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or chat anytime. W

1:00

media. I

1:04

signed an order appointing Jack Smith. And

1:07

those who say Jack is a fan.

1:10

Mr. Smith is a veteran career prosecutor.

1:12

Wait, what law have I heard? Events leading

1:14

up to and on January 6th.

1:17

Classified documents and other presidential records.

1:19

You understand what prison is? Send

1:21

me to jail. Welcome

1:30

to episode 55 of

1:33

Jack, the podcast about all things special

1:35

counsel. It is Sunday, December 17th, 2023.

1:39

I'm your host, Andy McCabe. Hey,

1:42

Andy, I'm Alison Gill. Wow. Okay.

1:44

So this week was

1:46

probably the most consequential week in

1:49

the DC case against Trump. Or

1:51

even in modern history. The

1:54

DC trial is currently. It was a

1:56

week that we're living in for me. Yes,

1:58

it definitely is. So

2:00

the DC trial is now on hold. It is

2:02

stayed in a ruling by Judge Chutkin. And

2:05

Jack Smith has played his

2:07

draw for reverse draw for a combo

2:09

card by leapfrogging the

2:12

appeals court to petition the Supreme

2:14

Court to hear Trump's

2:16

immunity appeal, effectively boxing the

2:18

former president in. And

2:20

not only that, of course, but

2:23

SCOTUS has agreed to hear the

2:25

Fisher case, which of

2:27

course is about how to interpret Title

2:29

18 USC, our favorite, Section 1512C2, which

2:32

over 300 January 6

2:37

writers and Donald Trump are charged with. And

2:41

today we're going to discuss that case with

2:43

the University of Texas law professor Steve Vladek.

2:46

I am so glad he's joining us to explain

2:48

this. And if

2:50

all that weren't enough, we have

2:52

Jack Smith's notice of experts. He plans

2:54

to call it trial that will show who

2:56

was using Trump's phone on January 6 and

2:58

where they were, which is

3:00

what we were talking about with

3:02

that Twitter search warrant. We

3:06

have a missing binder of

3:08

highly classified crossfire hurricane documents. I

3:10

don't know if you know anything about crossfire hurricane, Andy,

3:12

but I know a couple things about it a little

3:14

more than I'd prefer to know at this point, actually.

3:17

But it's used to never die.

3:20

We also have Jack Smith's response to

3:23

Trump's ridiculous, overbroad,

3:25

immaterial motions to compel discovery.

3:29

We have the DOJ getting

3:31

John Eastman's disbarment transcripts and

3:35

repeated outreach from Trump

3:37

and his pals to a cooperating witness in

3:39

the Mar-a-Lago case. So

3:41

any thoughts that this thing would slow down in

3:43

December has gone right out the window. That's

3:46

absolutely right. You know, it can't

3:48

slow down because we all know

3:50

that Trump's interlocutory appeal on immunity

3:52

and double jeopardy grounds must

3:55

be decided before jury selection is

3:57

set to begin on February 9.

4:00

which is less than two months away.

4:03

So, let's say we start there. Sounds

4:06

good? Yeah, yeah. It was

4:08

like a bam, bam, bam, bam. We

4:10

got appeals courts, SCOTUS, appeals courts, SCOTUS,

4:12

like all in a day

4:14

or two. I mean, it was so,

4:16

and you know, you and I talked about imagining

4:19

that this would go quickly based

4:22

on the appellate court's expedited

4:24

briefing schedule in the limited gag order. They

4:26

heard that lickety split, right? We're like, they're

4:28

gonna, I'm like, they're gonna go fast on

4:31

this and boy, boy did they. Yeah,

4:33

yeah. They've been very responsive so

4:36

far and that fortunately that is

4:39

holding firm. So, here

4:41

we have Jack Smith who filed

4:43

for a motion for expedited review at

4:46

the DC Circuit Court of Appeals on

4:48

December 11th. That

4:50

same day, the appeals court granted

4:52

expedited review and ordered Trump to

4:54

respond on the 13th and DOJ

4:56

to respond on the 14th. So,

4:58

that's that very responsive hustle

5:01

approach. Two days, yeah. They're getting diving right

5:03

into it. So, then out of

5:05

the blue, we're taking

5:07

everybody by surprise. I literally couldn't even sort

5:09

through the orders as this news was breaking

5:11

one after another. I'm like, hold on a

5:13

second. Are they getting the names of the

5:15

courts wrong? Yeah. Because Smith

5:17

then filed with the Supreme Court

5:20

for expedited consideration of

5:23

a petition for cert right after he

5:25

filed with the circuit court. So, same

5:27

issue and he's hitting two courts at

5:30

the same time. So, in the

5:32

Supreme Court, he asked them to rule

5:34

before the appeals court but also

5:36

said, let them know that

5:38

he had just filed for expedited review

5:40

with the appeals court as well in

5:43

case SCOTUS doesn't grant cert before

5:45

the appeals court makes their decision.

5:47

Hmm. That went so

5:50

fast. Yeah. I actually saw the SCOTUS filing

5:52

before I saw the appellate court filing and

5:54

I was like, in the SCOTUS

5:56

filing, he's like, I filed with the appeals court and I was like, oh,

5:58

shit. So, I was like, oh, shit. went back and I looked at

6:00

it and I was like, he sure did. Double back. He

6:03

sure did. He sure did. There it is. Your

6:06

PACER account is getting a workout this week. Yeah.

6:09

Right. So same day, Supreme Court

6:11

granted expedited review to consider CERT

6:14

and orders Trump to respond by

6:16

December 20th. And

6:18

Andy, that's just, that's not

6:20

granting CERT, right? That's just

6:22

granting the expedited review to

6:25

consider CERT. And

6:27

when I say CERT, I mean a writ of certiorari,

6:29

which is basically what it's

6:31

called when the Supreme Court says, we will

6:33

take up a case. And of the thousands and thousands and

6:36

thousands of cases that are filed, only about 60

6:38

or so are

6:40

granted CERT. Every year. That's

6:43

right. Supreme Court doesn't have to take anything. There's

6:45

no automatic appeal to the Supreme Court. As you

6:47

said, litigants, they file

6:49

a petition for certiorari and

6:52

the Supreme Court gets thousands. They

6:54

consider them all. They have briefings and

6:57

they do a formal consideration. Sometimes they

6:59

just deny it, right? And

7:01

with a one-page order, your petition for

7:03

certiorari is here by deny. Yep. Or

7:06

they do that old shadow docket thing,

7:08

which is a good book you should buy

7:10

by Steve Lettick who will join us in the second part of

7:12

the show. There you go. There you

7:14

go. So that happens, right? Trump now

7:16

has to respond to this government

7:20

appeal or request for CERT and his

7:22

response is due December 20th. On the

7:24

13th, Trump filed his opposition to expedited

7:27

review with the appeals court, so now

7:29

we're back in the appeals court, arguing

7:32

that the whole thing amounts to election interference,

7:35

shock of all shocks, and having

7:37

his brief due December 26th essentially

7:39

makes Jack Smith the Grinch trying

7:41

to ruin his Christmas. He even

7:43

quoted Dr. Seuss

7:47

in his filing. Not usually

7:50

seen as a lot of

7:52

precedent in court, federal court filings citing

7:55

Dr. Seuss, but hey, here you go.

7:58

Yeah. Well, you know, Grinch v. Seuss. No,

8:01

excuse me, Grinch v. Whoville, the

8:04

very important landmark case.

8:08

Personally, I see Jack Smith more as

8:10

a traditional Grinch, not like the Jim Carrey

8:12

Grinch. I feel like he'd go old school

8:14

back to the animated Grinch. Yeah, I agree.

8:16

I agree. So

8:19

DOJ's response wasn't due until the 14th, and

8:21

they filed it on the 13th and said,

8:23

okay, fine. Have Trump's response due on the

8:25

23rd before Christmas. So

8:28

the appeals court comes back same day

8:30

and grants Jack Smith motion, setting

8:33

the briefing schedule as follows. Trump's

8:35

response to Jack Smith's request

8:39

for expedited review by the appeals

8:41

court, Trump's response is due the

8:43

23rd. And

8:46

this is on the merits. This isn't to consider. This

8:49

is a full-blown federal court briefing. And

8:51

then DOJ, of course, gets their opportunity

8:53

to respond to Trump's filing, and that

8:55

would be due on the 30th, and

8:58

then Trump's reply is due on January 2nd. So

9:01

the date for arguments of

9:03

this motion, that's not

9:05

been set yet, but I think it's

9:08

fair to assume that it'll be sometime

9:10

in that first or second week of

9:12

January. Yeah, it'll be

9:14

fast considering their extremely fast

9:16

expedited review. And then Christmas

9:19

is saved. Trump doesn't have to respond

9:22

on Boxing Day. He has to do it on the 23rd.

9:25

They're like, we're going to be toiling throughout the holidays.

9:27

They're like, great, toil before the holidays and

9:29

get it to us on the 23rd. Trump

9:31

and little Cindy Who can

9:33

recline in peaceful slumber on

9:36

Christmas. There you go. So

9:40

what do you think? What do you

9:42

think of this move to push things

9:44

potentially right into the Supreme Court?

9:47

Well, I think this is brilliant, right, because Trump

9:49

forever, and I'm going to appeal this to the

9:51

Supreme Court. I'm going to do it. I'm going

9:53

to appeal this immunity to the Supreme Court. And Jack's

9:55

like, cool. How about now? And

9:57

he's like, no, wait. on

10:00

this argument. Yeah. He

10:03

would have rather gone through

10:05

the regular process of having the appellate court

10:09

make their determination, then

10:11

file petition for cert

10:13

with the Supreme Court and have them consider

10:15

it, then Jack would file to have an

10:17

expedited consideration and then they would agree

10:19

and have briefings on just whether or not they're

10:21

going to hear it and then they would decide whether

10:24

they're going to hear it, then they would schedule arguments.

10:26

This all happened, by the way, 50 years

10:29

ago this year, well, next year,

10:31

1974, when they were

10:33

trying to get the Watergate tapes, right? Yeah.

10:36

I mean, could there possibly be a better analog? I

10:38

mean, look, it's a – No. The

10:40

case that matters most is

10:42

U.S. v. Nixon, another case

10:44

against a wildly corrupt president.

10:47

Yeah, it's – I think it's –

10:50

Jack Smith is in a good position in

10:52

terms of the case law that he's relying

10:54

on. Trump,

10:57

of course, argues that SCOTUS very rarely

10:59

takes these cases before the appellate court

11:01

has had a chance to decide, but

11:04

it's been done 19 times since 2019 and 49 times total. And

11:11

then, of course, we said it's very close to

11:13

the U.S. v. Nixon case, which is also

11:15

the closest substantive

11:18

precedent relative to this issue.

11:21

U.S. v. Nixon, of course, decided that

11:23

Nixon was not immune. Or he had

11:26

to hand over the tapes. He wanted

11:28

to quash the tapes from being subpoenaed,

11:30

right? Correct, the subpoena for

11:32

the White House recordings. SCOTUS took

11:34

– they scheduled the hearing, the

11:36

arguments, two months after they granted

11:39

cert. Yes. And,

11:41

of course, the significance there is

11:43

they determined that unlike the civil

11:46

immunity that a president enjoys from most

11:48

of what he does while he's in

11:51

office, there's a different standard for criminal

11:53

liability and that a lot of those

11:55

protections the president has kind of falls

11:57

away when he finds himself – in

12:00

the middle of a criminal investigation. Yeah.

12:02

And the other thing too is this

12:04

really ties Trump's hands, right? And

12:06

this is the first thing that crossed my mind. And

12:09

Hugo Lowell also pointed it out in The Guardian, because

12:12

Trump can't really oppose Jack

12:15

Smith's request for the Supreme Court to

12:17

hear the case and

12:19

then come back later and ask him to hear

12:21

the case, right? Exactly. It doesn't

12:24

quite work that way. And

12:26

so, I see

12:29

a couple of different potential scenarios

12:32

happening here. I see

12:35

after they get Trump's filing on the

12:37

20th, Supreme Court might deny cert

12:40

and not deny cert on

12:42

the merits, just deny cert to hear it before

12:44

the appellate court goes. But

12:46

the appellate court will be fully briefed by January 2nd.

12:48

And by the time SCOTUS makes that decision, the

12:50

appellate court may have already ruled. But

12:53

I don't know. We'll see what it's like

12:55

a horse race here. We'll see how the

12:58

timing plays out. But if SCOTUS denies cert,

13:00

we will be very close to or already

13:02

have an appellate court decision. And then Jack

13:04

can reapply for cert, go right back to

13:07

the Supreme Court and say, how about now?

13:09

And then the Supreme Court, if they deny

13:11

cert again, that means the appellate court ruling

13:13

stands. If they grant, then we see how

13:15

long they take to set an argument and

13:18

how long they take to make a decision. And Nixon, like

13:20

I said, it took two months to

13:23

get the arguments and then another 16

13:25

days to render the decision. But another

13:28

really interesting parallel, Andy, between

13:30

this and Watergate is that at

13:32

the time, there were three Nixon

13:34

appointees sitting on the Supreme Court. One

13:38

of them did not vote, and

13:40

the other two voted against Nixon

13:43

of the three that he had appointed. Now we've

13:45

got Trump with three appointees sitting on

13:47

the Supreme Court. Will Thomas

13:50

recuse is the big question, right?

13:53

Everyone's like, nah, hell no, he won't, he won't. But I

13:55

do want to remind everybody just this last October, Thomas

13:57

recused from a case that had to do with East

14:00

Eastman because Eastman and Ginny were emailing, oh, well,

14:02

we don't know why he recused.

14:04

It could have been something like one

14:07

of the lawyers he clerked with or did,

14:09

you know, who knows why he recused, but

14:11

it's not out of the realm of possibility.

14:13

And we might get that one no vote

14:16

and two voting no. If anybody

14:18

votes in Trump's favor,

14:20

I'm assuming it would be Thomas if he votes

14:23

and Alito. So I think a

14:26

worst case scenario, we're looking at a seven two, but it

14:28

could be a seven one, just like

14:30

in Nixon. Well, that was 8-0. Nobody

14:33

voted for Nixon. Yeah, really,

14:35

really interesting. I mean, yes,

14:37

Thomas could recuse, but

14:40

there's also plenty of Jan six business he is

14:42

not recused from. So it's a very

14:45

much an open question. Question I have

14:47

for you is reminding ourselves

14:49

that this is entirely about Trump's

14:51

motion to dismiss based on constitutional

14:54

grounds, the immunity issue. There

14:56

is another motion still pending that Chutkin

14:58

has not decided on statutory

15:01

grounds. And

15:03

she kind of severed those two

15:05

things in terms of her, you

15:07

know, addressing them and,

15:10

you know, deciding them, likely

15:12

because she wanted to push the one

15:15

that would drive an interlocutory appeal, this

15:17

one, the immunity issue forward to try

15:19

to get that, you know, get that

15:21

business done in time. Question

15:24

is, could it have inadvertently created

15:26

an opportunity for a

15:28

totally separate and new delay

15:31

with the once the statutory issue gets decided

15:33

by Chutkin, you can you can just assume

15:35

that Trump's going to appeal all that stuff

15:38

as well. I guess it won't be interlocutories

15:40

is not quite as significant

15:42

as the constitutional issue. But

15:44

I'm just trying to say we're not out of

15:47

the woods from Trump really dragging the heels of

15:49

this case through the mud

15:51

with appeal after appeal. Yeah,

15:54

I know she still has to decide on statutory

15:56

and I think vindictive

15:58

and selective prosecution motion. to dismiss,

16:01

and she can't do any of that

16:03

right now while it's stayed because that's the next story

16:05

of the day, right? Judge Chukkin officially stayed

16:07

the DC case pending the outcome of

16:09

the immunity appeal. The DOJ

16:12

opposed the stay but

16:14

not pretrial schedule and

16:16

trial stay. They opposed that

16:20

because Trump contended that Judge Chukkin

16:22

has no jurisdiction whatsoever while

16:24

the appeal makes its way through the courts. The DOJ

16:26

contended that Judge Chukkin does, and Judge

16:28

Chukkin agreed. She says she still has

16:30

jurisdiction when it comes to enforcing the

16:32

protective order over discovery, enforcing

16:35

failed conditions, and enforcing that limited don't

16:37

call it a gag order gag order. And

16:40

so that was her ruling there. That's

16:42

why I contend that this trial will

16:44

get pushed back a little because February

16:46

9th to start jury selection, I mean,

16:49

they can start that process if

16:51

by February 9th this

16:54

immunity thing is adjudicated and

16:57

exhausted. And they can

16:59

start that process, but they still will

17:01

have to rule on those motions. They

17:04

don't, like you said, have to deal with the appeals before the

17:06

trial starts because those appeals

17:08

can go on in the background, right,

17:11

because they're not interlocutory. They're not constitutional

17:13

in nature. But there also

17:15

are some SIPA things that have to take place because

17:17

there's a limited amount of

17:19

classified information in this particular

17:21

case. I know

17:24

that right before Judge Chukkin stayed

17:26

this case, Jack

17:28

Smith filed a 6A SIPA motion

17:30

and that made Trump very angry. You

17:33

have to stop, everything must stop. And

17:37

he's like, we haven't gotten a ruling yet.

17:39

You're harassing me. You're harassing me. Yeah.

17:41

So that's kind of the way

17:43

that I see it is we're going to

17:45

still need some time because if everything

17:47

stops for a month or two, anything that

17:49

could have happened in that month or two

17:52

in pretrial stuff will now be pushed back

17:54

a month or two. I'm

17:56

honestly thinking that this trial

17:58

goes off in April. May, maybe

18:01

June the latest. That's kind of my

18:04

thought on this. I don't think

18:06

March 4th will hold. I

18:08

really don't. But I don't think

18:10

it'll be pushed much further back. Yeah, I

18:13

don't think it'll hold either. I think she knew

18:15

it wasn't going to hold even despite

18:17

her very strong

18:20

comments repeatedly that it would go on that date.

18:22

I think in the back of her mind she

18:24

knew something like this could come up and it

18:26

would unavoidably push things back a bit.

18:29

I think that's why she picked March 4th because

18:31

she still has got some runway to get this

18:33

thing done before the election if

18:35

March 4th starts to slip. Well, we talked about

18:38

that a lot, right? Because

18:40

they wanted January. Jack Smith wanted January and

18:42

Trump wanted 25 years from now. But

18:46

we were like, March is good. It can still

18:48

be delayed and still happen before the

18:50

election or even the Republican National Convention,

18:53

which is July 15th. But

18:56

this is a three to four month trial. Everyone

18:59

who's like, but May is the documents case. No,

19:01

it isn't. Only

19:05

in a dream many moons

19:07

ago. That's what that's what it was.

19:09

Yeah, it's still May, but it's May

19:11

2025. Yeah,

19:13

totally. And one

19:15

last thing that happened this week,

19:17

Judge Michael Luddig, a well respected

19:20

conservative judge, have

19:22

filed an amicus brief with

19:24

the Supreme Court in the immunity thing.

19:27

Right now. That's right. Jack Smith is

19:29

arguing if you give immunity to a

19:31

president, America is not America,

19:34

basically. But Judge Luddig

19:36

is like, even that aside, even if you want to

19:38

make America not America, and

19:41

him and a couple of dozen other- Assuming

19:43

we're going to be hungry from now on, it's

19:46

still a problem. It's still a

19:48

problem. And this is Luddig et al. A

19:50

couple dozen Republicans that served under five presidents

19:52

have filed the amicus brief. And what they're

19:54

arguing is that you would

19:56

screw up Article 2, Section 1, Clause

19:58

1 of the Constitution. that says a

20:00

president can only serve a four-year term. If

20:03

you grant immunity, that means a

20:05

president doesn't have to leave. And

20:08

by the way, that means Biden wouldn't have to

20:10

leave if you grant immunity. So

20:14

just on the very narrow question of how

20:17

anti-constitutional it is to

20:19

upset Article II Section

20:23

1, Clause 1. And the same applies

20:25

across the board, right? If you're saying

20:27

the president cannot, cannot be

20:29

held criminally liable, then

20:31

he basically can violate any

20:34

law, including those that

20:36

require him to leave or

20:39

anything else. So he can't hold him responsible for

20:41

that. But they're like, if you want to rule

20:43

on this narrowly, you have to consider Article II,

20:46

Section 1, Clause 1. If you want to just talk about this

20:48

particular... Because sometimes SCOTUS does that. They rule on

20:50

stuff narrowly. This question of

20:52

absolute immunity is the brick that

20:54

even you pull it out, the

20:57

entire wall falls down. Yeah, they're not

20:59

going to. I am 100% sure

21:01

that the Supreme Court is not going

21:03

to grant Trump immunity if they take

21:06

the case. No way. Even from what,

21:08

if you listen carefully to even on

21:10

my network,

21:13

listen to some of the CNN reporters who

21:15

are very well sourced in the Trump legal

21:17

world, they are, you'll

21:20

hear that even Trump's own

21:22

lawyers know there's almost no merit to

21:24

this whatsoever. It's not so frivolous that

21:26

it would be the sort of thing

21:28

that would get dismissed and could provoke

21:31

sanctions, but it doesn't

21:33

really have any chance of winning. And they

21:35

know that. It's all about the way. Yep,

21:37

that's the whole purpose. Andy, what do

21:39

we have next? So next up, we've

21:42

got another really interesting SCOTUS

21:44

development, the other major SCOTUS development

21:46

this week, I guess, on

21:49

the Trump cases anyway. And this is the one that really

21:51

grabbed my attention and kind of threw me into a bit

21:53

of a panic when I first heard it. So

21:56

this is the fact that SCOTUS has now

21:58

agreed to take up the case. A

22:00

case related, it's a bit of a bank shot, but

22:02

related to the Trump indictment, and this is a case

22:04

called Fisher. You're going to remember Fisher

22:07

is a January 6th writer, and

22:09

he was charged with 1512C2. And

22:14

early on in his case, he filed a

22:16

motion to dismiss his indictment, at least the

22:18

charge of obstructing the official proceeding, the 1512C2.

22:22

And his judge, his trial court

22:24

judge, Judge Nichols, who's a Trump

22:27

appointee, interpreted 1512C2

22:29

to mean it must include destruction

22:31

or alteration of a document or

22:33

other record. Okay, so

22:35

you'll remember, AG, this 1512C2

22:38

came into effect as a result

22:40

of Sarbanes-Oxley, which was a bunch

22:42

of laws passed in the wake

22:44

of the Enron scandal and other

22:47

kind of accounting and white-collar misdeeds in

22:49

the early 2000s. And

22:52

this one specifically was meant to target

22:54

businesses who destroyed records,

22:56

documents, data, that sort of

22:59

stuff to avoid an

23:01

official proceeding or an investigation or something like

23:03

that. So Nichols was one of

23:05

only 16 judges that disagreed

23:07

with DOJ's interpretation of the statute.

23:10

And the appeals court, of course, ruled in

23:13

favor of DOJ. So now

23:15

the Supreme Court has agreed to hear the

23:17

case this term. I've got a

23:20

lot of questions about this and how it might affect

23:22

Trump's case. And

23:25

of course, we have just the person

23:27

to answer them. After the break, we're

23:29

going to talk to University of Texas

23:31

law professor and self-proclaimed SCOTUS nerd, Steve

23:33

Laddick. So stay with us. We'll be right back.

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For the love of home. Hey

25:30

everybody, welcome back. Joining us today to discuss

25:32

the Fisher case headed to the Supreme Court

25:34

is University of Texas law professor and author

25:36

of the book. You need to get it.

25:38

It's called The Shadow Docket. Please welcome Steve

25:40

Vladek. Hi Steve. Hey Allison, great to

25:43

be back. Great to have you here Steve. It's

25:46

totally a bonus for our listeners and great for

25:48

us as well. So thanks for doing it. Thanks

25:50

Heather, great to be with you. Cool. So

25:53

the first thing I want to ask you. Everybody

25:55

seemed to get a little concerned

25:58

about the Supreme Court. Supreme Court taking up

26:01

the Fisher case. And we've

26:03

explained the Fisher case. Fisher is

26:05

a January 6th writer who wanted his

26:08

charge obstructing an official proceeding, which is

26:10

title 18, US code 1512C2 dismissed. And

26:14

Judge Nichols, a Trump appointee, ruled that

26:17

the statute only

26:20

applies to people who mess

26:22

with documents or records, basically. And

26:25

of course, the appellate court overturned that.

26:28

They had a kind of a weird dissent,

26:30

and they all kind of had their own

26:33

reasons why. But they did rule

26:35

in favor of the Department of Justice, ultimately.

26:39

And 15 other district court judges,

26:41

right, 15 other district court

26:43

judges upheld the DOJ's

26:46

interpretation of this statute. But you tweeted

26:48

that the two other cases that Fisher was

26:50

consolidated with, Lang and Miller,

26:52

are not being considered here. It's just

26:55

Fisher. And you said, quote, I

26:57

don't know why they'd take only Fisher, and

26:59

not the other two. But it suggests that perhaps

27:01

this isn't as major

27:03

an intervention as is being portrayed and

27:06

is about something narrower in just

27:08

the Fisher case. What could a more narrow

27:10

decision look like here? I

27:13

mean, the short answer is I don't know. I

27:15

haven't figured it out since I tweeted that. But

27:17

it is really odd procedurally for

27:20

the Supreme Court to take three cases that

27:22

had been consolidated in the Court of Appeals.

27:24

It was a single decision by the DC

27:26

Circuit where the Justice

27:28

Department in opposing certiorari had

27:30

filed a single brief and

27:33

had not suggested anywhere in the brief

27:35

that there were material differences between

27:37

the three cases. Even

27:39

the Supreme Court's website, until the

27:42

Court granted cert, had actually had this

27:44

weird designation suggesting the Court was treating

27:46

the three cases as related. To

27:48

break them apart, you know, Allison, I think

27:51

there's at least the possibility that something

27:54

about Fisher's back pattern, the fact that maybe

27:56

he didn't enter the Capitol until

27:58

later on January 6th. or something

28:01

weaker in the charges against

28:03

him might be animating the

28:05

justices. Of course, it could be

28:07

something more prosaic. It could be that the justices

28:09

just like the lawyers who are

28:11

representing Fisher more, or they thought that the

28:14

briefs on Fisher's behalf were better

28:16

than the briefs on Langan Miller's behalf. We won't

28:18

know, or at least we won't even have a

28:20

clue, I think, until the oral argument, which

28:23

will probably be in April. But I

28:25

think that either way, it does seem

28:27

like the court wants to say something

28:30

about the relationship between 1512C2 and 1512C1. And

28:35

I think the real evidence of that is that they're

28:37

taking the case now, as

28:40

opposed to waiting for these cases to go

28:42

to trial, which is what would have

28:44

happened if the DC Circuit decision had been left alone.

28:46

So I think the court clearly wants to say something,

28:49

whether it's gonna be a repudiation

28:51

of DOJ's approach

28:53

to 1512C2 in hundreds

28:56

of these January 6th cases, I think it very much

28:58

remains to be seen. That's a

29:00

really interesting answer. It dovetails

29:02

into what's my biggest concern

29:05

here. And honestly, in a

29:07

week of a lot of interesting Supreme Court

29:09

and appeals court action on

29:11

this Trump Gen 6 case, to

29:13

me, this one was like, this

29:15

is the potential real hand grenade,

29:17

particularly in the trial schedule and

29:20

what the future of this case looks like. So

29:22

for me, it's like, what is Judge

29:24

Chutkin gonna do with the Trump case

29:27

in light of the fact that this thing is now

29:29

in some form, we don't know, as

29:32

you said, we don't know what they're really gonna focus

29:34

on, but it is certainly going forward on what

29:36

is the core of the Trump prosecution, right? Two

29:39

of the four charges

29:42

in the Trump indictment. So, I'm

29:45

Talking to friends of mine and thinking about,

29:47

what's the range of possibilities here? Does she

29:50

stay the entire case to see what guidance

29:52

comes out of SCOTUS on this thing? Does

29:54

she just ignore it and forge ahead? Because

29:56

Trump's not a party to the appeal and...

30:00

If he would just be one of

30:02

many cases that would have to be

30:04

adjusted in some way after the fact.

30:07

That she tried to sever maybe the

30:09

fifteen twelve counts out of the indictment

30:11

and kind of put them on a

30:13

shelf for a day later. I feel

30:16

like that's super unlikely. Or and of

30:18

course, I'm a building up to the

30:20

bucket I believe in here. Which is

30:22

does she tries you Is it seems

30:24

like the. The. Existence of

30:26

this appeals going to matter most in terms

30:28

of how the jury's instructed. In.

30:30

The trunk case assuming it goes to

30:33

trial and a goes to the jury,

30:35

so does she? Is there a lane

30:37

here for her to construct jury instructions

30:39

Of course after hearing arguments on both

30:41

sides and considering the briefs but the

30:43

come of a jury instructions that would

30:46

be. Essentially. Consistent.

30:49

With whatever guidance comes out

30:51

of of of fisher. The

30:54

I Met attempt to sims are true.

30:56

I think first your dutch tuck and

30:58

has to hit the pause button anyway.

31:00

Well either the Supreme court or the

31:03

Dc circuit or both. Sort.

31:05

Out the of nudity defense question job

31:07

of so you know we're in a

31:09

weight and pattern on the generous of

31:11

trial for Trump any way, at least

31:13

until that happens. But you know that

31:15

the last visited and it exactly right

31:17

on the fifteenth. Twelve charges. Specifically.

31:21

I. Think it would actually be pretty easy. For.

31:23

Judge Tuck him to say listen

31:25

the that the best possible scenario

31:28

for former President Trump. Is

31:30

that the Supreme Court embraces the read

31:33

in advance by George Nichols. Out.

31:35

And buy drugs catches in his panel

31:37

to sense. In. The Dc Circuit

31:39

and so I'm going to with

31:41

I'm going to assume for the

31:43

sake of this procedure that that's

31:45

the government's burden that the government

31:47

has to show not just a

31:49

general intends to obstruct the January

31:51

Six Joint Session. But. pick

31:54

him up on the nichols

31:56

cats his rhythm a specific

31:58

intent to do so by

32:00

manipulating, by impairing the evidence

32:03

before the joint session. And

32:05

of course, the great

32:07

irony here is compared to the 300

32:09

some odd January 6 defendants for whom

32:11

that's going to be a really heavy

32:14

lift, it's actually not

32:16

that heavy a lift, at

32:18

least the way the indictment is written

32:20

against former President Trump, because what's the

32:22

evidence before the joint

32:24

session? The evidence before the joint session are

32:26

the electoral votes. And so

32:28

insofar as former President Trump was part of

32:30

a scheme to submit false,

32:33

you know, disputed electoral votes

32:35

from some number of states, that

32:39

to me is much closer to

32:41

the heartland of even the very narrow

32:43

reading of 1512C2 embraced

32:45

by Judge Nichols and Judge Cassatt. So, you

32:47

know, I think Judge Chukin would

32:49

be within her rights assuming that the case

32:51

comes back to her with a holding from

32:54

the DC Circuit and or the Supreme Court

32:56

that Trump is not immune. I think

32:58

she'd be within her rights to say I'm gonna proceed

33:00

on under the 1512C2 charges

33:03

on the theory that Nichols and Cassatt's are right

33:06

and give Jack Smith the opportunity

33:08

to prove to a jury that

33:11

even under that more restrictive reading on

33:13

1512C2 for President Trump is still guilty.

33:16

Yeah, and Jack Smith has

33:18

brought this up in back

33:20

in November in a

33:23

filing opposing Trump's motion

33:25

to dismiss on statutory grounds. I went

33:27

back and I looked at

33:29

it because I was like, surely Jack has thought of this

33:32

potential more narrow reading. And of course,

33:35

he had. And he says

33:37

in that filing, the certification

33:39

proceeding that the defendant and his

33:42

co-conspirators are alleged to have obstructed

33:44

is required under the Electoral Count

33:46

Act, which specifies procedures that rely

33:48

on specific core records or documents.

33:50

Those are certificates of votes from each

33:53

state, preventing the members of

33:55

Congress from validating the state

33:57

certificates constitutes evidence focused obstruction and

33:59

thus will would violate Section

34:01

1512C2 even on

34:04

a narrower view of the statute's scope.

34:07

And that is particularly true, whereas here,

34:09

the criminal conduct included

34:11

falsifying electoral certificates and

34:14

transmitting them to Congress. So already

34:17

built into Jack Smith's case in

34:19

chief is this narrower understanding, Nichols'

34:22

ruling on Fisher. Which

34:24

is the profound irony of the Supreme

34:26

Court's intervention. Even

34:29

in a scenario where the court

34:31

goes all the way to the

34:33

Nichols-Katzis reading. And we should be

34:35

clear, guys, there's no narrower reading.

34:37

I mean, that is the alternative

34:39

before the Supreme Court. And so

34:41

that reading would have massive consequences

34:43

for, I think I can say,

34:45

the sort of the lowest level

34:47

January 6th defendants. There

34:50

are a number of cases where that was the principal

34:52

charge. There are a number of guilty pleas where that

34:54

was the only count. So it's

34:56

defendants pleaded guilty. And

34:59

I think it would have no effect on Trump. And

35:01

so you'd have this scenario where it

35:04

would be portrayed as some massive, I don't

35:07

know, referendum by the Supreme Court on the

35:09

January 6th prosecutions when perhaps the most important

35:11

of all the January 6th prosecutions gets through

35:13

either way. Absolutely. And even

35:16

on the much more, I think, the less

35:18

likely scenario that their focus is on the

35:20

kind of corrupt purpose side of the statute.

35:23

And again, there's no one better situated to

35:25

fit the requirements of a corrupt purpose than

35:27

the guy who orchestrated the attack

35:30

on the Capitol to save his own job. Well,

35:32

yeah, I mean, so the irony on that

35:34

point, Andres, you know, as well as anyone,

35:36

is, you know, if there's debate about the

35:38

men's rands, the corrupt purpose piece of 1512,

35:40

it's about when

35:43

my corrupt purpose can be solely to

35:45

benefit somebody else. Right. Right.

35:48

And in the case of former President Trump, his

35:50

corrupt purpose, you know, the alleged

35:52

corrupt purpose of his unlawful

35:55

acts was to benefit himself.

35:58

Everybody's corrupt. purpose to benefit him.

36:02

And Jack Smith actually just recently filed

36:04

a notice to Judge Chukin

36:06

about 404B evidence entered

36:08

under exception, saying all of

36:10

his things that he said publicly going

36:12

back to 2012 about how

36:15

he wasn't going to concede the election, he wasn't going to

36:17

submit to a peaceful transfer of power, all

36:19

that stuff can get in under 404B rules

36:22

of evidence under exceptions

36:24

to those rules of evidence and

36:26

that he will prove, you will

36:29

use all of that information to

36:31

prove intent, motive, common plan, etc.

36:34

So as all of us were sitting around a couple months ago saying

36:36

he doesn't have to prove intent, he doesn't have to prove intent at

36:38

all. He is going to, at least according

36:40

to his own 404B filing. And

36:44

I think the intent question also of course comes

36:46

back into play when we start talking about the

36:48

other charges in the indictment. So I

36:51

think the moral of the story here is that

36:53

Fisher is a really big deal, the further down

36:56

the January 6th totem pole we go and

37:00

not that big a deal, the further

37:02

up the totem pole we go, where

37:04

either there are other charges or you

37:06

have more specific involvement in conduct that

37:08

would violate even the narrow reading of

37:10

that statute or in President Trump's case,

37:13

both. And I guess

37:15

my concern then becomes less about

37:18

the case against former President Trump and more

37:20

about the perception that I'm

37:22

sure the Supreme Court doesn't

37:24

want to reinforce but might

37:26

unavoidably reinforce that if

37:28

the court does narrow 1512C2, it

37:31

will be portrayed as some massive

37:33

repudiation of the

37:35

January 6th prosecutions, which

37:38

I think would be grossly unfair

37:41

compared to how many other

37:43

charges are perfectly fine compared

37:45

to how many of the folks even who

37:47

would have a really good case that they're

37:49

entitled to resentencing are still guilty of

37:52

crimes for what they did on January 6th. So

37:55

I think that then making sure folks

37:57

understand what the stakes are and aren't. Fisher,

38:00

I think, is going to be really important as we move

38:02

toward the oral argument probably in March or

38:04

April, and then the decision in May or June. All

38:08

that considered, were you surprised that they took

38:10

the case at all? It just doesn't seem

38:12

like there is like this roiling, massive

38:15

controversy at the appellate level

38:17

between interpretations. The

38:20

cases are actually fairly consistent with the

38:22

notable exception of Fisher and

38:25

his co-appellants, but I

38:28

was surprised they weighed into this thing especially

38:30

now in light of the way it could

38:32

impact the timing of the Trump cases. So

38:36

the now is the real surprise to me. Not

38:38

that the court was interested in this question at all. I

38:42

mean, unrelated to January 6th, the Supreme Court

38:44

has been interested in the last 8, 9,

38:47

10 years in these very

38:49

kinds of debates about federal criminal statutes

38:51

just to sort of put this in

38:53

context where you have a

38:56

series of provisions that are written in

38:58

response to a specific episode. In this

39:00

case, the Enron and

39:02

WorldCom accounting scandals and financial

39:05

services scandals. And

39:07

so you have some specific prohibitions and

39:09

then a more general catch-all obstruction

39:12

or other sort of type

39:14

of charge. And the court

39:16

has been worried about whether that catch-all

39:19

charge is too broad. So

39:22

there's a case from 2015 called Yates, which

39:24

had no real political valence.

39:27

It was just a weird case about a

39:29

commercial fisherman where

39:31

the court actually read a statute that says

39:35

the destruction of any tangible object can be

39:37

obstruction in this context and said, no, no,

39:40

no. The tangible object has to be one

39:42

on which you can record data. So

39:44

you have a 5-4 decision from the Supreme Court in

39:47

2015 that a fish is not a tangible object. The

39:52

court has been on these

39:54

statutory adventures even before anything

39:56

about January 6th or Trump

39:58

was on the radar. That's

40:00

why I'm not surprised they took the issue. I'm

40:02

surprised they took it now because I mean as

40:04

Allison mentioned at the top the cases None

40:07

of these cases and you know these three cases

40:09

Fisher Lang and Miller have gone to trial Judge

40:12

Nichols had dismissed the indictments the

40:15

government had appealed the DC Circuit's reversal would

40:17

have meant we'd go back to Judge Nichols

40:20

for the cases to go forward and

40:22

if I'm the Supreme Court I'd much rather

40:24

resolve the scope of the statute once I

40:26

know what these specific defendants have actually been

40:28

convicted of As opposed to

40:30

what they've been indicted for. It's a great point.

40:33

So, you know, so to me it's the fact

40:35

that these are interlocutory That

40:37

really seems confounding about why the court

40:39

stepping in whereas I would not have

40:41

been surprised on the far side

40:43

of convictions Right for the court to say

40:46

actually this is the kind of thing, you know, no, there's

40:48

no circuit split, but this is what we do Yeah

40:50

And I guess it's consistent with her

40:52

with the kind of overall sense that

40:55

they are concerned about Particularly about these

40:57

corruption cases in the context of political

40:59

corruption. You can go back to McDonald.

41:02

It's the same sort of thing I know that's I'm

41:05

sure that weighs heavily on Jack Smith's mind

41:07

these days with his own connection to those

41:09

cases No doubt. Um, I think I mean

41:11

the you know, the court comes in for

41:13

some criticism, especially from the left That

41:16

in those cases the court tends to be bend

41:19

over backwards and actually maybe even

41:21

a band some abandoned some of its textualism

41:25

in defense of white collar defendants

41:29

But you know, I think it's worth stressing

41:31

that whatever you think of the pattern in

41:33

the in the sort of abstracts. Um This

41:36

is not a bolt from the blue right

41:38

that it's the timing that's weird here Not

41:41

the court's interest in general in

41:43

the precise problem of a sort of

41:45

catch-all Obstruction provision tacked on to a

41:47

statute that was more specifically about evidence

41:50

impairment Especially since it really

41:52

wouldn't impact the Trump case that much

41:54

I mean I could understand being like

41:56

alright, let's clear up whatever the catsus

41:58

and pan and everybody was talking about in

42:01

the appellate court. Let's just clear

42:03

this up before the Trump trial

42:05

of the millennia starts. But I don't

42:08

see that being the reason either. So yeah, it's

42:10

kind of baffling. Let me say

42:12

one last thing about that. And I

42:14

wrote about this a bit in my

42:16

Supreme Court newsletter this week, which is

42:18

the timing of both of these things,

42:20

the sort of the Jack Smith appeal

42:23

of the immunity question and the

42:25

Grant and Fisher both coming this

42:27

week. I actually think the best

42:29

case there is that the sort of the best

42:31

evidence there is that that's a coincidence. That

42:34

even though these things happen within two days of each

42:36

other, the way

42:38

that the court operates internally, it's

42:41

really hard to envision that at

42:43

the time the justices voted

42:45

to Grant Fisher, which is most likely

42:47

on December 8th, that they

42:50

were thinking at all about the

42:52

immunity question or Jack

42:54

Smith coming to them. He hadn't yet to

42:57

sort of hustle up on the immunity question. So

43:00

I think it's just really a coincidence that these are

43:02

both in the water at the same time. And

43:05

to me, the only sort of unusual

43:07

thing about what the court has done in

43:09

Fisher is sort of taking only Fisher, not

43:12

the other two, and taking them now as

43:14

opposed to weigh them. And the

43:16

notion that that's because they want to resolve this

43:18

in advance of the Trump case, I

43:21

don't know, I think that's probably belied by the time

43:24

by the coincidental time in. But

43:26

also because had they done their homework, as

43:28

you have, right, they'd know that of all

43:31

the generative cases, the one in which this

43:33

is least likely to cause the problem is

43:35

Trump. For sure. I

43:37

appreciate that. I appreciate that, professor. I learned

43:39

from the best, ie you and Andy. So

43:41

thank you so much for

43:44

being on here today, and

43:46

joining us explaining this in a way

43:48

that everybody can understand. We really appreciate

43:50

you. Everybody pick first of all, read

43:52

the newsletter, second of all, pick up

43:54

the shadow docket. It makes a great

43:56

holiday gift. Absolutely. Absolutely.

43:58

Yeah, really. does and

44:00

there's so much important we

44:05

appreciate your time today. Steve Vladek. Thanks

44:07

so much, Steve. Thank you, guys. Everybody

44:09

stick around. We'll be right back. One,

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for the love of home. Welcome

46:02

back. Okay,

46:05

there were other important docket entries this

46:07

week that kind of got buried in

46:09

all the SCOTUS news. One

46:12

of those was DOJ's opposition to

46:14

Trump's motion to compel. So, AG,

46:17

you're going to remember this. Trump

46:19

filed a motion to compel all this

46:21

crazy stuff to basically force the government

46:24

to go find these things and produce

46:26

them to him, Trump, in discovery. We

46:31

went over that kind of line by line.

46:33

Like he wanted stuff that doesn't exist. There's

46:37

a green man on the moon who says he

46:39

knows who flip votes. You've got to get his

46:42

statement. I need his ring because – Just

46:45

nonsensical stuff. So

46:47

now we have the government's response. And as

46:50

you would expect, they didn't

46:52

go lightly on this thing. They weighed

46:54

in pretty in a pretty decisive

46:56

manner. So we've got a

46:58

couple of good quotes here. First,

47:01

they say, the defendant's view

47:03

of discovery is untethered to

47:05

any statute, rule, or case,

47:07

and it lacks both specificity

47:09

and justification. The information he seeks

47:12

is not in the government's possession. In

47:14

many cases, it does not appear to exist. And

47:17

in any event, it's not discoverable

47:19

pursuant to Brady, Federal Rule of

47:21

Criminal Procedure 16, or any other

47:23

authority. The

47:25

defendant's motions should be denied. How

47:28

do you really feel about it?

47:30

Tell us. Don't hold back. Great

47:32

opening paragraph. And where I

47:34

am stupider for having heard it, I award

47:37

you zero points. I

47:39

want the motion to be denied and I want

47:42

to be able to not have ever heard it.

47:44

I want that memory to be erased of

47:46

this nonsense. Okay. So they

47:48

go on to say, the defendant seeks

47:51

to add to the prosecution team. And

47:53

note here, my own note, that's

47:56

basically how, as a

47:58

defendant, you make an argument. that the

48:00

prosecution is responsible for turning over evidence.

48:03

The standard is like any

48:06

entity that is effectively a part

48:08

of the prosecution team. So in

48:10

the typical case, records

48:13

in the possession of the FBI must be

48:15

turned over because the FBI is

48:17

part of the prosecution team.

48:20

That team can be expanded

48:22

based on the case. So if

48:24

maybe DOJ was prosecuting a case

48:26

and they had worked with, I

48:29

don't know, IRS investigators, IRS, part

48:31

of the prosecution team, therefore the documents

48:33

and stuff in their possession is relevant

48:35

to the discovery obligations that must be

48:37

turned over. Okay, so with

48:39

that they say, the defendant seeks to

48:41

add to the prosecution team a separate

48:44

investigation, distinct components of the

48:46

Department of Justice, the Department

48:48

of Homeland Security, and its quarter

48:50

million employees, the nation's

48:52

entire military apparatus, three million

48:54

strong, the 18

48:56

federal agencies that comprise the intelligence

48:59

community, and a defunct committee

49:01

of a separate branch of government. The

49:04

defendant already has received the discovery

49:06

in the possession of the government

49:08

and agencies that are quote closely

49:10

aligned with the prosecution. And

49:14

a partridge in a pear tree. The

49:17

court should deny defendants discovery demands

49:20

because he fails to establish their

49:22

materiality. This is another grounds that

49:24

you can attack the demand on.

49:26

If it's not material to the

49:28

prosecution, it can't be considered part

49:31

of the government's obligation. They

49:33

go on, in support of his

49:35

motion to compel, the defendant suggests

49:38

that the government relied only on

49:40

a selection of politically biased officials,

49:42

but he does not and cannot

49:44

substantiate this theatrical claim. To

49:47

the contrary, as the defendant

49:49

is aware from the discovery that

49:51

has been provided, the government asked

49:54

every pertinent witness, including

49:57

the former DNI, the forming

49:59

acting secretary, of DHS, the

50:01

former acting deputy secretary of

50:04

DHS, the former CISA director,

50:06

the former acting CISA director,

50:09

former CISA senior cyber counsel,

50:12

former national security advisor, the

50:14

former deputy national security advisor, the

50:17

former chief of staff to the

50:19

national security council, the former chairman

50:21

of the election assistance commission, presidential

50:24

intelligence briefer, the former

50:26

secretary of defense and former senior

50:28

DOJ leadership if they were

50:31

aware of any evidence that

50:33

a domestic or foreign actor flipped

50:36

a single vote in a voting

50:38

machine during the presidential election. The

50:41

answer from every single official was

50:43

no. No.

50:48

That really shows how broad this investigation

50:50

is too. Which is also the

50:52

same reason why Trump failed in

50:54

60 lawsuits to prove that that

50:56

had happened back when he

50:58

was still president and all those people

51:00

we just listed worked for him. Even

51:04

he couldn't come up with a single person

51:06

or a single piece of evidence that

51:09

stood for the opposite, that there was

51:11

a vote turned over

51:14

by anyone. Now, the next part is my

51:16

favorite because this is where Jack goes after

51:18

Trump's contention that it was Russia. It's

51:21

all Russia's fault. Russia, Russia, Russia. My favorite.

51:23

Okay. Here

51:27

they say, the defendant's argument that

51:29

foreign countries spun up the defendant's

51:31

followers and caused the capital siege

51:33

is a thinly veiled argument of

51:35

third party guilt. Evidence

51:38

of third party guilt normally fails the

51:40

balancing test prescribed by rule 403 where

51:44

the accused does not sufficiently connect the third

51:46

party to the crime. The

51:48

probative value of the evidence is speculative

51:51

or the evidence of the

51:53

third party's guilt would not

51:55

actually exculpate the defendant. Yeah,

51:58

that's important. Even

52:00

if the actions of a third party

52:02

could legally excuse the defendant's crimes, and

52:04

they cannot, the defendant's assertion

52:07

that foreign countries somehow inspired

52:09

the capital siege is both

52:11

speculative and far-fetched, particularly in

52:13

light of his own deliberate

52:15

actions that caused the attack.

52:18

Bing. Yeah. I

52:20

don't know. Maybe he was working on behalf of

52:22

Russia. Okay, I've said that before,

52:24

and I got a lot of trouble for it, so let's just

52:26

move on. The defendant invokes

52:28

a completely unrelated event, the SolarWinds

52:31

attack, to support his speculative and

52:33

conspiratorial theory that there was foreign

52:35

influence in the election contrary to

52:38

the universal consensus of the officials

52:40

he appointed. Even if

52:42

the defendant is correct that Russia breached

52:45

federal networks as a part of the

52:47

SolarWinds incident, he omits

52:49

two critical details. One,

52:52

states not the federal

52:54

government operated the machines

52:56

that were used for voting and

52:58

tabulation, and two, the

53:00

SolarWinds attack had nothing to do with the 2020

53:02

election. Love

53:05

that. Number two, you're dumb. You're just

53:07

dumb. Yeah, it's just

53:09

not relevant. The defendant

53:11

has moved to compel production of the

53:14

classified version of the ICA, which stands

53:16

for Intelligence Community Assessment, on

53:18

Russian meddling in the 2016 election,

53:20

along with, quote, all source

53:23

materials, which would

53:25

include classified assets, methods, and operational

53:27

details. None of these materials are

53:29

in the possession of the prosecution

53:31

team, nor are they relevant

53:33

to the charges in the indictment. The

53:37

court should decline the defendant's request for

53:39

an unprecedented expansion of the prosecution team

53:41

beyond reason or basis and

53:44

deny the defendant's demands for

53:46

additional discovery because he has

53:49

failed to establish the materiality

53:51

of any of them. And they

53:53

went on to pick apart

53:56

his argument about the

53:58

– when the – And the

54:01

head of, I think co-conspirator

54:03

four had a briefing, Jeffrey Clark

54:05

had a briefing with the

54:07

DNI. He wanted all

54:09

the materials there and they're like, you have them all. I

54:12

mean, he picked apart every single thing that Donald

54:15

Trump was going at. Those are just the major

54:17

ones that I was really, you

54:19

know, that we were like kind of focused on in

54:21

the last episode when we went over that motion to

54:24

Compeliso. It's a whole

54:26

long 45 page dismantling. Throwdown.

54:29

Yeah. It's a 45 page

54:31

thrashing. So if you get a

54:33

chance. It's got to be kind of dispiriting a

54:35

little bit to be on the Trump team. You

54:37

follow your motion, you get all high and mighty

54:39

about election interference and then you get this full

54:41

on SmackDown. You're like, oh God, that kind of

54:44

hurts. Yeah. So if you want to

54:46

read the whole thing, you can just Google Jack

54:48

Smith's motion in opposition to

54:51

Donald Trump's motions to Compel

54:53

and you'll be able to find it. You'll

54:55

be right there. Fantastic.

54:57

So we're going to wrap up the DOJ's notice

55:00

of expert witnesses. And this was a huge story

55:02

this week. This took over the news cycle for

55:05

like at least a day. And Andy,

55:07

this has to do with that Twitter search warrant we've

55:09

been going over where Jack Smith

55:11

sought and received all of

55:13

Trump's Twitter metadata, including direct

55:15

messages, location information, login information,

55:17

who was using it on

55:19

what phone from what IP address. And

55:22

Jack Smith notices to the court, meaning

55:24

it's not a motion really. He's just letting

55:27

the court know that he intends to call

55:29

three expert witnesses. Expert

55:31

one will testify about the location

55:34

history data for Google accounts and

55:36

devices associated with individuals who moved

55:38

on January 6, 2021

55:40

from an area at or near the ellipse to

55:42

an area encompassing the Capitol. His

55:45

or her, the experts testimony will

55:47

describe and explain the resulting graphical

55:49

representations of this data. And

55:52

it will aid the jury in understanding

55:54

the movements of individuals toward the Capitol

55:56

area during and after the defendant's speech

55:58

at the ellipse. to me

56:01

like they're trying to prove that

56:03

Trump's actions moved the

56:05

crowd. Yeah, yeah,

56:08

and it's a goldmine of data.

56:10

This Google

56:12

collection generally has become a

56:15

major, major factor in many

56:17

criminal cases. Yeah, and expert

56:19

two is kind of like a piggyback on

56:21

expert one. They're gonna testify about the

56:23

process of determining device location, how we

56:25

do it, the collection and use

56:27

of location history data by Google and

56:30

location history data produced in response to

56:32

the search warrant and included in the graphical

56:34

representation prepared by expert one. So it's kind

56:36

of like a bolstery witness. Yeah,

56:39

so I think important to note here, so

56:41

we talk about evidence all the time and

56:43

what might be used at trial. So there's

56:45

a process, it's not just about like you

56:47

have a piece of evidence and then you

56:50

talk about it at trial. You

56:52

have to enter it into evidence in court

56:54

and in order to do that, you first

56:56

have to lay the foundation of the evidence

56:59

and you do that by putting somebody

57:01

on a witness who can testify about

57:03

how that piece of evidence was collected,

57:06

where it came from, what its provenance

57:08

is, whatever, whatever. If that

57:10

evidence is a business record, something that comes,

57:12

you know, you like in this

57:14

case, they dropped a subpoena on Google, they

57:16

got that data. That data is a Google

57:18

business record. So now you have to have

57:20

people from Google who will come in and

57:22

explain to the jury, lay the

57:24

foundation for it, explain to the jury

57:27

like how is that evidence actually collected

57:29

in Google systems, what does it signify,

57:31

you know, that sort of thing. Yeah,

57:34

you have to do it every time. I mean, yeah,

57:37

you really do. The alternative

57:40

is the defense can stipulate to that.

57:42

I don't expect

57:44

we'll see a lot of stipulation in this trial

57:46

requires some degree of practicality and

57:48

cooperation and that seems to be out the

57:51

window. Yeah, now,

57:53

expert three is the big one. This is the one that I'm

57:55

interested in. I mean, I'm interested in all of them, but expert

57:58

three has knowledge, skill, experience,

58:00

training, and education beyond the ordinary

58:02

layperson regarding the analysis of

58:04

cellular phone data, including the use

58:07

of Twitter and other

58:09

applications on cell phones. The

58:11

government expects that Expert III will testify that

58:13

he or she, one, extracted

58:15

and processed data from the White

58:18

House cell phones used

58:20

by the defendant and one

58:22

other individual who we

58:24

will call, they say in the motion

58:26

here, individual one. I should say the

58:28

notice, not the motion. And

58:30

notice that's different from co-conspirator one. This

58:33

is individual one. Number

58:36

two, he

58:39

or she reviewed and analyzed data on

58:41

the defendant's phone and on individual one's

58:43

phone, including analyzing images

58:45

found on the phones and websites

58:48

visited. Three,

58:51

determine the usage of those phones throughout

58:53

the post-election period, including on and around January

58:55

6th. And four,

58:57

specifically identified the periods of time

59:00

during which the defendant's phone was

59:02

unlocked and the Twitter application

59:04

was open on January 6th.

59:07

And so that says, here's we're going to prove that it

59:09

was Trump who sent that tweet. Who's

59:12

individual one? And more broadly,

59:14

what Trump was looking at on Twitter. He can't

59:16

– this is all going to go to what

59:18

was in his head, what did he know, how

59:21

much of what

59:23

was happening on the grounds of the Capitol was

59:25

he aware of. Well, if you can show that

59:27

his Twitter scrolling history minute

59:29

by minute, second by second, you can

59:32

really paint a very rich

59:34

picture of what his eyeballs

59:36

were seeing and what he was thinking about at that

59:38

time. The expert is likely

59:41

– I'm going to guess it's like an –

59:43

either an agent or an FBI employee who does

59:45

this every day. This is an analyst, right? This

59:47

is an analyst who does this stuff. This

59:50

is the person who, after the other two

59:52

laid the foundation. This is the person who

59:55

actually gives you the interpretation, how the data

59:57

is relevant to this case. It could

59:59

be a private – sector expert, there are certainly

1:00:01

people that do that, but oftentimes

1:00:05

the prosecution relies on government employees to

1:00:07

do it. Yeah, and

1:00:10

this is kind of almost

1:00:13

like at the heart, right,

1:00:15

of showing that

1:00:18

he incited the

1:00:20

insurrection. Yeah, think

1:00:23

about this, think about the Gen 6

1:00:25

hearings. We heard from White House employees

1:00:27

who could testify, yeah, I walked into

1:00:29

his, I was walking back, you

1:00:31

know, into the, what

1:00:34

is it, the dining room? The dining room,

1:00:37

yeah. The dining room off the Oval Office and

1:00:39

he was in there and he seemed to be there

1:00:41

from this time to that time and the TV was

1:00:43

on. So that's, you know, it's decent testimony that

1:00:46

he was watching the events, was aware of what was

1:00:48

happening. This goes a hundred

1:00:50

times more granular than that. Yeah.

1:00:52

This will tell you, like, yeah, and

1:00:54

at this minute, hour,

1:00:57

minute and second of the day, he went

1:00:59

on Google and he searched, you

1:01:02

know, could I

1:01:04

be guilty of incitement? How

1:01:08

do I poison my chief of staff? Where

1:01:12

do I get the most well-done steak

1:01:14

in DC? I don't know, whatever, but

1:01:16

you're gonna get, like, that's why, like,

1:01:19

I always feel like search history is

1:01:21

just deadly because it tells you what

1:01:23

was in the mind of the person

1:01:26

you're talking about. So this

1:01:28

could be really interesting stuff. Yeah,

1:01:31

search history has come in handy

1:01:33

for me in divorce cases. So

1:01:36

yeah, we won't go into granular detail. Also,

1:01:38

something's going on with Eastman, but, you know, well,

1:01:46

what's the story, first of all, with Eastman and his

1:01:48

disbarment? Yeah, well, it's interesting.

1:01:50

We learned that Jack Smith is

1:01:52

still scrutinizing John Eastman. He requested

1:01:54

and received all of the deposition

1:01:57

transcripts from Eastman's disbarment trial. in

1:02:00

California. Now, you know,

1:02:02

it could just be something to have

1:02:04

in their back pocket in the event

1:02:06

that they are cross-examining Eastman in this

1:02:08

case or who knows a later case.

1:02:11

Well, that's what I think it is because, you know,

1:02:13

I don't think that they're still investigating Eastman.

1:02:15

I mean, they might based on what they find

1:02:18

in the deposition transcripts, there might be

1:02:20

other threads to go down. But I personally,

1:02:22

I feel like this is like

1:02:24

why Jack got the January 6 transcripts.

1:02:26

Yeah. I don't think you had that

1:02:28

information, but you have to make sure that your, that

1:02:32

the testimony is consistent from

1:02:35

agency to agency or court to agency

1:02:37

or Congress. Like we talked about in

1:02:39

the Durham investigation where Jim Baker gave

1:02:42

kind of conflicting testimony to different entities,

1:02:44

which impeaches him as a witness, right?

1:02:46

Now, I don't think Eastman is going

1:02:48

to be a witness, but

1:02:50

you definitely want to make sure that everything

1:02:53

that, you know, if you're going after

1:02:55

something specific that it can't – you

1:02:57

know, that your evidence can't be impeached

1:02:59

from inconsistent testimony elsewhere. Yeah. These

1:03:01

are all statements on the record, right? They were

1:03:04

recorded, you know, maybe

1:03:06

audio recorded, maybe just transcribed, but they

1:03:08

were sworn. That's the important thing. So

1:03:11

Eastman can't walk away from things that

1:03:13

he said in these depositions.

1:03:15

So if he's a

1:03:18

witness – you know, he's pretty – if

1:03:20

you listen to his quotes recently, this dude

1:03:22

hasn't backed off an iota. He is still

1:03:24

like, I think the election was stolen and

1:03:26

blah, blah, blah, blah. So it's

1:03:28

possible he ends up on the stand as a

1:03:31

defense witness. And in that case, the

1:03:33

government will go after him. Oh my

1:03:35

gosh, they're going to go after him.

1:03:37

They're going to look for every possible

1:03:39

inconsistency he's ever walked into, and this

1:03:41

could certainly provide examples of that. Yep.

1:03:44

Yep. 100%. All

1:03:46

right. We have more

1:03:49

to get to. We have to still talk about Florida. Wow.

1:03:51

After office. What Florida? Where?

1:03:55

What? We'll head down there as soon

1:03:57

as we take this quick break. Stick around. We'll be right back. One,

1:04:01

two, three, four. One.

1:04:05

Two. Three. Four

1:04:07

those are numbers. But. You already

1:04:09

knew that. If. You want to know

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one number you going to page month for

1:04:13

your car Used Kelley Blue book my wallet

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on auto traitor. They're really get it numbers.

1:04:18

Auto Traitor. Time

1:04:21

for a quick break to talk about McDonald's.

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All right. Hey

1:05:19

everybody. Welcome

1:05:22

back. Let's head to

1:05:24

our favorite place, Florida. Where

1:05:26

the trial for the Mar-a-Lago

1:05:29

documents will be happening sometime

1:05:31

this century. This

1:05:34

is from Caitlin Polance, your colleague over

1:05:36

at CNN, Andrew. This is great reporting. Three

1:05:40

months after the FBI seized classified records

1:05:42

from Mar-a-Lago, a longtime employee of Donald

1:05:44

Trump and his private club

1:05:46

Mar-a-Lago quit his job. Within

1:05:48

days, the former president did something he rarely

1:05:50

does. He called the former employee

1:05:52

on his cell phone to ask why he was leaving

1:05:54

after two decades of working at the resort. Now,

1:05:58

the employee told the former president, I had a problem. I have

1:06:00

other business stuff I want to pursue." And

1:06:03

the message later got back to the former employee that

1:06:05

Trump thought he was a good man. Sounds

1:06:07

like Flynn, doesn't it? The

1:06:10

former employee was a witness to several episodes

1:06:12

that special counsel Jack Smith included in his

1:06:15

indictment, charging the former president with mishandling

1:06:18

or I should say, retaining national

1:06:20

defense information. Now,

1:06:23

this employee also helped move several boxes

1:06:26

for Trump and was also privy to conversations

1:06:28

referenced in the indictment between Trump and his

1:06:31

co-defendants, Deo Lavera and Naota,

1:06:34

putting the former employee in a unique group of

1:06:36

Mar-a-Lago staffers who could be in a position to

1:06:38

provide valuable information to investigators. This guy got

1:06:40

his own lawyer, right? But

1:06:43

Trump was still reaching out to him and having people

1:06:45

reach out to him saying, we'll pay for your lawyer.

1:06:48

Deo Lavera was the

1:06:51

one who gave this employee's phone

1:06:53

number to Donald Trump. And

1:06:56

Deo Lavera told this former employee that he

1:06:58

was sure Trump would love to see him

1:07:00

at an upcoming Trump hosted golf tournament and

1:07:03

asked if he would like complimentary tickets. And

1:07:06

on another occasion, Deo Lavera communicated to the former employee

1:07:08

that his job is still available. If you want to,

1:07:10

anytime you want to come back to Mar-a-Lago, you still

1:07:13

have a job, buddy, Trump thinks you're a good man.

1:07:15

That was Deo Lavera. And then Naota told this

1:07:18

employee that he could come back to work at

1:07:20

Mar-a-Lago. And he

1:07:22

showed up at the former employee's gym

1:07:24

in person with Deo Lavera. Like

1:07:27

they were stalking this dude. Totally.

1:07:29

Totally. I mean, you know, when I, when I first

1:07:31

heard this, I thought that's got to be UCL Tavares,

1:07:34

but I don't think it is. No, I

1:07:36

think it's the other employee, right? The one who

1:07:38

had the photo of the stuff spilled

1:07:40

all over the ground. Yeah. I

1:07:42

think it was the go between employee. Um,

1:07:45

because I think if it were

1:07:47

Tavares, they would have said it's

1:07:50

Tavares. Or he, you know, he's the guy who

1:07:52

got his own lawyer after the

1:07:54

hearing for conflicts of interest in DC.

1:07:57

And then that was brought in here. So I think. I

1:08:00

think that this is that other employee

1:08:02

but he's out there calling him, offering

1:08:04

him tickets saying you're a good man,

1:08:06

we'll pay for your lawyer. Like this

1:08:08

is obstructiony but the thing is- Straight

1:08:11

up mob tactics, straight

1:08:13

up witness intimidation, witness

1:08:16

interference. Jack Smith is asking

1:08:18

about this though. So very,

1:08:21

very hard cases to bring even though

1:08:23

we all know exactly what's going on

1:08:25

here. The guy in the

1:08:27

center of it, our friend

1:08:30

Don, he is smart enough not

1:08:32

to get personally engaged. So being

1:08:34

able to- holding him accountable for

1:08:37

this, very, very hard

1:08:39

to do. Even though it's like happening in plain

1:08:41

sight and people are going to be frustrated to

1:08:43

hear me say that. As

1:08:45

an agent, like this stuff happens

1:08:47

all the time. It's infuriating and what

1:08:49

you do literally on the ground, this

1:08:51

comes up mostly in mob cases. And

1:08:54

so you do everything humanly possible

1:08:56

to separate the witness from the

1:08:58

influence of these third parties. But it's hard to

1:09:00

do. I mean it's- life is what it is.

1:09:02

People have to have jobs. They're not all going

1:09:05

to move out of their house and go

1:09:08

into witness protection just because they're scooped up

1:09:10

in a case like this. So it's very

1:09:13

frustrating. Yeah. And

1:09:16

in some breaking news from CNN, a

1:09:18

binder containing highly classified information

1:09:21

related to, of

1:09:23

course, Russian election interference- Your favorite.

1:09:25

Yeah, it never

1:09:28

goes away. It's evergreen. It

1:09:30

went missing at the end of

1:09:32

Donald Trump's presidency, raising alarms among

1:09:34

intelligence officials that some of

1:09:37

the most closely guarded national security secrets

1:09:39

from the US and its allies could

1:09:41

be exposed. So

1:09:43

if this story sounds familiar, we've known

1:09:45

about the binder since Cassidy Hutchinson testified

1:09:48

about it to the January 6th committee.

1:09:50

And of course, she wrote about it in her book. But

1:09:53

what's new here from CNN is

1:09:55

that the binder was not recovered during

1:09:57

the search at Mar-Lago and- And

1:10:00

the CICI, the Senate Select Committee

1:10:02

on Intelligence, was briefed on

1:10:04

this as recently as 2022. And,

1:10:07

Allison, there is great significance to the

1:10:09

fact that that brief occurred. This

1:10:12

goes all the way back to

1:10:14

the National Security Act of 1947,

1:10:16

which created a statutory obligation on

1:10:18

the part of intelligence agencies to

1:10:20

brief Congress about things that

1:10:23

qualified as intelligence failures.

1:10:27

Oh. Yeah, so this was always like

1:10:29

one of those guardrails that you kept in the

1:10:31

back of your mind as you were

1:10:33

doing things and, you know, operations don't always go the

1:10:35

way you want. And this

1:10:37

was kind of the threshold of if it

1:10:39

was that serious, then we actually have to

1:10:41

go tell Congress about it. So

1:10:44

it tells you how serious the

1:10:46

community thinks about the loss of this

1:10:49

binder. Hmm. Wow. So

1:10:51

the binder contained raw intelligence

1:10:53

the US and its NATO

1:10:55

allies collected on Russians and

1:10:57

Russian agents, including sources and

1:10:59

methods that informed the US

1:11:01

government's assessment that Russian President

1:11:04

Vladimir Putin sought to help

1:11:06

Trump win the 2016 election. Sources

1:11:09

tell CNN. Now

1:11:12

CNN says the intelligence was so sensitive

1:11:14

that lawmakers and congressional aides with the

1:11:16

top secret security clearances were able to

1:11:18

review the material only at CIA headquarters

1:11:20

in Langley where their work

1:11:22

scrutinizing it was itself kept in a locked

1:11:25

safe. That's the way you

1:11:27

do these things at what we call a reading room.

1:11:29

You have stuff that's so dangerous, so

1:11:31

sensitive, you don't want it to leave the building.

1:11:33

You certainly don't want it left over at Congress.

1:11:36

You keep it in a skiff, in this case

1:11:38

at Langley, you make the congressional folks come over

1:11:40

to read it. And if they take

1:11:43

notes about what they're reading, they have to leave the notes

1:11:45

with you. They're not even allowed to

1:11:47

walk away with the notes they take. And they lock those in

1:11:49

a safe? Yeah, that gets locked in

1:11:51

a skiff. It all

1:11:53

gets kept together and it's

1:11:55

held even under higher restrictions

1:11:58

than typical This

1:12:01

stuff is typically what we call compartmented

1:12:03

intelligence. We talked a lot about that

1:12:05

after the search warrant at Mar-a-Lago. Some

1:12:07

of the stuff down there had the

1:12:10

indicators of compartmentalized intelligence on

1:12:12

it. In any case, Hutchinson wrote in

1:12:14

a book that she believes that Meadows was the

1:12:16

last person with a binder. This is

1:12:19

the same binder that Trump wrote

1:12:21

the January 19th declassification order for

1:12:24

and ultimately assigned Cash Patel and

1:12:26

John Solomon, the right-wing journalist, to

1:12:28

be custodians of while

1:12:31

negotiating with the National

1:12:33

Archives. Solomon claims that

1:12:35

on the night of January 19th, Meadows

1:12:37

invited him to the White House to

1:12:39

review several hundred pages of the declassified

1:12:41

binder. One of

1:12:43

Solomon's staffers was even allowed to leave

1:12:45

the White House with

1:12:48

the declassified records in

1:12:51

a paper bag. But

1:12:54

congressional reps had to

1:12:56

go to Langley in a skiff and couldn't leave

1:12:59

with their notes. Yeah,

1:13:01

exactly. I mean this is – as

1:13:03

we said, it's not a brand-new story,

1:13:06

but these details about how

1:13:08

– in my estimation

1:13:10

anyway – how recklessly the former

1:13:13

administration handled this material is

1:13:16

really shocking. And

1:13:19

I've described this before. I know from

1:13:22

my personal experience with overseeing

1:13:24

the team that wrote the ICA, the

1:13:27

Intelligence Community Assessment on essentially Russian interference

1:13:29

in the 2016 election. That

1:13:33

document was drafted based on an assignment given

1:13:35

to us by President Obama for

1:13:38

all three agencies, the Bureau,

1:13:40

NSA, and CIA, to

1:13:42

collect everything, every piece of intelligence they

1:13:44

had that might shed light on what

1:13:46

Russia did – this was after the

1:13:49

election, of course – that might

1:13:51

shed light on what Russia did in the election

1:13:53

and what were they trying to accomplish. And

1:13:56

so each one of us contributed the most

1:13:58

sensitively to the election. On

1:16:01

what is essentially, and I'll quote Fiona

1:16:03

Hill here, a political errand, right? Like

1:16:05

that's the purpose of his continued

1:16:07

obsession with that investigation and with

1:16:10

the information relative to it. He

1:16:13

was pissed off about the

1:16:15

fact that we had done that investigation from

1:16:17

day one because he felt

1:16:19

like in some way it embarrassed him

1:16:21

and it undermined his victory, which

1:16:23

I mean it did

1:16:26

not. It was simply an intelligence investigation

1:16:28

to figure out what our adversary was

1:16:30

doing to us, but nevertheless, in his

1:16:32

world, it's a personal insult like everything

1:16:34

else is. And so we

1:16:37

can't sit here and say with perfect clarity what

1:16:39

he wanted to declassify that for, but we can

1:16:42

say there are pretty good other analogs, right? We

1:16:45

know that he used some of the intelligence that

1:16:47

classified highly sensitive intelligence.

1:16:49

He took a Mar-a-Lago for

1:16:51

the purpose of trying to

1:16:53

have vengeance upon his enemies

1:16:55

like Mark Milley, the

1:16:57

infamous Iran plans that

1:17:00

he leaked to reporters in an effort to

1:17:02

try to make Mark Milley look stupid. Which

1:17:04

he was wrong about. Of course. None

1:17:07

of that exonerated him from anything. Nor

1:17:11

would the ICA have

1:17:13

cleared up his mind over this issue. I'll

1:17:16

just say that. But

1:17:18

nevertheless, you can be

1:17:20

sure that these risks were taken in

1:17:24

pursuit of mollifying his

1:17:26

small-minded, never-ending pursuit of

1:17:29

vengeance and retaliation. So thanks. Well done.

1:17:33

My feeling is that it was a disorganized pile,

1:17:35

and Meadows has some of it, and

1:17:38

some of it made its way

1:17:40

down to Mar-a-Lago, and it's somewhere

1:17:43

in those 20 to 30 boxes

1:17:45

that were never recovered. I don't know. But

1:17:48

that's what the reporting is here. But that's the

1:17:50

problem, is we don't know where it is. Meadows'

1:17:54

attorney is very forcefully denying

1:17:56

the CNN reporting and saying

1:17:59

artfully. What he says is

1:18:01

Meadows never mishandled classified evidence, which I

1:18:03

find that almost impossible to believe. Yeah,

1:18:05

and he doesn't say that he doesn't

1:18:07

have it. Right, right. And

1:18:11

so who knows?

1:18:13

Meadows is capable of anything.

1:18:17

He's a very slippery character

1:18:19

this we now know, but whatever. The

1:18:22

significance here is the potential danger

1:18:25

to US national security and how

1:18:28

the former administration created that risk,

1:18:30

really. Yeah, 100%. All

1:18:32

right, well, that is the bulk of the news.

1:18:35

It's time for listener questions. If you have a question, we have

1:18:37

a link in the show notes for you to follow where

1:18:40

you can fill out a form to send us your

1:18:42

questions. Andy, what do we have today? We

1:18:45

have two ones really short. By

1:18:47

the way, if you just want a little bit of good news, the

1:18:50

verdict is in on Rudy Giuliani in

1:18:52

the Shemos, Ruby Freeman defamation

1:18:54

case, $145 million. That's

1:18:59

going to take a little while to put that together,

1:19:01

I think. Yikes. Man,

1:19:03

that'll pay for a lot of scotch or

1:19:06

not. Good luck, Rudy. Couldn't

1:19:08

have it a nicer guy. Okay, so

1:19:11

questions for the week. There was one

1:19:13

that came in last week,

1:19:15

and I don't actually have the phrasing of

1:19:17

the question because I totally screwed

1:19:19

it up in my work on

1:19:21

the spreadsheet. But it comes

1:19:24

from somebody who identifies themselves as

1:19:26

IAIN-HIL. I don't know what that

1:19:28

means, but here's your question. You

1:19:30

basically asked, does the First Amendment

1:19:32

limit hate speech? Like, what can

1:19:34

happen to someone who uses hate

1:19:36

speech? And the short answer is

1:19:38

it does not. You

1:19:41

can say whatever

1:19:43

hateful thing you want about anyone

1:19:45

or any group, any religion, whatever

1:19:47

you want here, as long

1:19:49

as it's just speech. Now,

1:19:51

if you say something hateful about someone

1:19:54

while you're in the act of committing

1:19:56

a violent crime against them, chances

1:19:58

are you could be charged with a hate speech. hate crime and

1:20:01

the speech is used as evidence and

1:20:03

the proof of that crime. But

1:20:06

generally speaking, hate speech

1:20:08

is not prohibited here. You can say

1:20:10

whatever you want here. And I know

1:20:12

that drives Europeans and Canadians and everyone

1:20:14

else a little bit nuts, but dudes,

1:20:17

that's what we're all about. That's where we come from. Well,

1:20:19

my first encounter with that and having to

1:20:21

understand the first amendment from kind of both

1:20:24

sides, like speech that I don't like was

1:20:26

with the Westboro Baptist Church. Yeah.

1:20:29

Perfect example. You'll remember, I think

1:20:31

it went up to the Supreme Court. It was a higher

1:20:33

court that decided that they were allowed to

1:20:36

picket Marine Corps funerals with disgusting,

1:20:39

homophobic signs.

1:20:43

And I was incensed

1:20:45

that that was allowed,

1:20:48

but also understood that that

1:20:52

is free speech. Yeah.

1:20:54

And it sucks, but

1:20:58

that's what

1:21:01

the first amendment protects, right? Now, if

1:21:03

you go and start beating somebody up,

1:21:07

of course. Then it's not. Yeah. Then we're out

1:21:09

of first amendment territory and we're into assault. You

1:21:11

got to embrace both sides of it. You can't

1:21:13

just have free speech for you and people who

1:21:15

think like you, you got to have it for

1:21:17

everybody. There's plenty of websites, neo-Nazi

1:21:20

websites, very, very

1:21:22

well-known big ones out there and they are

1:21:25

filled with hate speech. They sell

1:21:27

advertising. They're not hiding. That's perfectly

1:21:30

legal here. So I'm not going to say what

1:21:32

they are because I don't want to, I don't

1:21:34

want to give you any suggestions, but anyway, that's

1:21:37

how that question gets answered. All

1:21:39

right. So second question comes

1:21:41

from David. David says I'm a devoted listener

1:21:43

to clean up Jack and daily beans. The

1:21:46

breath of your knowledge and the clarity of

1:21:48

your thinking and expression are stunning and invaluable.

1:21:51

Oh, good one. Thank you, David. You have

1:21:53

crossed the threshold necessary to have a question

1:21:55

read on Jack. Well

1:21:57

done, my friend. David

1:22:00

says, here's my question. Much

1:22:02

comment is centered on Judge Cannon's scheduling

1:22:05

the documents case for trial in May,

1:22:07

but slow walking procedures so as to

1:22:09

effectively make that date untenable. Some have

1:22:12

speculated that she wants to prevent Fawny

1:22:14

Willis from using that window and thus

1:22:16

block the Georgia trial until after the

1:22:18

election. What if DA Willis

1:22:20

went ahead and asked for a date in

1:22:22

that window anyway, it would force Cannon to

1:22:25

quote shit or get off the pot, close

1:22:27

quote. You would go forward with

1:22:29

the trial is scheduled or give up the window and let

1:22:31

the Georgia case proceed. Um, so basically he

1:22:33

says, can she do this? Would she, what are your

1:22:36

thoughts? Basically these

1:22:40

courts do not coordinate with each

1:22:42

other in the, in the most

1:22:44

general sense and Fawny

1:22:46

Willis could definitely ask for a

1:22:49

trial date in that period. Gambling

1:22:51

on the fact that

1:22:53

the Mar-a-Lago case will not

1:22:55

actually go forward. Then generally

1:22:57

courts are not going to schedule

1:23:00

a trial in

1:23:02

a time period that the defendant in

1:23:04

their trial, you know, is

1:23:06

facing something in another jurisdiction.

1:23:08

And it's not because the other court

1:23:10

is more important or more serious or,

1:23:12

or anything like that. It's just because

1:23:15

they are going to go out of their way not

1:23:17

to put the defendant in their case in

1:23:19

a conflict between courts. So

1:23:22

generally they try to be aware

1:23:24

of what the defendant is facing

1:23:26

in other jurisdictions and work

1:23:28

around those things, but nothing would

1:23:30

stop Fawny Willis from making the

1:23:32

calculation that it's unlikely

1:23:35

that Trump, the Trump Mar-a-Lago case would

1:23:37

go forward, um, in

1:23:40

May and then, and then scheduling, you know, asking for

1:23:42

a date in that period. Yeah. She's

1:23:44

going to schedule when she thinks is appropriate

1:23:46

to schedule and the judge is going to

1:23:48

agree or disagree and schedule when he thinks

1:23:50

it's appropriate to schedule. And

1:23:52

then the chips fall where they may.

1:23:55

Um, I don't think that the Mar-a-Lago documents

1:23:57

case is happening in 2024. That

1:24:00

is my personal belief. I think

1:24:02

that the January 6th trial will go.

1:24:05

I think the Fonny

1:24:07

Willis trial will start in

1:24:10

2024. But

1:24:13

I don't think the documents case is even going

1:24:15

to be a consideration in any of those trials.

1:24:17

I think, I mean, you know, it's almost like get in

1:24:19

line. Manhattan DA has a trial

1:24:21

he needs to do for the falsification in the

1:24:23

Stormy Daniels case. There's

1:24:27

other things to consider when

1:24:30

we're talking about Trump's criminal trials.

1:24:34

So the chips are going to

1:24:36

fall where they may. I think that all

1:24:38

of the state cases

1:24:40

will probably defer

1:24:43

or I guess cede

1:24:45

to whenever Judge Chutkin goes.

1:24:48

I think that that's going to be the number one case

1:24:50

that everybody wants to see done first. Yeah,

1:24:53

and she's been the most

1:24:55

proactive in grabbing a time

1:24:57

frame and holding on to

1:24:59

it, running her case along

1:25:02

with the intent of hitting that date. It's

1:25:04

probably going to get slid a little bit now, but

1:25:07

that comes with the territory. So

1:25:09

I agree with all of

1:25:11

your predictions there. I also

1:25:14

think that Judge Cannon has indicated her, I don't

1:25:18

know what it is, slowness, reluctance to move forward, whatever

1:25:20

you want to call it. So she's

1:25:22

likely to say, oh, that case is going,

1:25:24

okay, then we'll move mine back. Oh, another

1:25:26

one jumped in there or we'll move mine

1:25:28

back again. So there's really no way to

1:25:30

tell how much it could be

1:25:32

delayed except to say a lot. Yep,

1:25:35

I concur. Thank

1:25:37

you for those questions. If you have questions, we have a link in the

1:25:39

show notes to a form you can fill out

1:25:42

and send in to us. We appreciate your questions. I know

1:25:44

this show is long today, but we had a lot to

1:25:46

go over and a lot to explain. I want to thank

1:25:48

Steve Lattuck again for joining us. Please pick up

1:25:50

his book, The Shadow Docket. While

1:25:53

you're at it, get the threat by Andy McCabe. I

1:25:55

have my signed copy. Another

1:25:57

excellent holiday gift. You

1:26:00

know, we again really appreciate you and we'll

1:26:02

see you next week I

1:26:04

don't believe we're taking a break for the

1:26:06

holidays because we we record on On

1:26:09

fridays, so I I think all the shows will

1:26:11

be in place unless you have uh, some time

1:26:13

that you need to take off my friend No,

1:26:16

i'm here. Let's charge forward. Let's do it.

1:26:18

Take the hill take the hill take the

1:26:20

jack can work on thanksgiving We can work

1:26:22

during that I have

1:26:24

no life. This is all I do anyway Anyway,

1:26:28

thanks so much. I've been alison gill and

1:26:30

i'm andy mckay Time

1:26:36

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