Jack - Episode 48 - Trump’s Festivus

Episode Date: October 29, 2023

This week, Trump’s team filed several motions in the DC case. Three are motions to dismiss; one is a motion to strike language from the indictment. Jack Smith brings up Trump’s violations of the New York civil trial gag order. Federal prosecutors have quietly withdrawn a subpoena seeking records from Trump's 2020 campaign.A panel of federal judges rejects requests to allow live television coverage of Trump’s federal trials.More delays in Florida as Judge Cannon to hear arguments about DoJ’s compliance with discovery.More information comes out about that Australian Billionaire who likes hearing about US nuclear submarine capabilities.Plus, listener questions and more.A couple of terms to remember:Brady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Brian Greer on CIPAThe Quick Guide to CIPA (Classified Information Procedures Act)https://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod -Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow 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 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. October 29th, 2023, I'm Allison Gill. And I'm Andy McCabe. Okay, we have a lot to go over today. It's gonna be a six hour episode. No, I'm just kidding, it's not gonna be that long, but we do have a lot this week, including a series of filings and responses in both Florida and DC. More details about what Donald Trump shared with Australian cardboard magnet,

Anthony Pratt, and a denial of the media's request to televised the DC trial. Yes, and we also have another subpoena being withdrawn by Jack Smith. In addition to the one we talked about last week, this time it's from the Trump campaign, and we have a hearing date for all of the motions you mentioned. Andy, where should we start? Well, before we get to the filings, why don't we go over some top headlines from the week? And let's start with the first blockbuster of the week. The ABC reporting that Mark Meadows was granted limited use immunity in exchange for his testimony before Jack Smith's grand jury.

Yeah, that's a good place to start because the initial reporting just said immunity. And then I, you know, a lot of people, including myself pointed out, are you sure it's not just limited use immunity. They didn't really go into too much detail, but then it's folders, right? She put out another story, getting right to the point of it that it is actually limited use immunity. So yeah, let's talk about that first. So let's start. Well, of course, this all goes back to our episode on the Ocho Nostra, which folks will remember, having named it that. So those were the eight defendants who refused to testify on privilege or fifth amendment grounds back in the spring before Trump was indicted.

Meadows informed Smith's team that he repeatedly told Trump in the weeks after the 2020 presidential election that the allegations of significant voting fraud coming to them were baseless. Now, Smith's investigators are keenly interested in questioning meadows about election-related conversations he'd had with Trump during his final months in office. Meadows privately told Smith's investigators that to this day, he has yet to see any evidence of fraud that would have kept now President Joe Biden from the White House. And he told them that he agrees, agrees with a government assessment at the time

that the 2020 presidential election was the most secure election in US history, which as you know, all these claims, all these supposed beliefs, newfound beliefs, maybe old, old, old Lee had beliefs, the Mark Meadows, all contradict things that he wrote in his own memoir, The Chiefs Chief. Yikes. I mean, there's so many aspects of this. Let's start with just a couple of points on immunity because as you teed this up, there's a lot of confusion around it. There's different

types of immunity. I think we did finally get some clarity, as you mentioned, that this is actually limited use immunity. And so there are two different types, substantive types of immunity. Limited use immunity, of course, means it's immunity given to a witness. And it precludes the prosecutors

from using those statements that the witness provides the prosecutor with. The prosecutor can't use those statements against the witness criminally. Technically, it doesn't prohibit the prosecutors from prosecuting the witness. They just can't use the statements as a part of the prosecution. Now the opposite of that is what we call transactional immunity. Transactional immunity means you can't be prosecuted for any of the offenses or the conduct that you talked about. So it's much broader. It's generally more valuable to witnesses than simple limited use immunity. We think that's not what Meadows got here. An interesting fact, I am the opportunity to discuss with a trusted friend and outstanding attorney that I know. There's another little breadcrumb here that shed some light on this. So he was reporting to me

that he had seen in some of the reporting refers to a court's order of immunity in this case. And that would go to this question of formal or informal immunity. So formal immunity or statutory immunity is the same thing, two different names. That refers to immunity that traces its way back to a law, an act of Congress that grants people immunity. And in those cases where it applies and the prosecution typically moves for it, asks the court to apply it, the court applies it by signing an order. The judge orders that the witness or the defendant, whoever has a formula or statutory immunity by law. Informal immunity is the kind that we typically see, and that's when you get immunity because

you just cut a deal with the prosecutors. It's like, it's almost like a contract. The big difference here is informal immunity doesn't really bind, isn't binding on the states. So you could have an informal immunity agreement, like a limited use immunity agreement with federal prosecutors, but that wouldn't stop a state prosecutor from coming after you. Formal immunity is the opposite. It applies everywhere. If you have statutory formal immunity, you can't be prosecuted anywhere for that conduct that's referred to there.

So we don't know exactly which Meadows has, but if the reporting is correct that his immunity was actually ruled on by a judge, then it's formal and it would be pretty powerful. Um, so question, but I mean, even if it's formal, he can still be prosecuted just not with the statements that he makes because it's limited immunity. Is that right? You know, this really gets into the details of like, what statute is creating is the source of the immunity. And that's where you'd have to go to resolve this.

Obviously, we don't have enough details to figure that out. What kind of statutes are there, but grant immunity? There's all kinds of ones, the Atomic Energy Act, the DOJ, criminal resource manual. Here, I'll give you the quote right from the resource manual. Hello, how you just like have it ready. Does it just an open tab on your computer all the time?

I look at this thing every day. I mean, it's just like, it's a dog-eared paper copy of the criminal resource manual, not just a page on my Google search that I was looking at before the show. An important difference between statutory slash formal immunity and informal immunity is that the latter is not binding on the states.

That would be the informal immunity. This follows from the fact that the local prosecutor representing the state is normally not a party to the agreement between the witness and the federal prosecutor, thus cannot be contractually bound by the federal prosecutor's agreement. That makes sense, right? Right. If you got immunity because of you cooperated in a case, that protects you for that case

with federal prosecutors. It's not going to protect you from, oh, for instance, a case in Fulton County, Georgia. Right. But I guess who, you know, some folks are saying that it was meadows as attorney that was asking for the immunity. Some folks say it was Jack Smith's office that was offering immunity in a limited use manner, because you remember what the Ocha nostra, you know, they all went to judge howl and then Bozberg after he took over as chief judge overseeing grand jury proceedings. That, you know, Jack Smith was like, no, you don't have privilege and went and fought that

fight in the courts and then was able to get those folks all back in to testify fully before the grand jury. So I don't know how this immunity came up or who requested it, but it seems, it doesn't make sense that like why would Jack Smith just to get, you know, information from him about discussions he had with the president specifically discussions that he lost the election and that there was no voter fraud. I mean, given the mountains of other people and other evidence that show that there was no voter fraud and that Trump knew it, you know, I don't feel like Jack Smith would necessarily need these statements from him.

But again, we don't know what else, you know, there's only a few things in this ABC report that Meadows testified to, pursuant to that order or that limited use immunity. But I'm just trying to game it out in my head, who asks for it and why? And does it, can it screw up the whole case against Meadows at least? Because he's not one of the unindicted co-conspirators in the Trump indictment. I think that's a huge point. I think that all of this telegraphs that Jack Smith doesn't really have an intention to pursue meadows criminally.

And the biggest sign of that was the fact that he was very clearly not referred to as an unindicted co-conspirator in the Trump indictment. He is actually named or his position is named, he's referred to as chief of staff, whatever. So he's being handled, thought of, referred to differently than these other people who were being called out as not indicted here, but maybe in the future. So without getting too bogged down and what I've already bogged us down on,

any witness who you give immunity to, whether it's limited use of immunity through an informal agreement around prosecution, which is what I suspect is involved here, or it's any of the other forms you talked about, it's exceedingly hard to prosecute people after they've received immunity.

You have created a minefield of potential appellate issues, and courts look very seriously at decisions that defendants make as a result of grants of immunity. So it's very hard. It's very hard. There's all kinds of legal issues that come up if you try to prosecute someone who previously had immunity. Even if it was just limited use and you say, okay, I'm not going to use the statements. There's a minefield of other stuff that comes up. The Oliver North case is a perfect example. That's kind of the classic. So in any case, look, I had this even myself with the many cases going after the black water guards who were prosecuted for the shootings at Nisar Square in Iraq.

That case took three rounds of investigation and trials before. It finally got to sustainable convictions. And part of that was over witnesses who had been granted immunity to provide statements to the State Department and who were then prosecuted by prosecutors who were exposed to those statements. A little bit different, but kind of an example of how hard that is to do. Yeah, it sounds to me like he's a potential witness in the March trial in DC potentially. He was called as much in a filing that we're going to go over a little bit later about he's not going to be charged in DC and

That this if it's a if it's a formal immunity it could Have make some issues down in Fulton County For meadows to be charged, but he's still on the hook as far as we know yeah down there He's still trying to fight to have his trial removed to federal court And has several motions going on. So we'll see what ends up happening, but very interesting news It kind of goes toward the broader concept of this entire episode, which is the narrowing of These investigations. We've got subpoenas being withdrawn.

We've got meadows being granted, limited use immunity. And it seems like all of that is in consideration for the speediness of the trial of one Donald John Trump. Yeah, I think that's right. And every one of these decisions and moves has all kinds of follow-on impacts. They, too, to worth pointing out what we're talking about meadows is, so let's say he's a witness only in the federal January 6 case. Number one, he's not, he's got a lot of problems.

He's written an entire book, basically, of lies. And you're going to, that's a case that's going to a jury, not just a judge, like we have going on in New York right now. And so that's very tough to put on a witness who's lied as many times. And he also doesn't not, we're not aware of an actual cooperation agreement in this case for meadows. So he hasn't pled guilty to anything. That's how federal prosecutors rehabilitate a witness who's lied. You have to pled guilty to anything. That's how federal prosecutors rehabilitate a witness whose lied, you have to plead guilty to a significant charge first. And then you can tell the jury, listen, you can count on

everything they're saying, because if they come up here and lie to you, he loses his cooperation agreement and the sweetheart deal and gets, you know, sentenced at a very high level. So you don't even have that here. So that's tough. And now let's think number two of what what what meadows one thing we know from the reporting, what meadows did not say to the prosecutors was asked him, had you ever and all of your interactions

with Trump after the election, did he ever acknowledge losing? And meadow said, no, I think he believed that he never said that to me. That's really kind of shocking to me because Meadow's is in that room for everything. He is elbow deep in these conspiracies. He's got more exposure to Trump than anyone and he can't give them that, which would be very helpful. Not legally necessary as we've talked about,

but it would be great, a great piece of evidence to have. So that was kind of concerning to me that he's not going that far, but I'll see. Or he says he's not going that far because we know that this story didn't come from the DOJ. So we'll see what ends up happening. And the good news is that Jack Smith will have to write a report on all this.

So we will get to learn a lot from that report. All right, next up, I wanna talk about more information this week about what that Australian billionaire, Alexander Pratt, told Jack Smith's team. Now you remember previously, we had discussed the fact that Donald had told him about the nuclear capabilities of our submarines, right? Like how close they could get to Russian

submarines without being detected, stuff like that. Well, apparently there's more. This is from the Times. Another witness told prosecutors about hearing uncorroborated reports that Mr. Pratt spent $1 million for tickets to a Mar-a-Lago New Year's Eve Gala, voluntarily paying the club a huge markup from tickets that actually cost $50,000 or less. And then when Mr. Pratt opened a new factory in Ohio that promised hundreds of new jobs, Mr. Trump toured the plant alongside the Australian Prime Minister. And Mr. Pratt, in turn, gained priceless publicity and proximity to the power of the presidency,

providing him entry into an administration whose policies lowered his taxes and benefited his businesses. Behind closed doors, however, Mr. Pratt described Mr. Trump's business practices as, quote, being like the mafia. That's according to covert recordings obtained by 60 minutes Australia shared with the New York Times. And on the recordings, Pratt recounts how Trump shared with him in December 2019 what he describes as elements of a conversation the president had with Iraq's leader right after a US military strike there aimed at Iranian-backed forces. And days later, a US drone strike in Baghdad would kill Iran's top security and intelligence commander.

And at one point, Mr. Pratt said Trump discussed the phone call he had was Zalensky of Ukraine earlier that year. You mean the phone call? The perfect one. The one that helped lead to Trump's first impeachment. And Trump said to Pratt, that was nothing compared to what I usually do. Okay. So by the end of Trump's first year in office, his presidency was bearing fruit for Mr.

Pratt, the Australian financial review estimated that Trump's 2017 corporate tax cut help increase Mr. Pratt's personal wealth by more than two billion with a B dollars. That's going to pay for a lot more parties and more a log of. What is it? What is a new year's Eve party like that? I call some million dollars to go to. I mean, I don't know. Not all at bar. It's pretty good. But you got a way for Trump to go first. You get to sit in the shitter and read classify documents, Andy. That's what the cheese please. Oh my god. Code hand-burders. Yes. Wow. You know, this is fascinating reporting because it goes directly to the question

we've all had about the documents since we learned about the documents, which is why did he keep the documents? You know, it's not an absolutely complete answer, but it shed some light on this is what he wanted to do with that information. Use it to impress, use it as leverage, use it to curry favor, use it to vanquish his enemies, see Mark Millie here. You're seeing it happen. This is how you answer those questions. Yeah, agreed. And Jack Smith has said that he will prove the intent using nonclassified materials in

the Mar-a-Lug case. That's right. So in addition to all that This week we had this one really kind of landed like a punch in the nose for me. I don't know about you Yeah, same. We know that Jack Smith is now withdrawn another subpoena last week Washington Post and reported that special counsel had withdrawn his subpoena of the Trump save America pack. Well, this week, from the New York Times, and I quote, federal prosecutors have quietly withdrawn a subpoena seeking records from former President Donald J. Trump's 2020 campaign as a part of their investigation into whether Mr. Trump's political and fundraising operations committed any crimes as he sought

to stay in power after he lost the election, according to two people familiar with the matter. So last week is the subpoena to the Save America pack that gets withdrawn this week, the subpoena to the campaign gets withdrawn. What do you think? It seems unlike him. First of all, I'd be guessing if I said that it sounds like he just wants to avoid any first amendment fight that he can, because that would be the fight for fund raising,

political fundraising, and campaign emails, is that it's protected by the first amendment, and it's protected speech. And it just seems like like at every turn, Jack Smith just doesn't want to have that fight, including in his main indictment in DC against the only him so far. And so this looks like a narrowing or a, or a, we're finishing up this or, you know, we, we, we've decided whether because we couldn't get the facts together or the evidence, we couldn't develop the evidence or because of prosecutorial discretion, we're not going, it sounds like we're not going to go after fraud, a defrauding donors

with the Trump America pack and the 2020 Trump campaign. And you and I back in, oh gosh, it's almost been a year, Andy. Wow. Oh my God, don't say that. I can't believe it. It's time to flew. I think it was in last December that we talked about this open and shut defrauding donors wire fraud case, 20 years. Why, you know, and everybody was like all of these other lawyers were like nine times

out of 10 when you go after white collar criminals. It's this kind of fraud. Yeah. We saw it with Steve Bannon. We saw it with the, we build the wall thing with him. You know, it just, it seemed so open and shut. But you know, and we still don't know why. But like I said, we will get a report.

And that report must include declination decisions. They might, it's not behind redaction bars, but because this doesn't sound to me anymore like he's handing these off. It sounds like he's winding that down and he's not going to go after this and I'm guessing it's because you know past behavior shows that he doesn't want to have a first amendment fight with Donald Trump. I think that could be true. I think it's also there are maybe and how much he considers these things I don't know, but there are broader considerations around

well first of all he would have to have the First Amendment fight now, because Trump would raise it now in opposition to the subpoenas, as like a motion to quash the subpoenas or something like that. So that puts this ugly appearing and ugly having to have First Amendment fight with Trump

in the middle of your prosecution of the bigger, more important case, in which you decided not to even raise any issue that could go in this direction. So it's like you get stuck with the First Amendment fight even though you did almost everything to try to avoid it. So from that perspective, these subpoenas look like they could lead to a self-inflicted wound for the prosecutors. Right. That, and you've got them on, you know, 1512K and 1512C2, which are also 20-year max sentences. And the dude's not going to live more than 20 years. So that's absolutely true. And it also feels a little bit like, now this is fairly political calculation.

I'm not saying it would be improper if they thought about this, but we don't know if they did or not. But I'll just throw it out there. It would be to pursue the case against the PAC and the campaign in the middle of the campaign is another very politically provocative thing to do. And it may be that they just decided we got to focus our fire on the battle we absolutely have to win. Rather than getting bogged down in a sideline fight, which consequently plays in perfectly with Trump's strategy to say,

this entire thing, all these prosecutions, documents case, Jan 6th, is really all about Joe Biden trying to interfere with his campaign. So in that environment, you bring kind of a sideline, fraud case that doesn't speak really to the most important issues of what happened here. And one that runs the risk of provoking all these like really bitter legal fights that make the prosecutors look terrible.

So that could be a legitimate prosecutor with discretion decision to say, hey, you know what, let's let's live to fight another day in the battle that's worth fighting. Yeah, man, I would say if I was going to pick one, I think for the importance, the historical importance to our democracy, I would pick the January 6 case. So we'll see though, we'll see what that report has to say. That's going to be interesting when that comes out and it'll be interesting to see when it comes out.

I'm assuming after all of these trials are finished, but who knows? Sure. One last story before we get to the court filings, this is from Politico. A federal judge panel has turned down a bid to allow live television coverage of two historic criminal trials for former Trump, former President Trump. Without apparent dissent, a committee that handles potential changes of the federal court's criminal rules concluded Thursday that it had no ability to alter the existing ban on broadcasting federal criminal trials, which is weird to me. And then they said, even if we did, the new rule wouldn't go into effect until probably 2026 or 2027. So that might be just in time for Judge Eileen Kennan's Mar-A-Lago trial. She might be, or might give her reason to delay the trial again just to think about it.

Yeah. This is, this could have an impact on this trial. I need two months. Council for the defense. Don't you want to file a motion claim if this isn't fair? Yeah. Oh, no, no, no, do you wink, wink. So, you know, they said they'll look into it, but you know, this is the panel that does

that. I don't get how they don't have the ability to do it, but that's their decision. So, yeah. I don't really understand it either. I think I'm not surprised. I'm disappointed because it would have loved to see it, but I am not surprised. I didn't see this damn breaking on this case. I think that a lot of people in the judiciary would have seen that as like,

oh man, this isn't the case we want to start doing things different on, you know. Yeah, perhaps. I don't know if that precludes the other emotion in front of Judge Chutkin to televised the trial, because we're going to talk about that in a little bit. But all right, because she just put out a minute order, by the way, asking for Donald Trump's opinion on whether or not the trial should be televised. And so he will have to file that, and it'll be interesting to see what he has to say, because he has been asking for it to be televised, but he may not want it to be televised, because if it's televised, he can't run his disinformation machine as well as he could, if it were.

So are you saying that he might do something that contradicts What he just said? Oh my god That's really Hey wait until you see what the filings have to say And we'll get to those right after this quick break stick around. We'll be right back Bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum bum limiting Donald Trump's pretrial, extrajudicial statements. Don't call it a gag order. Trump then, of course, notified the court that he intended to appeal the order, and then asked for a temporary stay while he prepared his appeal. Judge Chutkin then issued a temporary stay on the gag order.

So not a stay of the case, but just a stay of the application of the gag order. And she also required DOJ to file by the 25th and team Trump to file their response by 1028. So during the brief stay of the order, Trump proceeded to post things on truth social that would be in direct violation of the order. And he violated a separate partial gag order in his New York civil fraud case. So our man Jack Smith, of course, included both of these instances in his filing as evidence of the necessity of reinstating the order. And here are some excerpts from Smith's filing.

So he says, the defendant has moved to stay the order pending appeal insisting that he's entitled to target trial participants. So he's exactly what I said. I'm so glad he said that. Like, I put it out as a headline, like breaking Donald Trump wants the right to go after intimidate witnesses and go after the prosecution. And I'm like, my headline sounds a little biased, but there it is in black and white from Jackson

and I'm vindicated. There you are on the same mental wavelength as our friends and the special counsel team. Okay. So Smith goes on to say, but because he has failed to show either a substantial likelihood of the success on the merits or that the public interest weighs in his favor of a stay, the defendant's motion should be denied. Moreover, based on the defendant's recent social media posts targeting a known witness in this case in an attempt to influence and intimidate him, the court should lift the administrative stay and modify the defendant's conditions of release to prevent such harmful

and prejudicial conduct. So that's the new ask. DOJ once judged Chutkin to not only lift this day on the order, but to add it to his pretrial conditions. And that would allow for detention and contempt as penalties. You will remember the pretrial conditions. Those are a standard part of the arrangement, right? You, the judge decides what the defendant can and can't do as the case is proceeding to trial.

And it's typical, you know, don't intimidate witnesses, you know, don't break the law. Don't break the law, stuff like that. And that's like important because it's the documented aspect of this, right? It's like, there it is in black and white. This is in my order. If, therefore, if you violate it,

we're already down the road a bit so that I can oppose sanctions or potentially throw you in jail pending trial. I mean, that's a, it would be a pretty big move here, but nevertheless, that's on the table. So then Jack Smith raises the New York civil fraud trial violations and outlines the fines that he's had to pay, that Trump's had to pay so far. He says, Defense Council also assured the court that the defendant's post targeting the

court staffer had been, quote, dealt with by the court in New York. That assurance turned out to be mistaken. On October 20th, 2023, the presiding judge in New York find the defendant $5,000 for blatantly violating the order in the case. Today, the defendant again violated the New York Court's order when he stated that the judge had, quote, a person who's very partisan alongside him, perhaps much more partisan than he is, close quote. After the defendant claimed unconvincingly under oath that he had not been commenting on the court's clerk, the judge found the defendant not to be credible

and find him $10,000. That's like a double whammy of penalty. Not only am I taking your money, I'm saying on the record in court, as your judge, I find you to be a liar, liar pants on fire. Yeah, I lied on the stand to the judge's face. That's what the judge determined. He's like, I'm sorry, I'm the trial of fact and I don't find you to be credible.

I'm the trial of fact and I'm trying to find a fact and I can't find one in the things that you've said. Oh, okay. So in the few days since the administrative stay has been in place, the defendant has returned to the very sort of targeting that the order prohibits, including attempting to intimidate and influence foreseeable witnesses and commenting on the substance of their testimony. For example, on October 24th, 2023, the defendant took to social media to respond to a news report claiming

that his former chief of staff identified in the indictment has testified in exchange for a grant of immunity. And of course, he, uh, Jack includes the post. The finally goes on to say that the order is narrowly tailored. It's not vague and that the order was necessary and appropriate. The defendant's motion to stay should be denied. The court should also lift the administrative stay and modify the conditions of release. Trump's response has not been filed as of the recording of this episode. Yeah, I found it interesting that it was due on Saturday.

So we'll be covering it next week. I'm sure we will. I'm sure we will. It's, I mean, I love the part. This is kind of in their wind up. You know, the order is narrowly tailored. That's to show the judge that it complies with first amendment requirements. It's not vague. Again, goes to first amendment requirements, and that the order was necessary and appropriate.

Yeah, it was necessary. He's been basically violating it since you put it in place. We've given you five examples of violations in the last five days. Yeah, and you, the court already determined it was necessary, and that's why you put it in place. That's why you wrote the order. Yeah. So interesting. Now let's go to another filing. These are just, there's so many. Remember the Department of Justice filing that asked Judge Chuckkin to require Donald Trump to submit his intent to use an advice of council defense to the court by December 18. an advice of council defense to the court by December 18th. Yeah. So that Jack Smith would have time to get all that 25 witnesses worth of stuff that had been

considered attorney client privileged before, get all that information, investigate it, and produce more discovery. Yeah, right. They wouldn't. Yeah, right. Let's get out in front of this little time bomb while we can. Let's, you know, if he's going to go down this road, I got to get my ducks in a row and start doing some work so we don't create more delay. Yeah, we have a March 4 trial date, so by December 18th, I think, is a good time, and that's

also when I think evidence is due. And Trump responded to that saying, that's unconstitutional. You can't ask me for that. But then in the same filing, he said, okay, but you should have asked for it sooner. And then by the end, he's like, all right, I'll give it to you in January. Well, Department of Justice has filed the response to that, to his January request. And it's the same argument we discussed in the previous episode that Trump's lawyers told the world he intends to rely on advice of counsel.

They went on all the Sunday shows and said, we're going to do a file, you know, advice of council, that's going to be our defense. So they're like, it's not a secret strategy. We're not, you know, making them confess to some sort of trial strategy before the trial. Everybody he said he's going to do it. But DOJ added a wrinkle in this particular thing. And I love this. Let me quote from this filing. If the defendant notices such a defense, there is a good reason to question its viability, especially because in the time since the government filed its motion, three charged co-defendant attorneys pleaded guilty to committing crimes in

connection with the 2020 election. That's not co-defendant's attorneys. It's co-dependent attorneys, co-dependent who are attorneys have already played guilty. So the people whose advice you would be relying on and now referring to as your defense, they've all said they're all guilty of crimes and a course of that advice. I feel like that defense is not going to go well for him, but I don't know. No, it's not. He goes on to say, at the very least, those guilty please highlight the complications that may arise if the defendant should assert an advice of council defense and underscore the need to resolve all issues well before the start of trial. If disclosure is delayed, it may result in a disruption of the trial schedule. Yeah, I love highlight the complications. That's a very nice way of saying this defense is a flaming bag of dog poo

It's not gonna There's nothing good. There's nothing good left here. So let's just dispatch with this now And not use it as an excuse to delay the trial again All right, so moving on in the list of entertaining filings, this week DOJ also responded to Trump's ridiculous demand to Zepino the quote, missing evidence from the January 6th committee. And we of course went over that filing

in a previous episode. Here are some excerpts from the special counsel's office response. They state, the defendant asks for the court's permission to make vague early return document demands of four non-party legislative branch entities and three non-party executive branch entities, all in search of information regarding purportedly, quote, missing records from the House Select Committee to investigate the January 6 attack on the US Capitol. The defendant's motion is wholly unnecessary.

The government already provided the defendant in discovery the Select Committee records that he identifies with any specificity. In any event, the defendant's proposed phishing expedition in search of other purportedly, quote, missing congressional records fails to satisfy the requirement of rule 17c subpoenas that they must be relevant, admissible, and specific information that court should deny the defendant's motion. So rule 17 says, I can't say, just give me everything.

I know you haven't given me. I know you're holding stuff back. You can't subpoena for that kind of a thing. Right. You can't say, I now demand all evidence of the fact that you are in fact an alien being. And if you don't give it to me, that means you're withholding the discovery. Ah, you're withholding.

You didn't meet the discovery deadline for your alien evidence. Well, this is kind of a pattern of behavior, a pattern of practice for the Trump administration and Trump allies, right? Like trying to demand stuff from the DOJ that doesn't exist and then saying they're the deep state for not providing it. Of course. Of course. I mean, this is this is kind of how they how they roll. So and I'm not surprised at this filing, but I think it's going to be laughed at a court.

Yeah. There's, and it's also important to put it in context. Like, we all talked about this at the very beginning of these cases. Trump is going to do everything he can to delay these trials. We're there, right? That's, this is what's happening. It used to drive me crazy when people would talk about when during the Trump administration people would talk about, you know, we better watch out because if things keep going this

way, he's going to try to really undermine the institutions of government. No, it was already happening by then. It's like, you have to open your eyes to what's actually happening around you and put it in the right context. This is the delay we were all worried about. File more motions about crazy things that don't exist. And then when they don't go your way, appeal them,

and then appeal the denial of the appeal. And it's just a constant barrage. It's like what the Russians, it's like the, it's like what the Russians are doing in Ukraine in Crimea. It's just dug in, send in, send in mortars, send in ordinance their way just to try to pound the special counsel's office into having to respond to all this stuff. Yeah. And I think that's where lessons from the Mueller investigation come in handy. And Judge Chuckkin is well aware of them, which is why she has set up a pretrial schedule

that helps prevent those things from happening. And we're going to get to that right after this break because in one night Donald Trump filed four motions, three of them to dismiss his case. There you go. Because they were all due that day so that they can be dealt with in time to keep the March 4th trial date. She's very adamant about keeping that date. And I think that her pre-trial schedule, forcing pre-trial motions for dismissal to be due

on a certain day, is going to help with that. And we'll go over those four motions as soon as we take this break. Stick around. We'll be right back. Boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom, boom motions for in the course of an hour late on October 23rd. I think it was actually late on a couple of them, but I'm sure that's fine. Now, three of these are one motion for each indictment, not really. Okay. For each charge, yeah. Or each charge in this case. Three of them are motions to dismiss. And one of them is a motion to strike language from the indictment. So let's start there with the motion to strike language before we get to the motions to dismiss. And this is separate and apart from his motion to dismiss on

I am Pretotally Immune President Ser King's motion. That's totally set. We'll get to that in a minute. Told you this episode was full of stuff. Now let's start with the motion to strike language from the indictment. The indictment includes repeated references to the actions of independent actors as the capital at the capital on January 6, 2021, because the government has not charged President Trump with responsibility for the actions at the capital on January 6. Allegations related to these actions are not relevant and are prejudicial and inflammatory. Therefore, the court should strike these allegations from the indictment. Now, the reason that January 6 is in the indictment is because it's relevant AF.

Andy. The technical definition of that term. Yes. relevant AF. Look it up in your manual. No, it's the way that this indictment was built is that his conspiracy to defraud the United States, obstruct official proceedings, conspiracy to obstruct official proceedings and conspiracy against rights, have everything to do with all of the events that led up to and include the attack on the Capitol on January 6th and events that happened afterwards. That's all of that is evidence of these crimes. And so I think that this motion will be denied on those grounds.

You don't have to charge him with inciting an insurrection or seditious conspiracy in order for those two events to be evidence of obstructing an official proceeding or conspiracy against rights to take our right to vote and have our vote counted taken away from us. It's part of the crime. It's part of the conspiracy and I think that's why it's included and I think that this will be easily dismissed. I think it probably will as well. I think it's important to realize that the reason for this is if that life, let's say a judge, in this case, it would be Chuck N. Rules that all references to the insurrection have to be stricken from the indictment,

then that controls what sort of evidence you could get in a trial. So when the government is trying to get in any references to the insurrection at trial, the defense would be in a better position to oppose, to exclude that evidence from the jury hearing it. Yeah, and this also has appeal written all over it. Yeah, so that's where it's like tactically significant to the defense. You know, let's face it, he's charged with conspiracy to obstruct an official proceeding. That official proceeding took place on January 6th on the Capitol. It's a little hard to talk about that outside without making any reference to the riot that

was taking place. Right, but he'll, you know, he'll say, I'm appealing this because they mentioned January, the riot of January 6th, but didn't charge me with it. And so therefore my conviction should be overturned. I mean, these are all, these four, most of these motions are just bookmarks for appeals. Of course, you gotta make the motion

and have it denied to have something to appeal later. So that's what it's for. If it went his way, which I don't think it will, it would help him in narrowing the playing field in terms of what sort of evidence the government could get in in their case and chief, but I don't think that's gonna happen. Yeah.

So the next motion he filed on the same night, busy little beavers over there on the Trump legal team is a motion to dismiss the case on statutory grounds. So motion says targeting an audience other than this court, the prosecution's indictment in this matter rants endlessly. How about the irony of Trump accusing someone else of it, ranting endlessly? I mean, I couldn't even finish the sentence without stopping on that one. So anyway, the prosecution's indictment in this matter rants endlessly about President Trump's politics

and in a shockingly un-American display of authoritarianism, projection, accuses him of crimes for having and expressing the quote wrong opinions. Buried at the end of this diatribe, our conclusive statements that President Trump's alleged actions somehow violated 18 USC 241, 371, 15 12K, and 15 12C2. The prosecution does not explain how President Trump violated these statutes, beyond simply saying he has, while regurgitating

the statutory language. As explained herein, the reason the prosecution employed this tactic is plain. President Trump did not violate the charge statutes, even accepting the prosecution's false allegations as true. Accordingly, the court should dismiss the indictment for failure to state and offense. Again, that's sort of tied into the, you need to remove the January 6th language, right? Yeah, it's just kind of nonsensical. I mean, indictments, I don't want to, I'll say 99% of the indictments I've read in my life are less specific than this one. Indicaments tend to be very thin. Isn't that how an indictment works? Yeah, you don't make your whole case in the indictment.

Isn't that how an indictment works? Yeah, you don't make your whole case in the indictment. You just have to cite the statute, you claim was violated, and then provide some facts, some facts, a couple that support that allegation. It is intrinsically only an allegation. It's not proof of anything. It's almost like he said, all he did here was say a bunch of stuff I did and then talk about how it violated the statutes. Like, yeah, that's it.

Or, or, you know, they've just made a boldface assertion that I violated the law. And that can't be true because I now make a boldface assertion that I did not. I mean, it's just, it's not sensitive. Well done. But again, you know, it's all part of the bigger game of creating issues to pursue on appeal and creating delay. Yeah, 100%. Now the third motion he filed that night was a motion to dismiss on constitutional grounds. This motion says that the indictment violates his First Amendment right to free speech and his First Amendment right to air his grievances.

First Amendment right to free speech and his First Amendment right to air his grievances. And, that he's already been tried and acquitted for these crimes during his impeachment, and this indictment is tantamount to double jeopardy. Also, he says, quote, finally, because of our country's longstanding tradition of forceful political advocacy regarding perceived fraud and irregularities in numerous presidential elections, President Trump lacked fair notice that his advocacy in this instance could regarding perceived fraud and irregularities in numerous presidential elections. President Trump lacked fair notice that his advocacy in this instance could be criminalized. Thus, the court should dismiss it under due process clause as well. What do you think about that?

It's the well-known due process requirement of fair notice in political advocacy. I don't remember that one from law school. I go out, there's a lot of things I don't remember from law school, but definitely don't remember that one. I also feel like he cribbed this whole thing from a sign fell episode because as we all know, the holiday of Festivus is the airing of grievances. Now we have a violation of his first amendment right to air his grievances. It's almost like a first amendment right to festivists. I don't know. Yeah. I don't think any of this is going anywhere, but except on a appeal. Yeah. Yeah. But Mark's very peel. What's the last one? The last one is the fourth motion to dismiss, of course, and it is for selective prosecution.

And I quote, President Donald J. Trump respectfully submits this motion to dismiss the charges on the basis of selective and vindictive prosecution. The core conduct alleged in the indictment relating to the presentation of alternate electors has a historical basis that dates back to 1800 and spans at least seven other elections. There are no other prosecutions in American history relating to these types of activities. The allegations in the indictment involve constitutionally authorized activities by President Trump as Commander-in-Chief. Wow. And as well as speech and expressive conduct protected by the first amendment. He goes on to say, biased prosecutors pursue charges despite the evidence rather than based on it, with one prosecutor violating DOJ rules and ethical norms by forecasting the investigation

in a television interview on 60 minutes, even the attorney general felt, quote, boxed in by the onslaught. Joe Biden pressured DOJ to pursue the nakedly political indictment in this case months before the FBI had even opened an investigation. At the very least, even if the special counsel's office makes self-serving arguments in an effort to articulate a defense of the prosecutor's

charging decision, where there is none, a hearing is necessary to give president Trump an opportunity to demonstrate that their proffered evidence is pretextual. I wonder where, I mean, that just sounds like a bunch of hooy kind of out of nowhere. Like, how do you have evidence to Biden pressured the DOJ to pursue the nakedly political indictments months before the FBI opened the investigation? Like, I don't, I don't understand this at all, but again, like I said, the none of these are going to, these will all fail. I am certain, and they are again, just appeal placeholders. I'd like to take a quick break from DC and tell you about a filing from Jack Smith in the Mar-a-Lago case, because it just came out Friday.

And this is my favorite filing of the week. If we had an Oscars for court filings, I think this one would win best picture for me. All right. It is Jack Smith filing in response to Donald's motion to delay the entire floor to trial until the end of next year. They've already gone back and forth on this matter a couple of times, and we've reported those filings on previous episodes. But DOJ is responding to Trump's latest complaints about classified discovery and why it should postpone the entire trial until November of next year, at least. Now, I'm going to paraphrase this filing for everyone. So I want you to know this isn't what Jack Smith said. This is what I'm telling what

I'm my interpretation of what he's written. The artistic interpretation of the filing. Got it. Okay. So first up, Jack Smith says, we had classified discovery ready for you in a skiff down the street from where you live. And you waited 11 days to come and look at it. In fact, we had it ready to go in less than a month after the protective order was issued. And seven months ahead of trial. So any delay is y'all's fault. That's on all y'all. Next, Trump complained, I can't believe you guys gave us an additional 13,584 pages to review just now. This will take us forever. We need a whole new trial date. End of next year.

And the DOJ responds in the filing saying, ah, 15 of those pages are new. The other 13,569 are duplicates. You had four months. You requested we package them together. And Andy, this is a box that they seized that had 15 documents classified in it. And the rest, the other 13,000 were unclassified. And so during unclassified discovery, they produced them.

And then they've already produced the 15 here. Those are the new ones, but Donald Trump's, they specifically asked to have them all together so we can look to see how they were in the box as you found them. Yeah. And so they're like, I can't believe you just dropped this 14,000 pages on it. Like, dude, you've had those. 15 are new. You wanted, you asked for this. You had them and then you asked for them. Yeah. They re-packed this way.

And if you stack them up and to end their taller than, you know, whatever. Then Trump said in a classified briefing submitted from a classified laptop. He said, I need a classified laptop. We must delay the trial because I need a classified laptop. And DOJ said, bro, you have one. You used it just now to submit your complaint about not having one. But we'll give you three more. Now you have four.

Now he has four classified laptops. I'm going to Australia and I need a classified laptop to discuss with my friends. My box friends. Yeah. I wonder if the Australian cardboard magnate made the cardboard boxes in which he stole the documents. That would be an awesome moment of, I don't know what, synchronous or something. Now, Jack Smith concludes with this. The defense's allegations about the government's compliance with its discovery obligations

are wrong, and its characterization of the discovery record is incorrect and misleading. The government is in full compliance with its discovery obligations to date, having provided prompt and thorough disclosures throughout these proceedings. The discovery record offers the defense no justification to delay the pre trial schedule and the trial of this case. Now, Judge Eileen Cannon has scheduled a hearing for this particular set of arguments. This, uh, of course she has this, uh, do we delay the trial because I need a, I need to laptop and 14,000 documents. Uh, that hearing is scheduled for November 1st.

So it's coming up fast. Yeah, November 1st of 23, because I heard Trump ask for it to be delayed on the November 1st of 24th of hearing. Yeah, you got it. You know, and I, in a weird way, I almost feel bad for Judge Cannon because she gets these dueling filings

on all these nonsensical issues and they're just like speaking two different languages. They're so different. So reading them, you've got to kind of be like, oh my God, what am I supposed to, this guy says the guy is black and this guy says the guy is white. So, you know, a more experienced,

a little more salty judge would just get these filings and just make a ruling, put it on record in writing and walk away like enough of this. Wicking parent contrast with what Judge Chotkin is going to do with this flurry of emotions. You'll see the difference and it'll be playing his day. But he allows, you know, he's setting this tone and this agenda of picking one fight after another over nothing. And she's kind of facilitating it by giving every one of these complaints, you know, a full hearing. I don't know. It's a little concerning. All right. Well, we have a lot more to get to. Well, not a lot more. Just one more filing to get

to and some listener questions. There's a link in the show notes, by the way, where you can submit those questions. But we need to take a quick break so everybody stick around. We'll be right back. Welcome back. Okay, we have one final filing to discuss, and that's Donald Trump's supplemental brief in support of his motion to dismiss based on presidential monarchy. No, I'm sorry, it's presidential immunity. You'll remember, you'll remember we went over

as initial filing in a previous episode, and then we talked about T.O.J.'s really impressive response. So here's some excerpts from Trump's response to the special counsel's filing. The prosecution argues that presidential immunity does not extend a criminal prosecution of a president for his official acts.

The prosecution is wrong. The prosecution argues that recognizing immunity from criminal prosecution would place the president, quote, above the law. Not so. All right, time out. Both of those statements are actually correct. Anybody who read that would say the prosecution is right. I mean, it, if it doesn't play some above the law, I don't know what it does, but anyway, okay. I continue. As the prosecution recognizes a president is subject to criminal prosecution

for one unofficial conduct or purely private acts and two, conduct within the scope of his official responsibilities provided that he is first impeached by the House of Representatives and convicted by the Senate for such conduct. So he's actually arguing that he can't be criminally tried unless the Senate convicts him first. Oh, what about the double jeopardy argument he was making in the other filing. Stop, don't bring up things that contradict what I just said.

You got to think of this like a defense lawyer. What I said five minutes ago is gone. What I want you to focus on is what I said now. So the final goes on to argue that prosecuting President Trump breaches centuries of unbroken tradition of not charging presidents because you're the first crimey one. Yeah, apparently. Trump then argues that because the bulk of Jack Smith's opposition is spent arguing that immunity does not exist,

they fail to show that Trump's actions fell outside the outer parameters of his duty. He says that organizing alternate slates of electors is within the outer perimeter of his job as presidents. His job as president and official county elections supervisor for every county in the nation apparently. As president of crimes. Yes.

Yes. I just, I can't get beyond this. So like that first sentence, the prosecution argues that presidential immunity does not extend to criminal prosecution of a president for his official acts. I mean, that is just a legal fact. Five, you know, get five lawyers together, they would all agree. That's the current state of the law. The prosecution argues that recognizing immunity from criminal prosecution would place the president above the law. Of course it would. I mean, it's a, it's a self-evident. There's no law beyond that. So if you're above that,

that's it. You're covered. You can't do anything wrong. You can never commit a crime. You can't be prosecuted or placed in jail because you're the king. Yeah, and let me respond here because he's basically saying, presidents aren't above the law. Former presidents can be criminally prosecuted for unofficial conduct and conduct within, or if it's, or if it's official conduct, he has to be impeached first. And the argument is, this shit you did was unofficial conduct, my man. So you just said we can prosecute you. But you know, he's arguing that this is official conduct. He's saying that gathering fraudulent slates of electors has been done for years, centuries.

Right. Centuries of unbroken precedent. Or, yeah, it's hard to make sense of the word salad, but the effect is pretty consistent across all the motions. These are basically like opportunities to heave all of his campaign slogans out in court. They're coming after me. It's all Biden's fault. This is all political. And like we said, put down markers for appeal and slow down the clock.

Essentially it. Yeah, that'll be it. But I don't think Judge Chuckkin is going to let the clock slow down. Judge Cannon on the other hand, again, we can compare and contrast when the decisions and consideration on these motions comes down. That's right. That's right. So we'll watch.

We'll watch and learn the difference. So what do we have for listener questions this week, Andy? You know, we have a good one. And there was of course a development this week that I think is also relevant to this question. And there's a couple things about this that I feel like have kind of been overlooked in the conversation publicly about all this stuff. So what I'm referring to, of course, or the guilty pleas down in Georgia, the question which unfortunately came without a name attached to it, but you know who you are out there and well done. The question is, does Sydney Powell's Georgia plea deal

require her to cooperate in federal election trials as well as in the Georgia one? And will the federal prosecutors be able to leverage her Georgia confession to compel her to do so or to cooperate? No, and yes. There you go. That's the short answer. So no, Georgia can't cut a deal with her that requires her to do something in any other jurisdiction. It's kind of like the reverse of what we're talking about in the community context, the beginning of the show. Can federal prosecutors use her statements against her

to charge her or to, if she's charged to convict her and on the federal level? They can, but it's more complicated than it seems. There's actually a really good article in the New York Times about this this week. Any public statement, so if she takes the stand in Georgia and says things on the record in court, those statements they can have,

they can use in their own court proceedings, no problem. The more important stuff, sometimes, is what she says to investigators in Georgia, because she had to be interviewed by investigators in Georgia. Presumably we had to tell them everything she knows about all this stuff. I hope they're required to do that. Can they get those statements from Georgia

and then use them in their investigation or charging or convicting Powell? It's questionable, it's not illegal, but it requires a certain degree of coordination between the federal prosecutors and the state prosecutors. There's really no indication that there's a lot of coordination going on between them. Funny Willis has said that they're operating entirely independently.

Well, this is kind of like how Tish James took all of her interviews for the civil fraud trial and gave them to the Manhattan district attorney to use, right? Yeah, yeah, that's an example of them kind of working it out, but there was no federal there was no federal thing involved in that That was state-to-state right this is federal state it's a little trickier and there's a timing element like Funny Willis is not going to want to be handing over Statements of witnesses she expects to use in her trial. She doesn't want to hand those statements over to another prosecutor in different jurisdiction who might go first, who might get that statement, release that statement, and some sort of judicial proceeding, and then it tips off the defendants in Fannie Willis's trial as to what they need to worry about.

So there's all kinds of trial tactics there. This is why federal prosecutors, they always, if there is a witness that both the feds and the state want to use, the feds always demand that their trial goes first and the state has to wait because you never want to use this witness and the statements last. So there's some embedded obstacles to cooperation

between Georgia and Jack Smith on this one. And finally, the thing that really still kind of amazes me about all these Georgia pleas and we now of course have Ken Cheesebro and more significantly we have Jenna Ellis who pled this week as well. They're not cooperation agreements in the way that you understand cooperation on the federal level. They're almost backwards. The federal level, you get charged with a bunch of crimes.

You want to cooperate, you come in, and you cut a deal. And the deal is they drop a bunch of the felonies, but they keep a couple. And the ones that they keep could expose you still to serious sentence time. And you have to cooperate then. You plead guilty to a smaller number of crimes, and then you cooperate. You have to testify in every trial. You have to be interviewed, do whatever they ask.

And when all that's done, then they bring you into court to sentence you on your case. And if you've done well, if you've cooperated legitimately and provide a good information, they asked the judge to depart downward on your sentence. Rule 35? Yes. Or 35. Yes.

Or a case letter. What are the, what are those? It's called a 5K1 letter. Back in the day, my old days, when we used to actually have real sentencing guidelines that require judges to sentence you within the guidelines. When the time came for sentencing, if you were a cooperator,

the prosecutors would give the judge a 5K1 letter laying out the cooperation you did and receipt of that letter, statutorily empowered the judge to go beneath the guidelines. Now, the guidelines are just advisory, so it's a little different. But anyway, in Georgia,

they basically give the deal away up front. They drop all the felonies, charge you with a misdemeanor, which you're not gonna do any time, agree to let you into the first offender program, agree to say none of your crimes involve moral turpitude and therefore can't be used in a follow-on proceeding against you as a lawyer to remove your license. I mean, you get all this benefit immediately. So if these, if it's not clear to me, what happens if sitting power or any of the rest of them take the stand in Georgia and claim the fifth, which they might really want to do because by testifying in

Georgia to their own misdeeds, they expose themselves to criminal liability in the federal case. So there are some really weird embedded risks here for the defendants. And we're going to have to see how that plays out. It has impacts on Jack Smith's ability to use these people as defendants or to charge them and try to turn them into cooperators. And it really poses some risk to the defendants.

Yeah, and some other considerations too, though. I think Kenneth Chuzbro and Jenna Ellis pled guilty to one felony each. It was just Sydney Powell who went first that got him knocked down to misdemeanors. But Jenna Ellis is a little bit different than the others. The others just gave their one proper upfront, wrote their apology letter, and pay their fine, and they're good to go. And they do have to testify in any and all proceedings.

But Jenna Ellis actually says, we want more interviews. You have to make yourself available for as many proversessions and interviews as we want, along with everything else that was in everybody else's deal. But I think I get what you're saying, because if there were no other places in the United States where they were on the hook for crimes, they wouldn't be able to plead the fifth because you can only plead the fifth when you are in danger of being indicted. Correct. And if they got full immunity down in Georgia, which they have, and that was the only thing they were facing, they wouldn't be able to plead the fifth.

But because they potentially face other charges in federal court, or maybe in other jurisdictions, who knows what Arizona is going to do, who knows what Arizona's gonna do, who knows what Michigan's gonna do. Good point. Because they are potentially on the hook there, then you should be able to plead the fifth because you are still on the hook for criminal liability. So we'll see.

It raises a lot of questions like, how do these lawyers think about this? They're the defense attorneys who've steered them into these deals, do they acknowledge to their clients like you are taking a huge leap of faith. As we talked about this last week, I said like you're basically putting yourself in a position where if your sitting pal and Jack Smith charged you, you kind of have to cooperate up there because chances are between cooperating with Fannie Willis, getting a hand of your statements or just using the testimony that you gave in court,

you're in a tough spot. You're in a really bad case. And cooperation might be your only way to limit your exposure. But we'll have to see. Yeah, we also have to think about the timing too. You know, you and I have positive that perhaps the reason that Sydney Powell at all, the other unindicted co-conspirators haven't been charged yet, is because he's going to run those as mop-up cases after he finishes the Trump trial to keep it clean and fast. But now, if you think about, because normally, like you said, the feds would just charger and push her to either cooperate

and go down to one felony and do the thing, but if they're not ready to charge her yet, they can't do that. And is she going to be testifying in Georgia before she is charged, if she's going to be charged in federal court? So that consideration, too, the timing consideration. Do we go ahead and charge them all now and risk them filing motions to glom on to the hang onto the co-tails of the Donald Trump trial

and slow that whole thing down or do we wait and hope that we're still going to go first? Because it could happen that once this trial is over, the trial still hasn't happened in Georgia because I gotta remember, he's got a main trial, he's got another thing. So maybe, you know, maybe then Jack Smith thinks he'll still have time to go first. Sure, either that or he looks at the other way and he says, you know what, I don't care. None of these people are as significant as Trump.

I'm doing what I gotta do to get the Trump case over the threshold. And if it means I can't go back and charge any of these people, then so be it. significant is Trump. I'm doing what I gotta do to get the Trump case over the threshold. And if it means I can't go back and charge any of these people, then so be it. I don't know. But then you would have Fannie Willis saying, we'll let them off the hook so that they can true, you know, testify truthfully down here for me. Yeah.

Unless Fannie Willis is like, I don't care, I just wanted to get rid of the speedy trials. Right. I don't care what they do. Take them. Yeah, crazy, but it's a pretty simple and well-fraised question, but it opens up this whole horn that's the issues that I think people are kind of doing the victory dance, you know, the touchdown dance over these please.

Oh, they're cooperators. They're going to sink Trump. And it is a good thing. It's a great thing for Fawney Willis. I think in the long run, I think it can be a good thing for Jack Smith as well, but there's a lot of embedded hurdles here, which it'll be interesting to watch how we get over those. Yeah, a lot of considerations. All right.

This has been another over hour long episode, and we did the best we could to get all of the filings and minute orders and news of the week in there. So thank you for hanging in there for this long episode. We appreciate you very very much Do you have any final thoughts before we get out of here again? If you have a question send it to us There's a link in the show notes. Yeah, keep those questions coming in because it's always very helpful to read those and of course We love doing one on the air and There's a lot going on right now a lot kind of in this week, that's just behind us and

everything overseas in Israel and then of course this week in in Maine another horrible mass shooting in America and so hang in there be good to yourselves think about kind of taking a break from the news every now and then only after you've listened to the podcast but but if care, but anyway, these are challenging times and I hope everybody's kind of focused a little bit on themselves and their own mental health and taking advantage of opportunities to do that. Yeah, and I know you're going to go do some hits this afternoon about what happened in Maine and on behalf of the MSW Media team and this podcast and myself, I'm just my heart and all of my thoughts and all of my love and all of my support goes out to the community of Lewiston,

the families, the the first responders, the people who work in the hospital, the friends, the relatives, just all of that to you right now, all of that love, all that's where I wish I could give you a giant hug. And I hope that I hope this is enough. I don't know what Congress will end up doing, but I hope it's something. And did you see Jared Golden actually changed his position on assault weapons bands during the press conference in Maine? Yeah, that was kind of remarkable.

Kind of remarkable. Susan Collins didn't, but he sure did. That wasn't an enemy. But she's never. He did, and that was, it was good to see like the guy seemed to really be kind of like thinking and changing his position based on the grief and the mourning and the horror that's now inflicted his, hit upon his community. That's what it takes. If that's what it takes, we're on our way because pretty soon there's not going to be a

community in this country that has an experience, this horrendous and largely preventable violence. And I hope other Congress people take note and don't wait until it happens in their communities to change their positions. Yeah, agree. Anyway, just wanted to mention that. So thank you, Andy, for doing that work and doing those hits and talking about that on TV. I appreciate you.

Yeah. You know, you try to kind of shed some light and let people know what's going on. Sometimes that can be hard to follow. So it's hard to watch because of, you know, my inclination is to be on the other side of this and be helping out with the manhunt. But if this is a small way that I can help them, I'm of course happy to do that. So anyway, have a great week everyone. Yep, and please take care, like Andy said. I'm Analus and Gil. And I'm Andy McCabe.

I've been Allison Gil, and I'm Andy McCabe.