Jack - Episode 66 | Cannon’s Mini Shadow Docket (feat. Brian Greer)

Episode Date: March 3, 2024

This week in Florida: Judge Cannon rules in favor of DoJ’s motion to keep witness names under seal even while saying that DoJ has the law wrong; several rulings on CIPA Section 4 motions including Nauta and De Oliveira’s bid to get access to classified discovery.In the DC case, Kenneth Chesebro had a secret Twitter account that he kept from investigators.Plus, another thought-provoking listener question, and more.Brian Greerhttps://twitter.com/secretsandlaws Brian Greer’s Quick Guide to CIPAhttps://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/  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/18/1512 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! Hey everybody, welcome to Episode 66 of Jack, the podcast about all things special counsel. And despite us having an entire bonus episode on my dreams in the immunity case being gashed. We still have a full hour of Jack Smith and News to bring you this week. It's March 3rd, 2024. I'm Allison Gill. And I'm Andy McCabe. And thank you, everyone, for listening to that bonus episode. It came out last Wednesday night on the SCOTUS decision to grant CERT and set oral arguments in the immunity case for April 22, an episode that I have to share my wonderful wife Jill said, you guys sounded really depressed. So, sorry for the downer on that one.

It's just kind of a gut punch to most of us. But since we covered that topic so extensively, today we're just gonna focus mostly on what's going on in Florida. There was a hearing on Friday to discuss the trial date and some pre-trial motions and the motion from DOJ to keep the protected witness lists under seal. Plus we had several rulings on CEPA Section 4 motions, including Nauda

and Deolavere's bid to get access to classified discovery, because why? No reason, no idea. Oh, Nauda said at one time he had a clearance because he was in the Navy once, and for some reason I think that he thought that that was an argument that he should get to C-classified discovery. Trump's motion to get access to the DOJ's Ex-Partais SIPA Section 4 filings, you'll remember, Ex-Partais means that it's between Jack Smith's office and the judge, the Trump team can't see it. That means, you know, Ex-Partais. And the DOJ's motion for redactions and substitutions of classified information for trial. And our SIPA expert, Brian Greer, will be joining us to discuss those rulings from Judge

Cannon in our under seal segment. Plus, we have some proposed jury questions and a little bit of a shadow docket going on down in Florida. We'll talk about that too. Look out. Okay. So, in the DC case, my colleagues at CNN have uncovered testimony from none other than Ken Cheeseboro to Michigan prosecutors that apparently

contradicts his public posts from a secret Twitter account. Yeah, this can't get any weirder. And we'll discuss how that could potentially impact the federal case. The federal case that's on hold, at least until April 20th. Come on, keep hope alive. It's still a case. I'm still sad. I'm sad. I feel like I've lost a friend. I know. It's hard. It's hard. But we're going to march on. We're going to keep our chins high and see what happens in Florida. And you know what? I have to say, I did an appearance on Deep State Radio.

Andy, Norm Eisen was there and he pointed something out that I had been meaning to ask one of our expert friends on SCOTUS about whether or not these kinds of orders can have dissents. And Norm said yes. And the fact that this is SON's dissent, that none of the liberals came out and said, I disagree, I think it should be faster briefing schedule, I disagree on the question. No liberal justices came forward to dissent on this.

And that brought a little bit of that hope, that put a little bit more hope in my hope tank. So I just wanted to kind of point that out. I think there's more to this, the more that I think about it. I mean, I haven't changed my top line opinions, but there's opportunities for nuance here that I hadn't originally considered.

And one of those is gonna be something that came up a couple of times in the audience question. So I'm gonna hold that out for the very end of the show. And we're gonna have a question that drives right at the point I'm alluding to but we'll save that for later. We're the smartest listeners. Your questions are seriously amazing. Thank you. And if by the way there is a link in the show notes if you want to submit a question to us to Andy or me and we'll or both of us and we'll we'll answer it for you as best we can.

All right, first up, in the documents case, the battle to unseal lists of witness names and some of their testimony. As you know, that's been going on for a while. Trump wants these witness names released. And Jack Smith is trying to prevent that from happening. The witness lists are subject to a protective order over the discovery. This is very common in any kind of case,

whether it has classified documents or not. I've been part of every case. Right, civil cases, criminal case, whatever. Each side has to turn over their stuff. They wanna make sure that the people they're turning it over to isn't just gonna automatically go hand it to a reporter or post it publicly. Yep. And that's a protective order over discovery. And so that's what we have here in this case,

like we have in most cases. But what Trump did here was he attached these witness lists What Trump did here was he attached these witness lists as exhibits to a pretrial motion, his motion to compel discovery. And then he asked the court to unseal them as part of the court's transparency. And the standard to keep motion sealed is a lot higher, I guess, than the standards to keep protected discovery sealed. But here, when Judge Cannon ruled to unseal these witness lists, she applied a much higher standard incorrectly, according to Jack Smith. And Jack Smith filed a motion for her to reconsider her ruling, calling it a clear error of law that would result in

manifest injustice. So on February 23rd, Trump responded to his motion, Jack Smith's motion for reconsideration. And we went over the motion for reconsideration in detail on the last episode. Andi, do you remember when, while trying to demonstrate why the witness list needs to remain sealed, Jack Smith asked Judge Cannon if he could have permission to file some evidence, ex parte and under seal. I do. It's kind of a bold move because it was like, I'll see you're unsealing and raise you another sealed piece of evidence.

It's like his argument to keep this stuff sealed was to enter another piece of sealed evidence. Mm-hmm. Yep. And so Judge Cannon granted that. Ex parte, keep it away from Trump and under seal, keep it away from the public. But then, so Jack Smith filed it, ex parte and under seal, but then she read it and changed her mind and said, upon review, this should not be ex parte. You have until February 10th at midnight to give this evidence to Donald Trump.

should not be ex parte. You have until February 10th at midnight to give this evidence to Donald Trump. Then Jack Smith did not fight that ruling and I thought that was weird at the time. He just handed it over and I said, you know, you know, I understand you have to pick your battles but Jack Smith should have fought that. I thought it was a bad idea to argue that it should be ex parte in the first place and then not fight when the judge orders you to hand it over. It makes it seem like you don't really need you didn't need it to be ex parte in the first place. And I said, Trump will jump all over that. In every filing, do you remember Andy? From now on, I said from now on, he's going to say,

he asks for stuff under seal and exarte all the time. It's ridiculous. And he's always wrong. You remember? I definitely remember. You know, I thought he's probably figuring, okay, it's no longer exparte, but it's still covered by the protective order and potentially still under seal. If he requested it be under seal and she didn't say it wasn't, it was probably still under seal. So it gets exposed to Trump, but it's still protected from the public. But nevertheless, there are some consistency problems there with requesting one thing, not getting it, and then not fighting for it. I agree. Yeah, but waiting to hear what Trump does, he kind of goes public with the information anyway.

And we'll talk about that in a minute. But check this out. This is Trump's opposition to keeping the witness names under seal. The special counsel's office has repeatedly demonstrated that they believe themselves to be entitled to disclose selective details of this case, to try to support President Biden's campaign while relegating to skiffs, filed filings that defense arguments that reveal unconstitutional, illegal, and unethical behavior by participants in this investigation and prosecution. The motion for reconsideration is more of the same. For the reason set forth below, the motion procedurally is defective and fails on the merits. And accordingly, the motion should be denied. So here he is. He files all this ex parte, sealed, secret government, deep state junk so that all we see is stuff that helps Joe Biden. I mean, it's so, like, it's a good thing I'm not on the special counsel team.

Yeah, I mean, what I would not be responsible for what I might have to say in filings. It's on its face absurd because this because it's just a collection of allegations. It's not actually a legal argument, right? He's like relegating to skiffs, ex parte proceedings and sealed filings, the defense arguments that reveal unconstitutional, illegal and unethical behavior. Jack Smith is not trying to seal or handle ex parte defense arguments. That's up to the defense to do. He can make his arguments as publicly as he wants. Nobody really cares. None of them are based on fact anyway. So it's all just a ball of accusation, right, to kind of paint the

special counsel's office with a evil brush. Yeah. So then Trump reminds the court that the standard for reconsideration, meaning that in order for the DOJ to get Judge Cannon to reverse her order on sealing the witness list and return it to its sealed status, DOJ would, according to Trump, here have to show that there is, quote, newly discovered evidence or that the court committed, quote, manifest errors of law or fact. And that is a standard from United States versus Williams. Now, Trump argues that Jack Smith failed to show a manifest error of law.

And as proof of this, he points to DOJ's use of the term Manifest Injustice instead of Manifest Error of Law. That's somehow a difference of distinction for him. Charles Fienling states, that term referring to Manifest Injustice has no content beyond the specific basis for which reconsideration is authorized in this district's case law. Now, full confession, I had to read that 25 times before I had any idea of what he was talking about. I felt like it was in eighth grade, I had to diagram the sentence and figure the whole thing out. What's really weird about this sentence is it...

Yeah, I had to read it 10 times too, Andy, but what he's saying is that term is meaningless except where it's meaningless, or I'm sorry, that term is meaningless except for where it's meaningful, which is here. Yeah, exactly. The term has no content. I guess he means significance beyond the specific basis for which

reconsideration is authorized in this district. Well, who cares if it has any significance outside of the one you've identified because that's the only one that matters here. Yeah. And he's like, oh, it means nothing except for here in this district and the exact thing that we need for reconsideration. It's bizarre.

It means nothing except everything. Yeah. Yeah. So they go on to use standard Trump team argument technique, which is not to use actual legal reasoning, but to just rather impute evil intent to the prosecution, who oddly enough, they refer to as the office. So, Trump states, for the office, quote, manifest injustice is shorthand for a situation where the prosecution feels their unlawful demands should have been treated with deference by the court, but instead the court properly rejected conclussory submissions

lacking adequate legal and factual detail to justify hiding the defendants filings from the public and the media. The office's disappointment in the outcome is not a basis for relief. This is like 1L writing. Right? Right. This is like the, they picked the summer intern from the, fresh out of the first year in law school to write this like kind of histrionic, emotionally charged, but legally lacking, just kind of group of accusations. It's not really an argument. Yeah. group of accusations. This is not really an argument. Yeah, and he just said earlier that the term manifest injustice actually does have significance

in this district's case law to authorize reconsideration. Yeah. It's hard to figure out. I think it's, yeah, I don't know. 100 out. All right, so Trump then brings up that Evidence that Jack Smith wanted to file ex parte but was forced to hand over to the Trump team That's what we were talking about before so he says

second Suggesting factual error the special counsel's office referred to a quote well documented pattern in which judges agents Prosecutors and witnesses involved in cases involving Trump have been subject, should be subjected, but subject to threats, harassment, and intimidation. That is false, and the office has certainly not identified, quote, newly discovered evidence. Incredibly, the office sought to improperly hide from President Trump and the other defendants the only supposed piece of evidence they submitted in support of this argument, consistent with a pattern that started early in this case in a motion concerning rules about access and sealing, the office yet again blatantly violated rules about access and sealing. And incredibly, incredibly, Trump, who agreed to keep that evidence out of the public eye,

right? It's not ex-partee, but it's still definitely under seal. Right. He then talks about it in a public filing and then accuses the DOJ of leaking the witnesses' names and causing the harassment. He says, rather, the exhibit suggests this evidence that was filed ex partean under seal. That suggests that a civilian witness was harassed months ago within weeks of the decision by the special counsel's office to disclose information from that witness in a gratuitous speaking indictment in which the office used to try to prejudice the defendants and to promote themselves and President Biden.

So there's about six clues in there about who this witness is. Yeah. Yeah. And if somebody went on a deep enough dive, you could probably figure out... You'd figure it out. You just have to unwind the indictment a bit. But I mean, not hard because the little breadcrumbs of civilian witness harassed months ago, so that's months before the indictment, within weeks of the decision to disclose information

of that witness. Okay, so it's within weeks of the indictments filing. Yeah, we may have just set loose half of the audience to try to figure it out, but there you go. They go on, he goes on to say, we find it hard to believe that Jack Smith could credibly swear under the penalty of perjury, based on conversations with his staff that no member of the office has uttered that witness's name to members of the media. Accusing now. They're saying, basically, the reason that that witness got harassed, it wasn't me, it was the DOJ leaking it to the media. Yeah. Amazing. And again, it's all just like overheated opinion.

Yeah. We find it hard to believe. Like, that's not legal writing. We find it hard to believe. No. Like, read that DC circuit court opinion again. You find things, you find phrases like, we find it hard to believe in there. No.

That's just, it's just kind of sickening. Anyway, so Jack Smith filed his final response in the reconsideration to release the witness list issue on February 28th, just two days before the Friday, March 1st hearing. The filing states, under the federal rules of criminal procedure, see that's a good beginning. Let's start with the rule that actually controls this issue. Okay, sorry. I'm ranting here. Under the federal rules of criminal procedure, a court may restrict the party's use of discovery material upon a showing of good cause. The court did so here by entering a protective order,

prohibiting the defendants from disclosing discovery material in any public filing or in open court without notice to an agreement from the United States or prior approval from the court. The government relied on that provision when producing to the defendants comprehensive early discovery, which included not only the names of its expected trial witnesses, but also the substance of their expected testimony, which was sometimes provided to the grand jury under the secrecy requirements of Rule 6E, until recently the protective order in this case operated as intended.

What he's saying here is we had an agreement that the court reviewed and approved, therefore making it, you know, controlling rule in this case. They're not allowed to disclose our discovery publicly unless they ask us first and we agree to it, or they notify the court ahead of time and the court, you know, rules that had happened. And you know, here's just something interesting I wanted to bring up that a few people who were in the courtroom on Friday for the hearing observed. It seems to me that there is just obviously a desire from the Trump team to release this witness list. And Judge Cannon has granted this order going against the law and the precedent of the

district. And so she seems to want to get this witness list out too, whether it's for nefarious reasons or for what she thinks is transparency, whatever. But she wants it out too. In the court today, she asked the special counsel's office, I think it was Jay Brad. I can't remember who it might have been, Harbock. When are you going to release your witness list? And at that moment, Jack Smith sat up in his chair

and his eyes got wide and like it's the most emotive you've ever seen Jack Smith get. And Harbock was like, not anytime soon. I can't remember what he said But it just seemed odd that she kept that she's pressing him on this witness list again It's it's amazing because all they are trying to do here is get her to stand up for and enforce her prior order in this case She already ruled this and now she's basically walking away from her own ruling. Like you cannot run a trial that way. Yeah, the protective order.

Yeah. Well, she did it with the, that ex parte thing too. Right? She said file it ex parte and under seal. And then when she got it, she reviewed it and said, nope, I was lying about the ex parte part, send it to Donald Trump. There's a lot of mind changing. Yeah.

And I mean, all right, I'm not, I mean, I'm just trying to give her the benefit of the doubt here. In that case, she could have said, look, you submitted an ex parte, I reviewed it, it's really not proper for ex parte what you submitted. So I changed my mind. Okay, it's not great, but you're not walking away from a prior consideration and ruling in your own case. This thing is like, we have a protective order. The protective order is written by usually the prosecution. They submit it to the defense. If the defense agrees, then the judge accepts it as the rule in the case, which is what happened here.

So it just bothers me. But now they're attached to a motion to compel, so they're different now somehow. Yeah, ridiculous. All right, so Jack Smith's filing goes on to say, that all changed when the defendants filed their motion a compelled discovery Rather than seeking agreement from the government or prior approval from the court the defendants simply attached to their motion voluminous materials including complete FBI reports of interviews

Excerts of grand jury transcripts and witness statements that they had received Subject to the protective order all that had received subject to the protective order. All that stuff was covered under the protective order. In doing so, they made no attempt to explain, for example, why witnesses' names needed to be disclosed to the public, even when those names had no bearing whatsoever on the resolution of the discovery-related motion to which they were attached. Yeah, that just blows my mind. of the discovery-related motion to which they were attached. Yeah, that just blows my mind.

Just attaching the witness list, which has no bearing on the motion you're attaching it to, just so you can release them to the public to intimidate and harass the witnesses. It's just so blatant and obvious, and this judge is trying to let him do it. I mean, we didn't get, in that hearing today, we heard these arguments, we did not get a ruling,

but we could in a week, two, three, however long she takes to make this ruling, but we didn't get the decision today on whether to keep these witness lists sealed. Yeah, you know, as you said before, it's hard to say what can, what is, what's Canon's motivation when she makes one of these 180 degree turns on something. But understanding the Trump team's motivation is really easy. Number one here, they want

those witness names out in the public, you know, thrown into the wild for whatever happens downrange by any one of their supporters. Secondly, they love to be in the position of constantly arguing to the judge. It's not fair. They're trying to hide everything. We're trying to make all these great arguments and get our, get our point of view out and influence public opinion, but they don't let us because everything is sealed or under a protective order. It's the classic Steve Bannon theory of flooding the zone with, you know what, right? It's overwhelm the judge, confuse the judge,

distract the judge, throw everything at the wall, something might stick. But, you know, on the other side, they're not gonna overwhelm Jack Smith. And in this particular filing, we get kind of the special counsel's first shot across the bow that he will take this to the 11th Circuit if she doesn't reverse her ruling to unseal the witness lists.

He goes on to say, the government respectfully requests that the court grant the motion for reconsideration and permit the government's proposed redactions and sealing. In the alternative, the government respectfully requests that if the court denies the motion and requires the parties to file minimally redacted materials consistent with its orders, the court stay the public docketing of such materials for at least three business days to allow the government an opportunity to consider seeking relief from the court of appeals. Now that is a direct threat. Yeah, it is. It's the most congenial way that you can phrase it in a legal filing, but that's basically what they're saying. We're taking this up a level.

Yeah. I'm going to take it to mom, 11th circuit, and dad judge prior. Like, whoa, I'm gonna go to mom and dad with this. If you, who smacked you down before in the special master case and made you vacate your garbage ruling. And this is the sentence he ends the motion on or his response on, I should say. It's not a motion, it's a surreply. But he says, yeah, I'm gonna have to go to the court of appeals. Yeah, bring it.

Yeah. So, but I mean, on the bigger perspective, look how deeply we're fighting over one sideways filing that should never have happened and had to be fought. But here you are, like, that's the strategy here. Lock them up in a pitched battle over every little thing. And in front of this judge, a little pitched battle turns into months of delay. And, you know, and they, you know, they, they had that hearing today to, we've been waiting for this hearing for a long time about the trial date. And we'll talk about that in a little bit. But also, And we'll talk about that in a little bit. But also, aside from that, and aside from this motion

for reconsideration, which is Department of Justice wanting Judge Cannon to reverse her order to unseal those witness lists, aside from that, that's all subsumed in that larger motion to compel. That motion to compel discovery by Trump. He filed one in DC and he filed one in Florida. They were both ridiculous, overly broad. He was trying to define the prosecution as every agency in the history of the

executive branch, meaning anytime anyone spoke a good thing about Donald Trump, it has to be gone to and found and dug up by the prosecution, handed over as exculpatory evidence. And a lot of this stuff doesn't exist. The missing January 6th documents in the DC case, he tried to pull that on Judge McAfee down in Fulton County and he shut him down in a couple of days in one paragraph and said, what you're asking for doesn't exist. Denied. I want all evidence that I am stronger than Superman. Go get this.

Right. Yeah, go find it. And so this is that larger motion to compel. And on February 26th, Jack Smith filed a surreply to Trump's motion to compel discovery. This is the bigger issue now, not the side part of the motion to compel the witness lists being sealed or unel discovery. This is the bigger issue now, not the side part of the motion to compel the witness lists being sealed or unsealed. This is the full motion to compel. And I wrote about this on Twitter because it's funny. Jack Smith filed a response to Trump's overly broad and vague motion to compel discovery in the documents case. It's amazing, I said. Just like he did in D.C., Trump is asking for a bunch of stuff that doesn't exist because it's based on conspiracy theories.

For example, like I said, I gave the example of the Fulton County Judge McAfee saying that the deleted January 6th committee materials that were just deleted don't exist and your motions denied. Trump's also asking in both jurisdictions, by the way, for all material and communications from any agency and any government, whatever that has exonerated him for anything. Trouble is, as we've discussed, to compel discover you have to be very specific about the document or documents you want, and they have to be material to your case. So in this case, Trump is asking for documents that show vindictive and selective

prosecution. Well, first, as Jack Smith explains, Trump is a stopped from asking for it. He's prohibited. He can't ask for it in a response to a motion to compel because he didn't raise it in the motion to compel because when you have a motion, you know, a group of motions, if you don't bring it up in the first one, you can't bring it up in the third one. Yeah, I mean, it makes sense, right? You're filing the motion. So your motion defines what the argument is going to be about. And that's important because whoever responds to it, they can only respond to what you put in the motion. So you can't come back in your reply to their response bringing up new stuff. Or else the response, response, surreply, surreply would go on forever.

Right. It has to be kind of like a cross-examination and a redirect can only be about what was cross-examined, things like that. Again, because otherwise it would go on forever. And also, Jack Smith points out, he has asked for about vindictive and selective prosecution in his motion to dismiss based on vindictive and selective prosecution.

That's the proper place to do that. But he says, you know, oh, and he also says, now that he's filed that, I'll be responding to that soon. Hang on to your hat. However, he says, since the government asked to file a surreply, Trump, as forecasted, has filed a motion seeking dismissal on the basis of selective and vindictive prosecution, raising the same arguments that the defendants made in the reply to their motion to compel,

as well as some additional arguments. Thus, the arguments that were improperly raised in the reply brief have now properly been raised in Trump's pretrial motion under federal rule of criminal procedure 12. The government will use its forthcoming brief in opposition to Trump's dismissal motion to respond to those arguments in depth and show why they fail. So that's basically Jack Smith saying, he can't bring up the vindictive and selective stuff here. He's brought it up in his vindictive and selective motion. I'm going to respond to that.

However, he says, the government nonetheless briefly addresses the standard for discovery on claims of selective and vindictive prosecution in the event that you, Judge Cannon, decide to address the discovery issues raised for the first time in the defendant's reply separately from Trump's motion to dismiss. So if you wrongly want to talk about this shit here, I'm going to give you an argument. It's basically what it boils down to. And they have to. They have to, right? Because they're responding to the flood-the-zone approach, the flood-the-zone strategy, where Trump is going to just throw out anything that crosses his attorney's mind while sitting

at the computer, comes out in every response to everything. Because they know that this judge isn't disciplined enough to sort those things out. She can easily be distracted and kind of drag down a rabbit hole. So it puts the prosecution really in a disadvantage. They kind of have to bat everything back in every opportunity, even though that's not the way that it's supposed to be done. No, definitely. And so as far as the hearing that happened today, there weren't any decisions and rulings. And there wasn't on a trial date either. Public access to non-classified will come later in the show. We'll talk about that. Jack Smith proposed a July 8 trial date, which I thought was interesting. Trump said after the election, but I suppose we could go on August 12th, which to me was

a clear move to block the calendar with a friendly judge in the three months before the election, right? That's when the DC case could go. The DC case could go in August if the Supreme Court does the right thing and rules on immunity in a timely fashion. And also August is when Fonny Willis wants to start her trial. There hasn't been a trial date set in that case either. And I think Trump is trying to park his favorite judge in the August spot, August, September,

October, to prevent anyone else from being able to schedule trial during those months. And then he'll count on some last minute delay in Florida successfully pushing all of his trials past the election. He's done it before. Playing judges against each other. He played Judge Merchan and Judge Angoran against each other until Robert E. Kaplan from the Eugene Carroll case wrote them a letter and said, Trump's trying to schedule his stuff at the same time so that he can delay them both. And that's when the judges got together at a little conference and staggered their scheduling.

But he's well known for trying to do this, and I think that that's what he's trying to do here. And I think that didn't they address that in the hearing today? I think the special counsel's office, one of the people arguing, said that that's exactly it was Jay Bratt, I think, said that's exactly what Trump is trying to do. Yeah, there's no question. That's what he's trying to do. He sees it's probably a long shot that the DC case will be ready to go before the election. But if it is, it's only going to be in those last three months, right August September October

And so he's trying to like you said fill that slot up with his with his favorite judge also knowing There's really no chance there hasn't been for weeks now really any realistic chance That this Marlago case is going to go before the election So even if she takes that she takes the bait and goes with his August 12 date, they're not going to make it. She's going to be taken off, off track 50 more times between now and then and the thing will keep getting delayed. I'm kind of surprised that we haven't heard more about a discussion of the immunity motion

in today's hearing. I really saw that as the time bomb that could have put the entire Mar-a-Lago case on a stay, because I can see her. A lot of us thought, yeah, a lot of us thought she might just come in and say, I'm staying everything because I have an immunity motion here. I need to hear what the Supreme Court's gonna say

about immunity before I decide the immunity motion in this case. That can still happen, we don't know, but we'll see, we'll have to watch that one closely. We have to see what her ruling is. She might say it in her ruling. Yeah, yeah, yeah, it could be there. For the way the trial date comes out, who knows.

We don't have perfect clarity on what happened in the hearing in which no technological devices are allowed. Right, none. We're trying to piece it together. None. All right, thank you for sticking around with us through this very long A block. We had to get through it.

And we are going to be talking with our CPAT expert, Undersield, in our Undersield segment after this break. And then we've got a lot more news to get to. Everybody stick around. We'll be right back. Bum bum bum 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 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 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 That's classified. What? It's classified. I could tell you, but then I'd have to kill you.

And joining us for our, you know, limited edition segment under seal is Sipa Expert and a good friend of ours, Brian Greer. Hi, Brian. Welcome. Hi. Thanks for having me back. Yeah. No, so due to like some time travel and recording stuff, Andy isn't here for this particular interview, but he will be back for the C and D block of the show. He's on a plane to another mystery destination because he is a man of the

world, a traveler, but he won't be joining us for this particular segment today. And I just wanted to get caught up because it seems that Judge Cannon did something right. And I was very impressed by that. Now, just a quick rundown. I think our listeners, the listeners of this program understand that, you know, Jack Smith filed a whole big motion about redactions, but that's about unclassified stuff and motions to compel. and Judge Cannon's

little secret shadow docket, which we'll get into in a little more detail later in the show. We're not going to talk about that. There was a hearing on Friday, and the CEPA Section 4 stuff wasn't really addressed, which kind of gives us a lead in to what we're going to be discussing today because, as you know, the government goes in and works with the judge, ex parte, without Trump there to say what the, how they want to redact things, how they want to summarize maybe so that they can present the classified material at trial without, you know, a risk to national security.

And those filings are usually ex parte, but Trump wanted to have a look at those. And then secondarily, Walt and Carlos, which is how I refer to, Waltine, Nada and Carlos de la Vera, wanted to see the actual classified information and there were some motions there. And so she actually came out with some decisions on Trump wanting to see just the SEPA section four filings from the government so that he can know what's going on and be adversarial about it and about Nauda and Dale O'Vara getting this classified information. So tell us what the judge actually came back with on these two motions. Yeah. So first there was the motion where all the defendants wanted to access the government's

section four filings, which again are virtually always ex parte, so they can't see them. And that's the whole point of the proceeding is that the government has this sensitive classified information they don't want the defense to see. Yeah, that we were worried that she could say it's cool was like freaking everybody out. Yeah. And you know, they, I guess to be like a little fair, they didn't want to actually see the records. They just wanted to see the briefing. But the briefing typically refers to the classified records and why they're classified and all that,

at least a large chunk of it is. Now, there are some typically unclassified aspects of those briefs, just like the legal standard and legal background, which we'll talk about. But anyway, I've never seen a court grant access or even like seriously entertain it in the way that she has. So it was a little scary that she entertained it so seriously, but she ultimately came to the right conclusion and denied that motion. Now you, I think pointed out on Twitter that she, in a classic Canon way went about it, that she went on for probably like six pages in her ruling about how she disagreed with DOJ's ruling at the statute. Basically, the question was the statute says the court may grant that it's ex parte. DOJ basically

said we've never seen it. There's no case law ever granting access. And so they couldn't really think of a scenario where access was appropriate. So they were essentially reading it as a mandatory. But anyway, she went on for page after page saying their reading is wrong. It is permissive, yadda yadda. And then spends like a little, literally just a paragraph saying, but I'm gonna rule in the government's favor anyway.

I was so confused by this ruling. You're right, I put a thread out on there. And I know Andrew Weissman, who hosts, prosecuting Donald Trump was like, yeah. And because she was like, DOJ, you suck and you're wrong, but I'm gonna rule in your favor. And she didn't say why. Yeah, that was weird too.

The only thing she said was, this circuit does it this way. So even though you're wrong government by saying the circuit does it this way, I'm going to deny, you know, Trump, Walt and Carlos from seeing these filings. It was just the most bizarre because I was waiting, I'm reading it and I'm like, oh God, my heart is sinking into my chest because she's telling the government they're wrong on all this law and precedent and all this stuff and you're getting the wording wrong. But then in the end, she ruled in their favor. It was just the most bizarre. Without saying even, and here's what overcomes my concern about the word may and shall.

And here's what overcomes. There was nothing like that. It was just like, you know, you're wrong. Trump is awesome, but I'm ruling in your favor, DOJ. It was just weird. It was odd. So, but she'd got the ruling right. Yeah. Yeah. She did. Although there was another weird thing that she didn't even acknowledge, which is in a separate order. We'll talk about it in a second. She slipped in that she wanted DOJ to release one of its briefs from their Section 4 filing as to Walton Carlos. And it looks like to me, she didn't explain it,

that DOJ actually prepared an unclassified version of their Section 4 brief that could be filed publicly. Like, it was a supplement. It was very strange how this came to be. She didn't explain it, but she ordered separately. That needed to be released. It was very strange how this came to be. She didn't explain it, but she ordered separately. That needed to be released. It was. And you know what? That is exactly what they wanted to see in terms of like, here's all the unclassified arguments DOJs making as to why

that information wasn't relevant, helpful, all the legal standards. So the public got to see all that, which is not normal. The world didn't end, but sort of ironically, that came after she ruled against them. You know, like they wanted to see that thing. They wanted to see that two months, three months ago, and she didn't allow them to. And then she just let everyone see it just this week. It was very bizarre that she didn't even acknowledge what

was happening. Well, there's a lot of that going around in this case. We talked about it in the, I think in the first in the A block about how with these witness lists attached to the motion to compel and Jack Smith wanted this little piece of evidence to keep it under seal. He wanted that ex partean under seal and she granted that but then changed her mind and then Trump comes out with his filing about unsealing these things and gives public information about this witness. Kind of almost tiptoeing up to the line if not over it of violating the under seal part

of that evidence. It's bizarre that this is allowed to happen. But she has this whole separate thing where she doesn't want anything filed, redacted, or under seal without leave of court. And so there's this whole behind the scenes emailing going on. It's just bizarre. Yeah. Yeah. Now, you got a little bit of an insight into what happened at the hearing. We talk about it throughout this episode, me and Andy, but the government was pretty hostile, or excuse me, Judge Cannon was pretty hostile to the Department of Justice in that hearing. Yeah, it looks like, you know, I think there was some optimism, right?

I tried to be optimistic the last time I was on the show, at least, that she would rule in the government's favor on all this Section 4 stuff. There's one ruling we're waiting for, but on the other, she has, right? So, there was a question, hey, is she finally seeing the light a little bit? She's now seen all the classified records that Trump stole. She's seen declarations about why they were harmful in that security. Could this finally wake her up to be changed? And there was some optimism for that this week.

But then the hearing on Friday and all the reports coming out, both the articles I've seen, I've talked to some people who were there is she's same old Canon, nothing has changed. She's still hostile to government on everything from the trial date, on the motions to compel,

which we can talk more about, about that delay in the case, about this witness identity issue. I know you all have talked about separately, like across the board, it was just like consistent hostility. I think the only good thing for the government it sounded like was the notion that Trump should get some breaks because of the campaign trail. Like she was not having that. It sounded like. So there's a little optimism for that. But... Well, I'm also worried she's trying to park a trial that's not going to happen.

Yes. In August, September, October, November, so that nobody else can have those days. That's what I'm concerned about. Yeah. Yeah. And what does that even look like? I mean, we've seen like the Judge Merchan in Manhattan DA's office talking with Judge Chutkin ahead of them setting trial dates and Judge Merchan saying, I'll defer if you actually go to trial on March 4th for the DC case. You know, they're friendly. But what happens with a Judge Cannon if she throws this thing on the calendar in August and eats up those three months leading up to the election. And then the Supreme Court magically comes back in time to schedule the DC trial in August. What happens when Judge Chut can call as Judge Cannon?

I don't think it's going to be as cordial or there will be any deferment as there was before. And Trump has a history of scheduling trials at the same time to try to delay them all. He did it with Judge Merchan and Judge Angoran. And Robbie Kaplan, who's not part of any of those cases, you know, she was Judge Kaplan with Eugene Carroll, notified Judge Merchan and Judge Angoran and said, Trump is trying to schedule the New York Attorney General Civil Fraud trial and your business falsification trial at the same time in an effort to push

them both past the election. And they caught wind and they got wise and staggered their trials. But I don't see Judge Cannon being as cooperative. No, no. And the thing everyone should realize we talked about several segments ago is there are some of the final stages of the SIPA proceedings are still because this is still a pretty condensed schedule right on the eve of trial, even under the government's proposal. So like it's going to be very likely if she makes a bad ruling to DOJ there, like that is when really the rubber hits the road because a ruling there means the information DOJ doesn't want to be public at trial would be made public. That's the most likely appeal we would ever see in this case. So under both cases, that could occur

and like Trump's going to trial in August like he wanted, like that would be like August 1st, you get that ruling and everything's off in the DC case, which could have gone then isn't happening either. So I imagine if I'm Judge Chutkin, I'm just scheduling. I'm just scheduling for August if I get the opportunity to do so. Yeah. And just doing it too. And just staying there knowing that it's probably not going to go to trial down in Florida. Yeah.

And especially, you know, there is this presidential immunity assertion that Trump has made in Florida. She will have to entertain it. It's well, she should deny it. We'll see, right? Maybe she won't. But even then, I'll unless she finds that it's frivolous, she should, but she may not. Then we're going to be looking at a stay there potentially as well, or the 11th Circuit, even if she doesn't do that, the 11th Circuit could still stay or the Supreme Court could stay it. So, her case is going to... So, there's still some hope in that her case is going to get knocked off probably, off track completely by this immunity assertion. And then that means that August date, even if she sets it on Monday, is going to have to come off the books. So, maybe Chuck could still swap it back

in because her case will sort of catch back up. Yeah, I think it will. She may even truncate that amount of time needed to go to trial. Although that does kind of open her up for an appeal because she promised those full days and to truncate it at all because it's been stayed. And Trump made a big stink about, don't even deliver donuts to my house. I don't even want to see anything. And she came back and said,

well, the government didn't do anything wrong, but yeah, okay, we ask me for permission to file in the future or to produce anything in the DC trial. What are we now waiting for? We know that she hasn't set a trial date, she's gonna rule now. We know that she's still waiting to rule on some aspects of SIPA, which is your area

of expertise. What are we still waiting for in SIPA? Because she said no to Nauda and De Lavera, but she hasn't mentioned his lawyers and she hasn't talked about, and she said no to the SIPA section for filing access for Trump, but some other things are still up in the air with Trump. Yeah. So as to the merits of the's section four motions, there was two. One was withholding all of the discovery from Nata and Dela Vera, not their lawyers who are seeing it, but just them, because basically they don't need to see it. They're not charged

with S&M and not jet crimes. She granted that. That very clearly, she didn't even hand ring really about that one. And then, but then there's still an underlying motion, which is for Trump's entire team, including Trump. And then Nauta and Dio Leverra's lawyers, for all that scope of classified discovery, there are some surgical categories of information that DOJ wants to withhold. We don't know what they are, but it's probably just like human sources, intelligence collection methods,

ancillary stuff that's not even relevant, like, I don't know, just ancillary stuff in these documents. Maybe stuff about special access programs or COVID action that they're sort of surgically withholding that information from a small sliver of discovery is sort of my supposition. So that's still pending. She's never, normally that would be in a classified ruling anyway,

because it's all classified. You could easily see a public summary of that ruling from her, but we haven't seen any of that yet. The tea leaves are good. She's marching ahead on the schedule. She probably wouldn't do that if she was about to deny this motion full. The rulings on the other motions are also a good sign. So I think she's probably ruling the government's favor. Sometimes judges make little tweaks. Like if you have a summary or substitution, they change the wording a little bit. That's normal. That's fine if she does that. But so we're still waiting to hear on that. And then once we hear on that, we'll be marching ahead to the next phase of SEPA. But that's stuff we normally never even get to see, which is what's very weird and interesting

about this case. But you told me before I hit record here that this might be the last time you're on for a while because the next phase that we go into is there's just not, it's going to be stuff that we don't normally see. But we're seeing a lot of stuff we don't normally see. What are your thoughts on what's coming up next? Yeah, I was, we've had amazing insight into classified prosecutions, this whole case that the public's never had before, maybe a little bit with Libby, but really not even comparable there. And I didn't even expect the section four to be this public,

but it has been. But yeah, so coming up, so first, there's this potential stay for immunity, which may throw everything off, right? But just put that aside, let's pretend that's not happening. Right, that's the trial date. We don't have, she didn't, as it goes normally with her, she didn't make any rulings from the bench from hearing Friday. So we're still waiting for trial date. Right. But because of the immunity assertion, the case could get stayed in the next month or two. Let's just assume that doesn't happen. What's next in the sepa phase is basically once section four is done, think of that funnel that I keep talking about, we've basically then had the realm of classified information that's relevant to the case set in stone.

And then the next phase is to narrow that and it's incumbent on under CEPA section five, the defense has to give notice of what they're going to use, what classified information they're gonna use at trial. Inevitably the notice is too vague and then there's litigation about making it more specific, that's gonna happen for sure. And then once that is set making it more specific. That's going to happen for sure. And then once that is set, then you look at, okay, how are we going to use this information

at trial? There's normal litigation about under 6A, about use relevance, admissibility. Put aside that it's classified, basically. Is it admissible? Is it hearsay? Right? Like everything the CI collects is... Oh, so this is kind of like a motion in limineb.

Yeah, it's basically, yeah. It's like everything the CI collects, I used to this is kind of like a motion in limineb. Yeah, it's basically, yeah, it's like everything the CI collects. I used to tell prosecutors this, it is a hearsay organization. That's its specialty is say someone else told me that someone else told me X, Y, Z. Like none of that stuff is actually usually admissible for the truth. It might be admissible for under some exception, but it's typically not admissible, at least the CIA stuff. And then it may not be able to be authenticated, it may not have a proper foundation. Some overseas service collected something and gave it to the CIA. There's no basis for foundation for that that they can lay.

And do you get a lot of affidavits and declarations from experts inside the agencies to inform the judge. Because it's going to basically be Trump saying, none of it can come in. I don't want any of it. It's all hearsay. It's all whatever. Well, no. Well, this would be more Trump trying to bring it in. The case is probably what would happen at 6A.

I'm saying, DOJ, the only classified information DOJ wants to use is probably the records. So those are just have to, they do have to be authenticated by someone in the government. They might just stipulate to that because they're obviously government records. But then if Trump wants to bring in stuff he's seen in discovery, that's where it becomes, admissibility becomes harder. Because again, if he sees some CIA cable and it said that there was a foreign source who was in the Trump documents and you know what, he's fine. In fact, he's thriving. Or if he's got an Alexander Smirnoff 1023 that says that. Yeah. Yeah. Yeah. Yeah. So Trump may try to bring that into the case. But again, that's

going to be hearsay. It's going to be probably not have a proper foundation, all that stuff. The normal stuff. I won't be material. Yeah. Yeah. It not be relevant. So, all that gets litigated. And then, once you narrow it again, there's litigation of, okay, how are we going to use it at trial? Do we use the sign of witness rule, which I won't repeat, but I can go read about about, you know, do we testify basically and vaguely about this? Maybe a covert officer needs to testify about one of the documents. Do we protect their identity at trial? All the sort of trial protection things is the last phase. So we all have that to come, but that, because that's all classified, the government isn't going to declassify any of this until the eve of trial. And so all

this stuff is going to be classified and we're sadly not going to learn much about it, I think. Yeah. And there's another potential issue that could be ripe for 11th Circuit as if Trump wants to bring something in and the government doesn't want to and has experts that say it can't be or that it's immaterial. And she rules that it has to come in because she seems to really like be into this transparency deal for all the wrong reasons, then they

could probably go to the 11th Circuit. And we talk about that in other parts of the show too. He's finally made his, I'm going to go to the 11th Circuit if you do this in regard to unsealing the witness lists. But it's going to be very interesting, but maybe a lot of this battle will be on the public docket and subject to limited redactions. And we may have you back more often than you think that we would in a normal trial. Anything else that you want to tell us before we let you go today? I don't think so. I was just going to say, in case this is the last time for a long time, thank you for having me for these discussions. This is not what you get on cable news, right? This is in-depth discussion trying to inform your listeners and your readers

online who are super interested in this stuff. And so it's just been enjoyable to me to get to educate folks on what's normally a mystery and their interest and in civility and discussing the stuff is just super impressive. So thanks to you and thanks to all the listeners. Awesome. Yeah, it's when do we get to talk about this stuff? Yeah. Ever. So thank you.

Thank you very much, everybody. We have a lot more show to get to. So stick around. We'll be right back. ["Dogs of the Spring Court"] Welcome back. All right, Allison, we know all about the Supreme Court shadow docket, right? That's been talked about a lot. But we should address that Judge Cannon, through her unusual filing rules, has essentially created her own kind of mini shadow docket in Florida, ironically

in the Sunshine State. Sorry, I cannot avoid the dad jokes. It's horrible. All right. Back on February 6th, Judge Cannon prohibited any sealed or redacted filings on her docket without leave of court, which is course being permission from the court ahead of time. So no sealed or redacted filings on her docket without leave of court through public consideration. So, usually the way a motion practice works is a party will file a motion on the public docket and either redact the information they don't want the public to see or file separately

under seal. So, what you would see then on the public docket is that there's been a filing but you don't actually get to see what it is. But because of Cannon's order, the things both parties don't want shared publicly first get emailed to the court and to opposing counsel before there's any indication on the public docket. All right, so there's this on the public docket. All right, so there's this transaction of proposed filings going back and forth before the public knows anything about it.

So Trump filed eight motions to dismiss publicly. And he also mentioned that he'd emailed three additional motions. So because of that mention, we know that he filed 11 motions in total, but only eight are on the public docket at the moment. Now, Walt Nauta filed five motions to dismiss, which we did not learn about until the DOJ filed

its motion for public consideration motion for redactions. So it's bizarre here. You wanna to file something and you don't want the public to see it. So you email it to the other side. And then the other side has to file for a motion for public consideration, meaning like opposing the ceiling, essentially. That's the first on- docket official notification we get that there's an argument about a potential filing under seal. Or you can file something for public consideration as a leave to file something under seal. Yeah, it sounds weird. It sounds like...

It just has to be filed publicly on the docket. Right. So, you can't redact or file under seal without getting her permission first. So you got to... There now that creates a shadow docket. Exactly. So in her great efforts to be transparent, she's essentially created her own little shadow docket.

That motion for redactions was discussed at the hearing in Fort Pierce on Friday. Yeah, and we don't, again, don't have any from the bench rulings on that. And there are also potential consequences to her mini shadow docket, Andy. For example, each party had to turn in their proposed jury questionnaires, right? Questions for consideration. They had to

turn those in this week. And under Judge Cannon's rule of public consideration for filing under seal, Jack Smith's office filed a motion to file their jury questionnaire under seal because the Department of Justice says there's a substantial risk that someone may coach prospective jurors on how to answer the questions in order to get picked or stricken as a juror. Yeah, so let's think about this for a minute. It is normal to file your jury, your proposed jury questions. You have to file those with the court ahead of time. And the other side gets an opportunity to object if you're asking some like prejudicial question or something they can object and try to keep it out. And ultimately the judge decides what you get to use. So of course you wouldn't want the general public

to know what the questions are because you don't want some like juror, potential juror with an agenda to come in and try to game their way onto or off of, for that matter, the jury. I mean, it makes sense. Somebody not sneaky. It's an effort to be careful. Right. But somebody here probably does want that opportunity to go into.

Oh my God. This is literally the trial of the century. This one in the DC case. So if you're on that jury, there could be people scheming to be on that jury because they think it's an opportunity to write a book, to get rich, to become famous, or maybe worse, an opportunity to sink the trial or to vote for conviction despite any, you know, ever actually considering the evidence to bring all kinds of bias and predetermination

to the case. So you don't want any of that. So it makes sense how they try to do it. Yeah. And of course, Donald Trump opposes Jack Smith's motion to file a government's jury questionnaire under seal. But by the time the due date rolled around for the jury questionnaire, the judge hadn't responded to the government's shadow docket, mini shadow docket request. So he had to file it unredacted on the public docket, so he wouldn't miss the deadline. He then filed a notice to the court that he was withdrawing his motion to file under seal because of her failure to respond to it in a timely fashion and rendered it moot, which I think was just kind of a little dig. Yeah.

It's basically, I'm pulling my filing back because you never looked at it anyway. Yeah, in time. So I don't even want you to have it anymore. There. Yeah. I mean, if you're going to have a mini shadow docket, you got to at least stick with it. You got to read the filings and make some rulings on time. I know that's something that she's not really that focused on,

but she needs to work on that. So they filed their joint jury questionnaire filing, and all of it's in the same document, right? So Jack Smith's questions were in red, Trump's were in blue. And here are some of the questions Trump wants to ask. Trump wants to ask, are you registered to vote with which party and did you vote in the 2020 presidential election? Do you have any negative views about any politicians? And if so, which one?

Who doesn't have a negative view about any politician? I mean, no, I love them all. They are all terrific, honest, trustworthy people. Right. But if you get, well, I really hate that shifty shift, then I don't like that, you know, whatever. Which ones? Then he's like, that's a good juror right there. That's fair. Then he asks, from a list of news sources, rank them in order of most important or your primary news sources, number one. And there's like 30 news sources on here. Rank them, he wants you to rank them in order of most important or your primary news sources, number one. And there's like 30 news sources on here.

Rank them, he wants you to rank them. OAN, number one, of course. Are they still around? Is that a thing anymore? I guess not. What? Fox. I'm trying to think of what, what the dream list of ranked news

organizations might be for. Newsmax, OAN, Epic Times, Fox. These are truly Epic Times. These are truly epic times. I mean, really, man. Epoch. How closely do you follow the media coverage about this case is one of them, and could you impartially consider the evidence of this case irrespective of a defendant's motive?

That's an interesting one. That is a bizarre one. Yeah. And some of the questions. If I really wanted to break the law, could you ignore that and only look at whether or not there was proof? I guess, I mean, I guess that's what he's asking.

Well, he's campaigning on retribution and revenge. So maybe like ignore that part and just think about the evidence, please. I know I said that, but don't think about I said that. Yeah, exactly. Okay, DOJ questions. What do we got? Yeah, I'd like to...

Well, I was hoping you could read the DOJ questions since you're a former DOJ. Okay, here you go. You ready? First one is, do you work for any Trump properties? And if so, which? I would have stopped it right at the do you work for Trump properties? It doesn't really matter which one if they're working. If they're on the Trump payroll, I'm sorry, you're out.

You're not my favorite. Are you a resident property owner or renter at any Trump property? Another good question. This is the one that got a lot of media attention. Do you believe the 2020 election was stolen? Which I think is a totally fair question. Like it goes to whether or not a person has such concrete beliefs. It's deluded.

Yeah, exactly. If at this point, four years later, without a shred of evidence that the election was stolen, you still are holding onto that belief. You're probably not someone who's willing to put that aside and consider the evidence and be persuaded one way or the other. Yeah, you haven't considered evidence, so I don't see how you will be able to consider evidence. Exactly. Do you hate science? That's not a question. That's not one, but that's a good one.

Have you read or heard about the FBI's execution of a search warrant at Mar-a-Lago? Another interesting question. Do you believe the prosecution of Donald John Trump by the FBI and the Department of Justice is unfair? And do you have any concerns with a former president being charged with a crime? That's a good one. Yeah.

Because he's out on the trails saying immunity, if you don't have immunity, presidents can't do their job, will be hounded for the rest of our lives, although I have looked up the four living former presidents and none of them have been indicted, Andy. It's amazing, isn't it? It's, you know. And they've all operated under the assumption, as we all have that it's something that could happen They all have Nixon had that assumption so strong that it compelled them to resign and Ford knew it so well it compelled him to issue pardon

Despite having what Donald the fear that Donald Trump is so worried about will hobble the presidency It pretty much looks like every president had that concern that if they broke the law, they could be indicted and none of them were actually indicted. So I feel like it's pretty strong. Some else that came out of that Scotus ruling too that Norma Eisen pointed out. Oh, I actually, I think it was Lawrence O'Donnell

who pointed it out. He's like, did you notice that whole ridiculous double jeopardy if you're not convicted by a Senate just disappeared. They aren't even considering that as a question. Not even close. Not even close. Yeah. Why not with the rest of it? You got me. But here we are. And I will continue to be sad about this for a little while. But we do have to take a quick break and we will come back and we've got some great, great listener questions this week. And again, there's a link in the show notes if you want to send us a question and we'll get those questions plus one more quick story from your colleagues at CNN, Andy, right after

this break. Stick around. We'll be right back. Hey, everybody. Welcome back. Andy, we have some really great investigative reporting from the K-File team at CNN. Those are your colleagues over there. Yes. Apparently Ken Chesbro concealed a secret Twitter account from Michigan prosecutors,

which means he likely did that with Wisconsin, Arizona, Federal, Georgia, like everywhere else that he's spent Arizona that he's been talking to people, right? Yes. But this is just we have Michigan here because your folks at CAFE or for your friends over at CAFE, we're able to get these recordings. Hiding dozens of damning posts that undercut his statements to investigators about his role in the election subversion scheme.

Chesbro denied using Twitter, now known as X, or having any alternate IDs when Michigan investigators directly asked him last year during his cooperation session. And that's according to recordings in his interview. I don't use Twitter. I don't have any alternate Twitter IDs. They played on television, the recording of Cheese Bro answering the question just falsely. Yeah, just a lie.

It's really profound. It is, because- Oh no, I don't have it. I don't tweet anything. I don't- Because he does. It's Badger Pundit. Cheeseboro's lawyers have confirmed to CNN that Badger Pundit belonged to Chesbro.

Cheesebro, Chesbro. I know I go back and forth. I'm sticking with the cheese. Did you go on the cheese? I was just calling it cheese. Now, the cheese hasn't been charged with anything in Michigan. Let's say that. But one of the prosecutors said they're very interested in what he has to say on his secret

Twitter account because some of his posts, Andy, are in direct conflict with some of his testimony to Michigan prosecutors. Here's just a couple of examples and there are many. He told Michigan investigators that the elector slates were only a contingency. You're making a big deal out of nothing. But on November 7th, 2020, the day they declared the race for President Biden, his Twitter account posted, you don't get the big picture. Trump doesn't have to get the courts to declare him the winner of the vote.

He just needs to convince Republican legislatures that the election was systematically rigged, but it's impossible to run it again so they should appoint electors instead. Just totally contradicting what he told Michigan prosecutors. He also told investigators that he felt misled by the Trump campaign for concealing the entirety of their plan from him. He claimed it wasn't until last year he fully realized that the campaign had always intended to deploy the fake electors regardless of the outcome of the election lawsuits.

That idea was first raised in a September 2020 article in the Atlantic, September 2020, which quoted a Trump legal advisor who described using alternate slates of electors to overturn a Trump loss. Now Michigan investigators, you know, obviously and rightly asked if he had knowledge of that Atlantic article at the time it was published. And she's brought, said, no, no, no, no, it wasn't me. It was Badger pundit. No, they didn't see it

Badger pundit tweeted About it the same day it was published and Defended the plot went into detail about what was in the article. I mean he was probably the Trump legal advisor believe the Trump legal advisor quoted in the article. Probably. I mean, probably. Now, speaking to Michigan investigators, Chesbro criticized the more radical plan put forth by conservative attorney John Eastman, which included having state legislatures choose their own slates of electors for Pence to count on January 6.

But under his online alter ego, after the election, he tweeted numerous times that Pence had the power to count the fake electors benefiting Trump, which is Eastman's plan. All of the, you know, I was misled. I wanted a contingency plan. It was John Eastman who was out there on a limb trying to get this just to go forward regardless of what they do in the courts. Meanwhile, on his secret Twitter account, he is tweeting every single thing that EZ was saying. Like, did he forget that he put all that stuff out there that could easily be found and tied

back to him? The CNN team just figured it out. They looked at the things the account had posted and references that he had made and the way he described himself and the email account he used. And then they just easily prove that it was him, went to his lawyers and said, look, we think this is your guy. And they said, yeah, you're right. It's our guy. So it's just incredible to me.

And the other thing he said, he made this big deal when he was talking to the investigators about how I insisted that all the fake electors certificates include disclaimer language that said this is only to be used in the event that we've been successful in litigation and the courts have said that this is a lawful thing that we can do. And so anyone that didn't use that wasn't following my advice. That's like his little Trump card. Like this proves that I only intended to do something legal and not something criminal. But in reality, the whole time he's pitching this plan as like the, you know, the time bomb

for the election. Just send these things downrange and we tee up Congress to be able to take the determination of the presidency back from the, from the electors. And that, and that whole secret Twitter account, that's not so secret anymore and gives, gives the whole game away. Yeah. It's going to be interesting, I think, given, you know, the Jack Smith can is pretty good at getting Twitter data. It's going to be very difficult for Ken Chesbro to argue that that was not his Twitter account. He's admitted it as much to CNN. And it'll be interesting

to see how this impacts the Jack Smith DC case in which he is an unindicted co-conspirator. Yeah. If he ever had a one in a million chance of becoming a cooperator on the federal level and getting out from under those cases in the way that he has done until now successfully at the state level, that chance is gone. There's no, they won't touch him with a 10 foot point. Dunzo, Dunzo.

All right. We've got some great questions this week. What do we have, Andy? Yeah. So, as always, we typically get these themes and the questions, which is kind of fascinating. People have the same kind of idea comes to them. This week, we got... There was one really interesting theme that we got from a couple of people, all of whom

were reacting to the emergency show, 65.5, that we did a a couple of people, all of whom were reacting to the emergency show 65.5 that we did a few days ago. Some of the folks that hit on this were Elle Wheelock03 who wrote about it. And also somebody named Brydie from Melbourne, Australia who in her question, this I loved, she confessed, quote, "'I get my further fix by listening to Andy's audio book,

which is both interesting and horrifying. And that is the first time anybody's ever described my book to me as horrifying. So good for you, Birdie, that's fascinating. But in any case, I'm gonna read Sophie's version of the question, as I said, they were all getting at the same point. Sophie says, is it possible that the Supreme Court Sophie's version of the question, as I said, they're all getting at the same point.

Sophie says, is it possible that the Supreme Court has taken this case up, expanding the brief in the way that it is done, so it can in fact rule decisively that no president is above the law in anticipation of, or potential for, Trump securing a second term? In other words, if the question is settled by all the courts in the land now before he gets in, will it not make it impossible for him to abuse his position if you were to hold the office of president at any point in the future?

Or as Brydie put it in her question, to limit damage should Trump get reelected. So, I don't know, what do you think? What's your reaction on that one? If he gets back in, there won't be another, I don't think election to get him out and prosecute him. You can't prosecute a sitting president. I don't think he, I think we have a much harder time

getting him to leave if he gets back in this time. Yeah. Although, I guess the theory, and I'm just arguing the counterpoint here, I guess the theory would be, so if you have no criminal immunity, you still have to comply with, as Judge Ludwig would tell us, the vesting clause. Maybe it makes it easier to get him out because it would be essentially the Supreme Court telling him, no, Buster, you are subject to all levels of criminal liability. And okay, maybe this case is going to hit the rocks because you're going to dismiss it and your puppet attorney general won't bring a case against you in the next four years. But four years from now, you have to go. And after that, Katie bar the door, you're stuck.

You can't be president anymore and you could go to jail if somebody proves a case against you. Oh, either that or I guess somebody would have to sue to get him out of office and it would have to get up to the Supreme Court. And of course they would, you know, give a super scorching fast briefing schedule of two months while we all waited in anticipation.

Yeah, I don't know. You know, I don't know. I think it, I think maybe they broadened the question so that they could say that some in certain circumstances, like the three examples that were given in one of the briefings, you know, with sending drones in an act of war or, you know, things like that could, can be immune. Those are official acts, but nothing in here was official acts. And the DC circuit, did there even if with that?

They're like, look, we're only looking at here at this, alleged crimes to subvert the election and overstay her for your term. But even if we were gonna go beyond that, no, there is still no immunity here. And so, yeah, I don't... I do think there is a chance that they took it simply because they want to weigh in on an issue of this much importance. Yeah. I don't think it was

the right thing to do, don't get me wrong, but I do think that that might be, I think that's a likely motivation. And if that's the case, the door is still pretty far open for them to come out with a resounding opinion that crushes his hopes. And look, that may be too late to make a difference for this case. It may throw the case after the election, he gets reelected, he dismisses the case, it's gone forever. So, again, that's a huge cost to preserve for yourself

the ability to have the final word, but maybe that's what's driving him. Maybe that's why you didn't see any of the liberal justices' dissent in the decision to answer it. I don't know. We'll never know the answer to this question, but it is an interesting way to look at it. And I appreciate that the listeners are trying to find a silver lining. Yes, that actually is really nice. And we will learn more when we get the written decision and ruling from the Supreme Court after their April 22nd oral arguments. We just don't know how long that will take.

But as they made clear in that hearing in Florida today, the Department of Justice, the 60-day rule, does not apply to trials. And so if the Supreme Court can get that done in a timely fashion, may preferably with a ruling, we could see an August-September-October trial or a trial that starts in October and spans through the election. Now that of course wouldn't give us a verdict or an acquittal or a conviction I should say before the election. But you'd at least get to finish it

before he's inaugurated. Yeah. Yeah, now he could inaugurate, he could get inaugurated and pardon himself the next day. He's never gonna go to jail that quick. So like there's all sorts of, at least at least it would be finished He'd be convicted it would be finished and he will be he will at some point be convicted And we've still got that March 25th trial that we're all looking forward to with the election interference

34 felony counts in Manhattan brought by the district attorney there. Thank you so much for your thoughtful questions. Again, there's a link in the show notes if you want to submit any. We love answering them. They make us think. They make me think. I think so many, like down so many other paths that I hadn't considered before. It makes me so much smarter, y'all.

So thank you, thank you. This has again been another long show. Imagine if we had tried to stick the bonus episode in with this episode. I just wouldn't have been possible. So thank you very much for listening. We really appreciate all of you. Do you have any final thoughts today, my friend? No, hang in there. We got a long way to go.

Long, long way to go. So we're going to try to keep our eyes high and keep it upbeat. And we'll be here to call it with you every step of the way. That's correct. Thank you so much, everybody. I've been Alice and Gil. And I'm Andy McCabe.