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MSW

1:04

Media.

1:08

I signed an order appointing Jack Smith.

1:10

And nobody knows you. And those who say Jack

1:13

is a fanatic. Mr. Smith is a veteran

1:15

career prosecutor. Wait, what law have

1:17

I broken? The events

1:18

leading up to and on January

1:21

6th. Classified documents and other presidential

1:23

records. You understand what prison is? Send

1:25

me to jail.

1:34

Welcome to episode 49 of

1:37

Jack, the podcast about all things

1:39

Special Counsel. It is Sunday, November

1:41

5th, 2023. I'm

1:43

your host, Andy McCabe. Hey,

1:46

Andy, I'm Allison Gill. You know, Andy,

1:48

it's almost our one year anniversary. Just a

1:50

couple of weeks. A year? Holy cow.

1:53

Mm-hmm. Yeah, a couple of weeks from now.

1:55

I think maybe on the November holiday

1:57

break, maybe we'll have a special one year anniversary show.

2:00

the brings up to speed over the past year news

2:02

maybe the the big headlines and the special

2:04

counsel investigations we'll see we'll see how it

2:06

goes there could be a million other things that we have to

2:08

report on but we'll see how goes i target

2:10

a little greatest hits greater sense of the headlines

2:13

from here is great as jackets

2:15

yes spent for this week or we have a

2:17

lot of years including sepa filings and

2:19

rulings in both dc and florida and

2:21

i'll be speaking to our sepa expert brian

2:23

greer you know he's the former deputy

2:25

chief of staff for the general

2:27

counsel of the cia and we're going

2:30

to talk to him ultimate later in the show so

2:32

that's gonna be fun and you know

2:34

we should mention you are traveling right

2:36

now so i i'm gonna conduct

2:38

the interview with brian's

2:40

a so as everyone wonder like whereas andy on

2:42

the interview that's what's happening yes

2:44

i am i am rug connecting

2:46

with you from bangkok thailand today

2:49

so i'm what of i it's fourteen hours

2:52

ahead of you something like that but the we're we're

2:54

figuring it out no problem we're still

2:56

gonna get the get the jack business

2:58

done every weeks if we

2:59

are now i trans national anti

3:01

crime syndicate suffered

3:03

super it's it's right i'm over

3:05

here doing all sorts of secret stuff is

3:08

no i'm not i've just over here having fun

3:10

so don't take that

3:12

anywhere but we also have

3:15

i'm of course all the updates

3:17

as week on a limited don't call it

3:19

a gag order issued by judged shotgun

3:21

and trump's motion to stay the entire

3:23

trial while

3:24

the courts decide his motion

3:27

on absolute presidential monarchy

3:30

i'm sorry it's immunity as every

3:32

week every week you get the monarchy jokes applause

3:35

an order from judge tuck in scheduling the beginning

3:38

of jury selection in the dc case

3:41

cast is not messing around

3:42

and we haven't noticed soundless judge can

3:44

and about donald motions to delay

3:47

the trial in florida until after

3:49

the election so we have a notice on that

3:51

from jack smith along with that

3:53

november first hearing on the matter will talk

3:56

about that there was just a hearing a

3:58

we also have a documents that came up and York

4:00

Attorney General civil fraud trial that

4:02

might be of interest to Jack Smith.

4:05

And then finally an update on the John Eastman

4:07

disbarment proceeding in California. So

4:09

just a couple things we're going to cover today, Andy.

4:12

Just a couple. Where

4:14

should we start? All right. So let's, I think

4:16

that document's really fascinating by the way, but we'll wait to cover

4:19

that later in the show. Right.

4:21

All right. So let's go to DC first with the don't call

4:23

it a gag order. Last week, as

4:25

we discussed on the pod, a DOJ filed

4:28

its opposition to stay the limited gag

4:30

order. So that was the one that mentioned

4:32

the two fines that the New York

4:34

AG suit resulted in and

4:37

Trump's posts about Mark Meadows. Then

4:40

on October 28th, Trump filed a reply

4:42

on why the case should be stayed,

4:45

making many of the same arguments. So

4:47

in that filing, he says, if reinstated,

4:50

the gag order would prohibit President Trump

4:52

from discussing nearly anything about

4:55

this case, a key campaign issue with

4:57

the American public, including reasonably

5:00

foreseeable witnesses and testimony,

5:02

as well as valid criticisms of the prosecutors.

5:05

He goes on to state the prosecution's undeniable

5:08

goal is to silence its primary political

5:10

opponent, President Trump, during

5:13

his campaign against the Biden administration.

5:15

The court should not countenance such a blatant

5:18

and unjustifiable attack on the first amendment.

5:20

Accordingly, the court should deny the prosecution's

5:23

bond modification request and

5:25

stay the gag order pending appeal.

5:27

Now Judge Chutkin issued

5:30

her opinion and order the following

5:32

day on October 29th, lifting this

5:34

day and reinstating the limited gag

5:37

order. She said, the court

5:39

entered a temporary administrative stay of its

5:41

order while the parties briefed the motion, see

5:44

October 20, 2023 minute

5:46

order, but now will deny

5:48

defendants motion and lift the stay.

5:52

The government also asked the court to incorporate

5:54

the order into the defendant's conditions of

5:57

release. Those are the bail conditions

5:59

that we've discussed. a few times. The

6:01

court hereby denies that request without

6:03

prejudice, even assuming that

6:06

request is procedurally proper. The

6:08

court concludes that granting it is not

6:10

necessary to effectively enforce the order

6:13

at this time. I thought that was a really

6:15

interesting kind of statement

6:17

because I think what most legal observers

6:19

and certainly all of us wonder every time

6:23

she or any other judge for that matter gets

6:26

close to a gag order on Trump

6:28

is the question comes up is how are they going to actually enforce

6:30

it. But with this comment I

6:33

think Chutkin is really laying it out there that

6:35

she does not see or isn't

6:38

at least going to acknowledge problems

6:41

or issues with trying to enforce

6:43

the order.

6:44

Yeah, I agree with you. I think she's saying I got

6:47

this. We don't have to put it in the bail conditions.

6:49

This is sort of how it feels.

6:51

Yeah, give me a shot and maybe I go

6:53

to bail conditions in the next round after the next

6:55

set of violations of the gag, but we'll

6:57

see. So she goes on to say,

7:00

defendant has not made a strong showing that he

7:02

is likely to succeed on the merits. As

7:04

this court explained, the First Amendment rights

7:06

of participants in criminal proceedings must

7:09

yield when necessary to

7:11

the orderly administration of justice, a

7:13

principle reflected in the Supreme Court precedent

7:16

in the federal rules of criminal procedure and

7:19

the local criminal rules. First,

7:22

defendant asserts that the court cited no evidence

7:24

supporting its findings of risks of harassment

7:27

and witness intimidation and the prosecution

7:29

provided none. But several times

7:32

the court and the government pointed to evidence

7:35

causally linking certain kinds of statements

7:37

with those risks and the defendant never

7:39

disputed it. Second,

7:42

the defendant claims the court gave no meaningful

7:44

consideration to alternative

7:46

or less restrictive measures, including

7:50

a narrower order. And again, the record flatly

7:52

contradicts that claim. The

7:55

defendant's final claim is that the order is unconstitutionally

7:57

vague for various reasons, none of which

7:59

would stand scrutiny. So

8:02

there we go. I think

8:04

it's just a roundhouse kind of crushing

8:07

of all the arguments for this day.

8:10

Yeah

8:10

and like you were mentioning last

8:12

week he was trying to say that

8:15

use the definition, the dictionary

8:18

definition of an interested party you know

8:21

as in all interested parties and

8:23

she comes back like you said precisely,

8:26

hey interested party is a well-established legal

8:28

term of art. It means anyone who

8:30

both is directly interested in the lawsuit and has a

8:32

right to control the proceedings make a defense or

8:34

appeal from an adverse judgment. She took

8:36

that from a law dictionary where he took it from

8:39

the Merriam-Webster dictionary right? You

8:41

don't kind of surprise he knows that dictionary either

8:44

but still you know you're

8:46

absolutely right. An interested party is someone who actually

8:48

has an interest like we're all interested

8:51

in the outcome of these suits

8:53

that doesn't make us all interested parties.

8:55

You have to be able to kind of affect the proceeding,

8:58

make a motion, you know be thrown

9:01

in jail as a result of how it turns out,

9:03

who knows. You

9:05

need something more than curiosity to be

9:08

an official legally interested

9:10

party.

9:11

So finally the judge addresses

9:13

the remaining factors and she says the

9:15

remaining factors also counsel against

9:18

the stay.

9:18

Defendants brief arguments on each rely

9:21

entirely on the premise that the court's order

9:23

violated his First Amendment rights. Having

9:25

rejected that premise the court reaches

9:27

the opposite conclusions

9:30

where there is no showing of a likelihood

9:32

of success on the merits of a First Amendment

9:34

claim. There

9:35

is no irreparable injury or

9:37

public interest favoring a

9:40

stay. I think that's really important that's

9:42

one of the threshold issues

9:45

for any sort of stay

9:48

or injunction or you know

9:50

anytime you go before a court and you're requesting that

9:52

they step in and kind

9:55

of stop something from happening until

9:57

the final decision in the legal proceeding

9:59

is reached.

10:00

You have to show

10:02

in that initial request

10:05

a likelihood of success on the merits, right?

10:07

Or else every litigant in every case,

10:10

every defendant would

10:12

be constantly saying, well, stop, stop the

10:14

press. Let's think about this before

10:16

we go forward. So you have to show that

10:18

you're likely to win on this argument

10:22

before a stay is imposed. And

10:24

of course, he's not done that here.

10:25

Yeah, and you can't even – if you can't get past

10:28

that likelihood of success on the merits

10:30

in a First Amendment claim, you don't even get to talk

10:32

about injury or public interest.

10:35

That's right.

10:35

Yeah, like, sorry. Order

10:38

of operations.

10:39

So after this, Trump filed a motion for

10:41

an emergency stay with the D.C. Circuit Court

10:43

of Appeals, right? He's going up the chain now. The

10:46

district court entered a sweeping viewpoint-based

10:49

prior restraint on the core political

10:52

speech of a major presidential candidate

10:54

based solely on an unconstitutional

10:57

heckler's

10:57

veto, in quotes.

11:00

Okay. The gag order violates the First

11:02

Amendment rights of President Trump and over 100 million

11:05

Americans who listen to him.

11:09

Okay. President Trump – like, 80% of

11:13

those are people who don't like you. All right. President

11:15

Trump's uniquely power – Reporters who have to write

11:17

about you. Yes, it's the press. It's mostly

11:19

problems. President Trump's

11:21

uniquely powerful voice has

11:23

been a fixture in American political

11:26

discourse for eight years and

11:28

central to the American fabric

11:31

for decades. Okay.

11:34

Trump's voice central to the American fabric

11:37

for decades. A fixture of the

11:39

American political discourse. Yeah. I

11:41

mean, that's like saying

11:43

drought has been a fixture in the American

11:46

West for the last century. Yeah,

11:48

I guess it has, not in a particularly positive way,

11:50

but okay. Sure, yeah, it's

11:52

been a fixture.

11:54

Yeah. Trump then makes the

11:56

same arguments he made to the district

11:58

court, which all got – pretty

12:00

much pretty roundly disputed

12:02

and shut down

12:04

Like it's too vague. It's not narrowly

12:06

tailored. There'll be irreparable injury

12:09

again He he's you know

12:11

judge Chukin said do you failed to the first

12:13

test of likelihood to win on the merits? so

12:15

he's taking the same arguments

12:17

now up the chain and Says quote

12:19

the court should stay the gag order pending appeal

12:22

in addition President Trump respectfully

12:24

requests that the court enter a temporary

12:26

administrative stay pending resolution of this

12:28

motion and issue its ruling by November

12:30

10th

12:33

2023 if the court denies this motion president Trump

12:35

requests the court extend the administrative stay

12:37

for seven days to allow him to seek relief from the US

12:40

Supreme Court and Breaking

12:42

news as a Friday afternoon

12:45

The appeals court has granted the temporary

12:48

Administrative stay and his scheduled

12:50

oral arguments

12:51

for November 20th Now this

12:53

panel that he drew by

12:56

the way consists of Millett pillard

12:58

and Garcia That's an Obama appointee

13:00

another Obama appointee and a Biden

13:03

appointee respectively So

13:05

womp womp, it's not gonna probably go too

13:07

well from it I don't really think that any

13:09

draw that he would have gotten maybe unless pan

13:11

was on there or something Wow or whatever

13:14

would not pan but route would have come

13:16

out in his favor

13:18

But

13:18

what I appreciate here is the speed

13:20

with which the DC Circuit Court of Appeals

13:23

answered this put the temporary

13:26

stay on it and Is going

13:28

forward and I also want to mention, you know, a lot of

13:30

people are like man the tether they're upset about the

13:32

temporary stay That's a due process That

13:35

just kind of has to happen because if you don't put

13:37

that stay on there you moot the appeal and

13:39

then he can appeal on that And

13:42

so that's one of the reasons and also Not

13:45

that I encourage witness intimidation or

13:47

trying to interfere with the trial but

13:49

just like the week it was stayed

13:52

in the district court and he Violated

13:55

what would have been the restraining order

13:57

the limited gag order if it were on

13:59

him If he does it again, that

14:01

just gives more evidence to

14:04

Jack Smith to make his

14:06

case

14:06

for the appellate court and possibly

14:08

the Supreme Court if

14:09

they decide to take that up because

14:11

that's just going to be evidence against him. They

14:14

used the $5,000 and $10,000 New York Attorney General civil

14:16

fraud trial fines. They used

14:18

his truth social post

14:21

against Meadows in calling Jack Smith deranged

14:23

while there was a temporary stay in the district

14:25

court as evidence of

14:27

why this order is necessary. So if he

14:29

does continue just because

14:31

the order is stayed to do those things and

14:33

make those posts and violate the

14:36

order if it were in effect, that's

14:38

only going to make

14:40

it worth for him. Totally agree

14:43

with you. I think the thing to focus on here is that the case

14:45

is not stayed. The case goes on,

14:47

the litigation continues, all the other motions

14:50

to schedule everything we stay on it. It's

14:52

just the imposition

14:55

of the don't call it a gag order. And

14:57

you're right, it doesn't help him to go out

14:59

and continue abusing witnesses on

15:01

truth social during

15:03

the pendency of this appeal. If anything,

15:06

it's going to make it

15:07

even more likely that the court says,

15:09

well, of course we have to do this because look,

15:11

he's doing it right now while the matter

15:13

is in front of an appellate court. So I

15:15

think that's right. It is a little frustrating because it's just

15:17

like the constant turn of appeal, appeal,

15:20

appeal. I don't know that Trump or really

15:22

anyone in his family has ever indicated

15:24

a

15:24

willingness to accept a court's

15:27

order. Like

15:27

you just automatically appeal everything. It doesn't

15:29

go your way, appeal, take another shot, take another

15:32

shot. So you can expect that. I

15:34

was thinking about that actually this week in the context of

15:36

Ivanka's appeal of

15:38

her effort to not have

15:40

to testify in the New York AG case, which

15:43

was absurd. I think a

15:45

first year law student could have done the

15:47

analysis that no, you're going to have to testify.

15:50

You're not a party to the case, but you're

15:52

clearly a witness. So anyway,

15:55

the other thing I thought was interesting is they throw out the infamous

15:57

Heckler's veto. Which

16:00

I don't actually think helps their

16:02

argument in what they're asking for.

16:05

There's kind of a non-legal

16:07

definition of Heckler's veto,

16:09

which just simply refers to the idea

16:12

that a heckler can

16:14

restrain a speaker's right to

16:16

speak simply by heckling enough

16:19

to disrupt a speech. But

16:22

that's not really the legal definition

16:24

of it. The legal definition speaks

16:26

almost kind of to the opposite. It comes

16:29

up in cases where

16:31

law enforcement

16:32

will arrest or stop

16:34

someone from speaking because

16:37

they're afraid of

16:39

a violent reaction by the crowd.

16:42

And so the courts talk about this idea

16:44

of that's kind of like a heckler's

16:46

veto, but it typically, the use

16:49

of that term is focused on

16:51

the analysis of whether it was okay or not

16:54

for law enforcement to take a speaker

16:56

off the stage or actually take them into

16:58

custody because you're afraid

17:01

of a violent reaction by the crowd.

17:03

And in many cases, courts have found

17:05

that it's been acceptable

17:08

for law enforcement to do that because of a legitimate

17:10

fear of

17:12

public violence. Well, that sounds

17:14

like Trump to a T. So

17:16

that's a really weird argument

17:19

for him to make. I know. I don't think

17:22

they're really, it's a very, it's

17:25

kind of a cool name for something,

17:27

but I don't actually think that the legal

17:30

impact of it is helpful to

17:32

them. But hey. No, well, they get that stuff wrong

17:34

all the time. I mean, there was one filing

17:35

where they said instead of the sword and the shield, they

17:37

said the cross and the sword. And I was like, what are

17:40

you

17:40

even talking about, bro? And

17:42

then later in the filing, they mentioned, they

17:45

quote a case law where

17:47

they use sword and shield. And I'm like, okay, so you

17:49

know the phrase. You've been

17:51

talking about proofreading not

17:54

really high on the list of to do's

17:56

for the Trump team. But

17:58

anyway,

17:59

all right.

17:59

On the same day, Trump filed a motion

18:02

with Judge Chutkin to stay the

18:04

entire proceeding in D.C.

18:07

until his immunity motion is resolved.

18:10

And in that filing, he states,

18:12

the Supreme Court has, quote, repeatedly

18:14

stressed the importance of resolving immunity

18:17

questions at the earliest possible stage in

18:19

litigation. For this reason, substantial

18:21

claims of immunity should be, quote, resolved

18:24

prior to discovery.

18:26

President Trump respectfully requests

18:28

that the court stay all proceedings in this

18:30

case, pending resolution of his immunity

18:33

motion. Counsel for President Trump conferred

18:35

with counsel for the prosecution, who advised

18:37

the government opposes the relief requested

18:39

here. And I'm sure they

18:42

did say they opposed that.

18:43

This is kind of like the heckler's veto.

18:45

He's arguing against himself here when he said, hey,

18:48

the Supreme Court says you got to get this done early,

18:51

in the early stages of litigation. And

18:53

so my answer would be like, yeah, like right

18:55

now, let's solve it right now. No, you

18:58

don't have absolute monarchy

19:02

immunity. And like

19:05

this to me just seems like they're

19:06

saying hurry up and

19:08

decide this now. But

19:11

this is like that interlocutory. It's like, right.

19:14

We need to stay so you can hurry up and decide

19:16

it early. It's

19:18

just, I don't know. Stay everything.

19:21

Right. Stay, stay, stay.

19:22

Stay the whole thing

19:24

months and months from now

19:26

and do, but decide it now. Okay, you

19:28

know what? We will decide it now.

19:30

I think that this will be decided fairly quickly.

19:31

I'm not even sure the Supreme Court's going to

19:33

take it up, but they might just so that they can

19:36

say, no, you're not a king. I

19:38

mean, it's the most ridiculous motion

19:40

in the history of motions that

19:42

I've read. I mean, just going

19:45

absolutely directly against one

19:47

of the main pillars

19:49

of the Constitution and why we are even

19:52

a country in the first place. Exactly.

19:54

You're so dumb. And

19:57

just after that motion to stay, the whole

19:59

enchilada came in. Judge

20:01

Chuck issued an order about the jury

20:03

selection schedule. She's called

20:06

for jury questionnaires to be ready to go February 9th,

20:09

just three months from now. We

20:11

still await her decision on the stay

20:13

pending his immunity motion, but

20:16

we know that the appellate court on

20:18

the limited gag

20:19

order has given a temporary stay and that

20:21

November 20th is going to be the hearing for that. So

20:23

we'll cover that for you as well.

20:25

All right, we'll be right back with the hearing down in Florida

20:28

with Judge Cannon to delay that trial until after

20:30

the election. Stick around,

20:31

we'll be right back.

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23:26

Hey,

23:28

everybody, welcome back. On November

23:31

1st, Judge Aileen Cannon held

23:33

a hearing pursuant to Trump's request to delay

23:35

the entire, this is the Florida trial

23:37

now, until after the election. You'll

23:40

remember his fuzzy math arguments, right? The

23:42

DOJ, you gave me 13,849 documents. If

23:49

I stack them end to end, they're taller than

23:51

Trump Tower. Like, but 15- 400 pizzas.

23:56

But 15 of those documents

23:58

were new, and he- other 13,000 blah

24:01

blah blah, he or unclassified

24:03

documents he's had for a long time. He just wanted them

24:05

put all together so he could see how they were found. Trump

24:10

said they weren't getting classified discovering a timely manner

24:12

and the Department of

24:14

Justice Jack Smith like said, nope we did

24:16

this on this day, this on this day, you waited 11

24:19

days to come and look at certain documents and a skiff

24:21

right down the road from you. He had his skiff,

24:24

you know, complaints. He complained that he didn't have

24:26

a classified computer even though he submitted

24:28

a classified briefing using a classified computer

24:31

complaining about not having one, all of those.

24:33

Remember we talked about those last week. Well it

24:35

seems at this hearing Judge

24:38

Cannon is actually amenable to delaying

24:40

the trial. We just don't know

24:42

by how much yet, right? Yep,

24:45

yep, absolutely right. So so

24:48

here's from Josh Gerstein and Kyle

24:50

Faney at Politico. They report

24:52

that a federal judge in Florida, which of

24:54

course is O'Mean Cannon, is considering

24:56

delaying Donald Trump's upcoming trial on

24:59

charges that he hoarded classified documents

25:01

and obstructed the government's attempts to

25:03

retrieve them. Here's a quote from

25:05

Cannon from the hearing, I'm just having

25:07

a hard time seeing how realistically

25:10

this work can be accomplished in

25:12

this compressed period of time given

25:14

the realities that we're facing.

25:16

Cannon made no immediate ruling on Trump's

25:19

bid for a postponement

25:20

but she sounded highly skeptical of claims

25:22

by prosecutors that the case could

25:25

be kept more or less on pace with

25:27

the schedule she set in July.

25:29

Trump didn't mention the campaign

25:32

but instead said that his other trial

25:34

in DC will clash with the May Florida

25:37

trial date because they say it will last

25:39

months. But one of Smith's deputies

25:42

urged Cannon not to alter the trial date,

25:45

noting that the election case might itself

25:47

get delayed. Yeah and

25:49

shortly after this hearing the

25:52

DOJ filed notice with

25:55

Judge Cannon that Trump is trying

25:57

to delay the DC trial too because the hearing

25:59

has And then Trump filed

26:02

that motion that we talked about in

26:04

the first segment. Mm-hmm Yeah, we need to

26:06

stay the whole trial while you check out

26:08

my immunity. And so then

26:10

the DOJ Just gave

26:13

a notice to judge cannon. Hey Trump's

26:15

trying to delay the DC trial, too And

26:17

he was caught Andy playing judges

26:19

against each other earlier this year Let me read

26:22

to you from this Daily Beast article

26:24

from back in March Okay, remember this is back

26:26

in March based with an onslaught of expensive

26:29

lawsuits ranging from fraud to racketeering Former

26:31

president Trump is desperately trying to delay several

26:34

trials well into the 2024 presidential

26:36

election season and he was just called

26:38

out for the scheme Trump's lawyers

26:40

have until Wednesday to explain how they tried

26:42

to play two New York judges off

26:45

each other by double booking trials To

26:47

potentially delay them both now

26:50

the Department of Justice did not bring this

26:52

up in In the hearing so

26:55

that's the Daily Beast from March and

26:57

the DOJ didn't they didn't bring this up in their

26:59

hearing or the filing I think they should have unless

27:02

they just assumed cannon isn't going

27:04

to listen or maybe they don't have

27:06

my Brain where I have all this shit

27:08

filled away for no good reason Maybe they'll think

27:10

differently about it after they listen to this podcast

27:12

on Sunday morning. I'm just saying it's nice nuts Wink

27:15

wink,

27:15

but yeah, he did this and in fact, it was Robby

27:18

Kaplan E. Jean Carroll's lawyer who wasn't

27:20

a lawyer in either of the two trials He tried to

27:22

schedule at the same time in New York to get him both delayed

27:25

Who alerted the judge

27:28

the judges in New York? Hey Trump's trying

27:30

to put your trials at the same time so he can delay them both

27:33

and they caught him and so they said you need To tell

27:35

us why and so this

27:38

Jack Smith notice to cannon Came

27:40

one day after the hearing where she seemed keen on delaying

27:42

the trial the one you just said it when you just talked

27:45

about

27:45

However defendant Trump's

27:47

counsel failed to disclose at the hearing

27:50

that they were planning to fail

27:53

and Yesterday evening

27:55

they did file the attached motion

27:57

to stay the proceedings in the District of Columbia until

28:00

their motion to dismiss the indictment based on

28:02

presidential immunity is fully resolved. And

28:05

that's the motion I said we discussed earlier

28:07

in the show. Defendant Trump's

28:09

actions in the hours following the hearing in

28:11

this case illustrate the point and confirm

28:13

his overriding interest in delaying both

28:15

trials at any cost. This court

28:18

should not allow itself to be manipulated

28:20

in this fashion. So it's exactly

28:23

what happened in New York,

28:24

you know, what was that, three or 11, eight

28:27

months ago. And now

28:29

it's happening down here. And they did make

28:31

a pretty glaring typo, by the way, the DOJ.

28:35

They actually said this court should allow itself

28:37

to be manipulated in this fashion when they meant

28:39

to this court should not allow itself to be manipulated

28:42

in this fashion. Just a minor

28:44

significance there. But

28:47

again, I'm surprised DOJ didn't mention the history

28:49

of him pitting trial dates against one another

28:51

to manipulate judges to delay

28:53

both trials.

28:54

Now,

28:55

Cannon has yet to rule on the trial date thing.

28:58

But she just entered this snarky minute

29:00

order today on Friday saying, you

29:03

know, because they filed this. This is just a notice like,

29:05

hey, judge, just so you're aware, right

29:07

after our hearing, Trump filed a notice

29:09

to stay the DC trial. He's trying to pit you guys

29:11

against each other and delay both trials. She

29:14

responded. All she said was,

29:16

the parties are hereby reminded

29:18

pursuant to local rules, a notice

29:20

may not exceed 200 words and

29:22

may not be used as a sur-reply without

29:24

leave of court. That means without

29:26

my permission. Further non-compliant

29:29

filings will be stricken without further notice.

29:32

Period.

29:33

And then on Friday, she entered another

29:34

minute order,

29:36

staying the pretrial schedule pending

29:38

her ruling on the matter.

29:40

So

29:41

she's not even

29:44

ruling on whether or not to delay the

29:47

trial. She's putting a stay on everything

29:49

right now until she rules, which

29:51

by the way, she said she would do ASAP after

29:53

November 1st,

29:55

which I don't know what ASAP means to her, but

29:58

that protective order took...

29:59

two and a half months to put down. But

30:02

the thing

30:03

I've noticed about this though, Andy, is

30:06

that she's really making it hard for Trump

30:08

to appeal anything if he's convicted

30:11

at the end of this because of all

30:13

of these breaks that he's getting. Do you

30:15

know what I mean? Like he's not going to have an

30:18

argument to make. Yeah, I think that's

30:20

right. And he's

30:23

reading her like a book. He knows,

30:25

his attorneys know how she's going to react

30:27

to these things. They know

30:29

that all they have to do is put up something

30:32

that raises a barely colorable

30:35

claim and

30:36

then ask for a stay. And

30:38

she's going to bite at it because she doesn't

30:41

really, she's so hesitant

30:43

to kind of charge forward and issue

30:45

rulings from the bench and things like that, that whatever

30:48

they do is going to succeed in

30:51

slowing things down. And that is their number one.

30:53

Maybe that's their number two strategy. His number

30:55

one legal strategy is of course

30:58

to get reelected. Number

30:59

two is just to delay everything.

31:02

But here's, I want to throw this out there. This

31:04

will be the part of the show where I enrage the audience.

31:07

Okay, I'm not saying, here

31:09

I'm defending myself before I say it, but I

31:13

agree that

31:14

he's using every opportunity to delay.

31:16

And we've, you know, we catalog this

31:19

every week. And most of these motions

31:21

are nonsensical, but effective

31:24

for him in that strategy. But

31:26

here's where I'm going to go the other way.

31:28

I actually think that what Cannon

31:30

is getting at here is a legitimate

31:33

problem, would be a legitimate problem

31:35

for any defendant.

31:37

And that is, if you look at the schedule as

31:39

it's currently set,

31:41

if the DC case goes when it's

31:43

supposed to go, that

31:45

he'll literally be on trial

31:47

until almost immediately before this

31:50

case goes to trial. And there

31:52

is a legitimate issue around

31:54

whether or not it's fair

31:57

to require a defendant in

31:59

a criminal case.

31:59

case to prepare their defense

32:02

essentially while they're on trial in a

32:05

separate criminal case in

32:07

a separate jurisdiction. Is it really

32:09

is it realistic to think that he could actually

32:12

you know work with his attorneys review

32:14

documents do all the things that you have to do getting ready

32:16

for a trial in which your liberty is at

32:18

stake

32:19

while you're on trial in another case and I think the answer

32:22

to that is probably no. So

32:24

I'm probably going to hear about this in next week's

32:26

questions that get submitted

32:28

but I think she's

32:30

getting at a legitimate issue that's the only thing

32:33

I'm saying I don't know how she comes out on it but.

32:35

She's being a dick about it though but DOJ

32:38

said the trial is going to take the the March

32:40

DC trial is going to take four to six weeks. Trump

32:43

side says it's going to take all the time

32:45

right up to the eve of the the May

32:47

20th trial date. I

32:50

mean to me the the right call would

32:52

be well let's see how this timeline goes

32:55

as we get a little bit closer to these trials

32:57

and if a delay is necessary because

33:00

the DC trial gets postponed

33:03

or goes long we can address

33:05

it at that time but right now we have months between

33:07

now and then of other

33:10

things that need to get done. I mean that would be

33:12

my reasonable solution here and then some

33:14

other legal experts that I've talked

33:16

to have said that it wouldn't

33:18

be unheard of for her to say

33:20

it is cutting it close and

33:23

maybe any other criminal defendant would

33:26

also get this consideration. So why

33:29

don't we do this thing and move it from May to

33:31

July to put

33:33

padding in between the time

33:35

that the DC trial stops and

33:38

this trial because the DC trial date wasn't set

33:40

when she set her July trial date or

33:42

her May trial date I should say. So

33:45

that came after. Yeah. So it

33:47

wouldn't be unheard of for her to push this back

33:50

a couple of months to give some breathing room

33:52

to the to the March date.

33:54

I have thought that her schedule

33:58

not just because of the way that she.

33:59

kind of failed to enforce it,

34:02

but it's been a kind of a squishy,

34:04

it had a squishy look to it from the

34:06

very beginning. And you know

34:08

in private conversations with people I've consistently

34:11

said, I think it's unlikely that

34:13

this case is resolved before the election.

34:16

I think so. And I think you're right, that's

34:18

the reasonable way to think about, like

34:20

it's totally fair for a judge to be concerned

34:23

about this. I think it's a legitimate issue

34:25

and

34:25

most judges would be like, okay let's see how this

34:28

goes.

34:29

Because who knows what happens in DC. Maybe they run

34:31

into some issue that delays the DC trial

34:33

and then she can stay right where

34:35

she is and charge forward in May. So

34:38

I

34:38

don't know that it's absolutely necessary

34:41

to decide it now, but I do think it's a legitimate

34:43

issue

34:44

and she is someone who is very

34:47

accepting of delay. And

34:49

so I

34:51

think we could see this one rearing its ugly

34:53

head later and causing the actual

34:55

trial date to get bumped back. Now whether

34:58

that's bumped back a week, four weeks,

35:00

a couple weeks, whatever, or okay

35:02

let's just push it back till after the

35:04

election, that's really hard to say. I think

35:07

any of those outcomes we could see. But

35:09

nevertheless,

35:11

unlike the rest

35:13

of his kind

35:15

of naked efforts to

35:17

drag things out, this one for

35:19

me anyway hits on a legitimate

35:22

issue of ability. Any defendant

35:24

could raise this under similar circumstances

35:27

as a challenge to actually preparing an adequate

35:29

defense. And this is one of those ones

35:31

you don't want to get wrong. Because if he gets convicted

35:34

and he files an

35:36

appeal based on kind of an insufficient

35:39

counsel, you know, inability to prepare,

35:41

this is one that could throw the whole conviction

35:44

out. So it's good

35:46

to be careful around it. That's all I'm saying.

35:49

Yeah and our friend Brian Greer brought up a great

35:51

point a couple of episodes ago when he said there's

35:53

a thing too where the final SIPA thing

35:56

is only a week, finishes a week before

35:58

the trial date is. He's

36:00

actually been surprised that DOJ hasn't addressed

36:03

that scheduling thing because you're going to need more

36:05

than a week to run those

36:07

appeals and you know, those final

36:10

SIPA appeals. And

36:12

so that would also be an opportunity

36:14

to address that scheduling error if

36:17

this thing gets moved to July. But

36:19

if she moves the whole SIPA schedule back

36:22

to that can end up pushing it even

36:24

further. Yeah, you've said,

36:27

Pete Strach has said this, he doesn't think

36:29

this is going to go before the election. So,

36:31

well, we'll see what ends up happening. But I

36:34

think it's the way that she's doing this,

36:36

staying things, entering minute orders, not

36:38

addressing things, using language

36:41

in her rulings that is

36:43

just, you know, not really language becoming

36:46

a federal judge. Yeah. She's

36:48

given a million signs that

36:50

she's willing to delay. Yeah. Right.

36:53

Each one of these motions, each one of these requests,

36:56

she kind of pushes in that direction, leans in that direction

36:58

anyway. This is the most significant

37:01

issue I think that could end up

37:03

really could end up significantly delaying

37:05

the trial like by months or, you

37:07

know, potentially after the election. All

37:10

of them could, but this one I think is, has

37:12

more legitimacy. Now let's compare her

37:14

to Chutkin. Chutkin has the exact

37:17

opposite. She's given every sign at every

37:19

one of these things. She's like, don't forget about the

37:21

schedule. I'm not moving by a day.

37:24

You know, so when you're, if you're just reading the tea leaves

37:26

as we are, you know, Chutkin seems

37:28

like a judge who's like,

37:30

motions be damned. We're going to trial

37:33

on this day. If I have to back it up by one

37:35

day, okay, I'll do it. I won't be happy about

37:37

it. But it's still going in the, in

37:39

the basically the same kind of a

37:41

general time period that we all knew

37:44

about from the very beginning.

37:45

Yeah. But also don't forget the only delay

37:47

at the core of all of these filings and hearings

37:50

and responses and sur-replies

37:52

and is 11 days. And

37:55

that was 11 days that Trump needed because

37:58

DOJ had the documents. ready at a skiff near

38:00

him and he said we're not going to be there until October 18th.

38:04

So that was an 11-day delay and so

38:06

that's why Jack Smith was like I'm fine

38:08

with

38:08

a couple weeks on a SIPA

38:11

you know filing

38:13

but that shouldn't be reason to

38:15

push this whole thing back. But because of her

38:17

trepidation on the bench, her not understanding

38:19

the procedures and the processes, not understanding

38:22

SIPA very well, all these filings

38:24

and refilings and responses,

38:26

that

38:27

is where all the delay comes

38:29

in and that's what Trump specializes in and that's

38:31

what as opposed to Judge

38:33

Chutkin like he said that's where Judge Cannon

38:35

shines is in her willingness

38:38

to stay things and accept delays. But

38:40

speaking of Brian Greer, we had those

38:43

back-to-back

38:43

orders

38:44

from both Judge Chutkin in DC

38:46

and Judge Cannon in Florida about SIPA procedures

38:49

so we thought it would be a good time to bring him back

38:51

in for the under seal segment.

38:54

But we do have to take a quick break before that. We'll be right

38:56

back. Stick around.

38:58

We got another day of NBA action.

39:02

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40:31

Alright everybody, it's time

40:33

for Under Seal. It's classified. It's classified? I

40:36

could tell you, but then I'd have to kill you. Alright,

40:47

it's Under Seal and that means

40:50

we're joined by, you know him

40:52

as SecretsAndLaws

40:58

on Twitter. He's the former Deputy

41:00

Chief of Staff for General Counsel of the CIA,

41:03

our friend Brian Greer. Hi

41:05

Brian. Hi,

41:06

how are you doing? I'm doing great. And it's

41:08

that time again when we have

41:10

some SEPA filings and rulings,

41:13

so we figured we'd bring you in. And I wanted to start

41:15

with, because like within

41:18

minutes of each other, both Judge Chutkan and

41:20

Judge Cannon in the DC case

41:22

and in the Florida case put out rulings

41:25

on some SEPA motions and I wanted

41:28

to go

41:28

over those

41:29

with you. So first down in Florida, there

41:32

was a sealed hearing about SEPA Section 3

41:34

followed by supplemental briefs from Office

41:36

of Special Counsel and Nauta

41:39

and De Oliveira.

41:40

Now the court entered the protective order

41:43

and granted Jack Smith's motion as

41:45

to Donald Trump and granted

41:47

in part Jack Smith's motion as to

41:49

Nauta and De Oliveira. But

41:52

the court left open to modify because

41:54

the court says Special Counsel wanted

41:56

to use SEPA 3 instead of SEPA Section 4.

42:00

restrict Naota and Deolavera from

42:02

reviewing classified information and

42:04

shift the burden to the defense

42:07

to justify. So

42:10

her ruling here is that the protective order stands

42:13

and that anything Jack Smith wants to summarize

42:15

or restrict must be done under SEPA section 4

42:17

not SEPA section 3. Can you

42:20

talk a little bit about first

42:22

of all what it means to summarize

42:25

these classified documents?

42:28

Yeah, so normally in SEPA section 4 if

42:31

there were particularly sensitive records that the

42:34

Department of Justice didn't even want to provide

42:36

an unredacted form to the

42:39

Clear Defense Council, they would

42:41

do either redact them

42:42

or do a summary or substitution of them.

42:45

And in the latter, they basically would excise

42:47

the discoverable information from the document because as we

42:49

talked about before, it's really information

42:52

that's discoverable not documents. So you have to

42:54

think about that. There may be a lot of actually non-discoverable

42:57

information in a document that's

42:59

classified and so the government would want to excise all

43:01

that, focus on what's actually discoverable

43:04

and then even with that, there may be details

43:06

that are too sensitive to share

43:09

which the name of a source,

43:11

although that's not even really normally documents but the

43:13

cryptonym used for a source or

43:15

a civic date on which information

43:17

was collected or how it was collected or which government

43:20

gave it to us. Those details are often

43:22

more sensitive and also not really relevant

43:25

to the case. So the Department of Justice

43:27

summarizes that, accesses some of those details,

43:30

presents a nice summary to the court to

43:32

bless and then if blessed by the

43:34

court, we hand that over to the

43:36

Clear Defense Council and maybe the

43:38

defendant which we can talk about.

43:40

Right, because in this case, I mean big

43:42

picture, we're talking about the retention of

43:44

these documents, not necessarily what's in

43:47

them. Is that kind of my, that's

43:49

my understanding. Am I right on that or am I

43:51

missing something?

43:52

Yeah, and I guess that's a good point too. For the

43:54

documents themselves that were at Mar-a-Lago,

43:57

I think to the extent those are provided

43:59

and discovered. those would probably be just provided

44:01

in

44:18

what we're talking about with these substitutions.

44:21

Okay, I get it. And

44:24

apart from the basicness

44:26

of this order because she could

44:28

have just said, hey, let's do this in section

44:31

four, not section three. She

44:33

went on this whole long kind of snarky screed.

44:37

For example, she says,

44:39

against the backdrop of these provisions, the

44:41

Office of Special Counsel attempts to maneuver its

44:43

way around the plain meaning of section three

44:45

and the surrounding sections. Its arguments

44:48

lack merit. She goes on to say

44:50

the OSC makes the uncontroversial point,

44:53

for example, that the term defendant includes

44:55

the individual defendant and the counsel alike.

44:58

But that's not what's presented here. Here,

45:01

Office of Special Counsel isn't making discovery

45:03

available to attorney and defendant to review

45:05

together. Here, the SCO thinks

45:07

it can satisfy discovery obligations by only

45:10

giving it to the attorney

45:11

and not the defendant. What is she,

45:15

what's she going on about?

45:17

Yeah, I mean, just to set the

45:19

stage, what DOJ's proposed doing

45:21

here is what happens in every single CB

45:24

case, which means every single protective

45:26

order, typically has a provision that says some

45:28

materials may be designated by the Department

45:30

of Justice as being basically cleared counsel

45:33

only, so the defendant can't see them. That makes

45:35

good sense. Most of these cases are

45:37

terrorism defendants, arms dealers,

45:40

things like that, who I

45:42

think everyone agrees should not have access to just

45:44

all classified information with discovery. And

45:46

then the defense counsel, if they see something

45:48

that they think their client really needs to see, they can

45:50

defend themselves, they can ask DOJ for permission,

45:53

and then if DOJ says no, they can go

45:55

to the court. So there is a check on that. As

45:58

you've noted, I'm

45:59

sorry.

45:59

just to back up. In Aspinaj Act cases

46:02

though, it's a little different. Normally because

46:04

the classified nature of the information is

46:06

of core relevance to the case,

46:08

there the Department of Justice would normally say

46:11

they still do the exact same protective order,

46:13

but in what they designate, they would be more liberal.

46:16

They would allow the defense defendant to

46:18

see more classified information, particularly

46:21

stuff that they had access to while in government, because

46:23

it makes more sense that they need that to defend

46:25

themselves. So with Trump here, DOJ ultimately

46:28

didn't fight that fight. They said Trump is going to get everything

46:31

in classified discovery. He was president United

46:33

States, that makes sense. For Nada and

46:35

Dio Lavera, they didn't

46:37

have access to the documents ever. They're

46:40

not charged under the Aspinaj Act.

46:44

Their knowledge of the contents of the documents beyond

46:46

the fact that they may have been classified is

46:49

not at issue in the case. The

46:51

only one where really is is the one where

46:53

Nada took a picture and DOJ said

46:55

we're going to give that, let Nada look at that document.

46:58

So everything else, their knowledge of the contents

47:00

of the documents is irrelevant to the case.

47:03

So it's a good case for doing what DOJ proposed

47:05

here, which is saying they can't see

47:07

those documents unless their counsel makes showing.

47:10

So that's all just to say what DOJ proposed here

47:12

is 100% standard practice. In

47:16

mild fairness to Candon, the wording of

47:18

the statute is not that clear. It doesn't

47:20

specifically contemplate this, but

47:23

every single court that is considered this you

47:25

has sided with DOJ, every single

47:27

one. So for her to say

47:30

in her order use all this flippant language

47:32

acting like DOJ was making these extreme

47:34

frivolous arguments is just ignores all

47:37

that precipitate and is her showing

47:39

some of her bias obviously. Yeah

47:40

and there was one thing that I wanted

47:43

a little bit of clarity on. She makes this other argument

47:46

that the Office of Special Counsel tries to minimize

47:49

the prescribed procedure codified

47:51

in Section 4 for deletion

47:54

substitution of discovery by saying

47:56

that quote once the government discloses classified

47:58

information to defense counsel Section 4 no longer

48:00

applies. She says that the text

48:03

of SIPA does not support this position

48:06

and Section 4 specifically refers to discoverable

48:09

information made available to the defendant under

48:11

the federal rules

48:12

and then provides the United States a mechanism

48:15

to seek to avoid disclosing

48:17

it in full or in part. So again, she says, we're

48:19

left with the OSC's broad and unconvincing

48:22

theory, which is that the court

48:24

must change the meaning of the word defendant

48:26

to be the defense lawyer only.

48:30

Again, it seems like she's just stuck on this idea

48:32

that it's a

48:34

problem. Yeah, and I'll argue, you know, even if

48:36

she has this textualist argument about Section

48:39

3, there's no real support for her position

48:41

in Section 4. Like there's nothing in there

48:44

specifically noting that you

48:46

can split the baby like this,

48:48

like she's proposing, happen in Section 4. So

48:52

just as she doesn't think she's really supported Section 3,

48:54

there's not really support for her position in Section 4. This

48:56

frankly was probably an issue not explicitly

48:59

contemplated by the drafters of SIPA and

49:01

the courts have just made due to make a sensible,

49:04

you know, construct of it and

49:06

she's flipped it all on its head. But

49:08

again, DOJ, it's surmountable for DOJ. I

49:11

do think whatever, like you want to talk

49:13

about this, whatever is already in their skiff

49:16

for their defense counsel to see, DOJ has

49:18

probably like grabbed it or at

49:20

least prohibited them from accessing

49:22

it because until DOJ moves under Section 4,

49:26

Nauda and De La Verreaux can presumptively

49:28

see it now that her order has been entered. So

49:31

they've probably taken some step to say, until

49:34

we file our Section 4 motion to prevent

49:36

them from seeing it, they

49:38

basically can't see it.

49:41

So I imagine that's been worked out behind the scenes somehow.

49:43

I would expect a Section 4 motion to come up saying

49:46

we don't want them to see the charge documents

49:49

and then we'll play it out from there.

49:52

Yeah, unless she makes this argument again and

49:54

says what I said about Section 3 applies to

49:56

Section 4 and you

49:58

know.

49:59

see it endless back and forth about

50:02

this, but how she rolls on the section four

50:04

will be the big tell because again DOJ will have these

50:06

arguments that

50:07

their knowledge of the contents is just not

50:09

relevant to the case. Why do they need to see them?

50:12

And could they argue, hey, they came and got stuff out

50:14

of the skiff and so

50:16

now Trump can't see it and

50:18

be mad and you know, I'm just trying to... Yeah,

50:20

maybe, yeah, I don't know if they'll like literally go grab

50:22

it from the skiff, but

50:24

I'm sure they've done something to get assurance that

50:26

those two defendants aren't going to

50:28

go look today at those

50:30

documents, which I think technically they could.

50:33

That's so kind of frightening and

50:35

weird.

50:35

Yeah, yeah.

50:37

All right, now in very stark

50:39

contrast to what Judge Cannon put

50:41

out, we have Judge Chutkin's order.

50:44

Now, everybody I think who

50:46

listens to

50:47

this program knows that there's very limited

50:48

classified information in the DC case,

50:50

this

50:51

is the coup case, right? The

50:52

four charges of obstructing an

50:54

official proceeding conspiracy to conspiracy

50:56

against rights, defrauding the United

50:59

States against Donald Trump only

51:01

and the very limited classified information, the

51:04

DOJ has said multiple times is not part of their case

51:06

in chief. And so

51:09

they aren't going to be using that classified

51:11

information. And it basically contains

51:14

like there's an intelligence community report

51:17

on foreign interference. And in previous

51:19

filings, we know that Donald Trump is

51:22

not satisfied with just that report. He wants

51:24

to go through the report with a fine tooth comb and

51:27

claw in all sorts of classified

51:29

information that supports

51:31

or maybe denies

51:33

what's going on in that report. And once all

51:35

classified information that's relevant

51:38

to the compiling of that

51:40

report from the intelligence community and everyone's like,

51:43

bro, please. So

51:45

in her order here, she

51:47

granted special

51:48

counsel the ability to summarize,

51:51

which is like you said, something that happens

51:54

well now 99.99% of the time because we have Cannon who

51:58

said no.

51:59

So she granted the ex parte

52:01

SIPA 4 motion for a protective

52:03

order from Jack Smith

52:05

and then Trump wanted to see that

52:06

SIPA 4 ex parte

52:09

order

52:09

and she said no, you can't see that. And

52:11

that's kind of basically

52:13

the long and short of this but

52:15

then there was a section

52:17

5 bent to it. Can you talk a little bit about

52:20

this order? What the section 5 thing

52:22

means and how it

52:24

starkly contrasts with what judge

52:26

Cannon put out? Yeah,

52:28

just to back up on the section 4

52:31

as you noted, what she did is very routine.

52:34

I don't think it's like that crazy for Trump to

52:36

argue that they are arguing we just want to

52:39

see the unclassified portions

52:42

of the SIPA section 4 motion and

52:44

the supporting case law that DOJ

52:47

cites. Like I put

52:49

aside the fact that the defendant is Donald Trump. If

52:51

you're someone who thinks the

52:53

defendant should have robust rights,

52:55

like that's not a crazy argument to me and

52:58

I think as an observer, you would love

53:00

it if even those unclassified portions

53:02

of DOJ's motion were filed

53:04

on the public docket. That

53:07

wasn't the craziest argument for him. That

53:09

said, the legal arguments that DOJ

53:12

would make that would be unclassified are all

53:14

boilerplate. There's nothing really that

53:17

useful there. So I understand

53:19

why she did it. That's a routine order but it's

53:22

not as clear cut as people I think.

53:24

Anyway, but on the section 5 notice,

53:27

so section 5 is where the defendant

53:29

has to give notice to the government of the classified information

53:32

that they intend to rely upon at trial and that

53:34

basically shifts from discovery phase to

53:37

we're getting ready for trial phase. So this

53:39

is the first step of that. So

53:41

Trump filed

53:42

a classified notice under section 5

53:44

and then a public sort of summary of

53:46

it which I don't even know that they have to do. I think they're just playing

53:49

to the press. And in saying, I think

53:51

kind of oddly that the

53:53

indictment

53:54

adopts classified assessments by the

53:56

intelligence community and others that minimize

53:59

and at times ignore.

53:59

efforts by foreign actors to influence

54:02

and interfere with the 2020 election.

54:05

President Trump will also offer classified immigration

54:07

at trial relating to foreign influence

54:09

activities that impacted the 2016 and 2020 elections

54:12

as well as efforts

54:14

by his administration to combat those activities

54:17

and he'll present classified information about

54:19

the biased and politicized nature of those assessments.

54:22

So you know it's worth pausing what

54:24

is he going to be arguing here like I'm

54:27

not that clear. I have

54:28

some guesses. I mean I think DOJ

54:34

here is trying to argue that you know with all of the statements

54:37

from Meadows we now know who told

54:40

Jack Smith in his limited-use immunity

54:42

from Chris Krebs who

54:45

was fired for saying that it's the most secure

54:48

election in US history. I think

54:51

using this report is to show

54:53

that there wasn't enough

54:56

maligned foreign influence to justify

55:00

calling the Department of Defense to seize voting

55:02

machines for example or you know to

55:04

overturn the election in any case and I think

55:06

what Trump is trying to say is that

55:09

there's probably missing and hidden deep

55:11

state documents within the government that

55:13

exculpate him and gave him

55:16

the ability to ask DOD to

55:18

seize voting machines and that the election

55:20

wasn't fair and clean and that there

55:22

was foreign influence of course it probably all came

55:25

from Russia which doesn't bode well for

55:27

him but I think that's probably what

55:29

they're getting at because if you remember he argued

55:32

in one of his motions to dismiss this case

55:34

in DC that the January 6

55:37

select committee had deleted

55:39

a bunch of missing evidence

55:42

and he asked in a Rule 17 subpoena

55:44

motion to get all of that information

55:47

and he was denied because you can't just ask

55:49

for vague things that

55:51

exist in your head you have to ask for specific

55:53

documents so my guess is it's probably

55:56

along those lines but we you know we could speculate

55:58

all day yeah

55:59

definitely in what I just read

56:01

like over states with indictment says there's only

56:04

one reference in the indictment to anything about

56:06

intelligence community and it's just saying in

56:09

one little sentence that the DNI disabused

56:11

Trump of the notion that there was foreign

56:13

interference that would change the outcome of the election

56:16

that's it. So I would argue

56:18

well let me talk about what will happen next. So

56:21

first DOJ will probably argue

56:23

that whatever notice he provided is not specific

56:26

enough because they want to be as specific as possible.

56:28

Trump from reading what I just read it's

56:30

probably not just referring to classified documents he has

56:32

but classified information in his head. So

56:35

DOJ would have to be very specific think about that

56:38

exercise or Trump would have to be very specific

56:40

about what specific information he's

56:43

gonna present a trial.

56:44

So anyway that's what the... Kosh

56:47

Patel wrote me a memo. Yeah

56:50

exactly and then they'll move to CIPA

56:52

section 6 which is all about

56:55

the normal pretrial motions practice you

56:57

would have related to use relevance and

56:59

admissibility. So there would be a whole argument there

57:01

is this relevant you know and DOJ will

57:03

argue look for the intelligence

57:06

community assessments are not relevant to the indictment that's just

57:08

what they'll say I think that's not part of our argument

57:10

we won't present them at trial so it's

57:12

not relevant. Trump will say well it's relevant

57:15

to my state of mind defense and

57:17

then the question will be okay but does the information

57:19

relate to that

57:21

if the intelligence was or in government

57:23

didn't interfere with the vote counting

57:26

like that's not relevant to his

57:29

defense like that's not relevant to any sort

57:31

of defense or if he didn't believe that that's

57:33

not relevant to any defense.

57:35

Secondly it's got to be admissible right

57:38

like Kosh Patel told me his hearsay

57:40

but they've got a way to get it in evidence.

57:43

So Trump's not gonna testify

57:45

so they've got some way of getting the evidence which I'm doubtful

57:47

of

57:48

and then if you get past that DOJ could still

57:50

offer a

57:51

substitution a summary or

57:53

even a stipulation that sort of gets

57:56

away of that deals with any sensitivities

57:58

there

57:59

that might just

57:59

concede a silly argument to Trump

58:02

or at least say there was other

58:04

information that the Helms Committee had that said foreign

58:07

governments were trying to interfere with the vote county

58:09

hypothetically. And that would be it. So

58:12

I'm not really, I'm just worried some

58:14

people might see this and worry, oh, Trump

58:16

is going to succeed with this great mail strategy in the DC

58:18

case. I don't think this is going to go anywhere.

58:21

No, and that's awesome. You said that

58:24

that would come out in SIPA Section 6? Yes.

58:27

I think that's a great illustration of one

58:29

of the earlier points you made in

58:31

this show, in this section

58:33

that it works like a funnel. Like

58:37

every step we get a little bit closer

58:40

to sort of sorting all of this stuff

58:42

out and getting

58:45

to the point of what is admissible in

58:47

SIPA Section 6 and then it even continues

58:49

beyond there. But I think that's an excellent

58:51

illustrative point about how the whole thing is like

58:53

a funnel. Yeah, and now we'll just see

58:56

if Judge Cannon takes that funnel and turns

58:58

it upside down. She's

59:00

gonna, she just actually entered an order

59:03

because Special Counsel Jack

59:05

Smith tried to alert Judge Cannon

59:07

that,

59:09

you know, he's trying to delay

59:11

the Cannon trial but

59:13

that he also tried to delay the DC

59:15

trial. And he got caught earlier

59:18

in March doing this, trying to schedule

59:20

two trials at the same time so he could delay them

59:22

both. And it was Roberta Kaplan

59:24

who was E. Jean Carroll's lawyer that brought it to

59:26

the court's attention. And so they wanted to bring

59:28

this to the court's attention with Judge Cannon

59:31

but I don't know how seriously she's gonna take

59:33

the hey dummy you're being played

59:37

warning that Jack Smith sent

59:39

her. No. I don't

59:41

know. It's gonna be this way. But

59:44

you know I have to say these

59:46

kinds of things making it so difficult

59:48

and going after Special Counsel so hard

59:51

on all of these and

59:53

just making their lives

59:55

miserable and difficult and you

59:58

know parsing language the way that she's doing.

59:59

is

1:00:01

gonna make it pretty hard for Trump

1:00:03

to appeal a conviction if one is obtained

1:00:06

down here. What's he gonna argue? That

1:00:09

the judge- That's a great point. I mean I hadn't even

1:00:11

thought about that but yeah I mean he's

1:00:13

not gonna have much left to argue

1:00:15

when he's on with this. No and I'm sure

1:00:18

that that was a consideration of special counsel. They knew

1:00:20

they were gonna draw this judge. I mean they had like an 86% chance

1:00:23

of drawing Judge Cannon in this particular

1:00:25

case and they're like, you know let's go for it. We got an open

1:00:27

and shut case. We got video of video

1:00:30

of video of them obstructing Justice

1:00:32

Slick. Maybe we

1:00:35

should you know we can't not bring

1:00:37

a case because we think a judge is gonna treat us unfairly.

1:00:40

But yeah I think that this is making it very difficult

1:00:43

for him on appeal so that's fun. The

1:00:45

last point you made me think of,

1:00:47

Cannon still hasn't seen any of the

1:00:49

records at issue or read a declaration

1:00:51

about the records at issue.

1:00:53

So hopefully once

1:00:55

Section 4 starts that will start

1:00:57

and

1:00:58

you know I'm extremely skeptical. I'm sure

1:01:01

you are too. But maybe

1:01:03

she'll come down there with a little bit when she sees what's

1:01:05

in these records. Sees how sensitive

1:01:07

they are. Sees all these, you know,

1:01:10

DOJ assessments or intelligence

1:01:12

community assessments about the harm

1:01:14

created

1:01:15

by unauthorized disclosure

1:01:17

of the exactments. Maybe she'll change her tone. Probably

1:01:19

not but

1:01:20

we'll see. She hasn't had that opportunity yet but that's

1:01:22

coming. I don't know.

1:01:23

I have a sinking feeling she already knows but

1:01:26

you know I'm a cynic when

1:01:28

it comes to Judge Cannon. But thank you so

1:01:30

much for clearing this up for us. I know that

1:01:33

SIPA is a pretty complex law and I

1:01:35

appreciate your time today. Can you tell everybody

1:01:38

where to find and follow you for this information?

1:01:40

Yeah I'm on Twitter at Secrets and Laws

1:01:42

and we'll eventually be where everyone else lands

1:01:45

at the same hip door.

1:01:46

Awesome. Thanks so much. Brian Greer.

1:01:52

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1:03:23

Welcome

1:03:24

back. Okay, we have a couple more stories from this week.

1:03:28

First one involves our friend John

1:03:30

Eastman. We learned from Politico

1:03:33

that a California judge made a preliminary

1:03:35

finding Thursday that attorney

1:03:37

John Eastman breached professional ethics

1:03:40

when he aided Donald Trump's bid to overturn

1:03:42

the 2020 election. A significant milestone

1:03:45

in the lengthy proceedings over whether Eastman should

1:03:47

lose his license to practice law.

1:03:50

Eastman said Thursday that the extensive

1:03:53

disbarment proceedings had strengthened,

1:03:56

not undermined, but strengthened his

1:03:58

belief that the 2020 election would be a win. election was tainted.

1:04:01

Now state bar officials are preparing to present

1:04:04

quote aggravation evidence aimed

1:04:06

at justifying their call to strip Eastman

1:04:09

of his law

1:04:10

license. So

1:04:12

man we have a moment of reckoning finally

1:04:15

coming up in this effort in California

1:04:18

booking at John Eastman.

1:04:19

Yeah, aggravation evidence.

1:04:21

That's interesting. I've

1:04:22

never heard that term so I'm interested

1:04:25

to learn more about it especially as these

1:04:27

that as this

1:04:28

aggravation testimony happens.

1:04:31

So we'll see. So it's not like

1:04:34

just what you did is evidence.

1:04:37

Aggravation evidence is like

1:04:39

why what

1:04:40

you did made it even worse. It's

1:04:43

so obviously the opposite of mitigation evidence

1:04:45

which is like oh yeah he did this but it wasn't

1:04:47

so bad because he you

1:04:49

know you really didn't mean it or something. The

1:04:52

thing

1:04:52

is if he was low enough on the totem pole

1:04:54

he could have gotten a deal down in Fulton County

1:04:56

and got the moral turpitude language removed

1:05:00

from his from his crimes but he's also

1:05:02

an indicted co-conspirator

1:05:05

in DC. There's a lot more to this than

1:05:07

that but Andy somebody

1:05:10

posited this to me. They said you know if he loses

1:05:12

his law license he

1:05:15

might want to cooperate

1:05:18

in the other federal investigations because

1:05:20

maybe his only goal that's like one of his

1:05:22

main goals of resisting

1:05:25

here was to keep his law license

1:05:27

but if that's stripped away maybe he no longer has

1:05:29

that incentive and might be

1:05:31

more willing to play ball but then

1:05:33

of course do Jack Smith and Fonney Willis even

1:05:35

want to play ball with him. Yeah I

1:05:38

feel like his value as a as

1:05:40

a target as a defendant may

1:05:43

be greater than his value as a cooperator. A couple

1:05:45

reasons I mean first I really think John Eastman

1:05:48

is a true believer.

1:05:49

You know he keeps like doubling, tripling,

1:05:51

quadrupling down on this insanity

1:05:54

about the big lie and you

1:05:57

know anyone else at this point would kind of

1:05:59

be like

1:06:00

soft pedaling, walking some of that stuff

1:06:02

back, trying to reframe what they did as

1:06:04

purely providing legal advice. But

1:06:08

he's the opposite. He's like,

1:06:10

I'm more convinced today than I was after

1:06:13

the election. And he's also right

1:06:15

there in the center ring of the target.

1:06:17

He is there interacting with Trump

1:06:20

and everyone around him, with Pence,

1:06:22

with Pence's lawyers around

1:06:24

this scheme. So he's

1:06:26

a significant player. He was really key

1:06:28

to this entire thing. I think

1:06:31

his world got a lot darker when Kenneth

1:06:33

Cheesebrow cooperated. I'm

1:06:36

sure he's been trying to evaluate what the

1:06:38

impact of Cheesebrow's testimony will have

1:06:40

on him. So it'll be interesting

1:06:42

to see how this one plays out.

1:06:44

Yeah, yeah. And this document

1:06:46

that I mentioned that we all find very interesting.

1:06:50

It came up in the New York Attorney General Civil

1:06:52

Fraud Trial, the $250 million

1:06:54

fraud trial, the one where the Trumps family,

1:06:56

they're all testifying right around now.

1:06:59

This is super interesting. During

1:07:02

the direct questioning of Jr.,

1:07:06

the Attorney General's office questioned him about

1:07:08

his participation in preparing the statements

1:07:10

of financial condition, right? Those are the ones that

1:07:12

inflated the value of Trump properties for

1:07:15

banks to get them better loan offers. Now,

1:07:18

Jr. said he wasn't involved at all, but

1:07:20

the Attorney General showed him his own signatures

1:07:23

on letters to Mazars and

1:07:26

brought up the fact that just he

1:07:28

and Weisselberg were the only two trustees

1:07:30

of the Trump revocable trust while

1:07:32

Donald was president. Because remember when Donald was

1:07:34

running for president, he said, I'm going to give

1:07:36

my business to Jr.

1:07:39

and Weisselberg. I'm not going to be

1:07:41

part of it, etc. Yeah,

1:07:44

controversial at the time because it wasn't

1:07:46

a full-blown blind trust, which

1:07:48

every other president has ever done with

1:07:50

their personal wealth and investments before

1:07:53

entering office. He was

1:07:55

like, oh, I'm just going to put these guys in charge. They're

1:07:57

going to run it, which people talked about.

1:07:59

He was like, I think you saw that a lot at the time because it was such a departure

1:08:02

from the way that's typically done. Mm-hmm.

1:08:06

Yeah. And so they had him cornered, right? And that's when

1:08:08

Junior started to flip out a little bit and get super defensive. It's

1:08:10

like, you were the trustee. You signed these documents

1:08:13

on, you know, the financial condition, blah,

1:08:15

blah, blah. And he's like, what? No, I didn't. They

1:08:18

actually had to strike his response from the record because it

1:08:20

didn't make any sense and they continued

1:08:22

the questioning later. But the document that

1:08:24

they showed Junior when

1:08:26

he was on the stand, they brought

1:08:27

it up on the overhead or whatever,

1:08:29

is a document signed by his father, former

1:08:32

President Trump. And it was

1:08:34

a document that reinstated him, the

1:08:37

former president, as a trustee of

1:08:40

the Trump Revocable Trust. And it was signed

1:08:42

on January 15th, 2021. So

1:08:45

I tweeted

1:08:46

that document

1:08:48

and I said, does this mean

1:08:51

Trump knew he lost the election? And

1:08:55

Andrew Weissman responded, a bunch of people responded.

1:08:58

Everybody kind of jumped on this kind

1:09:00

of all at the same time. Like, this seems

1:09:02

like this document might be important to

1:09:04

Jack Smith because why would

1:09:07

you sign back on as a trustee

1:09:10

of the Trump Revocable Trust on January 15th, 2021, a week

1:09:13

after the insurrection, if you didn't think you lost

1:09:15

the election?

1:09:16

Exactly. Why would you

1:09:18

rescind

1:09:20

the action

1:09:22

that you had taken when you became

1:09:25

president? You took an action allegedly

1:09:29

designed to recuse

1:09:31

you from the business of your

1:09:34

private company.

1:09:35

And on the 15th, you rescinded

1:09:38

that action

1:09:39

effectively and legally reinserting

1:09:41

yourself as running your private

1:09:44

business.

1:09:45

Why would you have done that

1:09:46

on January 15th, unless

1:09:49

you knew it's time to go back

1:09:51

to work in the private business because the president

1:09:54

thing is over?

1:09:56

Yeah, I think it's a really interesting piece of

1:09:59

evidence.

1:09:59

Throw it on the pile. Why not?

1:10:02

I mean that it would be amazing for cross-examination

1:10:05

if Donald ever took the stand I would

1:10:07

have fun with that.

1:10:08

Oh, yeah.

1:10:10

I mean he would you know, he would be like well, I

1:10:12

was still I didn't lose but

1:10:14

the Rigged

1:10:17

election was kicking me out and I had to go

1:10:19

back to my job, you know, whatever I don't know He'll

1:10:22

come up with something but I do have one bit of breaking

1:10:24

news before we get to the listener question and and this

1:10:26

is Gonna surprise you and do I because this

1:10:28

is just breaking now, but I don't know. Maybe you've seen

1:10:30

this You are you

1:10:33

are in Bangkok? So I don't know but did

1:10:35

you see that mr. Mark Meadows remember?

1:10:38

He was given limited use immunity for his

1:10:40

testimony and ABC reported

1:10:43

we talked about this last week They

1:10:45

said hey Your sworn

1:10:48

testimony contradicts large chunks

1:10:50

of your book

1:10:51

well

1:10:54

His publisher is suing him They

1:10:56

want their three hundred and fifty thousand

1:10:59

dollar advance back. They want their six hundred

1:11:01

thousand dollars back for something else They

1:11:03

want a million bucks out of him for the

1:11:05

lies that he told in his book So

1:11:09

his publisher is suing him

1:11:12

Because of this reporting and his limited use

1:11:14

immunity testimony that proves

1:11:17

his sworn testimony contradicts So

1:11:20

many things in the book. They're suing him for

1:11:22

quite a bit of money. Ouchie

1:11:23

That's not

1:11:25

gonna feel good if you're Mark Meadows.

1:11:27

No, I have not you need legal bills paid And

1:11:31

guess what the limited use immunity

1:11:33

not gonna protect you from that civil suit.

1:11:36

Wow, that could be really uncomfortable for

1:11:38

him

1:11:41

So sorry Yeah,

1:11:49

I'm not a huge fan as you might

1:11:51

as you might guess

1:11:53

Well, we'll see. All right, I'll give you my

1:11:55

one mark Meadows story. Do we have time for that?

1:11:58

Yeah, we do go So I had to go

1:12:00

in and get questioned

1:12:02

by a combination

1:12:05

of House Oversight

1:12:07

Committee and House Judiciary.

1:12:10

So you know, they always talk about the House Judiciary

1:12:12

Committee as being like the clown car. Imagine

1:12:15

combining the clown car with the clown SUV

1:12:18

of the House Oversight Committee,

1:12:21

but I think it was like eight hours of testimony

1:12:24

in which most of it was engineered by Meadows.

1:12:27

He was kind of the ringleader for the Republicans

1:12:29

on I think he was oversight for that

1:12:32

one. And you know, it was just the

1:12:34

typical horrible stuff that, you know,

1:12:36

they try to grind you down. And

1:12:38

at the end of the testimony, as

1:12:41

I'm about to leave, Meadows

1:12:43

comes over, it is like eight hours, like you

1:12:46

just exhausted, totally smoked. You just want to get

1:12:48

out of there. Meadows comes over to me

1:12:50

and puts his hand out and he's like, hey,

1:12:52

I just want to tell you, thank

1:12:54

you for your service. And

1:12:57

you know, I really think,

1:12:59

you know, the F, I think so highly

1:13:01

of the FBI and the work that you've done there

1:13:04

and you know, all this is one thing.

1:13:06

But you know, I'm really on your team.

1:13:08

I used to be a prosecutor. I know what you

1:13:11

guys go through. Oh yeah, this whole

1:13:13

like, you know, me and you were the same. I wish you

1:13:15

could see my face right now. Listeners, I wish you could see my

1:13:17

face, like, excuse

1:13:18

me? Like when he went to shake your

1:13:20

hand, did you do the thing where you take your hand away and

1:13:22

like, yeah, brush your hair out of your face? Yeah,

1:13:24

for sure. And I just,

1:13:27

having been trained well by my, by

1:13:30

my bosses at the Bureau, I just

1:13:32

shook his hand and said, yeah,

1:13:33

thanks very much. And they got the hell

1:13:36

out of there. But like this, this

1:13:38

man's, I say this only because this man's ability

1:13:40

to take two completely opposite sides

1:13:42

of the same issue, like in a, in a, in

1:13:45

a quickness that would induce whiplash

1:13:48

is legendary. So now think

1:13:50

about what you wish you could have said.

1:13:52

Oh, you know, not often only

1:13:54

several million times since that day, but

1:13:59

yeah, I've I've seen him

1:14:01

get caught in these really

1:14:03

uncomfortable contradictions. Let's call,

1:14:05

I'll say lies, I'm not gonna be judgmental,

1:14:07

but contradictions that he finds

1:14:10

himself in often. And I just

1:14:12

always think back to that moment. I'm like, yeah, of course.

1:14:14

He's the say anything

1:14:17

to anyone guy, right?

1:14:20

So I think he could be a handful as a witness, to

1:14:22

be honest, because this track record of saying

1:14:25

contradictory stuff is not gonna help

1:14:27

him. But nevertheless, he probably

1:14:29

also has some amazing, amazing

1:14:32

evidence to offer as well. We'll

1:14:34

see how that one goes. Well, he's

1:14:35

the only one with a decent lawyer. So

1:14:38

yeah, we will see how it goes. What do we have for our

1:14:40

listener questions today? By the way, we're gonna put a link in the

1:14:42

show notes. If you have a question, you can click on that

1:14:44

link and

1:14:44

fill it out for us.

1:14:46

Yeah, so I've got a couple here. They really hit on two

1:14:49

issues.

1:14:50

Really good questions this week, a bunch of them.

1:14:52

So all right, so let's start. So first one comes

1:14:55

to us from Karen, and Karen says, hi, AG

1:14:57

and Andy, the two best looking

1:14:59

legal analysts in the pod sphere.

1:15:02

And then she puts in parentheses, is that enough

1:15:04

sucking up to get my question asked on air?

1:15:07

Apparently. The answer is yes, it

1:15:09

is, there you go. She

1:15:12

says, honestly, I love your show. My Sunday morning

1:15:15

routine always includes the show. She

1:15:17

goes on to say, so I know your show is not necessarily

1:15:19

about the Georgia indictments, but recently, Sydney

1:15:21

Powell pleaded guilty. She then started

1:15:24

to walk back her guilty plea, admitting that she

1:15:26

still believes the big lie and she

1:15:28

called her plea deal an extortion. Can

1:15:31

Fannie Willis's office rescind her plea deal and

1:15:33

prosecute her anyway?

1:15:35

Similarly, Brian writes in,

1:15:38

thanks for all your thoughtful insights on all things Jack.

1:15:41

I'm learning a lot this week. You discussed the implications

1:15:43

for the Georgia plea deals of

1:15:45

cheese and crackin', which may be the best,

1:15:48

best name I've heard for Kenneth

1:15:50

Cheesebrow and Sydney Powell together.

1:15:53

And

1:15:54

then he goes on to ask if they do not fulfill their obligations.

1:15:57

As witnesses, what happens? So same

1:15:59

basic issue. But if

1:16:01

they get on the stand and take the fifth, can

1:16:04

their deal get tanked?

1:16:08

I don't know that we know the answer to that yet because

1:16:10

I don't think they've

1:16:12

released the actual text of

1:16:15

their agreements. No, but they're

1:16:17

coming because I know that McAfee

1:16:20

has put out an order to release all that stuff.

1:16:23

But if they take the fifth, I think Pete

1:16:26

and I talked about this over on CleanUp on aisle 45, they're

1:16:30

actually possibly potentially – it depends

1:16:33

if they're still on the hook for crimes in other jurisdictions,

1:16:36

right? Because if they are still possibly on the

1:16:38

hook for crimes in other jurisdictions, they have absolutely

1:16:41

every right to take the fifth amendment when testifying

1:16:43

in Fulton County.

1:16:45

Yes. The only caveat

1:16:47

to that would be – well, it doesn't contradict

1:16:49

it at all.

1:16:50

If as a part of their plea deal –

1:16:52

now, remember, the plea deal is just a contract

1:16:55

between the defendant and the prosecutors. It's not law,

1:16:57

but

1:16:59

it's a contract so it can be enforced.

1:17:01

If as one of the elements of that contract,

1:17:04

they waived their fifth amendment

1:17:06

right, then they won't be able

1:17:09

to raise it without losing

1:17:11

the entire deal, which could result

1:17:14

in pulling back their pleas to these

1:17:16

lesser offenses and

1:17:18

return them to the state of fully

1:17:21

charged defendants.

1:17:24

And presumably, they've already made

1:17:26

statements

1:17:27

to the prosecutors. They

1:17:30

were, we know, interviewed by the prosecutors. So

1:17:33

they've already made statements likely

1:17:35

under oath

1:17:36

that could then be used in that follow-on prosecution

1:17:39

to convict them. So it's still –

1:17:42

it seems a little bit attenuated,

1:17:45

but it still provides a pretty strong incentive

1:17:48

to not

1:17:49

just go in there and pull the ripcord by claiming

1:17:52

the fifth. So I think that's how that would work

1:17:54

out.

1:17:54

And the reason for that is because if they were

1:17:57

only – if their crimes were only like

1:17:59

– you know, so

1:17:59

down in Fulton County, they

1:18:02

wouldn't be able to take the fifth because they wouldn't have

1:18:04

any threat of prosecution

1:18:07

elsewhere. So that's why they'd be able to take the fifth. But

1:18:09

what about Sydney talking

1:18:11

about the big lie and talking

1:18:13

about the case and then saying that

1:18:15

she was extorted. I mean like what kind of line

1:18:18

is she

1:18:18

creeping up to with that? Yeah

1:18:20

so that's that to me highlights

1:18:23

the difference between Georgia and

1:18:25

the federal system. In the federal system,

1:18:27

you sign up as a cooperator, you

1:18:29

kind of come to a deal with the prosecutors, but you don't get the

1:18:31

benefit until the complete

1:18:34

end of any possibility you had to

1:18:36

provide cooperation. So

1:18:38

if you start like

1:18:40

you know talking

1:18:43

smack about the case and the prosecutors

1:18:47

and essentially denying your culpability

1:18:49

by making statements like she has, that's

1:18:52

prosecutors are not

1:18:54

going to give you the benefit of your

1:18:56

cooperation. Because

1:18:57

at the end when they write that letter to the judge

1:19:00

laying out all the good things that you've done, you don't

1:19:02

want them to include in that letter. But

1:19:04

she doesn't really believe in any of this stuff because she's

1:19:07

continued to talk on television or on

1:19:09

her blog or whatever it

1:19:11

is. But

1:19:11

I think in Fulton County the stipulations where

1:19:13

you can't talk to anybody about this case,

1:19:16

you can't talk to any other witnesses about this case, and you

1:19:18

can't talk about this case.

1:19:19

So but here she is talking about

1:19:21

it. Yeah, it's

1:19:23

problematic. And if I were the prosecutors,

1:19:26

I'd be wanting to do something about it, but I'm just not sure

1:19:28

legally what they can do. She's already pled

1:19:31

to that stack of misdemeanors,

1:19:33

so she's already received

1:19:35

a good deal of the benefit she's likely to get from

1:19:38

cooperation. So can they unwind

1:19:40

the whole deal over it? I don't know

1:19:42

the answer to that, but that's probably

1:19:44

the question they're confronting right now.

1:19:47

Yeah, I assume that Fonnie

1:19:49

Willis will make a move if she

1:19:51

intends to and pretty soon. She does not

1:19:53

seem like a woman who's gonna take

1:19:56

a lot of shit. I mean, to be perfectly

1:19:58

honest. So...

1:19:59

I imagine they

1:20:02

are considering all their options right now. All

1:20:04

right, so one more, and this

1:20:06

is another question that came up from a bunch of folks.

1:20:10

This one comes in from Gwen, and

1:20:12

Gwen says, thank you for your fascinating commentary on

1:20:14

Jack News. It makes my Sunday.

1:20:16

My question is, how practical is

1:20:19

an advice of counsel defense for Trump

1:20:21

or anyone else?

1:20:22

How would Trump testify? Wouldn't the lawyers

1:20:25

also have to testify? Christine

1:20:27

E. writes in with a similar question. She

1:20:30

says Trump surrounds himself with attorneys, but

1:20:32

how are we to know who actually represents him

1:20:34

in a legal capacity? Isn't this important to establish

1:20:36

when he claims defenses that are attorney

1:20:39

related, like advice of counsel

1:20:41

and things like that? So

1:20:44

let's go backwards here. Christine's question,

1:20:46

how do you determine if

1:20:48

someone actually represents

1:20:50

him? It's essentially another

1:20:52

issue of fact that the jury will have to

1:20:55

sort their way through. You don't

1:20:57

have to have an attorney

1:21:00

engagement agreement to have an official

1:21:02

attorney-client relationship. Most

1:21:05

good attorneys will have you sign an engagement

1:21:07

letter when they start representing you. It

1:21:10

lays out kind of the terms of the representation. But if you

1:21:12

receive legal advice from someone,

1:21:15

that relationship, in a legal sense,

1:21:18

kind of exists. It's almost like in Fourth Amendment

1:21:20

law when you say you have

1:21:22

a right to an attorney when you're being subjected

1:21:24

to custodial interrogation.

1:21:27

What does custodial

1:21:29

or being in custody mean? Well, it depends on

1:21:31

what the defendant would reasonably believe.

1:21:35

You analyze that. Is it reasonable that

1:21:37

the defendant thought he was in custody when you threw

1:21:39

him handcuffed into the back of a police car? Something

1:21:42

like that. So in this case, a lot of it would

1:21:44

come down to what a reasonable person

1:21:46

in the position of the client

1:21:48

under these facts have concluded. Would

1:21:51

they, in fact, have concluded that this

1:21:53

person was representing them or providing them

1:21:55

with legal advice? So it's a pretty broad

1:21:57

standard. It doesn't require an engagement

1:21:59

letter. As to how practical

1:22:02

the advice of counsel defense is

1:22:04

for him, I

1:22:05

think it has top-line

1:22:07

appeal and therefore maybe jury appeal

1:22:10

like, hey, I was just doing, I simply did what

1:22:12

the attorneys told me to. I was

1:22:14

relying on competent professional attorneys

1:22:16

who were representing me. That

1:22:19

seems to have jury appeal, but the

1:22:21

devil's in the details. It would require

1:22:24

that he, it could put

1:22:26

his attorneys in a position of having to

1:22:28

then testify since they are defendants

1:22:31

in the matter, like in the Georgia case, not

1:22:33

in the federal case, but in the Georgia case. And

1:22:37

then you are waving essentially attorney-client

1:22:40

privilege over those conversations

1:22:42

that form the basis of that defense because you

1:22:44

have to be able to testify about

1:22:46

what you said and what they told

1:22:49

you. And so once you violate

1:22:51

attorney-client privilege in that way,

1:22:53

now everything that you said with them

1:22:55

comes in, if they take the stand

1:22:57

and testify, you

1:22:59

could be creating bigger problems for yourself.

1:23:01

Yeah. And let's remember, Jack Smith has

1:23:03

filed a motion with Judge Tonya

1:23:06

Chutkin to force Donald Trump

1:23:08

to notify the court of a use of advice

1:23:10

of counsel defense by December

1:23:12

18th because they need time

1:23:14

to, you know,

1:23:17

Jack Smith says, we have 25 people, witnesses,

1:23:19

lawyers, lawyers by proxy, a

1:23:21

family member. We have 25 people who

1:23:23

have asserted attorney-client privilege in our privilege

1:23:26

logs for these folks. If you are going

1:23:28

to assert advice of counsel, we need to know who,

1:23:30

we need to know early because that means

1:23:32

you are giving up all of your communications

1:23:35

with those people

1:23:37

who you consider to have an attorney-client relationship

1:23:40

with. We need to gather all

1:23:42

of that evidence and all of those documents. We

1:23:44

need to investigate all of that

1:23:47

evidence and documents. Then we need to

1:23:49

take whatever actions we might

1:23:51

take as far as maybe indicting other people

1:23:54

or maybe adding charges to your pile or

1:23:56

deciding not to bring any additional charges.

1:24:00

to have time to enter that into

1:24:02

evidence and

1:24:36

to have time to use that

1:24:39

defense in enough time for

1:24:41

them to gather all that evidence, make prosecutorial

1:24:43

decisions, give over the discovery

1:24:45

before trial. Yep,

1:24:47

full on. It's a great question, raises

1:24:49

all kinds of issues and invariably

1:24:52

it's going to be one we see played out at

1:24:54

least in Georgia and who knows maybe in the federal

1:24:56

case as well.

1:24:57

Yep, we'll see. I think probably his

1:25:00

bluff has been called and I think by December

1:25:02

18th he'll say, I'm not going to use it in advice of counsel.

1:25:06

He's already agreed to hand it over in January. DOJ

1:25:09

is still trying to get

1:25:09

it in December

1:25:11

but whenever he decides

1:25:13

to know or whenever the court decides he has to notify

1:25:15

them, he's just going to be like, no, I'm not going to use it. Thanks.

1:25:19

It'll be because you're right. He could go on the stand,

1:25:21

his lawyers could go on the stand, all of that communications

1:25:23

gets handed over to Jack Smith which otherwise he wouldn't have

1:25:26

been able to see before. You sure buddy?

1:25:28

You sure you want to? You want to play that

1:25:30

hand? You want to play that because that

1:25:32

could go in a direction not very good for you. Yeah,

1:25:35

excellent question. Thank you everybody

1:25:37

and thanks everybody for listening. If you have a question

1:25:39

again, there's a link in the show notes for a form you can fill

1:25:41

out to send us a question. We really appreciate

1:25:44

it. I hope you have a

1:25:46

wonderful vacation in Bangkok.

1:25:49

I think you're doing Vietnam and Cambodia. I think you're

1:25:51

going everywhere.

1:25:52

Yeah, we're moving around a little bit, seeing a bunch

1:25:54

of beautiful places over here in Asia and

1:25:58

been looking forward to this for a while. But I will. will

1:26:00

not miss my duties here on Jack and

1:26:03

one way or another we'll be dialing

1:26:05

in from someplace different so tune in

1:26:07

again next week.

1:26:08

That's so cool of you. Yeah, for the next two,

1:26:10

this week and the next two weeks you're going to be remote

1:26:13

from across the world. So thank you so much

1:26:15

Andy for being here with me and thanks to Brian Greer

1:26:17

for joining us today. We'll see you next

1:26:20

week. I've been Allison Gill.

1:26:21

I'm Andy McCabe. We got another day of NBA action.

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