Jack - Episode 49 - Stay the Whole Enchilada (feat. Brian Greer)

Episode Date: November 5, 2023

In DC, we have updates on the limited gag order Judge Chutkan issued; and Trump’s moves to stay the entire proceedings while awaiting a ruling on his motion to dismiss based on presidential immunity.In Florida, DoJ filed a notice to the court regarding Trump’s attempts to delay other trials by playing one venue off the other. Brian Greer is here to go over CIPA filings and rulings in DC and Florida.A document comes up in the NYAG civil fraud trial that might be of interest to Jack Smith’s team.John Eastman says that disbarment proceedings in California are strengthening his belief in the big lie.Plus, listener questions.Brian Greerhttps://twitter.com/secretsandlawsOn CIPAThe Quick Guide to CIPA (Classified Information Procedures Act)https://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/Motion from DoJ asking the court to require Trump to give notice of an advice-of-counsel defense:https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.98.0_1.pdfA couple of terms to remember:Brady 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%20guiltJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)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 AG:Follow 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

M.S.O.W. Media. I signed in order appointing Jack Smith. And nobody knows you. And those who say Jack is a finesse. Mr. Smith is a veteran career prosecutor. What law have I heard? The events leading up to and on January 6th. Classified documents and other presidential records.

You understand what prison is? Send me to jail. What? Welcome to episode 49 of Jack, the podcast about all things special counsel. It is Sunday, November 5, 2023. Now I'm your host, Andy McCabe. Hey, Andy, I'm Allison Gill. You know, Andy, it's almost our one year anniversary. Just a couple of years. Holy cow.

A couple weeks from now, I think maybe on the November holiday break, maybe we'll have a special one year anniversary show, maybe bring us up to speed over the past year news, maybe the big headlines and the special council investigations. We'll see. We'll see how it goes. There could be a million other things that we have to report on, but we'll see how it goes. I dig it. A little greatest hits. Greatest hits of the headlines from the year. Greatest jackets. Yeah. But for this week, we have a lot of news, including SEPA filings and rulings in both DC and Florida. And I'll be speaking to our SEPA expert, Brian Greer. You know, he's the former deputy chief of staff

for the general council of the CIA. And we're going to talk to him a little bit later in the show. So that's going to be fun. And, you know, we should mention you are traveling right now. So I, I'm going to conduct the interview with Brian, just so if everyone is wondering like, where's Andy on the interview? That's what's happening. Yes, I am, I am connecting with you from Bangkok, Thailand today. So I am, what am I? 14 hours ahead of you, something like that, but we're figuring it out.

No problem, we're still gonna get the Jack business done every week. So we are now a transnational anti-crime syndicate. That's right. That's right. I'm over here doing all sorts of secret stuff. No, I'm not. I've just over here having fun, so don't take that anywhere. But we also have, of course, all the updates this week on the limited, don't call it a gag order issued by Judge Chutkin. And Trump's motion to stay the entire trial while the courts decide his motion

on absolute presidential monarchy. I'm sorry, it's immunity. Yes, every week, every week you get the monarchy joke. Plus, in order from Judge Chutkin, scheduling the beginning of jury selection in the DC case. Yeah, she's not messing around. And we have a notice filed with Judge Cannon about Donald's motions to delay the trial in Florida

until after the election. So we have a notice on that from Jack Smith along with that November 1st hearing on the matter. We'll talk about that. There was just a hearing. We also have a document that came up in the New York Attorney General's Civil Fraud trial that might be of interest to Jack Smith.

And then finally an update on the John Eastman disbarment proceeding in California. So just a couple things we're going to cover today, Andy. Just a couple. Where should we start? All right. So let's, I think that document's really fascinating, by the way, but we'll wait to cover that later in the show. All right. So let's go to DC first with the, don't call it a gag order. Last week, as we discussed on the pod, a DOJ filed its opposition to stay the limited gag order. So that was the one that mentioned the two fines that the New York AG suit resulted in

and Trump's posts about Mark Meadows. Then on October 28th, Trump filed a reply on why the case should be stayed, making many of the same arguments. So in that filing, he says, if reinstated, the gag case should be stayed making many of the same arguments. So in that filing, he says, if reinstated, the gag order would prohibit President Trump from discussing nearly anything about this case, a key campaign issue with the American public, including reasonably foreseeable witnesses and testimony, as well as valid criticisms of the prosecutors. He goes on to state, the prosecution's undeniable goal is to silence its primary

political opponent, President Trump, during his campaign against the Biden administration. The court should not countenance such a blatant and unjustifiable attack on the First Amendment. Accordingly, the court should deny the prosecution's bond modification request and stay the gag order pending appeal. Now, Judge Chuck can issue her opinion and order the following day on October 29th, lifting this day and reinstating the limited gag order. She said, the court entered a temporary administrative stay of its order while the party's briefed the motion, see October 20, 2023, minute order, but now

will deny defendant's motion and lift the stay. The government also asked the court to incorporate the order into the defendant's conditions of release. Those are the bail conditions that we've discussed a few times. The court hereby denies that request without prejudice. Even assuming that request is procedurally proper, the court concludes that granting it is not necessary to effectively enforce the order at this time. I thought that was a really interesting kind of statement

because I think what most legal observers and certainly all of us wonder every time she or any other judge for that matter gets close to a gag order on Trump is the question comes up is how are they going to actually enforce it? But with this comment, I think Chutkin is really laying it out there that she does not see or isn't at least going to acknowledge problems or issues with trying to enforce the order. Yeah, I agree with you.

I think she's saying, I got this. We don't have to put it in the bail conditions. This sort of how it feels. Yeah, give me a shot. And maybe I go to bail conditions on the next round after the next set of violations of the gag, but we'll see. So she goes on to say, defendant has not made a strong showing that he is likely to succeed on the merits.

As this court explained, the first Amendment rights of participants in criminal proceedings must yield, when necessary, to the orderly administration of justice, a principle reflected in the Supreme Court precedent, and that federal rules of criminal procedure, and the local criminal rules. First, defendant asserts that the court cited no evidence supporting its findings of risks of harassment and witness intimidation, and the prosecution provided none. But several times, the court and the government pointed to evidence causally linking certain kinds of statements with those risks, and the defendant never disputed it. Second, the defendant claims the court gave no meaningful consideration to alternative or less

restrictive measures, including a narrower order. And again, the record flatly contradicts that claim. The defendant's final claim is that he orders unconstitutionally vague for various reasons none of which withstand scrutiny. So there we go. I think it's just a roundhouse kind of crushing of all the arguments for this day. Yeah. And like you were mentioning last week, he was trying to say that use the definition, the dictionary definition of an interested party, you know, as in all interested parties. And she comes back, like you said, precisely, hey, interested party is a well established legal term of art.

It means anyone who both is directly interested in the lawsuit and has a right to control the proceedings, make a defense or appeal from an adverse judgment. She took that from a law dictionary where he took it from the Miriam Webster dictionary, right? You don't kind of surprising knows that dictionary either, but still, you know, you're absolutely right. An interested party is someone who actually has an interest. Like, we're all interested in the outcome of these suits.

That doesn't make us all interested parties. You have to be able to kind of affect the proceeding, make a motion, you know, be thrown in jail as a result of how it turns out. Who knows? You need something more than curiosity to be an official legally interested party. So finally, the judge addresses the remaining factors. And she says, the remaining factors also counsel against the stay. Defendant's brief arguments on each rely entirely on the premise

that the court's order violated his first amendment rights. Having rejected that premise, the court reaches the opposite conclusions, where there is no showing of a likelihood of success on the merits of a First Amendment claim, there is no irreparable injury or public interest favoring a stay. I think that's really important. That's one of the threshold issues for any sort of a stay or injunction or, you know, anytime you go before a court and you're requesting that they step in and kind of stop something from happening until the final decision and the legal proceeding is reached. You have to show in

that initial request a likelihood of success on the merits, right? Or else every litigant in every case, every defendant would be constantly saying, well, stop, stop the press. Let's think about this before we go forward. So you have to show that you're likely to win on this argument before a stay is imposed. And of course, he's not done that here.

Yeah, and you can't even, if you can't get past that likelihood of success on the merits in a first amendment claim, you don't even get to talk about injury or public interest. It's like, that's right. Yeah, like I'm sorry, you order of operations. So after this Trump filed a motion for an emergency stay with the DC Circuit Court of Appeals, right? He's going up the chain now. The district court entered a sweeping viewpoint-based prior restraint on the core political

speech of a major presidential candidate based solely on an unconstitutional hecklers veto, in quotes. Okay. The gag order violates the first amendment rights of President Trump and over 100 million Americans who listen to him. Okay. President Trump, like 80% of those are people who don't like you. All right. President Trump's uniquely power. Reapporters who have to write about you. Yes, it's the press.

It's mostly press. President Trump's uniquely powerful voice has been a fixture in American political discourse for eight years and central to the American fabric for decades. Okay? Trump's voice, central to the American fabric for decades. A fixture of the American political discourse. Yeah. I mean, that's like saying drought has been a fixture in the American West for the last century. Yeah, I guess it has not in a particularly positive way, but okay, sure, yeah, it's been a fixture.

Yeah. Trump, Trump then makes the same arguments he made to the district court, which all got pretty, pretty roundly disputed and shut down. Like it's too vague, it's not narrowly tailored. They'll be irreparable injury. Again, he, you know, Judge Shuckin said, do you failed to the first test of likelihood to win on the merits? So he's taking the same arguments now up the chain and says, quote, the court should stay the gag order pending appeal. In addition, President Trump respectfully requests that the court enter a court is now in the state of the state.

The court is now in the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of

the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of And breaking news as a Friday afternoon, the appeals court has granted the temporary administrative stay and his scheduled oral arguments for November 20th. Now, this panel that he drew, by the way, consists of millet, pillard, and Garcia. That's an Obama appointee, another Obama appointee, and a Biden appointee, respectively. So, womp, womp, it's not going to probably

go too well from a, I don't really think that any draw that he would have gotten, maybe unless Pan was on there or something or whatever, would not pan, but route would have come out in his favor. But what I appreciate here is the speed with which the DC circuit court of appeals answered this, put the temporary stay on it and is going forward. And I also want to mention, you know, a lot of people are like, man, they're upset about the temporary stay. That's due process.

That just kind of has to happen because if you don't put that stay on there, you moot the appeal. And then he can appeal on that. And so that's one of the reasons. And also, not that I encourage witness intimidation or trying to interfere with the trial, but just like the week it was stayed in the district court and he violated what would have been the restraining

or the limited gag order if it were on him. If he does it again, that just gives more evidence to Jack Smith to make his case for the appellate court and possibly the Supreme Court, if they decide to take that up, because that's just going to be evidence against him. They used the $5,000 and $10,000 New York Attorney General Civil Fraud Trial fines. They used his truth social post against meadows and calling Jack Smith deranged while there was a temporary stay in the district court as evidence of why this order is necessary. So if he does continue, just because the order is stayed to do those things and make those

posts and violate the order, if it were in effect, that's only going to beat, make it worse for him. Totally agree with you. I think the thing to focus on here is that the case is not stayed. Right? The case goes on. The litigation continues. All the other motions, the schedule, everything we stay on it. It's just the imposition of the don't call it a gag order.

And you're right, it doesn't help him to go out and continue abusing witnesses on truth social during the pendency of this appeal. If anything, it's going gonna make it even more likely that the court says, well, of course, we have to do this because look, he's doing it right now while the matter is in front of an appellate court. So I think that's right, it is a little frustrating because it's just like the constant turn of appeal appeal.

I don't know that Trump or really anyone in his family has ever indicated a willingness to accept a court's order. Like you just automatically appeal everything. Doesn't go your way, appeal. Take another shot, take another shot. So you can expect that, I was thinking about that actually this week in the context of Ivanka's appeal of her effort to not have to testify in the New York AG case,

which was absurd. I think a first year law student could have done the analysis and said, no, you're going to have to testify. You're not a party to the case, but you're clearly a witness. So anyway, the other thing I thought was interesting is the throwout, the infamous Heckler's veto, which I don't actually think helps there. Their argument in what they're asking for, you know, there's kind of a non-legal definition of hecklers veto, which just simply refers to the idea

that like a heckler can restrain a speaker's right to speak simply by heckling enough to disrupt a speech, right? But that's not really the legal definition of it. The legal definition is all speaks almost kind of to the opposite. It comes up in cases where law enforcement will arrest or stop someone from speaking because they're afraid of a violent reaction by the crowd. And so the courts talk about this idea of that's kind of like a Heckler's veto, but it typically the use of that term is focused on the analysis of whether it was okay or not

for law enforcement to take a speaker off the stage or actually take them into custody because you're afraid of a violent reaction by the crowd. And in many cases, courts have found that it's been acceptable for law enforcement to do that because of a legitimate fear of public violence. Well, that sounds like Trump to a T. That's a really weird argument for who to make. I know, it's right.

I don't think they're really, it's a very, it's kind of a cool name for something. But I don't actually think're really, it's a very, you know, it's kind of a cool name for something, but I don't actually think that the legal impact of it is helpful to them, but hey. Now, well, they get that stuff wrong all the time. I mean, there was one filing where they said, instead of the sword and the shield, they said the cross and the sword.

And I was like, what are you even talking about, bro? And then later in the filing, they mentioned, they quote a case law where they use sword and shield. And I'm like, okay, so you know the phrase, like what are you talking about? Proof reading, not really high on the list of to-dos for the Trump team. But anyway, all right. So on the same day, Trump filed a motion with Judge Chutkin to stay the entire proceeding

in DC until his immunity motion is resolved. And in that filing, he states, the Supreme Court has, quote, repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation. For this reason, substantial claims of immunity should be, quote, resolved prior to discovery. President Trump respectfully requests that the courts stay all proceedings in this case, pending resolution of his immunity motion. Council for President Trump conferred with counsel for the prosecution.

Who advised the government opposes the relief requested here? And I'm sure I'm sure they did say they oppose that. This is kind of like the hecklers video. He's arguing against himself here when he said, hey, Supreme Court says you gotta get this done early in the early stages of litigation. And so my answer would be like, yeah, like right now, let's solve it right now.

No, you don't have absolute monarchy immunity. And like this to me just seems like they're saying hurry up and decide this now. But this is like that interlocutor. It's like, right, we need a stay so you can hurry up and decide it early. It's just stay everything. Right. Stay stay stay. Yeah. Stay the whole thing months and months from now. And do but but but decide it now. Okay, you know what we will decide it now. I think that this will be decided fairly quickly. I'm not even sure the Supreme Court's going to take it up, but they might just so that they can say, no, you're not a king. I mean, it's the most ridiculous motion

in the history of motions that I've read. I mean, just going absolutely directly against one of the main pillars of the Constitution and why we are even a country in the first place. Like, exactly. You're so dumb. And just after that motion to stay the whole enchilada came in, a judge check can issue an order about the jury selection schedule.

So she's called for a jury questioner. So be ready to go February 9th, just with three months from now. We still await her decision on the stay pending his immunity motion. But we know that the appellate court on the limited gag order has given a temporary stay and that November 20th is going to be the hearing for that. So we'll cover that for you as well. All right. We'll be right back with the hearing down in Florida with Judge Cannon to delay that trial until after the elections. Stick around. We'll be right back.

Hey everybody, welcome back. On November 1st, Judge Aileen Cannon held a hearing pursuant to Trump's request to delay the entire, this is the Florida trial now, until after the election. You'll remember his fuzzy math arguments, right? The DOJ, you gave me 13,849 documents. If I stack them end to end, they're taller than Trump tower. But 15 or 100 pizzas. But 15 of those documents were new. And the other 13,000 blah blah blah. He or unclassified documents.

He's had for a long time. He just wanted to put all together so he could see how they were found. Right. Trump said they weren't getting classified, discovering a timely manner. And the Department of justice, Jack Smith, like said, nope, we did this on this day, this on this day. You waited 11 days to come and look at certain documents and a skiff right down the road from you.

He had his skiff, you know, complaints. He complained that he didn't have a classified computer, even though he submitted a classified briefing, using a classified computer, complaining about not having one. All of those, we remember computer complaining about not having one. All of those, we remember we talked about those last week. Well, it seems at this hearing, Judge Cannon is actually amenable to delaying the trial. We just don't know by how much yet, right?

Yep. Yep. Absolutely. Right. So, here's from Josh Gerstein and Kyle Fanny at Politico. They report that a federal judge in Florida, which of course is Elian Cannon, is considering delaying Donald Trump's upcoming trial on charges that he hoarded classified documents and obstructed the government's attempts to retrieve them.

Here's a quote from Cannon from the hearing. I'm just having a hard time seeing how realistically this work can be accomplished in this compressed period of time, given the realities that we're facing. Canon made no immediate ruling on Trump's bid for a post poneman, but she sounded highly skeptical of claims by prosecutors that the case could be kept more or less on pace with the schedule she set in July. Trump didn't mention the campaign, but instead said that his other trial in DC will clash with the May Florida trial date because they say it will last months. But one of

Smith's deputies urged Canon not to alter the trial date, noting that the election case might itself get delayed. Yeah. And shortly after this hearing, the DOJ filed notice with Judge Cannon that Trump is trying to delay the DC trial to because the hearing happened and then Trump filed that motion that we talked about in the first segment that we need to stay the whole trial while you check out my immunity. And so then the DOJ just gave a notice to judge Cannon. Hey, Trump's trying to delay the DC trial too. And he was caught and he playing judges against each other earlier this year. Let me read to you from this daily beast article from back in March. Okay. Remember, this is back in March. Faced with an onslaught of expensive lawsuits

ranging from fraud to racketeering, Former president Trump is desperately trying to delay several trials well into the 2024 presidential election season. And he was just called out for the scheme. Trump's lawyers have until Wednesday to explain how they tried to play two New York judges off each other by double booking trials to potentially delay them both. Now the Department of Justice did not bring this up in the hearing. So that's the daily beast from March. And the DOJ didn't bring this up in their hearing or the filing. I think they should have unless they just assumed canon isn't going to listen or maybe they

don't have my brain where I have all this shit filed away for no good reason. Maybe they'll think differently about it after they listen to this podcast on Sunday morning. I'm just saying it's not nice. No, it's not going to go wrong. But yeah, he did this. And in fact, it was Robbie Kaplan, E. Jean Carroll's lawyer, who wasn't a lawyer in either of the two trials. He tried to schedule it at the same time in New York to get him both delayed,

who alerted the judge, the judges in New York. Hey, Trump's trying to put your trials at the same time so he can delay them both. And they caught him. And so they said, you need to tell us why. And so this Jack Smith notice to Canon came one day after the hearing where she seemed keen on delaying the trial. The one you just said, the one you just talked about. However, defendant Trump's counsel failed to disclose at the hearing that they were planning to file. And yesterday, evening they did file, the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential

immunity is fully resolved. And that's the motion I said we discussed earlier in the show. Defendant Trump's actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This court should not allow itself to be manipulated in this fashion. So it's exactly what happened in New York. You know, what was that? Three were in 11, eight months ago. And now it's happening down here. And they did make a pretty glaring typo, by the way,

the DOJ, they actually said this court should allow itself to be manipulated in this fashion when they meant to this court should not allow itself to be manipulated in this fashion. It's just a minor significance there. Eels. But again, I'm surprised DOJ didn't mention the history of him pitting trial dates against one another

to manipulate judges to delay both trials. But now, Canon has yet to rule on the trial date thing. But she just entered this snarky minute order today on Friday saying, because they filed this, this is just a notice. Like, hey, judge, just so you're aware right after our hearing, Trump filed a notice to stay the DC trial. He's trying to pit you guys against each other and delay both trials. She responded, all she said was, the parties are hereby reminded pursuant to local rules, a notice may not exceed 200 words, and may not be used as a surreply without leave of court. That means without my permission.

Further non-compliant filings will be stricken without further notice. Period. And then on Friday, she entered another minute order, Further non-compliant filings will be stricken without further notice, period. And then on Friday, she entered another minute order, staying the pretrial schedule, pending her ruling on the matter. So she's not even ruling on whether or not to delay the trial. She's putting a stay on everything right now until she rules, which by the way, she said she would do ASAP after

November 1st, which I don't know what ASAP means to her, but that protective order took two and a half months to put down. But the thing I've noticed about this, though, Andy, is that she's really making it hard for Trump to appeal anything if he's convicted at the end of this, because of all of these breaks that he's getting. Do you know what I mean? Like, he's convicted at the end of this because of all of these breaks that he's getting. Do you know what I mean? Like he's not going to have an argument to make. Yeah, I think I think that's right. And he, look, he's reading her like a book. He knows his attorneys know how she's going to react to these things. They know that all they have to do is put up something that raises a barely-colorable claim and then asks for a stay, and she's going to bite at it because she doesn't really,

she's so hesitant to kind of charge forward and issue rulings from the bench and things like that, that whatever they do is going to succeed and slowing things down, and that is their number ones. Maybe that's their number two strategy. His number one legal strategy is, of course, to get reelected. Number two is just to delay everything. But here's here's I'm going to throw this out there. This will be the part of the show where I enraged the audience. Okay. I'm not saying here I'm defending myself before I say it, but I agree that he's using every opportunity to delay.

And we catalog this every week. And most of these motions are nonsensical, but effective for him in that strategy. But here's where I'm going to go the other way. I actually think that what Canon is getting at here is a legitimate problem, would be a legitimate problem for any defendant. And that is, if you look at the schedule as it's currently set, if the DC case goes when it's supposed to go, that he'll literally be on trial until almost immediately before this case goes to trial. And there is a legitimate issue around whether or not it's fair to require a defendant in

a criminal case to prepare their defense, essentially while they're on trial in a separate criminal case in a separate jurisdiction. Is it realistic to think that he could actually, you know, work with his attorney's review documents, do all the things that you have to do getting ready for a trial in which your liberty is at stake while you're on trial in another case. And I think the answer to that is probably no. So I'm probably gonna hear about this

in next week's questions that gets submitted. But I think she's getting at a legitimate issue. That's the only thing I'm saying. I don't know how she comes out on it, but she's being a dick about it. Though, but DOJ said the trial is going to take the the March DC trial is going to take four to six weeks. Trump side says it's going to take all the time right up to the eve of the the May 20 trial date. I mean, to me, the the right call would be, well, let's see how this timeline goes, as we get a little bit closer to these trials, and if a delay is necessary, because the DC trial

gets postponed or goes long, we can address it at that time. But right now, we have months between now and then of other things that need to get done. I mean, that would be my reasonable solution here. And then some other legal experts that I've talked to have said that it wouldn't be unheard of for her to say, it is cutting it close, and maybe any other criminal defendant would also get this consideration. So why don't we do this thing and move it from May to July

to put padding in between the time that the DC trial stops and this trial is because the DC trial date wasn't set when she set her July trial date or her May trial date I should say So that came after yeah, so it wouldn't be unheard of for her to push this back a couple of months to give some breathing room To the to the March date. I have thought that her schedule, not just because of the way that she's kind of failed to enforce it, but it's been a kind of a squishy, as I had a squishy look to it from the very beginning.

And you know, in private conversations with people I've consistently said, I think it's unlikely that this case is resolved before the election. I think so. And I think you're right. That's the reasonable way to think about it. It's totally fair for a judge to be concerned about this. I think it's a legitimate issue. And most judges would be like, okay, let's see how this goes.

Because who knows what happens in DC? Maybe they run into some issue that delays the DC trial. And then she can stay right where she is and charge forward in May. So I don't know that it's absolutely necessary to decide it now, but I do think it's a legitimate issue, and she is someone who is very accepting of delay. And so I think we could see this one rearing its ugly head later and causing the actual trial date to get bumped back. Now, whether that's bumped back a week, four weeks, a couple of weeks, whatever, or, okay, let's just push it back till after the election, that's really hard to say. I think any of those outcomes could, we could see, but nevertheless, unlike the rest of his kind of naked efforts to drag things out, this one for me anyway hits on a legitimate issue of ability any

defendant could raise this under similar circumstances as a challenge to actually preparing that equipped defense. This is one of those ones you don't want to get wrong because if he gets convicted and he files an appeal based on kind of an insufficient counsel, inability to prepare, this is one that could throw the whole conviction out. So it's good to be careful around it. That's all I'm saying.

Yeah, and our friend Brian Greer brought up a great point a couple of episodes ago when he said, there's a thing, too, where the final SEPA thing is only a week, the finish is a week before the trial date is, and he's actually been surprised that DOJ hasn't addressed that scheduling thing because you're going to need more than a week to run those appeals and, you know, those final SEPA appeals. And so that would also be an opportunity to address that scheduling error. If this thing gets moved to July, but if she moves the whole seep of schedule back to, that can end up pushing it even further. But yeah, you've said Pete Strock has said this, he doesn't think this is going to go before

the election. So, well, we'll see what ends up happening. But I think it's the way that she's doing this. Staying things, entering minute orders, not addressing things. Using language in her rulings, that is just, you know, not really language becoming a federal judge. Yeah. She's given a million signs that she's willing to delay.

Yeah. Right. On each one of these's on each one of these motions, each one of these requests, she kind of pushes in that direction, leans in that direction anyway. This is the most significant issue. I think that could end up significantly delaying the trial like by months or potentially after the election.

All of them could, but this one I think has more legitimacy. Now let's compare her to Chutkin. Chutkin is the exact opposite. She's given every sign at every one of these things. She's like, don't forget about the schedule. I'm not moving by a day. So if you're just reading the tea leaves as we are,

Chutkin seems like a judge who's like, motions be damned. We're going to trial on this day. If I have to back it up by one day, okay, I'll do it. I won't be happy about it, but it's still going in the basically the same kind of general time period that we all knew about from the very beginning.

Yeah, but also don't forget the only delay at the core of all of these filings and hearings and responses and sur replies and is 11 days. And that was 11 days that Trump needed because DOJ had the documents ready at a skiff near him and he said we're not going to be there until October 18th. So that was an 11 day delay. And so that's why Jack Smith was like, I'm fine with a couple weeks on a seep, you know, filings.

Right. But that shouldn't be reason to push this whole thing back. But because of her trepidation on the bench, her not understanding the procedures and the processes, not understanding sepav very well, all these filings and refilings and responses, that is where all of the delay comes in, and that's what Trump specializes in,

and that's what, as opposed to Judge Chutkin, like you said, that's where Judge Cannon shines is in her willingness to stay things and accept delays. So, but speaking of Brian Greer, we had those back-to-back orders from both Judge Chutkin in DC and Judge Cannon in Florida about SEPA procedures. So we thought it would be a good time to bring him back in for the under seal segment, but we do have to take a quick break before that. We'll be right back. Stick around. All right everybody, it's time for under seal. All right, it's under seal and that means we're joined by you know him as secrets and laws on Twitter He's the former deputy chief of staff for general counsel the CIA our friend Brian Greer. Hi, Brian

How are you doing good? I I It's that time again when we have some seep of seep of filings and rulings So we figured we bring you in and I wanted to start with Because like within minutes of each other, both Judge Chuck and Judge Cannon in the DC case and in the Florida case, put out rulings on some seep emotions. And I wanted to go over those with you. So first down in Florida, there was a sealed hearing about seep a section three followed by supplemental briefs from office special counsel and Nada and

Dale Lavera. Now, the court entered the protective order and granted Jackson Smith's motion as to Donald Trump and granted in part Jackson Smith's motion as to Nauta and Dale Lavera. But the court left open to modify because the court says special counsel wanted to use Cepa 3 instead of CEPA-section-4 to restrict Nauta and Deolevera from reviewing classified information and shift the burden to the defense

to justify. So her ruling here is that the protective order stands and that anything Jack Smith wants to summarize or restrict must be done under CEPA-section-4 or not CEPA-section-3. Can you talk a little bit about, Jack Smith wants to summarize or restrict must be done under CPISection 4 and not CPISection 3.

Can you talk a little bit about, first of all, what it means to summarize these classified documents? Yeah, so normally in CPISection 4, if there were particularly sensitive records that the Department of Justice didn't even want to provide an unredacted form to the to clear defense council. They would do either redact them or do a summary or substitution of them. And in the latter, they basically would excise the discoverable information from the document. Because as we talked about before, it's really information that's discoverable, not documents. So you have to think about that. There may be a lot of actually not discoverable

information that in a document that's classified, and so the government would want to excise all that, focus on what's actually discoverable. And then even with that, there may be details that are too sensitive to share, which, you know, the name of a source, although that's not even really normally documents,

but a cryptonym used for a source, or a specific date on which information was collected, or how it was collected, or which government gave it to us Those details of their often be more sensitive and also not really relevant to the case So that armages just and summarizes that accesses some of those details Presents a nice summary of the court the bless and then would if bless by the court with him that over to the clear defense council And maybe the defendant, which we can talk about.

Right. Because in this case, I mean, big picture, we're talking about the retention of these documents, not necessarily what's in them. Is that kind of my, that's my understanding. Am I right on that or am I missing something? Yeah. And I guess that's a good point too. For the documents themselves that were at Mar-a-Lago, I think to the extent those are provided in discovery,

those would probably be just provided in unredacted form because they were already there. Like there's not a lot of point in redacking them at that point. It's really just the additional discovery that may be coming into the case. If there was a damage assessment, for instance, if there was information coming up

from foreign governments, that was all then about the leak, about the compromise. That's what we're talking about with these substitutions. Okay, I get it. And apart from the the basicness of this order because she could have just said, hey, let's do this in section four or not section three. She went on this whole long kind of snarky screed. For example, she says against the backdrop of these provisions,

the Office of Special Counsel attempts to maneuver its way around the plain meaning of section 3 and the surrounding sections. It's arguments lack merit. She goes on to say the OSC makes the uncontroversial point, for example, that the term defendant includes the individual defendant and the council alike. But that's not what's presented here. Here, Officer Special Counsel, isn't making discovery available to attorney and defendant to review together. Here, the SEO thinks it can satisfy discovery obligations by only giving it to the attorney and not the defendant. What is she? What's she going on about? Yeah, I mean, just to set the stage, what DOJs propose doing here is what happens in every

single CBA case, which means every single protective order, typically as a provision that says some materials may be designated by the Department of Justice as being basically cleared counsel only so the defendant can't see them. That makes good sense. Most of these cases are terrorism defendants, arms dealers, things like that, who I think everyone agrees should not have access to just all classified information to discovery. And then the defense council, if they see something that they think their client really needs to see it and defend themselves, they can ask DOJ for permission. And then if

DOJ says no, they can go to the court. So there is a check on that. As you've noted, sorry, just to back up, it there is a check on that. As you've noted, sorry, just to back up, it asked me not to act cases though. It's a little different. Normally, because the classified nature of the information is of core relevance to the case, there, the Department of Justice would normally say they'd still do the exact same protective order, but in what they designate, they would be more liberal. They would allow the defense defendant to see more classified information, particularly stuff that they had access to while in government. Because it makes more sense that they need that to defend themselves. So with Trump here, DOJ ultimately didn't fight that fight. They said Trump is going to get everything

in class by discovery. He was president of the United States, that makes sense. For NADA and D.O. Lavera, they didn't have access to the documents ever. They're not charged under the SB&AJ Act. Their knowledge of the contents of the documents beyond the fact that they may have been classified is not at issue in the case. The only one where it really is is the one where NADA took a picture. And D.O.J. said, we're gonna give that

let NADA look at that document. So everything else, their knowledge of the contents of the documents is irrelevant to the case. So it's a good case for doing what DOJ proposed here, which is saying they can't see those documents unless their counsel makes a showing. So that's all just to say,

what DOJ proposed here is 100% standard practice. In mild fairness to Canon, the wording of the statute is not that clear. It doesn't specifically contemplate this, but every single court that is considered this you has cited with DOJ, every single one. So for her to say in her order, use all this flippant language acting like DOJ was making these extreme, fervilist arguments is just ignore all that precedent and is showing some of her bias, obviously. And there was one thing that I wanted a little bit of clarity on. She makes this other argument that the Office of Special Counsel tries to minimize the prescribed procedure,

codified in section four for deletion slash substitution of discovery by saying that, quote, once the government discloses classified information to defense counsel, section four no longer applies. She says that the text of SEPA does not support this position. And section four specifically refers to discoverable information made available to the defendant under the federal rules and then provides the United States a mechanism to seek to avoid disclosing it in fuller in parts. So again, she says we're left with the OSCE's broad and unconvincing theory, which is that the court must change the meaning of the word defendant to be the defense lawyer only. Again, it seems like she's just stuck on this idea that.

Yeah, it's hard. You know, even if she has this textualist argument about section three, there's no real support for her position in section four. Like there's nothing in there specifically noting that you can split the baby like this, like she's proposing, happened in section four. So just as she doesn't think she's actually a sporting section three, there's not only support for her position in section four. This frankly was probably an issue not explicitly

contemplated by the drafters of SIPA and the courts have just made do to make a sensible you know, cause her to have it and she's flipped it all on its head. But again, DOJ, it's surmountable for DOJ. I do think whatever like you want to talk about this, whatever is already in their skiff for their defense council to see, DOJ is probably

like grabbed it, or at least prohibited them from access because until DOJ moves under section four, NADA and deal of arrow can presentively see it. Now that her order has been entered. So they've probably taken some step to say, look, until we file our section four motion to prevent them from seeing it, they basically can't see it. So I imagine that's been worked out behind the scene somehow. I would expect access from 4 motion to come up saying we don't want them to see the charge documents, and then we'll play it out from there. Yeah, unless she makes this argument again and says,

what I said about section 3 applies to section four. And, yeah, be it endless back and forth about this, but how she rules on the section four will be the big tell because again, DOJ will have these arguments that their knowledge of the contents is just not relevant to the case. Why do they need to see them? And could they argue, Hey, they came and got stuff out of the skiff. And so now Trump can't see it and be mad. And you know, I'm just trying to. Yeah, I mean, yeah, I don't know if they'll like literally go grab it some skiff, but

I'm sure they've done something to get assurance that those two defendants aren't going to go look today at those documents, which I think technically they could. That's so kind of frightening and weird. Yeah. There. All right. Now, in very stark contrast to what Judge Cannon put out, we have Judge Chuck Kins order. Now everybody, I think who listened to this program knows that there's very limited classified information in the DC case. This is the coup case, right? The four charges of obstructing an official proceeding conspiracy to conspiracy against

rights, defraud in the United States, against Donald Trump only. And the very limited classified information, the DOJ has said multiple times is not part of their case in chief. And so they aren't going to be using that classified information. And it basically contains, like there's an intelligence community report on foreign interference. And in previous filings, we know that Donald Trump is not satisfied with just that report. He wants to go through the report

with a fine tooth comb and claw in all sorts of classified information that supports or maybe denies what's going on in that report. And once all classified information that's relevant to the compiling of that report from the intelligence committee, and everyone's like, bro, please. So in her order here, she granted special counsel the ability to summarize, which is like you said, something that happens well now 99.99% of the time, because we have Canon who said no.

She granted the X part A Cepa 4 motion for a protective order from Jack Smith. And then Trump wanted to see that Cepa 4 X part A order and she said no, you can't see that. And that's kind of basically the long and short of this. But then there was a section 5 bent to it. Can you talk a little bit about this order? What the section five thing means? And how it starkly contrasts with what Judge Cannon put out? Yeah, just to back up on the section four, as you noted, what she did is very routine. I don't think it's like that crazy for Trump to argue that they wanted, they, they are arguing.

We just want to see the unclassified portions of the CPC section for motion and the supporting case law that DOJ sites. Like, I, you know, put aside the fact that defendants dollar trouble. If you're someone who thinks, you know, the defendant should have robust rights. Like, that's not a crazy argument to me. And I think as an observer, right, you would love it if even those unclassified portions of DOJ's motion were filed on the public docket, right? So that wasn't like the craziest argument for him. That said, the legal arguments that DOJ would make

that would be on classified are all boilerplate. There's nothing really like that useful there. So I understand why she did it That's a routine order, but it not as clear gut as people might think Anyway, but on the section five notice So section five is where the defendant has to give notice to the government of the classified information That they intend to rely upon at trial and that basically shifts from discovery phase to we're getting ready for trial phase it trial. And that basically shifts from discovery phase to we're getting ready for trial phase. So this is the first step of that. So Trump filed a classified notice under section five and then

a public sort of summary of it, which I don't even know that they have to do. I think they're just playing to the press insane. I think kind of oddly, you know, that the indictment adopts classified assessments by the teleges community and others that minimize and at time ignored efforts by foreign actors to influence an interfere with the 2020 election. President Trump will offer classified immigration a trial relating to foreign influence activities that impacted the 2016 and 2020 elections, as well as

efforts by his administration to combat those activities. And he'll present information, classified information about the biased and politicized nature of those assessments. So, you know, it's worth pausing. What is he gonna be arguing here? Like, I'm not that clear. The assessment. I have some guesses.

I mean, I mean, I think DOJ here is trying to argue that, you know, with all of the statements from Meadows, we now know, T, who told Jack Smith in his limited use immunity, um, from, uh, Chris Krebs, who was fired for saying that it's the most secure, um, election in, in U.S. history. I think using this report is, is to show that there, there wasn't, uh, enough, um, malign foreign influence to justify calling the Department of Defense to seize voting machines, for example, or to overturn the election in any case. And I think what Trump is trying to say is that there's probably missing and hidden deep

state documents within the government that ex-goal paid him and gave him the ability to ask DOD to seize voting machines and that the election wasn't fair and clean and that there was for an influence. Of course, it probably all came from Russia, which doesn't vote well for him. But I think that's probably what they're getting at because if you remember, he argued in one of his motions to dismiss this case in DC that the January 6th select committee had deleted a bunch of missing evidence and he asked in a rule 17 subpoena motion to get all of that information. And he was denied because you can't just ask for vague things that exist in your head.

You have to ask for specific documents. So my guess is it's probably along those lines, but we, you know, we could speculate all day. Yeah. And he, he, definitely in what I just read, like, overstates what the indictment says. There's only one reference in the indictment to anything about the intelligence community. And it's just saying in one little sentence that the DNI disabused Trump of the notion that there was foreign interference that would change the outcome of the election. That's it. So I would argue, well, let me talk about what will happen next. So first, DOJ will probably argue that whatever notice he provided is not specific enough

because they want to be as specific as possible. Trump, from reading what I just read, is probably not just referring to classified documents. He has but classified information in his head. So DOJ would have to be very specific, think about that exercise, or Trump would have to be very specific about what specific information he's going to present a trial. So anyway, that's what the... Cache Patel wrote me a memo. Yeah, exactly. And then they'll move to CPIS6, which is all about the normal pretrial

motions practice you would have related to use relevance at a missibility. So there would be a whole argument there, is this relevant? You know, in DOJ, why are you look for the teljescuny assessments are not relevant to the indictment. That's just what they'll say, I think. That's not part of our argument. We won't present them a trial.

So it's not relevant. Trump will say, well, it's relevant to my state of mind defense. And then the question will be, okay, but does the information relate to that? If the intelligence was, or in governments didn't interfere with the vote counting, like, that's not relevant to his defense. Like, there's not relevant to any sort of defense. Or if he didn't believe that, that's not relevant to any defense. Secondly, it's got to be admissible, right?

Like, Kashput Elton told me, is hearsay. They've got a way to get it in evidence. So it's not going to testify. So they've got to have some way of getting an evidence, which I'm doubtful of. And then if you get past that, DOJ could still offer a substitution, a summary or even a stipulation that sort of gets away that deals with any sensitivities there. That might just concede a silly argument to Trump or at least say there was other information that the Helmsfield had that said, or governments were trying to interfere with the vote counting, hypothetically. And that would be it. So I'm not really, I'm just worried, some people might see this and worry, oh, Trump is going to succeed with this great male strategy in the DC case.

I don't think this is gonna go anywhere. Yeah, and that's all, you said that that would come out in CEPA section six. Yeah, I think that's a great illustration of one of the earlier points you made in this show, in this section that it works like a funnel. That's okay. Every step we get a little bit closer to sort of sorting

all of this stuff out and getting to the point of what is admissible in CPIS-6, and then it even continues beyond there. But I think that's an excellent illustrative point about how the whole thing is like a funnel. Yeah, and now we'll just see if Judge Cannon takes that funnel and turns it upside down. But she's gonna, she just actually entered an order because special counsel Jack Smith tried to alert Judge Cannon that, you know, he's trying to delay the Cannon trial, but that he also tried to delay the DC trial. And he got caught earlier in March doing this, trying to schedule two trials at the same time so he could delay them both. It was Roberta Kaplan, who was E. Jean Carroll's lawyer,

that brought it to the court's attention. And so they wanted to bring this to the court's attention with Judge Cannon, but I don't know how seriously she's gonna take the, hey, dummy, you're being played, warning that Jack Smith sent her. Nope. I don't know. It's gonna, it's gonna be this way. Um, but you know, I have to say, these kinds of things, making it so difficult and going after special counsel so hard, um, on all of these and, and just making, making their lives miserable and difficult and,

and, you know, parsing language the way that she's doing is gonna make it pretty hard for Trump to appeal a conviction if one is obtained down here. What's he gonna argue that the judge? Yeah, that's a great boy. I mean, I didn't even thought about that. But yeah, I mean, he's not gonna have much left to argue when he's on with this.

No, and I'm sure that that was a consideration of special counsel. They knew they were going to draw this judge. I mean, they had like an 86% chance of drawing Judge Cannon in this particular case. And they're like, let's go for it. We got an open and shut case. We got video of video of them obstructing justice.

Like maybe we should, you know, we can't not bring a case because we think a judge is going to treat us unfairly. a case because we think a judge is going to treat us unfairly. But yeah, I think that this is making it very difficult for him on appeal. So that's fun. The last point you may think of, Canon still hasn't seen any of the records at issue or read a declaration about the records at issues.

So hopefully, what's section four starts that will start? And, you know, I'm extremely skeptical. I'm sure you are too, but maybe she'll come down there at the little bit when she sees what's in these records. Seize how sensitive they are. Seize all these DOJs assessments, or the intelligence community assessments about the harm created by unauthorized

disclosure of these documents. Maybe she'll change her tone, probably not, but we'll see. She hasn't had that opportunity yet, but that's coming. I don't know. I have a sinking feeling she already knows, but you know, I'm a cynic.

When it comes to judge canon, but thank you so much for clearing this up for us. I know that CEPA is a pretty complex law and I appreciate your time today. Can you tell everybody where to find and follow you for this information? Yeah, I'm on Twitter at Secrets and Laws, and we'll eventually be where everyone else lands at the same hit. Awesome. Thanks so much. Brian Greer. Welcome back.

Okay, we have a couple more stories from this week. First one involves our friend, John Eastman. And we learned from Politico that a California judge made a preliminary finding Thursday that attorney John Eastman breached professional ethics when he aided Donald Trump's bid to overturn the 2020 election. A significant milestone in the lengthy proceedings professional ethics when he aided Donald Trump's bid to overturn the 2020 election, a significant milestone in the lengthy proceedings over whether Eastman should lose his license to practice

law. Now, Eastman said Thursday that the extensive disbarment proceedings had strengthened, not not undermined, but strengthened his belief that the 2020 election was tainted. Now, state bar officials are preparing to present quote, aggravation evidence aimed at justifying their call to strip Eastman of his law license. So, man, we have a moment of reckoning finally coming up in this effort in California, looking at John Eastman. Yeah, aggravation evidence. That's interesting. I've never heard that term. Yeah, aggravation evidence. That's interesting. I've never heard that term. So I'm interested to learn more about it especially as these as this aggravation testimony happens. So I'll see you. So it's not like just what you did is evidence. Aggravation evidence is like why what you did made it even worse

It's so obviously the opposite of mitigation evidence, which is like, oh, yeah, you did made it even worse. It's obviously the opposite of mitigation evidence, which is like, oh, yeah, you did this, but it wasn't so bad because you really didn't mean it or something. The thing is, if he was low enough on the totem pole, he could have gotten a deal down in Fulton County and got the moral turpitude language removed from his crimes. But he's also an undietered

co-conspirator in DC. There's a lot more to this than that. But Andy somebody posited this to me. They said, you know, if he loses his law license, he might want to cooperate in the other federal investigations because maybe his only goal, that's like one of his main goals of resisting here was to keep his only goal. That's like one of his main goals of resisting here was to keep his law license. But if that's stripped away, maybe he no longer

has that incentive, uh, and might be more willing to play ball. But then of course, do Jack Smith and Fanny will us even want to play ball with him? Yeah. I feel like his value as a, as a target, as a defendant, maybe greater than his value as a cooperator. A couple of reasons. I really think Johnny Smith is a true believer. He keeps doubling, tripling, quadrupling down on this insanity about the big lie.

And anyone else at this point would kind of be like soft pedaling, walking some of that stuff back, trying to reframe what they did as like purely providing legal advice didn't, you know, but he's the opposite. He's like, I'm more convinced today than I was after the election. And he's also like right there in the center ring of the target, right? He is there interacting with Trump and everyone around him with Pence, with Pence's lawyers around this scheme. interacting with Trump and everyone around him with Pence, with Pence's lawyers around this scheme.

So he's a significant player. He was really key to this entire thing. I think his world got a lot darker when Kenneth Cheesebroe cooperated. I'm sure he's been trying to evaluate what the impact of Cheesebroe's testimony will have on him. So it'll be interesting to see how this one plays out. Yeah, and this document that I mentioned that we all find very interesting. It came up in the New York Attorney General's Civil Fraud Trial, the $250 million fraud

trial, the one where the Trump family are all testifying right around now. This is super interesting. During the direct questioning of junior, the Attorney General's Office questioned him about his participation in preparing the statements of financial condition, right? Those are the ones that inflated the value of Trump properties for banks to get them better loan offers. Now, juniors as he wasn't involved at all, but the Attorney General showed him his own signatures on letters to Mazar's and brought up the fact that just he and Weiselberg were the only two trustees of the Trump

revocable trust while Donald was president. Because remember when Donald was running for president, he said, I'm going to give my business to junior and Weiselberg. I'm not going to be part of it, et cetera. Yeah, controversial at the time because it wasn't a full blown blind trust, which every other president has ever done with their personal wealth and investments before, you know, on entering office. He was like, I'm just going to put these guys in charge.

They're going to run it, which, you know, people talked about that a lot at the time because it was such a departure from the way that's typically done. Mm-hmm. Yeah. And so they had him cornered, right? And that's when junior started to flip out a little bit and get super defensive. It's like, you were the trustee. You signed these documents on, you know, the financial condition. Blah, blah, blah. And he's like, what? No, I didn't. Mua. And they actually had to strike his response from the record because it didn't make any sense. And they continued the questioning later. But the document that they showed, Jr. when he was on the stand, they brought it up on the overhead or whatever, is a document signed by his father, former President Trump. And it was a document that reinstated him, the former president, as a trustee of the

Trump revocable trust. And it was signed on January 15, 2021. So I tweeted that document and I said, does this mean Trump knew he lost the election? And Andrew Weissman responded, a bunch of people responded, there was a, everybody kind of jumped on this kind of all at the same time. Like this seems like this document might be important to Jack Smith because why would you sign back on as a trustee of the Trump revocable trust on January 15, 2021, a week after the insurrection

if you didn't think you lost the election? Exactly. Why would you rescind the action that you had taken when you became president, you took an action allegedly designed to recuse you from the business of your private company. And on the 15th, you rescinded that action, effectively and legally reinserting yourself as running your private business. Why would you have done that on January 15th? Unless you knew is time to go back to work in the private business because the president thing is over.

Yeah, I think it's a really interesting piece of evidence and throw it on the pile. Why not? I mean, it would be amazing for cross examination. If Donald ever took the stand, I would have fun with that. Oh, yeah. I mean, he would, you know, he would be like, well, I was still, I didn't lose, but the rigged election was kicking me out and I had to go back to my job, you know, whatever. I don't know. He'll come up with something. But I do have one bit of breaking news

before we get to the listener question. And this is just going to surprise you, Andrew. Because this is just breaking now. But I don't know. Maybe you've seen this. You are in Bangkok. So I don't know. But did you see that Mr. Mark Meadows,

remember, he was given limited use immunity for his testimony. And ABC reported, we talked about this last week, they said, Hey, your sworn testimony contradicts large chunks of your book. Well, his publisher is suing him. They want more $350,000 advance back. They want their $600,000 back for something else. They want a million bucks out of them for the lies that he told in his book. So his publisher is suing him because of this reporting and his limited use immunity testimony that proves his sworn testimony contradicts so many things in the book. They're suing him for quite a bit of

money. Ouchy, that's not going to feel good if you're Mark Meadows. No, I have not seen it. He's not seeing the Google Bill's page. And guess what, the limited use immunity, not going to protect you from that civil suit. Wow, that could be really uncomfortable for him. So sorry. Yeah, I know you don't know what to say. You think like bummer.

Yeah. And I'm not a huge fan as you might, uh, as you might guess. Well, we'll see. All right. I'll give you my one mark meta. A story. Do we have time for that? Yeah, we do.

Go. So I had to go in and get questioned by a combination of house oversight committee and house judiciary. So you know, they always talk about like the house judiciary committee is being like the clown car. Imagine combining the clown car with the clown SUV of the house oversight committee. But I think it was like eight hours of testimony in which most of

it was engineered by Meadows. He was kind of the ringleader for the Republicans on, I think he was oversight for that one. And you know, it was just the typical horrible stuff that, you know, they try to grind you down. And at the end of the testimony, it's about to leave. Meadows comes over. It's like eight hours. Like you just exhaust it. Totally smoked.

You just want to get out of there. Meadows comes over to me and puts his hand out and he's like, hey, I just want to tell you, thank you for your service. And you know, I really think, you know, the, I think so highly of the FBI and the work that you've done there. And, you know, all this is one thing. But, you know, I'm really on your team. I used to be a prosecutor.

I know what you guys go through. Oh, yeah, this whole, like, you know, me and you. Where is it saying? I wish you could see my face right now, listeners. I wish you could see my face, like, excuse me. Like, when he went to shake your hand, did you do the thing where you take your hand away? And, like, brush your hair out of your face? Yeah, for sure.

And I just, having been trained well by my boss's at the bureau, I just shook his hand and said, yeah, thanks very much. And then got the hell out of there. But this man's, I say this only because this man's ability to take two completely opposite sides of the same issue, like in a quickness that would induce whiplash is legendary. And so now, how do you think about what you wish you could have said? Oh, you know, not often, only several million times since that day, but, uh, yeah, I've

seen him, you know, get caught in these really uncomfortable contradictions. Let's call it, let's not say lies. I'm not going to be judgmental, but contradictions that he finds himself in often. And I just always think back to that moment. I'm like, yeah, of course, he's the, say anything to anyone guy, right? So I think he could be a handful as a witness, to be honest, because this track record of saying contradictory stuff is not gonna help him. But nevertheless, he probably also has some amazing evidence

to offer as well. So we'll see how that one goes. Well, he's the only one with the decent lawyer. So yeah, we will see how it goes. What do we have for a listener questions today? By the way, we're gonna put a link in the show notes. If you have a question, you can click on that link and fill it out for us.

Yeah, so I've got a couple here. They really hit on two issues. Really good questions this week, a bunch of them. So all right, so let's start. So first one comes to us from Karen. And Karen says, hi, A.G. and Andy, the two best looking legal analysts in the pod sphere. And then she puts in parentheses,

is that enough sucking up to get my question asked on air? Apparently. The answer is yes, it is. There you go. She says honestly, I love your show. My Sunday morning routine always includes the show. She goes on to say it, so I know your show is not necessarily

about the Georgia indictments, but recently Sydney Powell pleaded guilty. She then started to walk back her guilty plea, admitting that she still believes the big lie and she called her plea deal an extortion. Can Fanny Willis's office rescind her plea deal and prosecute her anyway? Similarly, Brian writes in,

thanks for all your thoughtful insights on all things. Jack, I'm learning a lot this week. You discuss the implications for the Georgia plea deals of cheese and crackin, which may be the best name I've heard for Kenneth's cheese bro and Sidney Powell together. Then he goes on to ask if they do not fulfill their obligations as witnesses what happened. So same basic issue, if they get on the stand

and take the fifth, can their deal get tanked? You know, it's, I don't know that we know the answer to that yet because we don't, I don't think they've released the actual text of their agreements. No, but they're coming because I know that, um, McAfee has put out an order to release all that stuff. Um, but if they take the fifth, I think Pete and I talked about this over on cleanup on 045, they're actually possibly potentially, it depends if they're still on the hook for crimes and other jurisdictions,

right? Because if they are still possibly on the hook for crimes and other jurisdictions, they have absolutely every right to take the fifth amendment when testifying in Fulton County. Yes. The only caveat to that would be, well, it's not, it doesn't contradict it at all. If as a part of their plea deal, now remember the plea deal is just a contract

between the defendant and the prosecutors. It's not law, but it's a contract so it can be enforced. If as one of the elements of that contract, they waived their fifth amendment right, then they won't be able to raise it without losing the entire deal, which could result in pulling back their pleas to these lesser offenses and return them to the state of fully charged defendants. And presumably, they've already made statements to the prosecutors. They've had to have been, they were, we know, interviewed by the prosecutors.

So they've already made statements likely under oath that could then be used in that follow-on prosecution to convict them. So it's still, it seems a little bit attenuated, but it still provides a pretty strong incentive to not just go in there and pull the rip cord by claiming the fifth. So I think that's how that would work out. In the reason for that is because if they were only, if their crimes were only like, you know, sequestered down in Fault and County, they wouldn't be able to take the fifth because they wouldn't have any threat of prosecution elsewhere. So that's why they were able to take the fifth.

But what about Sydney talking about the big lie and talking about the case and then saying that she was extorted, I mean, what kind of line is she creeping up to with that? Not that. Yeah, so that's, that to me highlights the difference between Georgia and the federal system. In the federal system, you sign up as a cooperator, you kind of come to a deal with the prosecutors,

but you don't get to benefit until the complete end of any possibility you had to provide cooperation. So if you start like, you know, talking smack about the case and the prosecutors and essentially denying your culpability by making statements like she has, that's the prosecutors are not going to give you the benefit of your cooperation. Because at the end, when they write that letter to the judge laying out all the good things that you've done, you don't want them to include in that letter, but she doesn't really believe in any of this stuff because she's continued to talk on,

on television or on our blog or whatever it is. But I think in Fountain County, the stipulations where you can't talk to anybody about this case, you can't talk to any other witnesses about this case and you can't talk about this case. But here she is talking about it. So, I don't know. Yeah, it's problematic. And if I were the prosecutors, I'd be wanting to do something about it,

but I'm just not sure legally what they can do. She's already pled to that stack of misdemeanors. So she's already received a good deal of the benefit she's likely to get from cooperation. So can I unwind the whole deal over it? I don't know the answer to that, but that's probably the question they're confronting right now. Yeah. I assume that Fannie Willis will make a move if she intends to and pretty soon. She does not seem like a woman who's going to take a lot of shit. I wouldn't just be perfectly honest.

I so I can imagine they are considering all their options right now. All right, so one more, and this is another question that came up from a bunch of folks. This one comes in from Gwen, and Gwen says, thank you for your fascinating commentary on Jack News. It makes my Sunday. My question is, how practical is an advice of counsel defense for Trump or anyone else? How would Trump testify? Wouldn't the lawyers also have to testify? Christine E writes in with a similar question. She says, Trump surrounds himself with attorneys, but how are we to know who actually represents him in legal capacity? Isn't this important to establish when he claims defenses that are attorney-related

like advice of counsel and things like that. So let's go backwards here. Christine's question, how do you determine if someone actually represents him? It's essentially another issue of fact that the jury will have to sort their way through. You don't have to have an attorney engagement agreement to have an official attorney client relationship. Most good attorneys will have you sign an engagement letter when they start representing

you. It lays out kind of the terms of the representation. But if you receive legal advice from someone, that relationship in a legal sense kind of exists. It's almost like in Fourth Amendment law, when you say you have a right to an attorney when you're being subjected to custodial interrogation. And what does custodial or being in custody mean? Well, it depends on what the defendant would reasonably believe, right?

So it's, you analyze that like, is it reasonable that the defendant thought he was in custody when you threw him handcuffed into the back of a police car, something like that? So in this case, a lot of it would come down to like, what a reasonable person in the position of the client under these facts have concluded. Would they, in fact, have concluded that this person was representing them or providing them with legal advice? So it's a pretty broad standard.

It doesn't require an engagement letter. As to how practical the advice of council defense is for him, I think it has top line appeal and therefore maybe jury appeal. Like, hey, I was just doing, I simply did what the attorneys told me to. I was relying on competent professional attorneys who are representing me, you know, that, that seems to have jury appeal, but the devil's in the details. It would require that he, it could put his attorneys in a position of having to then testify since they are defendants in the matter, like in the Georgia case, not in the federal case, but in the Georgia case.

And then you're, you know, you are waving essentially attorney client privilege over those conversations that form the basis of that defense, because you have to be able to testify about what you said and what they told you. And so once you violate attorney client privilege in that way, now everything that you said with them comes in. If they take the stand and testify, you could be creating bigger problems for yourself. Yeah. And let's remember, Jack Smith has filed a motion with Judge Tanya Chutkin

to force Donald Trump to notify the court of a use of advice of council defense by December 18th, because they need time to, they, you know, Jack Smith says, we have 25 people, witnesses, lawyers, lawyers by proxy, a family member. We have 25 people who have asserted attorney client privilege

and our privilege logs for these folks. If you are going to assert advice of counsel, we need to know who, we need to know early because that means you are giving up all of your communications with those people who you consider to have an attorney client relationship with. We need to gather all of that evidence and all of those documents. We need to gather all of that evidence and all of those documents.

We need to investigate all of that evidence and documents. Then we need to take whatever actions we might take as far as maybe inditing other people or maybe adding charges to your pile or deciding not to bring any additional charges. And then we need to have time to enter that into evidence, which is due on 1218, so that it can become part of discovery, which is why they want to force him to do that. And they say that they're not taking away his right to have a secret cool defense

because his lawyers have been blabbing all over God's green earth that he's gonna use an advice of counsel defense. And I'm pretty sure Judge Chuckkin will grant this in some capacity, at least in part. And so if you want to kind of look to see what the consequences are, it would be really good to read that filing from Jack Smith as to why he wants Donald Trump to have to notify the court that he's going to use that defense in enough time for them to gather all that evidence, make prosecutorial

decisions, give over the discovery before trial. Yep. Full on. It's a great question. Raises all kinds of issues. And invariably, it's going to be one we see played out at least in Georgia and who knows maybe in the federal case as well.

Yep. We'll see. I think probably help. His bluff has been called and I think by December 18th, I'll say, I'm not going to use an advice of counsel. He's already agreed to hand it over in January. DOJ is still trying to get it in December, but whenever he decides to know or whenever the court decides he has to notify them, he's just going to be like, no, I'm not going

to use it. Thanks. It'll be because you're right. He could go on the stand as lawyers could go on the stand. All of that communications gets handed over to Jack Smith, which otherwise he wouldn't have been able to see before. You sure, buddy? You sure you want to, you want to play that hand?

You want to play that? Because that could go in a direction not very good for you. Yeah, excellent questions. Thank you, everybody, and thanks everybody for listening. If you have a question, again, there's a link in the show notes for a form you can fill out to send us a question. We really appreciate it. I hope you have a question, again, there's a link in the show notes for a form. You can fill out to send us a question. We really appreciate it. I hope you have a wonderful vacation in your Bangkok.

I think you're doing Vietnam and Cambodia. I think you're going everywhere. Yeah, we're moving around a little bit, seeing a bunch of beautiful places over here in Asia and been looking forward to this for a while. But I will not miss my duties here on Jack and one one way or another will be Dillon in from someplace different so tune in again next week. That's so cool of you Yeah, for the next two to this week and the next two weeks You're gonna be a remote from across the world So thank you so much Andy for being here with me and thanks to Brian Greer for joining us today

We'll see you next week. I've been Allison Kill. I'm Andy McKay We will see you next week. I've been Allison Kill. I'm Andy McKee.