Jack - Episode 50 - Going Through the Motions

Episode Date: November 12, 2023

This week: Trump’s team tries to drown the proceedings in an ocean of motions; Jack Smith shows that the January 6th attack on the Capitol is integral to the government’s case against Trump in DC.In Florida, Judge Cannon seems to be doing all she can to delay the trial, even by doing something potentially unprecedented with regard to CIPA.Plus, listener questions.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)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 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. is Sunday, November 12th, and I'm your host, Andy McKay. Hey, Andy, I'm Alison Gill. Happy 50th. Yes. Right back at you. The big five, oh, you know, the last time I turned 50 was really kind of a sad moment. All kinds of bad things happen. So I really feel like this is cleaning the slate for me and returned 50 to a positive place. Excellent.

I turned 50 here in a couple of months, so hopefully this will be a precursor to how awesome that will be because today's show, I thought 2023 was going to be the year of accountability. Turns out it's the year of motions. We have so many motions today. This show took me a million hours to prep for, but it's an important show. There's a lot of really important motions that have been filed and a lot of rulings that have come down. We have Jack Smith revealing in a filing the Special Counsel's plan to put the attack on the Capitol January 6th front and center in their prosecution of Donald Trump and the DC trials

still set to begin March 4th. There's also a ton of other filings in DC, including DOJ's opposition to multiple Trump motions to dismiss his case. We have a ruling in the Department of Justice's Advice of Council motion in DC. The special counsel's opposition to televising the trial in DC. We have a motion to strike Trump's SEPA Section 5 motion, which is very interesting, and a ruling on the Trump motion to delay the deadline for pretrial motions. Oh, and the latest on Trump's appeal

of Judge Chuckens not a gag order. That's also happening in the background. And if that wasn't enough, then we go to Florida, right? We have a whole other case. It's just a whole other, it's like finding two fronts in the same war. Okay, so we have a decision by Judge Cannon on Trump's motion to delay the documents trial. We have new reporting from CNN about just how many Mar-a-Lago staffers saw classified

material and who are now potential witnesses in the case. And filing from Jack Smith asking the court to require Trump to provide notification about whether he intends to use an advice of council defense, just like they did in the DC case. It's a kind of template at this point, right? For every single future, superseded indictment on Trump, wake, wake, we have it in the can, it's ready to go. It's the defensive delay motions.

Open motion insert defensive delay Language here. Yeah, and that that can and one is especially interesting. I know our SEPA expert Brian Greer and our friend Pete struck both agree and I agree with them that canons goal here is to delay Without creating an appealable remedy, but she'll have plenty of chances to create an appealable remedy. Just way down. She's delaying those and we'll talk about that. I know it sounds like a lot. We're going to make sense of all of it for you today.

Andy, let's start in DC. That's where the most, that's where like, in my opinion, most of the important action has happened this week. There's a lot to discuss there, although I don't want to belittle what Judge Cannon came out with today down in Florida. But let's start with the big ones up in DC. That's the government's omnibus motion that opposes Trump's attempts to dismiss his case entirely, and the Department of Justice's motion that reveals Jack Smith's intent to make the attack on

the Capitol a central theme in their case. And I think that that's hugely important. Absolutely. So let's go to the first one. And that is the omnibus motion addressing two of Trump's motions to dismiss. Now, you will remember that Trump filed motions to dismiss the case last week. DOJ wanted to address two of them in one filing.

And it asked the court to allow them to file a response that exceeded the page limit. Trump, of course, opposed that request, but Judge Chuck and granted it and DOJ filed this 79 page motion. So a little bit of Sunday reading for anybody's interest. I think what's cool about that and it kind of got brushed over that, you know, the fact that they wanted to file an omnibus and Trump was like, no, no, no, no, no, no. It's because there's so much BS in his multiple motions to dismiss. He wants to create more time, more delay for the DOJ to have to oppose these. The DOJ is like, we can do two in one and especially when we consider later their

emotion for Judge Chuck K can to more quickly address these particular motions because their constitutional in nature and could lead to an interlocutory appeal. We'll get to that later. That's right. That's right. And they're fundamentally repetitive, right? All these things hit on the same theme. So it makes sense for the government to address them in one shot. And it's also strategic for the government because they can, by doing two in one, they can draw comparisons. They can put the repetition and the comparisons that are effective to their motion

in front of the judge in one argument, instead of having to do it in one lane and then come back the next time she pays attention to it in a different lane. Okay, so in this motion, the special counsel addresses Trump's complaint that the indictment never explained how he violated the four statutes he's charged with, and they address his

other constitutional arguments, including the First Amendment. So this is from the introduction from the government's filing. It says, the defendant stands alone in American history for his alleged crimes. No other president has engaged in conspiracy and obstruction to overturn valid election results and illegitimately retain power. The indictment squarely charges the defendant for this conduct and the defendant's

constitutional and statutory challenges to it are meritless. They go on to say, rather than challenging the indictment on its merits, the defendant's motions attack the indictment by mischaracterizing its allegations, raising in opposite hypotheticals and advancing arguments that are long on rhetoric, but short on law. I love that phrase. Long on rhetoric, short on law. Long on complaints, short on substance. Yeah. So Trump argues the DOJ failed to show how he violated the four statutes he's charged with.

So that's the basic standard for a motion to dismiss an indictment, right? An indictment must state with specificity the charges that you're facing. And with specificity doesn't mean just quoting the statutory language of the charge. It means you have to put enough facts around that charge that it gets the standard is like down in the particulars. You have to be particular about the conduct that the defendant engaged in that you allege violated the statute. So the filing goes on to say, Trump's arguments

about statutory considerations are wrong. Starting with Title 18, USC 371, the defendant made knowingly false claims about outcome-determinative voter fraud that goes to the heart of deceit, craft, and trickery, which that's mentioned a lot here. That's the substance, right, AG? That's the real meat of the conspiracy charge

that you entered into an agreement with Confederates to undermine the law through deceit, through lying, through trying to fool people. Yeah, that's absolutely it. I think they mentioned it upwards of three dozen times deceit. Then they even put a footnote saying, from now on, we're going to refer to deceit, craft, and trickery as just deceit because we're going to be using it quite a bit. And it is. It's the basis for the statute that draws the line between speech and fraud.

That's right. So Trump argues that his lies were opinions or permissible advocacy. And the government responds to that by saying, knowing lies are neither opinions nor pure advocacy. And in any event, the defendant could not use the so-called advocacy as a cover for his scheme to obstruct a governmental function through deceit. Now, Trump then argues that his lies aren't deceit because they wouldn't have fooled anyone. It's my favorite argument.

Nobody listens to me. I can't fool anyone. These are very smart people. They came to me with tears in their eyes. Nobody listens to me. I can't fool anyone. These are very smart people. They came to me with tears in their eyes. They're very smart. That's is actual argument. Nothing I said could have reasonably fooled anyone. Yeah, my lies aren't lies

because they're really bad lies that are unbelievable in their substance that doesn't make a lie. It's like Sydney pals, like no one can be expected to reasonably believe anything that I say. It's like Fox with their, you know, defense for defamation saying, you know, a reasonable person would believe what we say.

Whatever believe us, yeah, that's right. I'd say they might have had something there though. I don't know. The Maga uses this argument a lot. Yeah. Yes. So DOJ responded that by saying, lack of success provides no defense to a charge of

conspiracy to defraud, much less any basis to dismiss the charge. Or otherwise, defendants captured and root to a bank robbery could not be charged with conspiracy because their crime did not succeed. This is like one of those one L law moments, right? Your first year law student, you learned that like lack of success in a crime is never a defense. You know what I thought for sure would come up would be Bill Barr's memo, excusing Donald for his obstruction of justice in the Mueller case because Bill Barr just decided that there has to be a successful underlying crime in order to obstruct. And it's just wrong on its face. So I thought I might

see reference to that DOJ memo, but I didn't. I guess I'm smarter at being dumb. Yeah, good, good to see that DOJ has abandoned their former leader's theory on that. So they, they go on to say the defendant also asserts that his statements were not deceptive because he genuinely believed the election was stolen. Even if the defendant could supply admissible evidence of his own personal belief that the election was rigged or stolen, it would not license him to deploy fraud and deceit to remedy what he perceived to be a wrong, and it would not provide a defense to the charge. Yeah, and that brings up the thing that you and I've talked about multiple times. That's the OJ example. The thing OJ actually went to prison for. Somebody had a bunch of his sporting memorabilia in a hotel room in Las Vegas. And even though it was his and he believed

it was his, you still can't break in with a gun to steal it back. There are and DOJ explains this in this filing too. There are remedies. Those remedies going to the courts. He did that. He lost 63 times. So he exhausted those remedies and the DOJ brings that up. I think that's a very good point. Yeah, we're going to see that for sure.

That's one of the keys to his defense and these things. You'll see it in Mar-a-Lago. It'll be, I thought they were mine mine. But it's a legally insufficient. It's the type of thing that maybe a defense would throw out just because they want to put it in front of a jury. They're hoping that jurors will hang up on it, at least one of them and say, you know, kind of like a sympathy appeal. But on the law, it's not a sufficient defense.

Yep. Okay. So that covers DOJ's responses on the 371 issues. Next, they move to the obstruction charges. Here, Trump argued that the indictment doesn't alleged that he violated obstruction statutes. And DOJ says that it clearly does. DOJ says the indictment alleges the defendant conspired

to, attempted to, and did, obstruct, and impede the certification proceeding. The indictment alleges the defendant acted corruptly. As of the two things you need to do. Yeah. I mean, you really don't need much more than that indictments. This one's extraordinarily detailed. Most of the indictments I'd seen are the course of my career are far more general than

this one. So it would stun me if this motion was successful on any respect, but nevertheless, here we are. So finally, they turned to the conspiracy against rights charges. And DOJ says the indictment is proper. The indictment alleges a criminal agreement and the requisite mens rea, which is of course, the mental state necessary to be guilty of a crime.

Next, the government says Trump's constitutional challenges lack merit. They claim the First Amendment does not protect the defendant's criminal conduct. Quote, as the indictment recognizes the defendant had a right, like every American, to speak publicly about the 2020 presidential election, and even to claim falsely that there had been outcome-determinative fraud during falsely that there had been outcome determinative fraud during the election that he had won. Had the defendant done no more, and statements pertaining to political matters of public importance would have remained protected under the First Amendment even if false.

But the defendant did not stop there. He instead made dozens of specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-citizen or otherwise ineligible voters had cast ballots or that voting machines had changed votes for the defendant to votes for Biden. Because of the defendant used those knowingly false statements regarding specific facts to commit the crimes charged in the indictment, they were not protected by the First Amendment. And here's where I think they hit the point

the strongest. Speech used to commit fraud and speech that is otherwise integral to criminal conduct is not protected under the First Amendment. Yep, and we just saw a couple of guys get under the First Amendment. Yep, and we just saw a couple of guys get sentenced for violating this exact statute, Title 18, US Code 241, for telling voters that they could vote for Hillary using text messages. That speech is not protected under the First Amendment because it's deceitful. It constitutes fraud, and it's very, very clear. Yeah, yeah, absolutely. Trump's other constitutional argument is that he can only be indicted for conduct if the Senate convicted him on impeachment while simultaneously arguing that he can't be indicted for conduct he's been impeached for. I know that sounds crazy. So T.O.J. cites multiple

judges who were criminally prosecuted without having been convicted by the Senate after impeachment. And even if double jeopardy applied, Trump isn't charged for the same conduct he was impeached for. He was impeached for insurrection. And he's not charged with insurrection. Though the insurrection does play a prominent role in this case, as you're about to discuss in a separate motion the special council filed the same day so You know, I know we we hit this theme a lot I feel like sometimes it feels like we're beating a dead horse, but you really can't make the point often enough All of this is about only one thing and that is delay

Because the strategy here the criminal criminal defense strategy, is a political strategy. That's the only tool he's applying to this problem, is politics. Every one of these claims, all of these motions, most of them are founded on things that are on their face legally insufficient as defenses. Not every single one, but the vast majority. But they make these arguments because the making of them leads to the creation of delay. And the more delay you get, better the chances are that this thing gets pushed behind the election, his plan is to win the election and make all this go away. Yeah, that and to bookmark for appeal, because you have to have a, I think you have to have

a motion and have it denied to be able to appeal on that particular thing. And they know they're going to lose and that their best chance, their best shot is to have a conviction thrown out on appeal. So yeah, I think that's true, but I think the appeal also plays into the delay strategy. It means he can, he can continue to maintain that I haven't actually been convicted of anything and can attempt to sail through the election. Obviously, we'll see how that goes. But yeah, it's all very, a very consistent strategy, I think. Yeah. And this kind of made me think to the double jeopardy argument that whole even if,

even if double jeopardy apply here, it's different crimes. He was impeached for insurrection, for seditious conspiracy. Not what we're charging him with. And that may have played a role in, you know, because we always thought, I always thought he didn't go after insurrection or seditious conspiracy so he could avoid first amendment arguments. And that seems like it might be the case, but also to avoid double jeopardy arguments. I mean, it was a loser, but it opens it up for interlocatory appeal and something that may be the Supreme Court might be

more willing to take up than this, but we'll see. All right, we're gonna talk about how the attack on the Capitol played a prominent role in this filing, but we need to take a quick break. Everybody stick around, we'll be right back. All right, everybody. Welcome back. Andy, as you mentioned before the break, the DOJ is putting the events of January 6th front and center in their case in chief in DC. It our first real look, basically. At some of the things Jack Smith intends to prove a trial, in this case, we've already gotten a look at what he intends to prove down in Mar-a-Lago, but in this case, DOJ filed a motion the same day they filed that motion we just covered in this first segment,

but this motion is Jack Smith's opposition to Trump wanting to strike what he considers in flammatory and prejudicial language about the riot on January 6th from the indictment. And DOJ says, no way. The riot at the Capitol is central to all the charges in this case. Here's a couple quotes from the filing. And these are really strong statements, Andy. I was like, kind of blown away when I read them.

They say, in this case, the defendant seeks to distance himself, moving to strike allegations in the indictment related to quote, the actions of the capital on January 6th 2021. The court should recognize the defendant's motion for what it is a meritless effort to evade the indictment's clear allegations that the defendant is responsible for the events at the Capitol on January 6th. Indeed that day was the culmination of the defendant's criminal conspiracies to overturn the legitimate results of the presidential election, when the defendant directed a very large and angry crowd, one that he had summoned to Washington, D.C., and fueled with knowingly false claims of election fraud, to the Capitol to obstruct the Congress congressional certification proceeding. When his supporters did so, including through violence, the defendant did not try to stop them. Instead, he encouraged them and attempted to leverage their actions by further obstructing the certification.

Contrary to the defendant's claims, then, the indictment's allegations related to the actions that the capital are relevant and probative evidence of the defendant's conduct and intent, and they are neither prejudicial nor inflammatory. His motion to strike them from the indictment must be denied. This is some of the strongest language, if not the strongest language, that I've heard from, you know, they're like, court should deny this motion. You should consider denying this motion. This, they're saying this must be denied. This is central to our case. Yeah, absolutely agree. And I'm really glad to see it.

And this kind of goes back to what we were just talking about before the break. Lots of good reasons and clear thinking went into the decision to not charge Trump with insurrection. And one of the unfortunate aspects of that is I think some people felt a little bit, well, a lot of the people I talk to

don't even realize that he's not been charged with that. That's a different problem. But I think some people felt a little bit unsatisfied with that aspect of the indictment. I still think it was the right decision. Now realizing how important the special council team views and how central the riot is going to be to their prosecution, I think it kind of returned some balance there, right? So this is basically like the special council is telling us, kind of don't worry,

this is still going to be the centerpiece of our prosecution. The things that we have charged him for are a way of holding him legally accountable for this. And I think that's that's an important thing to really anyone who was offended or disgusted or shocked or horrified by what they saw happening on January 6th. Yeah, especially those who were there. When I read this, I was reminded of Capitol Officer Harry Dunn, who at his testimony to the January 6th committee said, you know, when a hitman goes out and kills someone, you don't just arrest the hitman, you arrest the person who sent the hitman. That's right. And so this right here, I feel like Jack Smith was listening. And that's where the facts and the law lead the special counsel's office. So, you know, he was responsible for the riot. He did it,

he summoned them there, he sent them there. It was a culmination of him trying to retain power. And they go on to say information about the January 6th attack on the capital is relevant to all of the charges against the defendant. And Trump knows that, right? Because in other filings, Trump argued he can't be criminally charged because he was impeached for the attack on the capital. And in Trump's motion to subpoena the missing January 6th select committee material, the quote unquote missing material, Trump literally says in that motion, the indictment directly alleges Trump directed supporters to the Capitol to obstruct the certification proceedings. Oops.

Like you just admitted. Did I say that? I did. Uh, uh, uh, uh, uh, no, what I'm trying to say is the indictment doesn't alleg that I did that. So it does, but it doesn't. doesn't allege that I did that. It does, but it doesn't. Quote, thus as the defendant has acknowledged in his other filings, the charged allegations that the defendant seeks to strike are plainly relevant to all the counts in the indictment. And here's the big reveal. Jack says, I'm, I've talked Jack like he's my pal. At trial, the government will prove these allegations with evidence that the defendant's supporters

took obstructive actions at the Capitol, at the defendant's direction, and on his behalf. The indictment also alleges, and the government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the vice president and to obstruct the congressional certification. And in particular, the government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification,

asking where the Vice President was and chanting that they would hang him. asking where the vice president was and chanting that they would hang him. Next, the government will prove that the defendants knowing and corrupt intent is clear from his actions and purposeful inaction during the attack on the Capitol. The allegations in the indictment are not unduly prejudicial or inflammatory. In fact, evidence of the attack on the Capitol on January 6 is powerful and probative evidence of the defendant's conduct, motive, and intent. So, that's big stuff. So not only is it not going to be scrubbed from the indictment, it's all going to be

entered a trial and we're going to rub your nose in it. You're going to have to sit there behind the defense table and watch the videos as the jury sees them in real time. They're already preparing their motions to exclude evidence, everything that's been in here. I'm sure we'll be the target of one of those motions, but I think they have super low likelihood of success and we'll see that when the judge decides this motion, I think. And in another important motion this week, the DOJ is opposing Trump's motion to stay the entire case based on total presidential monarchy. Okay, immunity, not monarchy. I can't let a week go without making that joke.

And they urge Judge Chutkin to rule on the motions that are subject to interlocutory appeal first. Those are the motions with constitutional considerations, including Trump's motion to dismiss on double jeopardy grounds and total presidential immunity. Because constitutional considerations are subject to interlocutory appeal, as we discussed in the last couple of weeks, they could delay the trial until the motions are settled. So here's what DOJ had to say. Quote, although the defendant's motion for a stay of the court's proceedings at this stage is meritless and should be denied, it is a harbinger of the defendant's plans to use any means, including by manipulating the timing of any appeal to derail these proceedings.

The defendant delayed filing his immunity and stay motions to maximize his chances of delaying this trial. Past practice shows that he will undoubtedly do the same, and the event the court denies his immunity motion, and that decision is subject to interlocutory appeal. To limit such disruption, the court should promptly resolve the defendant's immunity motion, as well as his double jeopardy claim that is also potentially subject to interlocutory appeal, so that the government can seek expedited consideration of any non-frivolous appeal and preserve the court's carefully selected trial date.

The court should deny the defendant's motion to stay. Separately, the court should promptly consider and decide the defendant's immunity motion and double jeopardy claim. So you see it right here, right? They are trying to keep the pedal to the floor and to keep this thing moving forward. They are kind of looking down the road at potential opportunities for interlocutorial appeal

that could stop halt the entire proceeding while the appeals are worked through the system. And you know, they have to. They're left with no alternative, but to try to think around corners here. Yeah. And next up, Andy, remember when Department of Justice asked the court to require Donald Trump to notify everyone if he intended to use the advice of council defense. I did remember that. They wanted that notification by December 18th, because that's when evidence is due. Then Trump filed his motion to oppose that. You can't do that.

It's in constitutional. You should have asked sooner, but okay, I can do it. January 15th has that. Well, we have a ruling from Judge Chuck Kenshe says in this case, the court need not decide whether it has authority to order the defendant to provide notice because he agreed to provide notice to the prosecution of whether he intends to pursue a formal advice of counsel defense by January 15th, 2024. But see, Trump wanted to notify the court on January 15th, but then have the court set a briefing schedule and hearings to determine when he would have to hand over all the discovery. But Trump provided no precedent for that. And the judge says it goes against the standard practice that disclosure usually accompanies notice. So sorry, Charlie. As he has consented to do, defendant shall provide

formal notice, whether he intends to assert an advice counsel defense by January 15th. If the defendant does provide affirmative notice, he must also provide the required discovery to the government at that time. Any communications or evidence defendant intends to use to establish the defense and otherwise privileged communication that defendant does not intend to use it trial but that are relevant to proving or undermining the advice of council defense.

You have to give it over in its entirety on January 15th, there's not gonna be a briefing schedule and hearings and all that. So you said January 15th, I agree. Normal way this is done is that all of the stuff has to accompany your notice. So you have till January 15th. Hony up, but I mean, let's be honest, I'm sure they're already drafting the appeal of this decision. And so we'll be briefing this one in the next couple of weeks. Oh yeah. All right. So some other filings that came in this week, on November 3rd, DOJ's opposition

to televising the trial. So we have no decision here yet, but I think the judge will probably agree with DOJ on its kind of rule of law argument. I don't think the judge or DOJ wants to kind of upset the apple cart of standard practice with anything among the lines of television coverage. But we'll see how that goes. Also on November 3rd, DOJ's opposition to pretrial motion to delay Trump asked for two months on 11, 6, Trump filed

as reply making the same arguments. And on 11, 7, Judge Chuck can gave him an 18-day extension. The deadline for filing pretrial motions has now been moved from November 9th to November 27th. And then finally on the don't call it a gag order, as we know Judge Chuck and denied Trump's motion to stay the gag order and then reinstated it, right? She first stayed it and then she decided it would not be stayed depending the appeal. And then Trump went to the DC Circuit Court of Appeals who granted him a temporary stay pending his appeal. So this week we got word from the DC Court of Appeals

that they would hold oral arguments on November 20th at 9.30 AM. Anybody who wants to be there, I advise getting there early. And they are giving each side 20 minutes to make their case. Trump's brief for the appeals court was due on November 8th. DOJ's response is due on the 14th, and Trump's reply is due November 17th. So bottom line is super expedited briefing schedule to resolve this issue at the circuit court level. I think it's a good sign for future appeals.

The court is obviously watching this case. They know kind of how important the timing is for both sides, important for the government to be for both sides, important for the government to be going forward quickly and important for the defense to slow things down. And they seem to be in highly responsive mode here. Yeah. And we did get Trump's brief on 11.8.

And it's, it just makes all his same arguments to stay this as before. So there was nothing. Yeah. We've heard him at least in two rounds now and we'll continue hearing them. And if Sergey Korko's the government's way, I fully expect they'll, they'll request Supreme Court review. I doubt they'll get it, but we'll see. Yeah. And then finally, Jack Smith filed a motion to strike Donald Trump's SEPA section five filing. So I asked our SEPA expert, Brian Greer, about this. And he posits that it's along the lines

of what he and I discussed last week. That perhaps his filing, Trump's filing, failed to be specific about which documents he's after, what classified documents he wants. You'll remember, in a different filing, he asked for the Missing January 6th Committee Documents. And a DOJ opposed that saying, Rule 17, subpoenas have to ask for specific stuff.

You can't just be like, whatever's missing, just give it to me. So Brian said last week, Trump may run into the same problem here. So because we know Trump wants classified documents relating to the intelligence community's report that the election was free from foreign manipulation. That's one of the classified documents that is in this trial. There's a very limited number of classified documents in the DC trial.

And Trump was like, well, I have to be able to get every single classified document that supports or goes against or opposes this IC report. And Brian was like, maybe that's what he put in his CPISection 5 request. He may not have been specific. And that may be why Jack Smith gave an emotion to strike. We don't know.

A lot of this stuff is under seal. But if we learn more, we'll certainly let you know. All right. We're going to head down to Florida, but we have to take a quick break. Everybody, stick around. We'll be Welcome back. We're going to add down to Florida with some reporting from your colleagues at CNN. Yes. Yes. And this gets to the heart of what you and I discussed a long time ago about why these investigations can take so long. I'd asked you what this

kind of investigation entails. And you talked about having to interview every visitor, member of the staff, visitor log contractor, anyone that had been near any of the classified material at issue, or even in the proximity thereof, or just at Mar-a-Lago. And so this story comes from Caitlin Pollan, some Polaried at CNN. A plumber, a maid, a chauffeur, and a woodworker are among the Mara Lago staffers and contract workers who federal prosecutors may call to testify against former President Trump and his two co-defendants at their upcoming trial in Florida. The low-level workers who were the eyes and ears of Mara Lago, if called to testify, could offer the public a new level of insight into the exclusive club and Trump's approach to

sensitive national security information since he had left office. Some of them are still employed at Mar-a-Lago. Currently, the trial is set to begin in Florida in May, well before the 2024 presidential election, but that could change. We'll get to that in a second. The potential witnesses have already spoken some multiple times to federal investigators

in detail about the level of security, which was very shitty at the Mar-a-Lago resort, including how- Can you say it's a level of security if there was no security on it? I don't know. Negative security. Inclined as security. Including how the boxes of documents were kept, whether they were visible or could have

been accessed by visitors at the property, like the ones in the ballroom or the bathroom. A woodworker from South Florida, for instance, when installing crown molding in Trump's bedroom in February 2022 and noticed some papers. He thought they might have been movie props. A chauffeur was asked by investigators about powerful business people, including foreigners who had visited the club as VIP guests, and that's according to a source. For instance, the chauffeur described ferrying around the Australian billionaire, Anthony Pratt. That's the one that Trump told about our subcapabilities

and how close they can get to Russian subs without being detected. Some of the people identified to CNN as possible witnesses are longtime Trump property employees who live in South Florida and had heard through word of mouth through the grapevine about Trump workers focus on attempting to delete the security footage. Everybody knows, I mean, this is like the standard wine

you hear from any informant. Like, how do you know that happened? Everybody knows it happened. And to some degree, it's true. It's like there's a level of like chatter that takes place in any community. And apparently, the chatter at Marlago was how much the boss wanted the video destroyed.

I mean, I just, yep, that's, that's the hot guy. That's the tea at all the local pubs. Now, the federal investigators diving deep into Marlago payroll angered the former president who winters at the Florida property and regularly makes photo opportunities with guests at the club. When the maid who cleans his bedroom suite was asked to speak with investigators, Trump's response was, quote, ballistic, according to a source. Don't tell them what I look like in pajamas. You sealed to buy, man, if I cleaned up after Trump,

I'd be writing a book. You sealed to Paris. You know, our employee number four, the one who got a new lawyer and is cooperating. He only recently resigned. Trump didn't know he continued to number four, the one who got a new lawyer and is cooperating. He only recently resigned. Trump didn't know he continued to be employed at the club. Remember, we talked about this following his split from a Trump-provided lawyer this summer.

And the former president was very unhappy to hear that Tavarus had still been working there. So what? You and I were like, you're kidding. Well, can you use, get him on the phone. I forgot my password. I mean, I have such this, the substance of this is so offensive to anyone who has worked with classical documents. But yet you can't get through the story without laughing, starting with the beginning,

which how much does this sound like to set up to a joke? A plumber, a maid, a chauffeur, and a woodworker walk into a bar together. I mean, like, you can't make the stuff up. Nope. It's just unbelievable. And those are just the folks that work there.

We have all the people being arrested for faking to be Rothschilds. We've got the child's spy with the devices. I mean, geez. That's right. And remember to part of the reason, and this goes back to the conversation we had the last time, it's an unbelievably detailed

and kind of broad and scope investigation because there's two things going on here. One, yeah, they're looking for potential witnesses, people who could offer interesting or compelling testimony at trial, but two, they're also conducting a threat assessment to figure out what is the damage from having all this top secret stuff all over this mess of a club or whatever it is. So you have to talk to every single person who could possibly

have interacted with this material, and then you start looking at each one of them to determine, like, is this person actually a foreign agent or working at the behest of a foreign agent? Is there a danger that this person might have shared this information with someone else? So, yeah, I think we're just starting to see some of the details of how complete the government's work needs to have been here. And it looks like it was, so good for them. Yeah, for sure. All right, so let's talk about something that you just mentioned, which is the trial schedule.

And we know that the trial is still on for May, but that trial date could be in jeopardy. So as you know, Trump filed a motion to delay the entire trial and several sepid deadlines. And Judge Cannon issued her decision today, granting Trump's motion in part and denying it in part. So we have reporting on this from Roger Parloff. Judge Cannon's order today, not only postpones many trial deadlines in the United States versus

Trump, won by as much as 17 weeks, but also suggests that she may allow an unprecedented approach to a SEPA issue that may force the government to bring an interlocutory appeal. The coming dispute involves the classified information procedures, or SEAPA Section 4, which permits the government to turn over classified documents and discovery in a summarized or redacted form so that the defense doesn't see national defense secrets that are irrelevant to the case. So SEAPA provides that the way to do this is for the government to show the documents and the proposed redactions to the judge

in a sealed X-part A procedure. So, that's a procedure without the defense present. And for the defense to simultaneously outline its defense theories to the judge, also X-part A. So, just the defense and the judge. The judge then decides if redactions are fair. Trump wants new rules for him, of course, right? He wants his lawyers to see the secret documents

and then to be able to argue in an adversarial proceeding that the redactions aren't fair. He basically wants to turn the government's submissions of potential redactions into a hearing. Now, we tried the same thing in the DC case. And in DC, Judge Chuck and denied Trump's request, noting that such a procedure was unprecedented and would defeat the purpose of the statute. But based on the new schedule, Cannon is ordered, it looks like she might grant Trump's

request in the Mar-a-Lago case. Her original schedule followed normal procedure. It called for the government and Trump to submit simultaneous section four briefings, both X part days we just discussed, on October 4th. It then scheduled a hearing, presumably a sealed one, for a week later, on October 17th, to resolve disputes. Now the new schedule is completely different.

The government is to file its section 4 motion on December 4th. That same day, Trump is supposed to file a motion contesting the X-part A nature of the process, which that's the piece that really opens the door to completely changing the process as it goes forward. Then seven weeks or so later, on January 23rd, Trump files a defense challenge to section four motions. Now, this can only be possible if Canon has granted Trump's motion to discard the X-part A procedures and proceed adversarily.

Canon then called for a two-day hearing on the government's section four motions for February 15 to February 16. Now it's hard to imagine a two-day hearing that isn't adversarial, right? The government's not going to stand up there and talk by themselves. So if Canon grants an adversarial approach to section four, that's what will trigger the government's appeal, which would be interlocutory, and it would really blow away any notion of a pre-election trial on the Mar-a-Lago case. So while she's keeping the May trial date, yeah, it could all get blown up.

But I think the government, if they do appeal, that they can also pair that with a get her off this case. But, you know, as a lot of people pointed out today on social media and experts talking like on MSNBC and stuff, you know, they were like, look, she basically is trying to delay this without creating an appealable remedy. But eventually, you go a little point of this out too, Andy. Eventually, there will be an appealable remedy if she decides to take SIPA 4 to an adversarial hearing as opposed to an X part A. So there are appealable things and that those can be, some of them can be expedited. I think anything SIPA can be expedited if

the DOJ asks for it. But, you know, folks like Harry Lippmann are saying they could also then potentially pair that with emotion for her to recuse. But we'll see what happens. But it seems like she wants to delay without quite doing it yet. And I think there's a hearing on March 1st for her to revisit the trial date. And by then it's just gonna, like you said, it's gonna be totally blown out on her. It's gonna be one possibility. Yeah, she's basically backing herself into it.

Each one of these is a little brick. She's not come out and said, I'm actually building a wall here, but she's laying brick by brick by brick, and eventually, she'll step back from it, say, like, oh, look, we have a wall. I mean, that's essentially where you're going. It'll be an unavoidable reality by the time she actually confronts the delay motion, or looks at officially changing the schedule. Yep. All right. Well, we've got one more motion in Florida to cover and then listen to questions. But we need to take another quick short break.

Everybody, stick around. We'll be right back. All right. Welcome back. The final filing. We got through all these motions. The final motion is the Department of Justice's Advice of Council motion, right?

This is just like they filed up in DC in order to keep the trial date on schedule. We need to know if he's going to use an advice account because then he has to give all the stuff and we have to Investigate it and look through it all and then decide, you know, we have to figure it out and put it in discovery And then we have to give everything we find through our investigation to them so it can make it to discovery trial. This process is going really well up in DC. This is another way everything that gets filed in Marilago I see as a chance to delay they're trying to head that off at the pass. We'll see how long let's should we put up a head of lettuce and see how long it takes Judge cannon to decide this one, you know, she could wait months and then be like, okay, yeah, how about How about April, you know like a month before the

So this is just the further opportunity for this and it's all the same reasons He's already you know said publicly he plans on using an advice account so reasons. He's already said publicly, he plans on using an advice counsel, but DOJ wants this sooner so that they can try as best they can, not to derail this trial date. But what's interesting is they filed this after Judge Chuck in NDC approved their motion up there. So I was wondering if they were like, let's wait till she approves the one up there and then file it down with Canon so that Canon has an example. But a little win behind the sales. You know, like, for sure.

Hey, see, this is how regular judges do things. Yeah. It's so crazy though. And never, I don't think there's ever been such a clear case where you could compare two ongoing criminal prosecutions at the same time. It's like government versus the same defendant in different jurisdictions and very different judges.

You have one that's totally committed to keeping to the schedule and is actually issuing orders that are consistent with that. And another one, who we just discussed is it seems to be all in for letting this thing slow down as much as possible. It's really frustrating. You can see how it should be done.

There's a good example and you can see how it's happening in Florida. Yeah, and this is going to be, I think, studied for years and years and years and years in law school about two different judges, the tale of two judges. That's right. And they're because they're SEPA in both. They're the same motions in both, motions to dismiss, stay is now there's no gag order down in Florida because we aren't expecting that. But you know, the Trump is attacking the judge in Florida or anybody in the courtroom or the Floridians who live down there. But he's certainly going after the prosecutors and potential witnesses. We'll see what ends up happening. Well, obviously we'll keep an eye on it for you. That's our job. Do we have some listener questions this week, my friend?

We do. We had a bunch of really good ones, and so I picked two, because I think we can answer them both pretty quickly. The first one, I like it because it's kind of a capstone to all of our conversations today about delay and what's the long-term goal with that. So this one comes to us from Scooby Drew. I like the name there. Scooby says or Drew says, I don't know which you go by. First, a big thank you to you both for

the enormous amount of good work that you're doing to make this giant pile of shite understandable for all of us plebs and neophytes. Again, of course, the question begins with object flattery. So thank you, Scooby. Appreciate that. Okay. My question. I am convinced that DT is all in, which is a poker term, on the path of pardoning himself if he wins the election. Could you define the powers of presidential pardon for clarity?

What can he pardon and what can he pardon if he is not yet convicted? Can he pardon himself from the charges prior to conviction? So this is an easy one to answer. The pardon power is basically limitless. He can do, he can do pretty much whatever he wants. He can pardon, and you know, legal scholars will tell you the official Supreme Court interpretation, Supreme Court is never officially weighed in on the idea

of whether or not the president can pardon himself. I'm here to tell you he'll do it, and then that case will fight its way through the Supreme Court for gosh knows how many years, but the fact is the effect of it will take place. You can pardon people ahead of time. There was some conversation about that back towards the end of his administration, people who are asking for preemptory pardons. That is actually a thing. You could say to your, for instance, you could say, I hear by pardon my secretary of state

for anything illegal he might have done or for any allegations of illegality that come up pertaining to the time period he served in my administration. So things like that, you can do. What you can't do is he cannot pardon himself or anyone else for criminal actions that are taken up by the states. The pardon only affects federal cases.

So that's pretty much the only limitation on it. Think of anything I forgot to cover. I am future crimes. You can't pardon crimes that haven't happened yet. You can pardon if the crimes that have happened that haven't been charged yet, but you can't really pardon future crimes. Although, that's never been litigated. Although I will say this, Department of Justice, in their response to Trump's motion to dismiss the DC case for absolute presidential immunity brought up several hypotheticals. If you couldn't charge a president, a president could do this, a president

could do that. A president could call it the national guard against his political enemies, a president, like a bunch of stuff that Trump's done. As hypotheticals to say, if you can't go after a president for crimes that he committed while in office, a president would be able to corruptly pardon someone. They brought that up, corrupt pardons, saying that corrupt pardons are illegal. And they did that in that filing. And I thought that that was interesting because I think right around that same time, like Sidney Powell, Michael Flynn, some stuff was going on with them. I think probably what they were referring to there is like a corrupt pardon would be a

president who takes money in return for pardoning someone. That's very clear. That would be the heart of a corrupt pardon, right? You're you're pardoning someone for your own for your own financial benefit. And so the DOJ would I would expect to take the position that that would be an excessive use a criminal use of the pardon. It's actually an active political corruption rather than just a pardon. But I don't know, it's an interest, it's an interesting question. And there is a fair

amount of gray area here. But when you go back to the language of the constitution, it's pretty broad. Yeah. And you could certainly litigate it, but I'm pretty confident this Supreme Court would say, sorry, pardon, power is hugely broad. There's nothing to do. Yeah. Sure.

All right. So that's Scoobies. And the last question is from Rick. Rick says, as a former assistant U.S. attorney and deputy independent council, I'm a big fan of your podcast. Thank you, Rick. Wow. Here's my question.

If there is a government shutdown next week, will that delay the former guy's federal trials? Rick, my answer is no. There is the kind of essential business, anything that is, I know in DOJ from having been through this exercise quite a few times looking down the barrel at a government shutdown,

we have to go through a process of determining which employees are essential and which functions of the department are essential and anyone's that are not deemed essential get essentially turned off. Those people get sent home for the period of the shutdown. But ongoing criminal prosecutions because there are these constitutionally protected deadlines and processes in place, they are always treated as essential functions and they continue despite the cutoff of funding. So such as a defendant's right to a speedy trial or the public's right to a speedy trial?

That is correct. Yeah. So you're not going to just like drop a, you know, a pause into all, you know, currently ongoing federal criminal trials simply because there's no money to pay the people who have to work them on the federal side. Those people have to all continue working through the shutdown because they're considered an essential personnel. Any ideas that when the funding opens up again, they get paid for all that work that they did, but that's down in the weeds on the

funding side. Right. Yep. Good question, though. I can tell you one thing that won't be closed because of the potential shutdown, and that is the Jack podcast. Because we'll be here. We will be essential to that's right. We're essential to your understanding of this

shite as normal Jack. Special counsel's office as we've gone over several times is funded by a permanent fund in the US Treasury. And that is controlled by the attorney general. So he doesn't go away. That's right. Even if they wanted to in Congress do a whole man rule thing, it would have to be past the Senate and be signed by Biden. So don't worry about defunding Jack Smith. That's right. I can't happen. He's got too many motions to respond to. So it's way too many. We have too many to

tell you about plenty of business if you're a special counsel. Well, thank you. So many great questions are great, man. There are the listeners to this show are just so smart and so thoughtful and so complimentary. Yes, yes, I love that they think of that all on their own. It's great reading through the questions every week. It's hard picking just a few, but really appreciate all the ones and even the ones that may not make it to the show. I go through them as seriously and it really helps me think about what to talk about. But awesome 50th show. Thank you for all the work you put into it, A.G.

I really appreciate it. I am coming to you this week from CM Reap Cambodia. And it's looking like a rainy day here, which is unfortunate, but we're gonna go out and do some fun things. Oh, holiday in Cambodia. I can't believe it. That's right.

Exactly. Exactly. Anyway, thank you all so much for listening. If you have a question, you can send it into us using the link in the show notes. We really appreciate it. This has been a hell of a week and I don't expect it to slow down at all. So thanks for listening so much.

My name is Allison Gill. And I'm Andy McKay. And we'll see you next week on Jack.