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1:34

Hey, everyone. Welcome to Episode 47 of

1:37

Jack, the podcast about all things

1:40

Special Counsel. It is Sunday, October 22nd.

1:42

I'm Allison Gill.

1:43

And I'm Andy McCabe. Oh

1:45

my gosh, we have so much news

1:48

to get to in this episode. So much,

1:52

including how Sidney Powell and Kenneth

1:55

Cheesebro plea deals.

1:57

Yes, that's right. Plea deals will impact Jack

1:59

Smith's...

1:59

ongoing investigation into

2:02

Trump's unindicted co-conspirators in DC.

2:05

And, and Judge Chutkin has

2:07

granted in part the DOJ's motion

2:10

for a partial don't call it a gag order

2:12

in a DC case, along with

2:15

Jack Smith's response to Donald's

2:17

motion to dismiss that case on the

2:19

grounds that he enjoys absolute

2:22

monarchy. No, I'm sorry, immunity,

2:25

but kind of the same thing. And

2:29

several media outlets have filed a motion now

2:31

AG to try to get the Trump

2:34

DC trial televised,

2:37

and of course DOJ has opposed that.

2:39

Yeah, if that's, and that's not all.

2:41

Okay, that's just a little bit of

2:43

the show. We also have some court

2:45

filings and decisions that will impact Jack Smith's

2:48

DC case, including Merrick Garland

2:50

has filed a notice to appeal the Proud Boys

2:52

sentences. We have a decision

2:55

from the DC Circuit Court of Appeals that affirms

2:57

the Department of Justice's broad definition of

2:59

the word corruptly in the Title 18

3:04

1512 C2 statute.

3:06

And down in Florida we have Walt

3:08

Nada's rescheduled conflict of interest

3:10

hearing for his lawyer Stanley Woodward, who

3:13

has conceded by the

3:14

way that he should be precluded from cross-examining

3:15

Yuseal Tavares. And

3:19

we also have Jack Smith's motion opposing

3:21

Trump's request to delay the proceedings

3:24

in Florida. And Jack

3:26

Smith has filed to withdraw his subpoena

3:29

of Trump's super PAC. And

3:32

Andy,

3:34

we've been talking about that potential fraud

3:36

for a really long time. So I'm, you

3:39

know, we'll talk about that more, but I was a little bit surprised

3:41

by that. Yeah. And I don't know how

3:43

we're all going to get to all of this today, but we're going

3:45

to try. So let's start with the plea

3:47

deals in Fulton County and

3:49

how that will impact Jack

3:51

Smith's investigation.

3:52

You got it. So okay, yesterday

3:55

we learned that Sidney Powell had pled

3:57

guilty in Fulton County. And so before

3:59

we get into that, into the details of that. Let me just back

4:01

up a little bit and

4:04

let's remember what she was actually charged with

4:06

because you have to understand that to appreciate

4:09

the absolute majesty of

4:11

this agreement for her personally. Okay,

4:14

so she was charged in the Fulton County Rico

4:17

case with, of course, count

4:19

one, Rico. So she's charged in that

4:22

count. She is mentioned in by my

4:24

count 12 separate

4:26

acts of or criminal acts

4:29

under that Rico charge. All right, so

4:31

she's all over it. And

4:34

she's charged in six other counts,

4:36

six other individual crimes, including

4:39

conspiracy to commit election fraud,

4:41

computer theft, computer invasion,

4:44

and conspiracy to defraud the

4:46

state. Now, most of those crimes had

4:48

to do with her activity, basically

4:51

directing and coordinating the whole

4:53

effort to steal information

4:56

out of the voting machines in Coffee

4:58

County, Georgia. So she was facing

5:00

some very serious felony charges

5:02

that could, of course, have carried

5:04

a significant risk of

5:07

a lot of time in jail. Now

5:10

she's pled to six misdemeanor

5:12

counts of conspiracy to commit intentional

5:14

interference with performance of election

5:17

duties. Those would

5:19

be if I mean, she's

5:21

not going to go to trial, she's pled guilty, none

5:24

of those counts would would carry

5:26

a sentence of longer than a year because they're all

5:28

misdemeanors, the first time offender,

5:30

no priors. So she's looking

5:33

at a very basically a walk

5:35

on this entire thing. And what

5:37

she has to do in in response

5:41

is first, she's got to be extensively

5:43

proffered by the prosecutors in Fulton

5:46

County, which when I

5:48

was watching the plea yesterday, it sounds like she's already

5:50

done that or at least has done the first part

5:52

of that, that's basically sitting down the prosecutors

5:55

and telling them everything you did. And they're

5:57

not going to just ask about Coffee County, they're going to

6:00

I want to know every single time she ever met with

6:02

Donald Trump, everything he ever said, every

6:04

crazy scheme, every suggestion,

6:06

the whole shebang. She's

6:09

got to go over all that stuff.

6:10

Yeah, and she was at that really

6:12

contentious December

6:14

18th Oval Office meeting

6:16

that ended up in the residence. Yeah, that's

6:18

actually one of the charges, one of the RICO

6:21

acts that's referred to in the

6:23

indictment. So they're really going

6:25

to pick her clean of

6:27

every piece of information she has about that stuff.

6:30

Then she has to testify and quote all

6:32

future proceedings. So that's the

6:35

whatever, how when whatever format

6:37

this case goes to trial, if there are

6:39

spin offs, if other people are charged,

6:41

if there's a superseding indictment, she has to agree

6:44

to be a witness for the prosecution in any

6:46

of those. So

6:49

it's a it's a pretty, she's

6:51

really got to step up and be a

6:53

legitimate cooperator. She can't

6:55

go in and plead the fifth. So in other words,

6:58

if she is put on the stand to testify for

7:00

the prosecution, they ask her question, she can't claim

7:02

Fifth Amendment privilege against, you

7:05

know, inculpating herself because

7:07

she's not actually facing any jeopardy, right?

7:10

To sustain a clean

7:12

invocation of your Fifth Amendment privilege,

7:15

you have to actually be facing jeopardy. She's

7:17

not because the prosecutors have already said they're

7:19

not going to prosecute her beyond these misdemeanors.

7:22

So she can't do that. And the big thing for

7:24

me is how this impacts Jack

7:27

Smith. Okay, so as a

7:29

preliminary matter, the

7:31

state court in Georgia cannot

7:34

require her to cooperate in

7:36

federal court. That's a difference of jurisdiction.

7:39

But as a practical matter, she kind

7:42

of has no other way out. We

7:45

all remember we think she's referred to as one of the

7:47

unindicted co conspirators in Trump's

7:49

DC January 6 case. If

7:54

they were looking to charge her in that case, they

7:57

can certainly do it now. will

8:00

have on record in Fulton County

8:03

through her guilty plea, she's basically

8:05

admitted to participating in

8:07

the conduct that she would likely be indicted for.

8:09

So she can't, she just essentially

8:12

has no alternative but

8:14

to cooperate with federal

8:16

prosecutors if she's charged and

8:19

that's how I think that will go.

8:21

Yeah, let me ask you a question because I, you

8:23

know, she had her in Fulton

8:25

County, she had her felonies reduced to misdemeanors. My

8:29

understanding is after talking to a couple of

8:31

former US attorneys and some folks from

8:33

the, used to work for the DOJ, the feds

8:35

generally don't reduce charges like

8:37

that and so if she,

8:40

if she even had time to call up Jack

8:42

Smith and try to be like,

8:45

I'm pleading guilty down here, can we work a deal out

8:47

up there, I don't think he

8:49

would give her less than a

8:51

felony, you know what I mean? Yeah,

8:54

that's a really good point. I thought it was a

8:56

little bit odd too, maybe this is more of the practice

8:58

in Georgia. It's not how it's done

9:01

on the federal level. Typically in a federal case,

9:03

you charge with a bunch of felonies,

9:05

if you want to cooperate, you typically

9:08

end up having to plead guilty to one

9:10

of those felonies you've already been charged with,

9:12

the other ones go away and then

9:14

the rest of the cooperation deal falls

9:16

into place. In a rare case, they might

9:19

dismiss all of the charges, the

9:21

felonies that they had charged you with and

9:23

then re-indite you on a different

9:26

felony, a slightly less damaging

9:29

felony but you're going to walk away with

9:32

a felony plea and the reason for that

9:34

is if you don't successfully

9:37

cooperate, so if you don't

9:39

tell the prosecutors everything you've done, if

9:41

you lie to them, if you conceal some

9:44

element of your past criminality,

9:46

if you get on the witness stand and don't tell the

9:49

truth, whatever, there's all kinds of ways you can tank

9:51

your cooperation.

9:51

Like Manafort, Flynn.

9:53

Exactly. They can turn

9:55

around and charge you with felonies. The deal collides

9:57

with felonies It's

10:01

no longer, the prosecutors are no longer bound

10:03

by it and they can pursue you on the original

10:05

crimes and add new ones in as well. So

10:08

there's great incentive. You know, if

10:10

you're not going to come on board completely,

10:13

willingly, enthusiastically and do

10:15

everything you can to cooperate successfully, it's

10:17

a really bad idea to cooperate at all.

10:20

Done correctly, you get a massive advantage

10:23

for cooperating. Done incorrectly,

10:25

you hose yourself for good.

10:27

Yeah, and honestly, if I'm Jack Smith and

10:29

I get the call from Sydney Powell's attorneys,

10:32

I'm going to go out of my way and say she's not the best witness.

10:35

Oh my God. For the body. She's

10:37

terrible.

10:38

I mean, I might almost say no, like,

10:41

but you know, I guess you would, I

10:43

would bring her in to see what she's got because maybe

10:46

she's got evidence that I can corroborate

10:48

with a more reliable

10:51

witness like, don't, don't,

10:53

don't, Kenneth Chasbro.

10:54

There you go. What a segue. You

10:57

must be a professional. So

11:00

yeah, so Chasbro today,

11:02

today's news, he pled today, like

11:04

literally,

11:05

I guess, minutes before the trial

11:07

was going to start or something. As

11:10

the potential jurors are lined up outside

11:13

the courthouse, getting ready to come in and fill out

11:15

their jury questionnaire. That's right. So

11:18

he pleads to kind of a similar

11:20

arrangement, although they did make him eat a felony.

11:22

I'm sorry, plead to a felony.

11:25

So he's got that hanging over

11:27

his head. Same thing. He's

11:30

got to cooperate in all future trials in Georgia.

11:32

He has to proffer. He has to provide

11:35

good and truthful testimony. All

11:38

the same things apply in the same kind

11:41

of implications for, we

11:43

also thought he is an unindicted co-conspirator

11:46

in the DC case. So the same

11:48

rules apply for him. In

11:51

terms of witness value, like she's got

11:53

so many problems. She has said so many

11:55

just bat, you

11:57

know what crazy things.

12:00

in public she's made, she

12:02

just was out there lying repeatedly

12:05

about the election, about election

12:07

fraud, making all kinds of lunatic

12:10

accusations against whoever, Hugo

12:12

Chavez, Dominion voting, line them

12:14

up. So generally

12:16

tough witness to use on the stand because you

12:18

get a lot of impeachable material there.

12:21

She lost 60 plus cases

12:22

by lying in her pleadings and

12:27

being sanctioned in Michigan.

12:29

Yeah, no,

12:31

she's. That's all bad. But

12:33

like you said, look, every. But Kenneth. Yeah,

12:35

every cooperator has some damage

12:38

because look, they were charged with a crime. That's something

12:40

you gotta address head on. Good

12:43

prosecutors know how to rehabilitate

12:45

witnesses, how to bring that stuff out on direct

12:47

examination and how to let the

12:49

jury know like, hey, there's a cooperation deal

12:52

in place here that penalizes the witness

12:54

if they lie or do something wrong. So

12:57

there's all kinds of ways to rehabilitate them. Is

13:00

she beyond rehabilitation? Maybe,

13:02

there is a limit.

13:04

Chezbro,

13:05

way less known, with

13:07

way less public, has far

13:10

fewer, I think, statements on the record.

13:12

I don't remember him making a lot of public statements.

13:15

Of course, now his emails and

13:17

communications about the stuff

13:19

they were doing have become public. So

13:22

he would have to kind of face a little

13:25

bit of reckoning with those, but he

13:27

would be a very good witness. And

13:30

the thing that really amazes me about this,

13:33

everybody's now talking about who's gonna flip next.

13:35

There will be more people who flip and become

13:38

cooperators and government witnesses. To

13:41

figure out the real implications of this, what

13:44

you have to do is look at the people who have flipped

13:47

and then try to think, who

13:50

do they have the most information,

13:52

likely have the most information about? When

13:54

you think about Chezbro, the

13:57

guy who comes to mind is John Eastman.

14:00

Yeah, right cheese roe and Eastman were

14:02

like linked at the hip on the false

14:05

Fake electors scheme chesbro kind

14:07

of dreamed it up, you know Eastman

14:10

gave him the thumbs up. Let's do it Let's do it all

14:12

kinds of communications there so

14:15

cheese bros flip has

14:18

got to have ruined Eastman's day today

14:20

his calculation of how he's gonna defend

14:22

himself in the federal case or

14:25

the Georgia case is Very

14:27

different today than it was yesterday

14:29

Yeah, and not not only because

14:31

of this, you know, the obvious reasons

14:34

but now that there's not going to be any speedy trial

14:37

That's right Eastman's not

14:39

going to get to see what the prosecution

14:41

has nobody None

14:43

of the remaining co-defendants of which there

14:45

are 16 will get to see what

14:47

the prosecution puts on as

14:50

Their case so that you know Then because

14:52

that was kind of one of the benefits of

14:54

having some people go first was

14:56

Trump and Eastman and everybody else could sit back and see

14:58

what the prosecution had what they had up their sleeve

15:00

and then prepare they would have more

15:04

Ability or a you know better preparation

15:06

for their defense, right? If you know

15:09

exactly what the prosecution is gonna

15:10

be absolutely right This is you know, and you're

15:12

thinking like winners losers winners today howling

15:15

cheese, bro I call them winners because they

15:17

got good deals and are probably not going to jail

15:19

They got a lot of work to do but they got good

15:21

deals Fulton County prosecutors

15:24

big winners here and you know, you gotta give them some credit They

15:26

knew this was gonna happen all along when they only got

15:28

two requests for speedy trial in

15:30

their minds They were thinking those two will

15:33

flip We'll give the cases away to those

15:35

two and then we're done with the speedy trial

15:37

nonsense We still keep our case to only

15:39

having to put it on

15:40

one time

15:41

And you know the early the sooner

15:43

you go the better off you are and I can't help

15:45

but think that Sydney Powell getting her Felonies

15:48

reduced to misdemeanors. Whereas cheese, bro.

15:49

Yeah had to eat a felony. Yeah

15:51

Might be because he wasn't

15:53

for the first to flip and and the next person

15:56

is not gonna get as good of a deal as Cheese,

15:58

bro. I probably had the way that works

16:01

and in the losers column is basically every

16:03

other defendant right they're

16:05

all they just turned up the pressure

16:07

on all them if you're misty Hampton

16:10

misty Hampton misty Hampton you're thinking

16:12

oh no Kathy Latham yeah all

16:15

the all the people involved in that the

16:17

shenanigans in coffee County they're

16:19

gonna have a witness who the witness who was in the

16:22

middle of the whole thing Sidney Powell can now

16:24

sit on the stand and just explain all the bad

16:26

things they did so in

16:28

Fulton County I would say

16:30

that Sydney while Sidney Powell and Kenneth

16:33

Chesbrough won today in Fulton County I

16:35

think they also lost in DC

16:38

because this is bad for them this is bad if

16:40

this has bad implications for them and they aren't

16:43

going to get as good a

16:45

deal no in the federal case

16:47

they've backed their way into a position now

16:49

where they really don't they can't put

16:51

on a credible defense if they're

16:53

charged in DC and

16:56

maybe they get a deal maybe they don't

16:59

but it's they're kind of forced

17:00

into it and they're not gonna get the best that's

17:02

right that's right

17:04

because they kind of have to do it

17:05

and a cooperator you know a witness as

17:08

bad as Powell you're not

17:10

gonna offer them a great deal you're gonna offer

17:12

them a deal that has a lot of pain in it because

17:15

you want to be able

17:15

to I said it yeah he called me up I'd

17:17

be like nah I'm good

17:19

well the only way you can rehabilitate

17:21

her

17:22

is to be able to say to the jury

17:24

she's not getting a walk she's going

17:26

to jail for X number of years

17:29

you know yep so yeah

17:31

it's it's the it's tough it's

17:33

a it's a brutal process and

17:36

when worked effectively by

17:38

prosecutors you

17:41

can really establish

17:43

some very strong incentives to

17:45

get people to cooperate and a lot of those

17:47

folks they just got a a

17:50

much bigger incentive today and

17:52

I also think this helps Jack Smith

17:54

out in the fact that again because there's no speedy

17:56

trial all of that stuff isn't gonna call that evidence

17:59

that that probably a lot of it

18:01

overlaps with Jack

18:03

Smith's charges against Trump

18:06

is not going to come out so they won't have the benefit of

18:09

seeing the case presented

18:11

ahead of trial. And

18:14

speaking to the trial date which is March 4th,

18:17

Judge Chutkin

18:19

has granted in part Jack

18:22

Smith's motion for narrowly limiting his

18:24

extrajudicial pre-trial statements. Don't call

18:26

it a gag order. So I'll

18:28

just let me just read you what

18:31

the official order says. It says, all

18:33

interested parties, all interested parties in this

18:35

matter including the parties and their counsel

18:38

are prohibited from making any public

18:40

statements or directing others to

18:42

make any public statements which has

18:44

to be hard to police but still

18:45

that target one the

18:47

special counsel prosecuting this case or his staff

18:50

to defense counsel or their staff, three

18:52

any of this court's staff or other supporting

18:55

personnel or for any

18:57

reasonably foreseeable witness or

18:59

the substance of their testimony. So

19:02

some of the hypotheticals that came up

19:04

in this hearing were

19:06

pretty

19:06

great. Judge Chutkin

19:09

was like, alright so hypothetical

19:11

what if you wanted to call Bill Barr

19:13

a slimy liar? Would

19:14

you be able to do you think that's appropriate?

19:18

I do. I'm saying

19:20

yes. Put me down as a yes.

19:24

Yeah and so and

19:26

then you know so Trump

19:28

cannot call continue to call Jack Smith a

19:30

thug or deranged or

19:33

on crack or anything else that he said.

19:35

He can't tell his kids to do it.

19:37

Again I don't know how you police that. He can't tell anybody

19:39

to do it. He can't go after court staff.

19:41

I'm not sure if that includes the judge herself

19:45

but he can't go after the court staff. He can't go after the

19:47

families of prosecutors, lawyers, court staff.

19:49

Can't go after witnesses like calling

19:52

Barr a slimy liar or calling

19:54

for the execution of Mark Milley

19:56

or going after Pence. I

19:58

think she very intentionally

20:01

left herself out of the order.

20:03

I think so too. Yeah, I

20:05

think she didn't want it to seem self-protective

20:08

and she probably feels like I'm a judge, I can handle

20:10

myself. So yeah, I

20:13

think it doesn't cover her and that was

20:15

her intent.

20:16

Yeah, I would tend to agree with that. Now

20:19

he can call the president,

20:21

crooked Joe Biden. He can do that. No

20:24

restrictions. He's not a party to this

20:26

case is what they said. And

20:29

no restrictions really after going after

20:31

the people of DC, you know,

20:33

calling it a cesspool,

20:36

crime ridden, whatever, trying to taint the jury

20:38

pool by, you know. And what was funny

20:40

was his argument is like, but I'm saying terrible

20:42

stuff about them. How would that help

20:43

me? Like, all right, fair enough. All right. What

20:47

are you writing for me? And

20:49

she said she'll be making the decisions

20:52

on sanctions sua sponte if he violates the

20:54

gag order, the limited not a gag order, which

20:57

means it's up to her.

20:58

Yeah, she can just impose

21:00

sanctions. It's basically a court's

21:03

ability to act without

21:05

either party making a motion. Right. She

21:07

just do it.

21:08

Now, Donald Trump, of course, has filed

21:10

his notice that he's going to appeal this

21:13

order. And today he asked

21:15

for a stay pending the

21:17

appeal. He wants to continue to call

21:20

Jack Smith a thug and

21:22

call Bill Barr a slimy liar. While

21:25

the appeal is pending, I'm not sure he's going

21:27

to get that, but he has asked the DC court

21:29

and then he said to the DC court, and if you don't give

21:32

me a stay, I'm going to go to the DC

21:33

Circuit Court of Appeals. So that's what he's

21:36

doing. I don't think any of that's going to work

21:38

very well for him, but, you know,

21:40

they haven't really, they've

21:42

pretty much thrown out the theory of catch

21:45

more flies with honey, right? They're just not

21:47

very nice to the judges or the courts

21:49

that they're making constant requests

21:51

to, which is bizarre. But yeah, I don't think

21:54

he'll get the stay, but we'll see. We'll

21:56

see how that goes. All right.

21:57

We have a lot more to get to, but we have to

21:59

take a quick. break so everybody stick

22:01

around we'll be right back.

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23:09

Hi I'm Liz Winstead. I'm Mojie

23:11

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23:13

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23:16

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23:18

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24:02

Welcome back. Okay, we're going to stay

24:04

in DC for the time being and talk about Trump's

24:07

motion to dismiss the case, arguing

24:09

that he enjoys absolute immunity

24:12

for things that he did while president. So that's

24:14

not absolute immunity, meaning not

24:16

just civil side immunity, but

24:19

from criminal liability. So

24:21

this motion could result in an interlocutory

24:24

appeal. As we discussed last week, that

24:26

would mean that it would have to be decided

24:29

before the trial begins. So depending

24:31

on the resolution of this, if Trump loses,

24:34

he can appeal and that might cause some

24:36

delay as that appeal makes its way up the

24:38

system. So during the limited

24:40

gag order hearing, Judge

24:43

Chutkin unequivocally stated that she would

24:45

not move the trial date from

24:48

March 4th. So

24:50

I guess the question is if Trump filed an

24:52

interlocutory appeal, would that be enough? Is

24:55

there enough time, AG, between now

24:58

and March 4th to resolve

25:01

this motion for dismissal

25:04

based on immunity plus any appeals that

25:06

follow? What do you think?

25:08

Yeah, I think probably. I think

25:10

I'm assuming Department of Justice can ask

25:12

for an expedited appeal schedule.

25:14

I think he might be granted that. But

25:17

whether the Supreme Court decides to take

25:19

it up or not is the question. And

25:21

based on this filing, I

25:23

am leaning toward the Supreme Court not

25:27

granting cert on this because it seems

25:30

like settled law. They cited a million

25:32

cases going back to Burr in

25:35

the 1800s.

25:37

Let's talk a little bit about this because it is such

25:39

a strong piece of

25:41

legal work that it

25:43

makes me think that the Supreme Court might not be

25:45

interested.

25:46

Yeah, I tend to agree. So let's

25:48

get right into the meat of it. So DOJ

25:51

this week filed their opposition to

25:53

his motion to dismiss. And

25:55

here's some of the notable

25:58

points they make. Okay, so… They

26:00

point out that defendant Donald Trump

26:02

moves to dismiss the indictment, asking

26:04

the court to afford him absolute immunity

26:07

from criminal prosecution for what he

26:09

expansively claims was official conduct

26:12

during his presidency. They

26:14

go on to say that novel approach

26:16

to immunity would contravene the fundamental

26:18

principle that quote, no man in

26:20

this country is so high that he is

26:22

above the law. And that's they

26:24

take from US versus Lee in 1882.

26:28

So pretty well settled law there.

26:31

Yeah, and I noticed too, they say the novel

26:33

approach to immunity and

26:36

you'll notice they kind of repeat that

26:38

idea like this is brand, this is novel.

26:41

You would be creating

26:43

law here by a massive and

26:46

significant piece of law that

26:48

goes right at the heart of separation

26:50

of powers, the power of the presidency.

26:53

I mean, this is no trifling matter. So

26:56

they go on to say the defendant is not above

26:58

the law. He is subject to the federal criminal

27:00

laws like more than 330 million other Americans,

27:05

including members of Congress, federal judges

27:07

and everyday citizens. None

27:10

of the sources that the defendant points to

27:12

in his motion, the constitution's text

27:14

and structure, history and tradition

27:17

or Supreme Court precedent supports

27:20

the absolute immunity he asks

27:22

the court to create for him.

27:24

And there's your, they're really pounding

27:27

that theme of your creating new

27:29

law here. And

27:31

staking his claim, he purports to

27:34

draw parallel between his fraudulent

27:36

efforts to overturn the results of an election

27:38

that he lost and the likes

27:40

of Abraham Lincoln's Gettysburg address

27:43

and George Washington's farewell address. This

27:47

next sentence is my favorite. These things

27:49

are not alike. It's

27:51

such a nice

27:53

way to put that. It's just like stating

27:55

the obvious, but in a very effective way. Okay.

27:58

So the more apt parallel. the defendant identifies

28:01

is to judges who, like a former

28:03

president, enjoy absolute immunity

28:06

from civil damages liability for

28:08

certain conduct, but who are, quote,

28:10

subject to criminal prosecutions

28:13

as are other citizens.

28:15

Mm-hmm. Yeah. And they

28:17

go on to say that no court has ever

28:20

alluded to the existence of absolute criminal

28:22

immunity for former presidents, and legal

28:25

principles, historical evidence, and policy

28:27

rationales demonstrate that once

28:29

out of office, a former president is subject

28:32

to federal criminal prosecution like other

28:34

citizens, and that is the citation from US

28:36

v. Burr from 1807. The

28:40

defendant's novel request for

28:42

absolute immunity directly conflicts

28:45

with the Constitution's impeachment judgment

28:47

clause. That's a US

28:49

Constitution, Article 1, Section 3, Clause 7,

28:52

which expressly contemplates the criminal

28:54

prosecution of a former president for acts

28:56

committed during and ultimately

28:59

resulting in the president's removal from the presidency.

29:02

The provision ensures, among other things,

29:04

that an officer who has been removed through

29:07

impeachment cannot seek refuge

29:09

in the principles of double jeopardy to

29:11

avoid

29:12

what?

29:13

Criminal prosecution. Yeah.

29:16

I hadn't thought of this. I

29:18

had not thought of the Constitution's

29:21

impeachment clause, especially

29:23

given what Donald Trump said about it during

29:26

his impeachment. Yeah.

29:29

We'll get to that in a second. The defendant, however,

29:31

would turn the impeachment judgment clause on its

29:34

head and have the court read it as a sweeping

29:36

grant of immunity that forbids criminal prosecution

29:39

in the absence of a Senate conviction, which

29:41

among other things would effectively preclude any

29:44

form of accountability for a president who commits

29:46

crimes at the end of his term of office.

29:49

The defendant dismissed this very approach to

29:52

the impeachment judgment clause as

29:54

nonsense and complete canard

29:57

during his second impeachment trial and

29:59

the court should do the same here. Like

30:04

pow, I don't know how much

30:07

more clear you can make it. The impeachment

30:09

clause says that double jeopardy

30:11

doesn't apply to crimes of

30:13

an impeached person committed while in office.

30:16

You cannot say you are absolute immune from criminal

30:18

prosecution because of

30:20

this clause. And you yourself

30:23

Trump said in your second impeachment that

30:25

the impeachment clause that

30:27

his the way you know he's using this

30:30

during his impeachment was nonsense. And

30:32

they're like the court you should agree with that. Yeah

30:35

I couldn't believe that in the motion

30:37

the first time I read it I was like hold on a

30:39

second are they actually saying like you

30:41

can't possibly be prosecuted

30:44

unless you've been convicted during

30:46

impeachment. So therefore

30:49

the failure to convict in an impeachment

30:52

gives you somehow immunity

30:55

from later prosecution. It's

30:57

like reading the Constitution in the

30:59

exact opposite way that it was actually

31:02

written. So I'm glad they went right at

31:04

that. The other thing that really strikes

31:06

me here when I first read the motion

31:08

and we talked about it I think two weeks ago I got

31:12

really caught up in the holy

31:14

cow like this theory is

31:16

antithetical to the the

31:19

actual reason that the founding fathers

31:21

decided we're done with England. Right.

31:25

And that's to the very heart of why

31:27

we became a country at all. And I couldn't

31:29

get past that like big overarching

31:32

theme that if he gets away with this

31:35

we really forever altered

31:38

what our democracy looks like. And

31:41

then after the fact I thought you know I should I

31:43

really got too caught up in that I should have looked thought

31:46

more about you know the comparison

31:49

civil liability criminal liability the

31:51

recent cases that point in the opposite direction

31:53

not perfectly on point but but I was

31:55

kind of glad that this filing

31:57

by DOJ really starts out by

32:00

hammering that message that the

32:02

reason we are here as a country is because we

32:04

didn't want a king. We don't want a

32:06

monarchy and having one person

32:09

be completely immune from civil and

32:12

criminal law that's what you get.

32:15

That's a monarchy essentially.

32:17

And that's why they cite USV

32:20

Lee 1882, USV Burr 1807 and here in the next paragraph

32:22

they cite

32:26

the Federalist

32:26

papers, Federalist 65.

32:27

Being as publius

32:29

in support of the Constitution's adoption, Alexander

32:32

Hamilton explained that an impeachment

32:34

would not terminate the chastisement

32:36

of the offender because quote, after

32:39

having been sentenced to a perpetual

32:41

ostracism from the esteem and confidence

32:43

after being impeached and honors and emoluments

32:46

of his country, he will still be liable

32:48

to prosecution and punishment in the ordinary

32:50

course of law. One of the founding

32:53

principles of this country. That's

32:55

right. They go on to say offering no

32:57

more than a cursory footnote for the claim

33:00

that the absolute civil immunity recognized

33:02

in Fitzgerald, that's the civil

33:04

immunity, should grant Trump comparable

33:07

immunity from criminal prosecution. The

33:10

defendant contends that

33:12

he is permanently immune from criminal liability

33:14

for any conduct that falls within the outer perimeter

33:17

of his official presidential duties, which he maintains

33:19

should be assessed at a high level of abstraction.

33:22

They go on to say that the implications of the defendant's

33:25

unbounded immunity theory are startling.

33:28

It would grant absolute immunity from criminal prosecution

33:31

to a president who accepts a bribe in exchange

33:33

for a lucrative government contract for a

33:35

family member, a president

33:37

who instructs his FBI director to

33:40

plant incriminating evidence on

33:42

a political enemy, a president

33:44

who orders the National Guard to murder his

33:47

most prominent critics, or,

33:49

and I like this kicker at the end, a president

33:52

who sells nuclear secrets to a foreign

33:54

adversary.

33:54

Hold that space. That's

33:56

a nice little twist. I mean,

33:59

yeah.

33:59

And then they get to the even

34:02

if, because you know the DOJ is like, even

34:05

if you don't believe in the founding

34:07

principles of our country, even

34:10

if a former president were entitled to immunity

34:12

from criminal prosecution comparable

34:14

to immunity from civil liability, dismissal

34:17

is still not warranted here. Dismissal

34:19

is at a minimum unwarranted because the defendant

34:22

has no remotely viable

34:24

claim that all of the indictment's

34:26

allegations involve acts within

34:29

the outer perimeter of his official

34:32

responsibility. So even if you throw away our entire constitution,

34:34

you're being

34:36

silly if you think that what he did falls

34:39

within

34:39

his job description. I

34:42

think there's a ray of daylight

34:45

on a kind of technicality

34:50

that would undermine the motion

34:53

as well. And I think it's kind of hinted

34:55

at here. The court is required

34:58

basically on the motion to dismiss to

35:00

basically take the indictment at its face.

35:04

And if you do that, if you

35:06

just accept the facts that are alleged

35:08

in the indictment for the purpose of determining

35:11

the motion to dismiss, there's

35:13

really no way that you can conclude

35:16

that what he did was within the outer

35:18

perimeter of presidential duties. And so

35:20

I think without even getting into

35:22

some of the more basic

35:26

and broad kind of thematic

35:28

issues that we've been talking about, there's

35:30

even, you know, there's some very kind of mechanical

35:33

grounds that an appellate

35:36

court could say, nah, forget it. Nothing's

35:38

true here. Yeah, I think it'll be denied. I'm

35:41

sure the only question

35:42

here is going to be how long it takes. Yeah,

35:44

that's right. Right. Whether the Supreme

35:46

Court hears it, whether they hear arguments, if

35:48

they just shut it down, that's

35:51

really

35:51

the only question here is how long it'll take to

35:53

get through the courts.

35:55

One last little bit of news, by the way, from D.C. NBC

35:58

has filed a 43-page motion seeking to... televised

36:00

Trump's DC trial. They argue

36:02

that in modern history, there were two examples of

36:04

a president testifying in criminal proceedings about

36:07

his presidency, and both ultimately

36:09

were aired on television. Reagan during

36:12

Iran-Contra prosecution, and

36:14

Clinton before the DC grand jury. NBC

36:17

says USAV Trump is even more momentous

36:20

than those. It joins earlier applications

36:22

submitted by the press coalition, but

36:25

comes at it from different angles. Both

36:28

applications were filed per DC rules as

36:31

related miscellaneous actions and then referred

36:33

to Judge Chutkin. So she'll make

36:36

a ruling on that, but we don't have it yet.

36:38

So I just wanted to bring that up.

36:39

Good one. DOJ opposes

36:42

it. Yeah. I

36:44

think that's pretty understandable. I think

36:47

my gut feeling

36:49

here, I don't have anything to base this on, is Chutkin will

36:51

lean in this direction as well. I think they're

36:53

trying to kind of make this as normal as

36:56

they can. It's far from normal

36:58

really, but to kind of invite

37:01

the courts in when that's not typically done

37:03

despite NBC's citing

37:06

some precedent there, I think you're

37:09

creating a hornet's nest of issues

37:11

that Trump will use on appeal

37:14

and screaming and yelling about. I don't know.

37:17

I don't see this happening, but we'll see.

37:19

I mean, I want to televised

37:21

because I want to watch it. Sure. Yeah,

37:23

I'd love to watch it.

37:24

I'm for transparency. I assume the arguments

37:26

against it, at least

37:27

some of them I've heard are as

37:29

it goes on, the jury's going to have to be sequestered

37:31

and not be able to see any of that. It

37:34

could taint the jury,

37:35

like all that, your typical

37:37

arguments that you normally

37:39

hear from Department of Justice about trying things in

37:41

the court of public opinion and possibly

37:44

jeopardizing the fairness of the case. But

37:46

we'll see what ends up happening. Yeah, I don't really think any of

37:48

those are good arguments. I think they should have been

37:50

doing this for years, but the fact

37:53

that they're not doing it broadly and

37:55

as a matter of practice,

37:58

I think they're going to be hard pressed to change

38:00

course in the middle of this case, but

38:03

we'll see.

38:04

Yeah, we'll keep an eye on it for you. All right, we're

38:06

gonna head down to Florida, but first we need to take a quick break. So

38:08

everybody stick around. We'll be right back.

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39:16

The issues of the day

39:18

are really complicated. Everybody

39:21

loves a good hot take, but really understanding

39:24

an issue takes some digging. I'm

39:26

Asha Rangappa. I teach national

39:28

security law at Yale University. I'm

39:31

a former FBI special agent, and

39:33

I'm a legal and national security analyst. And

39:36

I'm Renato Mariotti. I'm a former

39:38

federal prosecutor, a practicing

39:41

lawyer, and a legal analyst. And

39:43

we're here to help you understand topics that

39:45

can't be boiled down to a soundbite or

39:47

a tweet. Join us each week as we

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40:14

Hey, everybody. Welcome back. All right, let's

40:16

head to Florida, begrudgingly. I know you want to.

40:19

Let's start with the conflict of interest hearings.

40:22

We know last week Carlos de

40:24

la Vera waived his conflict of interest and

40:26

the judge, Judge Eileen Cannon, allowed him

40:28

to keep John Irving as his lawyer. But

40:31

in the Walton-Nauta hearing, which happened the same day directly

40:33

after the de la Vera hearing, Judge

40:35

Cannon got upset with the Department of Justice because

40:38

apparently DOJ argued Stanley

40:40

Woodward, Nauta's lawyer, should

40:42

not be able to do any summations during

40:45

trial. And DOJ had not made

40:47

that argument

40:48

in previous briefings. They had only briefed about

40:50

cross-examination.

40:50

And Woodward

40:52

said he was not prepared to argue anything

40:55

but cross-examination. So she

40:57

postponed and asked for additional briefings.

41:00

And the Walton-Nauta Garcia hearing took place

41:02

just this past Friday on October 20th. Now, in

41:05

the meantime, DOJ filed a supplemental

41:08

to their motion for a Garcia hearing. And

41:10

in it, they say, defendant Walton-Nauta's

41:13

attorney Stanley Woodward cannot ethically

41:15

cross-examine former client Trump, employee

41:17

four, that's Yuseal Tavares, who

41:19

will be a significant witness at trial.

41:22

As the government stated in its initial motion for

41:24

a Garcia hearing, filed more than two months

41:26

ago, I love those

41:27

little jabs,

41:28

filed more than two months

41:31

ago, an attorney's cross-examination

41:33

of a current or former client presents a conflict of

41:35

interest. Nor can Mr.

41:37

Woodward otherwise seek to discredit

41:40

Yuseal Tavares at trial, including

41:42

in closing arguments. The

41:44

same ethical considerations similarly

41:46

limit Mr. Woodward's ability to cross-examine

41:49

or otherwise discredit witness

41:51

one, a

41:52

potential government witness who Woodward

41:54

continues to represent.

41:56

After consistently denying the existence

41:58

of conflicts and resisting these ethical

42:01

limitations, Mr. Woodward today

42:04

informed the government for the first time

42:06

that neither he nor any member of his law firm

42:08

will cross examine UCL Taveras

42:11

or witness one at trial on any

42:13

subject and that any cross

42:16

examination will instead be handled by co-counsel.

42:18

Mr. Woodward also appears to recognize

42:20

that he may face ethical limitations

42:23

on his ability to discredit. It's

42:25

amazing how that happens.

42:28

Just called us up today, Judge,

42:31

that he may face ethical limitations on his ability

42:33

to discredit UCL Taveras or witness

42:35

one outside of cross examination including

42:37

during those closing arguments. The whole

42:39

argument we brought up during the last hearing that made y'all

42:41

mad. Which any lawyer engaged

42:43

in this case should have been able to understand that

42:45

that was the point of referencing that closing

42:48

argument but let's I digress

42:50

let's keep moving on.

42:51

Yeah and again an experienced

42:54

jurist

42:57

would have been able to handle

42:59

that. Well yeah. The

43:01

court

43:01

should so inform Nauta and determine

43:04

whether Nauta knowingly and voluntarily waves

43:06

his right to conflict-free counsel despite

43:08

these limitations

43:10

on Mr. Woodward.

43:11

Despite all those limitations, Nauta

43:13

has told the court he wants to keep Woodward

43:15

who Trump is paying for and Judge

43:18

Aileen Cannon let it happen. So

43:21

she's allowing that to

43:22

go forward I guess.

43:24

I mean I don't even know where to begin

43:26

on this. You know we would love to have been a fly

43:28

on the wall in the courtroom when the judge

43:31

had reacted negatively to

43:33

DOJ's reference to cross

43:36

examinations when the thing was originally argued

43:38

because I gotta

43:41

imagine Woodward knew exactly

43:43

what they were talking about but it was

43:45

likely teed up to him by

43:47

the judge in the context of what's

43:50

this reference to cross to closing

43:52

arguments. I didn't hear anything about that you didn't have

43:54

it in your papers. In briefing? Mr. Woodward?

43:57

Mr. Woodward are you ready to talk to

43:59

the question or the issue of closing

44:01

arguments as well? I'm sure Woodward was like,

44:03

no, Judge. Uh,

44:05

no, you know what? You bring

44:07

up a very good point, Judge Kanner.

44:09

I am not prepared. Hmm,

44:11

what a bunch of jerks. I have no briefs

44:14

on that. I have no briefs on at all.

44:16

Please, let us out of here. So

44:19

I think that's probably what happened there,

44:21

because Woodward knows what he's doing and is

44:23

taking advantage when it gets thrown to him

44:26

in the middle of a hearing, which this is at least

44:28

the second time that's happened now.

44:30

He's taking advantage of every opportunity to

44:32

drag things out. Yep.

44:33

So it's, uh, you know, there,

44:36

we got a couple of questions, uh, from

44:38

listeners this week about, about

44:41

Deo Lavera and whether or not his

44:44

waving the conflict. Essentially, that's what you're

44:46

doing. If you say, I want to stay with my lawyer,

44:48

you're waving the conflict. Could

44:50

it possibly have been voluntary and intelligent?

44:52

Did he have a translator in the court

44:55

room because he doesn't speak English

44:57

as a first language and could he even

44:59

really have understood what was going on? Those are all good questions.

45:02

I'm sure he probably had, or was at

45:04

least, uh, offered translate

45:07

translation services. That's very standard

45:09

in federal court. But

45:11

these guys are in a tough spot.

45:13

Nada and, uh, Deo Lavera.

45:16

And I'm not surprised. I know, it doesn't

45:17

seem tough to me, man. I would be like,

45:19

let me talk to another lawyer. And then I would weigh

45:21

my chances, but I am not

45:23

in their shoes. Yeah,

45:24

but think about it. Like it's not

45:26

just a lawyer. It's the ability to pay for a lawyer.

45:29

It's the job you still have. You still

45:31

work for Trump every day. Yeah,

45:33

but it's like, it's not just switching

45:36

lawyers. If they decide to go with a different lawyer,

45:38

they're basically walking away from Trump. So

45:40

they're probably figuring that's it. I'm kicked

45:43

out of the kingdom. I lose my job. I lose

45:45

my income. I lose the support of

45:47

this guy. And you'll get a CNN contract.

45:50

Like, I don't know. Maybe, maybe that's

45:52

the kind of advice I would

45:54

be giving them as a, as

45:56

a public defender. But like, and maybe you're not wrong.

45:59

I mean, that seems to be what's happened to

46:01

Cassidy Hutchinson, right? Yeah, I'm

46:03

not in their shoes. I do not know what it's like to be

46:05

them. But

46:07

if I'm looking, I have an

46:09

example in Yuseal

46:10

Tavares

46:12

and I'm seeing him not in jail.

46:14

Yeah, does he still work there? Do

46:16

we know, does he still work at Mar-a-Lago?

46:18

I think he does still work there, I'm

46:20

not sure. Well, I don't know. I

46:22

think there's a lot weighing on these guys in

46:25

terms of how they think about this thing and they're probably not

46:27

thinking about it from the most sophisticated kind

46:29

of legal experience background.

46:32

So

46:33

it's frustrating, but I'm not totally surprised

46:36

at how this is playing out. Yeah, me neither. All

46:38

right, so what's going on with the SIPA delay though? Well,

46:40

okay, staying in Florida, you're gonna recall

46:43

that Trump filed a motion to delay SIPA

46:45

proceedings and then again, to

46:47

delay the entire trial based on

46:49

his fuzzy math that

46:52

DOJ has been slow walking the discovery

46:54

process. So DOJ filed

46:56

their opposition to that and contended

46:58

that Trump's issues with the SIPA hearings were nothing

47:00

more than pretext to upend the entire

47:03

trial schedule. Now, of course,

47:05

Judge Cannon ended up, what did she do?

47:08

Stay the SIPA calendar,

47:11

hold on, hold on. Okay, stop,

47:13

everyone stop, just stand in place. Don't

47:16

move forward, don't pass code,

47:18

don't do any work. Just let me have

47:20

a minute to catch up. Okay, sorry,

47:22

she stayed the SIPA calendar while she contemplates

47:25

the filings. So since then, DOJ

47:27

has filed its opposition to extend the deadlines,

47:30

which it filed on October 16th and

47:33

the supplemental response to the standing

47:35

discovery order. All right, so

47:38

from DOJ's opposition

47:41

to extend the deadlines they say,

47:44

facing an upcoming deadline for discovery

47:46

requests and motions to compel on

47:48

October 20th, 2023, defendants

47:51

have filed another motion to stay the deadlines

47:53

indefinitely. The government has complied

47:56

and exceeded its discovery obligations

47:58

to date. The defense has demonstrated

48:01

that they are fully equipped to file

48:03

a motion to compel any unclassified

48:05

discovery they seek, which is the

48:08

right way to resolve that problem. And

48:11

the government does not oppose a 10-day

48:13

extension of the deadline to file a motion

48:15

to compel classified discovery, given

48:18

the complications surrounding the defense

48:20

access to classified discovery

48:23

that they have now resolved.

48:26

They go on to say, the defense motion

48:28

misrepresents the record regarding the production

48:30

of classified and unclassified

48:33

discovery, disregards their

48:35

own demonstrated ability to formulate

48:37

requests for additional unclassified

48:39

discovery, and fails to disclose

48:42

the government's position during a conferral

48:45

on this motion, in which the government agreed

48:48

to a brief continuance of the deadline for any

48:50

motions to compel classified discovery. The

48:53

defendant's motion for an indefinite extension

48:55

should be denied. Now,

48:58

due to the unforeseen complications regarding

49:00

the defense's access to some of the classified

49:03

material which have now been resolved, the

49:05

government does not object to an extension until

49:08

October 30 for the defense

49:10

to file motions to compel classified discovery,

49:13

with the defense informing the government by October 20

49:15

if they have additional requests, as the

49:18

defense originally proposed to

49:20

allow time for conferral. So

49:22

what they're saying here is basically,

49:25

we've given you everything. There was a couple

49:27

of logistical issues around classified

49:30

discovery. That's likely a reference

49:32

to defense attorneys not having clearances

49:35

and this argument over where's the

49:37

skiff, where's the location where the stuff

49:39

is actually going to be provided to them? Is

49:42

it going to be in the courthouse? Is it going to be,

49:44

you know, where is it going to be in Florida, that

49:46

sort of stuff? They resolved all

49:48

of that. And

49:50

DOJ is basically saying, if the defense

49:53

has a specific problem with discovery,

49:55

you don't come in and ask

49:57

to delay the trial. You don't come in and try

49:59

to delay the trial. to throw the entire trial

50:01

schedule out the window, you file a motion

50:04

to compel the production of evidence.

50:06

And those motions are heard quickly and

50:08

resolved and the judge can be the

50:10

arbiter of yes, government,

50:12

you have to do this and here's the date you have to get

50:14

it done by or they can just deny the

50:17

motion. So again, you

50:19

have to see this for what it is. This is

50:21

really all just a blatant effort

50:23

to create excuses for delay.

50:25

Agreed. They even go on to say

50:28

we'd like to correct the record

50:32

regarding the timing of classified discovery

50:35

and its status. They say as

50:37

the government informed the defense on October 6th,

50:40

the government produced two classified information

50:42

security officer, that's the CSIO,

50:45

about 2,400 pages of classified discovery.

50:48

The government inquired of the defense on the next

50:50

day, October 7th, when the defense was planning

50:52

next to be in Florida to continue its

50:54

review so that the government could ensure the discovery

50:56

was available. Trump's counsel responded

50:59

that day that they were unsure of their

51:01

travel plans but would keep you posted, will keep you

51:03

posted. And then Trump's

51:06

lawyers responded that same day. They said

51:08

we don't know what our travel plans are. So

51:10

the next day the DOJ is like what are your travel plans?

51:13

They're like oh we're going to be there the October 16th. So

51:16

the government immediately arranged for those documents

51:18

to be available when they were going to be there

51:20

on October 16th. And the CISO informed

51:23

the government and the defense that the

51:25

SCIF and a second Florida location

51:27

have been approved. That would resolve all

51:29

the issues. And he didn't want

51:31

to get there before October 16th anyway. So

51:34

the government arranged for delivery of the remaining

51:36

materials to the SCIF for review. And

51:39

so for the foregoing reasons, we'll

51:41

give you a 10-day extension to file your problems

51:44

with classified discovery but you don't need to

51:46

have this whole thing postponed until after the election

51:49

to do that. And then get this, the

51:51

very next day after they filed that very

51:53

complete and what I consider to

51:55

be clear filing, Judge

51:59

Cannon Put a minute order

52:01

on the docket saying, quote, the parties

52:03

are advised that the production of classified discovery

52:05

is deemed timely upon the placement in an

52:08

accredited facility in the southern district

52:10

of Florida, not another federal

52:12

district. It's the responsibility of the

52:14

Office of Special Counsel to make and carry

52:17

out arrangements to deposit such discovery

52:19

to defense counsel in a district. No, it's

52:21

not. It's the CISO's job. The

52:24

OSC shall update or

52:26

clarify any prior responses to the standard

52:28

discovery order in accordance with this order.

52:31

And then we get a filing

52:33

a couple days later, which was on October 19th,

52:36

which is a basically, see my

52:38

previous email. Like this is what

52:40

this whole order is. Pursuant to this

52:42

court's order October 17th, the

52:45

government, that's the real snotty kind of

52:47

minute order. You're going to do it in Florida.

52:50

You should know. And it's your responsibility. And

52:52

it's not. She's wrong on that. But anyway,

52:54

they go, the Department of Justice says, the government

52:56

has provided four productions of classified discovery

52:59

as described below and in our

53:01

prior filing. First,

53:04

as described in an unclassified

53:06

discovery letter to the defense dated September

53:08

13th, 2023, this

53:11

year, the date of the entry

53:13

of the SIPA Section 3 protective orders, the

53:16

government on that date made available in the defense

53:18

SCIF to defense counsel with

53:21

the necessary security clearances, its

53:23

first classified discovery. Second,

53:25

as described in a September 28th, 2023 letter to the defense,

53:28

on September 26th, a

53:31

second production of classified discovery was delivered

53:34

to the defense SCIF in the

53:36

Southern District of Florida, called

53:39

production two. Third,

53:41

as described in unclassified and classified October

53:44

6th discovery letters to the defense, a third

53:46

production of classified discovery was

53:48

prepared for the defense counsel and delivered

53:50

to the classified information security officer

53:53

in DC on that date in

53:55

response to a defense request to

53:57

make it available by then, as in all

53:59

federal. criminal cases involving classified discovery

54:02

to ensure confidentiality for the defense, the government

54:04

does not have access to the SCIF, your

54:07

defense SCIF. To deliver classified

54:09

discovery to the defense SCIF requires the presence

54:11

of either the CISO or appropriately

54:14

cleared members of your team, the defense

54:16

lawyers. On October

54:19

17th, after the defense informed the government, it

54:21

would be in Florida to receive classified

54:23

discovery. The government provided

54:25

classified discovery production three in person

54:28

to the defense council at the defense SCIF

54:30

in the Southern District of Florida. Fourth,

54:34

in an unclassified October 16th discovery

54:36

letter to the defense, the government informed the defense

54:39

it would provide to it the following day a fourth

54:41

production of classified discovery consisting

54:43

of materials. Although the defense

54:45

SCIF is now approved for the review and discussion

54:48

of all classified discovery, it is not

54:50

yet approved for the storage of certain extremely

54:53

sensitive materials, which the government refers

54:55

to as special measures documents. Some

54:57

of those materials in classified discovery production

55:00

one and classified discovery production three

55:03

included these documents. As

55:05

the government previewed for the defense on

55:08

its October 16th letter, the

55:10

materials were made available yesterday,

55:13

October 18th for the defense's

55:15

review on a read and return basis.

55:18

So we told you on October 16th they would be

55:20

available on

55:20

the 18th and Judge Cannon entered her order

55:23

on the 17th. So

55:26

every single thing

55:28

that she was asking

55:29

for

55:30

had already been done.

55:33

I guess she just didn't read or understand.

55:36

I'm not sure but this is embarrassing

55:40

to her in my opinion for

55:43

the Department of Justice

55:44

to have to come in and say first of all it's

55:46

the CISO's responsibility not the special counsel's

55:49

office. Second of all we did all this. Here's

55:51

when we set it the first time. Here's when we set it the second

55:53

time. Here's when we set it the third time. Here's when it was

55:55

in Florida.

55:59

to be in Florida on that day. It

56:02

is embarrassing,

56:04

in my opinion. Yeah,

56:06

I agree.

56:09

It really shows you why. It

56:11

shows you the significance of having

56:13

a case like this where

56:16

SIPA is really a factor. Not like the DC

56:18

case, or there's some SIPA issues, but it's going

56:21

to be pretty cut and dry. SIPA

56:23

is at the heart of this thing. We're talking about a classified documents

56:25

case, right? A national defense information

56:28

documents case.

56:30

To have it in a district

56:32

where these cases don't normally go, and in

56:34

front of a judge who's never dealt with SIPA before,

56:37

doesn't really understand the rules around this stuff, is

56:39

a real problem for the government. You're

56:41

going to keep running into this. The answer is

56:43

she doesn't know. She's never done this before.

56:46

She's never had a case like this. She doesn't

56:48

know about CISOs. You

56:51

can't just show up at the defense

56:54

gift. Cut yourself in, drop some

56:56

things on the table and walk away. It doesn't work

56:59

that way. It's going

57:01

to be a constant problem. The

57:02

DOJ's brought up, like, hey, we know there's

57:05

a lot of classified in this case, but

57:07

our case in chief is going to be presented

57:10

and proven with the unclassified discovery.

57:12

Could you chill? Yeah.

57:16

Then, what part

57:18

of we are bringing it per the

57:20

defense request to a SCIF in

57:23

the Southern District of Florida, do you not

57:25

understand? Right.

57:27

Like, it's bad. I mean,

57:29

I get it if you don't understand some of the SIPA,

57:32

like, some of the funnel that Brian

57:34

Greer described to us, the order

57:36

of operations for SIPA hearings

57:39

and SIPA sections of that law. Okay,

57:41

maybe, but like, just to

57:44

come out in a minute order and say, you have

57:46

to put this in the Southern District of Florida, not

57:48

in some other jurisdiction. And

57:50

then, to have the DOJ point out to you

57:52

the multiple times where they've said

57:54

that every

57:55

time it was supposed to be

57:57

in the Southern District of Florida, it was. Even

57:59

getting prickly.

59:59

take one more quick break then we're going to come back with

1:00:02

a couple of random stories and some listener questions

1:00:04

so stick around we'll be right back.

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1:02:03

Welcome back. Okay, a few more things to

1:02:05

cover, AG. First up, from

1:02:07

the Washington Post, we learned that special

1:02:09

counsel Jack Smith has withdrawn,

1:02:12

yes, I said, withdrawn a subpoena

1:02:15

seeking records about fundraising

1:02:17

by the political action committee Save America,

1:02:20

which of course is a group that's controlled by former

1:02:22

President Donald Trump and whose activities

1:02:25

related to efforts to block the results

1:02:27

of the 2020 election. I

1:02:30

don't get this. I don't get it at all.

1:02:32

If this is the pack that pays all the

1:02:34

lawyers, this is, I mean, I don't

1:02:38

understand this at all.

1:02:41

Yeah, I mean, it's,

1:02:42

it is, it's a tough one to

1:02:44

kind of wrap your head around, especially when

1:02:47

I don't know, you and I have thought from the beginning that this

1:02:49

would, would provide a particularly fertile

1:02:52

ground for investigative efforts,

1:02:54

all kinds of opportunities to prove

1:02:57

you pursue fraud cases based

1:02:59

on false statements that the pack was using

1:03:01

to raise money, misappropriation

1:03:04

of funds, you know, you taking donors

1:03:06

money, people who are donating to one thing

1:03:09

and using it for something else. So felt

1:03:11

like there was a lot there. The fact

1:03:13

that they had been subpoenaed, you know, there were these little signs

1:03:15

that they were in fact, the pack was

1:03:17

in fact under investigation. So do

1:03:20

we interpret this now as a sign

1:03:22

that they're no longer under investigation,

1:03:24

that that's not going anywhere? I

1:03:27

don't know, I guess we could, but it's also possible

1:03:29

that maybe they just decided

1:03:31

this subpoena wasn't worth the fight.

1:03:35

That the information they were looking

1:03:37

for, maybe they were able to get it through some other

1:03:39

means and

1:03:41

they don't need the subpoena anymore. I'm just, I'm

1:03:44

just trying to think around the corner a little.

1:03:45

The only other thing I could think of is

1:03:48

if, if Jack

1:03:50

Smith himself is not investigating

1:03:52

obstruction into his own investigation.

1:03:59

I don't know why you would do that but maybe he's

1:04:02

handed that off to

1:04:04

a different agency, the

1:04:06

DC US Attorney's Office.

1:04:10

Maybe he's having somebody else

1:04:12

look at obstruction because

1:04:15

if there was some sort

1:04:17

of obstruction of justice with the lawyers being paid

1:04:20

or some sort of with the Cassidy

1:04:22

Hutchinson or the Nauta

1:04:25

Stanley Woodward situation that maybe he's

1:04:27

like was hand that off so I don't want to investigate

1:04:30

obstruction into my own investigation. I

1:04:32

don't know I'm just throwing stuff against the wall

1:04:35

right now because that seemed like a really strong,

1:04:37

not necessarily the obstruction part but

1:04:39

the wire fraud part, defrauding donors seemed

1:04:41

like a real strong argument unless again

1:04:43

he's so third rail about freedom

1:04:46

of speech that

1:04:49

he doesn't want to bring any charges against

1:04:51

anything.

1:04:52

Yeah but it seems like he would finish investigating it

1:04:54

first, right? Do

1:04:56

we know the actual substance of

1:04:58

the subpoena? We knew that they had received one

1:05:01

but I don't remember ever seeing reporting

1:05:03

on the details of the subpoena.

1:05:05

No, it was just documents related

1:05:07

to

1:05:08

fundraising. I mean there's been a lot of public reporting

1:05:11

but of course I

1:05:12

don't think that anybody's actually been

1:05:15

able to see a copy of the subpoena.

1:05:17

So it's possible

1:05:20

that lawyers for the PAC were pushing back

1:05:22

on the subpoena and threatening to file a motion

1:05:24

to quash it. Maybe there

1:05:26

was something wrong with the subpoena, maybe

1:05:29

on its face there was language that was problematic

1:05:32

and they've pulled it back and will now re-file

1:05:35

a new one. So

1:05:37

I think

1:05:38

it's a weird sign but I don't want to prejudge

1:05:40

the existence or non-existence

1:05:42

of an investigation based only on this.

1:05:46

Yeah, yeah that's true. I mean it doesn't mean

1:05:48

he's done with this investigation, doesn't mean he's handed

1:05:50

it off. It would be a – we

1:05:52

don't need this particular subpoena anymore

1:05:54

and we don't want to fight

1:05:56

it without enough evidence. Right, well rather than – yeah, rather

1:05:58

than fighting with you over – We're just going

1:06:00

to pull it. We're going to withdraw it. We're going to come

1:06:02

at you with different language that you can't fight over.

1:06:05

Who knows? Yeah, we got the information

1:06:07

from someone else and maybe they're

1:06:10

trying to sue to block it and

1:06:12

he just doesn't need the headache. You know,

1:06:14

who knows? Who knows?

1:06:16

All right. Remember the Robertson case? Yes. This

1:06:19

was the last case challenging the

1:06:21

Department of Justice's use of Title 18

1:06:23

U.S. Code Section 1512C2

1:06:25

obstructing an official proceeding. This

1:06:27

is a rioter, January 6th, rioter.

1:06:30

The D.C. Circuit Court of Appeals

1:06:31

has sided with the Department of Justice.

1:06:34

This came down

1:06:34

on Friday, October 20th, because

1:06:37

Robertson was saying, I couldn't

1:06:40

have acted corruptly here when I obstructed

1:06:43

an official proceeding because I

1:06:45

don't get any pecuniary benefit.

1:06:51

Trump gets to stay president

1:06:53

or be president

1:06:54

or I get to install Trump as president. What do I get?

1:06:56

I don't get anything. So that

1:06:58

was his argument. And here's

1:07:01

the brief decision

1:07:03

from the D.C. Circuit Court of Appeals.

1:07:06

In this appeal, Robertson contends that the evidence

1:07:08

was insufficient to show he acted corruptly

1:07:11

as Section 1512C2 requires.

1:07:15

He also challenges his 87-month-long

1:07:17

sentence, making new arguments on appeal that the district

1:07:19

court aired in applying to specific offense

1:07:22

characteristics for obstruction of

1:07:24

the administration of justice, so

1:07:26

the sentencing recommendations based on the statute.

1:07:29

Because the evidence was sufficient to establish

1:07:31

that Robertson acted corruptly and the

1:07:33

district court did not plainly air

1:07:36

in applying the specific offense characteristics,

1:07:38

we affirm.

1:07:39

And so

1:07:42

they're going with the broad definition,

1:07:44

the one that's always been there, the one we

1:07:46

said, they'll just leave it alone. They're going to leave

1:07:49

this law alone, and the way that it's been interpreted

1:07:51

for a very long time is going to stand. And

1:07:53

that's what they said. This was Judge Pan

1:07:55

writing for the 2-1 majority. Judge

1:07:57

Henderson

1:07:58

was a Bush appointee.

1:07:59

dissented and Merrick

1:08:02

Garland by the way has filed notice

1:08:04

that he intends to appeal the Proud Boys

1:08:06

sentences for being too short as you'll

1:08:08

know they were convicted of seditious

1:08:11

conspiracy but also of 1512C2. So

1:08:14

all of this clears the runway

1:08:17

I guess for charging Trump

1:08:19

with 1512C2 and depending on the

1:08:22

I can't wait to read the appeals for Merrick Garland

1:08:24

on the Oath Keepers and Proud Boys sentences because in

1:08:27

order to make

1:08:29

sentencing recommendations Department of Justice has

1:08:32

to

1:08:32

keep in mind like similarly

1:08:35

situated criminals. You

1:08:37

can't put someone away for 10 years when

1:08:40

you normally only put people away for 5 years

1:08:42

for doing that same kind

1:08:44

of crime. And so appealing

1:08:48

the length of the Oath Keepers and

1:08:51

Proud Boys sentences would

1:08:54

if successful would allow the

1:08:57

Department of Justice to

1:08:58

ask for those longer

1:09:00

sentences for somebody like Donald

1:09:02

Trump. Right.

1:09:03

Right. It's essentially kind of raising

1:09:06

the roof on what's the de facto

1:09:08

roof on that sentence. The

1:09:12

roof is on fire as you know AG. Well

1:09:16

yeah the Republican House of Representatives.

1:09:20

So that's really interesting. I think

1:09:22

the interpretations is the one we expected

1:09:24

to see but it's good to get it anyway. You

1:09:27

know corruptly doesn't mean what

1:09:29

you did put money in your own pocket. There's

1:09:31

all kinds of other motivations that

1:09:34

can make something corrupt

1:09:36

and that's essentially what all

1:09:39

the courts now have acknowledged.

1:09:41

And like you said yeah it's smooth

1:09:43

sailing or clear sailing at this point

1:09:46

for...

1:09:46

Conditions are clear.

1:09:47

...to apply those to

1:09:50

Trump and we'll see what

1:09:52

happens when that happens. Yeah.

1:09:54

Judge Henderson's dissent was ridiculous

1:09:56

by the way. Judge Henderson was saying

1:09:59

look if you don't... have to

1:10:00

show that somebody was gonna put money in their

1:10:02

pocket

1:10:03

then any crime could

1:10:05

be considered corrupt and

1:10:07

it's like well yeah kind of and it was just

1:10:09

it was

1:10:10

a weird idea okay

1:10:12

thanks for making my point

1:10:14

it was a really weird

1:10:15

descent but that's Judge Henderson

1:10:17

for you all right so he can appeal

1:10:19

this obviously he can appeal

1:10:20

it on bonk you can appeal it to the Supreme Court

1:10:22

I don't think that

1:10:25

it's gonna change the law but we're one

1:10:27

step closer to closing this thing out Roger that Roger

1:10:29

that all right questions shall we

1:10:31

get to questions

1:10:33

yeah do we have a good listener question this

1:10:34

week we have a couple and so I'm

1:10:37

proposing we do a couple but in speed

1:10:39

round all right so this is gonna be like short answers

1:10:41

on a couple of good questions we got so many this

1:10:44

week I wanted it I wanted to hit up a few okay

1:10:47

so first we're going out to Johann

1:10:49

in Sweden and Johann says my

1:10:51

question is short why is it called

1:10:54

in camera when a judge reviews

1:10:56

something alone Johann

1:10:58

here's the answer in camera

1:11:00

is Latin translated

1:11:03

literally it means in chambers ie

1:11:08

in the part of the court that

1:11:10

is just for the judge that the public cannot

1:11:12

see right the courtroom is public the

1:11:15

jury's in there the public is in

1:11:17

there watching the trial the chambers

1:11:19

are are exclusive to the

1:11:21

judge so that's where the judge does private

1:11:23

business that's really like talk to the the

1:11:26

council sometimes they'll examine a witness

1:11:28

in there if they don't want the witness testimony

1:11:30

to be exposed to the jury that sort of thing so that's

1:11:34

why they call it in camera it's business that

1:11:36

gets conducted in the judges chambers

1:11:38

always with the Latin

1:11:40

always with the latin okay

1:11:43

so next one do people who plead

1:11:45

guilty always tell all they

1:11:47

know to prosecutors we don't have a name on

1:11:50

this question I'm sorry about that but it's a good question

1:11:53

what if they plead ignorance on some issues

1:11:55

when they might actually know the details if the prosecutor

1:11:58

doesn't already have that information might the

1:12:00

defendant get away with being less than forthcoming?

1:12:03

Yes. Yes, yes. Next

1:12:05

question. I mean, if

1:12:07

you don't have evidence that they are not

1:12:10

being fully forthcoming, you can't prove that

1:12:12

they aren't.

1:12:12

So yeah, I imagine this

1:12:14

happens a lot. You would know better than me. It does. It

1:12:17

does. Important to remember though that like pleading

1:12:19

guilty and cooperating are not always the same, right? Some

1:12:22

people just plead guilty, never say a word, keep

1:12:24

their mouths shut, take their secrets with them and

1:12:26

that's totally fine. There's

1:12:29

offer a deal, guy takes it, you don't have

1:12:31

to cooperate. Cooperation

1:12:33

requires that you plead guilty and then

1:12:36

also that you tell the truth. And there's incentive

1:12:38

built into the system so that if you

1:12:40

do lie and you're caught, your

1:12:42

deal gets blown up. You're back at

1:12:44

square one and you've now made all these admissions

1:12:47

on the record. So it's a really bad thing. So yeah,

1:12:49

happens. And you don't know what the prosecutors

1:12:52

don't know. That's right. So

1:12:54

it happens all the time. It's a really important job

1:12:56

of mostly falls on the heads of the agents

1:12:59

involved or the cops that as you're telling

1:13:01

them things in the proffer, they got

1:13:03

to be going out constantly and like vetting

1:13:06

what you're telling what the witness cooperator

1:13:08

is telling them. And as soon as they find out he's lying,

1:13:12

it's a bad day for the cooperator. All right.

1:13:15

Final question. This one comes

1:13:17

in Dear A, McSee

1:13:19

and AG. I have listened

1:13:21

to your podcast religiously since its inception.

1:13:24

I count myself indescribably fortunate

1:13:26

to enjoy the intelligent and insightful

1:13:29

interpretation of each week's developments.

1:13:32

Oh wait, it gets better. Delivered

1:13:35

by two such fabulously appealing

1:13:38

and silver tone voices as yours.

1:13:41

I'm sorry for anyone who goes anywhere

1:13:43

else for their Jack News. You

1:13:45

know, I'm reading that question. I

1:13:48

mean.

1:13:48

That is by

1:13:50

far one of the kindest

1:13:52

intros,

1:13:53

delistner questions we've

1:13:55

ever had. And I did that in my silky. That

1:13:58

was you being full silver. tone

1:14:00

right there. All right. Thank you. And

1:14:02

we don't have a name which kills me because I

1:14:05

would love to give someone credit for this but you know

1:14:07

who you are and we thank you deeply. All right

1:14:09

the question is, my question

1:14:11

is about the stolen presidential records that

1:14:13

the former guy has not returned. Does

1:14:16

the special counsel have any mechanism to recover

1:14:18

documents that are not related to national

1:14:20

security and not part of the indictment? Short

1:14:23

answer, no. It really doesn't.

1:14:26

Their chance to get that stuff back was with

1:14:28

a search warrant which they did at Mar-a-Lago

1:14:31

but they did not do anyplace

1:14:33

else. In order to get a warrant

1:14:36

they'd have to prove to a federal judge that

1:14:38

there's evidence of a crime in that location.

1:14:40

That would give them the right to go in and look around and

1:14:43

then in the course of that they could pick

1:14:45

that stuff up but as long

1:14:47

as it was described in the warrant. But the odds

1:14:49

of that happening I think are pretty slim at

1:14:51

this point.

1:14:52

Yeah and there were quite a few missing

1:14:54

boxes, somewhere between 20 and 30. Not

1:14:58

that they were filled to the brim with all classified information

1:15:00

but they had been gone through and

1:15:03

you know moved to Bedminster but yeah

1:15:05

by the time it got there there was not there I

1:15:07

guess there was no fresh evidence to

1:15:08

go in and search and grab it back. Yeah,

1:15:11

yeah it's got to be interesting. Gotta

1:15:13

be fresh. You got to have like very recent

1:15:16

intel that says that the evidence is there

1:15:18

which I assume that was part of

1:15:20

the problem they had. I would be shocked

1:15:23

if they didn't they hadn't gone through the motions

1:15:25

of seeing if they had enough for

1:15:27

a search warrant at Bedminster. I'm sure they

1:15:29

did that and likely determined they did not

1:15:31

and so they didn't pursue it. It could

1:15:33

have come down to you know we knew Walt Nauta

1:15:35

moved boxes after you

1:15:38

know trying to destroy videotapes and

1:15:40

move boxes to Bedminster and

1:15:42

they probably asked Taveras and you

1:15:44

know witness one like did

1:15:46

you see what was in the boxes? No I didn't actually

1:15:48

see what was in the

1:15:49

boxes and so

1:15:51

that's it I mean that's enough to and you

1:15:53

know it's good for

1:15:56

criminal defendants rights and

1:15:59

the rights of the people the United States that

1:16:01

you can't just go into somebody's

1:16:03

house and search their stuff

1:16:05

kind of without that kind of

1:16:07

direct evidence. So if you

1:16:09

think about it from that point of view, maybe

1:16:12

you'll feel a little better.

1:16:15

Yeah, yeah, yeah, for sure. And let's remember, Mar-a-Lago,

1:16:17

they were there. If they can do it to me, they

1:16:19

can do it to you. No, no. They were there in

1:16:21

Mar-a-Lago, right? They had gone down for the infamous

1:16:24

meeting, so they knew what was there. They knew

1:16:26

how many documents were there. They

1:16:28

didn't have any of those same interactions

1:16:30

in Bedminster, so very different set

1:16:32

of facts there. But yes, it's a high bar.

1:16:36

You know where it wasn't a high bar? In

1:16:38

England. The king could

1:16:40

just... Were presidents or kings? That's right.

1:16:43

The king could just send his troops out to your house and they could

1:16:45

come busting in and take whatever they wanted.

1:16:48

That's why we came over here and we

1:16:50

set this place up to

1:16:52

have a president, not a king. And oh,

1:16:54

by the way, the president comes under

1:16:57

the scope of criminal law. Isn't that

1:16:59

a cool thing? Yeah. I think

1:17:01

it's one of the cool founding principles. For

1:17:03

sure. Especially

1:17:04

this week. Thank

1:17:07

you for those incredible questions. If you have a question

1:17:09

you want to send to us, there's a link in the

1:17:12

show notes for you to do that and you can fill out a little

1:17:14

question form. We would love to hear from you.

1:17:17

That is it. Wow. We

1:17:19

made it through. It was kind of a long episode, but

1:17:22

there was just so much information. We really wanted

1:17:24

to get out to you. We didn't want to leave any of those juicy

1:17:26

details out of those filings. And

1:17:28

who

1:17:28

knows what kind of news broke while we were sitting here recording

1:17:31

this. I'll go have to find out in a second.

1:17:33

But thank you all so much for listening

1:17:36

and we really appreciate you. And

1:17:38

please tell a friend

1:17:41

about this podcast if you get a chance. That

1:17:43

is our best way to spread the

1:17:45

word about what special counsel is

1:17:47

doing and so people can get

1:17:49

real, like,

1:17:51

you know, truthful information

1:17:54

about these investigations. So we would love it if you would

1:17:56

spread the word.

1:17:57

Absolutely. Give, tell your smartest.

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