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MSW Media.

1:04

I signed an order appointing

1:07

Jack Smith. And nobody knows you. And those

1:09

who say Jack is a fanatic. Mr.

1:11

Smith is a veteran career prosecutor. Wait,

1:14

what law have I broken? The events leading up

1:16

to and

1:17

on January 6th. Classified documents

1:19

and other presidential records. You understand what prison

1:21

is? Send me to jail!

1:32

Hello, I'm Allison Gill and welcome

1:34

to episode 42 of Jack, the podcast

1:37

about all things special counsel. And

1:39

while we might not have the answer to life,

1:41

the universe and everything, we do have multiple

1:44

court filings

1:44

to discuss this week, including

1:47

a narrowly tailored gag order

1:49

motion from Jack Smith in the DC

1:52

coup conspiracy case and a motion

1:54

from Trump for the judge

1:57

in that case to recuse or to be disqualified. Judge

2:00

Chutkin. And we also have the Special

2:02

Counsel's opposition to that motion. Hey,

2:05

Alison, I'm Andy McCabe. As

2:08

you know, and I don't know, I think we might have

2:10

the answer to Life, the Universe and everything this

2:13

week. It's a- Episode 42. That's

2:15

right. It's a show

2:17

very packed with information. So

2:20

we also have a DC Circuit Court of Appeals

2:23

decision on the Scott Perry phone

2:25

warrant. And we have the sealed

2:27

court order from Judge Beryl Howell

2:30

on the Trump Twitter account search warrant,

2:33

which you will recall we talked about a few weeks ago.

2:35

Then of course, down in Florida, there are new details

2:38

about what you sealed Tavares did after

2:40

Theo Lavera asked him to delete

2:42

the surveillance footage.

2:44

And Judge Cannon,

2:46

good old Judge Cannon, finally approved

2:48

a protective order in the case. Yay.

2:51

Yay. It's only been a couple, three

2:53

months. That's right. So,

2:55

you know, again, nothing, I

2:57

think, untoward or overly,

3:01

you know, dramatic going on

3:03

with Judge Cannon at this point,

3:05

nothing like we saw with the special master

3:07

case. But I could see this nickel

3:09

and dime delay

3:11

go on for quite a while

3:12

for each of these specific motions. All

3:16

right. Not sure how we're going to get to all that in one show.

3:18

I guess we will just not talk

3:21

about Special Counsel David Weiss.

3:23

I feel like I've been talking

3:25

about that for the last three days. But that's

3:27

OK. And

3:28

what I imagine Judge Emmett Metta

3:30

would call a week sauce three count

3:32

indictment

3:33

of Hunter Biden.

3:35

But the show isn't called David, it's called

3:37

Jack. So where do you want to head first,

3:39

DC or Florida? I'm rolling the dice

3:41

and it's coming up DC. So

3:44

let's go first to DC. And

3:46

of course, we are thinking

3:49

about the Trump motion for

3:51

recusal. So, Alison, you're going to remember the

3:53

beginning of last week, Trump filed

3:56

a motion requesting that Judge

3:58

Chutkin recuse her yourself

4:00

from this prosecution and basically

4:03

his motion came down, you know, in an ever going

4:06

effort to endear themselves to this judge.

4:09

They basically said, judge, you're so conflicted

4:11

you must remove yourself

4:13

from the case. Yeah, and they

4:15

threw out some like your biased

4:17

anti-Trump, you know. Yeah.

4:19

It wasn't a very,

4:23

it was a pretty explosive motion.

4:25

It was. I thought

4:27

it was so ironic that a lot of their language

4:30

was, you know, this is such

4:32

an important and closely watched case.

4:34

It's essential that the public

4:37

has, you know, complete belief in

4:39

the honor and sanctity of this proceeding

4:42

and therefore you must leave. This from

4:44

the guy who's done more to erode

4:46

the public's confidence in the judicial

4:49

system, the Department of Justice and the FBI,

4:52

really was pretty rich language

4:55

in my estimation. But basically

4:58

his motion stood on

5:00

two references, two statements that

5:02

Judge Chukkin made when sentencing

5:05

defendants in January 6 cases,

5:07

two other cases had nothing to do with Trump. And

5:10

in the context of those, delivering

5:13

those sentences, she made comments

5:16

about January So

5:18

one of them, she basically said that the people who stormed

5:20

the Capitol were there in fealty and

5:23

loyalty to one man, not to the

5:25

Constitution.

5:27

It's blind loyalty to one person who, by

5:30

the way, remains free to this day. And

5:32

it's that reference, that's one

5:34

of them, that they pointed to

5:36

basically saying she was saying something

5:39

disparaging about Trump. In

5:41

the other case, she says

5:43

to this defendant Palmer, you have made a very good

5:45

point, one that has been made before, that

5:47

the people who exhorted you and encouraged

5:49

you and rallied you to go and take action

5:52

and to fight have not been charged.

5:55

So again, they put that out there as a reference

5:58

to Trump. And that was basically a reference. their

6:00

argument. You've made disparaging comments

6:03

obliquely about Trump in

6:05

the contents of sentencing other defendants and

6:08

therefore you're biased against Trump

6:10

and you shouldn't be in this case. Yeah

6:12

and I think I think what's funny and a

6:14

lot of people pointed out is she didn't mention

6:16

Trump's name. She said these people who

6:19

exhorted you to go to the Capitol, people plural,

6:22

she said you know you have fealty to one man

6:24

who is still free, you

6:26

know, but you know this

6:28

the people who led this insurrection are still

6:31

haven't been charged and you know they're they

6:33

know they they exhorted you and and incited

6:36

you to go to the Capitol and Trump's like that

6:38

was me I did that

6:39

you're saying it's me totally

6:42

me I'm an exhorter it's

6:44

like one of those absolutely nobody

6:47

right and then Donald Trump

6:48

I did that that was me and everyone said

6:50

did he just admit that he incited the insurrection

6:52

like Mr. Cotter pick

6:54

me pick me

6:57

totally totally I thought

6:59

that that was you know I don't think

7:01

that that'll come up again but you know nobody

7:04

asked you and you just volunteered

7:06

that that

7:07

must be you I'm the guy who did all that

7:09

bad stuff at the center of this entire

7:11

coup

7:12

so this judge needs to recuse

7:14

herself.

7:15

Now we've

7:17

got we've gotten the government's opposition which

7:19

is a really

7:20

well-written piece of work here

7:23

if you if you haven't read it

7:25

and they could because they have a case citation

7:28

that I didn't I didn't even think of this it didn't even

7:30

dawn on me and I you know I hadn't seen this

7:32

anywhere else until Jack Smith brought it up

7:35

but it fits this case perfectly

7:37

it's Watergate.

7:39

Yeah Watergate

7:41

defendants tried to recuse

7:43

Judge Sarrica

7:45

because in an earlier Watergate

7:47

case that judge expressed

7:49

the belief that the criminal liability extended

7:52

beyond the boots on the ground the

7:54

seven people charged. That's right. Exactly

7:57

the same scenario like the burglars

8:00

were getting charged, but the head,

8:02

the Haldeman and everybody at

8:04

the top there, Nixon, they weren't getting charged.

8:08

And it's the exact same thing Trump is alleging here

8:10

in the Watergate case. The appellate court

8:12

said, quote, the disabling prejudice

8:15

necessary for recusal

8:17

cannot be extracted from dignified

8:20

though persistent judicial efforts to

8:23

bring everyone responsible for Watergate

8:25

to book. So it's

8:28

just a perfect example, a citation

8:31

here.

8:32

Yeah, I mean, how great is it to

8:34

have an analogous case

8:36

that's also about that also touches

8:39

on presidential malfeasance. I mean,

8:41

it's they couldn't

8:44

have written that one in a Hollywood script any

8:46

closer to what we

8:48

have to what we're dealing with in reality here.

8:51

Yeah, totally. And the government went

8:53

on to say, quote, because the defendant's motion

8:56

fails to establish any bias

8:58

by the court,

8:59

much less the deep seated antagonism

9:01

required for recusal, the court has a duty

9:03

to continue to oversee this proceeding. The defendant's

9:05

motion should be denied. And

9:08

he reminds us the Jack Smith of

9:10

the judge in the Flynn case.

9:12

Remember that judge who said Flynn

9:15

sold out his country, pointed to the flag

9:17

behind him? Yeah. And

9:19

he even said, has anybody looked into treason for

9:22

this guy? Like he said,

9:24

I'm not hiding my disdain and disgust for

9:26

this criminal offense to Flynn.

9:28

And the district court determined those statements

9:30

didn't meet the standard for recusal either because Flynn

9:33

was like, this guy hates me. Yeah.

9:36

You know, so I mean, really great

9:39

brief by the government here. And

9:42

they spent a lot of time talking about one thing

9:44

that I know my colleagues and I who

9:47

chat about this stuff on television, we

9:50

all really picked up on early

9:52

on when Trump's motion was initially filed.

9:55

And that is that the statements

9:57

that judges make in the context of the

9:59

court, I think context of a trial and particularly

10:02

during sentencing, it's almost impossible

10:05

to base a demand for recusal

10:09

on those statements. And the reason

10:11

is that it is the function

10:13

of a judge to listen to the

10:15

facts and the law of a case and once

10:19

you know that either if when someone's

10:21

been convicted either by the judge or by the jury

10:23

in the sentencing phase

10:26

the judge's job is to

10:28

make their opinion clear. Like

10:31

this isn't like someone

10:33

who has a personal

10:36

bias or antagonism against

10:39

a defendant that's now in front of them based

10:41

on some you know personal thing that

10:44

happened outside of court. You're talking

10:46

about holding judges to

10:48

some sort of recusal standard

10:50

for

10:51

the opinions they articulate during

10:54

the phase of a case that requires the

10:56

judge's opinion. I mean, it's ridiculous. It would

10:58

bring this part of the judicial

11:00

system to a halt, right? It would it

11:02

would cast havoc into the

11:05

ability to have judges preside over

11:07

cases.

11:08

Yeah, it would be like putting in the Starbucks

11:10

employee

11:10

handbook that it is you you you

11:13

will be fired if you make coffee. Yeah,

11:15

yeah, basically the function of

11:17

the judge is to listen,

11:20

consider, and then pronounce

11:22

their opinion on these issues. So in

11:26

that context it can't possibly be

11:28

held as evidence of bias.

11:30

The sort of thing that judges recuse over

11:32

pretty standardly, once

11:35

they get assigned a case they then look

11:37

at their at the parties and

11:39

if they have some sort of interest,

11:43

either a financial interest, a business interest, or

11:45

even a social relationship with

11:47

one of the parties outside of court,

11:50

then often a judge at the very outset

11:52

of their assignment to the case will

11:54

recuse and that throws the case

11:56

back into you know onto the assignment wheel.

12:00

It's really, it very rarely ever happens

12:03

midway through the case and really

12:06

never on grounds like this.

12:08

Yeah, that's another thing too. They didn't bring

12:10

this up before. It's

12:12

only just now and oddly when we're going to talk

12:14

about this potential narrowly tailored

12:17

gag order that might

12:19

be decided upon not after you

12:21

set the date for the trial.

12:27

And these two

12:29

examples, the only two examples that they cited

12:32

were cases in which the defendant was

12:35

trying to ask for a lighter sentence

12:37

because it was Trump's fault they were at the Capitol.

12:41

So in sentencing, she has to acknowledge

12:45

and either disregard that

12:48

ask or she has to... Yeah,

12:51

she's got to address it. They brought

12:53

it up. They're saying, no, it's not fair.

12:56

I'm not as guilty as

12:58

these people who are higher up the food chain

13:00

and therefore you shouldn't sentence me

13:03

so harshly. And

13:06

it's a argument that many, many

13:08

J6 defendants have brought up on sentencing.

13:10

It doesn't work. The system

13:12

doesn't work that way. You get sentenced based

13:15

on what you did and the facts and

13:17

circumstances around that conviction. But

13:20

yeah, of course she had to reference

13:23

those arguments. She has to show that she's

13:25

considered them and is dismissing

13:28

them or crediting them or what have

13:30

you. Yeah. And she even

13:33

says, when she says to Mr. Palmer, you make a good

13:35

point.

13:36

It's one that's been made before. The people who made

13:38

you do this, quote unquote, have not

13:40

been charged. She goes on to say, that

13:43

is not this court's position. I

13:45

don't charge anybody. I don't negotiate

13:48

plea officers. I don't make charging

13:50

decisions. I sentence people who have pleaded

13:52

guilty or have been convicted. The issue of

13:54

who has or has not been charged is

13:57

not before me. I don't have any

13:59

influence on that. I have my opinions, but they

14:01

are not relevant. She even says that.

14:04

So these are just two not

14:06

very good examples.

14:07

But I love that the government

14:09

brought in that Watergate case,

14:12

because it is exactly the

14:14

same thing. Do you know? I mean,

14:16

I was like, wow, that is... I

14:19

didn't know historically that there

14:22

were people who were arguing to get that judge recused

14:26

because of his statements in the burglary stuff.

14:28

So

14:28

I was just blown away by that. Yeah.

14:32

Once again, Watergate emerges as the kind

14:34

of ghost over all

14:36

of these Trump lawsuits. We've seen references

14:39

to Watergate in the executive

14:41

privilege battles, US v Nixon, and all

14:44

those famous kind of Watergate associated

14:47

cases. Most of them

14:49

have provided a basis for

14:52

courts to go against Trump's

14:54

motions and efforts in a lot of this litigation. But

14:57

anyway, I'm sure that's not the last we'll see of it.

14:59

I see a lot of US v Nixon, US v

15:01

Haldeman, and I see a lot of

15:04

Mazar's.

15:05

They referenced the Mazar's case quite

15:07

a bit. So that was important

15:08

that they actually finally ended up getting that pushed

15:10

through. All right. We have a lot

15:12

more to talk about. We have to... I want to really like

15:14

dive into this motion

15:16

to narrowly tailor pretrial

15:20

extrajudicial statements

15:21

by Trump. Some might call it

15:23

a gag order. We'll talk about that

15:26

after this break. Stick around. We'll

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17:05

Okay, we're back and now

17:08

it's time for don't call it a gag order.

17:10

Okay, this one's

17:12

a little...

17:15

There's this one's a little bit complicated.

17:17

So the government had filed

17:20

a motion

17:22

and then

17:24

requested to file a redacted copy

17:26

of that motion on the public

17:29

docket. Okay, so you

17:31

would have a unredacted original conversion

17:33

under seal and then a redacted

17:35

version that the public could see.

17:38

And the reason for that kind of dual

17:40

copy was because DOJ wanted

17:42

to redact certain names and witness

17:45

testimony considered to be sensitive under

17:48

the protective order. You remember the protective order

17:50

we talked about in this case a couple weeks ago. Okay,

17:53

so of course the Trump team

17:55

opposed the redactions

17:58

and DOJ's redact... motion.

18:01

Judge Chutkin ultimately granted

18:03

the DOJ's request and

18:07

ordered that the redacted motion be

18:09

filed on a public document and essentially

18:12

released by the court. So what

18:14

is this motion? People

18:16

are referring to it as a gag

18:18

order. It's not actually a gag

18:21

order. It's a motion by the government to

18:24

ensure that extra judicial statements,

18:27

so things that Trump and others say

18:29

outside of court, don't prejudice

18:32

the proceedings.

18:34

I love that the way

18:35

they refer to it as pretrial extrajudicial

18:38

statements. That's his bullshit

18:40

on truth social

18:42

is what it is. It's like referring

18:44

to my, you know, going

18:47

out to parties as extracurricular

18:49

activities. Yeah, this

18:52

is pretrial extrajudicial

18:54

statements, aka

18:57

anger fueled late night,

18:59

all caps rants on truth social.

19:02

That's basically what we're talking about

19:04

here. And you know,

19:06

you get this sense in the motion that

19:09

DOJ is still being very

19:12

careful. Yes, there's something they're trying

19:14

to accomplish here. And essentially what they're

19:16

trying to accomplish is making sure that A

19:18

witnesses and people involved in the proceeding don't

19:21

get intimidated or bullied and B

19:24

that these statements and these actions

19:27

like polling and things like

19:29

that that the Trump team is doing don't prejudice

19:31

the jury pool before we even get

19:33

an opportunity to select

19:36

a jury. So I get

19:39

the sense, I don't know if you got this as well, that

19:41

doing everything they can to avoid

19:43

something that looks like a gag order

19:46

because this is basically like a

19:48

step in that direction. But I don't

19:50

think anybody's ready to go all the way.

19:53

Yeah, but I'm confused by

19:56

what makes it not a full on gag order

19:59

motion. I mean, it's You know, obviously, there's

20:01

no order yet. The judge hasn't ruled

20:03

that I've seen on the docket since I last looked

20:06

on whether or not to restrict his pretrial

20:09

extrajudicial comments. But

20:12

what is it about this that makes it not

20:14

a request for a gag order? Because

20:17

I mean,

20:18

they're going to, I mean, Jack

20:21

Smith wants to stop him from

20:23

making these types of statements. It's

20:25

narrowly tailored, but that seems like

20:28

a gag order.

20:29

It's kind of like

20:32

protective order 2.0 or

20:34

gag order minus one

20:37

point. You know what I mean? Like it's

20:39

about halfway between a protective order and

20:41

a full on gag order. Usually when you say gag

20:43

order, it's the court

20:46

ordering a party or a

20:48

defendant. You cannot

20:50

discuss this legal proceeding in

20:53

public or with anyone else, period. It's kind

20:55

of like the Roger Stone thing, right?

20:58

Stone's comments and the

21:00

photograph with the crosshair, the rifle crosshairs

21:03

over Judge Amy Berman Jackson were

21:05

so over the line. And she had already admonished

21:08

him a couple of times about his inflammatory statements.

21:11

That was so over the line and

21:13

such a clear exhortation of violence

21:16

that she said, okay, enough.

21:18

You can't say anything about this proceeding

21:21

in public anymore. It's a pretty extreme

21:23

step for the court to take because it really

21:25

is, you know, by

21:27

definition it interferes with your exercise

21:30

of your First Amendment rights. So you're

21:32

really only doing it in a case where the

21:35

exercise of those First Amendment rights to

21:38

date have been like beyond

21:40

the scope of your First Amendment right. You're

21:42

actually, you know, provoking

21:45

violence, putting people in danger. And

21:47

that's of course not First Amendment protected

21:49

speech.

21:51

Yeah. And that's what they argue here pretty well.

21:53

I mean, they tell you what these are redacted names, but you

21:55

can obviously tell who some of these folks are.

21:58

There was a There's a reference

22:00

to, I believe, Rusty Bowers who had his home

22:04

address and his family's information

22:07

put on the internet and they

22:09

had death threats. There's a reference

22:11

to Ruby Freeman and Shaye Moss in

22:15

here. Their names are redacted. And

22:17

again, Trump didn't want them redacted. He

22:20

wanted those names to be public. And I

22:22

guarantee you, it's for one reason and one reason

22:24

only, it isn't free speech. It's

22:27

to continue to intimidate and harass these

22:29

people. Yeah. So essentially their

22:31

opposition to the government's

22:33

request to file

22:36

this in a redacted manner was

22:39

an example of exactly what

22:41

the government is trying to stop with

22:43

the motion itself, right? The

22:46

motion is designed to put some

22:48

sort of obstruction in

22:50

between Trump and his efforts to intimidate

22:52

witnesses. And

22:54

so in opposing their request

22:57

to redact it, he wants the

22:59

names out there because he

23:01

wants those people intimidated. It's

23:05

really, again, to me from

23:07

a legal strategy perspective, I

23:09

feel like this team is doing everything they

23:12

can possibly do to provoke

23:14

this judge. I'm not sure what the end game

23:17

is there. I don't see how that works well

23:19

for them. But

23:21

maybe it's just an effort to continue to build this narrative

23:24

of persecution and unfairness

23:26

and everything.

23:27

Yeah, that's all it is, I think. And

23:30

the government specifically asked for two things

23:32

here, like you said, to enter a narrowly

23:34

tailored order pursuant to local criminal

23:36

rule 57.7C that restricts certain prejudicial

23:41

extrajudicial statements.

23:43

Not all. So that's what makes this not

23:45

a full on gag order request.

23:47

And to enter an order through which the

23:49

court can ensure that if either party conducts

23:52

a jury study involving contact with

23:54

the citizens of the district, the jury

23:56

study is conducted in a way that will

23:59

not prejudice.

23:59

the Veneré which

24:02

is Latin for come which is the process

24:04

by which you call a jury.

24:06

So I was there in the

24:08

courtroom for that discussion at the tail end

24:11

when she was about to set the trial date for

24:13

March in 2024.

24:15

They said because

24:17

and this was a concern that the DOJ brought up

24:21

Molly Gaston she said hey if

24:24

they're going to do polling if they're going to poll

24:26

this jury here in DC the potential

24:28

jury we would

24:30

like the court to approve that

24:32

those polling questions because we have

24:35

reason to believe that those questions

24:38

the way that they are going to be worded

24:40

will prejudice the jury pool. And

24:44

so the judge was like we'll cross that bridge when we come to

24:46

it and so here it is in writing they're saying please

24:48

put an order in that they can't just

24:50

go out and start talking to the potential

24:53

jurors without clearing it with

24:55

you and

24:55

us too, ours

24:57

too. You can look at ours too. This

25:00

is a mutual thing.

25:01

And

25:02

that's the caution I was

25:04

talking about before. Like I feel like DOJ is doing

25:06

everything they can to like get

25:09

done what they need to get done but do

25:11

it in the least intrusive way possible. So

25:13

that's saying you can't poll the jury. And

25:16

we want an order prohibiting the defendant

25:18

from polling the public.

25:21

They're just saying if they're going to poll the public

25:24

you should look at the questions first that

25:26

gives everyone a chance to argue about

25:29

them and the judge to weigh in and

25:31

say what's proper and improper and

25:33

they're willing to submit their own polling

25:35

efforts to that to that same process. So

25:38

it's kind of hard to say what they're asking for

25:41

is unfair. It's fundamentally

25:43

equal on both sides. It

25:45

would be interesting to see how the judge comes down on

25:47

this. I know she was kind of in

25:49

the beginning sort of saying that she

25:53

wasn't going to be considering that

25:54

kind of you know she indicated

25:57

that she would rather have the trial sooner.

25:59

than issue a gag order. So

26:02

we'll see what ends up happening here. But

26:05

they did say, the government

26:08

said that put simply those

26:10

involved in the criminal justice process who

26:12

read and hear Trump's disparaging

26:15

and inflammatory messages from whether

26:17

it's court personnel, prosecutors, witnesses,

26:20

and potential jurors, they may

26:22

reasonably fear that they could be

26:24

the next targets of the defendant's attacks.

26:27

And they even name a couple of potential probable

26:29

witnesses that he has already gone after

26:32

including Bill Barr

26:33

and Mike Pence. So we'll see where

26:35

she comes down on this.

26:37

I don't know. This one's up in the air for me.

26:40

It is. And I'm getting a lot of questions

26:42

about like, well, if she grants the

26:44

government's motion and puts

26:46

in place some sort of limited order, what's next?

26:49

Like, A, do you think Trump will

26:51

violate it? And B, what happens to him if he

26:53

does? The answer to A is definitely

26:56

bet your house, bet your mortgage, bet every

26:58

dollar you ever had. This

27:01

guy has never met a line that he didn't cross.

27:03

So yeah, he'll, I'm

27:06

sure, draw the government's ire if

27:08

there's an order in place. So what happens

27:10

to him? Well, with

27:13

an official order, an articulated

27:15

order on the record, which we don't have right

27:17

now, she made some comments at his arraignment

27:20

to try to encourage him to

27:23

rein himself in his comments in a little bit.

27:25

But that's less than

27:28

what the government has asked for. What the

27:30

government's asked for is an actual specific

27:32

order on the record. And if he violates that

27:34

court order, there's all kinds of things

27:36

she could do. She could

27:39

impose sanctions against him and his lawyers. She

27:42

could hold him in contempt. Or

27:46

she could impose a gag order along

27:48

the lines of what we saw in the Stone case and

27:52

prohibit him from making any

27:54

comments about the case. I

27:57

guarantee you that will get appealed

27:59

if it goes. And if we get there, goes

28:02

in that direction, that would get appealed.

28:04

That'd become a Supreme Court issue, simply

28:06

because, you know, anything you do

28:08

to limit his speech while

28:10

he's running for public office is

28:13

going to be seen as unbelievably

28:15

sensitive and potentially an incursion

28:18

in his First Amendment rights. So yeah,

28:20

this is not the last we'll hear of this

28:22

thing. I think she'll sign it. I think she'll

28:24

put the order in place, but that is really just going

28:27

to tee up Battle Royal.

28:29

Yeah, and I think one

28:31

of the things that one of my takeaways

28:33

is, much like, you know, Andy, you and I have talked

28:35

a couple of times about how flabbergasted

28:38

we were, a jaws agape

28:39

that Robert Mueller went to paper

28:42

and he wrote a letter with his, you know, saying

28:44

with his disagreement

28:46

with the way that Bill Barr characterized

28:49

his findings in the Mueller investigation.

28:52

I wasn't expecting anybody,

28:56

given the DOJ, like, not asking for

28:58

pretrial or bail conditions, not

29:00

asking for anything, just being like, and having

29:02

the judge have to say, like, hey, maybe you should

29:04

give me a list of witnesses that he's not allowed to talk

29:06

to. And the DOJ is like, yeah, okay, cool idea. I

29:11

didn't see this coming. I didn't think that they would be asking

29:13

for any kind of restriction on his speech. So

29:16

I thought, like, wow, all right, he's not messing

29:18

around the special counsel. He

29:22

truly believes this is detrimental

29:25

to the case. It is dangerous. It will

29:27

chill witnesses. It could

29:29

taint the jury pool. I

29:32

think that this is a sign that he went to paper

29:35

with this,

29:35

that they are very, very concerned.

29:38

Yeah, I think absolutely they

29:40

are, for all the reasons

29:42

you just mentioned. And it's valid

29:45

concerns. However, this

29:48

First Amendment issue is the third

29:50

rail in this case. This is the one that,

29:52

like, nobody wants to talk. That's why I'm surprised. Yeah.

29:55

Yeah, I mean, like, it has become the core, the center

29:57

of Trump's defense writ large. Right.

30:00

He's from day one. He said this they're

30:02

prosecuting me or persecuting me

30:04

because i'm x, you know Based on my

30:07

exercise of my first amendment rights and by saying

30:09

that he's referring to The lies

30:11

that he told about the election Um,

30:13

so this really bran, you know, it almost in some

30:16

way gives credence to trump's

30:18

um

30:19

One of his strongest offenses. Yeah.

30:22

Yeah, so As a prosecutor

30:24

you got to be really really worried about

30:27

the impact that his statements are having To

30:30

go after them in this way Risking

30:33

bolstering his biggest argument, you

30:35

know, so I don't know it's I think she's

30:37

going to do it but Where

30:40

it all goes we'll have to see

30:41

Yeah, we'll see and then a couple other stories

30:44

here that you know before we take a break We

30:47

got a look into the you know, the whole trump

30:49

twitter account battle We knew we knew most

30:51

of what was going on with the back and forth there

30:54

You know that twitter didn't want to hand over

30:56

trump's stuff for the first this is

30:58

the first account in its 17 year

31:00

history Um that it wouldn't

31:03

hand over routine

31:05

Um, you know the subpoenas for information

31:07

for trump's this is specifically for

31:09

trump's twitter account. And so um

31:13

twitter now x but I call

31:15

twitter Appealed and lost

31:17

and

31:17

had to hand over some stuff. So We

31:20

we know basically the the

31:22

long and short of it But the unsealed

31:25

order shows that twitter turned over

31:27

at least 32 direct messages

31:29

From former president donald trump's account

31:31

to special counsel jack smith earlier

31:33

this year. So he has those

31:35

And in seeking the messages prosecutors specifically

31:38

argued that trump posed a

31:40

risk of tampering with evidence

31:43

So the the arguments were

31:45

very strong there much like the

31:47

arguments in this gag order Are

31:50

are very serious and very strong.

31:52

I'm not gag order. Excuse me limited pretrial

31:56

extrajudicial statements

31:57

Uh, call it something catchier

31:58

if you don't want to

31:59

The truth social order to

32:02

call it a gag order It's

32:06

like that right the the

32:09

it's so so important because these

32:11

messages He

32:15

if they he would tamper with the evidence like

32:17

if he knew he would go in

32:20

and

32:21

Delete yeah, basically tamper

32:23

with evidence um tamper

32:26

with witnesses right maybe

32:28

contact people who had sent him these messages.

32:31

I mean there's a The mind

32:33

kind of wanders, but there's no question

32:35

the government invoked All

32:38

the different ways that Trump could potentially harm

32:40

the case if it became known

32:43

to him that they had served this warrant

32:46

on Twitter

32:48

Mm-hmm, and then again And

32:51

They say the former

32:53

president's obstructive efforts continue

32:55

unabated with respect to the investigation

32:57

which in which he has determined to

33:00

pave the legal fees of potential

33:02

witnesses against him and

33:04

Repeatedly disparaged the lead prosecutor

33:06

on his true social platform This is now

33:09

the third or fourth time Jack Smith

33:11

has explicitly mentioned the fact that

33:14

That Donald Trump pays for lawyers

33:16

of his

33:17

witnesses when discussing

33:19

obstruction of justice. I can't

33:23

help but think that he is He's

33:26

conducting just like Mueller did a full-blown

33:29

obstruction of justice investigation alongside

33:32

the other investigations that he's conducting

33:35

for his own specific investigation just

33:37

like Mueller was And

33:39

because it we just we just keep getting reminded

33:41

in these filings over and over again. Just Trump

33:43

is gonna obstruct justice He's paying

33:46

for lawyers for for people That

33:49

that are going to testify against him like it's

33:51

just it seems very obvious to me But we

33:53

you know, we just don't hear too much about that

33:56

particular investigation. We hear about the wire

33:58

fraud the coup the Mar-a-Lago

34:00

documents case, but I think there is a full-throated

34:02

obstruction of justice investigation

34:05

running in parallel with all of these.

34:06

Yeah. Yeah. So procedurally,

34:09

this motion, really fascinating, and

34:12

it's in a great opinion

34:14

that the DC Circuit put out resolving

34:17

this thing. It's a long opinion,

34:19

but only the first 15 pages or so,

34:22

like the first part, you can read it and get the entire

34:24

thing out of it. So Judge Beryl Howell,

34:27

of course, well,

34:29

DOJ in January

34:31

comes in for the search warrant, serves

34:34

it on Twitter, and along

34:36

with the search warrant, they get a nondisclosure order,

34:38

which is the thing that prohibits

34:40

Twitter from telling Trump that they've received

34:43

the search warrant.

34:44

And

34:45

Twitter basically doesn't comply.

34:47

They don't produce the material that's demanded

34:49

under the warrant. And it's not until after they

34:52

blow the deadline that they say, basically,

34:54

well, we're not going to comply because we

34:56

don't agree with the nondisclosure order.

35:00

This ends up in front of Judge Howell, and

35:02

she ultimately finds that, of course,

35:04

they have to comply with the

35:07

search warrant, and she

35:09

finds the $350,000 for the time that they were

35:14

out of compliance. They appeal

35:16

her decision. It ends up in front of the DC

35:18

Circuit Court. The DC

35:21

Circuit essentially smacked,

35:23

it was a full-on smackdown against Twitter.

35:26

They make it clear that

35:28

the search warrant and the nondisclosure order,

35:30

although they're part of the same matter,

35:33

the ability to challenge them is totally separate.

35:36

You can come in and challenge the sufficiency

35:38

of a search warrant, but you basically

35:41

have no standing to challenge

35:43

the court's discretion on deciding

35:45

to issue the nondisclosure order.

35:49

Twitter challenged it on the grounds of First Amendment

35:51

speech. They're saying, basically, telling

35:54

us we can't tell our customer that we

35:57

got legal process on their account is a violation

35:59

of the law. of Twitter's First Amendment

36:01

right to communicate with its customers.

36:04

And the DC circuit basically dispatches

36:07

that as nonsense. So they end

36:09

up upholding all of

36:11

Judge Howell's decisions and actions,

36:13

including the $350,000 fine, which I thought was just awesome. And

36:18

yeah, it's a great piece of work if you have

36:20

a few minutes to read.

36:23

Yeah, agreed. Um,

36:25

I want to talk about, before we go to break,

36:28

um, I wanted to get

36:30

your thoughts,

36:31

Andy, on the Scott

36:34

Perry decision, because, uh, we,

36:37

that was also unsealed this week. It was

36:39

like, it was like the week of unsealings. Um,

36:43

and we know the background, um,

36:46

of this, that, you know, Scott Perry

36:48

did not want his phone

36:50

contents to go to Jack Smith,

36:52

to the Department of Justice, he sued

36:55

to prevent that from happening under the speech

36:57

or debate clause, uh, Judge Beryl

37:00

Howell said, no, speech or debate

37:02

doesn't cover crimes, basically,

37:04

uh, and then, uh,

37:06

ordered it all to be handed over

37:08

and then he appealed and this all

37:10

started to be under seal. So we didn't see any of

37:12

it,

37:13

but we got the unsealing recently

37:16

of the appellate court's decision

37:18

before we only had a minute order that

37:20

was very cryptic. And I had said, and you

37:23

and I talked about this on the last episode,

37:26

Andy, it looks like what

37:28

the judge, what the appellate court has decided

37:30

and it's Raul Henderson and Katz's

37:33

who are all three, um, conservative

37:35

justices or judges. Excuse

37:37

me. Uh, it looked like

37:40

what was happening was that they said,

37:42

well, Scott Perry, you don't win, we

37:44

aren't blocking everything for you because

37:47

speech or debate doesn't cover everything. But

37:50

it seemed like the court was saying that they

37:52

agreed. This is the DC

37:54

circuit court of appeals that they wanted

37:57

to vacate part of Judge

37:59

Howell's. decision and that part being they

38:03

thought and this was just a guess on my part

38:05

that the this

38:08

is so hard to articulate in like

38:10

layman's terms

38:12

but that they

38:14

what they felt was that his communications

38:16

with members of congress in the executive branch leading

38:18

up to his vote certification

38:20

on January 6th and leading up to

38:22

his vote on HR1 which is a

38:25

legislative bill

38:27

should be covered by the speech or debate

38:29

clause whereas Beryl Hal was like yeah

38:32

if it had to do with that but it didn't

38:34

it had to do you can't talk about

38:36

overthrowing the government with the executive branch and

38:38

call it protected under speech or debate. So

38:42

here's what the actual

38:45

order says

38:46

or the yeah the order from the appellate court

38:48

the decision from the appellate court they say

38:50

the district court however incorrectly withheld

38:52

the privilege speech or debate from communications

38:55

between representative Perry and other members about

38:57

the 2020 election certification vote

38:59

and a vote on proposed election reform legislation

39:02

HR1. These are quintessential

39:04

legislative acts entitled

39:05

to the privilege and we vacate the district

39:07

court's judgment with respect to those

39:09

communications

39:10

and remain so sending

39:12

it back down now to judge

39:14

how to say you're wrong try

39:17

again. I disagree

39:19

with this ruling I think it's incorrect

39:22

as a matter of law but I

39:24

don't know if the DOJ is going to appeal their

39:26

decision here to the full

39:29

circuit court

39:30

you know called en banc when you have to the

39:33

to the full panel or if they're going to wait

39:35

and see what judge how

39:36

says I would appeal

39:38

this but we haven't seen a response

39:41

yet.

39:42

Now this is a tough one

39:46

anytime you're in one of these like

39:48

kind of microscopic line drawing

39:50

contests I

39:52

feel like it's not uncommon for

39:55

an appellate court to just go

39:57

with the rule that's easiest

39:59

to

39:59

enforce. And

40:03

typically, the boundary

40:05

of speech and debate cause privilege

40:07

is usually

40:09

defined as like legislative

40:12

business, right? If

40:14

the communications have to do

40:16

with congressional business, then

40:19

it's covered. And so how do you

40:21

figure that out? Well, one of the ways that they look at

40:23

it is if those communications are between

40:26

members of Congress, then there's

40:28

kind of almost a presumption that it's legislative

40:30

business. But okay,

40:33

if it's two guys talking about, you

40:35

know, their golf game, then probably

40:37

not. But if it's two members

40:40

speaking on the floor of the House

40:43

and while voting on a bill,

40:48

then that clearly would be.

40:50

Here, it's

40:52

Barrow Howell obviously took

40:54

the position that, yeah, you were talking

40:56

about congressional

40:58

business, i.e. the certification of the election,

41:01

but you were talking about it in the context

41:03

of overturning it or obstructing it. So I get her

41:05

theory and obviously I support

41:11

that, but I think the

41:13

court is looking at it kind of from a bigger perspective

41:16

of like, how do we support

41:18

her interpretation without

41:24

really carving up the privilege

41:26

in a way that makes it hard to apply. So

41:32

I don't know, I think I understand their

41:35

perspective on it and I don't

41:37

think it's unreasonable for them to say, you

41:39

know what, talking about the certification

41:42

of the election, when you're a member of Congress, talking

41:45

about the certification of the election is part

41:47

of your congressional business. Now you might have been talking about it

41:49

in a bad way or in a way that some

41:51

people don't approve of, but for

41:53

the matter of whether or not your communication is privileged,

41:56

the answer is yes.

41:57

Right and I have to...

41:59

disagree with that

42:02

thought process here from the appellate court because

42:04

if I'm a representative of Congress, I'm Scott

42:06

Perry and I call

42:07

up Trump at the executive branch

42:09

and I say, hey, let's talk about January

42:12

6th

42:12

coming up. I want to plant

42:14

a bomb and destroy the whole thing.

42:16

You can't be like, you

42:18

know, that's my privilege to talk about

42:20

legislative activities coming

42:23

up at January 6th.

42:24

But a lot of people

42:27

can't see the coup as,

42:30

you know, we saw it with the judge

42:32

who sentenced the proud boys.

42:35

He's like, look, I don't see this as this isn't

42:37

terrorism like blowing up a building. But

42:40

it is. Yeah. And people

42:42

aren't able to wrap their heads around this kind of

42:44

terrorism yet and I

42:47

think it's to the detriment

42:48

of the rule of law. But we'll

42:50

see how they end up ruling on this. I share your

42:52

frustration on that. And you

42:54

know, some might say, well, that wouldn't be privileged

42:57

because of crime fraud exception. Well, why

42:59

doesn't that apply here? I

43:01

get it. And it did. And Judge Barrell

43:03

House said it did. You can't have ultra-viro's

43:06

extrajudicial stuff talking,

43:08

you know, about overthrowing the government with the executive

43:10

branch because the speech or debate clause is

43:13

designed to keep the executive branch from messing

43:16

with legislature. So

43:18

anyway, I guess like, think about it like this. Like let's

43:20

say a congressman calls up the White House and is talking

43:23

to the president about the campaign, about the

43:25

president's reelection campaign. That would not be covered,

43:27

right? That's not legislative business political

43:29

campaign. But if the conversation

43:32

was really about, hey, we're going to try to get this

43:35

XYZ bill passed because that will

43:37

be good for your reelection campaign. What

43:39

about that? Is that congressional business or is that

43:41

political campaign? It's kind of both. So these are very

43:44

tough issues. I think

43:46

the court took a somewhat simplistic

43:49

view of it.

43:50

Well they've asked Barrell House

43:52

to now determine on a

43:54

communication by communication

43:56

basis. So they're basically saying

43:58

we don't want buckets. You know,

44:00

we don't want all of it. We don't want half of it.

44:02

We want you to know. Yeah. And so

44:04

now she's going to have to do that work unless and unless

44:06

there's some sort of an appeal here,

44:08

which there might be, but we'll see. All right.

44:10

We're going to head down to Florida, but we have to take a quick break. Stick

44:12

around. We'll be right back.

44:18

Etsy has it, everyone. Yes, it's

44:20

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44:23

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44:25

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44:30

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44:32

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44:34

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44:39

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44:43

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44:45

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44:47

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44:50

we can't wait for you to find what your style

44:52

seeking, home upgrading, gift giving heart desires.

44:55

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44:57

it's serve wear and table linens for entertaining

45:00

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45:02

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45:04

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45:06

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45:09

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45:13

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45:17

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45:19

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45:23

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45:25

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45:28

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45:30

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45:32

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45:35

why they use Ford trucks. Ford

45:37

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45:40

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45:42

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45:44

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45:48

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45:51

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45:54

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45:56

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46:00

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46:02

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46:05

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46:11

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Breeze Collection today.

46:16

Hey

46:21

everybody welcome back it's time to go to Florida.

46:23

I know pack your bags here we go. This

46:27

first thing here is a story

46:29

that came out like pretty much the the night

46:32

after you and I recorded the last episode

46:35

Andy and so this is the oldest piece of

46:37

news that you'll hear in this particular show.

46:39

But I love it because it has such an unlikely

46:41

hero. It came

46:43

from the New York Times and

46:45

it is a what I like to call a

46:47

buried lead which the New York Times

46:49

is very good at this is paragraph 28 through 35

46:51

of a 35 paragraph story. Basically

46:53

this is what happened

47:01

after Deo Lavera went

47:04

to Tavares. Tavares is the IT guy

47:06

who's cooperating who got a new lawyer right

47:09

and so Deo Lavera comes to him in the night

47:11

and says hey the boss

47:14

he wants the stuff deleted he wants the server

47:17

deleted the surveillance footage and he's like first

47:19

of all I can't I don't think I have the

47:22

administrative rights is what he was saying

47:25

to do that and you know

47:27

and he's like well what are we gonna do because

47:29

the boss wants it deleted and then the story

47:31

stops and it's all like a mystery well we've got

47:34

a little insight into

47:36

something that happened after that.

47:37

He contacted

47:39

Calamari Jr.

47:41

who runs security for the Trump

47:44

organization

47:45

and he's like hey

47:47

somebody just asked me to delete surveillance

47:49

footage.

47:51

Calamari was so shocked by

47:53

this he called up the Trump

47:55

org lawyer and I don't know if it's food or fos

47:57

they don't name him but he called up the

47:59

Trump org lawyer

47:59

who issued a blanket statement warning everyone

48:02

in the company to not delete any

48:04

surveillance

48:05

footage.

48:07

I mean, I read at

48:10

this point, I'm reading paragraph 28 and

48:13

I'm like, what?

48:15

Wait, wait, wait a second. Who did that? I

48:17

have to go back and read it three more times. I'm like, you're

48:20

kidding me. The hero of the story

48:22

is Kalamari Jr. I would not have

48:24

picked that. Me

48:25

neither. And then, and

48:28

then that's not all. Next,

48:31

Kalamari actually moved the

48:33

surveillance

48:33

storage servers

48:36

after the room was flooded

48:38

when someone drained the pool. So

48:40

with that, we're back to the pool

48:42

draining. And I can't help

48:44

but believe in my heart of hearts that

48:47

when Deolavare was like, what are we going to do? The boss

48:49

wants it done. I can't do it. Well, what are

48:51

we going to do? We have to delete it. That's what I think

48:53

I truly believe. They

48:56

purposefully drained the pool. It's like

48:59

that was their hail Mary to try to destroy

49:01

this surveillance footage. And

49:03

Kalamari, learning of the draining, is

49:05

like, damn those guys. They're good.

49:07

He's like foiling them at

49:10

every turn. He's like, oh my God, I

49:12

got to move the servers now.

49:13

He moved the servers because

49:16

he thought, he believed,

49:18

as I do,

49:19

that somebody was trying to destroy

49:21

that surveillance footage.

49:23

They put out a warning. I mean, that's just nuts.

49:25

That little thing just made me laugh. Kalamari

49:28

Jr. being like, there are no coincidences.

49:31

I've seen this play before. We got

49:34

to get those servers to high dry ground. Kalamari

49:37

and Potato Dan Quail Save America. There

49:40

you go.

49:41

Something else that happened this week. Judge Eileen

49:44

Cannon finally issued

49:46

her

49:46

protective order. And

49:47

in doing so, she

49:50

didn't explicitly say,

49:52

no, you can't have

49:53

a private skiff at Mar-a-Lago. And no,

49:55

just because you were in the Navy, Mr. Nauta, you can't get to

49:57

look at all that. You don't get to look at all that. the

50:00

classified documents.

50:00

She didn't explicitly say that but her

50:03

order makes that clear. She

50:05

grants the

50:05

protective order and says if you know

50:07

if the president if you want to look at stuff

50:09

you have to do it in a skiff and

50:12

that's that and then you can't disseminate

50:15

there's certain things you won't be able to look at etc.

50:19

and then she said that with

50:22

with regard to Walt

50:25

Nauta, he invoked his Navy service to say

50:28

I can be trusted with classified information and

50:31

prosecutors noted that he's charged with

50:32

obstruction

50:33

and false statements. He doesn't have to know the

50:36

contents of the classified documents and Cannon

50:38

seems to agree granted the government's

50:40

motion for that protective order and found that quote

50:42

the defense may not disclose classified information

50:45

with Nauta except for in very

50:47

limited

50:48

instances. So she

50:51

did she's this is the right thing.

50:53

Yeah, she she got a long time place. It took

50:56

forever though. I mean and it might be because she was trying

50:58

to figure out and learn

50:59

the law. You know, she might have had to

51:02

research. I hope I

51:04

hope that's probably right.

51:06

Boy, it just shows like no sense of urgency

51:09

down there whatsoever, which is a little bit

51:11

frustrating. I really

51:13

feel like Nauta should have argued judge

51:16

I can be trusted with highly classified

51:18

information because I have a lot of experience

51:21

moving it around. Move the boxes in the bathroom

51:23

I move the boxes to the bosses office. I move some

51:26

boxes. The President of the United States trusts

51:28

me to move his stolen classified materials. I moved him

51:30

interstate to Jersey back again.

51:32

You know, look, I've

51:35

been all over the classified documents. But anyway,

51:37

he didn't decide. Have

51:38

we lost any? No, we still

51:40

have them all.

51:41

Not as far as you know, judge.

51:43

So there you

51:46

go. So we'll keep an eye on what's

51:48

going on down in Florida. But there was some movement. So

51:50

that's good. But again, it should

51:53

not have taken two and a half

51:55

months to grant a protective

51:57

order. I'm still waiting to see what she does about these

51:59

Garcia.

51:59

hearings, the conflict

52:00

of interest hearings, and we do have

52:04

some information on that in

52:08

the next segment, but we have to take another

52:10

quick break. So stick around. We'll be right

52:14

back.

52:17

Etsy has it, everyone. Yes, it's

52:19

true. Etsy is where style

52:21

seekers, vintage hunters, longtime renters

52:24

and new homeowners alike go to shop for style,

52:26

home decor and gifts from independent

52:28

sellers. Are you looking for signature

52:31

jackets, handwoven linens and personalized

52:33

jewelry for your wardrobe? Etsy has

52:35

it. Or maybe some stunning artwork, pillows

52:38

and rugs for your home? Etsy has it.

52:40

How about gifts for any occasion, like

52:42

handmade throw blankets, mugs, totes and

52:44

rings? Yep, Etsy has it.

52:47

There's so much to discover, and we can't

52:49

wait for you to find what your style-seeking,

52:51

home-upgrading, gift-giving heart desires.

52:54

Whatever it is you're looking for, whether

52:56

it's surfwear and table linens for entertaining,

52:59

or a handbag and a perfect jacket to make

53:01

sure you're looking like your best self at any given

53:03

moment, this is your invitation to

53:05

find it, because Etsy has it.

53:08

Find home style and gifts for you for

53:10

all budgets and any occasion. Etsy

53:12

has it. Shop Etsy.com.

53:16

Here at Ford, we don't know any

53:18

first responders who only give 90%. Farmers,

53:23

workers who build our towns, roads,

53:26

infrastructure, they don't stop at halfway.

53:29

Good luck finding a small business owner

53:31

who's happy with an 80% effort. That's

53:34

why they use Ford trucks. Ford

53:36

F-Series, 100% assembled

53:39

in America, because we're all in

53:41

on America. Built Ford

53:43

proud. Affordable.

53:47

When it comes to sleep, overheating is a nightmare.

53:50

One way to stay cool? The all-new Tempur-Pedic

53:53

Breeze Collection, available at Ashley. The

53:55

Tempur-Breeze Collection is the ultimate solution

53:58

for hot sleepers. Pairing all-new cooling

54:00

technology that pulls heat away from the body

54:03

with the comfort you expect from Tempur-Pedic. So

54:05

it's cool from the second you lie down all throughout

54:08

the night. Head to your local Ashley store

54:10

to talk to a sleep expert and shop the Tempur-Pedic

54:12

Breeze Collection today.

54:20

All right we're back and we're still down in

54:22

Florida where we also had the Joint

54:25

Discovery Report was filed this week.

54:27

So this is the both parties kind of keeping

54:30

the judge up to speed on how the discovery

54:32

process is going. So what we have

54:35

in summary is the government has provided

54:38

five productions of unclassified discovery

54:42

totaling about 1.2 million

54:44

pages. Now the defendants

54:46

estimate that the

54:48

government has also given more than 3,700 days

54:50

or over 10 years of CCTV footage.

54:58

The government of course their

55:00

estimate is roughly half of that amount. Now

55:03

keep in mind the government also provided

55:06

the defense, hey yeah we have all

55:09

this CCTV footage but we're only

55:11

using the following stuff as

55:14

evidence and narrowed it down to

55:16

a very specific time period.

55:20

So again you know this is a the

55:22

defense are trying to make this look as onerous

55:25

and unworkable as possible

55:27

in a consistent

55:30

with their desire to delay the proceedings

55:32

and stretch this out as long as they possibly

55:34

can. And of course the government's got the opposite goal,

55:36

let's get this thing started.

55:38

And you know to be fair yes the

55:40

government has gone through all of

55:42

these you know 1,500 days or so because

55:46

their estimates about half have

55:49

gone through all this footage and time-stamped

55:51

it for the defense. But if

55:53

I'm a defense

55:54

attorney I'm like I've got to

55:57

hire a bunch of people to watch all this because

56:00

you know, you can trust what

56:02

the government hands though. I personally

56:04

mean looking at an outside person for

56:07

this, yeah, I believe that the government gave

56:09

them the relevant stuff but I would want

56:11

to watch it all

56:13

or at least pay a bunch of people to watch it all and

56:15

he has the resources to do that.

56:17

Absolutely.

56:18

Also, the government anticipates

56:20

making additional productions of classified

56:23

material. On September 13th, they made their first

56:25

production of classified discovery and

56:28

so that has gone

56:30

over. They say some of it may be viewed by counsel

56:32

with interim clearances, some require counsel

56:35

to have their final clearances with additional

56:37

necessary read-ins to various compartments.

56:40

So it's different levels of stuff and

56:43

some of it can't be seen at all yet

56:46

because they don't have the clearances over

56:49

on the defense side. And then they

56:51

said they're also sending over classified

56:54

discovery which will include additional Jenks

56:56

material. What

56:59

is that? What is Jenks material?

57:02

Okay, so when we think about discovery

57:05

which is material that the prosecution

57:07

is required to hand over to the

57:10

defense, you generally divide

57:12

it into two buckets. One of them we

57:14

call Brady and the other one we call Jenks.

57:17

Brady material which is of course the name taken

57:20

from the Supreme Court case that created

57:22

this obligation on the government is

57:25

basically any material that could

57:27

be exculpatory, any material

57:29

that the defendant could use to prove

57:31

their innocence. And

57:34

Jenks material is

57:36

a little bit different. Jenks material is

57:39

any prior statements that

57:41

a witness has made. So

57:44

if the government has in its possession

57:47

prior statement of a witness, they're

57:49

required to turn that over, that

57:51

could have been a statement in it. And maybe they were

57:53

interviewed by the government so the government

57:55

would have like a recording of the interview or

57:58

notes from the agents. that took notes

58:00

when the witness was interviewed, or maybe

58:02

the witness testified in front of the grand jury,

58:05

and so there's an actual transcript of

58:08

the witness making statements in response

58:10

to questions. So all that has

58:12

to be given to the defendant because

58:15

if that witness then testifies a trial,

58:18

the defense counsel can use those statements

58:21

to cross-examine the

58:24

witness and to kind of, you know, make

58:27

points about the witness's lack of consistency

58:30

or lack of credibility or, you know, that

58:33

sort of thing. Okay, so I'm thinking

58:35

of Durham right now, right? Because

58:38

we had,

58:39

what was the FBI

58:41

guy's name? Baker, Jim Baker.

58:43

Baker, Jim Baker, who had given

58:46

inconsistent testimony between the inspector

58:48

general,

58:49

Congress,

58:51

and the grand jury. And so

58:53

those

58:53

witness transcripts would be considered

58:56

Jenks material then. That's right.

58:58

Or even in that case, you'll

59:01

remember former

59:04

FBI assistant director

59:06

of counter-terrorism, Bill Priestap,

59:08

Bill Priestap had a conversation with

59:11

Baker in which Priestap

59:13

took a couple of notes. And

59:15

so Priestap's notes are

59:18

Jenks material because that's a statement

59:21

of Priestap, Priestap is a potential witness.

59:24

Okay, so it's potentially

59:26

exculpatory, but more so

59:28

about

59:28

the potential witnesses in the case

59:31

being able to be impeached.

59:32

That's right. That's right. It all comes

59:35

down to impeachment and that's

59:37

why the defense is entitled to it.

59:40

Cool, well, I didn't know that. All

59:42

right, so that's the joint discovery report. At

59:44

any rate,

59:45

the government is handing everything over like

59:48

immediately as soon as they're able to, as soon as it's ruled

59:50

that they're able to hand stuff over,

59:52

it bam, it goes.

59:54

So they are on the ball. They're trying to keep the pedal

59:56

to the floor, right? They're not gonna be the cause

59:59

of any delay.

1:00:00

Absolutely. And I

1:00:02

mentioned before the break in the last segment

1:00:04

the Garcia hearings, those conflict of interest

1:00:07

hearings, they want them for Stanley Woodward and they

1:00:09

want one for John Irving. And there were

1:00:11

some back

1:00:11

and forth going on with the

1:00:13

John Woodward stuff and some of the sealed filings

1:00:15

have been released. So if you remember, Stanley

1:00:18

Woodward had a hissy fit about Jack

1:00:20

Smith filing that motion for

1:00:22

conflict of interest resolution, saying

1:00:24

he didn't get permission to release

1:00:26

stuff from the sealed hearings before

1:00:28

Judge Boseburg in DC. So

1:00:31

Jack Smith released all of his receipts in

1:00:33

his minute order

1:00:34

so that he had permission. And

1:00:37

we got to look at it in that release, we got

1:00:39

to look at Stanley Woodward's opposition to the

1:00:41

conflict hearing for

1:00:43

him, right? His Garcia

1:00:45

hearing. Something stood out quite

1:00:48

like it jumped off the page at me. The

1:00:51

government seeks to portray a mundane

1:00:53

initial question about the grand

1:00:55

jury process as evidence of a guilty

1:00:58

conscience that simply doesn't

1:01:00

exist. This is Woodward writing in

1:01:02

the government filing. They said, quote,

1:01:05

to various also provided an unusual response

1:01:08

when he was advised at the outset of his testimony

1:01:11

that if a witness testifies that he does not

1:01:13

recall something, when in fact

1:01:15

he does recall it, that

1:01:17

testimony is considered false.

1:01:20

To various then asked,

1:01:22

Hey, how would you know if I can't recall

1:01:25

or if I can't remember that stuff? Unquote.

1:01:29

And that's where Woodward

1:01:32

says, you

1:01:33

think that this makes it sound like

1:01:35

I have a conflict of interest, but it totally doesn't.

1:01:38

He makes some weird lame ass argument. But

1:01:40

this is exactly what happened with Cassidy

1:01:43

Hutchinson. She told the January 6th

1:01:45

committee that she was instructed by

1:01:47

Passantino to

1:01:49

say she didn't recall things that

1:01:51

she actually did recall.

1:01:53

And that is fascinating that now

1:01:55

we have on record two Trump

1:01:58

lawyers potentially telling

1:02:00

their clients to not recall stuff.

1:02:04

Yeah, I mean are you surprised? No,

1:02:07

I'm not but it's in writing and I'm like wow.

1:02:10

Yeah, you can almost imagine like what

1:02:12

the look on

1:02:14

the prosecutor or agents

1:02:16

faces when they... How

1:02:18

do you know what I can't recall? Yeah, it's

1:02:20

a very standard, you know, not

1:02:23

even a warning. It's an advisory that you

1:02:25

give a witness before

1:02:28

or anyone before you start asking them questions

1:02:30

you like listen, you know, if you say you

1:02:32

don't remember but you really do remember then that's

1:02:35

you know that's false. I've

1:02:37

never had someone look at me in

1:02:40

response to that and say how

1:02:42

do you know if I can actually remember

1:02:45

it or not?

1:02:46

Meaning he was told that they don't

1:02:48

know

1:02:49

whether or not he can recall something and

1:02:51

here's the thing that like

1:02:54

cracks me up the most is you

1:02:56

know to have to be sitting there. Woodward

1:02:59

then he argues he's like look that's

1:03:02

a natural question that somebody would

1:03:04

ask about talking

1:03:06

to a grand jury and I mean

1:03:10

now I want to see the prosecutor's faces when they're

1:03:12

reading that. Yeah.

1:03:14

Woodward's

1:03:15

argument is that hey man

1:03:17

he's allowed to ask questions.

1:03:19

Sure, sure he is. Of

1:03:21

course he is but if he said hey

1:03:24

what happens if my lawyer told me to stab

1:03:26

you in the face today

1:03:27

like

1:03:29

hey I'm just asking questions

1:03:30

you know you can't

1:03:32

you gotta look into

1:03:34

that and like I said I think based on the fact

1:03:36

that it's been brought up now multiple times in writing

1:03:38

by Jack Smith that Trump is paying

1:03:40

for these lawyers and that this

1:03:43

particular guy didn't

1:03:45

seek out this lawyer himself he was he

1:03:47

was given the lawyer yeah a signed

1:03:50

a lawyer by another Trump

1:03:52

attorney I wonder who that is. Bora Zepstein

1:03:54

maybe?

1:03:56

That he is investigating

1:03:58

obstruction

1:03:58

of justice.

1:03:59

I mean, how would you know if I can't recall?

1:04:02

I mean, that's... Yeah. Wow.

1:04:05

Even if he's not investigating all this as separate

1:04:07

acts of obstruction of justice, which is possible,

1:04:10

it's clear that this is a major issue that

1:04:12

they are dealing with in the

1:04:14

investigation and prosecution of these

1:04:16

cases.

1:04:17

Having to navigate

1:04:19

these waters populated

1:04:21

by lawyers, predominantly

1:04:24

two lawyers who are defending half

1:04:26

of the defendants

1:04:28

at the behest of the biggest

1:04:32

deep-pocketed defendant is really tough

1:04:34

for them.

1:04:35

And I think they're doing everything they can to push

1:04:37

back against that.

1:04:40

But their hands are tied

1:04:42

to some extent. So far, right,

1:04:44

Tavares, it worked. Got him new counsel.

1:04:48

And that straightened out a bunch of stuff. Who knows? It

1:04:51

could still happen going forward. So as we

1:04:53

get deeper and deeper into the

1:04:55

prosecution, it becomes less likely, I think.

1:04:57

And I do have to say that I really like this kind

1:05:00

of... These are speaking pleadings,

1:05:02

right? This is Jack

1:05:05

Smith telling the public, like, hey, we want

1:05:07

to let you know what's going on. We don't

1:05:09

normally... Everyone's like, they want these trials

1:05:12

televised federally because

1:05:14

the DOJ

1:05:14

will not be coming out of the courtroom

1:05:16

and giving press conferences, but Donald

1:05:18

Trump will.

1:05:19

And so you have this void,

1:05:22

information void, this vacuum where

1:05:24

Trump can fill it with his own conspiracy

1:05:27

theories. But I think that this is the

1:05:29

DOJ and Jack Smith doing their best

1:05:32

to put it out in the public

1:05:34

that this is what's going on. These lawyers

1:05:36

are being paid for by Trump.

1:05:37

They're saying that they can't recall things

1:05:39

when they can. Like, I feel like this is

1:05:41

his only way of letting us know. And

1:05:44

he wanted... Initially, he wanted to file

1:05:46

all this under seal and he

1:05:48

got rejected. So he's like, fine, here.

1:05:52

And he's using this opportunity to tell

1:05:54

his side of the story through these pleadings that he

1:05:56

would normally otherwise just want to file under

1:05:58

seal. So I'm very glad. glad that we're able

1:06:00

to see some of these

1:06:02

things, communicate them to everybody

1:06:04

to get the word out to the larger public to

1:06:07

push back on some of

1:06:08

the disinformation that you're going to hear from the Trump side.

1:06:11

All right. We have a listener question this week,

1:06:13

my friend?

1:06:14

We do. We had a bunch of good

1:06:17

ones. Let's hit on, let's

1:06:19

do two very quickly. All

1:06:22

right. The first one that I'm going to go

1:06:24

to comes to us from Jim F. And

1:06:27

Jim says, I have a question about Kenneth Cheesebrows

1:06:30

trial. If I understand the Georgia law, and

1:06:32

that's a big if, the jury has to

1:06:34

be seated by the end of October. If he

1:06:36

is acquitted and cannot be subjected

1:06:38

to trial on these charges again because of the constitutional

1:06:41

ban on double jeopardy, well, here's

1:06:43

the question. Can he then be called as a witness

1:06:46

and forced to testify against other

1:06:49

defendants? So a couple of things to straighten

1:06:51

out here. Again, the double jeopardy

1:06:54

prohibition only applies within

1:06:56

a sovereign, a distinct

1:06:59

sovereign. So if jeopardy

1:07:01

attaches in his trial, no

1:07:03

matter what the results, he can't

1:07:05

be tried again by Georgia

1:07:08

for the same conduct. He could be

1:07:10

tried again by the federal government,

1:07:12

no matter how his Georgia case plays out, because

1:07:15

it's a separate sovereign. And as

1:07:18

currently an unindicted co-conspirator

1:07:20

or unidentified co-conspirator in the Trump

1:07:23

January 6 case, I think it's very

1:07:25

possible that he will ultimately get charged with

1:07:27

that. So that's one

1:07:29

thing.

1:07:30

Let's say he goes to trial in Georgia and

1:07:32

he's acquitted. Can

1:07:35

he be forced to testify

1:07:38

in Georgia against others? Well, you can always be

1:07:40

called to testify. If

1:07:42

he was called, he would likely claim his

1:07:45

Fifth Amendment right against incrimination

1:07:47

and say he's not going to testify. If

1:07:50

he did that and the prosecution still wanted

1:07:52

him to testify, they could immunize

1:07:54

him. That would put him in a position of either having

1:07:57

to testify or be held in contempt.

1:07:59

But

1:08:00

even if we go through that long road, you're

1:08:02

talking about Cheeseboro here. Yeah, what do you have

1:08:04

at the end of it? He would be a

1:08:07

very uncooperative Hostile

1:08:09

witness to the government. You really don't

1:08:12

want to put someone on to

1:08:14

try to prove your case who

1:08:16

is hostile to your case and Not

1:08:19

cooperative and gonna give you bad testimony.

1:08:22

Maybe claim. He doesn't remember anything So

1:08:25

I think it's unlikely is an unlikely

1:08:27

result, but that would be kind of the mechanics

1:08:29

of it

1:08:30

I think more likely I mean if he doesn't

1:08:33

plead out Cheeseboro

1:08:36

and he goes to trial and he's convicted

1:08:39

Then I would be more willing

1:08:41

to Be be

1:08:43

nice to the federal government Yeah,

1:08:48

because I could be tried I

1:08:50

will be possibly if I'm indicted as

1:08:52

a co-conspirator Which he is that

1:08:54

he just hasn't been indicted yet. I Would

1:08:57

be more inclined to cooperate with

1:08:59

the federal government so I'm not facing two Convictions

1:09:03

and sentences

1:09:04

he could he could it

1:09:06

may you know, these are there's a million

1:09:09

kind of strategy Things

1:09:12

to consider here if he goes to

1:09:14

trial in Georgia and is convicted and

1:09:16

then gets indicted on the federal side and Wants

1:09:19

to cooperate you could argue it's less

1:09:21

likely the government would want him because

1:09:23

now he's already been convicted

1:09:27

So I did that, you know, there's a lot

1:09:29

of ways that that could play out Yeah,

1:09:34

I'm not saying Jack Smith would be like yeah come on board

1:09:36

friend, you know, I don't know but That

1:09:39

would be my my dream would be like, please

1:09:42

don't convict me again. I don't want extra What

1:09:44

do I do to limit my time for

1:09:46

sure? All right. So

1:09:48

next question And

1:09:50

this goes into my blatant shilling

1:09:53

for people to say nice things about us at

1:09:55

the beginning question Yeah,

1:09:58

so how to read this one and this one's coming to

1:10:00

us from David in Brooklyn. And David says,

1:10:02

hail to you, giants on this earth, benefactors

1:10:05

of all mankind, invincible in battle,

1:10:07

paragons of social grace, good looks,

1:10:10

and enticing bodily aromas. I'm

1:10:12

not sure what that means. I have a question

1:10:14

which boils down to am

1:10:17

I, or are we all missing something that might be important?

1:10:20

Basically then he refers to Trump's plans

1:10:23

to seize or gain physical access to

1:10:25

voting machines in multiple states. He

1:10:28

put a lot of time into this, finding

1:10:30

ways to do that, even pushing for the totally

1:10:32

illegal use of U.S. military forces.

1:10:35

So David is basically saying, why?

1:10:37

Why did Trump, why was he so

1:10:39

fixated on possibly seizing

1:10:42

voting machines? I don't know what your opinion

1:10:45

is, AG. For me, it all comes back

1:10:47

to delay. Put yourself back in that moment.

1:10:49

It's the week or two before J-6. They're

1:10:52

just desperately looking for any excuse

1:10:55

to delay the certification of the

1:10:58

vote so that they can throw

1:11:00

the issue to the House and the House

1:11:03

could decide the election for Trump. And

1:11:05

if they seize the voting machines, they could

1:11:07

claim falsely, but

1:11:10

they could claim that they then had evidence

1:11:12

of fraud. And that would have been, you

1:11:15

know, from their perspective, firm

1:11:17

ground to stand on saying we

1:11:19

should delay the certification.

1:11:22

Yeah, no, I agree 100 percent. That's exactly

1:11:24

what it was. They can get the voting machines

1:11:26

in their possession, say that they have looked through

1:11:28

them and they have found voter fraud and they

1:11:30

found that Italian satellites

1:11:33

flipped

1:11:33

votes. Yes. Or whatever,

1:11:35

you know. Or Hugo Chavez was

1:11:38

voting for Biden. He found Venezuela happened

1:11:40

and, you know, the same thing. Yeah,

1:11:42

whatever it is. And then Sidney Powell

1:11:45

is now the we're going

1:11:47

to have to redo this election and whatever.

1:11:50

Marshall, everybody chill out. We're going to find

1:11:52

we're going to get to the bottom of this and Sidney Powell is going to

1:11:54

be in charge of that or whatever. You know,

1:11:56

that that's exactly what they wanted

1:11:58

to do. And they don't have to show.

1:11:59

you what's in those voting machines.

1:12:01

They don't have to show you the data. The

1:12:03

pillow guy tried

1:12:03

to, right? Yeah. It

1:12:06

did his data symposium. And then

1:12:08

the guy who was going through the data that they stole

1:12:11

probably I think from Mesa County at that point in

1:12:13

Colorado.

1:12:14

And the guy got a phone call while he

1:12:16

was at the cyber symposium. He's like, my

1:12:18

lawyer says I gotta go. I have to stop talking.

1:12:21

Okay, bye. He's like, because he's

1:12:23

putting stolen shit up on the screen.

1:12:26

My mom says it's time for dinner. I gotta go home. My

1:12:28

mom's calling me for dinner.

1:12:29

So yeah, that's

1:12:31

exactly, I'm 100% with you on that. He

1:12:34

just wanted the voting machines. It's like just

1:12:37

say there's impropriety and leave

1:12:39

the rest to me.

1:12:40

Exactly. Exactly. It's

1:12:42

all about the delay. It's still about the delay.

1:12:45

You know, here we are in all these cases

1:12:47

and it's foot dragging central.

1:12:49

Yep. And it's going to continue. And

1:12:52

we'll, you know, please send

1:12:54

your questions. We have a link in the show

1:12:56

notes for you to fill out a

1:12:59

little form with your questions. So check

1:13:01

that out and send us whatever

1:13:04

you want to know. I was interesting when

1:13:06

you were reading that first question. I'm like, we don't really cover

1:13:08

Georgia. Oh, I see where

1:13:10

he's going. So anything around

1:13:12

there, brought it back to Jack. All things. Totally

1:13:16

did. Totally

1:13:16

did. All roads lead to Jack. Thank

1:13:18

you so much for your questions. Thanks so much for listening. We appreciate

1:13:21

you. Do you have any final thoughts, Andy?

1:13:22

No. I mean, like every week it's like,

1:13:24

oh my gosh, what's, what's the journey going to

1:13:26

be like from Monday to Friday next week?

1:13:29

Who the heck knows? But we're going to have too much

1:13:31

stuff to talk about in not enough time. So

1:13:33

I look forward to seeing you then.

1:13:35

Yeah. I'll see you then everybody.

1:13:37

I've been Alison Gill. And I'm Andy McCabe.

1:13:39

We'll see you next week.

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