Jack - Episode 95 | Roberts Goes Maximalist (feat. Dahlia Lithwick)

Starting point is 00:00:00 MSW Media I signed an order appointing Jack Smith. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. Wait, 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?

Starting point is 00:00:23 Send me to jail. Welcome to episode 95 of Jack, the podcast about all things special counsel. It is Sunday, September 22nd, 2024. I can't believe it's almost October. I'm Alison Gill. And I'm Andy McCabe. Oh my gosh, we have an important show this week. We're going to be covering new reporting from ProPublica about Judge Eileen Cannon, as well as Donald Trump's omnibus reply in support of additional discovery in the DC case. Yes, we are back on with this filing.

Starting point is 00:01:06 And we're going to be joined today by the author of Lady Justice and host of Slate's Amicus Earth, excuse me, Amicus podcast, Dahlia Lithwick. We're going to discuss the Justice Roberts memos that the New York Times got their hands on about the immunity case. But first, we have another installment of Good Week, Bad Week.

Starting point is 00:01:27 What do you got, Andy? What do you think? Yeah, which started with a bang, literally and figuratively on Sunday with the second assassination attempt on former President Trump. A parent assassination attempt. He's only been hit with gun charges so far. Convict in possession of a firearm and an obliterated serial number. And I love that that's actually a legal term of art. It's been obliterated. Oh yeah. Yeah, yeah. That's it. That's right in there. I mean, this one, you know, bad week whenever someone is allegedly trying to kill you, for sure. And I mean, I don't want to be flippant about this.

Starting point is 00:02:11 I mean, it's absolutely seriously. Like, if this one or the last one, which was obviously much closer, were successful, like terrible, terrible, terrible thing for this country. No matter how you feel about that guy, the former president, this is not where we want to be with any former president. That was rough for everyone. We'll see how that goes. I think this is a very different situation than the first one at Butler. It's a case that's going to have to go to trial. I think they have a ton more information that they've been able to collect about this guy, but we're not going to hear about it because they need to preserve

Starting point is 00:02:46 it as evidence in the trial. Got some legal challenges here because he didn't actually do anything, right? The only thing you can get him on is kind of lying and wait. So you're going to have to prove exactly why he was there. For that, you're going to need writings, communications, other witnesses who will say, yeah, he told me he was going to do this, that sort of thing. Or a confession, but I don't think they've got that or they wouldn't be calling it an apparent assassination attempt. Yeah. He lured up right away as soon as they got him into the sheriff's office. And so, you know, it's still possible. Confession is always possible if he comes in and proffers

Starting point is 00:03:23 or wants to plead guilty and save himself a lot of time. But if you think back- And he's got a public defender. So the Save America PAC is not paying for his lawyer. Yeah. Yeah. If you think back to the guy who took a bunch of shots at the White House in 2011, he was not convicted of attempting to assassinate the president, which would have been an easier

Starting point is 00:03:44 case in his case because he was shooting at the residents of the actual sitting president. So that falls under the assassination and attempted assassination statute. This one is a little bit different. But they even dropped the assassination charge in that case. He ended up pleading guilty to, I can't remember what, but he got about 25 years. So yeah, it'll be an interesting legal conundrum as they go forward. But I got to say that was a bad way to get the week off. Yeah. Let's see. I think Jack Smith is having a good week in that he just must be laughing hysterically at what we're about to cover in the B and C block of this show.

Starting point is 00:04:25 So, I mean, you know, if comedy gold is any kind of a lift to your week, I'm sure that they're getting a good laugh out of this filing. It's pretty bizarre. Bizarre is one way to go. I mean, buckle in. This is a rocky ride. Just listening to the quotes, Buckle in. This is a rocky ride. Just listening to the quotes. I mean, we'll do our best as we always do to try and make them understandable. But man, this is a reach. This is a reach. This one is just so all over the map. I think it's a new low. All right. Please help me welcome our guest today, Slate contributor, host of the Amicus podcast and author of the book, Lady Justice. If you do not have it, you must get your hands on it. It makes an excellent holiday gift. Please

Starting point is 00:05:11 welcome Dahlia Lithwick. Hi, Dahlia. Hi. Hey, Dahlia. Thank you both for having me. It's good to see you. I think the last time we saw each other was when we were live in New York together. Yes, with wine. Yes, with wine. Yes, with wine. We were at the city winery.

Starting point is 00:05:29 A lot of very sloppy, drunk, depressed Brooklynites, but things have changed, right? That was back in the Biden is candidate day. Things have definitely changed. And we wanted to bring you on today because of this memo leak that the New York Times got a hold of and your piece that you wrote about a broader subject, you said in your piece for Slate, on Sunday, New York Times reporters, Jody Cantor and Adam Liptak published a blockbuster article about the conservative justice's efforts to shield Donald Trump from any consequences for his efforts to overturn the results of the 2020

Starting point is 00:06:07 election. This is what Supreme Court reporting needs to become. Less credulous academic translating of a handful of judicial opinions and more cultivation of inside sources, procuring of confidential memos and production of massive scoops. More to the point, their piece about how the three January 6th cases decided last year in favor of Donald J. Trump came together, contains several remarkable news bombshells, including the fact that Justice Sam Alito had the opinion in the capital assault case Fisher v. United States, taken away from him by Chief Justice John Roberts, that the liberal justices were working to try to get the majorities to moderate maximalist positions

Starting point is 00:06:49 in all three cases, and that Justices Clarence Thomas and Neil Gorsuch would have pushed the immunity case to be decided after the 2024 election. But the biggest revelation here, you say, is the character John Roberts plays as an affable centrist steward of the court's reputational interests created largely in the press and played to the hilt by him is total fiction.

Starting point is 00:07:13 It was Roberts who decided that Trump and Trumpism would prevail in all three insurrection cases. And he did not in this instance, follow in the wake of the court's aggressive conservative maximalists. He was the aggressive conservative maximalist and he created majority opinions in his own image. So let's talk about these memos, Dahlia. Okay. Can I just do one little precatory? People read that. So I wrote that piece with Mark Stern and we kind of took our lumps for being kind of purveyors of the people, you know, of the story that

Starting point is 00:07:54 is like John Roberts post-Dobbs, right? John Roberts post the voting rights case last year. John Roberts has been to the extent that the super majority at the court had a breaking mechanism. And sometimes the breaking mechanism was him throwing in with the three liberals, like a lot. We were purveyors of that story. I just want to be clear that the people on Twitter, like the grumpy people who are like, you mindless takers of dictation who went to cocktail parties

Starting point is 00:08:26 and sucked up to the like, we weren't that like, I want to be very clear. Mark and I have like, begged, I think we've begged harder than anyone for a sea change in how we cover the court. But like, I just want to be clear that I don't think I mean, you guys can check me on this, I don't think anyone who saw the John Roberts that kind of was trying to pick his way through the 6-3 conservative majority, he changed, I think, in June. And I don't think that makes us shitty reporters. Okay. I just wanted to give just like a brief caveat, mea culpa for my mea culpa. Like I really do think this is an extraordinary piece

Starting point is 00:09:08 of journalism, I think we need a ton more like it. So Dahlia, do you think, maybe this is cutting to the chase too quickly, but do you think he changed in June or do you think this is really who he's been all along and he's just kind of, he's more comfortable in letting his true colors show. So I think it's yes and yes. I think it's both. I think that there is a plausible case to be made and believe it or not, Linda Greenhouse, Pulitzer Prize winning Supreme Court reporter

Starting point is 00:09:40 for the Times made it on my podcast this weekend saying, what you're saying, he was ever this. Anybody who thought, you know, you look at his record on race, you look at his record on voting rights, you look at his record on virtually everything, this is who he always was. And you, you know, were dumb if you thought anything else was happening. I'm not perfectly persuaded of that. As I said, if you look at his voting record in the last couple of years, he wasn't with the majority in Dobbs. He was, I think, the steward of a whole bunch of big compromises that go back to the Affordable Care Act case, where he is not clearly the movement conservative that

Starting point is 00:10:23 Alito is. If I had to pick the two cases that Alito is. If I pick the two cases that Alito leaked. Well, I mean, I think, well, yes, let's call it Alito. But I think I would say that the problem with that theory is it's not just the cases where he seems to have changed. It's the maximalism, right? Because the John Roberts I've been covering for a very long time would never do a swing for the fences. In all of these cases, in every single one of these, he could have had a narrower path. The John Roberts that I, who used to drive me crazy by the way, because he was such a cunning manipulator of the system, but it was minimalist. It was

Starting point is 00:11:03 incremental, right? You do it first in Namudno and then you do it in Shelby County because you've done it small, then you do it big. He has an MO and his MO is not, screw the liberals, I'm doing the maximalist thing, the thing that will make Gorsuch and Alito happy. I don't think that's how he operated. And if I'm right, that the change is not just sort of tonal and that line in the times piece where he froze out the liberals, right? Like he wouldn't even entertain a conversation. That's not the John Roberts I've been covering. And so I think you are right to say you can look at this as this is a guy who loves vast executive power. And that's how you read the immunity decision. And he was like that in law school and he was like that at

Starting point is 00:11:50 the justice department. I just think that's not the whole story. As you were giving the, that answer, I thought I should have been more precise in my question. Like I really think that that strain of him is deep and historic and has been there a long time. And it may be that he saw these three cases as the opportunity to really stand up for that thing that means a lot to him, which is unitary executive, unbounded presidential authority. Why that means so much to him, I don't know, but it clearly does. And I think that he, in this environment where they have such a strong majority, I think he's now feeling like he can really kind of act out on those, on that philosophy.

Starting point is 00:12:37 Yeah. And I tend to agree with you, Dahlia, because I used to be able to follow him. I used to be able to kind of know where he was going with something. I used to be able to follow him. I used to be able to kind of know where he was going with something. I used to like Trump v Thompson, right? Which is the result we should have gotten in the immunity case, right? It should have, the stay shouldn't have been granted because it wasn't previously. But in the immunity ruling, he either didn't read the DC Circuit Court's ruling or was just blatantly misrepresenting what he was supposed to be considering. He didn't consider that case at all. He just wanted to do what Gorsuch said, make a rule for the ages and talk about all future

Starting point is 00:13:27 presidents and not the case that the DC Circuit Court explicitly said. We're just looking at the case in front of us right now. He seemed to not acknowledge that once. That's a recent thing because I've followed a lot of Supreme Court stuff with following the Mueller investigation and these investigations and stuff that gets up to the Supreme Court through Judge Barrel Howell or Chief Judge Boasberg now. Everything that he had done up until this last June made sense to me. One other data point, we've talked about the you know, the maximalism, the like,

Starting point is 00:14:05 screw the optics. You know, I'm going for, I'm going big or going home. I do want to say, and I'm sorry to interrupt you, when I say made sense to me, I don't mean I agree with everything that he's done. I mean, I could understand what he was talking about. I could, you know, he made sense is what I just wanted to clarify that. Right, right. I agree.

Starting point is 00:14:25 I think that he was always reasoned and principled. I think he cared. This is another piece of maybe my answer to the first question. We used to joke that I'm thinking of the census case where they're just screwing around with the census and the whole process is just different people lying, right? And Roberts won't sign off on that. And it's not, again, it's not that he doesn't fundamentally believe, I think he would love to, right, constrict the vote, the project he's all on board with. But in that case, like he was so viscerally aggrieved at the level of lying and deceit in that case. And we used to joke

Starting point is 00:15:07 like that John Roberts, like so many John Roberts opinions when he would defect could basically like be shorthanded as like, come back and lie to me better. Like, do this in a way where I don't feel filthy giving you the thing that you are asking for and I want to give you." And what was weird in addition to the ways in which he was just reckless, as you say, with the facts, reckless with the... I mean, if it is in fact the case that there was a memo that went out days after the DC Circuit opinion, before there was a question, before this was briefed where he's like, here's what we're going to do. And he's telling his colleagues like, you all disagree with this and think this is garbage, like, let's move on. It's so like, eye popping. But then I think the fact that he sort of doesn't care about appearances is one of the huge changes to me. And I and I think what I misread, in addition to what you're saying, which is he was meticulously

Starting point is 00:16:05 careful. He was a minimalist, didn't agree with the outcome sometimes, but could follow the reasoning. Then you read the immunity case and you think like, he's just wrong. I mean, he's materially wrong about a bunch of things. He's wrong about, and I think this really matters, the stuff that Justice Alito was saying at the oral argument in that case about Michael Dreeben and the DOJ prosecutors who are just a bunch of mindless, soulless, dead, hollow-eyed functionaries who want to prosecute a ham sandwich. That is just so much deep state crap. And the idea that like John Roberts,

Starting point is 00:16:47 like under the theory of lie to me better, that he's gonna be associating himself with that kind of contempt for the Justice Department and suspicion for, you know, he's never been a guy who went along with the deep state and the conspiracy theories and the just utter garbage of contempt toward government until he was. Yeah.

Starting point is 00:17:11 And I think Katanji Brown Jackson even said, if you want to make a rule for the ages, that's fantastic, but this isn't the vehicle for that. And she was very, I think it was her, she was very adamant about that in her dissent. What other, so we find out that in this New York Times piece, that memo that you mentioned, what else did we learn? I think, I mean, two things. One, just dovetailing with where you just ended, which is the like coffee out your nose hilarity of him thinking that if he just like wrote a principle defensive, you know, executive theory abstracted away from like, you know, that everybody be like, Oh, cool, cool. Yeah,

Starting point is 00:17:57 we're fine with that. Like that he I don't know what, you know, who he's sitting next to in the cafeteria that told him that that would work, that this kind of rule for the ages, that the American public wouldn't care as long as he talked in a bunch of separation of powers abstractions. I thought that was fascinating and almost the most, because I think of him, I feel like I've said this to you before, as the highest EQ justice. I think he and Justice Kagan can read a room. The utter failure to read the public mood on this, I think is really intriguing. Then I guess the other thing that really shocked me is, you know, we don't know that he took the opinion away from Alito and Fisher. There's some scuttle

Starting point is 00:18:40 butt out there that Alito gave it up. But for somebody who thought, again, until June, I was the dumb-dumb out there saying he really cared about what the public thought of the court. And to know that he knew about that flag-flying stuff very shortly after Jan 6, and he did nothing? He was going to happily assign that opinion and Fisher to Alito. The only thing that happened was Alito got caught. Right? Yeah. I mean, that's what changed. And so when I think of like the template of what freaked me out about that article, it's that he doesn't actually care about ethics or conflicts of interest or justices whose wives are in the tank for the Jan sixers. What he cares about is getting caught. And that's like not in anywhere in the rubric

Starting point is 00:19:29 of the John Roberts, I thought I understood. You think of him as this great institutionalist who's dedicated to the perception of the public perception of the court. And yeah, that memo just destroys that image. It's so remarkable. Maybe after their approval was in the toilet, he was like, that doesn't matter anymore. Who cares? Yeah. That's the only thing I could think of. No, no, I think it's worse than that.

Starting point is 00:19:55 I think that he, and this should scare us because he was always the guy who was triangulating against public approval, right, and public opinion until he wasn't. And I'm scared that he's like fully drank the Kool-Aid, fully metabolized the idea that this is all a witch hunt. You know, that like Sheldon Whitehouse and the people at Crew and all the folks who are wanting, you know, a binding ethics code and who, you know, are the folks at ProPublica who are reporting our stories. I think he might think they're the bad guys. And that's like, again, like imagine for a moment if he's in the tank for the proposition that any scrutiny of the court is an illegitimate witch hunt. Yeah. A deep state conspiracy. God, that is so frightening. Sorry. I told you.

Starting point is 00:20:41 Oh, we got to vote. Vote. Everyone. I don't think there's anybody listening who's not going to. But yeah, wow. Interesting and frightening prospects. But thank you for coming on discussing this piece. It's so well. I love the way you write. It's so like you. I love reading your stuff because of how well you write and everybody needs to get Lady Justice. It's just such a great book. And it's beautiful color. It's a nice bright pink stands out on my bookshelf too. But yeah, excellent holiday gifts. I've been telling everyone, I'm like, this is what I do.

Starting point is 00:21:14 I buy like 10 copies of every book that I love. And then I just like wrap them and just hand them cause they're all good. And just give them out on holiday parties and stuff. I'm the book bringer. But thank you so much for joining us today. It's been really enlightening. Oh, thank you for having me. Thank you for you guys are doing God's work. And I will just double down on where you ended, which is not just vote, but freaking court reform,

Starting point is 00:21:38 you know, finding ethics. We have to really understand that you can put all the Kamala Harris's in the office and it will be the loan forgiveness case. It's got to be the courts, just term limits and finding ethics and age limit, all of it. And I think we have to get very comfortable saying that it doesn't end with voting, it begins with voting. So that's my little gloss on that. Absolutely. Absolutely. Dahlia, it was such a pleasure to meet with you.

Starting point is 00:22:12 I don't think we've spoken before this, but thanks so much for coming on. Huge fan. Thank you. Thank you both. Thank you. And speaking of doing God's work after this break, we're going to go through line by line, President Donald Trump's omnibus reply in further supportive discovery motions, which really has very little to do with discovery. So we'll be right back after this quick break.

Starting point is 00:22:32 Stick around. Welcome back. Okay. Let's break down the first filing due to Judge Chutkin in the DC case. And this, as we said, is Trump's omnibus reply in support of discovery motions. And it was due on September 19th at 5 p.m. Put a pin in that one next time, I guess. So that deadline came and went. And then after five, Trump's lawyers asked for an extension. The following day, Judge Chutkin issued the following minute order, says, defendants 234 unopposed motion for leave to file is granted. The deadline for defendants

Starting point is 00:23:19 235 omnibus reply in further support of discovery motions is extended non protunk to the end of day on September 19, 2024. Going forward, the parties should seek any needed extensions of time before the deadline. Now, non protunk, which I'm probably mispronouncing, is a Latin word that is used to describe a court's ability to issue a retroactive order to fix something that happened in the past or to order something that's already happened, essentially. So that's just a little term of art there. Now law fairs, Roger Parlov characterized Trump's filing as follows. He says, the first seven pages of Trump's reply brief on discovery are actually a de

Starting point is 00:24:10 facto motion to reconsider, begging Judge Chutkin to retract her September 5th scheduling order, which calls for the government to lay out its, quote, unpled evidence against Trump next Thursday. Yeah, betcha they don't want that coming down the pike. Right. So let's dive into the 35 page bleeding. They start off by saying this case should be dismissed promptly. That is, that's, I'm laughing. This is not a motion to dismiss everyone. Just putting that out there. It's kind of written like a bad TV drama, right? Complete with the super short sentences. Okay. They go on to say, that is the only just course of action consistent with one,

Starting point is 00:24:57 the Supreme Court's decision in Trump v United States, two, the critically important institutional interests that support the presidential immunity doctrine, and three, the critically important institutional interests that support the presidential immunity doctrine and three, the stubborn reliance by the special counsel's office on allegations relating to Vice President Pence that are at least presumptively immune. Dismissal is required to protect the integrity of the presidency and the upcoming election, as well as the constitutional rights of President Trump and the American people. There are also ongoing discovery violations in this case that implicate presidential immunity and other strong defenses, including the Office's failure to produce exculpatory evidence concerning

Starting point is 00:25:37 the flaws with this prosecution and the Office's false allegations. Therefore, President Trump respectfully submits this omnibus reply in further support of the pending motions for an order regarding the scope of the prosecution team and to compel discovery and in response to the office's omnibus opposition brief. Wow. So it's a motion to dismiss, it's a motion to reconsider. It's a motion about selective and vindictive prosecution. It's all things to everyone. I laughed, I cried. It was a roller coaster of emotions. It was better than cats. I'll read it again and again. You

Starting point is 00:26:20 know, it's just, it's, it's fascinating to me. There is some stuff about discovery in here though. They do eventually get to it. But they say this is a reply about the scope of the prosecution team, discovery and the government's opposition brief to both, right? But again, they spend almost the entire introduction trying to get her to reconsider her scheduling order. Here's more from the introduction. The special counsel's office conducted its initial disputed discovery review in this case at a time when the office wholly denied

Starting point is 00:26:50 the existence of presidential immunity. The Supreme Court's recent decision established important parameters for the procedural and substantive consideration of this defense that the office could not possibly have accounted for when the bulk of discovery was collected and produced. The office cannot meet their obligations by arguing that they took a broad approach to discovery at the outset, which is not true, and insisting their initial collection adequately encompassed discoverable information relating to presidential immunity, which is incorrect, in the absence of a new case file review based on a lawfully defined prosecution team and consistent with the office's affirmative search obligations,

Starting point is 00:27:32 the prosecutors are in no position to make valid public claims defending the superseding indictment in an unprecedented filing next week that is inconsistent with Rule 12, President Trump's constitutional right to defend himself and the Supreme Court's suggestion that proceeding on remand be conducted in a straightforward and orderly fashion. Okay. This is very ridiculous, mainly because both the indictment and the

Starting point is 00:27:56 universe of the evidence has shrunk. It's gotten smaller. When Wendham mentioned that in the September 5th hearing saying, look, we cut like nine pages out of this indictment. And discovery was basically complete before the whole thing got put on hold. There were no allegations added, right? Only removed. They were taken away, right? And a bunch of evidence went away, a lot of it.

Starting point is 00:28:20 And an undited co-conspirator disappeared, along with a lot of different witness testimony that they're not going to use now because it could be subject to immunity. So they go on, these concerns are amplified by the fact that the special counsel's office has repeatedly misstated the law and mischaracterized their discovery obligations in the opposition. Okay, so now he's making a motion to dismiss on statutory grounds, I guess. These are serious problems which present unique risks to the effective functioning of government. Accordingly, President Trump respectfully submits that the court should one, order the office, Jack Smith, to perform

Starting point is 00:28:59 the searches and disclosures demanded in President Trump's discovery motions, and two, reconsider the September 5th, 2024 scheduling order by rejecting the office's lawless request to file a public defense of their defective superseding indictment before they are in compliance with their discovery obligations. And Andy, not sure, but I think calling the judges' scheduling order lawless is probably not a good idea. It's not a great idea. It's not one that, I don't know, a hundred lawyers out of a hundred would agree with.

Starting point is 00:29:37 So even if he's saying lawless and he means only Jack Smith in the use of that word lawless, and he means only Jack Smith in the use of that word lawless. Let's remember, Jack Smith's proposal was submitted to the court at the court's request. Even had to ask for a little extra time to do it, if we remember correctly. By the way, she could very easily just put this entire thing on hold until after she sees the evidence that comes up next week. And then have a better perspective on really the extent of the discovery obligations and whether or not they've been met. But yeah, this thing is all over the place. Hostie So yeah, it is. It really is. Aaron Powell Okay. So Trump's lawyers then break down the filing into five sections. And I top line

Starting point is 00:30:26 it for you if they made any sense, but there's literally no logical outline to this filing. So we're going to fight our way through the five parts. All right. Part one is entitled the special counsel's refusal to acknowledge applicable defense underscores the need for judicial intervention. That's section one. Okay. That's just the headline, the heading for section one. Okay. It says, these remanded proceedings require careful consideration of the presidential immunity defense based on an intervening Supreme Court decision that post dated the initial discovery review by

Starting point is 00:31:02 the special counsel's office. In the opposition, the special counsel's office also repeatedly mischaracterizes and minimizes important discovery obligations and applicable defenses. The most significant of these errors are addressed below and they illustrate that the court cannot continue to credit the office's conclusory representations of discovery compliance. Insininuating, I'm not actually gonna tell you what the errors are, I'm just saying, you can't take it anymore. Don't stand for this, Judge.

Starting point is 00:31:32 The most egregious ones are below. We'll save you the less egregious errors. We won't include them. An error is an error anyway, I don't know. The errors in this section are apparently presidential immunity, local rule 5.1, a mens rea defense, and mitigating evidence relating to third parties. So yeah, this filing has no discernible logical organization at all. And so about presidential immunity, first one, right?

Starting point is 00:32:03 He says the court should revisit the September 5th, 2024 scheduling order in light of the baseless legal positions taken by the special counsel's office in the opposition, as well as related arguments at the September 5th status conference, which are inconsistent with key tenets of the Supreme Court's decision in Trump. You know, seriously, if you want to file a motion to reconsider, you should do that and just focus on discovery and your discovery motions. You might

Starting point is 00:32:30 actually get them in on time. He then says the Supreme Court... Yeah, this definitely feels like the term paper that was written overnight, the night before it was due, or in this case, a few hours after it was due. A diorama that goes with it? He then says the Supreme Court got it wrong, and he intends to establish absolute immunity for official acts. He says this. He says, while the Supreme Court concluded that Trump is entitled, at a minimum,

Starting point is 00:32:55 to presumptive immunity from prosecution and for his official acts, Trump will establish, as a matter of law, that presidential immunity for official acts must be absolute, and that the presumptive immunity is not sufficient to achieve the underlying purpose of the doctrine. He's now arguing immunity again, says the Supreme Court got it wrong. He's relitigating the Supreme Court ruling. And then he raises the VP Pence issue. He says, a second threshold legal question,

Starting point is 00:33:22 which highlights another defect in the superseding indictment arises from the central role that the special counsel's office has assigned to allegations relating to interactions between President Trump and Vice President Pence. The Supreme Court already concluded that the office's allegations related to Vice President Pence, quote, involved official conduct, unquote, and that President Trump, quote, is at least presumptively immune from prosecution for such conduct. And we know, Jack Smith will argue in his immunity brief, and not a discovery brief, that it wasn't a conversation between the president and the vice president. It was a discussion between a candidate for office and his running mate about his role

Starting point is 00:34:04 as president of the Senate. And then lastly, in the presidential immunity section, he says, thus, prolonging proceedings in this case without addressing these dispositive threshold issues, especially through invasive factual probes of President Trump's official act, is itself a violation of the presidential immunity doctrine. The harms to the quote institution of the presidency resulting from this violation are exacerbated by the current schedule. This is so due to the fact that the office's planned filing in defense of the defective superseding

Starting point is 00:34:38 indictment before President Trump has the opportunity to obtain and review all required discovery will add to quote, the peculiar public opprobrium. How you say that? You got it. You hit it. That attaches to these criminal proceedings as the election rapidly approaches. Except Andy, the Supreme Court ordered this case remanded to Judge Chuck and so she could

Starting point is 00:34:59 determine what are and aren't official acts. Of course. Making those determinations is not prolonging the proceedings. It's doing what she's been ordered to do by the Supreme Court. Yeah. But apparently they were wrong. And they're wrong.

Starting point is 00:35:14 They're also wrong. You gave me the world and now I want the world plus. This is an approach here. So next up in the presidential immunity section is the special counsel must produce all evidence relating to the official context surrounding the false allegations in the superseding indictment. I would read that again if it would make it clearer, but I'm sorry it won't. I'll just keep going on. They go on to say, all documents supporting President Trump's presidential immunity defenses are discoverable

Starting point is 00:35:45 under Brady Rule 16A1E and Local Criminal Rule 5.1. Because the scope of the prosecution team is disputed and because the special counsel's office has independent affirmative obligations to search for such evidence, it cannot be true that the prior discovery efforts by the office are adequate to account for the features of this defense recently identified by the Supreme Court. So basically now he's asking for discovery to include all documents related to his immunity defense. And he gives examples of these.

Starting point is 00:36:17 Among other requirements, the presidential immunity defense necessitates discovery regarding the government's prior positions on the scope of core and outer perimeter, executive authority, and information relating to actual or threatened dangers of intrusion on the authority and functions of the executive branch. Okay. Now, correct me if I'm wrong, but I don't think Trump is entitled to immunity discovery because it's not part of, I don't think you can raise an immunity defense. I think we're here to decide what's immune and what's not. And then you can argue about what you think is immune and what's not. And then once that's

Starting point is 00:36:58 decided, you don't get discovery for more immunity defense. I don't even understand how he thinks he's entitled to discovery on immunity when this is a pretrial litigation about what's immune and what isn't. Yeah, this is not... I mean, I guess technically immunity is a defense in that as a defendant, you could raise it to stop the prosecution against you. And you would raise it pre-trial. But the government is, in terms of the government's disclosure, discovery obligations, they are principally driven by three things. One, they have to give over whatever evidence they're going to use to prove the allegations and the indictment. So, they have witness statements or forensic

Starting point is 00:37:45 evidence, whatever, whatever. They also have to provide any evidence that they have. They have to look for and find and then turn over any evidence that they have. So, anything that the investigation revealed that could possibly be exculpatory for the defendant. That's Brady material. They also have to look for and turn over impeachment evidence. That's Brady material, okay? They also have to look for and turn over impeachment evidence. That's any prior statements by witnesses that could be used by the defense to undermine that witness's testimony during the impeachment phase of the examination. And that's Giglio material. But that's it. You know, immunity would come up pre-trial. You would argue that you qualified for some form of immunity because of your status, in this case, status as a president of the United States.

Starting point is 00:38:32 And the court would decide, and that's it, it's over. You may raise it on appeal if you get convicted, but good luck with that. So you're right. It's hard to imagine any of these things he's referring to that the government must now turn over because he likes this thing that the Supreme Court gave him. That's just, I don't think that's a thing. AMT – I don't think so either. I really don't. BF – Yeah. All right. So, well, if that weren't enough, he then brings up in a discovery motion, disguised as a motion to reconsider, disguised as a motion for immunity. This is literally the turducken of pretrial motions.

Starting point is 00:39:11 Trump argues about selective and vindictive prosecution. He says, any evidence of bias and hostility towards President Trump harbored by the prosecution team is discoverable and must be produced. If the court addresses presumptive presidential immunity, which it should not because that immunity must be absolute as stated above a prosecution driven by improper bias and hostility toward quote, the only person who alone composes a branch of government would pose dangers of intrusion on the authority and functions of the executive branch. Okay.

Starting point is 00:39:46 So beyond that being just like a bold face assertion based on nothing, no law, no facts, no nothing, we got to also remember that vindictive prosecution, which is a thing, is raised as a pretrial motion only. And it essentially happens when, if you offer, if the prosecution offers a defendant or charges a defendant, like with robbery or whatever, and the defendant says, I didn't do it, I'm going to trial. And as a result of invoking your right to trial, the prosecution says, okay, well, we're charging you now with robbery and assault.

Starting point is 00:40:23 That's a vindictive, that's like per se evidence of a vindictive prosecution. Okay. So that has to be made before trial. And you could then, if it's denied- And Trump has filed them. And lost them. Yeah. So like this idea that like they're biased against me, therefore you should dismiss this

Starting point is 00:40:42 case, that's not a thing either. Like, vindictive prosecution is a real thing. There's a definition for it. It's either like explicit or kind of presumptive. There are different ways that you prove that, but it's not done the way they're raising it here. No, it's not. Nothing is done the way that they're raising these things in this motion. We're going to talk more about it. We're going to cover rule 5.1, local criminal rule 5.1, mens rea, and third party evidence as well as the remaining sections, but we have to take a quick break.

Starting point is 00:41:15 Stick around. We'll be right back. Welcome back. Okay. We left off somewhere in the middle of nowhere discussing vindictive and selective prosecution and presidential immunity. Of course, all of this in a discovery motion. And next up in the presidential immunity section of this omnibus discovery reply is a section on local rule 5.1. So they say the court cannot trust discovery compliance representations made by the special counsel's office because it is clear from the opposition that the office has ignored Local Criminal Rule 5.1. Pursuant to this rule, the office must promptly collect and produce information that is, quote, inconsistent

Starting point is 00:42:03 with their unsustainable theory of the case. Information that tends to establish quote articulated and legally cognizable defenses such as presidential immunity and challenges to the intent element of each pending charge. And information that quote casts doubt on the credibility or accuracy of any evidence. Okay. So just as a reminder, that last quote, that's giglio. The prior quotes were all essentially one way or another referring to what we would call Brady information, things that would tend to show the charges were not true. Okay. They go on to say, thus, the special counsel's office cannot defeat discoverability under local criminal

Starting point is 00:42:45 rule 5.1 and other authorities by crediting their false theory that President Trump engaged in deliberate actions that caused the attack, mischaracterizing the contrary information as rumors, and foisting a pretrial burden on President Trump to establish that he earnestly credited any of the myriad exculpatory classified details that the office is improperly seeking to keep from the defense and the public. Yeah. So I looked up rule 5.1. I read that about 20 times. I still don't know what he's talking about. I honestly don't. I really, I can't figure it out. I think he's trying to say that you can't use legal criminal rule 5.1 to stop, as a reason to not hand over the intelligence community assessments.

Starting point is 00:43:35 Yeah, because the special counsel's office is saying, no, that stuff doesn't come up. We're not required by rule 5.1 to turn that stuff over. And he's arguing here, oh yes you are. You have to turn that over because, so in this case, he's making the argument that the Intel community assessment, quote, casts doubt on the credibility or accuracy of any evidence. And what Jack Smith is saying, no it doesn't. It's not even relevant to any of any evidence. And what Jack Smith is saying, no, it doesn't. It's not even relevant to any of our evidence. We're not using it as a piece of evidence. We're not calling in people who wrote parts of it to testify about what they wrote. There's no connection

Starting point is 00:44:15 here between that. By the way, you can also just get that off the internet if you wanted. It's out there. I don't know what the problem is. Well, they aren't able to figure out how to watch CCTV video on their iPad from software that their own company owns. So I don't know. It's the interwebs. They're very complicated. With the Google. I mean, they sent him a laptop and a guy to come out and show them and they still couldn't figure it out. All right. Here's what he says about mens rea. First of all, I would like to point out that not only is there no proof in this case, but there's a complete lack of mens rea, which by definition tells us that there can be no crime without a vicious will. I am aware of the meaning of mens rea.

Starting point is 00:45:09 What I'm unaware of is why you're giving me a vocabulary lesson when you should be questioning your witness. So, okay, I'm kidding. Trump's lawyers write this about mens rea. President Trump emphatically rejects the allegations by the special counsel's office that he acted with science at any time. that's a vicious will and is entitled to discovery in support of this defense the appropriate scope of that discovery is much broader than the special counsel's office has acknowledged which further supports

Starting point is 00:45:38 Trump's position that they're currently in violation of their discovery obligations although the focus of the court must now be on immunity, where motive is irrelevant, the President Trump is entitled to discovery in support of his other defenses. The appropriate scope of that discovery is much broader than this office has acknowledged, which further supports President Trump's position that they're currently in violation of their discovery obligations. So it was kind of just a repeat there. The special counsel's office has framed the charges around claims of election fraud, and

Starting point is 00:46:14 they baselessly insist that President Trump knew there was no such fraud. Therefore, President Trump is entitled to documents and information demonstrating the opposite, that he had no such motive because he reasonably believed that fraud had been perpetuated. So Trump is literally demanding all documents in Jack Smith's possession and probably in a larger scope that are outside of his possession that prove Trump thought there was election fraud. Yeah. He's just flipped the whole thing around on its head and said, see, it proves my case. This is such sophistry. It's just, it's nonsensical writing.

Starting point is 00:46:52 It's so weird. There's no such thing as this, right? The government has to prove mens rea as part of any criminal case. They have to enter some evidence to prove to the jury that the defendant had the requisite mens rea required under the statute. Most cases it's knowing and willful. You did whatever you did knowing it was wrong and whatever. So you would have to offer evidence that proves that. A witness testimony, a piece of a document, something that the defendant wrote.

Starting point is 00:47:23 So that's what he's entitled to. The evidence that proves the government's allegation. He says, I think the opposite of what the government is alleging. Therefore, you have to go out and give me all the things that exist that prove the opposite of what you say. Yeah. And honestly, if Trump knew that he wrote a memo or had a memo from Krebs that said we have sizable election fraud here or something, and he knows that that exists as a document, he can request that the government hand it over as Brady material if it's exculpating. Absolutely.

Starting point is 00:48:01 Yeah. He's just like, there's tons, there's a seize of seas of documents of proving my innocence. You have to go find them and give them to me. And that's not how it works. If he wants to prove that he didn't have the mental state, the intent to commit those crimes, he can enter whatever evidence he has of that. Maybe he'll enter evidence of 400 statements that he made and postings on Truth Social about the fact that he thought the election was actually fraudulent. Like, he can do that, but Jack Smith is not obligated to

Starting point is 00:48:36 look for, to build his defense for it. No, and he's also not charging him with making false statements to the public. Yeah. And he puts that right in the beginning of the indictment. Then Trump says Jack Smith is refusing to, well, the fact that Jack Smith refuses to hand over his mens rea discovery does not contravene rule 403. Yes it does. And repeats that he doesn't have to know something exists in order to compel discovery.

Starting point is 00:49:04 Yes he does. And that Jack Smith's third party guilt argument was not valid either. Yes, it was. So it's just, he's saying he's just completely mischaracterizing the law. Yeah. All right. In section two, Donald Trump's lawyers contend that the special counsel's position regarding the prosecution team is lawless. The prosecution team motion seeks to require the special counsel's office review, collect and disclose evidence required by their basic discovery obligations and President Trump's defense theories from relevant individuals at entities that assisted the office and are

Starting point is 00:49:42 well within the office's reach. The office's attempts to avoid these requirements are unpersuasive. Okay, so this is where he's arguing that the scope of the prosecution team is much larger than it actually is, which entitles him to more discovery from that broader scope of people, which includes basically every single federal agency, including the Department of Homeland Security, the Department of Homeland Security, the Department of Defense, and all the intelligence agencies.

Starting point is 00:50:09 So Jack Smith has argued that the prosecution team consists of the special counsel's office, parts of the DOJ that we're investigating before Jack Smith took over, and the law enforcement personnel, the FBI agents and whoever else who were involved. Now Trump makes the same baseless arguments in this filing. First, he argues that if any agency gave the special counsel a single document, that that

Starting point is 00:50:33 entire agency is now part of the prosecution team. Now he made this argument in Florida, which was ironic because in that case, as we all know, the agency is actually the victims of the crime that he's charged with. But I digress. He then argues that if Jack Smith has easy access to documents, he must produce them, including the quote, missing January 6th documents and the material from DOD, ODNI and the CIA. Yeah. By the way, the missing January 6 documents, I think a judge down in the 11th circuit, not at the appeals, but in that district had ruled that they don't exist.

Starting point is 00:51:16 Right. This is the, where's my $5 part of the argument. There's no $5. I don't have $5 for you. Bill Gates owes me five bucks. Yeah. No. Stop chasing me around on your MX bike.

Starting point is 00:51:29 Oh, it's $2. You're talking about I want my $2. Yeah. $2. Yeah, sorry. Next up, section three, the prosecution's affirmative search obligations. There. Was that so hard?

Starting point is 00:51:41 That's a nice title for a section. That one I can get behind. He says, even if the special counsel's office had established that one of those entities at issue should be excluded from the scope of the prosecution team, which they have not done, that conclusion would not end the inquiry into their review obligations for purposes of discovery. The office has an independent obligation to search for the types of exculpatory evidence identified by President Trump, including through prudential search requests. So this is where he's talking about the scope of the prosecution team. So again, I'm not sure why this isn't in a subsection of the previous section or why that section was called.

Starting point is 00:52:20 The special counsel's position regarding the prosecution team is lawless and not just the scope of the prosecution team, but whatever. I'm not a lawyer. So I am, and I don't know either. This seems written like a tax form. You read it and you're like, what? It makes zero sense to me. After reading this whole thing, I could see in my head a much clearer way to present all of this information, even if

Starting point is 00:52:46 I still wanted to, because so much, half of it's not even relevant. But it's anyway, it's very poorly written. That's correct. All right. And another example, then there's section four. Here we go. This heading is the court should compel disclosures in response to President Trump's specific requests.

Starting point is 00:53:03 In addition to the obligations of the special counsel's office to search for discoverable information, President Trump has made specific demands in the compel motion and the classified supplement. Similar to the office's approach to the prosecution team dispute, they have ignored applicable law governing their obligations, deflected from the evidence in the record without assurances about facts exclusively in their possession, and refuse to budge even an inch closer to justice in this case by turning over any of the materials at issue. Budge even an inch closer to justice.

Starting point is 00:53:43 When is that appropriate to write in a legal filing in court? The answer is never, but okay. Donald Trump's lawyers demanded giglio disclosures relating to Vice President Pence, but they aren't demanding anything related to the case. Instead, they want information on the investigation into Pence's handling of classified documents. That's right. They are demanding that Jack Smith produce in discovery documents out of Pence's document investigation. They say the opposition by the special counsel's office to president Trump's demand for giglio information relating to Vice President Pence's classified information mishandling is meritless. And their suppression of this evidence

Starting point is 00:54:30 must be addressed promptly in light of Vice President Pence's significance to the presidential immunity defense. So why is Trump entitled to see these materials? He says if Vice President Pence committed crimes that DOJ elected not to prosecute for discretionary reasons, that benefit must be disclosed. What do you think? Well, it's not, no. I mean, if this thing ends up going to trial and Pence testifies, then yes, any statements of Pence under oath, prior statements by Pence under oath would likely get turned

Starting point is 00:55:07 over to discovery. And if for some reason Pence had been given a benefit in that case, which he wasn't, all he did was was interviewed, they looked at his house, looked at the documents and then they exercise their prosecutorial discretion to say, there's nothing worth prosecuting here. That's not like the same as like somebody who gets a plea bargain that's favorable in return for becoming a government witness. Like that's a benefit that you have to disclose when that witness testifies because it's giglio can be used to impeach their testimony. But this is wildly stretching the bounds of Gaglio. It seems like it to me as well. He repeats his demand for all statements by any government

Starting point is 00:55:50 official in the history of the universe that exculpate him by saying nice things about him. I think, I don't know, it was a bizarre request when I read it in the initial discovery motion. Yeah. Yeah. He's like, you have to go to every single agency and find anything that was ever written nice about Trump. I mean, it's like, wow. And they also want all the evidence of foreign election interference and the solar winds hack, which I guess he would use to argue, justifying and citing an insurrection and calling Raffensperger and asking him to find votes. I, I, I think what he's trying to prove here is that he had information that the election were fraudulent. But anyway. It's really hard to figure, to kind of, with any confidence, figure out what they're talking

Starting point is 00:56:39 about. It's just, it's very, very hard to follow. Yeah. He wants materials about security at the Capitol on January 6th, which Jack Smith said is not discoverable and Trump, because it's security related. Trump's also asking for all the materials about the FISA abuses, which Jack Smith characterized as Rule 403 barred sideshow the defendant wants to bring to the trial's main stage. And yes, Trump is talking about the Carter Page FISA, which is the deadest of all dead horses to beat, honestly. Yes, agree.

Starting point is 00:57:11 I agree there. Okay. And that of course brings us to section five, mercifully the last, which is called the court should not tolerate the special counsel's deflections. Trump argues in this section that he has evidence of bias and misconduct. President Trump has identified strong indications that members of the prosecution team are motivated in this case by improper bias and political motivations. Strong indications like concepts of a plan?

Starting point is 00:57:43 Yes. Exactly like that. Not a plan, like concepts of a plan? Yes, exactly like that. Not a plan, but concepts of a plan. I really, really feel like you guys aren't fair. Yeah. Next, Trump's lawyers suggest that because Jack Smith didn't say that no evidence exists that there weren't deep state government agents at the Capitol on January 6th. And because Jack Smith relied on admissibility principles, which reveals quote, their politically motivated colors by offering an unsupported

Starting point is 00:58:12 analogy between President Trump and a bank robber. So, Jack Smith's not going to turn over information about government agents at the Capitol. And the way that he, Jack Smith argued that was, it's not admissible here. It's not discoverable. Instead of saying none exist. Yeah. He said that. And so Trump's like, so that means it's real and you have to hand it over. It really exists. Yeah. I see through your- And don't call me a bank robber. I see through your lawyering. Finally, Trump takes issue with Jack Smith, mocking him for using a newspaper article to prove the scope of the prosecution team, saying, well-sourced media coverage relating

Starting point is 00:58:52 to the office's targeting of President Trump has disclosed numerous details regarding improper tactics and coordination that typically are not disclosed to a defendant. If pertinent portions of the reporting are accurate, they should say so. But they cannot undermine President Trump's position by casting aspersions at news reports they created through their own leaks. I mean, that is just 14 layers of falsehood packed into one paragraph. Yeah. The one time Donald Trump defends the press. Yeah. This is just conclusory nonsense. And all right, well, let me finish and then I'll finish this sentence. So they conclude this monstrosity by saying, for the foregoing reasons and those in the

Starting point is 00:59:37 opening motion papers and the classified supplements, the court should one, grant the relief requested in the prosecution team motion and the compel motion, and two, reconsider and pause the current schedule until the special counsel's office establishes that they are in compliance with their discovery obligations, which will never end because this will never go away. This is all about delay. It's delay, delay. Don't let them bring their unpled evidence into court as you have already ordered them to do so. Let's postpone that and force them

Starting point is 01:00:16 to jump through these impossible hoops and produce these things in discovery that don't even exist. And let's keep fighting about that for months and months and months to put any potential airing of evidence in this process, the immunity process, often until after the elections. Always, always about to lay. They argued their side and the judge took all of that into consideration and said, no, we're going to do these in parallel. Yeah. And I want on September 26th, that's this Thursday, the opening brief from the government. The end, that's the decision. Now again if you want to file a motion to reconsider, file one. But there was nothing, I looked, there was

Starting point is 01:01:00 nothing in here, no evidence to support a motion for reconsideration. Like when Jack Smith filed a motion for reconsideration against Judge Cannon, it was because she applied too high a standard for him to keep witness lists sealed, right? And you only actually have to show good cause. So Jack Smith went out and got all the case law and cited the case law from the 11th Circuit and said, look, good cause, it's good cause. So Jack Smith went out and got all the case law and cited the case law from the 11th Circuit and said, look, good cause, it's good cause. So you've made a clear legal error and it could lead to manifest injustice. You need to reverse yourself. He just goes, it's not fair and you should do it the other way, the way that we wanted that

Starting point is 01:01:39 you said we couldn't do it that way. And you should, because it's not fair. Yeah. It's just, I didn't like your ruling. And so now I'm asking for you to change it. That's really all it comes down to. It's just nonsense. We have to wait. He has to go get things that don't exist. Yeah. Like when, when we would first somebody would come into our unit in the Navy, we would send them out for a bag of steam. You know, it's that for sure. He wants Jack Smith to bring him a bag of steam. It's that. For sure. He wants Jack Smith to bring him a bag of steam. All right, we have one more quick story about Judge Cannon and of course our listener questions, but we're gonna take one last quick break. Everybody stick

Starting point is 01:02:13 around. We'll be right back. Hey everybody, welcome back. One more quick story today from ProPublica, and it's not about Clarence Thomas this time. It's about Judge Eileen Cannon. Federal Judge Eileen M. Cannon, the controversial jurist who tossed out the classified documents criminal case against Donald Trump in July, failed to disclose her attendance at a May, 2023 banquet funded by a conservative law school. Cannon went to the event in Arlington, Virginia, honoring the late Supreme Court Justice Scalia, according to documents obtained from the Law and Economic Center at George Mason University.

Starting point is 01:02:56 At a lecture and a private dinner, she sat among members of Scalia's family, fellow Federalist Society members, and more than 30 conservative federal judges. Organizers billed the event as an excellent opportunity to connect with judicial colleagues. So far, all that's fine, right? A 2006 rule, I mean, I don't like those guys, but... Hey, listen, you know, they can have dinner if they like, whatever. Yeah. But a 2006 rule intended to shine a light on judges' attendance at paid seminars that could pose conflicts or influence decisions requires them to file disclosure forms for such trips within 30 days and make them public

Starting point is 01:03:31 on the court's website. This isn't the first time she has failed to fully comply with this rule. In 2021 and 2022, Cannon took week-long trips to the luxurious Sage Lodge in Prey, Montana for legal colloquiums sponsored by George Mason, which named its law school for Scalia thanks to a $30 million gift that conservative judicial kingmaker Leonard Leo helped organize. Current rates for standard rooms at Sage Lodge can exceed $1,000 a night depending on the season. With both Montana trips, Cannon's required seminar disclosures were not posted until NPR reporters asked about the omissions this year as part of a broader national investigation in gaps in judicial disclosures. Cannon has not responded

Starting point is 01:04:15 to repeated requests for comment. Cannon's husband, Josh Lawrence, a restaurant executive, accompanied her to the 2021 and 2022 colloquiums, which featured noted conservative jurists, lawyers, and professors, as well as lengthy afternoon study breaks, according to records obtained by ProPublica. Cannon emailed university staff to submit airport parking expenses and inquire about rental car reimbursement. The rule for paid seminars is among the policies

Starting point is 01:04:41 set by the Judicial Conference. Federal judges are also required by law to file annual financial disclosures, listing items such as assets, outside income and gifts. Cannon's annual disclosure form from 2023, which was due in May and offers another chance to report gifts and reimbursements from outside parties, has yet to be posted. Cannon reported the two Montana trips on her annual disclosure forms, but the required 30-day privately funded seminar reports had not been posted. Cannon reported the two Montana trips on her annual disclosure forms, but the required 30-day privately funded seminar reports had not been posted. In 2021, Cannon incorrectly listed the school as George Madison University. The court's administrative office declined

Starting point is 01:05:17 to say if she requested a one-time extension to give her until August 13th to file. A spokesperson would not discuss whether she met the deadline or the status of her disclosure, which must be reviewed internally. So that is a little bit, a little window into Judge Garner. Yeah. Not surprising at all, really. This year is going to come and go. You won't see that disclosure filed. The only difference here is that she's not a Supreme Court justice, right? She's a district court judge. So she does actually come under the administrative office of the courts. They could take some action against her. It wouldn't be very severe, if at all. They probably would do nothing. It's just a very, very weak system that relies

Starting point is 01:06:03 on judges entirely to comply. And some of them don't. And she's one of them. At least there is, at least there are ethical guidelines at the federal bench. Yeah, exactly. All right. Time for listener questions. We have a link in the show notes that you can click through to submit your questions.

Starting point is 01:06:20 What do we have this week? All right. So we have one is I have to read this one because there were multiple people wrote in and said basically the same thing and has to do with something that I screwed up. So, um, this one comes from Roberta. She says, I love the podcast and both Alison and Andy, but Andy misspoke repeatedly in episode 94 when referencing the case about Rolex watches, which involved, and she puts

Starting point is 01:06:45 in all caps, trademark, not copyright law. And she says, had this copyright lawyer shouting at my phone. All right, Roberta. Okay. I don't want to, I don't want the copyright mob after me. I got to be able to live my life. Not always looking over my shoulder, worried about some angry copyright lawyer bonking me on the head with her phone. So I'm sorry. You're correct. That would, that would have been the right word to use. And here's, here's a, um, a trick to remember. Torkington T trademark. There you go. There you go. Or you can, you can just be like moderately intelligent, which clearly clearly I'm not and remember that what we were talking about was actually trademark. But okay. For all the times you talk about Torkington in your life.

Starting point is 01:07:31 Yeah. Cause trademark and copyright law is always first top of mind for me. But anyway, I'm not going to get smarmy here. I'll take my licks. You're right, Roberta. I was wrong. Okay. So now what I thought we'd do, I got a bunch of questions about the 11th circuit considering the appeal that's currently in front of the 11th circuit of the Florida case. So I'm going to go speed round with you here. I got three little questions, quick answers, but I figure we cover all these. All right. Here's your first one, AG.

Starting point is 01:08:02 It comes from Teresa. Oh, this is for me. Okay. Yeah. And I need you on one, AG. It comes from Teresa. Oh, this is for me. Okay. Yeah. And I need you on this one because I don't remember numbers. And this is the scheduling. Put your schedule hat on. When do you expect we'll see a decision from the 11th Circuit Court on the classified documents case? Well, in true lawyer style, which I am not, we don't know. But Jack Smith did file his brief, his appeal to the 11th circuit, I think on August 26th. And then Trump had 30 days to respond, which

Starting point is 01:08:31 would be September 25th, a day before Jack Smith's brief is due in the immunity situation up in DC. So that'll be an interesting couple of days this week. And then I think Jack Smith has two weeks to respond if he wants to. And so that'll put us like first week, end of the first week of October. And then they'll set oral arguments. He's asked them to set oral arguments and they'll assign a three judge panel. So I would say we might get that in October or November. The oral argument. Yeah. Depending on whether they, whether Jack Smith asks for expedited or not. So we'll

Starting point is 01:09:14 see. So if we get that by end of October, that's probably the fastest timeline, then they have to consider and write an opinion, the three judgejudge panel. And of course, now you're bumping into November, there's holidays in November and December. We could get an answer from them in December or it could come in January. Yeah, after the new year. So it's a ways off. It's a ways off. And then after that, if it goes against Trump, then he can ask for a rehearing in Banque.

Starting point is 01:09:42 And if they decline that, then he would likely pursue a Supreme Court hearing. All right. So that's our first question. The second question is, what are your thoughts on the likelihood of the case being reassigned away from Judge Cannon? Well, there's pretty good case law out there. Yes. Torkington. Yep. Supporting it. But Jack Smith didn't ask for it. But that doesn't mean that the court can't do it. I think both the crew, amicus brief and the one by George Conway et al.

Starting point is 01:10:16 Both asked. I think they both reminded, well they asked for her removal, but I think they also both reminded the court that you can do this to Espante. You don't have to have Jack Smith asking for it. So I would give it a 50-50 shot. That's exactly what I would say. Exactly. I get a 50-50, maybe 51. 51-49. I think it's, which is a much better chance than you would have in just about any other fact pattern I've ever seen. I think it's a remedy of last resort. Courts don't like to do that, but I

Starting point is 01:10:48 think under the circumstances, they very well might. Yeah, and if they overturn her, they will have reversed her three times. And then she's got all that other stuff that we talked about that were in the briefs. And in Torkington, it was just once. That's right. That's right.

Starting point is 01:11:01 All right, so that was from Nick. And the last one comes from our friend from Montgomery County in the DMV. Can Trump appeal that decision, the 11th Circuit decision, to the Supreme Court if he gets an unfavorable ruling? The answer there is of course, yes, he can. And who knows? Throw your hands up in the air. There's no way to figure out will they take it, Will they not? Normally, unless it involves some like incredibly novel aspect of law, it would be very unlikely for the Supreme Court to take a case like this. So this is where a trial court dismisses a case. The circuit

Starting point is 01:11:43 looks at all the papers and reinstitutes the case. They use their judgment to say, no, this thing needs to go forward. Unlikely that the Supreme Court would come in and say, oh, there's some compelling issue of constitutional law here. Or a clear error. Or clear error. So I think it's, you could make a logical argument that it would be unlikely to take it, but hey, on earth one, they wouldn't take it. Yeah, exactly. Who knows what the Supreme Court would do. All right.

Starting point is 01:12:11 That's our questions this week. Thank you. Thank you so much for your questions. Again, there's a link in the show notes and your corrections. Thank you so much, Roberta. Yes. Feedback is a guest. I would imagine if I were a copyright lawyer, I'd probably be yelling at the phone as well.

Starting point is 01:12:24 Yeah. So thank you for that. And everybody will be back next week. Obviously it's going to be a big week because we're going to get Trump's reply down in Florida or 11th circuit, I should say. Yeah. And we're going to get Jack Smith's. We're going to see what he's going to put on the public docket and what he wants to keep under seal. It's going to be very, very fascinating. Plus we're going to get what he's going to put on the public docket and what he wants to keep under seal. It's going to be very, very fascinating. Plus, we're going to get to hear his arguments about why none of this stuff is subject to any presidential immunity. But again, there's a link in the show notes for your questions.

Starting point is 01:12:54 Send them in to us. Do you have any final thoughts today? No, I'm looking forward to next week. That's going to be a big show, a lot to go over. So yeah, keep your eyes on the news and tune in here to find out what happens. Yes. And thanks to Dahlia Lithwick for joining us this week. We'll see you next time. I've been Alison Gill. And I'm Andy McCabe.

Jack - Episode 95 | Roberts Goes Maximalist (feat. Dahlia Lithwick)

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