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1:02

MSW Media.

1:08

I signed an order appointing

1:10

Jack Smith. And nobody knows you. And those

1:13

who say Jack is a fanatic. Mr.

1:15

Smith is a veteran career prosecutor.

1:17

Wait, what law have I broken? The events

1:19

leading up to and on January

1:21

6th. Classified documents and other presidential

1:24

records. You understand what prison is? Send

1:26

me to jail.

1:35

Welcome to episode 50 of

1:38

Jack, the podcast about all things

1:41

special counsel. It is Sunday, November

1:43

12th. And I'm your host, Andy McCabe. Hey,

1:46

Andy, I'm Allison Gill. Happy 50th. Yes,

1:49

right back at you. The big five. Oh, you know,

1:52

the last time I turned 50 was

1:54

really kind of a sad moment. All kinds

1:56

of bad things happened. So I really feel like this

1:58

has cleaned the slate for me.

1:59

return 50 to a positive

2:02

place. Excellent.

2:06

Well I turned 50 here in a couple of months so hopefully this will be

2:08

a precursor to how awesome

2:11

that will be because today's show I

2:13

thought 2023 was going to be the year of accountability.

2:16

Turns out it's the year of motions.

2:19

We have so many motions today.

2:21

This show took me a million hours to prep for

2:24

but it's an important show. There's a lot

2:26

of really important motions that have been filed

2:28

and a lot of rulings that have come down. We

2:31

have Jack Smith revealing in a filing the

2:33

special counsel's plan to put the attack on the

2:35

Capitol January 6 front and center

2:38

in their prosecution of Donald Trump in the DC

2:40

trial still set to begin March 4.

2:43

There's also a ton of other filings in DC

2:45

including DOJ's opposition to

2:47

multiple Trump motions to dismiss his

2:49

case. We have a ruling in the Department

2:52

of Justice's advice of counsel

2:54

motion in DC. The special

2:57

counsel's opposition to televising

2:59

the trial in DC. We have a motion

3:01

to strike Trump's CIPA section 5

3:03

motion which is very interesting

3:06

and a ruling on the Trump motion to delay

3:08

the deadline for pretrial motions. Oh

3:11

and the latest on Trump's appeal

3:13

of Judge Chutkin's not a gag order.

3:15

That's also happening in the background.

3:18

And if that wasn't enough then we go to

3:20

Florida. Right. A whole other case. It's

3:22

just a whole other it's like fighting two

3:25

fronts in the same war. OK

3:27

so we have a decision by Judge Cannon

3:29

on Trump's motion to delay the documents

3:31

trial. We

3:32

have new reporting from CNN about just

3:34

how many Mar-a-Lago staffers saw

3:37

classified material and who

3:39

are now potential witnesses in the case.

3:42

And the filing from Jack Smith asking

3:44

the court to require Trump to provide

3:46

notification about whether he intends to

3:48

use an advice of counsel defense

3:51

just like they did in the DC case. It's

3:53

the kind of templated at this point

3:55

right. For

3:57

every single future they proceeded

3:59

to indict.

3:59

on Trump, wink, wink, we

4:02

have it in the can,

4:03

it's ready to go. It's the defensive

4:05

delay motions. Open motion insert

4:08

defensive delay language

4:10

here.

4:11

Yeah, and that canon

4:13

one is especially interesting. I know our SIPA

4:15

expert Brian Greer and

4:18

our friend Pete Strzok both agree

4:20

and I agree with them that canon's goal here

4:22

is to delay without creating an appealable

4:25

remedy, but she'll have plenty of chances to

4:27

create an appealable remedy. She's

4:30

delayed those and we'll talk about that. I

4:32

know it sounds like a lot. We're going to make sense

4:34

of all of it for you today. Andy,

4:36

let's start in DC. That's where the most, that's

4:38

where like, in my opinion, most

4:40

of the important action has happened this week.

4:43

There's a lot to discuss there, although I don't want to belittle

4:46

what Judge Cannon came out with today down

4:48

in Florida. But let's start with the big

4:50

ones up in DC. That's the government's omnibus

4:53

motion that opposes Trump's attempts

4:55

to dismiss his case entirely

4:58

and the Department of Justice's motion that reveals

5:00

Jack Smith's intent to make the attack

5:03

on the Capitol a central theme in

5:05

their case. I think that that's

5:07

hugely important.

5:08

Absolutely. So let's go to

5:10

the first one and that is the omnibus

5:13

motion addressing two of Trump's motions

5:15

to dismiss. Now, you'll remember

5:17

that Trump filed motions to dismiss the case

5:20

last week. DOJ wanted to address

5:22

two of them in one filing and

5:24

it asked the court to allow them to file a response

5:27

that exceeded the page limit. Trump

5:30

of course opposed that request, but

5:32

Judge Chuck can granted it and DOJ filed

5:34

this 79 page motion. So

5:37

a little bit of Sunday reading for anybody

5:39

interested. I think what's cool

5:41

about that and it

5:42

kind of got brushed over that, you know, the fact that they

5:44

wanted to file an omnibus and Trump was like, no,

5:46

no, no, no, no.

5:47

It's because there's so much BS

5:50

in his multiple motions to dismiss. He

5:53

wants to create more time,

5:56

more delay for the

5:58

DOJ to have to oppose these. like

6:00

we can do two in one and especially

6:03

when we consider later their emotion

6:05

for Judge Chutkin to more

6:07

quickly address these particular

6:09

emotions because they're constitutional in nature and

6:12

could lead to an interlocutory appeal.

6:14

We'll get to that later.

6:15

That's right. That's right. And they're fundamentally

6:17

repetitive, right? All these things hit on the same

6:19

theme. So it makes sense for the government to address

6:22

them in one shot. And it's also

6:24

strategic for the government because they can,

6:27

by doing two in one, they can draw

6:29

comparisons. They can put the repetition

6:31

and the comparisons that are effective

6:34

to their motion in front of the judge in one

6:37

argument instead of having to do

6:39

it in one lane and then come back the next time

6:41

she pays attention to it in a different lane. Okay.

6:44

So in this motion, the special counsel addresses

6:46

Trump's complaint that the indictment never explained

6:48

how he violated the four statutes he's

6:51

charged with. And they address his other

6:53

constitutional arguments, including the first

6:55

amendment. So this is from

6:58

the introduction from the government's

7:00

filing. It says, the defendant stands alone

7:02

in American history for his alleged crimes.

7:05

No other president has engaged in conspiracy

7:08

and obstruction to overturn valid election

7:10

results and illegitimately retain

7:12

power. The indictment squarely

7:14

charges the defendant for this conduct and

7:17

the defendant's constitutional and statutory

7:19

challenges to it are meritless.

7:22

They go on to say, rather

7:24

than challenging the indictment on its merits,

7:27

the defendant's motions attack the indictment

7:29

by mischaracterizing its allegations,

7:32

raising in opposite hypotheticals

7:34

and advancing arguments that are long on rhetoric,

7:37

but short on law. I love that phrase.

7:40

Long on rhetoric, short on law, long

7:42

on complaints, short on substance.

7:45

So Trump argues the DOJ failed to

7:47

show how he violated the four statutes

7:50

he's charged with. So that's the basic standard

7:53

for a motion to dismiss an indictment,

7:55

right? An indictment must state with

7:57

specificity the charges that you're

7:59

facing. And with specificity doesn't mean

8:01

just quoting the statutory language

8:04

of the charge. It means you have to put enough

8:06

facts around that charge that

8:08

it gets the standard is like down in the

8:11

particulars. You have to be particular about the

8:13

conduct that the defendant engaged

8:15

in that you allege violated

8:17

the statute. So the filing

8:19

goes on to say Trump's arguments about

8:21

statutory considerations are wrong. Starting

8:25

with Title 18, USC 371,

8:28

the defendant made knowingly false claims

8:30

about outcome determinative vote

8:32

of fraud that goes to the heart of deceit,

8:35

craft, and trickery, which that's mentioned a

8:37

lot here. That's the substance,

8:39

right, Agee? That's the real meat of

8:42

the conspiracy charge that you entered

8:44

into an agreement with Confederates to

8:47

undermine the law through

8:50

deceit, through lying, through kind of

8:53

trying to fool people. Yeah,

8:54

that's absolutely it. And I think

8:56

they mentioned it upwards of like three dozen

8:59

times, deceit. And then they even put

9:01

a footnote saying, from now on, we're going to refer

9:03

to deceit, craft, and trickery as just deceit because

9:06

we're going to be using it quite a bit. And

9:08

it is. It's the basis for

9:11

the statute that draws the

9:13

line between speech and fraud.

9:16

That's right.

9:16

So Trump argues that his lies were opinions

9:19

or permissible advocacy. And

9:21

the government responds to that by saying, knowing

9:24

lies are neither opinions nor

9:26

pure advocacy. And in

9:28

any event, the defendant could not use the so-called

9:31

advocacy as a cover for his scheme

9:33

to obstruct a governmental function through

9:35

deceit. And Trump

9:38

then argues that his lies aren't deceit because

9:40

they wouldn't have fooled anyone. My

9:43

favorite argument.

9:44

Nobody listens to me. No, I can't

9:46

fool anyone. These are very smart people. They

9:48

came to me

9:49

with tears in their eyes. They're very smart.

9:50

That is actual argument. Nothing

9:53

I said could have reasonably fooled

9:56

anyone.

9:56

Yeah, my lies aren't lies

9:58

because they're really bad lies. that are

10:00

unbelievable and there's substance that

10:02

doesn't make a lot of sense. It's like Sidney Powell,

10:04

like no one can be expected

10:07

to reasonably believe anything that I say. It's

10:09

like Fox

10:10

with their, you know, defense for defamation

10:12

saying no reasonable person would believe what we say.

10:15

Would ever believe us. Yeah, that's right. I'd

10:17

say they might have had something there, though. I don't know. I mean,

10:20

MAGA uses this argument a lot. Yes.

10:23

So DOJ responds to that by saying,

10:26

lack of success provides no

10:28

defense to a charge of conspiracy to defraud,

10:31

much less any basis to dismiss the

10:33

charge. Or otherwise, defendants

10:35

captured en route to a bank robbery could

10:37

not be charged with conspiracy because their

10:39

crime did not succeed. This is

10:42

like one of those 1L law moments, right?

10:44

Your first year law student, you

10:46

learn that like lack of success

10:48

in a crime is never a defense.

10:51

You know what I thought for sure would come up

10:53

would be Bill Barr's memo excusing

10:55

Donald for his obstruction of justice

10:57

in the Mueller case because Bill

10:59

Barr just decided that there

11:01

has to be a successful underlying crime

11:04

in order to obstruct. And it's just wrong

11:06

on its face. So I thought I

11:08

might see reference to that DOJ memo,

11:10

but I didn't. I guess I'm smarter at being dumb.

11:13

Yeah,

11:14

good to see that DOJ has

11:16

abandoned their former leader's theory on

11:18

that. So they

11:20

go on to say, the defendant also asserts that his statements

11:22

were not deceptive because he genuinely

11:25

believed the election was stolen. Even

11:28

if the defendant could supply admissible

11:30

evidence of his own personal belief that

11:32

the election was rigged or stolen, it

11:34

would not license him to deploy fraud

11:37

and deceit to remedy what he perceived

11:39

to be a wrong, and it would not provide

11:41

a defense to the charge.

11:43

Yeah, and that brings up the thing that you and I

11:45

have talked about multiple times. That's the OJ

11:48

example, the thing OJ actually went

11:50

to prison for. Somebody had a bunch of his sporting

11:53

memorabilia in a hotel room in Las Vegas.

11:56

And even though it was his and he believed it was

11:58

his, you still can't break it. in with

12:00

a gun to steal it back. There

12:03

are and DOJ explains this in

12:05

this filing too, there are remedies, those

12:07

remedies going to the courts. He

12:09

did that, he lost 63 times. So

12:13

he exhausted those remedies and

12:15

you know, the DOJ brings that up. I think that's a very

12:17

good point.

12:18

Yeah, we're going to see that for sure. That's

12:21

one of the keys to his defense and these

12:23

things. You'll see it in Mar-a-Lago. It'll be,

12:25

I thought they were mine, you know, but it's

12:28

illegally insufficient. It's

12:30

the type of thing that maybe a defense would

12:32

throw out just because they want to put it

12:34

in front of a jury. They're hoping that jurors

12:37

will hang up on it, at least one of them and

12:39

say, you know, kind of like a sympathy appeal,

12:42

but on the law, it's not a sufficient

12:44

defense. Yep. Okay. So

12:46

that covers DOJ's responses

12:48

on the 371 issues. Next,

12:51

they move to the obstruction charges. Now

12:53

here, Trump argued that the indictment doesn't

12:55

allege that he violated obstruction statutes

12:58

and DOJ says that it clearly does. DOJ

13:01

says, the indictment alleges the defendant conspired

13:04

to, attempted to, and did obstruct

13:06

and impede the certification proceeding. The

13:09

indictment alleges the defendant acted corruptly. Mm-hmm.

13:12

Those are the two things you need to do. Yeah.

13:14

I mean, you really don't need much more than

13:16

that indictments. This one's extraordinarily

13:19

detailed. Most of the indictments I'd seen

13:21

over the course of my career are far

13:23

more general than this one. So

13:26

it would stun me if this motion was successful

13:28

in any respect, but nevertheless, here we are.

13:31

So finally, they turn to the conspiracy against

13:33

rights charges. And DOJ says the

13:35

indictment is proper. The indictment alleges

13:37

a criminal agreement and the requisite

13:39

mens rea, which is of course the mental state

13:42

necessary to be guilty of a crime.

13:44

Mm-hmm. Next, the government says Trump's

13:47

constitutional challenges lack merit.

13:50

They claim the First Amendment does not protect

13:52

the defendant's criminal conduct. Quote,

13:55

as the indictment recognizes the defendant

13:58

had a right, like every American, to speak. publicly

14:00

about the 2020 presidential election and

14:03

even to claim falsely that there

14:05

had been outcome determinative fraud during

14:07

the election that he had won. Had

14:10

the defendant done no more, his

14:12

statements pertaining to political matters of

14:14

public importance would have remained protected

14:17

under the First Amendment even if false.

14:20

But the defendant did not stop there. He

14:23

instead made dozens of specific claims

14:26

that there had been substantial fraud in certain

14:28

states such as that large

14:30

numbers of dead non-resident, non-citizen

14:32

or otherwise ineligible voters had cast

14:35

ballots or that voting machines

14:37

had changed votes for the defendant to

14:39

votes for Biden.

14:41

Because of the defendant used those knowingly

14:43

false statements regarding specific

14:45

facts to commit the crimes charged

14:47

in the indictment,

14:49

they were not protected by the First Amendment.

14:51

And here's where I think they hit the point

14:53

the strongest. Speech used

14:55

to commit fraud and speech

14:57

that is otherwise integral to criminal

15:00

conduct is not protected

15:02

under the First Amendment.

15:04

Yep and we just saw a couple of guys

15:06

get sentenced for

15:08

violating this exact statute

15:10

title 18 US code 241 for telling

15:14

voters that they could vote for Hillary using

15:16

text messages. That speech

15:19

is not protected under the First Amendment because

15:22

it's deceitful. It constitutes fraud

15:24

and it's very very clear. Yeah

15:27

yeah absolutely.

15:28

Trump's other constitutional argument is

15:30

that he can only be indicted for conduct if

15:32

the Senate convicted him on impeachment

15:35

while simultaneously arguing that he can't

15:38

be indicted for conduct he's been impeached

15:40

for. I know that sounds

15:42

crazy. So QJ

15:45

cites multiple judges who were criminally

15:48

prosecuted without having been convicted

15:50

by the Senate after impeachment.

15:52

And even if double jeopardy applied Trump

15:55

isn't charged for the same conduct he was impeached

15:57

for. He

15:58

was impeached for insurrection. And he's not

16:00

charged with insurrection Though the insurrection

16:03

does play a prominent role in this case as you're

16:05

about to discuss in a separate motion The special

16:07

counsel filed the same day. So You

16:11

know, I know we we hit this theme

16:13

a lot I feel like sometimes feels

16:16

like we're beating a dead horse, but you really can't

16:18

make the point often enough All

16:20

of this is about only one

16:23

thing and that is delay Because

16:26

the strategy here the criminal defense strategy

16:29

is a political strategy. That's the only

16:31

tool He's applying to this problem is politics

16:35

every one of these Claims

16:38

all of these motions most of them are founded

16:40

on things that are on their face legally

16:43

Insufficient as defenses not

16:45

every single one but the vast majority But

16:48

they make these arguments because

16:50

the making of them Leads

16:52

to the creation of delay and

16:54

the more delay you get better

16:57

The chances are that this thing gets pushed behind

16:59

the election His plan

17:01

is to win the election and make all this go away

17:04

Yeah that and to bookmark for

17:07

appeal because you have

17:07

to have a I think you have to have a motion and have it

17:10

denied To be able to appeal

17:12

on that particular thing and they know they're

17:14

gonna lose and that their best chance their best shot

17:17

Is to have a conviction thrown out on appeal.

17:19

So yeah, I think that's true But I think the

17:21

appeal also plays into the delay

17:23

strategy I'm not he can he can

17:26

continue to maintain that I haven't actually

17:28

been convicted of anything and can and

17:30

can Attempt to sail through the election.

17:32

Obviously, we'll see how that goes. But yeah,

17:35

it's all very a very consistent strategy I

17:37

think

17:38

yeah, and this kind of made me think to the double jeopardy

17:40

argument be that whole even if even if

17:43

double jeopardy applied here It's different

17:45

crimes that we he

17:47

was impeached for interaction for seditious

17:49

conspiracy he Not what

17:51

we're charging him with and that may

17:53

have played a role in you know, because we always

17:55

thought I always thought he didn't Go after insurrection

17:58

or seditious conspiracy so he could avoid First

18:00

Amendment argument and that

18:03

seems like it might be the case but also

18:05

to avoid double jeopardy arguments I mean, it's

18:07

it would it was a loser But it

18:10

opens it up for interlocutory appeal and

18:12

something that maybe the Supreme Court might be

18:14

more willing to take up Than

18:16

this, but we'll see. Yeah. All right We're

18:18

going to talk about how the attack on the Capitol

18:20

played a prominent role in this filing But we need to take a quick

18:23

break everybody stick around. We'll be right back

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All

20:38

right everybody welcome back. Andy as you

20:41

mentioned before the break the DOJ is putting the events

20:43

of January 6th front and center in

20:45

their case in chief in DC. Our

20:48

first real look basically at some of the things

20:50

Jack Smith intends to prove at trial. In

20:52

this case we've already gotten a look at what he intends to

20:55

prove down in Mar-a-Lago but in this case DOJ

20:57

filed a motion the same day they filed

20:59

that motion we just covered in this first segment

21:02

but this motion is Jack Smith's opposition

21:05

to Trump wanting to strike what

21:07

he considers inflammatory and prejudicial

21:09

language about the riot on January

21:12

6th from the indictment and DOJ

21:14

says no way. The riot at the Capitol

21:17

is central to all the charges in

21:19

this case. Here's a couple quotes from the filing

21:22

and these are really strong statements Andy

21:24

I was like kind of blown away when I read them.

21:26

They say in this case the defendant seeks to distance

21:29

himself moving to strike allegations

21:31

in the indictment related to quote the actions at

21:33

the Capitol on January 6th 2021. The

21:36

court should recognize the defendant's motion for

21:38

what it is a meritless effort

21:40

to evade the indictments clear allegations

21:43

that the defendant is responsible

21:45

for the events at the Capitol on January

21:48

6th. Indeed that day

21:50

was the culmination of the defendant's criminal

21:52

conspiracies to overturn the legitimate results

21:54

of the presidential election when the defendant

21:56

directed a very large and angry crowd

21:59

one that He had summoned to Washington,

22:01

D.C. and fueled with knowingly

22:04

false claims of election fraud to

22:06

the Capitol to obstruct the congressional

22:08

certification proceeding. When his

22:10

supporters did so, including through

22:12

violence, the defendant did not

22:15

try to stop them. Instead,

22:17

he encouraged them and attempted

22:19

to leverage their actions by further

22:21

obstructing the certification. Contrary

22:24

to the defendant's claims, then, the

22:26

indictment's allegations related to the actions

22:29

at the Capitol are relevant and probative

22:31

evidence of the defendant's conduct

22:33

and intent, and they are neither

22:36

prejudicial nor inflammatory. His motion

22:38

to strike them from the indictment must be denied.

22:41

This is some of the strongest language, if

22:43

not the strongest language, that I've

22:45

heard from, you know, they're like, the court

22:47

should deny this motion. You should consider denying

22:49

this motion. They're saying this must

22:52

be denied. This is central to our case.

22:54

Yeah, absolutely agree. And I'm

22:57

really glad to see it. And this

22:59

kind of goes back to what we were just talking about before

23:01

the break. Lots of good reasons

23:04

and clear thinking went into

23:06

the decision to not charge Trump

23:09

with insurrection. And one of the unfortunate

23:12

aspects of that is I think some people felt

23:14

a little bit—well, a lot of the people I talk

23:16

to don't even realize that he's not been charged with

23:18

that. That's a different problem. But

23:20

I think some people felt a little bit unsatisfied

23:23

with that aspect of the indictment.

23:25

I still think it was the right decision. Now

23:29

realizing how important the

23:31

special counsel team views and

23:33

how central the riot

23:35

is going to be to their prosecution,

23:37

I think it kind of returned some

23:40

balance there, right? So

23:42

this is basically like the special counsel

23:44

is telling us kind of don't

23:46

worry. This is still going to be

23:49

the centerpiece of our prosecution.

23:51

The things that we have charged him for

23:54

are a way of holding him legally accountable

23:57

for this. And I think that's

23:59

an important thing. thing to really anyone

24:02

who was offended or disgusted or

24:04

shocked or horrified by what they saw

24:06

happening on January 6th.

24:08

Yeah especially those who were there. When I read

24:10

this I was reminded of Capitol Officer

24:13

Harry Dunn who at his testimony

24:16

to the January 6th committee said you

24:18

know when a hitman goes out and kills someone you

24:20

don't just arrest the hitman you

24:22

arrest the person who sent the hitman.

24:24

That's right.

24:25

And so this right here I

24:28

feel like Jack Smith was listening and

24:30

that's where the facts and the law lead

24:33

the special counsel's office. So

24:35

you know he was responsible for the riot.

24:38

He did it. He summoned them there. He sent them there.

24:40

It was a culmination of

24:43

him trying to retain power. And

24:45

they go on to say information about the January

24:47

6th attack on the Capitol is relevant to all of

24:50

the charges against the defendant. And

24:52

Trump knows that right because in other

24:54

filings Trump argued he

24:57

can't be criminally charged because he was impeached

24:59

for the attack on the Capitol. And

25:01

in Trump's motion to subpoena the missing

25:03

January 6th select committee material

25:06

the quote-unquote missing material, Trump

25:08

literally says in that motion the

25:11

indictment directly alleges Trump directed

25:13

supporters to the Capitol to obstruct the certification

25:16

proceedings.

25:17

Oops.

25:19

Like you just

25:21

admitted. Did I say that? I didn't know

25:24

what I'm trying to say is the indictment doesn't

25:27

allege that I did that. So

25:29

it does but it doesn't. Quote,

25:32

thus as the defendant has acknowledged in his other

25:35

filings the charged allegations that the defendant

25:37

seeks to strike are plainly relevant to

25:39

all the counts in the indictment. And here's the big reveal.

25:42

Jack says, I'm

25:43

talking Jack like he's my pal, at

25:47

trial the government will prove these allegations

25:49

with evidence that the defendant's supporters

25:52

took obstructive actions at the Capitol

25:54

at the defendant's direction and on

25:56

his behalf. The indictment also

25:59

alleges and the government will prove at trial

26:01

that the defendant used the angry crowd at the Capitol

26:04

as a tool in his pressure campaign

26:06

on the vice president and to obstruct

26:08

the congressional certification. And

26:10

in particular the government will establish

26:12

through testimony and video evidence

26:15

that after the defendant repeatedly and publicly

26:17

pressured and attacked the vice president the

26:20

rioting crowd at the Capitol turned

26:22

their anger toward the vice president when

26:24

they learned he would not halt the certification asking

26:27

where the vice president was and chanting

26:29

that they would hang him. Next

26:32

the government will prove that the defendant's

26:34

knowing and corrupt intent is clear from

26:36

his actions and purposeful inaction

26:39

during the attack on the Capitol. The allegations

26:42

in the indictment are not unduly prejudicial

26:44

or inflammatory. In fact evidence

26:46

of the attack on the Capitol on January 6th

26:49

is powerful and probative evidence of

26:51

the defendant's conduct motive

26:54

and intent. That's big

26:56

stuff.

26:56

So not only is it not going to be scrubbed

26:59

from the indictment it's all going

27:01

to be entered at trial and we're gonna rub your nose

27:03

in it you're gonna have to sit there behind the defense table

27:06

and watch the videos as

27:08

the jury sees them in real

27:10

time. They're already preparing

27:12

their motions to exclude evidence

27:15

everything that's been hinted at

27:17

here I'm sure will be the target of one of those motions

27:19

but I think they have super low likelihood

27:22

of success and we'll see that when the judge

27:24

decides this motion I think. And

27:27

in another important motion this week the DOJ

27:29

is opposing Trump's motion to stay the

27:31

entire case based on total

27:34

presidential monarchy. Okay

27:37

immunity not monarchy. I

27:39

can't let a week go without making that joke. And

27:41

they urge Judge Chutkin to rule on the motions

27:44

that are subject to in locutory appeal

27:46

first. Those are the motions with constitutional

27:49

considerations including Trump's motion

27:51

to dismiss on double jeopardy grounds

27:53

and total presidential immunity.

27:56

Because constitutional considerations are subject

27:58

to interlocutory appeal.

27:59

as we discussed in the last couple weeks, they

28:02

could delay the trial until the motions are settled.

28:05

And so here's what DOJ had to say.

28:08

Quote, although the defendant's motion for

28:10

a stay of the court's proceedings at this stage

28:12

is meritless and should be denied, it

28:15

is a harbinger of the defendant's plans to

28:18

use any means, including by manipulating

28:20

the timing of any appeal to

28:22

derail these proceedings. The defendant

28:24

delayed filing his immunity and stay motions

28:27

to maximize his chances of delaying

28:29

this trial. Past

28:31

practice shows that he will undoubtedly

28:33

do the same in the event the court denies

28:35

his immunity motion and that decision is

28:38

subject to interlocutory appeal. To

28:41

limit such disruption, the court

28:43

should promptly resolve the defendant's immunity

28:45

motion, as well as his double jeopardy

28:47

claim that is also potentially subject

28:49

to interlocutory appeal, so

28:51

that the government can seek expedited consideration

28:54

of any non-frivolous appeal and preserve

28:57

the court's carefully selected trial

28:59

date. The court should

29:02

deny the defendant's motion to stay. Separately,

29:04

the court should promptly consider and decide

29:06

the defendant's immunity motion and double

29:08

jeopardy claim. So you see

29:10

it right here, right? They are trying to

29:13

keep the pedal to the floor and to keep this thing

29:15

moving forward. They are kind of looking

29:17

down the road at potential opportunities

29:20

for interlocutory appeal that could stop,

29:23

halt the entire proceeding while the appeals

29:26

are worked through the system. And

29:28

they have to, they're left with no

29:30

alternative, but to try to think around

29:33

corners here.

29:33

Yeah, and next up, Andy, remember

29:36

when Department of Justice asked the

29:37

court to require Donald Trump

29:39

to

29:39

notify everyone if he intended to use the

29:41

advice of counsel defense? I

29:43

do remember that. They wanted that notification by

29:46

December 18th, because that's when evidence is due.

29:48

Then Trump filed his motion

29:51

to oppose

29:51

that. You can't do that. It's unconstitutional.

29:54

You should have asked sooner, but okay, I can do it.

29:56

January 15th, how's that? Well,

29:58

we have a ruling from Judge- She

30:00

says, in this case, the court need not decide

30:02

whether it has authority to order the defendant to provide

30:05

notice because he agreed to provide notice

30:07

to the prosecution of whether he intends to

30:09

pursue a formal advisory council defense by

30:12

January 15, 2024. But

30:14

see, Trump wanted to notify the court on January

30:17

15th, but then have the court set a

30:19

briefing schedule and hearings to

30:22

determine when he would have to hand over all the discovery.

30:25

But Trump provided no precedent for

30:27

that, and the judge says it goes against

30:29

the standard practice that disclosure usually

30:32

accompanies notice. So

30:34

sorry, Charlie. As

30:36

he has consented to do, defendant shall

30:38

provide formal notice whether

30:40

he intends to assert an advisory council defense by January

30:43

15th. If the defendant does provide

30:45

affirmative notice, he must also provide

30:47

the required discovery to the government at

30:50

that time. Any communications

30:52

or evidence defendant intends to use

30:54

to establish the defense and otherwise privileged

30:56

communication that defendant does

30:58

not intend to use at trial but that are relevant

31:00

to proving or undermining the advice of council defense.

31:03

You have to give it over in its entirety on

31:05

January 15th. There's not going to be a briefing schedule

31:08

and hearings and all that. So you said January 15th. I

31:10

agree. Normal way

31:12

this is done is that all of the stuff

31:14

has to accompany your notice. So you have till January

31:17

15th.

31:18

It's coming up, but I mean, let's

31:20

be honest. I'm sure they're already drafting

31:23

the appeal of this decision, and

31:25

so we'll be briefing this

31:27

one in the next couple of weeks. All

31:30

right. So some other filings that came in this

31:32

week. On November 3rd, DOJ's

31:34

opposition to televising the trial. So

31:36

we have no decision here yet, but I

31:39

think the judge will probably agree with DOJ

31:41

on its kind of rule of law argument. I

31:43

don't think the judge or DOJ

31:46

wants to kind of upset the apple cart

31:48

of standard practice with anything along

31:50

the lines of television coverage, but we'll see how that

31:52

goes. Also on November 3rd,

31:55

DOJ's opposition to pretrial

31:57

motion to delay. Trump asked for two months.

32:00

On 11-6, Trump filed his reply

32:02

making the same arguments, and on 11-7, Judge Chutkin

32:05

gave him an 18-day extension. The deadline

32:08

for filing pretrial motions has now been moved

32:10

from November 9th to November 27th.

32:13

And then finally on

32:15

the don't call it a gag order, as

32:17

we know Judge Chutkin denied Trump's motion

32:19

to stay the gag order and then reinstated

32:22

it. She first stated it and

32:24

then she decided it would not be stayed

32:26

pending the appeal. And then Trump went

32:28

to the DC Circuit Court of Appeals who

32:31

granted him a temporary stay pending

32:33

his appeal. So this week we got word

32:35

from the DC Court of Appeals that they would hold oral

32:37

arguments on November 20th at 9.30 a.m. Anybody

32:41

who wants to be there, I advise getting there early. And

32:43

they are giving each side 20 minutes to

32:45

make their case. Trump's brief for the appeals

32:47

court was due on November 8th, DOJ's response

32:50

is due on the 14th, and Trump's reply

32:53

is due November 17th. So

32:56

bottom line is super expedited

32:58

briefing schedule to resolve this issue

33:01

at the circuit court level. I

33:03

think it's a good sign for future appeals. The

33:05

court is obviously watching this case. They know

33:07

kind of how important the timing

33:09

is for both sides, important for the

33:12

government to be going forward quickly and important

33:14

for the defense to slow things down. And

33:16

they seem to be in highly responsive

33:19

mode here.

33:20

Yep, and we did get Trump's brief on

33:22

11-8, and it

33:23

just makes all his same arguments to

33:25

stay as before. So

33:28

there was nothing. Yeah, we've heard them at least in

33:30

two rounds now, and we'll continue hearing

33:32

them. And if the circuit court goes the

33:34

government's way, I fully expect they'll

33:37

request Supreme Court review. I doubt they'll

33:39

get it, but we'll see.

33:41

Yeah, and then finally, Jack Smith filed

33:43

a motion to strike Donald

33:45

Trump's SIPA Section 5 filing.

33:48

So I asked our SIPA expert, Brian Greer,

33:50

about this, and he posits that it's

33:53

along the lines of what he and I discussed last week,

33:55

that perhaps his filing, Trump's filing,

33:57

failed to be specific about which documents

33:59

he's in. after what classified documents he wants.

34:02

You'll remember in a different filing he asked

34:04

for the missing January 6th

34:06

committee documents and a DOJ

34:09

opposed that saying rule 17 subpoenas

34:11

have to ask for specific stuff. You can't just

34:13

be like whatever's missing just give it to me.

34:16

So Brian said last week Trump may

34:18

run into the same problem here. So

34:20

because we know Trump wants classified documents

34:23

relating to the intelligence

34:24

community's report

34:26

that the election was free from foreign manipulation.

34:29

That's one of the classified documents that

34:32

is in this trial. There's a very limited

34:35

number of classified documents in the DC trial and

34:37

Trump was like well I have to be able to

34:40

get every single classified document that supports

34:42

or goes against or opposes this IC

34:45

report and Brian

34:47

was like maybe that's what he put in his SEPA section 5 request.

34:50

He may not have been specific and

34:52

that may be why Jack Smith gave

34:55

it a motion to strike. We don't know a lot

34:57

of this stuff is under seal but if we learn more we'll

35:00

certainly let you know. All right we're going

35:02

to head down to Florida but we have to take a quick

35:03

break. Everybody stick around we'll be right back.

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All right everybody, welcome

36:49

back. We're going to head down to Florida with some

36:52

reporting from your colleagues at CNN.

36:55

Yes, yes. Cindy, this gets to the heart

36:57

of what you and I discussed a long time

36:59

ago about why these investigations can take

37:01

so long. I'd asked you what this kind of investigation

37:04

entails and you talked about having to interview every

37:06

visitor, member of the staff, visitor

37:09

log, contractor, anyone that

37:11

had been near any of

37:13

the classified material at issue or even in the

37:15

proximity thereof or just at Mar-a-Lago.

37:18

And so this story comes from Caitlin Polance and Paula

37:20

Reed at CNN. A plumber, a

37:22

maid, a chauffeur

37:23

and a woodworker are among the Mar-a-Lago staffers

37:25

and contract workers who federal prosecutors

37:27

may call to testify against former President Trump and

37:30

his two co-defendants at their upcoming trial in

37:32

Florida. The low-level workers

37:35

who were the eyes and ears of Mar-a-Lago, if

37:37

called to testify, could offer the public

37:39

a new level of insight into the exclusive club

37:41

and Trump's approach to sensitive national

37:43

security information since he had left office.

37:46

Some of them are still employed at Mar-a-Lago.

37:49

Currently, the trial is set to begin in Florida in

37:51

May, well before the 2024 presidential election. But

37:54

that could change. We'll get

37:56

to that in a second. The potential witnesses

37:58

have already spoken. Some multiple times. times to

38:00

federal investigators in detail about

38:02

the level of security, which was

38:04

very shitty, at the Mar-a-Lago resort,

38:07

including how the boxes of documents were kept, whether

38:09

they were

38:18

visible or could have been accessed by visitors at

38:20

the property, like the ones in the ballroom or the

38:23

bathroom.

38:24

A woodworker from South Florida, for instance,

38:26

was installing crown molding in Trump's bedroom

38:29

in February of 2022 and noticed some papers.

38:32

He thought they might have been movie props. A

38:34

chauffeur was asked by investigators about

38:37

powerful business people, including foreigners

38:39

who had visited the club as VIP guests, and

38:41

that's according to a source. For instance, the chauffeur

38:43

described farrying around the Australian billionaire,

38:45

Anthony Pratt. That's the one that Trump told

38:47

about our sub capabilities and how

38:50

close they can get to Russian subs without

38:52

being detected. Some

38:54

of the people identified to CNN as possible

38:56

witnesses are longtime Trump property

38:58

employees who live in South Florida and

39:00

had heard through word of mouth, through the grapevine,

39:03

about Trump workers' focus on attempting

39:05

to delete the

39:06

security footage. Everybody

39:08

knows. I mean, this is like the standard wind

39:10

you hear from any informant. Like,

39:13

how do you know that happened? Everybody knows it happened.

39:15

And to some degree, it's true. It's like

39:18

there's a level of chatter

39:20

that takes place in any community. And

39:22

apparently the chatter at Mar-a-Lago was how

39:24

much the boss wanted the video destroyed.

39:27

I mean, I just...

39:28

Yep. That's the hot guy. That's the tea

39:31

at all the local pubs. Now, the federal

39:33

investigators diving deep into Mar-a-Lago

39:35

payroll angered the former president

39:37

who winters at the Florida property and regularly

39:40

makes photo opportunities with guests at the club. When

39:42

the maid who cleans his bedroom suite was asked

39:44

to speak with investigators, Trump's response

39:47

was, quote, ballistic,

39:48

according to a source. Don't tell

39:50

them what I look like in pajamas.

39:53

You seal to... Man, if I cleaned

39:55

up after Trump,

39:56

I'd be writing

39:58

a book.

39:59

I feel Taveras, our

40:02

employee number four, the one who got a new lawyer

40:04

and is cooperating. He only

40:06

recently resigned. Trump didn't know

40:08

he continued to be employed at the club. Remember

40:10

we talked about this, following his split

40:13

from a Trump-provided lawyer this summer, and

40:15

the former president was very unhappy to hear that

40:17

Taveras had still been working there.

40:20

What? You and I were like- You're

40:22

kidding. Well,

40:24

can you get him on the phone? I

40:27

forgot my password. I

40:30

mean, I have such-

40:33

the substance of this is so offensive

40:36

to anyone who has worked with classified

40:39

documents, but yet you can't get through the

40:41

story without laughing. Starting with the beginning,

40:43

which- how much does this sound

40:45

like the setup to a joke? A plumber made

40:47

a chauffeur and a woodworker walk into a bar together.

40:50

I mean, like, you can't make this stuff

40:52

up. Nope. It's just unbelievable.

40:55

And those

40:55

are just the folks that work there. We have all the

40:57

people being arrested

40:59

for faking to be Rothschilds. We've

41:01

got the Chinese spy with the

41:03

devices. I mean, jeez. That's right.

41:05

And remember to- part of the reason- and

41:07

this goes back to the conversation we had the last time-

41:10

it's an unbelievably detailed and kind of

41:12

broad-in-scope investigation because

41:14

there's two things going on here. One, yeah,

41:16

they're looking for potential witnesses, people who

41:20

could offer interesting or compelling

41:22

testimony at trial. But two, they're

41:24

also conducting a threat assessment to figure

41:27

out what is the damage from having all

41:29

this top secret stuff all over

41:31

this mess of a club or whatever

41:34

it is. So you have to talk to

41:36

every single person who could possibly have

41:38

interacted with this material and

41:40

then you start looking at each one of them

41:42

to determine like, is this person

41:45

actually a foreign agent or

41:47

working at the behest of a foreign agent? Is there a danger

41:49

that this person might have shared this information with

41:51

someone else? So yeah, I think

41:54

we're just starting to see some of the details

41:56

of how complete the

41:58

government's work needs to have been. been here

42:00

and looks like it was so good for them. Yeah for

42:02

sure. All right so let's

42:04

talk about something that you just mentioned which is

42:07

the trial schedule and we

42:09

know that the trial is still on for May but

42:12

that trial date could be in jeopardy. So as

42:14

you know Trump filed a motion to delay the entire

42:16

trial and several SIPA deadlines

42:18

and Judge Cannon issued her decision today

42:21

granting Trump's motion in part and

42:23

denying it in part. So we have

42:26

reporting on this from Roger Parloff.

42:28

Judge Cannon's order today not only

42:31

postpones many trial deadlines in

42:33

the United States versus Trump, won

42:35

by as much as 17 weeks, but

42:37

also suggests that she may allow an unprecedented

42:40

approach to a SIPA issue that

42:42

may force the government to bring an interlocutory

42:45

appeal. The coming dispute involves

42:47

the classified information procedures

42:49

or SIPA section 4 which

42:52

permits the government to turn over classified documents

42:54

and discovery in a summarized or

42:57

redacted form so the defense doesn't

42:59

see national defense secrets that are irrelevant

43:01

to the case. So SIPA

43:03

provides that the way to do this is for the government

43:05

to show the documents and the proposed

43:08

redactions to the judge in a

43:10

sealed ex parte procedure. So that's a procedure

43:12

without the defense present. And

43:15

for the defense to simultaneously

43:18

outline its defense theories to

43:20

the judge also ex parte.

43:22

So just the defense and the judge. The

43:25

judge then decides if redactions are fair.

43:28

Trump wants new rules for him of course

43:30

right. He wants his lawyers to see the

43:32

secret documents and then to be able to argue

43:35

in an adversarial proceeding that the redactions

43:37

aren't fair. He basically wants to turn

43:40

the government's submissions of potential

43:42

redactions into a hearing. Now

43:45

he tried the same thing in the DC case and

43:48

in DC Judge Chetkin denied Trump's request

43:51

noting that such a procedure

43:53

was unprecedented and would defeat

43:55

the purpose of the statute.

43:57

But based on the new schedule Cannon is ordered

43:59

it looks like she...

43:59

might grant Trump's request

44:02

in the Mar-a-Lago case. Her original

44:04

schedule followed normal procedure. It called

44:06

for the government and Trump to submit simultaneous

44:09

Section 4 briefings, both ex parte,

44:11

as we just discussed, on October

44:13

4th. It then scheduled a hearing, presumably

44:16

a sealed one, for a week later on

44:18

October 17th to resolve disputes.

44:21

Now the new schedule is completely different.

44:24

The government is to file its Section 4 motion

44:26

on December 4th. That

44:28

same day, Trump is supposed to file

44:30

a motion contesting the ex parte

44:33

nature of the process, which that's

44:35

the piece that really opens the door to

44:37

completely changing the process as it goes forward.

44:41

Then

44:42

seven weeks or so later, on January

44:44

23rd, Trump files

44:47

a defense challenge to Section 4 motions.

44:50

Now this can only be possible if Cannon

44:52

has granted Trump's motion to

44:54

discard the ex parte procedures

44:57

and proceed adversarially. Cannon

44:59

then called for a two-day hearing on the government Section 4

45:02

motions for February 15 to

45:05

February 16th. Now it's hard

45:07

to imagine a two-day hearing that isn't adversarial,

45:09

right? The government's not gonna stand up there and talk by

45:11

themselves. Right. So if

45:13

Cannon grants an adversarial approach

45:16

to Section 4, that's

45:18

what will trigger the government's appeal,

45:21

which would be interlocutory,

45:23

and it would

45:24

really blow away any notion of a pre-election

45:27

trial on the Mar-a-Lago case. So

45:29

while she's keeping the May trial date, yeah,

45:32

it could all get blown up.

45:33

But I think the government, if they do appeal,

45:36

that they can also pair that with a

45:39

get her off this case. But

45:42

as a lot of people pointed out today on

45:44

social media and experts talking

45:47

like on MSNBC and stuff, they were like, look,

45:50

she basically is

45:53

trying to delay this without creating

45:56

an appealable remedy. But eventually,

45:58

Hugo Lope. pointed this out to

46:01

Andy. Eventually there will be an appealable

46:03

remedy if she decides to take

46:05

SIPA 4

46:06

to an adversarial

46:08

hearing as opposed to an ex parte.

46:10

So there are appealable

46:11

things and that those can be, some

46:14

of them can be expedited. I think

46:17

anything SIPA

46:18

can be expedited if the DOJ asks

46:20

for it. But you know folks like

46:22

Harry Lippmann are saying they could also then potentially pair

46:24

that with a motion for her to recuse.

46:26

But we'll see what happens but

46:28

it seems like she wants to delay it without quite doing

46:31

it yet. And I think there's a hearing on March 1st

46:34

for her to revisit the trial date and

46:36

by then it's just going to, like you said, it's

46:38

going to be totally blown out of the water. It's going to be an impossibility. Yeah,

46:40

she's basically backing herself into it.

46:42

Each one of these is a little brick. She's

46:45

not come out and said I'm actually building a

46:47

wall here but she's laying brick by brick by

46:49

brick and eventually she'll step back from it and say

46:51

like oh look, we have a wall. I mean that's essentially

46:53

where you're going. It'll be an unavoidable

46:57

reality by the time she actually confronts

46:59

the delay motion or looks

47:01

at officially changing the schedule.

47:04

Yeah, all right. Well, we've got

47:06

one more motion in Florida to cover and then

47:08

listen to questions. But we need to take another quick short break.

47:10

Everybody stick around. We'll be right back.

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All right.

48:42

Welcome back. The final filing we got

48:44

through all these motions. The final motion is the

48:46

Department of Justice's Advice of Counsel

48:49

motion, right? This is

48:51

just like they filed up in D.C. in

48:53

order to keep the trial date on schedule. We

48:56

need to know if he's going to use an advice of

48:58

counsel because then he has to give all the stuff and

49:00

we have to investigate it and look through it all. And

49:03

then decide, you know, we have to figure it out and put

49:05

it in discovery. And then we have to give everything we find

49:07

through our investigation to them so it

49:09

can make it to discovery trial. This

49:12

process is going really well up in D.C. This

49:14

is another way everything that gets

49:16

filed in Mar-a-Lago I see as

49:18

a chance to delay. They're trying to head that off

49:20

at the pass. We'll see how long.

49:23

Let's see. Should we put up a head of lettuce

49:25

and see how long it takes Judge

49:28

Cannon to decide this one? You know,

49:30

she could wait months and then be like, OK, yeah,

49:32

how about how about April,

49:34

you know, like a month before?

49:37

So this is just the further

49:39

opportunity for this. And it's all the same reasons he's

49:42

already, you know, said publicly. He plans

49:44

on using an advice of counsel. But

49:46

DOJ wants this sooner

49:48

so that they can try as best

49:51

they can not to derail this trial

49:53

date. But what's interesting, they filed this after

49:56

Judge Chuck Cannon D.C. approved their

49:58

motion up there. So I was wondering. if they were

50:01

like, let's wait till she approves the one up there

50:03

and then file it down with Cannon so that Cannon

50:05

has an example.

50:07

But a little wind behind the sails. You know, like,

50:10

hey, see, this is how regular

50:12

judges do things.

50:15

It's so crazy, though. Like, I never, I

50:17

don't think there's ever been such a clear case where

50:19

you could compare two ongoing criminal

50:22

prosecutions at the same time. It's like government

50:24

versus the same defendant in different

50:26

jurisdictions and very different judges.

50:29

And I'm just totally committed to keeping

50:32

to the schedule and is actually issuing orders

50:34

that are consistent with that. And another one,

50:36

who we just discussed,

50:38

it seems to be all in for

50:41

letting this thing slow down as much as possible.

50:43

It's really frustrating. You can see how it should

50:45

be done. There's a good example and you can see how

50:47

it's happening in Florida. Yeah,

50:49

this is going to be, I think, studied for years

50:51

and years and years and years in law school about

50:54

two different judges, the tale of two judges. And

50:57

there because there's SIPA in both, there's

51:00

the same motions in both, motions to dismiss,

51:03

stays. Now there's no gag order down in Florida because

51:05

we aren't expecting that. But,

51:07

you know, Trump isn't attacking the judge in

51:10

Florida or anybody in the courtroom or

51:12

the Floridians who live down there.

51:14

But he's certainly going after the prosecutors

51:17

and potential witnesses. We'll see what

51:19

ends up happening. Obviously, we'll keep an eye on it

51:21

for you. That's our job.

51:22

Do we have some listener questions

51:25

this week, my friend?

51:26

We do. We had a bunch

51:28

of really good ones. And so I picked

51:30

two because I think we can answer them both pretty quickly.

51:32

The first one, I like it because

51:34

it's kind of a capstone to all of our

51:37

conversations today about

51:39

delay and what's the long term

51:42

goal with that. So this one

51:44

comes to us from Scooby Drew. I

51:47

like the name there. Scooby

51:49

says or Drew says, I don't know which

51:51

you go by. First, a big thank

51:53

you to your both for the enormous amount of good work

51:55

that you're doing to make this giant pile

51:58

of shite understandable for all of us. plebes

52:00

and neophytes. Again, of

52:02

course the question begins with object flattery.

52:05

And so thank you Scooby, appreciate that. Okay,

52:08

my question. I am convinced that DT is

52:11

all in, which is a poker term, on

52:13

the path of pardoning himself if he

52:15

wins the election. Could you define the powers

52:18

of presidential pardon for clarity? What

52:21

can he pardon and what can't he pardon? If he

52:23

is not yet convicted, can he pardon himself from

52:25

the charges prior to conviction? So this

52:27

is an easy one to answer. The pardon

52:29

power is basically limitless.

52:32

He can do pretty

52:34

much whatever he wants. He can pardon and

52:37

you know legal scholars will tell you that the

52:40

official Supreme

52:42

Court interpretation, Supreme Court has never

52:44

officially weighed in on the idea of whether or not

52:47

the president can pardon himself. I'm

52:49

here to tell you he'll do it and then

52:51

that case will fight its way through the Supreme

52:54

Court for gosh knows how many years

52:56

but the fact is the effect

52:58

of it will take place. You

53:02

can pardon people ahead of time.

53:04

There was some conversation about that back towards

53:06

the end of his administration. People who are asking

53:08

for pre-emptory pardons,

53:11

that is actually a thing. You could say to your,

53:14

for instance, you could say, I hereby

53:16

pardon my Secretary of State for anything

53:19

illegal he might have done or for any

53:21

allegations of illegality that come up pertaining

53:24

to the time period he served in my administration.

53:26

So things like that you can do. What

53:28

you can't do is he cannot pardon

53:30

himself or anyone else for criminal

53:33

actions that are taken up by the states.

53:36

The pardon only affects federal

53:38

cases so that's pretty

53:40

much the only limitation on it. Think of anything

53:42

I forgot to cover. And future crimes.

53:44

You can't pardon crimes

53:46

that haven't happened yet. You can pardon if

53:49

these crimes that have happened that haven't been charged yet

53:51

but you can't really

53:51

pardon future crimes.

53:54

Although that's never been litigated.

53:57

Although I will say this, Department of Justice... In

54:00

their response

54:03

to Trump's motion

54:05

to dismiss the DC case for absolute

54:07

presidential immunity, brought up

54:10

several hypotheticals.

54:13

If you couldn't charge a president, a president could

54:15

do this, a president could do that, a president could call

54:17

out the National Guard against his political

54:19

enemies, a bunch of

54:21

stuff that Trump's done as

54:25

hypotheticals to say, if you

54:27

can't go after a president for crimes

54:29

that he committed while in office, a president would be

54:32

able

54:33

to corruptly pardon someone.

54:35

They brought that up,

54:37

corrupt pardons, saying that corrupt

54:39

pardons

54:40

are illegal. Yeah.

54:42

And they did that in that filing. And I thought

54:44

that that was interesting

54:45

because I think right around that same time, there was something

54:47

like Sidney Powell, Michael Flynn, some

54:50

stuff was going on with

54:52

them. I think probably what they were

54:54

referring to there is like

54:56

a corrupt pardon would be a president who takes

54:59

money in return for pardoning someone.

55:01

That's very clear.

55:04

That would be the heart of a corrupt pardon, right? You're

55:06

pardoning someone for your

55:09

own financial benefit. And so the DOJ,

55:12

I would expect, take the position

55:14

that that would be an excessive use,

55:16

a criminal use of the pardon. It's actually an

55:18

act of political corruption rather than just

55:20

a pardon. But

55:22

I don't know. It's an interesting question.

55:24

And there is a fair amount of gray

55:26

area here. But when you go back

55:29

to the language of the Constitution, it's pretty

55:31

broad. Yeah. And you could certainly litigate

55:33

it. But I'm pretty

55:36

confident this Supreme Court would say, sorry,

55:38

pardon power is hugely broad.

55:40

There's nothing to do.

55:42

All right. So that's Scoobies. And the last question

55:44

is from Rick. Rick says, as a former

55:46

assistant US attorney and deputy independent

55:49

counsel, I'm a big fan of your podcast. Thank

55:51

you, Rick. Here's my question. If

55:53

there is a government shutdown next week, will

55:55

that delay the former guys federal trials?

55:59

Rick, my answer is

56:02

There is the kind of essential business,

56:05

you know, anything that is, I know

56:08

in DOJ from having been through this exercise

56:11

quite a few times looking down the barrel

56:14

at a government shutdown, we have to go through a process

56:16

of determining which employees are essential

56:19

and which functions of the

56:21

department are essential. And

56:23

any ones that are not deemed essential get essentially

56:26

turned off. Those people get sent home for

56:28

the period of the shutdown. But ongoing

56:30

criminal prosecutions, because there

56:32

are these constitutionally protected deadlines

56:35

and processes in place, they

56:37

are always treated as essential

56:39

functions and they continue despite

56:42

the cutoff of funding.

56:44

So such as a defendant's right

56:47

to a speedy trial or the public's

56:49

right to a speedy trial?

56:50

That is correct. Yeah. So you're not going

56:52

to just like drop a, you know, a pause into

56:55

all, you know, currently ongoing

56:57

federal criminal trials simply because there's no money

56:59

to pay the people who have to work them on the federal

57:02

side. Those people have to all continue

57:04

working through the shutdown

57:06

because they're considered essential personnel. And

57:09

the idea is that when the funding opens up again,

57:11

they get paid for all that work that they did.

57:14

But that's, that's down in the weeds on the, on

57:16

the funding side. Right. Yep.

57:19

Good question, though. I can tell you one thing that won't be

57:22

closed because of the potential shutdown.

57:25

And that is the Jack podcast. We'll

57:27

be here. We will be

57:30

essential to, that's right.

57:33

We're essential to your understanding

57:35

of this shite as Nor

57:38

will Jack, special counsel's office as

57:40

we've gone over several times is funded by

57:42

a permanent fund in the US treasury. And

57:45

that is controlled by the attorney

57:47

general. So he doesn't go away.

57:50

That's right. If they wanted to in

57:52

Congress do a Holman rule thing, it would have

57:54

to be passed the Senate and be signed by Biden. So

57:57

don't worry about defunding.

57:59

Jack Smith.

58:00

That's right. It can't happen. It

58:03

can't happen. He's got too many motions to respond

58:05

to, so. Way too many, we have too

58:07

many to tell you about. Plenty

58:10

of business if you're a special counsel. Well,

58:13

this has been a great week. The questions are great, man.

58:16

The listeners to this show are just so smart

58:18

and so thoughtful and so complimentary.

58:21

Yes, yes, I love that they think of that all

58:23

on their own.

58:24

It's a great reading through the questions every week. It's

58:26

hard picking just a few, but really

58:29

appreciate all the ones and even the ones

58:31

that may not make it to the show, I

58:34

go through them assiduously and it really helps

58:36

me think about what to talk about. But

58:39

awesome 50th show. Thank

58:41

you for all the work you put into it, Agee. I really

58:43

appreciate it. I am coming

58:46

to you this week from Siem Reap,

58:48

Cambodia. And it's looking like a

58:50

rainy day here, which is unfortunate, but we're

58:52

gonna go out and do some fun things.

58:54

Oh, holiday in Cambodia.

58:55

That's right. Nice. Exactly,

58:58

exactly.

59:00

Anyway, thank you all so much for listening.

59:02

If you have a question, you can send it into us using

59:04

the link in the show notes. We really

59:06

appreciate it. This has been a hell of a week and

59:08

I don't expect it to slow down at all. So thanks

59:11

for listening so much. My name's Alison Gill.

59:13

And I'm Andy McCabe. And we'll see you next

59:15

week on Jack.

59:20

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59:56

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59:58

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