Jack - Episode 60 | Executive Privilege Hands

Episode Date: January 21, 2024

This week, Judge Chutkan rules on Trump’s request to hold Jack Smith in contempt. An appeals court has decided not to hear Trump’s appeal regarding the Twitter warrant.In Florida, there have been multiple filings and rulings, including notice of a motion from Trump challenging CIPA Section 4.Plus, we have some great listener questions and more. 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 MaterialBrady 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%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

MSOW Media I signed an order appointing Jack Smith and those who say Jack is a finesse Mr. Smith is a veteran career prosecutor What law have I grew? The events leading up to and on January 6th classified documents and other presidential records You understand what prison is?

Send me to jail. Welcome to Episode 60 of Jack, the podcast about all things special counsel. It is Sunday, January 21st, 2024, and I'm Andy McCabe. January 21st, 2024. And I'm Andy McCabe. Hey Andy, I'm Allison Gill. Per Euse, we have a jam-packed show today, including Donald Trump's reply in support of his motion to hold Jack Smith in contempt. Remember, because he kept filing stuff on the docket

and handing over discovery while the proceedings are stayed. And Judge Chutkin's ruling on that contempt motion and an appeals court denial in the ongoing appeal of Trump's Twitter account search warrant. And we have a series of filings and rulings in the Mar-a-Lago documents case, including another vague and overly broad motion to compel from Donald Trump. I know you're all shocked. A supplemental classified motion to compel, which has been filed under SEAL, and a motion from Trump to be able to file a redacted version of that same classified motion on the public docket, which of course the government opposes. We also have a notice that Trump filed a challenge to the DOJ's SEPA

section for motion under seal. And I know that's a mouthful, but we're going to break it all down for you. Yep. Bunch of motions. And, uh, Andy, let's start with a motion to compel the court to order Jack Smith to show cause why he shouldn't be held in contempt. Cause this is my favorite thing. Mm hmm.

I want to remind everyone about exactly what Trump was asking for in his original motion because everyone's like, oh, it was kind of a win for Trump and sort of a win for Jack Smith because, you know, Jack Smith won't be in contempt but he can't file stuff on the docket anymore. But he didn't just want to hold Jack Smith in contempt. Listen to this list. He wanted 11 things. He wanted first to require the court to order Jack Smith to show cause why he shouldn't be held in contempt.

And that's the big part of the story. That's what everybody's calling this. But he also asked to dismiss his case, to sanction Jack Smith, to remove Jack Smith from the case, to order Jack Smith to pay Trump some damages, to suspend Jack Smith. Yeah. You want to suspend him, remove him, to draw adverse evidentiary inferences against Jack Smith, to bar Jack Smith from entering evidence because of this, to enter a default judgment in favor of Trump, to require Jack Smith to obtain permission to file pleadings

in the future, and to order Jack Smith to completely withdraw his motion in limine, which is one of the things, I think it's the only thing he filed on the docket. And there was a late developing one in order requiring Jack Smith to mow his lawn and wash his car five times this summer. So that's what Trump was asking for in this motion. The news was making him sound relatively sane, like, oh, he just wants to show cause to hold him in contempt. No, he wanted all that stuff.

I want him ordered to turn over his entire baseball card collection at my house. To flip it and reverse it. Now we know DOJ responded, because we talked about this before, pointing out that before Judge Chuck can even issued her stay order, the government filed a pleading saying, yeah, of course the proceedings should be stayed, but we're going to keep producing discovery and meeting our deadlines voluntarily.

And after that, Judge Chuck can issued the stay order. And in that order, she didn't expressly prohibit the government from filing stuff on the docket. Now, what's new this week is that Trump filed a reply to the DOJ's response. Yes, indeed he did. So Trump opens his response with, having been caught knowingly, repeatedly, and belatedly violating this court's stay order, the special counsel and his assistants, the prosecutors, offer no excuse. Instead, they engage in a failed attempt to rewrite the record, claiming that the stay order prohibits only those actions that require a response from the defendant. Okay, so but next, AG, he actually makes a decent argument. What? Yeah, I know.

I don't think I've ever said that in 60 shows up until this point, but okay, here we are. It's the first time for everything. Hold out hope. Okay, so he says, the prosecutors argue that President Trump is not obligated to review or respond to the prosecutor's filings and discovery and therefore faces no burden. This is false. As an initial matter, President Trump must examine all documents the prosecutor's file in this case when they are filed to determine whether and how he should respond.

And Allison, that's because there are actually things that are not stayed, which we've gone over in previous episodes, including gag order violations and bail conditions, violations of bail conditions. So Judge Chutkin still has jurisdiction over those. And if any of the government's filings are relevant to things like that, well, then Trump would have to review the filings to make sure he doesn't have to respond. It's a little bit of nitpicking, but it is a good point. And, you know, as we know,

nitpicking is what lawyers do. And I think in this case, they've picked a nit that actually exists. I also suspect it'll come up in Judge Chutkin's ruling on this motion. Now, the rest of the arguments are, as you would expect, they include, quote, as the prosecutors are fully aware

and no doubt intend, their filing of politically charged invective, such as the recently filed motion in Lemonay, induces substantial negative media coverage against President Trump, burdening him with both personally by falsely impugning his character and professionally by undermining his leading campaign for the 2024 presidential election. Worse, the prosecutors publicize their untruthful arguments knowing that any press coverage will be entirely one-sided without President Trump's substantive responses. Okay. He goes on to say, although the prosecutors generically deny a political motivation, such words are empty. The prosecutor's filings, including the motion in Lemonade, closely mirror the Biden campaign's dishonest talking

points, a fact that the prosecutors do not and cannot deny. Wow. Andy, I find it rather hilarious that Trump is complaining about vindictive political misives in government court filings while making politically charged invectives like he's mirroring the Biden campaign's dishonest talking points. Yes. I can't believe he's being political and speaking of political. I'm the best political. I'm tremendous.

Yeah. Don't get caught up in the hypocrisy. I mean, if you do, you'll be caught up forever. So, you know, in the other thing... And he was making such a good point before that. I know. And then he tubes it right over the cliff with more of this totally kind of legally irrelevant ranting. But, you know, just to be clear, judges typically don't get involved in how press coverage of a legal proceeding affects the litigants, right? I mean, they'll make the big decision at the front end

about whether cameras can come into the courtroom or unsealing court records, things like that. And then they just step back and let the press do their thing. Their job is not to protect a defendant from the possibility of a bad reputation, which is what Trump has stumbled right into having been indicted 94 times. So, you know, it's going to happen, DJ. It's, it's going to happen. You embarrass yourself.

That's right. That's right. So Judge Chuckin has issued a ruling. Let's go over what she has to say, shall we? She opens up with, defendant Donald J. Trump has filed a motion for order to show cause why prosecutors should not be held in contempt. He contends that the government has violated a court order by continuing to produce discovery and by filing a motion in limine while the deadlines in this case are stayed. And then after that, she lists all the other 10 things I told you about that Trump wants.

She quotes it right from the thing. And then in the discussion section, she says, the state order did not clearly and unambiguously prohibit the government's actions, the actions to which the defendant objects. She said, I didn't prohibit it Staying the deadline for a filing is not the same thing as affirmatively prohibiting it Oh The basic function of the deadline. I know the basic function of a deadline is not to authorize a filing But to time limit it Correspondingly the lifting of a deadline removes that time limit, but does not bar the filing, at least

not necessarily. On its own terms then, the state order's key operative sentence did not bar the government from voluntary rather than obligatory compliance with the pretrial order's now-stayed deadlines. So basically, government didn't do anything wrong here. Yeah. And I think she's also like, I don't know whether it's her or her crack staff of legal assistance, but her writing is always so clear. She makes a point and it rings in your head like, oh my God, that's so obvious. Yeah. It's something I didn't think of.

Yeah. That the function of a deadline isn't to authorize your filing, but to put a time limit on it. And it was like when she came out and talked about the, you know, the logical fallacy of his double jeopardy claim. Yes. Yes. You know, the antecedent, right? Yeah. And I was like, Oh, yeah, thank you for pointing out the app. She's so good at that. Really impressive. She goes on to say, or her crack staff, the rest of the stay order did not unambiguously forbid the government's actions either.

Defendant claims it contained an explicit holding that additional discovery and briefing would violate it. That's incorrect. Trump, you're not, you're wrong. The stay order reasoned that requiring additional discovery or briefing would advance the case toward trial or impose burdens of litigation on the defendant. But neither the court nor the government has imposed any such requirement.

And as defendant acknowledges, Trump said himself, he has consistent with his rights under the stay order refused to accept or substantively respond to the government's actions. Right? Yeah. I mean, to me, as I was reading this thing, I'm thinking like, what she's basically saying here is the stay does not entitle the defendant to occupy some headspace or fantasy world in which he can pretend he's not a defendant in a criminal case. Right?

It just means that some things, most things can't continue, but the case is still there, buddy. It's still hovering out over you, ruining your reputation. Yep. And she says moreover, by the way, the government's productions and filings have been mostly compatible with the stay order's broader purpose, which is to relieve the defendant from burdens of preparing for trial and other pretrial litigation.

The court cannot conclude that merely receiving discovery or an exhibit list constitutes a meaningful burden. You didn't prove your case. That's right. And here's where we get to the part where she agrees with Trump a little. She says, the same is largely but not completely true for the motion in limine. Diligent Defense Council would need to conduct a preliminary review of each substantive motion

the government files so that they can know whether they need to take further action. While that is not a major burden because you know Trump was like, it is the end of my life to have to... I can't possibly pay them one more dime. She says, while it's not a major burden, it is a cognizable one. So accordingly, the court will adopt Trump's recommendation that the parties be forbidden from filing any further substantive pretrial motions without first seeking leave from the court, which means you've got to get permission first.

Correct. So what she's saying here is she agrees that, at least for the motion in limine, Trump's lawyers would have to open it and review it and make sure it doesn't contain anything that he has to respond to or that's still within her jurisdiction. So she grants in part and denies in part his motion, meaning she denies his request to hold him in contempt, dismiss the case, enter a summary judgment, withdraw the motion in

Liminay, order the government to pay Trump money for his troubles, suspend Jack Smith, remove sanctioned Jack Smith, draw in v. evidentiary interference, and bar Jack Smith, remove, sanction Jack Smith, draw inverse evidentiary interference, and bar Jack Smith from entering evidence. She denied all that, but she granted the part where both parties need to ask permission to file anything. And what's funny is that doesn't even bar Jack Smith from filing anything. It just means he would need to get permission first to do so. Exactly.

In the futures. So, if we had to quantify this, 92% win for Jack Smith, 8% win for Donald Trump. Yeah. I mean, I think that's fair, right? It's, you know, it's crazy that we are so far down in the weeds on this thing during the period where the entire thing is supposed to be stayed. He has moved this issue forward requiring lawyering and burdens from both sides in his objection to their requiring levying burdens on him. It's just like, it's just crossfire and it accomplishes nothing. But here we are. I think, I think her, you know, she definitely split the baby on this one

in a very reasonable way. Yeah. He certainly can't complain about it. I don't know. He will. You know, I, if I were Jack Smith, I might be tempted to send him one piece of discovery every day to just keep filling up that inbox with a steady drip, drip, like water torture. But I don't know. Or the next time something is due, I assume he would just file notice with the court for permission, for leave to file a substantive motion and then see how she rules on it. You know, and in that request, you know, in that request for leave, request for permission, he would say, Trump doesn't have to open it.

He doesn't have to respond. There's zero burden on Trump, but I want to get it in. You know? Yeah, if it was something he felt strongly about, you could definitely do that. He's not going to want to do that on anything that he thinks the judge might go the other way on, because it's kind of like a brush back, but

something important came up. I have no doubt they would try. Yeah. We'll see what happens. We'll obviously keep following this. As we don't yet have, and I'm checking right now, I'm checking Pacer, we don't yet have the immunity decision from the DC Circuit Court. But we do have a lot of other stuff to cover today.

So we'll do that, but we have to take a quick break. Everybody stick around. We'll be right back. All right, everybody, welcome back. This is where the DC Circuit Court's ruling on immunity was going to go. This block was going to be dedicated to this. So I've lost like two bets, one with myself and one with you, Ante, because... It's not your week for bets.

I left space in this script for that, but we have so much to cover that fortunately we definitely have a lot to talk about. But if we do get that ruling in enough time before this episode airs, you'll hear that now. Okay, now if you didn't hear anything about the immunity ruling, let's get back to what we were going to discuss and that's what happened in another case in the DC Circuit Court of Appeals that they were considering this week and gave a ruling on. This was the search of information stored at the premises controlled by Twitter on a petition for re-hearing on Bonk, right? Yes. Yes. So there's a lot of history behind this one. You'll remember that almost a year ago, Jack Smith and Twitter were locked in a battle over records obtained in a search of Donald Trump's Twitter account.

So Jack Smith was looking for all kinds of information that we've gone over in previous episodes, including but not limited to Trump's phone location while tweeting, info about who was signed into his account, and when, info about private direct messages, search history, everyone who liked and shared his tweets, the tweets that he liked and shared, just volumes of stuff, tons of stuff pursuant to a court authorized search warrant. We've seen that information come up in court filings and in reporting from ABC News that it was Trump that tweeted the infamous Pence didn't have the courage tweet on January 6th, and also that he did not send a tweet telling everyone to go home or to be peaceful. That, of course, was Dan Scavino. Now, both of these things we would

not know without the information about who was signed into the account and where the phone was located when the tweets went out. We also got a filing from Jack Smith about expert witnesses that will testify about how that Twitter data was used. Now you'll recall that the search warrant also had a nondisclosure order that prohibited Twitter from informing Trump about the warrant. Twitter filed a motion to fight the NDO because they wanted to be able to tell Donald Trump about the search warrant and also to block some of the data from being sent. But they lost those motions and Jack Smith got all the Twitter data he was seeking sometime around February of last year. Now Twitter lost their bid to stay the case, but the appeal of that

decision continued. And that's basically where we are today. The DC Circuit Court denied Twitter's appeal and Twitter filed a petition to have their case heard on Bonk. That's of course with the entire court, right? Initially, if they take your case, you get a three-judge panel, and if you don't like the decision that they make, you can ask for a re-hearing of the same issue before the entire panel. It's like 12 or 13 judges in the DC Circuit. They did that here. This latest ruling is the denial of the en banc re hearing. Um, the DC circuit says quote upon consideration of appellant petition for re hearing on bank, the response there to the amicus cura brief filed by the electronic frontier foundation in support of a re hearing on bank and the absence

of a request by any member of the court for a vote. It is ordered that the petition be denied. It was really interesting to me because I just assumed that every time someone requested an on-bond re-hearing, there would automatically be a vote and then you have to have a majority of the judges say, yes, we wanna hear it. But from this-

No, I guess they have to vote on a vote. Yeah, somebody's gotta ask for a vote. And in this case, no one even asked, which is amazing, especially considering what happened next. Which is that- Right, it seems weird. Like if Raoul wanted to pop off- Right, right.

Seems like she would have voted for, at least asked for a vote on a re-hearing. Maybe she knew, she's sounding more and more like Congress. Maybe she knew she couldn't get it on the floor or something. So she didn't ask. But so conservative member of the court, Naomi Rau, who is a Trump appointee, she had something to say. And the other conservative justices joined her.

So, I quote, a statement by Circuit Judge Rau, joined by Circuit Judges Henderson, joined by Circuit judges Henderson, Katzis and Walker, respecting the denial of the petition for re-hearing on Bonk is attached. Yep, so they're like, we agree, no re-hearing, but I got something I wanna say. Yeah, I've just gotta air this out a little bit. Strange.

Yeah, and she writes, Rao writes, this case turned on the First Amendment rights of a social media company, but looming in the background are consequential and novel questions about the executive privilege and the balance of power between the President, Congress, and the courts. Seeking access to former President Donald Trump's Twitter account, Special Counsel Jack Smith directed a search warrant at Twitter and obtained a nondisclosure order that prevented Twitter from informing Trump about the search. The special counsel's approach obscured and bypassed any assertion of executive privilege and dodged the careful balance Congress struck in the Presidential Records Act. The district court and this court permitted this arrangement without any consideration

of the consequential executive privilege issues raised by this unprecedented search. Once informed of the search, President Trump could have intervened to protect claims of executive privilege but did not. And so those issues are not properly before the en banc court. They aren't properly before you either, Naomi Rao. Yeah, they're not before you at all. Like I honestly, that should be the end of it, Andy, but Rao wants to keep talking about it. It's like she decided to write an opinion piece of the Wall Street Journal or something

about it. I mean... Yeah, you know those memes where it's like, nobody, absolutely nobody. Naomi Rao. Well, nonetheless, executive privilege. This is like a textbook example of that. And she goes on to say, nonetheless, executive privilege is vital to the energetic and independent exercise of the president's Article II authority

and to the separation of powers. While the privilege may yield to the needs of a criminal investigation, they do. In making this determination, the Supreme Court and this circuit have always carefully balanced executive privilege against other constitutional interests. By contrast, the court here permitted a special prosecutor to avoid even the assertion of executive privilege by allowing a warrant for presidential communications from a third party and then imposing a nondisclosure order.

Because these issues are likely to recur, I write separately to explain how the decisions in this case break with longstanding precedent and gut the constitutional protections for the executive privilege, which is weird because he had a chance to exert it and he did not. And also, because these issues are likely to recur? Yeah, I mean, when again, are we going to have a 2703 search warrant executed on a president's Twitter account because he tried to overthrow the government? Or is she talking about how he's such a one man crime factory that we might face this again in the future just with him in these matters? I

don't understand the she's saying. That's the only way that I can imagine it actually because, you know, I mean, I know your original comment was there's some humor in it, but it's true. This thing that she's pointing to can only come up in the context of a criminal investigation. We're not talking about a congressional request in the course of some congressional investigation. They ask Twitter, can we have all this information? No, they wouldn't have gotten it. You need to be in the context of a criminal investigation with a grand jury to get in front of a judge to make the request for a search warrant, to have that warrant signed by a federal judge.

And it has to be a president because we're talking about separation of powers. It can't just be like, we want Bob's Twitter info. It has to be. It's executive privilege. It's the only person on earth who can assert it. Now, as a kind of academic issue, she's right. It is a little bit weird because what the government asked for here, if a president, any president, former president was aware of the request, they could make a legitimate executive privilege opposition.

It could very well be sustained because what you're talking about could go right at private conversations between the president and his closest advisors regarding presidential business. That's like the very heart of what's protected by executive privilege. There's a question about, anytime you're talking about executive privilege, usually the specter that looms over it is the separation of powers. It usually comes up in the context of Congress asking for information that the executive doesn't want to turn over. And the court is very careful about protecting those separation of powers distinctions. But in this case, the weird thing is that none of this, and courts don't usually opine on things that are not before them.

And none of this is before the DC circuit. And she's kind of like, you know, she's kind of like angry that it's not before them. Well, it's not. No, no. And when Trump did find out, he didn't try to exert executive privilege over those communications. So he had a chance. Albeit probably not right at the beginning because there was a non-disclosure order. But the fact that there was a non-disclosure order on a search warrant for President's

private communications, that I think is what she has an issue with, even though it's not before her. Yeah. Like he didn't have the opportunity to raise what could have been an important and relevant executive privilege issue because we kept him from knowing about that by upholding the non-disclosure.

It's a little bit strange. The other thing that was interesting to me here is one of her co-signers was Henderson, right? Who is also on the panel of the hearing the immunity issue. But her questions, if I remember correctly, in that hearing were pretty strong. So I don't know that it's any indication of how she's going to go on that. Yeah.

And yeah, she really was... She had a lot to say about jurisdiction. I feel like she thought that the DC circuit does have jurisdiction in the immunity matter. While it seemed like maybe Pan didn't think she thought it was an easy question that Midland asphalt would preclude them from right hearing immunity. And I just did a full article on post postnews, I guess, is what it is about that because, you know, I like to try to guess what's going to be in their ruling. I lost the bet, right? I thought it was going to come out last week and you're like, no, probably next week. And here we are, Friday in the afternoon.

We still don't have it. It's been what, 10 days or something. And I was like, what could possibly be taking so long? And I have some theories about it. But, and honestly, it's not taking that long. I mean, to expect a court to come back in 10 days with a ruling on something so difficult is super, super fast.

But I expected it to be faster because of the urgency of the case. But yeah, I think that they're weighing the jurisdiction question and maybe they're coming up with a hypothetical jurisdiction so that they can get to the merits under the hypothetical jurisdiction doctrine. And we're going to do, I was all prepared to talk about it today with you, Andy, but I lost the bet. Well, it lingers, right? It's going to we're gonna get it at one point and I also feel like they're taking It's just a little bit of time. It's still very fast if they come out with the thing in another week

It's still pretty fast but I think they're trying to be careful to put it out not just as a Denied but as a very complete solidly researched, well-articulated argument. And by doing so, you have a much greater likelihood that the Supreme Court will not pick up the case if asked. Right. And that they, an en banc re-hearing will be denied much as it was here in this case, although Naomi Rao and we'll probably come out and do a song and dance anyway. We'll see.

With her jazz hands, with her executive privilege hands. That's a new thing. Nice. Executive privilege hands. Are they fists? Yeah, you shake your fist, yelling at the clouds. All right, that is the Twitter denial, her re-hearing on-bonk at the DC circuit court. We do have a lot more to get to, lots of stuff going on down in Florida, but we need to take

another quick break. So everybody stick around, we'll be right back. Welcome back. Okay, it's time to head down to Florida. First up, Judge Cannon has ruled. Yes, I said that. Judge Cannon has ruled. She issued a decision on something. She's ruling. Oh my gosh. Well, kind of. Yeah. She's issued a ruling on Jack Smith's motion to require Donald Trump to notify the court of his intent to use an advice of counsel defense. Now you're going to remember that Jack Smith filed the same motion in D.C. and there Judge Chutkin granted it, ordering Trump to notify the court of an advice of counsel defense by January 18th. Of course, since the trial has stayed,

Trump will get a new deadline once the immunity issue is resolved. So let's refresh this issue a little bit. Jack Smith's reasoning for getting notice of Trump's intent to use an advice of counsel defense. Well, first, I guess, what is an advice of counsel defense? That's basically when you come in your defense, you've been charged with some criminal conduct and you come in and say, well, my lawyer told me it was okay. Therefore, I couldn't possibly have had the requisite mental intent to violate the law because my lawyer said it was okay.

Therefore, I thought it was not illegal. That's basically what it was okay. Therefore, I thought it was, you know, not illegal. That's basically what it would be. Now, if you make an advice of counsel defense, you have to, or you do, also wave your attorney client privilege with respect to anything you told your attorney and he or she told you. That sounds a little bit weird, but it makes sense, right? If your defense is, well, my attorney told me this was okay,

then it makes sense that the court needs now some evidence that that actually happened. What did your attorney actually tell you? So if Trump is gonna make that defense, well then Jack Smith would need time to get his hands on all those previously privileged communications from Trump, and then they would need to do some follow-up investigation, interview the lawyer,

interview other people who might be witnesses to these communications, things like that, then he would be required. Or they could find an email where they said, hey, we killed a guy on the way and buried the body over here, and oh well, now we have to investigate that. Yeah, exactly.

Whatever pops up. Anything that springs from that is fair game. Then, of course, after those investigations are done, anything that he's found might be discoverable. So he didn't then have to provide discovery to Trump, along with any new witnesses that he would want to bring in to refute the defense. So there's all kinds of ways that just asserting this defense could really stretch things out

and put everybody to a lot of extra work. Yeah, and that's why I think he was asking for a 60-day notice in this particular case. Yeah, and of course, he made the point that it's not a secret that Trump might be considering using such a defense because his lawyers basically told everyone on television that multiple times that he intends to use that defense. So he's not making this up. It seems he's not intruding on Trump's ability to consider what defenses he's going to raise and can make that those decisions

in private. He's already made them publicly. So that was basically why Smith filed that motion. So anyway, Judge Chotkin, she granted Smith's motion in DC, but Roll the dice. Florida. Roll. Denied. Denied. Straight up denied. Okay, I quote from the order. Paperless order. Denying without prejudice, special counsel's motion to compel disclosure regarding advice of counsel defense. The court has reviewed the motion, the defendant's opposition, the special counsel reply, and is fully advised

on the premise. Assuming the facts and circumstances in this case warrant an order compelling disclosure of an advice of counsel trial defense, the court determines that such a request is not amenable to proper consideration at this juncture prior to at least partial resolution of pretrial motions, transmission to defendants of the special counsel exhibits and witness lists and other disclosures as may become necessary. Special counsel's motion is therefore denied

without prejudice. So she's basically saying it's not proper to make that motion now because there's still a lot of things that the prosecutors have to turn over to the defendant. And presumably she's reasoning, we don't know this because she didn't state her reasons, but she's reasoning that Trump wouldn't be able to make a decision about actually wanting to use that defense until after he gets this stuff from across the country.

But he has all the stuff. I've read, we've read, we've gone over the discovery productions and speedy trial reports and they have everything, they have everything. You know, I can't explain it. Well, you don't have to. Everyone knows what's going on here. She's delaying it, she's putting it off.

She does absolutely the least amount, humanly possible at any juncture. She's the path of least, you've heard of the path of the least resistance. She's the path of least judgment. She's just not gonna put her neck out on this case in any way whatsoever if she doesn't absolutely have to. And that approach is what's going to drag this trial into 2025.

Yeah. She's the queen of procrastinating, legally procrastinating. Yeah. And I mean, what was funny was in DC, in the Judge Chuckin DC case, Trump opposed the motion kind of. You remember, we talked about it. He was like, you can't make me, it's unconstitutional, but maybe I could do January. That's right. Because Jack Smith won a December 18th. But his argument went from it's unconstitutional to that's too fast to maybe January so I can't possibly do this art. I'll go halfway. Oh and by the way, that was all in one filing Yeah, in the alternative Yeah, yeah, and he didn't even do it like the way that it should be done

Which is I think this is unconstitutional and should be completely denied, but if you're going to grant it, I need more time. He didn't even do that. It was just this weird meandering movement of goalposts. And so she granted a January 18th. But like you said, it's still stayed. And so that will be pushed back to a future date. Yep. All right. So next up in Florida, Trump has filed a mirror motion to compel discovery. You'll remember we went over his motion to compel in DC, where he wanted everything, all the records

from all the agencies ever that existed and all of the classified documents and materials underlying the, what's it called, the ICA, the Intelligence Community Assessment of Russia. Yeah, I want everything from everyone all the time. And if anyone ever uttered a word that I might be innocent, you're gonna have to send that to me too, right? So it was just this big broad thing. That's also where he declared that it was Russia that interfered in the

elections and it was Russia that made the mob on January 6th angry, not me, it was Russia. Right after wrong election, but anyway, I digress. Yeah, I'm sure that doesn't hit weird for you. No, not at all. So motion to compel discovery, you're asking the court to enforce a request for information relevant to the case.

Documents, interviews, transcripts. It's gonna be something like, let's say the government in a corruption trial says, you told our cooperating witness you wanted $100,000 and we have it on audio tape and they've only provided you just that clip of the tape. You would go back as the defendant and say, we file a motion to compel the government to turn over the entire tape because we want to hear the whole conversation. That sort of thing. It's a legitimate request, but not in a way that we've seen it here.

Yeah. And it has to be specific. And the defendant has to know it exists. And you haven't received it yet from the prosecution. The materials can be braiding materials, which are records that could exculpate or show the defendant is not guilty. They could be giglio, which helps the defendant impeach witnesses against him, or Jank's material, which is government witnesses prior statements that the government has to produce, basically

anything the defense needs before trial. Here's what he says, President Donald J. Trump respectfully submits, I like the respectfully part, this memorandum in the accompanying classified supplement, he filed an accompanying classified supplement under SEAL in support of defendants' motions for an order regarding the scope of the prosecution team and to compel the special counsel's office to produce certain discoverable materials. Now, Trump raised the scope of the prosecution team in D.C. as well. In that case, Jack Smith responded.

Now, Jack Smith hasn't responded to what we're talking about here yet, the Florida one, this motion to compel, but he did respond to his motion to compel in DC. And in that motion, Jack Smith said, the government's Brady and Rule 16 obligations extend to all material in the possession, custody, or control of the prosecution team, which includes only the prosecution itself and those entities that are, quote, closely aligned with the prosecution. Correct.

That's from US v. Brooks. The closely aligned with the prosecution inquiry is fact-intensive and must be resolved on a case-by-case basis. It's limited to entities that have significantly cooperated with and provided substantial information to the government's investigation. Only where such a relationship exists and the government has access to the documents,

will courts in this district consider whether the government should be required to obtain documents that meet the materiality requirements. So he says a lot there, but basically what he's saying is the prosecution team can't be every agency in the executive branch. You can only ask us for stuff we have from agencies that are us and those that we closely aligned with the prosecution. And those have to be considered on a case by case basis. That's exactly right.

They're not responsible for every document across the entirety of the United States government. They don't have to search all these holdings for all this vaguely described stuff. They are obligated to disclose things that are in their possession and custody. And when they're talking about related entities, that's like if a case was worked on a task force, like let's say the Joint Terrorism Task Force brings a case against an accused terrorist. And the two case agents are, one's an FBI agent and one is a DEA agent. So they're going to have to turn over any relevant documents that are in the custody

of the DEA because they were a partner on that case. But they don't have to go out and start knocking on the door at the Environmental Protection Agency and asking if they have any negative comments about Donald Trump. That's not part of your discovery obligation. Yeah. And Jack Smith says that. And again, when I'm quoting Jack Smith, I'm quoting from his reply to Trump's motion to compelling DC, because we don't yet have his response to this Florida one.

But I imagine it's going to be largely the same. But Jack Smith set up in DC to require the government to search the files of every agency in the executive branch would not only wreak havoc, but would give the defense access to information not readily available to the prosecution because he cannot satisfy the relevant test. The defendant invents his own standard, misapplies district case law, and contorts facts to his liking. Now, keep in mind the cases that are cited in the DC district

are going to be different than the cases cited in the 11th district, which is down in Florida. Basically, Donald wanted all kinds of vague documents, documents that didn't exist, like the missing January 6th committee documents, and documents from pretty much every agency in the executive branch. Not to mention a bunch of stuff that's classified and the Department of Justice's prosecution team does not possess or even have access to.

And as Jack Smith wrote in his response to Trump's similar motion in DC, the defendant's view of discovery is untethered to any statute, rule, or case, and lacks both specificity and justification. Those two things are very important, specificity and justification. The information he seeks is not in the government's possession, and in many cases doesn't appear to exist. And in any event, it's not discoverable,

pursuant to Brady, federal rule of criminal procedure 16, or any other authority. So the filing in Florida from Trump is no different. Trump's lawyers write, these issues are central to the instant motion because the Special Counsel's Office is seeking to avert its eyes from exculpatory discoverable evidence in the hands of other senior officials at the White House, the Department of Justice and the FBI, who provided guidance and assistance as this lawless mission proceeded, and the agencies that supported the flawed investigation

from its inception, like NARA, the National Archives, the officer of the Director of National Intelligence, ODNI, and other politically charged components of the intelligence community. Even the Department of Energy, Andy, as Trump mentions in here. And accordingly, for the reasons set forth below, the court should conduct fact finding on any disputed facts relating to the scope of the prosecution team, enter an order resolving the party's dispute on that issue, and order special counsel's office to produce the requested

discovery. So he not only wants everything under the sun, he wants Judge Cannon to conduct a fact finding so that they can settle their argument about what the prosecution team is, which is developed law. It's so typical though. What he wants is to create another whole subcategory of litigation that has to be fought through and objected to and appealed from to further delay this already delayed process. That's what all of this is about.

Those lawyers know that this is nonsense, but it's another motion which requires more response and then goes into the black hole of judicial consideration by Judge Cannon. They'll sit there for months before you ever get a ruling. Then maybe you can appeal it, and who knows? Maybe you can argue for it, and a locket or appeal to slow things down, or if she actually grants it. Now, you've created like, it's almost like a separate SEPA-like process to determine discovery demands.

I mean, it's absurd. A mini-trial, they call them mini-trials, right? Yeah, no cases would ever be concluded if you ran them in this way. You just can't. Yeah, and Trump even says in this motion to compel in Florida, the Florida one, no defendant is required to predict every form of exculpatory discoverable evidence that exists. He's admitting, I don't know specifically what's missing. I'm not a mind reader. He's saying that because he doesn't know of anything specific. And he's saying Judge Cannon should just order the DOJ to

produce these ghost documents that exist in Trump's mind that will totally exonerate him, I guess. Yeah. But like I said, you have to be specific. It has to be material. You can't add a bunch of executive branch agencies to the prosecution team because you want all their stuff. If DOJ has seen, possesses, or knows about any document or material that would help your

case or help you impeach a witness, they'll hand it over. They have to. Yeah. And besides, Jack Smith said in DC, even if the defendant could prove that the scope of the prosecution team was boundless, he's not entitled to discovery unless he can meet a burden of showing materiality. So there's that whole second layer of materiality. So Andy, like I said, I imagine DOJ's response to Trump's motion to compel in Florida will be very much like his response to the one in D.C. It'll just have different case citations because it's a different circuit, different district. I think that's exactly right.

The argument is the same. We have thresholds like materiality and relevance for exactly this purpose, to make sure that defendants can't just attack the prosecution with irrelevant nonsense as a means of slowing things down. Before it qualifies as an enforceable discovery demand, you have to meet these now, I mean, it was pretty predictable how Judge Chut can handle it. I'm hoping it's not predictable how a judge, you know, can and will handle. I'm hoping she'll actually toe the line here. It's not a hard issue, really isn't. But here we are, and who knows what's going to happen.

Yeah, do not know, but we've got some other filings down there. We do. We do. So next up, we have a series of filings which kicks off with Trump filing a motion for permission to file a redacted brief. OK, so along with the motion to compel we just discussed, Trump filed exhibits under seal because they include discovery

material. Because you can't file Discovery publicly without permission from the court. You can't just take things that you got from the prosecutors and discovery and start Throwing it out to the general public So Trump is asking to unseal these exhibits in support of his motion to compel Per the rules of court Trump has to ask what the government's position is, and the government, of course, has one.

They said, quote, because the government learned today of the defense's intention to seek permission to unseal these documents, the government does not know exactly what they are and can't take a position. Once the government has reviewed the materials, the defense seeks permission to unseal, we will respond to the motion to unseal by January 18, 2024. Then on January 18, the government filed its response, saying basically they agree with the idea of transparency, but oppose in part because unsealing these documents would expose Trump's legal distortionsions and they oppose revealing the identity of government witnesses or other discreet sensitive information such as one exhibit that

includes uncharged conduct of one or more individuals. The government says, quote, the government has no objection to the public filing of defendants brief and exhibits beyond these limited terms. For the above reasons, the government requests that the court deny the has no objection to the public filing of defendants' briefs and exhibits beyond these limited terms. For the above reasons, the government requests that the court deny the defendant's request to unseal the information and materials described in sealed attachments A and B and direct that they remain subject to the protective order. So again, we, of course, will let you know what Judge Cannon decides. It seems pretty straightforward. And I really feel like the government kind of went out of their

way to go, you know, to kind of not just, you know, oppose the entire thing, you know, taking a very absolutist position that they're trying to be reasonable here. Hopefully that kind of shows the bright and shining path that she should follow in her order, but who's to say? Yeah, it seems like hand-holding, like, hey, Judge Cannon, we're cool with these exhibits, but not A and B because they contain these things that you can't put on the thing. Yeah, exposing uncharged criminal conduct by other, you know, against other people. That's like defamatory to these other people who haven't been charged with anything or exposing

the identity of government witnesses before the trial. Like those are very routine things that prosecutors go out of the way and courts go out of their way to protect. They certainly seems like they should be protected in the context of this kind of goofy motion. Yeah, seems like it to me as well. And we'll let you know when and if she makes a ruling. Yeah. All right, we have one more story. And of course, listener questions to get to.

We're going to take one more quick break and be right back. Everybody stick around. Boom, boom, boom, ba-da-da-da-da-da-da-da-da. Ba-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da-da- Hey everybody, welcome back. Andy, I wanted to bring up a quick story about Jeffrey Clark's disbarment proceedings. And this is coming from Kyle Cheney and Josh Gerstein at Politico, who picked up on this story. And I want to bring it up because it could be Jack Smith adjacent in the DC prosecution. They write, Donald Trump has injected himself into disbarment proceedings against Jeffrey Clark, raising the specter that the former president will attempt to assert executive

privilege to block crucial testimony from senior administration officials or force months of litigation on the matter. In a letter to Clark dated January 12, Trump attorney Todd Blanche urged Clark to ensure that neither he nor other witnesses talk about confidential conversations they had while Trump was in office. Those conversations could be covered by Trump's executive privilege and other related privileges, including law enforcement privilege, attorney client privilege, and deliberative process privilege. Now, the Biden administration authorized Clark and other DOJ officials in July to discuss, that was July 2021, to disclose details of their confidential discussions with Trump. Now, Trump's lawyers at the time opted not to fight the decision,

but indicated that they could later. They wanted to reserve their right to bring it up in the future. And now they're doing that. He wants to bar the testimony of Rosen and Donahue, two of the DOJ officials, that we're going to resign if Clark was made Attorney General. And Pat Philbin, those are three key witnesses in Clark's disbarment proceeding. So I thought that that was interesting because as you and I both know, anything that they testify about in a disbarment proceeding can be picked up and used by anyone else who's

conducting a criminal investigation into similar behavior. Yeah. No question. Like, don't misinterpret this. I know you're not. But don't misinterpret this as some kind of effort to help Jeff Clark. It's not at all. This is entirely defensive. Trump's lawyers don't want these witnesses who've already made all kinds of statements under oath that are not good for Trump in terms of the cases that he's

facing. They don't want them doing it again. So this is an effort to quietly shut these people up and at least bog down this testimony and this litigation around Clark's license, slow it down to try to avoid getting additional unfavorable statements by very solid witnesses on the record that could then be used as evidence in his criminal trials. That's how I see it. Yeah, and this was kind of positioned as Trump is going to bat for Jeffrey Clark, but I don't really see it that way. Trump's going to bat for himself here. Who does Trump go to bat for other than Trump? Come on. Yeah, no, no, no. That's never happening. This is, I think, this is a little bit of like defensive criminal litigation. We got to stop the bleeding here of high-profile people who have and will likely continue to

say bad things that are bad for us before these things go to trial. Yeah. And of course, on the seems too late question, right? Like, I mean, he is threatening litigation. So if somebody wanted to argue to get the testimony of these three guys by saying it's too late for you to do this now, that could still be litigated all the way up to the Supreme Court and back down and again, put it off for months. So that's the threat here. I'm exerting executive privilege or we're going to litigate this for months. So that's the threat here. I'm exerting executive privilege or we're gonna

litigate this for months, basically. Exactly. That's the delay game. All right. So what do we have? Yeah, that's, I mean, that's all he's got. Sure. All right. And he, although he was right on the, the limited filing of stuff on the DC docket, while the thing is stayed, he was right there. There you go. So anyway, we want to get to some listener questions now

If you have any listener questions, we have a link in the show notes for you to click on and you can send your questions into us What do we have today? Well, we got two today The first one is from Jeff in the UK and I picked this one because it's really kind of emblematic of what a bunch of the questions We're getting at this week. So Jeff says, question for the podcast for Allison and Andy. Given Canon's latest, which appears to push the secret documents case to 2025, what option does DOJ have to escalate to the appeals court or is it only impeachment that's available to remove her?

To remove her. Yeah. Could speedy trial legislation be the basis of an appeal? Is it only impeachment that's available to remove her? Yeah. Could speedy trial legislation be the basis of an appeal? The short answer is no. There's no options here. There's really not a consistent... Not yet anyway. Right. There's not a consistent or reliable way to have a judge removed, unless you have some absolutely explicit evidence of wrongdoing on the judge's part.

Like if you had evidence that the judge took money from the defendant to throw a case or something, that would be very different. But that is not the case here. You know, we have all kinds of complaints about Judge Cannon. And even with our frequent complaints, it's almost impossible to identify what her motivation is, whether it's just kind of fear of the process and the criticism, or the lack of sophistication, lack of experience, or if she's actually harbored some sort of bias. So there's really not much they can do.

You can't go to a higher court and just complain, help us help us. The judge in our, who's presiding over our cases too slow or we don't like her. That's pretty much doesn't get you anywhere. And the speedy trial right is something that the defendant can use against the prosecution to make things go quicker, which is something that rational and normal defendants do in criminal cases all the time. You're not seeing you're not going to ever see that in these criminal cases because that's not what Trump wants. But the government can't really hold the speedy trial right against the defendant.

Yeah. And the speedy trial clock is told right now. I mean, only a limited amount of days has passed on the speedy trial clock. We aren't anywhere close to it. According to that clock, the case is only like three days old, something like that. Yeah. But if we do get close to it, then of course, you know, they can file notice with this judge about it. Hey, we're getting up on the speedy trial times. There are automatically appealable issues to a higher court if she does something way out of bounds, like you said, like let's say she wants to give Donald Trump permission to file a bunch of classified documents publicly or, you know, like let's say she wants to give Donald Trump permission to file a bunch of classified documents publicly or something that violates SIPA.

Because if you violate SIPA rules, if a court does something that violates the rules, protecting classified information, then that's automatically expedited appeal to the next court up. But again, that doesn't necessarily pull her off the case. Although they can ask, they can ask, but I don't think they will unless she does something truly egregious. And if she does something that's against SIPA protocol, I imagine they'll appeal it and get a ruling and just keep going. Yeah. The appellate process is really the purpose is to rectify a mistake in judgment, right? A reversible error. Reversible error in legal judgment.

I don't like the way the judge decided the facts, but more I don't like the way the judge decided this question of law. And so the issue would go up, it would maybe get turned around. Just the process of getting reversed on appeal is super embarrassing to judges, and that alone is enough to kind of like knock some common sense into judges' heads and get them to move the thing forward. But it doesn't ever really ever resolve and, you know, resolve in having a judge removed. Yeah.

All right. Next question, ready for number two? Yep. All right. This one comes to us from Robin W. and Michigan. And Robin says, hi, Allison and Andy. I so appreciate your pod every week. I wish it was every day because you really harness all the BS into a focused bundle of what matters and why. Thank you very much, Robin. My question is about Jack Smith's questions slash statements about presidential immunity. Okay, so what she's talking about here is, in the prosecutor's brief opposing Donald Trump's request for immunity. You guys will remember this. He cited like these hypothetical examples,

all of which kind of ringed a little bit of Trumpism, right? So she says specifically one of the things he used as an example was that the president could sell top US secrets and it would be okay because he's the president. I wonder if you think this means Jack has legit evidence that Trump did this. I don't think so because it probably would be charged. But legit evidence usually leads to legit charges.

I think what he was doing with that whole series of hypotheticals was he was phrasing them in an artful way that almost made them seem like things, seem very similar to things that Trump has been alleged of doing or types of things that people, whoever might be reading their filing, could imagine Trump would do. Yeah, or stuff Trump's done that they just don't have enough evidence to charge. Yeah, yeah. But yeah, I know it was definitely very pointed and deliberate

and he did it twice. He did it in his opposition to immunity in the district court to Judge Chuckin in October and then he did it again to the appeals court. Same for scenarios, right? So he's twisting that knife. I think it was deliberate, but to walk right up to the line of stuff that we all feel like Trump has done. Yeah. Yeah, I mean, it's po mean, it's a little provocative, but that's what makes them really effective hypotheticals because they're, you know, you make a hypothetical, you construct a hypothetical around something that could actually happen and that makes it believable. And those are certainly felt like things that could happen. Right. So Trump asking,

you know, the military to go out and harm protesters during the Black Lives Matter protests, that idea of sending the cops out or the military out to attack your political opponents was brought up by Judge Pan in the hearing, right? The hearing that we had, the arguments, the oral arguments for this. And she was like, dude, so you're saying he could tell SEAL Team Six to go assassinate his political rival? And of course, of course, John Sauer said, yeah. You could totally do that. Famously said, a qualified yes. Oh, no, no, you didn't just do that. Yes. Oh, no, no, you didn't just do that.

Yeah, so I'm still, I'm gonna check one more time for this ruling. Nope. I wish I was friends with him, John Sauer, just because like, can you imagine how like his good friends are never gonna let him live that down? They'd be like at the bar like, hey, do you want a beer? And he's like, nah.

And they're like, is that a qualified yes? Or, and he's like, shut up. Should we send SEAL Team Six to the bar to get your drink? That's like, it's never gonna end. He's never gonna live it down. Can you come play Hoops? No, I can't come out. Oh, should we send Seal Team Six to...

Oh, man. Oh, the ribbing. Yes, gotta live for the ribbing. Anyway, well, that's it. Those are our questions for this week. Two good ones. Thank you, Jeff and Robin. Yes, thank you.

And if you have questions, again, there's a link in the show notes. You can click on it and send us your questions. Thank you again, everybody, thank you. And if you have questions again, there's a link in the show notes. You can click on it and send us your questions. Thank you again, everybody for listening. It is Sunday, January 21st. Of course, we record this on Friday, January 19th. I am not yet 50, but as you listen to this, I am 50. So I hope I had a great birthday. Huge congratulations. I'm so excited for you. I had a terrible 50th birthday, so I'm always excited for other people to have good ones. So I have nothing but... I remember that story. We'll have to tell it on a patron bonus at some point.

Yeah, yeah. There you go. So do have a great time. Congratulations and welcome to your 50s. It's awesome. I love it. Thank you. Thank you, sir. Yeah, for sure. And apologies to everyone for my total sick voice this week. I'm hoping to be healthy again next week and not be hitting such a Barry White tenor here on the mic. You sound burly today.

You sound pretty burly. Yeah, it's definitely not who I am. But all right. So yeah, great show. It's definitely not who I am, but all right. So, yeah. Great show. Thank you as always, Allison, for all the amazing work that you put into this and have a great birthday. And yeah, we'll see you all next week.

Yeah. I'm Andy McCabe. I'm Allison Gill. Bye. Bye. Bye. Bye. Bye.

Bye. Bye. Bye. Bye. Bye. Bye. Bye.