Jack - Episode 65 | The Longer the Better (feat. Steve Vladeck)

Starting point is 00:00:00 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?

Starting point is 00:00:24 Send me to jail! Hey everybody, welcome to Episode 65 of the Jack Podcast. This is a show about all things special counsel. It's Sunday, February 25th, 2024. I'm Allison Gill. And I'm Andy McCabe. Oh my gosh, we have a lot to cover today again And as we record this episode we still have not gotten the scotis ruling on Trump's application first day of the DC Circuit courts mandate in the immunity case and

Starting point is 00:00:56 We are gonna go over what this little delay could mean. Yeah, and Trump has filed a Deluge of motions a plethora. Would you say a plet a deluge of motions, a plethora. Would you say a plethora, Andy? Do we have a plethora of motions? I might say that, but not publicly. To dismiss charges in the Mar-a-Lago case, which were due February 22nd. And Carlos de Oliveira has filed a motion to dismiss as well. We'll go over those motions in detail, but I have to tell you, his arguments are a lot

Starting point is 00:01:23 weaker than I anticipated. I feel like I could have come up with better arguments. But before we do that, let's talk about the status of the immunity motion in the DC case and joining us to discuss this and perhaps the little bit of delay we're experiencing from the Supreme Court, his law professor at University of Texas and author of the one first sub-stack newsletter where I get all of my information. Please welcome Steve Vlatic. Thanks guys. great to be with you. Great to have you back. It's so, I'm so glad you're here and thank you for coming in last minute

Starting point is 00:01:53 to help help us sort through this. There was a pretty important thread that you put up on Twitter and also you know everybody needs to check out your newsletter one first because a lot of that information is in there too But the first thing that I learned from you today was that this is an order From the Supreme Court that could come at any time There's no real time limit or you know, because normally I get up and I look for you know rulings at a certain time in the morning But tell us a little bit about that. Yeah, so, you know, the Supreme Court, when it hands down decisions and cases

Starting point is 00:02:28 in which it heard oral argument, like the Colorado ballot disqualification case, you know, that's really carefully choreographed. We get a heads up that there's gonna be an opinion day. We know that the opinions get handed down from the bench starting at 10 a.m. You know, we don't know which opinions ever, but we at least were ready for the possibility.

Starting point is 00:02:48 And we know that when they're done, they're done. And so, you know. They tell you this is the last one or whatever. And so, you know, we knew, for example, that there weren't gonna be any opinions today. Orders are totally different, right? Orders, you know, there's one set of orders the Supreme Court hands down, like clockwork.

Starting point is 00:03:06 Those are the orders that come out of their sort of regular process. Most of those orders are either denials of review of pending appeals or housekeeping relating to pending appeals. The problem is that when you have filings like former President Trump's application, which is an emergency application,

Starting point is 00:03:26 those come down as what the court calls completely unhelpfully miscellaneous orders. And miscellaneous orders can show up just about whenever. And just to make this point like really, really frighteningly sort of clear, there were a bunch of COVID related miscellaneous orders in early 2021 that came down at like 10.46 PM on a Friday night. There was one that came down the Wednesday night before Thanksgiving in 2020 at 11.57 PM. So, I'm not suggesting that anyone, A.G. including you, right,

Starting point is 00:04:02 stay up until midnight tonight hitting refresh. I think the reality is it's probably going to be during business hours or not at all, but no one can be sure, and that's part of the, I think, exasperating nature of anyone who watches the court this closely in any other case. I think you have just inadvertently released AG's obsessive frenzy now to check the check through court. No, that's completely untrue. I will be up until midnight. Right, right. But I mean, just to try to tamp down everyone's paranoia,

Starting point is 00:04:40 the court hands down late night orders every once in a while. But those are usually when there is a ticking clock. There's about to be an execution or a law is going to go into effect at 12.01 AM. And for as urgent and sensitive and high profile as this case is, at the moment there's no ticking clock because there's already a stay in place. The question is just whether the Supreme Court should extend the stay, and that's not the

Starting point is 00:05:12 kind of emergency that would in the past ever have produced an outside of business hours ruling. Right. So you say in your thread here that there are two likely scenarios that may be causing this to take a while. Can you go over those two scenarios? Yeah. So, it might even help to start half a step earlier, which is it hasn't been a while.

Starting point is 00:05:35 Right? I mean, it's been a week since all of the briefing was complete. And I realized that in this day and age, a week feels like an eternity. But by the Supreme Court's tortoise-like pace of doing anything, a week is still pretty fast. That said, right, what I think is the most likely explanation for why it's taken a week as opposed to a day is that something is being written. And if that's true, that gives us at least a little

Starting point is 00:06:07 bit of tea leaves to read. So one possibility is that the court has voted to deny Trump's stay to let the generous prosecution go forward, and someone is dissenting and writing an opinion about why they're dissenting. There are some obvious likely candidates from such an order. But that would not be unusual in the context of how the Supreme Court operates for the court to vote on day one, that they're denying an application and for a justice to take a week to 10 days to write a dissent. No one would sort of balk at that inside the court.

Starting point is 00:06:43 Possible number two is that the court actually is gonna grab the bull by the horns and just decide the whole case now through something called a summary of firmance. That would be basically a very short opinion by the court that says we think the DC Circuit's right. And so we're actually gonna jump all the way over the question of whether to stay the January 6th prosecution and

Starting point is 00:07:07 Just say conclusively that former president Trump has no immunity Go back to the district court and keep going Can I ask you a question about something like that? Yeah, because I've been looking at the Trump v. Benny Thompson Ruling for the Supreme Court where Trump argued he had executive privilege over the NARA documents They couldn't be handed over to the January 6th committee. The DC Circuit Court ruled that you could have been the sitting president and had authority to grant yourself or to have executive privilege, but that doesn't matter. It's not dicta because it's more important for the January 6th committee to get these

Starting point is 00:07:41 documents. That countervails your argument of executive privilege, whether you're the incumbent president and have executive privilege or not. And so DC Circuit came back and said, your motion for stay, or excuse me, SCOTUS came back and said your application for stay is denied because we don't have the dicta here, right? And then they said, Clarence Thomas would have granted. And then Kavanaugh came in and said, yeah, I agree with the decision here, but I have feelings.

Starting point is 00:08:07 And he wrote a couple of pages on his feelings. Is that jumping over and going to the meat of this case? No, so that would be akin to denying the stay here. I see. So in Trump versus Thompson, which was a very similar posture, that order, which, you know, Eiji took a week or two for the court to get out. That order was denying emergency relief, and President Trump could still have appealed

Starting point is 00:08:35 the DC Circuit, but he actually still did. But because the Supreme Court had denied emergency relief, the writing was on the wall, the court, like, two months later, denied the appeal and no one noticed. That's the scenario, that was my sort of scenario number one that might be happening, that we're gonna get a denial of the stay and justices have feelings that they have to put on paper. Just to put this into context, the reason why the third

Starting point is 00:09:02 option that got a lot of discussion when he filed, and let me just say what that option is, the possibility that the court would treat the stay application as a cert petition and use this as a foil to take up the whole case, but have full briefing and have oral argument on an expedited basis like the Colorado case. The reason why I think that possibility decreases as time goes on is because no one would have needed

Starting point is 00:09:30 to write anything to bring that possibility to fruition. That would have been just an order with no separate statements. And there's no logical reason why that would take now eight days. So that's why to me, the most likely possibilities are those first two. The fourth possibility that a lot of folks are worried about that the court is going to slow walk this for Trump, basically by granting the stay but not hustling the case

Starting point is 00:09:57 up to the Supreme Court. I do think there are justices who would be dissenting if that's what the court was doing. But guys, those justices would be dissenting in a hurry. They would have every reason, if that's what the vote had been, to get a dissent out in a day or two, as opposed to a Trump losing scenario where the dissenters, they're not gonna sit on this for weeks or months

Starting point is 00:10:20 because eventually the court's just gonna publish, but where the dissenters would not be in quite so much for it. That's why I think the longer this goes on, the worse it is for former President Trump. So Steve, let me ask you one question on your, if in fact your number one scenario is correct and the stay is not extended, then Trump is back in the same position of now deciding whether or not he wants to ask for an on banc hearing or skipping that and just sending in his request for cert. I mean, he can do either of those. And Andy, as you know, right, the sort of the cert clock

Starting point is 00:10:56 is running right now, but would reset if he files a timely, I mean, if he files a timely petition for a re hearing on bonk, it's worth noting he's running out of time to do that. Yeah. Right? And so, you know, all that could happen, but if the court denies a stay. That's where I'm going. Like, if they deny the stay, that's a pretty clear message

Starting point is 00:11:18 to him that there's no soup for you here, right? Either your cert, your request for cert could be denied, which is, I think, the likely outcome in that, follow on scenario, or maybe granted, and then, you know, they hear it and deny it. But clearly, they don't have a lot of faith in his arguments if they're not letting the stay continue, if that's the exact way it goes.

Starting point is 00:11:39 If that's where we end up, I agree with that. And at that point, and if you're Trump at that point, what's the point of appealing? Like, it buys you nothing, it buys you no time. It doesn't buy you any delay. It doesn't buy you any satisfaction. All it buys you is the headline when the court rules against you again. Right. So, you know, the last sort of, and so that's why my sort of not necessarily correct but predictive view is that at least to this point the longer this takes the worse it is for Trump. The one other possibility, although

Starting point is 00:12:10 it's really just a variation on the previous ones, is that the court is sitting there waiting to sort of do this double-barreled where they hand down whatever they're doing on the immunity case alongside whatever they're doing on Colorado. To counterbalance them? A lot of production value there. Well, you know, I mean, if you're thinking about the optics, as opposed to the law from the court's perspective, right, having one massive headline being Supreme Court splits the difference, is like John Robert Superbowl.

Starting point is 00:12:48 But then we would need to wait for the calendar to say that there's going to be an order on 14th Amendment or ruling. I mean, at the very least, A.G., we'd need some guidance that there's an opinion day coming and then the opinion would have to be that one. The other thing is it would be a breach of the court's protocol. The court does not usually

Starting point is 00:13:05 hand down, it doesn't cross the streams to use a Ghostbusters analogy, right? You don't usually get orders with opinions. I mean, I can think of exactly one time where they handed down a ruling on an application alongside some RGU cases, and that was with regard to the first travel ban decision in 2017. That's it. So, is it possible? Sure. Do I think that's what's happening? No, because the court gets that headline even if those two rulings are 10 days or two weeks

Starting point is 00:13:36 or three weeks apart. Sure. Yeah, now I agree with you there. Got it. One last question for you. A lot of people on social media are concerned that now that Trump has filed his absolute presidential immunity in Mar-a-Lago that that will somehow trip up this case. But I'm pretty sure, and correct me if I'm wrong, the DC Circuit ruled

Starting point is 00:13:55 specifically on the case in front of them, the DC case with this particular indictment, with regard to President Trump and his immunity and whether or not it attaches to someone who tried to subvert the election, which also I think makes it easier for them to deny stay at Scotis like they did in Trump v. Thompson. But am I right in assuming that the Mar-a-Lago immunity has nothing to do with what the Supreme Court

Starting point is 00:14:19 is deciding here? Almost nothing, yeah. I mean, you know, they're related AG only in the sense of sort of the broadest arguments against former president Trump would also cover the Mar-a-Lago case. That's what I'm thinking. Like if they come in out and do a little writing and say, you know, you don't immunity doesn't attach for all official acts, it's not absolute, you're misquoting Marbury and no, no double jeopardy with the impeachment, double impeachment clause, but that would also apply. But it's worth stressing. I mean, the January 6th prosecution is so much, I mean, I hate

Starting point is 00:14:51 to use the word stronger in this context, but it's so much stronger of an argument from Trump's perspective for immunity, because at least he was president when the criminal, when the, when the charged offenses took place. You know, in the Mar-a-Lago case, none of the criminal offenses that are charged in the indictment in the Mar-a-Lago case were completed or could legally have been completed until he was no longer president. And so even in a world in which the DC circuit is wrong

Starting point is 00:15:22 about the immunity of a sitting president, Trump wasn't a sitting president at the relevant times in the Mar-a-Logic. Now, you know, everyone's a conspiracy theorist these days. I get it. There were the judge cannon will find some, you know, novel way to do this. But the relevant issue for me is not what judge cannon does. It's what the 11th circuit would do. And they've already decided these aren't personal records. And one edgy, they've already decided that too.

Starting point is 00:15:48 I really do think that long before we would get the kind of circuit split that would make this issue more worthy of Supreme Court review, the 11th Circuit would slap down Judge Cannon. Because again, whatever they think of the DC Circuit's decision, the Mar-a-Lavo case is a singularly poor one for arguments about a novel immunity doctrine tied to official acts of a president. And so I understand why everyone sort of, sorry, just back up half a second, if Team

Starting point is 00:16:18 Trump thought otherwise, they would have filed that motion much earlier. Because the Supreme Court has voted by now. Like whatever they're doing in the January 6th immunity case, they voted on it. If you wanted that in the stew, if you wanted that in the justices sort of consciousness, as they're writing all of this stuff, you would have filed it two weeks ago. And interestingly, maybe it's almost kind of one of those, the inverse is also true, right? So if the immunity decision comes out before Canon has to make a decision on the immunity appeal in Florida, it almost paves the way for her.

Starting point is 00:16:54 It gives her such a clear, it's not, okay, it's a different circuit, I get it, but it tees her up to dispense with that at the trial court level in a quick way. I mean, whether or not she takes advantage of the opportunity to do anything quickly is a totally different question. But And this goes back to the difference between the two scenarios we sketched out, right? A denial of a stay that has no explanation, you know, maybe doesn't have quite that much of an effect versus a short percurium for

Starting point is 00:17:26 the court majority opinion that says, you know, we agree with the DC Circuit. Right. That latter disposition, it would be impossible even for Judge Cannon to ignore. Sure. It's a validation that speaks for itself. She couldn't ignore it. So you know, all we should say is, can I guarantee anything at this point?

Starting point is 00:17:46 No. Welcome to being a Supreme Court Watcher. Right? You know. The only thing I can guarantee is that there are people on the internet who don't know what they're talking about. Right?

Starting point is 00:17:56 But if you actually process this logically, and if you think about this from the perspective of how the justices tend to behave in these cases, right? The delay while frustrating really does seem to be nudging us toward a subset of the options that were on the table when Trump initially filed. That pleases me because that's part of my dream scenario which started with the Supreme Court denying Jack Smith's leapfrog motion. So that doesn't happen, We wouldn't be here.

Starting point is 00:18:25 All right, so we do a thing every week where we have good week, bad week. And we would love your impressions on who in the Trump-Jack Smith cases is having a good week and who's having a bad week. Hmm. Who's having a good week? Well, the bad week is easy.

Starting point is 00:18:43 I think former President Trump is having a good week? Well, the bad week is easy. I think former President Trump is having a bad week. And I think the sort of the longer that this goes on like this, the badder the week is, right, for former President Trump. Who's having a good week? I mean, I will just say, you know, whatever folks think about the individual decisions and the analyses that we get from the court

Starting point is 00:19:04 or lack thereof. A world in which the Supreme Court can come out of these two incredibly fraught cases with general sort of non-public outrage for this court is probably a good week. So I think it's too soon to tell for sure, but I suspect we will look back and say that the Supreme Court had a good week and Trump had a bad week Yeah, and I'm gonna add to Trump's bad week the fact that he launched the ugliest pair of sneakers I've ever seen in my life It's nice. Did not get the week off to a good start despite his best intentions But that's just my opinion. Yeah, and I'm also gonna add to that bad week when

Starting point is 00:19:47 Yeah, and I'm also gonna add to that bad week when Judge Angoran denied his stay in the New York Attorney General Silva Fraud trial. I don't know if he doesn't have the money or he just wanted more time to think about it, but either way, he's gonna have to make that bond pretty soon. Yeah, yes, indeed. Yes, indeed. All right, thank you. Professor Steve Vladek and tell everybody where they can find your very important, very informative newsletter. And honestly, it is the clearest non-legal jargon-y writing that I can find.

Starting point is 00:20:13 It's so easy to understand. You explain it so clearly. Tell everybody where they can find that newsletter. They have to do so. It's called One First, which is a really not-so-clever play on the Supreme Court's physical mail-in address. And it's on the internet at Steve Vlodik, so S-T-E-V-E-V-L-A-D-E-C-K dot substack dot com. And I really appreciate your kind words. The newsletter exists entirely to translate this kind of crazy technical cremationology into ordinary people language. So if you feel that way, that means it's doing what it's meant to do. Well, there's nobody better to do it than you, my friend.

Starting point is 00:20:48 And thank you so much for coming on. It's a great thing for us and for our listeners. So really appreciate your time. Thank you guys for having me. Yeah, everybody. We have a lot more to get to. We're going to go over these emotions, but we have to take a quick break.

Starting point is 00:21:00 So 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 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 bum bum bum bum bum bum bum bum bum bum bum bum Trump had asked for more time to file these and that was denied by Judge Cannon. She preserved the original February 22nd filing due date. Although she did add that Trump could file after that due date if he can provide a compelling reason to do so. Yeah, but I think he got them. I think he got most of his motions to dismiss out here. And there's a there's a lot and these are the motions. There's a motion to dismiss counts one through 32 based on presidential immunity. One through 32 are the 793E charges, the Espionage Act charges. Next, a motion to dismiss the superseding indictment, and that means the whole indictment, based on selective and vindictive prosecution. Motion to dismiss

Starting point is 00:22:03 the indictment and in the alternative to suppress the 15 boxes based on prosecut and vindictive prosecution. Motion to dismiss the indictment and in the alternative to suppress the 15 boxes based on prosecutorial misconduct resulting in due process violations, impermissible pre-indictment delay and grand jury abuses. That's, he does that for everything. All of his crimes. Motion to dismiss counts one through 32 based on the vagueness doctrine.

Starting point is 00:22:23 And in addition, because he's basically saying that the Espionage Act is vague, and in addition to dismiss count 19 on the basis that President Trump possessed a valid security clearance at the time alleged in the superseding indictment. We'll talk about that separately. Motion to dismiss the superseding indictment because the special counsel's appointment and operations violate the Appointments Clause and the Appropriations Clause of the Constitution. We're not going to even cover that because it's just not... It's silliness.

Starting point is 00:22:52 Silliness. Emotion to dismiss the indictment pursuant to the Presidential Records Act. Yes. And we're going to go into that one. Yeah. That one and the immunity one, we're going to cover pretty extensively. And motion to suppress evidence seized during the raid, he calls it a raid at Mar-a-Lago, not an executed search warrant, and obtained in violation of President Trump's attorney

Starting point is 00:23:16 client privilege and be dismissed the superseding indictment based on prejudice from this privilege violation. Now we all know that there was no privilege that attaches to a search warrant signed off by a judge. Yeah. I mean, if it's, well, if it's the attorney client privilege piercing during the grand jury before, I mean, that's all been litigated and anyway. Right. They had a filter team.

Starting point is 00:23:45 They did, yeah, they did the whole thing. All right, so a lot of these arguments we've discussed in the past. So as you said, I think we should focus on the Presidential Records Act and the Immunity Act motions. We've been waiting for a while now to see how Trump was going to justify taking classified documents and willfully retaining them.

Starting point is 00:24:04 And in the PRA motion, the Presidential Records Act motion, we now have it. So, A.G., here's Trump's logic. Did you say Trump's logic in the same sentence? I said that and I had to like take in a lot of oxygen to process the thought and the sentence. But okay, here we go. Go with me now. Beginning with George Washington, presidents treated their presidential records as personal property. Well, yeah, but of course, we didn't have a presidential records act around George Washington's time. And of course, presidential records are not

Starting point is 00:24:42 the same thing as classified or national security documents. So you goes on to say, the Presidential Records Act does not confer any mandatory or even discretionary authority on the archivist to classify records as presidential records or personal records. The responsibility is left solely to the president. So okay, there's a lot to unpack here. So let's first, let's remember that the Presidential Records Act defines presidential

Starting point is 00:25:14 records as materials created or received by the president, the president's immediate staff or a unit or individual of the executive office of the president whose function is to advisor assist the president in the course of conducting activities which relate to or have an effect upon the carrying out of constitutional statutory or other ceremonial duties of the president. So that is what the Presidential Records Act actually covers and how it defines presidential records. Now, what Trump is doing here in this motion is he's basing this claim basically on the citation that he received from Tom Fitton's judicial watch commenting on how Nara handled the Clinton tapes.

Starting point is 00:26:00 This is like an interwoven web of contradictory and at the end of the day, I don't think will be legally effective arguments. But in any case, the Presidential Records Act also excludes personal records, which it defines as materials of a purely private or non-public character, which do not relate to or have any effect upon the carrying out of the constitutional, statutory, or other official ceremonial duties of the president. So I don't know. I think he's kind of pretty far off here.

Starting point is 00:26:33 What's your thoughts? Yeah. I mean, we'll get to the summary of his argument, but what he's teeing up here is that these were personal records. Right. Right. Yeah. Okay, so he goes on to say, President Trump's possession of the documents charged in counts

Starting point is 00:26:52 one through 32 was not, quote, unauthorized under 18 USC 793, which is the Espionage Act, because President Trump exercised virtually unreviewable Article 2 executive authority to designate the records as personal when, as alleged in the indictment, he, quote, caused the materials to be transported out of the White House while he was still in office. So there's the nugget that you were just pointing at. He's basically saying, with my magical Article 2 Commander-in-Chief Executive Authority, I waived that wand over all this stuff, classified national security documents, national defense information, and turned it all into personal records because my decision doing so is unreviewable.

Starting point is 00:27:43 He then claims that since Rob Hear's report says that personal records remain the property of the president and since Trump deemed the classified documents personal before he left office, they're clearly his personal records. He cites Judge Cannon's previous ruling. Of course, this is the one that was vacated by the 11th Circuit, that documents were personal records. Remember, she decided that and of course the 11th Circuit threw it back in her face. He even compares his taking and subsequent retention of classified documents to Ronald Reagan's Diaries and Bill Clinton's Interview Tapes. He argues that the PRA's recovery mechanism is exclusive and

Starting point is 00:28:27 does not permit referrals used to predicate criminal investigation. So here he's saying the PRA has no authority to see what they believe might be a criminal violation or violation of criminal law and refer it to the appropriate investigative agency as they did here ultimately to DOJ. Yeah, except the National Archives has cops. Yeah, and they have an IG that oversees what they do, and they actually, at DOJ's insistence, referred it to their own IG, who then sent it to the Department of Justice. And Jack Smith already pointed that out. Yeah, I mean, yes.

Starting point is 00:29:05 So he says in response to a NARA request, a National Archives request, the Attorney General may pursue recovery via Repleven, tellingly that is precisely what DOJ did in response to the portion of the February 9, 2022 sham referral from NARA to OIG that did not relate to President Trump. He is, of of course talking about VARO. In an effort to recover those records, DOJ initiated a repellent action rather than a criminal investigation. Grangery subpoenas and search warrants. So he's basically saying they didn't go after Navarro criminally. That means they can't go after me criminally, which of course doesn't mean that, but that's what he's arguing here.

Starting point is 00:29:47 Yeah. Wow. All right. So he's not arguing at all that he declassified these. No. By the way, his argument is that while he was in office on the morning of January 20th, he waved a wand, deemed these classified documents everything in the boxes as personal records even though he has no evidence of this.

Starting point is 00:30:04 And they're usually written somewhere. And since they were magically then personal records, it was not a crime to take them and keep them and move them around and then try to delete the video. That's what's going to make this hard to argue. When they subpoenaed him, he gave back 38 documents in a double-tape Redwelled envelope If they if they were personal records, I mean it makes no sense Yeah, then he kept the rest and he moved them around then he tried to delete the video of him moving them around So it's it's I don't know. I mean, there's I know he doesn't have a very good defense at all

Starting point is 00:30:43 but this one seems extra not good. Yeah, there's so many layers of contradictory decisions that he made in real time. And I say contradictory, meaning those decisions contradict what he's currently arguing now. So he's set up a series of factual contradictions. Like you said, finally, after being badgered to return this stuff, he went through it personally, was involved in the review of that stuff, and then sent 15 boxes back, which contained a lot of classified stuff. So why would he

Starting point is 00:31:16 sent 15 boxes back if he'd already, if there is, months earlier declared it personal? And then when confronted again with the subpoena, they went through and found more really sensitive classified national defense stuff and then put that in the double red weld and gave that back. Again, why give it back if it's yours? It's your personal like golf shirts and news clippings or whatever. So it's just, there's a lot here I think for the special counsel team to work with. Yeah. And like Professor Vladek said, if and when this, well, when I should say the Supreme

Starting point is 00:31:52 Court ruling comes down, it's going to make Judge Cannon's job a lot easier, I think, on a lot of these situations. Again, not that she'll take full advantage of it, but I think that applies more to the immunity motion, which we'll get to shortly. But something that's interesting, Brad Moss raised a good point on Twitter. He said, this is a motion to dismiss. You can't introduce facts, and that alone is fatal to this motion. Trump is stuck with the facts of the indictment, no matter how much this motion pretends otherwise. This motion, he says, is such a letdown. I was expecting a lengthy

Starting point is 00:32:30 diatribe about the PRA's history, but this is nothing more than Tom Fitton's legal fantasy. It's true. This motion is such a bummer. Judicial. It's so harsh in my vibe. Judicial watch. Yeah, it's bad vibes. Judicial watch was cited like a gazillion times and it's all Tom Fitton. Yeah, the whole Judicial Watch connection is so strange because Tom Fitton's waving this Clinton Sox case, right? It's like, that's his claim to fame.

Starting point is 00:32:59 And I didn't realize this until I started looking into the history of that case. That case came about because he filed it. Yeah, yeah. That was, and he lost. So this was Clinton had been carrying on conversations with Taylor Branch, who's a well-known historian, talking about his time as president or have you in preparation for a book that they would presumably do once he was out of office.

Starting point is 00:33:22 And he took the tapes of these personal one-on-one conversations and he supposedly kept them in his sock drawer because he didn't want staffers to find them and leak them or anything like that. And so after he leaves, Tom Fitton filed a federal lawsuit trying to force NARA to go recover the tapes of these interviews from Clinton claiming that they were presidential records. And none other than Judge Amy Berman Jackson ultimately decided, no, they're not. These were personal records and it was Clinton's as president, he had the authority to kind of make that determination. So this is like Tom Fitton's opportunity to come back and like wave the flag and use his

Starting point is 00:34:05 failed lawsuit from however many decades ago to the benefit of Donald Trump, but I don't think it's gonna go that way. Well, he cites the failed judge cannon determination that these are personal records, you know, totally vacated by the 11th Circuit. He cites the failed lawsuit by Tom Fitton and he misquotes what we'll get to back in the immunity thing and I know you're really excited about this. He misquotes Marbury. He picks out what he wants and leaves the part of Marbury that actually holds him responsible criminally for what he's done. So it's his way, I guess.

Starting point is 00:34:45 The sword and the shield type situation and it's not going to work. It's just not going to work. Now how long it takes to not work? That's the wild card right here. Yeah. And that's the strategy here, right? This deluge, this cornucopia, this plethora of motions all on one shot. This is like hoping to overwhelm the judge and her staff

Starting point is 00:35:08 and stretch out briefing and argument schedules on this thing for the next two or three years. So, and look, they're in the courtroom of Judge Cannon. So who knows how that works. Hafe, would you say I have a plethora of motions to dismiss? Hafe and audience laugh. Oh, yes. Oh, well.

Starting point is 00:35:31 All right, we still have that immunity motion to get to. And I also want to talk about the Count 19 motion and the Deolavere motion. But we do need to take a quick break, so everybody stick around. We'll be right back. Hey everybody, welcome back. Alright let's take a look at Trump's immunity motion, which is the one that Professor Vladek was alluding to in the A block there, talking about immunity for stuff you did after you left office.

Starting point is 00:36:07 But now, the Trump has argued that he can't be prosecuted for taking and keeping personal papers. And since he deemed these classified documents personal while he was still president, that means that his claim of presidential immunity applies here. Because deeming the classified records personal was an official act as president while he was president. And of course, he can't be criminally prosecuted for stuff he does while he's president, unless of course he's impeached and convicted first. Unless he's been held accountable for it, then he can be held accountable again.

Starting point is 00:36:40 Yes, and he makes that same argument. President Donald J. Trump respectfully submits this motion seeking dismissal of counts 1 through 32 on the basis of presidential immunity as these charges stem directly from official acts by President Trump while in office. Specifically, President Trump is immune from prosecution on counts 1 through 32 because the charges turn on his alleged decision to designate records as personal under the Presidential Records Act and to cause the records to be moved from the White House to Mar-a-Lago. As alleged in the indictment, President Trump

Starting point is 00:37:09 made this decision while he was still in office. The alleged decision was an official act and is as such subject to presidential immunity. Now, he goes on to make the same also ridiculous argument for immunity that he did in the DC case by misrepresenting Marbury v. Madison and quoting, the president's official acts can never be examinable by the courts. And of course that goes on to say unless you commit a crime and then we can prosecute you. But he just takes that first part of the sentence.

Starting point is 00:37:41 He's real good at taking first parts of sentences and leaving the rest off. They did that with the Mueller report quite a bit, I remember. For sure. It also jumps out to me in this kind of intro paragraph is where he says, because the charges turn on his alleged decision to designate records as personal under the Presidential Records Act, the charges don't turn on that. The charges are not based on that. Nowhere in the indictment do they say we are charging him with the Espionage Act

Starting point is 00:38:11 because while still president, he decided to redesignate things personal. It's just, he just says things in these motions that don't exist, that never happen, they're not true, they're not legally binding. To be clear, those charges 1-332 are not predicated on some redesignation imaginary style.

Starting point is 00:38:36 They're predicated on the fact that he had national defense information in his toilet room in Mar-a-Lago. That's what they're predicated on. The stuff was there, it's not allowed to be there. Case dismissed. And as Brian Greer said, he's like, all right, let's pretend you did dub them personal and take them with you.

Starting point is 00:38:54 That's a bigger story. We should be talking about why you did that. For what? As many people have said, you know, over the, since the beginning of this case, well, you know, they don't have to be classified, etc., etc. It wasn't necessarily under the PRA, but let's say he had declassified them with his mind. Why did you declassify these documents and take them with you?

Starting point is 00:39:20 That's what we really would like to know. Yeah, but he showed them to a lot of people. Right. His response to that would be like to know. Yeah, but his response to a lot of people. Right, his response to that would be, I can. It goes back to this, you know, motion for complete monarchial power. I can do whatever I want because I was president once and you cannot possibly second guess or judge

Starting point is 00:39:41 or, you know, cast any criticism at me about those things because I'm the king. I mean president. I mean used to be. Yes. And Marlboro, I mean the Marlboro man, Marbury, Marbury says I can, I can take these in their mind. Exactly. And you can't examine what I do. Andy, he also makes the same weird double jeopardy argument that we have in the DC case. Presidential immunity from criminal prosecution for official acts draws support directly from the text of the Constitution as the impeachment judgment clause

Starting point is 00:40:08 states that a president cannot be criminally prosecuted unless he is first impeached and convicted by the U.S. Senate. So he's making that argument again. It'll be again, this is where I would what I was talking about when we get a ruling from the Supreme Court on here. Will they mention that? Will they go as Steve Ladak said in option two, straight to the meet and say, no, the impeachment judgment clause does not say this? That gives then Judge Cannon the runway to say, ah, the Supreme Court said no, so I gotta say no. And I think it even, even his option one gets you some of that same benefit, right? If they just come out and say, we agree with the DC circuit in all respects, and here's

Starting point is 00:40:52 our opinion, it's not quite as explicit, but it carries the same weight. You can't then take an argument that you regurgitated out of the DC circuit, which they clearly shut down, there's no reason it should be any more successful anywhere else. I concur. So the rest of the motions are kind of self-explanatory, but I think we should talk quickly about the motion to dismiss count 19 on the basis that President Trump possessed a valid security clearance at the time alleged in the superseding

Starting point is 00:41:25 indictment. Count 19 is for retention of a document regarding nuclear weaponry of the United States, which was classified secret FRD. And remind me what FRD is. FRD stands for Formally Restricted Data. So it's hard to say exactly what it was in this case, although we can guess that because the information involved nuclear weaponry and at its point where he had it, it was only classified as secret, it may have been something that was originally

Starting point is 00:41:58 statutorily classified as top secret, but then had been downgraded for one reason or another to secret. So, hard to say, but that's just one guess. All right. He goes on to say, as explained in the defendant's motions to compel discovery, after the superseding indictment was filed, the special counsel's office disclosed energy department records indicating that President Trump maintained the Q clearance that is relevant to the document charged in count 19 during the

Starting point is 00:42:26 time period alleged in that count. The problem with this argument is that the fact that he maintained his Q clearance is likely a clerical error. And even if it wasn't, having your clearance doesn't give you the ability to store classified documents in your bathroom. classified documents in your bathroom. Well, you know, they kind of made a similar argument for Nauda to be able to see classified discovery. Well, he had a clearance once. You know, it's like, I'm sorry. It'll be interesting to me to see how strongly the special counsel argues on the ground

Starting point is 00:43:02 that technically the president doesn't have a security clearance. So the president doesn't have to go through the normal background check or the clearance process. He doesn't have a, to have a clearance, a clearance has to be issued to you from the agency that you're affiliated with. He doesn't, he doesn't have to go through any of that because he is the president. And in his role as president, he has the authority to classify and declassify everything, to delegate that capability to other agency heads, and to handle classified material as he wishes.

Starting point is 00:43:37 Technically, the guy doesn't actually ever have a clearance. Yeah. That's very interesting. And Jack Smith addressed the cue clearance in previous briefings and said, yeah, we saw you were on there and then we had you taken off. It was clear clear. So let's move on. Let's talk about Day Olivera's motion to dismiss. This is from Hugo Lowell at The Guardian. In a 19-page court filing on Thursday, lawyers for Day Olivera argued that the specific obstruction counts he was

Starting point is 00:44:06 charged with should be tossed because Deola Vera was not aware that a grand jury subpoena had been issued for the footage or of the compliance obligations the subpoena required. The filing also asked the judge to force special counsel prosecutors to produce a more detailed breakdown of the nature of the obstruction charges against him. Ahead of a potential trial in the event the motion to dismiss is denied and to schedule a hearing on that matter. They always like hearings. Oh, yeah.

Starting point is 00:44:35 Dale Rivera's lawyers are likely to face an uphill struggle, Hugo says, to toss these charges in large part because the filing raised arguments about facts in the case, which is left up to the jury as opposed to issues of law, where the judge has discretion to decide legal standards. So this isn't ripe for a motion to dismiss, basically. The request might also not be immediately resolved. The presiding U.S. District Judge, Eileen Cannon, could take the filing, quote, under advisement and only make a decision when a jury is seated. Were she to dismiss the charges then it could prevent prosecutors from challenging such a ruling, right?

Starting point is 00:45:12 Now the motion to dismiss for Deolavere broadly rests on two arguments that he could not have obstructed justice because he didn't know about the subpoena for the tapes and its compliance obligations and that his denial to the FBI about moving boxes in that interview was misconstrued. You misunderstood me. On the allegations about the the boss wanting the tapes deleted, Deolavara's lawyers wrote, that interaction fails to support the allegations of obstruction, that Mr. Deolavara knew that a subpoena had been issued and that the data requested was responsive to the subpoena.

Starting point is 00:45:47 And on the allegation about lying to the FBI, Dale Avera's lawyers contend Dale Avera was not sure what exactly prosecutors were asking about when he told agents he didn't know about the boxes being moved into Mar-a-Lago. Oh, those boxes? I was thinking about the boxes of old shoes. I thought that's what you were asking about. Could have been any boxes. Could have been any boxes. Could have been any boxes.

Starting point is 00:46:07 There's boxes all over that joint. Yeah, come on. I actually think, I think he's got an argument here. I don't think as Hugo proposes, I don't think it's really gonna be successful as a motion to dismiss, but I think what we're looking at here is gonna be really the core of De Olivares' defense at trial.

Starting point is 00:46:27 He's going to say, you cannot prove that De Olivares knew about the existence of the subpoena. You can't prove that Trump told him there was a subpoena or any of the lawyers did or anything like that, and therefore he can't be guilty of obstruction. We'll see what kind of facts that Jack Smith and his team will enter into evidence to counteract that defense. But I remember thinking even when the superseding indictment came out, I thought, geez, you know, I think this guy probably has a leg to stand on, arguing that he may not have known. Like, prove it.

Starting point is 00:47:06 Prove that I knew about the existence of the subpoena. My boss telling me, go delete some tapes. In the absence of knowledge of the subpoena, it's just my boss telling me to do a job and I do what the boss says. Yeah. So we'll see. We'll see what happens. Also, I just went to check the docket because it's Friday, February 23rd.

Starting point is 00:47:27 We were waiting for a Trump response. Do you remember he Trump filed that big old motion to compel discovery and he attached a couple of sealed filings and Jack Smith was like, you, and he wanted to unseal them. He's like, you can't unseal those. Those are witness names and testimony. And here, let me file ex parte and under seal some evidence as to why you can't do that. And Judge Cannon said, sure, you can file at ex parte and under seal.

Starting point is 00:47:52 And he did. And then she said, I've decided it's not ex parte anymore. And Jack Smith gave that over to the Trump team, but it's not public. But we were still waiting to hear her decision, because Jack Smith came back and said, if you unseal these, that's a clear error of the law and it would be unjust, basically. You can't do this. Please reconsider, a motion to reconsider. And so Judge Cannon kept it under seal those witness lists and testimony and said, Trump, you have until the 23rd to file your

Starting point is 00:48:26 response to Jack Smith saying, I made a clear legal error. So that was due today. So I just checked the docket to see if that was there. And what I found is a government's supplemental response to a standing discovery order. And so I think this is just separate. The government responds to the specific items identified in the standing discovery order as set forth below. And we will, I don't think this has anything to do with what I was just talking about. I think it has more to do with the standing discovery order, and we'll talk about it on the next episode when we get into that, because I don't think

Starting point is 00:49:11 we're going to get this Trump response to the motion for reconsideration on her unsealing order by the time we finish recording this. So we'll group it all together next week. It sounds good. All right. We still have a little bit more to get to, but we have to take another break. Everybody stick around. We'll be right back. Hey, everybody. Welcome back.

Starting point is 00:49:33 We have one more quick story before we get to listener questions, and we love your questions. If you have questions for us, there's a link in the show notes that will take you to the place where you can submit your questions to us. This is from your colleague at CNN, Piper Hudspeth Blackburn. She says, Georgia Republican, Governor Brian Kemp, who resisted intense pressure from former President Donald Trump to overturn the 2020 election results in his state, revealed Tuesday that he has been interviewed by special counsel Jack Smith's office.

Starting point is 00:50:08 Quote, I basically told him the same thing I told the special grand juries, that I follow the law in the Constitution and answered all their questions truthfully. That's what Kemp told CNN's Caitlin Collins on The Source, noting the conversation took place months ago and really didn't last that long. A spokesman for the governor told CNN in July that Smith's team had contacted him, but until just a day

Starting point is 00:50:33 ago it was not known that he actually sat for the interview. So he has confirmed that he did sit for that interview and talk to special counsel Jackson, this office. Yeah. And I think that's pretty predictable. You know, Kemp is an interesting cat. I mean, he's like, he's been one of the few people to kind of go his own way, kind of not, he's not, it doesn't seem to be afraid to distance himself from Trump because he's got so much support in Georgia, it almost doesn't matter to him. And, yeah, so he's got nothing to lose. He took that risk a long time ago. So it doesn't surprise me that he cooperated with the special counsel. Yeah, me neither.

Starting point is 00:51:09 All right, what do we have for listener questions today? All right, so we picked two questions this week that both kind of hit on the same subject. We get a lot of questions that are borderline irate about the constant delays in all the cases and I totally identify with those folks. So I'll give you both of these first and then we can kind of talk about them together. First, we have Mike who says, Do you expect the volume of Trump's delay tactics to decrease following the judgment in the Trump-Org fraud case? The level of litigation in his cases seems financially unsustainable. And then Joe comes in.

Starting point is 00:51:49 Is there a reason Stinky's relentless court filings mean to delay, delay, delay proceedings have not been mentioned by the prosecution in the four current Trump criminal cases? Is it legally okay to BS your way to indefinitely delay a trial? You can see kind of the range of the listener interest in this topic there. Yeah.

Starting point is 00:52:12 And taking that second question first, Jack Smith has mentioned the attempts to delay this trial in multiple briefings in both Florida and DC. It's not illegal to delay, but he has brought it up and he has pointed it out to the judges. And I think that there are some judges that listen to that and see it and understand it. And there are other judges who don't. Judge Shuckum, for example,

Starting point is 00:52:40 knew that this was going to be the case. It's probably why she set the trial in March. And it's probably why Jack Smith wanted it in January. They both probably kind of knew. There'd be a three month hold because he was gonna file interlocutory appeals. And Jack Smith actually wanted to go to trial in March, whereas Judge Chuck can set,

Starting point is 00:52:59 we give him three more months for this. And the trial will actually probably start closer to the end of May or June once all of this delay is done. She also made a phone call to Judge Merchant, who is in Manhattan District Corp. For the Manhattan DA attorney's case in the Hush Money, Stormy Daniels election interference case that was set to go and is still set to go March 25th, and apparently had a discussion with him and he probably said, set your trial for when you wanna set it and I'll defer if I need to.

Starting point is 00:53:32 And now that we're pushed out to May or June, he's got time to do the trial March 25th. And at the beginning of that hearing, he just denied all of Trump's motions and said the trial still starts on March 25th. But what do you wanna talk to me about? So I think it's clear that the judges, Jack Smith has raised these concerns, Dreeben, everybody in the office has raised these concerns in the special counsel's office with both

Starting point is 00:53:57 sides of government, the judges, the courts in several briefings. And I don't think Cannon cares as much as Judge Chuckin does, but I see it can have an impact, making these complaints basically on his trying to delay this trial and delay justice. Because one of the main arguments to even the Supreme Court to have this stay denied is that the public has a right to swift justice. And so that's the basis for that argument. I think you're right. I think he has raised it, but I think he very intentionally and maybe to the frustration of some of our loyal listeners, he raises it in the context of this trial needs to move on without delay

Starting point is 00:54:49 because the public has an interest in seeing these issues resolved quickly, i.e. before the election. What he doesn't do is raise it in the context of pointing the finger and making accusations about Trump. And I can see how that's unsatisfying on some level, but that's the way good lawyers act. You can't really, listen, it's one thing for us,

Starting point is 00:55:11 commentators, to sit here on the sideline and say, clearly what he's doing is his strategy here is to create more opportunities for delay. It's very different in a legal filing to actually accuse someone of that. There's not really any reason to do that. As you said, you can delay. It's a part of the process.

Starting point is 00:55:28 But at the end of the day, the responsibility comes back, not on Jack Smith to argue this up, but for the judge to run the case appropriately, quickly, and efficiently. And this is perfect contrast in styles. Like in DC, you have a judge who's committed to that and she's doing everything she can to get it done and in Florida you don't. So I say to people all the time, there's thousands of judges, federal judges around the country

Starting point is 00:55:57 and they're all very different. Some of them are very good, some of them are really not. So you get not great rulings from federal judges all the time and criminal and civil cases around the country. And I think we're seeing a particularly clear example of kind of the scope of what's out there between these two cases. As for Mike's question about suggesting that like, Trump will be able to financially continue the strategy.

Starting point is 00:56:26 I don't think that's probably really a factor for him for a couple reasons. One, his legal expenses are being bankrolled by the PACs and the political entities at this point. And two, he doesn't seem to care. He's not a guy who curtail himself because he's approaching the limits of his budget. He just rather keeps spending and then when people show up to collect, he doesn't pay them. So as long as there are lawyers around who feel like it's advantageous for them and

Starting point is 00:56:55 their practices and their reputations to associate with them, he's always going to have someone who's willing to climb on board and steer the boat for a while, however long it takes before they get heaved over the side by him and replaced with someone else. But I don't see, he doesn't really experience the same sort of financial limitations that a private litigant would normally have. Yeah, now I agree. And he does this everywhere that he's being sued. Yeah. Now, I agree. And he does this everywhere that he's being sued. Yeah. Or that he's now being criminally charged. It's constantly about pushing it back and delaying it past specifically the election in hopes that he can steal it, win it, take

Starting point is 00:57:37 it, grab it, and then make them all go away. For sure. For sure. For sure. All right. Thank you so much sure. For sure. All right. Thank you so much for your thoughtful questions. Any more questions you have to us? Again, there's a link in the show notes where you can submit those and we will read them on the air and answer them. Do you have any final thoughts?

Starting point is 00:57:54 Maybe we can spend a couple of minutes. We've got a couple of minutes left here in the hour to talk about Mr. Smirnoff because the breaking news today and we aren't going to get to this on the beans until Monday and we aren't going to get to it on CleanUp on Al 45 until Wednesday. But he's been re-arrested. Now, Smirnoff, just real quick background, I'm sure everybody who listens to this program is aware that the 1023 that the Republicans in the House were using as their core thing to impeach the president, it basically said that Joe Biden and Hunter Biden took $5 million bribes from Barisma

Starting point is 00:58:27 to make things go away and help out the big guy or whatever the hell. Turns out he was lying and he falsified that 1023. So he's been hit with a 1519 charge and a 1001 charge, which is obstruction, 1519 document. And then also, then also falsifying a document, and then 1001 lying. And he was arrested and David Weiss wanted him to be remanded because he was afraid he was going to flee. He lied to the probation office or the, what is it called? Where the...

Starting point is 00:59:01 Pre-trial services. Pre-trial services saying, I only have 1500 bucks, maybe five grand somewhere in an account when it turns out he had access to 6 million. He's got an Israeli passport. Oh yeah, that too. 15106 million, sorry, I forgot to say. Yeah, I know, it's close enough, right? It's like Trump valuing his properties. So he was arrested for those two crimes. They wanted him in pre-trial detention because he was arrested for those two crimes. They wanted him in pretrial detention because he was going to flee.

Starting point is 00:59:29 They were certain of it. But the judge, the magistrate judge in Nevada, let him out with a GPS monitor. David Weiss said, no, no, no, no, no, no, you can't know. You can't let him out. He's going to flee. And so then a California judge said, it's come to my attention that perhaps Mr. Smirnov's lawyers were trying to assist him in absconding the United States, fleeing the US. So I'm now taking this over and I'm setting a hearing for Monday to discuss this.

Starting point is 01:00:00 He needs to put out a warrant for his arrest and he was arrested in the law, in his lawyer's office. And so I think that's all there, I mean, at the heart of this, there's a million things we could talk about with the corruption under bar and why he wasn't charged in 2020 for lying. But this is very fascinating that he was re-arrested and this judge is now accusing his lawyers of potentially helping him flee.

Starting point is 01:00:23 Yeah, it's a crazy series of events. Um, McCann, it's helpful to understand the mechanics to kind of put it in context. So they obviously, um, we're ready to arrest this guy initially and he was overseas and he flew back into the country and landed first in Las Vegas. And that's why he was arrested there because they didn't want to take a chance and losing him, right? They knew where he was going to be when he came in on that plane so they arrested him there. What happens in a federal case is you have to get arraigned in the district in which you were arrested. Well, in this case, that's Nevada, but his

Starting point is 01:00:57 actual case is in California. So in these circumstances, you would go be presented to the judge, they get you an attorney or your attorney makes an appearance, you're go be presented to the judge, they get you an attorney or your attorney makes an appearance, you're told of the charges against you, and then you get an opportunity to request bond. If they think you're a flight risk, which the government did, the government says, no, you should deny him bond because he's been lying, he lied to pretrial services and his post... And we might charge him with perjury for that, they've been lying. He lied to pretrial services and his post might charge him with perjury for that. Yeah He's been post arrest interview. He tells the he tells the agents supposedly for the first time that the false

Starting point is 01:01:32 Story about Hunter Biden and Joe Biden was actually given to him by Russian intelligence And they put that in the motion to oppose bail. So they're not saying flat out in the motion to oppose Baal. So they're not saying flat out this is the truth. He was given this story by Russian intelligence. They're simply saying this is what he's saying now and therefore you cannot trust this person and if you can't trust him then you can't give him Baal because Baal is essentially you're trusting this person to come back to court on the day he's supposed to be here. That was their argument. The magistrate judge inexplicably said, oh no, I think what you're saying is only speculative and therefore I'll release him on an ankle bracelet.

Starting point is 01:02:15 Now he goes back to California where he lives and the case is actually centered out of California and DOJ has an opportunity to re to basically appeal that bail decision in front of the real case judge in California. They did that a day or so ago and requested that he be re arrested. And then of course, as you said, he was arrested ultimately in his attorney's office, which is remarkable yet another twist in this tale that's just like kind of head shaking. Bottom line is that in any other investigative context, when you're a star witness, the center of your entire case,

Starting point is 01:02:52 all of a sudden you uncover that that person's made up the entire thing to such a degree that you now are compelled to arrest them and try to throw them in jail for violating 1001, making a false statement. That underlying investigation, that case disappears because it's blown up. There's no way you can resurrect that after the central witness has gone down flames. No, Comer says no, no, no. We don't really know that guy.

Starting point is 01:03:19 He wasn't central. Forget everything that we said. That is so crazy. Yeah. And by the way, the judge in Nevada, the magistrate judge has mooted everything says put in a minute order. I no longer have jurisdiction. It's over to California now. And also mooted the order because he had asked the government to respond to him as to why

Starting point is 01:03:40 they re-arrested the client or the defendant. And so he's like, you don't have to tell me now, everything's moot, hands clean, doing the casino hands, right? Like the casino deal. I can hear you, I can hear you, I can hear you. I don't want anything to do with this anymore. Thanks, bye.

Starting point is 01:03:56 And it's now over in California, central district, I think. So we'll keep an eye on that. Yeah, crazy. There's all kinds of really interesting questions here about the timeline and when the Bureau decided that he was not telling them the truth about this Hunter and Joe Biden story. Then of course, Congress in an effort to get themselves out of the grease is now pointing the finger at the FBI. The guy had a long history of reporting, I think over a decade, he'd been reporting to the same

Starting point is 01:04:28 agent and he apparently had been provided information effectively in other criminal cases. But sometimes sources, even good sources go bad. I mean, this we all know. The thing that rings out to me here is in 2023, when Congress found out about the existence of this infamous 1023, which is the internal report that we put a source information on. It's for raw, unverified, unvetted information just to get it into the system. When they found out about it, they demanded it. And the Bureau pushed back and said, we don't we've, we don't think there's anything credible there.

Starting point is 01:05:06 It's part of an ongoing investigation too. Yeah. You can't have it. And they pushed and they pushed and they cajoled and then they threatened and they threatened to hold director Ray in contempt of Congress if he didn't turn over the 1023 and ultimately Ray caved, handed over the 1023 and then they were off to the races. So you have another example of what happens when Congress pressures the investigators to turn over information that should not be going to Congress. So yeah, I don't think they can get their own fingerprints off of this fast enough.

Starting point is 01:05:38 No, they were warned. This is... Rudy was the target of Russian disinformation. Gosh, it's almost like there was Russian collusion, Andy. I don't know. Did you guys look into that at all? I can't even remember. Geez, that sounds awful. I hope that hasn't happened before. Yeah, it's been quite a week for the Mueller-She-Rote Twitter account. Let's just say that. Lots of fingernail filing and I told you so. But we'll see what ends up happening and it could

Starting point is 01:06:07 unravel all sorts of interesting things that I think should be looked into. Particularly the handling of this back in 2020 by Barr and Scott Brady, who was over in Pittsburgh, who was the guy who Bill Barr put in charge of getting all the Rudy stuff and vetting it. He was captain election. Well, well done. I would like the Senate Intelligence Committee to do an investigation and call in Christopher Ray

Starting point is 01:06:34 and ask him about this and Scott Brady and ask him about this. And why aren't we doing any investigations in the democratically held Senate? It's driving me crazy. I don't know. I would tune in and watch all those hearings for sure. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this.

Starting point is 01:06:46 I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this.

Starting point is 01:06:54 I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this.

Starting point is 01:07:02 I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. I'm going to be doing this. to see if the Supreme Court has ruled. No, it doesn't look like it. But once that comes in, you may get a bonus episode from us. We might need to put that out, at least just to cover it very briefly, because I don't know if it comes out today or Monday.

Starting point is 01:07:17 I don't think we can wait until next weekend to talk about it. So thank you all very much. We appreciate you and we'll see you next week. I've been Allison Gill. And I you all very much. We appreciate you and we'll see you next week. I've been Allison Gill and I'm Andy McCabe.

Jack - Episode 65 | The Longer the Better (feat. Steve Vladeck)

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