Jack - Episode 56 | Show Me The Dicta

Episode Date: December 24, 2023

This week, Trump filed his opposition to Jack Smith’s SCOTUS petition in the immunity case, and the Supreme Court has denied that petition to grant certiorari before judgment.Meanwhile, the DC Circuit Court of Appeals has granted Jack Smith’s request for an expedited appeal. Also, Trump has asked for a hearing in front of the full DC Circuit court panel on his appeal of Judge Chutkan’s limited gag order. Even though the DC trial has been stayed, Jack Smith filed his exhibit list and discovery with Trump’s lawyers, who refused to accept it.There’s another perfect Trump call, this time with Michigan canvassers in November of 2020. A newly unsealed court filing shows Jack Smith was looking at obstruction and false statements charges for Jeffrey Clark and John Eastman. Another federal judge has ordered Rep. Scott Perry to hand over communications to Jack Smith.In Florida, we have Jack Smith’s motion and Trump’s opposition to a jury questionnaire and filings on whether CIPA Section 4 should be ex parte and whether classified documents should go to Nauta and de Oliviera.Plus, we have some great listener questions.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 InformantsQuestions for the podSubmit questions for the pod herehttps://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 bookThe 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 Follow AG Substack|MuellershewroteBlueSky|@muellershewroteAndrew 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 Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

M-S-W Media. I signed an order appointing Jack Smith. And nobody knows you. And those who say Jack is a finetic. Mr. Smith is a veteran career prosecutor. Wait, what law have I moved? The events leading up to and on January 6th. Classified documents and other presidential records.

You understand what prison is? Send me to jail. Hey, everybody. Welcome to episode 56 of Jack, the podcast about all things special counsel, and now apparently the Supreme Court. It is Sunday, December 24th, 2020, Christmas Eve, the penultimate show of 2023. We still have one to go on the 31st. I'm Alison Gill.

And I'm Andy McCabe. Oh, my gosh, Allison, what a difference a week makes, right? Since our last episode, Trump filed his opposition to Jack Smith's Gautis petition in the immunity case. And the Supreme Court has denied that petition for cert. Meanwhile, the D.C. Circuit Court of Appeals has granted Jack Smith's. a request for an expedited appeal. Additionally, Trump asked for an en banc hearing. That's the full DC Circuit Court panel on his appeal of Judge Chutkin's limited gag order. And even though the DC trials have been stayed, Jack Smith filed his exhibit list and discovery with Trump's lawyers who have refused to

accept it. I wonder if they just like, we've left it on the front doorstep and we refuse to bring it inside. I think that's not going to touch it. I'm not going to open it. I'm not going to look at it. But in another pleading, which we'll get to later, I'm going to complain about the fact that we don't get discovery fast enough. Exactly. Exactly. Now, on top of all that, we have another perfect Trump phone call, this time with Michigan canvassers in November of 2020. There's a new unsealed court filing showing Jack Smith was looking at obstruction and false statements, charges for Jeffrey Clark and John Eastman far earlier than we thought. Another federal judge is ordering Representative Scott Perry to hand over his communications to Jack Smith.

And down in Florida, we have Jack Smith's motion and Trump's opposition for a jury questionnaire and filings on whether SEPA Section 4 should be, like it always is, ex parte. As it's defined in the statute, but nevertheless. And that the classified documents should not go to Nauta and Dale Lavera. We don't care if he was in the Navy once or that he saw all of the classified documents while they were strewn about the floor in Mar-a-Lago. That doesn't give him access. He once relieved himself in a bathroom surrounded by confidential and,

secret documents. I feel like that gives them some sort of clearance. Yeah, I had to move all the classified documents to take a shower one time. Exactly. Andy, I think we should start with the Supreme Court ruling on the immunity cert being heard before the appeals court ruling. So let's talk about that. Yeah, sure. I mean, that was the big kind of bombshell this week that, of course, you know, could have a pretty significant impact on the timing of the trial. So the Supreme Court has denied Jack Smith's bid to have them take up Trump's immunity claim before the D.C. Circuit Court of Appeals Rules on the matter. So you remember from last week, Jack Smith leapfrogged over the appellate court and asked the Supreme Court to take the immunity case first. Trump had until December 20th

to file his opposition, and he did. And though he spent a lot of time arguing the merits of the case instead of arguing solely on the question before the court, which of course was, do we take this now before the D.C. Circuit weighs in on it, or do we let it go through its normal course of business? That was the only thing. And technically Smith's filing was a petition for cert, as we discussed last week. That's a official request to the Supreme Court to take up an issue and decide a particular question. So they have decided not to do that. They issued. in order saying that that petition for cert had been denied. They did not provide any sort of explanation as to why or who was for it or who was against it. Every once in a while when they

deny a petition for cert, you'll see one or two of the justices will file a dissent from that denial of cert. That did not happen here. So it's pretty clean. No, we're not going to take it right now. It's not a decision on the merits of Trump's immunity claim. It's simply. is them saying, we're not interested at this moment and likely comes with a come back and see us later if you're still arguing about this. Yeah. I don't know. I like what George Conway had to say about this. And I think Andrew Weissman, a couple other people saying this isn't a big deal. This is just where we were before we were surprised by Jack Smith filing the petition for CERT with Scotus in the first place.

And given the appeals courts, like, super fast, supercharged schedule, which I'm going to talk about here in a minute, I mean, I don't know. I'm a little confused about why the Supreme Court granted an expedited review for cert, but then denied it. You know what I mean? Yeah. Yeah. I'm also a little confused about the fact, or I'm heartened, I should say, by the fact that

there were no public dissents. And I think, and correct me if I'm wrong, most cases need four votes to get cert granted, but one of these kinds of, you know, deciding before the appellate court decisions needs five votes, right? I know you're right about the four votes on a normal petition for cert. I'm not, I haven't heard that other, like that there is a separate standard of majority essentially for a decision to pull it before it goes to the appeals court. super rare that that happens, just to put it in perspective, right? It almost never happens. The case that they were pointing to pretty strongly in the, in Jack's filing was, of course, the Nixon case in which they did that. I think it's disappointing. It isn't, it wasn't unforeseeable,

but it is disappointing because the request was so reasonable and logical. Like, this issue is not going to be decided by the appellate court unless it comes in the form of a denial of cert for the underlying issue from the Supreme Court. So it's going. Whatever happens at the DC circuit and whether that takes two rounds, you know, the initial round and then an en banc round or just one, one of the two parties is going to request Supreme Court review. And so understanding that, it made sense to me. And I think a lot of people that, um, the special counsel tried to just get it there now to, you know, kind of cut out the middlemen. But that's not where we are. And so now we're going to have to go through that process.

Yeah. And, you know, my dream scenario from the jump, we talked about this before when this was first filed by Jack Smith is that the Supreme Court denies cert, step one. And then the appellate court denies immunity on the merits. And then they apply again for cert, petition again for cert to Scotus and Scotus, denies. it. That would be the fastest way. Yeah. And so that's kind of been, because that's the fastest way, that's been like fingers crossed for that. So this denial is actually, you know, step one in my dream scenario. But that's assuming that they all got together and said, we're not taking this case. It's dumb. Let's just, let's hurry it up, deny, and then deny again and let the lower courts ruling stand. I don't know. Part of me doesn't see that happening.

because I think that they do want to take this up so that they can deny it. But, you know, so the most likely scenario is not my dream scenario. The most likely scenario is it'll go through the appellate court. And then it will go up to the Supreme Court. They'll grant cert. They'll grant an expedited briefing schedule and review. And we'll have a decision sometime in March, maybe. Yeah.

I think the one alteration I'd make to your, to make your dream scenario a little bit more likely is, I think if Trump loses at the first round in the circuit court, that's the three judge panel, I think he'll likely apply for a rehearing in Bonk before he goes to the Supreme Court because it's another step. He can eject into the process. It's more briefing schedules. It's more delay. And that's, of course, we all know that's the goal here.

So they don't have to take that case on Bonk. I had put this, I thought we would talk about it later in the show, but I'll refer to it here, just so folks understand, Rule 35, Federal Court Rule 35 lays out how you get an en banc rehearing. And it says when hearing or rehearing en banc may be ordered, a majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the Court of Appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered. unless on bond consideration is necessary to secure or maintain uniformity of the court's decisions

or the proceeding involves a question of exceptional importance. So this is exceptionally important. Yeah, I mean, it certainly fits there. You can make a sound argument that it fits. And it would give him another chance, kind of another bite at the apple substantively, although that's not really the goal here. It's just more briefing schedules and hearings and, you know, more time burned. ironically, I think if he goes to that step and he gets an en banc hearing, I think that makes

the likelihood of a Supreme Court issuing cert even lower because by then you would have had likely two very consistent, very sound opinions by the most respected circuit court in the country. And it may kind of lift the responsibility from the Supreme Court shoulders to weigh in on it if they feel like it's been adequately covered. So who knows? But what I can't figure out is why, if the Supreme Court wanted to take this case, why they wouldn't take it before the appeals court. I mean, there's been, you know, you said you brought up the Nixon case. Jack Smith brought up several other cases. There's been 19 since 2019 that they've taken on an expedited basis. One was just so Trump could execute somebody before he left office. Another was President Biden's student debt relief program. Right. They wanted to hurry up and, I guess, screw people over. You know, I'm not sure why, if they want to hear this case or it's important, they didn't take it the first time.

And to me, the only thing I could think of is in my head is they don't want to take it. They want to hurry up and say no, because that's what they did this time. They granted an expedited review to decide whether or not to grant cert and then said no. So it was like, hurry up and no. But obviously we could speculate all day, but we'll see what ends up happening. But either way, and this was true before Jack Smith even went to the Supreme Court, before there was a denial. I think that that March 4th trial date isn't a little bit of jeopardy. But we knew that going in when the trial date was set. Oh, March is great because then it can go off in June or July for, you know, normal things that happen that put off a trial. So. And let's. Talk real quick about the appellate briefing because that happened this week, too. Like Jack Smith asked for expedited schedule for the appeals court, the D.C. Circuit Court of Appeals. And with that, it's on the merits, right? They aren't hurrying up to decide whether or not they're going to decide.

They are hurrying up to decide this case on the merits. And they put together a lightning fast briefing schedule, December 23rd. which is today, as we record this episode yesterday as you listen to it, that is when Trump's briefing is due. The Department of Justice's response is due December 30th. And then Trump's reply is due January 2nd. This thing will be fully briefed by January 2nd. And then they came in a little bit afterwards because they said arguments TBD to be determined. And they scheduled arguments for January 9th. And more details are still yet to come on the arguments. For instance, how much time each side is going to get to argue their case during that hearing. But that's on January 9th. And they could have a decision before January 15th, you know, before the month is up. But, you know, again, if he applies

on Bonk and that gets turned down, there's another 15, two weeks, three weeks, maybe max, putting us in February. And jury selection was supposed to begin on February 9th, but now because this thing has been stayed. But there's one other thing that can happen here, right? The DC Circuit, when they render their decision sometime after January 9th, they could lift the stay on the DC trial. Yes. Forcing Donald Trump to go to the Supreme Court or the full panel or both, because he kind of does that sometimes, and ask for that stay to go back on. And once that stay, if it's lift, if it's lifting, you. It's is lifted, then what we're going to talk about here in a minute about Jack Smith sending over some discovery and exhibit lists is bam. Now you are, you have it. You know what I mean? Yeah, if they, if it remains lifted, right? Because I think Trump petitioning to continue this stay, that's a guarantee. Yeah, he could get an administrative stay pending a, consideration of a full stay, but that could be turned down. Yeah, yeah, we'll have to, we'll have to see. I mean, it's, it's like a, you know, a decisional flow chart.

Yeah. Fifteen different branches here that we're trying to walk through in our heads. But I think when the D.C. Circuit came back with this super fast schedule, I think it kind of took the pressure off the Supreme Court to take the case. That's probably most likely what happened. Supreme Court was like, we don't have to decide this right now. We can go through regular order because we have a hearing on January 9th. Yeah, the special counsel made this petition based on the need for speed. He's getting speed at the circuit court level, so let's just let that play itself out. I think that's probably what happened. And I think if there was some gamesmanship or shenanigans, we would have seen a public dissent from one or more of the justices. Yeah. Honestly. It's probably right.

Probably right. Okay, so shall we move to the 11th Circuit? Yeah, this is interesting. It's not really, it's more Fulton County, but I think it has some weight. in the DC case. Yeah, there's a good tie here, which you were on your game and pointing out. So also this week, the 11th Circuit denied Mark Meadows bid to remove his Fulton County case to federal court. And they did so for two reasons. First, they ruled that removal doesn't apply to former federal officials. And then they said that even if it did, the behavior that Meadows

was engaging in is not within the scope of his duties. So electioneering and campaigning are not the job of anyone in the executive branch. Okay, so why are we bringing this up? Well, the 11th Circuit's chief judge, Judge Pryor, wrote the opinion, and he is apparently very close with Clarence Thomas, and he's a very respected kind of conservative member of the judiciary, and he's a guy who carries a lot of weight on the Supreme Court. So if he ruled that election oversight is not part of anyone's job in the executive, executive branch that might be taken into consideration by the Supreme Court when ruling on whether

Donald Trump's actions fell within the scope of his duties. Yeah, because that's his argument. He was that he was acting within the outer, he made all those merits arguments in his filing to the Supreme Court, which he didn't, that wasn't about the merits, which was funny. But that's his argument. This was all within the outer perimeter of my job. And now we've got multiple courts saying, no, it's not. The executive, the states, and this Supreme Court is very big on the states administering their own election stuff. Right.

Right. And so the president doesn't have anything to do with that. And even in the appellate court ruling, the 11th Circuit for Meadows, the conservative 11th circuit is like, bro, you were violating the Hatch Act by campaigning for Donald Trump while an executive branch member or as under the color of being the chiefest. Yeah. It's definitely a good, it's a good decision for the prosecution and more broadly for the, for both federal prosecutions of Trump where these things are going to come in. These defenses will come in as we've discussed before in terms of like, how could I have broken the law if all I was doing was trying to protect election integrity and return, you know, the rightfully won election to the rightful winner, by the way, me. So yeah, this is, it's an interesting piece. It's not, certainly not, you know, precedent for the cases that are headed on their way to the court right now, but could be factored in by a guy who is, whose opinions are taken pretty seriously there. Yeah, and even separately, it's not going to be considered, you know, in the Supreme Court because that's not how things work. But the fact that prior wrote this decision is a big deal.

that the conservative jurists on major circuit courts, chief jurists, believe that this is all outside of the job of anybody in the executive branch. That's right. And a story that went under the radar this week, this is from CNN, your colleagues over there. Donald Trump and Don Trump Jr., both father and son, have come to the defense of that social media influencer who was convicted of election interference and his well-known history of publishing racist, anti-Semitic, anti-Muslim and homophobic content. on his social media pages. Now, in a video posted by his campaign in early December, former President Trump blasted Joe Biden and his, quote, henchmen for allegedly trampling on the First Amendment rights of Douglas Mackey. He's a longtime supporter of Trump. He had a Twitter account in 2016, and Trump accused Biden of seeking to jail Mackey for sharing a joking meme about Hillary Clinton

several years ago. Now, Mackey was under federal investigation for conspiracy to suppress votes in the 2016 election. He was charged seven days after Biden took office and convicted earlier in the year, this year. He was sentenced to seven months in prison. Now, the prosecutor said that Mackie targeted black voters on Twitter with a tweet meant to look like a campaign advertisement that said you could vote for Clinton by text message. That's right. Now, what CNN doesn't mention here, and I think that this is the whole crux of the story,

personally, is that Mackey was convicted for violating Title 18 U.S. Code Section 241. and that is one of the charges that Jack Smith has brought against Donald Trump. So it makes sense to me that Trump and Jr. are decrying investigations and convictions and jailing of Douglas Mackey because he committed the same crime that Donald Trump is being charged with. Yeah. I mean, you almost think if this was kind of an intentional strategic move on their part, that it was likely one guided by their lawyers. It's not one that either the two of these would have ever figured out on their own. No, no. They're not monitoring what people have been convicted with and whether or not their conduct matches up with their own.

He's just Googling. He's just in the bathroom surrounded by classified documents. Googling, who else is in jail for 241? What's 241? Let me see the dicta on the last circuit court to. Yeah, I don't think so. But it makes sense that he's going to wrap his arms around this guy. and start drawing attention to the unfairness of this charge because, as you said, it's one of

the big four. It's right there in the Jan 6 indictment. So, yeah, there we go. Once again, acting according to form from the two Trump dudes. A lot of his pardons were for stuff that he's guilty of, right? We noticed that a lot when that whole pardon list came down. All right, everybody, we have to take a quick break. We're going to talk about that.

Don't call it a gag order, but we will... first hear a word from our sponsor. So stick around. We'll be right back. Welcome back. Okay, let's stay in D.C. where we have an update on the don't call it a gag order issued by Judge Chutkin. Here, a panel of three judges on the D.C. Circuit Court of Appeals upheld most of the gag order. And now Donald Trump is filed to have his motion heard by the full circuit panel, which is, as we've been discussing, it's referred to as an unbunk hearing or rehearing, actually, because it's just a, It's round two at the same decision, essentially. He's also asked for an administrative stay to block the gag order while the full panel considers his motion.

Now, Trump attorneys write, this petition presents a question of exceptional importance, whether a district court may gag the core political speech of the leading candidate for president of the United States, disregarding the First Amendment rights of over 100 million American voters, based on speculation that undefined possible future harms to the judicial process. The Supreme Court has, quote, never allowed the government to prohibit candidates from communicating relevant information to voters during an election. I've never had a leading candidate facing 91 felony counts either. Yeah, that's true. He didn't point that out, though, in his papers.

No. And I think my favorite part is disregarding the First Amendment rights of over 100 million American voters, 100 million. followed by based on speculation. You just speculated that there are 100 million people who want to hear what you have to say. Yeah, I mean, there weren't 100 million people that voted for him. Nope. In either race. So the thing that kills me is the way they phrase this, whether a district court may gag the core political speech of the leading candidate for president of the United States.

Like, almost suggesting it would be okay if you wanted to gag, you know, some also ran like Vivek or Chris Christie, but the leading candidate enjoys some sort of elevated protection by the First Amendment. And this stuff really gets to me because I feel like it goes at an issue that we've seen in a lot of different ways. And that is with the behavior of many Republicans in the White House, in the form of Trump, and of course others on the Hill, we are seriously running the risk of creating a special political class of citizenship that does not have to, it is not bound by court orders, does not have to answer subpoenas. And now in this argument, they enjoy an elevated protection by the First Amendment simply because they unilaterally chose to run for office,

which I think is so, so troubling and completely flawed. Yeah. And like, are there going to be cottage industries that pop up out of this? Are there going to be firms that while you're in prison, somebody can run out and get all the signatures you need to run for office? And, you know, you pay them a fee. It's kind of a well-known aspect of totalitarian regimes, right? Russia, obviously, they have the Duma. That's their version of Congress.

You are immune from any sort of criminal prosecution when you're in the Duma. So you have, like, oligarchs and organized criminals who routinely get themselves elected through unfair elections to seats in the Duma, simply to avoid prosecution. Like, is that where we're headed here? Is that the direction that half the country wants us to go in? I don't think so. I don't think people are thinking of it that way.

No, they are. But there's no question that there are Republicans on the hill like Jim Jordan who just decides to ignore a subpoena from the Jan 6 committee and then turns around and serves subpoenas on other people and expects them to show up. Like the hypocrisy, it's not just hypocrisy. literally the creation of a double standard where some people, i.e. politicians, are going to enjoy greater benefits, greater protections under the Constitution and less accountability under the law.

And I think it's super frightening. That's my soapbox for the week. Yeah. No, I agree with you. But also this week, and this is kind of a little bit of comic relief, despite the D.C. trial and the pretrial schedule being stayed, right? Judge Chuckin has stayed that pending the outcome of Trump's immunity claim, Jack Smith went ahead and sent the exhibit list and more discovery over to Trump's attorneys because they were due to be handed over on December 17th and 18th. Jack Smith explained that he understands pre-trial schedules are on hold, but didn't want to miss the deadline so you could have these materials that you need for your defense if and when the trial schedule resumes. Of course, this upset Donald, who had his attorney's

Pen a letter, which stated, dear Thomas and Molly. Nice. So congenial. Yeah. They must really be friends in real life. Tom, Tom, Tom's and Malls. Hey. I write on having dinner at your place last weekend. I don't think that happened. But anyway. They continue. I write on behalf of the defense team in response to, one, your production letter dated December 17th, 2023, which purports to produce additional discovery to us. and two, your December 18, 2023 production of a purported draft exhibit list, both of these productions violate the court's December 13th, 2023 order, staying the case. Accordingly, we do not accept the productions and we will not review them. We ask that you refrain from all further attempts to impose litigation burdens on us, including through discovery or other submissions,

until and unless the courts lift the stay on the order. Now, you know, they're looking at them. I mean, what, the purported discovery or the purported list. Okay, I guess you can say, you could call it purported discovery because maybe you think you're holding out some issue that it's not actually discoverable material or not what you asked for or whatever. But a list is a list. It can't be a purported list. It's actually a list. No, it is. Yeah. And really honestly, Donald Trump wants to say, once this trial is back on, he wants to say, oh, now we're just now. getting to this discovery. We need more time. We need more time because that's been one of his number one arguments. The voluminous, disorganized discovery that we particularly asked for things in

these particular order. But, you know, whatever. But yeah, the guy filing a motion after motion to delay because of slow discovery is now refusing to accept discovery. Now, granted, the pretrial schedule is stayed. He doesn't have to. That's cool. Yeah. He doesn't have, he didn't have to send them this stuff, but they don't have to look at it either. Like, they don't, they don't, there's nothing they have to do with it. I guess next, if he does it again, they'll go to the judge and say, please tell the other side to stop mailing us things. To which she'll reply, I can't say anything right now because this trial is stayed.

Yeah. I can only comment on your violating your bail conditions and the limited gag order. I will hear no motions from you. Oh, my God. It's just so, it's so, you know, you understand how people who are following these cases closely because they're so important and interesting, but they're not like from the legal system. They see this stuff,

and they're just like, oh, my God, how does this? How does anything ever get resolved in the legal system? It's clunky. Clunky. Okay. Next up from Kyle Cheney at Politico, months before special counsel, Jack Smith took over the case.

Federal prosecutors in Washington, D.C., were considering obstruction charges in connection with Donald Trump's bid to subvert the 2020 election. Cheney goes on to say a newly unsealed court filing related to the Trump grand jury shows that prosecutors were eyeing the charge, which had already been deployed against dozens of January 6 riot defendants, and at least by September 2022, perhaps as early as the spring. The filing relates to search warrants obtained by prosecutors in June and July of 2022 to scour the personal email accounts of former Justice Department official Jeffrey Clark, his deputy, Kennezzan, Kenneth Kukklaowski and Chapman University account of John Eastman. Those warrants had previously been disclosed by U.S. District Court Judge Barrel Howell, who unsealed the documents connected to the search a full year ago.

However, the versions of the documents released last year were redacted to conceal the precise charges being considered by prosecutors as they obtained those warrants. On Tuesday, the newly unsealed document revealed the potential charges included 1512 and 1001, which is, of course, false statements. The filing indicates that federal prosecutors began weighing the obstruction charges in connection with the Trump probe well before the House January 6th Select Committee formally recommended that the former president be indicted on that charge. Oh, wait, I'm sorry, huh? What, what?

Okay, sorry. I won't get any apologies, but, you know. been saying, and you know, 1512 includes 1512K conspiracy. That includes Donald Trump. It's not clear from these documents that they were investigating Donald Trump, but no doy. Yeah, and I think it's good. It's kind of cool inside baseball to see like the way the sausage is actually made. I mean, you put a lot of evidence in front of a grand jury on a big overarching case like this. And then, you know, you see how the evidence goes in. You see how the evidence goes in. You see how the grand jury takes it. You see if they have lots of questions or confusion or if they get it quickly,

um, as opposed to maybe like really struggling to understand how it applies, that sort of thing. And you factor all that in as you approach the end of the grand jury and you decide what to have them actually vote on. So there's things that they may have considered and thought about and thrown out for whatever reason. They didn't think their evidence were strong enough. They didn't think a particular witness did a good job. And who knows. But, But yeah, this is a little bit of a peek behind the curtain. Yeah, and great. And so we can dispatch with the conspiracy theory that the Department of Justice didn't lift a finger until the January 6th committee told them to.

Yes. Just putting that aside there. Something else that's been going on for over a year is the fight to get what's inside representative Scott Perry's phone. We've been talking about this for a very long time, my friend, since we started this show. Yes. This week, Judge Bozberg, who is a chief judge, granted Jack Smith access to nearly 17. 100 records recovered from Scott Perry's phone this week. They're going over. He withheld 396 others after a federal appeals court directed him to individually review 2,055 communications from Perry's phone to decide

which were protected by the Constitution's speech or debate clause, which grants members of Congress immunity from criminal investigation when acting in their official capacities. The FBI seized the phones in August of 20, or the phone, excuse me, in August of 2022. Now, unlike Howell, Bozberg pulled back Perry's communications seeking information about election fraud before Congress's January 6th certification vote. Howell was going to let those go over. The appellate court said those are covered by speech or debate. Bozberg, you go through all these and pull them out, and so he has. But 90% of what Beryl Howell was going to send to Jack Smith is now being sent to Jack Smith by Bozberg.

It's just taken a year to get this done. Well, unlike how, Bosberg pulled back Perry's communications seeking those congressional, that informal fact finding for fraud before January 6th, as I said. And before its vote on proposed legislation, that was HB1, right? But Bozberg agreed with how that congressional immunity did not shield Perry's discussions seeking to provide information to or influence the conduct of other. of others outside the government or in the executive branch, including Meadows, who we met with several times, who then burned stuff in his fireplace after those meetings. Yep, yep. Jeff Clark.

Scott Perry was the guy that brought Jeff Clark to the table. And yeah, so any discussions about installing Jeffrey Clark between Perry and Trump and Clark and Perry are going to go to Jack Smith and talks about non-legislative efforts to combat fraud, his communications about Vice President Mike Pence's role, or what occurred during the insurrection at the Capitol on January 6th. All of it goes over. So as a recording of this episode, Perry has not appealed this decision. And this really speaks to how long these investigations can take. Yeah. And it might be another reason why members of Congress haven't been charged, possibly. You know, we've been speculating, and I still think broadly,

that he's not going to charge anybody until Trump's trial is done. But he may, and maybe the reason he hasn't, is because he's still waiting for all this additional evidence. Yeah. I think there's probably considerable and well-founded concern on the part of the special council team that charges against anyone else for this or related conduct could somehow throw a hand grenade into the Trump case. and he's got as many hand grenades there as he needs right now.

So I think it's the right call to keep it clean and focused. I'm just hoping that, you know, when this one's done, they don't dust off their hands and walk away because there are so many people, high-level people who should be charged for their role in these conspiracies. And there's certainly maybe members of Congress who should be on that list. I agree. But as I've said, Jack Smith is no stranger to indicting members of Congress.

He's done it in the past. Yeah, that's for sure. Many times. And if he does not here, I will wait to pass judgment on that decision until I read his report and read his declination decisions. Right. Because I trust Jack Smith, if there are charges to be brought, will bring charges. I hope. Yeah.

I'm with you. I'm with you. All right. more to get to, but we need to take another break. Everybody stick around. We'll be right back. All right. Welcome back. We have some movement in the Mar-a-Lago documents case. Yes, that's true. That's not actually a joke or an oxymoron. There is movement in Mar-a-Lago. First up, Jack Smith has filed as consolidated opposition to two motions, okay? Trump's motion for access to SEPA Section 4 filings, which are usually filed ex parte.

meaning only between DOJ and the judge. Now, SEPA Section 4 is when the government and the judge get together determine how classified information is going to be presented at trial. The other motion Jack Smith is responding to is NADA and Dale Lavera's motion related to the ex parte nature of SEPA Section 4. So that motion was for Nata and Deo Lavera's attorneys to have access to the SEPA Section 4 filings. So Jack Smith has responded to both motions. in one consolidated finding. So Trump filing to have access to the SEPA Section 4 ex parte proceedings where it's just the prosecutors and the judge, something that never happens. And Nata

and Dale Levera are basically saying, yeah, we want access as well. And they aren't even charged with anything. No, it's totally not relevant to their charges. Nobody's going to, you know, it's not a factual matter in this case that the government is going to prove that Dale Lavera and Nauta were intentionally retaining national security material. No, I'd be like, I demand to see the actual cash that was robbed from the bank when I threw the tire strip out in front of the cop car on his way there. Yeah, yeah. Or I was the getaway driver. Yeah. No one's saying that you personally opened up the duffel bags of cash and counted it before you drove away. You just, but you knew what was going on.

You were involved in that thing. Anyway, okay, so Smith, opens up with, and I quote, on December 6, 2023, defendant Donald J. Trump filed a motion seeking attorney's eyes only access to all government filings pursuant to Section 4 of the Classified Information Procedures Act, SEPA. He also seeks to compel the government to file publicly redacted versions of its SEPA Section 4 motions, but neither the statute nor the cases interpreting it nor the off-point cases Trump cites justify the relief he seeks. Section 4 plainly contemplates and authorizes preceding ex parte, and appellate courts have uniformly in the face of defense challenges held that its text

and underlying rationale justify preceding ex parte, where, as here, defense access would defeat the motion's purpose. I love the off-point characterization of his cases. That one stings. The response goes on to say, the 11th Circuit did so in US v. Kampa in 2008. Trump fails to distinguish Kampa and the cases from other circuits with similar holdings, struggles to find a single case to support his motion, even the three courts he claims to have granted the relief he seeks did not do so, and then resorts to an in-opposite case outside the SEPA context in an unpersuasive effort to substantiate his requested relief.

This court should follow Kampa and deny Trump's motion. Once again, highlight of the week comes from a somewhat biting special counsel motion filing. Okay, and this is my favorite. It's first of all very smart here for Jack Smith to cite the 11th Circuit. Yeah. Because 11th Circuit took Cannon to school in the special master case. And this, by the way, the dis, you know, what is he say? cases outside the SEPA context, these three courts he claims. To quote myself in last week's

episode, I said, quote, Trump gives only three examples of times when the courts have denied SEPA 4 be ex parte. He then, for some reason, lists other proceedings that aren't ex parte, like FOIA cases involving habeas petitions, some FISA proceedings like what? And I joked, hey, Andy, my lab results at the VA weren't ex parte. So CEPA section four filing shouldn't be either. So my very crude language was very eloquently restated by Jack Smith in this firing. Yeah, he didn't go with your medical records example, which I feel like it adds it real weight. But he's right in the same channel.

You guys are thinking alike again. So well played. Okay, so Jack Smith goes on to say, and this is like confronting this kind of second half of this response, defendants Walteen Nata. I did not know that his name was actually Walteen. I just assumed Walter, but Walteen. Look at that. Defendants Walteen, Nata and Carlos de Lavera also filed a motion on December 6, requesting that the court limit the ex parte nature of the government's CIPA Section 4 submissions. In their briefing, they made two key concessions. with which the government agrees. One, if any of the information the government seeks to protect via CEPA Section 4 is not discoverable, neither the defendants nor their counsel have a right to see it. And two, they lack a need to know the classified information the government relies on to establish that the materials it seeks to withhold or redact are in fact classified.

Now, considering these principles in conjunction with the government's ex parte submission should end the inquiry as to them, because the information at issue in the government's motions is not discoverable as to Nata and Dale Lavera. Neither of these defendants nor their counsel should be permitted to see the government's ex parte filing, nor should Nata and Dale Levera have access to the classified discovery beyond any such documents the government will use as exhibits at trial, only after that information set is determined or may have seized from them. So it's like, that's bad when you file a motion and in their response to your motion,

the other side says, yes, we agree with what you say. And that's why you can't have what you've asked for. It's like, wow, all right. It's on a need-to-know basis, and you don't need to know. Okay, he goes on to say, taken together, none of the three defendants provide any reason, any special circumstances, as this court put it, remotely justifying a deviation from the normal process in which courts examine and decide CEPA section four motions in camera and ex parte. The government set forth in its ex parte motions the specific necessity of proceeding ex parte here.

Court should consider the government's motions ex parte, allow the defense to provide any information they deem helpful to the court ex parte, and for the reason stated in the government's ex parte motions, grant the relief the government seeks therein. Yeah, so really interesting, right? Because this is the way it's always done. This is the way the 11th Circuit has set it up. This is if they have precedent and multiple other circuits. I know in other parts of this filing, Jack Smith mentions those, but specifically, you know, pertaining to Judge Cannon, the 11th circuit. And, you know, I think, I think that this is something that will be appealable under SEPA on an expedited basis if Judge Cannon somehow grants Nauta and Dale of access or their lawyers access to SEPA section four, or if she grants that Jack Smith has to make

these filings public and redacted, or that Trump's attorneys can have eyes only access to what goes on in these ex parte hearings. I think that this is appealable if she decides to go against SEPA. Yeah, I think it's appealable either way, like for either side. any one of these three could turn around and appeal it if she sides with the government. I'm not sure that the, and that appeal will jack up the SEPA channel of the case, which is already pretty jacked up anyway. But I don't think it'll, it shouldn't result in a stay on the entirety of the litigation, right? It shouldn't, but this is Eileen Cannon's court, so you never really know what's going to happen there.

this is one of those rare issues that we've seen in these cases where like the government has to fight this fight because even if they made a qualitative assessment that there's really not that much significant in in the material that's at the heart of the CEPA Section 4 proceeding, they can't have a precedent or a court decision that undermines their ability to hide this stuff in national security cases. to preserve the secret nature of our classified and national defense information. So, yeah, they have to kind of fight the whole thing. But the fact that they have such strong 11th Circuit precedent that's clearly on point and should be by any one's estimation, even a very new and inexperienced judge looking at SEPA things for the first time, they should be able to say, like, this is the clear law in this circuit. it and there's no reason to deviate from it. Yeah, and I honestly don't think Eileen Cannon will rule in favor of Trump or Nauta or

Dale Lavera here. I think the whole point of Trump filing this contested CEPA Section 4 is to add that delay. Of course. Something that he can appeal. I don't think. And, you know, I say that because I've long said that so far, Eileen Cannon hasn't stepped outside of the bounds of being reasonable. it's just nickel and dime delays, right?

Yeah, yeah. She's being, by one view, she's being manipulated by the defense. Absolutely. And that's frustrating to watch. She's, I don't know if it's an issue of confidence or experience or whatever it is. She doesn't seem to have the wherewithal to just give them the brush back on some of the stuff and keep this thing on track. We're at a more experienced judge. And I'm not saying a more, you know, conservative or liberal judge.

I'm just saying a more experienced judge. I think they would have not put up with this. But here we are. And even like Judge McAfee in Fulton County is a brand new judge. And he's fast. So I don't. Yeah, it can be done. I mean, yeah, it can.

But he's also what was a litigator for a really long time. Now, I have long felt she is just going to nickel and dime delay this thing. And that is evident in this next story as well. Because Jack Smith also filed a new motion in Florida. And Trump filed an opposition to that motion. And Judge Cannon has made a ruling already on that motion. This is a motion that goes at the heart of the trial date, which is currently scheduled for May 20th. But as we've discussed on previous episodes with the SEPA schedule that she set, the fact that she's not even going to consider revisiting the trial date until after March 1st, we've been pretty certain that the May date wouldn't hold. So perhaps to force the issue, Jack Smith filed a motion for a written jury questionnaire and asked the court to set a deadline for February 2nd for the party.

to submit a joint proposed jury questionnaire. Jack Smith writes, the government is mindful of the court's prior order that apart from the dates set forth therein and the dates previously set for the calendar call and trial, any further deadlines will be set after scheduling conferences on March 1st, 2024. However, we would like you to set something now

before March 1st. We want this jury questionnaire to go out. However, given the lead time that the clerk's office will need to implement a jury questionnaire, beginning the process after March 1st, will likely not provide the court with enough time prior to trial in May. For these reasons, and these other reasons elaborated below, the government moves the court to set a deadline for February 2nd for the parties to submit a joint proposed jury questionnaire. Of course, Trump opposed that motion. He writes, President Donald

J. Trump respectfully submits this opposition to the motion by special counsel to set a deadline for February 2nd. The court should deny this most recent effort to set deadlines outside the court's November 10th schedule, meaning, judge, you said you weren't going to decide anything until March 1st, and he's trying to decide stuff before March 1st. Tell him no. Moreover, in addition to wasting the court's resources, this type of litigation detracts from the defendant's efforts to review voluminous discovery and prepare motions that are crucial to the defense, again, which is funny considering he just rejected discovery from Jack Smith in the DC case. Therefore, President Trump respectfully requests that the court order the prosecution to refrain from further motion practice outside the existing

schedule absent truly and actually compelling circumstances. Well, this is a truly and actually compelling circumstance. You need to start a jury questionnaire to keep the May 20 trial date. And Andy, you and I didn't even get a chance to complain about this Trump motion because this all happened so fast. We didn't get to talk about how long we would think it would take for Judge Cannon to rule because two days later on December 22nd, she entered a ruling on Jack Smith's motion. It's a paperless. Crazy. So fast.

So fast. And it says paperless order granting in part special counsel's motion for a written jury questionnaire. On or before February 28th, the party shall meaningfully confer and file a joint jury questionnaire for the court's consideration. So granted in part means, yeah, you can have your jury questionnaire. And I'm going to let you do this outside of our schedule, our court schedule thing, you know, me telling you not to ask for anything before March 1st. But I'm going to go ahead and grant this, granted in part because I'm not going to give you February 2nd. I'm going to give you February 28th. So she's got a little month-long delay added here, right?

Which is so frustrating because even his own opposition isn't claiming you shouldn't do this because we need more time to get it done. He's saying we shouldn't have to do it at all. In other words, like, we're looking at discovery now and we have a right to only do one thing at a time. And so therefore we shouldn't have to bear the burden of doing, you know, working on a jury questionnaire. Her holding says clearly, yes, you do. This is one of the many things you have to do as we walk down this path. But she just, her way of mollifying him on every one of these motions is to throw a few more days at him, throw a few more weeks at him, throw a month at him. And that's how we get to this morass of really no chance of hearing this case before the election.

and not even remote. And she's renowned for making decisions that weren't even asked for. Yeah. Like you said, he never, he didn't argue, hey, February 2nd's no good for us. We think you should wait to decide this on March 1st and then set it sometime in April because of these reasons and these reasons. He just came in and said, I'm very busy. I can't be bothered. This is outrageous.

He's violated your March 1st, you know, position. So he didn't ask for more time, but she gave him more time. Exactly. It's very frustrating. So I know a lot of people were kind of pleased with this ruling, but to me it's just evident of her hand in him weeks and months here and there, here and there to keep adding. Yeah, that's slippage. That is what's really costing you. And that slippage comes back to bite you when he then stumbles upon a legit constitutional issue that has to be heard in an interlocutory fashion or something.

like you have in the January 6th case that that legitimately stops the proceeding. Like once, you know, we might survive that in the January 6 case because everything else was running according to schedule. Here, we're so far off. Now you throw in one of those. I don't know what that would be or even if it will happen at this point, but if it does, man, it's going to, it'll, it could, you could be in a place where like six months, a year gets added. If it's a Supreme Court, is it's crazy. Yeah, absolutely. All right. We've taken another quick break. And, We'll be back with some additional news plus listener questions. If you have any questions, there is a link in our show notes for you to follow and fill out a forum to ask us your questions.

So go ahead and do that if you have any questions for Andy or me. And we'll be right back after this break. Hey, everybody, welcome back. Some big news this week that may impact the special counsel investigation is news from Michigan. CNN reports the Detroit News reviewed a recording of a call former President Trump made to. two Michigan County officials in 2020, urging them to not certify the election results from Detroit. The call was previously known and reported by CNN and condemned at the time by election experts and Michigan Democrats who said it was stunning, a stunning attempt by a sitting president

to pressure local officials to interfere with an election. For the first time, we are learning exactly what Trump said, and that's according to Detroit News. CNN hasn't independently obtained the recording to verify it, but this is reporting from Detroit News. RNC. Chairwoman, woman Roda McDaniel, who was also on the call, told the officials regarding the certification, do not sign it. We will get you attorneys, meaning do not sign the certification of Joe Biden's victory. Right. The real one. The real certification. If you go to bed tonight, don't sign it. We will get you attorneys. And then Trump shined in. We will take care of that. Now, the GOP officials from the Wayne County Board of Canvassers, Monica Palmer and William Hartman, did later try to rescind their

votes of verification, but it was too late. The Michigan State Canvassing Board later certified the results as well, despite public pressure from Trump and other Republicans. So, of course, whenever I see these recordings get into the news, my first question, Andy, is who gave this recording to the news? Yeah. Because we know right now, for example, Chesbrough is on a U.S. tour, a fraudulent electors tour, talking to Arizona, Nevada, Wisconsin, Michigan. maybe D.C. He's asked for travel from the probation office down in Fulton County to be able to travel to D.C. For to meet with counsel, et cetera, remember when et cetera did all that heavy lifting? Yes.

Was he on that phone call? Did he record it? Who else was on that phone call? This was a phone call that took place November 17th, 2020, the day before that knocked down, dragout meeting at the Oval Office, after which Trump tweeted come January 6th, will be wild. I know Giuliani was in town. I know Misty Hampton was in town. They were meeting at the Willard. There was a lot of folks in and around town that may have been on that call or in the Oval Office or on the other side of the line recording that call. But I don't know who gave the tape to the press. Yeah.

I mean, I think it's fair to assume that whoever records, whoever records, recorded the call was likely someone on the Michigan side, right? McDaniel, Trump, Cheesebro, any of the other, let's call them generally co-conspirators who are interested on Donald's behalf, they're not going to record a call in which they know they're asking for something that's above and beyond what they should be involved in, right? So they're less likely to have recorded it. So if you think about the folks who are on the other end, like it's like the Raffinsberger call, right? How do we have the Raffensberger call because Raffensberger recorded it because he and his team were so concerned about the pressure that they had received so far they thought they needed to start recording

these calls. It's likely someone on the Michigan, on the receiving side, made it. That's what I think. It's not probably been released in discovery yet during the course of whatever's. I'm not super up to speed on where Michigan is with who they've charged or the fake electric schemes or whatever. Lots of times. Well, they've only charged. They're fake electors. Yeah. So. Except for one who I think flipped and cooperated.

So it's not likely that this would have come up and been turned over in discovery as a part of that prosecution. It doesn't seem like maybe. But that's typically a way that things get out. They get into the hands of lawyers because they've been released in discovery. And whether or not that violates a protective order or not, who knows, any given case could be different. But it does seem to me that like it's got to have been someone who was concerned about this interaction. And for whatever reason, they felt like they needed a key. They were going to need a record of it.

And now we have it. Yeah. And this was though going back to November, right? November 17th. So that brings us much earlier than the Raffensberger call, which would indicate that people were worried about pressure from the Trump White House earlier than previously known. So yeah listen it's not that different from Jim Comey and later my own efforts of writing memos after interactions with him because you just thought like

this is so far away from normal that I may need to remember have a really good contemporaneous recollection of what happened at some point I don't know why but I just feel like at some point I'm going to need to have something that I can rely on to have a record of what happened. The Comey memos. A week and a half, after which I released and reported on, I was told my job was moving across the country. Fascinating. Fascinating. Trigger moment right there. Yeah. Yeah, good old Comey memos. All right, we have some listener questions, yeah? Yes, we do. We had so many good questions this week. Really appreciate people sending those in. I picked two here that I thought we could cover quickly. I always try to pick ones that represent kind of common areas of interest. So first one comes. from Patricia. She says, I love your podcast. Two questions. One, if the Supreme Court decides Trump had presidential immunity, what sorts of technically illegal things could Biden do with his newfound

freedom to save democracy from Trump? Interesting turnaround there. And two, if the Supreme Court decides Trump has to be found guilty of insurrection in court to be kept off the ballot, could Jack add that charge at this point? So with respect to your first question, it's hard to say what what Biden would feel even if let's say the Supreme Court goes entirely with Trump and says yeah president has no responsibility under the law cannot be held criminally responsible for anything they do while they're president yeah would that take the handcuffs off Biden and he'd start doing all sorts of things I find that to be highly unlikely probably not not he's we follow the rule of law over on this side right right

And Biden's like the ultimate institutionalist, right? He's not going to start doing anything different. But I do think your question highlights one of the most concerning aspects of Trump's claim, which is essentially if he wins, which I strongly believe he will not, presidents from now and going forward are unleashed. They can do whatever they want. You don't have to follow the law. You can just decide what you want and then order other people to do it.

And that's really, you know, it's a very unlawyerly way to analyze the issue, but it's the heart of it right there. If they are not accountable under the law, that's it. We're not a democracy anymore. Well, and that's Jack Smith's main argument. And that's what Judge Chuck wrote in her decision denying Trump's immunity. And, you know, to say, yeah, I'm with you, Joe Biden wouldn't do any of that. But I also am thinking about Judge Lutig and his 24, 25. other people who filed that amicus brief that says all that stuff aside if you allow this to be

immune especially this particular crime then you are gutting article two section one clause one of the constitution that limits a presidential term to four years so nobody would ever have to leave office again so it's it's all of the think of the consequences of granting immunity and how absolutely absurd it is that is like the crux of the argument and and why i am i'm 100 percent sure that the Supreme Court will deny immunity. I'm not 100% sure they'll do it unanimously, but I'm 100% sure they will at 7-2 at the very least, maybe even 7-1. Maybe Thomas will recuse himself and we'll get a Christmas miracle, but I doubt it. So for the second piece here, if Supreme Court says he has to be found guilty of insurrection to be kept off the ballot, could Jack add that

charge? I find that to be almost impossible. We are so far down the road. We are so far down the road. in this prosecution that to add, to supersede the indictment, add a new case. I'm not even sure the court would let you do that. Even if he could, you're going to push the trial back until 2025. Blow it up. Yeah, 2025 for sure. And it would also look terrible. It would look like he was responding to something politically, kind of piling on, all that stuff.

Like, oh, you didn't have the, you didn't have the evidence before, but now, yeah. It would kind of reek of. foul play. It would kind of look like what David Weiss did with Hunter Biden. Oh, now you've got evidence to charge felonies? Yeah. Okay. Exactly. Exactly. So that is our two questions from Patricia. Patricia, thank you so much. And yes, we're always looking for good questions to read on the air. Can't always get them all in. But they're very helpful to us in understanding kind of where your heads are, what your comments are on the show. And so we consider them all and really appreciate your efforts there.

Yes, 100%. Thank you for sending those questions in. Everybody, we will be back in your ears next week with more listener questions and undoubtedly more news, including the December 23rd filing that we didn't get in time to cover on this show. And that is with Trump's response to the appeals court for his immunity merits. consideration, right? That's right. That's right. A treat for next week. Oh, a stocking stuffer, if you will. There you go. All right, everybody. We'll see you then. And please have a wonderful and safe holiday season. I've been Alison Gill. And I'm Andy McCabe.