Jack - Episode 90 | Intrusion Upon Seclusion

Episode Date: August 18, 2024

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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 90 of Jack, the podcast about all things special counsel. It's Sunday, August 18th, 2024. I'm Alison Gill. And I'm Andy McCabe. Okay. Today, we're going to discuss Donald Trump's $100 million lawsuit against the Department of Justice for the execution of a search warrant at Mar-a-Lago. And I'll just give you a hint of what I think about it.

It starts with an F and it rhymes with chivalrous, kind of. Not really, but okay. Oh, I don't know, Andy. Are you qualified to discuss frivolous lawsuits filed by the former president? I think so. Just a little, just a little bit. I mean, I'm mentioned in one of his frivolous lawsuits when he sued the Washington Post for defamation, but you are a defendant among 30 or so other people in one of them. Hey, whatever happened with that lawsuit?

Yeah, you know, it's funny what happened with that lawsuit. Basically, the judge, which is Judge Middlebrooks, he dismissed the lawsuit as, well, frivolous, and he sanctioned Trump and his lawyer, Alina Haber, about $1 million in fine. I think just under, just to be a little bit kind of caring and empathetic, he dropped it to like $997,000 or something like that. That's like when I went to college on college campus, they made the speed limit 19 because you were less likely to go over 20. So I think they were just trying to make it seem like it wasn't that much by bringing it just under a million.

Give you a little margin there. Yeah, a little incentive to pay. Oh, it's not a million at least. I'll pay it. That's fantastic. I look forward to discussing his latest frivolous lawsuit, which by the way, I couldn't get through. I discussed it a bit on the Daily Beans and said we would go into more detail here, but I could not stop laughing when I was reading it. I simply couldn't stop laughing. And we're also going to talk a bit about the Justice Department wanting the January 6th, 1512 C-2 guilty pleas to stand even after the Supreme Court altered the scope of the statute in the Fisher case.

So we have some more interesting information on how DOJ is looking to handle those cases that have already pled guilty to obstructing an official proceeding. And, you know, I think that's really interesting because it could, it could be a little foreshadowing of what we should expect from Jack Smith and how he handles the Fisher case. Like it's, you know, We get into the details of this, but it's a pretty forceful, aggressive position they're taking. So maybe we'll see that same sort of aggression on the special counsel side. Yeah, I think so. And I think they're going to quote a lot of the, not just the dissent,

but the concurrence in Fisher, where Katanji Brown Jackson, concurred was also like, yeah, but this doesn't count for stuff like for like people who create fraudulent documents Oh, like I don't know a fraudulent elector certificate like there's one that's a good example So I think that'll be quoted a lot and in whatever kind of new or modified indictment that we see from Jack Smith in the DC case. And then after we're done going over those stories, and since we're in a bit of a holding pattern until the end of the month, thanks to the captured Supreme Court there and the corrupt Eileen Cannon down in Florida, we're going to take your listener questions as well. So first, Andy, it's time for some good week, bad week.

Excellent. My favorite time of the week. So I don't know, I thought maybe worth checking in with our man Jack. Another kind of meh week for them, right? Not much going on there. It's at least not much that we know about publicly. I'm sure they've got a ton that's going on behind the scenes in terms of figuring out how they repositioned vis-a-vis Fisher. And then of course also submitting their brief, basically laying out their version of what

the path forward in DC should look like in terms of the immunity issue. And then finally, Florida, right? They're trying to figure out kind of how to move, put their appeal together in light of the dismissal in Florida. So a lot of work going on there, just not that much that we know about it. On the other side of the coin, you have our former president who really just continues to rack up one horrible week after another. His week was the exact inverse of the week had by one presidential candidate, Kamala Harris, who seems to be like really on a tear. So I think the two of those are related. Yin and Yang there.

Yeah, and he's having such a bad week because now we found more unearthed audio from JD Vance, his running mate, about women. You know, first it was childless cat ladies and then it was childless women or sociopaths. And now it's post menopausal women, females excuse me, post menopausal females, like sit in a day like post menopausal females are useless except for raising grandchildren. So that didn't go over well. And so what did Donald Trump do to help dig him out of this hole that he's finding himself in? Apparently he's hired Corey Lewandowski to help him out. Everything old is new again, right? Isn't that what they say?

Yeah. And Taylor Budowich, I think another real spectacular comms person. Only the best people. I mean, Paul Manafort, put your boots on, buddy, because stand by the phone, because that thing is about to ring. You're coming in the game. It is just, yeah, I don't know. Like maybe he's kind of pining

for the good old days of 2016, and these folks remind him of that or something. Let's all remember that they were all fired then. Like none of them made it to the end of that campaign. So, geez. Yeah. And then he had another horrible moment that I think the media is picking up on and a lot of folks on social media are picking up on in which he said that the presidential medal of freedom is way cooler than the congressionalional Medal of Honor because, let's face it, the people who get the Congressional Medal have either been hit by a bullet or they're dead. Whereas the people I gave the medal of the medal to the presidential Medal of Freedom,

they're alive and beautiful. And like, wow, just again, showing his absolute, first of all, inability to be a politician, but his absolute disdain for veterans. But you know, to say something like, oh, well, they're all been hit by a bullet, they're in bad shape or they're dead. Isn't he bragging about being hit by a bullet? I don't understand where he's coming from on this, but he's got himself in some hot water with veterans groups over that again. As well as really should. I mean, like he's been denying for years that he made that infamous horrible

comment that he referred to the, you know, the, the heroes, the fallen heroes as suckers. And then he turns around and makes a statement like this, which is completely consistent with that mindset. So, and then of course, let's not forget that this week we learned that the Iranians successfully targeted and hacked into his campaign. Well, he claims. We think because it kind of lines up through his buddy Roger Stone, who was notified

that he was actually compromised by the Iranians anyway. Really awkward now to be claiming like, oh, poor me, this is horrible. It shouldn't have happened when just a few years ago you were the guy begging the Russians to hack into Hillary Clinton. I don't. Yeah, I still don't. I'm waiting for the FBI to confirm that the Iranians hacked him.

I know Microsoft put out a report and said that they got a report from a presidential candidate they didn't name who it back in June. And that was actually the Biden campaign. They were targeted and they went and reported it to the FBI. Now, of course, all of a sudden, a bunch of stuff is released to the press from Robert at AOL.com Robert somebody at AOL.com. And now they're saying it was the Iranians, it was Iranians, and the FBI is looking into it, but no one has confirmed that that's the case. I don't know, man.

I'll wait until they confirm it. But this felt like me to me, like remember when Junior released his emails about the conversation he had with his dad on the plane about how to respond to the press talking about the June 2016 Trump Tower meeting. And he leaked those out to, we called it lubing the truth. It's also called drawing the sting, where you get out ahead of a story so you can kind of control the narrative. I feel like, and this happens to center around the oppo file on JD Vance, who Trump is now having buyer's remorse over, all of a sudden

it gets leaked. And I think what's interesting too is the press has refused to publish it. They've over learned their lesson in 2016. And these outlets, Washington Post, New York Times and Politico are refusing to publish what they got. But it also might be because the Trump campaign wanted them to. Like, put it out there because it's going to get worse. There's definitely a sense, I've noticed, in the way that reporters are talking about this story, that they are, as you are, reluctant to go with the complete narrative that it was the Iranians who hacked Trump and have now released this APO research package from February, I

think. And I sense from the way they're talking about it, like, they're not 100% ruling out that what they received was actually an intentional leak from the campaign. I have no idea whether that's the case, but it's certainly still hovering out there. I should say though, what the Bureau has confirmed so far and the people we know they've talked to, it kind of lines up with what Microsoft said. They said it was a former senior advisor to the campaign whose email got hacked and then they used that email to launch the phishing attack into current members of the campaign. Then Roger Stone comes out and admits that he was notified first by the FBI and then by Microsoft that, I'm sorry, Google,

that both of his email accounts got hacked some time ago. He's been interviewed about it. So he certainly fits with that description of former senior advisor, but who knows? Well, the problem, the big problem is, is that nobody trusts a word that they say. Everybody's like, oh, this maybe sounds like it's pretext to cry election interference because we know he did this in 2020, where he tried to get his DHS guy to have a meeting with the Department of Justice. Because Rudy Giuliani told him, look, we can't have the Department of Defense seize voting machines unless there's some sort of foreign interference. So he tried to kind of create that. And now, as part of his discovery in the DC case, we know he wants all that underlying

meeting and all that, he wants all of that information back. And he's trying to get that through discovery. But I mean, I think the big story here is kind of like the forest for the tree situation where he comes out says he was hacked by Iranians and everyone's like, Yeah, really buddy? Are you sure? And that's like scary that we, that nobody believes it. It was almost, it reminded me of, and I know Joyce Vance did a piece about this in Time Magazine when Jeffrey Epstein died and everybody was like, oh, did he? Oh, you know, did he or was he murdered, et cetera? And I had made the point on Twitter, like, look, whether he did, you know, unalive himself or whether he was murdered or despite what happened, the problem is nobody trusts the Justice Department.

And that is the big story, I think. And so because you know, and I know that if the Iranians are hacking into people into accounts and trying to interfere in our elections, that is bad and we want to stop that. But the fact that we're all raising an eyebrow and questioning whether or not it really happened, I think goes to the heart of the issue with the Donald Trump apparatus as it is, we cannot trust a word that he says. And it's earned distrust. Yes.

Right? And it goes back to during his term, coincidentally, another Iran example, when they staged the attack on Qasem Soleimani in Iraq. And then they struggled to explain why they had done it. And at first, it was, whoa, we did it to stop an attack. And people said, OK, well, where was the attack plan? Whoa, we can't really say. So the kind of hackneyed way that they went about providing a not really complete explanation, they were

not very revealing about any any of the intelligence that it was based upon, led people to believe like, well, was this really an emergency? Was it necessary? And I'm not saying like, no tears for Qasem emergency? Was it necessary? And I'm not saying like, no tears for Qasem Soleimani. This guy had it coming for decades. But yeah, that's the problem with, you know, we've normalized and accepted the fact that Donald Trump lies repeatedly about significant and insignificant things. We just expect that to be the case. And so then when he does something important, you really don't know how to take it. You know, you don't know how to, can we

accept this at face value? And the answer usually is no. So that's a tough place, I think, for us to be as a nation. Right. And then if you remember, gosh, I think it was 2021, we learned that two Iranian men were charged with interfering in a 2020 election by hacking US voter information by posing as proud boys. Right. That's right. And the emails, which the US disclosed, here it says they warned tens of thousands of Democrats to vote for Donald Trump for president or else according to an indictment. So then we had these pro Trump Iranians posing as proud boys. So I mean, it's, there's just so much that can come down on either side here that we

have to- It's a whole mirrors. You just really don't know how to take it. And that's the point, I think. That's the goal is for us to question these things, right? Yeah. Yeah, for sure. Yeah. All right.

Well, we went off on a bit of a tangent there. We still have some Jacks. We still have a whole show to do. All right, let's get to it. Let's get back on track here. Yeah, let's do it. Let's get, but let's take a break first. So we'll come back on track, we promise.

Stick around. Welcome back to the show. We're going to be talking about the Welcome back. Okay, Donald Trump's lawyers have advised the court they intend to sue the Department of Justice for $100 million in, of course, the Southern District of Florida, no doubt hoping they draw Eileen Cannon, their fave judge ever, sue DOJ for executing the search warrant at Mar-a-Lago on August 8, 2022. Now Trump attorney, Daniel Epstein filed a notice and the Justice Department has 180

days from the date of receipt to respond. If no resolution is made, Trump's case will move to federal court in the Southern District of Florida. And I should say that this process is required by statute. There are certain restrictions on suing the federal government. It's the Tort Claims Act, or I'm probably getting the wrong name wrong. There's all sorts of tort claims, Bivens. There's like a million things that govern suing the government, as you and I well know.

That's right. So you can't just charge in and file the lawsuit. You have to kind of go through this process, which is what they're doing there. So Daniel Epstein said, what President Trump is doing here is not just standing up for himself. He is standing up for all Americans who believe in the rule of law and believe that you should hold the government accountable when it wrongs you. Trump attorney Daniel Epstein told Fox Business' Lydia Hu. Oh my, oh my. Yeah. You see how I had a hard time.

He's known as the rule of law guy, right? Well, he totally is. And he's totally against the government wronging you. Unless you're me. Unless you're you or me. Yikes. It depends who the you is in that sentence. But it's us.

It's us. Hey. I don't want to distract us. It's a shout out. But yeah,. But that's- Us, it's us. Hey. I don't want to distract us. It's a shout out. But yeah, no, that's, you could see why I had a hard time getting through this story with, you know, just, I couldn't stop laughing. Yeah.

Yeah. Epstein's filing states that, quote, torsious acts against the president are rooted in intrusion upon seclusion, malicious prosecution, and abusive process resulting from the August 8th, 2022 raid of his and his family's home at Mar-a-Lago in Palm Beach, Florida. Family, family's home? That's right. Epstein added that the decisions made by DOJ and FBI regarding that raid were quote inconsistent with the protocols requiring the consent of an investigative target, disclosure to that individual's attorneys and the use of the local US attorney's office.

I want your thoughts on this because it was consistent with protocols. They did disclose to his attorney before they went in and Yeah. And they did use the US Attorney's Office. First of all, and I said this in a similar, almost laughing bout on television when this came out, I said, first of all, there is no requirement that you get consent from the subject of a search warrant. Absolutely no requirement. That is not a thing. It doesn't exist.

And the FBI executes hundreds and hundreds and hundreds of search warrants a year around the country. And very few of them are done under consent. By the way, if you had consent to get to search someone's location or their business or their residence, you don't have to get a search warrant. That's why the two are kind of, in a way, almost mutually exclusive.

The Bureau has the lawful right and responsibility to conduct a search after a judge has issued a warrant based on a finding of probable cause to believe that there is evidence of a crime contained within that location, the location that's described in the search warrant. That's how it works. There's no oh but you have to call my attorney first and ask his permission. Which they did. Which they did anyway. They spent a half a year negotiating with Donald Trump's

legal representatives. Numerous attorneys, people that he had designated to be his representatives to deal with the National Archives around and around and around again. They issued subpoenas instead of issuing a search warrant. Yeah, DOJ wanted to go in, right? They were like, they were like, let's go in. That's right. They soft-pedaled it for months and months. They went down and had a meeting and they were still not allowed to take really a wholesome look at what was there.

Let's not forget that Trump's folks and Trump himself personally participated in reviewing what he had and then decided to send some of it back, which means by definition decided to keep the rest of it, which we now know also held numerous dozens of highly classified documents and national defense information. So this guy is, I mean, I would say, I know every attorney is advocating for their client and they're trying to, they like to use the good facts and ignore the bad facts as they like to say. This is absolutely misrepresenting the truth, I believe. Right. I mean, given, you know, like you said, he was given, nobody who willfully retains classified documents, it was given as many chances to give them back as he was. No one.

That's right. No one. In the history of the universe. I've been involved in dozens of these cases, never seen this before in any other case. Okay, admittedly, it's a former president, it's a little bit different. He's a candidate for office. Well, that's why they gave him all of the deference, right? They were like, all right. And even like, D'Antuono didn't want to do a search warrant. DOJ was like, search, search. And FBI was like, no, remember how bad it was in 2016 and how bad it got for us? How about we just do a subpoena? And they're like, fine. So they did the subpoena and he, and he skirted the subpoena.

Yeah. And then lied to his lawyers. And so then they finally got, you know, developed evidence that on video that there was still stuff there. I mean, and then, then notified the lawyers, they were coming, met with them while there, didn't wear their jackets. Yeah. Covered up the kind of raid jackets and stuff. Yeah, didn't wear their jackets so they wouldn't draw any attention to what was going on, and left early and didn't even go into one of those locked closets because I don't know, they didn't want to break the lock, they didn't want to seem to...

It seemed to be too much of an inclusion on seclusion. Oh, inclusion on seclusion. Yeah, that was really, that's a weird and malicious prosecution. It sounds like something Jesse Jackson would say. Now Epstein argues, this is Trump's lawyer, that the decisions made by Merrick Garland and Christopher Wray were not grounded in quote social, economic and political policy, but instead in clear dereliction of constitutional principles, inconsistent standards as applied to Trump and a clear intent to engage in political persecution, not to advance good law enforcement practices.

Okay, hold on, hold on a second. I gotta throw another flag here. Sure. I will give him credit that he's act, he's probably inadvertently accurate with this statement that Christopher Wray and Merrick Garland did not act on social, economic, and political policy. And the reason for that is because that's not their job. They're not there to make decisions about social policy or economic policy or definitely not political policy. They are there to follow the facts and the law and to act within their lawful authority

when they need to do so. And that's what they did here. They had a search warrant and they executed it and really in the most inobtrusive way possible. But yeah, all that's ignored here. Yeah. And then they say, Epstein says Garland and Ray should have never approved a raid. It was a search warrant and subsequent indictment of Trump because of the well established protocol

with former US presidents, which is to use non enforcement means to obtain records of the United States. Okay. We can stop there and say they tried that for a year and a half. Yeah. But went on to say, but not withstanding the fact that the raid should have never occurred, Garland and Ray should have ensured their agents sought consent from President Trump,

notified his lawyers and sought cooperation. Again, they tried that a million times. And as you said, you don't need consent to search a place. And they they filed these arguments in pre trial motions to dismiss based on vindictive and selective prosecution, all these other different statutory grounds, constitutional grounds, which was dismissed. And so they've tried these arguments and failed and tried the arguments when they got the search warrant in the first place, then they tried to do the special master thing.

They failed there miserably. And so to say that they need consent from Trump because they tried to compare themselves with similarly situated former presidents like Bill Clinton and the sock drawer thing, and then, or President Biden and his documents, and even Robert Herr, who investigated Biden, laid out the very, very plain differences between what he was investigating with President Biden and what Jack Smith was investigating with Donald Trump. So you don't, you know, we asked you for your consent a million bazillion times. We have all the emails, we have all of the, we have the, this, um, the subpoena, you know, uh, that we issued to get the documents back and you still ignored it. So this is just a bunch of, I think, you know, it's just ridiculous.

Yeah. They actually did exactly the same thing with Trump as they did with Biden and as they did with Mike Pence, as they probably did with Ronald Reagan years ago, when, when there were issues about his notes possibly having, you know, should have been turned over to the National Archives. And that is they approached the former president through their designated representatives and asked for the stuff back. And in every other case, the former president gave the stuff back and directed their people to cooperate in every

way possible. Joe Biden didn't have a search warrant executed at his residence or his office because he invited them in. He gave them consent to come in and search whatever they wanted. The difference with Trump is he didn't do any of the things that former presidents do. He pushed them to the absolute wall. He said and did things that made it clear that there actually were items on his premises that should not have been there, classified national defense information, and refused to give any of it back. So here we are, right?

Yeah. And even when the agents went down to the storage room, when they were picking up the stuff from the subpoena, they asked if they could look in those boxes, and they were not given consent to do so. That's right. That's exactly right. subpoena, they asked if they could look in those boxes and they were not given consent to do so. That's right. That's exactly right. They were given one little folder of documents. 38 in a red well, double taped envelope. Epstein also said that Garland and Ray decided to

stray from established protocol to injure President Trump. And as you've just explained, that's not true. Epstein argued that the DOJ violated Florida law. It's called intrusion upon seclusion, which is recognized as a form of invasion of privacy. Intrusion upon seclusion includes, quote, an intentional intrusion physically or otherwise into the private quarters of another person. And I'm assuming that this law doesn't, an exception is a search warrant, I think, probably to this law. The intrusion must occur in a manner that a reasonable person would find highly offensive.

Okay, so first of all, you're trying to convince me that Trump is a reasonable person. He finds this highly offensive because he's the guy who broke the law in this case. But I haven't read the law, but I guarantee you the intrusion upon seclusion law in Florida is accepted when there is a signed affidavit from a magistrate judge to enter the home because there is evidence that they're of crimes on the premises. You know who thinks that their seclusion has been intruded upon? Every single person who is ever the subject of a search warrant because it is.

That's part of it. I have been around and executed search warrants, I don't know, dozens, hundreds of times in the course of my career. It's a miserable process. It's horrible for the people who live in the home or work in the business. It's frightening, it's offensive, it's humiliating. They get kicked out of their space. They're not even allowed to be in there while you're in there doing the search.

Sometimes you don't have pants on. Hey, that happens. People are basically placed under control sometimes for the period of the search and your stuff gets ripped through. Your apartment, your house gets like sometimes if you know, depending on what the probable probable causes and where the stuff is supposed to be, things get broken, walls get broken into, compartments get destroyed. Mattresses get torn up. I carved a safe out of the cement floor of a garage once, almost set the house on fire in the process.

This is just what happens in search warrants. The difference here is- That sounds cool. Tell me more about that. It was a mess. It was a total mess. They had one of those safes that's like in the floor so that you can only... It's like flat to the floor. And anyway, I'm digressing again, but it's tough.

It's really harsh. It's one of your worst days if that happens to you. The difference here is that Donald Trump does not believe that anything that happens to other people should happen to him. He thinks that the law doesn't apply to him and that he somehow should be treated better and differently and allowed to do whatever he wants.

And that's the through line with basically everything about him. But this was one of those very rare moments in his life where the law did for one day catch up to him. Yeah, and check out this next quote. I left it specifically for you because I thought you would love it. And I'm being facetious.

Okay, here it is. The FBI's demonstrated activity was inconsistent with the protocols used in routine searches of an investigative target's premises, Epstein wrote, adding that Trump had a clear expectation of privacy in Mar-a-Lago. Worse, the FBI's conduct in the raid, where established protocol was violated, constitutes a severe and unacceptable intrusion that is highly offensive to a reasonable person. Oh my God. I'm about to...

My head is exploding. Start with the FBI's activity is inconsistent with protocols used in routine searches of an investigative target's premises. You could make the argument that they didn't. Actually, I would agree with that because they didn't break down that door. Exactly. And... Not going and announce.

...ravenously go through absolutely everything. So, yeah, I guess it wasn't consistent with normal routine searches because they were nicer. The protocol is knock and announce, which is a very loud knock. It gives you about two seconds to respond to it and then the door comes down, whether it's hit with a ram or explosives or whatever it takes. Sometimes you get a couple flashbangs thrown in your house just to make sure that nobody comes running out at us.

That's how it happens to normal people or people who are suspected of being involved in violent crime or whatever. Not former presidents, right? Yeah. So, this is so frustrating. He had a clear expectation of privacy in Mar-a-Lago. Sure he did. That's his home.

He has an expectation of privacy, but that expectation of privacy is pierced when a federal judge decides that there is probable cause to believe that you are hiding evidence of a crime in your home. And that's what gets you past the expectation of privacy. There's a document that really lays all this out, the foundations of it. It's called the Constitution. Pick it up, Fourth Amendment, it's all right in there. I'll lay it out right for you. I mean, these are really like, this is old news. Like, I'm just so confused by this because, like you said,

every single person hates this when this happens to them. And it's been long established that for example if there's evidence for a crime and a search warrant is signed off by a judge That your expectation of privacy is pierced like that is an old We know that we've known that for a really long time. This isn't new Yeah, right. I mean, it's just mind boggling. These arguments are nonsensical, which tells you this is not really, they don't actually expect to get a dime from the federal government. This is a political move. Of course.

It enables them to keep this narrative alive, this narrative of grievance and look how bad the government treats me and they're targeting me. And you know, you look at that video campaign ad that they put out a few days ago. It just hammers this message like I'm standing in between you and the government. They're targeting you, but they have to go through me first. So that's really what this is for. It's to kind of keep that narrative alive. Right. Because they have six months to respond.

That's going to be past the election. Then if they even get close to a place of discovery, if this isn't dismissed outright, like if it lands on Judge Middlebrook's desk, that would be really hilarious. And I'm sure he wouldn't impose more sanctions for this frivolous lawsuit and call it out as such. But let's say it lands on on Cannon's desk and somehow gets to the point of discovery. He's not going to want to participate in discovery. Donald he's not going to want to participate in discovery. Donald Trump is not going to want to participate in discovery. No, no, this will not be resolved in the 180 day period. It'll get fought because the government

has absolutely no reason to come to some sort of a settlement with them. It'll come to it'll get filed. And then they'll immediately move to have it dismissed. Which it should be, it'll, my strong suspicion is it'll get dismissed at some point. Yeah, and there's a lot of other things in here too. They, Trump accuses him of malicious prosecution, which has been already argued in pretrial briefs. That he's argued this everywhere else and has failed miserably.

But he, you know, he, they brought a lawless criminal indictment against me, stuff like that. And then they bring in the immunity decision too, don't they? Yeah, sure. So they say, as such, given the Supreme Court's immunity decision and Judge Cannon's dismissal of the prosecution on grounds that the special counsel's appointment violated the appointments clause and his office was funded through an improper appropriation, sorry, there was no constitutional basis for the search or the subsequent indictment. Epstein also argued there was an abusive process. I have to jump in here because to argue that Jack Smith, you know, Eileen Cannon found Jack Smith was, you know, his appointment violated the appointments clause. This search warrant was executed before Jack Smith was appointed.

So I don't even understand how that even applies. That's a totally different motion if you want to make it. Like to say that I shouldn't have been indicted by Jack Smith, but to say I shouldn't have been searched because Jack Smith was appointed inappropriately and funded inappropriately. Like time is linear. They still have a hard time with that. Yeah. And the search, good luck challenging a federal court judge's determination of probable cause as the basis of a search warrant.

It just does not happen. I mean, unless you, if the government was engaged in some sort of misconduct in the representation that they made to the judge in pursuit of the warrant, that could end up getting a warrant thrown out after the fact and therefore you'd lose the evidence. But there's not even an allegation of that here. They just didn't like the result. They didn't like how it was done and they didn't like that it was done. And that's not an adequate challenge to a determination of probable cause.

Right. Yeah. So Epstein also argued that there was an abuse of process saying that the process used against Trump was unconstitutional and aimed at politically persecuting the former president, which led to an extensive legal cost and negative consequences for him. Epstein also argues that DOJ's malicious prosecution and abusive process caused President Trump to incur upon information and belief, $15 million in actual harm due to his legal costs in defending himself in Smith's case before Cannon. And so again, like now we're rolling in the damages for this bad search is every penny

he spent on the entire case writ large. And of course Epstein is also planning to sue for punitive damages. I mean good luck buddy. You got a long road to travel here. Like you said, this is nothing but a political stunt so he can perpetuate his victimhood to his people. Like it's why he sues all of the media outlets, you know, for defamation and then drops the lawsuit a couple months later when he has to start spending money on it.

He just wanted to make the overture. Yeah, he gets some press. We're all talking about it. And that's really what he wants. He wants to keep this narrative out there because he's all about branding and messaging and not so much about the law. Yeah, absolutely. And we'll talk more about that, but we have to take another quick break. So everybody stick around. We'll be right back. Welcome back. The next thing we want to cover today comes from Jordan Fisher at WUSA9, a local CBS affiliate.

Federal prosecutors say convictions for dozens of January 6th defendants who pleaded guilty to obstructing the joint session of Congress should not be vacated. Even after the Supreme Court ruled earlier this year, the Justice Department had read the statute too broadly. In June, the nation's highest court said defendants charged with obstruction of an official proceeding must have taken some action that, quote, impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in the proceeding or attempted to do so. The six to three ruling found federal prosecutors had improperly

treated the statute, which was passed as a package of reforms in the wake of the Enron scandal, as a catch-all provision instead of one more narrowly tailored to prevent evidence tampering. Since the court's ruling, prosecutors have moved to dismiss the charge, 18 USC section 1512 C2, from a number of pending indictments and have in some circumstances not opposed release pending appeal for defendants already sentenced after being convicted at trial. For defendants who entered into plea agreements however,

prosecutors are urging judges not to undo their convictions. According to WUSA 9, analysis of Justice Department sentencing data, at least 35 people have pled guilty to the obstruction count and been sentenced. For the vast majority, all other remaining charges were dropped as a condition of their plea. Yeah. And this is a little bit different. I know we've talked about, Andy, in the past, we've talked about what the Justice Department is doing for those convicted at trial, like you said, and how they're trying to unwind or who are awaiting a waiting trial. We've talked about what the Justice Department is doing for those convicted at trial like you said and how they're trying to unwind or who are awaiting a waiting trial. We're trying to unwind that. We covered that. This story from the CBS affiliate focuses

more on those who have already pled guilty and had all their other charges dropped like you said. That's right. Jordan goes on to say, Jordan Fisher in this article, standard federal plea language used in nearly all, if not all, January 6 cases requires defendants to waive their rights to appeal their conviction on any basis, Andy, including claims that one, the statutes to which your client is pleading guilty are unconstitutional, and two, the admitted conduct does not fall within the scope of the statute. It's in there. It also requires them to waive their rights to collateral attack

or the ability to challenge their conviction outside the normal appeals process. So that waiver includes the right to challenge their conviction by filing what's called a 2255 motion to vacate. Exactly the motion that some January 6th defendants who have pled guilty for 1512 C2 have filed. But according to legal experts that WUSA 9 spoke to, even with the Supreme Court's decision on Fisher, some January 6th defendants are going to have a tough time unwinding the plea deals that they entered. Quote, if I had a client in that situation, I would be looking for some way to challenge that restriction. That's defense attorney

Peter Goldberger. But he says, but I wouldn't expect to win. Now Goldberger, who's a Philadelphia based defense attorney, former criminal law professor, has more than 40 years of experience handling federal criminal appeals. And he said, defendants who entered into plea deals with the collateral attack waiver may have to show it wasn't knowing or voluntary or that they did so due to ineffective assistance of counsel. Doing that might be hard since dozens of defendants represented by just as many attorneys entered into similar pleas even after a judge in the same district had already dismissed the obstruction count in question. It's really, really hard. I mean, you remember we sat there and watched when

Flynn pled guilty and the judge, and I've seen these guilty pleas on the January 6th defendant side too. Are you sure? Are you waiving your right to appeal? Do you know? Is this real? Are you saying you're pleading guilty because you did this? But that waiver, that collateral attack waiver is huge. It is. Quote, the criminal legal system highly values finality. It places a high value on finality. That's what Goldberger said. Arguably higher value than the value it places on justice or legality. But in any event, it competes with the values of legality and justice. For example, once your case has reached the point of a judgment and the time during which

you could bring an appeal has ended, the judgment becomes final, right? He goes on to say, the systems make it hard to overcome that finality. If I'm being objective, he said, if I'm being objective about it and not wearing my criminal defense hat, I would say for good and understandable reasons. There are thousands, tens of thousands of new criminal defense cases every year. And if none of them were ever considered closed, the system would break down quite quickly. Yeah, that's absolutely true. And this waiver of your right to appeal is really a fundamental piece of every federal plea agreement, not just for January 6 people, not just for people

who were charged with 1512 C-2. But walk into any federal courthouse, sit there for arraignments court or whatever, where they're rolling some plea agreements through. And you'll hear it as part of each one of those colloquies between the judge and the defendant. It is just a standard part of the plea agreement. So last month, two members of the Proud Boys were among the first wave of January 6th defendants to seek to have their convictions vacated. Nicholas Oakes, an elder member of the group who held a senior leadership role,

and Nicholas DiCarlo, a former third degree proud boy, both pleaded guilty in 2022 to a single count of obstruction of an official proceeding and were sentenced to four years in prison. A little more than a week after SCOTUS's ruling, an attorney representing both men asked a federal judge to release them from prison and ultimately to vacate their convictions. In a filing last week opposing their release, prosecutors said the plea agreement they each

entered was a contract they should not now be allowed to back out of. Quote, in exchange for their guilty plea to a single count, the government dismissed or did not bring several other charges of equal or greater seriousness against them, prosecutors wrote. That was the bargain these defendants struck. They chose to limit their exposure and obtain finality rather than to continue to press their case.

Courts, including the DC Circuit, have declined to undo such waivers based on arguments that the law later changed or that the district court got the law wrong. They have recognized that enforcing such waivers benefits both parties by allowing defendants to use their appellate and collateral review rights as leverage and receive benefits in exchange. This court should do the same. Prosecutors said appellate courts around the country, including the Second, Sixth, Seventh, and Ninth Circuits,

have upheld collateral attack waivers under similar circumstances. And though the DC Circuit hasn't ruled on the issue, prosecutors said a 2023 ruling that upheld a waiver of the right to appeal suggests they would take the same approach to collateral attack waivers. Goldberger goes on to say, on 2255, which of course is the appeal, the collateral attack appeal, there is a particularly pernicious decision of the Supreme Court that says if

you pleaded guilty to something that's later held not to be a crime, in that way that your actions didn't constitute the crime, you have a burden to show that what you did didn't violate the statute in some other way, Goldberger said, or that you're not guilty of the counts that were dismissed as part of the plea bargain. So there are many barriers to overcoming a final conviction, not withstanding the apparent injustice of saying, but I stand convicted of what the Supreme Court says is not now a crime. So that, I mean, I think Goldberger really hits the nail on the head there. It's a little confusing, but it's not so easy as just going into court saying, hey, I pled guilty to this, but now it's no longer a crime, so you should

let me go. You have a much higher burden that you have to reach, which is basically saying, and I didn't do anything else. I didn't do any of these other things that I would have been charged with. So it's really the 2255 motion is a pretty tough thing to prove. So continuing about that Supreme Court case, it was Bosley versus the United States in 1998. The Supreme Court ruled that defendants who procedurally default or fail to raise an issue on appeal within the time allowed can nevertheless still vacate their convictions if they can demonstrate quote actual innocence. But that as the court noted comes with quote significant procedural hurdles. Yeah. And this all makes sense. I mean, this is where those plea agreements come in handy.

Those contracts that you agreed to come in handy with the government. It's just for these kinds of situations. If the Supreme Court decides that the law was ambiguous or changes the scope of it, your plea agreement still stands because you promised said to you, you said, even if the law changes, I'm going to plead guilty because you are not charging me with these 10 other crimes and I'm not going to prison for 20 years. I'm only going for four. And so it's a win-win and everybody gets finality and gets to move forward. Right. We tend to think of a plea agreement as like, oh, okay, I'm coming in and saying what I

did. That's true. But it's a two-sided, like any deal, it's a two-sided arrangement, right? Yeah, you're coming in and admitting that you committed this crime, but in return, you're not getting prosecuted for all the other stuff that you did that they know about. You're also not having to go to trial and not having to go through that expense and the hassle and the humiliation and drag your family through it. You're getting finality right now. You're getting a lower sentence and you're getting the ability to kind of get started with that whole process. You can't let someone come in and strike that

deal knowingly and intelligently and then turn around and attack the one thing they pled to and walk away scot-free. It's like, it doesn't make sense. No. Right. And this would be bad for future criminal defendants who want to plead. Because if you take away or somehow the Supreme Court makes these, the 2255, is that what it is, not valid anymore, then the government is going to be less likely to want to offer you a deal. Because if the law changes and you can just get out of it and it takes their finality away, what would be their incentive to offer you this deal? And so you don't want this.

If you're a criminal defendant or a potential future criminal defendant, you don't want this to happen. Now we don't have to worry about Trump leading guilty to anything. So I don't think it's ever gonna impact him, but. No, that's not an issue. Yeah. Anyway, we've got some listener questions

that we're gonna hit as soon as we get back from this break. So everybody stick around, we'll be right back. Hey everybody, welcome back. We do have one quick update on the DC docket. Judge Chutkin is not slowing down on issuing rulings. I think that there were some folks out there saying that she would halt everything until the immunity thing was resolved. That doesn't seem to be the case. And she's issued a decision granting in part and denying in part Jack Smith's motion to

strike Trump's SEPA Section 5 notice. The opinion's classified and under seal, so I can't really tell you anything more about it other than she granted in part and denied in part. I'm willing to bet she mostly granted it and maybe held a couple of things off because they usually are pretty bright on the money with these things, the government. And this is a much smaller SIPA case than down in Florida was, right? The DC case. So anyway, she granted and denied in part. But again, all under seal, all classified, so that we don't really, we would be guessing.

All right, with that out of the way, we have some listener questions. We have a link in the show notes that you can click on to submit your questions to us. And we have a few today. Andy, what do we got? All right, so we got a couple of really, really thought provoking ones this week, as we always do.

First one's, I think, pretty quick. We got it from Amy. And Amy says, is the Supreme Court's presidential immunity ruling retroactive? Wouldn't a new ruling go into effect when it is issued and not for past presidents? Well, I think it's not. And really, there's not a factual scenario in which it could be

retroactive because we've never like prosecute, successfully prosecuted a former president and- And it's all moot anyway. All those statute of limitations are way beyond past help. So if there was like a lifetime, like let's say a former president, GW Bush murdered somebody and there's no statute of limitations and somebody wanted to bring that up and charge him with it for some reason, then maybe I think you could probably apply it. You're proving me wrong.

Well done. Like I guess there is a scenario in which you could look at it that way. But yeah, in this case, No existing scenario. There is no existing scenario. Correct. And applying it to Trump here is obviously not retroactive because it's a current prosecution, right? It's like you're, the thing is ongoing. That's how the appeal got in front of the Supreme Court. So, and then of course it is proactive. It will, the results of it will appeal to all the presidents that come, unfortunately. Anyway, so that's Amy's question.

This one I thought was kind of interesting. This comes to us from Erica, and she begins with a great thanks message. She says, hello, AG and Andy. I just wanted to reach out to express how much I enjoy listening to Jack, your insights and the way you engage with guests always leaves me feeling inspired and informed. It's clear you put a lot of thought and effort Reach out to express how much I enjoy listening to Jack, your insights, and the way you engage with guests

always leaves me feeling inspired and informed. It's clear you put a lot of thought and effort into every episode, and it shines through in the quality of the content. Thank you very much, Erica. We do put a lot of thought and effort into every episode, particularly my partner here, puts way more thought and effort into it than I do,

so we appreciate your kind words. She goes on to ask, I have a question about the $100 million civil suit against the DOJ. I'm wondering if Trump should win the election and the suit is still pending. Could he then direct the Justice Department to settle the suit and award himself $100 million of taxpayer money? I understand the recent Supreme Court ruling on immunity would make it impossible to know if such direction from the president to the attorney general even took place. Right, correct. So I thought it was a really interesting question. Yes. I think the answer is yes. Yes he would. We are in bizarro land so you're gonna get bizarre answers here.

But yeah, he can basically direct the department to do anything he wants. And then I imagine he would have all of his buddies sue the Department of Justice. It's like a cash cow. Grant those our taxpayer dollars to pay them as well. Yeah, I mean, I think he could tell them if the case is still in existence,

and he wins and is inaugurated, he could basically tell the department how he wants things done. Would it be ethical and right? No. But is there anything sitting between him and DOJ that would prevent it? No. And definitely not in another term because if you follow his very clearly announced intentions in project 2025, he and his supporters intend to eliminate the independence of the Department

of Justice, and really ensure that it simply executes the will of the president. So there you go. That's that one. Okay, here's another one. And this one comes to us from Dr. Hunter. I thought this was fascinating. He says, he starts off by saying, do lawyers have OCD or OCPD? Dear wonderful podcast hosts, A.G. and Andy McCabe, I've been enjoying your show from Down Under in Melbourne, Australia, particularly the precision and lawyerly pendentry of particular laws, statutes, and rulings.

However, Andy's comment in episode 89 about his OCD being triggered got me wondering about whether people who have a preoccupation for orderliness and perfectionism are drawn to the law or that the working and studying of law hones and develops this trait of obsessiveness. He says further, as I am a psychologist who has this trait, I can't help but correct Andy in that it is OCPD, Obsessive Compulsive Personality Disorder, not OCD, that was likely being triggered in him, i.e. a personality trait of perfectionism and order rather than a disorder of obsessions and compulsion.

So I guess I feel better about that. I'm not even 100% sure, but I'm going to take Dr. Hunter's word on that. But I thought this was a good one because here we have me, the lawyer. So which came first, the OCPD or the interest in law? And you are the person with the incredible interest in law. Right? Yes. So does it draw you in or has, I'm assuming that you have the same OCPD that I do.

Well, yes, I do. But I think mine is driven more by my PTSD. All right. Yeah. And I've had these discussions with folks about like, why do you do this? And it's the same reason I like to watch movies I've seen already and watch shows that I've seen already as opposed to watching new movies and new shows because they're comfortable and I'm not surprised.

There's no surprises. It's why I don't get scared of fireworks on the 4th of July, but if they're random on any other day, it's really bad. But I have long been someone who feels better. I feel knowledge is the antidote to anxiety. So the more I know about something, the less I'm surprised by any sort of weird chaos. So I honestly think that that's what's driving it. But that's a really fascinating question. What about you and your OCPD?

I think it's both. I mean, that's a crappy lawyerly answer down the middle of the road, but there's no question. I mean, I like structure. I like logic. I like things that make sense to me. I like following like a line of reasoning. And I think all those things make law and writing more appealing to me and helped in kind of guiding me towards the law and ultimately law enforcement, which is a particular subset of the law. And I think in working in those worlds, it encourages those inclinations that you have and develops them further and turns them into strengths that you rely on,

sometimes not in a productive way, to be perfectly honest. It makes you kind of obsessive and it can tend to work against your ability to see like the nuances in things, which I try to avoid that. But I do think having those kind of preferences in your personality kind of pointed me in this direction and then working in it for so many years now, 30 years or whatever it's been. And then it keeps you in it, right? Cause if you're that kind of person, you become really good at it and you've, you know, you.

Yeah, you get positive feedback in terms of respect and feedback from peers and you make money from it, if it's your career. So yeah, it's a spiral of obsessiveness that eventually you can't get out of. But like, I have to know everything about a specific subject because it makes me Feel less anxious about it. I thought for sure if I just learn everything that I can about all these Trump crimes and Trump cases And and delve into what he's doing and how it's impacting us and and how it's impacting the justice system

That I would be less surprised by some of his shenanigans. That has proven to not be true. Well, you know, I, you know, you should say shocked, but not surprised. But I also don't have it in me to come up with some of the stuff that he comes up with because I don't have a cold dead black heart that is incapable of love, empathy or self-deprecation. So it's like, sometimes you watch a show and you're like, like you see like the movie Human Centipede and you're like, who thought of that?

I would never think of that. That's how it kind of works with the Trump and Trumpism and just MAGAism in general. It's like, how did you even think of making the wall black metal so it burned people and electrifying it and putting motes with sharks with laser beams on their heads and spikes that pop out if you get there. Who even thinks of that? I just don't have it in me to come up with those kinds of things.

And I think that's why you continue to be shocked but not surprised by what he does. There you go. All right. Should we go one more? I know we're right at the limit here. Yeah, we can do one more quick one, I think. This is a pretty good one. Dear sexy voicedvoiced wonderkin, I love your show. Oh, that's why you wanted to read this. I mean, come on, right? I love your show so much and always feel smarter and better informed for listening. Often find myself, this is Diane, by the way, I often find myself listening to the same

episodes more than once to be sure I've taken in the mind food you offer each week. I wish I had a really good legal question, but I don't. Instead, I have another question entirely. When listening to Jack and your discussions, I often find myself wondering about how it was that AG Merritt Garland selected Mr. Smith and brought him on board. How many people were involved in identifying him

as the right candidate? How did that first phone call go? Did Smith know the call was coming? Okay, all really interesting questions. And I had no role in that process whatsoever. So I will offer you my speculation, which is based on my experience of having been involved in similar decisions when I was working in the Bureau. So first thing, most of the lift behind this was overseen by the deputy attorney general, not the attorney general. The deputy attorney general, who is Lisa Monaco, positioned,

everybody refers to as the DAG, D-A-G, she oversaw it, her staff conducted it. They likely reached out to all kinds of people in the department who know people in the department and people who used to be in the department and had discussions about people who were particularly respected for being having done similar work in the past or good work. Like they take requests like case in case. Exactly. And they come up with a list of possible and then they meet and likely met with Lisa and discussed like who was available on that list, who would be a good idea, maybe people who were good people and great lawyers,

but for whatever reason might not be exactly the right fit for this job. And so that list is whittled down till ultimately it's just a couple of names. And then they line them up in their preference of who they think is best. And then it gets presented to the attorney general in a meeting where everything is discussed and ultimately the

AG takes the recommendation or makes their own decision about who it would be. In this case, Jack Smith is kind of a natural for it because of his prior history in the department, his qualities of independence, of thoroughness, the fact that he's basically went into the private sector and then left to come back into a pseudo-government role at The Hague. You work at PIN, right? He's very good with corruption. He is a lifer. He's a man committed to these cases and has gotten very positive results out of big, complicated, hard cases. And he's a bulldog too. He's not afraid to indict members of Congress

and former governors. And he's also not afraid to say, I'm not going to indict these members of politics. He's very good at keeping politics out of his decisions on whether to indict politicians. Yeah. I think it's likely that at some point when his name was being kicked around,

somebody probably spoke to him about that. And just to get an idea as to whether or not he's interested and available, obviously this required him to leave the job he was in and move back to the United States. These would have been things that you would want to have been able to tell the attorney general before he made his final decision that this was a possibility, that Jack Smith was available and willing to do it. Yeah, I think he probably knew that he was being considered, that Jack Smith was available and willing to do it. So yeah, I think he probably knew that he was being considered. He likely didn't know that he was going to get the offer until he heard from the attorney general himself. But that

was certainly a respectful and interesting call. Wish I could have been on the other line and listening to it for no such luck. Yeah. I wonder if it was anything like when Kamala called Tim Walls and he didn't answer because he didn't recognize the caller ID. And then had that adorable conversation about it. I'm sorry. I didn't know it was you. I don't like to pick up calls from numbers I don't recognize.

Who does? That's spam. All with him on that anyway. Yeah, for sure. Yeah. I see Jack Smith over at the Hague like, I don't know who this is. That's right. Anyway, thank you for your questions. Again, there's a link in the show notes where you can submit them.

Very thoughtful, wonderful questions. We appreciate you so much. And we're going to see many of you out maybe at the DNC or perhaps I might see run into some of you in San Francisco. And we might have, by the time you listen to this, run into some of you in San Francisco and we might have, by the time you listen to this, run into you all at the Gala in DC or the show at the Hamilton

because this comes out Sunday after those two events are over. But if we did see you, you were wonderful and thank you so much for coming out. I can say that confidently from the past into the future. Do you have any final thoughts before we, because next week it's gonna be what, like the 25th, we're still going to be right before the August 27th deadline for the appeal and the August 30th deadline for the DC immunity briefings.

So we still might be kind of in a holding pattern. So again, we're going to crank out as many listener questions as we can during these kind of quiet down weeks. So send them into us. Anything you've been thinking of going all the way back to listener questions as we can during these kind of quiet down weeks. So send them in to us. Anything you've been thinking of going all the way back to the beginning. We're going to be on episode, what, 91 next week. My goodness.

So send them in to us. That's amazing. Let's get the questions in. This is a bit of a calm, the calm before the storm when we start getting some action out of both those cases. So it's a good opportunity for us to kind of clear the decks and think differently about the stuff that we talk about because we have the benefit of your of your insightful questions so super appreciative of those look forward to seeing the folks who are

coming out tonight and Saturday night and yeah talking about all the stuff again next week. Yeah it's gonna be great thank you so much everybody we'll see you next week I've been Alison Gill and I'm Andy McCabe