Jack - Episode 45 - A Tale of Two Judges

Episode Date: October 8, 2023

This week in Florida, Judge Aileen Cannon stays the trial calendar pending Trump’s motion for a delay due to CIPA section 4, and new reporting that Trump shared nuclear submarine capabilities with an Australian businessman. In DC, Donald files a motion to dismiss all charges based on absolute presidential immunity; an opposition to DOJ CIPA motions; Jack Smith files a motion in support of his original motion for a pre-trial don’t-call-it-a-gag order based on Trump’s posts about Mark Milley and an unrelated possible firearm purchase.SCOTUS declines to hear Eastman’s attempt to block access to his emails; plus a listener question.A couple of terms to remember:Brady Rule | US Law |Cornell Law School | Legal Information InstituteJencks Material | Thomson Reuters Practical Law GlossaryBrian Greer on CIPAThe Quick Guide to CIPA (Classified Information Procedures Act)Questions for the pod -Submit questions for the pod here Check 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 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

M.S.O.W. Media. I signed in 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 heard? The events leading up to and on January 6th. Classified documents and other presidential records.

You understand what prison is? Send me to jail. about skipping 45 because that's the number of the former president and calling it 46, but that doesn't really fly with the with the podcasting industry. We have to keep them in order. But anyway, it is Sunday, October 8, 2023. I'm Allison Gill. And I'm Andy McCabe and our podcasting machine. Thanks you and my OCD. thanks you for including 45 in our lineup here. Today, Allison, down in Florida, we're going to cover the first possible major delay of the espionage and obstruction case in Florida. As Judge Eileen Cannon stays the trial calendar, pending Trump's motion for a delay to seep us section four. And there's new information about the former president, you're sitting, I hope, when I read this sentence,

the former president sharing nuclear submarine capabilities with an Australian businessman at you guessed it, the skiff. No, I'm sorry, it's not a skiff. Mar-a-Lago, wow. Yeah, man. And you know, I wasn't in the Navy long, but I was a nuke and, you know, I didn't make it through C school, but still, this is shocking to me, but not surprising somehow. That's right. Also in the DC case, up in Washington, DC, Donald is filed a motion

to dismiss all the charges based on I'm absolutely immune from everything because I was president. And he filed an opposition to the Department of Justice's SEPA motions over the small amount of discoverable classified information. This is the DC case. There is a SEPA component to it. We talked about that a couple of weeks ago. Additionally, Jack Smith is filed a motion in support of his original motion for don't call it a gag order, this partial gag order. And he is citing the Trump attacks on Mark Milley and his attempt to maybe

purchase a firearm during a campaign stop. There's a lot of stuff in there. We'll get to that as well. We will. And lastly, we'll cover the Supreme Court ruling against John Eastman's attempt to vacate the lower courts decision Ordering him to hand over his Chapman University emails to the January 6th committee, AG, which already happened a long time ago But we'll explain why he's still fighting that fight. So we're where do you want to start first? I want to start down in Florida because of the explosive reporting you were just talking about covering Trump's disclosure of nuclear secrets to an Australian businessman. Yes. This comes from exclusive reporting from Catherine Falders at all at ABC News.

She says months after leaving the White House just months former President Trump allegedly discussed potentially sensitive information about US nuclear submarines with a member of his Mar-a-Lago club and Australian billionaire, who then allegedly shared that information with scores of others, including more than a dozen foreign officials, several of his own employees and a handful of journalists. Now prosecutors and FBI agents have at least twice this year interviewed this guy. His name is Anthony Pratt. He runs a US-based company called Pratt Industries, which is one of the world's largest packaging companies. In those interviews, Pratt described how looking to make conversation with Trump during a meeting at Mar-a-Lago in April of 2021. Pratt described how he brought up the American submarine fleet, which the two, by the way, had discussed before.

Of course they had. Of course they had. Of course they had. Now according to Pratt's account, I'm assuming him or his lawyers are the source for this reporting. But according to Pratt's account, as described by the sources, Pratt told Trump, he believed Australia should start buying its submarines from the United States, to which an excited Trump leaning toward Pratt as if to be discreet, told Pratt two pieces of information about US submarines, the supposed exact number of

nuclear warheads they routinely carry and exactly how close they supposedly can get to a Russian sub without being detected. Unbelievable, but as you said, also totally believable. So the reporting I read said that Pratt shared the information with 45 people. And as you mentioned, some of them foreign government employees, some of them Pratt's employees, some journalists, and three former prime ministers.

I guess that's what happens when you're a billionaire in Australia. You get to know a lot of prime ministers. Now, here's what surprised me. What surprised me is that he didn't charge him for this information. I'm trying to figure out what he got out of it besides just looking cool. But it makes me wonder if an Australian businessman can get this intelligence. Imagine what an adversary trained in spycraft could get. Oh my God. That place is the juiciest target for intelligence operations in the Western hemisphere,

no doubt whatsoever. It's a malpractice, really. For any self-respecting intelligence agency, to not take a run at Mar-a-Lago at this point, there are just so many aspects of this. I love the detail that he leaned forward to tell him this information, like in an effort to be discreet. I don't know. To be discreet and talking about nuclear defense information on the balcony at Mar-a-Lago, I mean, leaning forward doesn't cut it. That's not written into the classification laws, the espionage act, but it's not a violation

if you leaned into your buddy when you disseminated national defense information, which takes me to Trump's spokesman's statement about this yesterday, which basically said, well, the reporting lacks context. I'm sorry, what context makes it okay to share national defense of Norwegian nuclear information, which is very, you know, you could easily argue

the most sensitive information we have. I've been talking about this on TV for the last 24 hours, and just as an example, almost all, not, you know, the vast majority of classified information is classified by executive order. The president has the ability to classify whatever he determines needs to be classified. He delegates that authority to classification authorities and they do it. They execute their responsibilities under that presidential order. So declassification is also done that way and that's why the president can typically declassification is also done that way. And that's why the president can typically declassify whatever he wants while he or she is a sitting president,

but nuclear information is different. Nuclear information is classified by statute. And so not even a sitting president can you to laterally declassify and disseminate nuclear defense information. Unless, of course, you're Trump, in which case, you can just share it with your friends at Mar-a-Lago after a well-done stake in a bowl of an L.I. screen.

Well done, Stake, with ketchup. That's right. Yeah, I can't forget. From the outlet bar. Yeah. Yeah. I know people in the nuclear Navy circles, they don't even know how many nuclear warheads it's or how close

they do know you're not supposed to talk about this stuff. You know, and that's the other thing that kills me, like people in the defense community and certainly in the intel community, you know, you spend your life collecting this information, perfecting it, sharing it with decision-makers under rigorous controls, understanding and living by the rules that are necessary to preserve these secrets, the nation's secrets, to preserve our safety and our dominance in the world, certainly in areas like the high seas in terms of nuclear aided defensive weapons and to see a former president just blightfully run past these requirements to handle this information so incredibly irresponsible. It's just sickening. It really is. And I have to imagine, you know, wherever they are on the political spectrum, people in the military and the intelligence community are really, uh, dispirited, um, by these revelations.

As they, as they should be, um, what else do we have, uh, going down in Florida? All right. So also in Florida, Trump filed a motion to delay his trial from May 20, of 2024 to at least mid November, 2024, which of course would be after the election. And we understand that NADA and Dale Lavera have joined the motion, according to a footnote in the filing. So let's dig into this a little bit. In the motion, it indicates that President Donald J. Trump respectfully submits this memorandum in support of one, his pending motion for a revised schedule for motions to compel and seep a section for litigation and two, and a German of the trial date until at least mid-November 2024, in light of additional ongoing discovery failures by the special counsel's office. So that's the broad headline of what they're asking for

and what they're alleging in the motion. They go on to say that months after the DOJ's representation to the court, discovery is not complete in the case, including with respect to the classified documents at issue in more than 25% of the section 793 counts in the superseding indictment. Of course, they then go on to acknowledge that Trump's lawyers don't have all their clearances in place yet, so that somewhat undermines their claim there.

Trump also argues that his lawyer in the case, Chris Keys, is also his lawyer in the New York Civil Fraud case, which is going on now, and will not conclude until December. Well, after the expiration of many deadlines in the Florida case, he says the adjournments are warranted to establish necessary facilities in the district, and in response, Judge Cannon has entered a minute order, staying the SEPA deadlines in order to entertain Trump's motion to delay the entire trial. So along the lines of what we've seen with other motions filed in this case, unlike judge

Chuck and in DC, judge can and typically drops anchor, stops everything, comes up with a pretty extensive motion schedule. Maybe sometimes has the hearing before the papers are submitted, which makes zero sense. But we could probably expect this to take a while to sort out. Yeah. And who knows how long she's going to take to a rule on this. She's just staying the Cepa deadlines until she makes up her mind on what she wants to do.

So I think this is going to be the, you know, another kind of test of where her heads at with regard to how long she's going to let these delays happen. So far, she hasn't changed the court's schedule as far as the trial and all the deadlines, but she now has. She now has stayed the SEPA deadlines so that she can make a decision. And if she takes a couple of months, like she did with the protective order, you know, who knows what she's going to decide on the trial date. Yeah, this is the first change in the actual schedule, but her it's consistent with her, her practice so far, which has been to exhibit no sense of urgency, whatsoever. And to continue to take months for these really minor rulings,

she's just the cases is not on course to hit the deadlines in the schedule, as it currently stands. So can't be too surprised by any of this. Yeah, no sense of urgency. And we're gonna see how that is juxtaposed to what Judge Chuck can is doing in DC. But we have to take a quick break before we get to that. So everybody stick around. We'll be right back.

Hey, everybody. Welcome back. Let's head to DC on September 29th, right after we recorded the previous episode of the jack by of course. Jack Smith's office filed a reply in support of his original motion to ensure extra judicial statements do not prejudice this proceeding in layman's terms. As soon as we were done recording, Jack Smith filed another thing to support his partial gag order. Now, you'll recall where we were last week, right? When we got the proposed partial gag order that was filed a week after the motion, then we

saw what it would look like. And that's the order that, when you file a motion for the court to order something, you draft up an order that the court can just sign or modify a little bit. We had gone over that, and that's for the partial gag. And Donald then had posted, by then, several things on social media relating to this case that had not yet been addressed in any filing. Now, this, because you can't really, you have to submit the filing at some time, and he's going to keep going.

So, this new filing addresses those statements and responds to Donald's filing again, opposing the restrictions. Right. Now, here's some of the considerations from the filing from the government. He they say, in some, the court may enter an order in this case, restricting the party's extradudicial statements if the statements present a substantial likelihood of material prejudice, as long as the court's order is narrowly tailored to the objectives of preventing comments that are likely to influence the actual outcome of trial, or are

likely to prejudice the venerate, which is the, you know, the jury pool. The proposed order is necessary and constitutional, and the defendant's claims to the contrary, mistake the facts. And boy, he goes off on a few pages about exactly how wrong Donald Trump's lawyers are inciting their, you know, their case, their cases that they wish to cite in this and the arguments that they make. Jack Smith goes on to say, far from being the contempt trap that the defendant claims, the proposed order is more targeted than others previously entered in the district because Trump was like, it's a contempt trap. You're going to take away my first amendment rights. I won't be able

to say anything without being in contempt. And DOJ is arguing here. No, this is very narrowly tailored so much so that it is more narrowly tailored than most of the other previous gag orders entered in the district. Defense counsel previously used this same contempt trap language when opposing the imposition of a protective order in this case. The court rejected that suggestion that balancing the defendant's interests with the need to protect the due administration of justice was tantamount to a contempt trap.

No, it's not. And so this is a calm. He's been reusing this phrase contempt trap quite a bit. So again, there's a hearing on this partial gag order that's going to be scheduled. It is scheduled already for October 16th. And then I assume that Judge Chuckkin will make her decision shortly after that. Yeah. And listen, you use the contempt trap argument once and it doesn't work. Hey, why not

just reload it right in front of the same judge and take a second run at it. You see DOJ really hammering that language here of narrow restriction, because that's the heart of the constitutional analysis. It is a limit on your first amendment freedom of expression, but if it's narrowly tailored to suit a clear objective of the court, in this case, to maintain the fairness of the trial and without prejudicing the jury ahead of time and intimidating witnesses, that can be seen as a constitutionally consistent limitation on First Amendment speech. So, in the meat of their filing DOJ outlines the recent extra judicial statements. And they say the need for the proposed order is further evidenced by a review of the defendant's

prejudicial statements in the weeks since the government initially filed its motion on September 5th. So here they come. On September 5th, shortly before the government filed its motion, the defendant posted an article on the social media platform Truth Social on which the defendant has more than 6 million followers, making claims about the court with this sarcastic caption, quote, oh, I'm sure she will be very fair, close quote, and an article circulating a false accusation against

a special counsel's office prosecutor with the caption, quote, really corrupt, close quote. So again, they're not just insulted by this or offended. Their concern is these statements circulated to a broad audience of at least six million people initially, who knows how many more eventually, will have over time an effect on poisoning the minds of the jury pool. So the next one on September 6th, the next day, also on Truth Social, the defendant is you two posts, tacking former vice president, comma, a witness identified in the indictment. Remember that language? In relation to this case, saying that he had seen the vice president, quote, make up stories about

me, which are absolutely false, and that the witness had gone, quote, to the dark side. Yeah. So you'll hear that again and again and again, because this is beyond just arguing a concern about prejudicing the jury pool. This is actually bumping right up against witness intimidation, right? What DOJ is pointing out here is that these comments could have the effect of influencing, intimidating, people who have already been identified

as potential witnesses in this case. So they go on to point out an interview that aired on NBC's Meet the Press on September 17th, which the defendant answered questions for more than an hour and said among other things that the Georgia Secretary of State, a witness identified in the indictment, recently said things that he had not, including that the defendant, quote, didn't do anything wrong during a phone call constituting an overt act and the indictment. And then another example, that another witness identified in the indictment, you see the

repetition of that phrase and every one of these things, the former attorney general quote didn't do his job, close quote, during the charged conspiracy because he was afraid of being impeached. So again, it's falsehoods, it's intimidation directed specifically at some of the government's potential witnesses in the case. Yeah, I mean, if I had a nickel for every time they repeated another witness identified in the indictment, I mean, I would be in a tax bracket that backfitted from Trump's tax cuts. The thing is that these are the former attorney general bill bar, the former vice president,

and we'll get into some more, too, other potential witnesses. As we, you know, as you go down this list of things that the DOJ has brought up, extrajudicial statements, these are the kinds of statements that would fall into the narrowly tailored restrictions. He can still say, and you know, Jack Smith has said this a million times, he can still say the election was stolen, the election was rigged, Joe Biden's a dickhead, he could say whatever he wants about that kind of stuff. But when you are aiming vitriol, you know, which before in the past, his language has incited violence and death threats against these folks at specific witnesses in this case

or at the judge or at prosecutors or at the jury pool, that's a problem. That could have material impacts on the jury pool and could, you know, if one or two people in DC are like, yeah, that's stupid pence or that's stupid, you, Raffin's burger told him everything was okay and it was a perfect phone call. Yeah, you know, I mean, that can really have an impact on a potential jury pool. Yeah, it's an analysis that really looks more at the effect of the statements

on the people they're directed at, whether that's witnesses or potential jurors. Rather than looking at it from the perspective of what Trump can say, should say, shouldn't say, it's more like we need to think about how this is going to impact the proceedings and the witnesses who are so far supposed to participate. So they continue on in this list. They talk about September 22nd on Truth Social, the defendant falsely claimed that the retiring chairman of the Joint Chiefs of Staff, comma, a witness cited in the indictment,

comma, had committed treason and suggested that he should be executed. So, like, if that doesn't bump up against witness intimidation, I don't know what does. The guys of witness, you know he's a witness, because you're ready in indictment, hopefully. And you're saying that he should be put to death for some ridiculous nonsense. For having had the temeroy to say something that's had Trump now considers insulting. So that's September 22nd.

The next one, September 23rd, Entries Social, the defendant, reposted with the caption, quote, what a mess of false claim that the Georgia Secretary of State, quote, new of tens of thousands of fraudulent votes in Georgia in 2020 and covered it up. Close quote. And then finally, they point to one on September 26th, also on true social the defendant posted a link to an article singling out a specific prosecutor in the special counsel's

office and claiming that the SCO is a, quote, team of lunatics that are working so hard on creating election interference. So again, more witnesses, Raffin's burger, general milling identified as a witness in this case. He's also a witness by the way down in Florida. Right. It could be. And the Raffinsberger stuff is repeatedly claiming that Raffinsberger said things that he didn't actually say.

So Raffinsberger is going to have an opportunity to take the stand and provide evidence to the jury. And what they're concerned about is this constant repetition, this din of false claims about what Raffin's burger said, is gonna undermine the value of that evidence and it's gonna put questions in the minds of the jurors, like, oh, wait a second, but he used to say this and now he says this, when in fact, none of that is true.

The guy never said the things that Trump says he one. In fact, none of that is true. The guy never said the things that Trump says he said. Yep. Yep. And they go on to say, Andy, through both of its proposed orders, the government seeks appropriate processes for protecting the jury pool in this case and the integrity of the proceeding, the court should grant the government's motion and enter them. The defendant should not be permitted to obtain the benefits of his incendiary public statements and then avoid accountability by having others whose messages he knows will receive markedly less attention than his own, fein retraction. And what he's talking about here is he puts a little footnote there. And in the footnote, it says, by the way,

what I'm talking about is the defendant was recently caught potentially violating his conditions of release and tried to walk that back in similar fashion. In particular, on September 25, the defendant's campaign spokesman posted a video of the defendant in the Palmetto State Armory, a federal firearms licensee in Somerville, South Carolina. The video posted by the spokesman showed the defendant holding a glauquistal with the defendant's likeness etched into it. The defendant stated, I've got to buy one and posed for pictures with the FFL owners, the armory owners. The defendant either purchased the gun in violation of the law on his

of his conditions of release or seeks to benefit from his supporters mistaken belief that he did so. It would be a separate federal crime and thus a violation of the defendant's conditions of release for him to purchase a gun while this felony indictment is pending. So that's what he meant when he said that Trump should not be permitted to obtain the benefits of his incendiary statements, but avoid accountability by having others' feign retraction, like to walk it back. He shouldn't be able to do that.

And that is something that can also taint the jury pool. Not because he thinks Trump's a jerk for doing it or whatever, but because of these specific rules that govern court proceedings. Yeah. My guess, if I had to put money on it today, I think Chutkin is going to come out with some form of restriction on what he can say and post about witnesses and things that might pollute the jury pool, but it doesn't look good for how that's going to ever get enforced.

No, right. And I think that's the big question. Wherever she draws those lines, he's going over them. And then what do you do? Are you throwing them in jail over it? No. Is she going to put an absolute 100% ban on the guy to keep him from making any public statements? It'll never pass muster. So it's. I imagine she'll, she might put a full gag order on him.

After a couple of chances of violating this potential one that she might approve. This partial one. But I don't think she'll be able to move the trial up because she's already made her arguments for why it needs to be in March. Yeah. And it wasn't just why it needs to be in March. And it wasn't just because it shouldn't be after the election. It was also because Trump needs time. Right. So she can't really go back on that.

But maybe she could. Maybe she'd be like, we got to move this up a little bit because you keep tainting the jury pool. But I don't see her maybe, maybe finds. That's the only kind of realistic attainable thing that actually might have some impact on it. We're talking about that this week in the context of this. He's a dry girl.

There's lawsuits right now. Yeah. We're talking about that this week in the context of the civil lawsuit in New York. And if he gets a similar, don't call it a gag order up there and violates it. Really, the only penalty they have in civil court is to start imposing fines, but that actually might, you know, that might make a point with him. So if Chutkin starts imposing fines every time he says something outside the scope of the limited order, who knows?

Maybe that makes him think twice, I don't know. Yeah. And she could increase it like 50,000 for the first time. 100,000. It doubles each Yeah. And she could increase it like 50,000 for the first time. 100,000. Exactly. It doubles each time. You continue to say shit. And if he keeps on going, I mean, just run up the fines, you know, I don't see her jailing

him. No, that is not going to happen. I just don't. And not because I think she's a poor judge or because she's a rat. Like, I think it would just bring up all sorts of other complicated arguments that would delay this case. And I think that her number one goal

and the Department of Justice's number one goal is timely application of justice. And so I would worry. It would blow up the, it would blow up the schedule. It would create massive issues on appeal and for review, potentially by the Supreme Court. That stuff would have to get sorted through directly before the trial proceeded if she tried to keep him in custody. So, you know, put all those things together.

I think it's highly unlikely. Yeah. I mean, I know a lot of people are like, Jalen, put him in jail, jail him. But again, that, that, that would, that could push this trial past the election. Yeah. It's just not realistic. I don't, I don't think anybody wants that. Yeah. Um, particularly the government. Uh, and, and me, I, I would like for this to be done before, before the, before the Republican National Convention is my dream come true Well, maybe maybe she listens to the pod. She's now heard your request and she's like, all right. I'll get it done You got it. That's what happened all throughout the Mueller investigation. I'm pretty sure you guys listened to my Mueller podcast

And we're like, you know what we we weren't gonna go after Manafort for you know, 371 But man that that Allison makes a pretty strong character. I'm sure. I'm sure that's exactly, exactly. Well, I really want her to win the fantasy indictment draft this week, you guys. I'm sure that's how it went down. Yeah. And the Netflix limited series of Mueller.

She wrote that'll be how it happened. That was all I'm kidding. By the way. All right, we have a lot more to get to, especially some other motions in DC. We aren't done in DC yet, but we do have to take a quick break. So stick around, we'll be right back. Bum talk about defendant Trump's sweeping motion to dismiss the charges against him in DC based on absolute presidential immunity. Alan Feuer written

has written for the New York Times quote, the request to dismiss the election interference indictment, which came in a 52 page briefing filed in federal court in Washington was breathtaking in its scope. It argued that Mr. Trump could not be held accountable in court for any actions he took as president, even after a grand jury had returned criminal charges against him. This is what it says in the filing. This is some bold shit, by the way, um, he says the president of the United States sits at the heart of our system of government. And first of all, no. There are three co-equal branches of government, but whatever, I'm not going to get an argument with the Lauro or Kais or whoever's writing this.

They go on to say, he is our nation's leader, our head of state and our head of government. As such, the founders tasked the president and the president alone with a sacred obligation of taking care that the laws be faithfully executed. Yeah, something he failed to do. So, I mean, I could like 12 examples come rushing into my head as I read that in the motion. I'm like, wow, that's that's Balzie for a guy who ignored most, most requirements, most legal responsibilities while president to shroud yourself in the take care clause now. Yeah. Yeah.

Look at you. Faithfully executing our laws against telling foreign nationals nuclear secrets, okay? Cool. Yeah, yeah, just like that. They go on to say to ensure the president may serve unhesitatingly without fear that his political opponents may one day prosecute him for decisions they dislike. The law provides absolute immunity quote for acts within the outer perimeter of the president's

official responsibility. And they actually quote Nixon V Fitzgerald here, which is great. They say breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the outer perimeter of his job as president, but at the heart of his official responsibilities as president. They are seriously about to argue that everything Trump did leading up to on and after January 6th weren't just outer perimeter duties.

They were at the heart of his responsibility as the president of the United States. The Times reminds us that the idea that the president can't be prosecuted for actions undertaken in his official capacity as commander in chief has never been tested in the courts before. Lourow argued that the former president's repeated lies that widespread fraud had marred the vote count and other steps he took to subvert the normal course of the democratic process were in fact efforts to ensure election integrity. Of course it was not.

Only a handful of presidents exist that could help guide Judge Chuckkin in making a decision about such broad claims of immunity and none are perfectly on point. The Times cites the 1982 Supreme Court ruling by a five to four margin that former president Nixon was absolutely immune from a civil suit arising from his official actions. But while Mr. LaRose cited that case, Nixon v Fitzgerald extensively in his filing. The reasoning in its majority opinion doesn't address whether presidential actions can be prosecuted as crimes at all, as a matter of fact. An Alan Rojanstein, a former Justice Department official who teaches at the University of Minnesota Law School, said the key question facing Judge Chuckkin would be whether to accept Mr.

Trump's attempt to reframe the accusations as presidential acts that were beyond the scope of prosecution. He goes, it's a shrewd legal gambit because it played off a legitimate presidential duty under the Constitution to faithfully execute federal law. He went on to say he will lose, but he's making the correct conceptual argument at least. You know, a couple of points for trying, I guess. Yeah, it's really remarkable. It's a remarkable document. It's long and it almost comes with a soundtrack of like Trump it's playing in the background. You know, it tries to kind of imbue itself with all this sanctity

and significance about our dear leader. But really what it comes down to is what you said before. It's a two-step argument. First, they try to reframe the facts that we know and they try to cast all of the acts. It's almost as if they admit on some level, it's not an official admission, but they're not debating what the government

alleges in the indictment. They're not saying, oh no, he didn't call Raffin's burger and pressure him. Oh no, he didn't arrange fake electors. They're saying all the actions he took, all those things that the indictment says were within the scope of his authority as president because he was simply enforcing the election law. So that's like the first step. All that stuff that you read about in the indictment, that was just normal presidential

business. And then the second step of the argument is because it was all within the scope of his duties, he has absolute immunity from criminal law when acting within the scope of his duties, he has absolute immunity from criminal law when acting within the scope of his duties as president. That is such a completely unfounded and amazing assertion of complete and total immunity for anyone who ever serves as president for the rest of our republic, they are unbound by existing law, right? It's essentially, if you follow their argument, you are agreeing with the central idea that our founding fathers fought against. The reason they came over here and started

this place and built our government was because they didn't want to live somewhere where the guy in charge was basically lived above the law. And if you go along with these arguments, that's essentially what you're creating. So, you know, think about, here's a recent example. Yesterday, we learned that Biden about, here's a recent example. Yesterday, we learned that Biden is taking money that was acquired under the Trump administration, was appropriated by Congress on this like $19 billion to use building more parts of the wall on the southern border. And the Biden administration did everything they could to try to get those funds reprogrammed to get them repurposed for other things to be able to use them for anything other than building the wall because they said they weren't going to build any more wall.

But Congress didn't change that law. That law is still in effect. And therefore as much as it pains them, they have to either they have to comply with that law, which means spend the money on some wall building where you lose it for good. That's a president abiding by the law. Even though it's one he doesn't agree with and doesn't want to deal with, he's abiding by it. If what Trump is arguing in this motion is true and found by the Supreme Court to be the current state of our constitutional law, then the president basically has no limitations whatsoever. Yeah. And that, like you said, that is completely antithetical

to the whole reason America exists in the first place. That's right. That's right. So what's going on now? There's some motions that were made, other motions that were made, and we actually got some rulings today, didn't we? Yes, we did.

So we've learned a little bit about the minimal classified material in the case from a Trump legal team filing, asking for a delay in the SEAPA section five deadline. Okay, so you'll recall there are about 300 pages of classified material in the DC case that are discoverable. The DOJ has said that they will not use any of that stuff in their case in chief. So they're not going to rely on any of those documents or any of that stuff as evidence

in their case against Trump. But it might become relevant. It's, you know, maybe there, maybe it involves prior statements of some of their witnesses. So you have to turn it over to the defense so the defense could use it potentially when cross examining those witnesses. That's just one example of how this classified stuff could become relevant, even though the government is not really going to use it. So one of the documents is the March 2021 National Intelligence Council report on foreign threats to the 2020 election. Now, that report concluded that there were no indications that any foreign actor attempted to interfere in the 2020 election. Now, that report concluded that there were no indications that any foreign

actor attempted to interfere in the 2020 elections by altering any technical aspect of the voting process. Now, Trump contends he needs more time to scour US classified files across the intelligence community to obtain details and references in the 2021 report, which they characterize as, quote, Brady material, which I'm not so sure about that. He wants a bunch of extra time to, from this report that said that there was no foreign election interference to change votes.

Yeah. He wants to go and search all of the other classified stuff across the alphabet soup of the intelligence agencies for every reference to like he wants to do like what, six months of research on this particular report to look for Brady material? Yeah. He wants to do that research. He just said on this report, which the government has already said they're not going to use to prove their case.

It's just not said. It's the delay game, right? We've been down this road a couple of times already and this is just the latest part of it. So in any case, Chautkin has ordered an X part a sealed meeting with Trump's team concerning SEPA in this case. Roger Parlov from the law fair suggests or he says that this suggests to him that she's rejected his motion to delay indefinitely, but he says that that's merely speculation.

That's kind of where we had left it a couple of hours ago until we learned, uh, just literally what an hour before we started taping on Friday that Judge Cutt, Chutkin has entered rulings on some of these motions in DC. So first, the motion we were just talking about Trump's motion of postpone, the SEPA deadline, she's denied that one. So the SEPA schedule still stands. Next, Trump wanted a redacted copy of Jack Smith's ex parte motion to redact classified discovery, and she

denied that one as well. Trump also wanted an opportunity to object before she rules on that DOJ ex-partae motion to redact classified discovery. She granted that motion, Trump's motion, but she only gave him until this Wednesday to file his objections. And this is classic. In her order, she included the following language. And I quote, the court will allow the defense an opportunity to explain why it believes

that seepist statutory text and circuit precedent do not govern this case. Close court. It's kind of, you know, it's, I think what she's saying is, here's what you're going to have to argue, sir, if you. Yeah. Good luck. Explain to me why we should not simply apply the law that's obviously relevant to this point and follow the way that all courts in this district have decided why should why should be different for you Yeah

That's good. Yeah Trump also asked for an extra 60 days to file pretrial motions She denied that but she did give him an additional 14 days. That's a total Salomonics split the baby like give him something so he doesn't scream and yell too loudly. And she has not yet ruled on the partial gag order. So as of this afternoon, that hearing is still scheduled for October 16th. And she hasn't ruled on his motion to dismiss everything because presidents are totally immune. Well, that one's going to take a little more cooking before we get to a decision on it. And there's no reason she would rule on the, don't call it a gag order before the hearing on the 16th. So those things are still lingering out there.

Yeah. No. I imagine she'll grant some sort of partial restriction on his pretrial extrajudicial statements. I also imagine she will deny his motion to dismiss, but that will be appealed. And whether a stay on this trial is put in place pending the outcome of that appeal, which I don't think will happen, but it could. And then we, we might not, I mean, that could put this off for a very long time, because it could go all the way up to the Supreme Court. But I don't think they'll stay the trial pending that appeal. I think they'll allow this trial to go forward because that can cook in the background. And the decision can come later, which can give them a new trial or overturn any conviction that might be gotten.

Yeah. It seems to be that's how the courts work. Like, let this go. We'll do the appeal, and we'll talk about something similar, like the John Eastman case. Like, to turn your emails over, we'll consider your appeal,

and we'll let you know what we decide down the road. Yeah. And I think to be clear, I agree with the professor from Minnesota. It's a tactically wise motion, the motion to dismiss. And basing it on, you know, this concept of absolute presidential immunity from everything. It's controversial, but what they've done is created, it's a Hail Mary time bomb, right? It's a swing for the fences approach. And it is a, like you said, it's a time bomb

that will linger out there. The trial will go on if he gets convicted, they'll appeal on this grounds and it'll have to go to the Supreme Court. So it allows him to continue that entire period after a conviction, let's say, to say, well, I'm not really convicted because I have this appeal. This should never have happened and the Supreme Court is going to decide that this case should never have gone forward. La la la la. And if he's right, which I don't think, they'll go with him, but who knows at the Supreme Court, it will ultimately, it could blow up the entire case and any conviction that they achieved a trial. But we'll see, it certainly gives him some ground to stand on and keep claiming the whole

thing was unjust and illegitimate, even after he's convicted, if he is in a court of law. Yeah, agreed. All right, let's talk about Johnny Smith a little bit and take some listener questions. But before we do that, actually, let's take a quick break. We'll do that as soon as we're as we're back. Stick around. Hey, everybody. Welcome back. All right. One more story. And then we'll take some listener questions. A while back, as you know, John Eastman asked the Supreme Court to vacate rulings that found he and Trump participated in a coup in search of illegal theory.

You will remember when the January 6th committee subpoenaed him for his Chapman emails, he sued to block them. But then Judge Carter in California determined that it was more likely than not that Trump and Eastman violated Title 18, US code 371, which is conspiracy to defraud the United States and Title 18, US code section 15, 12C2, which is obstructing an official proceeding. And that judge ordered Eastman's emails handed over to the committee, pursuant to the crime fraud exception to attorney client privilege, right?

Because Eastman's like, I'm Trump's attorney. You can't have my emails. They're privileged. There's attorney client privilege, right? Because Eastman's like, I'm Trump's attorney. You can't have my emails. They're privileged. There's attorney client privilege. And judge was like, nah, these emails pretty clearly show that you probably more likely than not as a standard, not beyond a reasonable doubt, right? More likely than not violated these crimes. Excuse me, violated these statutes. And so we're handing these over. Now, Eastman's underlying appeal because he asked for a stay, like, stop them from going over while I appeal. And violated these statues and so we're handing these over. Now, Eastman's underlying appeal, because he asked for a stay, like stop them from going over while I appeal.

And they're like, no, and the Supreme Court's like, no, they're sending them over. This is kind of what I was referring to and the other thing with the motion to dismiss based on presidential immunity and Chutkins trial. They're like, no, we'll consider your appeal, but go ahead and hand those over. No stay for you.

And so that appeal made it all the way up to the Supreme Court, who this week denied to grant a motion for surgery, which means we're not going to hear this case. That upholds the lower court's rulings, right? This happens quite a bit. Now what's interesting here, I mean, first of all, he loses. That's fun. But what's interesting is that Justice Clarence Thomas actually recused himself from this case.

And we don't know exactly why, but we can guess, right? Because you'll recall an email discussions between John Eastman and Kenneth Chisbro that Justice Clarence Thomas was the last best hope for a ruling to cast doubt on the election results. And it made me wonder if that's why they focused so hard on Georgia because he's the administrative judge. That's over the 11th circuit down there. On December 31st, actually, 2020, Ken Cheesebro wrote to Trump's legal team, we want to frame things so that Thomas could be the one to issue some sort of a stay or other circuit justice opinion saying Georgia is illegitimate doubt. Thomas is our only chance to get a favorable judicial opinion by January 6th,

which might hold up the Georgia count in Congress. And John Eastman wrote back, I think I agree with this. A favorable move by Thomas would kick the Georgia legislature into gear. So Thomas is mentioned in these emails, maybe that's why he recused from this case. I frankly was surprised that he would ever recuse from anything ever, but maybe some of that pro-publica reporting and the pressure and the legitimacy crisis that the Supreme Court is facing right now, put a little pressure on him

to maybe do the right thing for once. You have to wonder, it's been a really interesting question, watching all that reporting from ProPublica and some from the New York Times, like, what does it take to actually get Clarence Thomas to recuse, or not even recuse to even just acknowledge income and benefit and potential conflicts. So yeah, apparently we stumbled across one of those thresholds, I guess, in this case. And the emails, the references to him certainly, certainly seem relevant, but it's hard to say what exactly he was thinking of when he decided, yeah, maybe I better stay out of this one.

Yeah, well, good, I guess old dogs can learn new tricks. Maybe I still think you should resign, but. Yeah, I'm not so sure about the old dogs thing either. Maybe just I think you just woke up and thought, oh, I'm in enough trouble as it is. I better steer clear of this one here, but we'll see. Yeah. All right. Well, do we have any listener questions this week?

We do. We do. And I picked this one because I thought it was kind of fascinating and also because the civil case in New York has been such a big story this week. And this question kind of raises the issue of like how could that be relevant to the Jack Smith trial. So this one comes to us from Paul. He says he's Paul in DMV. Now to me, DMV is DC Maryland, Virginia. That's what people in this area call in DMV. Now to me, DMV is DC, Maryland, Virginia. That's what people are in this area called the DMV.

I don't know if that's what he's referring to or not, but in any case, he begins high, Allison, and Andy, I listen to your podcast every Sunday, morning while I take a long walk with my dogs. All this walking I've done is helped me lose 80 pounds since January, so thank you for being a big part of that. Well done, Paul and the DMV. You're awesome.

All right. He says, my question touches on the New York civil case against Trump and the Trump organization. Judge Engaron ruled quite forcefully that Trump and other leaders within the Trump org had a long history of engaging in fraud. I know financial fraud is vastly different from Jack Smith's charge of defrauding the United States in the January 6 case. On the other hand, can Jack introduce this ruling

in the New York civil case as evidence that Trump has a history of committing fraud across a number of different areas to help prove the case that he attempted to defraud the US? In other words, once a fraudster, always a fraudster. So those are really good questions. A bunch of stuff wrapped up in that. Paul, so let me try to tease through a little bit of it first.

First, on the issue of the judge just kind of deciding fraud in the fraud case before the trial, which I think struck people as being very strange. And it is, it's not super common. But what it comes down to is this is not a case, there's two different kinds of civil cases, cases in law and cases in equity. Cases that are brought in law, alleging violations of law, the remedy for those cases is the awarding of damages.

That's kind of the typical civil case that you think about. Somebody does something bad to you, you sue them, and then if they're found guilty, then they have to give you money. Equity is different. Equity is a case that's brought for the purpose of forcing someone to take some action or to restore equity to the plaintiff

who has been denied some right or some benefit or something like that. And typically, especially in New York, cases in equity are heard on a bench trial. So just before a judge and not before a jury, it's kind of, it's the same here in Virginia, cases in DC, cases in federal court here, if you bring a case, facing only alleging equitable relief, you're probably gonna have a bench trial. So that's how Trump ends up in a bench trial,

and that's how based on the government's motion before trial, the judge was able to decide as a matter of law, based on the evidence he had seen so far, Trump was guilty of fraud. And so the trial is simply to determine how much of his ill-gotten gains he's gonna have to give back. So there is a judicial finding of fraud here.

Well, I think there's also, I think there were also six other counts that have to be decided, but the, you're right, the overall fraud is determined. This is determined. It's like stipulated at this point. Kind of like the partial summary judgment in the defamation case of Ruby Freeman and Shay Mons or Eging Carol.

Exactly. We already know you did this. We already know you defamed. We don't have to prove falsity in the Fox News defamation suit, for example. Like a big chunk of the trial is kind of, you don't have to do that anymore. the Fox News defamation suit, for example, like a big chunk of the trial is kind of, you don't have to do that anymore. The Giuliani case, the defamation case is even weirder

because like in that one, the defamation, they had decided defamation before the case went to trial because Giuliani admitted it. He admitted it in his final and said he had said things that were false about these people. So. Yeah, and he failed to hand over stuff and discovery. So it was also just sanctionable.

Yeah, so a lot of bad moves there. Now, they could maybe have gotten themselves a bench, or I'm sorry, a jury trial here, if they had asked for one, it's not common in the case of equitable relief, but they could have asked for it. They would have had to litigate that point that might have won. Had they done any of those things in one,

they would be a much better place than they are right now in front of this judge who seems to not have a lot of time for Trump and his nonsense. But any case, can you use that finding of fraud as evidence in the Jacksonville case? And as a top line matter to the answer is now? You can't use evidence of a finding of fraud in a civil case. You can't use that, I'm sorry, that judicial decision in the civil case as evidence of what they call conduct in conformance. So it's not, you'd essentially be making the argument like, look, Jerry, he committed fraud in New York

in this civil matter, so he probably did it here too. That's like the kind of, uh, you pretty explicitly cannot use, use it in that way. You could potentially use it if it was very similar facts, very similar circumstances, which we know it's not here, right? The civil fraud in New York, very different from defrauding the United States regarding the election. You might be able to use it to show pattern or practice, but that's hard to imagine here. The only other way it could be relevant is if Trump is convicted in the federal case in DC and he is sentenced during the sentencing proceeding, you might be able to get in evidence of fraud or similar bad behavior in other places. The judge can consider that when they're deciding what kind of sentence to impose, but that's about the

only place I could see this happening and it's still a bit of a long shot. That's kind of the same with other crimes too, right? Like if I'm a criminal defendant on trial for robbing a store, you can't bring up my past drug convictions and my past whatever's, or my past if I had a DUI or something. But that is something you take into consideration during sentencing. So I... That's exactly right that because I imagined it would be the sum, something similar with civil proceedings. Yeah, it's exactly right. You basically, there's a whole lot of law on this issue,

but generally speaking, you can't, I don't have any drug convictions and I'm not on trial right now. I was just, it's all hypothetical. It's all completely hypothetical. You can't use prior convictions. You know of. Enough. I love, I like it here you.

You can't use prior convictions to convince the jury that you did the acts that you're accused of in the trial. But they can come in in other ways. Like if prior conviction was for a weird thing that you did and you did the same weird thing when you're allegedly committing this crime, you could maybe get it in as evidence of planning or prior, prior similar behavior sort of thing. You definitely can come in for sentencing, but it's a bit of a hot button issue in any trial. Yeah. And there's lots of, lots of rules of procedure around it too.

So, very good question. Thanks for that. Anybody, if you have a question for me and Andy, there's a link in the show notes for you to fill out a form. So, please do that. I encourage you to send in your questions. These are always really great thoughtful questions that we get from listener. So, thank you very much for that. Andy, before we get out of here, anything else on your mind? I mean, we only really are covering. There's so much else going on outside of the purview

of the Jack Smith investigations and trials that it's hard to sort of not talk about everything else that's going on in the news. Yeah, it's the New York Attorney General, Tish James's case. Like we were just sort of mentioning and so you know some of the other things that are... Bolton County, which turns away at a breakneck speed.

It's just, it's too much to cover. It's good that we're really focused on the Jack Smith cases here because it would be two hours to try to cover every legal development regarding Trump over the course of a week. But yeah, it's a little bit, it's kind of critical mass, you know, he's everywhere.

And then of course on top of that, apparently for some period of time, this week volunteered to be the next speaker of the house. So look at him. Well, he's got, that would be fun, because then, you know, any argument he made where I just don't have time for these trials. You know, that's what he was thinking.

You know, he was thinking, does the speaker get to pardon himself? I was third in line to the presidency, you know, the third is pretty good. Yeah, but it's been nuts. It's been crazy. It's not going to get any less crazy. So yeah, it's just good to be here once a week and round it all up. Yeah, nice to feel the same. All right everybody. We'll be back next week. Thanks so much for listening. I've been Allison Goal and I'm Andy McKibb.

And you've been listening to Jack. Thank you.