Legal AF by MeidasTouch - Jack Smith STUNS TRUMP with POWERFUL New Motion, Reveals NEW CRIMES

Episode Date: December 6, 2023

The ladies of Legal AF, Karen Friedman Agnifilo and Danya Perry, break down a new Jack Smith motion where he spells out all of the uncharged bad acts and crimes Jack Smith wants to introduce at the March trial in the Jan 6th election case. Visit https://meidastouch.com for more! Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to a special edition of Legal AF, the ladies version. It's Karen Friedman Agniplow here with Danya Perry, my colleague and friend. And we're going to talk about a new filing that Jack Smith filed just today in the Washington DC election, Jan 6 case, the one that's supposed to go March 4th in front of Judge Tanya Chukkin who seems to be keeping that date fairly fairly certain and I think if it's up to her the trial will go that day. There's there's one potential wrinkle in that which is this whole pesky question of presidential immunity, and if the Supreme Court decides to hear that prior to the case going and potentially pause it, I think then that would be really the only thing that would potentially not have this go in March.

But so Jack Smith is doing what he's supposed to be doing and he's following the law and what the law requires and today he filed what's called a rule federal rule of evidence 404 B notice and this is very common and standard in version of this. The federal criminal cases call it a 404B motion in New York state court. We call it a Mollano motion. That's Mollano, the French spelling, M-O-L-I-N-E-A-U-X. If anyone wants to look it up themselves, and it's essentially in a nutshell, it's you have to tell the court and tell the defendants we as an opportunity to fight it or to try to keep it out.

Any evidence of prior bad acts or uncharged crimes that the prosecution intends to elicit during their case in chief in their direct case, right? So, Danya, since you were a federal prosecutor for many years, you worked at the Southern District of New York, which is one of the premier federal prosecutor offices in the country always has been premier, let's say it. The sovereign district of New York, as we like to call ourselves exactly. And I never was a federal prosecutor, just a state prosecutor. So why don't you explain to everybody what's a 404B motion? What is this just generally? As you said, Karen, it's very standard fair.

Cases are made and won on 404B evidence. Also known as prior bad acts evidence, as you point out, it really is, it's evidence that goes to show either motive or a common plan or intent or knowledge, something other than what's known as criminal propensity. So a prosecutor cannot use another piece of evidence that's extrinsic or outside of the charge conduct. If it just goes to show that, the defendant is a bad person.

So there can be a thin line and I'm sure we'll unpack it as we go along. So the government wouldn't even try, let's say in this case, to put in evidence that Trump committed, he's not going to put in the E. Jean Carroll evidence, right, that he was convicted of his sexual assault, because that would allow their jury or encourage the jury to say, you know what, I don't know about the proof or the evidence that's in front of me. I'm going to discount the witnesses. All I know is that this is a bad person who has committed other crimes.

And it creates a permission structure in a way for this jury to discount the evidence and to convict the person in front of them on something other than what they're supposed to be looking at. So the prosecution is burdened with proving to the judge, usually pretrial, what that purpose is. So one of the exceptions to the kind of the propensity rule. And those exceptions can sometimes well, this rule. For example, if you're using evidence

to show a defendant's intent or knowledge, that really can encompass a wide variety of conduct. So probably the best way for us to unpack this is to go through some of the categories. and you and I can consider here and game out and act like you know judges and you know, wait in on and how strong we think some of these arguments are I think that's a lot to you. Yeah, yeah, no, that'll be fun. Well, yeah, we'll play we'll play judge just to kind of underscore what you said, because I think

you explained it beautifully in the state, in state court, the way it would play out a lot was, like say you had a burglar, you know, somebody who who commits burglary, those typically happen to be recidivist, right? Those are people who do it over and over and over and over and over again. And you sometimes have evidence of prior burglary convictions, right, that were from the past. And so, of course, this is the guy, right? He absolutely did it. And you cannot offer it to show that. You can't show, oh no, he's a burglar. Like, he's the kind of guy who would do this. And therefore, you know, it's him. You could, however, if,

for example, he had the same, we call it the same modus operandi or the same, you know, M.O. to our common scheme or plan, like if he always did it a certain way or if he always used a certain tool or if he always, you know, stole women's underwear, like that, you know, little things like that that were very kind of quirky and uniquely to show that it's that same person, that's one way of doing it, right? So that's just a real world example of how normally it can't come in, but that's how it does come in. So let's go through this motion, as you said. So Jack Smith, it's a nine-page motion, it's not that long, and basically, what he said was, although we believe that all of the evidence that we're talking about,

and that we'd like to introduce, is intrinsic to the crime, meaning it's part of the crime, it's essential to the crime, some of it occurred before the charged conduct of the conspiracy and some occurred after. And so it's not technically in the conspiracy. And just to remind everyone that Jack Smith kept this indictment really, really tight. One defendant, four charges, and the period of the conspiracy is also quite short. The period of the conspiracy was November 14th of 2020 to January 20th, 2021 for two of the charges and then a shorter, even shorter, it was November 14th, 2020 to January 7th, 2021 for two of the charges. So what he's basically saying is we want

to talk about stuff that happened before November of 2021 after January or 2020, after January of 2021. And some of the stuff in between that might not be mentioned in the indictment to show the things that you were talking about. And, you know, we could go on and on about, well, why did he charge such a short conspiracy? Because if it was longer, all of this stuff would come in, right? Anything within the period of the conspiracy pretty much comes in. And why did he do it that way? And, you know, so we can sort of talk about that. But the other, and of course, things that

happen after, it's hard to say, you know, it's hard to predict how he would have done that since it's happened since he's, you know, some of it continues, right? The other thing I just want to point out that I'd love for you to comment on was, was co-conspirator statements and co-conspirator. By charging someone as an unindicted co-conspirator, because if you recall, there's I think six of them in the indictment. He's the only Trump's only the only named indictment. There's six unindicted co-conspirators. Why, what does that do from an evidentiary perspective? What does that allow Jack Smith to do from it if if someone's a co-conspirator like a co-conspirator statement or that kind of stuff? Yeah, it allows the prosecution to to offer statements of conspirators co-conspirators even even unindicted ones, into evidence.

So, if there is a statement made by an alleged co-conspirator in furtherance of that scheme, that likely will come in. Here are a couple of other co-conspirator, right, who popped up in this motion today. This election worker who, out of Detroit, right, who was inciting riot essentially. I don't believe we've seen that person. And there's some redacted language there, which I certainly seems like that points to the

connection between that unindieticocon's bearer and Trump, meaning some through line, some thread that connects that what that person did, which was try to insight, briate in a Detroit election center to Trump's knowledge. So that's an interesting little tidbit that at least I hadn't been aware of before I don't think was publicly known. But that's very powerful evidence. And the government can commit those statements in. That might be a cooperator that they've developed since, right? Right.

And of course, this is entirely in the judge's discretion, right? About whether or not to allow this evidence and what the judge will do is they will weigh the probative value and the prejudicial impact. And look, just because something's prejudicial doesn't mean it doesn't come in. All evidence tending to prove guilt is prejudicial, right? So it's they out they sort of balance it and we'll make a decision. So okay, let's get to the meat of the 404 B motion.

So point number one. Just to pick up one point you just made. Entirely discretionary with a judge. As you pointed out earlier courts can go different ways. But this ruling unlike the ruling that Judge Chuck and just made on immunity, which will be likely, it should be appealed and could go up to the Supreme Court, maybe back down, these kinds of evidentiary rulings are not allowed to be immediately appealed in the way they are in New York State, for example. So this ruling will hold through trial,

and that's an important point here. Yeah, that's a great point. You can only appeal after a conviction. You can't appeal during the pendency. That's a great point. And these cases, as I said in the beginning, can make a breaker case. It really, the jury, you know, listens very intently

when they hear evidence of other crimes or other bad acts. It tends to, even though it doesn't show, quote unquote, criminal propensity, it does, you know, make them think, okay, this is not, this is not, you know, not a one behavior. Yeah. Correct. So, just to start with that, I think the first couple categories that the government points to are kind of no brainers. It's pre-endipment, election denial, and Mr. Trump's refusal to agree to a peaceful transition of power. And that goes back all the way to November of 2012, I believe.

So as you pointed out, there's a tight timeframe for that conspiracy, but for-for-be evidence, constructs way back in time. And here it does. And the government doesn't cite to any law, which is interesting. Their briefs are usually chock full of precedent. Right. It was so short. But this is, I think. Yeah, it was short and right to the point. And this one, I think, really didn't need much support. It's pretty obvious that this kind of denialism going back again to 2012, where Mr. Trump is pre-judging essentially

the results of an election, or the afterwards if he doesn't like the results of an election, go ahead and claim that there was fraud. So the government points out this goes to a common theme, a common plan, or a pattern. And I don't think the judge is going to pause very long on these arguments. We'll see what Mr. Trump's lawyers come up with. Of course, and she'll consider that. But I don't think there's much room here for a counterargument. Yeah.

In addition, I think it also shows that his intention, right? His intent. In other words, he always intended to get this, yeah, to obstruct this and to steal the election no matter what because he's done it as far back as 2012 with an election that had nothing to do with him, right? That was I think Mitt Romney and Obama, so where he was making that claim. So then it gets to evidence of the defendant and co-conspirators' knowledge of the unfavorable election results and motive an intent to subvert them. And that's where the indictment list multiple example,

where it talks about after the indictment list, multiple examples of defendant's effort during these conspiracies to pressure the state's elect, you know, electors, they call them invalid electors, not fake electors or alternate electors. They, he said the government plans to introduce evidence basically that the defendant, this is where I think this is what you were talking about

in Detroit, this other person that suddenly appears, evidence of the defendant and a campaign worker in Detroit, that there's a series of text messages exchanged with this individual encouraging writing and other methods of obstruction. I found that kind of shocking, right, if that exists. Yeah, and then there must be text messages and or as you point out, a cooperating witness

that will substantiate this. And again, the redacted text must talk about how, what evidence the prosecution has that Mr. Trump knew about this attempt to incite. So that will be very interesting once that gets unredacted or the judge rules and we see the evidence at trial. I mean, it's redacted for us, the public,

but not for Mr. Trump, correct. And yeah, go on. Right. And the judge will obviously rule on it, and we'll see if she doesn't have to explain in her ruling exactly what that thread is. She can just rule on it. And so we'll see.

She tends to be pretty quick with these things. And again, some of these seem relatively easy. That one's easy. I think that one's easy too. Yeah. It shows they knew they lost. And it also shows intent, you know, motive to obstruct and overturn the results, right?

Yeah. So the next couple, those exceptions for sure. Yeah. Exactly. Then pre and post conspiracy evidence that the defendant and his co-conspirators suppressed proof that their fraud claims were false and retaliated against officials who undermined their criminal plans. This one upset me so much when I was reading it. I just, I know, couldn't believe what it just a

reminder of of the viciousness that he and his people, you know, went after individuals. This was defendant and co-conspirator number one, who I think is Giuliani, right? Yes. I think CNN has verified that, but yes, we would have that. Yeah, and basically how they were retaliating against, you know, individuals to stifle, you know, aggressively stifled dissent, you know, and publicly attack people, you know. And that was this one and the next one was also to attack Ruby Freeman and Sheamus. And, you know, that one was, and Mike Pence, you know, and it was interesting

because they also talk about how even after the Jan 6th select committee hearings and the videos of Ms. Freeman and Ms. Moss, you know, these public servant election workers talked about how Trump, after Trump would say things about them and call them out as, you know, all the vicious, vile, racist, horrible things he said about them. They talked about the harassment, the death threats, and the, you know, all of that, what happened to them as a result. And Jack Smith, in this motion, points out that that's when Trump doubled down, was a word he used, in his motion, and continued to do this despite that. And, and, you know, I thought that was really that's really powerful evidence that he knew what he was doing. And he not only

that he intended for the result, he intended, you know, to do what he, like he said to Caitlin Collins on CNN and that that weird town hall, you know, he said, my supporter, my followers listened to me like no one else. He knows that. And I think this is just evidence of that. So I think that comes in. What about you? This one, I think, is a little if you're only for the reason that you mentioned earlier, that the judge is required to balance probative value against judicial impact. And for exactly the reasons you said, it's so upsetting. The stories you remember from the January 6th commission hearings with the testimony from

those two Georgia election workers was riveting and gut-wrenching. And so the judge is going to look at, I mean, there's going to be plenty of evidence of incitement and of threats that were made that are in the indictment, right? The whole pressure campaign against pens and various state officials, all of that. This of course tends to support that, but it also because of that impact, I think the judge is really gonna have to weigh that and decide, you know, and she might err on the side of caution here, given the tremendous volume of evidence here at least in my judgment and as laid out in the indictment.

So, you know So we'll see. I think she would have solid grounds to rule in the prosecution's favor here. But as you pointed out, just a call back to your earlier comments about how narrowly crafted the indictment is, I think these four or four B requests are also quite narrowly drawn. And I think it's for the same reason or one of the same reasons, I think, as you said, we could discuss it at great length, why the indictment is drafted the way it is. I think one of the reasons is just to keep things really tight.

If the government really wanted to put in a mountain of four or four B evidence of, of quote unquote, prior bad acts, there's a lot more they could do and talk about acts of retaliation. There have been years and years of that. Michael Cohen has been on the receiving end of that and we just briefed that in the DA's office prosecution in Manhattan. So I think they are trying to keep it really tight here

and I think that the judge, she is very, very thoughtful and considered and measured. And so this is one where I thought it could go either way, unlike some of the other ones we talked about. Interestingly, as you know, Trump is fighting to keep any mention of the Jan 6 attacks out of the indictment, right? Because he says I wasn't responsible for it. And so Jack Smith is saying, no, not only were you

responsible for it, you actually, this is what you wanted. You wanted violence. And so the next category, he is another example of what he said is clearly wanting violence. So where on September 29, 2020 during the presidential debate when he was asked to denounce the prod boys, that famous stand back and stand by the prod boys, you know, got t-shirts and it was the rallying cry, and they knew what it meant. And, you know, this was part of the plan, right, was to do this. And also the fact that when he could have called them off during the Jan 6, during the riot,

he could have called them off and didn't. And I think that also goes to intent that he, or goes to his intent that he intended the violence. Yeah, so I hope that it's gonna come in. You say you're not sure, it'll be interesting to see, you know? Well, I think I would say on that category, the showing of support for the rioters, I do think that will come in.

So I draw a little bit of a distinction here. I think the government made a strong case that this shows intent and that he meant to send these people over, you know, to upset or to obstruct the congressional certification. So on that one, I think, I mean, and that's powerful evidence too, right? He brings them out, brings them up at his campaign rallies, and he was very publicly apart from that comment that you mentioned, which has now been merchandise.

It is, he's made it in the number of comments. So she lets that category in, there's gonna be a lot of evidence that in fact, he supported these people, and this is exactly what he meant for them to do. Yeah, he even calls out how he supports the, like Enrique Tario from the Proud Boys, who is convicted of the most serious crimes, aditious conspiracy, and calls him, you know, I don't know remember what he called them, but like a patriot. He's been treated horribly and how he, you know, plays the Jan 6th Choirs National Anthem

at his rallies. Yeah, I mean, the hostages, the political host, he calls them political hostages, meaning the people who are in jail or prison. And so yeah, no, it's pretty intense. So, yeah, I agree with you. I think that, I mean, personally, I think it all comes in. But what do I know? I've never practiced as a prosecutor and federal court.

But to me, this all seems like it would come in. And as you said, it seems so limited. I mean, this could have been a 100-page motion of prior bad acts, right? And that doesn't even begin to talk about if Donald Trump testifies at a criminal. I mean, this could have been a 100 page motion of prior bad acts, right? And that doesn't even begin to talk about if Donald Trump testifies at a criminal. I was about to say, go ahead. The impeachment evidence they are gonna wanna get in.

I mean, and that's gonna be a fascinating call, right? Whether he chooses to testify or not. So that's a whole other. It's possible. Just to go. Then Eugene Carroll and all that stuff does come in, right? So I think you have just to mention one of, as you say, I mean, it could be a hundred page in limited motion.

So yeah, so just to tell everyone who might not practice criminal law, these are two separate motions. There's one of prior bad acts that you want to introduce in your case in chief, right? And that's what this is. That's what you want to introduce regardless of whether or not the defendant testifies. And then there's another, another, we call it in the state, sand of all evidence. I don't know if there's a federal rule for it probably because there's a federal rule for it. I think it's so 8. 8.

I don't know. No one ever testifies defense or test. Yeah, well, in the state, people testify a lot. Anyway, so what you do is you make a sand of all motion, which is judge if the defendant's going to testify these are all the prior bad acts that I'd like to cross examine him with. And of course, anytime a defendant or any witness testifies credibility is always an issue. And so any prior bad acts that tend to show go to his credibility and show he's a liar would come in.

And boy, is that list? Just miles and miles and miles long. So that's very interesting. So we haven't even gotten to that yet. So anyway, any final words, Don, yeah, before we sign off? No, I'm looking forward to seeing the response, because as you're doing, I have been saying for the past, you know, half an hour, this one seems hard

for them to, you know, it seems not that defensible, but they've been putting up a lot of fights, like they've made a lot of motions, and they're keeping busy, and you know, some of them, they've made a lot of motions and they're keeping busy. And you know, some of them, when you wade through a lot of the political rhetoric, some of them have had, in my view, again, putting on my fake judge hat, is, you know, that might have some merit. But this one is, as I think, going to be a not very close call. Yep. Well, thank you so much, Donia. Always a pleasure to have you join our little legal AF family and hopefully you'll come

back again soon. Of course, thanks. Hey, Midas Mighty. Love this report. Continue the conversation by following us on Instagram. At Midas Touch to keep up with the most important news of the day. What are you waiting for? Follow us now.