OA683: Peter Navarro Pursues Executive Privilege Through the Sands of Time

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 683. I'm Thomas. That's Andrew Torres. How you doing, my friend?

0:01:24 Andrew: Am excited to bring you today's stories. Thomas, how are you doing?

0:01:30 Thomas: Am riding the high of Law'd Awful Movies, of making, doing a bunch of work and making some creative decisions and having it actually pay off. That's, that's nice.

0:01:40 Andrew: Oh, yeah, you worked so hard on processing that, the and reports from everybody who's listened have just be really stellar off the charts. So, yeah, if you've, there

0:01:49 Thomas: I'm hoping we win a daytime Emmy for it. Or wait, it's a podcast.

0:01:51 Andrew: You go.

0:01:52 Thomas: Is it daytime or, I don't know, primetime? It''s anytime, It's just, we have to find out when people listen. Listen to this and then it's either daytime or primetime.

0:01:52 Andrew: I don't know. Anytime. Yeah.

0:02:00 Thomas: Uh, yeah, that's the Ginny Thomas deposition. Um, I'm playing the role of Ginny and Andrew is playing the roll of every lawyer, the role he was born to play. And, uh, yeah. It's a lot of fun. It is, um, crazy. It has not talked about enough, this person and what she said in a, well, okay. Not officially deposition, but in a of, you know, uh, of sworn in.

0:02:07 Andrew: Yep.

0:02:23 Andrew: Transcribed hearing before a select committee of Congress. Yeah, under oath.

0:02:24 Thomas: Yeah. Cause wow. That person is wow.

0:02:30 Andrew: Loon.

0:02:30 Thomas: Anyway, check that out. That's patreon.com/law. You gotta be at the $2 level. Um, you're obviously free to, to, you know game the system and up your pledge just to listen to that. We, we, you knows it's fine as we get it. It's, it's, uh yeah, well right, I'm also excited, because you've got a heck of a show lined up for us, Andrew, yeah let's just get into it, documents found everywhere, that's classified documents. Everybody, I found some, you found some.

0:02:43 Andrew: We know it happens, and Yeah,

0:02:53 Clip: Down the law, down the law.

0:03:06 Thomas: But more seriously at Mike Pence's home. But why don't you give us the facts and give the updates here.

0:03:04 Andrew: Yeah, I, yeah, What we have is a letter from Greg Jacob, uh, that is Mike Pence's attorney, and And if that name is familiar, you will remember him. He was the guy who told John Eastman to go pound sand. But since they're all playing around in the same evangelical circles, it came out as like, hey, the Capitol is on fire thanks to your bullshit. That's an exact quote. So you want to grab a candlelight dinner and share an expensive bottle of wine sometime? Like, it's just a reminder that these folks are never your friend, even if they're sort of marginally on the side of goodness on this case.

He wrote a letter January 18th to NARA, and pretty interesting. It says, "Hey, I'm Pence's lawyer with respect to this, and I am writing to request your assistance with collecting and transferring to the custody of NARA an additional set of vice presidential records. They appear to be a small number of documents." I have heard from other news reporting that it is 12 documents, but it say so in the letter. "Bearing classified markings that were inadvertently boxed and transported to the personal home of the former vice president at the end of the last administration."

0:03:22 Thomas: Yeah, yep, yep. It's so weird.

0:04:26 Andrew: "Vice President Pence was unaware of the existence of sensitive or classified documents at understands the high importance of protecting detecting sensitive and classified information, and stands ready to cooperate fully with the National Archives and any appropriate inquiry." And again, good lawyering in this second paragraph, because you're asking yourself, well, it seems kind of fishy that you discovered these documents now, right? And is candid about that. He says, "Following press reports of classified documents at the personal home of President Biden, out of an abundance of caution, on Monday, January 16th, Vice President Pence engaged outside counsel with experience in handling classified documents to review records stored at his personal home. Counsel identified a small number of documents that could potentially contain sensitive or classified information interspersed throughout the records."

0:05:17 Andrew: Vice President's counsel, however, is unable to provide an exact description of the folders or briefing materials that may contain sensitive of our classified information, because counsel did not review the contents of the documents. Once an indicator of potential classification was identified, then Vice President Pence stored them in a lock safe, pending further direction from you as to what to do.

0:05:27 Thomas: Right.

0:05:38 Thomas: Really has the feel of the like, Like, everybody look under your seat. You got documents. It's like, well, following the news story, we wanted to see if we got some lucky documents, too.

0:05:41 Andrew: Yeah, well, you know, a couple of things, right? So, number one, Vice President Pence is not someone without without continuing, I would say, doomed and, you know, ill-conceived presidential ambition. But he very clearly would like to be president someday. And I think he was looking through going, hey, I'd really like to attack.

0:06:07 Thomas: It's, like, all the other presidential contenders seem to be doing this. So, I guess, yeah, sure, I have documents ,too. Yeah.

0:06:12 Andrew: It makes total sense to say, yeah, he was probably going to, you Know, put out some sanctimonious statement about like how terrible Joe Biden is. And then he He was like, hey, guy, before I do that, let's make sure we don't have any documents, okay?

0:06:19 Thomas: Yeah. Yeah. Do I have shit on my face, too?

0:06:28 Andrew: Right, right, yeah. And turns out you do. So once we know anything beyond this, we'll get Kel McClanahan back on the show to kind of break down the intricacies and the specifics here. But I want you to think about the framework we talked about last week, right? Are three broad elements. Number one, you have possession of national security documents. Number two, they're where they don't belong. And the third one, which I'm just lumping together, is refusal. It's really a couple of different things. Again, we broke them down on the show. It varies whether it's 18 U.S.C.

0:07:01 Thomas: Yeah. Criminess, right?

0:07:03 Andrew: Yeah, exactly. Right. Yeah. Whether it's 793 E or F. But the criminess is either you intentionally give the documents to someone who isn't entitled to see them, right? That's sort of classic espionage. I come in, I steal the stuff, and I give it to the Russians, right. Or number two, you know they're missing, but you fail promptly to report it, right, and that's the dumpster cases.

0:07:03 Thomas: I mean, you try to get away with a dumpster, try to Getawaywithit. Ah, maybe no one will notice.

0:07:29 Andrew: Yeah, yeah, right or number three, you will fully retain those documents. And again, yeah.

0:07:31 Thomas: Yeah. At your Florida residence. Yeah.

0:07:38 Andrew: And again, we now have, it's very, very helpful, a category that says, yeah, and Pence, probably number one. Well, definitely number one, probably number two, zero evidence of number three. Right. And that just in my view, you know, when the first Biden story broke, you and I talked about how are you going going to make this politically a story as opposed to the classic Donald Trump fulmination of, he did exactly what I did and therefore he's worse, lock him up.

0:07:52 Thomas: Yeah, there's literally quotes on Fox News of them saying the only reason you would have secret documents is to show them to somebody like, oh, so I guess then Trump was showing them to someone. Is that what you're saying? Weird.

0:08:23 Andrew: I am At a, like I said, I'm glad we have Liz Dye to monitor Trump's Truth Social account because I sure couldn't do it. Yeah.

0:08:35 Thomas: Yeah. Just remembered I got to ask you something. So, I still listen to The New York Times, The Daily. It's often a good show. It's like the New York Times. It's a massive organization. There's tons of good reporting. There's sometimes a lot of bad reporting and a lot of what I see as unnecessarily catering to right-wing fear-mongering, that kind of thing, in my opinion. But anyway, they did a show on the Biden docs the other day, and I found it to be just the most garbage, both-sides-y kind of stuff. And I want to know if maybe I'm wrong. I want want to check something.

Do you view as what should have been the right thing to do in terms of the Biden administration talking about this, talking about what was happening? You know, once there were documents, should they have been more public earlier? That's a complaint people have, you know, this has been since November. Why didn't anybody say anything? Or is it the kind of thing where, well, DOJ is investigating and you're kind of, What I thought was you're not really supposed to comment on ongoing investigations, but maybe the counter is well, but you could say that there was a thing that was happening. I guess what is your view on maybe what should have been done there? The

0:08:47 Andrew: Yeah. Yeah.

0:09:48 Andrew: I, I think it's important to sort of segregate out the political question from from the legal question there, right? And and from a legal standpoint, what Biden did and what Pence did is what we criticized Donald Trump for not doing, right? Which is when have documents that relate to national defense, you immediately contact the proper record owner, right? And for presidential records, when are no longer the president, right, in this case, when you are no the vice president, the records holder is the National Archives and Records Administration, NARA. And we're

0:10:26 Thomas: Of Abraham Lincoln, you have to put it back in the monument, there's a slot

0:10:32 Andrew: That that transmittal letter be private or public, right? For example, the conversations by and between the National Archives and former President Trump were confidential. Nobody knew about them until retroactively, after a year's worth of stonewalling, we learned that those conversations dragged on for a year of Trump basically jerking around the National Archives until they said, look, I know where the National Archive's at all. And nobody expects us to be like the tip of the spear, right? Yeah, exactly. Stiffed But us for so long that we have no choice. Record in the search warrant affidavit is just abundantly clear that, that you case, it was such a long time, so deliberate, that they really had no choice but to go to the DOJ. And then the DOJ voluntarily negotiated for a couple of months. And finally they're like, okay, man, you're going to make us issue you a subpoena. And then Trump was like, I am giving you every single thing I have. It's in this one folder that I put a whole bunch of tape around.

0:10:48 Thomas: Yeah we don't have guns but but yeah, yeah.

0:11:43 Thomas: Marked five of 120. It's all I have.

0:11:46 Andrew: Right. Yeah, exactly Right. So all of that's a long-winded way of saying that the criticism of not doing it in public is a a political question rather than a legal question. There's absolutely no obligation to have done so in public, and the the precedent we were operating under at the time was certainly not in public. Um, I mean, you know, we flagged this that you, it breaks in early January and documents were discovered, let's say contemporaneously with the midterm elections. You to infer that there might have been political considerations going on? Of course she would have, right? And

0:12:24 Thomas: Yeah, but who would expect that they would come out and say that? It just doesn't make any sense to me.

0:12:29 Andrew: Don't know, that makes no sense

0:12:30 Thomas: But What about around once there's a DOJ investigation or whatever, you supposed to do with regard to that? Are you allowed to comment? Because it feels like, like, if you say stuff that kind of could either mess with the investigation or could be, you normally wise to not talk about stuff like that. Yeah.

0:12:48 Andrew: To me. And interestingly enough, in our main segment, when we talk about the state hearing in Fulton County, Georgia, that occurred a couple of days ago, I it gratifying to hear both sides, media the requesting access to that Fulton County grand jury special report, and the the district attorney's office in Fulton County, both basically saying, you know, when asked questions about how this would interact with potential federal investigations, and they both kind of said to the judge, like, hey, judge, you, Know, as well as we do that, like the DOJ is just tight lipped, and we can't figure out what they have or what they're doing. We'll never figure that out. Right? Like, and, and in the court was kind of like, Oh, yeah, right. Of course, That's the way it is.

0:13:31 Thomas: But That's DOJ, What about people who are the subjects of it talking about it? I

0:13:36 Andrew: Yeah. So in other words, remember that the president is the chief of the executive branch. The DOJ reports to him. The attorney general reports to him, and so you would not want to set up a situation in which you've publicly said the DOJ is doing X, Y, or Z knowing that you've tied the hands of your your own subordinates that they couldn't respond if you've been, you know, if there was an inaccuracy or something like that?

0:13:47 Thomas: Here's Here's Why I brings up, there is a part of the show on The Daily, again, I bring up because I think it's, it's like, still there's got to be in the number one or two or three podcasts all the time. So a lot of people listen. That's where they're getting their information about this, maybe. And there was a part of the episode where they were talking about this criticism. And they're like, yeah. And the Biden team took a gamble that they could be silent and would kind of go away. And people are saying they should have spoken up, blah, blah. And then they're, like, okay, well, what was their reasoning? And person says, well, they're saying there's some DOJ rules that say you shouldn't talk about investigating. And they put it like, A, it was this decision he was making, that the administration was making, that was this Watergate -esque scandal of silence. And then B, they were like, their reasoning was these rules that they're, say they're following.

0:14:05 Andrew: Yeah,

0:14:50 Thomas: And it's like, well, okay, another way of putting that would have been, yeah, Biden was following these rules. It's a weird way of characterizing it that was like, here's this devious thing they did. What was their justification? Investigation, well, they say it's the rules. It's like, what, how is that, how your character that, was why I was so pissed off about the episode. Is But maybe I'm wrong, I don't know. They have a, some, some guy researching it. What do you make of that? Yeah.

0:15:11 Andrew: I That argument makes no sense to me, right? I guess, you, you know, sort of where I'll it up, there is no requirement. And in fact, there is every reason to believe that appropriate procedure in a situation like this is not to go around and announce when there are confidential DOJ investigations, because again, it puts you in that position.

0:15:37 Thomas: Picture That You say something You Make a statement about it, I, the Daily podcast would be, well, and, and you can see there are allegations that Biden was trying to affect the investigation by downplaying it, doing that, you, you know, the same crap would go the other way.

0:15:39 Andrew: Yeah. Right. Yep. Yeah, suppose you get it wrong. Suppose you get it wrong now that DOJ is in an untenable position where, you know, we have heard Merrick Garland, this Department of Justice speaks through its court filings. Well, now, Merrick Garland can either come out and correct the record, at which point, you are right-wing sources will be like, see, he says he's not going to talk about ongoing investigations, but when it's his boss, he does. Yeah. You are correct that that creates that just no -win scenario. Yeah,

0:15:52 Thomas: Yeah.

0:16:20 Thomas: Just felt so arbitrarily unfair, trying to make a scandal out of the thing that's not a scandal because Biden didn't proactively come out and say a thing that he didn't really need to say for any reason and possibly was supposed to not say. It's just very weird.

0:16:36 Andrew: In an area where he is complying with the law and there is no affirmative advantage, right, and And it's incredibly easy to be misunderstood.

0:16:44 Thomas: At least presented he's following the letter of the law you maybe know there's some wiggle room in there that he's you a decision not to talk about but like the way they presented it and really pissed me off so that aside uh sorry for the little digression there but it really uh I found that coverage very frustrating um in terms of this Pence stuff doesn't it feel to you like Okay it sounds like the the way people and ex -administrations, previous administrations and stuff, sounds like the way they're handling these documents in transition or in other times just isn't quite right. Like, it sounds like too somebody's not tracking something, something's not going right. It's not, doesn't seem criminal to me, doesn't seem nefarious, but something in that procedure needs to be fixed. And therefore, I bet a bunch of other people, senators maybe, I don't know, Jimmy Carter's peanut farm, check for documents, um, OK, that's one thing.

0:16:46 Andrew: Yeah.

0:17:37 Thomas: But as you say, the criminess, the part where you resist it and still cling on to them, insist they're yours and you don't have to give them up. Totally different thing, right?

0:17:45 Andrew: And fact, this is an area where if we had a functional government, a congressional committee would be appropriate, right? You would establish a congressional committee for purposes of revisiting the Presidential Records Act to determine, number one, is there a problem, right, there seems to be a problem. That is, yep, documents are showing up in non -confidential places. So we have an existing law that specifies what you do with those documents. And then that's why you hold congressional investigations is to say, hey, maybe we need to revise that law. And I can give you some great examples of where you need to revive that law, right? So, for example, the says that upon expiration of the term, the documents shall become the possession of the National Archives. OK, well, yeah,

0:17:53 Thomas: Yeah. Yeah.

0:18:04 Thomas: Seems to be a problem.

0:18:38 Thomas: Doesn't give you any like methods or.

0:18:40 Andrew: Right. Maybe You have a like transition period, and you say, you know, for the three weeks immediately prior to Inauguration Day, you the know, president and or his representative shall meet with designated representatives from the National Archives to facilitate the transfer of presidential records too, right? Like it's super easy to do that, but you would, what you would want to know is what documents are slipping through, how are they slipping through And then how can we fix that in the future and the problem is that you know you have donald

0:18:40 Thomas: Mm hmm. Mm hmm, yeah. We

0:19:11 Andrew: Trump in there as a, yeah and

0:19:11 Thomas: Don't have that anymore. So the hearing will be either Hunter Biden's laptop used these documents in order to commit crimes or, you know, not. Yeah, I guess I don't know what the or is, but let's

0:19:18 Andrew: Yeah that's it, and and well I think there was going to be a committee convened on the documents, uh, up until, you know, they were found at at Mike Pence's residence. Um, and again, uh, me be clear on this, right, like Mike Pence has been a complete quisling when it comes to January 6th, right? He's a no-show, he's totally silent, uh, you know, they tried to hang him, so I don't, I have good things to say about Mike Pence, but but but just just to draw the contrast of how abnormal the Trump presidency was, if this were just a Biden and Pence thing, I feel like we would work this out. I feel that committee would happen, you know, and it would say, oh, yeah, yeah, your guy had docs, my guy had doc's, let's let, let's figure it out.

0:20:09 Thomas: Call the whole thing.

0:20:09 Andrew: Let's go. Tomato. Yeah, no system systems broken because of Donald Trump. Yeah.

0:20:15 Thomas: And just hyper partisanship. So, all right, other piece of news, I'm sure that was a little longer. The best laid Andrew plans are always, uh, uh, ruined by Thomas. But see, there's another interesting item, uh, about Ken Cuccinelli testifying before the grand jury, not

0:20:18 Andrew: Engendered. Yeah.

0:20:31 Andrew: Ken Cuccinelli is an interesting individual. So number one, this is Jack Smith's special counsel investigation into the omnibus set of crimes potentially committed by Donald Trump. For right, which for he was appointed, and uh, just spotted uh Cooch in D.C., and were like, hey, are you here to talk to uh Jack Smith's grand jury, and he was like, yes, yes, I am. Um, Cuccinelli is a hardcore far-right evangelical true believer, close associate of Focus on the Family, right? Like, like, long, long time on, you our short list of, you whose vision for the country is kind of, you know - you know, dramatically opposite yours and mine.

0:21:19 Andrew: He had a number of positions. He kept getting shuffled around in the Trump administration, including in the insurrection -y times, he was the acting deputy secretary at the Department of Homeland Security. And the reason that he was acting deputy secretary is because he couldn't get confirmed by the Senate. And so, you they know, kept avoiding, they kept making interim appointments, and we've talked about how there are, in fact, court opinions declaring various of his appointments to have been ultra vires, and it's a huge mess. So, in any event, he's the number two at DHS, and what reports to him is the CISA, a cybersecurity and infrastructure security agency. And you might recall that immediately after the election, the cybersecurity and Infrastructure Security Agency issued a public report that was like, this election was great, right?

0:22:12 Andrew: There were no serious breaches. There was apparently, it's under redaction, so we don't know what it is. There was apparently a Russian hack or attempted hack, uh, a state voting system, but they caught it, right? And so, uh, so CISA says, uh, this is great. And so Ken Cuccinelli came up, and his name is on a bunch of documents, and he was interviewed by the January 6th committee on December 7th, 2021, uh, relatively early, uh, two months though after our pal Richard Donahue, uh, interviewed. And And Donahue basically gave us two pieces of information about Cuccinelli. The first is he said Cuccinelli was the person that Trump got on the phone as things became contentious, and the discussion was to make environmental lawyer Jeff Clark acting attorney general.

0:23:06 Andrew: And called the way Donahoe tells it is he picks up the phone. He calls Ken Cuccinelli and says, everybody tells me you're the guy who can seize the voting machines. Are you the guy? And Donahue was like, we, of course, never told him that Ken Caccinelli was the guy Who could seize voting machines. And Cuccinelli basically says, no, I'm not going to seize voting machines, right? So, okay, so that's a good fact. There's a side reference, and this This is why I'm highlighting this now, because I'm trying to figure out what Jack Smith wants to get out of Ken Cuccinelli that is not otherwise available from his January 6th testimony. So there's a side reference when Donahue was talking about making Sidney Powell special prosecutor in charge of overturning all the votes or whatever, that Trump also suggested Ken Cuccinelli for that role.

0:24:04 Andrew: And it's just kind of like brought up and dropped. And I went back and I read Cuccinelli's January 6th transcript, and we're going to get to it. But so, teasing that before we get there, the way I would describe Cuccinelli with respect to evaluating claims of election fraud is that his answers seem to me to be very clearly trying to straddle the fence between sucking up to Donald Trump and not being a complete idiot.

0:24:39 Andrew: Yeah, and not being an insurrectionist. That's right. And I will say this, I you know, my first thought whenever I see anybody going before the grand jury is, you You know, have they been immunized? May or may not have been because Huginoli just does not seem to have been involved in the planning of the January 6th insurrection. It would be, I would need to see lots more evidence to believe that there is, that he faces some criminal risk.

0:24:38 Thomas: Being an insurrectionist yeah, there's anything to immune immunize him from starts

0:25:05 Andrew: Yeah. Yeah. And so you might just say, yeah, okay, great. Right you go. So let's, want any untoward objections, you Fifth Amendment objections. So let us button everything up. Say that because I am going to flag a couple of things where when asked sort of directly, hey, the CISA reports to you and they said the election was fine. You agree with that, right? And he was like, well. So here are some examples. This is page 25. Question. Is it fair to say that seeds of distrust were sown with respect to the 2020 election after the November 2020 election? Answer. I am not prepared to say that. Question. You're not aware of any actors, foreign or domestic, who were proposing that the election had been stolen or rigged? Answer. Certainly outcomes on a state -by -state and overall basis were being addressed aggressively from several different perspectives, including foreign.

0:25:59 Andrew: And then an interruption question. Question. Are you aware of any elected officials saying that the election was rigged in the immediate aftermath of the November 2020 election?

0:26:10 Thomas: Doing an impression of Trump to like help him out, what

0:26:10 Andrew: Okay. Yeah. Yeah, answer. I don't remember the quote. Question. Do you remember the president making comments along those lines? Answer. I remember the President expressing in strong terms concerning along those line, but you used a specific word, and I am not prepared to validate that word. Question, you don't recall the president using the word rigged? Answer, no, I don't. Well, you must be the only person on earth who does not recall the President using the words rigged.

0:26:27 Thomas: For the love what the hell is this is that the actual quote are you adding it

0:26:44 Andrew: Oh, no. Yeah. Sorry.

0:26:45 Thomas: Okay because it could have been, I mean, if uh, lawyer Thomas s was doing the deposition, it would, uh, it would go a little, like, more that, oh really, you can't think of anyone that's why it's why I don't do the depositions, I what does that accomplish what is, is it?

0:26:47 Andrew: Yeah, no, this is why I was not allowed to be on the January 6th committee yeah and and so, okay, won't say that Trump said that the election was rigged even though, I have no, again, because I think he's a weasel, right, like, because I Think he knows, you know, okay, I mean, I don't want this to get bad, I'm not gonna, I'm not gonna validate, you know, you saying that, and let me, I'm gonna skip ahead, I was gonna going to do this in another, because it's page 130, at the very, very end. But sent out a tweet on January 6th, right? And that tweet, again, as you might expect from somebody who is a horrible, horrible human being but not an insurrectionist, said, "For months over the summer, we rightly condemned Antifa for storming federal buildings in Portland. If you are entering the Capitol building against police orders, you must leave. There is a proper venue to resolve grievances. This is not it." So he was asked questions about that tweet. And the question was,

0:27:10 Thomas: I didn't

0:27:55 Andrew: Well, in your words, it

0:27:55 Thomas: Do that. Who did that? It's not my tweet. What is Twitter? I don't know. What are words? Where am I? Who are we?

0:27:57 Andrew: Was not quite that bad. But the question Was, well in your word, you sent the tweet to see if it would make a difference to get people to leave the Capitol. Did you anticipate that the president would do something similar? Answer, no. Question, why not? Answer, why would I? It's not my place. Question, well, and then answer, he interrupts. He's like, look, to anticipate that, look you're getting, you want me to trash a situation in a way that you like for witch hunt purposes and I'm not going to do that. You're asking me what I feel, give me a break.

Come on, just stick to facts and I'll tell you what I know. Okay, so that's kind of the tone that he's come in to do this, right? Right? You're not going to get me, yeah, to throw Trump under the bus. And then specifically with respect to the insane claims where his name is on a document saying, you know, yeah the election was fine. He was asked about it and this is a year later was still sort of wishy -washy about those claims. So back to page 28, 29. This is about Antrim County in Michigan.

This This is the Allied Securities Operations Group, ASOG, the like fake, you know, law -y sounding group that was like, there's a 68 % error rate. And Rich Dottie, he was like well actually it was one vote. So he was asked about that and about the report that the CISA put out that said, it is the sentence that says, there is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised?

0:28:13 Thomas: Yeah.

0:28:39 Thomas: Hostile witness.

0:29:29 Andrew: Do you see that answer? Yeah, I see that question. And you don't think that's correct? Answer. I am just not willing to accept it at face value that way coming from CISA on November 12th of 2020. Question. And do you cite as an example what I think you call the Antrim County mess? Answer, yeah. In what respect do do you believe Antrim County, and then he says, over which we had no jurisdiction, so all my information I read in the, you know, it's an interjection, he says. Do you believe that in Antrim county, a voting system deleted, lost, changed votes, or was in any way compromised? Answer, whatever their system, votes move from one count to another. I don't know whether machines did it or people did it.

0:30:16 Andrew: Um, yeah, no, that is just repeating the like garbage line of all of a sudden they flipped, right? Because remember, there was a an initial report out of a county that swapped the Biden and the Trump numbers right as they were reporting it. This happens all the time, like somebody just writes down, yeah, right, and and they immediately caught it and they reversed it, and so, you know, for of course for Trump, like, fixing that means that that's, you know, proof of all they flip them, right, because it would be way easier.

0:30:35 Thomas: Yeah. Yeah, well, no human would make mistakes like that.

0:30:47 Thomas: Yeah yeah. And then what we did is Democrats insisted, no, that needs to go into the official records that way. Finders keepers we have. No, we were just like, oh, oh, it's an error.

0:30:50 Andrew: Yeah, yeah, yeah, And he also seems, you about the votes in Georgia, right? Asked about that, he says, uh, I'm talking about that sentence that I'm reading. Voting system pretty broadly, and I believe there are other problems. Answer is, well, everything I've learned about that has been well after the fact. Question, whatever source can you point to something that, and again, he interrupts. He says, sure, sure. Legal filings in Georgia, okay, these were nonsense complaints that were dismissed that indicate that there are a large number of people who voted from addresses that wouldn't be legal than the margin of victory in the presidential race, for instance. And under Georgia law, as I understand it, I haven't been a Georgia lawyer for 25 years, once you are past the margin of victory, their one resolution is to rerun the election.

Yeah, and so basically it is, hey, yeah, there were complaints filed in Georgia that that, there you were improper votes in Georgia and they should have rerun the election, and they didn't, right? Then the follow-up question, I don't want to quarrel with you on this, Mr. Cuccinelli, but that doesn't implicate the sentence we talked about, does it? Answer, depends on how you define system. Deleted or lost votes, changed votes, or in any way compromised? Well, if 18,000 people voted who lived on vacant lots, for instance, that would compromise the election.

0:31:21 Thomas: Right.

0:32:11 Andrew: So that is directly, again, repeating debunked claims from a lawsuit that was dismissed and the lawyers potentially sanctioned for having filed it, um, that gives you some color of of Ken Cuccinelli. Again, didn't Jeff Clark, right, when called up, he didn't, saying, yes, Mr. President, I will go seize the Dominion voting voting machines, said, no, that's a thing. So, you, as far as I can tell, not a foot soldier in the insurrection, but as a loyalist. Love I this. Just for color, I have no idea where he's going with this. And I would have asked a more follow-up questions. But the question, did you anticipate that President Trump at some point would concede? Answer, no, not necessarily. Question, at any point Answer, correct. Um, I kind of would have liked to have known, uh, a little more on that, but, you know, that that was not

0:33:05 Thomas: Well, okay. It was not the same as the other thing where he's like, no, I didn't anticipate it because it's not my job to anticipate anything. I don't care facts. That was what he said for the other one. When he's, like, do you anticipate he would, did you anticipate you would tweet something that would, you the, send the instructions home? And he's ,like, I don't, why it's, not my, job to, anticipate things. I guess that's technically correct. That's kind of

0:33:06 Andrew: Uh, no, it is, but yeah, Yeah, it is the best kind of correct. Who knows? So I point out that Cuccinelli features in the January 6th committee's final report, and in particular in footnote 182, in which they basically validate this fence -sitting hypothesis. And that footnote says, even as the acting secretary of DHS, that's Chad Wolf, his boss, was providing Mark Meadows information he received from his director of CISA debunking the Dominion claims. The acting assistant secretary of DHS, Ken Cuccinelli, was providing back channel information to Meadows in a possible effort to promote the false Dominion claims. And then the Cuccinelli text is, I have the Dominon list of everywhere the machines are deployed that we know of. It is pretty extensive.

0:33:27 Thomas: Correct.

0:34:14 Andrew: It ist in my DHS email account. Where do you want me to send it? And then Meadows provided Cuccinelli with his personal email address. So, so that was kind of what the January 6th committee thought, guy, right? Seems to be talking out of both sides of his mouth. So then the question is, is there valuable information that was not presented to the January 6th Committee? And here's what I have found. This is the only possible thing that I could imagine this being the subject of appearance before the grand jury, and it is this. This is on page 70. Question, Mr. Cuccinelli, did you ever have any conversations about the possibility that you would be appointed as special counsel to investigate issues related to the 2020 election? Answer, yes.

0:35:00 Andrew: Question, okay, who'd you have those conversations with? Answer. Well, there was at least some folks from DOJ present. We know who those are. That's Rich Donahue and Jeff Rosen. And the president as well. And I don't remember who else. Question. Okay. Will you tell us about those conversations? Answer. Only that they happened. And as you all know, I was not appointed as special counsel. Question. Okay. And just so we have it on the record, your reason for not telling us anything further is because of concerns of executive privilege. Answer, Yes. If you resolve all that, I have no problem talking about it.

0:35:38 Thomas: Interesting.

0:35:38 Andrew: Question. Okay. Can you tell us whether you remember those conversations? I'm just asking so that I know whether it's worthwhile. And

0:35:45 Thomas: Yeah, to clear up the privilege issue. That

0:35:48 Andrew: Yeah. And Yeah. No, I understand. I have been in your position. I do remember those conversations.

0:35:56 Thomas: Is very interesting.

0:35:58 Andrew: Nobody, as far as I know, is really speculating about that. But look, the U District Court for the District of Columbia has multiply on the executive privilege issue. They've ruled Cipollone and others. That was our favorite judge, Beryl Howell. So was that Counsel Jack Smith sent a letter to Ken Cuccinelli and said, hey, by the way, we ran down that privilege issue. Here's a binding determination by the U.S. District Court for the District of Columbia that no executive privilege attaches here.

0:36:32 Andrew: Come in and talk to the grand jury on that

0:36:32 Thomas: Okay, hold on, though. What's interesting is, again, trying to just get the facts here without bias, that sounds like something that shouldn't executive privilege apply to it. I mean, that's deliberations about appointing someone. Well, why wouldn't executive privilege apply to that? If it's deliberations about making a presidential appointment, crime

0:36:53 Andrew: I I think that's very, very insightful. And the the only reason, uh, that executive privilege would not attach would be some variant of crime, fraud, or other waiver of the privilege.

0:37:00 Thomas: Fraud. Hmm. Don't know what that would be though. It's not a crime to appoint someone is if it's part of like a criminal conspiracy to get the election overturned, I guess you could say then that's okay. Yeah. Maybe that's what it is.

0:37:04 Andrew: Right. Right. Again, a lot of speculation going on in that, right? I want to always be clear when we are sifting through documents to try to find what's there. But if you're agreeing, you know, Jack Smith has a limited time frame. He has limited resources. And the fact that he specifically wanted Ken Cuccinelli to go to the grand jury suggested that there was information that he did not have. And this seems to fit that bill. So

0:37:20 Thomas: Mm. Mm.

0:37:45 Thomas: That sounds like good speculation to me just to get the Thomas, make sure the non-lawyers understand stand. So Jack Smith calls this guy to testify. And so you're like, OK, what might he have? You look at what he said to the Jan 6th committee and it's just very useless for the most part, except for that one thing where you're like, hmm, maybe this is what it could be. That seems like good speculation. Do I have the situation right? And if so, yeah, No, that seems pretty logical. Because otherwise, why are you wanting to talk to a guy who won't even tell you that he thought President Trump should tweet something, like, he's he's being that annoying of a of a witness, feels like you wouldn't want to waste resources on that unless there's something to be gained from it.

0:38:02 Andrew: Yep. You have it exactly right.

0:38:23 Andrew: And let me be clear, I'm glad you've kind of bottom -lined it, because I want to append on to that. Cuccinelli, at other point, right, again, we've said, has given some helpful information, right? I was not going to seize voting machines, But I to illustrate why he would have no value as a witness, right? And it's just sort of not worth pursuing because the areas where he could maybe corroborate, they're yeah, they are better witnesses that are not, you don't know.

0:38:37 Thomas: Okay. Better.

0:38:54 Thomas: Witnesses an asshole. Yeah.

0:38:58 Andrew: I've never heard the president use the word rigged. That would be like him using the word perfect or huge. Right, exactly. So the bottom line is, I don't see how Cuccinelli would be a useful witness on the subjects that we know about, because his testimony is going to be largely duplicative of and more ambiguous than someone like Richard Donahue, right? Right. You're not going to get him to come back to talk about, you know, that giant blow up meeting where everybody exploded and he was called on the phone because you've got you've get great witnesses for that. So the question is, you Know, if you're a prosecutor, what do you want to get out of this guy? And that was what leaped off the page to me. You they have access to documents that we haven't seen. So hang huge error bars around everything. I could be wrong, but folks would appreciate kind of a trawling through the January 6th report to try and figure out, hey, why is this guy in D.C. and testify?

0:38:59 Thomas: Boy. He's huge. Yeah. Uh.

0:39:23 Thomas: Yeah.

0:40:02 Thomas: Seems

0:40:02 Andrew: So there we go.

0:40:04 Thomas: Plausible to me. All so now, Andrew, you have a segment labeled Back to the Future, and it's about time travel. I'm very curious the new direction our podcast is taking. Um, Okay. What is this? Oh.

0:40:13 Andrew: Yeah. Yeah. So you might recall earlier this week we talked about Peter Navarro, the economist who went wire to wire in the Trump administration, decided to tell the January 6th committee to go pound sand. And Judge Mehta slapped that down pretty brutally and said, no, show and assert whatever privilege you think you have on a question -by -question basis, but you don't get to just have President Trump in your mind have asserted executive privilege.

0:40:44 Thomas: Yeah. That's right. Oh. This is the guy who gets good, the year is 2050, he's still still asserting, but this guy is just forever asserting presidential privilege or whatever. Okay. Yeah. I remember now.

0:40:47 Andrew: Yeah, yeah. Correct. So taking a page out of your suggested playbook, the day our episode dropped, he went back in time, called up Donald's lawyer, Evan Corcoran, and said, hey, can you write me a letter now that says back then you meant to assert executive privilege? And Evan Corcoran, there being no position dumb enough that he will not take in public on behalf of Donald Trump, said, sure, absolutely. So in a letter dated January 23rd, 2023, it says, "Dear Mr. Navarro, I represent President Donald J. Trump. It is our understanding that you received a subpoena from the January 6th committee seeking records and testimony." Testimony, uh, the Trump administration, you served four years in a close senior aid, uh, you, it is critical to the functioning of the office of the president, your communications with President Trump remain confidential.

0:41:04 Thomas: What? I was like, sure. Whatever. Oh my God.

0:41:50 Thomas: Also, how about that Will Smith slap on Oscar? And he's just putting in stuff from the time to make it be.

0:41:50 Andrew: Yeah. Yeah. They had to try and make it look like this was Uh, sent in February of 2022, yeah, um, retroactively asserts privilege, which is hilarious, and was the basis of a motion for reconsideration and for additional discovery. So it was like, hey, Judge Mehta, you said the president never asserted anything, but I went back in time and he did, in fact, mean to have asserted it then, which I can prove with the letter that's dated now.

0:41:58 Thomas: Yeah, all right. Once again, assholes advocate, ass holes Advocate. Let's say you and I have a conversation or something, and you know there's no reason to think you need to explicitly say one way or the other if this is privileged. And then, you know, sometime later, you're like, "Well, someone asked me about it." I'm like, "Well, I think that's privileged. I can't like go get a letter from you that's like, yeah, just confirming that was privileged." Is that not what's happening? What's different? Okay.

0:42:28 Andrew: Okay, yeah, great, great.

0:42:50 Andrew: So one, he could have done that at any time prior to a final judgment, right? And explicitly, I mean, we talked about this, right, refused to get any statement from the president.

0:42:57 Thomas: Okay. Hmm. So he could have done that when Alan Dershowitz was complying with with safe harbor deadlines and all that kind of stuff. Yeah. Or

0:43:16 Andrew: So, even if you didn't do that at the time, you have, they could have lied better in this letter, which is, you have said you could've gotten Evan Corcoran to say, "Donald Trump has authorized me to say that in 2022, in February of 2022, after you received a subpoena, you and the president had multiple conversations in which he instructed you to assert executive privilege. Those were not recorded for XYZ reason." Right? Like, like, you could have said that. They did not even try to say that. They just say, yeah, it's my understanding you have a congressional subpoena. Oh, you think, because you're about to go to trial for refusing to show up to comply with said subpoenas.

So, yeah. I to flag this here because, and maybe this is a good time, although there's been a lot of laughing so far, so you'd have to cut this pretty creatively to bring in Uncle Frank. But this is a good time. I'm about to make an argument even the DOJ did not make because, well, quite frankly, I think that they're pretty certain of the outcome anyway. But it's illustrative of how Donald Trump's lawyers are willing to lie bald -facedly to a judge in print. And think it's worth pointing out. And that letter from Evan Corcoran is one and one quarter pages long, one and a third pages long. Cites one case. And it cites the case, which is

0:44:02 Thomas: Is

0:44:47 Andrew: Just a, no, it's, so it says,

0:44:47 Thomas: It a case from our timeline? Or is it in the past sometime? Is it from the Biff Tannen is the mayor of the town timeline? Line or okay.

0:44:56 Andrew: This is from, you know, the prime timeline, right? Right. The last sentence of his letter says, "Accordingly, this confirms President Trump's position that as one of his senior advisors, you had an obligation to assert executive privilege on his behalf and fully comply with the principles of confidentiality stated above when you responded to the committee's subpoena." And then there's a footnote one and footnote one is the authority. And it says "C" is a is a legal signal. We've talked about this before. But when you say "C," what you were saying is the case that I'm about to cite directly stands for the proposition for which it is cited.

0:45:34 Thomas: Sure.

0:45:34 Andrew: Okay, you would say, if it's more attenuated, you might say "C also," or letter "C," "CF," with a period after it. It's like, yeah, this is kind of close, right? But when you say "C," you mean this is my authority. And they only cite the one case. And that case is Committee on the Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3rd, 148, at note 34. There's a parenthetical, and the parenthetical is where you're summarizing the legal argument that's made in that citation. And their parenthetical says, "Acknowledging the, quote, legal duty on the part of the aide to invoke, bracket, executive, bracket, privilege on the president's behalf." Half. You read the letter and you're like, okay, that makes sense. There must be a case then in which a high -level presidential aide was able to refuse to comply with the subpoena in any way whatsoever because he was asserting executive privilege on behalf of the president.

0:46:33 Andrew: And that's got to be this McGahn case, right? And you're thinking, not McGahn, White House legal counsel. I seem to recall some stuff about this. If don't read documents, you just read that and you're like, okay, cool, fine, whatever. But if you're me, you pull up the case. And the first thing you notice when you pull out the case is it's a 70 -page, incredibly lengthy decision by then-Judge Ketanji Brown Jackson, back when she was on the District Court for the District of Columbia, that says, yes, Congress can enforce its subpoenas, even against high -level executive branch staffers. And so if you're thinking, well, that seems kind of like the opposite. You have no idea how much of the opposite... And so to illustrate how much the opposite it is, I want to read you the opening two paragraphs of the opinion, which begins with talking about some history, some legal history precedent.

2008, in the context of a dispute over whether the Committee on the Judiciary of the House of Representatives had the power to compel former White House Counsel Harriet Myers and then White House Chief of Staff Joshua Bolton to testify and produce documents in connection with a congressional investigation, the DOJ made three legal contentions of, quote, extraordinary constitutional significance.

First, the DoJ argued that a duly authorized committee of Congress acting on behalf of the House of Representatives cannot invoke judicial process to compel the appearance of senior -level aides of the president for the purpose of receiving sworn testimony.

0:46:46 Thomas: Yeah. I like it already. That sounds kind of like the opposite of what we're saying.

0:48:06 Andrew: Second, DOJ maintained that a president can demand that his aides, both current and former, ignore a subpoena that Congress issues on the basis of alleged absolute testimonial immunity. And third, the DOJ insisted that the federal courts cannot exercise subject matter jurisdiction over any such subpoena-related stalemate between the legislative and executive branch on separation of powers grounds. The district court that considered these propositions rejected each one in a lengthy opinion that thoroughly explains why the federal courts have subject matter jurisdiction over such disputes, why the Judiciary Committee had standing to sue and a cause of action to proceed in federal court, and why the claim that a president's most senior level aides have absolute testimonial immunity is meritless.

0:48:51 Andrew: More importantly, most Most importantly, power of both Congress and the federal courts relative to the expansive authority of the president, which purportedly includes the power to shield himself and his aides from being questioned about any aspect of their work, present or former, is not grounded in the Constitution or any other federal law. OK, so that's real bad that we just have the next one. The more things change, the more they stay the same. On May 20th, 2019, President Donald J. Trump directed former White House counsel Ronald F. McGahn II to decline to appear before the Judiciary Committee in response to a subpoena that the committee had issued to McGahn in connection with its investigation of Russian interference into the 2016 presidential election and the special counsel's finding of fact concerning potential obstruction of justice by the president. And then the entire point of that opinion is, yes, they do have standing to enforce their subpoena. Yes, Don McGahn could show up and claim privilege on a question -by -question basis, but you can't just throw it in the trash can. You have to respond to the subpoENA, which, by the way, is the exact same

0:49:11 Thomas: Yeah, so

0:49:57 Andrew: Position that is being maintained here in this case. So that seems like you're citing that they did a bad law but maybe maybe they're just doing first year associate bad luck. This is a thing that happens sometimes, you know, like for example, this is the Thomas bad law thing. Well, and but but let me describe it because we have a lot of young lawyers who listen to the show, um, that is, you will go on Westlaw and you will find a great quote, right, that really seems to support your side, and then you'll not look at the context of that larger opinion. So maybe, right? Let's give them, let's say, now that's not good lawyering, right?, because exactly what I've just said here, right., which is, did read the opinion, counselor?, because it kind of goes the other way. But let's assume that

0:50:02 Thomas: They did a bad law. They did a badly lawyer being law thingy.

0:50:14 Thomas: You can say it. I would do this. This is Thomas.

0:50:27 Thomas: Yeah.

0:50:46 Andrew: It's just, yeah,

0:50:46 Thomas: Oh, that's got to be a lawyer's nightmare dream. Like you're arguing and then you're like, and that's why this case stands for the proposition. And then the judge is like, did you did you read the rest of that sentence? And you're Like, oh, shit. And then you like, also, you didn't put on pants this morning. You look down, you're not wearing pants, right? I mean, that's got to be.

0:50:49 Andrew: Yeah. Yeah. No, that's the nightmare. Absolutely.

0:51:06 Thomas: And it's Justice Ketanji Brown Jackson. Like, no, my favorite. I want to make a good impression. It out.

0:51:09 Andrew: I know. I Know! I would be so nervous. So, okay, just assume, though, that we have garden variety incompetence and not deliberate fraud. So let's go to that footnote 34. So first, first, we'll go to the text that footnote 34 supports. That text says, and I swear to you, I am reading this word for word: "Furthermore, as previously mentioned, in the context of compelled congressional testimony, such withholding is properly and lawfully executed on a question by question basis through the invocation of a privilege," comma, "where appropriate," appropriate, supported by footnote 34. Well, that, that, that's real bad.

That's exactly what he did not decline to do here. So let's, get fine, let's go to the text of footnote 34 and that says, "With respect to such withholding, the President can certainly identify sensitive information that he deems subject to executive privilege," USV Nixon, "and his doing so gives rise to a legal duty on the part of the aid to invoke the privilege on the President's behalf when, in the course of his, his testimony, he has asked a question that would require disclosure of that information. But the invocation..." So that's the part they quote.

They still leave off the "in the course of his testimony, he's asked a question that would require disclosure of that information," because that would reveal that, you know, they've taken a blanket, "I'm not showing up," as opposed to "I'm going to show up and object question by question." But it gets worse for them, because they left off a sentence that that follows it that begins with "but," and it says, "But the invocation of the privilege by a testifying aide is an order of magnitude

0:52:46 Andrew: Different than the DOJ's current claim that the President essentially owns the entirety of a senior level aide's testimony, such that the White House can order the individual not to appear before Congress at all," and "at all" is in italics for emphasis. Yeah, that's a big old yikes.

0:53:01 Thomas: Yikes. That's a bad sentence. Yeah.

0:53:04 Andrew: So this is going to come out actually as Judge Maeda has held a hearing to consider the motion for reconsideration. Do a little time traveling of my own, and I feel very, very comfortable that Judge Mehta is going to deny that motion for reconsideration. Uh I will link both that pleading and the DOJ's reply in the show notes, but they are, uh, motion for reconsidering is exactly what you would expect from the lawyers that managed to botch the only case they cited in the supporting letter, uh, and the DOJ's reply, reply is delightful and hilarious. And relatively short

0:53:46 Thomas: Boy, there's another good point. If you're going to botch a case citation, do it when you've cited 45 cases. You know, and like, oh, there is one in the middle there that we kind of messed up. Whatever. Hopefully nobody reads that one.

0:53:48 Andrew: Yeah yeah yeah, that's it. That was, that all our eggs are in that basket, and uh, and the basket has a hole in the bottom of it. Yeah, so there you go. That's uh, that's the stuff that's bringing this week. I, I really, really want to, I can't wait until Monday to break down what happened in Fulton County with respect to Fonny Willis. That charging decisions are imminent, but don't think they're Friday imminent.

0:54:05 Thomas: When Hmm.

0:54:29 Andrew: So we'll figure out what that means on our next episode.

0:54:33 Thomas: Yeah, night. So that's Monday. Look, we got it. I've been messing you up with the conversion. I always think of the episode as the day before because that's when I edit it and publish on Pacific Time. But I got to start using the appropriate language here because it's confusing people apparently from what I've seen online. So, that is Monday's episode and the OA episodes are Monday, Tuesday, Thursday, Friday, right?

0:54:49 Andrew: Yep. Yep.

0:54:57 Thomas: Ah, awesome. Okay, I did it. It really is hard. Cause it's all for me. It's all about the day before. Cause then that's when I'm like, Oh, I got to get this done.

0:54:58 Andrew: So we will have to rename it, you know, Liz Thursday. I like, I like though, I like how you refer to our shows, you know, when, when you were doing the editing work on the, that is for midnight California time, yes that's true

0:55:07 Thomas: Liz wins Thursday. I post them usually before midnight. So, you know, for me, that's yeah, exactly. But California is apparently at the edge of the earth and then you just fall off the ocean unless there's any Hawaiian listeners. But other than that. Yeah. Well, we'll see you.

0:55:25 Andrew: Yep oh if you're a Hawaiian listener, drop us a note, yeah

0:55:31 Thomas: Oh, I'm sure there are. Yeah, definitely. We'll see you. In that case, aloha. And we'll See you for Monday's episode. Looking forward to it.

0:55:40 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

0:56:13 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.

0:56:52 Andrew: He could have done that at any point in time.

0:56:52 Thomas: Is that the wording? Is safe

0:56:53 Andrew: Yes yeah, yeah it is safe harbor, yeah, for Rule 21, you got that exactly

0:56:53 Thomas: Harbor? Or no. Oh, okay. For when you get to undo. The free undo. Okay, cool. Just want to make sure.

0:56:57 Andrew: Right, yep yep for I said Rule 21, I meant Rule 12, so yeah, um Rule 11, anyway, I fucked it up multiple times.

0:57:03 Thomas: Right. Well, I'm going to cut that anyway. We'll

0:57:07 Andrew: Nice, so and tomato, tomato. Yeah, but

0:57:07 Thomas: Get there eventually.