Jack - Episode 88 | Restart Your Engines

Episode Date: August 4, 2024

Jack Smith has not requested an expedited briefing schedule in the appeal to the 11th Circuit to reverse Cannon’s dismissal.Cameras caught Chesebro doing his dirty work to perpetuate the Jan 6 scheme.Judge Chutkin has her case back!We shed some light on Trump’s Project 2025 plan for DoJ.Plus we take some listener questions. Joan BiskupicThe inside story of John Roberts and Trump’s immunity win at the Supreme Court | CNN PoliticsAli VelshiProject 2025's plan for Donald Trump's Justice DepartmentDemocracy DocketWhat is Project 2025 And Why Is It Alarming? - Democracy Docket Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ  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/18/1512 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

MSW Media I signed an order appointing Jack Smith. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. What law have I broken? 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 88 of Jack, the podcast about all things special counsel. It's Sunday, August 4th, 2024. I'm Alison Gill. And I'm Andy McCabe. And yes, Alison, I am sick again. I thought I would explain that at the top. So to get the questions out of your minds, it is true. Once again, I'm sick, but this time I have the COVID. Maybe it's COVID 2024 now. I don't know what they call it, but it still sucks. It's not terrible though. I'm taking the Pax Lovat. I'm going to knock this thing down right away, but sorry for the rough voice this week.

Sorry, my friend. I hope everybody send out those healing vibes to Andy. I could use them. I could use them, but today we're going to give you a brief update on the appeal of Judge Cannon's dismissal of the documents case in Florida and what Merrick Garland told 60 Minutes about it. And we'll also cover some new reporting on the inside story of the immunity ruling. Nicole Forrest, MPH, CHES, MPH, CHES, MPH Yes, we also have a new video, Andy, of Ken Chesbrough and what he was doing on January 5th. And since we're in a bit of a holding pattern with both Jack Smith cases, I thought it would

be a good idea and we thought it would be good to take this opportunity to shed some light on project 2025 and Trump's plan for the Justice Department and the FBI should he win the election. But you know, knock on wood that he doesn't. But first, it's time for another installment of Good Week, Bad Week. What do we have this week, Andy? Wow. So as always, our Good Week, Bad Week tends to focus on one Donald J. Trump. So I think that's probably appropriate for this week. Again, and you really can't talk about how his week has gone without starting with his appearance at the, I guess it was the National Association of Black Journalists

who had a convention or some sort of a meeting in Atlanta. And I don't know, A.G., I'm going to say it did not go very well for him. Holy cow. No. And there was a little scouplet out that the reason he was so late, like everybody's sitting there waiting for him for, I think, almost an hour. At first he comes out on stage or the Trump campaign spokespeople told the press that the reason he was late was because there was a sound issue. That the National Association of Black Journalists had sound issues for their panel. But what actually happened was that there was a stalemate backstage because the journalists that were on stage that were going to ask

him questions had a plan to fact check Donald Trump in real time during the interview. Trump didn't want that to happen and wouldn't go on stage until they agreed not to fact check him. So the NABJ was like, all right, well, I guess we're not doing this event. And they started writing the statement that Trump refused to come on stage because he would be fact checked. And while they're writing that statement, Trump just went out on stage. And of course he did. To, to, to, well, I'm not going to let that story get out. It did anyway, which is hilarious to think that the National Association of Black Journalists would keep that under wraps

for him. Yeah. And you know, when he was out, this is classic projection, which he does all the time. He brought up the fact that they were late. He's like, this was so, you know, when he was going on his tirade about how nasty and awful they were, he referred to the fact that they were late because they couldn't get their sound system together, which was classic. Now, now we know just another example of Trump projecting, you know, you the, the wrongs that you do, you just accuse others of doing. But yeah, terrible idea. I don't know. I mean, if he didn't fire the staffer that recommended this appearance, I don't know how that person's

ever going to get fired. This was the worst matchup in the history of Trump matchups. I get it. He's trying to appeal to black voters. Not sure if there's much hope there, but nevertheless. There's zero. Given what he said on that stage, there is zero hope there. Yeah, it's over now. The three that you had, you might've lost like two and a half of them because he said just horrible things. Yeah, it was bad. That did not go well for him. So that was bad. And then when they asked him about Project 2025, Chris LaCivita, right, the spokesperson

for Trump, maybe the person who set up this interview pulled the big hookup on stage and like hooked him off of the stage. They just, they rushed him off of the stage so fast. When, when those journalists asked him about project 2025, they know that project 2025 is wildly unpopular. And, and so, and, and, you know, recently we had news this week that Trump fired the head of Project 2025 in an effort to look like he doesn't like Project 2025. But to say you have nothing to do with it and then fire the guy in charge of it is probably one of the more ridiculous ops I've seen this campaign participate in. We all know what went down for real there.

He got together with his pals and he's like, what are we going to do? Everyone hates my ideas. Everyone hates project 2025. And they're like, maybe if we fire the guy in charge and then take credit for firing him, it'll look like we hate project 2025. And that's what happened. Hey, you know, in Trump's defense, I would say that he probably has no idea what's in 2025 because there's not a chance in hell that he sat down and read a 900 page policy document. But he can't run away from this thing fast enough right now. It just tells you they're recognizing that it's kryptonite for him in this election. You know what? It should be incredibly concerning

to people. There is a lot in there that would fundamentally restructure the way that we experience our lives in this country and in the way that we, what we expect from government and how the sorts of services and protections and kind of rules of fair play that we expect from our government. So we'll talk about that, I know a little bit later in the show, but I think it's a good thing to keep. And people should be interested in this is what they're saying they support. These are the ideas and the ideals that they pursue. And you should know what those are to be an informed voter. Yeah, agreed. Also bad week for Trump because some old reporting is getting a refresh with Carol Lennick at the Washington Post. Now we knew back in 2020 and I did an entire show

on this on the Daily Beans, October 15th, I think, 2020, called the secret company from country A, that there was a secret Mueller team, a fourth Mueller team looking at a $10 million payment from Egypt that coincided with an infusion of $10 million to the Trump campaign. Now what's new in this reporting, as far as I can tell, I'm going to be putting out a sub stack on this because we covered it in depth on the Mueller podcast and on the Daily Beans. But what's seemingly new here is that Mike Sherwin, who ended up taking over that case from Mueller, Mueller handed it off to Jesse Liu, the DC US attorney. And then Jesse Liu was fired by Donald Trump and Bill Barr, presumably for not cooperating

with their BS. But we'll never, I don't think I know the full story there, but Mike Sherwin, Mike Sherwin was the one that shut down this case. And not only did he shut down this case, but he refused to brief Merrick Garland on it when Merrick Garland came in. So again, we've got shenanigans with Mike Sherwin, always Mike Sherwin shenanigans. I don't even know how that happens. How do you, as a US attorney say, no, I'm not going to tell the attorney general what's going on with this case? I don't know what world

that takes place in. Well, he wouldn't brief him on the investigation that Cooney was doing into Donald Trump and the coup. He refused to issue subpoenas to the Willard. He was instrumental in trying to block the search of Mar-a-Lago for the documents. I mean, this guy, and then he went on 60 Minutes and said they were looking at seditious conspiracy charges for the Oath Keepers, almost tanked that case. It was only because of a quick thinking of Judge Metta that I think it was saved and the new US attorney for DC when he got there.

But regardless, this is bad news for Trump. This is already surfacing right now, all of this weaponization of the Justice Department. And I bring it up on Good Week, bad week, because it's going to play into Project 2025 and what he intends to do with the Justice Department to weaponize it should he win a second term. So it's all kind of comes full circle. Yeah. And I think capping off his bad week is just simply the fact that, uh, uh, Harris raised five, a trillion bazillion dollars this week. So, you know.

And just now as we are speaking, she clinched enough delegates in the virtual roll call. She is officially the nominee now. So Wow. Wow. That is amazing. Well, yeah, that definitely caps off. Not a fun week for the former president. Yep.

And that makes me happy. All right. Update on the Jack Smith appeal to the 11th circuit. And this is his appeal to reverse judge Aileen Cannon's dismissal of the espionage and obstruction documents case in Florida. Because, you know, she dismissed it saying that Jack Smith's appointment was inappropriate. She also opined that his funding was inappropriate, but didn't need to go there in order to dismiss the case, according to her. And after parsing through last week, the legal ins and outs of her 93 page ruling, it really boils down to

the fact that Jack Smith was appointed and put in charge of the office at the same time. And they didn't have a five second or a five minute gap between the charge of the office at the same time and they didn't have a five second or a five minute gap between the creation of the office of special counsel and his appointment. That's what she's relying on. But the update on that is that there is no update. Jack Smith has not filed for an expedited briefing schedule. So as it stands, he still has until August 27th to file his appeal brief. And of course, as soon as we get that, we will bring it to you. But as it stands, he's not seeming to be in a hurry. And I'm wondering if this, if he wants to say that this is urgent later on, because Do you remember how when he filed for, I think it was the FBI agents, law enforcement being

targeted because- Yeah, what they called the gag order in Florida. Because Trump said that the- The modification of bail restrictions. That the FBI was trying to assassinate him. Yeah, the modification of bail restrictions. And they didn't ask for that on an emergency basis. And it kind of came back to bite him in the ass because now it's not an emergency because they didn't ask for that. Well, I'm

also wondering if this could be a problem here. Maybe not, maybe not as much, but it doesn't seem like Jack Smith's or his office is in a huge giant hurry to have this expedited through the 11th circuit. The election and the timing is no longer a consideration anyhow. And by the regular rules, Trump only has 30 days to respond to Jack Smith's briefing. So Jack Smith really even under the regular rules of the timing is kind of controlling how fast it goes. Because as soon as he makes his brief, Trump only has 30 days to respond by the regular rules. And filing for an expedited briefing schedule on oral arguments really would only maybe give Trump two weeks or three weeks to respond. It wouldn't, I think, save that much time.

But as far as oral arguments are concerned, I guess that's where I'm wondering why Jack Smith isn't saying that this is a hair on fire emergency. Matthew Feeney Yeah, I think it concerns me a bit. I think it could, it doesn't matter substantively. The arguments are what they are and the legal issues aren't going to change. But it could hurt him later if they come back with like a really extended oral argument schedule or something like that, a real kind of time drag. You've basically lost the ability to come in and say, oh no, we need to do this quicker. If you don't do that now, you can't do it later. So I think, you know, maybe this is just a reflection of the fact that he's kind of throwing in his towel on the timing of getting this done before the election and all that

stuff, which certainly makes sense. I mean, nobody has any real thought that that would, any of this would be concluded in a significant period before the election. But yeah, we'll see. I mean, maybe there's always other stuff going on behind the scenes that we don't know about. So who knows. Yeah. And he still has time to file, I think, if he wants to file for an expedited briefing schedule, he still has time to do that. But I'm imagining we're just going to see in pretty short order, maybe even by the next show that you and I record, Andy, we'll see that. We'll see maybe his appeal brief on

this matter that we prepped everybody for in last week's episode. Yep. We'll see. Yeah, we'll see. All right, everybody. We have a lot of stuff to get to including that project 2025 information. But we do have some really great reporting from Joan Biskupic. And if you don't know her, you should. I interviewed her on the Daily Beans for her book called Nine Black Robes. She's one of your colleagues over at CNN and we're going to talk about her reporting after this break. Stick around. We'll be right back. Okay, my colleague at CNN, Joan Biskupic, author of the book, Nine Black Robes, is reporting on the inside story of John Roberts and Trump's immunity win at the Supreme Court.

She writes, the Supreme Court's toughest cases during Chief Justice John Roberts tenure have often generated internal suspense with shifting votes, last minute switches, and the chief's own push towards compromises that would lessen the appearance of politics. But not so this spring, when the six Republican appointed conservatives established a far-reaching immunity from prosecution for former President Donald Trump. Sources familiar with the negotiations told CNN there was an immediate and clear six to three split as the justices met in private in the oak paneled conference room that adjoins

the chief justice's chambers. Roberts made no serious effort to entice the three liberal justices for even a modicum of the cross ideological agreement that distinguished such presidential powers cases in the past. He believed that he could persuade people to look beyond Trump. In past decades, when the justices took up major tests of presidential power, they achieved unanimity. Certainly today's bench and all of Washington is far more polarized, but as recently as 2020, Roberts was able to broker compromises in two Trump document cases. It was understandable for outsiders and even for some justices inside to believe that middle

ground might be found on some issues in the immunity dispute and that Roberts would work against any resounding victory for Trump. The Chief Justice's institutionalist tendency had been cemented over the past two decades. He often talked it up, famously admonishing Trump in 2018 that jurists shed their political affiliation once they take the robe. Quote, we do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.

Well, seems so quaint. Yeah. And that's kind of why all of us were taken aback with this ruling because the Supreme Court had shut Trump down so many times in the past. But the Chief Justice, now 69 and about to begin his 20th term, appears to have abandoned his usual institutional concerns. And I just want to repeat that line here from Joan, appears to have abandoned his usual institutional concerns. He upended constitutional norms, enlarged the institution of the presidency, and gave Trump a victory that bolstered his litigating position even beyond the case at hand.

For example, in his attempt to reverse the conviction in his Manhattan hush money trial, a jury in May found Trump guilty of falsifying business records. Roberts may also have sensed that the liberals were simply not going to accept any version of his sweeping presidential immunity. Roberts boldness was perhaps belied by some defensiveness, however, as he devoted five pages of his 43 pages in rejoinder to the dissenting justice's condemnation of his opinion. He deemed it fear-mongering and derided the tone of chilling doom. He spent five pages. I remember thinking that the very first time I read through it. That language, he really attacked them in such direct language in the majority ruling.

I was like, that's kind of rare. They don't, you're the majority. Who cares what the dissenters think? They're the losers. Oftentimes you don't even refer to it, but he really went after them in a very direct way. Yeah. And she goes on to say, all told, Roberts appears to have reached a turning point. His vision for the high court became more aggressive and he has perhaps shed the aura of ineffectualness that permeated some public commentary in recent years. Yeah, I'll say. He kept the most important cases for himself, including ones that reversed a 1984 precedent, giving federal regulators considerable power

over healthcare, food and drug safety. This is the chevron deference. As chief, Roberts makes most opinion writing assignments and he regularly keeps important cases. But in the past, he shared more and evened out assignments among the eight associate justices. Now at the same time, his dealings with his conservative colleagues were more agreeable. People close to justices on the far right told CNN those justices were heartened by Roberts after years of suspicions about his efforts at the center of the bench, most famously when he switched his vote in 2012 that upheld the Affordable Care Act.

Now, the immunity dispute before the justices this spring traced to four criminal counts brought by special counsel Jack Smith. They arose from the former president's protest of the valid 2020 election results as he falsely claimed widespread voter fraud, tried to organize fake slates of electors, and encouraged a mob to march toward the Capitol on January 6th, where the election results were being certified. Nine people, including five police officers, died that day and in the months that followed. Now, Roberts avoided reference to that day's chaos and violence as he found new immunity vested in the Constitution for a former president. The chief justice

also took authorship of a separate January 6 related case testing an obstruction charge leveled against scores of defendants who tried to disrupt the election certification. And we know that is Fisher, right? We do. In 1512 C2. And Fisher was heard just a week before the immunity dispute. Under normal circumstances, a case from the same April session would have been assigned to a different justice, perhaps Alito, a former prosecutor who dominated during oral arguments and agreed with Roberts on the outcome favoring the January 6th defendants. In Fisher, Roberts tersely related the events of January 6th as quote, as set forth in the criminal complaint, some of the crowd eventually forced

entry into the building, breaking windows and assaulting members of the Capitol police. This breach of the Capitol caused members of the Congress to evacuate the chambers and delayed the certification process. That's all he had to say about it. Now the justices during the nearly three hours of varied questions in the multifaceted case on April 25th, immunity, suggested a certain measure of vindication for Trump on some of his lower court laws, but not without acceptance of some of the arguments from special counsel. In their private session on the case the next day, however, the votes on the court issue lacked any ambiguity and Roberts was ready to write with bold strokes that a former president is entitled to presumptive, if not absolute immunity for all official acts. And further, Roberts' construction

of official acts as opposed to private ones was extensive. And the sharp divide between liberals and conservatives meant that virtually all of Roberts negotiating would be among his people on the right. Sources familiar with the internal debate told CNN that Roberts believed that he could assert the large and lasting significance of the case and steer attention away from Trump as he ended up writing in his opinion. Yeah. What on earth? Yeah, I don't know, man. Oh, nobody will think this is about Trump. He literally thought that. And he wrote, unlike the political branches and the public at large, we cannot afford

to fixate exclusively or even primarily on present exigencies. And here's the thing, the case was focused on present exigencies. And here's the thing, the case was focused on present exigencies. Those were the only ones that had appealed it. And they got this wrong. The conservatives on the Supreme Court got this wrong over and over again during oral arguments saying we have to make a decision for the ages about all presidents. And the circuit court decided that no presidents have it. And the circuit court specifically wrote, we are only looking at whether Trump has it in this specific case. And they went way out on their own. Yeah.

Yeah. Crazy, crazy. And as you know, Barrett was the lone justice on the right wing who tried to close the gap with the dissenting justices. In a concurring opinion, she asserted, notwithstanding signing Robert's opinion, that, quote, the president's constitutional protection from prosecution is narrow and tried to suggest how the case could go forward. Barrett in general may have been trying to situate herself in the middle. On several occasions throughout the annual session, Barrett separated herself from her conservative brethren. Notably, she fully broke from them in the Fisher case when the Roberts majority narrowed the reach of a federal obstruction statute that had been used against scores of January 6th defendants.

The only other justice on the majority side to write separately was Thomas. He fully joined Robert's opinion, of course he did, but then questioned the constitutionality of the special counsel's office. Trump's lawyers had not challenged Smith's appointment in this case and it had been raised only by Thomas during oral arguments. Thomas's solo statement has already had some influence. Earlier this month, US District Judge Eileen Cannon, a Trump appointee, relied partly on that Thomas opinion as she

threw out the classified documents case against Trump. And there you have it. And there we are. Pretty compelling reporting by Joan, I got to say. She's a delightful woman and really knows the court better than anyone I think up there. Yeah. And when I interviewed her for her book, that was apparent. If anybody gets a chance to go back and listen to the Joan Biskupic interview about her book, Nine Black Robes, do it. She's incredible to talk to, I have to say. Yeah. This is an interesting, great lens into what's going on back there. And I don't know, sometimes I kind of struggle with how to interpret it. But for me, what I'm taking away from

this is that Roberts is just as much of an ideologue as the other conservative justices. Like we had been kind of lulled into this perception that he was the middle of the road guy, the non-hair on fire conservative, the guy who could bridge the gap between the two sides. It almost feels like he's letting his true colors show a little bit more now. He comes from the same places they do. He came up through the same conservative legal channels, White House jobs for conservative presidents, things like that. So it shouldn't be that surprising. We're just kind of seeing, you know, we're kind of seeing the real Roberts come back in a way. Cause I think this is

really who he's been all along. Yeah. It's almost like he was just sort of waiting, waiting for the super majority to pounce and start being- He didn't feel comfortable really flexing his muscles until he knew he had a big enough crew behind him to back him up. Yeah. And that's why he didn't even bother looking for unanimity on any of these cases that impact, I mean, frankly, our constitution. And I think Senator Schumer has introduced a bill called the no Kings bill to try to reverse this, which is interesting because it'll just be sued by Republicans,

maybe in North Texas, and then make its way up to the Supreme Court where they'll gut it. Until you change the face of this court, I don't think this immunity decision is going anywhere. Now, I know Joe Biden has made some announcements on major court reform, including term limits of 18 years, which aren't really term limits in the sense that we need a constitutional amendment to do them because he's introducing something that Ellie Mistal wrote about in his book, Allow Me to Retort a Black Guy's Guide to the Constitution saying we should do senior status at the Supreme Court level like we do at the federal bench, where after 18 years,

you become a senior associate justice and you aren't really involved in the decision making of the cases anymore, but you're still on the bench technically for life. I think that's a way to kind of avoid the constitutional problem of taking away the job because the constitution of course says they're appointed for life. So how do you get them out of the chair, but leave them in the chair? And that's kind of the way they're thinking about it. I don't know if it works or not. I know there's a lot of people, I think there are smart people who see some problems with all these ideas, anything outside of a constitutional amendment. It's a complicated situation, but the reality is exactly what you said. As long as this is the court we have, these are the decisions we're going to get.

Each of these people on the conservative side, particularly, I mean, Thomas, Alito, Gorsuch, and I would throw Roberts in there as well. Kavanaugh, he's a little bit harder to figure out, and Barrett, same as Kavanaugh. But these are ideologues who are pursuing cases and writing opinions because they are finally seeing the opportunity to make their own ideas about government come true. And ideas about the power of the presidency and the supremacy of the presidency over the other branches of government and the inability of Congress and the executive agencies to regulate. So it's taking advantage of this opportunity that they now have to pursue an agenda, which is really the height of judicial activism coming from a bunch of conservatives who claim to hate judicial activists.

Yeah. And, and let's be clear here, President Biden and Vice President Harris now are nominating officially our nominee for president Harris. Don't believe that they can get this done right now, right? Because you're going to need 60 votes in the Senate. You're going to need to do all these other things. Two senators in the House. Yeah. And if you're going to, well, or-

And then three quarters of the states, I think. Or for a constitutional amendment, just to pass legislation Forrest, Ph.D. And if you're going to- Matthew Feeney, Ph.D. And then three quarters of the states, I think. Nicole Forrest, Ph.D. Or for a constitutional amendment, just to pass legislation. Matthew Feeney, Ph.D. Oh, yeah. Nicole Forrest, Ph.D. Yeah, you only need that, but we still have the filibuster. It can't really be done right

now. That's not why they're issuing this plan for court reform. It's going to become a campaign issue. The Supreme Court is so miserably low on the approval ratings, like lowest it's ever been in the universe of the Supreme Court. And, you know, in addition to row, codifying row, abortion rights, bodily autonomy, healthcare, and all the other issues that we've been running on as Democrats, they now want to add Supreme Court reform as an issue to run on. And we'll eventually get there, I do believe we'll eventually get there to Supreme Court reform, whether it's a constitutional amendment, because one of those things is a constitutional amendment and that's to take away immunity from presidents.

But the other is this legislation. I do think whether it's that amendment or codifying this stuff in law like an ethics code that actually is followed or policed by someone outside of the Supreme Court, I do believe that we will eventually get there. But right now, I think that this is a method to introduce something that Democrats should have been running on and should have made an election issue for the past six elections that we have failed to do so, and that is the Supreme Court and Supreme Court reform. So I think it's a very popular issue. Nobody likes the Supreme Court right now. And so I think that that's kind of the idea here going forward.

And nobody wants kings and everybody wants them to have to follow some rules. So I think that's what we're looking at. All right. We have some breaking news, Andy, and we're going to get to that as soon as we take one quick break. Everybody stick around. We'll be right back. All right, everybody. Welcome back. Before the break, I promised that we had some breaking

news and we do. The Supreme Court's immunity mandate has arrived at the DC Circuit Court of Appeals. So they have now sent it back down to the DC Circuit Court of Appeals. So they have now sent it back down to the DC Circuit Court of Appeals. And within minutes, Andy, the appeals court remanded it back to Judge Tanya Chutkin. We knew we were waiting for the first week of August for this to happen. It has happened. This is the first step toward restarting the federal election interference case in DC, a Jack Smith's case. And of course, we'll keep you posted of any follow on filings because orders could come from Judge Chutkin at any time now, as well as, I mean, she could issue rulings on some

of the pretrial motions that were on hold forever. She could issue orders for both parties to submit how they want to have a hearing, what they want to see for a hearing schedule for determining what acts in this indictment by Jack Smith are immune. And so she's got it. The case is hers again. And now we're going to keep an eye on it from here on out. And now some breaking news. On Saturday, Judge Chuck Kin denied Trump's motion to dismiss the DC case on statutory grounds. She's already hit the ground running, and she's ordered the parties to submit their hearing schedule motions for immunity by August 9th and set a status conference on it for August 16th.

So we're going to cover this dismissal and the order in detail on next week's episode and I'll be breaking it down on my free newsletter at MuellerSheWrote.com. And now back to your regularly scheduled programming. Things are coming. We've been in this lull for the last couple of weeks, but I think things are going to start to heat up again. I think so. And while we wait for that movement in the DC case and while we wait for the appeal brief in the Florida case, we wanted to cover, you know, you and I got together. So we should really cover what project 2025 and Trump's agenda have in store for the justice department.

You know, this podcast instrumentally is about the special counsel investigations and therefore it's about the Justice Department, how they work, how they see these cases, but cases like this more broadly, how they think about their own rules and how they follow them and the policies of the Justice Department, how those things impact the way these big high profile cases are run. Obviously the lawyers moves on the docket, what they file, what they argue, the results in court, all that kind of stuff. Understanding how one party and one candidate, of course being the Republicans and their nominee Donald Trump, are proposing to basically completely restructure the Department

of Justice is not only relevant to this pod and the things we talk about every week, but it's also, it should be relevant to everybody who will be voting at the end of this year, because it's super important and we're know, certainly what could amount to massive change. Now, obviously if Trump wins, he'll likely fire special counsel Jack Smith and shut down all of the investigations into him. But what could happen after that is exactly this, this dismantling of the justice department that would not only insulate Trump from accountability, but would also allow him to weaponize the department so he could punish his political enemies. Yeah, which he's been trying to do for a long time. I'm thinking of the lawsuit against you and 30 other people, including Hillary Clinton, of course. That was dismissed by Middlebrooks.

He wanted to get Judge Cannon in that case, and he ended up with Judge Middlebrooks. Middlebrooks dismissed it and also fined them about a million dollars in sanctions. He and Alina Haba. That was a fun day. But all of that kind of stuff comes back and not just civilly, but criminally if Trump gets his tiny hands on the Justice Department again. And Ali Velshi wrote about this for MSNBC. And he's been covering Project 2025 along with Joy Reid and a lot of the folks over there, which I'm very glad about. I know Nicole Wallace was also focusing on it. But Ali Velshi writes, Project 2025's chapter on the Justice Department begins with a bit

of a tell, quote, not reforming the Department of Justice will also guarantee the failure of that conservative administration's agenda in countless other ways, unquote. A common misconception held by Donald Trump while he was president was that the Justice Department worked for him, not for the American people. Chapter 17, which is the Justice Department chapter in the 922 page Project 2025, seeks to make that misconception true. Kevin Roberts, president of the Heritage Foundation and architect of Project 2025, is already on board with Trump's perspective. In January, he told the New York Times, quote, we just disagree wholly that the Department of Justice is independent of the president or the executive branch. Wow. That goes against everything that, you

know, in the DOJ's soul and DNA since it's found. Yeah. It's basically you're not here to follow the law. You're here to follow the president. Yeah. And he goes on to say project 2025 922 page blueprint for a second Trump term is not an easy read. The words and sentences are deliberately confusing, but make no mistake, Project 2025 calls for a justice department working in lockstep with a Trump administration. That means if Trump is reelected, the branch tasked with independently and impartially upholding the rule of law will be in the hands of a man convicted on 34 felony counts who has promised revenge and retribution against his personal enemies. Ali Valchik goes, what could possibly go wrong? Let's start with project 2025 plan

for the FBI. And I know that this hits home for you, Andy, which is a branch within the justice department. While president Trump was supremely frustrated by his inability to control the FBI, he desperately wanted the agency to drop its investigation into Russian interference in the 2016 election. So it follows that Project 2025 would encourage the next conservative administration, presumably Trump's, to place the FBI under more, quote, politically accountable leadership. That's code word for loyal to Trump. And it also wants the FBI to stop investigating online misinformation. A new initiative that feels more important than ever, right? Oh, absolutely. And here's the direct language from project 2025. Prohibit the FBI from engaging in general in activities related

to combating the spread of so-called misinformation and disinformation by Americans who are not tied to any plausible criminal activity. The FBI, along with the rest of government, needs a hard reset, whatever that means, on the appropriate scope of its legitimate activities. It must not look to or rely on the past decade as precedent or legitimization for any continued action in certain spaces. It's starting to feel like an Eileen Cannon order. I know. This is especially true with respect to activities that the FBI and the US government

writ large claim are efforts to combat misinformation, disinformation or malinformation. Pretty sure they made that last one up. I don't think that's actually a word. And it puts it in quotes, misinformation in quotes. And this is the whole like Matt Taibbi situation where they think that even though Trump was actually doing a lot to get Twitter to delete tweets or social media posts, but more specifically tweets, the Twitter files show that they were all targeting right wing conservative voices. Right. Because we all know there's no conservative voices on Twitter. All right. No, of course not. Alley Val, she goes on to say the agency wouldn't investigate

police misconduct either. They're going to shut down Trump. Trump's project 2025 wants to shut down the DOJ investigating police misconduct. Another hidden detail in Chapter 17 is to call to promptly and properly eliminate all existing consent decrees. The Justice Department typically hands down a consent decree to local jurisdictions after investigating police wrongdoing. Think of them like court ordered improvement plans. These decrees usually compelled jails to improve their conditions or police departments to consider their tactics and report back to the Justice Department. But Project 2025 argues

the Justice Department should disclaim its ability to hand down consent decrees. Now, that's something that he sent kind of sort of did in his first term under Jeff Sessions. They basically said, we're not doing any of this anymore. We're going to walk away from the ones that are out there. We're not going to pursue any new ones. And then thankfully the Biden administration completely reversed course when they came in and said, no, we're getting back in this business because the justice department is, if you live in one of these communities, it's run by a questionable sheriff that's been elected 50 times and has a bunch of deputies that have been abusing people's rights or pulling people over for offenses simply to generate money for the town coffers or whatever it is. Your only hope of getting that to stop

and then fixing it going forward is having DOJ come in to do a pattern of practice investigation. Or excessive use of force, like the consent decree for the Minneapolis Police Department. All those things. There's no way to really fix that stuff unless you come in and investigate it, you threaten to take them to court, and then they enter into an agreement that's called a consent decree. Anyway, another target of this chapter is local and state attorneys who use their own discretion to pursue or not pursue prosecution, which I know sounds like that's exactly the job of

a local attorney. Let me continue. Project 2025 calls for the Justice Department to, quote, initiate legal action against local officials, including district attorneys, who deny American citizens the equal protection of the laws by refusing to prosecute criminal offenses in their jurisdictions. And this would be a radical departure from the norm, and it goes against the very purpose of local district attorneys. As the Marshall Project's James Lardy explains, choosing which cases to pursue and which to drop is a core responsibility of prosecution. And one of the arguments for the local election

of district attorneys is that communities may have different priorities on how these choices get made, but no such quarter would be given in a second Trump term. Nicole Forrest This is basically Donald Trump wanting to shut down stuff like the Manhattan DA's investigation or the Fulton County DA's investigation or the New York attorney general. Aaron Norris Or even something like sanctuary cities, right? He doesn't want that. He wants every local police officer out there enforcing the immigration

laws or whatever. I mean, like, he wants to make all the decisions. Or he wants to be able to quash protests by forcing the local law enforcement and the DAs to do something. So to prosecute his enemies and to give safe harbor to his friends. That's correct. But not just for the justice department, not just federally he wants to do it at the local and state level too. That's just so fascist. I don't know how else to explain it.

I guess in he and his supporters minds, the only decisions that states are entitled to make are like abortion restrictions. Everything else, they basically have to follow his direction and do what he wants. Nicole Forkner Yep. And Velshi goes on to say, if you'd prefer a justice department that will defend and uphold voting rights, I have bad news for you. Project 2025 would reorient the federal government's role from upholding voting rights to suppressing them and take specific aim at so-called mail-in ballot fraud and other types of voting and registration that become targets of the big lie. Quote, with respect to the 2020 presidential election, there were no DOJ investigations

of the appropriateness or lawfulness of state election guidance. The Pennsylvania secretary of state should have been and still should be investigated and prosecuted for potential violations. That paragraph explicitly targets a specific official whom Trump blames for his 2020 election laws. Though I'm sure project 2025 has nothing to do with Donald Trump, but if implemented project 2025 new era justice department would cement longstanding Though I'm sure Project 2025 has nothing to do with Donald Trump, but if implemented, Project 2025's new era Justice Department would cement longstanding grudges Trump holds against the various legal guardrails he crashed into during his four years in office and in

the years since. And it would mutate the Justice Department into nothing more than a crude beating stick for Trump and his allies to use against their perceived enemies. So I really highly recommend you Google project 2025. If you want to read it, it's again, very convoluted. Like you said, Andy, it reads like an Eileen Cannon ruling. Totally. But chapter 17 is on the justice department and it's frightening. I know that they were running some tabletop exercises about what a second Trump term would look like and to shut down these investigations, fire career civil servants, only hire people who believe that the 2020 election was stolen

from Trump and use the Department of Justice as a cudgel to go after his political enemies and to shield him from any accountability, not that he doesn't need it much anymore because the whole Oval Office is cloaked in immunity now. It's terrifying. It's frankly terrifying. It goes against everything that the DOJ exists for in the first place. And of course, they will continue to cry wolf about fake stories that Joe Biden is somehow coordinating with Merrick Garland on stuff, or that Joe Biden is coordinating with the DA in Manhattan or the Fulton County DA on stuff. But in the same breath, in his own plan, he wants to be able to do that himself.

Yeah, that's exactly it. It's the height of hypocrisy. But it's worse than just typical election year hypocrisy. This is literally rethinking the concept of justice, not just the entity of the Department of Justice, but the concept of equal justice in this country. And I know that the justice system is not perfect. We have all kinds of inherent and systemic problems in terms of the results that we get that are suffused with racism and bias and misallocation of resources and things like that. But at least we remain committed to the goals and we try to get better over time through things like consent decrees and other civil rights actions and prosecuting color of law offenses and doing things like

going after corrupt government officials. You think any of that's going to happen in an FBI that's subjected to political control? An FBI that's subject, that is an indoor day, quote unquote, hard reset, whatever that means, and is more politically obedient? You know, it's just, it's the product of now eight years of propaganda, constantly complaining about this two tiered system of justice in this country, which doesn't exist or that the department of justice- Not for Trump anyway, you know. Or that the department has been weaponized against Republicans. The fact that there's all these massive high level criminal prosecutions going right now against high

profile Democrats across the country. Doesn't do anything to dissuade those false arguments. But nevertheless, eight years of this constant drumbeat of propaganda, this is where we are. It's coming to a head now. It's kind of remarkable they've laid this out in a plan, an explicit plan. But the fact that they're now that Trump is running away from this thing so furiously, pants on fire, running down the street, trying to get away from it, tells you everything you need to know. He knows it's toxic. And the day he gets elected, it's in place full force guaranteed.

100%. 100%. All right. Well, thanks to Ali Velshi for that reporting. And I also dug in to get those quotes from Project 2025 myself. But as I said, give it a Google, give it a read. Chapter 17 is the Justice Department and that it will be completely dismantled and rule of law in this country will no longer exist as we know it. It's pretty frightening. So keep the pressure on to get people to understand what's in Project 2025. We have a couple more quick stories plus some listener questions, but we have to take one last quick break. Everybody stick around. We'll be right back. Welcome back.

Okay. This past week, attorney general Merrick Garland sat down for an interview with 60 Minutes. In addition to warning of the dangers of threats to law enforcement and the perils of political violence following the assassination attempt on Donald Trump, he spoke about election denialism and commented on Judge Cannon's dismissal of the documents case. He warned that democracy won't survive if election losers deny the outcome. Quote, this is a democracy and in a democracy, people, as I said, argue with each other, vociferously. They yell at each other, disagree with each other, they yell at each other, disagree with each other, and then they vote.

That's how we resolve matters. There will always be a winner and a loser. That person's supporters will always be upset. But in a democracy, we have to accept the results. Otherwise, democracy won't survive. I can say that America's elections are the most secure on the planet. Everybody has to accept that if our democracy is going to survive. I can say that America's elections are the most secure on the planet and everybody has to accept that if our democracy is going to survive. Garland also said that he disagrees with US district judge Eileen Cannon's ruling that

his appointment of special counsel Jack Smith was unconstitutional, a decision that could theoretically impact all of the special counsel appointments. This is where it really gets good. Yeah, this is good. Quote, I picked this room for this interview. This is my favorite room in the justice department. It's a law library. For more than 20 years, I was a federal judge, Garland said. Do I look like someone who would make that basic mistake about the law? I don't think so. He's like, he'd go in full badass mode in the law library.

Yeah, right? He's like, are you basically, are you effing kidding me? It's like, what do you say about Judge Cannon saying that your appointment is unconstitutional? Really? Do I look like somebody? Look at these books over here. I know what's in these books. My apartment smells of rich mahogany and I have many leather bound books. What am I sitting in here drinking scotch with the special counsel? No, I'm in here because I'm reading these law books. Oh man, that's so good. All right. Another quick story before questions. Remember when Mike Johnson and Republicans

on the Hill were demanding, release the January 6 tapes, release the videos? Yes. And we're like, all right, cool. Go ahead. Be careful what you wish for though. And they began releasing them. And we didn't hear much about it until recently. Jamie Dupree poured through hours of tape and found something important. Was it Antifa? It was not Antifa.

No? Antifa? No. What? Oh. No, I'm so sorry. All right. But what he did find is something Joyce Vance called smoking gun evidence. And this is from Twitter. This is from Jamie Dupree's Twitter. The January

6 security tapes have a big surprise. There's video of attorney Ken Chesbrough and Trump campaign aide G. Michael Brown handing off fake GOP elector certificates from Wisconsin and Michigan to aides of Rep. Mike Kelly, a Republican from Pennsylvania, on January 5th. While Chesbrough and Brown delivered the documents on January 5th, aides to Mike Kelly were unable to get the materials to Mike Pence as the Senate parliamentarian refused to accept the fake elector envelopes. Now, by the way, as he's tweeting this thread, he is showing you video of Chesbro and G Michael Brown walking down the like, okay, it like he showed the handoff everything. He says the Capitol Hill security cameras first picked up Chesbro and Brown at 340

PM on January 5th as they walked to the Longworth House office building. Chesbro and Brown then walked to the Longworth House Office Building and waited outside. And at 3.51 PM on January 5th, two aides from the office of Mike Kelly came outside to meet them. And they returned with the fake elector documents. And he has this all on video. It's on Twitter. The aides to rep Mike Kelly walked the fake elector documents to the Capitol, but that's where things went haywire. A source familiar with the matter says the Senate parliamentarian's office refused to accept the envelopes on

January 5th. Unable to deliver the fake GOP documents from Michigan and Wisconsin on January 5th, the aides to Mike Kelly then spent 30 minutes just walking around the second floor of the Capitol. Like it was a food court. Seemingly waiting for instructions. And you can see the video. They're like walking around looking at their watches. It's amazing. That led to a scramble the next day on January 6th involving Senator Ron Johnson from Wisconsin to get the Wisconsin and Michigan documents to the vice president. Those efforts failed. And how do we know there

were fake elector documents in these envelopes in the videos? Chesbrough said so in his own text messages on January 6th when he said that he dropped off the documents to AIDS for Mike Kelly a day earlier. The January 6th committee couldn't figure out where and how the fake GOP elector documents were delivered on January 5th. It took me several months of going through Capitol security tapes to find the answer. And you can see all of this with the corresponding video at Jamie Dupree's substack. I encourage you and Jack Smith, if you're listening, to go take a look at these videos.

There are so many classic moments in this little story. Them wandering around in the food court of Congress trying to figure out where to go next. Cheese Bro removing all doubt by texting. Just handing off the documents. And I'm also wondering, what was it like in the, let's see, the parliamentarian's office? To be a fly on the wall where someone in that office is like, whoa, no, stop. Do not bring that here. They're like throwing them out there and just like,. Like batting them down with a tennis racket. I'm not taking it.

Get that out of my office. I don't want to see it. You go with it. Go away. Oh, man. Oh, my goodness. All right. Well, anyway, it's time for some listener questions.

If you have a question, we have a link in the show notes of this episode and all episodes that you can click on to submit your questions to us. Andy, what do we have today? All right. We got a couple here. I thought this one was good because of all of our discussion today about the background of the immunity decision in the Supreme Court. So this one comes to us from Funu Lanu, which of course is FBI speak for first name unknown, last name unknown. They say, given the immunity decision, would it be hypothetically legal for a president to order the military to whisk justices Alito

Thomas Robertson Gorsuch to Guantanamo Bay just prior to the start of the next Supreme Court term? If so, what would be possible or likely consequences? Okay. So first of all, do not do this at home. We are not suggesting that this is a legal good or nice thing to do. It's likely a straight up kidnapping should not happen. We're not saying to go do this, but it's an interesting thought experiment in light of the immunity decision. So right. Like if you can assassinate your political enemy with SEAL Team Six, could saying to go do this. But it's an interesting thought experiment in light of the immunity decision. Right. Like if you can assassinate your political enemy with SEAL Team 6, could you kidnap some justices and send them to Gitmo?

So they can't be there to vote or whatever. It's a parade of horribles, they call it. It is. But we'll think through it. You know, if you're the president's lawyer, you want to figure out some way to cabin this within a core constitutional authority. And merely ordering the military to do that makes it very commander in chief-ish. And so that might be enough right there to make it absolutely, you know, absolute immunity sets in. If you couldn't hit that poll, you'd at least want to characterize it as an official act. There's all kinds of ways that you could probably do that. So bottom line is it's probably no criminal liability for the president for doing that. But again, Justice Roberts wrote in his opinion that your title, your mere title, isn't how we decide whether a discussion

is immune. So for example, the Department of Justice discussions that the Supreme Court decided were absolutely immune in the Trump case, it wasn't just for the mere fact that he was talking to a Department of Justice official with a Department of Justice title. It also has to do with the content of the conversation. So your title doesn't immunize you. Just like Alvin Bragg wrote in his pushback on immunity in the Manhattan DA case, just because Hope Hicks was the communications director for the White House doesn't mean that all discussions with Hope Hicks are immune. It's not based on your title. It's based on the content of the conversation and the content of their conversation was

private acts. So you'd have to not only make sure you're talking to somebody in an executive capacity, but that your conversation and the content of it has to do with official core acts as well. Yeah. So it would all come down to how they justified it. Maybe he claims there's some threat to their lives. But it would all come down to how the Supreme Court interprets it. But then of course you get into the... Because we said this isn't the fact that they're setting out hard and fast rules. What they're basically saying

is come and ask us and we'll tell you whether or not you're immune. And that they probably wouldn't grant these things to Joe Biden, which then raises the question, what if four of them aren't there anymore? So I don't actually know how this would play out. It would be very interesting. I don't either, but it sounds like a great movie. Do not try this at home. No, do not, do not, do not try it at home. All right. So let's go to the next question. And this is from Karen. It's a little bit similar theme. Karen says, the Senate can

impeach a president for high crimes and misdemeanors. Well, Karen, technically they can, but can they really? Okay. Never mind. Karen says, does the Supreme Court's ruling on presidential immunity have any impact on the impeachment process? I think that's a really good question. Honestly, like I think that's a question people will be writing like law review articles about for years. I think it does. I don't propose to be able to walk through every one of the legal implications of it, but if a president cannot possibly be held guilty for a crime, be it a high crime, i.e. felony or misdemeanor, then I think you have a good argument to make as a president who's staring impeachment in

the face that it's not lawful, it's not constitutional, even though it's provided for in the constitution. And if I'm impeaching somebody and Mitch McConnell makes the argument that, well, presidents are immune for their core act, so that can't be a high crime. I am going to say yes, but no longer. Your argument in the second impeachment, the last time we did this, the last rodeo, was that because a president can be held criminally accountable, we don't need to impeach him. Now I am saying to you, Mitch McConnell, we can no longer hold a president criminally accountable. We must therefore impeach him. And of course he's going to go, I don't think so. And they'll

vote to acquit him. I mean, it's fully up to the Senate at that point, which is again, reason number 5,643,842 about why voting is so important, especially down ballot. We have to hold the Senate. We have to get a bigger majority in the chambers of Congress so that we can ensure that these kinds of shenanigans don't continue, especially if we need to hold somebody accountable through impeachment. Just my two cents. Yeah. I think you got very possibly a direct constitutional conflict here between the actual impeachment

clause and the Supreme Court's interpretation of presidential immunity and how that gets resolved. I have no idea. In addition to that, you have the political reality of the mere presence of this argument now gives people who don't want that result, that impeachment result new ground to say, well, no, I can't possibly vote for the impeachment now because he can't be guilty of a crime or a misdemeanor. It's just, it's a mess. I picked two very messy questions this week. That's okay. I like messy questions. And again, please click on the link in the show notes if you have a question you want to submit for us to answer and we will take a stab at it. That's the show for this week.

I'm going to check here. I'm going to check the docket one last time to make sure that we don't have anything new incoming in DC or the 11th circuit and we do not. So everything else is going to have to come at the next episode if anything gets filed on Friday or even on Monday and we'll talk about it on the next episode of Jack. Do you have any final thoughts other than please get well? Yeah. I hope to be sounding a little bit better next week and yeah, I hope we get some stuff on the docket to go through because it'll be nice to be diving back into some legal filings again.

Look forward to doing that next week, hopefully. Fingers crossed. Yeah. We can get back to those 90 minute episodes we missed so much. Thanks so much everybody for listening. We'll be back in your ears next week. I've been Alison Gill. And I'm Andy McCabe.