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1:38

I signed an order appointing Jack Smith.

1:40

And nobody knows you. And those who

1:42

say Jack is a fanatic. Mr. Smith

1:45

is a veteran career prosecutor. Wait,

1:47

what law have I broken? The events leading

1:49

up to and on January 6th.

1:51

Classified documents and other presidential records.

1:53

You understand what prison is? Send

1:55

me to jail! Welcome

2:05

to episode 60 of

2:07

Jack, the podcast about all things

2:09

special counsel. It is Sunday,

2:11

January 21st, 2024. I'm

2:15

Andy McCabe. Hey, Andy. I'm

2:17

Allison Gill. Per us,

2:19

we have a jam packed show today,

2:21

including Donald Trump's reply in

2:23

support of his motion to hold Jack

2:25

Smith in contempt. Remember, because he

2:28

kept filing stuff on the docket and

2:30

handing over discovery while the proceedings are

2:32

stayed. And Judge

2:34

Chutkin's ruling on that contempt motion

2:37

and an appeals court denial in

2:39

the ongoing appeal of Trump's Twitter

2:42

account search warrant. And

2:44

we have a series of filings and rulings

2:47

in the Mar-a-Lago documents

2:49

case, including another vague

2:51

and overly broad motion to compel

2:53

from Donald Trump. I

2:56

know you're all shocked. A supplemental

2:58

classified motion to compel, which

3:00

has been filed under seal and

3:03

a motion from Trump to be able

3:06

to file a redacted version of that

3:08

same classified motion on the

3:10

public docket, which of course the government

3:12

opposes. We also have

3:15

a notice that Trump filed a challenge

3:17

to the DOJ's SIPA section four motion

3:19

under seal. And I

3:21

know that's a mouthful, but we're going to break it

3:23

all down for you. Yep, bunch

3:25

of motions. And Andy, let's start

3:28

with a motion to compel the court to order Jack

3:30

Smith to show cause why he shouldn't be held in

3:32

contempt, because this is my favorite thing. I

3:34

want to remind everyone about

3:37

exactly what Trump was asking for

3:39

in his original motion, because everyone's

3:41

like, oh, it was

3:43

kind of a win for Trump and sort

3:45

of a win for Jack Smith because, you

3:47

know, Jack Smith won't be in contempt, but

3:50

he can't file stuff on the docket anymore. But

3:54

he didn't just want to hold Jack

3:56

Smith in contempt. Listen to this list.

3:58

He wanted 11 things. He

4:00

wanted first to require the court to order Jack

4:02

Smith to show God why he shouldn't be held

4:04

in contempt. And that's the big part of the story.

4:06

That's what everybody's calling this. But

4:09

he also asked to dismiss his

4:11

case, to sanction

4:13

Jack Smith, to remove

4:15

Jack Smith from the case, to

4:18

order Jack Smith to pay Trump

4:20

some damages, to suspend

4:24

Jack Smith. Yeah.

4:27

He wanted to suspend him, remove

4:29

him, to draw adverse evidentiary inferences

4:31

against Jack Smith, to

4:34

bar Jack Smith from entering evidence

4:36

because of this, to

4:38

enter a default judgment in

4:40

favor of Trump. Okay.

4:43

To require Jack Smith

4:45

to obtain permission to file pleadings

4:47

in the future and to

4:50

order Jack Smith to completely withdraw

4:52

his motion in limine, which is one of the things –

4:55

I think it's the only thing he filed on the docket.

4:58

And there was a late developing

5:00

one in order requiring

5:02

Jack Smith to mow his lawn and wash

5:04

his car five times this summer. So

5:09

that's what Trump was asking for in this

5:12

motion. They made – like the news was

5:14

making him sound relatively sane, like, oh, he just

5:16

wants to show cause to hold him in contempt. No. He wanted all

5:19

that stuff. I

5:22

want him ordered to turn over his

5:24

entire baseball card collection at my house.

5:27

To flip it and reverse it.

5:32

Now, we know DOJ responded because we talked

5:34

about this before, pointing out that

5:36

before Judge Chutkin even issued her stay order,

5:38

the government filed a pleading saying, yeah, of

5:40

course the proceedings should be stayed, but we're going to

5:42

keep producing discovery and meeting our deadlines voluntarily.

5:44

And after that,

5:47

Judge Chutkin issued the stay order, and

5:49

in that order, she didn't expressly prohibit

5:52

the government from filing stuff on

5:54

the docket. Now, what's

5:56

new this week is that Trump filed a reply

5:58

to – the DOJ's

6:00

response? Yes indeed he did. So

6:04

Trump opens his response with, having

6:07

been caught knowingly, repeatedly, and

6:09

belatedly violating this court's stay

6:12

order, the special counsel

6:14

and his assistants, the prosecutors,

6:17

offer no excuse. Instead, they

6:20

engage in a failed attempt to

6:22

rewrite the record, claiming that the

6:24

stay order prohibits only those actions

6:26

that require a response from the

6:28

defendant. Okay so

6:30

but next AG, he

6:32

actually makes a decent argument. Okay? Yeah

6:35

I know. I don't think I've ever

6:37

said that in 60 shows

6:39

up until this point but okay here we

6:41

are. You always have to hold

6:43

out hope. Okay so he says

6:45

the prosecutors argue that

6:48

President Trump is not obligated to

6:50

review or respond to the prosecutor's

6:52

filings and discovery and therefore faces

6:55

no burden. This is

6:57

false. As an initial

6:59

matter, President Trump must examine all

7:01

documents the prosecutors file in this

7:04

case when they are filed to

7:06

determine whether and how he should

7:08

respond. And Allison that's because

7:10

there are actually things that

7:12

are not stayed, which

7:14

we've gone over in previous episodes,

7:17

including gag order violations and

7:19

bail conditions, violations of bail

7:22

conditions. So Judge Chutkin

7:24

still has jurisdiction over those and

7:26

if any of the government's filings are relevant

7:28

to things like that, well then Trump would

7:30

have to review the filings to make sure

7:32

he doesn't have to respond. You know it's

7:34

a little bit of nitpicking but it is

7:36

a good point and you know as we

7:39

know nitpicking is what lawyers do and I

7:41

think in this case they've picked a nit

7:43

that actually exists. I

7:45

also suspect it'll come up in Judge

7:47

Chutkin's ruling on this motion Now

7:50

the rest of the arguments are as you

7:53

would expect. They include quote,

7:55

as the prosecutors are fully aware

7:57

and no doubt intend, their

7:59

final filing of politically charged invective

8:01

such as the recently filed motion

8:04

in lemonade induces substantial

8:06

negative media coverage against President

8:09

Trump burdening him

8:11

with both personally by

8:13

falsely impugning his character

8:16

and professionally by undermining his

8:18

leading campaign for the 2024

8:21

presidential election. Worse, the

8:23

prosecutors publicized their untruthful

8:26

arguments knowing that

8:28

any press coverage will be

8:30

entirely one-sided without President Trump's

8:33

substantive responses. Okay,

8:35

he goes on to say, although

8:38

the prosecutors generically deny a

8:41

political motivation, such words are

8:43

empty. The prosecutor's

8:46

filings, including the motion in

8:48

lemonade, closely mirror the Biden

8:50

campaign's dishonest talking points, a

8:53

fact that the prosecutors do not and

8:56

cannot deny. Wow.

8:59

Andy, I find it rather hilarious that Trump

9:02

is complaining about vindictive political missives

9:05

in government court filings while making

9:07

politically charged invective like he's

9:10

mirroring the Biden campaign's dishonest talking

9:12

points. I

9:14

can't believe he's being political and speaking of political,

9:17

I am the best political. I'm tremendous. Yeah.

9:19

Don't get caught up in the hypocrisy. I mean,

9:21

if you do, you'll be caught up forever. So,

9:23

you know, and he was making

9:25

such a good point before that. He

9:27

had such tubes right over the

9:29

cliff with more of this totally

9:31

kind of legally

9:33

irrelevant ranting. But, you

9:36

know, just to be clear, judges

9:38

typically don't get involved in how

9:40

press coverage of a legal proceeding

9:42

affects the litigants, right? I

9:44

mean, they'll make the big decision at the

9:46

front end about whether cameras can come into

9:48

the courtroom or unsealing court records, things like

9:50

that. And then they just step back and

9:52

let the press do their thing. Their

9:55

job is not to protect a defendant from

9:57

the possibility of a bad reputation, which is

9:59

what Trump has stumbled right

10:01

into having been indicted 94 times.

10:06

So, you know, it's going

10:08

to happen, DJ. It's, uh, you

10:11

embarrass yourself. That's right. That's

10:13

right. So, Judge

10:15

Chuck in his issue to ruling, let's go over

10:17

what she has to say, shall we? Mm-hmm. She

10:20

opens up with defendant Donald J. Trump's filed

10:22

a motion for order to show cause why

10:24

prosecutors should not be held in contempt. He

10:26

contends that the government has violated a court

10:28

order by continuing to produce discovery

10:31

and by filing a motion in limine

10:33

while the deadlines in this case are

10:35

stayed. And then after that, she lists all

10:37

the other 10 things I told you

10:39

about that Trump wants. She quotes

10:41

it right from the thing. And

10:43

then in the discussion section, she says the

10:46

stay order did not clearly and

10:48

unambiguously prohibit the government's actions, the

10:52

actions to which the defendant objects. She's

10:54

saying, I didn't prohibit it. Staying the

10:56

deadline for a filing is not the same

10:59

thing as affirmatively prohibiting it. Oh,

11:01

good point. I

11:04

know the basic function of a deadline is

11:06

not to authorize a filing, but to

11:08

time limit it correspondingly, the

11:10

lifting of a deadline removes that

11:13

time limit, but does not bar

11:15

the filing, at least not necessarily. On

11:18

its own terms, then the stay orders

11:20

key operative sentence did not bar the

11:23

government from voluntary rather than obligatory compliance

11:25

with the pretrial orders now stayed deadlines.

11:27

So basically, government

11:30

didn't do anything wrong here. Yeah. And I

11:32

think she's she's also like, I don't know

11:34

whether it's her or her crack staff of

11:36

legal assistance, but

11:38

her writing is always so clear. She

11:41

makes a point and it rings in

11:43

your head like, oh my God, that's

11:45

so obvious. Yeah, it's something

11:47

I didn't think of. Yeah. That the

11:49

function of a deadline isn't to authorize your filing,

11:51

but to put a time limit on it. And

11:54

it was like when she came out and

11:56

talked about the, you know,

11:58

the logical fallacy of. of his double jeopardy

12:01

claim, the

12:04

antecedent, right? And I was

12:06

like, oh, yeah, duh, thank you for pointing out

12:08

the op, she's so good at that. Really impressive.

12:11

She goes on to say, or her crack staff, the

12:13

rest of the stay order did not

12:15

unambiguously forbid the government's actions either.

12:18

Defendant claims it contained an

12:20

explicit holding that additional discovery

12:22

and briefing would violate it.

12:24

That's incorrect, Trump, you're wrong. The

12:27

stay order reasoned that requiring

12:29

additional discovery or briefing would advance the

12:32

case toward trial or impose burdens of

12:34

litigation on the defendant. But neither

12:36

the court nor the government has imposed

12:38

any such requirement. And

12:41

as defendant acknowledges, Trump said himself, he

12:43

has consistent with his rights under the

12:45

stay order refused to accept or

12:47

substantively respond to the

12:50

government's actions, right? Yeah,

12:53

I mean, to me, as

12:55

I was reading this thing, I'm thinking like, what

12:57

she's basically saying here is the stay does

13:00

not entitle the defendant to

13:02

occupy some headspace or

13:04

fantasy world in which he can pretend he's

13:06

not a defendant in a criminal case, right?

13:08

It just means that some

13:10

things, most things can't continue, but

13:12

the case is still there, buddy.

13:15

It's still hovering out over you

13:17

ruining your reputation. Yep, and

13:19

she says moreover, by the way, the

13:22

government's productions and filings have been mostly

13:24

compatible with the stay orders for

13:26

a broader purpose, which is to relieve the defendant

13:28

from burdens of preparing for trial and other pretrial

13:31

litigation. The court

13:33

cannot conclude that merely receiving

13:35

discovery or an exhibit list

13:37

constitutes a meaningful burden. You

13:39

didn't prove your case. That's right. And

13:42

here's where we get to the part where she agrees with Trump a

13:44

little. She says the same is

13:46

largely but not completely true for the

13:48

motion in limine. Diligent

13:50

defense counsel would need to conduct a

13:52

preliminary review of each substantive motion in the

13:55

government files so that they can know

13:57

whether they need to take further action. While

13:59

that is not true, not a major burden because Trump was

14:01

like, it is the end of my life. I

14:03

have to. I can't

14:06

possibly pay them one more dime. She

14:10

says, while it's not a major burden,

14:12

it is a cognizable one. So

14:15

accordingly, the court will adopt Trump's

14:17

recommendation that the parties be forbidden

14:20

from filing any further substantive pretrial

14:22

motions without first seeking leave from

14:24

the court, which means you've got to get

14:26

permission first. Correct. So what

14:28

she's saying here is she agrees that at least for

14:31

the motion in limine, Trump's lawyers would have to open

14:33

it and review it and make sure it doesn't contain

14:35

anything that he has to respond to or that's still

14:37

within her jurisdiction. So she

14:39

grants in part and denies in part his motion,

14:42

meaning she denies his request to hold him

14:44

in contempt, dismiss the case, enter a summary

14:46

judgment, withdraw the motion in limine, order

14:49

the government to pay Trump money for

14:51

his troubles, suspend Jack Smith, remove

14:53

sanction Jack Smith, draw inverse evidentiary

14:55

interference and bar Jack Smith from

14:57

entering evidence. She denied

14:59

all that, but she granted the part where both parties

15:01

need to ask permission to file anything. And what's funny

15:04

is that doesn't

15:06

even bar Jack Smith from filing anything.

15:09

It just means he would need to get permission first to

15:11

do so. Exactly. In the

15:13

future. So if we had

15:15

to quantify this, 92% win

15:17

for Jack Smith, 8% win for Donald Trump.

15:23

Yeah. I mean, I think that's fair, right?

15:26

Yes. You

15:29

know, it's crazy that we

15:31

are so far down in

15:33

the weeds on this thing during

15:36

the period where the entire thing is

15:38

supposed to be stayed, right?

15:42

He has moved this issue

15:44

forward requiring lawyering and burdens

15:46

from both sides in

15:49

his objection to their requiring levying

15:51

burdens on him. It's just like,

15:53

oh, it's

15:55

just crossfire and it accomplishes nothing. But

15:57

here we are. I think, I think her,

15:59

you know, She definitely split the baby on

16:01

this one in a very reasonable way. He

16:04

certainly can't complain about it. I don't know.

16:07

He will. You know, if I were

16:09

Jack Smith, I might be tempted to send him

16:11

one piece of discovery every day to just

16:14

keep filling up that inbox

16:16

like with a steady drip,

16:18

drip, like water torture. But

16:21

I don't know. Or the next time

16:23

something is due, I assume he would

16:25

just file notice with

16:28

the court for permission for leave

16:30

to file a substantive motion and then

16:33

see how she rules on it. In

16:37

that request for leave, request for permission,

16:39

he would say, Trump doesn't have to open

16:42

it. He doesn't have to respond. There's zero burden on Trump,

16:44

but I want to get it in. You know?

16:46

Yeah. If it was something you

16:48

felt strongly about, you could definitely do that. He's not going

16:50

to want to do that on anything that he thinks the

16:52

judge might go the other way on because it's kind

16:54

of a, you know, like a brush back. But

16:57

something important came up. I have no doubt they

16:59

would try. Yeah. We'll

17:02

see what happens. We obviously

17:05

keep following this. As

17:08

we don't yet have, and I'm checking right now,

17:10

I'm checking Pacer. We

17:12

don't yet have the immunity

17:14

decision from the

17:16

DC Circuit Court. But

17:19

we do have a lot of other stuff to cover today. So

17:21

we'll do that, but we have to take a

17:23

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

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20:02

right, everybody, welcome back. This is where the DC

20:04

Circuit Court's ruling on immunity was going to go.

20:07

This block was going to be dedicated to that. So

20:10

I've lost like two bets, one with myself

20:13

and one with you, Andy, because- It's

20:16

not your week for bets. I

20:18

left space in this script for that,

20:20

but we have so much to cover

20:23

that fortunately we definitely have a lot

20:25

to talk about. But

20:28

if we do get that ruling in enough time

20:30

before this episode airs, you'll

20:33

hear that- Now. Okay,

20:35

now, if you didn't hear anything

20:38

about the immunity ruling, let's

20:40

get back to what we were going to discuss. And that's what

20:42

happened in another case in the DC Circuit Court

20:44

of Appeals that they were

20:46

considering this week and gave a ruling

20:49

on. This was the search of information

20:51

stored at the premises controlled by Twitter on

20:53

a petition for

20:55

re-hearing on BOC, right? Yes,

20:58

yeah. So there's a lot of

21:00

history behind this one. You'll

21:03

remember that almost a year ago, Jack

21:05

Smith and Twitter were locked in a

21:08

battle over records obtained in a search

21:10

of Donald Trump's Twitter account. So

21:13

Jack Smith was looking for all kinds

21:15

of information that we've gone over in

21:17

previous episodes, including but

21:19

not limited to Trump's phone location

21:21

while tweeting, info about

21:23

who was signed into his account and

21:26

when, info about private direct

21:28

messages, search history, everyone

21:30

who liked and shared his tweets, the

21:33

tweets that he liked and shared, just

21:35

volumes of stuff, tons of stuff pursuant

21:37

to a court authorized search warrant. And

21:40

we've seen that information come up in court

21:43

filings and in reporting from ABC News that

21:46

it was Trump that tweeted the infamous

21:48

Pence didn't have the courage tweet on

21:50

January 6th and also

21:52

that he did not send a tweet telling everyone

21:55

to go home or to be peaceful. That of

21:57

course was Dan Scavino. Now both of

21:59

these things we would not. know without the information

22:01

about who was signed into the account

22:03

and where the phone was located when

22:05

the tweets went out. And

22:08

we also got a filing from Jack Smith about

22:10

expert witnesses that will testify about

22:12

how that Twitter data was used.

22:16

Now you'll recall that the search

22:18

warrant also had a non-disclosure order

22:20

that prohibited Twitter from informing Trump

22:22

about the warrant. Twitter

22:24

filed a motion to fight the

22:26

NDO because they wanted to be

22:28

able to tell Donald Trump about the search

22:30

warrant and also to block some of the

22:32

data from being sent. But they lost those

22:34

motions and Jack Smith got

22:37

all the Twitter data he was seeking sometime

22:39

around February of last year. Now

22:42

Twitter lost their bid to stay the

22:44

case but

22:46

the appeal of that decision continued

22:48

and that's basically where

22:50

we are today. The DC Circuit

22:53

Court denied Twitter's appeal and

22:55

Twitter filed a petition to have their

22:57

case heard on Bonk. That's of course

23:00

with the entire court, right? Initially

23:02

you get if they take your case

23:05

you get a three-judge panel and

23:07

if you don't like the decision that they make

23:09

you can ask for a re-hearing of the same

23:11

issue before the entire panel. It's like 12 or

23:13

13 judges in the DC

23:16

Circuit and

23:18

so they did that here. And this

23:20

latest ruling is the denial of the

23:22

on Bonk rehearing. The

23:25

DC Circuit says quote, upon

23:27

consideration of appellant's petition for

23:29

rehearing on Bonk, the

23:31

response thereto the amicus curae brief

23:33

filed by the Electronic Frontier Foundation

23:36

in support of a rehearing on

23:38

Bonk and the absence of

23:40

a request by any member of the court

23:42

for a vote, it is

23:44

ordered that the petition be denied.

23:47

It's really interesting to me because I just

23:50

assumed that every time someone requested

23:52

an on Bonk rehearing there would automatically

23:54

be a vote and then you have

23:56

to have a majority of the judges

23:59

say yes. we want to hear it. But

24:01

now I guess they have to vote on a vote.

24:03

Yeah, somebody's got to ask for a vote and in

24:05

this case no one even asked, which

24:08

is amazing, especially considering what

24:10

happened next, which is that...

24:12

It seems weird, like if Raul wanted to

24:15

pop off, it seems like she would have

24:17

voted for at least asked

24:20

for a vote. She called for the vote, right?

24:22

Maybe she knew she's like sounding more and more

24:24

like Congress, maybe she knew she couldn't get it

24:27

on the floor or something and so she didn't

24:29

ask. So conservative member

24:31

of the court, Naomi Rao, who is

24:33

a Trump appointee, she

24:35

had something to say and the other

24:37

conservative justices joined her. So I quote,

24:40

a statement by Circuit Judge

24:42

Rao joined by Circuit Judges

24:44

Henderson, Katzsis, and Walker respecting the

24:46

denial of the petition for rehearing

24:49

on Bonk is attached. Yeah,

24:52

so they're like, we

24:54

agree, no rehearing, but

24:56

I got something I want to say. Yeah, I've just

24:59

got to air this out a little bit. Yeah, and

25:01

she writes, Rao

25:04

writes, this case turned on the First

25:06

Amendment rights of a social media company, but

25:08

looming in the background are consequential and novel

25:10

questions about the executive privilege and

25:12

the balance of power between the President, Congress, and

25:14

the courts. Seeking access

25:16

to former President Donald Trump's Twitter

25:19

account, Special Counsel Jack Smith directed

25:21

a search warrant at Twitter and

25:23

obtained a non-disclosure order that

25:25

prevented Twitter from informing Trump about the search.

25:28

The Special Counsel's approach obscured

25:30

and bypassed any assertion

25:33

of executive privilege and

25:35

dodged the careful balance Congress

25:37

struck in the Presidential Records

25:39

Act. The district court

25:41

and this court permitted this

25:43

arrangement without any consideration of

25:45

the consequential executive privilege issues

25:47

raised by this unprecedented search.

25:51

Once informed of the search, President Trump

25:53

could have intervened to

25:55

protect claims of executive privilege, but

25:57

did not. And so those issues are

25:59

not properly before the en banc court. They

26:02

aren't properly before you either, Naomi Ral.

26:05

Yeah, they're not before you at all. Like

26:08

I honestly, that should be

26:10

the end of it, Andy, but Ral wants to keep talking

26:12

about it. It's like she decided to write an

26:14

opinion piece of the Wall Street Journal or something

26:16

about it. I mean. Yeah, you

26:18

know those memes where it's like nobody, absolutely

26:20

nobody. Naomi Ral. Well,

26:23

nonetheless, executive privilege. This

26:26

is like a textbook example of that. And

26:28

she goes on to say, nonetheless, executive privilege

26:31

is vital to the energetic and independent

26:33

exercise of the president's article two authority

26:36

and to the separation of powers. While

26:38

the privilege may yield to the needs of

26:40

a criminal investigation, they do. In

26:44

making this determination, the Supreme Court and

26:46

this circuit have always carefully balanced executive

26:48

privilege against other constitutional interests.

26:51

By contrast, the court here permitted a

26:53

special prosecutor to avoid even the assertion

26:55

of executive privilege by allowing a warrant

26:58

for presidential communications from a third

27:00

party and then imposing a

27:02

non-disclosure order. Because these issues

27:04

are likely to recur, I

27:06

write separately to explain how the decisions

27:08

in this case break with longstanding precedent

27:11

and gut the constitutional protections

27:13

for the executive privilege. Which

27:16

is weird because he had a chance to exert

27:18

it and he did not. And

27:21

also, because these issues

27:23

are likely to recur. Yeah,

27:27

I mean. When again are we gonna have a 2703 search

27:30

warrant executed on a

27:32

president's Twitter account because he tried to overthrow

27:34

the government? Or is she talking about how

27:36

he's such a one man crime

27:39

factory that we might face

27:41

this again in the future just with him in these

27:43

matters? I don't understand what you're saying. That's the only

27:45

way that I can imagine it actually because I know

27:47

your original comment was, there's

27:51

some humor in it but it's true. This

27:55

thing that she's pointing to can only come

27:57

up in the context of a criminal investigation.

28:00

talking about a congressional request

28:03

in the course of some congressional investigation.

28:05

They asked Twitter, can we have all

28:07

this information? No. They wouldn't have gotten

28:09

it. You need to be in the

28:11

context of a criminal investigation with a

28:13

grand jury to get in front of

28:15

a judge to make the request

28:17

for a search warrant, to have that warrant signed by

28:19

a federal judge. I mean like... And

28:21

it has to be a president because we're talking

28:23

about separation of powers. It can't just be like

28:26

we want Bob's Twitter info. It has

28:28

to be. It's executive privilege. It's the

28:30

only person on earth who can assert

28:33

it. Now, as a kind of academic

28:35

issue, she's right. It is a little

28:39

bit weird because what the government

28:42

asked for here, if

28:45

a president, any president, former

28:47

president was aware of the request,

28:49

they could make a legitimate executive

28:52

privilege, you know, opposition.

28:55

And it could very well be sustained

28:59

because what you're talking about

29:02

could go right at private

29:04

conversations between the president and

29:06

his closest advisors regarding presidential

29:09

business. That's like the very

29:11

heart of what's protected by

29:13

executive privilege. And,

29:15

you know, there's a question about... Anytime

29:18

you're talking about executive privilege, usually the specter

29:20

that looms over it is the separation of

29:22

powers. It usually comes up in the context

29:24

of Congress asking for information that the executive

29:26

doesn't want to turn over. And

29:29

the court is very careful about protecting

29:31

those separation of powers

29:34

distinctions. But in this

29:36

case, the weird thing is that

29:38

none of this... Courts

29:40

don't usually opine on things

29:42

that are not before them. And

29:45

none of this is before the

29:47

DC Circuit. And she's kind of like, you

29:50

know, she's kind of like angry

29:53

that it's not before them. Well, it's not. No,

29:57

no. And when Trump did find out, he... He

30:00

didn't try to exert

30:02

executive privilege over those communications. So

30:05

he had a chance, albeit

30:08

probably not right at the beginning because

30:10

there was a non-disclosure order. But

30:13

the fact that there was a non-disclosure order on

30:16

a search warrant for President's private communications, that

30:18

I think is what she has an issue

30:20

with even though it's not before her. Yeah,

30:23

like he didn't have the opportunity

30:25

to raise what could have been

30:27

an important and relevant executive privilege

30:29

issue because we kept

30:31

him from knowing about

30:34

that by upholding the

30:36

non-disclosure. It's a little bit strange.

30:38

The other thing that was interesting to me

30:40

here is that one of her co-signers was

30:42

Henderson, who is also on the panel

30:45

of the hearing the immunity issue. But

30:49

her questions, if I remember correctly, in

30:51

that hearing were pretty strong. So

30:54

I don't know that it's any indication of how she's

30:57

going to go on that. Yeah,

30:59

and yeah, she really was – she had a lot

31:01

to say about jurisdiction. I

31:03

feel like she thought that

31:06

the D.C. circuit does have jurisdiction

31:08

in the immunity matter while

31:10

it seems like maybe Pan didn't

31:13

think. She thought it was an easy

31:15

question that Midland Asphalt would preclude them

31:17

from hearing immunity.

31:21

And I just did a full article

31:25

on post.news,

31:28

I guess is what it is, about that.

31:30

Because I like

31:32

to try to guess what's going to be in

31:35

their ruling. I lost the bet, right?

31:39

I thought it was going to come out last week. And you're

31:41

like, no, probably next week. And here we are Friday in the

31:44

afternoon. We still don't have it. It's

31:46

been what, 10 days or something. And

31:48

I was like, what could possibly be taking so long? And

31:50

I have some theories about it. And

31:54

honestly, it's not taking that long. I mean, to

31:58

expect a court to come back in 10 days. days with

32:00

a ruling on something so difficult

32:02

is super, super fast, right?

32:05

But we all, I expected it to be faster

32:08

because of the urgency of the case.

32:10

But yeah, I think that they're weighing

32:12

the jurisdiction question and maybe they're coming

32:14

up with a hypothetical jurisdiction so

32:17

that they can get to the merits under the hypothetical jurisdiction

32:19

doctrine. And we're going to do, I was all prepared to

32:21

talk about it today with you, Andy, but I lost the

32:23

bet. Well, it lingers, right? It's going

32:25

to be, we're going to get it at

32:27

one point. And I also feel like they're

32:29

taking, it's just a little bit of time.

32:31

It's still very fast if they come out

32:33

with the thing in another week, it's still

32:36

pretty fast. But I

32:38

think they're trying to be careful to

32:40

put it out, not just

32:42

as a denied, but as

32:45

a very complete, solidly researched,

32:47

well articulated argument. And

32:49

by doing so, you have a much

32:51

greater likelihood that the Supreme Court will

32:53

not pick up the case if asked.

32:56

Right. And that they, an en banc,

32:59

re-hearing will be denied much as it

33:01

was here. Correct. In this

33:03

case, although Naomi Rao will probably come out

33:06

and do a song and dance anyway. We'll

33:08

see. With her jazz

33:10

hands, with her executive privilege hands.

33:12

That's a new thing. Nice. Executive

33:15

privilege hands. Are they fists? Yeah, you

33:17

shake your fist, still yelling at the

33:19

clouds. All right,

33:21

that is the Twitter

33:24

denial for re-hearing en banc

33:27

at the DC Circuit Court. We do

33:29

have a lot more to get to, lots of stuff going

33:31

on down in Florida, but we need to take another

33:34

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

33:36

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36:14

Welcome back. Okay, it's time

36:16

to head down to Florida. First

36:19

up, Judge Cannon has ruled. Yes,

36:22

I said that, Judge Cannon has ruled.

36:24

She issued a decision on nothing.

36:26

A ruling, oh my gosh. Well,

36:29

kind of. Kind of, yeah. She issued

36:31

a ruling on Jack Smith's motion to

36:34

require Donald Trump to notify the court

36:36

of his intent to use an advice

36:38

of counsel defense. Now, you're

36:41

gonna remember that Jack Smith filed the same

36:43

motion in D.C. and

36:45

there, Judge Chuck can grant it, ordering

36:48

Trump to notify the court of

36:50

an advice of counsel defense by January

36:52

18th. Of

36:54

course, since the trial is stayed, Trump will

36:57

get a new deadline once the immunity issue

36:59

is resolved. So let's

37:01

refresh this issue a little bit. Jack

37:03

Smith's reasoning for getting notice of Trump's

37:05

intent to use an advice of counsel

37:07

defense. Well, first

37:09

I guess, what is an advice of counsel

37:12

defense? That's basically when you come

37:14

in, your defense, you've been charged with some

37:16

criminal conduct and you come in and say,

37:18

well, my lawyer told me it was okay.

37:21

Therefore, I couldn't possibly have

37:23

had the requisite mental intent to violate

37:25

the law because my lawyer said it

37:27

was okay. Therefore, I thought it was

37:30

not illegal. That's

37:32

basically what it would be. Now,

37:35

if you make an advice

37:37

of counsel defense, you have

37:39

to, or you do also wave your

37:44

attorney-client privilege with

37:46

respect to anything you told your attorney and

37:48

he or she told you. That sounds a

37:50

little bit weird, but it makes sense, right?

37:53

If your defense is, well, my attorney told me

37:56

this was okay, then it makes

37:59

sense that. The court needs

38:01

now some evidence that that actually happened.

38:04

What did your attorney actually tell you? So

38:07

if Trump is going to make that

38:09

defense, well then Jack Smith would need

38:12

time to get his hands on all

38:14

those previously privileged communications from Trump and

38:17

then they would need to do some

38:19

follow-up investigation, interview the lawyer, interview

38:21

other people who might be witnesses to these

38:24

communications, things like that. Then

38:27

he would be required... Or find an email where they said,

38:29

hey, we killed a guy on the way and buried the

38:31

body over here. Now, oh well, now we have

38:33

to investigate that. Yeah, exactly. Whatever pops

38:35

up. Anything that springs from

38:37

that is fair game. Then

38:40

of course, after those investigations are

38:42

done, anything that he's

38:44

found might be discoverable. So he

38:46

didn't then have to provide discovery to

38:48

Trump along with any new witnesses that

38:50

he would want to bring in to

38:52

refute the defense. So there's all kinds

38:54

of ways that just asserting this defense

38:57

could really stretch things out and

39:00

put everybody to a lot of extra work. That's

39:03

why he... I think it was asking for

39:05

a 60-day notice in this particular case. Yeah,

39:08

and of course he made the point that

39:10

it's not a secret that Trump might be

39:12

considering using such a defense because

39:15

his lawyers basically told everyone on television

39:17

that multiple times that he intends to

39:19

use that defense. So he's

39:21

not making this up. It seems he's

39:23

not intruding

39:26

on Trump's ability

39:28

to consider what defenses he's going

39:30

to raise and can make those

39:33

decisions in private. He's already made them

39:35

publicly. So that was

39:37

basically why Smith filed

39:40

that motion. So

39:42

anyway, Judge Chutkin, she granted Smith's motion

39:44

in DC, but roll

39:47

the dice in Florida. Denied.

39:52

Denied. Straight up denied.

39:55

Okay, I quote from the order.

39:58

Paperless order. Denying

40:00

without prejudice, special counsel's motion to

40:03

compel disclosure regarding advice of counsel

40:05

defense. The court has

40:07

reviewed the motion, the defendant's opposition,

40:09

the special counsel reply, and is

40:11

fully advised on the premise. Assuming

40:15

the facts and circumstances in this case

40:17

warrant an order compelling disclosure of an

40:19

advice of counsel trial defense, the

40:22

court determines that such a request

40:24

is not amenable to proper consideration

40:26

at this juncture prior

40:28

to at least partial

40:30

resolution of pretrial motions,

40:34

transmission to defendants of the special

40:36

counsel exhibits and witness lists, and

40:39

other disclosures as may become necessary.

40:42

Special counsel's motion is therefore denied without

40:44

prejudice. So she's basically saying it's

40:46

not proper to make that motion now because

40:49

there's still a lot of things that

40:52

the prosecutors have to turn over

40:55

to the defendant. And presumably she's

40:57

reasoning, we don't know this because

40:59

she didn't state her reasons, but

41:02

she's reasoning that Trump

41:04

wouldn't be able to make a decision

41:08

about actually wanting to use that defense

41:10

until after he gets this stuff from

41:12

prosecutors. She has all the stuff. We've

41:15

read, we've gone over this discovery

41:19

productions and speedy trial reports and

41:21

they have everything. They have everything.

41:25

You know, I can't explain it. Well,

41:29

you don't have to. Everyone knows what's

41:31

going on here. She's putting it off. She

41:34

does absolutely the least

41:36

amount humanly

41:38

possible at any juncture.

41:43

You've heard of the path of least resistance. She's

41:46

the path of least judgment. She's

41:49

just not going to put her neck out on

41:52

this case in any way

41:54

whatsoever if she doesn't absolutely have to.

41:56

And that approach is what's going to

41:59

drag this trial. into

42:01

2025. Yeah, she's

42:03

the she's the queen of procrastinating

42:06

legally procrastinating. Yeah. Yeah,

42:09

and I mean, it was

42:12

what was funny was in DC in the day, you

42:14

know, in the Judge Chutkin DC

42:16

case, Trump opposed the motion

42:18

kind of his you remember, we talked

42:21

about it, he was like, yeah, you

42:23

can't make me it's unconstitutional. But maybe

42:25

I could do January. That's right. Because he

42:27

because Jack Smith wanted December 18. And he

42:31

said, but his argument went from it's

42:33

unconstitutional to that's too fast to maybe

42:35

January. I can't

42:37

possibly do this art, I'll go halfway.

42:39

Oh, and by the way, that was all in one filing.

42:41

Yeah, in the alternative.

42:44

Yeah, yeah. And he

42:46

didn't even do it like the way that it should be done, which

42:48

is I think this is unconstitutional and should be completely denied.

42:50

But if you're going to grant it, I need more

42:52

time. He didn't even do that. It was just

42:54

this weird meandering movement of

42:57

goalposts. And so she granted

42:59

a January 18. But like you said, it's

43:01

still stayed. And so that

43:03

will be pushed back to a future date.

43:05

Yeah. All right, so next up

43:08

in Florida, Trump has filed a

43:10

mirror motion to compel

43:12

discovery. You'll remember we went over

43:14

his motion to compel in DC where he

43:17

wanted everything all the records from

43:19

all the agencies ever

43:21

existed and all of the

43:23

classified documents and

43:26

materials underlying the what's

43:30

it called the ICA, the

43:32

intelligence community assessment of Russia.

43:35

Yeah, I want everything from everyone all the time. And if

43:38

anyone ever uttered a word that I might be innocent, you're

43:40

gonna have to send that to me too, right? So

43:42

it was just a big broad thing. That's

43:44

also where he declared that it was Russia that

43:47

interfered in the elections. And it was Russia

43:49

that made the mob on January 6th angry,

43:51

not me. It was Russia. Right

43:54

actor, wrong election. But anyway, I

43:56

digress. Yeah,

43:59

I'm sure that doesn't. hit weird for you in all the

44:01

candy. No, not at all. So motion

44:03

to compel discovery. You're asking the court

44:05

to enforce a request for information relevant

44:07

to the case. Documents, interviews, transcripts. It's

44:09

going to be something like, let's say

44:11

the government in a corruption trial says,

44:14

you told our cooperating witness you wanted

44:16

$100,000 and we have it on audio

44:18

tape and they've

44:20

only provided you just that clip of the

44:22

tape. You would go back as

44:24

the defendant and say, we file a motion to

44:26

compel the government to turn over the entire tape

44:28

because we want to hear the whole conversation. That

44:30

sort of thing. It's a legitimate request,

44:34

but not in a way that we've seen it

44:36

here. Yeah, and it has

44:38

to be specific and the defendant has to know

44:40

it exists. And

44:42

you haven't received it yet from the prosecution. The

44:45

materials can be Brady materials, which are records

44:47

that could exculpate or show the

44:49

defendant is not guilty. They

44:52

could be Giglio, which helps the defendant

44:54

impeach witnesses against him or Jenks

44:56

material, which is government witnesses prior

44:58

statements that the government has

45:01

to produce basically anything the defense needs

45:03

before trial. Here's what he says.

45:05

President Donald J. Trump respectfully submits, I

45:08

like the respectfully part, this

45:10

memorandum and the accompanying classified supplement.

45:12

He filed an accompanying

45:14

classified supplement under seal in

45:17

support of defendant's motions for an order

45:19

regarding the scope of the prosecution team

45:22

and to compel the special counsel's office

45:24

to produce certain discoverable materials. Now

45:26

Trump raised the scope of the prosecution team

45:28

in DC as well. And

45:31

in that case, Jack Smith responded.

45:33

Now Jack Smith hasn't responded to

45:36

what we're talking about here yet, the Florida one, this

45:38

motion to compel, but he did respond to his motion

45:40

to compel in DC. And

45:43

in that motion, Jack Smith said, the

45:45

government's Brady and Rule 16 obligations extend

45:47

to all material

45:50

in the possession, custody or control

45:53

of the prosecution team, which includes

45:55

only the prosecution itself and those

45:57

entities that are quote, closely aligned.

46:00

with the prosecution. Correct. That's

46:02

from U.S. v. Brooks. The closely aligned

46:04

with the prosecution inquiry is fact-intensive and

46:07

must be resolved on a case-by-case basis.

46:10

It's limited to entities that have

46:12

significantly cooperated with and provided substantial

46:14

information to the government's investigation. Only

46:17

where such a relationship exists and

46:20

the government has access to the documents will

46:22

courts in this district consider whether

46:24

the government should be required to

46:26

obtain documents that meet the materiality

46:29

requirements. So he says a lot

46:31

there, but basically what he's saying is the

46:34

prosecution team can't be every agency in

46:36

the executive branch. You

46:38

can only ask us for stuff we have from

46:40

agencies that are us and

46:43

those that we closely aligned

46:45

with the prosecution, and

46:48

those have to be considered on a case-by-case basis.

46:51

That's exactly right. They're not responsible for every

46:53

document across the entirety of the United States

46:55

government. They don't have to search all

46:58

these holdings for all this vaguely described

47:00

stuff. They

47:03

are obligated to disclose things that

47:05

are in their possession and custody.

47:10

When they're talking about related entities, that's

47:13

like if a case was worked on

47:15

a task force, like let's say the

47:17

Joint Terrorism Task Force brings a case

47:19

against an accused terrorist.

47:21

The two case agents are one's an FBI

47:23

agent and one is a DEA agent. They're

47:27

going to have to turn over any relevant documents

47:29

that are in the custody of the DEA because

47:31

they're a partner on that case. But they don't

47:33

have to go out and start knocking

47:35

on the door at the Environmental Protection Agency

47:38

and asking if they have any negative comments

47:40

about Donald Trump. That's not part

47:42

of your discovery obligation. And

47:45

Jack Smith says that. Again, when I'm quoting

47:47

Jack Smith, I'm quoting from his reply to

47:49

Trump's motion to compel in DC because we

47:51

don't yet have his response to this Florida

47:53

one. But I imagine it's going

47:55

to be largely the same. But Jack Smith set up

47:58

in DC to require the government to search the... files

48:00

of every agency in the executive branch would

48:02

not only wreak havoc, but would give the

48:04

defense access to information not readily available to

48:06

the prosecution. Because he

48:09

cannot satisfy the relevant test, the

48:11

defendant invents his own standard,

48:13

misapplies district case law, and

48:15

contorts facts to his liking.

48:18

Now keep in mind the cases that are cited

48:20

in the D.C. district are going

48:22

to be different than the cases cited in

48:25

the 11th district, which is down in Florida.

48:28

Basically Donald wanted all kinds of vague

48:30

documents, documents that didn't exist, like the

48:33

missing January 6th committee documents, and

48:36

documents from pretty much every agency in the executive

48:38

branch. Not to mention a bunch of stuff

48:40

that's classified and the Department of Justice's prosecution

48:42

team does not possess or even have

48:44

access to. And

48:46

as Jack Smith wrote in his response

48:49

to Trim's similar motion in D.C., the

48:51

defendant's view of discovery is untethered to

48:53

any statute, rule, or case, and

48:55

lacks both specificity and justification. Because

48:58

two things are very important, specificity and

49:01

justification. The information he seeks is

49:03

not in the government's possession, and in many cases

49:05

doesn't appear to exist, and in any

49:07

event is not discoverable pursuant to Brady,

49:09

Federal Rule of Criminal Procedure 16, or

49:12

any other authority. So

49:14

the filing in Florida from Trump is no different.

49:17

Trump's lawyers write, these issues are central

49:19

to the instant motion because the special counsel's

49:21

office is seeking to avert its eyes from

49:24

exculpatory discoverable evidence in

49:27

the hands of other senior officials at the White

49:29

House, the Department of Justice, and the

49:31

FBI who provided guidance and

49:33

assistance as this lawless

49:35

mission proceeded, and the

49:37

agencies that supported the flawed investigation from

49:40

its inception like NARA, the National Archives,

49:44

the Officer of the Director of

49:46

National Intelligence, ODNI, and other

49:48

politically charged components of the intelligence community.

49:51

In the Department of Energy, Andy,

49:54

is what Trump mentions in here. And

49:57

accordingly, for the reasons set forth below, the courts should...

50:00

conduct fact finding on any disputed facts

50:02

relating to the scope of the prosecution

50:04

team, enter an order

50:06

resolving the party's dispute on that issue, and

50:09

order special counsel's office to produce the request

50:11

to discovery. So he not only wants everything

50:14

under the sun, he wants Judge Cannon

50:16

to conduct a fact finding so

50:19

that they can settle their argument about what

50:21

the prosecution team is, which is developed

50:24

law. It's so typical

50:26

though. What he wants is to

50:28

create another whole subcategory

50:30

of litigation that has to be

50:33

fought through and objected to and

50:35

appealed from to further

50:38

delay this already delayed process.

50:41

That's what all of this is about. Those lawyers

50:43

know that this is nonsense, but

50:46

it's another motion which requires more

50:49

response and then goes

50:51

into the black hole of judicial

50:53

consideration by Judge Cannon. They'll

50:55

sit there for months before you ever get a ruling,

50:57

and then maybe you can appeal it and

51:00

who knows, maybe you can argue for an locutory

51:02

appeal to slow things down. Or

51:04

if she actually grants it, now

51:06

you've created like, it's almost

51:08

like a separate SIPA-like process to

51:11

determine discovery demands. I mean it's

51:14

a mini-trial, they call them like

51:16

mini-trials, right? Yeah. No

51:18

cases would ever be concluded if

51:21

you ran them in this way. You just

51:23

can't. Yeah,

51:25

and Trump even says in this motion

51:27

to compel in Florida, the Florida one,

51:29

no defendant is required to predict

51:31

every form of exculpatory discoverable evidence

51:34

that exists. He's admitting, I don't

51:36

know specifically what's missing. I'm

51:39

not a mind reader, he's saying

51:41

that because he doesn't know of anything

51:43

specific. He's

51:46

saying Judge Cannon should just order the DOJ to

51:48

produce these ghost documents that exist in Trump's

51:50

mind that will totally exonerate him,

51:52

I guess. Like I said,

51:54

you have to be specific, it has to be material. You

51:57

can't add a bunch of executive branch agencies to

51:59

the prosecution. prosecution team because you want all their

52:01

stuff. If

52:04

DOJ has seen, possesses,

52:06

or knows about any document or material that would help

52:08

your case or help you impeach a witness, they'll hand

52:10

it over. They have to. And

52:13

besides, Jack Smith said in DC, even if

52:15

the defendant could prove that the scope of

52:18

the prosecution team was boundless, he's not entitled

52:20

to discovery unless he can meet a burden

52:22

of showing materiality. So there's that whole second

52:24

layer of materiality. So

52:26

Andy, like I said, I imagine DOJ's response

52:28

to Trump's motion to compel in Florida will

52:31

be very much like his response to the

52:33

one in DC. It'll just have different case

52:35

citations because it's a different circuit, different district.

52:37

I think that's exactly right. The

52:39

argument is the same. We have thresholds

52:44

like materiality and relevance

52:46

for exactly this purpose,

52:48

to make sure that

52:50

defendants can't just attack

52:53

the prosecution with irrelevant nonsense as

52:55

a means of slowing things down.

52:58

There's a – before it

53:00

qualifies as an enforceable discovery

53:03

demand, you have to meet

53:05

these thresholds of materiality and

53:08

relevance. So I – now,

53:11

I mean, it was pretty predictable

53:13

how Judge Chuck can handle it. I'm

53:16

hoping it's not predictable how Judge

53:18

Cannon will handle it. I'm hoping

53:20

she'll actually tow the line here.

53:23

It's not a hard issue. Really isn't.

53:27

But here we are and who knows what's going to

53:29

happen. Yeah, do

53:31

not know, but we've got some other filings down there.

53:35

We do. We do. So

53:37

next up, we have a series of filings which

53:40

kicks off with Trump filing a motion for

53:42

permission to file a redacted brief. Okay,

53:44

so along with the motion to compel we just

53:47

discussed, Trump filed exhibits

53:49

under seal because they include

53:51

discovery material because you can't

53:53

file discovery publicly without permission

53:55

from the court. You can't just take things

53:57

that you got from the prosecutors and discovery

53:59

and – start throwing it out to the

54:01

general public. So

54:03

Trump is asking to unseal these exhibits in

54:05

support of his motion to compel. Per

54:08

the rules of court, Trump has

54:10

to ask what the government's position is,

54:13

and the government of

54:15

course has one. And they

54:17

said, quote, because the government learned

54:19

today of the defense's intention to

54:21

seek permission to unseal these documents,

54:24

the government does not know exactly what they

54:26

are and can't take a position. Once

54:29

the government has reviewed the materials, the defense

54:31

seeks permission to unseal, we will respond to

54:33

the motion to unseal by January 18, 2024.

54:38

Then on January 18, the government

54:40

filed its response saying basically

54:42

they agree with the idea of transparency,

54:45

but oppose in part because

54:47

unsealing these documents would expose

54:49

Trump's legal distortions. And they

54:51

oppose revealing the identity of

54:54

government witnesses or other discreet,

54:56

sensitive information such as one

54:59

exhibit that includes uncharged conduct

55:02

of one or more individuals. So

55:04

the government says, quote,

55:07

the government has no objection to

55:09

the public filing of defendants brief

55:11

and exhibits beyond these limited terms.

55:14

For the above reasons, the government

55:16

requests that the court deny the

55:18

defendant's request to unseal the information

55:20

and materials described in sealed attachments

55:22

A and B and direct

55:24

that they remain subject to the

55:26

protective order. So again,

55:30

we of course will let you know what

55:32

Judge Cannon decides. It seems pretty straightforward. And

55:34

I really feel like the government kind of

55:36

went out of their way to go to

55:39

kind of not

55:43

just oppose the entire thing,

55:47

taking a very absolutist position. They're trying

55:49

to be reasonable here. Basically

55:53

that kind of shows the bright and shining

55:55

path that she should follow in her order.

55:58

But who's to say? Yeah, it

56:00

seems like handholding, like hey, Judge Cannon, we're

56:03

cool with these exhibits, but

56:05

not A and B because they contain these

56:07

things that you can't put on the thing.

56:09

Exposing uncharged criminal conduct by other, you know,

56:11

against other people, that's like defamatory to these

56:14

other people who haven't been charged

56:16

with anything or exposing the identity

56:19

of government witnesses before the

56:21

trial. Like, those are very routine things

56:23

that prosecutors go out of the way

56:25

and courts go out of their way

56:27

to protect. It certainly

56:29

seems like they should be protected in the context

56:31

of this kind of goofy motion. Yeah,

56:34

seems like it to me as well and we'll

56:36

let you know when and if she makes a

56:38

ruling. Yeah. All right, we have

56:41

one more story and of course listener questions to get to. We're

56:43

going to take one more quick break and be

56:45

right back. Everybody stick around.

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with any other offer or combo meal. Single

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item at regular price. Hey

59:23

everybody, welcome back. Andy, I wanted to

59:26

bring up a quick story about

59:28

Jeffrey Clark's disbarment proceedings. This

59:30

is coming from Kyle Chaney and Josh Gerstein

59:33

at Politico who picked up on this story.

59:35

I want to bring it up because it

59:37

could be Jack Smith adjacent in

59:40

the DC prosecution. They write,

59:42

Donald Trump has injected himself into disbarment

59:44

proceedings against Jeffrey Clark, raising the

59:46

specter that the former president will

59:48

attempt to assert executive privilege to

59:50

block crucial testimony from senior

59:53

administration officials or force

59:55

months of litigation on the matter. In

59:57

a letter to Clark dated January 12th, Trump

59:59

attorney Todd Blanche urged Clark

1:00:01

to ensure that neither he nor other

1:00:04

witnesses talk about confidential conversations they had

1:00:06

while Trump was in office. Those

1:00:08

conversations could be covered by Trump's

1:00:11

executive privilege and other related

1:00:13

privileges, including law enforcement privilege,

1:00:15

attorney-client privilege, and deliberative

1:00:18

process privilege. Now,

1:00:20

the Biden administration authorized Clark and

1:00:22

other DOJ officials in July to

1:00:24

disclose that was July 2021 to

1:00:27

disclose details of their confidential discussions with

1:00:29

Trump. Now, Trump's lawyers

1:00:31

at the time opted not to fight the decision

1:00:34

but indicated that they could later. They wanted to reserve

1:00:36

their right to bring it up in the future. And

1:00:39

now they're doing that. He wants to

1:00:41

bar the testimony of Rosen and Donohue,

1:00:43

two of the DOJ officials that were

1:00:46

going to resign if Clark was made

1:00:48

attorney general. And Pat

1:00:50

Philbin, those are three key witnesses

1:00:52

in Clark's disbarment proceeding. So

1:00:55

I thought that that was interesting

1:00:57

because as you and I

1:00:59

both know, anything that they testify about in

1:01:02

a disbarment proceeding can be

1:01:04

picked up and used by anyone else who's

1:01:07

conducting a criminal investigation into similar behavior.

1:01:09

John Ligato Yeah. No question. Like, don't

1:01:11

– this is not –

1:01:14

don't misinterpret this. I know you're not. But

1:01:17

don't misinterpret this as some kind of

1:01:19

effort to help Jeff Clark. It's not

1:01:21

at all. This is entirely defensive. Trump's

1:01:25

lawyers don't want these witnesses who've already

1:01:27

made all kinds of statements under oath

1:01:30

that are not good for Trump in

1:01:32

terms of the cases that he's facing.

1:01:34

They don't want them doing it again.

1:01:37

So this is an effort to

1:01:39

quiet – shut these people up

1:01:42

and at least bog down

1:01:44

this testimony and this litigation

1:01:47

around Clark's license, slow

1:01:49

it down, to try to

1:01:51

avoid getting additional unfavorable statements

1:01:53

by very solid witnesses on

1:01:55

the record that could then

1:01:57

be used as

1:01:59

– evidence in his criminal trials.

1:02:01

That's how I see it. Yeah.

1:02:04

And this is kind of positioned as Trump

1:02:07

is going to bat for Jeffrey Clark, but I don't really

1:02:09

see it that way. Trump's going to bat for himself here.

1:02:11

Who does Trump go to bat for other than

1:02:14

Trump? Come on. Yeah. No, no, no. That's

1:02:16

never happening. This is, I think, this

1:02:18

is a little bit of like defensive criminal

1:02:22

litigation. It's, we got

1:02:24

to stop the bleeding here of, you know,

1:02:26

high profile people who, who have

1:02:29

and will likely continue to say bad things

1:02:31

that are bad for us before

1:02:34

these things go to trial. Yeah.

1:02:36

And of course on the seems too late

1:02:38

question, right? Like, I mean, he,

1:02:40

he is threatening litigation. So if

1:02:43

somebody wanted to argue to get

1:02:45

the testimony of these three guys by saying it's

1:02:48

too late for you to do this now, that

1:02:50

could still be litigated all the way up to

1:02:52

the Supreme Court and back down and again, put

1:02:55

it off for months. So that's

1:02:57

the threat here. I'm exerting

1:02:59

executive privilege or we're going to

1:03:01

litigate this for months, basically. Exactly.

1:03:04

The delay. We have. Yeah. That's, I mean,

1:03:07

that's all he's got. So, sure. All

1:03:09

right. And he, although he was right

1:03:12

on the, the limited

1:03:14

filing of stuff on the DC

1:03:16

docket, while the thing is stayed, he was right

1:03:18

there. There you go. So anyway,

1:03:21

we want to get to some listener questions now. If you

1:03:23

have any listener questions, we have a link in the show

1:03:25

notes for you to click on and you

1:03:27

can send your questions into us. What do we have today?

1:03:30

Well, we've got two today. Uh, the first one

1:03:32

is from Jeff in the UK. And I picked

1:03:34

this one because it's really, uh, kind of emblematic

1:03:36

of what a bunch of the questions we're getting

1:03:39

at this week. Um,

1:03:41

so Jeff says question for

1:03:43

the podcast for Alison and Andy given

1:03:45

Canons latest, which appears to push the secret

1:03:48

documents case to 2025, what option does DOJ

1:03:51

have to escalate to the appeals

1:03:54

court or is it

1:03:56

only impeachment that's available, um, to

1:04:00

to remove her. Yeah. Could speedy trial

1:04:02

legislation be the basis of an appeal?

1:04:05

So the short answer is

1:04:07

no. There's no options here. There's

1:04:09

really not a consistent – Not

1:04:12

yet anyway. Right. There's not a consistent or

1:04:14

reliable way to have a judge removed unless

1:04:16

you have like some absolutely

1:04:19

explicit evidence of wrongdoing on the judge's part.

1:04:21

Like if you had evidence that the judge

1:04:23

took money from the defendant to throw a

1:04:25

case or something, that would be

1:04:27

very different. But that

1:04:29

is not the case here. We

1:04:32

have all kinds of complaints about Judge Cannon. And

1:04:34

even with our frequent complaints,

1:04:37

it's almost impossible to identify

1:04:40

what her motivation is, whether it's just kind

1:04:42

of fear of the process and the criticism,

1:04:44

or the lack of sophistication,

1:04:46

lack of experience, or if she's actually harbor

1:04:49

some sort of bias. So there's

1:04:52

really not much they can do. You can't go

1:04:54

to a higher court and just complain, help

1:04:57

us, help us. The judge in our – who's

1:04:59

presiding over our case is too slow or

1:05:02

we don't like her. That pretty

1:05:04

much doesn't get you anywhere. And the

1:05:06

speedy trial right is something that the

1:05:08

defendant can use against the prosecution to

1:05:11

make things go quicker, which is something

1:05:13

that rational and

1:05:15

normal defendants do

1:05:17

in criminal cases all the time. You're not seeing –

1:05:19

you're not going to ever see that in these criminal

1:05:21

cases because that's not what Trump wants. But you

1:05:24

can't really – the government can't really hold

1:05:26

the speedy trial right against the defendant. Yeah.

1:05:29

And the speedy trial clock is told right now. I mean,

1:05:32

the only limited amount of days has passed on the

1:05:34

speedy trial clock. We aren't anywhere close to it. According

1:05:37

to that clock, the case is only like three days old,

1:05:39

something like that. But if we do get close

1:05:42

to it, then of course, they

1:05:44

can file notice with this judge about it, hey, we're

1:05:46

getting up on the speedy trial times. There

1:05:49

are automatically appealable issues to a

1:05:52

higher court if she does something

1:05:54

way out of bounds, like you said. Like, let's say

1:05:56

she wants to give

1:05:58

Donald Trump her mission to – to file

1:06:00

a bunch of classified documents publicly

1:06:02

or, you know, something

1:06:05

that violates SEPA. Because

1:06:07

if you violate SEPA rules, if

1:06:10

a court does something that violates the rules

1:06:13

that protect, you know, protecting classified

1:06:15

information, then that's automatically

1:06:18

expedited appeal to the next court

1:06:20

up. But again,

1:06:22

that doesn't necessarily pull her off the case,

1:06:24

although they can ask, they can ask, but

1:06:27

I don't think they will unless she

1:06:29

does something truly egregious. And

1:06:32

if she does something that's against

1:06:34

SEPA protocol, I imagine they'll appeal it

1:06:36

and get a ruling and just keep going.

1:06:39

Yeah, the appellate process is

1:06:41

really the purpose is to

1:06:43

rectify a mistake in judgment,

1:06:46

right? Reversible error. A

1:06:48

judgment, a reversible error in

1:06:51

legal judgment. I

1:06:53

don't like the way the judge decided the

1:06:55

facts, but more I don't like the way

1:06:58

the judge decided this question of law. And

1:07:01

so the issue would go up, it would

1:07:04

maybe get turned around. Just the

1:07:06

process of getting reversed on appeal is super

1:07:08

embarrassing to judges. And that alone is enough

1:07:10

to kind of like knock some common sense

1:07:12

into judges heads and get them to move

1:07:14

the thing forward. But it

1:07:16

doesn't ever really ever resolve

1:07:18

and, you know, resolve in

1:07:20

having a judge removed. All

1:07:23

right, next question. Ready for number two?

1:07:26

Yep. All right, this one comes

1:07:28

to us from Robin W. in Michigan. And

1:07:31

Robin says, Hi, Allison and Andy, I so

1:07:33

appreciate your pod every week. I wish it

1:07:35

was every day because you really harness all

1:07:37

the BS into a focused

1:07:39

bundle of what matters and why. Thank

1:07:42

you very much, Robin. My

1:07:44

question is about Jack Smith's

1:07:47

questions slash statements about presidential

1:07:49

immunity. Okay, so what she's talking about

1:07:51

here is in the

1:07:53

prosecutor's brief opposing

1:07:56

Donald Trump's request for immunity,

1:07:58

you Guys will remember

1:08:00

this. he cited like these hypothetical

1:08:02

examples all of kind of ring

1:08:04

the little bit of of tropism

1:08:06

right? so she says specifically one

1:08:09

of the things he used as

1:08:11

an example. Ah, it's ah

1:08:13

was that the President could sell

1:08:15

top Us secrets and it would

1:08:17

be okay because he's the president.

1:08:20

I wonder if you think this

1:08:22

means Jack has legit evidence that

1:08:24

Trump did this com and. Steaks

1:08:27

so is it probably be.

1:08:29

We would be charged but

1:08:32

I'm right. And. You know,

1:08:34

legit evidence usually leads to widget

1:08:36

charges. I think what he was

1:08:38

doing with that whole series of

1:08:40

hypotheticals was he was freezing them

1:08:43

and as and an artful way.

1:08:45

That almost made them seem like

1:08:47

things seem very similar to things

1:08:50

that Trump has been alleged of

1:08:52

doing or types of things that.

1:08:54

People. Who whoever might be

1:08:56

reading their filing could imagine

1:08:59

Trump would do. Yeah.

1:09:01

Or stuff trump's done that they

1:09:03

just don't have enough evidence to

1:09:05

charge. Cia. Yeah, But

1:09:08

yeah, no, I it was definitely very

1:09:10

pointed and November it, and he did

1:09:12

it twice, he did it in the

1:09:14

most in his up opposition to. To

1:09:18

immunity in that. District. Court

1:09:20

T. Jones second. In October and then

1:09:22

he did it again. To. The

1:09:24

Appeals Court. Same for scenarios,

1:09:26

right? So he's right. He's.

1:09:29

He's twist in that knife. I think it

1:09:31

was deliberate. But to to walk right

1:09:33

up the line of stuff that we

1:09:35

are all feel like Trump has done

1:09:37

here. The I mean it's and might

1:09:40

have done rule provocative. but that's what

1:09:42

makes them really effective hypotheticals Cause they're

1:09:44

You know, you make a hypothetical. You

1:09:46

construct a hypothetical around something that could

1:09:48

actually happen and that makes it believable.

1:09:51

Around and those are certainly felt like things

1:09:53

that could happen. right? So

1:09:55

Trump asking you know the military.

1:09:57

To go out and and harm. Protesters.

1:10:02

During. The Black Lives Matter Protests.

1:10:06

A You know it that. Idea.

1:10:08

Of sending the cops out or

1:10:11

the military out to. Attack

1:10:13

Your Political Opponents Was brought up

1:10:15

by Judge Pan. In. The.

1:10:17

In. The hearing right Know the hearing that we had

1:10:20

the argument, the oral arguments, For this and she was like

1:10:22

do. You say you're saying he could tell

1:10:24

Seal Team Six to go assassinate? His.

1:10:26

Political rival. And. Said

1:10:28

and of course. Course

1:10:31

John sour said yeah. Same

1:10:33

with Totally Bird A Qualified

1:10:35

yes. Oh yes no no you

1:10:37

didn't do that. Now with

1:10:39

Yeah and them and still

1:10:41

am. I'm gonna check one

1:10:43

more time. For

1:10:46

this ruling. Nope,

1:10:50

I wouldn't. I wish I

1:10:52

was friends with him. John

1:10:55

Sour just because. like can you imagine

1:10:57

how Like is good friends are never

1:11:00

gonna let him live that down the

1:11:02

be like at the bar like hey

1:11:04

Dumanis beer and he's like now and

1:11:06

they're like is, are qualified yes or

1:11:09

and nice and easy. Shut up. To

1:11:12

his and seal team six to. The guy says it

1:11:14

is a success like it's never going to and he's

1:11:16

never going to live it down. And you can play

1:11:18

hoops and I can come out. Who's your recent seal

1:11:21

team? Six to this. Oh

1:11:25

moments, Oh the ribbing. Yes.

1:11:27

Go with the ribbon. Anywhere,

1:11:30

Allow it. Those are questions for this

1:11:32

week. Two good ones. Thank you Just

1:11:34

and Robin! He. Has thank you

1:11:37

and if you have questions again there's a link

1:11:39

in the show. notes you can click on it,

1:11:41

send us your questions. Thank you again everybody for

1:11:43

listening on. It is Sunday. January

1:11:46

is twenty first. Of course we record this

1:11:48

on Friday January eighteenth. I am not. Yet Safety.

1:11:50

But as you listen to this. I am

1:11:52

Cst so. So my had a

1:11:55

great birthday. Huge crew regulations. I'm so

1:11:57

excited for you. I had a terrorists

1:11:59

the fiftieth birthday so I'm always excited

1:12:01

for other people to have good one

1:12:04

so I have no number that story

1:12:06

will have to tell it a patron

1:12:08

bonus at some point or yeah there

1:12:11

you go I'm so do have a

1:12:13

great time. Congratulations and welcome to your

1:12:15

fifties site! That's awesome! I love it!

1:12:17

Thank you thank you sir Yeah for

1:12:20

sure and apologies to everyone for my

1:12:22

total sick voice this week. I'm hoping

1:12:24

to be healthy again next week and

1:12:27

know. And not not

1:12:29

be hidden. Such a Barry White

1:12:31

Tenor here on the might button

1:12:33

in Amber early today suffered a

1:12:35

fairly his senses definitely now do

1:12:37

I am. But oh right. So

1:12:39

yeah. Great. Show Thank you

1:12:41

is always Allison for all the

1:12:43

missing work that you put into

1:12:45

this and have a great birthday

1:12:47

And yeah we'll see all next

1:12:49

week. I'm any Mccabe announcing killed

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