Jack - Episode 46 - The Fuzzy Math Cookie Jar

Episode Date: October 15, 2023

This week in Florida, Jack Smith’s office files the government’s response to Trump’s motion for a revised CIPA schedule, claiming, in part, that it is a precursor to a motion to delay the entire trial, and we learn that Jack Smith may intend to prove Trump’s motive in taking and retaining the documents, and Judge Cannon holds conflict of interest hearingsIn DC, DoJ filed a motion asking Judge Chutkan to require Trump to disclose whether he intends to employ an “advice of counsel” defense as that would affect discovery; Trump’s defense team objects to something in the DoJ’s motion to use “fair and protective jury procedures” but it is unclear what; Trump files a motion for “Select Committee Missing Materials” that may not even exist.In other Special Counsel news, Robert Hur interviewed President Biden for several hours; reporting says that Hur plans to wrap up his investigation soon.And we have a correction from last weekA 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. We made it through Friday the 13th. I am Alison Gill. And I'm Andy McCabe. Oh my gosh, it's like the world is on fire out there. We're gonna put all that aside and focus on our business here because there's lots to cover this week, including a number of filings and briefing scheduled in both the DC and Florida cases. Yeah, and a tantalizing new detail buried in one of those filings about what Jack Smith

intends to prove at trial, if we ever get to it, in the Florida case, as well as a brief update on the different special counsel and different, totally different special counsel investigation, the one into President Biden's handling of classified documents, the ones found in his home and office. So Andy, we have a lot to cover. Where do you want to start? Well, all things special counsel, but we should start. Let's start with the government's response to Trump's motion to delay his Florida trial

until after the 2024 election. All right. So you're going to recall last week, we covered the former president's motion to revise the SEPA section for schedule and to adjourn the trial until after the 2024 election. Now his argument was basically that the special counsel is slow and handing over discovery. He doesn't have a skiff nearby to review documents. And that is lawyer Chris Keys. The keys are keys. I think it's keys.

Okay, I'll take keys. Keys is too busy for this case because he's also defending Trump in the New York civil fraud case brought by Latisha James. Now, Walton Aura and Carlos Delevere joined Trump's motion to upend the trial schedule. In response, we know that Judge Eileen Cannon stayed the SEPA deadlines pending her consideration of Trump's motion. So basically, we can't get any work done while I think about something.

I think that's how I read that one. So this week, Jack Smith's office filed the government's response to Trump's motion. And he says a couple different things here. So first, Smith says, and of course, for paraphrasing, Smith says, we told you Trump's earlier motion to postpone CEPA deadlines was just a precursor for a motion to delay the whole trial. But the court already rejected this argument when he first tried to schedule his trial for after the election. Jack then reminds the court that there are still seven months between now and the trial

date, and that the court set the trial date less than three months ago. Smith says that Trump's characterization of the government's discovery, production, or misleading. The government produced most unclassified discovery. The day Trump was arraigned, and as for NADA, well, he didn't have a lawyer yet, but the day he got one, he got his first share of the government's production.

The government also points out that in his motion, Trump used fuzzy math to say that DOJ produced 23% of their discovery since the trial date was set. The bulk of those pages were from not as phone and were likely duplicative, and there was a text nag that made discovery take a little bit longer. You know that reminds me of it.

Reminds me of the fuzzy math he used to set the trial date in the DC case. Remember when he said they made the assertion that the average length of a trial using a title 18 US code 371 charge was 29 and a half months or something like that. But that turned out to be only a handful of January 6th cases that happened during the right average shutdown. And like those cases had like five to 19 defendants and a bunch of pleadings and pre trial. Like it was just a bunch of bullshit. And they called it and he called it out, right? And to judge Chuck and then judge Chuck him was like, yeah, this is fuzzy math. You're misleading us. I don't know how that's gonna go down in Florida.

And you know, once you've been caught with your hand in the fuzzy math cookie jar, I mean, it calls everything else into question, right? So does the discovery, when stacked up, actually stand taller than the Washington Monument, or does it only stand taller than a miniature Washington Monument you bought from a tourist shop in DC? That's the sort of thing that the judge

has got to be thinking right now. You lose credibility when your fuzzy math gets exposed and that loss of credibility, it infects the rest of your ability to present the facts in your argument. But anyway, I'm watching. Yeah, and that Washington Monument thing was if the documents were stacked end to end, not on top of each, because it's so easy to stack a bunch of pieces of paper end to end, right?

Do it all the time. Well, that's how I stacked papers in my house. Yeah. So that's why I have a 40 story house, um, is to, you know, accommodate my long, my lengthwise paper backing habits. No human being would stack books like this. Of course not. Yeah.

Smith goes on to address Trump's complaints about classified discovery by saying, quote, it's not up for discussion that one, by the way, I'm paraphrasing again. It's not up for discussion that you wrongfully retained national defense information. That's not up for discussion. Our case is going to be built on the unclassified discovery. And you have that. And by the way, put a pin in that because there's an interesting detail we'll go over in the next segment of the show that's in this particular

part of the filing. And Smith also says Trump's beef with clearances is misleading as well. Chris Keys has had partial clear and since July. And while Trump argues that keys is busy defending his civil fraud case in New York, Jack reminds the court that everyone was aware of his other trials, including the one in New York,

when you set the court date for May of next year. That's right, higher another lawyer. I mean, there's more out there. There's more out there. And as for Trump's complaints, that there's nowhere to review classified documents that's simply untrue, Jack Smith says the Miramar facility is available

and the CISO, which is the officer in charge of the classified, told everyone, this is available, the facility is available and Jack Smith points out that there's not one instance of Trump even requesting a review of the documents in a skip. Yeah, if I remember correctly, his original objection was he didn't wanna have to drag himself all the way to the courthouse in Miami

to see things in the skip. He just wanted to be able to see it right there at Mar-a-Lago and why not? That's where he used to look at all of the classified documents he had after he was no longer president. I wanna be able to skip in my bathroom. Thank you. Here's a quote to be sure, the extreme sensitivity of the special measures documents that Trump illegally retained at Mar-a-Lago do present logistical issues unique to this case.

But the defendant's allegations that those logistical impediments are the fault of the SEO are wrong. Basically, you shouldn't have retained such heavily classified if you didn't want to have to get up out of bed and go review it at Miramar. And then he goes on to say, the defendants provide no credible justification to postpone a trial that is still seven months away. And he put that in the conclusion. So very strong rebuttal. But I don't know. I don't know how Judge Cannon is going to react to this or how long she's going to take to consider these motions. She took two months, a little

over two months, I think, to approve the protective order for discovery, which delayed stuff. But they got it all and they've had plenty of time. These are really good arguments. So we'll see how she ends up where she ends up coming down on this. Yeah, she's, I mean, all judges are to some degree hard to predict, but she's really hard to predict. Again, it gets back to that fatal kind of consideration. Is it an issue of competence or experience, or is it a more nefarious issue of bias?

Like who the heck knows? She seems to really be taking her time here. Yeah. And so much so that we have a whole second segment about the Florida case, but we have to take, we have to take a quick break. So we're going to do that and we'll be right back with more. Stick around. Welcome back. A.G. There was something that stood out in the filing we discussed in the A block, if you recall you just put a pin in it.

And the Washington Post also pointed it out. This reporting comes from Aaron Blake. Mr. Blake tells us that while arguing against the motion by Trump's lawyers to delay the May 20th trial, special counsel Jack Smith's lawyers assure they're ready to go and that such a delay isn't necessarily unsurprisingly. But they also said that they're ready to prove something

significant that to this point has remained shrouded and the subject of much speculation. And that is why Trump allegedly took and kept the documents. Quote that the classified materials that issue in this case were taken from the White House and retained at Mar-a-Lago is not in dispute, Smith's office said. It then added that, quote, what is in dispute is how that occurred, why it occurred, what Trump knew and what Trump intended in retaining them. All issues that the government will prove at trial, primarily with unclassified evidence.

So bam, there you go. That's laying down the line in the sand. We're coming at you. We've got the proof, you're going to see the receipts. Yeah. And they go on to say that the, you know, in the Washington Post, this would seem important, not only for general interest standpoint, but from a legal one, right?

Because Smith's team might not necessarily need to prove Trump's intention or his motive in the case, why he retained this document. You have documents, you fail to return them when the government comes calling, and that's a crime, regardless of why you did it. Right. I mean, and we've argued that in pleading. So to say, we intend to prove why and what he intended to do with them. It's like, who, all right. But Trump's indictment in this case may know direct claims about a motive, who, all right. But Trump's indictment in this case may know direct claims about a motive. But that doesn't mean that proving Trump's motive wouldn't be helpful. And that's an important point, right? And I wanted to ask you about this because you and I have talked so much about how the fact that we don't have to show intention here. We don't have to show motive. You know,

there's corrupt. There's corruption, right? If there's corrupt intent, you have to show that. But that's not part of this. It's just you retain national defense information when we asked you to give it back. You didn't do that. So talk a little bit about why in like a jury trial, especially, which this is, having that motive helps. Sure, sure.

So let's remember as a foundational issue, what is the level of intent you actually do have to prove? And in this case, as is true in many criminal cases, the intent that you have to prove is that the documents were knowingly and willfully retained. So that's not the same as why you had them, what you intended to do with them. That's simply that you knew that you had them and you willfully retain them. You didn't have them by accident. Somebody, some staffer didn't pack them up at your office and ship them to your house

and you never opened the box. And so therefore, in a situation like that, which is basically what we or in a situation like that, which is basically what we saw with Mike Pence and what we, which we'll also like, I think it's more likely than not that that will be the conclusion in the Biden investigation. You can't, the government can't prove that you knowingly retain these things. The Trump case is totally different. The evidence of knowing retention is rampant. He made all kinds of statements about their mind and I kept them and I can have them and misreadings of the law and everything

else. You don't have to prove why. But the reason the why is important in a jury trial is because jurors are human beings just like the rest of us, and they wanna know why. They're gonna sit there and listen to you. I wanna know why. Exactly, and they wanna know why for the same reason you do. It can be hard for a jury sometimes to convict someone if at the end of the presentation of all the evidence,

maybe it's days, maybe it's weeks on trial. If at the end of that whole thing, they ask themselves, you know, if they're saying to themselves, I just still don't understand why this person did this thing. It can be sometimes hard for them to convict. So as a prosecutor, you want to paint as clear and understandable and logical a picture or narrative that you possibly can. In one inextricable piece of that story, although it's not legally required, it's kind of on a human level, you want to be able to put this piece in that explains why the thing happened. And so that's why I think they're probably, if they have evidence of that,

they're definitely going to put that on in this trial. Yeah, and you know what's funny is that the only thing he does have to prove, which was that he retained them, he says, that's not in question. That's not in question here. Right. And so I thought that that was like dang. And he's like, I'll tell you why. And also, you know, as the guy in the Washington Post points out, if you know the intention, if you know why, that can also combat defenses, you know, Trump saying, oh, it's just a misunderstanding, or I didn't know what I had. Right.

Or my attorneys told me it was okay for me to keep this. Like that's a potential defense. But if you have solid evidence, if you have, let's say, I'm making this up, I'm just, right, I'm just making this up to, as an example, let's say Trump wrote somebody a note that said, hey, keep these documents

because I think my friend, the rich guy from Australia would like to know about this. And I want to talk to him about it, down at Mar-a-Lago one night, I just made that up. That would be a good, that would be evidence of motive or, you know, intent. What was the, what did he intend to do with those things?

And it kind of makes the story complete in a way that can be very satisfying for jurors. Yeah, and it's the same in the DC case. Smith doesn't have to necessarily prove that Trump that knew that his claims of voter fraud were lies. Right. He doesn't really have to prove that to demonstrate that Trump broke the law,

but it would be helpful, like he says. Especially at a jury trial and Smith's office has made it abundantly clear it intends to prove that, devoting 20 out of 45 pages from the indictment to that very point. Right. Washington Post goes on to say in each case, the government appears to be signalling that it is not going to leave stones unturned. So what are the, I mean, because there we already have our theories about why and I know that they cover some of

the prevailing theories here. So theories as to why he held on to this stuff. I mean, that's a great question without the benefit of the evidence that apparently the special counsel has. We can only guess a lot of people like to layer in these theories that are dependent upon some sort of psychoanalysis of the former president. So for instance, like, you know, I've heard Chris Christie say publicly that he just kept these things

because it makes him feel important to any thinks they're cool and he wants to be able to show other people how important he is by knowing these facts. That might be true. I don't know that. I'm, for me, I always want like some piece of evidence upon which to a base of theory. I don't know that,

you know, amateur psychology provides that sort of evidence. It's a theory that it's just kind of self-aggrandizing and satisfying to him on some level. So that's out there. I tend to think that I think there's a lot of evidence that indicates that Trump is an incredibly transactional person that he sees most of his interactions with people and some according to some math problem of seeking advantage and obtaining leverage over people to do what he wants and to add to his advantage over others. And so because he has such a clear record of conducting himself in that way, I kind of

see the retention of the documents in that context. I think it's possible that he saw he thought he might need them or he could make use of them in some context later in life, whether that's to seek revenge against his enemies, which is also something that we know that he is very committed to. He says that himself all the time publicly. He's a vindictive and small-minded person. We know that from his performance as president. So that's kind of how I see it. I think that there was clearly some sort of compulsion to keep this stuff because you thought it would be powerful for him in all kinds of possible ways later.

Now, others say, oh, well, he was gonna sell it to the Russians or the Saudis or whatever. I don't believe there's any evidence that supports those theories yet, so I don't put a lot of stock in that. No, but, you know, having them for some purpose is important, right? I mean, some folks, you know, having them for some purpose is important, right? Yeah.

I mean, some folks, you know, one of the prevailing theories is that he's a pack rat. And this just happened. These docs just happened to be mixed in with a bunch of other less problematic materials. He's, he's, you know, put that defense forward, which is basically what is happening in the Biden and Pence situations. Right. But the government has already shown that he helped he was involved packing his materials. Also, let me say. And sort of through them before he sent 15 boxes back to NARA. I mean, so he's got a lot of involvement in these things that would puncture

that defense. Yeah. And the movement of the boxes and then trying to destroy the video of the movement of the boxes and then trying to destroy the video of the video of you trying to destroy the video of the movement of the boxes. Making the boxes on vacation with you to bed, Mr. Fed. Fed, Mr. Fed. Right. There's also the explanation that like you said, these are just trophies, mementos. I think an aid referred to them as his beautiful mind materials. But I want to talk about the having a purpose, these documents having a purpose and Washington

post covers these two because at least in one case, at least, the government has gestured toward a potential purpose. And that's the Iranian document, right? And the accompanying audio recording of Trump at Bedminster showing a potential purpose to go after a target of his eye or General Mark Milley. To the extent Trump used a classified document to go after a critic that could suggest

there's value in the documents beyond just keeping them or showing them off to burnish his ego. And when you attach value to something like that, that kind of really gives you the motive. And Andy, don't forget back in April, Jack Smith subpoenaed information about real estate deals with foreign countries in this case, in the Mar-a-Lago case. Apparently in search of maybe a financial motive, but none of that showed up in the indictment. But that doesn't necessarily mean it wouldn't be used in the case in chief as evidence to show motive. That's right.

That's right. And it's consistent with what we've been saying along that they have more than we know about it. So, you know, investigation, certainly much broader than what we've seen in the indictment so far. And so you can pretty much count on the fact that they have their plenty of cards up there to sleep at this point. Yeah, for sure.

And you know, Judge Cannon had that conflict of interest hearing today. He shed two of them. And so, and this kind of, you know, we were talking about, you know, how, so far she's been kind of within the bounds of normalcy, but it just felt like she might be nickel and diming delay tactics, right? Yes. Whereas, you know, when we talk about, you know, I just mentioned that the protective order took a two months and that she stayed the SEPA hearings while Trump's motion to postpone the entire trial. Washing, you know, I can't have anything. We can't do any work while I'm trying to think about this one thing.

And something else happened today. She postponed one of the Garcia hearings. So let's remember what a of hearing is, right? That's a conflict of interest, because we know that Dale Lavera has his attorney, John Irving, and John Irving is representing other people in this case, or has represented other people in this case, and potentially a people that might be called as witnesses by the special council office. And then also Walt Nauta, his attorney, Stanley Woodward. And we know Stanley Woodward used to represent UCL Tveris, who is employee number four at Mar-a-Lago.

He's the head of, he's the IT guy. He's the one who had Woodward. And then there was a Garcia hearing up in DC for him because he lied to the grand jury. And then he spoke to a public defender that was appointed by Judge Bozberg. And then after he talked to that attorney, he immediately said, I want to cooperate. And so that's a bigger kind of conflict of interest than we have with John Irving and Dale Rivera. So in those two back-to-back hearings today, and

by the way, if you recall, DOJ wanted to have stand by alternate lawyers on hand for these guys to talk to, which is the smart thing to do, because it's a very highly likely result of these hearings is typically, yeah, the defendant, whoever you're talking about, needs to talk to another attorney before they can possibly understand the extent of the conflict they're caught in. other attorney before they can possibly understand the extent of the conflict they're caught in. Yeah, but Judge Cannon next that she denied that request. So they had the first they had the Dale of error hearing because he's the less conflicted attorney john Irving because john Irving is no longer representing the folks that could

be called as witnesses. And it's just that right now, the government is saying they're potential witnesses that we might call it trial. Whereas with Walton Aura, they are definitely calling to Varas. And there's a bigger conflict of interest at play there. And we've talked about this in previous episodes.

But with the Dale Lavera, Dale Lavera told Judge Cannon he was fine, keeping John Irving as his lawyer. And this sort of hearing kind of reminds me of like a guilty plea hearing, right? Because the judge goes through this colloquy of, are you sure that you are cool with your lawyer having represented witnesses for the government? Are you sure you understand these terms? Do you want to waive your conflict of interest and keep your lawyer?

Are you absolutely sure? And they do this so that you can't, their decision or the decision of the jury can't be overturned on appeal for that particular reason, right? That's right. And you make a good comparison to it guilty, because the standard is essentially the same one. The defendant's choice has to be voluntary and intelligent.

So they have, has to be made while they're not under derests or coercion from anyone else. It's totally voluntary. And also intelligent, intelligent meaning, they're making this decision with full knowledge of the relevant facts. And so that's kind of, you know, we talked about this in previous episodes,

the Garcia hearing has kind of two sides to it. This is the side of the judge giving the opportunity to wave to the defendant and really building a record to show that even if this is a bad decision, it was the defendant's voluntary and intelligent decision. And therefore, it cannot be the basis of an appeal after they've been convicted. So if he gets convicted, he can't turn around and say, oh, I had insufficient assistance of counsel because my counsel was conflicted by representing another party in this matter, and I should never have had that attorney and and you should throw my conviction out. That's not going to fly now for Dale Lavera if he has been advised by the judge all of

the kind of important parts of the potential conflict here. And despite that, he's waived it in court. He's pretty much done. Here's a thing though that, you know, that was brought up by several reporters. I know Roger Parloff was brought up by several reporters. I know Roger Parloff was there for a long crime. I know Katie Fang was there. Hugo Lowe was there. And they all say that as the judge was going through this colloquial with Dale LeVera asking him over and over again, if he understood what it meant to waive this, you know, conflict of interest. And he, yes, yes,

yes. She then asked him, smartly, I think, to explain in his own words what he's waving. And in a day or a while, I got to this country when he was 17, he never graduated from high school. He seems to be having a language barrier problem. So much so that the Trump side tried to use that as a defense that he lied to the FBI saying that he doesn't speak English well enough to have understood your questions. But he wasn't able to articulate the meaning of waving the conflict of interest in his own words, but said, just, I just, I want to keep my lawyer, I want to keep my lawyer. And so she let him.

And so, but that was something that came up during that hearing today. You know, the judge doesn't have to accept the waiver, even if the defendant waves it. And I have seen this in cases before, some, um, one of my own cases, I don't know, I was a young agent in New York, where the defendant is happy to waive. And the judge says, you know what, I'm not taking, I'm not taking it. I've convinced myself that it's not wavable. And I'm ordering you to consult with whatever employer.

So, I'm a little surprised if his allocation was that poor that he couldn't really effectively summarize the decision that he was making. That's not great. But at the end of the day, you got to remember, like, he's in a really tough spot. Like his job at Mar-a-Lago is basically his entire life. It's the only thing he's ever done. He started out as a guy park in cars there. And in the last couple of years, his boss is, you know, star, his risen, so has his. And he's like some sort of managerial position now.

As lawyers being paid for by Trump. And I'm sure he sees this decision, well, I can't say I'm sure, but I would guess that he sees this decision within a financial context, more so than within a really finely analyzed, kind of legal analysis of the conflict, right? He's thinking,

Yeah, I don't know. It's too bad he can't get like a second lawyer in there to be like, okay, if you help out, you won't go to jail and then you can write a book and you'll be famous and everybody will love you. And we'll do it for you for free because we're the federal defenders and you qualify for our services

and so you don't have to pay for it. He's probably thinking, A, I have to pay for an attorney, I don't have any money, and B, if I walk away from Trump's attorney, do I get fired, do I lose my job? But basically lost my entire livelihood. So it's a tough spot, but you know, it's the judge's job to make sure that the defendant is making a good decision. And I guess we'll see if that happens. Yeah. And and here, like I said, this is the less conflicting of the two, because Irving is no longer representing either of the other clients and they are only potential witnesses

in this case. But then when they got to the Walt Now to Stanley Woodward hearing, apparently things kind of went sideways. And here's what happened. So they were arguing the typical stuff like, look, Woodward used to represent Tavaris. We are definitely calling Tavaris as a witness. Tavaris lied to the grand jury before with you as a lawyer. And then when you were gone, stop lying. And if you want to try to impeach him on cross examination, which we brought up in our briefings for this

hearing, that is a conflict. But then I guess the DOJ tried to erase something that they didn't put in the briefings, which was that they wanted to block him woodward from being able to do any summation during the case, during trial. So no summation whatsoever if he remains as an attorney in the case during trial. So, so no summation whatsoever if he remains as an attorney in the case, that's interesting. Yeah. And that upset the judge because they cited three cases, but they cited three cases from New York.

They didn't cite, they didn't have, and she asked them, do you have any precedent from the 11th Circuit? And they were like, no, and they couldn't come up with anything. And so she said, look, this wasn't in the briefings. And Woodward says, I'm not prepared to argue about summation. You know, I'm not prepared to argue that into here today. And the judge said, yep, nope, we're going to have to have more briefings now. If you want to bring up this argument, we have to have new briefings and we're going

to have to postpone this hearing. And banks gabbled out. She was pissed, apparently, according to all the reporters that were in the room Because the DOJ raised an argument that they hadn't previously raised in their briefings for this hearing And the other side wasn't prepared to defend it and so she postponed the whole hearing You know there's judges who you could get away with that But not her. Like, it's probably not a great, not a great decision on their part.

Maybe something that they came up with at the last minute after the briefings had been submitted and they figured they would just throw it out there. Or maybe something they've argued before in front of a ton of judges and they just figured she would know or everybody knows the whole summation argument, that's not just about cross, blah, blah, blah. But you can't. You can't do that to her. Yeah.

She is so gun shy. She's clearly really trying to chew on everything for a long time before she makes a decision. And she's not going to, she doesn't seem to me to be the type that's going gonna be comfortable, like making decisions on the fly from the bench. A lot of judges would, judges who actually move their, their docket forward.

Well, because that was my question, right? Why don't you say, hey, like if I, I was asking my friends who were there who were reporting on this, like, well, why didn't she just go, hey, look, you didn't bring that up in your briefings, you can't bring it up in the courtroom today. If you want to bring it up, then we're going to have to postpone this and do briefings or we can finish what we can finish arguing what you briefed on, what you choose.

Right. You know, that's not- Or just held the defense to the fire. Like, okay, fine. What's your, you know, hear the government out and then go to the defense and see if they're capable of off the top of their head saying, hey, that's not going to work for whatever reasons. You know, arguing it, that's what lawyers do. They argue this stuff.

There's no 11th circuit cases to actually be prepared with. So just tell me why you think this is a bad idea and then make a decision or as a judge, you could then say, you know what, I want a little bit more time on this one. I'm going to reserve on this question. But she's like, yeah, we're not going to make precedent today in the, in the 11th circuit or in this district. So she sees anything possibly out of line and everything comes to a complete stop. It's not a good setup for the speed of justice.

No, no, it's not. We'll see where this ends up because like I said, she took two months to do the protective order. So on discovery. So who knows how long she's gonna take to do this? Who knows how long she's gonna keep the SEPA schedule stayed, the deadlines for SEPA stayed while she decides about,

you know, Trump's motion and then the DOJ's response for pushing this trial back to the end of next year. She could take a couple of months on each of these. And then be like, oh no, the whole trial schedule has to change now. We ran out of time. So we'll see what ends up happening. But anyway, that's what went down today. Everybody's you should follow. Definitely a par-loaf and a bower. He'll go low, Katie Fang, just really great reporters on the ground doing this work down there. They're in Fulton County. So thank you very much to them. We have to take another quick break and then we'll head to DCs. Stick around. We'll be right back.

Welcome back. All right, A.G. Let's head to DC. DOJ filed a motion asking Judge Chutkin to require Trump to file his intent to employ something called the advice of council defense. So you're going to remember this one. This is basically the, I can't be responsible because my lawyer told me to do this. My many lawyers, many crazy lawyers.

So the DOJ reminds the court that if Trump wants to use the advice of council defense, meaning my lawyer said it was OK, Trump would waive all attorney-client privilege for all communications concerning that defense, which could lead to further discovery and further investigation. In their motion, they point out that at least 25 witnesses, including co-conspirators, campaign employees, the campaign itself, outside attorneys, a non-atranny intermediary,

and even a family member have invoked attorney client privilege. Wow, 25 to 25. That is not a small number. And since exhibits are due on December 18th, and if Trump intends to use the advice of Council's defense, DOJ wants to force Trump to file his intent to use that defense by the date the exhibits for trial are due because those exhibits would of course have to include advice of council exhibits. So, it's they are trying to raise this as a pretrial issue to kind of tease out the discovery and investigative tale that this would raise, right?

If he goes down this road, there's going to be a lot more work for them to do, and potentially other, a massive amount of pretrial kind of conflict over the discovery involved. Is that, I think, that's my best explanation of this one. Yeah. And the Department of Justice here, Jack Smith acknowledges that a lot of times courts don't require defendants to tell anyone what their defense strategy will be. But Jack Smith points out that Trump has told the world a zillion times they intends to use this defense.

So the cat is out of the bag, right? That's right. He'd be a bit hard to pull that one back now. Wow. Didn't he really say that 12 times on Sunday? Yeah. So since you already said you were going to do it, we would like you to do it by this time because we could have a lot more investigations, potential superseding, indictments, a lot more stuff going on, you know, from having this additional discovery, plus that's when court exhibits are due. That's right. And the DOJ adds, hey, first of all, your advice of

council defense won't work. But if you're going to use it, we should be able to oppose that defense ahead of trial because you've told everybody you're going to use it already. Right. And since Trump lawyers blabbed the defense council idea all over the Sunday shows twice, requiring him to claim it as a defense doesn't harm him at all, right? Because that's another consideration. How will this harm the defendant? But it can't, because it's not like it's a secret trial strategy anymore. So there's no harm. Yeah. It's almost like he's waived that privilege of secrecy or strategy by talking about it. It's almost like a like waving a privilege, right?

Well, he tried to do it in the, in the island cannon case with the special master, because the, the DOJ was like, you gotta tell us if you're gonna try to say you declassified this stuff. And he's like, we aren't revealing our trials, defense strategies, you know. Unless it's on truth, social in which he's

revealing every five minutes. Yeah, totally. DOJ also argued that it's efficient to do this because all new evidence, it's going to take a while to review and and he mentions again, possibly further investigate. So in order to preserve your honors trial schedule, we would need it sooner, rather than later. So this is basically sad. Just sounds like DOJ is calling his bluff on a public defense. He's been parading all over town. Yeah, I think that's right. I think there's a lot going on here.

I think first that and possibly further investigate, that's the brushback pitch, right? That's the, are you sure you want to go down here? Because if you do, this is what we're going to do. And it could be worse for you in the long run. Reminding you of the consequences. And then if he says, I don't intend to file a defensive council, then everybody in their mother knows publicly before the trial starts, that you were full of, you know, what? Right, right.

So really it comes down to like, is it, is it, is this, is this exclusively an administrative matter? DOJ is trying to be efficient. They're trying to spot a potential problem long before it becomes a problem that derails the trial schedule. They're trying to, you know, T this issue up to get it resolved in an efficient manner, or is it just a bluff? Are they calling his bluff? Are they trying to tease out the strategy and really subtly kind of convince him to not do it? I don't know, it's a good question, what do you think?

Or dare him to, like, yeah. Like I dare you to waive all your attorney client privilege on communications, boy. It's like middle school, right? It's not going to work. I'm not touching you. I'm not touching you. It's got a very middle school for writing a tone to it. But it comes under the cover of, hey, this is a rational thing to do. We're trying to keep everything. We're trying to foresee problems and handle them before they become huge problems. And so usually we don't do this,

but you told everybody you were gonna do it. So to keep the thing tight, keep the schedule tight, we'd like to see it before December 18th. So we'll see. It actually sounds to me like the kind of thing that Chutkin might go for. Right, and there was another motion filed alongside or like right back to back.

And this is the protective order and for the jury procedures. Okay. Yep. So we've already seen this in a couple of other cases, specifically with Donald Trump. And senior editor for law fair, who is Roger Parloff, he pointed out on Twitter, the most interesting thing about the government's motion to use fair and protective jury procedures in this case is that the defense apparently objects to some aspect of it, like they object to protecting the jurors.

The motion is largely standard. It would permit open source research of jurors, but would forbid asking to follow or friend any of them on social media or make any analogous affirmative request to gain access to posts or profiles that are not otherwise publicly available. Okay, sounds reasonable. And yeah, and Roger Parleff says, it's unclear what aspect Trump finds objectionable here,

but final contested motion does, of course, repeatedly discuss Trump's history of intimidating use of social media, citing his recent attacks on Judge Angeron's clerk in New York. And Mr. Parloff assumes that those are included, Professor Parloff, I should say, assumes that those are included because it's contested, right? Right. Well, I'm nice to everybody and everyone hates me anyway. So I can't possibly change anyone's mind.

So I should be able to intimidate jurors. I mean, that's basically that was his argument in EG. So, and the government brings up the EG in Carol case, right? Right. In the upcoming defamation case against Trump. And is apparently keeping jurors' identity secret from parties in light of Trump's prior behavior. And the government is not asking for that here though. So we'll see what ends up happening,

but Judge Chuck can, and you know, it's interesting because you know, you said, it seems like Judge Chuck might entertain these things. She did issue a minute order rapidly, saying she wants to set up a briefing schedule and she gave shorter deadlines than the local default rules. Yeah. She gave Trump 10 days to respond to both of these instead of the usual 14 days.

And DOJ gets five days to respond to him instead of the usual seven days. So keep it rolling. Let's go. We got miles to ride before we sleep. These things on. Teet up more motions, more briefings, more faster. He's bound and down. We're exactly. Exactly. Oh, God. more emotions, more briefings, more faster. He's pounding down. Where exactly?

Exactly. Oh, God. All right. So Trump also filed a motion for rule 17 subpoenas. Trump has filed for permission to subpoena the archivist, the clerk of the house, the entire House admin committee, Biden's current council,, rich, sober, the general council of DHS, Barry Loudermelk and Benny Thompson. I know that's quite a list. He wants to do this because he says that Barry Loudermelk, who you will

remember is the guy who lied five times about giving capital tours ahead of the insurrection, Loudermelk allegedly told him that the January 6th committee is withholding records. Of course, of course they are. So here's what he's asking for. He wants the select committee missing materials. He wants records and communications regarding methods, practices, instructions, litigation holds, and or policies regarding transfer retention,

archiving or destruction of the select committee missing materials. He wants records and communications regarding the loss or destruction of the select committee missing materials. He wants communications with DOJ or other law enforcement agency related to those materials. He wants records and communications relating to any accommodations or agreements with the executive branch, including DOJ, DHS, White House, regarding the infamous missing materials. And of course, any other documents, communications or records that in any way pertain to the missing

materials. So, A.G., can you first remind us what are we talking about with these now infamous missing materials. So, A.G. can you first remind us what are we talking about with these now infamous missing materials? Yeah, and this has been a public talking point. They deleted everything that's, you know, that's all my exculpatory stuff proves in my innocence. Right. Blah blah blah. What happened was, first of all, the house made all of their stuff, it's publicly available. Right.

Except for some of these January 6 videos, which are now publicly available through, I think, a Kevin McCarthy joint. You can go in and watch them. Right. A similar. But all of, and per the house rules, the video depositions were destroyed. Right. So, and that's per the house rules, but the transcripts all exist.

Right. And so, he's making a deal about this. He's saying that they deleted evidence. I see. That's what the house rules dictate. So those, at least that's my understanding. So those video tape, the videos of the depositions that did not get played in the hearings have been destroyed.

Percent house rules, I got it. Yeah, or I think maybe the videos exist, but the tapes don't, like it's duplicative, right? There's something that is duplicative, and he is saying that because a duplicate record was destroyed that there were other records destroyed. And he wants all that information on the quote unquote missing materials.

Yeah. Well, if you want to construct a conspiracy about why you're innocent, then no better way than to begin a hunt for something that you claim is missing, but isn't really missing. So, because that could go on forever. So there's obviously,

you know, you have to read everything that happens in these requests in the context of delay. And here we are, right, back to kind of square one. Yeah. And in his motion, Trump says he conferred with DOJ because, you know, there's usually a rule in place where if you're going to file a motion, you also have to include whether the opposing council agrees with you or disagree, opposes your motion. And so they said here that they conferred with the DOJ, but the DOJ is not taking a position on this request at this time. So maybe they just need some time to, I guess, read how stupid it is. I don't know.

They were like, dude, let me call you back tomorrow. This is nonsensical and I haven't read it yet. And they're like, oh, I need to take a position. I need a minute to digest the idiocy that was just handed to me. I don't know what the reason was, but I imagine when they do, they'll say, I think what they'll say is that Trump

has all these records. They're all either public or available or they've all been handed over in discovery. Or they could argue that these subpoenas are improper. And I do look forward to that response. And the reason I say that is because Andrew Weissman tweeted that nothing about this motion complies with rule 17 because rule 17 does not permit pretrial production of generalized documents. You have to call for production of specific known documents needed for or needed and that are admissible. Yeah, generalized, calling for generalized documents, that's discovery.

Yeah, that's like missing documents. Yeah, that's pretrial kind of, you know, here we are. We're all looking for each other's stuff. The missing tapes could stack up one at a time and be taller than a blue whale, which is the largest mammal on the planet. It came to me with tears in its eyes and you saying that I was the perfect president. So, that is what is going on in DC. Got it.

Got it. All right, one more break. I'm going forward to all these things. Yeah, we do have to take another quick break and then we have some really interesting information about a completely different special counsel. Here we go, special counsel number three for today's show. Yeah. Oh, and we also have a correction slash question, so I look forward to that.

So we'll do that right after the break. Stick around. Well, come back. Okay, we have some movement in another special council investigation. So we're not talking Jack Smith here. Take your Jack Smith robes off, everybody. Nearly a year ago, you will remember that A. G. Merrick, Garland, appointed Robert Herr to investigate the classified documents found at President Biden's office and home.

So from my colleagues over at CNN, special counsel Robert Herr's interview of President Joe Biden is a sign that the classified documents investigation is nearing conclusion after casting a wide net that included dozens of witnesses during the 10-month-long probe. The White House announced this week that Biden was questioned by her and his team over two days in a voluntary interview that CNN is reported with scheduled weeks earlier. One source told CNN that investigators have

indicated they hope to wrap by the end of the year. And source is familiar with the investigators line of questioning. So they got the impression that charges are unlikely and that there has been no discernible, key discernible, grand jury activity. There's been a lot of questions about why her is taking so long because of course we know that the DOJ investigation of Mike Pence concluded what, that's got to be over a month ago now, maybe two months ago. They're fairly similar cases, but nevertheless, her investigation continues. I've talked to a couple of people who have knowledge of this investigation. And the impression that I get from speaking to these folks

is that essentially people's perspective is hers in a tough spot. He doesn't have much to work with because the basic facts of what happened here are pretty much known. We've seen a lot of reporting on it. And I guess there's a theory that anticipating an announcement that might not satisfy a lot of people in this town and an announcement that's not going

to be that momentous. Her special counsel team is taking, you know, in sort of almost a defensive posture. They are interviewing every human being that could possibly have bumped up against this issue in any way in the last, you know, however many years this thing goes back. So they've mounted an incredibly wide investigation and people were interviewed who really had very, very little to say, but I think they want to make sure that at the end of the day, whatever they present, I'm sure he has to write a report and give that to the attorney general that will, you know, I'm sure be shared with the public. Were you interviewed?

I was not. I was not interviewed. I have nothing against this one. I know. I'm feeling kind of left out now, but in a strange way. Yeah, I think they're just trying to turn over every possible rock so that after the fact, people who are not satisfied. So that when they say that there's not gonna be any charges,

they can say, look at how much work we did. Hey, look at what we did. Look at how many interviews we did. It's great. I mean, I can't tell you how many times in the FBI in our quest to find one person who is not very well described, having not found that person, we say, but we interviewed 2,000 people last weekend.

So it's kind of a standard investigators way of just to find out. Just cover your ass. Exactly. CYA. Yeah. All right. Well, thanks for that update.

They're expecting that they should have an answer, I guess, that like you said, by the end of the year, look forward to that. Maybe right around the time we find out whether all of Trump's New York businesses are going to be dissolved. And then he has to pay $250 million in restitution or what's it called? Disgorgement. That should be interesting. Disgorgement. I love that. It sounds so medical. It does. It sounds like something Dexter would do. All right. Let's get to some questions. Because I actually have sort of a correction that was posed in the form of a question because

people are very kind. Last week, as you know, we discussed Trump's motion to dismiss the DC case based on an argument that he enjoys total presidential immunity. Now, I had thought that the trial may be able to go forward parallel within appeal, working its way through the courts. And I recalled how the John Eastman, Chapman University emails appeal continued, even though he didn't get a stay on all of his emails had to be handed over to the January 6th select committee. Because that appeal just came up to SCOTUS and SCOTus said, No, bro, we're not vacating. You lose your appeal.

But his stuff already went over because he didn't get a stay. Now, I thought perhaps that kind of thing would apply to this motion. I imagine a scenario where Trump's motion to dismiss was denied by Judge Chuckkin and then he appealed, right, because he always appeals. And then I thought perhaps he would ask for a stay, and if that stay were denied, the

trial would go forward while the appeal worked its way through the courts. But then somebody much smarter than me, law professor and former federal prosecutor Randall Eliason, reached out and pointed out that Trump's motion raises a claim of constitutional immunity, which is one of the relatively few types of claims that gives rise to what's called an interlocutory appeal. And the whole point, he says, of an interlocutory appeal is that you get to have your claim decided before you have to go to trial. Right.

Because you're, in this case, anyway, your claim is I shouldn't have to go to trial. Right. Because you're in this case, anyway, your claim is I shouldn't have to go to trial. Right. So why put someone through a trial when they could very well be standing on a constitutional right that keeps them out of that position? Yep. And then Andy, you reached out.

We like to triangulate our data here. I totally trust Randall, but we know we, I'm like, let's reach out. Let's get some other thoughts on this because I, I trust but verify. And you reached out to Andrew Weissman who confirmed what Randall Elias and Professor Elias and said saying, interlocutory appeals will be quick in the circuit, but the Supreme Court could take a while. And this is the biggest chance for delay of this trial. That's right. Yeah. Andrew and his partner, Mary McCord, talked about that on their podcast a few days ago and gave it kind of, you know, talked about the motion in general, but this was their main point.

It was like, this really stands out to Andrew as the issue with the greatest potential to throw a massive delay in the trial. You could, you could, you could, if, you know, it's, it's likely a Supreme Court issue. It's never been decided whether or not President enjoys absolute immunity from criminal investigation and prosecution for acts that they engaged in while they were president and acts that are determined to be within the outer perimeter of their presidential duties.

It's definitely the sort of thing that the Supreme Court would probably look to weigh in on. So that could take a while to have that happen. Yeah. And you also reached out to Ellie Honek, right? And he basically said that Trump's team will argue for, you have to actually argue for interlocutorial appeal, and that the DOJ can oppose that, but you know, Ellie said there's an argument that they shouldn't oppose it

because they should want the answer in advance of trial. Because worst case scenario would be actually getting a conviction than having it thrown out on appeal later. Right. But yes, he says Trump will seek an interlocutorial and they'll litigate whether or not he gets it and then it goes up And if he gets it, it goes up. Yeah, I thought that was interesting. I didn't know I thought it was either one or the other

I was I'm kind of with you. I didn't realize that there this is an absolute interlocutory potentially in a lockatory appeal And and Ellie kind of preserves that it could be our option that there would be a fight over it and it could go either way, but likely it wouldn't. I think that was the sense I got from connecting with him. So we'll see, we'll see how that happens. He's made the motion already. I think it's unlikely that it'll be granted

at the trial court level. And so I think it's likely that we'll see this play itself out in the pellet process. Yeah, I'm not, I don't know that scotus would hear it. They may just refuse to hear it and have that whatever lower court decision stand. And I think that in the DC circuit court, it would probably be that he cannot dismiss because he would be generally, he would be a king at that point. Yeah.

There's all kinds of problems with it. And I don't want to kind of relitigate last week's show, but mainly they rely on a case in which Nixon tried to establish absolute immunity from a civil claim after he left the presidency and the court went with him. And that's basically what people turn to, that case to say that for acts committed within the outer perimeter of the president's responsibilities, you have absolute immunity from civil claims. Very different to try to apply that to the criminal context, and that's what Trump is trying to do here. And there's all kinds of ways that the way they wrote

the motion is kind of, I think, deceptive and not really factually balanced. But there's a couple of indications that things would not go their way. There have been decisions in cases involving Trump in the last couple of years that have made the point that criminal matters are handled differently than civil matters and that Trump's prior efforts to secure absolute immunity in some of these cases have been shot down, not by the Supreme Court, but by other courts. So I think you'd have to say it's not leaning in his favor right now, but who knows if it makes its way to the Supreme Court, it's like, all bets are off.

Yeah. And I imagine it would because that would be up to Donald and his lawyers, whether it gets to the Supreme Court or not, and whether they have to, whether they weigh in on it, whether they weigh on it as up to them, they might not grant cert. But like you said, they might want to in this particular case because it hasn't been litigated for a criminal situation before. Well, thank you very much to Professor Randall Eliasin for bringing that question to the forefront, pointing out the interlocutory nature of constitutional arguments in this particular case and we'll see how it ends up. So thank you, thank you, thank you. And listeners, if you have any questions,

you can send them to us by clicking on the link in the show notes. We have a form for you to fill out. That is our show this week. We got through it all and we appreciate you very much. We know there's a lot of world news going on right now and that it's a lot of very difficult news. So we just want to remind you to please take care, take care of your families,

take care of yourselves, because there's, it's a lot. Yeah, that's all right. It's, I think, super important for people who can do it to stay plugged into what's happening overseas. All these things are, in addition to being traumatic and kind of triggering for a lot of people, they're also really important in terms of how they impact the decisions that are made here by our government, by the administration, and by our legislators on the Hill when they're around and working. So good for you for staying informed. If you can do that, take a break when you can. It's not easy to kind of, uh, consume this stuff on a 24 or seven basis, which is basically what, uh, what we've all been doing this week.

So hang in there. Always better to know. This is probably like a true intelligence guy, but, uh, yeah, and thanks so much for listening to us again. We really appreciate you listening. Yeah, thank you very much. We will see you next week. I've been Allison Gil.

And I'm Andy McCabe.