Jack - Episode 59 | The Parade of Horribles

Episode Date: January 14, 2024

Trump’s attorney argues for absolute immunity in front of a three-judge panel in the DC Circuit Court and it goes pretty horribly; DoJ responds to Trump’s contempt motion in DC; SWATing is all the rage; In Florida, Judge Cannon says Trump’s team does not have to let DoJ know whether they are preparing an advice of counsel defense.Plus, we have some great listener questions. AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood 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 Podcasts

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. Yes. Welcome to episode 59 of Jack, the podcast about all things special counsel. It is Sunday, January 14th, 2024, and I'm Andy McCabe. And I'm Alison Gill. We had a big week in the DC case against Donald Trump this week

with oral arguments in the DC circuit court of appeals for Trump's absolute immunity bid, his monarchy bid, and his quote unquote double jeopardy claims, which is interesting now because that's even been thrown into question plus. We have a Jack Smith filing in response to Trump's motion to have the court order the government to show cause why Jack Smith shouldn't be held in contempt for continuing to file on the docket and produce discovery while the DC trial is in a band. It is stayed right now because of this immunity appeal. That's right. And okay, Allison, I'm going to take a side turn here.

And I want to point to something that a request we got from Tony from Albuquerque who asked us, he's a big fan of the show, but he's not a lawyer. And so sometimes he gets a little lost in the legal ease. And he said, sometimes he has a hard time explaining to his friends what he learned on the show each week. So he asked us to give him basically a top line kind of summary and how I'm thinking about it is like good week bad week designation for Trump just to keep it simple. So my spin on this week is Bad Week in DC based on the circuit court arguments and yet another predictable good week in Florida based on how little was accomplished down there this week. Yeah.

I love this. I love this bad week. Good week. It's like in or out, right? The whole thing that we saw at the end of 2023 in the government out Donald Trump. I think I'm going to go with it was a straight up bad week for Donald Trump. And by the way, these weeks aren't going to get any better for him for into modernity. First of all, the DC circuit court hearing devastating to his case. He was ordered to pay just $360,000 to the New York Times in legal fees for a frivolous lawsuit.

Oh, jeez. His motion to strike the expert that helped Ruby Freeman and Shay Mosque at $150 million out of Rudy Giuliani, his motion in the EGINE care case to remove that same witness denied and the judge in that case granted all of EGINE's motion in lemonade, all of it. Like he can't argue anything, basically. You just sit there and we'll tell you what you owe. Admitting that he screwed up the square footage of his triplex apartment in an unhinged court rant in the New York Attorney General in the New York Attorney General's civil fraud

trial, it was just a bad week all around for Donald Trump. As far as campaigning goes, I don't know, but legally, I got to say bad week. You know, as usual, your analysis is way more factually deep than mine. Oh, I can't argue with you on any of those. Plus, he has to walk around being Donald Trump. Yeah, that's not that. It's not ideal these days when basically getting out from under four criminal cases depends on winning the presidency. It's really it's a long shot strategy for anyone,

but hey, he's he's a better to pull together so far. Okay, so we also have some new filings in the Florida documents case. And we've got reporting, new reporting from ABC on what a witness may have told the government in the DC case, along with some swatting attempts on Judge Chuck and N. Jack Smith. So okay, let's start with the immunity and double jeopardy hearing in the DC Circuit Court of Appeals. This past Tuesday, it was the thriller in Manila version DC style. As people were really ramped up for this. You need a picture of Judge Child standing over in a boxing ring with that. Yeah, there's the people were outside like in the middle of the night waiting online to get in

and and hear the arguments and things. So as we know Trump filed multiple motions to dismiss the charges that Jack Smith brought in DC on multiple grounds. And two of them are potential interlocutory appeals, so they're being handled as interlocutory appeals now. One is the absolute presidential immunity motion, which of course we have dubbed the monarchy motion. And the impeachment judgment clause double jeopardy combo motion. Now it's important to note that this reference to double jeopardy, combo motion. Now, it's important to note that this reference to double jeopardy is a slightly different spin on the Fifth Amendment double jeopardy protection

that you typically think about for criminal defendants. Here, Trump is arguing that he can't be criminally indicted unless he's been impeached and convicted by the Senate first. So, he goes on to argue that putting him on trial after he was impeached by the House and acquitted by the Senate, which is what happened him twice, is a sort of double jeopardy. And that argument was basically his undoing in the DC Circuit Court this week. And of course, we'll get to that in a minute. But first, let's talk about the series of questions that judges asked both parties during the hearing, which lasted 75 minutes.

And we'll go over them in the order that they happened during the oral arguments before the three judge panel. And of course that panel was judge childs and judge pan, both of whom are Biden appointees, and Judge Henderson, who is a GW Bush appointee. Okay, so Alice in the first one, and this was a little bit of a surprise to many people, including me, and it was, I think, based mostly on this amicus petition, but it was about

jurisdiction. The judges asked questions, again, based on the American oversight Amicus brief, which argued that neither of the claims in Trump's motions qualify as interlocutory. So, meaning neither has to be decided before the trial begins. And if that's the decision, then the court doesn't even have jurisdiction to weigh in on the substance of the motion and the whole thing would go back to the trial court. So as a means of background, interlocutory appeals are strongly disfavored by the Supreme Court. Their preference is that a criminal defendant should make their motions, go to trial, be either convicted or

acquitted, and then raise all issues that they have on appeal after the trial. Now the American oversight argued that the immunity claim, excuse me, is precluded from interlocutory appeal based on a Supreme Court precedent in a case called Midland Asphalt versus US, which is a unanimous opinion in 1989 written by Antonin Scalia. Since the Midland Asphalt opinion, the court has identified only three categories of motions that may be considered before trial in a criminal case, so that those would be interlocutory motions. And these are motions to reduce bail, motions concerning the double jeopardy clause and the constitutions Fifth Amendment, and motions concerning the speech or debate clause. The judges were concerned that this double jeopardy claim and Trump's motion isn't the

Fifth Amendment claim, but it's really actually an impeachment judgment clause claim. So what they're, what he's claiming is not just a straight up, hey, I've been subjected to double jeopardy here. He's really saying the impeachment judgment clause precludes me from being indicted here and he's winding in this convoluted double jeopardy argument to try to support that. He's inventing a new double jeopardy for presidents. Yeah, exactly. I mean, his lawyers argue that this is a novel or a new issue and it should be basically

a new fourth type of appeal that has to be decided before trial. I mean, honestly, I think his double jeopardy angle to this. Again, he's saying because he was impeached and then acquitted, if you try him for the same conduct, you're essentially trying him a second time for the same thing that qualifies his double jeopardy. Now, all of you keeping scored home and reaching for your Blacks law dictionary or whatever, whatever other piece of legal authority you're referring to. I think now wait a second. I thought we heard a thousand times during each of these impeachment trials that impeachment

is a political process. And you are correct. It is a political process. It's not a criminal process. And if you look at the other side of this, Jeopardy, there's a question in most cases that involve double jeopardy. And the question becomes, when and if jeopardy attaches

to your criminal process? And the prevailing opinion is that you are not actually in jeopardy, i.e. that's the point at which jeopardy attaches to you until the jury is empaneled in your criminal trial. That's the point. So if you are, if you're investigated and indicted in the night before trial, the government dismisses the charges against you, no jeopardy, meaning you could be indicted and tried for that same conduct later. So when you look at that analysis, I agree with you.

Yes, here claiming a presidential impeachment and some sort of, you know, conviction or acquittal by the Senate is, is, attaches jeopardy, I think is an absurd argument, but that's essentially the one that he's making there. So the judges asked DOJ the same question about whether they even have jurisdiction to hear the motions before trial, but DOJ was not in agreement with American oversight. DOJ basically said they want a ruling on the merits of this motion now. And the judges, of course, are saying, you know, but if you win on the jurisdiction issue, we dismiss and this goes back to trial. But Pierce, who was arguing for DOJ, replied, we are here to do justice.

And that means getting the law right. So I think DOJ's concern is that if the motion is thrown out under restriction now, it'll send the case back to Chutkin, but could it actually cause more delays because it could give rise to other motions. And we get locked in this cycle of kind of motion after motion, rather than just, you know, they feel very confident that this motion is going to fail, they want to get that answer now, and they want to get back to the trial. Yeah, and then it can't come up again later if they give that answer now, which is why the DOJ

was also kind of not really keen on the idea of a hypothetical merits ruling, which can happen when you, you know, when you have these kinds of situations, right? They'll be like, all right, we don't have jurisdiction. But if we did, here's how we would rule, I think that still leaves the door open for him to come back later and make another immunity appeal post conviction. And DOJ is like, let's just put it to bed now. We're here. We've, we've stayed, the trial is an obey, in a bay.

And so let's just, let's get it done now while we're here And that's sort of but they did spend quite a bit of time on the jurisdiction question, especially Henderson right the GW Bush appointees she had a lot of questions about jurisdictions So why are we even here the immunity is Procluded from asphalt. That case you were just talking about Andy and your double jeopardy thing is stupid. I'm paraphrasing by what she said.

She got the gist of it, that's fine. She was basically like, I could be at home right now with cup of tea in my cats. What are we doing? Now this is cool, Andy. You know we had a judge alluded on to talk about his, his amicus brief and that was brought up in these arguments and and and rightfully so. In fact, the, the, the panel, the DC circuit court told the parties be prepared to answer questions about these

amicus briefs. So they launched right in with jurisdiction and that's usually the order operations, right? Like, let's figure out if we even need to be here first. And then we'll have arguments on the merits. So they moved on to the merits and they brought up the executive vested clause as argued by Judge Ludig at all in their Amicus brief, the one that was filed with 23 other Republican officials over five Republican administrations. And so they did bring that up. They're like, you're going right at the heart of article two. And of course, you know, if you listened to these proceedings, and I don't know if you heard them, Andrew, but if you had been, I knew you were pulling the rest of your hair out,

because you were like, look, he just kept quoting Marbury V. Madison. One particular cherry picked line in Marbury V. Madison, which is, President shall never be questioned by the courts or whatever. But he fails to finish that statement, which is, but they can be criminal. Like it's an absolute misrepresentation of Marbury. And I know that you had brought up your frustration with that in the previous show. And then after that, after they had their article two discussion, which didn't go

well for Trump, the judges asked Sauer, who was the lawyer arguing for Trump, a series of hypotheticals. Just like the hypotheticals, Jack Smith raised in both of his briefings, the one to judge, Chuck came back in October, and the one on December 30th to this panel of judges. And that's when judge pan kind of painted Trump's lawyer into a corner by asking whether a president could order seal team six to assassinate a political rival and not be held criminally liable. And after back and forth, back and forth, well, yes, condition, my answer is a conditioned yes,

or it excites you know, yeah, and he was just kind of putting out this sort of word salad because he really didn't want to say no because he realizes how ridiculous that sounds. Right. But it went back finally, Sauer said, only if he is impeached and convicted by the Senate for the same behavior, right? The same crime.

And that led Judge Pan to say, so if a president can be criminally liable, if he's impeached and convicted, then he doesn't have absolute immunity. Correct. That's right. And that was that was that was the that was the whole ballgame right there. Andy, that was the pivotal moment because she pointed out that if the president does not have absolute immunity as he uses as he misquotes Marbury to assert, then all of his other arguments, including separation of powers, at all falls away, and all that's left is whether a president must be impeached and convicted to be held criminally liable. And that had to be conceded by Trump's lawyers.

Yeah, unbelievably effective line of questioning. And it was, you know, she really showed her former prosecutor chops. It felt much more like a cross-examination than an appellate argument. But, you know, she didn't, and I'm sure everybody's heard the tape of this by now, because then news is playing it constantly, but she would not let him off the hook. She pushed him and pushed him. And this theory of argument is something that prosecutors refer to or lawyers refer to as the parade of horribles, right? You come up with hypotheticals that take the basic principle that somebody is arguing for, and you put them into a set of circumstances that shows that it could lead to terrible

things, right? And that's really where she was going. A president with absolute immunity, could they then use the instruments of power, the US military to assassinate a political rival? Like the idea of that is just so antithetical to who we are as a nation. But if the court accepts Trump's arguments, then the answer is yes, they can. And they're not subjected to any sort of liability for it. So in the first instance, she's using that kind of

parade of horribles approach to show in extremists how ridiculous this principle is that they're arguing for. And then she like hooked that curve right around him when he finally agreed, well, yes, but only he would be criminally liable, but only after having been impeached and convicted by the Senate. Well, if you've admitted to some form of criminal liability after some torture is processed, then the idea of immunity is gone.

He's not, even you are now admitting that there is a circumstances under which the president is not immune from criminal liability. So all those other things that you cited earlier are just, poofof gone and significant. Yeah. And then if we look at all that's remaining, which is your opinion that the impeachment judgment clause precludes somebody from being criminally indicted or prosecuted if they

aren't first impeached and convicted in the Senate. And we need to call that a new fourth interlocutory appeal, or type of appeal that can be considered interlocutory, and create this new rule, and basically redefine what double jeopardy means. It's obnoxious and silly. And also, we have in asphalt that Scotus has said, look, it's specifically double jeopardy attached to the fifth amendment of the Constitution. So this, to me, and I've talked to a couple of experts about this actually lowers the chance, I think, of the Supreme Court granting

cert in this case. After, of course, he goes, tries to go on bond for a re-hearing or whatever. But ultimately, if there's no longer a question of immunity, because now Trump's side has admitted that there is no absolute immunity. And we're talking about a double jeopardy and creating a new, scotus is low to create a new standard. Totally. Yeah. Yeah, it just, it reduces the odds that they'll see a legitimate issue left on the table that they need to resolve.

You know, that it raises the specter to that. The circuit court is going to hit this thing definitively based on solid grounds. And that's what they're looking for. They don't want to do this. They don't want to weigh in again in this whole Trump running for president thing. They've already got that on their hands with the 14th Amendment problem. You know, and before we move on from this, the other thing that drives me crazy about this stupid double jeopardy argument, as you've pointed out, it's not really a

traditional double jeopardy argument. But what he's saying is like, if I were impeached and convicted, then you could put me on trial. Well, that would be double jeopardy too. Right. How is that not double jeopardy? If jeopardy attaches in the first half, the first process, then it's still there if you're convicted. It's the same. He's almost arguing undouble jeopardy. Yeah. The whole thing makes no sense because his argument is, I hope I said clearly before,

no sense because his argument as I hope I said clearly before, jeopardy attached during the political process. And therefore, I can't be tried twice for this. But you're in your own admission, you're saying, if you were convicted, then you could be tried a second time, criminally. I mean, it's- And that's the only time you can be tried. Yeah. It's absurd. And in that discussion, and this was for me, I mean, I know that the judge pan awesomeness and getting him to admit that thing was probably was the whole Boloax. But I think my favorite part was when the judges brought up the fact that Donald Trump argued during impeachment that you don't need to impeach him because you could criminally indict him. Right. And the judge brought that up and Sauer was like, well, it wasn't me, I didn't argue

that personally. And it's like, yeah, but you did. That's like the legal version of, it was like that one I got here. I mean, that does not fly. And the judge was like, look, your, you know, caster, I think it was, was saying this idea of January immunity or whatever, amnesty, January amnesty, where the president can do whatever he wants

and just walk away, Scott free, because we aren't going to impeach him after he leaves office, is BS, because the Department of Justice knows what to do with those kinds of people and those kinds of things. That was their argument. And the judge pointed out there were probably a lot of senators that voted to acquit based on that argument. Sure. And that totally blew a whole and it becomes probably one of them. He was. And also he said, you know, McConnell said, hey, we don't have to impute you because, you know, we can convict them.

Right. A department of justice can handle it. Um, I don't do a very good natural, McConnell impersonation. That's okay. We knew who was. But, but, you know, just to just to say, it's in the congressional record and all Sauer could do was be like, I doubt the court knows why any particular Senator voted to acquit and blah blah and it wasn't me your honor and it you just didn't really have anything to say about that

So that they're one remaining argument. They're one remaining argument has been I guess Procluded from being argued by Trump's own legal team in his second impeachment here Yeah, there were so many moments like that It's precluded from being argued by Trump's own legal team in his second impeachment here. Yeah. There were so many moments like that. There was a point when she first asked him the question about the using seal team six to assassinate a rival. He said, well, I'm sure that the president would be very quickly impeached and convicted if he did that.

And she was like, wait a minute. First of all, how many impeachments have we had as a nation? Four, right? How many convictions? None, not one. It's never happened. And there's many, many scenarios in which you might not get a conviction simply on political grounds,

maybe you know what I'm saying? You know, you're asking. You're asking, argument. He's like, well, what if you shot the six senators that we're gonna vote to? I mean, it was just he had to convict. Then you then you get out of jail free. You just have to kill a few more people. Yeah. I mean, sour, I, you know, I think he did the best he could with a really leaky bag of, of, you know, what? It's, he didn't have, he

didn't have a lot to work with. I think he's a smart guy. I think he tried to be as forceful as he could be, but there just was not a lot of runway to get this thing off the ground. And I think, you know, like, I think that day, every commentator you hear in the news is like, they're gonna lose. DeSantis and Nikki Haley in the debate. We're like, that's a ridiculous argument.

Do you think you should be immune? No, that's ridiculous. Even them. And CBS, a new CBS poll, 64% of Americans think Trump should not have criminal immunity. That includes 86% of Democrats, 68% of independence, and 31% of Republicans, a third of Republicans, think he shouldn't have immunity. And of course, at the end, you know, Sauer said, please don't affirm the lower court, please let it please, we want to win. And if we don't win, we would like the full 90 days to appeal.

And at DOJ said, we would also like to win, but we would like you to issue the mandate very quickly. So we can limit the amount of time that Trump would have to go to on bonk or the Supreme Court or both. So we will see what ends up happening. And you and I made a bet, my friend. We bet we did that I thought that this decision would come down by the end of the week. It's Friday. I still have a day and a half. So I think if there is a decision and I win the bet,

we'll put it right here. Okay, welcome back. If you didn't hear anything, that means I lost the bet. So man, we had so many people wait in and the question booth the question booth. I don't know what we're calling it this week on what should be the wager because we didn't resolve that last week. Oh.

Yeah. So, let's see. So one person who identifies themselves as, here's their name, I came for the jack update, but stayed for Andy's godfather impression. That person says the loser has to phone bank in a red state for one weekend. And I'm just saying right now, not a chance. There's no way I would ever bet anything that that hung in the balance for. Well, no, I think they mean phone bank for a Democrat in a red

state. Oh, okay. All right. Well, it's not easy. It's not easy. No, just to get up. Can you imagine? Hi, this is Andy McCabe. No, no way. I would be like, hi, this is Peter struck. I'm telling Pete. I'm telling Pete said that. You can tell. You will not be surprised. So that was one. Another Catherine suggested triathlon. So if I win, you have to do one by the end of the year. If you win, I have to do two by the end of the year. I'm not sure why I got penalized or the next year, but probably because you do that stuff

more than I do. That could be it. But Molly suggested, and I think we talked about this last week some, last for somebody has to wear a mega hat to Costco. If you lose, although I have to point out another person pointed out that mega is actually our initials backwards. Allison Gill, Andrew McCabe. Oh, well, that makes sense because we already opposite of a guy.

There you go. So maybe an aga mad at Costco. Aggum. No one would know what it means. That's a good one. Alison Gill, I'm even okay, the opposite of maga. There you go. I love it.

All right, everybody, we have a lot more to get to. Holy cow, the A-block was almost a half an hour. I just can if you want to those shows. We have to take a quick break, everybody. Stick around. We'll be right back. Bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum, bum reporting from Catherine Falders at all, at ABC. And she reports that special counsel Jack Smith's team is uncovered previously undisclosed details about former President Trump's refusal to help stop the violent attack on the Capitol three years ago while he sat and

watched TV at the dining room off the Oval Office. And that's according to sources familiar with what Smith's team has learned. So whoever the source is knows what these folks told Jack Smith. Right. Right. Many of the exclusive details come from the questioning of Dan Scavino. Scavino wouldn't speak with the House Select Committee that conducted its own probe, but after the judge overwilled claims of executive privilege last year, he did have to speak with Jack Smith's team.

That's one of the tools that the DOJ has that that the January 6th Committee does not have. And key portions of what he said were described to ABC News. New details also come from Smith's team's interviews with other White House advisors and top lawyers, who, despite being deposed in congressional probes, previously declined to answer questions about Trump's own statements and demeanor on January 6th. That's according to publicly released transcripts of the January 6th interviews. Andy, this is the Ocha Noestra. This ABC reporting is about what we dubbed the Ocha Noestra and the importance of those

eight witnesses who refuse to answer questions on privilege when all the way up and down the court system and were told you have to go in and testify. That's how important the testimony of these eight were. Sources say Scevino told Smith's investigators that as the violence began to escalate, Trump was just not interested in stopping it. Sources also said, former Trump aid, Nick Luna, another one of the notes at Oster, told federal investigators that when Trump was informed that Pence had to be rushed to a secure location, my memory was escorted down to the whisked away, spirited away down to the loading

dock. Trump said, so what? And along with Scevino and Luna, that small group, as we know, we want to we talked about the Ochanostro a lot included Mark Meadows, Pats, the Pats, Cipolloni, and Philbin among others. Of course, McInty was in there. He's not mentioned here. What if he's cooperating? After unsuccessfully trying for up to 20 minutes to persuade Donald Trump to release some sort of calming statement like go home or chill out or be peaceful. Scovino and a bunch of other people just walked out of the dining room left him there by himself.

That is when according to sources, Trump posted a message on Twitter saying that Pence didn't have the courage to do what should have been done. And that's a big tweet. Yeah, this is really fascinating. For a couple of reasons, one, of course, this is probably the sort of evidence, or could be the evidence that Jack Smith's team got from Trump's Twitter data, which you'll remember the order to Twitter called for information about who was tweeting at what time, from which account, on which device, and where those devices may have been located at the time.

So that could be an additional fact that they know from that data call. So sort of like corroborating evidence, if you get Skavino on the stand to say, this is Trump tweeted that, then you have this sort of backup evidence to corroborate what his testimony is. Sure. You say you're going to say that you're going to ask Skavino these questions. He's going to lay out the story and he'll say Trump tweeted it. And then you say, how do you know Trump tweeted it? And then he's going to say, well, the only people who had access to the account were me and Trump and I had left the room and I didn't tweet it.

And then they'll go to the expert, the technical expert who interprets the electronic data and they'll say, yeah, this time. And we talked about that motion, right? The three experts that are gonna come in are experts in those areas. That's right. So they'll say this device was in this location,

this device at this time and this device was in this location, this device at this time, and this device was responsible for the following tweet. So we conclude Donald Trump tweeted this message. Exactly. So this is so important because they are going to tell this story in as much gory detail as they can. And having these insiders in the White House who were there and saw it and can provide these little tiny like corroborative details like what Rumi was in, who else was there, what was he doing, what was he eating while he was talking to you or watching television or whatever, they'll be able to say in ways that are consistent

across witnesses exactly what he was doing, what he was saying, where he was located. And it's all going to paint a picture, a very detailed, rich picture that makes it more believable to the jury. It's easier to kind of fully invest in the prosecutor's theory of the case if they can paint a picture that you can literally see in your head as they were talking about it. Yeah, and it says here that Cipollonian and another White House attorney, when that Pence tweet popped up, it was as bad as we think it is because even the people around

Trump were like, oh my God, holy crap. And they ran around and found Scavino and demanded to know why he would post that. Why would you tweet this? And Skavino was like, I don't know what you're talking about. I mean, yeah. It was not me. Yeah, it me. It's brutal. Some of Trump's AIDS then returned to the dining room to explain to Trump that a public attack on Pence was, quote, not what we need as Gavino put it to Smith's team, quote, but it's true. Trump responded. Sources told ABC News. So Trump has publicly echoed these statements since then. So again, it's not hard to believe. It will not be hard for jurors to accept this testimony at face value because he's got other statements

that are consistent with it. Yeah, because before it just seemed like he was sitting there with his arms folded like meh. And everyone's like, come on man, tell him to go home. He's like, oh, fine. And then told him to go home. And then they're like, come on, make a video. And Ivanka's all, come on, dad, make a video.

And Jared's all, come on, dad, make a video. And Jared's all, come on, dad, make a video. And Trump Jr.'s like, you got to knock this off. And finally, he's like, all right, I'll make a video. And that's kind of how we had it in our head. But when you get to the rest of what you're about to tell us, including what we've just learned, and you mix that with the Twitter data, what happened was, is Trump didn't do anything.

Yeah. It didn't concede to anything. Oh, you actually did things that made it worse. Right. It didn't concede to anything. No, he actually did things that made it worse. Right. And it was him that made it worse. You remember how shocked we all were when the committee testimony revealed this whole episode last summer?

Well, it's gonna be that times 10 because it's gonna be way more detailed and way richer. So about the same time time Trump's AIDS were pushing him to do more, a White House security official heard reports over police radio that indicated Pence's security detail believed, quote, this was about to get very, very ugly, according to the House Committee's report. So as Trump ate Nick Luna recalled, according to sources, Trump didn't seem to care that Pence had to be moved to a secure location. Trump showed he was, quote, capable of allowing harm to come

to one of his closest allies, close, quote, at the time. Luna told investigators, that's really damning testimony from one of Trump's closest kind of staffers, right? So with the chaos inside the Capitol continuing, Trump's A's believe Trump still needed to do more. Sources said Cipolloni recalled, telling Trump that he needed to explicitly instruct rioters to leave the Capitol. Scevino printed out proposed messages to post on Twitter,

hoping that Trump would approve them, despite his reluctance to write such posts themselves, sources said. The Congressional probe found that even Trump's daughter Ivanka, quote, rushed down to the Oval Office dining room to convince her father that issuing a public message could discourage violence as the Congressional report put it. And more than a half hour after Trump was first pressed to take some sort of action, Trump finally let's Gavino post a message on Trump's Twitter account, telling supporters

to support law enforcement and quote, stay peaceful. It was 238 PM. So Scavino wrote that tweet. Trump did the Pence tweet. Scavino did the stay peaceful tweet. And Jack Smith will be able to prove all that, not just with this testimony from the Ocha no-stra. Yeah. But from data and experts, from the Twitter search warrant. Right. So he goes along for it a little while,

but he swings it back in the other direction later, right? Because for Trump, after the video telling the mob to go home was released, he returned to watching TV coverage of the day with Philbin and others, according to sources. And when clips of the riot were splashed across the screen, Trump declared something to the effect of, quote, this is what happens when they try to steal an election, Philbin recalled to investigators. That's intense. That's so much intent and motive. Yeah, and it's very consistent to what happens next, right? So according to the sources, Philman said he responded, Mr. President,

it doesn't justify this. So again, here's the aid pushing back, right? Pushing back. According to sources, shortly before 6 p.m. on January 6, Trump showed Luna a draft of a Twitter message he was thinking about posting. Quote, these are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots. Remember this day forever, Red. The message echoed what Trump had allegedly been saying privately all day. Sources said Luna told Trump that it made him sound culpable for the violence. Perhaps even as if he had somehow been involved in directing it, sources say. Still, at 601 PM, Trump posted the message anyway.

Does being told that it makes you sound culpable, unlike you directed it and then posting it anyway, help kind of go towards showing the jury that that's what he wanted. You know, I don't think it's direct evidence of intent, but it's pretty good circumstantial evidence and you could on the block of that. And it's, you know, you could infer from that,

which is the difference basically, right, between know, you could infer from that, which is the difference, basically, right between direct evidence and circumstantial evidence, you could certainly infer, well, that's what he must have been doing. Since you said, I'm going to do this. And someone said, if you do that, it'll look like X. And then you go do it, you could infer that that person wanted to look like X, right? Right. Or at least wasn't trying to not look like X. Yeah. wanted to look like X, right? Right, or at least wasn't trying to not look like X. Yeah. Rule of thumb never look like X. Really other way. Okay, so after that, but before Congress reconvened to finish its vote, certifying the 2020 election, Cipolloni called Trump relaying what a horrible day it had been,

an urging Trump to tell Republican allies in Congress that they should withdraw any objections to the certification so the country could move on. Sources said, instead Trump again declined to act telling Sipalone, I don't want to do that. Sipalone recalled to investigators according to sources. Really, a series of very damaging statements from very credible people, all of whom are Republican, all of whom are on Trump's staff, right? Around him, supporters, political people, lawyers, what have you.

They've testified under oath to the prosecutors already. And so you can only imagine that they have their pick. They can use any or all of these people at trial. And they are going to, they are going to provide some very powerful evidence of what exactly Trump did and didn't do that day. Yeah, that's the Ochanostrophoria. And how important, how important was that privilege battle to get these eight folks. And again, there's a couple of names that aren't on here that I'm very curious about. And you know, I'm always like, I'm on Johnny Macinty, like, why not write? I'm like, where, what's he doing? What's he, because, you know, I had had some exclusive

reporting way back in the day from very credible sources that Pence's badges and his team's badges stopped working. And it would have been Johnny McIntee, you know, at the personnel, yeah, presidential personnel office that would have been in charge of, or could have access to activate and deactivate badges. And this source told me that that's why they ended up at the loading dock, because I couldn't get back into the VPs offices. Wow. So, but of course, that is just my one source there.

It was corroborated by another source who was with Pence's team that day. But also everybody's badges could have been deactivated I don't know who knows I don't know the real story there But I you that I'm just trying to paint this picture of like I want to know what's going on with Johnny McInty And he doesn't he doesn't come up too often. So I'm very interested to see how he is utilized and how his testimony Is utilized in this particular Investigation and we will we will learn that as soon as the trial has out of a

base, once the DC circuit court of appeals, there's out the immediately claim. And I think I'm really hammering this point about, like, imagine how the significance of these witnesses of trial. You've got to remember that a lot of these people are still pretty tight and Trump world. I mean, obviously, not the paths or Skaveno maybe, but guys like Mac and T.

I mean, certainly, Ivanka is still, you know, involved in some level. This is like, I'm, all right, I'm thinking like death seen from Julius Caesar, right? They've been trying to convince people all week to take Caesar out, cascus strikes first, and then everybody stabs him. And that could be what we witness in this trial, right? One witness goes on there and testifies. Even

these people who are still kind of playing their card in Trump world right now, ignoring the fact, not talking about this stuff with the boss, just kind of trying to live this thing, whatever it is, this life they're in as long as they can. But they're not going to be able to kind of get out of telling the truth about what they know about him in a very damaging way. And when one of them does it, that's going to give permission to all the rest of them to get up and go into the gory detail. They have to do it anyway. They've got to tell the truth under oath. And I think it's going to be a really, a really incredible thing to witness.

Yeah, it will be. And that's why I'm actually refreshing pace right now to see See if we're getting We're getting breaking news Right because you know, don't forget. Oh wait. Here's a US. Oh, that's a Mara Lago documents case Mara Lago documents bomber. Okay. Just trying to win. I get it. I am. I'm just trying to win. Thank you You're just trying to win. I get it. I am. I'm just trying to win. Thank you. But yeah, we, you know, we can't really do anything in this with moving this trial forward until until that immunity hearing decision comes in and we exhaust it through on bonk and scotus. I'm still fingers crossed. They

deny cert and now it looks like the chances are even better since the entire argument about immunity was just blown to be played. Yeah, for sure. Deflated Bella check style. No, Bella check jokes this week. All right, everybody, we have to take another quick break, but we have more to get to stick around. We'll be right back. Welcome back. Okay, we're staying in DC because you'll remember that Jack Smith had produced some discovery and a purported exhibit list. I'm not sure why it's purported list. It seems like it's just a list, but whatever. And filed a motion in limine, even though the proceedings are stayed.

And after DOJ produced discovery, Trump's lawyers wrote a letter telling DOJ that they would ignore the production. They're going to leave it out on the stoop in the rain. But as of last week's episode, after DOJ filed a motion in limine on the docket, we hadn't gotten another letter. We were wondering what was happening. So instead of getting writing them another letter, we got a motion from Trump to compel the court to order Jack Smith to show cause why he shouldn't be held in contempt for, quote, violating the stay order. Well, this week we got a response from the DOJ.

That's lovely. Yes. And as you might imagine, they do not agree with the Trump team's position. This is not a consent agreement or voluntary submission to sanctions. Instead, Jack Smith's team says, the defendant claims that the government intentionally violated the court's state order and promoted a political agenda by fulfilling its continuing discovery obligations and voluntarily complying with otherwise suspended deadlines. That is false. The government has not violated and never intentionally would violate in order of the court, and the defendants recycled allegations of partisanship and prosecutorial misconduct remain baseless. The defendants' motion for an order to show cause should be denied.

I love that. That's a great. First of all, I love how every single one of Jack Smith's filings is like, the defendant says this and this and this and this. That is wrong. Or that is false. Or he is wrong. Or that's not. That's right. Just a very good statement. One line, very tight line of, here's why and then deny the motion. And you can basically just do it on that. You don't even have to read the rest of why, and then deny the motion. And you can basically just do it on that. You don't even have to read the rest of the... And I also love the word economy, instead of saying, here's where he made a previous baseless allegations of partisanship.

Here's where he made prosecutorial misconduct, baseless prosecutorial misconduct claims. Here is where he just says, in order of a court, and the defendant's recycled allegations of partisanship and prosecutorial misconduct remain baseless, like the same all-tired arguments. It's a very beautifully crafted sentence. Anyway, go for it. All right. So they go on to say, on December 13, 2023, the court issued an order explaining that the defendant's pending interlocutory appeal, quote, automatically stays any further

proceedings that would move this case towards trial or impose additional burdens of litigation Offendants pending interlocutory appeal, quote, automatically stays any further proceedings that would move this case towards trial or impose additional burdens of litigation on defendant. And for clarity, stay the deadlines and proceedings scheduled by its pretrial order as amended. The government does not understand that order to prohibit either party for voluntarily complying with the pretrial order or to counterman the government's quote, continuing duty to disclose discovery

under federal rule of criminal procedure 16C. I thought that was a great point because they're saying, hey, you can stay whatever you want. The other guy doesn't have to respond, but we have an independent obligation under the federal rules of court as the prosecutors to keep providing discovery as we go. Yep. Yep. Great. And again, so succinct. And here's the key part of this filing, right? He goes on to say, before the stay was issued, before Judge Chutkin put the stay in place. We in a pleading, acknowledging that the defendants in a loculatory appeal automatically stayed aspects of the case.

We conceded that and we put it in a briefing. We in that briefing informed the court and the defendant that during the appeals dependency, while the thing was stayed, we would voluntarily comply with the adjourned deadlines to help ensure trial proceeds promptly if the court's order is affirmed. We said before the stay came out, we were going to keep filing stuff. Right. And because the court's subsequent stay order did not forbid this, the government did what it said it would do. That's brilliant.

And that's why it was put in there. We're going to keep filing stuff. Now, had in the stay order, if Judge King came back and said, I'm staying this, and by the way, government, you said you would keep filing stuff. Don't. Then that's a different story. She didn't put that in there. So the government did what it said it would do. Nothing here. What reasonable person would have put that in there? Right. The government is simply saying, we're going to give you what you're entitled to now.

You don't have to look at it. You're not under any obligation. Uh huh. Why not? And they said we're going to do that before she issued to stay. And if she didn't want that, she to said so in this day.

And nothing here requires any action by the defendant. He fails to explain how the mere receipt of discovery materials that he has not obligated to review or the early filing of government pleadings to which he does not yet need to respond possibly burdens him. He doesn't explain how his could possibly be a burden. The defendant falsely paints the government's voluntary compliance with the motion and lemonade deadline as an effort to quote spread political talking points. Not so. The defendant's misconduct allegation to which the government has responded in its

opposition to the defendant's selective and vindictive prosecution motion. That thing is baseless and merits no further response. We don't have to talk about this anymore. And the motion and lemonade itself addresses topics that the defendant has explicitly and implicitly indicated through public statements and filings, he is likely to raise at trial. So it's no secret.

So your argument that we're trying to, you know, the Trump's argument that we're somehow trying to try him in absentia through our filings that he's not allowed to respond to is BS. Right. It's BS. Yeah. Yeah.

You know, he objects to receiving things he doesn't have to respond to, but then responds by filing a motion on the docket, which then has to be briefed. Okay. which then has to be briefed. Anyway, this week we also learned that both Judge Chutkin and Jack Smith were victims of swatting very recently. Jack Smith was swatted on Christmas day and Judge Chutkin was swatted this past week. And I think also I heard Judge Engron in New York swatted on Thursday.

So definitely the swatting is back with a vengeance. Um, and I, you know, I think a lot of people know have heard of swatting before maybe some don't understand exactly what it involves. It's basically when someone wants to harass someone else, like let's say hypothetically me, they will call in either make a call directly to law enforcement or sometimes they call something, they'll call a place like a suicide hotline and pretend to be the person they want to harass. and they want to harass. And they'll say, you know, as happened to me a couple months ago, that I have killed my wife and children, and I'm gonna go to a, go shoot up a school next.

And then of course, the suicide hotline has to immediately call, make the appropriate on-forcement notification, and law enforcement notification and law enforcement responds sometimes with a SWAT team and emergently thinking something's going on at the house. If they respond like really quickly with the tactical team, it can be a very dangerous incident for the people who are the targets of this sort of harassment. So it's also very unsettling on your family. I can tell you

that from personal experience. Yeah. Yeah. So, but it's just out and out harassment. People are trying to intimidate you. They're just trying to cause tension and fear and terror. So you've been swatted? Yes, a couple months ago. Would you be willing to talk about it? Yeah, sure. I'm probably being a little too cagey with my example, but that's exactly what happened to me. Somebody was a Sunday and I was actually not at home. My wife was home and a couple of law enforcement officers where I live called the house. My wife answered the phone and they asked her a bunch of very kind of pointed questions. And you know, she's like had no idea what was going on. It said she was fine.

Everything was okay. And then they asked her to come outside and meet her on the front porch if everything was actually okay. She did that and that's when they explained to her what had happened that somebody had called a suicide hotline pretending to be me and confessing that I had killed my whole family and saying that I planned to go shoot up a school the next day. And they expected it, you know, I guess they've they've got experience dealing with these things here.

So they responded, I thought, incredibly professionally. They came out first before they made any contact. They didn't come thundering onto the street with 10 SWAT trucks and everything else. They sent two officers out. They took a good look at the house to see if they could tell if there was anything that seemed out of the ordinary or anything that seemed, you know, out of the ordinary or anything that might be going on. And then once they felt like that they didn't see

any kind of signs of anything, rather than calling out the troops, they made the phone call into the house and then eventually approached. So they resolved it, you know, without creating more danger, which was great, Totally appreciate that. I would give them a shout out, but I don't really want to encourage this so they know who they are if they're listening.

What, I mean, this, I don't see swatting attempts on like Judge Cannon or Rick Grinnell or I mean, it seems to be everybody that has been painted as a quote deep state operative that's taken the branch of this. It seems to be pretty one-sided, but I don't know. I don't know. I think that's kind of an understandable way to look at it. There's definitely a connection between the high profile people we're seeing recently, Jack Smith, Judge Chutkin, no question. There seems to be kind of a likely similar motivations there, but Marjorie Taylor Green got

swatted on Christmas as well. Well, she says. She says. swatted on Christmas as well. Well, she says. She says. But Georgia state legislators got Republicans, got, have been swatted, I saw them on TV talking about it last night. So I do think that it's become a garden variety tactic that people use.

It happens very often to people in the Jewish community, to Jewish community centers, synagogues. We had the bomb threat, swat against Judge Angoran. Yep. This week, which was a swat, considered a swatting incident. Man. It has been, there's a guy in Kansas so while, maybe a couple of years ago now, who got

killed by the SWAT team that responded to his house. So it's dangerous. You also, if your local law enforcement responds, truly believing that there's something going on, I mean, they go, you know, lights and sirens to your house. Just the process of doing that is dangerous to them, right? You're taking on all kinds of risk by responding quickly. So it's super irresponsible and damaging, just also really, really annoying, but there's not a whole lot of you. And then you, so that the IRS deep audit, the, I mean,

the firing an hour before you were set to retire, which was actually you were already retired, but yeah, whatever, man, it's, it's, it's quite a road. But that's all right. We're good. We're marching on. I got a great podcast now. I get to go on CNN. I mean, it's my VA career. And, uh, and so that's like not really that big of a deal in comparison. Not a little bit of a hit piece out of me this summer, but you know, whatever. You know what? We all, as Norman Mailer said,

everybody gets their own bloody noses. That's true. That's true. We all have things to deal with and you just gotta kind of keep looking forward and moving on. So that's what we do. You only take fire when you're over the target.

There you go. All right. I'll let that note. We've got some Florida stuff we need to discuss. So I was looking forward to going down to Mar-a-Lago, Palm Beach, West Palm Beach County. No, right. Right. Shake it.

Okay. We have to take a quick break. Everybody, stick around. We'll be right back. Hey, everybody. Hey everybody, welcome back. Time to head down to Florida, Florida, where we have a couple of filings on the docket. Let's start with Jack Smith's second joint discovery report, file January 9th. And, you know, as you go through these trial proceedings, you do these things called joint discovery reports where you let the court know what the

discovery switch is, how much has been handed over, what's left to go, any issues, does the other part of you agree with what you're handing over. And so they wrote in accordance with the court's order, United States of America files this discovery report, that order contemplates a joint discovery report being filed, but as the defendants have yet to produce any discovery, the government has prepared our report. So Trump hasn't handed over a piece of discovery in Mar-a-Lago. Nothing. Nothing. Council for the defendants have reviewed this report and agree it's consistent with representations. So Trump agrees he hasn't handed over any discovery.

The government has made three counts. We counted up everything we turned over, who's very quick count the number zero. Unbelievable count, it had tears in its eyes. The government has made three productions of unclassified discovery since the last joint discovery report. We have production six, which is about 1900 pages of documents, which was provided to all

defendants on October 6th. The production included memorialization of recent witness statements, recent witness statements, and materials the government had recently obtained from the national archives. Recently, production seven consisted of about 138 pages of documents. That's too many. I can't possibly read them all in time. 138 pages, which was provided to all defendants October 16th. The documents were produced in response to an October 9th discovery letter from defendant Trump, notwithstanding the government's belief that the production exceeded its current

discovery obligations. So, David, to him anyway. Trump asked for a bunch of BS member. They gave him about 138 pages of the BS. That's how we ride. We're givers. OK. We give and we give and we give. Yeah. So they're over producing production eight, about 2000 pages, which was provided to all defendants.

December 6th, this production included material, provided to all defendants December 6th. This production included material previously produced in classified discovery that is now unclassified or for which the relevant equity holders have determined the documents no longer need to be protected through classification and have declassified them. So the relevant agencies, the owners of these

classified documents, about 2,000 pages worth, have said these aren't classified anymore. You can go ahead and hand them over to everybody, including Walt and Carlos. Yeah, and that's not odd. You have to review this stuff. The prosecutors are obligated to go to the originators of the information, whoever owns the stuff and say, is this still whatever secret top secret? And if it's old, if it's kind of outdated, if it doesn't reveal anything, they may come

back and say, you can have it. It's no longer, we'll declassify it and roll on. Interesting to me is the fact that that means that they've determined the rest of it is still classified. So Trump didn't declassify everything with his mind. Okay. Dale Leveris' council has raised periodically with the government certain questions relating to technical issues with viewing the video footage. Remember the cover-up of the cover-up of the cover-up? The government has promptly assisted with these problems, including by providing a laptop for viewing the footage.

On January 5th, just a week or so ago, Mr. Dayol Averis Council raised with the government additional issues with which the government will endeavor to assist. So he's having issues viewing these videos of him obstructing justice. He wanted it on VHS and the government was like just here take a laptop. Okay, it's on. We only have I needed on laser disk. I only use laser disk beta. Do you have you need beta?

Beta. Can we listen to it on eight track? Okay Then on January 11th the DOJ filed a supplemental response to the standing discovery order and This is interesting. It says the government has provided eight prior productions of unclassified discovery to Trump, Walt, and Carlos. Production nine consists of six pages and includes two items. Number one, the curriculum vitae, which is a resume, of an individual, the government will notice it intends to use as an expert witness

in its case in chief at trial. And two, an email chain of which the government has previously produced certain portions. The government has six pages. We have this additional discovery on January 11th. The government responds to the specific items identified in the standing discovery order as set forth below. And there's four items here. And they're numbered B, C, D, and J. So I don't know what happened to E or S, G, and H, and I, I don't know what happened to those. Maybe they're redacted or classified. But B is a demand for reciprocal discovery.

The United States requests the disclosure and production of those items described and listed in paragraph B of the standing discovery Order as provided by Federal Rule of Criminal Procedure. C, the government is providing information or material known to the United States under Brady. D, same thing we're doing under Giglio. And Nutt Merget, the government's discovery productions include the grand jury testimony

and recordings of witnesses who may testify for the government at the trial So that's just some discovery and production updates that were filed in Florida So those are the only two things that we got this week in the Florida case Yeah, so they they went to a lot of detail the producers report and then just threw it into the void That is the docket of this case. It takes me back to my reason for it. It's a good week for Trump and Mar-a-Laga. Because it just feels like this thing is going no longer.

It's slogging. It's slogging along. Did we get any decisions on anything out of the judge? Out of the court this week? No. No. Did not. And I just feel like this is like

the part-time job she took in the summer and then ignored. This is like the inter the unpaid internship that somebody told her was good for a resume and she just never showed up. I it's it boggles my mind how little gets accomplished there. It's one of those Joel Greenberg no show jobs Yeah, and it's you know again is it because of bias? Is it because of incompetence who knows you can't you were nobody's in the judges head here, but the end result is Continuously frustrating I think but Hey, maybe I don't have perfect vision over it and she's doing all kinds of things

But it's not apparent from what what we're seeing in public. Yeah and and I do want to say looking up the on the docket it seems that there are a couple of notices filed on the Mara logo docket notice notice but I am unable pace or is down I'm unable to see them but we'll go for whatever they are next week. Right. All right. What do we have for listener questions? So listener questions, there were tons of them this week.

It was awesome reading them. Of course, we can only do one or two. I'll give you one here. This one comes to us from Gates, who says, hello, splendidly marvelous hosts whose dulcet tones, grace, our ears, and compatriots in the critical fight to save democracy? I've listened to the pod every Sunday morning when I go for a walk and I finally worked up the courage to ask a question Which I hope will be answered by by your Malif Lewis voices. Oh really laying it on I know I like okay in discussions about the 14 Amendment, the argument has been made that the

president is not an officer of the United States, but the president is the commander-in-chief. Does that contradict the argument that he's not an officer of the United States? Can the role of commander-in-chief be used or pointed to in any way in these 14th Amendment arguments? It's a great question. And we really didn't talk much about the 14th Amendment stuff this week. That's why I picked it. So I think that you are thinking in the right direction. There is no place in the Constitution where it says the president is an officer of the United States.

However, it refers to the office of the presidency at least 25 times. And to be clear, it's not saying the office of the president, like the physical room he sits in, is referring to the office of the presidency. And so you certainly could draw the logical conclusion that makes him an officer. I think a lot of the duties that he has that are specifically given to the president and the Constitution add to that interpretation, Commander Chief Roll certainly. But the where it gets a little bit cranky, and this is why it's a legit Supreme Court constitutional text interpretation issue.

Article 2 Section 2 says the president shall appoint all other officers of the United States. And so to me that you from the plain text that reads like all other officers, that would mean him and all the others. Right. Other means. Yeah. They're all officers.

So I feel like the text supports this interpretation. And then of course, there's the article of the kind of the absurdity, right? The 14th amendment, as we know, now having talked about it a lot, prohibits any and every office, really any office holder in the federal or state government from being filled by an insurrectionist. Any office cannot be filled by an insurrectionist, right? That's the that's the qualitative result of the 14th Amendment, whatever, section three. So to think that the presidency was excluded from that. Like it's, we can't have an off a insurrectionist serve as like Secretary of State of Montana, but it's okay to have one be the President of the United States.

It's preposterous. It is. And I just want to say two things on this one. First of all, talking about his role as commander in chief, does that make him an officer as in like, an officer of the military? And I would say no, because it is specifically important to recognize that the president is the civilian head

of the military. That's a good point. So I, and they did that for very specific reasons, right? So it's not just a all military all the time, like 24 hour military, non-stop military. We have a civilian head commander in chief of the the military so I wouldn't consider him an officer in that respect however and The lawyers for the plaintiffs in Colorado argued this as well

Trump has argued that he is an officer of the United States in court in, in the E. Jean Carroll case, when he was trying to get subbed by the DOJ from Bill Barr under the Westfall Act, because if you're an officer of the United States, the DOJ can represent you. And if the DOJ represents you in a case, it's pretty much over. It's pretty much game over for whoever's suing you. Yeah. So it's balanced to federal court and then it's subject to being thrown out entirely. And so initially, Bill Barr said, yeah, he is an officer of the United States.

And Trump argued, I'm an officer of the United States. I can't, I have, you know, you can't, I need the DOJ to represent me here. And Bill Barr said, yep, you are your an officer of the United States. And then of course, Merrick Garland came in and said, yeah, but nothing that you said was within that perimeter of your job. Right. So, the Westfall Act didn't apply, but not because he wasn't an officer of the United States.

And the fact that Trump has argued he was an officer, kind of like what came up in the DC immunity hearing when there were like, didn't you argue that you were a candidate for office when you intervened in the Texas lawsuit to overturn the election results in several swing states. Didn't you intervene as a candidate for office? Because the argument is he's a candidate for office, not a sitting president. So it doesn't matter if a sitting president has immunity or not, he was a candidate. And that has to do with Judge Lutig's executive vested clause, right?

You're a candidate. The office doesn't care who occupies it. And so he continually argues different positions based on who he's talking to. And this was one of them. So he's argued he was an officer. It'll be interesting to see what the Supreme Court does with that.

Yeah, I think, I mean, I feel like the weight of the evidence is on the side of, yes, of course, he's an officer. I think you make a good point. It's definitely not. He's definitely not a military officer. He's not an officer in the military, but there are many civilian military leaders who are clearly officers of the United States, like the Secretary of State, right? Or anybody who works in the Secretary's office. They're all appointed people. But so I think it'll, I think they'll go that way, but honestly this crew you never know. Right. Yeah, very good point. All right. That is it. We have more questions that we're

going to have to bump to next week because we're already a little bit over our hour here. But you have so many incredible questions. We'll keep them all on the hopper. Thank you for sending them in. If you have one, we've put the link in the show notes there for the form that you can fill out to ask us a question. We really, really appreciate these. They really make us think. And I just have to say of the listeners of this program, how absolutely brilliant you all are for having these incredibly well-thought-out questions. I mean, they're really good. They're great. They're great. And they make me think differently about the show. And it shows us a little bit about what people are really interested in. It just gives us some insight as to what folks are, are how they're thinking about these issues.

And that helps us in deciding how we talk about them. So yeah, good on you and keep them coming. For real. All right, I'm gonna check one more time to see if I won the bet. This is almost getting sad. I am very sad. I like, I'm very competitive. I like to win.

Hunter Biden, nope, Hunter Biden, don't care. Hunter Biden. No offense on turbot. It's not in our jurisdiction. Yeah, nope. We don't have anything. I still have a day. And if we do get a here, if we do get a decision before the end of the week, we'll pop it in this recording.

But as of now, nothing, as of now, Andy is winning the bet. We will see you all next week. Do you have any flash thoughts before we get out here? No, just thinking about there, I'm trying to figure what's the overrunter on how quickly I'll get texted by you if you win. I'm thinking it's like a second and a third. Something like that, it's gonna be very fast.

I'll know immediately if the tide has changed on this bet. Yeah, I'll be like, get your Pete struck voice ready because you about to call in some red states. Oh boy. Oh, I'm going to, I'm totally telling you. All right, everybody. Thank you so much for listening. Thank you to our patrons. We are going to be having an amazing get together. We're going to treat you to dinner and cocktails and mocktails in DC on April 20th. And the RSVPs for that go out on my birthday January 20th at noon, PC3 Eastern, my 50th birthday. We're going to send you

those RSVPs. It's first come first serve because you know, obviously the Fire Marshall has a max cap on how many people we can have in the building. But we urge you to sign up to be a patron if you haven't already. You'll get that invite plus you'll get to support independent journalism and you'll get these episodes early and add free. You just do all that over at patreon.com slash Mueller she wrote.

So thank you. We will see you next week. I've been Allison Gil. Now I'm Annie McKay. BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM BAM