0:00

Life comes in waves. So give

0:02

your skin a well-deserved rest with

0:04

Osea's newest innovation, Collagen Dream Night

0:07

Cream. The first ever night cream

0:09

clinically proven to reduce the effects

0:12

of stress on skin. Harnessing

0:14

the power of plant-based bioretenol and

0:16

king of bitters, Collagen Dream Night

0:18

Cream visibly improves lines and wrinkles

0:21

as well as signs of fatigue.

0:23

You'll experience firmer skin in as

0:25

little as two weeks and wake

0:27

up with a rested, refreshed, and

0:29

radiant complexion. Osea has been crafting

0:31

seaweed-infused products that are safe for

0:33

your skin and the planet for

0:35

close to 30 years. Everything

0:38

they make is clean, vegan, cruelty-free,

0:40

and climate-neutral certified so you never

0:42

have to choose between your values

0:44

and your best skin. Take your beauty

0:47

sleep to the next level with clean

0:49

vegan skincare from Osea. Get 10% off

0:51

your first order sight-wide

0:53

with code DREAM at osea

0:56

Malibu dot com. That's O-S-E-A

0:58

malibu.com code DREAM. Hey

1:01

everyone, it's Ted from Consumer Cellular, the

1:03

guy in the orange sweater, and this

1:05

is your wake-up call. If you're paying

1:07

too much for wireless service, you don't

1:09

have to keep having that nightmare. Consumer

1:11

Cellular has the same fast, reliable coverage

1:13

as the leading carriers for up to

1:15

half the cost. So why keep spending

1:17

more than you have to? Seriously, wake

1:19

up and call 1-888-FREEDOM or visit consumercellular.com.

1:21

Savings based on cost of Consumer Cellular's single line 1, 5, and

1:24

10 gig data plans with unlimited talk and text compared to lowest

1:26

cost single line post paid unlimited talk text and data plans offered

1:28

by T-Mobile and Verizon January 2024. M-S-W.

1:31

Media. I

1:37

signed an order appointing Jack Smith.

1:39

And those who say Jack is

1:42

a fanatic. Mr. Smith is a

1:44

veteran career prosecutor. Wait, what law have

1:46

I built? The events leading up to

1:48

and on January 6th. Classified documents

1:50

and other presidential records. You understand

1:52

what prison is? Send me to jail. Hey,

2:03

everybody. Welcome to episode 64 of

2:06

Jax, a podcast about all things

2:08

special counsel. I feel like we

2:10

were just here because we were.

2:13

We did a bonus episode on

2:16

Tuesday of this week, but now it's

2:18

Sunday, February 18th, I'm

2:21

Allison Gill. And I'm Andy McCabe. Oh

2:23

my gosh, we have so much to

2:26

cover today. Holy cow, these Fridays are

2:28

killing me. The

2:30

application for a stay on the immunity issue

2:32

has been fully briefed to the Supreme Court

2:35

so they can render a decision at any time.

2:37

And we're going to go over those briefs in

2:40

detail. Yeah, and actually, that

2:42

bonus episode was last week. I'm just,

2:45

I have completely lost all track of time, Andy.

2:48

You know, as you said it, I was like, oh

2:50

my God, was that a couple days ago? It seems

2:52

like a week ago. But I just like, let's go

2:54

with it. And

2:58

just in this week, we

3:00

have gotten fully briefed on

3:03

that immunity thing. That's bananas.

3:06

We got the brief, we got the reply, and we got the

3:08

response. We're also going to give you

3:10

an update on Florida. Some other

3:12

breaking news we can't ignore, by the way.

3:15

This is just happening as we record on

3:18

Friday, Judge Angora and the New York Attorney

3:20

General Civil Fraud Trial has fined Trump and

3:22

his two adult sons in Weisselberg a total

3:24

of $364 million. Ouch.

3:28

He has barred Trump from the real estate industry

3:30

in New York for three years and the two

3:32

adult sons for two years each. He's

3:35

going to keep retired Judge Barbara Jones on

3:37

as a fiscal monitor, and she

3:39

gets to recommend names to appoint

3:41

an independent director of compliance that's

3:44

going to be installed at the Trump Organization.

3:47

So before we dive into the immunity briefings, what are your

3:49

top line thoughts on this ruling? Well,

3:51

my first thought is whoever that

3:53

new independent compliance guy is, I'm

3:55

guessing he wins the award for

3:57

least popular dude in the Trump

4:00

organization. If

4:04

there's an in-house popularity contest, kind

4:06

of like a homecoming king vote

4:08

or something, I feel like he's

4:11

least likely to have lots of friends vote

4:13

for him. But man, that's

4:15

a tough one. Starting day one of

4:17

the new job, knowing that you're the

4:20

person, the court inflicted on your

4:23

new company. That's a rough one.

4:26

That's a lot of money. I don't even know if we have to go through

4:33

this today, but let's do it. Good

4:35

week, bad week. Here we are again.

4:37

I was

4:40

waiting for you to ask. I

4:42

was sitting in my hotel room

4:45

last night, I'm like, good week, bad week,

4:47

it's gonna be really interesting tomorrow. Yeah, that's

4:49

a big hit on a Friday afternoon. I

4:51

think that's pretty much good enough to tank

4:53

your entire week. What do you think? Your

4:57

entire next five years, which could

5:00

be how long it takes to appeal this, if he

5:02

can even come up with the money needed to appeal

5:04

it. I guess we're about to see how

5:06

much liquid cash he actually does have on

5:09

hand because with this and

5:11

the e-gene ruling and the 9% New York

5:13

interest rate that has to be applied, that's

5:16

like $540 million. Given the circumstances,

5:18

I think he's gonna be

5:20

hard-pressed to get a loan. Yeah,

5:29

I think a lot of people don't understand. Sure,

5:32

the pendency of the appeal delays

5:34

the amount of time that you

5:36

have to forfeit the funds to,

5:38

in the e-gene carol case, obviously,

5:40

e-gene carol, in this case, would

5:42

be to the state. But

5:44

it doesn't mean that you just get to keep that money and

5:46

do whatever you want with it while the appeal is ongoing. He

5:48

has to either deposit the full amount

5:50

with the court or he has

5:52

to go out and, as you said, get a

5:55

loan or a bond and

5:57

he'd still have to put up, I think, 20% or something like

5:59

that. that. So it's

6:01

however you slice it, it's a lot of

6:04

money that's sitting on ice rather than being

6:06

used for your business or your

6:08

campaign. So it's tough. Yeah

6:12

and you can't pay this directly out of the pack.

6:14

That would be illegal. So

6:17

we'll see what ends up happening but he

6:19

still hasn't put up the

6:21

money into escrow for the

6:23

e-gene verdict, the 83.3 million

6:26

to appeal that because you know, you can't just

6:29

appeal like you said. You got to put money

6:31

in an escrow account to appeal. We'll

6:33

see what happens. All right, let's talk about

6:35

the Supreme Court briefings. As

6:38

predicted, Trump filed an application for

6:40

a stay. He has not filed

6:42

a petition for certiorari which is basically

6:45

an appeal to the Supreme Court, right,

6:47

on the merits. He's just

6:50

asking for a stay here because if

6:52

you go through the regular order,

6:54

regular judicial order, you ask for

6:57

a stay, you get a stay, then

6:59

you have like 120 days to file

7:01

your petition for cert and then they can sit

7:03

on that for a while and that's

7:05

exactly what Jack Smith doesn't want to

7:08

happen here. So this all got briefed

7:10

this week since our last episode. Trump

7:14

wants the Supreme Court to grant him a

7:16

stay and give him a long time

7:19

to file his petition for cert. So let's go

7:21

over his arguments for a stay because they're really

7:25

wholly insufficient. He's really kind

7:27

of cagey too in the way that

7:30

he says, you know, I might petition

7:32

for cert if I need to later

7:34

or I might request an en

7:36

banc rehearing of the DC Circuit's decision.

7:40

So he definitely is kind of,

7:42

okay, I have to take one

7:44

step here which that one step

7:46

is asking for the stay to

7:48

remain in place and I'm

7:50

absolutely not taking two steps, right. I'm

7:52

going to stretch this out as long

7:54

as I possibly can. Yeah,

7:57

he is and here's... He

8:00

opens with a quote from Yogi Berra, which

8:03

is just so weird to me. He

8:07

says, the application is deja vu

8:09

all over again. Yogi Berra Museum and

8:11

Learning Center, Yogi-isms with a link. Two

8:16

months ago, after the district court denied

8:18

President Trump's claim of presidential immunity, the

8:21

special counsel filed a petition for certiorari

8:23

before judgment, asking the Supreme

8:25

Court to undertake an extraordinary departure

8:27

from ordinary appellate procedures and decide

8:29

the vital and historic question of

8:31

presidential immunity on a

8:34

hyper-accelerated basis. This

8:36

court correctly chose to follow standard

8:38

judicial process and declined to do

8:41

so. Now, at the

8:43

special counsel's urging, a panel

8:45

of the D.C. circuit has, in

8:47

an extraordinarily fast manner, issued

8:49

a decision on President Trump's claim of immunity

8:51

and ordered the mandate returned to the district

8:54

court to proceed with Trump's criminal trial

8:56

in four days, business days, unless

8:59

this court intervenes, which it should. This

9:02

court should stay the D.C. circuit's

9:04

mandate to forestall once again an unprecedented

9:07

and unacceptable departure from

9:09

ordinary appellate procedures, which means

9:11

you should really go super

9:14

slow and not even hear

9:16

this until the next term, and allow

9:18

President Trump's claim of immunity to be

9:20

decided in the ordinary course of justice.

9:24

Yeah, so you see the two themes building right

9:26

off the top here. It's

9:28

number one, oh, look,

9:31

a couple weeks ago, Jack Smith

9:33

asked you to take this case

9:36

out of the normal process and rule on it

9:38

because it's so important. It's such a novel issue,

9:41

and only this court can do it. He's

9:43

setting up like, well, yeah, that's why you

9:45

should take it now for all the reasons

9:48

Jack Smith told you a couple weeks ago.

9:51

And of course, he's hammering the normal order. It

9:53

should be normal. It should be normal order, and

9:55

did I mention it should be normal and slow?

9:58

Yeah. So that's it. That's kind of

10:00

– you hear that 100 times

10:02

across the brief.

10:05

So as

10:07

we said, this is only an application for a stay.

10:10

And the standards for granting this stay

10:12

are as follows. Number one, there

10:16

must be reasonable probability that

10:18

four members of the court

10:20

would consider the underlying issue

10:22

sufficiently meritorious for the grant

10:24

of certiori or the notation

10:26

of probable jurisdiction. Two,

10:29

there must be significant possibility of reversal

10:31

of the lower court's decision. And

10:34

three, there must be a likelihood

10:36

that irreparable harm will result if

10:39

that decision is not stayed. So

10:41

that's the standard for granting this

10:43

stay here. Yeah. Yeah. And I

10:45

think we'll bring this up

10:48

multiple times, but the Supreme

10:50

Court can ignore all that if

10:52

they feel like it. Sure.

10:54

Yeah. So he gets into this trying to

10:56

hit all three of these points. As

10:59

to the first standard, Trump's argument is basically

11:01

as follows. He says, the

11:03

appeal addresses two issues. Whether the

11:05

president possesses absolute immunity from criminal

11:08

prosecution for his official acts and

11:11

whether the impeachment and acquittal

11:13

of a president forecloses a

11:15

subsequent criminal prosecution of the

11:17

president for the same end-or-closely-related

11:19

conduct. The court is

11:21

likely to grant a position for certiori

11:24

to review these questions. Certiori

11:26

is warranted when, quote, a United

11:28

States court of appeals has decided

11:31

an important question of federal law

11:33

that has not been but should

11:35

be settled by this court or

11:38

has decided an important federal question in

11:40

a way that conflicts with relevant decisions

11:43

of this court. Both

11:45

criteria are satisfied here. And

11:48

the narrator, no, they are not. But

11:51

he also says that with regard to the first

11:54

standard, that the D.C.

11:56

Circuit ruling is somehow in contrast to

11:58

the previous Supreme Court rulings. And

12:00

that's really ridiculous. He

12:03

says, the D.C. Circuit's decision also

12:05

warrants review because it decided important

12:07

federal questions in a way

12:09

that conflicts with relevant decisions of this court.

12:12

As discussed below, the D.C.

12:15

Circuit decision conflicts with Marbury v.

12:17

Madison, Mississippi v. Johnson, Nixon v.

12:19

Fitzgerald, and a host of other

12:22

decisions of this court. No,

12:24

no. The D.C.

12:27

Circuit Court's ruling conflicts

12:29

with my cherry-picked sentences

12:31

from those decisions. Yeah.

12:35

It's got to be annoying to be an

12:37

appellate judge and to be constantly faced with

12:39

these sort of briefings where like one side

12:41

is like, it's black, it's black, it's black.

12:43

And the other one says, it's clearly

12:45

white. It's obviously white. And that's why

12:47

they just decide how they do, I guess. Then

12:51

I think my favorite part is Trump tries

12:53

to argue there's a good chance he'll be

12:55

successful on the merits, meaning

12:57

there's a good chance the Supreme Court

13:00

will reverse the D.C. Circuit Court's ruling.

13:03

Or I should say the

13:06

district court's ruling and the D.C. Circuit

13:08

Court's affirmation of Judge Chukin's ruling if

13:11

I want to be technical about it.

13:13

I just don't see how they even

13:15

get there. He argues that the D.C.

13:17

Circuit got Marbury wrong. They did

13:19

not. And that

13:21

they got the Executive Vesting Clause wrong, which

13:23

they didn't. In fact, it was the basis

13:25

for Judge Lydig's amicus brief. And

13:27

we talked to him about that on this show.

13:30

Nenny makes his weird

13:32

First Amendment argument for irreparable harm.

13:35

That's the third standard. Because absent a

13:37

stay, President Trump will immediately be required

13:40

to bear the burdens of prosecution and

13:42

trial. Yeah, just like any

13:44

other person who's being prosecuted.

13:47

If standing trial were an irreparable harm,

13:49

no one would ever stand trial. Yeah,

13:53

the decision of the grand jury is

13:55

what throws you into

13:57

the irreparable burden of a criminal

13:59

trial. I mean that happens

14:01

to defendants every day. And as

14:04

the DC Circuit Court said, he is citizen

14:07

Trump and he has the same defenses

14:09

as every other citizen. And

14:12

he goes on to say, the DC Circuit's extraordinary decision

14:14

to return the mandate to the

14:16

district court to proceed to trial

14:19

imposes another grave species of irreparable

14:21

injury, a species. The

14:23

threat to the First Amendment rights of

14:25

President Trump, his supporters and volunteers, and

14:28

all American voters who are entitled to

14:30

hear from the leading candidate for

14:32

president at the height of the

14:34

presidential campaign. The special counsel seeks to

14:36

urgently force President Trump into a months-long criminal

14:38

trial at the height of campaign season, effectively

14:41

sidelining him and preventing him

14:43

from campaigning against the current president

14:45

to whom the special counsel ultimately

14:47

reports, President Biden. This would impose

14:49

grave First Amendment injuries on President

14:51

Trump and all American voters, whether

14:54

they support him or not, and

14:56

threatens to tarnish the federal courts

14:58

with the appearance of partisanship.

15:01

Again, if a trial impedes

15:03

on voters' First Amendment rights, then

15:05

no one running for office would ever have

15:08

to face criminal charges, just a wholly ridiculous

15:10

argument. Plus, no one else's

15:12

job is taken into account in

15:15

criminal proceedings. I think when I was

15:17

at the hearing with

15:19

Judge Chutkin to set the trial date

15:21

for March 4th, she was like, look,

15:24

if there's a female professional athlete that's

15:26

in front of me and she has to go to the

15:29

Olympics, sorry, we have

15:31

a criminal trial here. You know, like –

15:33

Yeah, yeah. It doesn't make

15:36

any sense. And it's –

15:38

the criminal process takes precedence over a lot

15:40

of things. Like, it takes precedence over Congress,

15:43

right? It takes

15:45

the Clinton – what is it,

15:48

Clinton v. Jones. You

15:50

can stall – you can stonewall

15:52

a request from Congress, but you

15:54

cannot stonewall a request from a

15:57

grand jury, a grand jury subpoena.

15:59

So, yeah. Yeah, and then Trump asks

16:01

for time to file on Bonk with

16:03

the full DC Circuit Court, but

16:06

you would have to have one of those

16:09

three judges mathematically voting to rehear, so it

16:12

mathematically can't happen. He

16:16

says as additional relief in issuing

16:18

its stay, President Trump requested that

16:20

this court direct that the DC

16:22

Circuit's mandate is stay depending the

16:24

resolution, not just of proceedings

16:26

in this court, but also of President

16:28

Trump's planned petition for on Bonk consideration

16:31

to the DC Circuit, which he intends to file

16:33

in DC in the ordinary

16:35

course, which again, there's that term

16:37

before seeking if necessary this court's review

16:39

if given the opportunity to do so. And

16:43

Professor Steve Lattuck says of this

16:45

prospect, quote, they'll either stay

16:47

at pending cert, which would

16:49

include on Bonk review, or they won't

16:51

stay at all. Splitting the

16:53

difference makes no sense. Zero percent chance

16:55

this happens. And so,

16:57

I mean, that whole weird

17:00

asking for on Bonk, the

17:02

DC Circuit ruling pretty much precluded him from

17:04

doing that, because if this is treated

17:07

as a petition for cert, you will get an

17:09

on Bonk, a chance to ask for on Bonk

17:11

review, but you do need five votes for

17:14

a stay. That's right. So

17:17

only four for a writ of cert,

17:19

but five for the stay. Yeah.

17:23

So Trump concludes with this, this

17:25

court should stay the DC Circuit's

17:28

mandate pending resolution of President Trump's

17:30

petition for certiori in this court

17:32

as additional relief. President

17:34

Trump requests that this court stay

17:36

the DC Circuit's mandate pending the

17:39

resolution of a petition for on

17:41

Bonk consideration in that court

17:43

before the filing, if necessary, of

17:45

his petition for cert in this

17:47

court. So basically he's saying,

17:51

stop everything and keep everything stopped

17:53

until I can one step at

17:55

a time, you know,

17:58

exercising these full. extent of every

18:01

deadline and every timeline

18:04

piecemeal this thing through for the next,

18:07

you know, however many months it takes. Yeah,

18:10

and he's basically saying it's because I'm running

18:12

for president. Right. That you

18:14

should do this, not for any other

18:16

reason. Yeah, that's right. So if

18:20

the Supreme Court denies the application for stay,

18:22

which requires five votes, as we've said,

18:24

and those three standards have to

18:26

be met, the DC proceedings

18:28

would be back underway immediately

18:31

with a trial likely starting in May.

18:34

Or SCOTUS could treat this

18:36

application for stay as a petition for a

18:38

writ of certiori, which is something they've done

18:40

a lot in the last couple of years,

18:43

and grant the stay and give

18:45

Trump a limited amount of time to file for

18:47

cert. Those

18:50

are the most two likely outcomes, and I

18:52

think that second one is closest to kind

18:54

of Jack Smith's like alternate reasoning,

18:57

which we'll get into in a couple minutes.

19:00

Yeah, I'm hoping they deny the stay. I don't

19:02

see how they could conclude that he has a

19:04

chance of winning on the merits or having the

19:06

lower courts ruling

19:09

reversed, especially when

19:11

balanced with the public's interest in a,

19:13

you know, in a swift

19:15

resolution of justice and

19:17

the law enforcement, the public

19:19

interest there. And we'll talk a

19:21

little bit more about some other cases and

19:23

how Jack Smith presents that. He

19:26

signaled he'll first request en banc, which,

19:29

like I said, makes sense because

19:31

why would you skip that step if you're trying to get

19:34

a delay here? But he's not requested that

19:36

yet, right? That's correct. Just

19:38

a stay application. He's not going to ask

19:40

for it until the absolute last second that

19:43

it's due. And I'm not

19:45

sure what that time deadline is on requesting the

19:47

en banc rehearing, but it's clearly

19:49

not expired yet. Well,

19:52

he, you know, and he en banc

19:54

request would automatically

19:59

put the mandate into action. That's kind of how the

20:01

DC Circuit Court made it happen. So he kind

20:03

of – it's kind of against his own best.

20:05

That's why he's asking the Supreme Court, can I

20:07

please do en banc and

20:09

still have this stayed and not put the mandate

20:11

into effect? I don't think they're going to

20:14

let him do that. If they specifically said

20:16

in their ruling

20:18

on the mandate that it doesn't –

20:21

if he didn't file this with

20:23

the Supreme Court, the mandate

20:25

would be that the trial court

20:27

resume proceedings. And if he requested

20:29

an en banc rehearing, that that

20:32

request would not affect the

20:35

trial court going forward with the case. Yeah,

20:39

so the Supreme Court is directly

20:41

going to have to curtail his

20:43

appeal timeline if it has any chance

20:46

of moving forward, right? Now,

20:51

if they just deny the

20:53

stay, we're back underway, trial

20:56

in May or June, right? If they don't

20:58

– and we'll talk

21:00

about the proposed timeline. If they grant

21:03

CERT, treat this as a petition

21:05

for CERT, grant CERT, and set an

21:07

expedited briefing scheduled, and Jack Smith

21:09

proposes one, then we're

21:11

probably looking at end-of-summer trial. So

21:15

we'll see what ends up happening because

21:18

it's going to be about three

21:20

months that they'll

21:22

need from the time this is

21:24

resolved and the time that

21:27

the proceedings in DC start back

21:29

up again. It's going to take

21:31

about three months from that point to get to trial.

21:34

Yeah, as you and I have discussed

21:36

this in texts

21:38

and conversations, if they

21:40

leave the stay in place, I

21:43

think everything starts to fall

21:45

apart in terms of the timeline. If

21:47

they leave the stay in place and

21:49

they give him the normal amount

21:52

of time to actually file an

21:54

official request for CERT and

21:57

then handle that in the normal course of business, there's no chance the

21:59

trial has to be done. happens before

22:01

the election. Yeah, no, agreed. But Steve

22:03

Lattuck says that that's probably pretty highly

22:05

unlikely. Yeah, I think so too. I

22:08

think, I think the no

22:11

stay, go ahead and no

22:14

stay. We're going to

22:16

treat this as a, as a request for

22:18

cert and deny it. Is your dream scenario,

22:20

right? Yeah. Or just

22:22

no stay and, um,

22:26

yeah. And we're not going to do

22:28

this as a request for cert or deny it. And

22:31

we'll talk about the Thompson case. That's my

22:33

dream. Um, we'll talk about it in

22:35

a little bit, but yeah, that's the, that would

22:37

be the fastest way to get this done

22:39

was for the December leapfrog to be rejected,

22:42

um, with an expedited consideration, which

22:44

they, which they had. Uh,

22:47

and then for the appeals

22:49

court to rule the way that they did

22:52

unanimously, brilliantly. And

22:54

then to deny application

22:57

first day, which, yeah, which

22:59

means, Hey, cert or not, you can go

23:01

forward and appeal this junk if you want

23:03

to, but the DC trial proceeds. Yeah.

23:06

The most important element in that whole

23:08

math problem is the stay getting pulled

23:10

and the trial court going forward. Yeah.

23:13

It would be like a home run

23:15

if they did that and said, and by the way,

23:17

we're treating your filing as a request for cert and

23:19

we're denying cert. Then the whole

23:21

thing is done. Like this whole piece is

23:24

done. Case goes forward. I'm

23:26

not sure that we'll get that. I don't

23:28

know that we'll get like two wins out

23:30

of this, this, uh, round of filings. But,

23:32

um, yeah, Steve, Steve latter case of the

23:34

mind that they would not. Grant

23:38

cert to deny it. Yeah.

23:40

They would just not approve the stay. They'll

23:43

just now say, we don't see it move

23:45

on. Nothing to see here. Yeah. Yeah.

23:47

I hope he's right. I hope

23:49

so too. All right, everybody. We got to take, we got

23:51

to take a quick break. Uh, everybody stick around. We'll be

23:53

right back. Hi,

23:59

I'm Liz. I'm Moji Alawade-Al. And

24:02

we're the hosts of Feminist Buzzkills, the

24:05

only weekly podcast dedicated to keeping you

24:07

informed while making you laugh as we

24:09

all navigate this post-Rovy Wade hellscape. The

24:12

Supreme Court has declared that all of

24:14

our uteri are just Airbnbs for the

24:16

seat of the patriarchy. So every week

24:18

we break down all the garbage news

24:20

from that sketchy intersection of abortion and

24:23

misogyny with the abortion providers and activists

24:25

we need to be hearing from right

24:27

now. Perhaps we talk to your

24:29

favorite comedians. Because face it, if your revolution doesn't

24:32

have laughter, you're doing it wrong.

24:34

Feminist Buzzkills drops Fridays wherever

24:36

you get your podcasts. Listen,

24:38

subscribe, join us on Patreon, because

24:41

when BS is poppin', we pop off.

24:52

Okay welcome back. Now let's turn to

24:54

Jack Smith's response to Trump's application for

24:56

his stay. Ah this is so good.

24:59

And from folks that I've spoken to

25:01

that have worked with Dreeben, this filing

25:03

has Dreeben written all over it. And

25:06

it covers all of the bases we talked

25:09

about, Andy. There was a question

25:11

about how Jack Smith's team would argue against

25:13

the Supreme Court taking you know

25:15

how he said in December, the Supreme

25:17

Court must take this case, you

25:20

know. When he was trying to

25:22

leapfrog over the circuit court.

25:26

And I was talking to a reporter who

25:28

we were just having a discussion and that

25:30

person asked me about that.

25:32

Well you know Jack Smith already said

25:34

that the Supreme Court has to take this case. How can he

25:36

argue that they don't? And

25:39

I said that I was skeptical DOJ wouldn't

25:41

be able to make the arguments for SCOTUS to not

25:43

take the case. Because they're

25:45

arguing against a stay and

25:48

the standards for a stay, right? And

25:52

the DC circuit had not come out with

25:55

the airtight unanimous bipartisan so to

25:57

speak ruling. And that kind of changes

25:59

the entire ballgame. Plus, I

26:01

figured Trump was only going to file for a

26:03

stay, not a petition for cert. So like I

26:05

said, DOJ can simply argue against granting the stay

26:08

because Trump is most definitely not likely to win

26:10

on the merits. And as

26:12

I wrote on post, the

26:14

public interest in swift justice countervails

26:16

the need to grant a stay. But

26:19

when I spoke to experts like Steve Lattuck, he told

26:21

me that not meeting those three

26:23

standards for a stay doesn't necessarily prevent

26:25

SCOTUS from granting the stay. And

26:28

all of that made it into this filing

26:30

from special counsel. I honestly haven't read a

26:32

filing this succinct in a while. They get

26:35

straight to the point. Yeah,

26:37

I think that's right. Like the

26:39

Chiron or the headline when

26:42

the special counsel team filed this

26:44

was like, oh, Jack Smith does a 180. Jack

26:47

Smith does a 180. Not exactly

26:49

a 180 because of the

26:51

issue is different. And

26:54

as you said, he's got more reason

26:56

now to say, well, now you don't

26:58

need to weigh in because we've had

27:00

a quick and effective

27:02

and in our view, legally

27:05

correct ruling from the

27:07

DC circuit. So it's logical

27:09

and makes sense that they're going to say

27:11

at this point, no, okay, we

27:13

didn't want to go that route, but you made

27:16

us go that route. Having gone that way, we've

27:18

taken care of this issue and your

27:21

attention is not needed here. Anyway,

27:23

let's take a look at the introduction of

27:26

Jack's filing. So they start by

27:28

saying, the special counsel on behalf

27:30

of the United States respectfully submits this

27:32

opposition to the application for a stay

27:35

of the mandate of the court of

27:37

appeals pending the filing

27:39

and disposition of applicants forthcoming

27:41

petition for a writ of

27:43

certiori. The stay should

27:45

be denied because of applicants failure

27:48

to meet this court's settled standards.

27:51

The charged crimes strike at the

27:53

heart of our democracy. A president's

27:55

alleged criminal scheme to overturn an

27:58

election and thwart the peace. transfer

28:00

of power to his successor should

28:03

be the last place to recognize

28:05

a novel form of absolute immunity

28:07

from federal criminal law. Applicants

28:10

seek to stay to prevent the proceedings in

28:12

the district court from moving towards trial, which

28:15

the district court had scheduled to begin on March

28:19

4, 2024, before applicants' interlocutory

28:21

appeal necessitated postponement of that

28:23

date. Applicants cannot show,

28:25

as he must to merit a stay, a

28:28

fair prospect of success in this court. Nor

28:32

can applicants show that the balance of

28:34

equities or the public interest favors continued

28:36

delay of the criminal proceeding. To

28:42

the contrary, the equities and the

28:44

public interest strongly disfavor a stay. Applicants'

28:46

interlocutory appeal placed the district court

28:48

proceedings on hold, thus delaying the

28:51

trial and the verdict in this

28:53

case. He has no entitlement

28:55

to a further stay while seeking discretionary

28:57

review from this court. Delay

28:59

in the resolution of these charges

29:02

threatens to frustrate the public interest

29:04

in a speedy and fair verdict,

29:06

a compelling interest in every criminal

29:08

case and one that has

29:11

unique national importance here as it

29:13

involves federal criminal charges against a former

29:15

president for alleged criminal efforts to

29:18

overturn the results of a presidential

29:20

election, including through the use of

29:22

official power. Yeah,

29:25

and I mean that's it right

29:27

there, you know. He's saying there

29:31

shouldn't be a stay, but if you are, don't

29:35

even listen to it because in

29:37

this particular case, which is what the DC Circuit

29:39

Court ruled was in this particular case.

29:42

And we'll talk a little bit more about that,

29:44

but he walks right up to the word election,

29:46

right? But he doesn't invoke it. Right. Nor

29:49

has he mentioned it in any filing to date.

29:51

He just, he says that

29:53

the public interest and law enforcement

29:56

interest countervailed your desire

29:58

to make this go slow. I'm sorry. It's

30:00

better than done. That's right. Whatever occupation

30:02

or endeavor you're engaged in, it's

30:04

a bit of a third rail,

30:06

right? It introduces politics into the

30:09

case and into the rationale in a way that

30:11

the special counsel would prefer to not even go

30:14

near. I totally get that, but it's clear what

30:16

he's referring to. I also think it's kind

30:18

of a hilarious comparison to the intro

30:21

to Trump's papers, which starts

30:23

oddly with a Yogi Berra quote. I don't even

30:25

know what to say about that.

30:28

Yogi Berra not precedent, no presidential value

30:30

for Yogi Berra in the Supreme Court.

30:33

I was thinking of what other quotes he could have opened

30:35

it with, like maybe Billy Ray Valentine

30:38

Capricorn from Trading Places.

30:43

I mean, it's just not the moment

30:45

where you go for the laugh. You

30:48

know what I mean? This is a Supreme Court brief,

30:50

for gosh sake. That, and it's not even funny. It's

30:53

just not a good joke to open

30:55

with. Your opener has to be strong.

30:57

Yes, yes, as you know, and we

30:59

have seen. And

31:01

then he goes in his intro

31:03

to these broad concepts of like,

31:05

we need normal order, stop disrupting

31:07

the normal slow flow of things.

31:10

And in Jack Smith's final excuse, he gives

31:13

the exact opposite. He's like, I want them

31:15

to focus on exactly what this defendant,

31:17

this criminal defendant has been alleged to

31:19

have done and the significance of that.

31:22

All of that is persuasive on the

31:25

issue of how quickly should this

31:27

be resolved. Yeah, yeah.

31:30

And he addresses what he said in December.

31:33

Well, the DOJ, I should say addresses what they said

31:35

in December when they tried to leapfrog. They

31:38

say recognizing that the applicant's claim

31:41

of immunity implicates fundamental issues about

31:43

the rule of the president, the government

31:45

filed a petition for writ of certiorari

31:47

before judgment. That's before the

31:49

judgment of the circuit court. To

31:53

provide this court with the opportunity

31:55

to resolve Trump's immunity claim at

31:57

the earliest possible juncture, the

31:59

court. denied review. Then

32:02

he says, to the extent that

32:04

that denial reflected an inclination

32:07

not to review the applicant's

32:09

claim of immunity from federal

32:11

criminal prosecution, the court should

32:14

likewise deny this application and

32:16

any forthcoming petition, especially now

32:18

that the Court of Appeals

32:20

has unanimously affirmed the denial

32:22

of immunity in a thorough

32:24

opinion that correctly rejects the

32:26

applicant's arguments. So what

32:29

a beautiful succinct way to

32:32

say something that would probably

32:34

take me 10 pages to

32:36

say that, yeah, we told you

32:38

you had to do this, but that doesn't really

32:40

apply anymore. And you said no. And the reason

32:42

you said no is probably because you didn't want

32:44

to take this case. So you should think

32:47

about that. That's called turning

32:49

it around back on him. The

32:51

official term for that. Yeah. And

32:53

then they talk about how about

32:55

what what the Supreme Court should

32:57

do if they do actually want

32:59

to hear the case. He says

33:01

if however this court believes the applicant's claim

33:04

merits review, the government respectfully

33:06

requests that it treat the application

33:08

for a stay as

33:10

a petition for a writ of certiorari, grant

33:13

the petition and

33:15

set the case for expedited briefing and

33:17

argument. An expedited schedule would permit the

33:20

court to issue its opinion and judgment

33:22

resolving the threshold immunity issue as promptly

33:24

as possible this term, so that

33:27

if the court rejects the applicant's immunity

33:29

claim, a timely and fair trial can

33:31

begin with minimal additional delay. The

33:33

government proposes a schedule that would permit

33:35

argument in March 2024,

33:38

consistent with the court's expedition of other

33:40

cases meriting such treatment. And

33:43

there's your echo to Trump

33:45

v. Anderson, right, the 14th Amendment case,

33:47

which they handled very quickly. The briefing

33:50

schedule was super fast. They

33:53

got the oral arguments done two

33:55

weeks ago now. And so

33:57

basically he's saying like, yeah, do this one.

34:00

due to this one, what you did to that one. Mm-hmm.

34:03

Yeah, totally. Yeah. Totally. So

34:06

then the government suggests a timeline, and they

34:08

base it on a recent case, this one

34:10

we've just mentioned, the Colorado 14th Amendment case,

34:13

Trump v. Anderson. They

34:15

say, the government suggests that if the

34:17

court grants review, it order that applicants

34:19

brief on the merits and

34:22

any amicus curae briefs be filed on

34:24

or before 10 days after the grant

34:26

of cert, that the government's brief on

34:29

the merits and any amicus briefs and

34:31

support be filed seven days

34:33

thereafter, and that the reply brief,

34:35

if any, be filed five days

34:37

thereafter. The court's recent

34:40

expedition in Trump v.

34:42

Anderson reflects that this timeline is fair

34:44

and reasonable. So not

34:46

only they're saying, hey, you just did this in

34:48

this other case, the fact that you did it

34:50

in the other case means it's reasonable and fair

34:52

and okay to do, so do it here. Yep,

34:55

absolutely. Yeah. So DOJ

34:57

effectively argues against immunity for about

35:00

30 pages in case SCOTUS treats

35:02

the application for stay as a

35:04

petition for cert and grants it.

35:07

And something in the merits argument that jumped out

35:09

at me was footnote seven, which

35:11

reads, a sufficient basis for resolving

35:13

this case would be that whatever

35:15

the rule in other contexts not

35:17

presented here, no immunity

35:19

attaches to a president's commission of

35:22

federal crimes to subvert the electoral

35:24

process. The court

35:26

of appeals analysis was specific

35:28

to the allegations that applicant

35:30

conspired to overturn federal election

35:32

results and unlawfully overstay his

35:34

presidential term. And a stay

35:37

can be denied on that basis alone, leaving

35:39

for another day whether any immunity

35:42

from criminal prosecution should be recognized

35:44

in any circumstances. Yeah,

35:48

that's super important, right?

35:50

Because, I mean, the

35:52

DC Circuit ruling was, as we said, narrow

35:55

on this point. This is what we were

35:57

talking about at the top of the show. And

35:59

by the way, They're quoting Judge

36:02

Lidde-Examica's brief in

36:04

this footnote. Yeah. There

36:06

is a reset at the top of

36:08

this thing. Their effort is to like

36:10

stay focused on the issue, and that

36:12

helps the court because

36:14

the Supreme Court does not like

36:17

to weigh in on cases where

36:19

there's like a whole bunch of

36:21

if-then, but-for possible issues hanging in

36:23

the breeze. They want

36:25

to laser focus on as

36:28

few things as they can and just

36:30

address those things directly. They have to

36:33

be issues that are completely

36:35

supported in that case by the facts of

36:37

the case. And

36:40

so keeping the eye

36:43

on the ball of you've got

36:45

to take all the allegations in

36:47

the indictment as true for

36:49

the purpose of an interlocutory appeal.

36:52

They're really trying to keep this thing very focused.

36:55

Yeah, exactly. And there's

36:58

even the quote from the

37:00

Circuit Court ruling is

37:02

that they say, we note at

37:04

the outset that our analysis is specific

37:06

to this case before us in which

37:08

a former president has been indicted on

37:10

federal criminal charges arising from his alleged

37:12

conspiracy to overturn federal election results and

37:15

unlawfully overstay his presidential term.

37:18

There's that executive vesting clause.

37:22

And it was Eric Columbus that pointed

37:24

this out on Twitter, right? Yeah.

37:28

Eric Columbus pointed out that Trump ignored

37:30

that in his brief to the Supreme

37:32

Court and instead argued from the position

37:35

that the D.C. Circuit ruled that presidential

37:37

immunity doesn't exist at all, and

37:40

that's simply not true. The Circuit

37:42

Court ruled that immunity doesn't exist

37:44

for the crimes Trump allegedly committed,

37:46

which is exactly the point

37:48

that Judge Luttig was making. So

37:51

this kind of a narrow ruling happened when

37:53

Trump wanted to claim executive privilege over documents

37:55

NARA was going to hand over to the

37:58

January 6th Committee. Columbus wrote that he was going to be a Trump

38:01

argued that executive privilege should block

38:03

transmission of the documents, even though

38:06

Biden waved executive privilege. The

38:08

main question was whether Trump's

38:10

invocation of executive privilege should

38:12

prevail even though he wasn't

38:14

president anymore. Now, Trump,

38:16

of course, lost at the district court

38:18

with none other than Judge Chutkin presiding

38:21

and the court of appeals. And he needed

38:23

the Supreme Court to pause the case and take it up.

38:26

So this is the exact same

38:28

situation we're in right now. Even to

38:31

the extent of including Judge Chutkin, which is kind

38:33

of amazing. I know. Yeah,

38:35

so Trump applied for a stay pending petition

38:37

for cert, just like he did here. And

38:40

in that one, the Supreme Court said no to Trump,

38:43

but not because he was no

38:45

longer president. Rather, the court wrote

38:47

that his executive privilege claim would

38:49

fail even if he was still

38:51

president because the House's need for

38:53

the documents was compelling. Much

38:55

like the countervailing public's

38:58

interest in this case. Yes,

39:00

yes. The compelling interest that

39:03

the court has many times

39:05

recognized in criminal proceedings, even

39:08

in the presidential context, right? Yeah.

39:10

So this is not – that would not

39:13

be a new idea for them to hang

39:15

their reasoning on. No, it wouldn't. And

39:17

if you read that denial

39:19

of the stay, you

39:21

could almost just plug in different

39:24

words and make it – Just

39:26

do it all – just find

39:28

and replace. And make it happen here.

39:30

Yeah. Actually,

39:33

let me find – I want to – I

39:35

have to read this to you because it's so

39:38

perfect for this particular

39:40

scenario. And

39:42

I'm really glad that Eric

39:45

Columbus brought this up

39:48

because it's just

39:50

so right on track. Do you

39:53

know what I mean? It's like exactly

39:55

what we're seeing here, all right? So

39:57

I've got the scotch. denial

40:00

in that

40:02

case where he was

40:04

trying to block National Archives. And

40:08

it says, on application for stay of

40:10

mandate and injunction pending review, which is

40:12

exactly what's happening here. The

40:15

application for stay of mandate and the

40:17

injunction pending review presented to the Chief

40:19

Justice and by him referred to

40:21

the court is denied. The

40:24

questions whether and in what circumstances a

40:26

former president may obtain a court order

40:28

preventing disclosure of privileged records from his

40:30

tenure in office in the

40:33

face of a determination by the

40:35

incumbent president to waive the privilege

40:37

are unprecedented and raise serious substantial

40:39

concerns. The Court of Appeals,

40:41

however, has no occasion to decide these

40:43

questions because it analyzed and rejected President

40:45

Trump's privileged claims under any of the

40:47

tests he advocated. Trump

40:50

v. Thompson is cited, which

40:54

is this case, without regard to his status

40:56

as former president, because the Court

40:59

of Appeals concluded that President Trump's claims would

41:01

have failed even if he were still the president,

41:04

his status as former president necessarily made no

41:06

difference in the court's decision. And

41:11

so they kind of granted

41:14

cert and denied it and

41:17

denied the stay, but put the reasons

41:19

like right in the denial. And

41:21

I think we could see that here. You got to

41:23

wonder if the DC Circuit

41:26

wrote their opinion with that in

41:28

mind. I think so. Right.

41:31

Because they knocked it out on

41:33

every possible grounds. They specifically, even

41:36

though they analyzed the specific facts

41:38

here, they said we're not getting

41:40

into whether or not

41:42

his actions were, you know, within

41:44

the outer perimeter of presidential responsibility

41:46

or outside it official or not.

41:49

They just said on these facts, on

41:52

this indictment, no

41:54

immunity for you. Yeah. And

41:56

then you know what surprised me was Trump responded.

41:59

I thought he— Because there's rules about when

42:01

a response is due to the Supreme Court, like

42:03

the briefing, the

42:06

response, and then a reply, right? Right. The

42:09

third thing. They're very muddy and murky, and

42:11

he could have sat and waited or asked

42:13

permission or just kind of hung out.

42:16

The Supreme Court doesn't need that reply, but

42:18

he wanted to make one, and he made one pretty fast. Trump

42:21

did. And it's the same kind of

42:23

stuff. He first brings up

42:25

that special counsel argued in December, it's

42:27

imperative that this court should grant cert,

42:30

so he's still on that. He

42:32

then goes after Jack Smith for not saying why

42:34

the trial needs to go quickly. He

42:36

says, in a few short lines, the brevity of

42:38

which speaks volumes, the special

42:40

counsel argues that the nation has a compelling

42:43

interest in the prompt resolution of this case,

42:45

but he relies on generic statements about the

42:47

public's interest in seeing the case resolved in

42:49

a timely manner and the need

42:51

to avoid undue delay in all criminal cases.

42:54

The special counsel offers no explanation why

42:56

that supposedly compelling interest requires the immediate

42:58

return of the mandate to the district

43:01

court to set this matter for trial,

43:03

likely in three months or less from

43:05

receiving the mandate. The omission is glaring.

43:09

And here's how he argues against

43:12

the case

43:14

we just talked about, the National Archives privilege,

43:16

executive privilege case. He

43:19

says special counsel cites the recent expedited

43:21

consideration of Trump v. Anderson, but that

43:23

case involved an accelerated decision before

43:26

an upcoming primary election. A

43:30

quintessential case for expedited treatment. I

43:35

mean, when I need it, I should

43:37

get it, but that doesn't mean

43:39

we have it all the time. I guess that's kind of

43:41

the, there's a rule that there's the rules, there's

43:43

no rule. His

43:45

argument is, well, you had to decide that quick

43:47

because an election was coming up. What

43:51

the hell do you think this is? Yeah. Oh

43:53

my God, it's so funny. I

43:57

seriously can't, but then he said, and the special

43:59

counsel, I'm sorry, I'm sorry. Special counsel's rationale cannot

44:01

avoid the appearance of partisanship. The government

44:03

took nearly three years to file baseless

44:06

charges against President Trump and

44:08

now it clamors to bring him to trial in three

44:10

months or less. No, not three months or less. Three

44:12

months or less from the issuance of the mandate, sir.

44:15

The indictment happened last August. So

44:20

it's not three months or less. And

44:22

three years, it was two years and six

44:24

months. It's quite a rounding

44:28

that you're doing

44:30

there, up to three years from two years and six

44:32

months. That's fancy. Anyway,

44:36

we're fully briefed and the Supreme Court can rule at

44:38

any time. I think I'm going to write up a

44:40

mock decision to mirror the one

44:42

that happened in Trump v. Anderson because I like it

44:44

so much. Switch the nouns

44:46

out and... Yeah,

44:49

instead of National Archives, you know. It's

44:51

like the Mad Libs version of Supreme

44:54

Court rejection. SCOTUS

44:57

Mad Libs, I love it. Anyway,

45:00

we still have to talk a little bit about

45:02

Florida because there's a lot going on down there

45:04

too, including Judge Cannon

45:07

denying Trump something, which I thought was very

45:09

interesting. We'll talk about it. I know. We

45:12

got to take a quick break first. Everybody stick around. All

45:24

right. Welcome back, everybody. Let's talk about what's going

45:26

on in Florida. First, since

45:28

the last episode, Judge

45:30

Cannon ruled to unseal

45:33

those supplemental exhibits on Trump's

45:35

long, weird motion

45:38

to compel in the documents case.

45:40

She ruled to unseal those. Those

45:42

include a list of witnesses and some of

45:45

their testimony. And

45:47

that's all covered, by the way, by a protective order

45:49

on discovery. Like she

45:51

has ruled those to be unsealed.

45:54

And then Jack Smith filed... We

45:57

covered that last week. But since then, Jack Smith...

46:00

So, the gentleman filed for permission to include

46:02

an exhibit under seal and ex parte that

46:04

he wanted to attach to a motion

46:08

for her to reconsider her ruling

46:10

to unseal. Right. So, you wanted

46:12

to keep the exhibits that Trump submitted

46:15

with his motion sealed,

46:17

which is consistent

46:19

with the protective order. She

46:22

opened it up, and then he's like, I file

46:24

a separate motion for you to reconsider this terrible

46:26

decision that you made. And

46:29

I am requesting that exhibits to this motion

46:31

be under seal. And

46:33

ex parte. Right. And

46:36

the reason was is because that

46:38

exhibit that he wants to

46:41

file under seal and ex parte is

46:43

evidence of social media threats to

46:45

a potential government witness that is

46:47

currently under federal criminal investigation at

46:49

a US attorney's office. Okay. And

46:52

he wants that to be kept under seal and

46:54

ex parte to protect that ongoing investigation. Sure. Sure.

46:58

And Judge Cannon granted his request

47:00

to file that evidence under seal

47:02

and ex parte. But

47:04

once he submitted it and she read it, she

47:07

changed her mind on the ex parte part. She

47:10

expanded it to

47:12

be, well, I guess she

47:16

changed her ruling that it shouldn't be

47:18

sealed and ex parte. It should just

47:20

be sealed. Right. So, shared

47:22

with- Shared with the legal team. Yep.

47:26

Mm-hmm. And he didn't file to oppose,

47:28

which I thought was weird. And

47:30

come February 10th, which was the

47:33

deadline, he handed that evidence over to Trump.

47:36

Now the larger issue of Cannon

47:38

wanting to unseal the witness list is

47:41

still not fully briefed. She's

47:43

given Trump until 2-23 to, well,

47:45

the unsealing thing is fully briefed, but

47:47

his motion to reconsider is not. Right.

47:50

And she's given Trump until February 23rd to

47:52

respond to the government's motion for reconsideration. And

47:55

again, that's the one where Jack Smith said

47:57

Cannon committed a clear legal error that

47:59

if not- reconsidered would lead to manifest

48:01

injustice. Yeah,

48:05

that's, I

48:07

guess she's, you know, in the leaving

48:10

it sealed, but sharing it

48:12

with the defense. Her logic

48:14

there is probably, well, it's sealed. So they

48:16

can't tell anyone, they can't share it outside

48:18

the defense team. So it's not really going

48:21

to place the investigation

48:23

or any of the people involved in it in

48:25

jeopardy. I think that's

48:28

unreasonably confident

48:31

in the defense. Well, it's also

48:33

weird for Jack Smith to not oppose

48:35

it because he argued for it to be ex

48:37

parte in the first place. You know what, though? Like

48:40

in every one of this is, you're,

48:42

we're already like five levels down on

48:44

the issue without

48:46

the start of this whole nonsense. And

48:49

he's on the verge of having to

48:51

file to the 11th circuit to fight

48:53

this anyway. So he's got to make

48:55

tactical decisions about how far am

48:58

I going to argue every little

49:00

sub decision. I'm

49:03

sure that the US attorneys who are responsible

49:05

for those cases and the agents who are

49:07

doing those investigations are howling about the idea

49:09

that Trump gets to see that stuff. And

49:12

you just know that Trump in some future thing

49:14

that Jack Smith wants to file ex parte, Trump

49:17

is going to say he totally abuses

49:20

the ex parte system. He didn't even

49:22

stand up for his ex parte thing

49:24

this last time. I mean, you know what I mean,

49:26

right? I mean, he's totally going to be like, this

49:29

doesn't need to be ex parte and he knows

49:31

it. And even one time he asked for this

49:34

thing to be ex parte and then it wasn't.

49:36

And then he didn't even argue. Like,

49:38

yeah, you could see that coming. But you know

49:40

what, you're going to get that kind of nonsense

49:42

one way or the other. So I'm sure there

49:44

are these prosecutors are like, oh my gosh, I

49:46

mean, we can't, we're already, there was a decision.

49:48

We're fighting that decision. To fight that decision, we

49:50

had to file another motion. Then she made another

49:52

bad decision on the new motion. And now we're

49:55

going to fight that one too. It's like, how

49:57

many of these things can we do at once?

50:00

So it's unfortunate, but they're

50:03

putting out fires here as quickly as they can and trying

50:05

to stay focused on the main one. And

50:07

then in the middle of all this, we've

50:10

got SIPA stuff happening. So

50:13

our best update

50:15

on SIPA always comes from our

50:17

man Brian Greer from his

50:19

Secrets and Laws Twitter account. And

50:22

on that account this week,

50:24

Brian said – and I'm going to number

50:27

these just the way that he did. Number one, Canon

50:30

should first rule on the defendant's

50:32

motion to access all or part

50:35

of DOJ's Section 4 filings, which

50:37

were filed ex parte by DOJ per

50:40

standard SIPA practice. This motion

50:42

should be denied, but if it's granted, she

50:45

should permit the defendants to see parts

50:47

of the filings and make arguments based

50:49

on them prior to ruling on DOJ's

50:52

Section 4 motion. This

50:54

is kind of what he said to us last week that he

50:56

thinks he might split the baby here. So

50:58

again, the underlying fight is the normal

51:01

process is DOJ makes their filings ex

51:03

parte to the judge, but in this

51:05

case, Trump's team is like it's not

51:07

fair. We want access to everything that

51:10

they give you, the judge, essentially getting

51:12

rid of the ex parte character of

51:15

this process. And

51:17

she should have just denied it outright. Probably what she's going

51:19

to do is split the baby and say,

51:21

okay, I'll show you a couple things here

51:23

and there. If she's going to do that,

51:25

she should do it before she makes the

51:27

final ruling on what DOJ is proposing. It

51:30

would be a way to kind of back

51:32

herself up and insulate herself from any potential

51:35

appeal by Trump on this decision. So

51:38

we'll see how that goes. And then

51:40

he says number two, then she needs

51:42

to rule on DOJ's Section 4 motion.

51:46

This will be a classified ruling, but maybe we'll see a

51:48

public summary. As to Trump,

51:50

DOJ is likely just trying to

51:52

use Section 4 to apply for

51:54

summaries, substitutions, or deletions to a

51:57

very narrow sliver of discovery, likely…

52:00

relating only to documents post-dating

52:02

his presidency. Judges sometimes

52:04

have small tweaks to the summaries or

52:07

redactions, which is fine. That's

52:09

like normal course of business. So

52:12

DOJ is probably not swinging too hard

52:14

for the fences on the Section 4

52:16

process anyway, and under normal circumstances, they're

52:18

likely to get that. But

52:21

here, Brian goes on, if we see

52:23

an outright denial, we'll have

52:25

trouble. Whether DOJ appeals will depend on

52:27

the sensitivity of the info. But

52:30

that, he means, obviously, if she

52:32

denies their Section 4 motion entirely,

52:35

that means everything gets exposed, no

52:37

substitutions, no deletions. That

52:39

might be serious enough, if the information

52:41

is still sensitive, serious enough to send

52:44

DOJ down another appellate course. OK.

52:48

Brian says, as to Nauta and de

52:50

la Vera, Cannon is making DOJ use

52:52

Section 4 to keep them away from

52:54

seeing the contents of the charged documents.

52:57

Their lawyers can see them already. As

52:59

covered previously, it does not make sense to use

53:01

Section 4 in this way. It should

53:04

be litigated under the Section 3 protective order, but

53:08

alas, here we are. DOJ

53:10

has strong arguments that the defendants don't

53:12

need to see these documents, since they

53:15

are not charged under the espionage back.

53:18

So Brian is cautiously optimistic that DOJ

53:20

could win the Section 4 motions, perhaps

53:22

with some tweaks to the Trump summaries

53:24

and redactions on the margins. Yeah.

53:27

OK. Then Brian says, number three is basically

53:29

the motion to compel stuff that we just

53:32

covered. Number four, Brian

53:34

has, on February 22, all

53:37

pretrial motions, except motions in limine,

53:39

are due for the defendants. Here,

53:41

we'll see, among other things, a

53:43

motion to dismiss for selective and

53:46

vindictive prosecution, something about

53:48

the Presidential Records Act, and

53:50

the Presidential Immunity Motion. The

53:52

Judge Cannon actually denied Trump's motion to

53:54

delay that due date for pretrial motions,

53:57

but left open the possibility of Trump

53:59

filing. something after that date if he

54:01

can show good cause. So, so

54:04

Brian's like, she left the

54:06

due date in place, but she's going to allow him

54:08

to violate. Yeah. Like

54:10

whatever. Best judge ever. Not. Brian

54:13

goes on to say, while the latter

54:15

borders on frivolous, much more so than

54:17

the January 6th case, it is quite

54:19

possible that Cannon will stay the proceedings

54:21

while she and the 11th Circuit consider

54:23

it. So, if she doesn't rule on the

54:26

section four motion and the motion to compel soon, it

54:29

could be a long time before those

54:31

are resolved. Yeah. He's

54:33

talking about the immunity motion. Right.

54:35

Right. Which is odd to

54:37

me that they haven't filed that yet because

54:40

if they had, they would essentially have started

54:42

a process that's likely to land in the

54:44

11th Circuit and then they could have added

54:46

that to their argument to the Supremes like,

54:48

hey, the same issue is currently on its

54:51

way to the 11th Circuit. And

54:54

therefore. Yeah, but probably not because he

54:56

wasn't president at the time. And

54:59

so it's kind of like a different set of arguments. Yeah,

55:01

but you could bootstrap it. You could say, I took the

55:03

stuff when I was president, and it all showed up at

55:06

Mar-a-Lago. I was still, no one else had

55:08

been sworn in yet. But

55:10

also, why hurry this case along? It's

55:12

one year successfully delaying. Yeah,

55:15

but I'll mean, play devil's advocate

55:17

here. He's winning the delay fight

55:19

a hundred times over. So to

55:21

sacrifice the delay argument on this

55:23

to make my appeal

55:25

to the Supreme Court a little bit more

55:27

compelling because it raises the potential,

55:30

the different decisions in different circuits.

55:33

But anyway, I digress. Okay,

55:36

so Brian says, number five,

55:39

finally on March 1st, the parties are

55:41

supposed to have the scheduling conference with

55:44

Cannon ostensibly to schedule

55:46

the remaining pretrial litigation, including the

55:48

next critical steps of the SEPA

55:50

proceedings. This may get put

55:52

off for the reasons noted, but if it proceeds,

55:54

we might find out what she's thinking in terms

55:56

of a new trial date. May is

55:59

out, but. later in the summer is

56:01

still a possibility. This will

56:03

largely depend on whether DOJ has to

56:05

appeal any of her SIPA rulings as

56:07

well as the resolution of the motion

56:09

to compel and the immunity motion. So

56:12

a lot of, there's a lot

56:14

of ground to travel there. There's a lot

56:16

of off-ramps, um, in

56:18

which Trump pursuing delay could

56:21

slow things down or cannon making

56:23

ridiculous decisions could force DOJ into

56:25

the box of having to file

56:27

more appeals and you know what

56:29

happens there. Yeah, absolutely.

56:32

All right. So that's what's going on in Florida. We

56:34

have one other quick story and some listener questions, but we

56:36

need to take one last break. So everybody stick around. We'll

56:38

be right back. Welcome

56:49

back. Okay. Before we get to

56:51

listener questions, we should talk about

56:53

this. Um, in the special counsel,

56:56

Rob, her case from

56:58

CNN, we have. House Republicans

57:00

have reached out to the special counsel,

57:02

Rob her to discuss having him testify

57:04

in front of the house judiciary committee

57:07

about his report on president Joe Biden's

57:09

handling of classified documents, according to three

57:11

sources with direct knowledge of the matter.

57:14

Her's report last week didn't charge the

57:16

president with a crime, but it

57:18

painted a picture of a forgetful

57:20

commander in chief who failed to

57:23

properly protect highly sensitive classified information.

57:25

A depiction that could hurt Biden

57:27

politically and that Republicans have seized

57:29

on now her

57:31

has retained noted Republican attorney,

57:33

Bill Burke. I

57:35

inserted the noted Republican there,

57:37

uh, who previously represented special

57:39

counsel, John Durham as his

57:42

personal attorney. And while

57:44

there's no date on the calendar, they

57:46

are looking forward to the end of

57:48

February, a source has told CNN, the

57:50

justice department declined to comment. Yeah.

57:53

Yeah. And you know, who else Bill Burke

57:55

represented Steve Bannon, Ryan's

57:58

previous. Don McGahn. Yes.

58:02

And he's the guy who went through all of

58:04

the Kavanaugh writings to decide what to

58:06

keep out of the

58:08

hearings. Yeah. He is

58:10

the go-to guy, particularly in the last

58:13

administration for our people in the Trump

58:15

administration who find themselves under the gun.

58:17

So, no surprise there. And whenever we talked

58:19

about how Priebus and McGahn had to have been

58:22

singing from the same sheet of music, it

58:24

was because they were both represented by William

58:26

Burke. Well, it's pretty. That's

58:29

a pretty fair guess. Pretty

58:32

fair guess. All right. And speaking

58:34

of House Republicans, Andy, the source

58:36

for their entire impeachment case against

58:38

President Joe Biden, that guy

58:40

has been indicted by special

58:42

counsel David Weiss of all people,

58:45

which seems like he's trying

58:47

to cover his butt on some stuff because discovery

58:49

is about to happen in the Biden case.

58:54

It's weird. First of all, not a good

58:57

day. If you're a prosecutor or an agent

58:59

working towards an indictment or you have a

59:01

guy under indictment, you're trying to build your

59:03

case for trial, and then your number one

59:05

star witness who provides really the only piece

59:08

of alleged evidence of corruption, it turns

59:10

out he's lied about the entire thing and

59:13

now you're charging him with a crime in

59:15

any other case. And I tell you this

59:18

from much experience in

59:20

any other case, this would

59:22

submarine the entire thing. Well,

59:25

this is their second witness who's

59:27

been indicted. Yeah.

59:30

Not to mention all the witnesses that the House

59:33

called in who didn't actually

59:35

provide any information or testimony that was

59:37

worth anything, but now you've got a

59:39

few that are maybe going to

59:41

jail. Well, yeah.

59:43

So yeah, that's fascinating

59:46

that the House Republicans

59:49

were laundering Russian propaganda.

59:52

That's crazy. All

59:54

right. Let's get questions. What do we have questions?

59:57

All right. So we have so

59:59

many questions. this week about Merrick

1:00:01

Garland and the whole Rob Herthing.

1:00:05

Jay Swain, Carol,

1:00:08

Elizabeth, and many other

1:00:10

people. They're asking

1:00:12

like all over the map about why

1:00:16

Garland selected her, whether

1:00:18

or not Garland can be removed or sanctioned

1:00:20

for his choice of her, whether

1:00:24

he could remove her from the job, whether

1:00:26

he should have changed the

1:00:28

report in some way. So I thought it's important

1:00:30

just to kind of touch base on

1:00:33

that thing real quick. I'll

1:00:35

give you my thoughts on it. As

1:00:37

we said last week, I

1:00:39

believe it was a mistake to pick Rob Her. I've

1:00:42

said that from the beginning since when

1:00:44

Rob was selected, not because he's not

1:00:47

capable or has the wrong background or

1:00:51

anything, but simply because he was so

1:00:54

closely involved and

1:00:59

deeply involved on the

1:01:01

Trump administration legal team at

1:01:03

DOJ. He's a political appointee, he's

1:01:06

involved in I think some questionable decisions.

1:01:09

And I don't think that, I think that

1:01:11

Garland probably selected him because he wanted someone

1:01:13

who was a Republican to give

1:01:16

him some political cover. He didn't

1:01:18

want someone who would be perceived

1:01:21

as a supporter of Biden investigating

1:01:23

Biden. So he picked the Republican.

1:01:25

I just think he overshot with it. I think

1:01:27

there's plenty of good Republican lawyers who didn't have

1:01:29

any connection to the Trump administration that could

1:01:32

have done a fair job. Your

1:01:34

obligation as AG is to pick someone

1:01:36

who's gonna do a fair and competent

1:01:39

job, not like the guy who's

1:01:41

potentially got an incentive to do

1:01:44

something in a political way. Yeah,

1:01:46

and why does it even have to be a

1:01:48

Republican? Why is that even a rule? It

1:01:52

doesn't, that's a self-imposed

1:01:54

thing that attorneys

1:01:57

general will do in an

1:01:59

effort to give them. self the political

1:02:01

cover for the selection like, hey,

1:02:03

you can't say political cover from

1:02:05

the Nazi Party. What like, wow.

1:02:08

I mean, I'm with you. And

1:02:13

this was a mistake from

1:02:15

the jump as we discussed,

1:02:18

you know, a year ago in episode seven,

1:02:20

right? Right. Now,

1:02:23

I think that as far

1:02:25

as removing, sanctioning,

1:02:27

pulling the report, redacting

1:02:29

the report, I

1:02:31

think it's too late to do any

1:02:34

of that without looking bad or acting

1:02:36

like a Bill Barr. I wouldn't want

1:02:38

Merrick Garland to act like Bill Barr,

1:02:41

even if it's for the right reasons. Yeah,

1:02:44

well, I mean, any of

1:02:46

those things, I argue, would be in

1:02:48

the category of making a bad thing

1:02:51

worse, right? Because they would all be

1:02:53

reportable to Congress. They would all create

1:02:55

the impression that Garland was actually trying

1:02:57

to meddle with the result, to protect

1:02:59

the president, to help him politically, what

1:03:02

have you. I think all

1:03:04

that would create a lot of static

1:03:06

and needless, you know,

1:03:09

controversy for the administration. They would, whatever

1:03:11

Garland did that was perceived as protective

1:03:13

of Biden would be imputed to Biden.

1:03:15

They would say like, oh, Biden must

1:03:17

have told him to do it. So

1:03:20

you really don't want that. You want the

1:03:22

special counsel, their report to stand for themselves.

1:03:24

And if it's going to be criticized by

1:03:26

people for reasons, then fine. Like that's fine.

1:03:28

You can do that. But once.

1:03:30

And honestly, a mandate or a

1:03:33

rebuke of Merrick Garland from President

1:03:35

Biden would be to select a different attorney

1:03:37

general in the second term. And I think

1:03:39

that that's a very likely possibility. Yeah,

1:03:42

yeah, it could go that way. Because of

1:03:44

this mistake. And it's the type

1:03:46

of thing that would be far enough

1:03:48

removed in time from how this was handled

1:03:51

that he could very discreetly say like,

1:03:53

well, you know, or really how that would

1:03:55

happen is Garland would resign and say

1:03:57

he's moving on to greener pastures or something.

1:03:59

Who knows? We don't – that's all speculation.

1:04:02

Yeah, I came here to do January 6th.

1:04:04

Jack Smith has that. The DC

1:04:06

US Attorney's Office has the boots on the

1:04:08

ground, guys. I've done my job, duty

1:04:10

to country, I'm resigning. But

1:04:13

yeah, that would be the punishment, I

1:04:15

think, for Eric Garland, would be a

1:04:17

second term Joe Biden different pick for

1:04:20

Attorney General. And who knows? It might

1:04:22

be that Biden is not

1:04:24

kind of penning this on Garland.

1:04:26

I mean, Biden, the ultimate institutionalist.

1:04:28

He obviously feels

1:04:30

very strongly about Garland, put him

1:04:32

in as AG, kind of in

1:04:34

response to how he

1:04:37

was treated by Mitch McConnell and everybody

1:04:39

else during the Obama administration and his

1:04:42

nomination to the Supreme Court not going

1:04:44

forward. So I don't

1:04:46

know. We'll have to see how that happens. If

1:04:48

Biden gets reelected, we'll find out the answer. But

1:04:51

when Biden gets reelected.

1:04:56

One way or the other, we'll

1:04:58

see. But that's our kind of

1:05:00

combined question for the week, all

1:05:02

things Garland. Very cool.

1:05:05

Thank you so much for submitting your questions. If you have

1:05:07

questions, we have a link for you in the show notes.

1:05:10

You can send those questions to us. But

1:05:12

yeah, I want to be clear because a lot of people

1:05:15

come at me like, oh, you came for Merrick Garland. What

1:05:17

do you think it is? I think it sucks. And I

1:05:19

don't think he should have a point. People never listen to

1:05:21

me when I criticize Garland. You've

1:05:25

been doing this show with me for a long time. There's

1:05:27

been several instances and decisions that I've

1:05:29

disagreed with Attorney General Merrick Garland

1:05:31

on. One of them was the appointment of her. And

1:05:35

I think that that was a mistake. And I'm happy

1:05:37

to call him out on his mistakes. What I won't

1:05:39

do is bash the entire institution, the Department of Justice

1:05:41

as an institution, or

1:05:43

question. I

1:05:46

won't question Merrick Garland's intent. I don't

1:05:48

think he's working for the Federalist Society

1:05:50

to protect Trump and all that other

1:05:53

stuff. And to be fair, right? Garland

1:05:55

has done plenty of good things as AG. I

1:05:58

Mean, the selection of Rob Herr. the was

1:06:00

a mistake but like in the end of

1:06:02

it whenever he stops being a g want

1:06:04

to sit down. And

1:06:06

just evaluate his his time in

1:06:09

office. That columns can have entries

1:06:11

in both sides. right? Yeah,

1:06:13

he's done a good job with civil rights.

1:06:15

He's done a good job bringing back

1:06:17

kind of returning some regular to the

1:06:19

process of consent decrees and investigations of our

1:06:21

law enforcement agencies. He. Is

1:06:24

by any standard A. Fair.

1:06:26

And decent man. He's

1:06:29

you know I. I just think that yeah,

1:06:31

this one was a great when you're in

1:06:33

at one of these jobs running in a

1:06:35

massive agency, the steaks and everything that you

1:06:38

do are so high you're not going to

1:06:40

get every decision right. I mean, I know

1:06:42

that personally. So. Has

1:06:44

just now is going so hard

1:06:46

to the other side. To pick

1:06:48

kind of a political creature a

1:06:51

with the known background of her

1:06:53

I to run this thing was

1:06:55

just of whether. There was an

1:06:58

overshot. it was an arena announcer hands on

1:07:00

swung too far the other direction that it

1:07:02

could be a staff thing To that mean

1:07:04

he didn't Just picked a guy. added the

1:07:06

clear blue sky. His staff recommended a whole

1:07:08

list of possible selections for he was only

1:07:10

one as to trump holdovers. That

1:07:13

that hadn't been removed from the Department

1:07:15

of Justice. The other one was Durham.

1:07:18

Yeah, actually her wasn't a hold over

1:07:20

to the last he left his gig

1:07:22

as I'm. Baltimore. Or

1:07:24

Maryland Us attorney is no right

1:07:26

practice. It was Weiss and then

1:07:28

got picked out. Weiss was the

1:07:30

reason why says the other guy.

1:07:34

That that's it. Me or so. Yeah.

1:07:36

Durham out Why? sizes I wouldn't want to be

1:07:38

in that club. Or

1:07:45

it's I will. You know we're going

1:07:47

to cover that indictment of the Smirnov

1:07:49

guy pretty close and clean up an

1:07:51

hour forty five this week. So as

1:07:53

a cluster of the funny well as

1:07:55

testimony amazing funny, well as testimony that

1:07:57

happened, Jennifer and County. Will talk about that too.

1:08:00

The Indeed have any final thoughts before we get

1:08:02

out here today. Know, I'm hoping someday Some

1:08:04

Friday we get a nice and light load.

1:08:06

One or two good stories of that we

1:08:08

can quickly but that does not seem to

1:08:10

be happy. Now next Sars and have the

1:08:12

money only ruling that are we have Dc

1:08:14

trials gonna pick back up. It's it's it's

1:08:16

a game on sellers. Are

1:08:19

at every. Thanks so much We'll see you next week

1:08:21

I've been Alison. Go and I'm any Mccain. Is

1:08:32

the price is this is to manipulate the

1:08:34

audience. They want you to believe the

1:08:36

say or the one holding the line until you

1:08:38

finish with the key. The get you there with

1:08:40

the food you get, foods, And

1:08:43

then is a search. I've seen a reporter

1:08:45

and today I tease feature. Reporters to cut

1:08:47

the sin and think critically about what is

1:08:49

needed for. A podcast.

1:08:53

You how to know when you're being manipulated into

1:08:55

the news. To start the

1:08:57

tricky because your own mind about what's true so

1:08:59

you're tired of being fooled by the lose score

1:09:01

of the and put to death. Because

1:09:05

you. Deserve the truth.