Jack - Episode 79 | Thought Police

Episode Date: June 2, 2024

Judge Aileen Cannon has denied DoJ’s motion to modify Trump's bail conditions. The Smith team filed the motion without conferring with Trump, but not on an emergency basis. She also denied Trump’s request for sanctions.  Jack’s team has refiled their motion after conferring with Trump’s lawyers.Cannon calls for briefs in an upcoming hearing to determine whether the appointment of Jack Smith is lawful.Andy and Allison also detail why this case was brought in Florida and not D.C.Trump was found guilty on all 34 felony counts in New York.Plus, a listener question.The latest:Government’s Motion for Modificationof Conditions of Release https://s3.documentcloud.org/documents/24712899/592-usa-mt-modify-conditions.pdf Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ 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

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

Send me to jail. Welcome to episode 79 of Jack, the podcast about all things special counsel. And a little bit about the Manhattan district attorney. It's Sunday, June 2nd, 2024. I'm Alison Gill. And I'm Andy McCabe. Just a little bit about that other case. I don't know. We'll get into it in a sec. We have a lot to cover in Jack Smith news, including Judge Cannon's denial of Jack Smith's motion to modify Trump's bail conditions, along with an order for supplemental briefing on the Jack

Smith appointment. Yeah, they're still arguing that he was not appointed or funded properly. And there's going to be a hearing coming up on June 21st about it. We'll talk about that. And we'll talk about why this case was brought in Florida in the first place and not DC. But we would be remiss if we didn't address the 400 pound convicted gorilla in the room. That is the 34 felony counts guilty found by a jury of his peers in New York State. So Andy, I think this is a perfect segue into our installment of Good Week, Bad Week. I think it is. Yeah. Who should we talk about in context of good week, bad week? Well, JD Vance maybe or Tim Scott, he had a kind of an embarrassing week. He probably doesn't know

it though. I was gonna say, does he know? Does that even register with Tim Scott? There's no shame. They're shameless. But yeah, I think there was something else that happened in Manhattan in the last few days. There was. That trial wrapped up yesterday, I think, to everyone's surprise, a little quicker. The jury came back a little quicker than anyone anticipated. Certainly under the circumstances, end of day, Judge Mershon leaves the bench intending, as he announced to both sides, that he was going to go in and dismiss the jury for the

day. And he comes back from that errand a few minutes later and announces they have a verdict. Which is, I was actually in, I was in New York for another engagement and I was in the car heading for the airport. And I thought, oh my God, I better see if my other employer needs me to stick around. So that's how I ended up getting stuck in New York last night. But interestingly, as soon as the judge said from the bench, we have a verdict, you knew at that point that there was no mistrial because technically a mistrial is not a verdict. So that was the one result that I was really kind of, I don't want to say worried about, but least looking forward to. Like if you had a, it was bogged down in an 11 to one and the jury just couldn't decide

on a conviction or an acquittal. But yeah, that option was off the table with that announcement. And then we waited, we waited for the, here are the results. Yeah. And with just under 10 hours of deliberation, it seemed pretty obvious that there was at least one guilty count at probably more because they were split up in groups of 11, 11 and 12. Right? 12 entries into the business ledger, 11 checks and 11 invoices to get the checks. And there were 11 and not 12 because they

combined January and February, I believe, into a $70,000 payment. And so I was like, you know, the night before when we got those other jury notes, because we, you know, we'll talk about this on Clean Up on aisle 45 too, but the jury sent in a note first asking for four specific pieces of testimony. And then they asked for jury instructions again, because they don't have a hard copy of those jury instructions and I put out a thread saying this is really bad for Donald Trump because they're specifically asking for stuff that the DA raised in closing arguments and I said let's wait and see what happens which jury instructions they want and I said that would be a big hint because if they want all the jury instructions, then

this is probably just an informational request. But if they want specific jury instructions, then it sounds to me like they're trying to confirm something they already know to be true. Yeah, either that or at least really zeroing in on what I've always thought was the key issue in this case, the hardest one for the prosecution to get over and the, quite frankly, I thought would have been the most productive one for the defense to hammer away at. Not sure they did that, but the issue being tying Donald Trump directly to these decisions and these payments and that sort of thing.

Well-known, only one witness puts him in really direct involvement in that. It was Michael Cohen, and Michael's got all kinds of problems and credibility issues and things like that. Now there's a mountain of circumstantial evidence that puts him in the grease, but there's a big difference between circumstantial and direct evidence. So when they came back and asked that question,

very specifically wanted instructions on that went to that issue of, you know, how much can we assume basically from circumstantial evidence as opposed to direct evidence? That's not the exact question they asked, but that was what they were getting. That was one of the things they wanted, right? And the way that the DA put it in closing arguments, and I think in the jury instructions was that if you wake up and you see people and it's not raining but you see people that are wet and they have umbrellas you can infer that it was in fact raining and that was part of the jury instructions that they wanted. They wanted pages 6 through 35 not the entirety of the jury instructions

which is what led me to believe that this was confirmation of something that they had already figured out. That's exactly how I read it. I thought this is them basically saying, is it okay that we assume it was raining? And the judge said, you know, he walked them through that same example again yesterday from the bench. So I thought that was, that was probably a positive sign for the prosecution. And then then they wrapped it up. You know, that was probably a positive sign for the prosecution. And then they wrapped it up. There was also a lot of talk over the last few days about the potential of a split verdict.

I know some of my colleagues were floating the idea that, oh, it's possible. Juries often will try to compromise to get a conviction and sometimes they'll compromise by splitting the verdict. And here they could do that if they focused on the checks, maybe only convict them on the nine checks that he signed. Oh, the nine that he signed versus the 11 that were signed to others. I never really put a lot of stock in that because if you assume that the nine checks he signed were enough to convict him, then you have to convict him on the invoices and ledger entries that are associated with those checks. And if you are making that assumption that the invoice and

ledger entries are good, are a valid representation of the crime that occurred here, then you have to take the other two checks as well. The whole thing was kind of inextricably linked. And, you know, we can only assume that, but that's likely the way they looked at it. Yeah, and I was thinking, you know, because in my soul I was like guilty on all 34 counts, if I'm on the jury personally.

But I was also hedging a little saying it could be possible that they only go by the checks and the invoices. And since the ledger entries are a little more removed, perhaps they would acquit on the ledger entries. But like you said, especially with Pecker's testimony and Weisselberg's handwritten notes on the invoice from which Cohen borrowed the $130,000 from lying to a bank about what it was for. You can't separate Donald Trump out from that. And that bit of testimony they asked for from David Pecker, where he took a phone call from Donald Trump, tried to tell him to buy the story, and Donald Trump was like, all right,

we'll all talk to Cohen. Right. And then I'll have him call you. That deputized Cohen, meaning Donald Trump was then saying, whatever Cohen tells you is what I told him to tell you. Right. And that inextricably links him to the conspiracy. That's the other thing that they wanted testimony about was the August 2015 Trump Tower meeting.

All sorts of really interesting Trump Tower meetings, by the way. What a place. With lots of conspiracies. This one though, Don Jr. wasn't too dumb to crime. This one, they all got together. There was a meeting of the minds that they would conspire to interfere in an election, help impact the outcome of an election, which is against New York law, which was one of the underlying unlawful means, one of three that the jury could choose from to determine

that the falsification of business records was in fact to cover up or further commit more crimes. And that was one of the three of those crimes. Yeah. And I, you know, that Weizelberg handwritten note, that was the Magna Carta of this case. That was the key piece of evidence. It tied in. It corroborated what Cohen has been saying all along. And it really opened up an insight as to how the decisions were made, who was involved. I thought all the talk about, oh, the prosecution has a problem. They have a Weisselberg problem because he's not here and jurors are going to wonder about that.

That was just kind of, I think, nonsensical speculation. Juries don't make decisions based on witnesses who didn't show up. They just don't. Especially if the defense could have also called that witness. Of course. Of course. They are very clearly instructed at the beginning and of course at the end, you have to make your decision based on the evidence that's before you. And so you can't go bringing in assumptions of the validity of the charge based on, oh, but what about this person who wasn't here? I think one thing, you don't always get the result you may be rooting for from a jury. But in my experience, pretty consistently, jurors try to get it right.

They try to do the job that they have been entrusted to do. They take it seriously. have been entrusted to do. They take it seriously. And yeah, I don't think they typically don't make kind of crazy outside the ballpark decisions. Yeah. And I think it's especially interesting that the judge instructed them on falsus in uno, which is the doctrine that if you question or the reliability or the veracity of a piece of a witness's testimony, you can kind of discard all of their testimony or just that part, but it's up to you. And two of the, I think, gravest mistakes the defense made here, well, first of all, having Donald Trump as a client, but connected to that, putting Bob Costello on the stand,

who went against all of the other corroborating evidence and testimony saying that Michael Cohen never told Trump about any of this. All of the testimony really just blows that out of the water and makes pretty much anything that Bob Costello said, you know, not credible. And the second thing was their outright denial of everything. There were no false business records, zero. There was no affair with Stormy Daniel. They didn't have sex. It didn't happen at all. And I think it does a disservice to your client to say that there's none. There's no errors here. I think admitting that you did have the affair and that you were entering into an NDA about the affair for personal reasons or whatever is a much better defense than none of it ever happened considering the overwhelming evidence that it did. This happened with Michael Cohen. He has lied. He is a bully. He conceded that he stole money from the Trump organization. And making those

concessions I think makes you more believable than saying, I never lied, I never had sex with her, I never did anything. And so I think those are the two errors that probably I can't imagine Todd Blanch having arguments with Donald Trump about those specific assertions. And even in his closing arguments, he didn't say Donald Trump never slept with Stormy Daniels. He says Trump denies sleeping with Stormy Daniels. He couldn't even say it for himself. Yeah. I couldn't agree with you more on the Costello comments. I mean, that was a total self-inflicted wound. That guy had been already portrayed to the jury in the testimony of others as a bad guy, as a henchman for Trump. And then he comes out and acts exactly

as a henchman, a bad guy. You don't want to leave the jury with that taste in their mouth, that your side is this kind of thuggish lawyer. So that was a mistake. And also, I agree with you, we all know that the defendant is not obligated to present a conflicting narrative or an explanation or anything, right? You're innocent until proven guilty. But the fact is, it's very helpful for the jury if you can provide a different narrative. And by making the kind of comments that you suggested, they would have been able to do that. Because at the end of this whole trial, you're left with, believe the government who's laid out this very intricate case with lots and lots of circumstantial evidence and some direct evidence or just believe the defendant's maximalist

non specific denials of everything. It's just not a very the difference between those two positions makes one of them look less credible and less realistic and in this case that was the defendant. Yeah, and the comment that look you can believe that Cohen is a thief or you can believe that this was payment for legal services rendered, but you can't do both because they're both in the same, they're both in the same part of the same piece of, you know, the $420,000. So, it's very, it's amazing to me. The jury went, the jury started deliberating, deliberated for a few hours and then sent in their note for having those four additional pieces of

testimony and their note for additional, to have part of the jury instructions reread to them. Then they deliberated for six more hours. And like you said, when the judge got up to go back to dismiss him, they said, no, we got it. We're good. It just seems to me those first few hours, they all sat down and said, what do you think? Yeah, I think that there's false business records. I don't think Costello was credible. I think that there's a ton of corroborating evidence and we think guilty. All right, well, let's get this additional testimony. Let's get that

little bit of the jury instructions read to us so we can confirm what we think. The two lawyers probably tried to explain an inference into evidence and try to explain things, but also let's just get it all so it's on the record that we asked for it and we hear it again and we can make sure that we're making the right decision. And then they spent the rest of the six or seven hours going over that testimony and saying, yep, yep, yep. And then looking at the jury instructions and saying, yep, yep, yep.

And that's how they were able to come to a verdict after just under 10 hours of deliberation. I thought that the verdict was gonna come back Friday afternoon. I thought they were gonna get another free lunch out of this, but they had it. Yeah. It would be interesting to know. I don't know that we'll ever hear this. In a way, I hope we don't because the less we hear about what they did and how they thought about it

and how they made their decision, the more likely these folks will be able to stay anonymous. And that is my hope for them. Like which of the three underlying crimes they used? Yeah and also like who was, you know, I had a lot of concerns about the presence of the two lawyers and the jury. I'm like that's a wild card man. You don't, I know lawyers, I am a lawyer. You don't want us around on a jury. Lunatics who think we know everything and never shut up. I mean everybody, everybody I've seen all the experts who are lawyers are like, you never want to learn

a jury. And they had to- And I threw them off first. So I was worried about that, but it would be really interesting to know if they did play kind of a dominant role in the discussion or at least like an advisory role. It's hard for lawyers not to start explaining everything and giving advice and to the extent that the other jurors may have had questions about things like direct versus circumstantial evidence or inferences or, you know, did they rely on the two attorneys

to kind of explain. If that's the case, that might be the answer as to why things happen so quickly. They may have been able to kind of really cut through and focus on the decision points in a more efficient and rapid way than they would have if they had just been kind of cut adrift, you know. Which is why I thought it was important whether they were going to ask for all of the jury instructions to be read backwards, just parts of them. Because it's crazy to me that they don't get to take the jury instructions in. They got to take their own notes on 50 pages worth of jury instructions. I mean, yeah, it's nuts, but that's New York. I'd also be interested to know if Weisselberg came up in the jury room, the fact that he

was missing and if anybody said he's not missing, he's in jail because he lied, particularly, you know, there are there are a couple jurors in there who like follow Michael Cohen, for example, on Twitter. And I don't know that anyone was asked that question on voir dire. Like, what do you know about Allen Weisselberg? That would have been a good question to ask, but or maybe it was in the jury question. They did ask who you follow on Twitter. They did ask one juror who they followed on Twitter. And yeah, I'll just leave it at that. They did ask who you follow on Twitter. They did ask one juror who they followed on Twitter.

I'll just leave it at that. Interesting. Really fascinating result to what's been an interesting case to watch. And for my opinion, the right result, obviously I'm biased. I usually see things from the prosecution's perspective. I have from the beginning thought, you can never be confident in what the jury's going to do. It is always a crap shoot and anybody who's been down this road knows that. But I did feel like from the very beginning, I was kind of hanging on pins and needles, but it seemed like the prosecution's case was going in very well. They were getting what they needed from each of their witnesses. Their witnesses weren't getting too beat up on cross. Michael obviously got beat up, but

he actually handled it, I think, as well as anybody could have. He did much better than I thought he would. Stormy Daniels was a little shaky on that first day of cross examination, but really came back strong in the second day. And on the other side, on the direct exam, these folks really delivered the evidence they were there to proffer in a very coherent and chronological way. Even David Pecker started off, I thought, with a very strong performance over a few days. So, I thought it looked pretty solid from day one. So, I thought it looked pretty solid from day one. Yeah, I thought it was really going very well. It's a documents case, right?

Just like the Manafort case, whether you have Rick Gates or not, whether people hate Rick Gates or not, they still ended up convicting on eight of the 18 counts because it's a documents case. Even the Maga juror in the Manafort case was like, look, I wanted to acquit him, but I couldn't. The evidence was overwhelming. But then after Bob Costello came on, I feel like he just blew the whole thing up. That was a really, really bad day and a really bad way to end the defense's case. I agree.

They shouldn't have put, first of all, bringing him up sends a signal that you think you're losing and you need to have a rebuttal witness. And so, you know, had they just, you know, done the casino hands and said, we have, we're good. Nothing for us to say here. We do nothing wrong. That would have been like, it would have sort of shown confidence in their, in their defense, but going with the all or nothing defense and then having Bob Costello come in and ruin it. He ruined it. He ruined it.

He's the dookie in the pool. Yeah, yeah. For that, okay. So I guess we're in agreement, bad day for Team Trump on the New York trial. Really bad day. 34 felony count convictions. That's a rough one. I'm going to flip to the other side of this and say, good day. And I know this is going to sound kind of sanctimonious,

so apologies up front. Good day for the justice system in New York. I mean, despite what we're hearing from Republican politicians and other supporters of Donald Trump, who they have a right to their opinion, but all these hair on fire claims of we're a third world republic and the awful things that Don Jr. said on Twitter last night. The exact opposite has been proven, despite enormous unprecedented pressure that's been put on the system and the people in it, the prosecutors, the agents, the judges, their staff, everyone else, despite this ridiculous level of focus and attention. 23 or so grand jurors sat and listened to the evidence and they made the

decision that there was probable cause to believe that a crime had been committed. And after that, 12 pedigures came in and had the courage to sit there, listen to the evidence closely every day. Every commentator will tell you, these folks never nodded off. They didn't blink. They weren't staring at their phones or anything. There's no phones in court, but they were dialed in to every witness and every speech. And they had the courage to make a decision that is unprecedented and will likely enrage half the country. But they did it based on the evidence. And I just feel like, despite all of our complaints and whether we liked it or not, the system delivered what it's supposed to deliver, a

not, the system delivered what it's supposed to deliver, a clear and concise judgment based on evidence. Your peers have decided, your fellow citizens have decided the evidence proves beyond a reasonable doubt that you have committed these crimes. That's it. That's what it comes down to. Yeah, I agree. Good day for the rule of law. Good day for the justice system in New York. We're going to talk a lot about the justice system in other venues. After this break, we also know Donald Trump is going to appeal and of course we knew he was going to appeal. I don't think he'll see the inside of a jail cell if he's even sentenced to any jail until that appeal is resolved, probably, likely. But his sentencing is four days before

the Republican National Convention. So that'll be fun. We'll keep an eye on that. And we're going to talk about all of the specific testimony that was reheard, the jury instructions that were reheard, and sort of the final ending of this trial on Cleanup on All 45 on Wednesday. So tune into that. All right everybody, we got a lot to get to. Stick around. We'll be right back. Welcome back. As we know, last week, Jack Smith filed a motion to modify Trump's bail conditions in Florida in response to multiple posts and emails accusing the FBI and Joe Biden of attempted assassination.

That accusation was based on misquoted language from an operations order prepared by the FBI for the search at Mar-a-Lago, and that language, the real language in the order, actually reminds agents of the limits on the use of deadly force. Jack Smith filed his motion without a declaration from an agent and without having what is called meaningful meet and confer. So what the heck is meet and confer? It's M-E-E-T, not the better kind of meet. But anyway, I move on. A meeting confer is when the government reaches out to defense and gets their basically their input on a motion that the government is going to file before they file it. So it's like an opportunity to see, to confirm that the other side is actually

going to oppose your motion. Because if they don't, in the meeting confer, you might be able to agree to a stipulation or something like that. And that's a much quicker process that you could get an agreement filed on the record, and then it's binding, and you don't have to go through the whole motions practice.

So that's why- And we've seen this in a lot of motions, right? Sorry to interrupt, but we always see Jack Smith or Donald Trump say, we've met and conferred with the opposing council, they oppose this motion, or we've met and conferred, they don't oppose this motion. We see it in every motion that we see because it's a local rule that you got to meet and confer with the other side. That's exactly right and a very common rule. So here when Jay Bratt on behalf of the special counsel reached out to opposing counsel,

opposing counsel said they did not wanna have the meet and confer until the following week because of the Memorial Day weekend. But the government decided that since they knew the defense would oppose the motion and that because the posts about the assassination attempts But the government decided that since they knew the defense would oppose the motion and that because the posts about the assassination attempts were so dangerous, they decided they couldn't wait for that later meet and confer opportunity.

So they filed their motion to modify Trump's bail conditions to prohibit him from endangering law enforcement and mentioned in the filing that they tried to meet and confer with opposing counsel but the defense wanted to wait until the following week. and mentioned in the filing that they tried to meet and confer with opposing counsel, but that defense wanted to wait until the following week. Also included in Jack Smith filing was a rebuke of Chris Keys and Todd Blanche's original motion that misquoted the standard operations order. So you recall, as we discussed last week, they omitted the word only from the standard language of the lethal force

policy. They said, law enforcement officers from the Department of Justice may use deadly force when necessary. That's how they had it in their original motion, as opposed to the actual language, which says may use deadly force only when necessary. The motion also left out the language that deadly force is necessary only, quote, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or another person. But the lack of meaningful meeting confer prompted Trump's lawyers to file a motion to strike and a request for sanctions against the special counsel for violating the meet and confer rules. So let's go over that motion from the Trump team.

Todd Blanch and Chris Keys opened with, President Donald J. Trump respectfully submits this procedural opposition to the May 24, 2024 filing by the special counsel's office, which improperly asks the court to impose an unconstitutional gag order on President Trump as a condition of his pretrial release based on vague and unsupported assertions about threats to law enforcement personnel whose names have been redacted from public filings and whose identities are already subject to a protective order. I'm already gasping for breath because that was a really long sentence. Okay, they continue. For the reasons set forth below, in light of the office's blatant violation of local rule 88.9 and related warnings from the court,

the court should strike the motion, make civil contempt findings as to all government attorneys who participated in the decision to file the motion without meaningful conferral, and impose sanctions after holding an evidentiary hearing regarding the purpose and intent behind the office's decision to willfully disregard required procedures. Because you can't do anything without a couple of

hearings. Why? Because the hearings are what you want. This is all about delay. Delay, delay. Okay. Mm-hmm. So strike, impose sanctions, have a hearing. Let's make this go for like six months. Maybe another hearing. Yeah. And then another hearing after some more briefings. So Keys and Blanche go on to say, quote, following a string of procedural abuses and misrepresentations. Wow.

Which is funny since they lied in their motion over the course of many months. At a May 22, 2024 hearing on the pending pretrial motions, the court admonished the special counsel's office to just calm down. Far from it, the office- You need to calm down. It's just too loud. All right, sorry. How do I get my Taylor Swift lyric in there for anyone who missed that? Of course not. You're in your Taylor Swift era. It's fine. Here we are. Far from it, they didn't calm down, they said. The office contacted defense counsel about filing a motion at 5.30 p.m. on a Friday evening before Memorial Day weekend as President Trump and counsel prepared to deliver the

defense summation in the people v. Trump on the morning of Tuesday, May 28th. We responded immediately, but the office declined our request to discuss the motion on Monday, May 27th so we could meet with our client beforehand, and the Office did not specifically identify any of the evidence cited in the motion until about 15 minutes before the filing. As with prior filings by the Office of Special Counsel, the motion fails to identify any direct evidence of the purported safety risks they claim exist. The Office did not even dare seek emergency relief in their filing and no such relief is warranted. Thus, there was no basis for rushing to file the motion

on a Friday night. This is bad faith behavior, plain and simple. And then they fall back on their old refrain that is, this whole thing is a witch hunt. It's politically motivated. It's an attempt to silence and jail Joe Biden's political opponent, which by the way would be totally legal under their immunity arguments. Isn't that ironic? If it were anywhere close to being true. Be careful what you wish for.

Because he's still got some time left. They're trying to assassinate me, a political rival, which is what you're saying. Which is actually what you just asked for. But okay. Anyway, we digress. They go on to say, and this is what you're saying. Which is actually what you just asked for, but okay. Anyway, we digress. They go on to say, and this is where they get political, they say, the misconduct by the special council's office is even more worthy of sanctions in

light of the context. The motion is an extraordinary, unprecedented, and unconstitutional censorship application. The motion unjustly targets President Trump's campaign speech while he is the leading candidacy for the presidency. The motion also treads new, extremely problematic ground

as a requested prior restraint that is different in kind from the unconstitutional gag orders that the prosecutors have sought in New York and Washington, DC. Specifically, the office seeks to condition Trump's liberty on his conformance with the views of Jack Smith and Smith's associates about what constitutes appropriate argument based on the record in this case. And to require the probation office and the court to mediate disputes against a backdrop of potentially imprisoning a political opponent who is successfully defeating Smith's boss and preferred candidate. Wow. There is so much built into that. I think the first thing I can't get past is how they refer to the unconstitutional gag orders that prosecutors have sought in New York and Washington.

No, that prosecutors got in New York and Washington only after extensive litigation and appeal. So if they had been unconstitutional, they wouldn't be in place. So they're not unconstitutional gag orders. Come on. But okay, I'm nitpicking, I guess. Trump's lawyers further argue that if this issue were an actual emergency, then why didn't Jack Smith seek emergency relief or ask for an expedited briefing schedule? Trump's lawyers contend that the absence of emergency relief request and a motion for expedited briefing schedule prove that Jack Smith's motives are not really about protecting

law enforcement, but instead are politically motivated. Now, to me, this whole argument seems a bit hypocritical since they began by complaining that the special counsel's motion was rushed before the weekend and without extensive conference, but here they're complaining the special counsel failed to pursue emergency scheduling. Nevertheless, they go on to say that Smith is once again, attacking

president Trump's protected campaign speech is conclusively established by the fact that the special counsel's office attached a campaign email to the motion once disfavored, but now in vogue for prosecutors driven by political animus against President Trump, gag orders reflect an extremely serious threat to our constitutional traditions, especially when they're applied to political candidates. The motion goes one step further, however, in seeking to condition President Trump's liberty on his compliance with the views of Smith, Brat, Harbaugh, and the other self-appointed Thought Police regarding what constitutes fair argument to the American

people by the leading candidate in the 2024 presidential election. In that regard, the motion is an unprecedented application, and the abuses that it reflects are manifest. If and when there is an appropriate time, we will forcefully address the motion on the merits." Okay. That one is so overcooked. It's so over the top. I mean, the idea that you would see one side in a legal matter referred to the other side as the thought police, capital T, capital P, is just insane to anyone who has any legal expertise. Like, language just does not go there. It's not appropriate, but that's where we are. Of course, at no time did either lawyer address their

omissions of the word only from the use of Force Operations Order. In fact, they blame Jack Smith's office for failing to make redactions to it. They say, we invited the office to propose other redactions that they believe necessary or appropriate. At no time did the prosecutors seek redactions relating to Use of force information in the operations order concerning the search or the discussion of that order in our motion papers. To our knowledge, the unsealing of these materials did not result in credible safety risks to anyone. All right. So I have a question. They're saying, first of all, they don't admit that they took the word only out and didn't put ellipses in there. But then they say Jack Smith should have redacted the operations

order if they didn't want us to talk about it. Should he have redacted the word only for you? I don't understand. First of all, why would you redact an operations order? There's no reason to. That's why Jack Smith didn't. And then to accuse Jack Smith's office of not redacting anything in that order after you lied about what was in it, it just blows my mind, especially two guys who used to work for the DOJ. It's the logical equivalent of saying, hey, you left the knife in the room and walked away.

So you can't blame me for picking up the knife and shoving it in your back. I mean, that's basically the logic there. They take no responsibility for anything that they say in any filing. And the stuff they say in the filing, in all of these filings is just completely off the wall.

Yeah, it's very political and it will continue to be. And we're going to talk about how Judge Cannon ruled on both of these motions. Okay, because there's a motion here now, there's Jack Smith's motion, which is the motion to modify the bail conditions. And then there's Trump's motion to strike that motion, Jack Smith's motion, and to sanction everybody who had anything to do with writing it. So we'll let you know what she said, but we have to take a quick break. Stick around. We'll be right back. Welcome back.

All right, let's read the minute order from Judge Cannon on Jack Smith's motion to modify bail condition and Trump's motion to strike and impose sanctions. Here we go. Paperless order denying without prejudice for lack of meaningful conferral the special council's motion to modify conditions of release. Upon review of the motion defended Trump's procedural opposition and the attached email correspondence between council the court finds the special council's pro forma quote conferral to be wholly lacking in substance and professional courtesy.

It should go without saying that meaningful conferral is not a perfunctory exercise. Sufficient time needs to be afforded to permit reasonable evaluation of the requested relief by opposing counsel and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion. This is so even when a party, quote, assumes the opposing party will oppose the proposed motion and it applies with additional force when the relief sought at issue for the first time in this proceeding and raised in a procedurally distinct manner than in cited cases, implicates substantive and or constitutional questions. Because the filing of the special counsel's motion did not adhere to these basic requirements,

it is due to be denied without prejudice. Any future non-emergency motion brought in this case, whether on the topic of release conditions or anything else, shall not be filed absent meaningful, timely, and professional conferral. Moreover, all certificates of conferrence going forward shall, one, appear in a separate section at the end of the motion, not embedded in editorialized footnotes,

and two, specify in objective terms the exact timing, method, and substance of the conferral conduct, and three, include, if requested by opposing counsel, no more than 200 words of verbatim from the opposing side on the subject of conferral, again in objective terms. Failure to comply with these requirements may result in sanctions. In light of this order, the court determines to deny without prejudice defendant Trump's motion to strike and for sanctions. Well, I actually, this is going to be a very unpopular opinion here. Oh man, don't go there because I'm about to go there. But go ahead, go ahead. I don't think that this is so super wrong and egregious and I'll tell you why. I think

it was an unforced error on special counsel's part by not doing the meet and confer and not filing for emergency relief. If you're not going to do a full meet and confer and you can't wait till Monday, file for emergency relief and expedited briefing to kind of cover your ass. And also, they didn't include a declaration or any kind of evidence which they have in the past on similar motions like this, you know, including remember when they wanted to include evidence of threats against a witness that is actually undercurrent criminal investigation and they wanted to file that under seal and ex parte and Judge Cannon said sure, but then changed her mind on the ex parte part and that wanted to file that under seal and ex parte and Judge

Cannon said sure, but then changed her mind on the ex parte part and that had to go to Donald Trump and his side. So I think personally that special counsel, if they weren't going to do a full meet and confer and wait until Monday, and if they couldn't wait until Monday for that meeting confer, they should have filed for emergency relief in order to show how important this was and why they couldn't wait until Monday. Does that make sense? It totally does. That's why you and I get along so well. This thing is like, it's kind of neither fish nor fowl, right? And it feels like a rushed production on the Friday night before a holiday weekend, which is exactly what it is. And almost, I'm not going to, I can't, I don't know what they intended, but it almost feels like they wanted it, but they didn't want it bad enough

to go full on emergency. We need to brief this thing and decide it this weekend in the middle of the holiday. So I agree with you. I think it's, I don't think it's the, well, the opposition to it is ridiculous. And I think the order is insane. I could take an editing pen to this and reduce it to like three sentences. Like the entire, she spends what?

About 20 words on Trump's motion at the end and the rest of it is entirely like a smackdown of the special council again which is getting kind of tiresome. Yeah and she doesn't say why she's dismissing Trump's motion to strike why it's ridiculous why his motion for sanctions is ridiculous at this time. To be fair she doesn't have to she could have just said denied and denied and walked away. That'd probably be the better way to do it. And here's another free one for you.

This goes to the judge's staff there. Anytime you find yourself beginning a sentence with, it goes without saying, then don't say it. Yeah, then it goes without saying. You're off the rails. You're doing more than you need to do. So this is a mess. She could have just said you failed to meet and confer

and didn't file for emergency relief, so your motion is denied. Explaining the significance behind meet and confer. The attorneys involved in this know that stuff. That's ridiculous. It's like she's going to take advantage of this opportunity to really teach them a lesson. That's what it feels like.

It's totally unprofessional. Nevertheless, I agree with your position. If you're going to do it, they should have gone all out. And I don't, I'm going to go one step further though. And in doing so, I don't want to create the wrong impression that I don't think the safety of the agents is necessary to protect. I absolutely do. And what he did here with this nonsensical quote and the claims of assassination is absurd and highly offensive. However, I will say the same thing I have in a lot of these gag order requests. I just don't think it's worth, I don't think the juice is worth the squeeze. I think these

things become a massive distraction. They drag the government to all kinds of litigation that's not really germane to moving the case forward. I don't think they have a meaningful effect on Trump. I know he tones down his rhetoric a little bit, but the thing that you're worried about is Trump firing up the craziest part of his base in a way that could be dangerous. That is happening every day. There's no way you're going to stop that. And I think this also, these things give the Trump side a platform to stand up and wave the bloody shirt about First Amendment violations and constitutional violations. And it really plays into their delay strategy. So I'm not a huge fan of them.

But this one wasn't done in the most effective way. fan of them. But this one wasn't done in the most effective way. What I would have done, and I'm who the hell am I, I would have filed for emergency relief, expedited review, and if it were dismissed, I would have let it go. But now in not doing that, he's now kind of has to refile, have a meet and confer and add a declaration or two or some evidence. Because if he doesn't, I mean, I guess he doesn't have to. He might now be thinking the way that you're thinking, but he does need to show that the DOJ is about protecting the safety of law enforcement officials. It needs to happen. Well, she denies it. Okay. But it's important to mention that because she denied it without prejudice, this

is not appealable to the 11th Circuit. It's not been decided on the merits. If he wants it decided on the merits, he's going to have to do the meet and confer and follow the rules and her new rules laid out for what a meaningful meet and confer is. And then they'll, you know, she can set up a hearing and then they can have a thing about it. And then if she denies it on the merits, then he can appeal that to the 11th circuit, but he can't right now. He's got to keep going. He can't back out of this thing now. You can't lay down a marker like that and not back it up. It's a credibility issue. And now it would be a credibility issue

with the agents and with the Bureau. That's what I think about the agents who would be like, what, we're chopped liver now? I think once you've decided to go forward, you got to go all the way. This has got emergency written all over it. He should have taken advantage of that, but for whatever reason they didn't. Well, they got time. I mean, I know it's a sideshow, but it's not like the trials and threatening to happen anytime soon. But now it's another mini Vietnam. You know what I mean? Like you it's a sideshow, but it's not like the trials and threatening to happen anytime soon. That's true. But now it's another mini Vietnam.

You know what I mean? Like you're going to be sliding down this slope for God knows how many weeks, how many hearings. We'll see. Even if she does deny it, makes a substantive ruling and denies it, which you know she's not, it's going to be some split the baby, okay, I'll deny it for now, but maybe bring it up later in jury instructions. Even if she does it in the real way, I don't see this as the thing that gets him to the

11th Circuit on a foundation that could lead to the removal of Kennan from this case. No. And I wanted to talk a little bit about that because a lot of folks are, we'll take it to the 11th now. You can't really, this isn't appealable because it's without prejudice. He has to go through the motions and get a denial on the merits in order to appeal it. And a lot of people, great, then he can go to the 11th and ask for it, have it removed from the case. If passed his prologue, I don't think that that's the way that this will go. Judges, prosecutors seem to give a few chances so that this stuff can't be overturned on appeal or threatened to have any conviction thrown out much later down the road. So the way that I see it going is if he goes through all this, gets a denial

on the merits, takes it to the 11th Circuit with an appeal, asking them to overturn and if let's say they overturn her on this and say, no, you need to modify the bail conditions or whatever. And they agree with Jack Smith. Okay, now he's got two wins in his pocket at the 11th. The special master stuff, which was actually under Garland, but it's the DOJ. The government has that win. They overturned her on the special master and now they vote, they will have overturned her on this. Then let's say she denies a SIPA section 6A motion or something and it endangers national security information. Then they go and appeal that to the 11th Circuit and if they get it overturned, he'll have

a third thing in his – a third overturned decision ruling by Judge Cannon in his pocket. And then maybe, maybe you want one more. But after you've got I think three or four over turnings of her rulings, then maybe you ask for a removal. But I don't see them asking for removal at their first visit to the 11th Circuit. Well, technically they're second. If they did, they won't get it. There is some value, I think, to a cumulative record of multiple instances. It's not clear to me how this, the determination of this request, this motion is going to be very fact specific. That's why, like you said, they need an affidavit. They need

somebody, they need some evidence, they need someone who's going to come in and say why this is dangerous. And ultimately it's the judge's discretion. Those factual calls, while they could be overturned, there's nothing to legally prohibit them from being overturned. It's very rare where the 11th Circuit or any appellate court might come in and overturn a lower court is usually on more clear questions of law, violations of law. Like those jury instructions. Yeah, exactly.

This is a clear violation of law. Not the jury instructions, the witness names list. Right, right, right. Yeah, but whether or not they approve it, something we can talk about separately. My point being is on the first time, you're not going to ask for recusal. You're going to want three or four of those overturning. You need a record. Yeah. Yeah. You need a record. And whether you do or not, I think that I've seen from what I've seen

from the government in these instances, they like to develop a record before they do anything like that. When we saw the lead up to the, when they went to the 11th circuit in the special master case, they showed a record over and over and over again of impropriety and stuff, and then went to the 11th circuit and got her overturned. So I think that you're going to want more than just two, if this is something that they would win on appeal in the first place, because like you said, you would need to be more facts-based than it is at this juncture. But I just wanted to sort of illustrate that I know everybody is really excited to go to the 11th. I know everybody is really excited to get thrown off the case, but it's just not that easy. That's the peril of electing somebody like Donald Trump is that you get these kinds of

corrupt judges in positions of power for a lifetime. While I think we could maybe do a little bit more to push back on it, file more, you know, the judicial complaints, et cetera. I think that the remedy is to make sure that we don't elect anybody that would appoint somebody like Judge Cannon again. Yeah, for sure. For sure. All right. All right. So there's a few other minute orders this week. So let's go over those as well. The first one has to do with the June 21st hearing

on whether Jack Smith was appointed and funded properly. So these motions have continued to fail in past litigations in the Manafort case, for example, but Judge Cannon says a recent Supreme Court ruling might make a difference. So here's what she has ordered. In anticipation of the June 21st, 2024 hearing on defendant Trump's motion to dismiss the indictment based on the unlawful appointment and funding

of the special counsel, Jack Smith, the special counsel and defendant Trump are directed as follows. Honor before June 11th, the party shall separately file supplemental briefs not to exceed 15 double-spaced pages on what impact, if any, the Supreme Court's decision in Consumer Financial Protection Bureau versus Community Financial Services Association of America has on defendant Trump's appropriations clause challenged as raised in motion 326. So she's asking that they brief the impact of this very recent Supreme Court decision, only came out like a week ago,

how that impacts Trump's arguments in his motion. She goes on to say, "'The party's supplemental briefs also should clarify "'in a separate section what appears to be "'the position set forth in the party submissions, i.e., that no factual development is warranted or necessary to resolve either of the two challenges raised in the motion, because the extent of the special counsel's authority and status is delimited and evaluated by the statutory and regulatory authorities

cited in the appointment order and by that same appointment order and the cited Department of Justice Appropriations Act for purposes of the Appropriations Clause Challenge. The court also authorizes, but does not require the submission, essentially, of three already approved amicus briefs on this issue. So like you said, the Supreme Court decision she's referring to was that the court ruled that the Consumer Financial Protection Bureau, CFPB, is funded constitutionally,

right? But what, Andy, what does that have to do with the funding and appointment of special counsel Jack Smith? Okay. So the argument in the case that she cites to, the recent Supreme Court case, was basically brought, it's a two, I think there were two litigants actually in that case. They filed this suit against the CFPB, basically claiming that the funding that Congress designated to support the CFPB is unconstitutional because it's

not associated, it's not involved in the traditional yearly annual congressional appropriations. It's an open ended funding. Essentially, the CFPB is funded by a percentage of revenue that's generated from, I think, the Federal Reserve. It's in an open-ended way. It happens year after year. So, they don't have to go running back to Congress like every other agency has to do and begging for a budget every year. So, these two litigants filed the suit saying that's unconstitutional. They should be part of the normal process. The reason they filed the suit is because it's basically an association that protects these scammer payday lenders, these predatory lenders. And those two, they want to obliterate the CFPB because the CFPB is enacting all of these

rules and regulations that are designed to protect people against the lender. So there's an underlying conflict here. It makes it hard for the Republicans' rich friends to keep being rich at the expense of consumers. There you go. So these litigants want to obliterate that agency and they're doing it in a constitutional challenge attacking their funding. In that case, the Supreme Court decided in an opinion written by Clarence Thomas, that there's essentially nothing wrong with these, what they call open-ended funding arrangements, that they've been going on forever. He provides a million examples of it, and they

determine it's entirely constitutional. So how does that relate to this case? Well, we're not 100% sure because what Judge Cannon is saying is, hey, I want you both to go back and give me some arguments of how you think that decision relates to this case. My guess is that the special counsel is going to come in and say, this makes our position look even better on that issue. Because what Trump is saying in his motion is the special counsel is also funded under an open-ended funding arrangement, and he's challenging the constitutionality of that. So, I predict the special counsel will come back and say, see, exactly as we told you,

there's nothing unconstitutional about an open-ended funding arrangement. That's my prediction. Even Clarence Thomas agrees. Yeah. I mean, good Lord. That's not the guy probably you expect would be defending the CFPB or the special counsel for that matter, but his language might be good for them here, good for the special counsel here. But that doesn't touch the other argument Trump is making that he's appointed unconstitutionally, like the appointments clause. Yeah, that's the second argument.

That's the same thing that everyone and their mom has tried to get special councils thrown out over, right? That's one of the other things, is they always go for funding or for the appointment clause. Everyone always loses on this, always. Yes. So, it seems to me that the Supreme Court ruling helps the special counsel and then they're just going to make the same old arguments they've always made, the government has always made for special counsel appointments under the

Appointments Clause. Yeah. So just very briefly, that argument is basically, okay, so the Appointments Clause is a part of the constitution and it says that the president shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law." Okay, then it goes on. Here's where it gets tricky. It says, but the Congress may by law vest the appointment of such inferior officers as they think proper in the president alone,

in the courts of law, or in the heads of departments. That's the part that's relevant here. This just lays out who in the executive branch can appoint what, and it specifically carves out a power for Congress to be able to essentially go around the president and give the heads of departments of executive branch agencies the power to appoint essentially subordinate officers. All right. So what Trump is arguing in his brief is essentially that there is no clear congressional act or law that gives the attorney general the authority to appoint Jack Smith or any special count, quote unquote, special counsel. Now that's the same argument likely that was brought

up in the Manafort case. I haven't read those papers, but I would guess that it's the same tact they took. We know it failed there. It's failed in other places. It's likely to fail here. But Trump's motion- So we should be able to then throw out the Durham report and the her report. Exactly. So Trump's was very technical, all kinds of sites to regulations, and different congressional acts and things. So it's hard to, it's hard to, based on past performance,

I think it's fair to be confident about the special counsel defeating this motion, but it is a thorny, very legalistic kind of statutory and constitutional interpretive issue. So man, I bet you this one is keeping Judge Cannon up at night. I bet you she's just... Yeah. Well, if she approves the motion that Jack Smith was appointed improperly, there's a

reason to go to the 11th Circuit. Not a question in my mind. That one goes... No, because as with all things on the Justice Department side, they are fighting not just this case, they're trying to maintain their authorization and their authority and the ability to prosecute others under similar circumstances. So there's no way DOJ will sit back and allow any federal judge to knock out this authority. They will fight this over to the Supreme Court if they have to.

Yeah. And you know, at this point, Andy, I'm kind of rooting for her to just dismiss the case so we can go to the 11th Circuit. Just my two cents. Because, I mean, it's just getting ridiculous. She won't. I don't think she'll drag it out, have a bunch of hearings, have more briefings, da-da-da. She's pretty crafty like that. And then decide, like, you know, I'll deny it without, you can bring it up later. It'll be one of those things. Yeah.

But one last thing before we go to break, New York Times released a story about Judge Cannon and including something new in a hearing that I hadn't read before and I wanted to share it. They said during the May 22nd hearing, you know, the one about the Stanley Woodward issue, where they were getting a little yelly, Judge Cannon was debating with Jay Bratt about a common theory of legal liability called the Pinkerton Rule. The rule holds that all members of a conspiracy can be held accountable for any crimes committed by their co-conspirators.

It's the Pinkerton Rule. Now, Mr. Bratt said the rule would likely apply to Mr. Trump's dealings with his two co-defendants, Walt Notta and Carlos de la Vera, as we know, employees of Mar-a-Lago. They have been accused of conspiring with the former president to obstruct justice. Now Judge Cannon seemed a bit perplexed and asked Mr. Bratt under what authority he intended to rely on applying the Pinkerton rule. And Mr. Bratt seemed almost sheepish in having to lay things out for her so simply.

And he said, so the authority is Pinkerton? That's what he said. And then launched into a quick explanation. That's the name of the Supreme Court case that gives us this authority. It's called Pinkerton. So it was really embarrassing. Under what authority are you going to apply this Pinkerton rule? That would be Pinkerton versus United States. The Supreme Court case after which it is named? I mean, that's just sad. But at least he wasn't

like a jerk about it. Yeah, you know, I have to say that that article was awesome. And it helped me understand having read all these reports about how crazy Harbaugh or J. Bratt was getting during that, you know, she was telling him to calm down and everything. When you read the detail that he gives you about exactly what they were, the exchange they were having, it really explains why. I think it was hard ball was getting so upset. She kept going back to this basic assumption that something had happened when it had not

happened. And he could not get through to her on this issue of that she just had it wrong. And yeah, it's I recommend you know, if you're interested in that case, which if you're listening to this podcast, you are, you should check that New York Times article out. Yeah, definitely. All right, one last thing I wanna cover and then we'll take a listener question, but we have to take one more quick break.

This is a marathon episode. Thanks for hanging in with us. Stick around, we'll be welcome back. Alright, before we get to listener questions, I want to talk about the theory that Jack Smith should have brought this case in DC instead of in Florida. I know there's been a lot of stuff going around on social media and a couple of op-eds released recently on this subject. And I used to think it was a mistake bringing

this in Florida and not DC, but after talking to multiple former DOJ officials, reading the statutes, reading the indictment, talking to legal experts, I don't think this case could have been brought in DC without significant additional delay at least. Let me read to you what IRCPA expert Brian Greer said about this on social media. He said, since the Smith should have just brought the documents case in DC chorus is picking up again, it's time for a reminder as to why that's not true. Please read before continuing to propagate this false premise. Smith is bound by the constitution, federal law and case law, which collectively requires that, at minimum,

a conduct element of the offense be committed in the district where it's charged. Let's look at the offenses. For the Espionage Act charges, that's 793, Trump is charged with unlawfully retaining the documents. The issue with charging him in DC is that he was still the president when he removed the documents

from the White House down to Florida. He arguably was within his rights to do so, even if it's egregious. Simply put, it was not a crime while president, even though that's hard to swallow. No conduct element in DC. For the Espionage Act claims and charges, excuse me, that might still leave a conspiracy charge. Was it an overt act committed in DC? Maybe, but Trump would have been the president when that act occurred. Charging that overt act would have run straight into a presidential immunity assertion, as handling

classified records is likely to be seen as an official act while president. Everything that's happened with the January 6th case would have happened here, except Trump would have had a better immunity argument here, one that SCOTUS would likely have sided with before the trial on interlocutory appeal. So that leaves the various obstruction charges. There too, all of the conduct elements for those charges occurred in Florida, not DC. The only potential hook for venue there might be that the grand jury was based in DC, and their actions were aimed at obstructing its operations.

This would have required tweaking of the charges a little bit, but this would have been subject to a serious and likely successful challenge, as no factual predicate occurred in DC, probably a loser. Finally, remember there is no ancillary jurisdiction in criminal cases. You have to establish venue for each charge individually, so there's no bootstrapping. Remember how Manafort had trials in DC and the Eastern District of Virginia? So yes, having to charge the case in the Southern District of Florida, where drawing canon was very likely completely sucked.

But prosecutors are bound by the Constitution, the law and reality. So charging the case there was the right thing to do and really the only chance they had. Now, I also like to think of, you know, somebody was positing on Twitter this weekend that or this week that you could have gotten him for stealing classified documents. Again, as Brian said, he was POTUS at the time, it would be real hard to get around that immunity argument and that interlocutory appeal that SCOTUS would likely grant in that case. But also, you're looking at a 2071 charge with a max of three years. That's less than one of his felony counts in Manhattan, which is a four-year max sentence. The obstruction charges are where the meat of this is and where I think the most egregious, the willful

retention is bad under 793, but also obstructing the justice, trying to delete the videotapes, maybe even flooding a server room, you know, that's not in the indictment. Yeah. And the obstruction charges help you prove the willfulness of the retention. So adding them opens the door to a lot more evidence that helps on the first side. Yeah. And you can't charge the obstruction in DC because he didn't obstruct in DC, he obstructed in Florida. And those carry a 20 year max sentence, conspiracy to obstruct And those carry a 20 year max sentence, conspiracy to obstruct and actual obstruction. That's a 20 year max sentence. That's the media. You know, they always say the cover-up is worse than the crime. The punishment for the cover-up is worse than the punishment for the crime as well.

And so I think that that's something that was not really taken into consideration when saying folks should have brought in DC for stealing the classified documents. What about an impossible case, I think. Yeah, I have always thought that they did the careful and conservative thing and also the right thing by bringing the case in Florida. Brian articulates the reasons for that way more better than I ever could. There's more proof of that. So I don't disagree with anything he said is serious venue, venue problems. And then of course you have the, the immunity issue thrown in there as well. So I, I totally agree with the way he's

looking at it. Was it unfortunate that that left them with a venue that was where they were likely to pull Eileen Kanazah a good chance that they would get a very recent Trump appointee with basically no significant trial experience, certainly no national security trial experience. Yeah, that was a tough deck, but that's the only one they had. So I don't, you know, I've joked in the recent week saying, boy, I bet they're scratching their heads and second guessing that decision. But in reality, it's not, I don't think it was a close one. I think when you do the analysis as Brian has, it's pretty obvious. It'd be out with the Supreme Court right now and they would probably rule that he's immune

from being prosecuted. Yeah, that's an easy one. That's immune from being prosecuted. Yeah, that's an easy one for them. It's not like the one they have now, which should be an easy one, but let's see where that lands. Yeah. All right. So time for listener questions.

What do we have this week, Andy? Yeah, very quick because I know we've kept people here, but let's go to Craig. Craig who writes in, doesn't have his location, but Craig writes in, assuming the federal cases against the disgraced former president will not go to trial before the election, in your respective opinions, when the former, he says when, but I'll say, if the former president loses the 2024 election,

how likely is it the remaining cases will be forgiven, forgotten, and then fade into oblivion? I think the likelihood is zero. If he does not win the election, these cases will go forward to their bitter end. Wow. Wherever those things end. We could be reporting on developments and Eileen Cannon's court for the next three years at the rate that we're going now. But if he doesn't win, that's where this thing could head. So I have no concerns about that. Yeah, I agree.

And the opposite is also true. If he wins, they're gone. It's a binary choice that we're looking at. Yeah, I agree. These cases weren't brought to prevent him from being the president. They were brought because citizen Trump broke the law and no one is above it. Yeah. Despite all the protestation we've heard in the last few days over the verdict on Thursday, this was none of these cases were ever brought for that purpose. These cases were brought to seek accountability for alleged criminal violations. That's it. Whether he gets convicted in New York or he's acquitted, and who knows what happens in the federal cases, the decision is in November. That's whether he has the opportunity to basically restructure our democracy in his image or

fade back to Mar-a-Lago and play golf every day. That's the decision that matters. So anyway, that's where we're at. Agreed. Thank you so much for that question. If you have questions, we've got a link in the show notes. And thank you for hanging in with us for an hour and 15 minutes. I know it's a long show. Every week, it's like, it was kind of a slow week. Nope. Every week something

happens. We did get the first ever conviction of a former president on 34 felony counts in Manhattan brought by D.A. Alvin Bragg, initiated by one Robert Mueller. Yeah, there you go. So, yep. There you go. Appendix D in the old Mueller report. Under one of those redaction bars is this Cohen case. So.

There it is. There it is. Thank you. Thank you, everybody. We will be back in your ears next week. Who knows what's going to happen between now and then, but we'll be on it. Thank you so much for listening. I've been Alison Gill. I'm Andy McCabe