March 29, 2022

Nicole Wallace and former FBI counterintelligence director Frank Figliuzzi discussed Judge David Carter's finding that Trump "more likely than not" committed felony obstruction.

"The reason we are talking about this ruling is because if (John) Eastman had been successful saying this is an attorney-client thing or executive privilege, lay off, we wouldn't be talking about this. But he failed," Wallace said.

"The judge saying the privileges don't apply talking about criminality and you guys were strategizing about a crime and a step further now, implicating the former president, and the language is quite clear - 'likely that he committed felonies, likely he knew that this was improper' so this goes way beyond just the Eastman ruling and any current or former federal prosecutor or agent within the sound of my voice knows what I mean when I say this," Figliuzzi said.

"When a longtime respected federal judge has a ruling like this, saying Mr. X has likely committed felonies, it reverberates through your office. You stop what you're doing at the FBI, you stop what you're doing at the U.S. Attorney's officer and you say, 'Wow. We have a federal judge who's actually told us out loud what we have been wondering' and now you have to take some action. There's no rule that says - you don't go to a manual that says if a federal judge says this, you do this, but the impact is that you stop what you're doing and almost if you don't take action now to open a case, if you haven't opened one already, you now owe it to the judge.

"Any U.S. attorney worth a darn - and now this is at the level of the attorney general of the United States, is going to feel compelled if he never does anything to explain himself to the judge. That is the respect, the gravity that's attached to the federal bench. I'm telling you, if this happened anywhere else in America, the local FBI, the local U.S. attorney's officer would stop and have a meeting and figure out, now what do we do?"

"Look. Frank, I think you put your finger on why this landed with such an explosive sort of boom in our inboxes and it can feel like part of this blur of nothingness," Wallace said.

"It is federal judge after federal judge in this sentencing of the insurrectionists themselves who pointed to Donald Trump's speech, not just leading up to 1/6 but in the days since, as the incitement and it is now a federal judge in not an unrelated case but a case related narrowly to the Eastman emails, saying that felonies were committed most likely by Trump and Eastman. So I guess my question is, where is DoJ?"

"It is everyone's question. You know where I am on this, I'm not ready to scream from the rooftops on this. I have seen indications that something is happening," he said.

"I don't see evidence of coordination and I get worried that the committee is in front of DoJ and doing things that DoJ might not like and then people telling me who I trust, 'Calm down. calm down. give us space. We are doing our job.' So I think DoJ is paying close attention and further, I think they have a strategy here and I still hold out hope that they're going to put the name Donald J. Trump in the subject line of a federal investigation."

Most journalists don't seem to remember the potential problem congressional immunity to compel testimony presents to the prosecution of those people, as we saw in the Iran-Contra investigation. Independent counsel Marty Walsh had to deal with the fallout:

As Walsh recalled, “No adverse factor shaped or constricted [my] investigation more than the congressional immunity grants” made to a number of key government officials in return for their testimony. Although Congress offered these grants because of the need to understand a scandal in the executive branch and to address a crisis of confidence in the government, this led to the reversal of NSC staff member Oliver North and National Security Adviser John Poindexter's convictions. The Court of Appeals reversed their convictions because they successfully argued that witnesses in their trials might have been affected by publicized immunized congressional testimony, even though the prosecutors themselves had taken painstaking efforts to avoid encountering information about the hearings.

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