and secret rooms that the FBI did not search when they executed their search warrant in Mar-a-Lago as Judge Cannon continues to bog down the documents cases.Plus a couple of great listener questions. AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to know:Rule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512Brian Greer’s Quick Guide to CIPAhttps://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/ Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

I signed an order appointing Jack Smith. And those who say Jack is a finesse. Mr. Smith is a veteran career prosecutor. Wait, what law have I grouped? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is? Send me to jail!

Welcome to episode 62 of Jack, the podcast about all things special counsel. It is Sunday, February 4th, 2024. I'm Andy McCabe. Hey, Andy. I'm Allison Gill. It is like an all Florida version of the show. How weird is that? Because everything in DC is on hold. It's like the spring break version of Jack. It's all happening in Florida.

It's all Florida. And the DC circuit is harshing my vibe. This is the fourth episode. Sans a ruling on the immunity case from the appellate court. But fear not, we still have tons to cover today, peruse. And if the ruling comes out after we record this episode, we have plans to squeeze it in before the episode airs, so don't worry about that. But it is Friday afternoon as we record this and we still have yet to hear from judges Pan, Childs and Henderson. That's right.

But we do have a three hour Ex parte hearing in the Mar-a-Lago documents case. Woo, let's hear it for the documents case. Between Jack Smith's team and Judge Eileen Cannon and a notice of appearance in the Southern District of Florida by J.P. Cooney. Yeah, and that came like a day before that hearing. We also have new reporting on the FBI search of Mar-a-Lago about two areas that weren't searched back in August of 2022, and some new information on Walt Nauta, including allegations of sexual misconduct. Plus, President Biden has set to nominate a new judge to the 11th Circuit Court, which as we know, shot down the Aileen Cannon's ruling on a special master. That was toward the end of 2022, took about

three month chunk out of that case. But Andy, I'd like to start down in Florida and we're going to stay there most of the show. But let's start with this new reporting that the FBI did not search two areas of Mar-a-Lago for classified documents when it executed the search warrant in August of 2022 because this seems like a big deal. It is a big deal. So let's put a pin in it for one second. And before we dive into that, let's weigh in on the question in the minds of our most

loyal listeners. And yes, I'm talking about Good Week Bad Week. Here we are back at the Good Week Bad Week. Here we are back at the Good Week Bad Week. So, I don't know, not a ton to go on this week. So, do you want to start off with who you think had a good week and who got the short straw? Well, I think that Donald Trump probably had another good week because every week that the D.C. trial estate is a good week for Donald Trump. But I think Walt Nauta had a very bad week, and we will discuss this a little bit later in the show, because apparently before he went

down to be the body man for Donald Trump, there were some sexual misconduct allegations. And they were looking into them. And then all of a sudden, you know, when he was, he got pulled out of the White House, escorted out of the White House because of this when he was, I guess, Donald Trump's Diet Coke valet. But then because he was offered that job down at Mar-a-Lago, it was just sort of kind of brushed under the rug. And we'll talk more in detail about these allegations and what Rod, I think it was Roger Sullenberger at the Daily Beast was able to find out. That's definitely a bad week for Nauda.

I'm gonna agree with your good week on Trump. Same reason, another week burned, which is definitely consistent with his strategy. I'll go far afield here and say bad week for Weisselberg, who we've just learned is negotiating a guilty plea to another criminal charge to this one being perjury. We're not 100% sure what the perjury is based on, other than some reporting that tells us

he's thought to have lied on the witness stand in the Trump real estate case, essentially, a month or so ago. I totally know what it is. I'm 100% sure I know what it is. What it is. When he said that he had nothing to do with the apartment, the triplex.

Yeah, yeah, and then apparently that Forbes article comes down and just like put it right in his face. And then all of a sudden he's gone, not on the witness stand anymore, not a good sign. So bad week for Alan, for Jack Smith, meh, not a great week, not a terrible week. You know, he loses another week in DC, which is not good. They seem to be making some progress in Florida. So I'm gonna call it a draw for Jack.

Yeah, I suppose it all just kind of depends on how it went behind closed doors with the judge, but he wasn't personally there. We'll talk about that more later. But that's pretty important meeting for that C-C section 4 ex parte Harry. For sure. All right, so let's go to Florida and dive into the reporting from Catherine Foulders, Mike Levine, and Alexander Mullen at ABC. And they say, Special Counsel Jack Smith's team has questioned several witnesses about a closet and a so-called hidden room inside former President Donald Trump's residence at Mar-a-Lago that the FBI did not check while searching the estate in August 2022. As described to ABC News, the line of questioning and several interviews ahead of

Trump's indictment last year on classified document charges, suggests that long after the FBI seized dozens of boxes and more than 100 documents marked classified from Trump's Mar-a-Lago estate, Smith's team was trying to determine if there might be still more classified documents there. According to sources, some investigators involved in the case came to later believe that the closet, which was locked on the day of the search, should have been opened and checked. Holy cow. That's the holy cow is me.

Not our treachery reporters. I'm like trying to pick up my jaw here as I read this. It's not good. No, and you know, Andy, this reminds me, you know, according to public reporting, when prosecutors were there in June to get the documents from the subpoena, remember how they. They asked Dale Avera to put a better lock on the door, which he did. But then when the FBI showed up with the search warrant, they were like, well, Dale Avera has the key and they went to find him. And he said he didn't have the key.

And so they waited and waited, got frustrated and cut the lock off the door. That's all from public reporting. So that's really weird. Yeah. Cutting a lock off a door is really pretty standard practice in a search warrant, but in any case, we'll get to that in a minute. So, I just mean they cut the lock off that door, but it didn't go into the locked closet. That's what it's inexplicable. I mean,

but, but, uh, so anyway, according to the new reporting from ABC this week, Jack Smith's office would learn later that Trump allegedly had the closet's lock. Okay, so we're not talking about the storage room, but the closet that was locked and the FBI did not search. Trump allegedly had that lock changed while his attorney was in Mar-a-Lago's basement searching for classified documents in a storage room

that he was told would have all such documents. So that, of course, is Evan Corcoran, who comes to Mar-a-Lago famously before the government shows up on the subpoena expedition. And he's going through stuff there. And we knew that documents and boxes had been moved out of the storage room where Trump knew Corcoran was going to be quote unquote searching everything. So this just kind of adds to that level of potential deception of his own attorney. Right.

And then he changed the lock on this closet while Corcoran's down there searching for the documents Trump wants him to find, the 38 documents that were handed over in a Redwelled envelope, double-taped, because that's how you hand over documents you've declassified with your mind. Twice the tape, sure. Okay, Jordan Strauss, a former federal prosecutor and former national security official in the Justice Department, called the FBI's alleged failure to search the closet, quote, a bit astonishing. In addition to the closet, the FBI also didn't search what authorities have called a hidden

room connected to Trump's bedroom, sources said. Smith's investigators were later told that in the days right after the search, some of Trump's employees heard that the FBI had missed at least one room at Mar-a-Lago. ABC News asked the FBI why they didn't search these two areas, and a senior FBI official responded, quote, based on information gathered throughout the course of the investigation, areas were identified and searched pursuant to the search warrant. investigation, areas were identified and searched pursuant to the search warrant. Who is that senior FBI official? Someone who graduated with flying colors from the FBI's media school of, here's how you

say nothing. Yeah. Yeah. So, quote, within a few months of the FBI search, federal prosecutors in the Justice Department pushed Trump's legal team to ensure that no classified documents remained at any of Trump's properties, but it's unclear if those prosecutors or any Trump lawyers even knew about the unexamined spaces at that point. It's also unclear if Trump ever kept any classified documents in either of those spaces or whether Smith's team ever considered seeking another warrant to search Mar-a-Lago again.

Yeah. And we never heard about any additional warrants for those missing rooms that were missed or the closet or the bedminster or anywhere else. But something that's not in this story is what Jack Smith did do, that court battle that ensued over the additional searches, right? Right. Yes. We reported on that in detail as it happened, but as a reminder, here's a quote from the

public reporting in a display of their lack of trust and their anger. Prosecutors asked Judge Barrell Howell in sealed filings to hold representatives of Mr. Trump's post-presidential office in contempt for having failed to fully comply with an initial subpoena issued in May, demanding that he return all the classified documents he took. At a court hearing held behind closed doors in December of 2022, Judge Hal put off ruling on the government's contempt request, and the judge has still not issued a decision according to people familiar with the matter. That's in the story from the old reporting.

Yeah, and I remember when that happened. I remember thinking it seemed like kind of an over-the-top move, because they'd already executed the search warrant. They already had, let's hope, the lion's share of what was there. But I think... Yeah, we were both like, whoa, contempt. I mean, that's pretty hardcore. You've already gotten what you needed, presumably, and you're going back with the contempt motion,

but now it really looks more like that motion was an effort to kind of, you know, shake the tree a little bit harder, thinking that there might be something up there. Yeah, and it seems to me the way that this timeline goes now is, you know, they went in in June with their subpoena, they got 38 documents. They come back with a search warrant because they had reason to believe in evidence that there was still more classified documents there. They found like 13,000 pages, tons, when they came back with the search warrant. They missed the two things. Then Jack Smith finds out that they didn't search these two things.

Then after that, he goes and files this contempt motion in December with the court. They battle through all that. That's a long drawn out thing because not only did he want to find out if there were still documents that he didn't hand over to the subpoena and that weren't found when they searched the property, but then Trump said, well, I'll hire my private law firms to go and search, which he did. And then Jack Smith said, I want the names of the two people that searched those places. And then Trump said, no. And then he had to go back to the court and fight over that.

Then he got the names. Then he interviewed the people. Right. And it's right around that time that seems to coincide with what ABC is reporting here, he asked a bunch of questions about these two rooms that weren't searched. Right. that he asked a bunch of questions about these two rooms that weren't searched. Right. And so maybe those questions came when questioning the private investigators that Trump sent to search additional stuff.

Could be, or it could have just come up through conversations, interviews of other Mar-Lago employees that they were doing routinely, right? They talked to everyone who worked at that property and some folks invariably said, well, did you check the secret room off the bedroom? And then that's like a what what, you know, moment in the interview have had a few of those in my time. It's not comfortable. And yeah, so who knows, but over this whole series of litigation, contempt requests, and give us the name of the attorneys, what you and I talked about was there's an enduring interest on the part of Jack Smith's team to push further and further at this idea that we didn't get everything. Yeah, totally.

And so I want to ask you a couple of FBI specific questions because you've done this a zillion times. Couple, yep. Talk a little bit about the nuts and bolts of this because it seems very odd to me. You know, you were like, Holy Wow! And Strauss is like, that's astonishing. Why wouldn't they break the lock and go into this closet? I'm very confused about this. Makes no sense. I mean, okay, all of this commentary comes with the caveat that we don't know what Jack Smith's team knows, and maybe they were operating under some facts that we're not aware of. Okay, fine. But based on what we know from this reporting, it doesn't really line up with the way that search warrants are normally done.

Two separate issues here, right? The locked closet and the hidden room. So on the locked closet, well, we know they cut one lock off that day from the storage room that they were going to search, which they couldn't get the key for. So there's no reason why. That's a weird thing in and of itself, right? I know hide the key then, so there's no reason. Oddly, that's a weird thing of itself, right?

I know, hide the key, they'll never get in. He put, Dale Lavera put that friggin' lock on the door, and then, so they come back, search warrant, not wearing their rain jackets, right, wearing plain clothes, to be chill. And then, you know, and then they were like, oh, Dale Lavera has the key, and Dale was like, I don't have the key.

I don't have the key, Why would I have the key? So they cut it off, which is appropriate. So it's inexplicable why they wouldn't have also done the same thing for this other closet space that they couldn't get into. And the reason it's inexplicable is because the legality, the illegal authority that is conveyed to the agents by virtue of the search warrant is you can go in any space

that might contain the evidence that you described in the four corners of the warrant. When the evidence you describe in the warrant is documents, that entitles you to go pretty much anywhere. You can certainly search any room, any container that might have them, any drawer, any desk, any box, anything that might contain a piece of paper is someplace you can legally go. And in my experience on many search warrants, okay, admittedly never one of the former president, you go in any of the... you access those spaces no matter what it takes. I have seen residences, the interior of residences and apartments destroyed

with sledgehammers breaking through wallboard, executed a search warrant at house once and we found a safe that had been mounted into the floor of the garage. So in the cement, it was just into the floor of the garage. So in the cement, it was just like the top of the safe was flush with the garage floor. And I mean, we brought in concrete saws, almost burned the house down in an effort to cut this thing out of the floor. So agents are very familiar with going to whatever length is necessary to barge in, break in, burn in, cut

in to any container that might have the contraband that you're there looking for. In this case, you're talking about highly classified national security information. I don't get it. I really don't. And the hidden room, they may not have known it was there but still like that's your job to find those things when you have your one chance in that residence to find them. So it's really concerning and you wonder, you can't help but wonder if the sensitivity of the search which they implicitly acknowledged by going in their low profile, right? So we know they were aware of and they tried to be as low profile as they could because

this was such a sensitive operation. Did that effort bleed over and affect some decisions on the ground? I don't know the answer to that, but it's an interesting question. Yeah. And that was kind of where my mind was going, right? Because the FBI, Dan Tuono, deputy at the Washington field office, didn't want to do the search warrant. Merrick Garland wanted to okay the search warrant, and then Dan Tuono was like, no, let's just do a subpoena. And you know, there's disagreements between the FBI and prosecutors all the time. Sure. Um, and so the end, they also wanted to do it when Trump was out of town and they,

like you said, where they're playing clothes or not, where they're raid jackets, be low profile. But like I'm trying to play the scene out in my head where they're in the bedroom. And I feel like either the closet has to be hidden behind wallpaper or something because I can't imagine if the FBI saw the closet has to be hidden behind wallpaper or something, because I can't imagine if the FBI saw the closet and tried to handle and it didn't open that they'd be like, ah, we don't need to look in there. Like I can't put that in my head unless somebody on the ground, like you said, said, we don't

want to hammer through walls or we're trying to be sensitive about this. We don't want to like you, like you trying to get the safe out of the, pull out a jackhammer or get an axe or something and break stuff down. It just seems I just, I can't like, I'm trying to put like play the movie in my head and it's not making any sense to me. Yeah, it's weird. I'm okay. This is a one-off. We get it from the beginning, but it's just not really consistent with the typically pretty physically aggressive way that search warrants are executed.

If they just missed the hidden closet because they didn't know it was there and it was behind a piece of furniture and so they just didn't see it. I mean, I can kind of understand that it's not great. It's not a great look. They should have looked closer or spoken to people who knew what was there and developed sources of information that would have kind of led them to hidden compartments and things, but they're not cutting the lock off the closet space.

That's just, I don't know. I can't even come up with an explanation for that. Yeah, I know me neither. And how did Jack find out about it? Jack Smith find out about this. Did the FBI agents who were at the play, at the Mar-a-Lago tell them, hey, there was a closet that was locked

and we couldn't go in. I mean, like we don't have any of that information. What the information we have is pretty scant. And so a lot of this is, you know, based on speculation and questioning, because like you said, we don't know what they know. Um, and that's why I'm looking forward to the report. Somebody asked on Twitter, you had a time machine to go forward to 2030. What's the one thing you could Google one thing?

What would it be as at the Jack Smith report? I got to see it. I got to see it. All right, we have to take a quick break, but we actually have a lot more to this story. And we want to get to that, but we do need to take a quick break. So everybody stick around, we'll be right back. All right, everybody, welcome back. Let's get back into this story from ABC. And keep in mind, again, this search happened in August, 2022. And the questioning about the two missing rooms happened a year, like almost a year

ago in 2023. So even though we're just now hearing about this, these things happened before Donald Trump was indicted for retention of national defense information and obstruction of justice. These things all happened before his indictment. So the story goes on. When agents reached the locked closet near the front of Trump's residence, they couldn't locate a key for it and were told the space behind the door, an old stairwell turned into a closet with shelves went nowhere,

so they decided not to break it open. That is the question we were asking in segment one. And now that apparently is the answer according to sources plural. Yeah, I mean, what? I just don't mean, you know, a closet is a pretty logical place to find documents. They found lots of documents, very relevant, some highly classified in the closet in Trump's office. A closet that's described to you as containing shelves is probably more likely to contain documents than one that's just a big empty space with clothes hangers. I mean, logically, it just doesn't make a lot of sense.

Again, we don't know what they were told on site or anything like that. So I'm sure there's more to this story. I don't want to prejudge it, but on its surface it just is kind of head scratching. Yeah, unless there was some high up dude or lady who said, we're not going to break stuff here. But they cut the lock off, I don't know, you know what? It's not uncommon for agents to call back to the field office that they're working from in the middle of a search and say things like, hey, we found this. Can we take it? Does it fit under the warrant that we have here?

You know, asking legal questions. And those typically go to the division council and you get kind of on the fly, you know, advice as to whether something that you're seeing on site is consistent with the warrant and therefore subject to seizure. So maybe something like that happened here. Maybe they call back and said, Hey, we have a closet. Nobody knows what's in it. I can't sit here and tell you there's documents in it, but I can't say there aren't. What do you want? It's going to take us, you know, we're going to have to cut the lock off the door to get in there. And maybe the answer they got back

from whoever they were speaking to was, don't do it. Yeah. These are all good things that we should know after the fact, right? Someday, somebody should have to answer for these decisions. For serious. And the story goes on to say that the FBI agents didn't do more in part

because they felt like they had been there long enough. But the senior FBI official disputed that, saying, quote, discussions took place that day about additional areas of the property. And it was determined that actions already taken met the parameters of the search warrant, unquote. Again, who is the senior FBI official? At the time, the FBI didn't know the lock changed, could have potentially been significant. So apparently they knew that the locks had been changed when they tried to get into the closet but didn't understand the significance at the time. But whoever they called, so it looks like you're right, Andy. They made a call back or a senior FBI official said

discussions took place that day about additional areas and it was determined that they had enough. Now, that seems like the wrong decision to me, but I don't know who that was that made that call. We don't know, again, and this is all reporting speculative on sources, but that seems odd. Now, don't know. Again, and this is all reporting speculative on sources, but that seems odd.

Now, if they go on to say through their investigations, Smith's team learned that while Corcoran was still in the storage room, Trump asked longtime Mar-a-Lago employee to change the lock on the closet. For years, the lock on the closet was managed by the Secret Service, but on June 2nd, 2022,

Trump had it changed and wanted the key. That was right before the lawyers came down, right before Jay Bratt and everybody came down to get the search warrant stuff. Yeah, I think that might have also been before Corcoran came in to search the storage room. Did they go on to say that one former maintenance worker described Trump's request as unusual?

Unlike the locked closet, the FBI didn't even know the so-called hidden room existed until after they left Mar-a-Lago. So they didn't see that one. Though Agent Search Trump's bedroom, a small door in one of the walls was concealed behind a large dresser in a big TV. It was hidden. The space behind the wall was the hidden room, which maintenance workers sporadically entered to access cables running through it. Now, Strauss, this is the guy who said this is astonishing. Strauss said it's not uncommon for agents executing search horns to miss a couple of

things, especially when they're searching expansive properties like Mar-a-Lago. But the fact that witnesses were saying the FBI missed a hidden room within Trump's bedroom caught the attention of Smith's team. I bet it did't and he's right I mean Nothing nothing none of these are perfect Especially in a large place that you're feeling some pressure to get out of on a on a some sort of a time schedule It ups the chances of missing something and and you know

Who would have figured the former president of the United States has basically a trap? Hidden trap in his bedroom. Then again, you might answer that question like of course he does. So I don't know. It's I have a little bit more understanding of that one. If it truly is a small door that's that's like really access to like a cable trace or something like that. It's behind a huge piece of furniture. It's not the type of thing that's easily or frequently accessed. You might miss that.

It's a failure in intelligence gathering because if it's a big place, the necessity of having an insider, someone who's familiar with all those own looks and crannies talking to you and telling you what's in each room. But nevertheless, the other one, not cutting the lock off the door and looking and seeing what's in the closet, that one I can't explain. No, I don't get it either. And it seems like they knew about it because they told Jack the hidden thing behind the dresser and the TV. But like, and maybe that was just a cable access door.

And there wouldn't have been anything in there. But yeah, the closet is weird. All right. So again, hopefully all of this is in Jack Smith's report when it is released, whenever that may be. And we'll get to see what happened with the musical locks and the hidden closets and the hidden passageways. Maybe they're just like places he stored more Diet Coke. Maybe there's nothing to it. More Diet Coke in the hidden room, please. Photos of me and Kid Rock. You know, whatever. It could be. You never know. I have no idea. All right, we have one more quick story here related to the documents, and this is about

Walt Nauta. And of course, there was a lot of mystery around Walt Nauta, and I know that there were a lot of folks who were kind of like, poor guy, right? Like he's a Navy veteran, served for decades in the Navy, goes to work for Trump, and he's, you know, swept up in this huge criminal conspiracy. But from Roger Sullenberger at the Daily Beast, I'll just read this to you, Andy. When Donald Trump invited his longtime White House valet, Walt Nauta, to join him in his post-presidential operation in August of 2021, he was hiring a body man with some baggage.

Weeks before Naota, a Navy enlistee stationed with the White House presidential support details since 2012, weeks before he traded DC for Palm Beach, Navy officials had escorted him off the White House grounds, reassigned him to a new post, and docked his White House security clearance in response to accusations of fraternization, adultery, harassment, and other inappropriate sexual conduct, including revenge porn. And that's according to two people with direct knowledge of the matter, speaking to the daily beast. So, uh, all of a sudden, Andy, I'm like, no wonder he hasn't flipped on Trump. All of a sudden, Andy, I'm like, no wonder he hasn't flipped on Trump. You know?

Yeah. And I, you know, my investigator's mind goes right to, I can't, I wonder what they found on that phone. I mean, that's probably, probably there was some other stuff on there that they were like, holy cow. Dang, that's right. They had two of his phones, I think. Yeah. It'll be interesting.

If he, I can't imagine he will now, but if he decides to take the stand in his own defense in this trial, whenever that happens, this could really open up the door to a lot of questions that would maybe be relevant to his, you know, truth and veracity, I don't know. I don't know how you get that stuff in, but they certainly would probably try. The fact that he was walked out of the White House and lost his security clearance, so that's like directly relevant

to the matters in this case. So I think that comes in. Right, because wasn't he trying to argue that he should be able to get access to the classified documents because he had security clearance? So what's interesting to some of these, there are three allegations here. Fraternization, by the way, is an inappropriate relationship between a senior person and a junior person. That's what fraternization is. And you can go to military counsel for that. You can be court-martialed for that. Now, Nada was high enough in the White House's detailed

leadership structure. He was actually among a group of Navy officials briefed on that first complaint. So he was among the officials briefed on the complaint against him. The survey responses, these allegations came from a survey about how's your work environment. Oh gosh. And the survey responses hadn't named him specifically a survey about how's your work environment? Oh gosh. And the survey responses hadn't named him specifically, but he walked out of that meeting, quote, cool as a cucumber, ready to find the culprit according to a source that apparently was at that meeting. But a follow up identified it was him, along with he also had inappropriate romantic relationships

with two additional women. Nauda admitted to the relationships in a White House interview and a superior officer walked him off property that day. Wow. The U.S. military strictly forbids fraternization, which Navy defines as unduly familiar relationships between members that does not respect the difference in rank or grade. Those relationships can be personal, professional, romantic, and the steepest penalties include dishonorable discharge, forfeiture of pay.

It's a big deal to fraternize in the military. He was accused of violating this prohibition in multiple overlapping and emotionally abusive romantic relationships while he was married and assigned to the White House. The revenge porn included supposedly compromising images of women that Nauda had allegedly retained and threatened to make public according to sources. That's, that right there is probably said that says to me less than the fraternization. That's, that to me is why he was walked out of the White House and why he was, out of the White House and why his security clearance was yanked.

I mean, that's a potential federal criminal offense. So yeah, that's serious stuff, very serious stuff. Now, obviously allegations only at this point, he hasn't been charged with any of that conduct, much less convicted of it. But the fact that he was walked out and lost his security clearance, that's no joke. And it's also relevant, as I said before, to the conduct that's alleged in the indictment. So I could actually see that stuff coming in about, you know, and particularly if he ends up getting cross-examined at some point. Yeah. And before we go on break, the timing is weird too, because in July,

the Times reported about the fraternization. That was public. And it was right after that, that a Trump aide called him up and offered him a job as Trump's body man. Seems like a compromised kind of fella. Yeah Yeah somebody whose loyalty would be You know reliable Because you threw him a lifeline Not only that but like hey, we heard you had some problems with revenge porn Why don't you come work for us and then you know later on? We'll pay for your lawyer and don't flip remember that revenge porn thing wink wink you know but it's out now so who knows. That's all speculation which I love but you wanna definitely everyone else spill the tea let's have a kiki I'm like let's talk about this but you know we definitely wanna draw the line the stark line between what are facts that are being

reported from sources and what my thoughts are on it. All right, we have a lot more to get to, but we need to take another quick break. Please stick around. We'll be right back. All right. Welcome back. On January 31st, there was an ex parte SIPA section for hearing. All right. So let's go back and review a little bit. What is ex parte? Well, as you know, Alice in ex parte is a meeting between one side of the case and the

judge. So it's like, it's a chance for one side to talk to the judge kind of confidentially in a way that doesn't automatically get shared with the other side. Roger. Now, CEPA section four tells us, the court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the federal rules of criminal procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. So those are like the three

types of solutions to this problem of having classified evidence that the government can pursue under CEPIS section four. Section four goes on to say, the court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. That gets back to that ex parte quality of this hearing, right?

It's just the court looks at it and makes a decision without sharing it with the other side. If the court enters an order granting relief following such ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate preserved in the records of the court to be made available to the appellate court in the event of an appeal. Now as we know, Trump has filed motions to participate in the Section 4 proceedings, so to obliterate the ex parte nature of the Section 4 proceedings. Right, so I think they call it adversarial.

Yes, adversarial or just circus-like is also another way to describe it. Yeah, you just have to play Yacot-y sax in the background when the filing is made. Exactly, exactly. Andy, if she rules to give access to the ex parte proceedings or rules that like Walt Nautter, Dale O'Vara, Trump can get access to these documents without redactions or substitute summaries or substitute statements. Can Jack Smith can appeal that to the 11th Circuit, right? That's one of those appealable things that we've been talking about. We talked to Brian Greer about.

Is that am I correct? Yeah. Yeah. That's my understanding. Like that would be an interlocutory appeal. Like they would take that immediately to the 11th Circuit because if she issues that ruling completely contradicting the SIPA law and practice in the federal courts, if you waited until after the whole thing was over to appeal, you just allow this violation that essentially creates a national security issue by revealing classified stuff that the defense doesn't have a right to. So yeah, it should be an interlocutory appeal

to the 11th Circuit. Yeah, sounds familiar too. Right, I think there was another time when the 11th Circuit heard about classified documents going to a special master. Yeah, yeah, for sure. And they didn't waste any time getting that done. And as you know, the 11th Circuit really turned that around. Very conservative court, conservative judges on that

panel, and they resoundingly said, no, this is a terrible decision and undid it. So it's an inauspicious way for Judge Canada to begin her decisions on this case, but you know, that's where we are. Yeah, or her tenure as a judge, but we have other 11 circuit news. Yes, we do. So, Judge Wilson, who was appointed by Clinton in 1999, has said that he'll be taking senior status, which basically means he's not going to carry the same sort of workload as the other judges because he's he's been there for a long time and he's kind of moving eventually towards retirement. And it allows President Biden to appoint a new judge to the conservative 11th Circuit. Now, Trump appointed six of the 12 judges that are on the circuit now.

Biden, we know, has, across his administration so far, has appointed 175 judges. More than 65% of those are women, and 65% are people of color. He has confirmed more black women to life-tenured federal judge sips than any previous administration in history, including the very high-profile first Black woman on the U.S. Supreme Court, Justice Katanji Brown Jackson.

Yep. All right. So he's so senior status. I think that put he's still in the rotation to take cases, but he takes a very limited amount. And once he's hit his quota, he's not in the draw in the pool anymore to get new cases. That's right. So there's going to be an appointment there. I imagine that's going to be done before

the election in November. And we have one more story down in Florida. The special counsel's office filed a notice of appearance for one JP Cooney in the Florida documents case. This is interesting, right? Cooney is Jack Smith's deputy special counsel. That's his title. And I've been following this guy since back in the Mueller days, right? At least news wise. Cooney is the one who wrote the sentencing recommendation for Roger Stone, recommended nine years. And that's when Bill Barr and Mike Sherwin came back and said, nine years, come on, he's an old guy. He's got a Nixon tattoo, come on, nine years. So they reduced the sentence dramatically.

That was Mike Sherwin and Bill Barr. And at the time, Mike Sherwin was the acting DC US attorney. That's right. And he was the acting attorney there because Trump and Barr tricked, I believe her name was Jesse Liu? Jesse Liu, yes. Hey, we got a great, nice cushy job for you at the Treasury.

Come on over, I'll nominate you. And she's like, all right, so she packed up her desk and started walking over to the Treasury and then Trump yanked that nomination, effectively firing her. And then he violated the Vacancies Act and shoved. Mike Sherwin in there. I think there might have been somebody else in there Tim Shay. I can't remember but he he found a way around it So anyway

Yeah, he also had to quit before he was sanctioned because he did that appearance on 60 minutes This is Sherwin. Yeah. Yeah, Sherwin blabbing about the Trump would we're gonna get them for seditious conspiracy and the oath keepers too. And lots of prosecutors resigned when Barr and Sherwin did that with Stone's sentencing recommendation, sentencing memo. But Cooney stayed on. Then in February of 2021, before Merrick Garland got there, a month before Garland got there, and a month after the insurrection, Cooney wanted to investigate the fraudulent elector scheme. The top of the coup, he wanted a more top-down approach. He wanted to put a task force together to follow the money and, you know, investigate the finances. But Dan Tuono, who we were talking about earlier from the FBI Washington field office, and Mike Sherwin blocked him from pitching that

to Garland when he got there in March. And according to the Washington Post, Dan Tuono called up Sherwin and warned him about Cooney and his plan, his task force top down plan. And remember when Dan Tuono, he fought against the search warrant, Tomaralago, which we were talking about earlier. And also- Kind of forced the hand on the subpoena first strategy. Right, that was the way he wanted to do it.

He said, I'm not, he also was famous for saying, I'm not going to subpoena the friggin' Willard, you know, talking about the Willard war room there. And he was the, I assume, but the guy who, when Wyndham wanted to get a search warrant for a bunch of phones. He had to go through the inspector general because the FBI wouldn't do it. And then Cooney had to go to the postal inspector to get his search warrants executed. And it wasn't until several months later in April of 2022 that they were finally like, the FBI was like,

okay, we'll start doing, we'll start helping you out here. You won't have to go to the postal inspector anymore. But Cooney was in charge of that financial investigation, including the Trump Save America pack. But we know G.J.A. Jaxmouth recently pulled those subpoenas. It seems like that investigation might be over unless it was handed off to someone, some other entity. That's right. So now they're adding Cooney to the Mar-a-Lago case.

And they filed the notice one day before the SIPA Section 4 hearing and Cooney attended that three hour ex-partee meeting along with Jay Bratt, David Harbach, and Julie Edelstein. And as I said earlier, Jack Smith himself was not there. But Cooney from what I've read and from folks I've talked to who kind of knew him or know him, he's kind of a pit bull of a prosecutor, right? So maybe that's why he's down there trying to explain what classified information is to judge cannon. I don't know, but they they they filed his notice the day before that SIPA hearing. So that's interesting. Yeah, I mean it is interesting

He's a guy, you know, he keeps kind of popping up In all these different spots. As deputy special counsel, he, he no doubt has had very close and extensive exposure to the Mar-a-Lago case. So it's not like he's getting in this now and having to learn it. It is a little bit weird that the deputy special counsel would be filing an appearance. Like that signifies some sort of a shift in his role to like more of a hands-on in court sort of role. So maybe that's something they feel they need down there.

I have some concerns about Cooney, always have. Now to be fair, he's a career guy, right? He's been around and he's been in the public integrity section, a DOJ, or back at the Washington U.S. Attorney's Office, the D.C. U.S. Attorney's Office in public integrity, public corruption roles. I think he famously led the failed prosecution against Bob Menendez and Salomon Melgen, which was a couple shots at that, and they were never able to kind of bring that to a successful conclusion. Personally, he's the guy they brought over the Washington field office to oversee the criminal investigation into me.

And he was directly involved in that while U.S. attorneys were quitting the office to get out from having to deal with an investigation that they thought had been highly politicized. And he's the guy who reluctantly had to finally inform us that they were taking no action and closing the case, of course, because it was an unmitigated disaster. It was nothing but a political errand for Donald Trump from the very beginning, a biased, in my view of these things, but I was just full disclosure. I heard they couldn't get a true bill from a grand jury.

Yeah, they brought an expired grand jury back twice for two days and never got an indictment. And then kept the case open for another couple of months, only closed it because they were threatened by a federal judge. They were using the case, my investigation as an excuse to not respond to a FOIA request, uh, in another lawsuit. And the judge over that suit finally threatened Cooney and was going to dismiss his objections unless Cooney finally put an end to this case.

So, you know, I don't know. I don't know what Cooney says for this thing. I wonder sometimes about his real kind of dive into the special counsel work. Maybe it's some kind of redemption, I don't know. I hope he does good work there for Jack Smith. Jack Smith trusts him, that says a lot to me. So we'll see, we'll see what happens. If he can get this case down in Florida into first gear and moving forward,

I'll give him credit for that. That'd be nice, that'd be nice. Maybe he'll keep it open an extra really long time for a good reason. Yeah, he's got experience with that anyway. Yeah, but I mean, he was the guy in February, right after the insurrection that was like, we need to investigate, follow the money.

And so I think that gets- Yeah, yeah, he dove in. I mean, I think he dives in, he certainly dove into my investigation. But hey, what are you gonna do? So here we are. It's a strange team, but hopefully one that sees success down in Florida.

Yeah, here's hoping. All right, we have to take another quick break. And then we have some brief news from DC, and then we'll take some listener questions, but everybody stick around. We'll be right back. All right, everybody, welcome back. Just a couple of things out of DC as I'm refreshing, trying to see if there's going to be anything on the DC circuit side brings eternal

We have some news from Politico At judge Shuck and has formally called off the March 4th Trump trial with a new schedule to be set after the immunity issue is resolved He was in the courtroom Kyle Cheney and said here's what the judge said. I do not know what my schedule will be in mid-April and so that was, you know, in response to a sentencing of a January 6th defendant, okay? At the short conference, Chuck didn't explicitly mention Trump's case, but she made clear she's keeping her calendar flexible

in the event she needs to reschedule it. She recently scheduled a trial of Anthony Mastenduno, another January 6th defendant to begin on April 2nd. We know about that. And on Friday, she said, she already told Mastenduno that his trial may have to be moved depending on other matters. So there it is.

She acknowledged Friday the intense scrutiny applied to her scheduling decisions and said, my words are always subject to interpretation. And yeah, she said, we'll make it work. My schedule is a little less certain, she joked when trying to schedule this other January 6th defendant. And she said, I'll probably be in trial one way or another. So she has a, because I think within the last week, Andy, the case dropped off the docket for March 4th. And of course, everybody on the right wing, media noise network was like,

that's it, Trump wins, he's exonerated. But you and I have known now for probably almost a couple of months that this trial was not gonna go March 4th. It's just now officially been removed from the calendar. So there's that. And then the other story I wanted to talk quickly about, and this is just sort of a brief filing that happened. It's a filing from Special counsel Jack Smith and it's entitled

the United States response to the media coalition's notice of supplemental authority. And basically what happened here was the media who wants the DC trial when it happens to be televised or broadcast or recorded or, you know, in some way, which is against Rule 53. And so the media noticed that the DC Circuit Court had live streamed its hearing about the immunity issue. Yes. And said, see, the DC Circuit has violated Rule 53, so you can too. And Jack Smith said, no, see, the DC Circuit Court has the authority to do these things. They have been broadcasting, or I should say live streaming their hearings since 2018. And here is the rule in, you know, 53.

Here's the specific citation that says they have the authority to do that. And so, no, we don't think that this allows that the DC circuit making that decision should allow the DC trial to be public. So that's what basically his little two-page filing said. Yeah, that's a batting the fly away sort of response. Hey, good on you, media group for kind of nice try, A for effort, but yeah, not not likely to go anywhere. All right, so do we have some listener questions this week,

my friend? We do, we have a couple that I picked because as always, I try to pick a question that represents like a theme of concern among among a bunch of questions. So a few people wrote in about these two things and So let's dive in first one is from Sean And Sean says you discuss Trump performing all these legal tactics, but in reality, what is his involvement? In your opinion, is he the legal team's quarterback?

Is he making major decisions? Does he listen to counsel and provide minor input or does he just direct his lawyers to do whatever you have to do? I don't care what just keeps me out of jail. Uh, even with your low opinion of his legal prowess, I think your podcast gives too much breadth to his personal legal abilities. Uh, and then he goes on to finish on a high note, great podcast. The wife and I never miss an episode. So, well, the answer to Sean and to everyone else who asked similar questions about this is, of course, we don't know.

It's very hard to understand how actively involved he is. You could certainly imagine him barking out orders like, make this go away and keep me out of jail. How much further in the weeds he gets is really hard to say. And part of the reason that that's hard to determine is because he's so frequently misdates or lies about things and about the legal proceedings. So it's really hard when he, you know, so for instance, a couple of, there was a clip running of him over the last few days.

He's behind the podium speaking at some event and he's asked about, you know, tough week, all these penalties that you're experiencing in these legal cases. And his response is something like, what penalties? I'm not aware of any penalties. As far as I know, we're winning all the cases. Now, you know, is that a sign of like, I don't know, poor memory, cognitive decline? Or is it a sign of him just staying on a false message? Like, we're fine, we're fine, knowing that his supporters will hear that and they'll believe it.

Oh, Trump is still winning all of his cases. It's really a bit of a black box. However, my own experience in preparing materials for him, for the director to present to him However, my own experience in preparing materials for him, for the director to present to him while he was president, and from repeated experiences from myself or my folks actually interacting with him, this is not a guy who sits and listens to long expositions of legal theories and tactics. He doesn't

have the patience or the time or really the curiosity or the interest to stay up with those things. That would be my best guess, but it is speculation. Yeah. And let me just say, when we're reading from filings and briefings, you know, and because, you know, Sean, you say we discuss Trump performing all these legal tactics. You know, we may say, well, Trump writes here, or Trump says, what we mean is whoever's preparing that legal brief, not necessarily Trump himself. And so that might be a colloquialism that, you know, we might want to pay attention to more directly in the future. But when we say, you know, Trump says this in a filing and Trump says that in a

filing, um, I, I want to convey that I'm not talking specifically about Donald Trump himself. I'm talking about whichever lawyer prepared the document. Yeah. We're not suggesting that he wrote it, but by definition, any legal filing submitted on his behalf is attributable to him. That's why I say it that way. Yeah, he's obligated. Well, he's supposed to be reviewing all those things and his lawyers are acting on his behalf.

So the court attributes any statements in those filings to him. But like even with the Eugene Carroll case, you know, there's been a lot of talk about Alina Habba and her bizarre and somewhat questionable legal moves in that case. So the question is like, does he know that? Is he frustrated with her? Is she going to get fired? It's really hard to say. I mean, we'll have to see how it goes. Well, he said he's looking for a new lawyer for the appeal. So it sounds like he like he threw we're gonna need a bigger bus because it sounds like you threw her under the bus Too for sure for sure. All right, so Question number two goes back to Florida, which is a theme this week So Allison writes in and she says in episode 61 when talking about Trump's desire to unseal documents in the Florida case

You referenced the DOJ principles of federal prosecution, specifically 9-27.760, which is a limitation on identifying uncharged third parties. And then she quotes a little bit from that episode where I read the policy. She said, I immediately thought about Jackson's indictment of Trump in DC for election interference, in which there are six unindicted co-conspirators, where it was pretty obvious who each of them were based on the specific descriptions in the indictment. My question is whether there was some reason the principal in 927-760 doesn't apply to the election interference case. And the answer, yeah, it's a really good question. The answer is no, that principle absolutely applies in all federal prosecutions because this is the DOJ guidance to federal prosecutors, so it's universally applied in every jurisdiction

in the country. And I would argue that they're actually observing the policy by identifying people as unindicted co-conspirators rather than identifying them by name. What the policy prohibits is identifying people by name and associating them with criminal activity that you didn't indict. It also prohibits identifying people by using a too specific description. And that's like saying, I'm not gonna say Trump's driver, but the person who maneuvers the vehicle that Trump rides in, like that would be too specific,

you'd know it was his driver. In this case, they didn't use the names, they used those unindicted co-conspirator tags. And that's enough, even though we can guess with pretty high confidence who those people are, it's very different than the government actually identifying someone. So I think they're observing the policy. Yeah. And we're still guessing. I mean, we're so steeped in this. We can tell who at least one through five were, but there was still a question about who number six was.

And, you know, we kind of made a determination. It was Boris Epstein because Mike Roman wasn't referred to in a different filing about the guy at, you know, the, in Detroit, right? Yes. Yeah. Counting the votes, trying to start the riot. And we were able to suss that that was Mike Roman. And because he wasn't referred to as unindicted co-conspirator six And we were able to suss that that was Mike Roman. And because

he wasn't referred to as unindicted co-conspirator six, we were able to refer through a process of elimination. So we're still guessing. I want you to be very clear on that. But a very good guess is I'm sorry, give us some credit. Yeah. I mean, we're right. But, you know, he is following the procedures by saying unindicted co-conspirator two, individual one, company A, et cetera. That's kind of the whole idea. And then there's also stuff that isn't in the indictment, that's in discovery. And that's what we're talking about here, right?

Because Trump wants to unseal all these discovery, motions to compel discovery. And there are people named in there that probably aren't even unindicted co-conspirators and who have individual information or were there, but maybe are a witness instead of a subject or even a potential, you know, somebody who might be potentially indicted later. And so those folks, they don't want their names out there

either and there's a lot of those redactions in the Mueller report as well. Yep, yep, that's right, that's right. But we guessed who those people were too. Both good questions, both really focused on the legal, kind of the legal finer points. So good on you, Allison and Sean for listening closely and coming at us with some good questions.

So thanks for those. Yeah, very cool. If you have any questions, we have a link in the show notes for you to click on. I just refreshed the Pacer. There is still no decision, but we still had an hour long show, Andy. I don't know how we'd do it.

What's gonna happen when this thing does come out? No, I don't know. Are we gonna have to have a second episode that week to go over everything else? It's going to be tough. It's going to be tough. Or how about when the trial goes? I mean, we'll have to do some hard thinking about how we keep everybody informed, but always trust that we'll come up with something. Yeah, we did it. For Muller, she wrote, we can do it for the Jack podcast too. There were plenty of trials that we covered.

Manafort had like nine by himself, well, two. But you know what I'm saying. So we'll get to it when it happens. And we may have a whole separate episode just on the immunity ruling, who knows, but we'll keep you posted. And I hope everybody had a wonderful and safe weekend. All right, so any bets on whether we get the ruling this week? No, not from me.

Having been made a fool of today, I said a week ago, is it going to happen by now? It didn't, so I'm not making any more predictions. Fool me once, shame on you. I can't remember what I said. I think I was like, oh yeah, for sure this week. I think I was right there with yeah, for sure this week. I think I was right there with you, for sure. But I was the one who said it would come out the Friday after the hearing the same week.

You've been embarrassed longer than I have on this prediction, but now I'm right there with you, having also swing and a miss. So I'm not swinging anymore. This thing will come out when it comes out. That's all we know. It will, and we are now a month delayed. So again, and we've said this for the last couple of months, looking at May, June, right?

Yeah, for sure. And now we're kind of at the point where that's the possibility if the Supreme Court doesn't grant cert, because I thought for sure we would have a ruling in January and that the Supreme Court would have time to grant cert and listen to it, hear the case in this term if they wanted to grant cert. Now we're getting to the point where if they granted cert because they didn't like the, or they, you know, there was some sort of a disagreement in the DC Circuit Court ruling that they would have to come back out of session. Yeah. To hear this case like they did, they did that in the Nixon tapes case, by the way.

They came out of session, out of a break to hear it, and they ruled within 16 days. But, you know, if they stayed in session, we're getting to the point where the next session is the fall and then, you know, we're past the election. So fingers crossed. Yeah. And I mean, at this point, the flow chart of trying to figure out and predict how what the delay will be is just impossibly complicated. When you layer in the questions of the stay, like does the circuit court keep the stay in place? Well, Trump decides whether or not he wants to request cert, whether Trump requests an en banc re-hearing. If they don't keep the stay in place and then Trump immediately applies to SCOTUS and asks them to impose an emergency set,

like there's so many different little kind of micro roots that this could travel. It's very hard to predict how much additional delay will get injected into this. Now, you know, Pete did bring up a really good point. Henderson is the senior judge here and she gets to pick who writes the opinion. But if the others disagreed with her, they could outvote her. And so if they had a consensus,

we would have heard at least something by now. And I thought that that was a very good point, right? It's not just all up to if Henderson is the sole holdout, she can't without someone else, pan or child's agreeing with her, keep holding out, if that makes any sense. So, we'll see. I think it's a good chance that we might get a somewhat divided opinion. Like, it's possible that they'll agree on the immunity issue, but not agree on the jurisdiction issue. That's sort of a split decision, which ultimately won't matter, but that could be complicating the finalizing this thing. Or like you said, maybe Henderson

doesn't agree with lifting the stay on the DC trial. Yeah. But she would have to have somebody else going along with her. On that, yeah. To have this be delayed in that way. So we'll see what goes on hopefully this week, but again, no bets.

All bets are off this time. No guarantees. All right, everybody, we will see you next week. Thank you again so much for listening. We really, really appreciate it. I've been Allison Gill. I've been Aunt Makhir. M-S-W. Media.