Low-hanging fruit

Explicit content warning

11/03/21 • 30 min

1 Listener

We now know which documents former President Trump is seeking to block from the January 6 select committee: the White House daily diary, which would show his movements and meetings; phone records and records of his senior staff, and a few other documents, including a draft of a speech for the “Save America” rally, a handwritten note, and more. Trump is asserting executive privilege, which is a kind of made-up doctrine but everyone still agrees that former presidents still have some executive privilege anyways. What we do know based on precedent is that the public’s interest in having information will be weighed against the former president’s interest in keeping things secret, but does analysis of whether the former president was up to no good factor in to that?

We now have the January 6 committee putting some requests for documents on hold, and it sounds like they may be doing that after discussions with the Biden White House. What is the strategy behind this? And if there is a big dispute over executive privilege, is that likely to end up in front of the Supreme Court eventually?

Plus: did you know there’s a Trump SPAC? Rudy claims three documents out of more than 2,000 seized in the FBI raid on his home and office may be privileged, and the January 6 judges continue speaking their minds.

Previous Episode

Guilty. Appealing. Talking. Referred for contempt.

This week, Josh Barro and Ken White catch up on a few familiar characters and tie up some loose threads.

Lev Parnas, former associate of Rudy Giuliani: convicted of six counts of charges related to funneling and concealing political contributions. There was speculation about whether Parnas himself would take the stand — Ken talks about when that’s a good idea and when that’s very much not a good idea.

Michael Avenatti: still a free man for now, but indicted on four sets of trials, and one of them ended in a mistrial several weeks ago. The government failed to disclose some evidence and now Avenatti is entitled to a new trial with that new evidence. But Avenatti is making a double jeopardy claim: that he has a constitutional right not to be tried twice. This is a thin argument — Avenatti may be working another strategy — and long story short, the Ninth Circuit agreed to a expedited briefing schedule.

John Eastman, lawyer and author of the now-infamous (at least to our listeners) Eastman memo laying out how Vice President Mike Pence could maneuver to keep Trump in office: sitting for extended interviews about the circumstances of that memo and whether it reflected his views. Was he acting as a lawyer in those moments? And would that be a shield for him?

Steve Bannon, former Trump adviser and pardon recipient: held in criminal contempt by the House of Representatives and referred to the Department of Justice. What does that mean? And is it a boatload of work for the DC U.S. Attorney’s office, which has its proverbial hands full with January 6 prosecutions?

Next Episode

Another indictment from Durham

There’s been another indictment in special prosecutor John Durham’s investigation of the investigation into links between Donald Trump’s presidential campaign and Russia. It’s another indictment for false statements to federal officials, this time of Igor Danchenko, a Russian national and Russia analyst who was one of Christopher Steele’s sources in assembling the infamous dossier. The thrust of the allegations in the indictment are that Danchenko lied to FBI investigators about where information that ended up in the dossier came from, and it looks like most of his information came from one political operative.

The indictment itself is long, it’s detailed, and it seems like it’s making an argument, and it also seems like it makes a strong case for how some false statements prevented the FBI from accurately evaluating the information provided. Josh Barro and Ken White analyze this second indictment from Durham and what this shows about how the FBI and the media handled the information in the dossier. Does former President Trump have a point about this being a “witch hunt”?

Plus: a judge gets an unusual and pretty annoying request from the Trump legal team, a Capitol riot suspect fled to Belarus because his lawyer advised it (he claims) and another wants to ask a judge’s permission to take a paid-for vacation, and the Schlapp legal fund.