Jack - Episode 52 - Total Protonic Reversal

Episode Date: November 26, 2023

This week, Trump’s motion to have references to Jan 6 stricken from the DC indictment is denied; there’s a response to DoJ’s opposition to televising the DC trial; Trump’s Fulton County legal team wants access to DoJ’s discovery in the DC case; Trump files motion to dismiss the DC charges. Plus, we have some great listener questions.See Brian Greer’s Charts - It’s Complicated with Renato and AshaIt's Complicated Episode 51 | Cannon's Shenanigans | Renato Mariotti & Asha RangappaBrian Greer’s Quick Guide to CIPAhttps://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/ A couple of terms to remember:Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady 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 AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

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. his Sunday, November 26th, then I'm Alison Gill. And I'm Andy McCabe. Alison, this is the one year anniversary of the Jack podcast. Come on. Give it up for Jack. Yeah. If you tune it for a year, he worked on Thanksgiving last year. He worked on Thanksgiving this year. Uh, I can't believe it's been a year. It's flown by.

And there's never a shortage of news in the Jack Smith investigations to talk about. I thought today would be like, let's just hang out and talk about the last year. No, it's filled with motions and rulings and more things going on. I thought it would be a chill day, but we have a lot to cover. But let's listen to the first couple minutes

of our very first episode from a year ago today. Andy, if you had told me five years ago, as I was setting up $59 microphones at my kitchen table to record the very first episode of Buller She Wrote back in November of 2017, if you told me back then that in five years time, there'd be a second special counsel investigation, and I'd be hosting a podcast about it with you, I'd have never believed it. But here we are. Yes, here we are.

So let's talk a little bit about the podcast. There's our first episode, and it will serve as a kind of intro into who Jack Smith is, what a special counsel is, what they can do. What are some of the main differences between the conditions here and the conditions during the Mueller investigation. And finally, what makes this special counsel different? And since then, we have the June 8th indictment of Donald Trump and Walt Naughta and the documents case. eighth indictment of Donald Trump and Walt Naughta and the documents case. Then of course, Trump, Naughta and Dale Lavera were hit with super seating indictments in Florida for obstruction on July 27th. And then of course, August 1st, Trump was indicted in DC on four counts

for his efforts to remain in power after he lost the 2020 election. Yep. And at this moment in time, the DC case is set to go to trial and march of 2024. And the documents case is scheduled for May, though with the latest delays in SEPA deadlines ordered by judge Eileen Cannon or alien cannon. That date seems far less likely to hold in the DC trial date. date seems far less likely to hold than the DC trial date. What we still don't know about in these investigations is whether or not the unindicted co-conspirators in the DC case will be indicted or when, if they are indicted. We also don't know whether special counsel will pursue the fraud charges against Donald Trump for raising money on the big lie, what rep Zloafgren called the big fraud, because he's pulled some subpoenas related to that arm of the investigation.

So it's not looking likely. But we also don't know whether the March DC trial date will hold because of potential interlocutory appeals still being briefed. Yeah. And speaking of those briefs, we're going to go over some of them today, including Trump's response to Jack Smith's opposition to dismissing the DC indictment on constitutional grounds, one on statutory grounds, and one for selective and vindictive prosecution. We also have Judge Chutkin's ruling on Trump's motion to strike the January 6th language from the

indictment. Yep, yeah, and we're going to cross the streams today. I know they say never cross this. Trams, but they say that in and goes buster. So must be true. It must be. If Ray, if someone asks you, if you're a god, you say yes. But we're going to cross the streams because the Department of Justice has filed a notice

with the DC appeals court about the fight. Well, this for the DC appeals Court about the fight, well, this, for the DC Appeals Court and the fight over Judge Chutkin's, don't call it a gag order. Limited gag order. That's right. Alerting that court, the DC Appeals Court, to something that's going on in the fight over judge and gore-ons gag orders in Trump's New York State Civil Fraud trial. So we're going to cross those streams.

We'll have that letter. Plus, Trump's response to it. And again, just like Thanksgiving, when I said he was working on Thanksgiving, that's what special counsel's office in DOJ was cooking up when we were all, you know, enjoying Turkey or whatever we were eating. That's right. That's right. Now there's also been a crossover between the Fulton County DA's case in Georgia and the DC case. Trump's Georgia lawyers want access to the discovery in the DC case. And we'll talk about that filing as well. And lastly, of course, we have the media's response to the DOJ's desire not to have the DC trial

televised. So a lot of stuff on the list today. I think we should probably dig in. But before we do, how about, I got one question for you. What was the most memorable, maybe goofiest, who knows, development in the Jack Smith saga over the last year? What jumps out in your mind is one of the things that we covered or something that just kind of rings true to you with this whole thing. Oh, are you going to answer it too? I am. I will answer it.

Okay, cool. All right. The most memorable, you know what? For me, the thing that sticks out the most is when I got the sup from Jack Smith himself at the, I was in person at the hearing for the trial date hearing where they where she set the trial for, yeah, for March. And he was there surrounded by his six bodyguards. And I'm standing up. We're on a recess. And I almost got kicked out of the court for having my phone out, right? So I'm all, I'm just like, you could have gotten hurt.

Jail for having your phone out, but just, just to be clear, I'm not trying to, I'm not trying to upset anybody, so I'm just standing around being quite talking to Glenn Kirshner a little bit, talking to my friend Harry Don, a little bit, and I look over and Jack Smith is standing facing the back of the courtroom and I see him, we meet eyes and he gives me that head nods up. And that, I was like, whoa. And then that, I just like, whoa. And then that I just was like sweet. He either he knows who I am and he's told his bodyguards to be very wary of me

or he's just being kind and ordering me it. Yeah, it could just be courtesy, but you know what? I would take it however you want. I think it's a little, I know who you are, I know what you're doing, love the podcast. I mean, just, you know, he's got it. He's got it, he's working every day, Jack Smith. I think the funniest kind of thing that I remember over the last year was the day we were in studio on special coverage

in the 12 o'clock hour, like 12 noon. And it was the day that the target letter for the DC case came out. So I want to say it's like July like 18 something like that. And so we're in to talk about that. We're sitting on the on the panel. John King is down at the other end of the panel from me. And all of a sudden, there's a break to the video, exclusive on CNN, Jack Smith,

stuff in its subway, to get himself a sandwich. It's just so funny. I actually thought it was a relevant thing to put up. It was just a funny kind of contrast to the seriousness of everything else that was going on. And then John King famously, like puts his John King spin on it, like, imbuing it with all kinds of significance.

He's like, this is a message to Donald Trump that, you know, we're just going to keep doing our jobs. And, you know, we're not fancy boys like him or something. I can't remember what John told me. It was something to that effect. And people went, we're career prosecutors, we eat it subway. Yeah, for sure.

People went nuts about it. I don't know. Look, it's a horrible CNN. They covered John, you know, Jack Smith's lunch run, which it was just funny. I thought the tepis that brewed, you know, that came up in the days after was kind of hilarious. But you know what, I'm not, I'm not, I don't know anything, so I'm not revealing anything,

but I'm just going to say in my own kind of observations of these things, highly unlikely that CNN and Jack Smith's lunch runs would have just by coincidence been in the same place at the same time. So that's all I'm leaving out there. So you, so sometimes things that appear to be coincidental are actually somewhat intentional. And if that, if that's true, then it puts maybe a little bit,

maybe John was onto something there that's all I'm saying. That's funny. Yeah, I remember, I think it was Kyle Cheney at Politico. He's like, everybody, What do you think this means? You know like? I'm like well clearly there's gonna be an endive. We got a cold cut combo. It means one thing. Yeah, you're gone from target to a defendant pretty soon. Uh-huh. Yep. Yep. Yep. All right. That's fun. That was fun. Thank you for thank you for that walk down memory lane. I forgot about the subway sandwich

That was for sure for sure for sure., where should we start, A.G.? Where are we going first? Well, I think we should start with what, in my opinion, is the most significant ruling from Judge Chuckkin in the DC case this week. And that's her ruling in the matter of whether to strike January 6th language from the indictment. Now, you'll remember, Trump filed a motion to dismiss language or to dismiss or to strike, I should say, language about the insurrection on January 6th, because he argued, I, I, you didn't indict me for insurrection. You didn't indict me for seditious conspiracy. And

that language is now superfluous and prejudicial and incendiary. Uh, well, DOJ's response gave us the first indication that the riot on January 6th is actually going to be like front and center at the case in chief for the prosecution and that special counsel intends to not only prove that Trump incited the mob and use it as a tool to obstruct the peaceful transfer of power, but also he means to use it as a tool to prove Donald's intent. Therefore, the language is you know necessary. It's not prejudesional, it's not incendiary. In fact, the culmination, the one-six is the culmination of Trump's conspiracy to deprive us all of our rights, that two-forty-one count, and to obstruct the official proceeding,

and to defraud the United States, all of the four counts in the indictment, and everything that kind of goes with it. So I thought that this ruling was probably one of the more important rulings to come out of this case. I agree with you. We roll into it thinking about that dual standard for an issue like this. It's like if the language is irrelevant and end prejudicial, then it can get removed. But Chuck and told us exactly what she thought about that

when she issued her decision this week. In her decision, she states, defendant has filed a motion to strike inflammatory allegations from the indictment. The motion asks the court to strike paragraphs 10D and 105 through 113 of the indictment. The court will deny defendant's motion. She goes on to say, regardless of whether the allegations that issue are relevant, defendant has not satisfied his burden to clearly show that they are prejudicial.

He argues that sharing allegations with the jury may result in prejudice at his trial because members of the jury may wrongfully impute fault to him for the actions at the Capitol on January 6th. But consistent with its past practice, this court will not provide a copy of the indictment to the jurors, eliminating that source of potential prejudice. She goes on to say, defendant 16-page reply in support of the motion, despite making numerous inflammatory and unsupported accusations of its own, such as that President Biden directed the Department of Justice

to prosecute his leading opponent for the presidency through a calculated leak to the New York Times. That's out there. He devotes only a single paragraph to the prejudice requirement. His sole argument is that even if the jury does not receive a copy of the indictment, quote, voluminous evidence exists here that the jury pool has been and continues to be exposed to the indictment and its inflammatory and prejudicial allegations through media coverage relating to the case.

But defendant fails to cite even one example of that evidence. In any event, the voidier process, that's, of course, the jury selection process, will allow the court to examine and address the effects that pretrial publicity, including any generated by the defendant. Ding, ding, ding. Has had on the impartiality of potential jurors for these reasons. Defendants motion to strike inflammatory allegations from the indictment is here by denied.

Wow. Another tour to force from Judge Chutkin. Yeah. I want to put a couple of pins in here because first of all, he's saying the New York Times leaked to the New York Times. We know how he feels about the New York Times. Remember that for a later filing that comes up where he praises the New York Times. And also that what I think is interesting is that he says that well, his sole argument is that the jury, even if they don't receive a copy,

but he's talking about if the jury receives a copy because he say that the jury may wrongfully impute or fault to him, the actions, the capital, January 6th, but that is something that Jack Smith intends to prove. I mean, he said in his filing about this, we intend to prove that Donald Trump caused the riot. He caused it. It's his fault. It's solely his responsibility.

And so she didn't even touch that. I know I could feel like she wanted to. Like, bro, you did. That's what they're going to prove a trial. But okay, we won't go there. Right. You could just kind of can feel it between the lines. But yeah, I don't think that Donald Trump had it.

I never thought he had a chance with this particular motion, especially the way DOJ and Jack Smith laid out the fact that the riot on January 6th is central to their case. Yeah, no question. I think it's a high bar to get language stricken to begin with as we've talked about all along. He doesn't even come close to reaching that threshold. The claims of voluminous evidence that the jury pool has been exposed to the indictment

and inflammatory prejudicial allegations, what evidence? He says, there's voluminous evidence shows none. And this is exactly the kind of thing that you do sort out in jury selection. You're going to ask, you know, jurors, potential jurors have to fill out a questionnaire. They get asked questions, both in the questionnaire and then under examination by the court. There's whether or not they've been exposed to a lot of material from the case or publicity about the case. But most importantly, if they have been exposed, whether they can still be impartial. And if their answer is yes, yeah, I've seen things,

I heard reporting about the indictment, we'll have you, but I believe I can be impartial, then they are perfectly qualified to serve. So you don't get to cut language just because it makes you look bad. There's going to be language that makes you look bad in a criminal prosecution of you. You just have to kind of accept that, I think. So yeah, she's in the right place. And I like that she was like, or should that you say, buddy? Yeah. Because here he is saying, this indictment will make the jurors think things,

but all the stuff I say publicly, and calling everything unfair, that's all totally fine. It's perfectly fine to allege a massive conspiracy directed by the White House that resulted in this. Basically, that would've resulted in an improper influence on the judiciary. That's okay and not inflammatory, but it's the bad thing you say about him are.

So she's clearly pointing to his hypocritical double standard here. Those things don't help you with the judge, and clearly he's kind of lost the battle of her to have her respect at this point. I think they know that these appeals and motions are really about creating a record for what he hopes will be the next round of judges that looks at this, which should be the political. That's what I was just going to say, is that again, these are just placeholders for him filing an appeal. So later on, he can say, well, they didn't strike this language, and that's why they found

me guilty. So that's how it's going to go. All right, we need to take a quick break, but we have a lot more to get to. Everybody stick around. We'll be right back. Hey, everybody. Welcome back. All right. Let's talk about Trump's motion to dismiss on constitutional grounds. As we know, DOJ opposed that and Trump originally had until November 16th to respond, but filed a motion for leave a court to get another week and Chuck can grant it him another week. So those were due on the 22nd, because he had to reply to the burdensome Department of Justice omnibus response to his motions

to dismiss on constitutional and statutory grounds. And so he also got an extra week, by the way, to respond to DOJ's opposition to dismiss for vindictive and selective prosecution. So those three were due on the 22nd. I thought, because he complained, oh, we have to respond to the 65 page omnibus now, instead of the two individual motions, to which DOJ pointed out, but if we responded individually, it'd be 90 pages. Now it's only 65. But I thought he was going to respond to the whole omnibus, but he didn't.

He responded in three motions or responses, I should say. And so we have all three of those. Let's start with the constitutional grounds. These are all just the same arguments that he's made in his initial motions to dismiss He says the First Amendment guarantees that the president just like every other individual may speak out on the subject and On this subject and call Congress to action. That's how our country works And why the Constitution prohibits the state from acting as the arbiter of truth on matters of public concern Yet that's exactly what the prosecution seeks

Accordingly the indictment is unconstitutional on its face and must be dismissed. Additionally, even if the First Amendment permitted charges on this basis, which it emphatically does not, President Trump's acquittal before the United States Senate forecloses retrial before this court, as do the Constitution's guarantees of due process and fair notice. All charges in this indictment rest solely on the allegations of core political speech and advocacy. We've already heard DOJ's arguments against that. Yes. And the DOJ is right here. He goes on to say every allegation in the indictment, including all the counts charge, centers on the prosecution's

theory that President Trump committed fraud or obstruction in quotes by repeatedly contending that there had been fraud in the election. That's not true though, Andy. Jack Smith explained in his briefings and in the indictment, you can say the election was fraudulent, but you can't use knowing lies to get people to do things that are illegal. That's right. but you can't use knowing lies to get people to do things that are illegal. That's right. Remind us again of the difference between saying, I believe the election was fraudulent

and using those knowing lies to obstruct an official proceeding or commit some sort of a crime. Yeah, I guess the difference in the most kind of short form possible, the difference between those two things is one of them doesn't matter and the other one is a crime. So if you think about every fraud case, every fraud case involves somebody using

to see trickery, what have you, to take something from someone else, their property, their money, speech. Yeah, in almost every case. I mean, I guess it's possible that you could perpetuate that sort of fraud or trickery without speech, but as a realistic matter, it always incorporates speech, okay? A statement, a writing, video, whatever, communicating to the person you're trying to steal stuff from.

And in almost every single fraud case, certainly everyone I've ever seen, every defendant always tries at some point to launch this, but I actually believed it thing. I couldn't have had the intent to deceive this person, to steal from them if I truly thought what I was saying was real and accurate and truthful. You still can't break the law though. That's right.

It doesn't matter. As a legal matter, that is not a defense to a fraud. Like the OJ thing we always talk about. What they're trying to do with comments like that is appeal to the jury to plant the seat of doubt and one jurors' mind that I don't know. He seems like a nice guy. Maybe he's telling the truth sort of thing. But as a purely legal matter, it's not a defense.

The fact that you, you know, we've said it a million times the bank robbery example, you the fact that you believe that, you know, that was your money in the bank, doesn't permit you to take out a gun and threaten the teller and demand your money back. It's the same thing here. He's used lies and obstruction in an effort to obstruct. What he was charged with in the indictment was not just purely a statement. It was the acts of trying to

put pressure on Mike Pence to get him to lay the certification of the vote, or the act of coming up with or endorsing or approving the false electors scheme. There's what, six different things. Sending the mob to the capitol. Right. So, that's the difference here. So all this first amendment argument, I mean, maybe it's got some jury appeal. If you're looking for kind of jury nullification, but it's, it's not, uh, there's no, there's no beef.

Well, I gotta imagine, I have to imagine if every single fraud case you've ever seen, eventually, this comes up, but the, the, the prosecutors are ready to people get convicted anyway. That's kind of like the guy who was Telling people to you could vote for Hillary by texting Right, that's not free speech because you were Respiring to Against people's right to vote. Yeah, is it is it speech? Yes? Is it protected by the first amendment? No, there's all kinds of limits to First Amendment protections and speech used to trick and deceive people out of their money or property or their

vote or their access to the political process. That's not protected speech. Yeah. Well, he goes on to make those arguments the same ones again. He says claims of fraud in the 2020 presidential election are protected speech. The First amendment problems with the prosecution's novel and unprecedented theory. No, we've indicted a lot of people on this of criminal liability extend not just to the indictment but to the underlying criminal

statutes charged herein. If the prosecution is correct and those statutes criminalize acts of core political speech and advocacy as charged in this case, those statutes are faisially unconstitutional under the First Amendment. Now, the impeachment judgment clause and principles of double jeopardy bar the prosecution of President Trump after his acquittal by the Senate, no. And the indictment violates due process principles of fair notice.

Again, no. So same arguments. I didn't see anything new in this filing. Yes. Yeah. Re-gurgitation of what we've seen many times. In Buckleman, because you're going to probably see him a hundred more times before this is over. So next up is Trump's response to DOJ's opposition to dismiss the indictment on statutory grounds. And he makes the same arguments as he did in his initial motion to dismiss. So according to the prosecution, robotically encanting the claim that President Donald J. Trump's statements

about the 2020 presidential election were false and that he knew that they were false is sufficient to support its charges. It's kind of a bizarre description of the indictment and what the prosecution is actually alleging here, but nevertheless, you know, remember where you are. Then he goes on to say, the prosecution is wrong. Even taking the prosecution's preposterous allegations as true, President Trump's statements were not capable of quote, tricking or quote

deceiving anyone. The prosecution, which there's probably a lot of January 6th defendants who would dispute that characterization as having gotten up in court and said the only reason they were there is because Trump told them to go to DC. But nevertheless, he goes on to say the proskeution does not show the indictment alleges to see trickery or dishonest means. The proskeution does not grapple with the fact

it alleges political advocacy, not obstruction, which actually it does address that. The indictment fails to allege that President Trump had the requisite actous reiss or men's reya. Those are of course the actions and intent necessary in every criminal statute. Well, I guess they might not if they took all the January six language out of the indictment. It's quite true.

I wanted that in the first place. Good try. That's not working out for you. President Trump lacked fair notice. And the indictment should be dismissed with prejudice. Again, these are just like roundhouse claims, right? notice and the indictment should be dismissed with prejudice. Again, these are just like roundhouse claims, right? It's just assertions of like, we reject what you say about us.

You're wrong, you know, that sort of thing. And their roundhouse claims like the guy in Napoleon Dynamite wearing the American flag pants played by D-Drick Bader. It's like, you don't wanna take a roundhouse from somebody wearing these babies. That's right. Yeah, that's what I think of,

when I think of these as roundhouse. Yeah, it's like, it's like what Judge Chuck had said. You know, there's 16 pages of claims here and none of them address the underlying law and necessary to have the language struck from the indictment. That's basically what this is. As we said at a hundred times, it's just setting a stage for being able to refer back to the rejection of these motions, which I think most of them will be rejected, as grounds

for appeal. Yep. And finally, Trump replies to the DOJ's opposition to dismiss the indictment on vindictive and selective prosecution grounds. Again, say a all arguments. He says the reliable media reports that were submitted by President Trump, which are based on information from other career prosecutors and government officials, demonstrate the unconstitutional nature of the investigation by the special counsel's office and the line prosecutors. If, for example, the New York Times falsely reported that

President Biden told others that President Trump should be prosecuted, then why not give the court and the public peace of mind through the submission of competent evidence rather than a blustering brief that is full of venom but deflects on the core facts. What? The answer is simple. I can't follow this. The answer is simple. The media reports are accurate. So now he's really into the New York Times. Yeah, the paper of record. Okay. He says there's much more than an indication of insidious bias. First, evidence of the insidious and unconstitutional bias at the heart of the prosecution's team, in this case, emerged within days of the 2020 election. On November 12, 2020, Deputy Special Counsel, JP Cooney,

and Senior Assistant Special Counsel, Molly Gaston, signed a letter to then Attorney General Bill Barr in which they declared that allegations regarding election fraud were false. Cooney and Gaston signed that letter as assistant United States attorneys at the US attorney's office for the District of Columbia without any basis in fact or any investigation to support their sweeping claim. Okay. Kunian Gaston are now prosecuting the indictment in this case in which they have alleged senior leaders inside the Justice Department told Trump on multiple occasions that various allegations of fraud were unsupported. They did, they did, and they all testified that they did. In February of 2021, CUNY proposed, this is February of 2021.

Okay, this is a month before Merrick Garland got there. JP CUNY proposed a wide ranging effort to target President Trump that concerned even the FBI. First of all, do you remember Andy when Trump accused Jack Smith of waiting until now to bring this indictment and investigate so he could interfere in the election? But here, he's saying they were looking at it all the way back in February. Yeah. He's going back to a the way back in February of 2012. Yeah. He's going back to a letter on November 12th of 2020. I mean, it's almost three years before he was indicted.

I can't even, like, what is he trying to say here that because these people didn't believe the allegations of election fraud a long time ago, therefore they were biased against him. Well, that watch, because here's what's going to happen. Do you remember when I think it was Carol Leonard came out with her report in the Washington post and the Kyron everywhere was Merrick Garland delays investigation for a year. FBI doesn't open investigation until April of 2022, you know, and everybody was like that. Damn, numeric garland, delaying the investigation blah. Well, here, this is what he's good, he's trying to get at this. He goes on here to say in March of 2021, during a 60 minutes interview

in violation of DOJ policy, Mike Sherwin declared publicly that President Trump was being targeted by the DOJ and suggested that statements from soccer moms had moved the needle. Now, but we can talk about Mike Sherwin. If you want to talk about Mike Sherwin, but he resigned before he was sanctioned for his actions on that interview, right? He also prevented JP Cooney from attending a meeting with Merrick Garland with the day Merrick Garland got to the DOJ. He did not want Merrick Garland to hear what JP Cooney had to say. And then he goes on to say, November 2021, November 2021, senior assistant special counsel, Thomas Windham put forward an investigative proposal targeting President Trump's close

associates, which was met with flat rejection with one FBI official declaring you don't have enough to issue subpoenas. That was a Dan Twono, by the way, a Jim Jordan pal. And in the weeks that followed, rather than recognizing the lack of evidentiary basis for grand jury proceedings, Wyndham discreetly asked a different agency if it might help with the biased project the FBI had declined to pursue. This is when Wyndham went to the inspector general and that is why all these phones were seized by inspector general agents and not the FBI. Yes. For the foregoing reasons and the reason set forth in our opening brief,

President Trump respectfully submits that the indictment should be dismissed on the basis of selective and vindictive prosecution and the alternative. The court should hold a hearing to develop the record regarding due process violations by special counsel's office. So he's also asking for a hearing here. I don't know that he'll get that. Be fun if he did. But he's I don't get where he's coming from here either Andy. He's saying you waited three years to investigate, but boy, you guys really did try to investigate three years ago.

By going around the FBI and the Trump holdovers who refused to help you with executing search warrants and issuing subpoenas. Yeah, by going to the inspector general and the postal inspectors. And I mean, you know, I've been talking about this for a really long time. Like, yes, it sucks that the investigation didn't start until November 2021 when Wyndham got there. And it sucks at the FBI. The truck to Dan Twono was not willing to execute these search warrants and that he had to use the

inspector general and the postal inspector to get that stuff going and to blame marijuana specifically. I think was was out of bounds, but he's now using this as a as a way to sort of prove I guess that they've been after me since the jump. Well, you know, the first answer to that allegation is you were indicted. You've been charged because a grand jury of your fellow citizens, I know the idea that there are other people in this country who have the same legal rights and responsibilities as you.

It's probably never even crossed his mind. But it's true, we're all citizens, and if you're on a grand jury and presented with that, but it's you get the opportunity to consider it, to question it, to ask for more, and then ultimately you vote. And if the majority of you say, yeah, we believe there's probable cause of believe this person committed a crime, that's it, you're indicted. That's not that process. One of the reasons we have that process

is to filter out things like vindictive prosecutions and prosecutions based on improper or illegal motives. So to claim here, so that's kind of eliminates all of this, I think, but put that aside for a second, to claim that somehow the duration of the investigation is indicative of bias. Or when it started. Or when it started makes it bias because you've been doing it a long time.

Would that have been the same for an investigation of someone like, I don't know, Carmine Chicante, right? Legendary head of one of the crime families in New York who is under surveillance and investigated for many, many years before an effective prosecution could be brought against him. And of course, he was convicted and sent to prison. So that's just one of billions of examples, right? It's absurd. This whole thing is, it's not worth the paper it's printed on. It's just not nonsensical to say that because these people have been focused on this for a long time or because they've all had this opinion that the 2020 election was, there was

no evidence of fraud. Somehow that indicates a bias against Trump. It's just nonsense. A whole thing. Yeah. And to use Dan Twono's refuse all to execute the search warrant says as a C I'm right, my guy Dan Twono's refusal to execute the search warrant, as a CIM right, my guy, Dan Twono, and he's also Dan Twono's also the guy who wouldn't let them execute a search warrant at Mar-a-Lago initially.

And that's why they went with the subpoena of the classified documents instead of a search warrant. Yeah, so let's put aside all very good and reasonable and hard questions about how the FBI acted here and specifically the decisions made by Dan Twano and people at WFO. Let's put that aside for a second. The fact that there was a disagreement between prosecutors and the FBI over some phase, some step, some action in the investigation, that somehow is an indicator of bias, absurd. Happens every day.

People have differences of opinions about tactics and strategy, but at the end of the day, this process, it's all put in front of a grand jury of your peers. They decide, and they did pretty resoundingly here. Yeah, so these will all be dismoving. These will be denied. I'm certain. And she hasn't said when she will rule,

it could be at any time. It might be probably not this weekend before the show comes out on Sunday, but I'm assuming it'll be soon. And because you know, DOJ said, hurry up on these because these could turn in and allow into interlocatory appeals, which would have to be decided before trial, and we don't want to hold up the trial date.

So, it's what happens. All right, we're taking another quick break, but we will be right back. Stick around. Welcome back. Okay, something interesting happened this week in the DC Circuit Court of Appeals case, deciding whether or not to lift this day on the limited, don't call it a gag order issued by Judge Chutkin in the DC case. In their appellate brief, the DOJ mentioned the dual gag orders issued by Judge Angeron

in the New York State Civil Fraud trial. So now here comes that crossing of the streams. You've got, you've got DOJ basically putting the New York case in front of the district court that's deciding over the actions in the DC case. So it'll protonic reversal. That's right. Dogs and cats living together, real wrath of God. That'sic reversal. That's right. Dogs and cats living together, real wrath of God. That's just area. That's right. Okay. All right. This is very serious now. After DOJ filed their appeal, New York filed notice with the New York appeals court

outlining 275 single spaced pages of threats received by Judge Angeran and his law clerk. Since the DOJ mentioned that case in their appeal to the DC Circuit Court, they felt it necessary to update the court deciding Judge Chutkins gag order. So they wrote the DC Circuit Court a letter. And in the letter they say, the government submits this letter pursuant to federal rule of appellate procedure 28 sub part J to notify the court of a document filed on November 22nd, 2023 in connection with the appeal of an order imposed in New York versus Trump at all, which was referenced in the party's briefing and arises out of an incident that the district court discussed at the October 16th, 2023 hearing.

So basically they're saying there's this filing in the New York case and it's relevant to issues that we raised in our submission to you. And it's also relevant to questions that you asked at the hearing on the 20th. 16th, sorry. So they go on to say specifically, the government refers the court to exhibit e to the attached affidavit, which is a sworn affirmation by an employee of the New York State Unified Court system assigned to the judicial threats assignment unit, discussing the defendant's October 3rd, 2023 social media post, which, quote,

resulted in hundreds of threatening and harassing voicemail messages that have been transcribed into over 275 single-spaced pages. Because the parties referenced this matter in their briefs and the court inquired at oral argument about the evidence of ongoing threats and harassment, the government respectfully submits Exhibit E and the related documents for completeness as supplemental authority. Yep. Now, of course, Donald Trump just couldn't let this go. He had to write his own letter. And in his letter, and this is again to the DC Circuit Court of Appeals. He says, the prosecution's 28J letter sites a submission in a completely separate case. Yeah, they said that. To the New York Appellate Division,

containing new information that dates to October 3rd, 2023. The letter is an impermissible attempt to supplement the record on appeal with irrelevant information that could have been but was not submitted to the district court below. So you think that because his inflammatory statement that generated all of the threats happened on October 3rd, that it can't be submitted. It should have been submitted in their first briefing, but we didn't know about it until they filed an inquiry. On November 22nd. Yeah, so he's trying to.

We don't have access to the, what was it the New York Judicial Threats assignment you did work until they actually filed it somewhere? Yeah, but he's trying to say that because I made the thing on October 3rd, you didn't include it. They should have put it in front of Judge Chuck in when she was deciding the issue individually, right? Mm-hmm.

To date, he says the prosecution has never submitted any evidence of alleged threats or harassment to any prosecutor, court, staffer, or potential witness in this case. Mm-hmm. I think he has. This fall short of the solidity of evidence required to justify prior restraint. Moreover, the cited affirmation, albeit irrelevant, concedes that Mr. Trump did not directly threaten Ms. Greenfield, that's the law clerk, and instead describes speech by unidentified independent third parties.

This confirms that the prosecution seeks to impose a speech burden based on audience reactions. Well, yeah, we're trying to show that what you say causes violence, which is simply government hostility and intervention in a different guise. The prosecution ignores that the New York trial the judges asked for evidence of this nature, okay. Yeah, and they got it. In the D.O.J. filing that we went over last week, they went through, like, for instance, an election official, you know,

after such and such a posting, an election official in Georgia received threatening messages, and that official, you know, told us, this is how they felt about it. Like, citing the threats that actually happen threatening messages and that official, you know, told us this is how they felt about it. Like citing the threats that actually happen as a result of his post, that's the point of this entire thing. That's the point of the guy. And that's why the appellate court in that 6th, October 16th hearing asked for it, excuse me, November 16th hearing, go on to say,

the prosecution ignores that the New York trial judge and the principal law clerk are judicial officers and that the principal law clerk violated New York law by engaging in forbidden partisan activity while that case was pending. Emphasis added. The special counsel has brought an inflammatory lawless indictment has made false and misleading statements about President Trump and has leaked confidential information in order to harm President Trump. Both the indictment and the gag order

represented on unconstitutional attempt to silence President Trump, their clearly election interference. And this is why this brought up a question for me. Again, they accused the Department of Justice of leaking confidential information to harm President Trump, but it offers no evidence of that fact. And that feels like like I would want to file sanctions against the lawyer who said that. Do you know what I mean? Like, do you remember all the election fraud

claims that the Kraken elite strike force filed in Michigan without doing their due diligence to check and on the veracity of those claims? As as part of their job as a member of that bar. And here we have some we have for now a second time this week, a lawyer saying that the DOJ has leaking confidential information to harm Trump, not providing any evidence. And they can't, if they had evidence, they'd put it in here, especially in their selective and vindictive prosecution BS filing. Right. So they're just making false accusations without vetting or they're knowingly wrong. And that I feel like is a sanctionable thing, but I don't know, maybe I'm just looking too far into it.

You know, it's a really, it's a very much of a gray area, right? Yes, they're throwing out all kinds of unsupported allegations. And in the least case, those unsupported allegations should have absolutely no bearing on how the court decides the matter that's in front of it. I really don't think they will have any bearing on that. And in fact, in most attorneys would never do this because they don't want to lose the confidence and the credibility of the court that they're in front of. Like if the appeals court gets the idea like, these guys are just ranting and raving

and there's no facts behind what they're saying, they're less likely to take your argument seriously and rule in your direction. So most people wouldn't do it. As for the question of sanctions, there's a really kind of a thin, nebulous line between like, you know, strenuous kind of vigorous advocacy for your client.

And when do you go over that line and now you're into like wasting the court's resources, maybe putting other litigants under undue burdens to respond to things that are nonsensical. So, you know, nobody really wants to cross that line to start throwing sanctions at lawyers because it just opens up all kinds of other fights. You definitely get the sense that the system here is just trying to wade through these things to stay on track.

So I think there's a little bit of entropy kind of working against you there. Could you end up in a situation with sanctions? Absolutely. You could. And certainly if it keeps going in this direction, we might see that. But I think we're probably a little bit short of it so far. But I don't know. Look at the other case where they filed what would you get Trump and Alina Haba? A couple hundred thousand dollars worth of sanctions. A million. A million. That's right, 900,000 something. Yeah.

So it does happen. I think if they did it here, be immediately pointed at as yet another violation of Trump's first amendment rights. So like nobody wants that battle as well. I think that's why they're poking at it. Yeah. Yeah. All right.

We have just a couple more stories and a couple of questions, but we do need to take one last quick break. Everybody stick around. We'll be right back. Welcome back. Okay, Allison, to round out our discussion on the DC case, we've got to touch on the media filing their response in support of televising the trial. So to kind of reset this one, the media is the movement on this motion, right? This consortium of media companies gets together, they file a motion in the DC case to have it televised. DOJ comes in and it poses that motion, then Trump in a slight of hand submits a filing saying he supports it. So this week we have the government asks this court to forbid video and audio coverage

of this trial that would allow the public and future generations to see and hear for themselves, the evidence and arguments. Although the government argues that settled law forecloses this kind of coverage, that is incorrect. There is no valid reason for such a categorical ban of video and audio here, especially given that former president Trump has now himself urged this court to allow video and audio, obviating any concern about his due process rights to a fair trial. So again, this is the media folks arguing that, hey, there's nothing that prevents this. And now you have the defendant himself, the one person who could make the argument that televising the trial would violate his constitutional rights, he's actually said he's for it.

So let's go ahead and do it. So again, media companies go on to say, the government argues that the court should deny such coverage because Mr. Trump could try to exploit such coverage for a public relations campaign or to turn the trial into a carnival. Allowing for audiovisual coverage will also counter the risk that the parties or others could falsely portray what happens during the trial. I think that's actually a decent point. But It is a good argument because with the government, like you said, is arguing that they should deny televising it because Trump would exploit that coverage. The media is saying here what kind of the rest of us are saying.

Actually, it would allow, it would prevent Trump from being able to exploit the fact that the DOJ can't talk about it publicly. It would prevent him from trying to turn this into a lie and obfuscate. Yeah, it's harder to spin what happened in court that day when everyone or anyone who wants to could just watch it for themselves. So they want to say, this court should one, permit NBCU news group to create a video and audio record of the March 2024 trial of former President Donald J. Trump via a pool camera and broadcast it to the public with only limited delay necessary for this court to assess

whether compelling interest justify withholding any portion from the public for a limited time, or, too, alternatively, provide a live feed of the trial to NBCU news group and other news outlets and authorize them to disseminate it to the public, or, three, at minimum, create a video record of this trial for historical purposes that will be released to the media and the public with minimal delay. So those are their three options, their three asks for what they would like to see. Yeah, and I really kind of like this idea of let us record it. And then you finish the trial, we won't broadcast it until it's over so that we can then argue whatever Trump's going to argue, you know, then argue, whatever Trump's gonna argue,

we can counter whatever Trump's gonna argue about what happened in there. But of course that wouldn't stop him from trying to taint a jury pool or whatever. This jerk could end up being sequestered. I'm sure they'll be anonymized at the very least. So we'll see what ends up happening, but that argument, that they're like,

let us record it and show it later for historical purposes. I'm like, I'm down, I want to televised personally. Yeah. But I thought that was a pretty good argument. Yeah, I've not been, I love the idea of having a televised, but I've been kind of negative about whether or not it would happen, and I've been prioritizing the concern that if you do his different in any way, he's gonna complain forever that he didn't get a fair trial. But now that he's come in and said,

I want it on television, I mean, he's really kind of undercut that concern. I do think there's like massive benefit to having people see it in real time. So yeah, I don't think that it's a big deal for the federal court to kind of change a long held position. And I think it's unlikely that Chutkin is ever going to change her mind on this. But we'll see, you never know. And as a fallback, having it recorded for historical purposes, certainly seems reasonable. Yeah, although that is different from what Trump asked for. And Trump could use that as a, you know,

he's been victimized. Yeah, sure. We recorded for historical purposes and not televised. Yeah, and if we expect him to maintain a consistent position on this issue, I mean, come on. Sorry. Right. What have we been watching? So, I mean, you could, you could always see like, let's say he goes a trial, gets convicted, and then the day after NBC, you says, okay, we want to put it up, you know, on our streaming service now or whatever, then you can imagine him saying, oh, no, well, my appeal is still pending.

So I don't want it broadcasts the laughter of the deal. So there could be many other fights down the road on this. But it doesn't help that he came out vehemently and said it should be televised for all to see. That's right. That's right. That doesn't help. So very good argument. All right, let's go kind of down to Georgia. This is the second crossing of the streams of this episode. Trump's Georgia lawyers, namely Saddo, right? I think his name's Steve Saddo.

He filed a motion with Judge McAfee in Fulton County, in that case, for a hearing with Judge McAfee to discuss them, Saddo, and Trump's Georgia legal team, they want to get relevant discovery from the DC case. Now, it's his President Trump moves his court for hearing to discuss reasonable and efficient means to obtain access to relevant discovery material disclosed by special counsel office Jack Smith to Trump's DC Council of Record. Trump's Georgia lawyer, Steven Saddo, has attempted to informally obtain this, but Jack Smith has said, sorry, there's a protective order over the DC discovery.

So no, you can't have it. Now, Trump says we aren't seeking the actual discovery, but just lists a discovery list. We want to determine whether any of it is pertinent in the Georgia case. So we suggest this is what Trump's Georgia lawyer says that either the DA's office in Fountain County contact Jack Smith to see if they'll disclose a list of discovery in the DC case. Two, maybe this court could contact the DC court. Maybe your honor could call up Judge Chukkin

to see if there's a way to get these lists. Or three, this court allows Trump to subpoena the special counsel for the list of discovery. And the first thing to pop through to my head, Andy, do you remember when Concord Management, the Russian company that was indicted, it was an entity indicted by Bob Mueller, run by Yifgeny Progózion, they went to court to get in discovery, they hired some American lawyers, and asked in discovery for all state craft and spy craft going back to 1942. We need all of it.

And that's when Bob Mueller's like, just we dropped the case, never mind. Like shut up. He's a great collection of that one. Like I'm not even, first of all, no. And second of all, this is just a way, it's just wasting the court's time. Yeah.

You're abusing the court system here. You've got any pregoation and concord management. That's who ran the internet research agency, the troll farm. I am right. Infamous IRA, yeah. So yeah, this just seems like Trump wanting to get his eye on the DC discovery list and his Georgia lawyers

to be able to get their eyes on it. But it's got a protective order over it. So I don't know, this just seems weird to me. Yeah, it is weird, especially when you consider that, you know, Trump is getting all the discovery in that case. What's different, what maybe people don't understand is that the DC case, the protective order, limits the discovery in that case to be seen by and shared with Trump, of course, because he's the defendant and his lawyers in that case.

So those lawyers, simply because Trump has another lawyer, Steven Seidow is handling this stuff in Georgia, Trump's DC case lawyers can't hand him everything they're getting from the special counsel's team because that would be a violation of the protective order. And he wants his Georgia lawyer to have this. So he wants his Georgia lawyer to see all this stuff that he's seeing in the DC case. I mean, and Trump can't give it to his Georgia lawyer

because that would also violate the protective. Correct. Even though that communication around handing that stuff off could arguably be covered by attorney claim privilege. It can't be because it'd be violating a court order so it would not be covered by privilege. So anyway, they're trying to do it the right way. And I'll actually give them some benefit of the doubt here.

If your Trump's lawyer in Georgia, and he's facing a Rico indictment for a lot of the same stuff, a lot of the same behavior, you want to know what does the federal system have, what information does the federal system have that could help your defense of him in Georgia. The problem is it's just weird because there's no requirement. Like you are entitled to the discovery. Like is there any exalpatory information up in DC that could go down in Georgia that maybe the the DA in Georgia doesn't have so we wouldn't get? Right, so if the DA doesn't have it, they're under no obligation to turn it over.

Right, so let's say Jack Smith has exculpatory evidence that could help Trump, as long as Funny Willis doesn't know about it, she can't, she doesn't have to hand it over. Well, then you should just ask for any exculpatory evidence, not the entire discovery list. I actually see them coming up with some sort of accommodation here. I think that they'll come up with some sort of accommodation to kind of resolve the request. I mean, I'd be willing, I'd be willing, if I were judge Shukin to be like, you can have the X-co-the- Bradyiding material and the giggly-o stuff and stance. Like you can have the

X-co-poutory, potentially X-co-poutory information relevant. It has to be relevant to your charges down there. But the entire discovery list, no. Yeah. I see them coming up with something like that. And really all it takes is a modification of that protective order. Yeah. And then it can be handed over. So I think that's where that one will end up, but we'll see. Cool.

Yep, we will. And I'm assuming we're probably week after Thanksgiving, which is this week, we'll probably get some of these decisions. And we'll find out whether or not, well, we don't have to find out whether or not Hill Appeal. Everything that's'll appeal. But we'll see what the DC circuit court of appeals. What kind of briefing schedule they slap on these things.

They did an extremely fast briefing schedule in the don't call it a gag order. So I imagine they will do the same, especially for things that are potentially interlocatory. Those things that could stop the trial date from happening until they're decided, all right, that brings us to listener questions. What do we have this week? By the way, if you want to ask us a question, there is a link in the show notes for you to do so. And we have got some really good ones today. Yes, we do.

We have a couple. I'm kind of grouping a bunch of them together with this first question. It's not how it was submitted ago. A lot of people basically asking questions about Judge Eileen Cannon. And most of them end with a question about recusal or removal. So I just wanted to hit this real quick to clarify a few things. There's a couple of different people are obviously concerned about the poorly managed trial schedule and the constant delays that there doesn't seem to be any sense of urgency down there to

get this case moving forward. I think a lot of people making assumptions about why that's happening is a lack of confidence, a lack of competence or an indicator of some sort of bias. It's really hard to answer that. But everyone's coming to the same place. Like, why can't she be removed? Can Jack Smith try to get her removed? Can she recuse?

So a couple of things. Recusal is, of course, would have to be the judge's decision. Right? You don't, nobody forces a judge to recuse. They have to decide to recuse themselves. I don't think there's any indication here that she would ever do that. But just to remind us of the standard,

the due process clause requires judges to recuse themselves only in two situations. One, where the judge has a financial interest in the case is outcome, because said there's no indication of that here of based on what we know. Or where there's a strong possibility that the judge's decision will be biased. And even though those are requirements, it really is entirely in the judge's hand to make that decision for themselves.

You don't think potentially being nominated to the Supreme Court in a Trump second term would be a financial, I guess it's not a financial outcome of the case. It's just sort of a financial future thing. Yeah, technically it doesn't, it doesn't mean you have a financial interest in the case as outcome, right? She's in there for life. It doesn't matter that Trump appointed her, she stays or the Trump gets convicted or not. We have it if you're going to point it to the Supreme Court, you get all sorts of free fishing trips and private jet stuff and get to be in a painting at a resort.

But that's speculative, right? It's speculative based on like, well, yeah, if she does him right here, maybe he'll pay her back later, that's not going to qualify as a current financial interest. I was more like, you got to. Absolutely joking. Yeah, I know. I know. That's my job here. I got to take everything

seriously. And then the next thing is removal, could she be removed? The only way you get removed is the federal judges, if you get impeached, and that brings, of course, all the political ramifications that we've seen in the impeachment proceedings of the last few years. So, it's definitely not happened with the Senate super unlikely. We would have to somehow, not happen with a Senate. Super unlikely. We would have to somehow, mathematically impossible to get 60 seats actually. Yes.

Yes. So, yeah, I know. Okay. 67, excuse me, 67. So also a bunch of questions about, again, Mar-a-Lago, but specifically about impact of these CEPA arguments. So this one comes to us from Janet.

She says, hello, Andy and Allison. I've been a listener since the kitchen table days for daily beans, and since the first episode. And this has kept me sane for years. It was rough during the TFG administration. My question is prompted by listening to its complicated, which is of course a podcast from our friends Asha and Renato, and their coverage of the Marlago case. She says, has Trump's security clearance been revoked? If so, how does this impact his ability to review classified information that may be provided to his attorneys

through his CEPA process? All right, real quick, Trump never had a security clearance. You don't have to have one when you're the president. When you get elected president, you get sworn in, your article two, commander in chief, constitutional responsibility, When you get elected president, you get sworn in, your article to commander-in-chief response constitutional responsibility, that is

You know, you're your responsibility to protect the nation. From that you become responsible to decide what information is Secret and top secret and it is that authority which is ultimately delegated to other people in government that creates the whole system around security clearances. But you, Mr. President, don't technically have a security clearance. Of course, when he leaves office, you don't have the right to continue, you know, dealing with that material, which is kind of the center of this whole prosecution. But you can. Some presidents are brought back to review classified information, but I'm pretty sure

President Biden said we're not going to allow Donald Trump to have that access. That's right. It's a courtesy grant to deform presidents, and it was notably rejected in this case because of this, you know, all kinds of reasons that seem obvious. Now, interestingly enough, as a defendant in the Mar-a-Lago case, he has a sixth amendment right to see the evidence that's gonna be used against him. That's not just the particular language

that they're gonna enter and, you know, as a piece of evidence of trouble, like all the evidence behind that. And so that's what gives rise to the CEPA process. Now you have all this confidential stuff, this classified stuff, this national defense information that's going to, you know, could is relevant to his defense. That has to be shared with him in some way. SEPA is the process that we use to do that in a careful way. Yep, agreed. And that kind of answers a little bit of the second question

that we had from a stoop listener this week. Yes, yes. You're talking about Kelly who begins by calling us both beautiful and handsome. And then goes on to say, apply as you wish, I've never seen either of you. I had Kelly, you had me at beautiful and handsome. Boy, now I'm beginning to wonder. All right. I yell at my phone every time the seepah hearings come up. Why are there seepah hearings?

A lot's found were listed in myriad news reports. The accompanying photos showed both the confidential and top secret headers on the docs and the folders. Their content is irrelevant. He had them. He wasn't authorized. What else do we need to know?

Well, we need to know? Well, we need to know a lot and he gets to see what we know, right? That's kind of the process here. Well, Andy, correct me if I'm wrong. In order to charge under the SBN Ajax 793 E, you have to show that they retain national defense information. And so you have to have that national defense information as evidence to show that they retain national defense information. Is that am I on the right track? Absolutely right as always. So the government's burden of proof the things they have to prove in order to sustain a conviction include entering evidence that proves the material was national defense information.

We've talked a lot about how it doesn't have to be classified, but the fact that stuff is classified certainly as good argument that it's national defense information. So they have to base their prosecution on specific pieces of evidence that qualify that can be considered national defense information. In order to do that, that stuff has to come in

and be put before the jury for the jury to make that factual decision, right? The jurors of the Triars of Fact, so the jurors need to be able to see, okay, here's this piece of paper, does it qualify as national defense information? So that's why we have to actually use this stuff at trial. Or it's a description of it for the jury in case they can't see it.

And that same sort of of it for the jury in case they can't see it. And that's it. That same sort of thing goes for the defendant. He gets to see all of the information against him. Like you said, which is summary of what's in the document. So that he can't see that. But all of that, what gets substituted, whether you use the silent witness, what you can show to the jury, that's what the whole SEPA process is about, right? Like how to do that. Right. What we're going to use, and everybody has to sort of agree that that's sort of how we're

going to present this classified information in court. Yeah. Before SEPA, you would actually have had to bring the actual document and hand it to the jury. Before you got to court, you would have had to hand it to the defendant and discovery. And it's so hard for the government to do that because it means further distributing this material that's supposed to be held closely. Cases washed out.

The government would decide, it's not worth it. We can't bring the case. We can't bring this prosecution because we have to lose so much of this sensitive information. SEPA enables us through substitutions and redactions of things like you said. It enables us to come up with something that the government can live with exposing a trial and to the defendant.

And so that's why these, it's a burdensome process and it seems like kind of a pain in the neck, but it's the only way to be able to do these prosecutions safely without further losing your secrets. That makes sense. Otherwise, you just get them on obstruction, but it's, it's hugely important that he retained this national defense. Total information. Totally. And then refused to give it back. Pursuant to a subpoena, which would have been a search warrant a lot earlier.

Fud for dance. Well, and we bring the old Dipsy Doodle. A little call back. And call you all to the next round. Thank you so much for these thoughtful questions. These are so awesome. Please continue to send them to us by clicking on the link in the show notes to submit your questions.

I hope everybody had a wonderful, wonderful, relaxing holiday weekend. I know that we're all going back to work tomorrow, but we appreciate you listening. And we really look forward to what's going to happen this week. Yeah, thanks for a great year. This has been super fun and really looking forward to continuing to do this every week, bringing you the latest and greatest from these special council investigations. And in that, I am Andy McCabe. And I'm Allison Go. these special council investigations. And in that, I am Andy McCabe.

And I'm Allison Goh.