Jack - Episode 105 | Without Prejudice

Episode Date: December 1, 2024

This week; Judge Cutkan dismisses the election interference case against Trump without prejudice; Ken Paxton’s shredder truck lawsuit is dismissed; plus listener questions and new name suggestions.Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ 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

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Welcome to episode 105 of Jack, the podcast about all things special counsel for now. It's Sunday, December 1st, 2024. I'm Alison Gill. And I'm Andy McCabe. Next week will be a cooking show. No, I'm kidding. It's not actually going to be a cooking show. Special counsel Jack Smith gave himself until December 2nd to inform both Judge Chutkin in the DC district and the 11th circuit how the DOJ is going to proceed in both cases. But on November 25th, he filed motions to dismiss the charges against former president, now president-elect Donald Trump.

Yeah. And we'll go over those motions and the court's response, both of them. Plus, we have reaction to Ken Paxton's lawsuit. Remember the paper shredder truck that he heard? There were photos of a paper shredder truck out front of Maine Justice. And the response is coming from a Trump appointed judge, because they judge shopped for this particular judge.

And then we'll take some more listener questions. And of course course your recommendations for a name for the show going forward. You can submit your questions and recommendations for names by clicking the link in the show notes. But before we get into the court filings and the questions, it's time for another installment of Good Week, Bad Week. Andy, what do you got this week? I mean, it's almost impossible to begin this conversation in any way other than acknowledging the incredibly bad week for Jack Smith and I got to say his entire team. I mean, this is just a very, this is not the end I think that anybody wanted.

And I don't say that to mean like these guys were out for blood from day one, because that's not really how it works. But I'm sure that they were convinced as to the strength and righteousness of their case, and they were anxious to see that case go to trial and let the evidence be heard by a jury and a judge and the American people. And now it seems overwhelmingly likely that that day will never come. So all the blood, sweat and tears, the many, many late nights, lost weekends, the threats, the persecution, the swatting, everything that that team has...

Years long privilege battle that had to be waged in the courts, everything. Everything they've had to endure and yet they've consistently produced at a very high level, high quality work product and really persevered through a lot of obstacles. But yet here we are and that's an unfortunate resolution, I think. Yeah. Bad day for justice, bad week for justice, and accountability. And Jack Smith in these motions, and we'll go over them shortly, seems to, like, if you read between the lines, he seems really upset that this has come to pass. Like you can kind of read it in his assertions, what he says

he went and talked to the OLC and Maine justice about the fact that, you know, he brought up and again, we'll talk about this in detail in a bit that he felt he had a strong case and the merits were great. And this has no asking to dismiss has no makes you know, has no reflection on the merits of the case or the strength of the case, both cases or the gravity of the crimes in both cases. And so he seems like, you know, we're in a, he reiterates we're in a very unprecedented situation that we had to get, he had to go and get clarification from, from OLC about. And that he seems really adamant to maybe not necessarily bring these cases again in 2029, but at least balance the imposition that an indictment would have on a sitting

president with the fact that no one's above the law. And those are the competing questions he has to deal with. So we'll get into that. But I have a question for you, Andy. Do these motions to dismiss from Jack Smith kind of cover everything he wanted to tell the courts by December 2nd? Because I know he went in and specifically asked to have until December 2nd, but then he came in and filed these motions early, like November 25th. So do you think we'll see anything additional on December 2nd, which is tomorrow as you're listening to this on Sunday, or was this what he was planning on doing by

December 2nd? Do you know what I mean? Yeah, that's hard to say. But my strong sense is that this is it. This is the entirety of what he needed to do by December 2nd. The fact that he was able to get it done a little bit early just shows that he had a little bit more time than he needed to work with. Probably maybe he got his final responses back on the last few questions from OLC earlier

than he anticipated. Also getting these things dismissed, which has now happened, frees him up to work on the report if they are working on a report. So I think probably we won't see anything else specifically on this on December 2nd. That's my guess, but we'll have to see how the day rolls out. Yeah. And in speaking of the report, there was some reporting I saw on social media that

Newsweek put this out, which is not normally a source that I go to for news, but they wrote that Jim Acosta had reported on CNN that a source in the Justice Department or a source close to the Justice Department, they weren't very specific, had said that Jack Smith plans to file reports on these things. And so I hadn't really heard, I wasn't able to find anything else about that. So I'm a little trepidatious to go ahead and say, for sure, he's going to file a report. It makes sense that he would, and it makes sense that Merrick Garland would release it. But I could also envision a scenario where the Department of Justice and Merrick Garland's like, well, we don't want to get too political and he's going to be president.

So we should probably not release this, which would, I think, make a lot of people extremely angry and rightfully so. I can think of two. What was that? I can think of two right off the top of my head. I mean, I would be incensed if they decide to hold the report for political, no, we don't want to give anybody a black eye before... Maybe OLC or Merrick Garland decides that releasing this report on an incoming president

would unduly burden him and his ability to exercise the you know by the Constitution the ability to exercise his job and his functions and his duties as president and I think that that would be a very bad mistake but you know this this DOJ so far in at least in my opinion hasn't shied away from the no man is above the law thing. I mean, they've consistently, you know, again, we'll talk about the motions to dismiss and how they want to leave the door open even if it's just a tiny crack, but not, you know, get rid of these cases forever and making the point that, you know, Trump's immunity is temporary as a sitting president. But him going around the FBI to get search warrants from post office cops and the inspector

general, him pushing back on the FBI who didn't want to execute a search warrant on Mar-a-Lago, pushing forward with that. The first day Lisa Monaco was on the job, she went in and expanded the search warrant application on Rudy Giuliani's things to include January 6th, because before it was just for his Ukraine stuff. So they seem like, and then he put together, Merrick Garland and Monaco put together what they called the investigations unit in June to start investigating the lieutenants at the Willard all the way up to Trump if necessary.

They seem pretty bold in their actions in that way, but in other ways, particularly with the FBI, which is part of the DOJ. You and I have talked about this, Andy. They really were very cautious because of the quote unquote black eye they got in 2016 with the Comey thing and the Mueller investigation. And so that's why they were extra, extra cautious. So I'm interested to see what happens here. If a report is written, whether it's released and if there are reasons, if they decide not to.

Yeah, I, I'm quite confident a report will be written and submitted to the AG. It has to be under the regulations. That's what's called for. Now, that, as we discussed, I think last week, that could be a very terse, short to the point statement in the form of a letter, or it could be an extensive report that actually talks about the evidence and the charging decisions and things like that and with detail. We don't know what that's going to look like. And then the next question is, whatever it is, what does Garland do with it? I agree with you and your sentiments of that he should release it. No matter what it says, he should release it promptly. So regarding the Acosta, the alleged Acosta reporting, that seems kind of, it seems hard

to believe because Jim is not really the guy that breaks the news at DOJ. It's typically Paula Reed or it's Caitlin Polantz or, you know, there's a whole number of, or Evan Perez, there's a whole number of really great reporters that are focused on justice all the time. And Acosta is really more like White House focused in terms of his source base, I think. And also think like I would have been called in to talk about it at some point, which I have not been yet. So I guess that's probably a misfire, but we'll see. We'll see.

I'm sure that they've got everybody who even thinks about DOJ hitting up everyone they know to get a sense is a report and when are we going to get it? So we'll see. Yeah. And what Jack Smith did this past week, whether he did it early, you know, before December 2nd or something else is going to happen on December 2nd that we don't know about, it is in line with what you and I imagined was going to happen, except for one thing.

And that's the 11th circuit We were kind of of the mind that he would just dismiss the whole case But he didn't he only dismissed it With regard to Donald Trump and and it has left to the appeal With Nauta and de Oliveira to stand we'll talk about that in a minute as well. But even though we saw this come in, this is what we were expecting him to do. Even despite that, knowing that it was coming doesn't really make it any easier. It's a sad day for justice. Now, you and I were kind of of the mind that justice was sort of took a shot in the heart when the Supreme Court released their immunity ruling and then everything else would just unravel from there. But this act of dismissing the charges, it's hard.

Yeah, it really does. It really does. You just feel like, oh my God, it's so much time and effort and wasted and for such a good purpose to actually take a stand for the rule of law and the fact that no one is above the law, not even the richest and most politically powerful among us. And that have got these very contradictory responses to those notions, particularly the Supreme Court and the immunity ruling basically saying, yeah, one guy is, one person is above the law and beyond really any sort of meaningful accountability. So it's been a series of tough decisions to have to kind of process and figure out what the next steps will be. Now we know where this thing pretty much ends for now. And yeah, it's none of

us wanted to, didn't, it's kind of a trial with a judgment for Donald Trump to me would have been more satisfying than this. Right. You know, it's like, well, nothing ever really got heard. No one, people didn't even get a chance to hear the evidence in a clear way and to make their own decisions, which I think is the most important part of the process, full stop. But oh well, we don't get it here. So we'll have to just keep moving on.

Yeah. And you can, like I said, you can read in between the lines and hear the exasperation in Jack Smith's writing with how this all turned out. But you know, I mean, we had a 34 felony count conviction. Yeah. Didn't make a lick of difference in this election. So I don't know if being a doubly convicted felon would have made it any different, but it is a federal case. It was the biggest case, honestly, the case of the century, because it was a president trying to overturn the results of the election and cling to power. And so here we are, and you're going to hear this in Jack Smith's writing and we'll go over those motions,

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to donate or find out more. Welcome back. Okay, let's take a look at Jack Smith's motion to dismiss the 2020 election subversion case. The motion was filed with Judge Chutkin in her court where this trial was supposed to start last March until the Supreme Court stepped in and ultimately granted Trump immunity. Yeah. And it's interesting because Jack Smith teased this up in such a way so as to preserve the case until 2029. And even though you and I have talked about the slim to zero chance of another attorney general reviving the case in 2029, Jack Smith appears adamant about

the temporary nature of Trump's immunity as sitting president. And he even covers what you brought up last week, Andy, about possibly tolling the statute of limitations so that this case could be brought again. But again, I'm not so sure it's because he wants to preserve the case for someone else to bring, or he just wants to preserve the idea that no one is above the law and make sure that that is taken into consideration when moving forward. Yeah. I think you've hit the nail on the head. I think it's an effort to continue to hold on to this idea despite the setbacks of adverse judicial rulings, the Supreme Court being the most notorious among them. But yeah, so he also indicates in the filing that there was a lot of discussion with the

department about how to proceed. So he writes, it has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting president. But the department and the country have never faced the circumstance here where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected president. Confronted with this unprecedented situation, the special counsel's office consulted with

the department's Office of Legal Counsel, that's OLC, whose interpretation of constitutional questions such as those raised here is binding on the department prosecutors. Yeah. So he makes a point to say, I have to follow this. That's right. And he goes on to say, after careful consideration, the department has determined that OLC's prior opinions concerning the constitution's prohibition on federal indictment and prosecution

of a sitting president apply to this situation. So even though we've never had a private citizen indicted and it was already underway, and then he was elected president, even though we've never had that before, the OLC says it still applies to this situation. And he goes on to say, and that as a result, this prosecution must be dismissed before Even though we've never had that before, the OLC says it still applies to this situation. He goes on to say, and that as a result, this prosecution must be dismissed before the defendant is inaugurated. The prohibition is categorical and does not turn on the gravity of the crimes charged,

the strength of the government's proof, or the merits of the prosecution, which the government stands fully behind. Based on the department's interpretation of the constitution, the government moves for dismissal without prejudice of the superseding indictment under federal rule of criminal procedure 48A. The government has conferred with defense counsel, Trump's lawyers, who do not object to this motion. Yeah, it's really important that Jack Smith reminds the court that his motion to dismiss

has nothing to do with the strength of the case or the merits of the prosecution. That's the ground that he is really defending here. And it's not just because, oh, he's defending his work in some sort of personal defensive way. I believe it's his last opportunity to stand up for the principle that these things happened, the process was righteous, the decision of the grand jury was honorable, and the government was capable and willing and going to back up that decision and argue for a criminal conviction based on significant proof that exists in this case. It is simply the imposition of this policy under totally unique circumstances that basically makes that impossible.

Yeah, his hands are tied and he seems really pained having to do this. But D.A. Alvin Bragg in the 34th felony counts case said as much. He said basically the same thing. Like, look, I understand that a prosecution includes sentencing and so we can't sentence a guy who's about to take office because the constitution says we can't encumber him with things that will prevent him from doing his job as president. But on the other hand, I can't just dismiss the importance of what the jury has come in with as a verdict. And so we can't just throw that all away. We have to balance that no one is above the law

and the rule of law matters with this constitutional idea that you can't prosecute, sentence, indict, and hold in abeyance a sitting president of the United States. And so they both are kind of making the same argument. But then Jack Smith breaks down the questions he discussed with the Office of Legal Counsel. First of all, there's two memos, okay, that talk about this, right? Prosecuting a sitting president. One's from 1973 and one's from the year 2000. And they both address whether you can

indict a sitting president. So we know DOJ can't indict or prosecute a sitting president. But what about, like you said, a private citizen about to become president? We've never had that. Probably, Andy, because no one thought we'd ever be in a position where we would elect someone who's been indicted by the federal government. Well, there is that. I mean, conventional wisdom no longer applies. But okay. Right. Because the OLC did consider, well, what about just indicting a sitting president and then holding it into a, into a, into a abeyance until he's out of office? Like what about that?

Everyone's like, no, no, you can't, you can't have, this is back in 1973 and 2000, you can't have an indictment waiting for a president when he gets out of office. Cause just the, the thought of having to deal with that could encumber his ability to do his job. This is what's written in the motion to dismiss here. Jack Smith writes, OLC concluded that because a pending criminal prosecution would impair the president's ability to carry out these responsibilities to the detriment of the nation, the constitutional interest in the president's unfettered performance of his duties must

take precedence over the immediate enforcement of the criminal law against a sitting president. But Jack Smith points out that both OLC memos also recognize that no one is above the law. So to make sure that that core tenet is preserved, both OLC memos concluded that, quote, because a sitting president's immunity is temporary, extending only so far as his term in office, it would not subvert the important interests in maintaining the rule of law. So that's how the OLC kind of gets around this idea that no one, you know, to preserve that no one's above the law. It's like, well, he's only temporarily there. Right. And so that was actually from the 2000 OLC memo. And the 1973 memo said this form of immunity, meaning not being able to indict a prosecutor,

sitting president would generally result in the delay, but not the forbearance of any criminal trial. Yeah, exactly. So Jack Smith is acknowledging here that we can't simply get rid of the cases So, Jack Smith is acknowledging here that we can't simply get rid of the cases because that would ignore the idea that no one is above the law. And DOJ is bound by both ideas that you can't indict a sitting president, but also that you can't just ignore the rule of law. So, with that in mind, Jack Smith asked the OLC about holding the cases in abeyance rather than dismissing them for the temporary term of office held by the president. The OLC pointed to the two previous memos for

that answer. He writes, while the 1973 OLC opinion did not reach any conclusion on this question in 2000, after balancing the competing interests that would arise from a federal indictment brought against the sitting president, OLC concluded that, quote, a sitting president is immune from indictment as well as from further criminal process and that the constitution would thus prohibit an indictment even if all subsequent proceedings were postponed until after the president left office. All right. So you can't indict a sitting president and you can't hold an indictment over a president

in abeyance, which leaves- Or any aspect of the process, right? Right. Anything about it. You can't just like pause it, let it sit there. Right. That's why when people were back during the Mueller investigation saying, well, maybe he's filed some indictments under seal.

No, the OLC says you cannot indict a sitting president under seal, in abeyance, anything like that. So that just leaves dismissal. But then Jack brings up the statute of limitations question that you brought up during last week's episode. And that's in the old memos as well. They actually cover this and then considered it back in 73 and 2000. And they say they write, but OLC recognized

that the interest in avoiding a statute of limitations bar by securing an indictment during the presidency is a legitimate one. And so basically what they're saying is, we know we just told you, you can't indict a sitting president under seal and hold it in abeyance. But we also understand there's a statute of limitations problem. Right. And they go on to say, and it noted the possibility that a court might equitably toll the statute of limitations to permit proceedings against the president once out of office. Yeah, that's right. And of course that just means like basically stopping the clock on the statute of limitations until he's out of office. So you can indict him once he's out of office and say, yeah, the crime happened five and a half years ago, but we need to toll the statute of limitations for when he was in

office because we weren't allowed to indict him when he was in there. Correct. Yeah. So Jack Smith concludes with this. Neither the 1973 nor the 2000 OLC opinion addressed directly a federal indictment that has already been returned against a private citizen prior to his election as president. The special counsel's office therefore sought OLC's guidance on whether this case must be dismissed or whether the pending superseding indictment against the defendant could be held in abeyance until he is no longer immune

from prosecution. OLC concluded that its 2000 opinions categorical prohibition on the federal indictment of a sitting president, even if the case were held in abeyance, applies to this situation where a federal indictment was returned before the defendant takes office. 2000 OLC opinion at page 254.1. Accordingly, the department's position is that the constitution requires that this case be dismissed before the defendant is inaugurated. And although the constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting president, it does not require dismissal with

prejudice. So in order to make sure that we maintain the idea that no one is above the law, we can't close this case down completely, but we also can't hold it in abeyance. Yeah. And at some level, it's like he's arguing for this purely out of principle. It could be, yeah. He doesn't want, he's not going to give up the idea. He's not just going to walk away, throw his toys in the box and go home, right? He's going to fight for this idea that this was a valid case, that there is a need for

society to be able to hold people accountable who have been credibly accused of crimes by a grand jury. And he's just not going to let go of that. All right. He's incredibly accused of crimes by a grand jury and he's just not going to let go of that. All right. And Barb McQuade actually wrote for MSNBC, she said, is this simply an example of what historian Timothy Snyder calls obeying an authoritarian in advance? But she says not at all.

In fact, this move could be an effort to keep the cases alive in the long term. An interesting tell in each motion is Smith's request to dismiss the cases without prejudice. And that means that the case can be filed again by dismissing the case now on his own terms. Smith blocks Trump's attorney general from dismissing the cases for all time. So Barb McQuaid seems to think, you know, this isn't maybe just about getting it right on the rule of law, but also there is a chance that somebody in 2029 could come in and reopen these cases. But let's talk about that because if you want to bring this case back, first of all, we'd have to win in 2028. Then the new attorney general would want to, after looking at everything and how old it is, would want to actually bring the charges again. And if they did, then that new attorney general would

actually have to litigate for the first time in history whether a president's term in office tolls the statute of limitations, because Trump would file a motion to dismiss on statute of limitations grounds. And then the DOJ would have to say, no, we need to toll this. We've never had this before. And then we'd have to pick back up with the immunity and hope the second interlocutory appeals survives the Supreme Court. And then the Supreme Court would actually also have to agree to toll the statute of limitations. So that seems like a really heavy lift.

It's a lot. It's a lot. It's a lot. There's so many issues in there that would find their way in front of the Supreme Court. That of course raises the specter of absurd judgements. A new rule for the ages, right? Trump's favor always. So there is that. There's also the very real, I'm not going to say, I want to say the political reality

of it. And it is partially political, but it's also just significant in and of itself. And that is a question as to whether or not a democratic, a future potential democratic administration would want to go down this road, would want to re revive these cases, cases that presumably those people had no connection with. And, you know, doing so while many of us would believe likely that this would be a strong statement in support of the rule of law, others would no doubt see it as political retribution. Right? Yeah. I would, I would bring it back because I would say, hey, we have to uphold the rule of law that no man is above the law.

So I would do it. I have no doubt about that. And I think a lot of people feel that way. But half the country would say, here they go. They're upping the ante on political retribution. Exactly the thing that they said that Trump shouldn't do. So I just think that it's a fair assumption that a lot of reasonable administrations, democratic administrations might say, I'm not going down that road. I am not picking

this fight. It's not worth the distraction and the time and the effort and the political capital it would take. And that's even before you get into this hornet's nest of really tough legal issues on the case specifically. Yeah. So I think it's just a, it's a huge lift. But this is why a lot of people are disillusioned with accountability because Democrats and democratic administrations play by the rules. Whereas when Trump, the minute Trump gets in with Pam Bondi, they're going to go and investigate fraud in the 2020 election. Yeah, I hear you. And they're not wrong thinking that.

And so, so I think, right. And so I think that that's something that future democratic administration might also take into consideration. But given how trepidatious the FBI was during this one, I can't imagine how trepidatious they would be on the next one too, especially after the FBI would be totally gutted probably. And it's just cash Patel and a shredder truck out front of the main justice. But we also have to keep in mind, Andy, that even if Donald Trump had lost this election, there was still no guarantee that there would be a trial here. Because as we know, once immunity was figured out and Judge Chuck can made her ruling saying

these are not official acts and they can be prosecuted, then there would be another interlocutory Trump appeal that would go all the way back up to the Supreme Court. And then we would have the Supreme Court sitting in judgment as to whether his acts in this particular case were official or not. And the government has a high burden of getting around the presumed immunity. And at that point, the Supreme Court could just kill the case and say, no, these are official acts. Sorry, Charlie, but only for this specific case. We'll keep it open for future presidents. And then that and then the whole thing would be over.

They could do that. Or I think more likely what they would do is limit it even further. And then they would send it back to DOJ. And then at that point, DOJ has to look at what meat is left on this carcass. And there's probably not much. Right. And make the determination, can we even still go to trial with what's left here? And if they battled that, then there would be a third interlocutory appeal.

It just compounds the complexity that challenges the hurdles for the government here are really very significant. And you know, you're right. It's like, we can't say like, oh, you know, Jack Smith ruined the towel and that's why we have no trial. You're right. Had he had Trump not won the election, really long and rocky road to getting to a trial. So why didn't Trump ask for dismissal with prejudice? Why did in both cases, did they not oppose? Probably because they kind of see the writing on the wall that you're talking about, about

the first of all ability of a, first of the ability of Democrats to win in 2028, but then the ability to bring it back and then get the thing told and go back up to his Supreme Court, which he paid for and installed. Like, you know, perhaps he just feels like I'm done with this. It's fine. It's over. I think that's probably right. I think this, you know, a dismissal with prejudice would have given him a like 1% greater level of confidence that this will never come back. The advantage to not opposing these motions was to get this done quickly, right? If he had, if he wanted to argue for dismissal of prejudice, then

he was going to have to submit, he's going to have to oppose these, both of these motions. He's going to have to submit his own papers. Then it drags out potentially a brief, you know, a, who knows, arguments. God knows what, how, what at least let's talk about in terms of Chutkin, what she would have required to make the decision and how quickly that could have been done. I'm sure they figured, you know what, that's a million and one chance anyway. Let's not worry about that now. Let's get the resolution we want right now in the cleanest, quickest way possible.

And that's kind of what they're getting. Right. Because she said in her decision, here's what you have to do to dismiss with prejudice. Right. And it's a million to one shot. We'll go over that after the break. But there were still a couple other questions, right, that you, that, uh, that, that you were thinking about. Yeah, there's a couple of things that I, it just, this whole process has caused me to go back to think about how I thought about this issue

of the OLC opinion a year ago, a year and a half ago, when we were talking about the time schedule and what would happen if we bumped up against running out of time. I still held out hope, which now has been completely dashed, that once presented with the issue in this case to issue an opinion or give guidance to the special counsel, OLC might take the opinion that, well, this is different because this individual ran and was elected while under indictment. And so you can't, it's harder to make the argument that, oh, you're depriving the people of their elected president when you had full notice when he was running that he was under indictment and might be prosecuted and who knows, maybe he gets convicted.

But what they did was they took, and I should have assumed they would all along, a strictly like a hardcore constitutional approach to it. It's not so much about this concept of what do the voters deserve. It's more about what does the constitution require. So I feel like that notice issue really kind of fell away at the waistline. But finally, the last thing that really occurs to me is like, But finally, the last thing that really occurs to me is like, and I know folks are probably already thinking about this, it does in a very maybe rare set of circumstances, but nevertheless, the cumulative effect of all of this

from the Supreme Court's immunity decision all the way down to the OLC's position in this case about no indictment, no prosecution, no hanging it over his head. It does create an incentive, a bizarre and counterproductive incentive for people to run for president to escape criminal liability. And I know you're going to say, like, people will say, oh, like, who would possibly even be in a position to take advantage of that?

Well, I don't know. Any one of the billionaires in this country that are in the political game, you know, deep now, you know, fully engaged in politics. And it takes us one step closer to a situation like you see in Russia, right? Where it's a broader scope of immunity there. It's like the Duma, which is basically the Congress in Russia. Every person elected to the Duma gets criminal immunity for the period of their service in the Duma, in the Russian Congress. And so it's like, it kind of gets us a little bit closer to that idea, which I think is so fundamentally anti-democratic. It's okay to have an anti-democratic

rule in Russia, because you're not a real democracy, but we're not actually supposed to run ourselves that way. And I feel like we're sliding in that direction a little bit with this, which is, you know, throws a little bit of salt on the wound, I guess. Yeah. And not only that, not only does it create an incentive for rich people to run for office to avoid criminal prosecution, but it also creates an incentive for rich people to run for office to be able to commit crimes without being able to have it reviewed judicially under the new immunity thing. And that's what Sotomayor and Justice Jackson were talking about in those oral arguments, you know, with fear for democracy, I dissent.

Yeah. All right. We're going to go over what Judge Chuckkin said and, you know, the high bar of dismissing with prejudice, which she did not do. And we have another story, too, about the paper shredder. But we have to take a quick break. So, everybody, stick around. We'll be right back.

Hey everybody, welcome back. All right. On the same day Smith filed to dismiss the DC charges, he also filed to dismiss the documents case with the 11th circuit for the same reasons. He wrote, as a result of the election held November 5th, defendant Donald J. Trump will be inaugurated as president on January 20th. For the reasons set forth in United States v. Trump filed November 25th. So for the reasons I did this over in Judge Chuckin's court, I'm going to do it here too. The United States of America moves pursuant to federal rule of appellate procedure 42 and 11th circuit rule 42-1 to dismiss the appeal in this case as to defendant Trump. Dismissing the appeal as to defendant Trump will even place the district court's order dismissing the indictment without prejudice as to him. The appeal concerning the other

two defendants will continue because unlike defendant Trump, no principle of temporary immunity applies to them. The government has consulted with counsel for defendant Trump who do not object to this motion. Now, shortly after that, the 11th Circuit granted this, but Andy, why did he leave the appeal as to Nata and De Oliveira in place? I thought he was going to just get rid of the whole thing. Will he even have time to try to get Judge Cannon's dismissal for the co-defendants overturned? And if he does, I'm sure Trump's new DOJ isn't going to defend the case to the Supreme Court, the new Solicitor General. Sauer isn't going to be in there arguing to bring this case back online. So I don't really, I don't know if I understand the-

I think it's a really important move. It's one that might be thwarted down the road, but it was a really important move now. And the reason that he did it was, let's remember the posture of this case, it's already dismissed. And the only person that has a continuing interest in it is the prosecution, the only party I should say, because they have the right to appeal that dismissal, which is what they did in the 11th circuit. So getting rid of it is really in there, you know, how it gets, whether it gets dismissed entirely or just gets trimmed down, meaning, you know, dismissed as to Trump and leaving the others is entirely the prosecution's choice.

And by letting it continue to a judgment by the 11th circuit with respect to the other two, you could get a very important opinion for DOJ as to the efficacy and the funding of special counsels in the future. It's not going to mean anything to this case, but it's really important that DOJ get a resounding rejection of Cannon's opinion dismissing the case. Now, is it possible that that doesn't happen quickly enough? The new team comes into DOJ and they turn on day one, they call up the 11th circuit and dismiss the case with respect to those two?

Yeah, it's entirely possible. So it could still get derailed But I think this is Jack Smith's attempt to get some kind of a decision out of the 11th circuit Before the lights are shut off. Yeah, because I know a lot of our listeners asked that question on multiple occasions Like what are we just gonna leave that hanging out there? That the decision from Judge Cannon that special counsels should never exist, we're just going to leave that hanging? Yeah. And, you know, and this actually might not, well, because it's in a different district, it probably won't, but it could have implications for other special counsel cases that maybe

the Trump administration wants to keep going forward, like the Hunter Biden stuff and any other special counsel he wants to appoint. This is DOJ just being a good steward of their own authority, right? And yeah, if the 11th circuit walks away without deciding this, Judge Cannon's decision remains. It doesn't really have any sort of significant president presidential effect, as we've talked about many times before. But nevertheless, it would be better for DOJ to get an authoritative appellate court to reject what she said. That would lessen the likelihood of defendants of special counsel investigations raising

the same stupid argument again and again and again in the future. So they're just trying to clean that up. Whether or not that'll be successful, who knows, but you don't make any of the shots that you don't take. Right. Now the 11th Circuit just issued a one sentence thing, motion granted, right? Which leaves in place Judge Cannon's dismissal without prejudice. So we're

at the same situation as we are with the other case. But Judge Chutkin writes for Jack Smith's filing to dismiss in DC, she said, dismissal without prejudice is appropriate here. When a prosecutor moves to dismiss an indictment without prejudice, there is a strong presumption in favor of that. And then she cites case law. A court may override the presumption only when dismissal without prejudice, quote, would result in harassment of the defendant or would otherwise be contrary to the manifest public interest. And that's why I thought it was weird that Trump didn't try to move to dismiss this with

prejudice because he feels like he's been harassed to the nth degree. She says, as already noted, there is no indication of prosecutorial harassment or other impropriety underlying this motion and therefore there's no basis for overriding the presumption. And the defendant, Trump, does not seek the court to do so, doesn't ask the court to do it. Dismissal without prejudice is also consistent with the government's understanding that the immunity afforded to a sitting president is temporary, expiring when they leave office. So she's on board too. She's planting the seeds of his four year nightmare. So accordingly, this court will grant the government's motion. A separate order will

accompany the opinion. So that's what Judge Chuck can rule. And so both courts, so now both are dismissed against Trump only without prejudice. That's right. Because you have to uphold the rule of law. And so that's, that's where we're at. So, all right. If something else happens tomorrow on December 2nd, we'll tell you about it on the on next week's episode. But what's going on Andy with good old Ken Paxton and his shredding truck? Well, I mean, as you know, last week we discussed the lawsuit brought in Texas by A.G. Ken Paxton asking the court to order Jack Smith to preserve all evidence because he saw, oh my gosh, a paper shredder truck parked outside of Maine Justice, which is of course the wrong building

because Jack Smith doesn't work at Maine Justice. But nevertheless, that was his reason for filing this. And so we have an update from the Washington Post. They say, a Trump appointed federal judge in Texas has rejected the state's long shot attempt to temporarily block special counsel from destroying records related to his investigation into president elect Donald Trump, calling the state's argument, quote, unserious, to become one of my favorite words. I'm using it all the time now, so I'm so glad that they put that in there.

Okay. Texas Attorney General Ken Paxson, he's a Republican, had asked US DistrictS. District Judge Matthew J. Kasmaric to order Smith to preserve the records, including any communication Smith's office had with a, quote, range of outside parties and information regarding the cell phones assigned to Smith's team, among other items according to the complaint. Such requests can be a routine first step in congressional inquiries, law enforcement investigations and litigation. Three days after Trump was elected president, House Judiciary Chairman Jim Jordan and Representative

Barry Loudermilk asked Smith's office to preserve all records of his classified documents and election interference probes, an early sign that they were planning to investigate his work. That is very common and typically referred to as a records preservation request happens in most federal investigations. Right, like asking the Secret Service to preserve their text messages, but then having the Secret Service IG sit on that for eight months and then come and tell Congress, oh, they were all deleted just magically during a software update on phones that happened a week after January 6th. Yeah.

Uh-huh. Same thing. Same, same thing. But Paxton, this is the article, I'm going back to the article, but Paxton does not have any clear jurisdiction to launch such an investigation. He said in his lawsuit, he had requested the records under the Freedom of Information Act request and that he was concerned Smith had destroyed or is destroying or plans to destroy those records.

As proof, Paxton cited, quote, widely shared photos, unquote, showing a paper shredding truck parked outside the Justice Department headquarters in Washington. Kazmarek, who is by the way, the judge you go judge shopping for in North Texas. Kazmarek dismissed Paxton's claim on Monday, noting that the truck could have been there for a variety of reasons. Broke down, buying a hoagie, who knows? Quote, this claim is unserious. That's what he wrote in the four page order.

Defendants could shred paper for many legitimate reasons and plaintiffs had proffered nothing to suggest more nefarious intentions, unquote. Conservative groups and Republican officials like Paxton have targeted Casmaric's courthouse in a practice called judge shopping. Knowing any lawsuits they file there will be assigned to him. And like anti-abortion, he's an anti-abortion judge. He's the one who got the Miffy Prestone case going and believing that he would probably rule in their favor

if they filed in that district. But the judge did not do so. In his lawsuit, Paxton also argued that the Federal Records Act of 1950, which governs the collection, retention, and preservation of federal records, prohibits Jack Smith from destroying documents related to the special counsel investigation into Trump and judge Casmeric was like, yeah So we go to assume that they're following that law

So what's the problem have some evidence other than a photo that you have seen of a paper shredder truck? You know get out of here. You're unserious. So he actually Casmeric, Casmeric actually was like, nah, bro, even this is just too stupid. This is too dumb. Even for me, this is like a Rudy Giuliani. We don't have any evidence, but we have lots of theories. Well, that doesn't really cut the mustard in Casmeric's court apparently. No, no, it doesn't. All right, we have some new show name ideas submitted by listeners, plus your listener questions. And we're gonna get to those,

but we have to take one last quick break. So everybody stick around, we'll be right back. Bum bum bum, ba da da da da da dum. Ba da da da da da da dum. Ba. Okay, and we are back with listener questions. And again, AG, we're getting flooded with these, which is so awesome to see. Appreciate all of your time and creativity. We're going

to get to the creative part later, but let's hit some of the questions. Okay, the first one comes to us from John. John says, Hi, A.G. and Andy. I absolutely love the wisdom and knowledge you bring to us each week on the Jack podcast. Thank you for helping us all make sense of these crazy times. I was hoping to get your thoughts on the idea of President Biden issuing a self-pardon before leaving office. I feel this would serve two critical purposes. First, it would act as a safeguard against any potential retaliatory prosecutions by

the Trump administration. Second, it would set a critical precedent for the constitutional debate surrounding self-pardons. If former President Trump, or President-elect Trump, were to attempt a self-pardon in the future for the real crimes he has committed or for the crimes he will no doubt commit in the future, having President Biden take this step

would force a resolution of the issue providing a necessary legal litmus test. It's kind of an interesting spin, I thought. I like this. Yeah. Like if President Trump issues a self-pardon and it gets litigated and the Supreme Court says, no, you can't pardon your damn self. No. And then we know that Trump can't do it either, but maybe they'll find a special way to have Trump do it. Yeah, forces the- But then if it doesn't, then he gets a self pardon and he can't be prosecuted. Although I will say this, I don't think that there are still some guardrails in place like grand juries.

Somebody that I know had an experience with that of trying to bring charges for nothing twice and failed with the grand jury. So I don't, you know, and the other thing working against this idea is that President Biden is not the kind of guy that would pardon himself. He's just not, you know, but it's cool. It's interesting to think about. And you know, the, I think it's important to remember, you're absolutely right. I agree with you. Biden's low likelihood that he would do this is not his game. He is an institutionalist.

He's not going to issue some pardon that would be immediately questioned and probably end up as a Supreme Court issue. He probably also thinks he doesn't need one, right? There's an imperative around that as well. People who don't need one, don't ask for one. Nat Gates. He's got a good reason to think that. Number one, he now has immunity for everything he did while he was president, thanks to the Supreme Court. And number two, the things that he was being, he was never actually investigated. There was a lot of talk about investigating him, but there was never anything to predicate an investigation on. What they spoke about was the things that he may have done when he was vice president vis-a-vis

Ukraine and his son and all this nonsense. And then maybe things he might've done after he left the vice presidency, but all of that. But a special counsel named Weiss indicted But a special counsel named Weiss indicted Jim Jordan's, you know, Joe Biden informant, Alexander Smirnoff for lying to the FBI about these bribes. Right. The likelihood. Which was their central piece of evidence. And by the way, we don't even know if special counsel should even exist. So the likelihood of any of that stuff actually forming the basis of a successful investigation

is infinitesimally small. It happened so long ago, whatever you came up with would probably be barred by the statute. The only witness about this is the guy who lied and was prosecuted. It's just like layers and layers of problems. And then of course, he had, according to the Supreme Court, he was immune for everything he did while he was president. So you know, doesn't really need a pardon, I think. And it's unlikely to do it.

Yeah, self-pardoning kind of implies that you did something wrong. Yeah. And I love the quest, the way he frames the second part of the question. This like, it is interesting, would be interesting to get that issue in front of this Supreme Court with the name of the litigant being something other than Trump. We'll see where they would come out on it. But hey, we're probably never going to hear that.

It's a good question though. It's an interesting thought exercise. Next question comes from Laurie. Hi, big fan of the pod. I appreciate all the time you two put into each week. Question, what are your thoughts on what Jack Smith should or could do next in his career? Where does he go from here now that he's a persona non grata at the Trump DOJ? Thank you again.

I would retire and go into hiding or go back to work for the Hague. I kind of feel like that's the most likely outcome. I just, he's not, he doesn't- Which one, the Hague or- Yeah, going back to the Hague, which would be round three there. But he seems to love this part of the... He loves this work. And when I say this work, I mean prosecution.

He's not a guy... I mean, he did one kind of significant private sector stint after leaving DOJ, but then left that quickly. He worked for like a healthcare company as in-house counsel. And then he left that to come back and serve, I think, as acting US attorney in Tennessee, if I have that correct. So I think this is the part of the law that really draws him in.

Going and doing it somewhere other than here would probably be beneficial for his lifestyle, and his family, and everything else. Yeah, just jumping into a big firm for a ton of money here in the States, which he could easily do. I don't know, that feels kind of unlikely, but we don't know. We're just speculating. Yeah. And then let's see, we had a really good question from Marcy. Do you want to read that one? Yeah, sure. So Marcy says, in hopes of a kickass report from Jack Smith produced in a timely manner, I love that it's both kickass and timely. That's great.

It's in the regs, right? It has to be kickass and timely. Heck yeah. I almost really went over the line there. Sorry. Her use of kick ass has got me all fired up. Okay. Is it possible for Congress to get a hearing in by early January? Could you talk a bit about how confirmation hearings could be an opportunity to bring up Trump's corruption? I'm thinking regarding Pan Bondi and Todd Blanch. I love you guys. I've learned so much through your explanations of the deep weeds and just the sound of each of your voices makes listening an enlightening experience. Don't stop.

Most of all, thank you for all that you're doing. Well, thank you, Marcy. That was a super nice way to finish up your question. I think the opportunity would be to have a hearing with Jack Smith before January. That is when you'd really want to do it because that would be when this Senate under democratic rule would actually put on a hearing where you'd maybe learn some things that would be important.

That's what I agree because January 3rd is when the new Senate takes over. That's right. Now, the time clock on that is tough because we're already in December and they're going to go out on holiday break. It's probably middle of the month. And so you lose a lot of chances there. So I think it's probably not likely. However, I have no doubt that Jack Smith will be summoned to testify in both the House and the Senate at some point next year. Now that can be... By the Republicans. Right. By the Republicans. And that will be a very different hearing. Either way, it'll be a total circus and it'll be a series of speeches. I actually don't think it would be too different. I mean, the margins aren't very different. We still have

Democrats in these committees. Yeah, yeah. in these committees. And so like they're going to be asking the same questions they would ask prior to January 3rd. And then we would have a report, right? Because I don't think Jack Smith would actually go in to answer questions without having a report out because the DOJ, at least in my memory, likes to stick with a report and answer questions within the four corners of that report, much like Bob Mueller did when he went in in July of 2019 after his report was released to the public, albeit heavily and inappropriately redacted according to a federal judge. So I think that maybe on December 2nd, maybe Jack Smith drops a report. I don't know. He's probably been working

on it the whole time, but I think you need a report before you can get in to the Senate. And I think you're right. Whether we see it in this Senate or the next Senate or House, it's not going to be, the hearings aren't going to be that much different because we're still pretty 50-50 almost. Yeah, and it'll be speeches and self-righteous stuff and stupid questioning from people like Josh Hawley and

Ted Cruz that's designed so that the witness cannot possibly get an answer in and they just use the question to batter you. I speak from some experience on this. It's not pleasant and you basically walk away thinking, I didn't say anything that was even remotely helpful for anyone. But I think you're going to see that hearing. At some point, I didn't say anything that was even remotely helpful for anyone. But I think you're going to see that hearing. At some point, we're going to see that hearing. Do you think that the Republican controlled Senate and House would even want to bring

Jack Smith in for the risk of him actually revealing some stuff that they don't want him to reveal? Or do you think they want to bring him in and beat him up? Oh, I think they'll bring him in. I have no doubt they'll bring him in, but they're not going to want to bring him in right away. That's not smart. They're not going to want to bring him in right away. They're not going to want to bring him in right away. They're going to want to do some investigation first. They're going to want to get his records and

his documents. And they're going to want to then do a forensic, you know, eight hour hearing where they ask him about like emails that other people sent and stuff. So they're not going to rush in in January to try to like start their year off aggressive. They're going to take their time and build as much of a... Their goal in exactly the same way that they did and continue to do with the Russia investigation, their goal is to undermine this and to make it seem like a massive political vendetta or whatever. And so they're going to take their time putting that together. That makes sense.

And Marcy did say there at the end of her question, don't stop. Thank you for all that you're doing. And in the spirit of not stopping, we wanted to share a couple of podcast name ideas. Because we can't really have the Jack podcast anymore. It'll be replaced by something new where we're going to keep our eye on the Justice Department and the rule of law and what happens and what's going on. And of course, any of those investigations into the investigators

that are going to no doubt come up from the Republican Congress next year and probably for all four years, let's be honest. So we got a couple of really good suggestions, right? We got all things justice. Yep, I like that one. What is justice? Another goodish. Oh, just-ish. I like it. I like it. There are some that are funny, but not really good. Well, they're still good, but not probably something we could use. Right, probably not appropriate or, I don't know, that sounds too strange. It just wouldn't really work very well. Like, Orange is the New Jack is pretty funny.

Yes, Orange is the New Jack. Then we got some Latin terms, equitas, equus, things like that. Finding justice. That's a good one. Pennsylvania Avenue dumpster fire, which sounds like an unreleased Springsteen album from early career, you know. I love it. I love it. Yeah. Springsteen album from early career. I love it. I love it. Yeah.

Unprecedented, that's an interesting one. One I really like, Without Prejudice. I like that one. Yes, yes, yes, yes. Hijacked Justice. Well, jacked up. That's good. And then of course, the one by probably an academic,

Chaos Personified, Reckoning with Trumpian Government. Yeah, I mean, very complete, but probably a little bit long for the marketing folks. They'd be like, hey, you know, very complete, but probably a little bit long for the marketing folks that'd be like, Hey, come on, can we cut this down a little bit? So yeah, we'll keep you posted as to the contenders as they come in. We'll keep reading some of those off and at the appropriate time when that will be, I don't know, we will announce. Who knows how long a report could take for us to read to you. Back in the Mueller days,

the full Mueller report took like 20 episodes. We could be here until 4th of July trying to get this thing out. Yeah. So what, if he writes a report, how long it, well, he's going to write a report, but if Garland releases it before, you know, before Trump takes office and how long it is, it's going to really depend on when we kick this new thing off. But I like these. I like injustice within in parentheses, right?

And then we have the ones that we were considering already, like above the law and stuff like that. So keep sending them in. There's a link in the show notes to submit your questions and your show name ideas. And we will be back in your ears next week. And who knows? We'll be able to tell you whether or not anything happened on December 2nd tomorrow. Or if we get any more solid reporting on whether or not a report is going to be released when we might have a clearer picture as to whether or not he's going to testify in Congress before the new Senate or House takeover on January 3rd.

So we might be a little bit further along than we think we might be in another week. Yeah, I think that's possible. I also feel like we have really interesting things coming up in the future. It's not perfectly formed yet, but we know there's going to be a lot of activity at 950 Pennsylvania Avenue, right? This is where the nomination of Pam Bondi, we're going to start to see like how her picks start framing out, what happens to the people who are there, what happens to cases that we think are significant who are there, what happens to cases that we think are significant on a national level. So there's, you know, as this is winding down, I think the opportunity to go a little deeper on the business of justice day to day, how they're treating their cases, how they're

treating their people, what the new leadership looks like, where do they come from. It's going to be a lot of interesting things to talk about. So looking forward to that. Yeah. And speaking of that, the business of justice is a lot of interesting things to talk about. So looking forward to that. Yeah. And speaking of that, the business of justice is a pretty good, pretty solid podcast name. There you go. That was free. That was free. Oh, excellent. Thank you. But you can invoice me if you need. That's totally fine.

There you go. All right, everybody, we're going to see you next week. And thanks again. I know this was a rough week for justice. I know where a lot of us are feeling down, but we're going to keep on top of it. We're going to keep sharing what's going on and making sure that you know Everybody stays informed because an informed electorate is going to be absolutely necessary and important over the next four years So thank you for listening and we'll be back next week Any thoughts? Yeah. Look, it's it's tough week, but it's easy to be strong when there's only good news. What you've got to do is be strong when the news goes a little against you.

And that's where we are. So we need to stand up, remember what we believe in, and just keep following these things as close as we can. All right. Thanks, Andy. We'll see you next week, everybody. I've been Alison Gill. And I'm Andy McCabe.