Jack - Episode 42 - Don’t Call it a Gag Order

Episode Date: September 17, 2023

This week: we have multiple court filings to discuss including a narrow gag order motion from Jack Smith in the DC coup conspiracy case; a motion from Trump for the judge in that case to recuse, and the special counsel’s opposition to that motion; a DC circuit court of appeals decision on the Rep. Scott Perry phone warrant; the sealed court order from Judge Beryl Howell on the Trump Twitter account search warrant; in Florida, there are new details about what Yuscil Taveras did after De Oliveira asked him to delete surveillance footage; Judge Cannon finally approved the protective order; plus listener questions.Questions for the pod:https://formfacade.com/sm/PTk_BSogJOr Email us at [e-mail] and put “Jack” in the subject lineCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AG:Follow 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 Threathttps://www.amazon.com/Threat-Protects-America-Terror-Trump-ebook/dp/B07HFMYQPGWe would like to know more about our listeners. Please participate in this brief surveyhttp://survey.podtrac.com/start-survey.aspx?pubid=BffJOlI7qQcF&ver=shortThis 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

M.S.O.W. Media. I signed an order appointing Jack Smith. And nobody knows you. And those who say Jack is a finesse. Mr. Smith is a veteran career prosecutor. What law have I got? The events leading up to and on January 6th. Classified documents and other presidential records.

You understand what prison is? Send me to jail! Hello, I'm Allison Gill and welcome to episode 42 of Jack, the podcast about all things special counsel. And while we might not have the answer to life the universe and everything, we do have multiple court filings to discuss this week, including a narrowly tailored gag order motion from Jack Smith in the DC coup conspiracy case, and a motion from Trump for the judge in that case to recuse or to be disqualified that's Judge Chuckkin. And we also have the special counsel's opposition to that motion.

Hey, Allison, I'm Andy McCabe, as you know, and I don't know, I think we might have the answer to life, the universe, and everything this week. It's a episode 42. That's right. It's a show very packed with information. So we also have a DC Circuit Court of Appeals decision on the Scott Perry phone warrant. And we have the sealed court order from Judge Barrel Howell on the Trump

Twitter account search warrant, which you will recall. We talked about a few weeks ago. And then of course down in Florida, there are new details about what you sealed Tavaris did after Deole Vera asked him to delete the surveillance footage. And Judge Cannon, good old Judge Cannon finally approved a protective order in the case. Yay. Yeah, it's only been a couple three months. That's right. So, you know, again, nothing, I think, untoward or overly, you know, dramatic going on with Judge Cannon

at this point, nothing like we saw with the special master case, but I could see this nickel and dime delay go on for quite a while for each of these specific motions. All right, not sure how we're gonna get to all that in one show, I guess we will just not talk about special counsel David Wife. I feel like I've been talking about that for the last three days, but it's okay. And what I imagine, Judge Amit Mehta would call a weak sauce, three-count indictment of Hunter

Biden. But the show isn't called David. It's called Jack. So, where do you want to head first? DC or Florida? I'm rolling the dice and it's coming up DC. So, let's go first to DC or Florida? I'm rolling the dice and it's coming up DC. So let's go first to DC. And of course, we are thinking about the Trump motion for

recusal. So Alison, you're going to remember the beginning of last week, Trump filed a motion requesting that judge Chutkin recuse herself from this prosecution. And basically, his motion came down, and an ever going effort to endear themselves to this judge. They basically said, Judge, you're so conflicted, you must remove yourself from the case.

And then they threw out some like your biased anti-Trump, you know, it wasn't a very, it was a pretty explosive motion. It was. And I thought it was so ironic that a lot of their language was, you know, this is such an important and closely watched case. It's essential that the public has, you know, complete belief in the honor and sanctity of this proceeding.

And therefore you must leave. This from the guy who's done more to erode the public's confidence in the judicial system, the Department of Justice, and the FBI really was pretty rich language in my estimation, but basically his motion stood on two references, two statements that Judge Chuck and made when sentencing defendants in January 6 cases, two other cases had nothing to do with Trump. And in the context of those delivering those sentences, she made comments about January 6. So one of them, she basically said that the people who stormed the Capitol were there

in fealty and loyalty to one man, not to the Constitution. It's blind loyalty to one person who, by the way, remains free to this day. And is that reference? That's one of them that they pointed to basically saying she was saying something disparaging about Trump. In the other case, she says to this defendant, Palmer, you have made a very good point, one that has been made before, that the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged. So again, they put that

out there as a reference to Trump. And that was basically their argument. You've made disparaging comments obliquely about Trump in the contents of sentencing other defendants. And therefore, you're biased against Trump and you shouldn't be in this case. Yeah. And I think I think what's funny and a lot of people pointed out is she didn't mention Trump's name. She said, these people who exhorted you to go to the capital of people, plural, she said, you know, you have feel to one man who is still free.

But the people who led this insurrection are still haven't been charged and they exhorted you and inside did you to go to the Capitol and Trump's like, that was me, I did that. You're saying it's me. Totally me, I'm an exorter. It's like one of those absolutely nobody, right? And then Donald Trump, I did that.

That was me. And everyone said, did he just admit that he incited the insurrection? Like, oh, oh, Mr. Carter, pick me, pick me. Oh, oh, yeah. Totally, totally. I just thought that that was, you know, I don't think that that'll come up again, but you know, nobody asked you. And you just volunteered that that was, you know, I don't think that that'll come up again, but you know, nobody asked you and you just volunteered that that must be you.

I'm the guy who did all that bad stuff at the center of this entire coup. So this judge needs to recuse herself. Um, I've, now we've gotten the government's opposition, which is a really well-written, um, piece of work here. If you, if you haven't read it. And they could because they have a case citation that I didn't even think of this. It didn't even dawn on me. And I hadn't seen this anywhere else until Jack Smith brought it up, but it fits this case perfectly.

It's Watergate. Watergate defendants tried to recuse judge Sirica because in an earlier watergate case, that judge expressed the belief that the criminal liability extended beyond the boots on the ground, the seven people charged. That's right. Exactly the same scenario, like the burglars were getting charged, but you know, the head, the alderman and everybody at the top,

their Nixon, they weren't getting charged. And it's the exact same thing. Trump is alleging here, right? In the Watergate case, the appellate court said, quote, the disabling prejudice necessary for recusal cannot be extracted from dignified, though persistent judicial efforts to bring everyone responsible for Watergate to book so it's it's just a perfect example a citation here I mean how great is it to have an analogous case?

That's also about that also touches on presidential malfeasance. I mean, it's They couldn't have they couldn't have, they couldn't have written that one in a Hollywood script any closer to what we have to, what we're dealing with in reality here. Yeah, totally. And government went on to say, quote, because the defendant's motion fails to establish any bias by the court, much less the deep-seated antagonism required for recusal, the court has a duty to continue to oversee this proceeding. The defendant's motion should be denied. And he reminds us, Jack Smith of the judge in the Flynn case. Remember that judge who said Flynn sold out his country, he pointed to the flag behind him. Yeah. Um, he even, he even said

is anybody looked into treason for this guy? Like he said, I'm not hiding my disdain and disgust for this criminal offense to Flynn and the district court determined those statements didn't meet the standard for recusal either because Flynn was like, this guy hates me. You know? So I mean, really great brief by the government here. And they spent a lot of time talking about one thing that I know my colleagues and I who chat about this stuff on television. We all really picked up on early on when Trump's motion was initially filed. And that is that the statements that judges make

in the context of a trial, and particularly during sentencing, it's almost impossible to base a demand for recusal on those statements. And the reason is that it is the function of a judge to listen to the facts and the law of a case, and once, you know, that either, if someone's been convicted either by the judge or by the jury, in the sentencing phase, the judge's job is to make their opinion clear. Like, this isn't like someone who has a personal bias or antagonism against a defendant that's now in front of them based on some,

you know, personal thing that happened outside a court. You're talking about holding judges to some sort of recusal standard for the opinions they articulate during the phase of a case that requires the judge's opinion. I mean, it's ridiculous. It would bring this part of the judicial system to a halt, right? It would cast havoc into the ability to have judges preside over cases. Yeah, it would be like putting in the Starbucks employee handbook that it is, you will be fired if you make coffee. Yeah, basically, the function of the judge

is to listen, consider, and then pronounce their opinion on these issues. to listen, consider, and then pronounce their opinion on these issues. So in that context, they can't possibly be held as evidence of bias. The sort of thing that judges recuse over pretty standardly, once they get assigned a case, they then look at the parties, and if they have some sort of interest,

either a financial interest, a business interest, or even a social relationship with one of the parties, and if they have some sort of interest, either a financial interest, a business interest, or even a social relationship with one of the parties outside of court, then often a judge at the very outset of their assignment to the case will recuse, and that throws the case back into, you know, onto the assignment wheel. It's really, it very rarely ever happens midway through the case and really never on grounds like this. Yeah, that's another thing too. They didn't bring this up before. It's only just now. And oddly, when we're going to talk about this potential narrowly tailored gag order that might be decided upon, that might be decided upon, not after you set the date for the trial. These two examples, the only two examples that they cited, were cases in which the defendant was trying to ask for a lighter sentence because it was Trump's fault they were at the

capital. they were at the Capitol. So in sentencing, she has to acknowledge and either disregard that ask or, she has to, she has to. Yeah, she's gotta address it. They brought it up. They're saying, oh, it's not fair. I'm not as guilty as these people who are higher up the food chain.

And therefore, you shouldn't sentence me so harshly. And it's a argument that many, many J6 defendants have brought up on sentencing. It doesn't work. The system doesn't work that way. You get sentenced based on what you did and the facts and circumstances around that conviction. But yeah, of course she had to reference those arguments.

She has to show that she's considered them and is, you know, dismissing them or crediting them or what have you. Yeah. And she even says, you know, when she says to Mr. Palmer, you make a good point. It's one that's been made before the people who made you do this, quote unquote, have not been charged. She goes on to say, that is not this court's position. I don't charge anybody. I don't negotiate plea officers. I don't make charging decisions.

I sentence people who have pleaded guilty or have been convicted. The issue of who has or has not been charged is not before me. I don't have any influence on that. I have my opinions, but they are not relevant. She even says that. So these are just two not very good examples. But I love that the government brought in that watergate case because it is exactly the same thing. Do you know? I mean, I was like, wow, that is, I didn't, I didn't know historically that, that there were people who were arguing to get that judge recused because of his statements in the burglary stuff. So I was just blown away by that.

Yeah. Once again, Watergate emerges as the kind of ghost over all of these Trump lawsuits. We've seen references to Watergate in the executive privilege battles, you know, USB Nixon and all those famous kind of Watergate associated cases. Most of them have, I have provided a basis for courts to go against Trump's motions and efforts and a lot of this litigation, but anyway, I'm sure that's not the last we'll see of it.

I see a lot of USB Nixon, USB Halterman, and I see a lot of, of, of Mizar. Alderman, and I see a lot of of Mazar's that they referenced the Mazar's case quite a bit. So that was important that they actually finally ended up getting that push through. All right, we have a lot more to talk about. We have to I want to really like dive into this motion to narrowly tailor pretrial extrajudicial statements by Trump. Some might call it a gag order.

We'll talk about that after this breaks. Stick around. We'll be right back. Okay, this one's a little... Da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, da, on the public docket. Okay, so you would have an unredacted original conversion under seal and then a redacted version that the public could see.

And the reason for that kind of dual copy was because DOJ wanted to redact certain names and witness testimony considered to be sensitive under the protective order. You remember the protective order we talked about in this case a couple of weeks ago. Okay, so of course, the Trump team opposed the redactions in DOJ's redacted motion.

Judge Chutkin ultimately granted the DOJ's request and ordered that the redacted motion be filed on the public document and essentially released by the court. So what is this motion? People are referring to it as a gag order. It's not actually a gag order. It's a motion by the government to ensure that extra judicial statements

so things that Trump and others say outside of court don't prejudice the proceedings. I love that the way they refer to it is pretrial extrajudicial statements. That's his bullshit on truth social is what it is. It's like referring to my, you know, going out to a party is as extra curricular activities. Yeah, this is pretrial, extrajudicial statements, AKA anger-fueled late night all caps of

rants on truth social. That's basically what we're talking about here. And you know, you get this sense in the motion that DOJ is still being very careful. Yes, there's something they're trying to accomplish here. And essentially what they're trying to accomplish is making sure that A, witnesses and people involved in the proceeding don't get intimidated or bullied, and B, that these statements and these actions

like polling and things like that, that the Trump team is doing, don't prejudice the jury pool before we even get an opportunity to select a jury. So I get the sense, I don't know if you got this as well, they're doing everything they can to avoid something that looks like a gag order because this is basically like a step in that direction, but I don't think anybody's ready to go all the way. Yeah, but I'm confused by what makes it not a full on gag order motion. I mean, it's not, you know, there obviously there's no order yet.

The judge hasn't ruled that I've seen on the docket since I last looked on whether or not to restrict his pretrial extra judicial comments. But what is it about this that makes it not a request for gag order? Because I mean, they're going to, I mean, Jack Smith wants to stop him from making these types of statements. I did, it's narrowly tailored, but that seems like a gag order. It's kind of like protective order 2.0 or gag order minus one point. You know what I mean?

It's about halfway between a protective order and a full on gag order. Usually when you say gag order, it's the court ordering a party or a defendant. You cannot discuss this legal proceeding in public or with anyone else periods. It's kind of like the Roger Stone thing, right? Stones, comments, and the photograph with the crosshair, the rifle crosshairs over Judge Amy Bermagiax, and we're so over the line. And she had already admonished him a couple of times about his inflammatory statements. That was so over the line and such a clear exhortation of violence that she said, okay, enough. You can't say anything about this proceeding in public anymore.

It's a pretty extreme step for the court to take because it really is, um, you know, it by definition, it interferes with your exercise of your first amendment rights. So you're really only doing it in a case with your exercise of your first amendment rights. So you're really only doing it in a case where the exercise of those first amendment rights to date have been like beyond the scope of your first amendment right. You're actually, you know, provoking violence, putting people in danger. And that's of course not first amendment protected speech. Yeah, and that's what they argue here pretty well. I mean, they tell you what these are

redacted names, but you can obviously tell who some of these folks are. There was a reference to, I believe, Rusty Bowers, who had his home address and his families, information put on the internet. And they, you know, they had death threats. There's a reference to Ruby Freeman and Shea Moss. In here, their names are redacted. And again, Trump didn't want them redacted. He wanted, he wanted those names to be public. And I guarantee you, it's for one reason and one reason only. And it isn't free speech. It's to continue to intimidate and harass these people. Yeah. So essentially their opposition to the government's request to file this in a redacted manner was an example

of exactly what the government is trying to stop with the motion itself, right? The motion is designed to put some sort of obstruction in between Trump and his efforts to intimidate witnesses. And so in opposing their request to redact it, he wants the, he wants the names out there because he wants those people intimidated. It's really again to me from a legal strategy perspective, I feel like this team is doing everything they can possibly do to provoke this judge. I'm not sure what the end game is there. I don't see how that works well for them. But maybe it's just an effort to continue to build this narrative of,

you know, persecution and unfairness and everything. Yeah, that's all it is, I think. And the government specifically asked for two things here, like you said, to enter a narrowly tailored order pursuant to local criminal rule 57.7C that restricts certain prejudicial extraditional statements. Not all. So that's what makes this not a full-on gag order request. And to enter an order through which the court can ensure that if either party conducts a jury study involving contact with the if either party conducts a jury study

involving contact with the citizens of the district, the jury study is conducted in a way that will not prejudice the veneray, which is Latin for to come, which is the process by which you call a jury. So I was there in the courtroom for that discussion at the tail end when she was about to set the trial date for March in 2024. Uh-huh. They said, um, because, and this was a concern that the DOJ brought up. Um, Molly Gaston, she said, hey, um, if they're going to do polling, if they're going to poll this jury here in DC, the potential jury, um, we would like the court to approve that, those polling questions, because we have reason to believe that those questions, the way that they are going to be worded, will prejudice the jury pool.

And so the judge was like, well, cross that bridge when we come to it. And so here it is in writing. They're saying, please put an order in that they can't just go out and start talking to the potential potential jurors without clearing it with you. And us too ours too, you can look at ours too. This is a this is a mutual thing. And that's that's the caution I was talking about before like I feel like DOJ is doing everything they can to like Get done what they need to get done, but do it in the least intrusive way possible. So that's saying you can't pull the jury judge. We want an order prohibiting the defendant from

polling the public. They're just saying, if they're going to pull the public, you should look at the questions first, that gives everyone a chance to argue about them and the judge to weigh in and say, what's proper and improper. And they're willing to submit their own polling efforts to that, to that same process. So it's kind of hard to say what they're asking for is unfair, right? It's fundamentally equal on both sides. Are we interesting to see how the judge comes down on this?

I know she was kind of in, in the beginning, sort of saying that she wasn't going to be considering that kind of, you know, she indicated that she would rather have the trial sooner than if she would gag order. So we'll see what ends up happening here. But they, you know, they did say, the government said that put simply those involved in the criminal justice process who read and hear Trump's disparaging and inflammatory messages from whether it's court personnel, prosecutors, witnesses, and potential jurors, they may reasonably fear that they could be the next targets of the

defendant's attacks. And they even name a couple of potential probable witnesses that he has already gone after, including Bill Barr and Mike Pence. So we'll see, we'll see where she comes down on this. I don't know. I'm, this one's up in the air for me. It is. And I'm getting a lot of questions about like, well, if she grants the government's motion

and, you know, puts in place some sort of limited order, what's next? Like, do you, A, do you think Trump will violate it and be what happens to him if he does? Well, the answer to A is definitely bet your house, bet your mortgage, bet every dollar you ever had. This guy is never met a line that he didn't cross. So yeah, he'll, he'll, I'm sure, draw the government's eyeer if there's an order in place. So what happens to him? Well, with a, with an official order and articulated order on the record, which we don't have right now,

she made some comments at his arrangement to try to encourage him to, you know, rein himself in his comments in a little bit, but that's less than what the government is asked for. What the government's asked for is an actual specific order on the record. And if he violates that court order, there's all kinds of things she could do.

She could impose sanctions against him and his lawyers. She could hold him in contempt or she could impose a gag order along the lines of what we saw in the stone case and prohibit him from making any comments about the case. I guarantee you that'll get that will get appealed if it goes and if if we get there goes in that direction, that would get appealed that it'd become a Supreme Court issue simply because, you know, anything you do to limit his speech while he's running for public office is going to be

seen as unbelievably sensitive and potentially an incursion in his First Amendment, right? Yeah, this is not the last we'll hear of this thing. I think she'll sign it. I think she'll put the order in place, but that is really just going to tee up battle royale. Yeah, and I think one of the things that one of my takeaways is much like, you know, Andy, you and I have talked a couple of times about how flabbergasted we were, jaws a gap that Robert Mueller went to paper and he wrote a letter with his, you know, saying with his, with his disagreement with the way that Bill Barr characterized his findings in the Mueller investigation. I wasn't expecting anybody, given the DOJ like not asking for pretrial

or bail conditions, not asking for anything, just being like, and having the judge have to say like, hey, maybe you should give me a list of witnesses that he's not allowed to talk to. And the DOJ is like, yeah, okay, cool idea. I didn't see this coming. I didn't think that they would be asking for any kind of restriction on his speech. So I thought, like, wow, all right, he's not messing around.

This special counsel, this is really, he truly believes this is detrimental to the case. It is dangerous. It will chill witnesses. It could chill. It could taint the jury pool. And he's, I think that this is a sign that he went to paper with this. They are very, very concerned. Yeah, I think absolutely they are for all the reasons you just mentioned.

And it's valid concerns. However, this first amendment issue is the third rail in this case. This is the one that like nobody wants to touch. That's why I'm surprised. Yeah. I mean, like it has become the core, the center of Trump's defense writ large, right? He's from day one. He said, this is their prosecuting me or persecuting me because I'm, you know, based on my exercise

of my first amendment rights. And by saying that, he's referring to the lies that he told about the election. So this really brain, you know, it almost in some way gives credence to Trump's one of his strongest defenses. Yeah. So as a prosecutor, you got to be really, really worried about the impact that his statements are having to go after them in this way, risking bolstering his biggest argument. So I don't know. It's, I think she's going to do it, but where it all goes, we'll have to see.

Yeah, we'll see. And then a couple other stories here that, you know, before we take a break, we got a look into the, you know, the whole Trump Twitter account battle. We knew, we knew most of what was going on with the back and forth there, you know, the whole Trump Twitter account battle. We knew, we knew most of what was going on with the back and forth there, you know, that Twitter didn't want to hand over Trump's stuff for the first, this is a first account in its 17 year history,

that it wouldn't hand over routine, you know, the subpoenas for information for Trumps. This is specifically for Trump's Twitter account. And so Twitter, now X, but I call it Twitter, appealed and lost and had to hand over some stuff. So, we know basically the long and short of it, but the unsealed order shows that Twitter turned over at least 32 direct messages from former President Donald Trump's account to special counsel, Jack Smith earlier this year.

So he has those. And in seeking the messages, prosecutors specifically argued that Trump posed a risk of tampering with evidence. So the arguments were very strong there, much like the arguments in this gag order are very serious and very strong. And I'm not gag order are very serious and very strong. I'm not gag order, excuse me, the limited pre-trial extra judicial statements. Call it something catchier if you don't want to.

The truth social order. To call it a gag order. It's like that, right? It's so, so important because these messages, he would tamper with the evidence. Like if he knew, he would go in and delete stuff, basically. Tamper with evidence, tamper with witnesses, right? Maybe contact people who had sent them these messages. I mean, there's a, the mind kind of wanders, but there's no question the government invoked

all the different ways that Trump could potentially harm the case if it became known to him that they had served this warrant on Twitter. And then again, they say the former president's obstructive efforts continue unabated with respect to the investigation, which in which he has determined to pay the legal fees of potential witnesses against him and repeatedly disparage the lead prosecutor on his true social platform. This is now the third or fourth time Jack Smith has explicitly mentioned the fact that Donald Trump pays for lawyers of his witnesses when discussing obstruction of justice.

I can't help but think that he is conducting just like Mueller did a full blown obstruction of justice investigation alongside the other investigations that he's conducting for his own specific investigation, just like Mueller was. Because we just keep getting reminded in these filings over and over again, Trump is going to obstruct justice. He's paying for lawyers for people that are going to testify against it. It seems very obvious to me, but we just don't hear too much about

that particular investigation. We hear about the wire fraud, the coup, the Mar-a-Logga documents case, but I think there is a full-throated obstruction of justice investigation running in parallel with all of these. Yeah, yeah. So procedurally, this motion really fascinating, and it's in a great opinion that the DC circuit

put out resolving this thing. It's a long opinion, but only the first 15 pages are so you're like the first part. You can read it and get the entire thing out of it. So Judge Barrel Howell, of course, you know, well, you have DOJ in January comes in for the search warrant, serves it on Twitter, and along with the search warrant, they get a non-disclosure order, which is the thing that prohibits Twitter from telling Trump that they've received the search warrant. And Twitter basically doesn't comply.

They don't produce the material that's demanded under the warrant, and it's not until after they blow the deadline that they say, basically, well, we're not going to comply because we don't agree with the non-disclosure order. This ends up in front of Judge Howell and she ultimately finds that, of course, they have to comply with the search warrant and she finds the $350,000 for the time that they were out of compliance. They appeal her decision. It ends up in front of the DC circuit court. The DC circuit essentially smacked. It was a full on smackdown against Twitter.

They make it clear that the search warrant in the non-disclosure order, although they're part of the same matter, the ability to challenge them is totally separate. You can come in and challenge the sufficiency of a search warrant, but you basically have no standing to challenge the court's discretion on deciding to issue the non-disclosure order. Twitter challenged it on the grounds of first amendment speech. They're saying basically telling us we can't tell our customer that we got legal process

on their account is a violation of Twitter's first amendment right to communicate with its customers. And the DC Circuit basically dispatches that as nonsense. So they end up upholding all of Judge Howell's decisions and actions, including the $350,000 fine, which I thought was just awesome. And yeah, it's a great piece of work if you have a few minutes to read. Yeah, agreed. I want to talk about before we go to break, I wanted to get your thoughts Andy on the Scott Perry decision because that was

also unsealed this week. It was like the week of unsealings. And we know the background of this that, you know, Scott Perry did not want his phone contents to go to Jack Smith to the Department of Justice. He sued to prevent that from happening under the speech or debate clause. Judge Barrel Howell said, no, speech or debate doesn't cover crimes, basically. Then ordered it all to be handed over. And then he appealedaled and this all started to be under seal. So we didn't see any of it, but we got the unceiling recently of the appellate court's decision before we only had a minute order that was very cryptic. And I had said, and you and I talked about this on the last episode, Andy, it looks like what the appellate court has decided. And it's Rao Henderson and Katzus,

who are all three conservative justices or judges, excuse me. It looked like what was happening was that they said, well, Scott Perry, you don't win. We aren't blocking everything for you because speech or debate doesn't cover everything. But it seemed like the court was saying that they agreed, this is the DC Circuit Court of Appeals, that they wanted to vacate part of Judge Howell's decision, and that part being they thought, and this was just a guess on my

part, that the, this is so hard to articulate in, in's terms. But what they felt was that his communications with members of Congress in the executive branch leading up to his vote certification on January 6th and leading up to his vote on HR1, which is a legislative bill, should be covered by the speech or debate clause. Whereas, Barrel, how was like, yeah, if it had to do with that, but it didn't, it had to do, you can't talk about overthrowing the government with the executive branch and call it protected under speech or debate. So here's what the actual order says or the, yeah, the order from the appellate court, the decision from the appellate court.

They say the district court, however, incorrectly withheld the privilege, speech or debate, from communications between Representative Perry and other members about the 2020 election certification vote, and a vote on proposed election reform legislation, HR1. These are quintessential legislative acts entitled to the privilege, and we vacate the district court's judgment with respect to those communications and demand.

So sending it back down now to judge how to say, you're wrong. Try again. I disagree with this ruling. I think it's incorrect as a matter of law. But I don't know if the DOG is going to appeal their decision here to the full circuit court, you know, called on-bunk when you appeal to the full panel. Or if they're gonna wait and see what Judge Howe says, I would appeal this, but we haven't seen a response yet.

Yeah, this is a tough one. Anytime you're in one of these like kind of microscopic line drawing contests, I feel like it's not uncommon for an appellate court to just go with the rule that's easiest to enforce. And typically, the boundary of speech and debate clause privilege is usually defined as like legislative business, right? If the communications have to do with congressional business, then it's covered.

And so how do you figure that out? Well, one of the ways that they look at it is if those communications are between members of Congress, then there's kind of almost a presumption that it's legislative business. But okay, if it's two guys talking about, you know, their golf game, then probably not. But if it's two members speaking on the floor of the house, and while voting on a, you know, voting on a bill, then that clearly would be. Here, it's barrel how obviously took the position

that yeah, you were talking about congressional business, I either certification the election, but you were talking about it in the context of overturning it or obstructing it. Right. So I get her theory and I obviously I support that, but I think the court is looking at it kind of from a bigger perspective of like,

how do we, you know, how do we support her interpretation without really carving up the privilege in a way that makes it hard to apply. So I don't know, I think I understand their perspective on it. And I don't think it's unreasonable for them to say, you know what? Talking about the certification of the election, when you're a member of Congress, talking about the certification of the election is part of your congressional business. Now, you might have been talking about it in a bad way or in a way that some people don't approve of, but for the matter of whether or not your communication is privileged, the answer is yes.

Right. And I have to disagree with that thought process here from the appellate court because if I'm a representative of Congress, I'm Scott Perry and I call up Trump at the executive branch. And I say, hey, let's talk about January 6th coming up. I want to plant a bomb and destroy the whole thing. You can't be like, you know, that's my privilege to talk about legislative activities. Coming up at January 6th. It's, you know, but a lot of people can't see the coup

as, you know, we saw it with the judge who sentenced the proud boys. He's like, look, I don't see this as this isn't terrorism like blowing up a building, but it is. Yeah. And people aren't able to wrap their heads around this kind of terrorism yet. And I, and I, it's, I think it's to the detriment of the rule of law, but we'll see, we'll see how they end up ruling on this.

Yeah. I share your frustration on that. And you know, some might say, well, that wouldn't be privileged because of crime fraud exception. Well, why isn't that a bligh here? I get it. And Judge Barrel House said it did. You can't have ultra-virus,

extra-judicial stuff talking about overthrowing the government with the executive branch because the speech or debate clause is designed to keep the executive branch from messing with legislature. So anyway, let's think about it like this. Like let's say Congressman calls up to White House and is talking to the president about the campaign, about the president's reelection campaign. That would not be covered, right? That's not legislative business political campaign.

But if the conversation was really about, hey, we're going to try to get this XYZ bill passed because that will be good for your reelection campaign. What about that? Is that congressional business or is that political campaign? It's kind of both. So these are very tough issues. I think the court took of somewhat simplistic view of it. Well, they've asked Barrel how to now determine on a communication by communication basis. So they're basically saying we don't want buckets. You know, we don't want all of it. We don't want half of it.

We want you to. Yeah. And so now she's gonna have to do that work unless there's some sort of an appeal here. Which there might be, but we'll see. All right, we're gonna head down to Florida, but we have to take a quick break. Stick around, we'll be right back.

Hey, everybody. Welcome back. It's time to go to Florida. I know. Pack your bags. Here we go. This first thing here is a story that came out like pretty much the night after you and I recorded the last episode, Andy. And so this is the oldest piece of news that you'll hear in this particular show. But I love it because it has such an unlikely hero. It came from the New York Times. And it is a what I like to call a buried lead, which the New York Times is very good at. This is paragraph 28 through 35 of a 35 paragraph story. Basically, this is what happened after

Deole Vera went to Tavares. Tavares is the IT guy who's cooperating, who got a new lawyer, right? And so Deole Vera comes to him in the night and says, hey, the boss, he wants the stuff deleted. He wants the server deleted, the surveillance footage. And he's like, first of all, I can't, I don't think I have the administrative rights

is what he was saying to do that. And you know, then he's like, well, what are we gonna do? Cause the boss wants it deleted. And then the story stops. And it's all like a mystery. Well, we've got a little insight into something that happened after that. He contacted Calamari Jr.

Who runs security for the Trump organization. And he's like, hey, somebody just asked me to delete surveillance footage. At Calamari was so shocked by this, It's like, hey, somebody just asked me to delete surveillance footage. At Calamari was so shocked by this, he called up the Trump org lawyer, and I don't know if it's food or fast, they don't name him. But he called up the Trump org lawyer who issued a blanket statement warning everyone in the company to not delete any surveillance footage.

I mean, I read this point, I'm reading paragraph 28 and I'm like, what wait, wait, wait a second. Who did that? I have to go back and read it three more times. I'm like, you're kidding me. The hero of the story is Calamari Jr. I would not have picked that. No. Me neither. And then, and then that's not all. Next, Kalamari actually moved the surveillance storage servers after the room was flooded when someone drained the pool. So that we're back to the pool draining. And I can't help but believe in my heart of hearts that when Dale Lavera was like, what are we going to do? The boss wants it done. I can't do it. We all, well, what are we gonna do? We have to delete it.

That's when I think that I truly believe they purposefully drained the pool. Like, that was their Hail Mary to try to destroy this surveillance footage. And Kalimari, learning of the draining, is like, damn those guys, they're good. He's like foiling them at every turn. He's like, oh them at every turn.

He's like, oh my God, I gotta, I gotta move the servers now. He moved the servers because of, he thought he believed as I do that somebody was trying to destroy that surveillance footage. They put out a warning. I mean, that's just not that, that little thing just made me laugh.

So, Calamari Jr., me and like there are no coincidences. I've seen this play before. We got to get those servers to high dry ground. Calamari and potato Dan Quayle, save America. There you go. Something else that happened this week, a judge Eileen Cannon finally issued her protective order. And in doing so, she didn't explicitly say, no, you can't have a private skiff at Mar-a-Lago, and no, just because you were in the Navy, Mr. Nauta,

you can't get to look at all that, you don't get to look at all the classified documents. She didn't explicitly say that, but her order makes that clear. She grants the protective order and says, if you know, the president, if you wanna look at stuff, you have to do it in a skiff. And that's that. And then you can't disseminate there certain things you won't be able to look at, et cetera. And then she said that with regard to, well, now to, now to, he invoked his

Navy service to say, I can be trusted with classified information. And prosecutors noted that he's charged with obstruction and false statements. He doesn't have to know the contents of the classified documents. And Canon seems to agree. Granted the government's motion for that protective order and found that quote, the defense may not disclose classified information with now to accept for in very limited instances. So she did she. this is the right thing. Yeah, she took a long time.

She took the right place. It took forever though. I mean, she was. And it might be because she was trying to figure out and learn the law, you know, she might have had to do some research. I hope that's probably right. Boy, it just shows like no sense of urgency down there, whatsoever, which is a little bit frustrating.

I really feel like Nauta should have argued, Judge, I can be trusted with highly classified information because I have a lot of experience moving it around. I move the boxes in bathroom. I move the boxes to the bosses office. I move the boxes. The president of the United States trusts me to move his stolen classified territory. I own classified interior state to Jersey back again. You know, look, I've been all over the classified documents, but anyway, he didn't decide we lost any. No, we still have them all not as far as you know, judge. So there you go.

So we'll keep our eye on what's what's going on down in Florida, but there was some movement. So that's good. But again, it should not have taken two and a half months to grant a protective order. I'm still waiting to see what she does about these Garcia hearings, the conflictive interest hearings. And we do have some information on that in the next segment, but we have to take another quick break. So stick around. We'll be right back. All right, we're back and we're still down in Florida where we also had the joint discovery report

as filed this week. So this is the both parties kind of keeping the judge up to speed on how the discovery process is going. So what we have in summary is the government has provided five productions of unclassified discovery, totaling about 1.2 million pages. Now the defendants estimate that the government has also given more than 3700 days or over 10 years of CCTV footage. The government, of course, their estimate is roughly half of that amount. Now, keep in mind, the government also provided the defense, hey, yeah, we have all this CCTV footage, but we're only using the following stuff as evidence and narrowed it down to a very specific time period.

So again, this is the defense are trying to make this look as onerous and unworkable as possible in a consistent with their desire to delay the proceedings and stretch this out as long as they possibly can. And of course, the government's got the opposite goal. Let's get this thing started. And, you know, to be fair, yes, the government has gone through all of these, you know, 1,500 days or so, because they're estimates about half, 1500 days or so because they're their estimates about half. I've gone through all this footage and timestamped it for the defense. But if I'm a defense attorney, I'm like, I've got to I got to hire a bunch of people to watch all this. Yes. Because you can trust what the government hands of. I personally, me looking as an outside person

for this. Yeah, I believe that the government gave them the relevant stuff, but I would want to watch it all. Yeah, or at least pay a bunch of people to watch it all. And he has the resources to do that. Absolutely. Also, the government anticipates making additional productions of classified material. On September 13th, they made their first production

of classified discovery. And so that is gone over. They say some of it may be viewed by counsel with interim clearances, some require counsel to have their final clearances with additional necessary readings to various compartments. So it's different levels of stuff. And some of it can't be seen at all yet because they don't have the clearances over on the defense side. And then they said they're also sending over classified discovery, which will include additional JANKS material. What is that? What is JANKS material? Okay, so when we think about discovery,

which is material that the prosecution is required to hand over to the defense, you generally divided into two buckets, one of them we call Brady and the other one we call Janks. Brady Material, which is of course the name taken from the Supreme Court case that created this obligation on the government, is basically any material that could be exculpatory, any material that the defendant could use to prove their innocence. And Jank's material is a little bit different. Jank's material is any prior statements that a witness has made. So if the government has in its possession prior statement of a witness, they're required to

turn that over, that could have been a statement in it. And maybe they were interviewed by the government. So the government would have like a recording of the interview or notes from the agents that took notes when the witness was interviewed, or maybe the witness testified in front of the grand jury. And so there's an actual transcript of the witness making statements in response to questions. So all that has to be given to the defendant

because if that witness then testifies a trial, the defense council can use those statements to cross examine the witness and to kind of, you know, make points about the witnesses lack of consistency or lack of credibility or. Okay. So I'm thinking of dirt. That's sort of thing.

And right now, right? Because we had, what was the FBI guy's name? Baker, Jim Baker. Baker, Jim Baker, who had given inconsistent testimony between the Inspector General, Congress, and the Grand jury. And so those witness transcripts would be considered Jank's material then. That's right. Or even in that case, you'll remember former FBI Assistant Director of counterterrorism, they'll pre-step, they'll pre-step had a conversation

with Baker in which pre-step took a couple of notes. And so pre-stabs notes are Jank's material because that's a statement of pre-step, pre-step is a potential witness. Okay, so it's potentially a sculptor, but more so about the potential witnesses in the case, being able to be impeached. That's right. That's where it all comes down to impeachment. And that's why the defense is entitled to it. Cool. I didn't know that. All right. So that's the joint discovery report. At any rate, the government is handing everything over as like, as soon as they're able to, as soon as it's ruled that they're able to hand stuff over, it just, bam, it goes.

They are on the bottom. They're trying to keep the pedal to the floor, right? They're not going to be the cause of any delay. Absolutely. I mentioned before the break in the last segment, the Garcia hearings, those conflict of interest hearings, they want them for Stanley Woodward and they want one for John Irving. And there was some back and forth going on with the John Woodward stuff and some of the sealed filings have been released. So if you remember, Stanley Woodward had a hissy fit about Jack Smith filing that motion

for conflict of interest resolution, saying he didn't get permission to release stuff from the sealed hearings before Judge Bozberg in DC. So Jackson Smith released all of his receipts in his minute orders so that he had permission. And we got to look at in that release, we got to look at Stanley Woodward's opposition to the conflicts hearing for him, right? His Garcia hearing. Something stood out quite like it jumped off the page at me.

The government seeks to portray a mundane initial question about the grand jury process as evidence of a guilty conscience that simply doesn't exist. This is Woodward writing. In the government filing, they said, quote, to Var And that's where Woodward says, recall, or if I can't remember that stuff." Oops. And that's where Woodward says, you think that this makes it sound like I have a conflict of interest, but it totally doesn't. It's easy to make some weird lame ass argument,

but this is exactly what happened with Cassidy Hutchinson. She told the January 6th committee that she was instructed by Pasantino to say she didn't recall things that she actually did recall. And that is fascinating that now we have on record two Trump lawyers potentially telling their clients to not recall stuff. Yeah, I mean, are you surprised? No, I'm not.

But it's in writing. And I'm like, wow. Yeah, you can almost imagine like what the look on the prosecutor or agent's faces when they, you know, what I can't recall. Yeah, there's a very standard, you know, not even a warning. It's an advisory that you give a witness before or anyone before you start asking them questions. You like, listen, you know, if you say you don't remember, but you really do remember that's, you know, that's false. I've never had

someone look at me in response to that and say, how do you know if I can actually remember it or not? Meaning he was told that they don't know whether or not he can recall something. And here's the thing that cracks me up the most, is to have to be sitting there, would then he argues, he's like, look, that's a natural question that somebody would ask about talking to a grand jury.

And now I wanna to see the prosecutor's faces when they're reading that. Yeah. The Woodward's argument is that, hey man, he's allowed to ask questions. Sure, sure he is. Of course he is. But if he said, hey, what happens if my lawyer told me

to stab you in the face today? Like, hey, I'm just asking questions, you know, you can't, you gotta look into that. And like I said, I think based on the fact that it's been brought up now multiple times in writing by Jack Smith that Trump is paying for these lawyers and that this particular guy didn't seek out this lawyer himself. He was, he was given this lawyer, assigned a lawyer. Right. By another Trump attorney, I wonder who that is. Boris Epstein maybe.

Um, that, that he is investigating obstruction of justice. I mean, how would you know if I can't recall? I mean, that's, yeah. Even if he's not investigating all this as separate acts of obstruction of justice, which is possible, it's clear that this is a major issue that they are dealing with in the investigation and prosecution of these cases. Having to navigate these waters populated by lawyers

and predominantly two lawyers who are representing half of the defendants at the behest of the biggest depocketed defendant is really tough for them. And I think they're doing everything they can to push back against that. But, you know, their hands are tied to some extent. But so far, right, to Varys, it worked. Got him new counsel. And that's straightened out a bunch of stuff. Who knows? It could still happen going forward, although as we get deeper and deeper into the into the prosecution, it becomes less likely, I think. And I do have to say that I really like this kind of it's these are speaking pleadings, right? This is this is Jack Smith telling the public like,

hey, we want to let you know what's going on. We don't normally, you know, everyone's like they want these trials televised federally because, you know, the DOJ will not be coming out of the courtroom and giving press conferences but Donald Trump will. And so you have this void, information void, this vacuum where Trump can fill it with his own conspiracy theories. But I think that this is the DOJ and Jack Smith doing their best to put it out in the public.

That this is what's going on. These lawyers are being paid for by Trump. They're saying that they can't recall things when they can. Like, I feel like this is his only way of letting us know. You know, and he wanted, but initially he wanted to file all this under seal and he got rejected. So he's like, fine, here. And he's, I think, using this opportunity to tell his side of the story through these pleadings that he would, you know, normally otherwise just want to file under seal.

So I'm very glad that we're able to see some of these, some of these things communicate them to everybody to get the word out to the larger public to push back on some of the disinformation that you're going to hear from the Trump side. So. All right. We have a listener question this everybody to get the word out to the larger public to push back on some of the disinformation that you're going to hear from the Trump side. All right. We have a listener question this week, my friend. We do. We had a bunch of good ones.

Let's, let's hit on, let's do two very quickly. All right. The first one that I'm going to go to comes to us from Jim F. And Jim says, I have a question about Kenneth Cheesebro's trial. If I understand the Georgia law, and that's a big F, the jury has to be seated by the end of October. If he is acquitted and cannot be subjected to trial on these charges again, because of the constitutional ban on double jeopardy, well, here's the question. Can he then be called as a witness and forced to testify against other defendants?

So a couple of things to straighten out here. One, the double jeopardy prohibition only applies within a sovereign, a distinct sovereign. So if jeopardy attaches in his trial, no matter what the result, he can't be tried again by Georgia for the same conduct. He could be tried again by the federal government, no matter how his Georgia case plays out because it's a separate sovereign. And as currently an unindicted co-conspirator or unidentified co-conspirator in the Trump January 6 case, I think it's very possible that he will ultimately get charged with that. So that's one thing.

Let's say he goes to trial in Georgia and he is acquitted. Can he be forced to testify in Georgia against others? Well, you can always be called to testify. If he was called, he would likely claim his Fifth Amendment right against incrimination and say he's not going to testify. If he did that and the prosecution still wanted him to testify, they could immunize him. That would put him in a position of either having to testify or be held in contempt. But even if we go through that long road, you're talking about cheesebro here.

Yeah, what do you have? At the end of it, he would be a very uncooperative hostile witness to the government. You really don't want to put someone on to try to prove your case who is hostile to your case and not cooperative and going to give you bad testimony, maybe claim he doesn't remember anything. So I think it's unlikely, it's an unlikely result, but that would be kind of the mechanics of it. I think more likely, I mean, if he doesn't plead out cheese, bro, and he goes to trial and he's convicted, then I would be more willing to be nice to the federal government.

Yeah, he could be. Because I could be tried. I will be possibly if I'm indicted as a co-conspirator, which he is, that he just hasn't been indicted yet. I would be more inclined to cooperate with the federal government so I'm not facing two convictions and sentences. He could. He could. Personally.

It may, you know, these are, there's a million kind of strategy things to consider here. If he goes to trial in Georgia and is convicted and then gets indicted on the federal side and wants to cooperate, you could argue it's less likely the government would want him because now he's already been convicted. So that, you know, there's a lot of ways that I could play out, but essentially nothing, nothing, nothing, nothing, nothing. Yeah, I'm not saying Jack Smith would be like, yeah, come on board, friend.

I don't know, but that would be my dream would be like, please don't convict me again, I don't want extra jail time. What do I have to do to limit my time, for sure? All right, so next question, and this goes into my blatant shilling for people to say nice things about us at the beginning of the question. Oh, excellent.

Yeah, so I had to read this one. And this one's coming to us from David in Brooklyn, and David says, Hail to you, giants on this earth, benefactors of all mankind, invincible in battle, paragons of social grace, good looks, and enticing bodily aromas.

I'm not sure what that means. I have a question which blows down to M.I. or are we all missing something that might be important? Basically, then, he refers to Trump's plans to seize or gain physical access to voting machines in multiple states. He put a lot of time into this finding ways to do that, even pushing for the totally illegal use of US military forces. So David is basically saying, why?

Why did Trump, why was he so fixated on possibly seizing voting machines? I don't know what your opinion is, AG, for me, it all comes back to delay. Put yourself back in that moment. It's the week or two before J6. They're just desperately looking for any excuse to delay the certification of the vote so that they can throw the issue to the house and the house could decide the election for Trump. And if they see the voting machines, they could claim falsely, but they could claim that they then had evidence of fraud. And that would have been, you know, from their perspective, firm ground to stand on saying, we should delay the certification.

Yeah, no, I agree 100%. That's exactly what it was. They can get the voting machines in their possession, say that they have looked through them and they have found voter fraud. And they found that Italian satellites flipped votes, uh, or whatever, or, you know, or Chiavez was voting for Biden. So Venezuela happened and, you know, the same thing. Yeah, whatever, whatever it is. And then Sydney Powell is now the, um, we're going to have to redo this election and whatever or martial law, everybody chill out, we're going to find, we're going to have to redo this election and whatever

or marshal law everybody chill out, we're going to find, we're going to get to the bottom of this and Sidney Powell is going to be in charge of that or whatever, you know. That's exactly what they wanted to do and they don't have to show you what's in those voting machines. They don't have to show you the data. The pillow guy tried to, right? Yep. It did his data symposium.

And then the guy who was going through the data that they stole, probably I think from Mesa County at that point in Colorado. And the guy got a phone call while he was at the cyber symposium. He's like, my lawyer says, I gotta go, I have to stop talking. Okay, bye. Like, because he's putting a stole and shit up on the screen. My mom says it's time for dinner. I gotta go home. Mom's calling me for dinner. So yeah, that's exactly. I'm 100% with you on that. He just wanted the voting machines.

It's like just say there's impropriety and leave the rest to me. Exactly. Exactly. It's all about the delay. It's still about the delay. You know, here we are in all these cases and it's foot dragging central.

Yep, and it's going to continue. And we'll, you know, please send your questions. We have a link in the show notes for you to fill out a little form with your question. So check that out and send us whatever you want to know. I was interesting when you were reading that first question. I'm like, we don't really cover Georgia. Oh, I see where he's going. So I'm wrapped it around there, brought it back to Jack. All things. Totally did. Totally did. All roads lead to Jack. Thank you so much for your questions. Thanks so much for listening. We appreciate you. Do you have any final thoughts, Andy? No, just like every week, it's like, oh my gosh, what's the journey going to be like from Monday to Friday next week

who the heck knows but we have too much stuff to talk about not enough time so I'll look forward to seeing you then yeah I'll see you then everybody I've been Allison Gill and I'm Andy McCabe we'll see you next week I'm gonna have to go.