Legal AF by MeidasTouch - Top Legal Experts REACT to midweek legal BOMBSHELLS - Legal AF 7/27/22

Episode Date: July 28, 2022

On this special midweek edition of LegalAF x MeidasTouch, the top-rated podcast covering law and politics, anchors Michael Popok and Karen Friedman Agnifilo discuss and analyze the DOJ’s grand jury targeting Trump in its criminal investigation into election interference; the Fulton County Chief Judge’s decision to disqualify Fani Willis and her office from further investigating alleged “fake elector” Burt Jones; Republican Congressman Jody Hice’s attempts to quash his “fake elector” subpoena under the Constitution’s “Speech and Debate” clause immunity; and the criminal investigation into the Secret Service’s failure to preserve Jan6 related text messages. Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 The Weekend Show: https://pod.link/1612691018 The Tony Michaels Podcast: https://pod.link/1561049560 Zoomed In: https://pod.link/1580828633 Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the midweek edition of LegalAF with your regular co-hosts, Michael Popock and Karen Friedman at Nifalo. Playing the part of Michael Popock as a co-host today will be Michael Popock, actually regional winning Karen after a one or two episodes absence. Today we cover the most consequential legal and political news so far this week. We're going to talk about Fawney Willis and her having been disqualified for investigating one of the fake electors in the form of representative Bert Jones who's running for Lieutenant Governor of Georgia.

And what it means, and what it doesn't mean for Mr. Jones and what happens next? We'll talk about US congressmen, Jody Heiss, a Republican, and his efforts to wash his fake elector scheme, subpoena for the special grand jury in Georgia, and what happened when he went to the Northern District of Georgia federal court to have that happen. And we're going to talk about the DOJ, and one of its several grand juries in Washington, DC, is heating up and focusing now on Donald Trump, not just for the JAN-6 insurrection, but likely for his criminal interference in the election process. And they're starting at the top. They're starting with Mark Short, the former chief of staff for Mike Pence, who was with him on Gen 6, and Greg Jacobs, the Chief

Legal Counsel for Mike Pence, focusing on the Eastman pressure along with Donald Trump and Mark Meadows on Mike Pence to throw the electoral count and throw it back to the house And the fact that they have called for these two at the very tippy top Talk about obviously the pressure on Mike Pence and the Eastman led Attempts to throw the election over to the house as a bad sign for Donald Trump and it's separately a bad sign for Donald Trump is the interview that Merrick Garland gave today with the day we recorded with Lester Holt and which he would not rule out That the crime of election interference could reach the highest levels including Donald Trump That's a bad thing for Donald Trump and it's a bad thing for the Secret Service to have its Inspector general of the Department of Homeland Security

open up a criminal investigation as to what happened with those missing text messages from January 6. This is an organization that has suffered greatly in the last decade or so from scandals involving prostitutes to drunken agents Uh, and now cover up potentially of Donald Trump at the highest levels of the secret service This is the organization that we have protect the leaders of the free world. We're in trouble

We're gonna talk about it with former prosecutor Karen Friedman like Nifalo. Yeah, a lot to talk about Karen How are you? I haven't seen you in a long time. I know. You have most beautiful background today, Popo. I love looking at that. It's wonderful. People think I renting this background. I am, I am sort of, I mean, it is, it is the home that I'm in for the summer, but yeah. And it's a quiet place to go. Everyone's like, he's always on the porch and it's getting dark. Why? And it's because it's the, it has the best Wi-Fi in the spot I'm sitting in and, and I'm not interrupted in any place else. So let's, let's dive into, I think the thing that everybody's talking about now is, in America, Ireland's taking a lot of poop, a lot of crap for not moving fast enough for

the Twitter verse for our followers and listeners to prosecute Donald Trump at the highest level. We've known, because you and I have talked about in the past, that there are not one, not two, but likely three grand juries going on in the District of Columbia, criminal grand juries, looking at not just Jansk six, but for now fake electors we know. And criminal interference of the election process, obstruction of the election process by the president and bringing in two of the presidents, men, or interference of the election process, obstruction of the election process, by the president and bringing in two of the presidents men or two of the vice presidents men in Mark Short and Greg Jacobs, what do you make of it?

What does it mean to you as a prosecutor that having now completed the 800 people that were involved with the storming of the Capitol and the siege that was laid on our Capitol, they're now bringing in witnesses like the Inter-Sanctum of Mike Pence. What does it mean for you?

I think it's pretty clear that they've moved past just the insurrectionists and now they're moving to toward the top now they're moving toward the top. And they're finally getting to people who were in the room with the president when he tried to pressure Mike Pence to agree to go along with the Eastman plan to put these fake electors in place. And these are witnesses who were present during that meeting. And right as we're about to tape this podcast tonight, the Washington Post broke a story

where sources are confirming that the questioning of these two in the grand jury had a lot to do and focused a lot on Trump. They said, four witnesses or four sources were confirming that, which I think is pretty significant because grand juries by the very nature are secret bodies. They are bodies that are sworn to secrecy. We don't get to know about it. And so anything that's happening happens because somebody is telling, you know, the witnesses who testify before the grand jury are allowed to talk, but prosecutors and grand jurors are not. And so it's just interesting that this is starting to come out and we're getting confirmation

that Garland is starting to look at the president. And whether or not charges will come of it. That's a whole other story in the grand jury will have to vote on it. But really what it tells me is that Garland is watching the January 6th committee hearings and starting to actually put these witnesses under oath and question them and gather evidence and see if there is evidence going towards towards the former president. So I think it's going to be very interesting what happens here. He, um, Garland in his interview, which I've seen parts of,

the transcript of, came right out and said he's watching the Gen 6 hearings and has been troubled by what he's heard about the interference with the peaceful transfer of power, which means exactly what you just laid out, that they are now focused, forget the 700 idiots who, with armed idiots, who laid siege on the Capitol. Let's focus on the president and what happened in the White House on fateful meetings on July four and five. And even before that, where John Eastman held court, no pun intended, and tried to convince adults like Mark Short and Greg Jacobs

and Pat Sipalone and others and the acting department of the head of the Department of Justice, Attorney General Jeff Rosen, to go along with his plan. I mean, from the reporting, because remember, these people have also testified both short and Jacobs have testified at Jan 6th. And so we've seen their testimony. We know their testimony. And so we can speculate as to what they said in their three hours of peace or so

in front of a criminal grand jury, because we've heard their testimony. So Jacob says testified already under oath to the the Janssick committee that Eastman in the White House with Meadows present and and the vice president present and Trump present present presented two two plans for pets. One reject the electoral vote count completely and throw it over to the House of Representatives or the state legislatures and they were like no. And the second one was, well, at least suspend the proceedings,

suspend the count on Jan 6th to give the state's time to reconsider their electoral votes. And that led to Jacob's having an interesting exchange with Eastman, both by text and in live, live debate, where he said, this academic theory of yours, this would lose 9-0 in front of the Supreme Court. And Eastman first said, no, it would lose 7-2. And he said, well, who would be your two?

And Eastman, who we know is close to Ginny Thomas, said, well, maybe Clarence Thomas. But then even he had a concede, this absent-minded professor of law had a concede that it would be nine zero loss his theory. So to which Jacob said, well, we're not doing this. We're not going to overturn the founding father's democracy in Republic for some academic theory that you came up with that even you admit would lose nine zero at this Supreme Court that we're not doing. So that's Jacobs.

Then Jacobs had, if you remember Karen, a text exchange on Jan 6th at around noon with Eastman where he said, your, this is quoting your bullshit of this, this pressure on Pence and what he could do with the electors is look what you've done. Look at the violence that you've brought on the Capitol to which Eastman said, no, it's not that. It's because your boss wouldn't do the right thing. And I have some more time to have the electors count. So that's, we know is Greg Jacobs, who also, do you remember Greg Jacobs brought in a Michael Lustig, the judge, to give the opinion to Pence,

that this was a bullshit, cockamavy bullshit, that should not be followed, which gave Pence the confidence to stand up finally to Trump. Anything else about Jacob that you think is interesting to the criminal to ranger? What I think is interesting is, you know, we've talked before about whether or not the January 6th committee should make a referral to the Department of Justice. And I've mentioned and said before that I thought that's largely ceremonial and it's not a thing and the Department of Justice doesn't need it. And I want to give them a lot of credit that there's nothing, you know, action speak louder than words. And they have done an extraordinary job at presenting the case to the public slash

the Department of Justice so that they can see exactly the facts that you just laid out. So perfectly, I mean, you're making the case for prosecution and you're right. And the reason that the prosecution is doing it is because they're seeing it. They're seeing it because of these really important hearings that were done. So I give them a lot of credit for choosing this as the avenue to communicate, frankly frankly to the Department of Justice and say, this is the evidence, here it is. And this is what you need to kick around. And so that's what they're doing there. And it's one thing to testify and not be cross-examined and to, you know, sort of just talk about hearsay, you know, everything, anything goes in the hearings. But in the grand jury, you know, sort of just talk about hearsay, and now everything, anything goes in the hearings. But in the grand jury, they can,

they can really ask some tough questions under oath and test the information and see what is admissible, what's not, and what people will say under oath. So I think it's going to, I just think this is what we need to watch, that people who are saying he's going too slow or he's not doing it, it's so clear that he's there and the Department of Justice is there and they're at least exploring it. And he knew which, the line prosecutor is handling this in the District of Columbia.

They knew which two to pull first because of the Jan 6th testimony. Because of the testimony, right? They're like, it's obvious and you've done it. You've done on the prosecutor's side that they were like, okay, we want to get the Trump now. And we know from the Jan 6th that the way the most fingerprints for Trump on the obstruction of the peaceful transfer of power is his use of Eastman to pressure Pence.

Remember the Jan 6th session, I don't know if it was four or five or six somewhere in there, it was the whole pressure Mike Pence session, right? That was all the testimony that was brought forward. So they've taken a version of that and they brought that in now to a new grand jury. And they're bringing in this is now just to not to make too fun of a point. Mark Short is the highest level white, a West Wing White House person that has testified in front of the grand jury to date. It's not Cassidy Hutchinson who is powerful and saw everything as a fly on the

wall, but she's not the chief of staff for the vice president of the United States. And Greg Jacobs was a lawyer for the president, for the vice president, who's being pressured by the president to not allow the peaceful transfer power this cock and implement this cock a maybe Eastman strategy That's what they're focused on I'm sure you're right. I'm sure you're right that he's the highest level that has That has testified, but I just want to put a tiny fine point on that which is he's the highest level person that we know of who is testified Because again, it's secret. So this is what's of all very leaky though It is very leaky. I, but I just there are times when I've, I've, I've been there and there are times when things leak out. And then there are times

when things don't leak out. And you're, you're surprised that it doesn't. So you're probably right. And I'm almost sure you're right. I just want, it is, it is a secret proceeding. And, and so we'll see. you're right. I just want it is it is a secret proceeding and and and so we'll see. It's secret with every camera on the street around that around that they know where that grad jury is. Well that's what the New York Times did when the Manhattan D.A.'s office was investigating Trump. They they parked a reporter outside the grand jury and they would just watch who's going in and who's not and then they could tell there was a flurry of activity and then they could tell when it stopped because they could just see who's going into the building.

It's interesting. I am a big supporter of the First Amendment and Freedom of the Press and the role of the press in a free society except my heart got really sad just to change topics for one second. I got really sad today with all the reporting about the fact that Roberts was unable, in his view, to get that last vote, whether it was Kavanaugh or Amy Coney Barrett, to save Roe versus Wade because of the leak to Politico. And to think that, yes, it was a scoop. And yes, they And yes, I'm sure they couldn't embargo it. And they had a run with it when they got it

because it was news. Yeah. But it may go down in history as the reason why that we don't have a constitutional right to abortion. Just saying, the media is great, investigative reporting is great. Generally, sunshine is the greatest antiseptic. Although sometimes it makes the work of backroom negotiations

more difficult, and I think it happened there. So we have Greg Jacobs, who testified at length, we know at the JAN-6 Committee, he was now been now in front of the grand jury, talking also about Eastman. We know his links to Mike Pence, as his primary advice giver, legal advice giver, bringing in judge Lustig for the last day

or two to tell Mike Pence in no uncertain terms that there was no legal justification at all or constitutional justification and have it hurt and have him hear it from a right wing, federalist society, unassailable, not a rhino legal advisor in my holistic. I think that's Greg Jacobs, other great contribution to this story. And now, I think it'll take on a life of its own and the momentum will build. We'll see more, they're not going to stop it short in Jacobs. This is going to, this is going to continue to be layered on and layered on and layered

on. And while the Congress is on a summer break until September in terms of the JAN-6 committee, DOJ is not, do you ever take a break? Did you, did you, did your, did your prosecutor team ever take a break for the summer? No, no, no, definitely not. Crime doesn't stop. So there's going to be, crime does a crime and crime prosecution doesn't stop. There's going to be a lot of things for you and me talk about over the summer in a way

because now the Department of Justice has it to themselves, as the stage to themselves for at least the next month, month or so. So we're going to see that. So but things don't always go perfect for prosecutions. And we love Fawney Willis and we've given her a lot of kudos on all versions of legal AF about what she's been able to accomplish in with great courage. I was gonna say political courage, but that's gonna get me in trouble with the story.

With great courage as a prosecutor in a way that we faulted, we always sometimes use Fawney Willis as the anti-American, look. Look what she's doing. Why isn't he doing that? And we've also had to have noticed, as has the chief judge of Faulting County, that she's in the media a lot. She's talking to the press and she's giving interviews and she's telling people that she's got conviction and she's not going to give up and she's going to take the evidence where it leads her and you know, sort of like Marik Garland. So she's

doing those things. Except she got wrapped on the knuckles at a hearing earlier this week when most of the 14 or so fake electors in Georgia who are now facing potentially real charges, brought various motions to either quash their subpoenas to give testimony under the Fifth Amendment, or in the case of Bert Jones, who is an elected official in Georgia and is also running to be Lieutenant Governor on the Republican ticket, filed a motion to disqualify Fawnnie Willis because she not only donated to his adversary, but she held a primary fundraiser with her name all over it as the, as one of the chairpeople that she hosted when he was in a pride, when the candidate was in a primary fight that

he eventually won with a Democratic opponent. Why does that matter? Because Fauder-Willis has a boss. And the boss in this case is the chief judge of Fulton County, Robert C. I. McBernie, who used to be in that office in his past. He was an assistant district attorney in Fulton County. He was an assistant US attorney. He went to Harvard for law school and undergraduate. He's not a dummy. And he reminded her after hearing the evidence of a couple of things at the hearing. One, you're doing a lot of press. And remember, you're not the prosecutor here.

You're the special advisor to a special grand jury that I supervise. So the judge flexed the little muscle. There was, I think it's the first hearing you really had where he had an audience with Fonnie and got to kind of remind her of who's who and who to she report to. And so that was one. That was very interesting. And the second thing he said to her was, what were you thinking when you held a fundraiser for a somebody that you've identified as a target? Which later in his opinion, he said why don't I know why you're using the target phrase?

That's really federal criminal vocabulary, but I get it. You mean that he's potentially a higher suspect or higher higher value in your prosecution or the presentation to your grand jury, but the guy that you're targeting is also the guy that you're donating money to his opponent, and that just smells terrible. And so at the hearing, he basically said, what were you thinking? The optics are terrible, and I'm not happy about it.

I thought, when I heard the hearing, I want to hear your opinion, I thought she was going to escape by and maybe they had signed it to a different office, but I was surprised by the ultimate ruling, which was she's disqualified. So is her office and we'll have to go to a whole nother prosecutor and a whole nother county who's going to have to make the decisions about Bert Jones. What did you think about his observations at the hearing, and what did you think about the ultimate eight-page decision that it came out with?

To me, this was just an unforced error on the part of the prosecution. I mean, this is the most high-profile case in the country. It's definitely the most high-profile investigation in her office. And you have to do everything super careful and buy the book and you know when you look at the timing of of everything on January 20th she requested a special grand jury before this judge then on January 21st fourth sorry he granted this special grand jury. And you know, it was very clear that Bert Jones was one of the fake

electors that she was investigating. And on May 2nd, the grand jury was sworn in, but they waited and they had a gap. And didn't hear any testimony at all until after the Georgia primary, because she's so acutely aware of how important it is that criminal investigations and things of the sort and don't interfere with elections. So she even waited. And so she was aware of this. She was aware of how important what she was doing was, but that after well after the grand jury started receiving this evidence, the DA's office, Fannie Willis,

she hosted and headlined a fundraiser for the person who would ultimately, it was a runoff between two Democrats. And she did a fundraiser for the one that she supported. But ultimately, the one who won would be the one who would run against Bert Jones. And so they basically said what the judge said was, you know, the DA's office said, oh, but it was a runoff election. It wasn't for Bert Jones as opponent, but the court said that doesn't matter because Jones was the candidate. It would always be the candidate. And that's who the winner is going to face.

And the court had a distinction here and said, look, you could have donated personal money which she did, and that was okay. But once she, the quote that I wrote down was once she has bestowed her office's imprimatur upon Senator Jones's opponent. And so because this was an official fundraiser from the office of the Fulton County prosecutor, it wasn't, you know, it wasn't Fani Willis in her personal capacity. Or Citizen Fani Willis.

Yes, it was not in her personal capacity, which she has a First Amendment right to support a candidate. But once she puts the imprimatur of the office of the Fulton County DA's office on a fundraiser, at that point, he said, it's not just the appearance of impropriety. There's a plain and actual untenable conflict of interest and every single decision that is made in this investigation

is infected by this conflict. Whether or not to issue a subpoena to somebody or proper them is a subjective decision, whether or not to question someone aggressively or mildly, these were all things in the judge's decision, by the way, whether or not somebody's a target or a subject, these are all things that a DA's office subjectively can make decisions. And every one of these decisions, because they're, you know, every one of these decisions is basically going to be affected. And as he said, infected by this conflict of interest.

And he specifically said that this is not the mere appearance of impropriety. This is an actual conflict. And it's palpable, and it's not speculative. So I thought it was a very powerful decision. And, you know, look, you can't, in an investigation that's this significant, you can't have these types of, you know, these types of conflicts in them. And this was imminently avoidable. I don't know why she did something like this. And so, you know, it's a shame. But, look, he, but he ultimately said,

the judge ultimately said that that Bert Jones is the only one that you can't investigate and be involved in questioning. That one is going to go to somebody else, but you can keep everybody else. So, that's, yeah, I, I, I, I had to agree with him. You know, if you're doing a political prosecution, you know, if you're old boss, I was doing a corruption case against the politician. And at the same time at his house, hosted a fundraiser for the opponent, that would be, he would be excoriated in the press. And he would either disqualify himself because he realized the bad judgment or he would never make that decision.

But only Wallace made it as you said, an unforced error here. And the problem is proven in the judge's decision by what the, what her preferred candidate did and what he was allowed to do. He, he's using as his platform that Bert Jones is corrupt because he's the target of an investigation by Fannie Willis as part of being a fake director. So bring this thing full circle,

the person that she's contributing money and hosting. And as you said, putting the warm embrace the DA's office on is running ads in which he's saying, Foni Willis, my buddy, is prosecuting him for underhanded conduct. And this is why you have to elect me to clean up, to clean up, uh, you need a better lieutenant governor than that. Exactly. You don't want people to think on, on any side of the political spectrum that you've got your

prosecutor in your back pocket to go after your opponent and run ads parallel to that. Avoid it. It's okay. As he said, the judge said, it's okay to exercise your first amendment. Just don't hold the political fundraiser for a person you've identified as a target and you won't have a problem. Now, to answer the question that most of the Twitter versus not answered, and I actually looked up, what happens next? As you said, he's not off the hook. Okay, until July the first of this year,

the attorney general for the state of Georgia would pick a new prosecutor, and that prosecutor would have to use its prosecutor, prosecutorial discretion as to whether they would ask for a new special grand jury. They can't use this one. This one is not available to any prosecutor. This is the way I read the decision. If you raise your hand, if you think I'm wrong, this special grand jury can't be used even by another prosecutor about Bert Jones period. You agree with that?

Yes. Yeah. So I think the new prosecutor, and I'll talk about who I think picks the new prosecutor, will have to make a prosecutorial decision as to whether they're going to indict without the use of this special grand jury, use a regular grand jury, whatever they're going to do, that's going to be that office and that prosecutor against Bert Jones. As of July 1, with an amendment to the Georgia code, 15-18-5, this is why people come to legal AF. It is the prosecuting attorney's counsel. Have you ever heard of such a thing? We have that in New York. No, there is a counsel of prosecuting attorneys

throughout the state that are going to in consultation with the attorney general make the decision. Once Fawney sends them a letter that she either recuses herself or has been disqualified, which I'm sure she's done by now, they then have to convene some sort of conclave and decide whether there's going to be a special prosecutor, a new prosecutor, and who that's going to be. And so we're going to follow this story because I don't think Bert Jones is off the hook for his role because even the judge called it a fake elector scheme. He seemed to have a jaundice view of the whole scheme. He just wrapped the knuckles

of Fony Willis. The other thing that I thought was interesting and learning about the special prosecutor, uh, special grand jury process, it's all kind of new to us is that in the hearing at least, he reminded everybody that it's not Fony Willis's office who makes a decision as to when that report, it's a report that gets issued not to her, not to her office, but to the, to the chief judge, him, of Fulton County. He reads it. He then releases the report. And he said, if that report comes out without a buffer between the election, the midterm election, and that report, I'm going to embargo it. I'm going to buffer it, and I'm not going to release it until after the election.

If I don't think there's sufficient time, so there's no pressure on Fawney Willis. If she wants to get this thing out before the election, it's got to be well before the election, or he's going to keep pocket the report and put it in a drawer until after the election And in and in and in his order He quoted back to her and say well, you did a similar thing because you delayed Presenting certain evidence to the grand jury as you were getting close to an election and I'm gonna do the same thing So I learned a lot in this best grand jury process. I learned the chief judge has a lot of power I learned that that we'd be calling her the, but in the case of a special grand jury, she's a special advisor that he makes

the ultimate decisions, and he can disqualify people for doing really bad things in a new prosecutor's come in. Very interesting process. It is very interesting. So, what do you make of the July 1st change in the rules of this council? Was that a coincidence? Or was that done? I don't know. I don't really know. I didn't do the legislative history. I just happen to catch first change in rules of this council. Is this was that a coincidence or was that done? I don't know. I don't really know. I didn't do the legislative history.

I just happened to catch that there is such a thing as a prosecutor's council and that they're the one, until apparently for the last 15 years, when there's been a disqualification of a prosecutor, which happens, you know, I'm sure it's happened in your office, when that happens, it always went to the attorney general Maybe they wanted to depoliticize it because that attorney general is always elected in some party and maybe You know, maybe even in Georgia. They decided they wanted not have that as political So let's have a council make the decision. I think it's very interesting. Yeah, it's look at it's very good. They pick Yeah, no, it's look it's common prosecutors usually are the ones who disqual, not, you know, they recuse themselves. It's, it's not, they don't call it disqualification.

They recuse themselves. And then they request that somebody else be appointed, but to have a judge sort of, as you said, rapper on the knuckles, you know, for this one was, it was, it's, we are, you know, hopefully she won't make this mistake or this sort of mistake against. Right. But you see, you,, our followers and listeners should see, and then we'll move on to secret service, but they should see the level of exceptional bad conduct or bad judgment that has to occur for a prosecutor to be bounced because you, we saw the Trump, you know, Trump yelling and screaming through Alina Habba, his lawyer that Latisha James is not a prosecutor, but a civil attorney general in this, in this

aspect, it has it out for him and should be removed and this and that. And, you know, through everything at the wall to see if anything would stick, that's not going to work. You know, neither a state court judge nor the federal judge thought any of what he was talking about, even her press conferences, even her running, Latisha James running on a platform that she was going to be the sheriff of Trump world and she was going to go after him. Even that's not enough.

You see the level, just don't host a fundraiser for somebody that you think is a target in your office. Don't have your office host fundraiser. Right. And have him use the logo. Exactly. Exactly. So before we move on and go to the Secret Service, can you talk about Jody Heiss?

Sure. Oh, yeah. Let's start. So why don't you describe representative Jody Heiss who's for those that don't know as a man and why he went to federal court and what he argued in trying to quash his subpoena to a federal judge in the northern district of Georgia, who is an Obama appointee, a Democrat. Second time, we saw Judge Tottenberg up there, Northern District throwing the book at

Marjorie Taylor Green, and now they pull the bad judge for the Republicans up there again in their federal court. Talk about Jody Heiss and what you think it means for Senator Lindsey Graham. So, Jody Heiss is an ultra conservative from Georgia and he's part of the House Freedom Caucus, which is the sort of ultra right ultra conservative kind of people who are in the House of Representatives. And he was part of, and he was at the December 21st, 2020 strategy meeting with Mark Meadows and Rudy Giuliani and all of those people.

And so, you know, Fani Willis is particularly interested in kind of what Heis has to say and in the conversations, you know, that were had. And so she subpoenaed him to testify before the grand jury, and Heist went to a federal court and said, I think it was a motion to quash basically said, I don't want to have to testify because there is something in the first amendment

of the United States Constitution called the speech and debate clause. And the speech and debate clause basically shields members of Congress from being questioned in court about legislative activities, about their motivations behind them. And he also argued that he has this second level of protection because he's, quote, a high ranking official, which is a special designation that also gives him a higher legal standard when compelled to testify. So he basically said, you know, that I, I, because of this, I am immune from having to testify in the grand jury.

The judge said, not so fast, only certain parts of what you would testify to are protected by the speech and debate clause that if you talk about things that were outside of your congressional duties with people who weren't members of Congress, you weren't on the House floor, you weren't negotiating, you know, in Congress for things you were sort of having these closed door meetings with these, you know, the meadows and the Giuliani's of the world to try to, you know, to try to engage in this, stop the steel kind of stuff that they were engaging in. And so the judge said you can ask those questions. You just can't ask the types of questions

that are protected under the speech and debate clause. The judge even said, so this is a question by question type of analysis. And the judge said, I will even stand outside the grand jury door and be there to confer question by question about whether this question is protected by the speech and debate clause or this question must be answered.

But I found incredibly, I mean, look, there's always a grand jury judge that you can stop the questioning and the lawyers run out and you ask, the judge to rule on something, but a judge willing to stand outside the door and rule question by question. I thought this was so many extraordinary things are happening in this case, but that's kind of how important

this is and that's what's going to happen there. So I thought that was a positive development. So so so, Judge Lee Martin May Obama appointee was confirmed 99 to zero in 2014. You'd never see those numbers again by the Senate. And the speech and debate clause, which sounds like speech and debate class that I took in high school, but the speech and debate clause is Article 1, Section 6, clause 1 of the Constitution that says effectively that a member of Congress cannot be questioned in any other place other than Congress. So if you want to ask him questions about legislative matters, deliberations that he made

or things related to that, he can't be questioned anywhere but in the House of Representatives or in the Senate, which means the other place being a courtroom or the like and there's a there's a legislative history to that because Founding fathers didn't want a Political operative or president or prosecutor who didn't like a result In the House a legislative result in the House or the Senate to then pull that person out and try to criminally prosecute them or make them the answer for their charges. So as the judge, as you rightly noted, if the judge finds that the questions are at the heart of what a legislator does and the legislative activities, which, you know, Hice argued includes his constitutional role in the electoral counting process,

then no. However, even the judge in Fulton County for the Fony Willis that we just talked about thread the needle this way, if the legislator is talking to third parties, aha, and Hice is known to have talked to third parties about the fake electors scheme. Probably not covered by the speech and debate clause because what does it have to do with what you're doing on the house floor when you're when you're talking outside the privilege if you will to a third party like not another elected official like a banan, like a, um, East, Giuliani, uh, Giuliani, uh, power, a Jenna, Jenna Ellis, a Lin Wood, who we don't talk about anymore, all those, uh, team abnormal or team crazy, whatever it was called, that does not likely cover your

privilege, doesn't give you the privilege. And that's what the judge was saying. And she also instructed that his legal team and Fony Willis' legal team get together and try to develop a set of questions and parameters for her to review before he goes in likely in August to give testimony before the grand jury. He's going in and they're going to try to pick their way through this minefield. And if they run into problems, I don't know she's going to be in the hallway, but I think she's going to be available by phone for a phone call to try to resolve on the spot, almost like our own special master questions that

come up on the fly. This is going to be fascinating, but it's also going to lay the blueprint. I don't know if she's going to be the judge assigned. I don't know where, actually, I don't think she is the judge assigned. I think Senator Graham has filed already, and I don't know if top my head will have to road up on the screen when we're doing the final production of this podcast. But I assume that this judge will look at what Judge May has just done because Graham is going to say the same thing. Oh, I was the sitting chairman of the House Judiciary Committee. You know, that was the reason I was making my phone calls into, I don't know why I'm

making him into part one. No, I was going to say nice, nice leg horn. Yeah, nice fake Southern accent, by the way. That was my Warner Brothers, Fockehorn, Leghorn. You know, a voice. But, you know, he's going to make the same speech and debate clause. I don't know about the highest ranking executive thing. I don't think that privilege sort of flies. Did you ever hit that one when you were a prosecutor, the apex officer?

I don't even think that's a thing when it comes to a privilege. Yeah, it's like, sometimes you need to talk to the top guy or top woman and that's how this works. And you don't get to say, well, I'm the top person. I shouldn't go first. I don't think that's how that privilege works. All right, we'll follow that one. Let's end the podcast with the secret service. The fact that it hasn't really gotten them. There's so much going on right now in the political, legal world that you and I occupy, especially for this podcast, that the fact that the Department of Homeland Security, Office of Inspector General has opened a criminal investigation and informed the Secret Service who used to be one of the leading investigative

agencies in this country that they must stand down from their own internal investigation because a criminal investigation has been opened by this inspector general has gotten very little press. What do you make of it based on these missing text messages? Are the secret service really in deep shit? This one worries me a little bit, you know my was, come on, it's a secret service. They are just so kind of untouchable. I mean, this incredible organization that investigates cybercrime and identity theft and this premier organization, they protect the president.

And they've had a few controversies involving a few agents here and there, but never anything like this. And so at first when I saw this, I, I, I didn't think much of it. And then when I started looking into it a little more, I think there might be something here. And I'm really disappointed, you know, part of me thinks, did they take there, we have to protect the president at all costs a little too seriously. And, you know, they're trying to protect the president here by deleting these text messages. You know, I don't know. I can't, you did hit Tony or not who left the Secret Service and became a political operative for Donald Trump and then went back to the Secret Service. And I always thought they were supposed to be kind of

non-partisan. They're just there to protect and to serve. But this Secret Service with Tony or Nato in particular and Angle, I think are showing that they are a little political and the fact that they would go and work for Donald Trump, and the fact that they were saying, trying to undermine Cassidy Hutchinson, when she came forward and was talking about this whole,

the fight in the car, about going to the Capitol, I am starting to wonder whether this was nefarious and whether they dumped the text messages from January 5th and 6th, but they only found one text message through all of this. So, look, there's a couple of questions that I want to answer. I want answered. Number one, do the Secret Service communicate via text message? You always see on TV, and in person, that's squiggly thing coming out of their ear.

Do they just communicate through that or do they text message one another or other people? That's eminently knowable. The answer is yes, where the hell are those? The other question I'd want to know is, I've heard some people say this was part of some migration, you know, that they were from one system to another, that they were, that they were just coincidentally happened to migrate from one of these systems, and it happens to affect the, these text messages in question. Now, again, that's eminently knowable. That's something that, and I said this,

I think, with Ben the other day, that the government is slow. Everything in the government takes a lot of time and a lot of deliberation. And so if they were really migrating from one system to another, that would have taken years to put out an RFP, pick the system, then you have to plan to migrate the system. I mean, there would be so much red tape that you could find about the system migration that it either exists or it doesn't.

And the other third thing that just really just smacks of just lacking any credibility to me is they know how important an investigation is. Things like text messages and emails and the sort of spoken word testimony is no longer the gold standard the way it once was. People have, when you are investigating a crime and someone comes forward and says, you know, X, Y, and Z happened, memories are fallible, you know, memories fade, memories aren't perfect. But so what prosecutors look for now and what really kind of brings home cases are things like text messages and emails and things that sort of record in real time, what's happening, and even in metadata

about like, you know, cell phone towers are pinging in a particular location, so you can say that, you know, Karen Friedman Agnifalo was in, you know, Nashville, Tennessee today, which I am, because my cell phone is gonna ping to Nashville, Tennessee, even if you can't see what I said, you'll be able to know those things.

And those are the types of things that prosecutors look at, those little details. And so that's the secret service knows this better than anyone. They are the premier cyber investigators in this country. They have incredible cyber technology capabilities. and prosecutors would routinely go to them over any other agency local federal or state because they are such experts in this area. Secret Service agents during the January 5th and January 6th insurrection, probably the biggest crime to happen in our nation's history at our nation's capital, where they were protecting the president and the vice president and taking Mike Pence from one place to another and then clearing the way. And we saw those videos at the hearing. So I think

there's something here. And I think it's, I don't like what it's coming out to look like. I think it's, it smells bad. And I think it's, I don't like what it's coming out to look like. I think it's, it smells bad. And I think that the inspector general is going to look at things like, like metadata and see if the stuff was kept elsewhere. And if they can kind of recreate, I mean, if anyone can do it, you know, certainly they can and see if they can recreate what happened here. So we're going to find out this is something to watch and to stay tuned because we are going to find out the answer. This is not something that we're going to scratch our heads and months from now and say, oh, we just don't know what happened. This is something that we will know one way or another if it was an accident or if it was nefarious. And I'm starting to unfortunately think that it was that they were protecting the president at all

costs, which even meant dumping the text messages. Our hair's my theory, the Secret Service was co-opted by Donald Trump the way he co-opted other other guardrails of democracy. We shouldn't be surprised. We've heard for years that we've heard, we've had inklings of this, of the secret service

being compromised, and especially the detail that handles the protection of the president and the first family and others, you know, drunken orgies and prostitutions and other, and we had one recently, and Secret Service was sent home from Biden's trip abroad. And this theory that they are apolitical, and they will, they completely are, you know, like Buckingham Palace guards who just stand there like Sphinxes who don't have thoughts and aren't partisan, I think is over. And Trump took advantage of that by having or not a place in the West Wing and the like.

And there has to be the issue, the symptom of the disease is the missing or what we call in the business, spollated text messages. The disease is that this is a service that has to be completely overhauled from top to bottom. The way the CIA was a number of years ago, the way the FBI was a number of years ago, there needs to be an overhaul of training, of remediation, of personnel, of recruiting, and of everything. Because this is now just the way Trump has made us as pressure-tested democracy

and all of the checks and balances. There is a rotten core right now, I believe, to the Secret Service, that has to be overhauled. My fear is if we don't get another Democrat in office, that that's not going to happen. But Biden in his next two years has to appoint the right people to the Secret Service. They have to do a top-the-bottom evaluation because I think this is just a symptom of a much bigger problem that's eventually going to compromise safety when it comes to the

protection of a president. I don't want somebody now that we know that they are political. Biden's really comfortable with having a tired detail in front of him, maybe if somebody who's just a little bit slower than another protective person when there's a shot fired God forbid at the president. I mean, this is, this has got to be a concern about the safety of our, of, of our leaders. And what, because this organization seems to be corrupt and hollowed out at, at its core. So, I want to see what happens with the text messages. I want to see what happens with

an overhaul and an overview and an office of inspector general report about the bigger problems that that probably exists the secret service. We've reached the end of another midweek edition of legal a f and fortunately for us we had some amazing developments this week the caron you and i got to talk about. We talked about Fony Willis being disqualified. We talked about Jody Heiss and his attempt to have his subpoena quashed against him. We talked about the Department of Justice moving closer to a prosecution of Donald Trump in the inner circle at the White House. And we talked about, with great sadness, the falling down of the secret service and what it could mean for the future. Any parting words for our, as the sun sets slowly.

I was just gonna say, I was gonna say the, Popoq lands. I was gonna say the sunset behind you is quite stunning, Popoq. This is really enjoying. It's like, it's like show the audience, wait, wait, wait,

it's like show the audience the real sunset, wait a minute. I might even try to get this up. No, it's that's pretty that's pretty spectacular. That's amazing. But but I take time out as you do from whatever I'm doing to make sure that our legal a efforts and the mightest mighty are informed with facts and arms with facts about what's happening in the intersection of law and politics and it's my favorite time on Wednesday to meet with you. Well, I'm thrilled you're back. I'm thrilled that we're back together. I missed you, Pope. I missed you too. We'll have to...

Offline, we'll get together in person also. Okay. And shout out to the Midas Mighty and the Legal A.F.R.C.E. Okay. Okay. And shout out to the Midas Mighty and the Legal A.F.R.C.