Jack - Episode 55 | Jack’s SCOTUS Gambit (feat. Steve Vladeck)

Episode Date: December 17, 2023

This week, Jack Smith moves to bypass the District Court and have SCOTUS weigh in on Trump’s motion to dismiss based on Donald’s claim of absolute presidential immunity. Also, SCOTUS has agreed to review the Fisher case to clear up the question of what “corruptly” means in the context of interfering with a congressional proceeding. There are updates around a missing binder full of Crossfire Hurricane material.Plus, we have some great listener questions.Our guest:Steve Vladeckhttps://twitter.com/steve_vladeckhttps://www.scotusblog.com/2022/01/the-rise-of-certiorari-before-judgment/The Shadow Dockethttps://www.hachettebookgroup.com/titles/stephen-vladeck/the-shadow-docket/9781541602632/Good to know:Rule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512Brian Greer’s Quick Guide to CIPAhttps://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/ Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady 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 AGFollow 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. December 17th, 2023. I'm your host, Andy McCabe. Hey, Andy, I'm Allison Gill. Wow. Okay. So this week was probably the most consequential week in the DC case against Trump, or even in modern history. The DC trial is a week that we're living in for me. So it definitely is. So the DC trial is now on hold. It is stayed in a ruling by Judge Chuckkin. And Jack Smith has played his draw for reverse draw for combo cards by leapfrogging the appeals court to petition the Supreme Court to hear Trump's immunity appeal, effectively boxing

the former president in. And not only that, of course, but Scotus has agreed to hear the Fisher case, which of course is about how to interpret Title 18 USC, our favorite section, 1512 C2, which over what 300 January 6th writers and Donald Trump are charged with. And today we're going to discuss that case with University of Texas Law Professor Steve Vlatic. I am so glad he's joining us to explain this. And if all that weren't enough, we have Jack Smith's notice of experts. He plans to call it trial that will show who was using Trump's phone on January 6th and where they were, which is, you know, what we were talking about with that Twitter search warrant.

We have a missing binder of highly classified crossfire hurricane documents. I don't know if you know anything about crossfire hurricane Andy, but I know a couple things about it a little more than I'd preferred to know at this point actually, but it seems to never die. We also have Jack Smith's response to Trump's ridiculous, overbroad immaterial motions to compel discovery. We have the DOJ getting John Eastman's disbarment transcripts and repeated outreach from Trump and his pals to a cooperating witness in the Mar-a-Lago case. So any thoughts that this thing would slow down in December has gone right out the window?

That's absolutely right. And you know, it can't slow down because we all know that Trump's interlocutory appeal on immunity and double jeopardy grounds must be decided before jury selection is set to begin on February 9th, which is less than two months away. So, what, what say we start there? Sounds good? Yeah, yeah. It was like a bam, bam, bam, bam. We got appeals courts, scotus, appeals courts, scotus, like all in a day or two. I mean, it was so, and you know, you and I talked about imagining that this would go quickly based on the appellate courts expedited briefing schedule in the limited gag order.

They heard that lickety split, right? We're like, they're going to, I'm like, they're going to go fast on this. And boy, boy, did they? Yeah, yeah. They've been very responsive so far. And that, fortunately, that is holding firm. So here we have Jack Smith, who filed for a motion for expedited review with the DC Circuit Court of Appeals

on December 11th. That same day, the appeals court granted expedited review and ordered Trump to respond on the 13th and DOJ to respond on the 14th. So that's that very responsive hustle, hustle approach. Two days, Yeah, they're getting dive and right into it. So then out of the blue, taking everybody by surprise, I literally couldn't even sort through the orders. Has this news was breaking one after

another like hold on a second. Are they getting the names of the courts wrong? Yeah. Because Smith then filed with a Supreme Court for expedited consideration of a petition for cert right after he filed with the Circuit Court. So same issue, and he's hitting two courts at the same time. So in the Supreme Court, he asked them to rule before the appeals court, but also said, you know, let them know that he had just filed for expedited review with the appeals court as well. In case, Scotus doesn't grant cert before the appeals court makes their decision. Yeah. When it went so fast, yeah, I actually saw the Scotus filing before I saw the appellate court filing. And I was like, in the Scotus filing, he's like, I filed with the appeals court. And I was like, oh, shit. So I went back and I looked, I was like, he sure did.

Double black. he sure did. Double black. He sure did. There it is. Your Pacer account's getting a workout this week. Yeah. Yeah. Right.

So same day, Supreme Court granted expedited review to consider cert and orders Trump to respond by December 20th. And Andy, that's just, that's not granting cert, right? That's just granting the expedited review to consider cert. And when I say cert, I mean, a writ of certiorari, which is basically what it's called when the Supreme Court says we will take up a case. And of the thousands and thousands and thousands of cases that are filed only about 60 or so are granted cert.

Every year. that's right. Every year. Supreme Court doesn't have to take anything. There's no automatic appeals to the Supreme Court. As you said, litigants, they file a petition for certiori and the Supreme Court gets thousands. They consider them all. Sometimes they have like briefings

and they do a kind of a formal consideration. Sometimes they just deny it, right? You know, and with a one page order, you know, certain, you petition for service here by deny. Yeah, clearly that old shadow docket thing, which is a good book. You should buy by Steve Lattick, who will join us in the second part of the show. There you go. There you go.

So, so that happens, right? Trump now has to respond to this government appeal or request for cert and his responses to December 20th. On the 13th, Trump filed his opposition to expedited review with the appeals court, so now we're back in the appeals court, arguing that the whole thing amounts to election interference, shock of all shocks,

and having his brief due December 26th, essentially makes Jack Smith the Grinch trying to ruin his Christmas. He even quoted Dr. Seuss in his filing. Not usually seen as a, you know, a lot of precedent in court, federal court filings, you know, citing Dr. Seuss, but hey, here you go. Yeah. Well, you know, Grinch V. Seuss.

That's right. No, excuse me, Grinch V. Whoville, the very important landmark case. Personally, I see Jack Smith more as a traditional Grinch, not like the Jim Carrey Grinch. I feel like he'd go old school back to the animated Grinch. Yeah, I agree. I agree. So DOJ's response wasn't due until the 14th and they filed it on the 13th and said, okay, fine, have Trump's response do on the 23rd before Christmas. So the appeals court comes back same day and grants Jack Smith motion, setting the briefing

schedule as follows. Trump's response to Jack Smith's request for expedited review by the appeals court, Trump's responses do the 23rd. And this is on the merits. This isn't to consider. That's right. This is the full blown federal court briefing. And then DOJ, of course, gets their opportunity to respond to Trump's filing. And that would be due on the 30th.

And then Trump's replies do on January 2nd. So the date for arguments of this motion, that's not been set yet, but I think it's fair to assume that it'll be some time in that first or second week of January. Yeah, it'll be fast considering their extremely fast expedited review. And then Christmas is saved. Trump doesn't have to respond. On boxing day, he has to do it on the 23rd. They're like, we're going to be toiling throughout the holidays. They're like, great, toil before the holidays and get it to us on the 23rd. Trump and little Cindy who can recline and peaceful slumber.

Who do you think? What do you think of this move to, you know, push things potentially right into the Supreme Court? Well, I think this is brilliant, right? Because, you know, Trump forever, and I'm going to appeal this to the Supreme Court. I'm going to do it. I'm going to appeal this immunity to the Supreme Court. And Jack's like, cool, how about now? And he's like, no, wait.

Hold on. That's our event. Yeah. He would have rather gone through the regular process of having the appellate court make their determination, then file petition for cert with the Supreme Court and have them consider it, then Jack would file to have it expedited consideration,

and then they would agree and have briefings on just whether or not they're going to hear it, and then they would decide whether they'reings on just whether or not they're going to hear it. Then they would decide whether they're going to hear it. They would schedule arguments. This all happened, by the way, 50 years ago, this year, well, next year, 1974, when they were trying to get the water gate tapes, right? Yeah. Could there possibly be a better analog?

I mean, look, it's the case that matters most is us v Nixon. Another case against to while the corrupt president. Yeah, it's, it's, it's, I think it's, you know, Jack Smith is in a good position in terms of the case law that he's relying on. You know, Trump, of course, argues that Scotus very rarely takes these cases before the appellate court has had a chance to decide, but it's been done 19 times since 2019 and 49 times total. And then of course, we said it's very close to the USV Nixon case, which is also the closest substantive precedent relative to this issue. USV Nixon, of course, decided that Nixon was not immune. Or he had to hand over the tapes.

He wanted to quash that, the tapes from being subpoenaed, right? Correct. The subpoena for the White House recordings. Scotus took, they scheduled the hearing, the arguments, two months after they granted cert. Yes. And of course, the significance there is they determined that unlike the civil immunity that a president enjoys from most of what he does while he's in office, there's a different

standard for criminal liability and that a lot of those protections the president has kind of falls away when he finds himself in the middle of a criminal investigation. Yeah. And the other thing too is this really ties Trump's hands, right? And this is the first thing that crossed my mind. And Hugo Loll also pointed it out in the Guardian because Trump can't really oppose Jack Smith's request for the Supreme Court to hear the case and then come back later and ask him to hear the case, right?

Exactly. It's, it doesn't quite work that way. And so, you know, I, I see a couple of different potential scenarios happening here. I, I see, you know, after they get Trump's filing on the 20th Supreme Court might deny cert and not deny cert on the merits, just deny cert to hear it before the appellate court goes. But the appellate court will be fully briefed by January 2nd, and by the time SCOTUS makes that decision, the appellate court may have already ruled.

But I don't know. We'll see what it's like a course race here. We'll see how the timing plays out. But if SCOTUS deny cert, we will be very close to or already have an appellate court decision. And then Jack can reapply for cert. Go right back to the Supreme Court and say, how about now? And then the Supreme Court, if they deny cert again, that means the appellate court ruling stands. If they grant, then we see how long they take to set an argument, and how long they take to make a decision.

And Nick's, and like I said, it took two months to get the arguments, and then another 16 take to make a decision. Nixon, like I said, it took two months to get the arguments and then another 16 days to render the decision. But another really interesting parallel, Andy, between this and Watergate, is that at the time there were three Nixon appointees sitting on the Supreme Court. Wow. One of them did not vote and the other two voted against Nixon of the three that he had appointed. Now we've got Trump with three appointees sitting on the Supreme Court.

Will Thomas recuse is the big question, right? Everyone's like, no, hell no, he won't. But I do want to remind everybody just this last October, Thomas recused from a case that had to do with Eastman because Eastman and Ginny were emailing, oh, well, we don't know why he recused. It could have been something like one of the lawyers he clerked with or did, you know, who knows why he recused. But it's not out of the realm of possibility. And we might get that one no vote and two voting no.

If anybody votes in Trump's favor, I'm assuming it would be Thomas if he votes And Alito. So I think a worst case scenario. We're looking at a seven two, but it could be a seven one Just like in Nixon. Well, that was a no Nobody voted for Nixon Yeah, it's really really interesting. I mean oh, yes Thomas could recuse But there's also plenty of Jan six business he's not recused from. So it's very much an open question. Question I have for you is reminding ourselves that this

is entirely about Trump's motion to dismiss based on constitutional grounds, the immunity issue. There is another motion still pending that Chuck and has not decided on statutory grounds. motion, still pending that Chuck and has not decided on statutory grounds. And she kind of severed those two things in terms of her, you know, addressing them and, you know, deciding them likely because she wanted to push the one that would drive an interlocutory appeal. This one, the immunity issue forward to try to get that business done in time. Question is, could it have inadvertently created an opportunity for a totally separate and new delay

with the once the statutory issue gets decided by Chutkin? You can just assume that Trump's gonna appeal all that stuff as well. I guess it won't be interlocutory so it's not quite as significant as the constitutional issue, but I'm just trying to say, we're not out of the woods from Trump really dragging the heels of this case through the mud

with appeal after appeal. Yeah, I know she still has to decide on statutory and I think vindictive and selective prosecution motions to dismiss and she can't do any of that right now while it's stayed, because that's the next story of the day, right? Judge Chuck can officially stay the DC case, pending the outcome of the immunity appeal. The DOJ opposed the stay, but not pretrial schedule and trial stay.

They opposed that because Trump contended that Judge Chuck can has no jurisdiction whatsoever, while the appeal makes its way through the courts, the DOJ contended that Judge Chuckkin does, and Judge Chuckkin agreed. She says she still has jurisdiction when it comes to enforcing the protective order over discovery, enforcing bail conditions, and enforcing that limited, don't call it a gag order gag order. And so that was her ruling there. That's why I contend that this trial will get pushed back a little because February 9th to start jury selection. I mean, they can start that process. If by February 9th, this immunity

thing is adjudicated and exhausted, and they can start that process, but they still will have to rule on those motions. They don't, like you said, have to deal with the appeals before the trial starts because those appeals can go on in the background, right, because they're not in a locutory, they're not constitutional in nature, but there are also some seep of things that have to take place, because there's a limited amount of classified information in this particular case. I know that right before Judge Chuck can state this case, Jack Smith filed a 6A seat emotion and that made Trump very angry. You have to stop. Everything

must stop. And he's like, we haven't gotten a ruling yet. You're harassing me. You're harassing me. Yeah, so that's kind of the way that I see it, is you're good. We're going to still need some time because if this, if everything stops for a month or two, anything that could have happened in that month or two in pre trial stuff will now be pushed back a month or two. I'm honestly thinking that this trial goes off in April, May, maybe June, the latest. That's kind of my thought on this. I don't think March 4th will hold. I really don't, but I don't think it'll be pushed

much further back. Yeah, I don't think it'll hold either. I think she knew it wasn't going to hold even despite her, her very strong comments repeatedly that it would go on that date. I think in the back of her mind, she knew something like this could come up and it would unavoidably push things back a bit. I think that's why she picked March 4th because she still has got some runway to get this thing done before the election if March 4th starts to slip. Well, we talked about that a lot, right? Like, we, because they wanted January, Jackson Smith wanted January and the Trump wanted, you know, 25 years from now.

But, you know, we were like, March is good. It can still be delayed and still happen before the election, or even the convention, the Republican National Convention, which is July 15th. But this is a three to four month trial. And everyone who's like, but May is the documents case. No, it isn't.

No, it isn't. Only in a dream, many moons ago, and that's what it was. Yeah. Yeah, it's still May, but it's May 2025, maybe. And one last thing that happened this week, Judge Michael Ludwig, well-respected conservative judge, Michael Ludwig, well respected conservative judge, have filed an Amicus brief with the Supreme Court in the immunity thing, right? Now, of course, Jack Smith is arguing if you give immunity to a president, America is not America, basically. But judge Ludwig's like, even that aside, even if you want to make America not America, and him and him and a couple

it doesn't, a dozen other. Assuming we're going to be hungry from now on, it's still a problem. It's still a problem. This is a ludic at all. A couple dozen Republicans that served under five presidents have filed the Amicus brief. And what they're arguing is that you would screw up Article 2, Section 1 clause, one of the Constitution that says a president can only serve a four-year term. If you grant immunity, that means a president doesn't have to leave.

And by the way, that means Biden wouldn't have to leave if you grant immunity. So just on the very narrow question of how anti-constitutional it is to upset article two, uh, uh, sexual one clause one. And the same applies across the board, right? If you're saying the president cannot, cannot be held criminally liable, then he basically can violate any law, including those that required him to leave. Mm hmm. Or anything else. So, but if you want to hold on responsible for that, but they're like,

if you want to rule on this narrowly, you have to consider article two, section one clause one. If you want to just talk about this particular, because sometimes scotus does that, they rule on stuff narrowly. This question of absolute immunity is the is the brick that even you pull it out the entire wall fallstamp. Yeah, they're not going to. I am a hundred percent sure that the supreme court is not going to grant Trump immunity if they take the case. No, even, you know, from what, if you listen carefully to, you know, even on, on my network,

listen to some of the CNN reporters who are very well sourced in the Trump legal world, they are, you'll hear that even Trump's own lawyers know there's almost no merit to this whatsoever. It's not so frivolous that it would be the sort of thing that would get dismissed and could provoke sanctions, but it doesn't really have any chance of winning. They know that. It's all about the way. Yep, that's the whole purpose.

Andy, what do we have next? So next up, we've got another really interesting scotus development. The other major scotus development this week, I guess, on the Trump cases anyway. And this is the one that really grabbed my attention and kind of threw me into a bit of a panic when I first heard it. So this is the fact that scotus is now agreed to take up the case, a case related, is a bit of a bank shot, but related to the Trump indictment. And this is a case called Fisher. You're going to remember Fisher is a January 6 writer,

and he was charged with 1512C2. And early on in his case, he filed a motion to dismiss his indictment, at least the charge of obstructing the official proceeding, the 1512C2. And his judge is trial court judge, Judge Nichols, who's a Trump appointee, interpreted 1512C2 to mean it must include destruction or alteration of a document or other record. Okay, so you'll remember AG, this 1512C2 came into effect as a result of Sarbanes Oxley, which was a bunch of laws passed in the wake of the Enron scandal and other kind of accounting and white collar misdeeds in the early 2000s. And this one specifically was meant to target businesses who destroyed records, documents, data, that sort of stuff,

to avoid an official proceeding or an investigation or something like that. So Nichols was one of only 16 judges that disagreed with DOJ's interpretation of the statute. And the appeals court, of course, ruled in favor of DOJ. So now the Supreme Court has agreed to hear the case this term. I've got a lot of questions about this and how it might affect Trump's case. And of course, we have just the person to answer them. After the break, we're going to talk to University of Texas law professor and self-proclaimed scotus nerd Steve Latix. Stay with us. We'll be right back.

Hey everybody, welcome back. Joining us today to discuss the Fisher case headed to the Supreme Court is University of Texas Law Professor and author of the book. You need to get it. It's called the Shadow Docket. Please welcome Steve Vladik. Hi Steve. Hey, I'll send him great to be back. Great to have you here Steve.

It's totally a bonus for our listeners and great for us as well. So thanks for doing it. Thanks, and a great, great to be with you. Cool. So the first thing I want to ask you, everybody seemed to get a little concerned about the Supreme Court taking up the Fisher case. And we've explained the Fisher case. Fisher is a January 6th writer who wanted his charge obstructing an official proceeding, which is Title 18 US Code 1512C2, dismissed, and Judge Nichols, a Trump appointee, ruled that the statute only applies to people who

mess with documents or records, basically. And of course, the appellate court overturned that. They had a kind of a weird descent and they all kind of had their own reasons why, but it did rule in favor of the Department of Justice, ultimately. And 15 other, excuse me, district court judges, right? 15 other district court judges upheld the DOJ's interpretation of this statute,

but you tweeted that the two other cases that Fisher was consolidated with, laying in Miller, are not being considered here. It's just Fisher. And you said, quote, I don't know why they take only Fisher, and not the other two, but it suggests that perhaps this isn't as major an intervention as is being portrayed and is about something narrower in just the Fisher case. What could a more narrow decision look like here?

I mean, the short answer is I don't know. I haven't figured it out since I tweeted that, but it is really odd, procedurally, for the Supreme Court to take three cases that had been consolidated in the Court of Appeals. It's a single decision by the DC Circuit where the Justice Department in opposing Sershirari had filed a single brief and had not suggested anywhere in the brief that there were material differences between the three cases. Even the Supreme Court's website until the court credit cert had actually had with this weird designation suggesting that the court-credits cert had actually had with this weird detonation suggesting that the court was treating them in three cases as related to break them apart.

You know, Allison, I think there is at least the possibility that something about Fisher's fact pattern, the fact that maybe he didn't enter the capital until later on January 6th, or you know, something weaker in the charges against him might be animating the justices. Of course, it could be something more prosaic. It could be that the justices just like the lawyers who are representing Fisher or more, or they thought that the briefs on Fisher's behalf were better than the briefs on laying on Miller's behalf. We won't know, or at least when we won't even have a clue, I think, until the oral argument, which will probably be in April. But, you know, I think that either way, it does seem like the court wants to say something about the relationship

between 1512, C2, and 1512, C1. And I think the real evidence of that is that they're taking the case now, as opposed to waiting for these cases to go to trial, which is what would have happened if the DC Circuit decision had been left alone. So I think the court clearly wants to say something, whether it's going to be a repudiation of DOJ's approach to 1512, C2, and hundreds of these January 6 cases, I think very much remains to be seen. That's a really interesting answer. It dovetails into what's my biggest concern here. And honestly, in a week of a lot of interesting Supreme Court and appeals court action on

this Trump Gen 6 case, to me, this one was like, this is the potential real hand grenade, particularly in the trial schedule and what the future of this case looks like. So for me, it's like, what is Judge Chuck and going to do with the Trump case in light of the fact that this thing is now in some form? Wait, you know, we don't know, as you said, we don't know what they're really going to focus on, but it is certainly going forward on what is the core of the Trump prosecution, right? Two of the four charges in the Trump indictment. So, you know, I'm talking to friends of mine

and thinking about like, what's the range of possibilities here? Does she stay the entire case to see what guidance comes out of Scotus on this thing? Does she just ignore it and forge ahead? Because Trump's not a party to the appeal and he would just be one of many cases that would have to be adjusted in some way after the fact. Does she try to sever maybe the 15, 12 counts out of the indictment and kind of put them

on the shelf for a day later? I feel like that's super unlikely. Or of course, I'm building up to the bucket, I believe in here, which is, does she try, you know, it seems like the existence of this appeal is going to matter most in terms of how the jury is instructed in the Trump case, assuming it goes to trial and goes to the jury. So does she, is there a lane here for her to construct jury instructions? Of course, after hearing arguments on both sides and considering the briefs, but they

come up with jury instructions that would be essentially consistent with whatever guidance comes out of Fischer. Yeah, I think two things are true. I think first, you know, Judge Chutkin has to hit the pause button anyway while either the Supreme Court or the DC Circuit or both sort out the immunity defense question. Yeah. And so, you know, we're in a waiting pattern on the January 6 trial for Trump anyway, at least until that happens. But you know, the last thing we say, I think is exactly right, on the 15-12 charges specifically, I think it would actually be pretty easy for Judge judge Chuckkin to say, listen, the best

possible scenario for former President Trump is that the Supreme Court embraces the reading advanced by Judge Nichols and by Judge Katzis in his panel dissent in the DC Circuit. And so I'm going to assume for the sake of this proceeding that that's the government's burden, that the government has to show not just a general intent to obstruct the January 6th joint session, but picking up on the Nichols Katzis reading, a specific intent to do so by manipulating, by impairing the evidence before the joint session. And of course, the great irony here is compared to the 300-some odd January 6 defendants

for whom that's gonna be a really heavy lift. It's actually not that heavy a lift, at least the way the indictment is written against former President Trump because what's the evidence before the joint session? The evidence before the joint session are the electoral votes. And so insofar as former President Trump was part of a scheme to submit false, you know, disputed electoral votes from some number of states.

That, to me, is much closer to the heartland of even the very narrow reading of 1512-C2 embraced by Judge Nichols and Judge Katzis. So, you know, I think Judge Chuckkin would be within her rights assuming that the case comes back to her with a holding from the DC circuit and or the Supreme Court, the Trump is not immune. I think she would be within her rights to say, I'm going to proceed under the 1512c2 charges on the theory that Nichols and cats are right and give and give

Jack Smith the opportunity to prove to a jury that even under that more restrictive reading on 1512C2, for President Trump is still guilty. Yeah, and Jack Smith has brought this up. And back in November in a filing opposing Trump's motion to dismiss on statutory grounds. I went back and I looked at it because I was like, surely, Jack, his thought of this potential, more narrow reading. And of course, he had, and he says in that filing, this certification proceeding that the defendant and his co-conspirators are alleged to have obstructed is required under the Electoral

Count Act, which specifies procedures that rely on specific core records or documents. Those are certificates of votes from each state, preventing the members of Congress from validating the state certificates, constitutes evidence-focused obstruction, and thus would violate Section 1512C2, even on a narrower view of the statute's scope. And that is particularly true, where, as here, the criminal conduct included falsifying electoral certificates and transmitting them to Congress. So already built in to Jack Smith's case in chief, is this narrower understanding Nichols

ruling on Fisher? Which is the profound irony of the Supreme Court's intervention Even in a scenario where the court goes all the way to the Nichols Katz's reading and we should be clear guys. There's no there's no narrower reading I mean the right that is the that is the alternative before the Supreme Court and so that reading would have massive Consequences for I think I can say the sort of the lowest level January 6th offence. There are a number of cases where that was the principal charge.

There are a number of guilty pleas where that was the only count to a defendant's pleaded guilty. And I think it would have no effect on Trump. And so you'd have this scenario where it would be portrayed as some massive, I don't know, referendum by the Supreme Court on the generous expositions when perhaps the most important of all the generous expositions gets through either way. Absolutely. And even on the much more, I think, the less likely scenario that their focus is on the

kind of corrupt purpose side of the statute. Again, there's no one better situated to fit the requirements of a corrupt purpose than the guy who orchestrated the, the attack on the Capitol that saves his own job. Well, the, I mean, so the irony on the, on that point, Andrews, you know, as well as anyone is, you know, if there's debate about the mens rea, the corrupt purpose piece of 1512, it's about when my corrupt purpose can be solely to benefit somebody else. Right.

Right. And in the case of former President Trump, his corrupt purpose, or, you know, the alleged corrupt purpose of his unlawful acts was to benefit himself. Everybody's corrupt purpose was to benefit him. So yeah. And Jack Smith actually just recently filed a notice to Judge Chuck in about 404B evidence centered under exception, saying all of his things that he said publicly, going back to 2012 about how he wasn't going to concede the election, he wasn't going to submit to

a peaceful transfer of power. All that stuff can get in under 404B rules of evidence under exceptions to those rules of evidence, and that he will prove you will use all of that information to prove intent, motive, common plan, etc. So as all of us were sitting around a couple of months ago saying he doesn't have to prove intent, he doesn't have to prove intent at all. He is going to, at least according to his own 404B filing. And I mean, I think the intent question also of course comes back into play when you

start talking about the other charges in the indictment. So, you know, I think the moral of the story here is that Fisher is a really big deal, the sort of the further down the January 6th totem pole we go, and not that big a deal, the further up the totem pole we go, where either there are other charges or you have more specific involvement in conduct that would violate even the narrow reading of that statute or in President Trump's case both. And I guess my concern then becomes less about the case against former President Trump and more about the perception that I'm sure the Supreme Court doesn't want to reinforce

but might unavoidably reinforce that if the court does narrow 1512c2, it will be portrayed as some massive repudiation of the January 6th prosecutions, which I think would be grossly unfair, compared to how many other charges are perfectly fine, compared to how many of the folks, even who would have a really good case that they're entitled to resettlement are still guilty of crimes for what they did on January 6. So, you know, I think the,

making sure folks understand what the stakes are and aren't a Fisher, I think is going to be really important as we move toward the oral argument probably in March or April, and then the decision may or June. All that considered considered were you surprised that they took the case at all? It just doesn't seem like there is like this roiling massive controversy at the appellate level between interpretations. The cases are actually fairly consistent with the notable exception of Fisher and his co-appellance. But I was surprised they weighed into this thing, especially now, in light of the way it could impact the timing

of the Trump cases. So the now is the real surprise to me, not that the court was interested in this question at all. I mean, the unrelated to January 6, the Supreme Court has been interested in the last eight, nine, ten years in these very kinds of debates about federal criminal statutes, just to sort of put this in context where you have a series of provisions that are written in response to a specific episode. In this case, the, you know, Enron and World Com accounting scandals and financial services scandals. And so you have some specific prohibitions and that are more general,

a catch-all, you know, obstruction or other, you know, sort of type of charge. And the court has been worried about whether that catch-all charge is too broad. So there's a case from 2015 called Yates, which had no real political valence. It was just a weird case about a commercial fisherman, where the court actually read a statute that says, you know, the destruction of any tangible object can be obstruction in this context. And said, no, no, no, the tangible object has to be one on which you can record data. So you have a five-four decision from the Supreme Court in 2015 that a fish is not a tangible object.

Right? The court has been on these statutory adventures even before anything about January 6 or Trump was on the radar. That's why I'm not surprised they took the issue. I'm surprised they took it now. Because I mean, as Allison mentioned at the top, the cases, none of these cases, you know, these three cases, Fisher, Lang and Miller, have gone to trial. Judge Nichols had dismissed the indictments. The government had appealed. The DC Circuit's reversal would have meant we'd go back to Judge Nichols

for the cases to go forward. And if I'm in the Supreme Court, I'd much rather resolve the scope of this statute. Once I know what these specific defendants have actually been convicted of, as opposed to what they've been indicted for. It's a great point. That's a great point. So, to me, it's the fact that these are interlocutory, that really seems confounding about why the court's stepping in, whereas I would not have been surprised on the far side

of convictions for the court to say actually this is the kind of thing. No, there's no circuit split, but this is what we do. Yeah, and I guess it's consistent with the kind of overall sense that they are concerned about, particularly about these corruption cases and the context of political corruption. You can go back to McDonald. It's the same sort of thing. I know that's, I'm sure that weighs heavily on Jack Smith's mind

these days with his own connection to those cases. No doubt. And I think, I mean, the court comes in for some criticism, especially from the left, that in those cases, the court tends to be bent over backwards and actually maybe even abandon some of its textualism in defense of white collar defendants. But I think it's worth stressing that whatever you think of the pattern in the abstract,

this is not a bolt from the blue, right? That it's the timing that's weird here, not the court's interest in general, in the precise problem of a sort of casual obstruction provision tacked on to a statute that was more specifically about evidence impairment. Especially, so isn't it really wouldn't impact the Trump case that much? I mean, I could understand and be in like, all right, let's clear up whatever Catsis and Pan and everybody was talking about in the in the Appellic court. Let's just clear this up before the Trump trial of the millennia starts, but you know, I don't see that being the reason either. So yeah, it's kind of baffling.

Let me say one last thing about that. And I wrote about this a bit in my Supreme Court newsletter this week, which is the timing of both of these things, the sort of the Jack Smith appeal of the immunity question and the grant and Fisher both coming this week. I actually think the best case there is the best evidence there is that that's a coincidence. Even though these things happen within two days of each other, the way that the court operates internally, it's really hard to envision that at the time the justices voted to grant Fisher, which

is most likely on December 8th, that they were thinking at all about the immunity question or Jack Smith coming to them. He hadn't yet to hustle up on the immunity question. So I think it's just really a coincidence that these are both in the water at the same time. And to me, the only unusual thing about what the court has done in Fisher is sort of taking only Fisher, not the other two, and taking them now as opposed to waiting. And Ajay, the notion that that's because they want to resolve this in advance of the Trump case, I don't know, I think that's probably belied by the time, by the coincidental

time in But also because had they done their homework as you have right they've known that of all the January six cases the one in which this is least likely to cause the problem is Trump For sure appreciate that I appreciate that professor. I learned from the best IEU and Andy So thank you so much Not me for being on here today and Andy. So thank you so much for being on here today. Joining us explaining this in a way that everybody can understand. We really appreciate you. Everybody pick first of all, read the newsletter. Second of all, pick up the shadow docket. It makes a great holiday gift. Absolutely. Absolutely. Yeah. Do it. It really does. And there's so much important information

in there and follow Steve on all the social media. We appreciate your time today. Steve Vladik. Thanks so much, Steve. Thank you guys. Everybody stick around. We'll be right back. Boom, boom, boom, boom, boom, week that kind of got buried in all the scotus news. One of those was DOJ's opposition to Trump's motion to compel. So, A.J., you're going to remember this.

Trump filed a motion to compel all this crazy stuff to basically force the government to go find these things and produce them to him, Trump, in discovery. So, we went over that kind of line by line. Like he wanted. to go find these things and produce them to him, Trump in discovery. So we went over that kind of line by line. Like he wanted, yeah, he, I mean, stuff that doesn't exist. It's, yeah, there's a green man on the moon who says he knows who flipped votes. You got to get his statements. I need his ring because, you know, what? Just nonsensical stuff. So now we have the government's response. And as you would expect, they didn't go lightly on this thing. They weighed in a pretty decisive manner. So I got a couple of good quotes here.

First they say, the defendant's view of discovery is untethered to any statute, rule, or case. And it lacks both specificity and justification. The information he seeks is not in the government's possession. In many cases does not appear to exist. And in any event is not discoverable pursuant to Brady, federal rule of criminal procedure 16 or any other authority. The defendant's motions should be denied.

How do you really feel? How do you really feel about it? Tell us, don't hold back. Great opening paragraph. And we're all, I am stupider for having heard it. I award you zero points. I want the motion to be denied and I want to be able to not have ever heard it. I want that memory to be erased of this nonsense. Okay. So they go on to say, the defendant seeks to add to the prosecution team and note here, my own note. That's basically how, as a defendant, you make an argument that the prosecution is responsible for turning over evidence.

The standard is like, any entity that is effectively a part of the prosecution team. So in the typical case, records in the possession of the FBI must be turned over because the FBI is part of the prosecution team. That team can be expanded based on the case. So if maybe DOJ is prosecuting a case and they had worked with, I don't know, IRS investigators, IRS, part of the prosecution team, therefore the documents and stuff in their possession is relevant to the discovery obligations that must be turned over. Okay.

So, with that, they say the defendant seeks to add to the prosecution team a separate investigation, distinct components of the Department of Justice, the Department of Homeland Security, and its quarter million employees, the nation's entire military apparatus, three million strong, the 18 federal agencies that comprise the intelligence community, and a defunct committee of a separate branch of government. The defendant already has received the discovery in the possession of the government and agencies that are, quote, closely aligned with the prosecution at a partridge in a petry. The court should deny defendants' discovery demands because he fails to establish their materiality.

This is another grounds that you can attack the demand on. If it's not material to the prosecution, it can't be considered, you know, part of the government's obligation. They go on in support of his motion to compel, the defendant suggests that the government relied only on a selection of politically biased officials, but he does not and cannot substantiate this theatrical claim to the contrary, as the defendant is aware from the discovery that has been provided, the government asked every pertinent witness, including the former DNI, the forming acting secretary of DHS, the former acting deputy secretary of DHS, the former CISA director,

the former acting CISA director,, former sister senior cyber council, former national security advisor, the former deputy national security advisor, a former chief of staff to the national security council, the former chairman of the election assistance commission, presidential intelligence, briefer, the former secretary of defense and former senior DOJ leadership, if they were aware of any evidence that a domestic or foreign actor flipped a single vote in a voting machine during the presidential election. The answer from every single official was no. No.

That really shows how broad this investigation is too, right? Which is also the same reason why Trump failed in 60 lawsuits to prove that that had happened back when he was still president. And all those people we just listed worked for him. Even he couldn't come up with a single person or a single piece of evidence that stood for the opposite, that there was a vote turned over by anyone. Now, the next part is my favorite because this is where Jack goes after Trump's contention that it was Russia. It's all Russia's fault. And this is my favorite.

Okay, here they say, the defendant's argument that foreign countries spun up the defendant's followers and caused the Capitol siege is a thinly veiled argument of third party guilt. Evidence of third party guilt normally fails the balancing test prescribed by Rule 403, where the accused does not sufficiently connect the third party to the crime, the probative value of the evidence is speculative, or the evidence of the third party to the crime, the probative value of the evidence is speculative, or the evidence of the third party's guilt would not actually exculpate the defendant. Yeah, that's important. Even if the actions of a third party could legally excuse the defendant's crimes, and they cannot, the defendant's assertion that foreign countries somehow

inspired the Capitol siege is both speculative and far-fetched, particularly in light of his own deliberate actions that caused the attack. Bing. Yeah. I don't know. Maybe he was working on behalf of Russia. Okay. I've said that before. And I got a lot of trouble for it. So let's just move on. The defendant invokes a completely unrelated event, the SolarWinds attack,

to support his speculative and conspiratorial theory that there was foreign influence in the election, contrary to the universal consensus of the officials he appointed. Even if the defendant is correct that Russia breached federal networks as a part of the SolarWinds incident, he omits two critical details. One, states,

not the federal government operated the machines that were used for voting and tabulation, and two, the SolarWinds attack had nothing to do with the 2020 election. Love that. Number two, you're dumb. You're just dumb. Yeah, it's just not relevant. The defendant has moved to compile a production of the classified version of the ICA, which stands for Intelligence Community Assessment, on Russian meddling in the 2016 election, along with, quote, all source materials, which would include classified assets, methods, and operational details. None of these materials are in the possession of the prosecution team,

nor are they relevant to the charges in the indictment. The court should decline the defendant's request for an unprecedented expansion of the prosecution team beyond reason or basis, and deny the defendant's demands for additional discovery because he has failed to establish the materiality of any of them. Yeah.

And they went on to pick apart his argument about the, when the head of, I think, the co-conspirator for had a briefing, Jeffrey Clark had a briefing with the DNI. He wanted all the materials there and they're like, you have them all. I mean, he picked apart every single thing that Donald Trump was going up. Those are just the major ones that I was really, you know, that we were like kind of focused on in the last episode when we went over that motion to compile. So there's a whole long 45 page dismantling. Throwdown.

Yeah. It's a 45 page dismantling. Throw down. Yeah. There's a 45 page thrashing. Mm-hmm. So if you get a chance, it's got to be kind of dispiriting a little bit to be on the Trump team. You follow your motion, you get all high and mighty bad election interference, and then you get this full on smackdown.

You're like, oh god, that kind of hurts. Yeah. So if you want to read the whole thing, you can just Google Jack Smith's motion in opposition to Donald Trump's motions to compel and you'll be able to find it's fantastic. Next up, the DOJ's Notice of Expert Witnesses. And this was a huge story this week. This took over the news cycle for like at least a day.

And Andy, this has to do with that Twitter search warrant. We've been going over where Jack Smith sought and received all of Trump's Twitter metadata, including direct messages, location information, login information, who was using it on what phone from what IP address. And Jack Smith notices to the court, meaning it's not a motion, really. He's just letting the court know that he intends to call three expert witnesses. Expert one will testify about the location, history data for Google accounts and devices associated with individuals

who moved on January 6, 2021 from an area at or near the ellipse to an area encompassing the capital. His or her, the expert's testimony, will describe and explain the resulting graphical representations of this data. And it will aid the jury in understanding the movements her the experts testimony, we'll describe and explain the resulting graphical representations of this data. And it will aid the jury in understanding the movements of individuals toward the capital area during and after the defendant's speech at the ellipse. And this sounds to me like they're trying to prove that Trump's actions moved the crowd. Yeah, yeah, and it's a it's a gold mine of data this this

Google collection Generally has become a major major factor in many criminal cases Yeah, an expert too is kind of like a piggyback on expert one They're gonna testify about the process of determining device location how we do it the collection and use of location history data by Google and how we do it, the collection and use of location history data by Google, and location history data produced in response to the search warrant and included in the graphical representation prepared by expert one. So it's kind of like a bolstery witness. Yeah, so I think it's important to note here. So we talk about evidence all the time and what might be used to trial. So there's a there's a

process. It's not just about like you have a piece of evidence and then you talk about it at trial, you have to enter it into evidence in court. And in order to do that, you first have to lay the foundation of the evidence. And you do that by putting somebody on a witness who can testify about how that piece of evidence was collected, where it came from, what its provenances, whatever, whatever. collected where it came from, what its provenances, whatever, whatever. If that evidence is a business record, something that comes, you know, you like in this case, they dropped a subpoena on Google, they got that data, that data is a Google business record. So now you have to have people from Google who will come in and explain to the jury, lay the foundation for it, explain to the jury like, how is that evidence actually collected in Google systems? What does it signify? You know, that sort of thing

Yeah, yeah, you have to do it every time. I mean, yeah, you really do The alternative is the defense can stipulate to that Mm-hmm. I don't expect we'll see a lot of stipulation in this trial requires some degree of practicality and cooperation and that seems to be out the window. Yeah. Now, Expert 3 is the big one. This is the one that I'm interested in.

I mean, I'm interested in all of them, but Expert 3 has knowledge, skill, experience, training, and education beyond the ordinary layperson regarding the analysis of cellular phone data, including the use of Twitter and other applications on cell phones. The government expects that Expert 3 will testify that he or she one extracted and processed data from the White House cell phones used by the defendant and one other individual, who we will call, they say in the motion here, individual one. I should say the notice, not the motion. And notice that's different from co-conspirator one.

This is individual one. Number two, the, how, she or she reviewed an analyzed data on the defendant's phone and on individual one's phone, including analyzing images found on the phones and websites visited. Three, determine the usage of those phones throughout the post-election period, including Imaging images found on the phones and websites visited Three Determined the usage of those phones throughout the post election period including on and around January 6th and Four specifically identified the periods of time during which the defendant's phone was unlocked and the Twitter application was open On January 6th and so that says here's we going to prove that it was Trump who sent that tweet. Right. Whose individual won? And more broadly, what Trump was looking at on Twitter. He can't,

you know, this is all going to go to what was in his head. What did he know? What did how much of what was happening on the grounds of the Capitol was he aware of? Well, if you can show that his Twitter scrolling history minute by minute, second by second, you can really paint a very rich picture of what his eyeballs were seeing and what he was thinking about at that time. The expert is likely, I'm going to guess it's like an either an agent or an FBI employee who does this every day. An analyst, right?

This is an analyst who does this stuff. This is the person who, after the other two laid the foundation, this is the person who actually gives you the interpretation. How the data is relevant to this case. It could be a private sector expert. There are certainly people that do that, but oftentimes the prosecution relies on government employees to do it. the prosecution relies on government employees to do it. Yeah. And this is kind of almost like at the heart, right, of showing that he incited the insurrection. Yeah, think about this. Think about the of Jan 6 hearings. We heard from White House employees who could testify. Yeah, I walked into his, I was walking back, you know, into the, what is it, the dining room?

The dining room, yeah. The dining room off the Oval Office and he was in there and he seemed to be there from this time to that time and the TV was on. So that's, you know, it's decent testimony that he was watching the events was aware of what was happening. This goes a hundred times more granular than that. This will tell you like, yeah, and at this minute, hour, minute, and second of the day, he went on Google and he searched, you know, could I be guilty of incitement?

You know, whatever. Right. How do I poison my chief of staff? Right? Where do I get the most well done steak in DC? I don't know, whatever. But you're going to get, I'm like, that's why I always feel like search history is just deadly because it tells you what was in the mind of the person you're thinking talking about. So this could be really interesting stuff. Yeah, search history has come in handy for me in divorce cases. So yeah, there you go. There you go. We won't go into granular detail, but he looked up some stuff he shouldn't looked up. Also, something's going on with Eastman, but you know, what's the story, first of all,

with Eastman and his disbarment? Yeah, well, it's interesting. We learn that Jack Smith is still scrutinizing John Eastman. He requested and received all of the deposition transcripts from Eastman's disbarment trial in California. Now, you know, it could just be something to have in their back pocket in the event that they are cross-examining Eastman in this case or who knows a later case? Well, that's what I think it is because I don't think that they're still investigating Eastman. I mean, they might, based on what they find in the deposition transcripts, there might be other threads to go down. But personally, I feel like this is like Wyjack got the January 6 transcripts.

Yeah. He already had that information, but you have to make sure that the testimony is consistent from agency to agency to or court to agency or Congress. Like we talked about in the Durham investigation where Jim Baker gave kind of conflicting testimony to different entities, which impatures him as a witness, right? Now I don't think Eastman's gonna be be a witness, but you definitely want to make sure that everything that, you know, if you're going after something specific, that, that, you know,

that your evidence can't be impeached from inconsistent testimony elsewhere. Yeah, these are all statements on the record, right? They were recorded, you know, maybe audio recorded, maybe just transcribed, but they were sworn. That's the important thing. So Eastman can't walk away from things that he said in these deposition. So if he's a what, you know, he's pretty, if you listen to his quotes recently, he, this dude hasn't backed off in Iota. He is still like, I think the election was stolen and blah, blah, blah. So as possible, he ends up on the stand as a defense witness. And in that case, the government will go after him. Oh my gosh, they're gonna go after him.

They're gonna look for every possible inconsistency he's ever walked into. And this could certainly provide examples of that. Yep, yep, 100%. All right, we have more to get to. We have to still talk about Florida. Wow. After all this. What's Florida? Where? What? We'll head down there as soon as we take this quick break. Stick around. We'll be right back.

Alright, hey, everybody. Welcome back. Let's head to our favorite place. Hey, everybody. Welcome back. Let's head to our favorite place, Florida, where the trial for the Mar-a-Lago document will be happening sometime this century. This is from Caitlin Pollan, your colleague over at CNN. And this is great reporting. A three months after the FBI seized classified records from Mar-a-Lago, a long-time employee of Donald Trump and his private club Mar-a-Lago quit his job.

Within days, the former president did something he rarely does. He called the former employee on his cell phone to ask why he was leaving after two decades of working at the resort. Now, the employee told the former president, I have other business stuff I want to pursue. And the message later got back to the former employee that Trump thought he was a good man. Sounds like Flynn, doesn't it? The former employee was a witness to several episodes that special counsel Jack Smith included in his indictment, charging the former president with a mishandling or I should say to retaining national defense information. Now, this employee also helped move several

boxes for Trump and was also privy to conversations referenced in the indictment between Trump and his co-defendants, Dale Lavera, and Nauta, putting the former employee in a unique group of Mar-a-Lago staffers who could be in a position to provide valuable information to investigators. This guy got his own lawyer, right? But Trump was still reaching out to him and having people reach out to him saying, we'll pay for your lawyer. Deole Vera was the one who gave this employee's phone number to Donald Trump. And Deole Vera told this former employee that he was sure Trump would love to see him at an upcoming Trump-hosted golf tournament and asked if he would like complimentary tickets.

And on another occasion, Dale Lavera communicated to the former employee that his job is still available. If you want to anytime you want to come back to Mar-a-Loggy, you still have a job, buddy. Trump thinks you're a good man. That was Dale Lavera. And then Nauta told this employee that he could come back to work at Mar-a-Loggo. And he showed up at the former employee's gym in person with Dale Lavera.

Like, they were stocking this dude. Totally. Totally. I mean, you know, when I first heard this, I thought, that's gotta be you sealed to Varas, but I don't think it is. No, I think it's at the other employee, right? The one who had the photo of the stuff spilled all over the ground. Yeah.

I think it was the go between employee. Because I think if it were Tavaris, they would have said it's Tavaris. Or he's the guy who got his own lawyer after the hearing for conflicts of interest in DC. Yep. And then that was brought in here. So I think that this is that other employee.

But he's out there calling him, offering him tickets, saying you're a good man, we'll pay for your lawyer. Like this is obstructiony. But the thing is straight up mob tactics, straight up witness intimidation, witness interference. Jack Smith is asking about this though. So very, very hard cases to bring, even though we all know exactly what's going

on here. And the guy in the center of it, our friend Don, he is smart enough not to get personally engaged. So being able to hold him accountable for this, very, very, very hard to do. Even though it's like happening in plain sight and people are going to be frustrated to hear me say that as an agent, like this stuff happens all the time, it's infuriating. And what you do literally on the ground, this comes up mostly in mob cases. And so you do everything humanly possible to separate the witness from the influence of these third parties. But it's hard to do. I mean, life is what it is. People have to have jobs. They're not all gonna move out of their house

and go into witness protection just because they're scooped up in a case like this. So it's very frustrating. Yeah. Yeah. And in some breaking news from CNN, a binder containing highly classified information related to, of course, Russian election interference.

You're favor. When you're missing. Yeah, it never goes away. It's evergreen. We went missing at the end of Donald Trump's presidency, raising alarms among intelligence officials that some of the most closely guarded national security secrets from the US and its allies could be exposed. So if the story sounds familiar, we've known about the binder since Cassidy Hutchinson testified security secrets from the US and its allies could be exposed.

So if the story sounds familiar, we've known about the binder since Cassidy Hutchinson testified about it to the January 6th committee, and of course she wrote about it in her book. But what's new here from CNN is that the binder was not recovered during the search at Marlago and the CISI, the Senate Select Committee on Intelligence, was briefed on this as recently as 2022. And Allison, there is great significance to the fact that that brief occurred. This goes all the way back to the National Security Act in 1947, which created a statutory obligation

on the part of intelligence agencies to brief Congress about things that that qualified as intelligence failures. Yeah, so this was always like one of those guardrails that you kept in the back of your mind. As you were doing things and operations don't always go the way you want, and this was kind of the threshold of if it was that serious, then we actually have to go tell Congress about it. So it tells you how serious the community thinks about the loss of this binder. Wow. Yeah.

So the binder contained raw intelligence, the US and its NATO allies collected on Russians and Russian agents, including sources and methods, that inform the US government's assessment that Russian president Vladimir Putin sought to help Trump win the 2016 election. Sources tell CNN. Now, CNN says the intelligence was so sensitive that lawmakers and congressional aides with the top secret security clearances were able to review the material only at CIA headquarters in Langley, where their is scrutinizing it was itself kept in a lock safe. That's the way you do these things at what we call a reading room.

You have stuff that's so dangerous, so sensitive, you don't want it to leave the building. You certainly don't want it left over at Congress. You keep it in a skiff, in this case at Langley. You make the congressional folks come over to read it. If they take notes about what they're reading, they have to leave the notes with you. They're not even allowed to walk away with the notes they take. And they lock those in a safe? Yeah, that gets locked in a skiff. It all gets kept together. And it's held even under higher restrictions than typical TS material. This stuff is typically what we call compartmented intelligence. We talked a lot about that after the search warrant at Mar-a-Lago. Some of the stuff down there would have the indicators of compartmentalized intelligence on it. In any case, Hutchinson wrote

in a book that she believes that Meadows was the last person with a binder. This is the same binder that Trump wrote the January 19th declassification order for, and ultimately assigned cash, Patel, and John Solomon, right wing journalist, to be custodians of while negotiating with the National Archives. A Solomon claims that on the night of January 19th, Meadows invited him to the White House to review several hundred pages of the declassified binder. to review several hundred pages of the declassified binder. One of Solomon's staffers was even allowed to leave the White House with the declassified records in a paper bag. But congressional reps had to go to Langley in a skiff and couldn't leave with their notes. Yeah, exactly. I mean, this is, you know, as we said, it's not a brand new story,

but these details about how wreck, and my estimation anyway, how recklessly the former administration handled this material is really shocking. And I've described this before, I know from my personal experience with overseeing the team that wrote the ICA, the intelligence community assessment on essentially Russian interference in a 2016 election, you know, that document was drafted based on an assignment given to

us by President Obama for all three agencies of Bureau, NSA, and CIA, to collect everything, every piece of intelligence they had that might shed light on what Russia did. This was after the election, of course, that might shed light on what Russia did in the election and what were they trying to accomplish. And so each one of us contributed the most sensitive, most important source material we had. So the idea that some of that incredibly sensitive material, which at the time was the best stuff we had to indicate literally what was going on inside the Kremlin, the idea

that those sources could now or were, at some point in jeopardy because of the way that material was handled by the White House, is just, it turns by stomach. Yeah, and I've been thinking about this binder for a while. You know, I know Murray Was, had written up a big 30,000-word story on it with the John Solomon having these, you know, certain papers delivered to him. And I know Sarah Burris wrote it up at Raw Story. I, Marcie Wheeler's been on it for a really long time. But you know, I always, just the first thing that crossed my mind is the reason that Trump

would want all this stuff is so that he could destroy the incriminating stuff or at least keep it out of the government's hands or have it or know what the government had on him. Yeah. But you know, it's just, it's kind of, it's kind of frightening. Yeah. You know, and NBC is also now confirming that the Sissy was briefed on this. It's almost two years ago. It was the beginning of 2022, I guess, according to NBC. So yeah, like that's kind of why I wanted to ask you about like the protocols for when you have to go and brief Congress.

Yeah, I mean, and then and then layer on top of that this potentially catastrophic loss of intelligence sources, which could be, I'm saying that the world of possibility here could be technical and then you could, by the exposure of it, you lose access and lose the intelligence that comes from that access or could be human, which means those humans die in Russia. That's how the Russians treat people. They uncover as having reported a foreign intelligence officer's against Russia. The idea that you would take those chances on what is essentially an aquafion hill here, a political errand, right? That's the purpose of his continued obsession with that investigation and with the information

relative to it. He was pissed off about the fact that we had done that investigation from day one because he felt like in some way it embarrassed him and it undermined his victory, which I mean it did not It was simply an intelligence investigation to figure out what our adversary was doing to us But nevertheless in his world. It's a personal insult like everything else is and so you know We can't sit here and say with perfect clarity what he wanted to declassify that for. But we can say there are pretty good other analogs, right? We know that he used some of the intelligence that classified highly sensitive intelligence. He took tomorrow a logo for the purpose of trying to, you know, have vengeance upon his enemies like Mark Milley, you know, the infamous Iran plans that he leaked

to reporters in an effort to try to make Mark Milley look stupid. Which he was wrong about, of course. None of that exonerated him from anything. Right. And nor would the ICA have cleared up his mind over this issue. I'll just say that. But nevertheless, you can be sure that these risks were taken in pursuit of modifying his small minded, never-ending pursuit of vengeance and retaliation.

So thanks, well done. My feeling is, is that it was a disorganized pile and Meadows has some of it, and some of it made its way down to Mar-a-Lago, and it's somewhere in those 20 to 30 boxes that were never recovered. I don't know, but that's what the reporting is here, but that's the problem is we don't know where it is. Meta's attorney is very forcefully denying the CNN reporting and saying,

artfully, he, what he says is, Meta's never m mishandled classified evidence, which I find that almost impossible to believe. Yeah, and he doesn't say that he doesn't have it. Like this. Right. And any, so who knows, you know, Meadows is capable of anything.

He's, you know, a very slippery character, this we now know, but whatever. The significance here is the potential danger to US national security and how the former administration created that risk really. Yeah, 100%. All right, well, that is the bulk of the news. It's time for listener questions. If you have a question, we have a link in the show notes for you to follow where you can

fill out a form to send us your questions. Andy, what do we have today? We have two ones really sure. Oh, by the way, if you just want a little bit of good news, the verdict is in on Rudy Giuliani in the shame off. Oh my God. Ruby Freeman defamation case, $145 million. That's going to take a little while to put that together, I think. Yikes.

Man, that'll pay for a lot of scotch or not. Good luck, Rudy. Couldn't have a nicer guy. Okay. So questions for the week. There was one that came in this, came in last week and I don't actually have the phrasing of the question because I totally screwed it up in my work on the spreadsheet. But it comes from somebody who identifies themselves as, I, I, N, dash, H, I, L.

I don't know what that means, but here's your question. You basically asked, are there, does the first amendment limit hate speech? Like what can happen to someone who uses hate speech? And that short answer is it does not. You can say, you know, whatever hateful thing you want about anyone or any group, any religion, whatever you want here, as long as it's just speech.

Now if you say something hateful about someone while you're in the act of committing a violent crime against them, chances are you can be charged with a hate crime and the speech is used as evidence in the proof of that crime But generally speaking hate speech is not prohibited here You can say whatever you want here, and I know that drives Europeans and Canadians And I know a little bit nuts, but Dude, that's what we're all about. That's where we come from. Well my first encounter with that and trying and having to understand the first Amendment from kind of both sides like speech that I don't like, was with the Westboro Baptist Church. Yeah, perfect example.

You'll remember, I think it went up to the Supreme Court. It was a higher court that decided that they were allowed to pick it Marine Corps funerals with disgusting, homophobic signs. And, you know, I was incensed that that was allowed, but also understood that that is free speech. And it sucks, but, you know, that's what the First Amendment protects. Right? Now, if you go and start beating somebody up, of course, then it's not. Yeah, then we're out of First Amendment territory

and we're into assault. You got to embrace both sides of it. You can't just have free speech for you and people who think like you, you got to have it for everybody. There's plenty of websites, neo-Nazi websites, you know, very, very well known. Big ones out there and they are filled with hate speech.

They sell advertising. They're not hiding. It's perfectly legal here. So I'm not going to say what they are because I don't want to, I don't want to give you any suggestions. But anyway, that's how that question gets answered. All right, so second question comes from David. David says, I'm a devoted listener to clean up Jack and daily beans.

The breath of your knowledge and the clarity of your thinking and expression are stunning and invaluable. Oh, good one. Thank you, David. You have crossed the threshold necessary to have a question read on Jack. Well done, my friend. David says, here's my question. Much comment is centered on judge cannon scheduling,

the documents case for trial in May, but slow walking procedures. So as to effectively make that date untenable, some have speculated that she wants to prevent Fannie Willis from using that window and thus block the Georgia trial until after the election. What if DA willis went ahead and asked for a date in that window anyway? It would force Canon to quote shit or get off the pot, close quote, either go forward with the trial as scheduled or give up the window and let the Georgia case proceed. So basically says, can she do this? Would she? What are your thoughts? Basically, these courts do not coordinate with each other in the most general sense. And funny wells could definitely ask for a trial date

in that period gambling on the fact that the Marlago case will not actually go forward then. Generally courts are not going to schedule a trial in a time period that the defendant in their trial is facing something in another jurisdiction. And it's not because the other court is more important or more serious or anything like that. It's just because they are going to go out of their way not to put the defendant in their

case in a conflict between courts. So generally, they try to be aware of what the defendant is facing in other jurisdictions and work around those things. But nothing would stop Fawney Willis from making the calculation that it's unlikely that Trump, the Trump Marlago case would go forward in May. And then scheduling, you know, asking for a date in that period. Yeah, she's going to schedule when she thinks is appropriate to schedule and the judge is going to agree or disagree

and schedule when he thinks it's appropriate to schedule. That's right. And then the chips fall where they may. I don't think that the Mar-a-Lago documents case is happening in 2024. That is my personal belief. I think that the January 6 trial will go. I think the Fannie Willis trial will start in 2024, but I don't think the document's

case is even going to be a consideration in any of those trials. I think, I mean, you know, it's almost like Get In Line. Manhattan, DA has a trial he needs to do for the falsification in the Stormy Daniels case. You know, there's there's other things to consider when we're talking about you know, Trump's criminal trials. So it the chips are going to fall where they may. I think that all of the state cases will probably defer or I guess seed to whenever Judge Chuck can go. I think that that's gonna be the number one case that everybody wants to see done first. Yeah, and she's been the most proactive

in grabbing a time frame and holding onto it, running her case, along with the intent of hitting that date. Yeah, it's probably gonna get slid a little bit now, but that's, that comes with the territory. So I agree with, with all of your predictions there. I also think that Judge Cannon has indicated her, I don't know what it is,

slowness, reluctance to move forward, whatever you wanna call it. So she's likely to say, oh, that case is going, okay, then we'll move mine back. Oh, and the other one jumped in there, or we'll move mine back again. So there's really no way to tell how much it could be delayed except to say a lot.

Yep, I concur. Thank you for those questions. If you have questions, we have a link in the show notes to inform you can fill out and send into us. We appreciate your questions. I know this show is long today, but we had a lot in the show notes. To inform you, you can fill out and send into us. We appreciate your questions. I know this show is long today, but we had a lot to go over and a lot to explain. I want to thank Steve Vladik again for joining us. Please pick up his book, The Shadow Docket.

While you're at it, get the threat by Andy McCabe. I have my signed copy. Another excellent holiday gift. And we again, really appreciate you, and we'll see you next week. I don't believe we're taking a break for the holidays because we record on on Fridays. So I think all the shows will be in place unless you have some time that you need to take off my friend. No, I'm here.

Let's charge forward. Let's do it. Take the hill. Take the hill. Take the jack and work on Thanksgiving. We can work during my days. I have no life. This is all I do it. Take the hill. Take the hill. Jack can work on Thanksgiving. We can work during Christmas. I have no life.

This is all I do anyway. Anyway, thanks so much. I've been Allison Kill. And I'm Andy McKay.