Failing to Meet the Moment

Attorney General. In my conversation with Glenn, Glenn reminds us that when the Mulla Report came out, there were ten charges,

ten areas. Ten areas. Let me say that, not charges, ten areas where Donald Trump had committed crimes, and based on some bullshit policy, not a law, but a bullshit policy from the Department of Justice, you cannot try or indict a sitting president of the United States, which Glen will tell us in this upcoming interview makes us pretty much like a Banana Republic, because basically, what you're saying to a criminal president like Donald Trump is crime away,

crime away, because nothing is going to happen to you. Merritt Garland had the ability as soon as Donald Trump was no longer president of the United States to roll out indictments based on those obstruction charges, based on what it was that he did with regard to conversations around Zelinski, the emolument's clause, and other things he chose not to.

And so here we are in a position where we have had Robert Muller fail, We've had Merritt Garland fail to pick up Robert Muller's ball, and now we have Jack Smith away from Merritt Garland to continue kicking the

responsibility can down the road. Glenn will provide us with some very interesting updates as it pertains to Jack Smith and his investigation and whether or not we are actually edging closer to Trump and anyone in his inner circle being held accountable for their crimes against his country and against our democracy. So coming up next, dear friends, our supersized episode with our good good friend, the host of

Justice Matters and MSNBC Legal analyst Glenn Kirshner. Folks, you know that whenever I have the opportunity to talk with our dear friend, the host of Justice Matters in an MSNBC Legal analyst Glenn Kirshner, I am always thrilled but yet exasperated because every week for the past couple of years, Glenn and I have been sitting around wondering is justice ever going to matter again? And this week, Glenn, yet

another blow. I am interpreting Merrick Garland's recent appointment of a special counsel to look into the handful of documents that Joe Biden's lawyers discovered, contacted authorities to say that they had said documents, then did their own search, found a few more, handed them over readily. It took Merrick Garland, according to Sawyer Hackett, seventy one days to appoint a special counsel to look into Joe Biden. It took him five hundred and fifty seven days to appoint a special

counsel for Donald Trump. After Donald Trump lied about taking documents, then that they were his, refused to bring them, refuse to let them go. And we know that the documents that he had were nuclear secrets in a place that was unlocked. Glenn, make this make sense? Sure? So I think people are right to be frustrated that it took forever for him to appoint a special counsel for Donald Trump, and it took him two minutes to appoint a special

counsel for Joe Biden. But I think we have to take a step back and look at why he appointed special counsel when he did. And I'm going to argue that under the special counsel regulations and statute, he it was appropriate to do it when he did it for

those two issues. So there didn't have to be a special counsel appointed to investigate the crimes of Donald Trump until the moment Donald Trump announced he's Joe Biden's political opponent in the upcoming election, because that's what gives rise to the cont licked that Merrick Garland then had, because if he kept going after not that he was going after Donald Trump, nobody can accuse Merrick Garland of aggressively

going after Donald Trump. I don't know why the Republicans aren't taking Merrick Garland out to lunch to celebrate every day because Merrick Garland has not aggressively gone after Donald Trump. As I was yelling and screaming on air with NICOLEJ. Wallace yesterday. But let me get my blood pressure back down, so breathe, breathe. So But the moment he announced, that's

when he became Biden's political opponent. That's when Merrick Garland couldn't be perceived as going after Joe Biden's political opponent, so he had to appoint a special counsel. Here is why. So that's why it took so long. But Danielle and hindsight, I'm glad he did because I don't know that Merrick Garland ever would have aggressively gone after Donald Trump and Jack Smith is which we can talk about in a few minutes. And he's doing it and really important ways.

So why did he Why did he instantly appoint a special counsel when Joe Biden was found to have some documents he shouldn't because he can't investigate his boss because that's a conflict. He can't. He can't even say I took a quick look at it, there's nothing there, let's move on. Everybody would yell and scream it's your boss. Of course you're going to protect him and say let's move on. Now. We know the Republicans are going to scream regardless of what Merrick Garland does or doesn't do.

But even the legal purists, the people who don't you know, who really want to see the Department of Justice operate in a fair, a political, legitimate way, people like me and be like Oh, dude, that's not right. It's not he's your boss. And here's where the deal was sealed. For special counsel. Merrick Garland followed the guidance of the regulations and the statue, and he turned to this US

attorney out in Chicago, who is a Trump appointee. I don't know why Merrick Garland forever feels like he needs to give everything to Trump appointee. You have no idea. I don't either, other than he thinks that it fosters the perception of fairness. I think it's a recipe for disaster. But let's set that aside. He gives it to this guy, John Loche, one of only two remaining of the ninety three,

one of only two remaining. Trump appointed US attorneys for a preliminary review, which is appropriate, right, So he looked at it. He did a little bit of digging around, a little bit of investigating. He said, Hey, Attorney General Garland, based on my preliminary review, I think you should probably investigate this, and I think you should probably appoint a special counsel. Well, that sealed the deal, because Merrick Garland at that point can't say, okay, I asked you to

do the review. I asked for your opinion. Your opinion is there should be a special counsel and that person should give this a look. I reject that and protect my boss Joe Biden. That would not have been a good look for Merrick Garland or the Department of Justice. So the concern and the complaint that one thing took forever and one thing was done instantly, that doesn't resonate with me. There are some things that do resonate with him. So people are trying to say there are some similarities.

Trump had documents he shouldn't have had. Biden had documents he shouldn't have had. And that's true. But Danielle, that's where the similarities end. They end. What did Joe Biden do, frankly, what any good, honest, ethical, law abiding public servant would do. His team told him and mister President, we found some

stuff at your pen office that shouldn't be there. They instantly told the National Archives, because that's who owns those documents, that's where those documents belong, and they return earn them. They told the Department of Justice. They instantly launched a search of any other place where these documents could be. Like Joe Biden's garage. They found a few more and they turned them over and they alerted the Department of

Justice and of story. So if there's a legitimate investigation, I think what we're going to find now we can't prejudge the conclusions of the investigation, which will be conducted by another Trump appointed former DOJ official, Like, why can't

we find a Bush appointee? Like why can't we find and like like I think that Bush isn't corrupted in his own way, but like, I'm just confused about why Merrit Garland believes that having the perception of some type of equal treatment with people who do not follow the rule of law is somehow going to make him seem like a equal and full age. They don't care, and they know we know that if you are a Trump appointee,

I don't give a damn where you were appointed. You follow the rule book of make it long, make it last, make a media frenzy. So whether or not you find absolutely nothing, you're going to drag it out because it's going to be great for a media cycle for the Republicans and it's something for them to sink their teeth into. How Glenn does he keep doing this. That's a concern that I can't answer. But here is where I'll push

back a little bit, Danielle. There are Trump appointed people, including judges, who have actually proven to be fair and impartial. The reason I say that is, look at the Trump appointees who delivered judge appointed a lean canon or Trump appointed judge a lean canon, a royal SmackDown, I mean, a much harder SmackDown than all at court judges typically deliver to trial court judges. Those were two Trump appointees.

There are some Trump appointees on the Federal DISTRICCORD in Washington, DC who actually have been doing a darn good job, and some of them are even announcing, hey, you know, Donald Trump is kind of responsible for the insurrection. When are we going to see charges for him in substance? Right, So it's not all Trump appointees, But I agree with you that Merrick Garland falls into the trap every time of thinking it seems, oh, I got to find a

Trump appointee to handle this. No, you don't, No, you don't. Robert Muller was a lifelong Republican, and he instantly became an angry Democrat in the propaganda and disinformation campaign of the Republicans. So why do you think it's a good thing to keep reaching for Trump appointees. I'm with you there, but water under the bridge, even though the bridge has been watched out a couple of times over So, we just talked about what Joe Biden did, how he handled

this exactly as he should. I think what you're gonna find is that a bunch of folks packed up his stuff. This is not an excuse, but it's a reality. Anytime and administration changes political hands, everybody starts packing stuff up, throwing it in boxes, getting it the heck out of the federal offices. And it's not the most sort of thoughtful,

controlled process. And you're gonna find some folks who are being interviewed now who used to work with Joe Biden when he was president, who we're going to say, Yeah, I boxed up a whole bunch of stuff. Frankly, I didn't pay much attention to it, and we had a shipped to location X. So I suspect that's what you're gonna find. We know that's not what Donald Trump did. Why because Donald Trump posted the following, I openly and

transparently took all those documents. Well, thank you for letting us know that and helping the prosecutors prove that element of the crime that you know, we appreciate that. So and he also said, and they were mine, and I did classified them with my mind, and then when can I declassify them with my mom an x men? Exactly, It's like an old Kreskin act. He's gonna bend a spoon. Um Kruskin's for the old, for the young kids. Kreskin was a mentalist who used to appear on Johnny Carson.

I grew up on Johnny Carson. Okay, yeah, So but what did Donald Trump do when the National Archives said, hey, sport, you got our documents? He said, I don't care, you're not getting them back. Great, and months and months and months and months of fruitless negotiation with the documents hostage taker, with the documents terrorists, that is Donald Trump. Then the FBI and DOJ officials, including my former colleague Jay Bratt, went Tomorrow Lago and said, give us the documents back,

and he wouldn't. Then a grand jury he subpoenaed the documents as part of a criminal investigation, and Donald Trump spit on that subpoena committing the crime of obstruction of justice. And then we finally had a breakdown and get a search warrant because a federal judge concluded that there were three crimes that were committed and that evidence of those crimes would be found at Donald Trump's home in Mara Lago.

And when the FBI executed that search warrant, they found classified documents, including in Donald Trump's desk drawers, and Danielle here's the kicker. And I haven't heard many people talk about this as of right now today, Donald Trump is still in court. Federal prosecutors are demanding that he certified or he appoints somebody to certify that he has been over all of the stuff he's stolen, and he won't

do it. Joe Biden instantly had searches conducted and said, you've got it all now, I mean talk about Knight and are you kidding me? So then, Glenn, I mean, here's the thing. I mean, this is why I think that the both of us are just breathless at this point right because the comparisons that are being made in mainstream media are absolutely irresponsible. They have just recently started

to have any bit of nuance in their reporting. But you know, I said to folks on wok F the other day, I'm at the gym and I'm looking over at the woman in front of me who's on the elliptical machine watching Fox News. It takes everything in me not to jump off my elliptical machine and turn off what she's watching. All you see breaking news, Biden documents, You see McCarthy, Kevin McCarthy get up in front of

reporters and talk about the Biden foux paw. And then you have Lauren Bobert Twitter and saying like I hope that that this is not just more of a cover up of the Biden scandal. All of this and it is just swirling, swirling, swirling, and the media, because most of them are owned by right wing Republican billionaires, are just running with it. So there's no nuance here. And I wonder how detrimental do you think that this actually is.

I actually think the Republican politicians are not deep thinkers well, because every time they criticize Joe Biden for having documents he admittedly shouldn't have had, they are criticizing Donald Trump a thousand times over for doing the same thing with criminal intent. To the thousandth degree that Joe Biden did.

So every time a Republican says Joe Biden needs to be held accountable for this, I say, and therefore what you're saying is Donald Trump needs to be held accountable a thousand times more seriously, because what he did is a thousand times worse than what you're saying Joe Biden did. Right, So the minute they start saying prosecute Biden, well then they're announcing that they agree Trump needs to be prosecuted. Now, Biden doesn't need to be prosecuted unless this investigation reveals

that he intentionally took and criminally retained these documents. But there's one easy fact that does away with all this. The National Archives never even asked him for a document because they didn't know anything was missing. Because it's just like a handful of stuff that probably did get inadvertently stuck in a box and packed up by a staffer. That I mean again talk about night and day. You know, there is a defense in the criminal law called the stake.

There's a defense in the criminal law called accident. I mean literally, if you look in the you know the rules of procedure, you look in the appellate case law. You look in the statutes, there are defenses called mistake accident. Those are defenses to crime. Why because if you do something mistakenly or you do something accidentally, there's no criminal

act and there's certainly no criminal intent. So you know, come on, as long as this new Special Council is an honest, you know, broker of the facts and the law, then he should pretty quickly. And here's the other distinguishing feature.

Everybody at this early stage, based on the reporting, everybody he's asking to interview, is like, please, if you if you want me there at ten am, I'll be there at nine thirty to tell you everything I know, as opposed to Team Trump fighting tooth and nail and saying I don't remember and not being willing to submit to interviews. Come on, at the end of the day, this has to shake out. I mean, my thing is that and

then will transition to Jack Smith. But my concern, Glenn is that this turns into a Komy situation, which is in October right of twenty sixteen, Komey says, Oh, we're reopening the investigation into Hillary Clinton's emails three weeks before the fucking election. Two then turn around and say, oh, yeah, but we didn't find anything. I'm great observation, great observation, and I hope that once Jack Smith and I'm excited to talk about Jackson in a minute, I really am.

Once the indictments start to drop, that is going to take up all the oxy and I think a lot of these other flipping ridiculous distractions are going to melt away. You know, we had to contend with the judge a lean Kennon appointing a special mastered distraction, right, and then ultimately that melted away. I think once Jack Smith starts dropping criminal indictments on the heads of Donald Trump and his co conspirators, a lot of this other stuff is

going to melt away. But what you just articulated is a huge concern if this special counsel her his last name is hu r Her, if he is not an honest broker of the facts and the law and doesn't move out in a timely manner. This is a very bite sized investigation. Who packed up the boxes how today end up where they ended up? Investigation concluded. So I'm less concerned about that unless her is a true Trump loyalist who is willing to unethically proceed with this investigation. Okay,

switching gears to Jack Smith. What's what's the latest? This is? This is beautiful, It's beautiful and it's appalling all at once. So you know again, I was on with Carol Lennig and some others on with Nicole Wallace last night. We talked about all this. Carol and her team at the Washington Post broke some reporting that in early December, Jack Smith carpet bombed some folks with subpoenas, and those subpoenas covered more than a dozen categories of evidence. It was

fake electors. It was all communications that Trump's people had with state election officials. It was investigating the financing of the Save America pack and the Legal Defense Fund pack, which we all know was all about fraud and not at all about legitimate fund raising. It was in this

one I love. He was sending subpoenas to witnesses saying, I want to know who's paying your attorney's legal bills, and I want you to provide me with the attorney retainer fee fee agreement because I'm not going to take your word for it. I want to damn paperwork. Why because what we learned about Cassidy Hutchinson being represented by Stefan Passantino, who was on Team Trump rather than on

Team Hutchinson his own client. Right, Jack Smith is going scorched earth, and he's going a million miles an hour. These subpoenas Danielle that he sent out went out in early December. We're just learning about them now. Jack Smith was appointed on November eighteenth. What does that and he wasn't even in country, he was recovering from a triathlon accident.

What does that tell you about the pace he is setting? Okay, that's a good thing, and I want to talk about how hopefully the third time a charm Bob Muller, Merrick Garland, jack Smith, what we can hope we finish up with that. But so that's a beautiful thing from this aggressive former prosecutor's perspective. But it also tells us that these basic investigative steps that Jack Smith is taking, we're not taken

for a year and a half under Merrick Garland. And what we're gonna have to do when this sad chapter of our nation's history is behind us and Trump and company are in orange jumpsuits, We're going to have to do an autopsy why the Department of Justice failed to meet the moment under Merrick Garland. I still don't happen to believe it's because Garland is corrupt. I think he's too much judge and not enough prosecutor. I don't think he had I don't think he had it in him

to make difficult, aggressive law enforcement decisions, prosecutorial decisions. He treated everything like it was, you know, a meeting of his clerks in his chambers, trying to figure things out, and engaged in what I call legal naval gazing and analysis paralysis and all that. But we're going to need to know why the Department of Justice under Merrick Garland

failed to meet the moment? What was that a product of because we're going to have to learn from it, just like the J six investigation is helping us learn what legislation is needed to avoid this from ever happening again. But at the end of the day, and I feel like I've been fooled a couple of times, and I run the risk of being fooled a third time because I thought Bob Muller was going to bring it home full disclosure, he was my chief of Homicide. I think

highly of him. I think if you read his report, he documented in meticulous fashion the obstruction of justice crimes Donald Trump committed, and he testified that Donald Trump can be indicted the day he leaves office. But of course he never was. And that's Marrek Garland's decision as well. Even though Marek Garland wasn't in place on the day Donald Trump left office, he came, I believe in March,

a couple of months later. Still the principal holes. There were these crimes that could have been brought and you decided not to bring them that we will need to do an autopsy on. Right, So Bob Muller couldn't bring it home. And let's remember I always have to say this, Bob Muller was laboring under this horrific DJ policy that you can't indict a sitting criminal president, which is the

stuff of banana republics. I don't understand why we announce mister president, please please commit all the crimes you want because we were Trump is running again. Why do we think that, right? Because it's the best cover for him, exactly so? And then so Bob Muller couldn't bring it home. Marek Garland couldn't bring it home. We have a saying third times a charm, and you know it may sound trite and cliche, but it's a saying that has grown up for a particular reason. And now we're on the

third go round Jack Smith. I'm hoping third time is a charm. And at least I'm comforted by the fact that Jack Smith has brought some scorched earth prosecutions against Republican criminals, Democrat political criminals, CIA officers. He is a hard charger against criminals who are Republicans and criminals who are Democrats, and he brings difficult cases and sometimes he wins and sometimes he loses. And I like the fact that he loses because that proves to me he's not

afraid to bring them. And so I have some confidence, based on his bona FIDE's that maybe the third time will be the charm. The last question for you, Gleam, it is January. We are two years removed now from the insurrection. We have watched the copycat version play out in Brazil. Low and behold. Law enforcement in Brazil reminded us that people can be arrested same day for the crimes that they commit and broad frigging daylight. So we now know about these subpoenas. What are we I mean,

shake your crystal ball for me. What are we thinking in terms of these magical indictments that we've been waiting on for two plus years? And if you include the Mueller Report, we're going back further than that. Yeah, And so you know what, I've got Georgia on my mind because what we learned about Fannie Willis's investigation is her special grand Jury has concluded its work and issued a

report that is not yet public. And listen, I gotta give props to Fannie Willis because she just beat those scared little boys who kept running away from the grand jury. You know, I call him the littlest General Mike Flynn, the littlest Mayor Rudy Giuliani, and the littlest Senator Lindsey Graham, all of who whom were so scared to go into the grand jury in Georgia, and they ran to the courts. Lindsay ran all the way up to the Supreme Court, and all three of them went in the grand jury.

And that is because of Fannie Willis's determination. She beat them like a drum. Now with the report in hand, which if I had to look into the crystal ball, I would bet says crimes were committed, here's the folk that committed them. They need to be charged. Fannie Willis goes back to the regular grand jury in Georgia that has the power to indict, and she indicts. That's what I think is coming. That's what I think. There's a court hearing on January twenty the issue of should the

report be released publicly. There are open open reports laws in Georgia that have an exception that say, you know, stuff should be made public unless it would impede an ongoing investigation. I have a feeling we're not going to see that report because this investigation is ongoing. But the regular grand jury is also back sitting on January twenty fourth. We could see we could see indictments within a matter

of weeks, but stay tuned for that. I think. I think those are the first indictments were likely to see. You know, Jack Smith, the documents crimes. It seems to me that they have everything they need. Now do they feel like they need more? Do they feel like they need belt and suspenders before bringing charges? Maybe? But I think that those charges could drop in the next couple of months. Insurrection charges I think are still a pretty

you know, complex and instigation. Lots of these subpoenas that just went out involve the insurrection. I don't expect to see those. I think those will be charges to drop. So I would say Georgia documents crimes insurrection. Okay, all right, Well we'll sit tight, Glenn, and we will talk to you next week and see where we are. As always, really appreciate your insight and analysis, and hopefully one day, Glenn, we will sit here and say, with our champagne cheers,

justice finally does matter. Appreciate you, Thank you, Daniel. That is it for me today. Dear friends on woke app as always, power to the people and to all the people. Power, get woke and stay woke as fuck.