Jack - Episode 99 | The Evidence Appendix

Episode Date: October 20, 2024

This week, we have a motion from Donald Trump asking to delay the release of the massive four volume evidence appendix from Jack Smith, as well as Judge Chutkan’s succinct denial of Trump’s delay; Smith’s response to Trump’s new motion to dismiss on statutory grounds; Judge Chutkan’s 50 page denial of most of Trump’s motion to compel discovery; and a surprise filing regarding Judge Aileen Cannon in Florida.Plus listener questions. Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ 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 knowRule 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. 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?

Send me to jail. Welcome to episode 99 of Jack, the podcast about all things special counsel. It's Sunday, October 20th, 2024. I'm Alison Gill. And I'm Andy McCabe. All right. Just when you thought we'd have nothing to talk about, today we have a motion from Donald Trump asking to delay the release of the massive four volume evidence appendix from Jack Smith, as well as Judge Chutkin's succinct denial of Trump's delay request. The nearly 1900 pages, that's right, A.G., I said 1900 pages of mostly redacted evidence cited in the earlier immunity motion hit the docket Friday morning. Yes. I think everything hit the docket on Thursday and Friday because we have Jack Smith's

response to Donald Trump's new motion to dismiss on statutory grounds. That's his, you know, his objections to Fisher, which we went over last week. And we also the same day got Judge Chutkin's 50 page denial of most of Trump's wild motion to compel discovery. And finally, a little surprise about Judge Eileen Cannon down in Florida. But first it's time for another round of Good Week, Bad Week. What do you got, Andy? I mean, I'm going to go with the obvious here, captain obvious that I am. I think it's good

week for Jack Smith. I think his response to Trump's motion, as we'll go over in a few minutes, but it's super tight, right on the money. It's like no nonsense, all about though it's just a completely legal argument, which is what it should be. The best explanation I've read of how Fisher remains intact for these charges. It's so good. And he really highlights the kind of where we are in the case. Like we are making these decisions based on the allegations and in the indictment, which you have to accept as true for the purpose of the motion.

And the rest, you get your chance to challenge those things and disprove them at trial later. So I thought that was really tight. That's what the trial is for, yeah. Yeah. And the two orders we got from Judge Chutkin were both, I thought, very, very favorable to the prosecution. So yeah, I think good week for that team. Yeah. And her ruling on that wild motion to compel discovery and increase the scope of

the prosecution team to include nine federal agencies was as succinct as it could be based on all of the frivolous arguments that Donald Trump made. I mean, she had to take 50 pages to respond to his just ridiculous immaterial request after immaterial request. And so I think, I think again, she, she really summed it up. Well, it's a long response and we'll try to, you know, we'll try to sum it up for you here on, on the show later, but she, you know, she, it was really as economical as it could be for how many arguments he made. I agree. And I think, you know, if you start with the assumption that she's going to address every single one of those arguments, there's no way around a 50 page, you know, tone here.

So she kind of got backed into that. But, but even the sections themselves are not that long. You know, they're really, she gets very, they're very, they're very specifically pointed out the flaws in his arguments and his reasoning, makes a ruling, moves on to the next one. But there's 14 categories of evidence that she has to go through. Yeah, and nine federal agencies that she has to rebut as being part of the prosecution team. And she has to go through them piece by piece to make sure that she doesn't have to do it again. Exactly. Because this is the kind of litigant

that would require you to do it again. For sure. I am gonna add it was a bad week for Donald Trump, mostly because his team has now admitted that the reason he's backing out of all of these media appearances is because apparently he's exhausted. And that's not good when you're trying to run for president. So I think that the Harris campaign has picked up on that and she's doing some really incredible rallies and she

herself is making all kinds of media appearances. Plus he had that really embarrassing appearance at Bloomberg, another really embarrassing appearance at Univision. How many memes did we generate and gifts did we generate from the phases that the people in those audiences were making? Bad week for him. The dance party with Kristi Noem. I mean the-

Oh, that's right. The 39 minute music party. 39 minute dance party. I mean, I could not stop thinking about those old skits that they used to do about Janet Reno on Saturday Night Live. It was like this Friday night dance party with Janet Reno. I was like, that's what this is. It's real.

Yeah. Yeah. That was just a tour through 30 minutes of just absurdity. I mean, who wants to answer questions anyway? He'd only taken three or four questions, maybe five questions, canceled the whole thing and just stood there and played his faves from Spotify or something. I don't know. It just, which also generated a lot of cease and desist letters from musicians and estates of musicians who were like, you can't know you can't know. I didn't authorize that. So yeah, bad week. And when did November rain become a such a great political song? I mean, I don't what November rain. I mean, come on. I mean, come on. You should have gone with something off of, you know, I mean, you know, there's so many,

there's so many better guys than Rose's song. Like the fire up the crowd, but November rain? Oh my God. And Axel is a very politically outspoken guy who, I mean, it's not going to go that way, I don't think. It didn't. Yeah. Not for him, not for't think. It didn't, yeah. Not for him, not for Rufus Wainwright, not for Leonard Cohen, who penned Hallelujah and

he was playing the Rufus Wainwright version. Just very bad week all around for Donald. And you know, I think that we should take a moment to talk about the fact that this is episode 99, my friend. We are one episode away from a hundred episodes of the jackpot. I know. Maybe we should just do an hour long dance party.

Yeah. Yeah. We'll just sway around in front of these mics and just play stuff from our playlists. Yeah. A bunch of irrelevant, bizarre songs that we don't have the license to play. Exactly. Yeah. That'll work well.

No, I mean, it's such a great accomplishment. When we started this, I thought, oh, this will be fun. We'll do this for a little while. These things are going to come and go quickly. And you know, oh my God, here we are. Almost 100 episodes in. Yeah. almost a hundred episodes and, uh, we started right when he was appointed, um, back in November, yeah, 2022, right before Thanksgiving. Yeah.

And so we're almost at our two year anniversary as well. So, because, you know, I mean, that stands to reason, a hundred weeks, 24 weeks. The math works. The math works. Excellent. That means we haven't skipped a week and I'm very proud of that. Yes. All right. We have so much to get to today. Let's start with the massive trove of mostly redacted evidence known as the appendix of Jack Smith's immunity brief. You'll recall last week, Donald asked for five more weeks to respond to the 165 page immunity motion. And Judge Chutkin granted

him three more weeks because she gave Jack Smith a three week extension back in August to file it when he went and got the superseding indictment from a new federal grand jury. Now, Judge Chutkin also ruled that the second part, the appendix, because the motion is the first part, the appendix is the second part, would be unsealed on the docket with Jack Smith's recommended redactions. And Donald Trump opposed that and asked for a seven day stay so he could litigate it. Now I thought for sure he was going to ask for mandamus or something, but he didn't. Totally. Yep. In fact, I think the wording he used in his brief was to consider litigation for seven days. Like what?

Yeah. I want to think about what I'm going to do. So it's very threatening and weird. But instead on the seventh day, he filed a motion to delay the unsealing of this massive evidence appendix and his reasons for the delay are pretty hilarious. Now, keep in mind Jack Smith's entire immunity brief comes in two parts. Like I said, the motion, which we have the 1655 page brief I read aloud in five Jack bonus episodes last week. And then the appendix, the underlying evidence cited in the 165 page motion, right? All the underlying evidence. The appendix is all the interviews, FBI 302s, grand jury testimony transcripts, documents from other agencies, tweets, public

statements, search warrants, what was seized, all that raw evidence. Think of the 165 page brief as a narrative and the appendix as all the supporting documentation and testimony. Here's what Trump wrote on October 17th. This is new to us now, as to why he wanted to postpone the unsealing of the second part, the appendix. He said on September 26th, the special counsel sought leave to file its immunity brief and accompanying appendix under partial seal. President Trump objected to the public release of the special counsel's filings, arguing that one, the

constitution, as well as the rules of criminal procedure, do not permit the special counsel to preemptively defend its own lawless superseding indictment prior to any defense motion. And two, publication of cherry-picked materials, which the special counsel describes as detailed statements of its case, in quotes, would prejudice potential jurors and endanger potential witnesses. And by the way, he argued against that saying it wouldn't happen a year ago when he wanted to release everything under the protective order. Especially in light of the extraordinary media coverage of this case and the immunity filing specifically and the presidential election that is less than three weeks away and also

irreparably harm President Trump. It's a very poorly written sentence. If the court immediately releases the special counsel's cherry pick documents, potential jurors will be left with a skewed, one-sided and inaccurate picture of the case. Potential jurors, not voters. Okay? He argues that later, but right now he's saying the jurors in this case will have a one-sided view. Those same potential jurors might not see President Trump's later response. And even if they do, the first impressions are prone to remain. Where is that a quote from?

Like I couldn't figure that out. Yeah, I'm not sure. It's just like a line they threw in there. But in any case, it's a bizarre argument. It's from the Lion King. No, I don't know. I don't know what it's from. So basically saying that the long wait, the three week wait between Jack Smith's appendix, actually less than three weeks, between Jack Smith's appendix being unsealed and Trump's response means that potential jurors might not see it and Trump wants the public to see the evidence and Trump's response at the same time.

Because first impressions are important. Oh sure. Andy, he asked to postpone his response until after the election. He asked for five more weeks. He only got three. But he can turn, as we'll see in the order that follows, he could file his response whenever he wants. Mm-hmm. It was due on October 17th initially. Yeah, right. And he could have, yeah.

Anyway, so Trump goes on to say, if, as here, a prosecutor during a highly contested political campaign is granted leave to submit enormous filings publicly examining a president's decision making while in office. Future presidents will be far more reluctant to take the quote bold and unhesitating action required of them. Oh, he's still arguing immunity. Here we go. This is true even if ordinary procedures are followed with the president making the first submission But it is especially problematic where neither the Constitution nor the rules of criminal procedure

Based on our founding principles have been followed thus wrongly allowing the prosecution to file first in anticipation of a motion to dismiss in anticipation of a motion to dismiss. So he's saying the courts should do the motion practice in reverse because if you let Jack Smith go first, future presidents will not be able to do their jobs. Keep in mind, what they're doing here is what the Supreme Court said they have to do. Right, and he wants his response and the government stuff

to all come out at the same time so that no one gets the first impression benefit. Benefit. Yeah, exactly. The home court advantage. Though never in the history of all court filings have I ever seen a motions practice where the judge is like, everybody put them all out at once. Cause you have to read it to respond to it. Ready fire aim. So he's saying the courts should do the motion practice in reverse because if you let Jack Smith go first, future presidents will not be able to do their jobs. He goes on to say, finally, whether or not the special counsel is politically motivated,

the asymmetric release of charged allegations and related documents during early voting creates a concerning appearance of election interference as noted by recognized legal commentators with vast prosecutorial experience." He then goes on to cite Ellie Honig, Jack Goldsmith, and The Hill. That's a majority of all experts. Yeah. I don't know that The Hill counts as a legal expert with vast prosecutorial experience as it is a online, whatever it is, magazine, blog, whatever.

I don't even know what we call these things anymore, but there you go. Well, judge Chuck can ruled on this request within a couple of hours. The same day she released an order addressing each of Trump's arguments. And she wrote, as the court has explained, she sounds almost exhausted here. Per my previous email, right? How many times? She says there is quote, an important presumption in favor of public access to all facts of criminal court proceedings, US v Hubbard.

In light of that presumption, the court may keep criminal case documents under seal only after considering six factors. These are the Hubbard factors, right? One, the need for public access. Two, the extent of previous public access to the documents. Three, the fact that someone is objected to the disclosure and the identity of that person. Four, the strength of any property and privacy interests. Five, the possibility of prejudice to those opposing disclosure. And six, the purposes for which the documents were introduced during the judicial proceeding. We've gone through these Hubbard factors and why the unsealing is proper already. That's me inserting

that. That's not what the judge said. The judge goes on to say, the defendant's request does not engage with the six relevant factors for sealing. Instead, he argues that keeping the appendix under seal for another month will serve other interests. Ultimately, none of those arguments are persuasive. He didn't even come back. Again, I'm not a lawyer, but if I'm trying to keep something under seal, I'm going to go through those six Hubbard factors and talk about why each one

favors me. He doesn't mention them. I mean, it is the most basic tenant of legal writing, right? When you are addressing an issue of law that's been laid out by a court, a relevant appellate court, be it a, you know, a circuit court or a Supreme Court opinion, and they give you a test, what we call a test, which is basically a list of factors, that's the way you write your brief. You address the factors and you cite cases and decisions that support your position

of how you're proving each factor. It's very like logical. It's straightforward. You can kind of see the outline in your head, but they don't do any of that. They just do this kind of creative writing exercise about election interference and politically motivated prosecutors. And that stuff is just not going to fly with a judge like this. She is very traditional in her approach to what she's looking for. So here, first she addresses Trump's argument that if you let Jack Smith go first and Trump responds after the election, which of course is what he asked to do, that it would taint the jury pool because the public will see Jack Smith's filing first and first impressions

are important. So Judge Chuckin responds, even on its own terms, this argument is too speculative to support an extended stay. Both sides filings will be publicly available other than the necessary redactions and whether potential jurors will be exposed to either of them and in what order is unknown. More importantly, however, a potential jurors will be exposed to either of them and in what order is unknown. More importantly, however, a potential jurors exposure to information about the case is precisely the kind of issue best addressed at voir dire, during which the parties and the court can ask individualized questions to probe potential bias or impartiality. Which is of course referring to there is the process of jury selection where you bring the jury pool in, you seat the first

group and you ask them questions about what have you read about this case? What did you even exposed to? And I've never heard a question, did you see his filing first before mine? I've never heard anybody bring that up in a voir dire? No. No, I mean, no. Yes, but who's taller? And do you like my music list on Spotify? I would have stood on the right, not the left. You gave him the left the first time. No, that doesn't make any sense. It doesn't make any sense at all. And again, it's not one of the six Hubbard factors. Hi. Then with regard to upending the order of motion practice, you know, how he wants them both at the same time. She says, and in any event, the court is

not, quote, limiting the public's access to only one side. The defendant, as you said, Andy, is free to submit his legal arguments and factual proffers regarding immunity at any point before November 7th, which is the deadline. This is simply how litigation works. Each side presents arguments and proffers evidence on disputed issues. And then she addresses the quote chilling effect this release would have on future presidents. She says, and indeed, defendant's true concern does not appear to be with that asymmetry, which his own proposed briefing schedule shared. Rather, his objection is

to the appendix's release, quote, during a highly contested political campaign. But a president's, quote, capacity as a candidate for office is unofficial and does not implicate the concerns of animating his official immunity. So that's the subtle shot back. You just did that. You want to argue immunity with me? Here's your immunity issue right here.

She's like, oh, I'm sorry. What is it? Office seeker is not the same as an office holder? I'm sorry. Did you just say we're a candidate for office? That's really interesting because you know what? Yeah, be careful what you wish for. So at the end of her order, she addresses Trump's

election interference argument. She says, if the court withheld information that the public otherwise had a right to access solely because of the potential political consequences of releasing it, that withholding could itself constitute or appear to be election interference. The court will therefore continue to keep political considerations out of its decision making rather than incorporating them as defendant requests. Any argument about quote, what needs to happen before or shouldn't happen before the election is not relevant here. Man, I'm so glad she brought that up with the not releasing it is interference.

That's right. That's exactly right. It's she's, I, there were so many moments in this thing that I thought were really good. I also really loved the sentence that she put in there. In addressing his generalized demand that you have to basically keep Jack Smith's appendix away from the eyes of the public, she says, quote, setting aside the oxymoronic proposition that the public's understanding of this case will be enhanced by withholding information about it, any public debate about the issues in this case has no bearing on the court's resolution of those issues.

I mean, mad props for getting the word oxymoronic into a brief. That had to hurt. So good. If you're Trump's lawyers and you read that, you're like, oh, God. If you're trying to tell me that we're going to enhance the public's knowledge of this case by not releasing something. Exactly. Wow.

Exactly. And then she finishes on that point of public debate about the issues in this case has no bearing on the court's resolution of those issues. The judicial process is not a democracy. We don't decide fault, guilt, innocence, liability based on a vote or a popularity contest. That doesn't work here. What we do is we ultimately leave these issues, issues of fact in the hands of a jury or a judge, if it's a bench trial, and issues of law in the hands of the judge. That's it. It doesn't matter whether the public

likes it or doesn't like it. And if it has a negative impact on the job that you've decided to seek in your private life, sorry. Right. Right. Right. I mean, pretty much any criminal defendant who has to go to court is risking their job. Of course. Of course. Yeah. I mean, you know, look at, I'm thinking of Michael, well, I mean, any of the people charged

by John Durham. The first thing that they had to do is quit their jobs at their law firms in order to fight those cases, which they won. But yeah, that's a digression. She wraps it up and says in a separate order tomorrow, October 18th, which is obviously a couple of days ago, the court will lift the stay and direct the clerk of the court to docket the appendix with the government's proposed redaction. So of course, Friday morning, we were all up at the crack of dawn, refreshing Pacer, it crashed. But we eventually got the four volume giant compendium of evidence. So what's in it? What is in this giant four volume compendium of evidence? We will go

over it after this quick break. Stick around, we'll be right back. ["The New Unsealed Evidence Appendix"] Welcome back. Okay, let's take a look at what's in the newly unsealed evidence appendix submitted by the special counsel's office. Now the appendix is four volumes and it is in total 1,889 pages.

As we thought, over 1,100 pages or about 62% of the appendix remains under seal pursuant to last year's evidence protection order provisions. What's in the roughly 700 unredacted pages? Well, let's take a look at each volume. So volume one, which is mostly under seal, but it does have some unsealed transcripts of the January 6th select committee interview transcripts. Right. So not the hearings that we saw on TV, but the underlying interviews that were the basis of those hearings. Now, most of this stuff we've seen or heard in testimony, though there is one new thing

that we didn't have before. Some of Trump's valets testimony to the January 6th committee, which was redacted by Republicans in Congress when they released it a while back. Now, as Kyle Cheney points out, quote, the valet describes getting Trump a diet coke while he got positioned to watch footage of his speech and the riot. The reason it seems like the house GOP version was redacted, well, the valet appears to be reviewing timestamped photos of his interactions with Trump. To put Trump in specific places.

Cause you remember we were like, we got all the Twitter files, right? And so he knows where, you know, who was tweeting out the stuff, but he got photos with your valet, I'm presuming Walt Nutter, but I don't know for sure. His name is redacted or their name is redacted. Uh, that has photos with timestamps. Hey. Yeah. And what a bad look.

Right? It's one thing to have a transcript that says, give me that Diet Coke. But then you have a photograph of him like getting all, you know, snuggling into the sofa to watch the footage like a football game. I mean, that's, that's a bad look. Okay. So that's, that's volume one. Volume two, now this one is every tweet.

And I'm talking every tweet, retweet, like and quote tweet mentioned in that 165 page immunity motion. So that's going to include Trump's, you know, the Will Be Wild tweet, all the Bernie Carrick tweets, some Chris Krebs tweets that Trump was ranting about. So there's, there's a lot in there as well. Yeah, exactly. And that's from, like, you remember we talked about this, we covered it. Jack Smith went to trial, went to, well, went to court to get these Twitter files, the real Twitter files, not the Ty B Twitter files. And, you. And Twitter was trying to be combative about it and say,

no. And then the judge was like, no, you got to hand over all the stuff. And then Elon Musk's Twitter was like, okay, but we have to be able to tell him. And then she's like, no, you can't, you can't tell him. Right. So that's pretty interesting. And also very interesting that Elon Musk is throwing tens of millions of dollars at Trump's campaign. Yeah. BFFs right there. Yeah, I know.

And did he tell Trump? Like it's fascinating. Volume three. Part of a transcript of an Arizona court. Here's a bunch of stuff in here. First of all, part of a transcript of an Arizona court hearing for the Trump v Hobbs, Katie Hobbs case. And this hearing was November 13th.

And in this particular section, Trump's election fraud case is dismissed as moot because the numbers as represented by the Maricopa County recorder and other witnesses where they were wildly inaccurate, the ones that Trump was putting forth in his lawsuit. So they dismissed it as moot with prejudice. In this, there are also highlighted photocopied excerpts from Mike Pence's book. And my sincere apologies to whomever at the Department of Justice or special counsel's office had to read Mike Pence's book, highlight it and photocopy it. There's a readout of the meeting. That's got intern written all over it, but I don't know that for a fact, but I'm just

thinking. There's also a readout of the meeting that Michigan legislators, Shirky and Chatfield had with Trump at the White House. Those were the two Michigan state legislators that Trump was like, come to the White House. And they were both like, shit, let's put together a big COVID slide deck. So we have something else to talk about because he's going to ask us about election shit, right? And they're like, yeah, so let's go do that. And then they went and of course, he did try to ask them about election interference. And, and they were like, yeah, but look at this COVID thing we brought, you know, and then they put out their statement. So that's

in there. We also have public statements from, and these are important, because in the original indictment, Andy, we had statements from people in the Department of Justice, people at the Department of Homeland Security, government officials who had told Donald Trump that he lost the election. You can't use those anymore.

Well, you probably could rebut the presumption of immunity there, but why bother when you have all of these other things? Because all these statements come from state officials and state election boards. So there's public statements from Arizona House Speaker Rusty Bowers, Maricopa County Board of Supervisors, Georgia Secretary of State, Michigan Department of State, Michigan Attorney General, New Mexico Secretary of State, Pennsylvania State Department, Pennsylvania House of Representatives, Wisconsin Election department, Pennsylvania house of representatives, Wisconsin election commission, Nevada secretary of state. And so all of those public statements, like debunking all of Donald Trump's election fraud lies.

We also have states, elector certificates and the certificates of ascertainments from state governors. Those are the core documents at the heart of 1512 C2. We have a transcript of Trump's Dalton, Georgia speech and a transcript of his ellipse rally speech. Those are the two speeches that are cited in the narrative motion. Transcripts of the call with Brad Raffensperger. That's the Find Me 11,780 votes transcript. Trump campaign statement firing Sidney Powell. And basically what Jack Smith is trying to do here is trying to say Trump thought Sidney Powell was insane, but still promoted her election lies. Right. And, and, and obviously working for the campaign, right? So in her comments to

him and their meetings and interactions, this is all campaign, it's not official. Right. Then we have articles about Bill Barr saying there's no election fraud. Don't know whether or not he's putting those in to say these are the kinds of things we aren't using as statements or if he's going to use them as statements because there's nothing in here that indicates this is what we're using and this is what we're not using. All of that is in that 165 page brief. And of course Eastman's coup memo is in there too. Right. So Andy, what's in volume four? So volume four you have the infamous

Cheeseboro coup memo which has already been public. We've seen that already. You've got a handwritten note from a January 5th meeting about pressuring Mike Pence to reject the electors. You have a Trump press release email saying Pence has options on January 6th. You have the public texts about getting the Wisconsin and Michigan electors to Pence via Ron Johnson's staff. Transcripts of Trump speeches. A letter from Pence saying that he does not have the authority to overturn the results.

The letter bizarrely begins, dear colleague, not sure. Not sure where that's coming from, perhaps, was to Trump or maybe to White House counsel. It's not really clear. You've got excerpts of a transcript from CNN's town hall about pardoning the Proud Boys. That's Trump in the town hall with CNN. You've got the January 6th congressional record of events, a transcript of the November 20th public Kayleigh McEnany press briefing in which she refused to admit that Trump had

lost the election. You have multiple campaign emails saying Trump's speech in Dalton, Georgia was a campaign speech for Loeffler and Perdue. And so of course the significance there is he's out there making campaign speeches for Republican candidates in Georgia. Jack Smith will certainly argue that that is not official presidential business, it's campaigning. So no immunity would attach there.

You've got schedules calling the ellipse speech a rally, which again, tends to characterize that as a campaign speech, not a presidential speech. So again, they will argue it's not subject to immunity. You have a transcript of that ellipse speech. You got images from the whitehouse.gov website showing nothing about campaign speeches. So not official and therefore not immune.

You've got Navarro's Hatch Act Violations Report, Peter Navarro. This just goes on and on. And a transcript of Trump's video statement on the evening of January 6th, which Jack Smith doesn't intend to use in their case in chief because they believe that they'll likely be official, but it's likely here to draw a contrast between official and unofficial tweets. Right. Because there was a whole section

in that 165 page narrative where he said, we intend to introduce these tweets. And these tweets are not official. He uses at real Donald Trump for official and non-official business. I think he gave a couple of examples of like, Trump Tower voted number one best hotel in the universe. You know, not official, you know, some really obvious, I played around

with Jack Nicklaus and won every award, you know, whatever it was. I think those were the two examples, if I remember them correctly off the top of my head from that beast of a narrative. So I think, you know, he's, he's got to go through here and be like, these are official. This video that he put out that his staff and his aides and his kids told him to put out from the White House, that's official. We'll give you that. Official and therefore immune or presumptively immune. And we're not using it in our case in chief.

These though in contrast, I think he's just trying to paint a picture of how the court can separate what kinds of tweets are personal campaign and what are official acts tweets. So going through all this stuff, I started to think about this actually before the thing was sealed and then looking over all these categories, it's, I can't help but thinking like, do you think that the revelation or the production of this material will actually have an impact, a negative impact on Trump's election prospects? Because how you answer that question is relevant to why they are digging in so hard and trying

to keep this stuff sealed or off the docket. Yeah, I have to think that the 165 page narrative with summaries of the testimonies hurt him worse politically than this giant trove of stuff that we've mostly seen before. But as I think former US attorney, former federal prosecutor, Christy Greenberg put out on Twitter, and I agreed with her vehemently. She said, you know, it sounds like he just wanted to object so that he could complain and throw red meat to his base that he was overturned by this, you know, anti-Trump judge and thug Jack Smith. You know what I mean? Yeah, I totally agree. I don't think he actually cared. Like all these arguments they made in that absurd motion for the extra delay,

they're just nonsensical. This was, there's always a couple of different things going on here. Yeah, it's another motion you can file. It costs time and attention of the judge and of the other side, although she dispatched it pretty quickly. So there's the general, this all goes towards the dragging of feet delay strategy. But I think more than that, I think what you're saying is true. This is more of setting up a record that they can use later as the basis of legal attacks, appeals, things of that nature. They're trying to, if they lose, they're going to try to manufacture as many arguments

as they can to challenge the result of the election as being illegitimate because of one of any thousand, you know, pick your issue out of the thousand. And this is definitely one of those. Like this was a, you know, they'll say this was all part of campaign interference, election interference, unconstitutional, violated due process, and you have to derail the election as a result. I mean, I think this stuff is like the Hail Mary of all Hail Marys. I'm not that concerned about it. But despite the way they dig their heels in on this motion for delay that, oh, this is such a travesty of this stuff gets posted with minimal redactions before the election, you know, it's going

to cost them the election. It's not actually going to. So much of this we've seen before, very few people are going to read this stuff. And you know, You want something to put in a lawsuit pleading to say that the election needs to be redone because of this interference. That's right. And, and also delay. I mean, that's, you know, he also loves to delay stuff, right? And, you know, part of me wonders if the absolute absence of logic and the Hubbard factors, for example, in his pleading to keep everything under seal, if that was just, they

didn't do that because they were really just setting up the judge to give him a couple more weeks so then that he could ask if, well, then can we postpone my response and can we postpone the unsealing until I can get my response out? It's just to, you know, to ask for another delay. And so part of me is like, maybe that was just that, that absolute bereft of logic and law filing was just a setup to be able to ask for a delay. And so part of me is like, maybe that was just that, that absolute bereft of logic and law filing was just a setup to be able to ask for a delay. Part of me thinks that could be the truth, but it's hard to know because most of his filings are bereft of logic and law. So it's, it's, if this were just a one-off thing, I'd be like, yeah, this seems like a pretext to get a delay till after the election. But again, Andy, because there's

nothing really of substance that we kind of don't already know about in this thing, that's kind of why I land back with what Christie Greenberg says. He just wants something to complain about. And like you said, something to use as fodder or ammunition to say the election was unfair and needs to be rerun or something. Even if it doesn't rise to the level of an actionable cause, it's things that you can stand up there on the stump, on stage, wherever you are, and yell about, complain about. It's things that your surrogates can get out there in the media.

And it's one more thing they can point to to say, for all these reasons, the election was illegitimate. So I think that's the big game that they are playing here. Day to day, yeah, delay is always good for them. Drag your feet, take time, take time wherever you can get it. So that's just a kind of a very basic and consistent strategic choice that we've seen in both of these cases. But there is definitely more going on here. Yeah, I agree.

All right, Andy, I want to talk about Judge Chuckin's 50 page ruling on Donald Trump's motion to compel discovery. But this episode's going a little bit long. We have to take another quick break. So everybody stick around. We'll be right back. Okay, we are back and we are switching gears to now start going over Judge Chutkin's 50 page ruling on Donald Trump's motion to compel discovery and expand the scope of the prosecution team. Now you're going to remember we covered Trump's motion in a past episode. It was the one where he demanded non-specific

documents from over nine federal agencies. So Judge Chutkin has issued her ruling and in it, she states that Donald Trump asked for 14 categories of information and she has granted him in small parts of three of those categories. Okay. Most of which DOJ has likely already produced or doesn't have access to. But she goes through each of those categories very carefully. First, she reviews the prosecutor's duty to produce evidence under both Brady and Rule 16. And so just to kind of set the background here, basically, the government is obligated to turn over to the defense any evidence in its custody or control that is favorable and material to the defense. Now favorable is pretty obvious, right? It's information that applies to anything that could affect decisions favorably about

the defendant's guilt or punishment. And on the material side, basically evidence is material if it could alter the judge or the jury's decision in any way. So if it's significant enough that it could change the course of a decision, then it's generally considered to be material. Oh, so it would need to be outcome determinative? Essentially. Sorry.

Yeah, yeah, yeah. There you go. There you go. It's a more smarter way to say it. Oh, nice. Okay. So Judge Chutkin then lays out what the defendant must show to prove in the motion that the government has violated its Brady obligations.

And that is basically Trump must identify the withheld evidence that is material and favorable to the defense and is not merely cumulative. Once he establishes that, the court has to decide if the government actually has control over that evidence. So it's really the burden is on the defense here to make this case. They're gonna identify the evidence, they're gonna show that it's material and not just, you know, duplicative of something they already have and also that the government actually has access to this stuff that they're asking for. Right, which is where the scope of the prosecution team comes in. And here's

what Judge Chuckin writes, five of the 14 categories of information that Trump seeks specifically request discrete identified documents. The remaining nine categories are generic requests for all information or evidence relating to certain topics. As explained below, the defendant has only carried his burden with respect to a very small portion of the information he seeks. For most of it, he has proffered only speculation that a search will yield material, non-cumulative information. And as I point out

in my newsletter over at MuellerSheWrote.com, I say, honestly, the funniest part of this whole thing to me, Andy, is why Donald wants this stuff. And he wrote that he wants it because he wants to show that he truly believed that there was election fraud. And more specifically, foreign election interference. And he wants to use the Mueller investigation materials to prove that foreign election interference is real. So how's that for a slap in the face? I'm about to jump out the window on that point. I mean, like, really? What happened to the Russia hoax? Oh, okay.

It's not a hoax anymore? Not a hoax anymore. If it helps out my case. Oh, I see. Now that you need it. Anyhow, the problem with all of this stuff is that Donald literally says that he hasn't seen any of it. He's assuming that it exists.

He hasn't seen it. But that it will help improve his state of mind at the time he committed his crimes, alleged crimes. He's quite literally asserting that his claims of election fraud were based on things no one ever told him or showed him or he didn't know. Yeah. And how crazy is that in the context of proving your mental state, your intent? That's what he's painted himself into this corner by using his relevance argument saying, oh, this was relevant to my belief that there was actual fraud. Well,

you can't base a belief on something you didn't know. Nope. Right? And he does it over and over again. So bad. So bad. Yeah. And then she says, moreover, while the defendant purports to seek much of this information to show his state of mind at the time of his indicted conduct, for example, his good faith and the absence of criminal intent in disagreeing with officials now favored by the prosecution

and relying instead on his independent judgment, he wants to show that the state of mind, that the election was stolen and he does not indicate that he was aware of the requested information such that it could have affected his state of mind. So that's her explaining this I think in the simplest possible terms. But she repeated it like six or seven times. All those times are in my blog. She says it over and over again. So and each one, as she addresses each of these many categories, so many of, and so many of their, of her, her decisions end with that. Like he fails to even allege that he had access to this information, he knew this information or is actually relevant to his,

you know, to his intent at the time. And another problem Trump has is that most of his requests are vague and overbroad. And they include things like requesting the entire unclassified intelligence community assessment of Russian interference in the 2016 election. He asked for the 2020 election CISA records, the 2020 election intelligence community assessment, the 2020 election DOJ-DHS report. He asked for DOJ statements on January 6 rioters, January 6 security records, information about quote undercover agents at the Capitol on January 6th, which of course he has no proof that they exist and are likely irrelevant if they do. He asks for the missing January 6th committee materials, again, no proof that those actually exist, and then numerous CIA

documents. Right. Just over broad stuff. Search this for stuff that could get me off the hook. I don't know of anything specific. And you know, you and I talked about the last time he put in this motion to compile a year ago, and you have to ask for specific things that you know exist that you didn't get in your discovery. And then there's Trump's request for all the government's information on foreign influence in the 2020 election. So Trump says this information proves he was right to question the integrity of the 2020 election, but it actually has nothing to do with what Trump did. So this is like an even if, even if somehow stuff you'd never seen before could have affected

your state of mind, it's not relevant. Right? Right. That's right. She writes, the defendant's theories of materiality do not withstand scrutiny. The first relies on a misunderstanding of the charges against him. The superseding indictment does not allege that the defendant's criminal activity to be that he created an intense national atmosphere of mistrust and anger and eroded public faith in the administration of the 2020 election. Indeed, it stresses that the defendant had a right, quote, to speak publicly about the election and even to claim falsely that there had been outcome determinative fraud during the election and that he had won.

And it identifies where the defendant's conduct crossed the line. In addition to whatever effect those claims had on the national atmosphere, quote, defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. And she says here, the difference matters. Whether the defendant sought to undermine public confidence in the election to legitimize or otherwise further his criminal conspiracies does not depend on whether other nations also tried to achieve similar results for their own purposes. Yeah, that's so important.

Okay, so there were also three tiny categories that the judge says could be material. One is the materials that the DNI used to prepare for his interview, records concerning capital security information that actually was conveyed to Trump by General Milley on January 3rd, and any evidence from the DOJ probe into Pence's handling of classified documents. Now, this is a particular category of evidence called Jenks information, because it could be used to discredit Pence as a witness. So the way this works is Donald contends that Pence was somehow compelled to help DOJ in the Trump case so he wouldn't get in trouble for mishandling

classified documents. That's the kind of thing that if Pence testifies as a witness in the case, if there are any documents that indicate there was some sort of an agreement between him and the prosecutors that in addition for his testimony against Trump in this case, they would not bring a criminal case against him for his mishandling of documents. That agreement is Jenks. It has to be given to the defense so they can use it to impeach his testimony under cross-examination. So that's a very specific thing, which probably does not exist. But basically what she's saying here is DOJ, you have to at least look for that. And if you have it, obviously it has to be turned over.

Right. And of course, Jack Smith hasn't confirmed or denied that he's searched or looked for it. So the judge is like, either give it to us or tell us you looked and there's none. And it doesn't exist. You have to confirm. Right. And here's the, here's how that's going to be real hard to prove to say that, that Pence was all excited to help the Jack Smith case, uh, because he was going to get off the hook in his classified documents case. First of all, I didn't break any laws in the classified documents case. Uh, of all, Pence tried to, like, he fought tooth and nail to not cooperate with Jack Smith's team.

He filed a thing, he filed a speech or debate clause objection. He lost most of it. It took over a year to litigate. So he wasn't, he wasn't exactly like, heck yeah, guys, let's do this. I'm in. Can you get me off the hook in this documents thing? So it's gonna be real hard to be like, he was super helpful to you guys because he wasn't. He wasn't. Yeah, that's absolutely right. And that's kind of a, that's a common theme in a lot of these different categories.

When they ask for something like, you know, we want all the information about these two former DNI people who were interviewed, you know, we want all the information about these two former DNI people who were interviewed, you know, by the, by the special counsel's office, kind of alleging that those people are like cooperating or something. She comes, the special counsel said, no, they were interviewed because we subpoenaed them. And they came in, there wasn't a voluntary interview, They were compelled to provide testimony. So there's no underlying like, you know, cozy agreement between the two of us. They showed up because we hit them with paper.

Yeah. Yeah. And the other thing Judge Chuck can address is here in this ruling is Trump's idea of the scope of the prosecution team. And you and I have laughed about this for a while. Cause the rules say that the government has to hand over everything in its possession and that it has control over everything the prosecution team, everything they have that's material to the case. Now, Trump wanted nine different agencies to be included in their entirety and Judge Chuckin said no. She said, defendants accompanying motion on scope asserts that the prosecution must search for that requested information along with all other Brady, Giglio and Jenks Act materials, not only in the files held by prosecutors of the special counsel's

office and law enforcement officers who are working on the case, but also in the files of nine additional government entities. Now, she goes through each one and says, here's why no, here's why no, here's why no. But the only thing she does add is, because at first it was anybody who's currently on the team. And so she said, you know what? Why don't you add the files of people involved in the investigation who used to be on the team?

And she specifically says, used to be at special counsel's office, used to be on the team. And she specifically says used to be at special counsel's office, used to be at the USAO, the United States Attorney's Office in DC, who used to be at the Department of Justice Inspector General, because you remember they launched two investigations in January 6th, in January of 2021, into the, you know, through the Inspector General and the FBI Washington field office. Not all nine other government agencies, but these four former employees files go through them, search them. You have until October 26 to produce anything from those files or confirm to me that you already have produced them or they don't exist. So we close off every single thread. Yeah. And that, that makes sense because the, the standard for that is of course, like the

court has to look at how closely the organization that the defendant is alleging is part of the prosecution team. How closely did they actually work with the prosecutors? Was there some sort of like, what was the relationship between that organization and the prosecution team? And so time after time, like the section on the CIA, she finds, yeah, if they were asked for something, if they had some document that was relevant, the prosecutors asked for it and they gave it to them, that doesn't constitute, that doesn't make the CIA part of the prosecution team. It just means they complied with a subpoena or some sort of request for information.

So it's pretty basic and logical, I think, in the way she goes through it, which is always good. Yeah. Yeah. She's actually really good at that, going through the things systematically. So all right, we still have more to get to. I know this is a long show, but we had 50 plus 1,889 pages plus about another 20 pages to go over. So everybody stick around. We'll be right back.

Hey everybody. Welcome back. All right. On the same day, Judge Chutkin issued her ruling, that 50 page ruling on the discovery motion and the scope of the prosecution team. Jack Smith filed his response to Trump's motion to dismiss the whole case, all four counts on statutory grounds. And we went over Trump's motion to dismiss in an earlier episode, but to refresh your memory, it was the one where he said that because the Supreme Court narrowed the scope of Title 18 U.S. Code Section 1512C2 to include documents, it has to, documents are relevant, because of that, that narrowing from the Supreme Court in the Fisher case, when you hear us say Fisher, that's what we're talking about.

All four counts have to be dismissed. Even the ones that aren't related to 1512. We had said that the narrower interpretation of 1512 C2 stood up to judicial scrutiny. In fact, Jack Smith wrote his first indictment with a possible narrowing of Fisher in mind. And it stands up to judicial scrutiny because the mob Trump sent to the Capitol impeded the use of documents, namely the elector certificates and certificates of ascertainment. But more crucially, Donald created fraudulent certificates. And that is a way of tampering with evidence or to impede the use of documents.

And we also thought, by the way, it was a kind of a stretch to apply this document standard to dismiss the other two counts, Title 18371, which is conspiracy to defraud the United States, and 241, which is conspiracy against rights, which Jack Smith defines as violating our right to vote and have our votes counted. And in this filing from Jack Smith, which like you said, so well written, seems like he agrees with us. It does. So the special counsel writes in his opposition to Trump's motion, Fisher did not invalidate section 1512 or elevate basic pleading requirements. And the defendant fails

to identify any pleading flaw in the superseding indictment, warranting its dismissal. Moreover, the defendant's motion ignores entirely that the case against him includes allegations that he and his co-conspirators sought to create and use false evidence, fraudulent electoral certificates, as a means of obstructing the certification proceeding which Fisher expressly held falls within section 1512C2.

Finally, the defendant's half-hearted arguments against counts one, which is conspiracy to defraud the United States in violation of 18 USC 371 and four, which is conspiracy to violate civil rights in violation of 18 USC 241, likewise lack merit. The Fisher decision clarified the scope of an obstruction offense under 1512 C2, but it did not strike down the statute or rewrite it. The superseding indictment recites the statutory language and provides ample notice to the defendant of the obstruction charges against him, which is all that is required to defeat a motion to dismiss. And I'm really, really hesitating on those words because it's so important.

Yeah. That's all you need to dismiss this. Exactly. You don't have to prove the case to defeat the motion to dismiss. You just have to show that in your pleading, which is the indictment, you put in enough proof to give the defense notice of what the charges are that they face. And clearly the indictment gets over that hurdle. And by the way, when I said that's all you need to dismiss this thing, I meant deny Trump's

motion to dismiss. That's all you need to deny his motion, not dismiss the case. So he goes on to say, beyond that critical flaw, the defendant's supplement ignores entirely that the superseding indictment includes allegations that involve the creation of false evidence. Yeah, there's that even if. And taking that further, Jack Smith writes, as detailed above, the superseding indictment alleges that the defendant conspired, obstructed, and attempted to obstruct the certification proceeding through his efforts to impair electoral certificates, such as through his efforts to create and introduce false evidence.

That is a way to impair documents, which falls squarely in the Supreme Court's words in Fisher within the 1512 C.T. statute. And finally, the defendant's assertion that Fisher would not permit a certificate movement theory that relies on the incidental movement of documents from one room to another by functionaries ignores that under Fisher conduct that attempts and intends to impair the availability of records, documents or objects using an official proceeding. Those count, right? So, you know, this is about the two women, the staffers, I think Senate staffers or maybe house staffers that were carrying the box.

And so he's ignoring that his conduct attempted to actually impair the availability. And you have to go by what's in the indictment, right? That's why there's that critical failure at first. Definitely. Definitely. And as for the other two counts, the government writes, the defendant briefly suggests that Fisher's logic fatally undermines counts one and four, but the defendant nowhere explains how Fisher's interpretation of section 1512C2 bears any relevance to the statutes charged in counts one and four, let alone why Fisher's holding a rationale councils in favor of dismissing those counts.

This goes back to our discussion last week. I'm like, what is the point he's trying to make here? You were like, I don't get it. I've read it twice, three times. I don't understand how 1512 C2 and the Fisher ruling. Yeah. I tried to explain it, but halfway through it twice, three times. I don't understand how 1512 C2 and the Fisher ruling come near. I tried to explain it, but halfway through my explanation, I realized I really didn't understand it. So it's just, yeah, it's nice to see him making that clear. So he finishes

with, for the reasons given above and in the government's prior omnibus opposition to the defendant's motion to dismiss on statutory and constitutional grounds, the defendant's motion to dismiss on statutory grounds should be denied. Yeah. Pretty straightforward. Very easy to understand. If you all get a chance to read it, I highly recommend. It's really good. I think it's like 10 pages, maybe nine pages, something like that. It's so, so well written. I have links to all of these filings, by the way, at militiawrote.com, so you can get them in those posts, because I want to be able to link y'all directly to these court filings so you can read them for yourself.

All right, we'll be right back with a surprise filing about Judge Eileen Cannon, along with your listener questions. Stick around, we'll be right back. Hey everybody. Welcome back. Hey, Andy, we have a new filing asking Judge Cannon to recuse herself. Nice. Yeah. But it's not about the Florida case with Donald Trump. Trump's responses do October 25th to the 11th circuit. Hopefully we'll get it in time for the next episode. But let me read to you from this

motion for Eileen Cannon to refuse. Mr. Routh stands accused of attempting to assassinate Donald J. Trump. He faces up to life in prison. This case has already attracted significant media attention. It will continue to do so, and this court's rulings are likely to face intense public scrutiny. This motion presumes that this court would preside over this case impartially. However, given the heightened stakes and the public scrutiny, there should not be any doubts about even the appearance of impartiality of the presiding judge.

Mr. Trump is the current Republican candidate for president in next month's election, and on the campaign trail, he has repeatedly praised your honor for her rulings in his case. As the alleged victim here, he has a significant stake in the outcome of this case too. Were he to become president in the future, he would have the authority to nominate your honor to a federal judgeship on a higher court or a vacancy to arise. Taken all together, these unprecedented facts and circumstances might create an appearance of partiality in the mind of the public. Accordingly, the constitution

and the federal recusal statute require your honor to recuse herself from this case. Yeah, that is really fascinating to me because I think it's a really great example of how dangerous this slope that we're sliding down is in terms of having really good reasons, particularly when they come to Judge Kennan, to question her impartiality and her partisanship. And I'm thinking about this a lot today because I just, I was catching up on reading earlier today and I read this article in the October issue of the Atlantic from Ann Applebaum where she- Oh, that's good. Yeah. The end of judicial independence is the title of the article.

If you get a chance, you should definitely take a look at it. But it basically makes this kind of lays the case for like, we are standing kind of at the precipice of these things like Judge Cannon and her series of bizarre rulings in the Trump case and all the things that we've talked about with the Supreme Court over the last year and all these kind of like really what appear to be very partisan judges. This is a really, really concerning thing for our country and the future of our democracy. And I don't know, I think this is a perfect example of she's created this record of a strong possibility of a lack of impartiality.

And now it's starting to bleed over into other cases that she handles. Yeah. And what's fascinating to me is, you know, because this is Ralph, this is a guy who was arrested for attempting assassination on Donald Trump at the golf course, right? And who didn't never had a clear line of sight or anything, but he's being charged. And he's basically saying, look, you guys look like besties. So you need to recuse. And the interesting thing is, is if she agrees and she does, that kind of implicates her. She's never going to do that. She can't.

Because that is basically admitting. She couldn't do it here and not do it in the other case. There's no way. She's admitting. Yeah. There's an appearance of impartiality because of the way that I've been handing Trump all the wins over in his espionage and obstruction of justice case down in Florida.

So that'll be interesting to see what happens with that, but I wanted to share it with you. All right. We have a listener question we want to get to. Again, if you have a listener question, you can click the link in the show notes and fill out the form and send in your very thoughtful and wonderful questions. What do we have this week, Andy? All right. So I'm going to go with just one this week because we have had so much information in

this show. And this person did not include their name, but they described themselves as someone who lived in a swing state in a rural red area and therefore did not want to include their name, which I totally respect. They start by saying, my stress level is like the stock market, mostly rising higher and higher with an occasional dive, but then right back up again, crazy things pop up in my head that might not be crazy. Here goes. Can Trump argue that by not sending help to the Capitol, he was working in his capacity as president and is therefore immune. So essentially inaction as a part of presidential powers. I don't know if Jack Smith would be able to use any of Trump's inaction while the Capitol was being looted and overrun as evidence against Trump,

but would Trump then be able to say, if he, if presumably if he did try to use that as evidence, would Trump then be able to say that non-activity is a part of his core powers as president? So two things jump out at me here. The first is as a, well, I'll give you the theoretical one and then the practical one. The theoretical one is I say technically, yes, if you're going to make an argument, if you're making an argument that something that you, a decision that you made was part of your official presidential duties, deciding not to take action is just as significant a decision.

So there's nothing about deciding to do, you know, the decision to not take action doesn't, wouldn't make something non unofficial because you didn't take action. It's the decision that's the important thing there, whether you decide to do it or you don't do it. If the thing you were deciding was part of your official duties, then it would be presumptively immune. But putting that aside, I don't think Jack Smith is ever, I don't think there's any indication that he intends to rely on evidence of Trump's dithering on January 6th. No, and even if he was, then we're talking about official acts or official inaction evidence, right? We're not talking about acts.

Because he's not charged with negligence or negligent homicide or there's no charge there. So this would be a question about whether the evidence that he sat and did nothing, which might go toward his intent, can be used. And if his sitting there doing nothing is an action. And I don't think so. I think official acts have to be something affirmative. I don't think you can have official inaction. You know what I mean? I think you could. I mean, like, let's say totally change the circumstances.

Let's say the decision to bomb an enemy. Let's say you convene the security council and they lay out the arguments for attacking, I don't know, whoever, Russia. It's just hypothetical. And you weigh the pros and the cons and you decide I'm not going to do it. That decision not to bomb Russia is absolutely the heart of presidential power. So it's not about the taking of the action per se. It's about like the conversations, the decision, the subject matter, whether what

you were considering and what you decided to do or not do was within the scope of your constitutionally required duties or otherwise official acts as president. So, but that's why I think if Jack Smith tried to use this evidence of Trump sitting around for, I don't remember what the duration was. 187 minutes. There you go. He might have a hard time doing that. Yeah, and he doesn't mention it, right?

No, it's not really relevant to what he's trying to prove. That he's in the thing and he's watching the events happen, but not that he didn't, you know, call out the guard. Although, you know, there is some evidence that Donald Trump is proffering that he did call out the guard on January 3rd when he met with General Miller. That's a different story. Right. That's him opening the door with that.

And then I think Jack Smith could get in evidence of not calling the guard because he's not going to be able to say, use that evidence and then say, Oh, you can't talk about that because that was an official act. That that's not going to fly. We talked about that last week and a question that came up last week. I think that will not work. Of course, we don't know because this is all brand new. There's no precedent. It's an interesting question though. Yeah, that is a fascinating question. And thank you for sending it in.

And again, if you have a question for us, you can send it to us by clicking on the link in the show notes and then filling out the form. And we really do appreciate your questions. Thank you so much for sending them in and thanks for hanging in. I know we went over time this week, but this was probably one of the biggest page amounts we had to cover in one single episode. Fortunately, only 700 of those evidence pages were unredacted or unsealed. And we were able to cover them pretty quickly and to let you know that most of that stuff

is already public. But I'll be digging through it more and in more detail. And as things arise, I'll let you know, if I see anything that jumps out that we haven't already discussed. But so far, nope. And again, thanks for listening. And we look forward to your questions next week.

Do you have any final thoughts, Andy? Yeah, huge week. Well done. And as always, instructuring the show to get in as much as we could in the time that we had. And I also want to throw out one shout out to a very good friend of mine who's a loyal watcher or listener to the show. She's listened to all the shows and is a neighbor and good friend and is actually traveling with me right now. Jenny, thanks for your support to the show. And yeah, can't wait to see what we get to go over next week. Yeah, big ups, Jenny. Thank you for listening. And thanks to all of you for listening. We'll

be back in your ears next week. Until then, I've been Alison Gill. And I'm Andy McCabe.