Jack - Episode 100 | Schrödinger's Special Counsel

Episode Date: October 27, 2024

This week, Trump is recycling the arguments that got the Mar-a-Lago case thrown out on Judge Chutkan in DC– but in a motion asking for a filing extension; if elected, Trump confirms that he would fire Jack Smith right away; the super PAC funding Trump’s legal bills is spending money faster faster than it’s taking it in; and the government opposes a motion to remove Judge Cannon from hearing the case against Trump’s would-be assassin.   Plus listener questions. Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to knowRule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

MSW Media I signed an order appointing Jack Smith. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. Wait, what law have I broken? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is?

Send me to jail! Welcome to Jack, the podcast about all things special counsel. I'm Alison Gill. It's Sunday, October 27th, and this is our 100th episode. Oh yeah. And I'm Andy McCabe. Happy 100th episode, AG. My God, what a milestone. Who would have thought that this case would take so long?

Holy cow. We've got a lot to go over today, as usual, including the PAC paying Trump's legal fees being $3 million in the red. That's not good. Also, Donald Trump telling Hugh Hewitt that he would fire Jack Smith in two seconds if elected and the government opposing Eileen Cannon's recusal in the attempted assassination case.

And, you know, we'll talk about what the implications of that might be. Right. And then we have some filings, because we always have filings. We have a new motion, new motion to dismiss the DC case from Trump's lawyers arguing that Jack Smith was inappropriately appointed and improperly funded. And of course, this is supposed to be a motion for leave to file, but he has just included his whole argument in it, which is weird. Because why not?

Yeah, right. It's right before the election. Let's get my words out. Plus we have Donald Trump's response. Well, Donald Trump's response to Jack Smith's 11th circuit appeal of Judge Cannon's dismissal of the Florida case is due like right this second. And we may have to record a bonus episode on when that's filed. But Walt Notta did just file a motion for three more days asking for a little bit of a delay there. We'll keep you posted on that because I'm not sure if Walt Notta gets to, I don't know that he files a separate response. I don't think, I don't know if all three appellees a file their own separate

responses or if they all file one and if he gets three extra days, will the judge, will the 11th circuit just give everybody three extra days? We will let you know. And I'll keep my eye on the docket as we record this episode. But first, Andy, it's time for another installment of Good Week, Bad Week. What do you got? Yeah, Good Week, Bad Week. I mean, I feel like there's a lot of bad things that have happened to Donald Trump in this last week, specifically relative to what we're here to talk about. And that is of course the legal cases, the special counsel cases. I know we're going to go through some of this about the Save America PAC, but not a great time for him to be kind of really

showing some weaknesses financially and otherwise in the special counsel cases. And then of course there was the random end of elections cycle insanity that just seems to build every single day. So I'm going to throw another bad week in the Trump column. As for Jack Smith, kind of middle of the road week, right? Not so much, not as active coming out of the special counsel's office this week as we have had in the last two weeks with the motion and the appendix. All the immunity stuff in DC. So it's quiet, I think, on their front and not particularly great for Donald Trump.

Well, he had, Donald Trump had a pretty good day because the army was supposed to release the incident at Arlington report that was filed. Oh, yeah. Because the Citizens for Responsibility of Ethics and Ethics in Washington sued under FOIA to get it. And they're like, all right. And the judge ordered them to hand it over today. And they handed it over.

It's entirely redacted. So that's a win for Donald Trump. So chalk one up for him. So much for transparency. And let me, I would have to say like also a bad week, because you mentioned money problems for Donald Trump. And this comes from Sarah K. Burris at Raw Story. She says, save America.

That's the leadership pact that Trump has used to pay his legal bills and some of his associates' legal bills, raised 1.4 million in September, but spent 4 million. Most of it on lawyers. Ouch. Yeah. Demonstrating how the former president's legal problems have continued to strain the campaign resources. It has less than 2 million cash on hand with nearly five million in legal

bills. A March report showed Trump was shelling out about $90,000 a day in legal fees, but none of it was his own personal money. Instead, it comes from donors and supporters. So actually, I guess bad week for Trump donors. Yeah. Wow. Let's hope that trend continues. Yeah, I know, right? Yeah. 90,000 a day on legal fees. You know, you would think at that rate that he'd be able to find some lawyers that don't write in run on sentences, but that I'll get more in depth. I'll get more in the weeds on that later as I struggle to breathe reading most of this filing. Yeah, it's a lot. Let's start with it because it's a new motion from Donald Trump to dismiss the DC case in its entirety for the same reason Judge Cannon dismissed the Florida case on

the grounds that Jack Smith's appointment is unconstitutional, violates the appointments clause and that he's funded inappropriately because it violates the appropriations clause. And this is actually supposed to be a request for permission to file a motion to dismiss. But he opens with leave should be granted, right? Permission should be granted. In an intervening opinion issued while the case was stayed, Justice Thomas observed that there are serious questions whether the attorney general has violated our constitutional structure by creating an office of the special counsel that has not been established by law. And he instructed those questions must be answered

before this prosecution can proceed. These issues are jurisdictional and they cannot be forfeited or waived. In another intervening decision, a district court, he's talking about Judge Cannon, issued a thorough 93 page and well-reasoned, not so much, opinion that relied in part on Justice Thomas's concurrence, credited many of the arguments raised in President Trump's proposed motion and dismissed charges unlawfully filed by Special Counsel Jack Smith. The superseding indictment is a new charging instrument filed after both of these intervening decisions, which warrants a new set of Rule 12 deadlines. That is how the court proceeded in connection with the statutory motions to dismiss, and

there's no countervailing reason to deny permission here. Accordingly, there's no procedural bar to the proposed motion. So he's arguing here that the superseding indictment basically reset everything and he should be able to file a motion to dismiss now since two decisions came out in another district, which she's not bound, Judge Chuckin is not bound by, but this, you know, we've found a new indictment so that he gets to do this all over again. Yeah, that's right. So he would, under normal circumstances, he would have been barred from bringing this motion because he's well past the deadline for bringing a motion like this.

But he's pinned it to the new superseding indictment, which he claims resets that clock. And I should say, like, we knew this was coming, right? When this strategy worked in the Eileen Cannon case in Florida, it was just a matter of time before this case ramped back up again, that we were going to see a motion like this. And that's of course, essentially what we got today, even though this is actually a request to file a motion. So he goes on to say, the proposed motion establishes that this unjust case was dead on arrival, unconstitutional even before its inception.

In November, 2022, the attorney general violated the appointments clause by naming private citizen Smith to target president Trump while president Trump was campaigning to take back the Oval Office from the attorney general's boss without a statutory basis for doing so. Try to figure that out. I mean, the tagline is so protracted from the beginning of that sentence. I think it doesn't hit well, but nevertheless, I digress. He goes on to say Garland did so following improper public urging from President Biden to target President Trump, as reported at the time in 2022 and repeated recently by President Biden through his inappropriate instruction to, quote, lock him up. While Smith presses forward with the case unlawfully as the presidential election rapidly

approaches. My God, take a breath, Blanche. Like what the hell? Yeah, that's crazy. Everything that Smith did since attorney general Garland's appointment, as president Trump continued his leading campaign against president Biden and then vice president Harris was unlawful and unconstitutional. That includes Smith's separate violation of the appropriations clause by relying on an appropriation that does not apply in order to take more than $20 million from taxpayers, in addition to Smith improperly relying

on more than $16 million in additional funds from other unspecified DOJ components for use in wrongfully targeting president Trump and his allies during the height of the campaign season period. So those three sentences that you just read. Oh my gosh. There is no sentence in this thing that doesn't have as and then followed by another clause. Yeah.

And early on in one of the first episodes, we talked about the myths of the special counsel funding because we knew these were coming, right? Every single Trump ally in the Mueller investigation filed that Mueller was unlawfully or unconstitutionally appointed and funded. And we talked about how the treasury has a separate little account to run special counsel stuff and that's its own thing. And it's appropriate and proper and every court ever until Eileen Cannon, even though she didn't have to decide, said that it wasn't.

Now he says some more completely wrong things that we've heard before. He says, none of the statutes cited in the order appointing Smith provide the type of clear statement from Congress. Okay, I'm going to stop right there. They're statutes. Therefore, they came from Congress. I'm just going to say that first and foremost. That's a good point. He says, none of the statutes cited appointing Smith provide the type of clear statement from Congress that's necessary to authorize a department head to appoint an inferior officer. In fact, far from the required clear statement, the plain language of those statutes as well

as their statutory context and historical understanding. What? Because historically, every single special counsel has been appointed under these statutes. They directly undermine the validity of Smith's appointment. They do not. At least one Supreme Court justice, a district court, two former attorneys general who administered the law at issue, and several prominent legal scholars among others have supported that conclusion.

Andy, we went over the statutes, 509, 510, 515, and 533. And the people he lists supporting his argument are Ellie Honig, Clarence Thomas, Eileen Cannon, and Edwin Meese. So okay. Let's count up of that group. Let's count up how many of those people have actual authority over the DC district court? Okay, so it's one, two, three, four, five, six, seven, eight, nine, zero, none. At least one Supreme Court justice.

Okay, that's one Supreme Court justice. One Supreme Court justice does not equal a Supreme Court ruling. It could be nine. It's just at least one, Andy. It could be, well, maybe Alito. A district court, not the one we're in. So just at least one, Andy. It could be, well, maybe Alito. Yeah, right. A district court, not the one we're in, and of course, in the form of Eileen Cannon.

Two former attorneys general. OK, former, enough said right there. And attorneys general, don't tell judges how to rule and what the sources of law that are controlling over their issues. I mean, their opinions. Their opinions. It's crazy.

It's crazy. All right. So then he attacks the DC district's precedent because of course that does not go in the direction that he likes. So he's got to go after it. He says, courts in this district, on the other hand, have erroneously relied on a single sentence from US v. Nixon, which is a Supreme Court case as we all know, which cited the same statutes cited by attorney general Garland to appoint Smith.

Now let's think about that for a minute. That sounds a lot like there's a Supreme Court case directly on point that cites the same statutes that the attorney general relied upon in this appointment. That sounds pretty good. That's better than Clarence Thomas, Eileen Cannon, Ellie Honig and Ed Meese, I feel like, but whatever. Okay. The sentence is dictum as it lacks reasoning was based on an undisputed issue, was not necessary to the Supreme Court's holding, and is not even an accurate characterization of statutes relied on for the appointment at issue

in that case. Decisions from this court relying on the Nixon dictum did not address intervening decisions regarding the clear statement rule and major questions doctrine. As such, they do not control the outcome of this motion and they are not persuasive authority for Smith's unlawful and unconstitutional appointment. That doesn't sound to me like asking permission to file a motion.

That sounds like a motion. We are pretty deep in argument at this point. But then he says, even if Smith is a valid officer, which he is not, he is a principal rather than an inferior officer and his appointment is plainly unconstitutional because he was never nominated by the president or confirmed by the Senate. That's not how appointing people to head departments works. Anyway, this conclusion follows from the lack of effective oversight of Smith coupled with the extremely broad jurisdiction described in the appointment

order. Now, so in just a page or two, he's already contradicted himself by saying, first of all, at first he said Jack Smith's boss works for Biden and that means he's being puppeteered by Biden, his opponent. But then he says that there's no oversight over Smith by Garland. So which is it? It's everything. I know. It's how you just swing at everything. It's this is kind of a shotgun pleading style. Okay. So he closes the introduction like this. Smith's massive expenditures also violate the appropriations clause. Smith has operated with a blank check by relying on an inapplicable permanent indefinite appropriation that was enacted and can, I'm sorry, wait,

did you say an appropriation? Yeah, not only, but it's a permanent indefinite appropriation. So one that's there forever, which basically you can use for anything you want, which you'll hear the government go into detail on that in their response, I'm sure. Okay. So a permanent indefinite appropriation that was enacted in connection with a reauthorization of the Independent Council Act in 1987. Smith was not appointed pursuant to that act, which expired in 1999. The appropriation contemplates the possibility of appointment

by some quote other law, but no other law authorized Smith's appointment. I'm sorry. Other than the four that were cited in the order. The ones that Congress passed. That's exactly right. Okay. Just checking. The appropriation also requires that the prosecutor be quote, independent in the very particular

rigorous sense that attorneys appointed pursuant to the defunct independent council act were meant to be independent. That is not true of Smith's appointment either. For these reasons, Smith should have never been permitted to access these huge sums of money and use of this funding violated the Appropriations Clause. Based on these violations of the Appointments and Appropriations Clauses, the superseding indictment should be dismissed with prejudice. In addition, an injunction against additional spending by Smith is necessary to prevent ongoing irreparable harm and to ensure the complete relief for the appropriations clause

violation. So he's back to saying that he's not independent, but he is. Yes. But there's not enough oversight, but then he's not because it's his boss. He can't be independent and he can't have enough oversight, something like that. Schrodinger's special counsel, that's what we have, I think, according to Donald Trump's lawyers. Very interesting.

So again, we're deep into argument here. We are no longer asking for permission to file an argument. We're making an argument. So this is going to be interesting and we'll get into that argument, but we have to take a quick break. So stick around. We'll be right back. Welcome back. Okay. We're covering Donald Trump's request for leave to file a motion to dismiss based on what he says is the inappropriate appointment and funding of the special counsel.

So Andy, again, remind me, a motion for leave to file, isn't that usually just a couple of sentences or a few pages? It seems like he's filing his whole motion here without permission. In any normal lawsuit, yes. Attorneys wouldn't waste time. You're not going to get substantive ruling out of the request for permission to file a motion. So you would just make your case for why you should be entitled to file this motion even though it's normally out of time. You're basically asking the judge for relief from the schedule.

That's it. And the fact that he's filing a motion for leave to file indicates that he knows that he can't make in regular order this motion. Yeah, he absolutely knows that. And he goes, he honestly, I mean, to be fair, I think the argument for leave to file is pretty strong. He makes a good argument basing this on the timing of the superseding indictment. And you know, there were, and quite frankly, and we knew this when it happened, the Clarence Thomas reference to this issue in the immunity case, which was wildly inappropriate and essentially carries no force of law whatsoever. But we knew when we saw that this was coming down the pike. So it's not surprising, but yeah, you're right.

What he's doing here is this is like classic salesman tactics, right? You just say it, keep saying it, say it again, say it again, say it again. And someday people will start believing it. But I don't think that day's ever coming for Judge Judkin. No, I agree. Yeah. So he starts that way with a reason he should be granted leave to file the motion, but then he just sort of goes into his motion. So the first part, what we may disagree that he's correct, is at least a request to file. He writes, the proposed motion is timely and there is good cause. The court should grant leave to file the proposed motion.

The motion is timely under rule 12, and there is good cause under rule 12C3. And these jurisdictional issues cannot be waived or forfeited. Okay, so that's a tight paragraph that addresses the actual standard for the thing that we're supposed to be doing here. Right. One of the lawyers put that in there. Right. Exactly. This motion attacks the superseding indictment, which did not exist at the time of the court's

previous motions deadline because the special counsel's office obtained this new charging instrument with significant substantive modifications following the Supreme Court's remand in Trump versus United States and Judge Cannon's decision in United States versus Trump. Consistent with those circumstances, the court has since properly permitted President Trump to supplement previously filed motions to dismiss based on the new charging instrument. Yeah. And my argument against that, and it's a fine argument. It's the only argument they have.

Yes. But my argument is that he said there's this new charging instrument with significant substantive modifications. Yeah. Subtracted. Stuff was taken away. modifications. Yeah, subtracted stuff was taken away. Nothing was added except for like some clarification language about, you know, his ellipse speech being a campaign speech or things like that. So to argue like there's all this new information and I have to be able to respond to it under rule 12, I need new

motions for everything. able to respond to it under rule 12, I need new motions for everything. I think that's fair. I think that's a reasonable opposition to this request. It is new, but it's less. But we'll see what she says. She might be like, because this would open up the door to all pretrial motions going again. She could give him leave to file this one. And again, they've blown the deadlines on some other stuff, Trump immunity decision related stuff. They've gotten, you know, he got to add to his earlier motion to dismiss on statutory

grounds, that sort of thing. She could let him file this thing just to kind of in an abundance of caution and fairness, right? She doesn't want to leave, create an issue here by denying him the chance to file. She kind of risks creating an issue that would add to the stack of a million things that'll be appealable after the fact. Yeah. Unless she clarifies that, you know, your initial filing to get him out of here based on this is still stands and it gives you a bookmark to do this after. But Clarence Thomas in his infinite wisdom put in his intervening, you know, immunity decision that this has to be settled before

the trial can take place. So, Shumay, if I- Yeah. And that's another factor. I wanted to just mention this real quick. The other factor leaning towards giving and leave is that we don't have a trial date, right? So, there isn't, we're not, the motion is not going to get in the way of or further delay an impending trial. That's usually when a judge is going to be like, nope, sorry, you're out of time, too

bad. See you next week in court. Yeah. And she may be like, look, normally you're out of time and this is out of order. However, because while this case was stayed, a Supreme Court justice mentioned this thing. I'm going to grant you leave in this instance to file this motion. You know what I mean? Like, and there's a superseding indictment, etc She could put it on an expedited briefing schedule She could limit the page number because you say you get you get 10 pages 15 pages max. That's it

Right to try to kind of Tighten it up, but we'll see yeah Regardless of how she rules at least that's an argument to get permission to file his motion But then he starts arguing his case. He actually starts filing his motion, which I really think should be saved for the actual motion itself, when and if Judge Chuckin grants his request to file it. But he talks about what Clarence Thomas said, and then he talks about fatal constitutional defects. But then he brings it back to getting permission. Good job. I'll give him a little pat on the back there. He says, finally, there's no countervailing reason to deny filing.

Unlike when the original motion deadline was set, no trial is currently scheduled. Because Andy, what he's saying is back then we had a trial date, now we don't. Just the opposite. All trial related deadlines are stayed and will remain stayed while the courts resolve the threshold immunity issues presented by this case. Yeah, that's where I'd end it, Andy. I've made my argument to get permission to file to dismiss. That's where I would end it on page eight. But no, he wants to make his arguments that should be made in the motion. Okay. And he goes on for another 22 pages.

Oh yeah. Yeah, he does. Because you know what? Why waste a captive audience? Like you're just going to put the same thing out again. And it's the same stuff you hear in every single motion. It's Jack Smith targeting me because of President Biden and I'm the leading candidate in all the political language that we know that this judge has already had it with. So he argues that Smith was not appointed by law under the Appointments Clause. Congress has not provided the required clear statement, which of course they did by writing the laws that allow the appointment, but nevertheless.

And then Trump says, the statute cited in the appointment order lack a clear statement and did not authorize Smith's appointment. Now he even goes into greater detail arguing that sections 509 and 510 are quote, generic provisions that do not authorize appointments. And then he says on its face 515 does not explicitly empower the acting attorney general to appoint or retain anyone. And that section 533 one authorizes the appointment of FBI officials, not private citizen prosecutors like Jack

Smith. So he goes down into the weeds in his request for permission to file for weeds. Then he goes on to argue that the Nixon dictum is neither controlling nor persuasive, adding, quote, based on these considerations, the conclusory sentence in Nixon concerning Title 28 U.S. Code sections 509, 510, 515, and 533 is non-binding and unpersuasive. And next he argues Smith is a principal officer, which renders his appointment invalid and that Smith is violating the appropriations clause. But then he doesn't just argue his motion. He asks for relief. Oh yeah. This is great. Cheeky.

In a motion to get permission to file a motion, he says an injunction on further spending is also appropriate. He says, here's what he says, an injunction is necessary because a dismissal order will not necessarily provide complete relief. This is illustrated by the fact that notwithstanding Judge Cannon's findings, the special counsel's office has continued to pursue and spend money on this case. And the office is directly pursuing the appeal of Judge Cannon's ruling rather than the Department of Justice.

You got to take their money away so they can't appeal you're granting my motion. And he wants somebody else in the regular Department of Justice, I guess, to argue the appeal. Now, Annie, I got to know, how does he conclude this? Because it's supposed to be a motion to get leave to file. So the conclusion should be, therefore you should grant the leave to file this motion. But he's added his motion and he's added an ask for an injunction. So how does he manage to end this 30 page filing? Well, the conclusion says, for the foregoing reasons, which establish constitutional violations and call into question the court's jurisdiction. The court should grant leave to file the proposed motion. The superseding indictment should be dismissed with prejudice

and the court should enjoin Smith and the special counsel's office from spending additional public funds in furtherance of the invalid appointment order and in violation of the appropriations clause." So it's swing for the rafters. I mean, just I want it all. I expect like maybe a minute order on this. Just maybe Judge Chuck can say, all right, look, dude, all your arguments, I'm not considering because those belong in the motion proper. And she's going to might call the lawyers to the carpet to say, will you please include

your motion in your motion? I'm granting for this. I think she might grant leave to file this motion. Yeah, I agree. But I think she's going to mention, I don't want to hear your arguments. And if you want to file a motion to enjoin separately, like you're being weird. Yeah, I mean, I think that's the light. Or include your motion to enjoin in your motion that I have just given you permission to file,

something like that. I think the likely result is here, as you said, she grants him leave. She might do so on a, she might throw some restrictions on what he can file in terms of the timeline and the size of it. But I think it's also highly likely he's just gonna regurgit all these arguments

in longer form in the motion itself. She's gonna deny it. She's gonna go the same way every other judge that's looked at this issue especially in trial and appellate court levels. They've all gone the same way except for Eileen Cannon. And in that math equation, I don't see Judge Chutkin lining herself up with Eileen Cannon. And so really what we're talking about here is the beginning of a long process that'll include appeals to the DC

circuit. And then at that point, we will probably have an opinion from the 11th circuit. Right. And do we interest- And then we'll know if they're contravening. Exactly. If they are contravening, then he's got a much better chance of, let's say, Chutkin denies his motion, it goes to DC and DC overturns her ruling and you get an opposite result in the 11th circuit. Under those circumstances, his chances of getting a case in front of the Supreme Court are much better.

They're high. But I think both courts are going to agree. I think the DC circuit is going to be like, yeah, special counsel is always Nixon's dictum. Much more likely result. Shepkin's going to deny both. I think both circuit courts go the government's way. And then he's got a much harder time because the only outlier decision is that being Island cannons were flipped over. Everything else goes in the same direction.

Yeah. So the Supreme court will refuse to take it because there's no contravening opinions between circuits and justice Thomas will dissent. Exactly. Exactly. Yeah. Kenny, like, I don't know that Thomas has this has the swing to be able to convince, he'd need three of his colleagues to vote to take it, right? Don't they need four? I think they need... Four votes to take a case? Or five? I think they need four or five if it's emergency stay or something like that. Something like that, yeah.

I think it's just him and maybe Alito, maybe. But we'll see. Yeah. Yeah. You never know. You never know. But anyway, this thing's going to go for this. We'll be talking about this years from now. Yeah. Because then in that case, the Supreme Court would have to be like, well, the 11th circuit agrees that he's appointed properly as have all special counsels been since 1999 or whatever. And the DC circuit agrees, but we want to set a rule for the ages on the appointment and funding of special counsel prosecutors. Do you know what I mean?

Yeah. I mean, look, it could happen. I wish I was not like, I'm laughing, but I'm trembling inside. You did it could happen. I wish I was not like, I'm laughing, but I'm trembling inside. You did it with immunity. Yeah. Yeah. I mean, they could just reach down and grab it. Um, if they want to continue their reign of terror, uh, against every part of government, except the executive. Cause everybody in the history of forever agreed on immunity. We didn't even have a judge cannon on immunity. But the Supreme Court was like, well, this is a very important question. No one's in disagreement, but we're going to take it up because we want to make a rule for the ages

and make it. The Chevron Doctrine case, kind of the same thing, right? I mean, they've reached down and grabbed that one. Why? Because they wanted to do it. Same exact reason they took the immunity case because they wanted to do it. Same exact reason they took the immunity case because they wanted to do it. So if these conservatives on the court want to basically put a bullet in the head of the special counsel program, they could. Yep. And we would have to have Congress write a whole new law.

Exactly. All right. Well, yeah, we'll see what happens. But next up in the next segment, we're going to talk a little bit about Judge Cannon's recusal from a couple of cases, possibly the Florida documents case, but also the Routh case. That's the attempted assassination of Donald Trump at the golf course, right? And he filed the last week, you know, we talked about this, his motion, and we're gonna follow it up because we have some,

we have some rulings and some opposition from not rulings, but opposition from the government. So stick around, we'll be right back. Bum bum bum, ba da da da da da da dum. Ba da da da da da da da dum. Bum. Everybody, welcome back. So as I said before the break last week, at the end of the show, the very end of the show, we talked about Ralph's motion to recuse Judge Eileen Cannon from the attempted assassination case because Trump has repeatedly praised her publicly and there might be an appearance

of impartiality. Well, the government is actually opposed to that motion, but Roger Parloff writes for lawfare that the government only barely opposes it and that their opposition shouldn't impact the prospects for reassigning Judge Cannon from Trump's classified documents case. That's right. So, Parlov says, Routh's 10-page motion, filed October 17, argued that, quote, given the heightened stakes and public scrutiny that the case was receiving, there should not be any doubts about even the appearance of impartiality by the presiding judge. He relied on 28 USC section 455A, the most amorphous subsection of the federal law governing

judicial disqualifications and recusals. It says that, quote, any judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Despite the provisions broad language, courts have construed the term reasonably to require far more than mere malevolent suspicion. As one federal appellate court put it, quote, the standard requires that the court take the perspective of a fully informed third party observer who understands all the relevant facts and has examined the record and the law. Yeah, that's a pretty high standard for reasonable.

He goes on to explain, backed into a corner, the justice department finally took a stance on Cannon's partiality on October 21st, at least in the context of the Ralph prosecution. In a perfunctory one and a half page filing, the government opposed Routh's motion for her to recuse, stating that it, quote, did not present either facts or case law requiring recusal on this record in light of the controlling standard. The department's brief, if one can call it that, was just six sentences long, plus a string citation to three federal appellate precedents with excerpted parenthetical quotations. On October 23rd, Ralph filed his reply. He complained that the department had not meaningfully responded to his petition at all. And I think

that's Roger Parlov's point here. He repeated the allegedly unprecedented nature of a situation brought to the court's attention in ABC News article filed the day before. According to the latter, a proposed personnel roster circulating in the Trump campaign's transition operation lists Cannon as a possible candidate for US Attorney General in a future Trump administration. What might account for the unusual brevity of the Justice Department's submission in the Routh case? Parlov says, perhaps it simply reflects dismissiveness because the department judged Routh's petition to be frivolous.

Yeah, the Routh motion placed the Justice Department in a sensitive position. The department's opposition to it might be seen as undercutting the notion of reassignment in the case against Trump. Certainly, Trump or his supporting amici may argue that it did. On the other hand, the Department has a longstanding interest in preventing criminal defendants

from engaging in judge shopping. Standards for recusals are and must be high. The department must uphold those standards and strive for consistency in its own filings. Right, they always take the more conservative path. He concludes this way, will the Justice Department's opposition to Judge Cannon's recusal in Ralph's case undercut the prospects of the 11th Circuit reassigning the classified documents case to a different judge? In a direct message from Randall Eliason former federal prosecutor in DC and now an adjunct professor at GW

He says he doubts the filing will have much impact the Ralph filing will have much impact on the cannon Trump case He Eliason says Ralph's motion is very weak and relies primarily on the fact that Judge Cannon is a Trump appointee and he's said nice things about her. Institutionally, I don't think the department can take the position that these would be sufficient grounds for recusal. Reassignment in the classified documents case would be based on Cannon's actions in that case. And there there's an actual track record. Right. At the same time, Eliason adds, it would not be unreasonable for Cannon to exercise her discretion to recuse in Routh's case and a reasonable judge might do that. There

are obvious distinctions between the two cases. To begin with, Cannon has done nothing out of the ordinary in Routh's case so far. Her involvement in US v Trump and in the investigation that led to it, in contrast, presents a different scenario indeed. Sure. Yeah, yeah. And Andy, those reasons were all explained pretty well in those two amicus briefs filed in the Florida case, asking the 11th circuit to recuse her and reassign the case, including her being overturned in the special master thing twice, her weird jury instructions on the Presidential Records

Act. Remember where she was like, pretend it doesn't say what it says and write me a thing. And her potentially being overturned in the dismissal of the Florida case. Plus her secret docket, dragging out the proceedings. And again, something that both Amiki left out, they left out the fact that two of her senior judges called her early on in the documents case and said she should probably recuse. That and of course her clear legal error in her ruling to unseal witness lists, leading to that motion for reconsideration where she overturned herself. So those two things weren't included in those amicus briefs, but they're also part of her track record. And of course, I think he reminds

us here that the 11th circuit can do this to a Sponte. They don't need Jack Smith to ask for it. That's right. That's right. And so, uh, Parlov concludes with this. He says, so notwithstanding the government six sentence brief in Ruff's case, the prospects that the 11th circuit will reassign Cannon from a classified documents case, assuming it first reverses her dismissal, probably remain about where they stood all along, which is to say a long shot, but not impossible. Yeah. Yeah. Now something else has popped up since all these motions to recuse and the amicus

brief were filed. And Randall Eliason mentioned it. That's that list of potential attorneys general for Trump, right? Yeah. Pannon's number two on the list. And there's no proof, obviously, that he put her on the list in return for her dismissal of the Florida case or whether he put her there so she could use her 93 page ruling calling Jack Smith inappropriately appointed and funded as a pretext to fire him. But it certainly does add a wrinkle, I think. It does. I think it's interesting and it's the kind of thing that really gets us thinking. But as a piece of evidence in Ralph's motion, I find it to be not very effective because

as it's been described in the reporting, this is just some list that some unidentified person who's part of the transition effort of the proposed transition team has put together suggesting people who might be considered for these federal lawyer jobs, basically. So there's not even enough there to kind of infer corrupt action, right? It's just, who do you even attribute it to? What does it mean? It could have been somebody's thought experiment, could have been a totally,

it could have been a list that wasn't requested by anyone, that nobody put any stock into. So it's very hard, it's hard to give it too much significance. I think. No, right. You would have to have Trump say at a rally like, oh, I'm going to make her attorney general because she dismissed my Florida case. Exactly.

Or something to that effect. That would be great evidence for Mr. Ralph. You'd be like, cha-ching. And Jack Smith, or the 11th circuit, I should say. If that happened, we might actually see a motion for recusal from Jack Smith to the 11th circuit, I should say. If that happened, we might actually see a motion for recusal from Jack Smith to the 11th circuit, which we don't have. He hasn't asked for it. So anyway, that is a very interesting little tidbit.

Some of the other names, by the way, also very scary, Jeffrey Clark. Oh, great. He's the guy that almost tubed the Justice Department the last time he was there. He's out on bail. Come on. You want to make the top cop? Awkward. Mr. Attorney General, your parole officer is here. Well, it's convenient. You don't wear a tie to the office. Oh, I got a meeting with my parole officer. Oh, very cool. No shoelaces, Mr. Attorney General. What happened to those?

Yeah, I know, right? All right, we're going to take one last look at the docket for any updates and we've got another story and then of course, listener questions, but we're going to take a break first. So everybody stick around. We'll be right back. Welcome back. Okay, we have some listener questions as always, but first some reporting this week that stood out to us.

In an interview with conservative podcaster Hugh Hewitt, Trump said he would fire Jack Smith quote, in two seconds. That's assuming of course he wins the presidency. The reporting comes from Hugo Lowell at The Guardian who writes, the power to fire the special counsel formally rests with the attorney general. But Trump has made no secret of his intention to appoint a loyalist as attorney general who would agree to withdraw the Justice Department from the two pending criminal cases. Trump has previously tried to fire prosecutors who have investigated him

personally. That sounds really familiar. Do you have any experience with that? I feel like it's bringing back some memories. During his first term, he repeatedly tried to fire the special counsel Robert Mueller, who investigated Trump's ties to Russian interference in the 2020 election. He ultimately backed off after the White House counsel, Don McGahn, disagreed with Trump's attempts to fire Mueller and threatened to quit if Trump continued to press ahead with his order to shut down the Mueller investigation. Multiple current and former Trump advisors have suggested there would be no such hurdles in a second term. Trump, the advisor said, would simply call his loyalist attorney general to involve

himself at the justice department as he wished without pushback from career officials. And also subject to presidential immunity. So yeah, that's a, I mean, we all kind of assumed he was going to fire Jack Smith as soon as he was elected if he did win the election. So now he's saying it out loud. And this is actually just in right now. Jack Smith has responded to Judge Chutkin's ruling on Donald Trump's ridiculous motion to compel discovery.

Remember that huge big thing where he wanted 14 categories and that the prosecution team included nine other agencies. You'll recall she ordered Jack Smith to look for additional stuff in three very narrow cases of the 14 categories and to look for Jenks material from folks who, you know, might no longer work on the prosecution team or, or extra step, right. Or not Jenks material, but Jenks material on Pence, but also any communications in any of these categories for people who don't work for the prosecution team anymore, whether it's Washington field office, us attorney office in, in Washington, DC or the special

counsel's office. And here's what Jack Smith says, specifically, while rejecting the vast majority of the defendant's unfounded demands, the court ordered the government to search for and produce any additional discovery within its possession that fit three discrete categories of information. One, certain records related to the testimony of the former DNI. Two, information about security measures that was conveyed to Trump during his meeting with General Milley and acting Secretary Miller in early January, 2021. And three, evidence relating to unauthorized retention of classified documents by Vice

President Mike Pence. Pursuant to the court's order, the government carefully reviewed its holdings regarding these three categories and has nothing further in its possession to produce to the defendant. The government also reviewed its holdings in light of the court's definition of the prosecution team and its order regarding Jenck's Act materials. And in an abundance of caution, earlier today, produced to the defendant a small number of additional materials, relatedly the government herein moves for an additional deadline for the production of any remaining Jenks Act materials in advance of trial. And

since there's no trial date, Andy, and since the witness list could change, Jack Smith is saying, we don't need more time to produce Jenks Act material that exists now. Jack Smith is saying, hey, there's no trial date yet. Our witness list could change. So we need a deadline on additional Jenks materials for potentially new witnesses when the final witness lists are due.

And that's totally reasonable. And I think she'll grant that. Oh, no question. They're just trying to give themselves a little room to, if something develops, they'll have the opportunity to turn it over without breaking a deadline. I thought it was interesting, too, that they also referred to the small number of documents that they turned over.

At one point in the writing, they said a small number of documents which were not discoverable. So it just goes to show you the overabundance of caution that they are taking here. They are giving him stuff now that is like beyond the scope of the discovery obligations. Nobody over there thinks, oh my gosh, we just found because of Judge Chutkin's direction to us, we've gone and found some like some poison pill sitting in our files.

We found the missing January 6th deleted files from the committee. Yeah, no. The Jimmy Hoffa file has been hiding in Geraldo's basement all these years. We put it in Al Capone's glove box. We handed it over. Exactly. So no, this is just like they found three or four things and we're like, you know what? Just hand them over.

Who cares? They're not discoverable, but we're just going to stay on the high road here. So that's what they're doing. Yeah, I agree. And I'm going to check this docket one last time for any further filings and we have none. The latest thing is Walton Auda's motion to get three more days to file the 11th circuit response. So that's all we've got and we will keep you posted this week as more information comes out. Yeah, if he gets that it'll apply to all of them. I think so too. So we won't see anything for a couple of days.

I agree. Basically gets them through the weekend. Yeah, because they've never filed separate responses before. They've all been, hey you're part of this, right? Yay, cool. Although Judge Shuckin might be like, cause the reason he's asking for it is cause one of his lawyers has another defendant, you know, he's being represented by Stanley Woodward, who by the way is on the attorney's general list for Donald Trump. Oh, thank God. Yeah. It's or or a White House counsel. Uh, but, uh, Stanley Woodward, apparently he's representing so many January 6th defendants. And I think Pete Navarro, although that case might be over unless he's

appealing still, but he's got court or something today. And so last minute asked for three days, Judge Chuckin could actually say, look, Stanley Woodward, I'm not expecting him to be a large contributor to this response. But I mean, again, abundance of caution. It's three days. I'm sure she'll grant it. I agree. So listener questions. Again, if you have a question, there is a link in the show notes that you can click to fill out a form and send us a question. What do we have this week, Andy?

All right. So we have two this week. One of them, I think they're both kind of unique. I've thought all the questions that came in this week were all a little bit different. Usually we have some very strong themes repeated across multiple questions and I try to represent those, but these two are both kind of different and I thought interesting. So first one is from Laura and she begins by saying, Alison, Andy love you guys, may not agree on every issue, but we're in this together to defeat Trump, Trumpism. Question, how is Mershon's rulings on immunity and Trump's sentencing on the 34 felony counts going to be affected by the election results, which could still be in flux in early November. So it seems like a simple question, but when you start to unpack it in your head, it gets

a little complicated. The way that I think about it is there's really two connected, but pretty independent issues here. One is the legal side of how do the election results affect this sentencing process? And the second one is the sentencing side. What could he get? Could he be detained? That sort of thing.

On all of these, I presume, are with the assumption that if he wins, if he doesn't win the election, this goes forward, we get Mershon's ruling on Trump's immunity request. And if Mershon decides that issue adversely to Trump, then he's going to get sentenced. And he could get sentenced to some time, some form of incarceration or detention, could be home detention. You know, who knows? That's all wide open. But the tougher question is if he wins. Okay, let's say he wins the presidency, then this motion is decided. And the legal path that comes of that is just filled with all kinds of appeals and opportunities

for appeal, right? He would first, if assuming the Merchant's decision is not good for him, he's got to exhaust his appeals in the New York state system. And then of course, having not gotten satisfaction there, if that's the way it goes, he would, he would try to move the issue into federal court and work his way up to the Supreme court, which is where he really wants it. That could take forever. Mm hmm. On the sentencing side, if Trump wins and is elected president, I see an almost zero

chance that he'll be sentenced at least initially to any form of detention or certainly not incarceration and I don't think any sort of meaningful detention, not even home detention, nothing. And the reasons I feel like Mershon will have a very hard time rationalizing taking the person who's just been voted elected president of the United States by let's say more than 70 million people and confining him in such a way in any way that could have an impact on his ability to perform the requirements of the job. What he might do, what he could do is say, I hereby

sentence you to 18 months in prison, sentence suspended until 30 days after you're no longer president of the United States. That could happen. That's what I think will happen. And that's my personal opinion, Laura. I think that Mershon's decision on immunity and sentencing is the same whether he wins or loses and he's going to give his ruling on, he's just going to do it all after the election. If he wins or loses, it's going to be the same. If he wins, I think he'll still sentence him. I'm with you.

I think he'll be like, please file a motion. Please file your motion to postpone sentencing based on the fact that you were just elected president or something to that effect. Because he's going to need to, Trump will have to appeal that through the courts. And he's got a perfectly good argument that will be upheld. I'm 100% certain. I can't be bothered with prison while I'm president of the United States. Right.

So that's what I think. I think Mershon's decision is Mershon's decision and it won't change based on the election results. Totally agree with you. And I think the overwhelming odds are that Mershon is going to find him not immune from these convictions. And that his legal judgment is what it is, whether the guy's elected or not. But the implications of detention, it would postpone any opportunity for detention and

he's going to appeal it anyway. So even if he didn't, if he wasn't running and was sentenced to some form of detention, that sentence would likely get held pending the resolution of his appeals. So, yeah, maybe. Yeah, that happens. Yeah. All right. Next, next question is a new, the new. I love that. Right. FNU, LNU, which stands for first name unknown, last name unknown. That's right. That's some good old fashioned cop jargon for you. Cop and agent jargon.

Um, no name on that one. But Faneu says, first, thanks for all your hard work. I look forward to Sunday so I can listen to the new episode. My question pertains to the January 6th insurrectionists. Could Biden possibly suspend the writ of habeas corpus to imprison any insurrectionists, especially post-election, if there is further political violence or unrest due to the election results. And then Fanou helpfully puts in the quote from the Constitution. He says, as written in the Constitution, Article 1, Section 9 states, quote, the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion or the public safety requires it so

Great question and I like that. He's raised this constitutional issue and thanks for the putting Article one section nine right in there habeas corpus is of course the writ that protects a defendant gives a defendant ability to course, the writ that protects a defendant gives a defendant ability to go into court and challenge their detention. Right? It means produce the body, means basically bring the defendant into court and give them the opportunity to make the case that they've been unlawfully detained. The president has the ability to suspend that writ, but only as it's described there when there's a rebellion or an invasion or public safety requires it. There's a couple of landmark cases on that. There are cases that basically have held if

the federal courts are open and functioning, then you cannot suspend the writ of habeas corpus, right? So the first big case, I think it was Ex parte Milligan. Milligan, who was detained during the civil war, complained that he was put into military custody and he should have been in regular civilian custody, right, in the federal court system. And the courts basically went his way. So there are some rulings on that. I think in this case, on the facts that Faneu has given us, I think it's almost impossible to imagine Biden ever doing this. Biden does not want to be the president that suspends habeas corpus.

Trump would suspend habeas corpus saying in cases of rebellion or invasion, he would say the immigrants are invading our country and he would most certainly try to suspend the privilege of habeas corpus. Allison, I have done dozens of interviews in the last couple of months on this question of what does the revenge tour look like if he's elected. And there's been a lot of writing on it and I somehow I'm everybody's favorite expected victim of the revenge tour, I guess. So I get asked the question a lot. One of my things that I've told people repeatedly, I don't

think people are being creative enough in the way that we think about what that might look like, how it might happen, and therefore what your options would be if this actually comes to fruition. If he's reelected or if he's elected president, and I think, take the guy at his word, he said a million times he's going to do this, I absolutely think he'll do it. And one of the ways I think he could would be by suspending habeas corpus, writing a presidential order saying, I hereby suspend habeas corpus and authorize the temporary detention of individuals who present a threat to national security. Something vague. And that would give him the grounds that he needs to send out, you know, to start locking people up and putting them in places where they did not see federal judges.

They did not go into court. They were not able to challenge their detention. And that would be very hard to unwind. I think eventually we would, but that would take a really long time. Yeah. And until he gets the power of the Supreme Court, which is why I don't understand why they keep giving him all these concessions. Anyway, yeah. Frightening thoughts to end the show with this week. One more quick peek at the docket because I'm a docket watcher like that.

And nothing. So we're gonna keep. We're gonna keep you posted. I'm on the edge of my seat when you do that every time. I go, oh my God, is it coming? We're gonna keep you posted on the 11th Circuit Appeal from Jack Smith and the responses that are due by the appellees, which are Trump, Nauta,

and Deo Lavera as soon as they happen. But thanks so much for listening. We really appreciate it. And just an apology to our patrons. Our patron account got suspended. So thank you for coming and listening to this on the public feed. We appreciate you.

And thank you so much for finding us. We will work out the suspension of the Patreon thing probably when office hours start again because they suspended it on a Friday and left us in the lurch all weekend. That's so not convenient to us. But yeah, for sure. Well, we're going to push back on that and see if we can come to some sort of resolution. But for the meantime, grab your copy of the show wherever you like to listen to podcasts the most. Yeah. All right. Thanks for your questions. Again, if you have one, there's a link in

the show notes. You can send us a question by clicking on that link. Do you have any final thoughts today, Andy? No, I was a little bit disappointed that we didn't get the big response to the 11th circuit brief, but you know what? We hold that one over for the next few days, likely by the end of the week, but who knows? That's the big thing I'm interested to see. So fingers crossed we'll get it soon. Yeah. And happy 100th show. We have one more show to go before the election is decided. So everybody, all gas, no breaks, go vote and make sure to take everyone you know with you. My new thing, Andy, is I get all of my low propensity voter friends trapped. I hold them hostage in a group text message and I just text

over and over again. I say, I'll stop texting once you tell me what your voting plan is or let me give you a ride to the polls. I just, I do that because those group texts, you can't leave those man. They're awful. They're awful. You're trying to do something on your phone and the little notifications keep coming. It's awful. You know what you could try? You could write up a petition and ask them if they want to sign it, you give them like five bucks. You do a raffle every day. I'll do a lottery. I don't think that's illegal, right?

I mean, come on. Who would do such a thing? That was a pretty smooth move though by Garland to be like, Saturday, Elon Musk is like, I'm doing a lottery for voters in Pennsylvania. Sunday, Merrick Garland calls in the public integrity unit. He calls in the voting unit. He sits down. He's like, what do we do guys? And he goes, well, we've got to open an investigation, right? Because he's breaking the law. Yeah. We should send him a letter to make sure he knows he's breaking the law. Because then we won't have a hard

time proving intent. Because we won't end up with a Don Jr. too dumb to crime situation. I think that was the purpose of that letter, was to be like, I am informing you that this is illegal. So then what's he do? He gives away another million bucks over in Michigan, but this time he calls it on-call pay for election workers instead of a lottery or paying them to vote, but it still falls under the statute.

I'm not sure what Garland's next move is. Maybe he'll sue to enjoin. Perhaps he's putting together a grand jury. I don't know, but we'll see. That was a pretty, pretty rapid response on a Sunday afternoon. It really was. The letter is like the brush back pitch, right? You know, that's most people.

You see those a lot in Farah cases. You get information. I'm sticking a man for it where they're like, hey bro, you're gonna want to register as a foreign agent This is happening you better register people typically take those very seriously, but we'll see this guy likes a fight. So You may not go down so little Butthole. All right. I'm not gonna swear on the main episode of the jack podcast Anyway, thanks so much my friend. I'm not going to swear on the main episode of the Jack podcast. Anyway, thanks so much, my friend. I hope you have a wonderful week. I hope all of you have a wonderful week. And again, click that link, ask us any questions you want. We'll see you next time. I've been Alison Gill.

And I'm Andy McCabe.