Jack - Episode 54 - On a Scale of Durham to Smith

Episode Date: December 10, 2023

In DC, Jack Smith moves to admit evidence from before the DC conspiracy and files the opposition to Trump’s motion to stay the entire proceeding. JPotential jurors are being pre-screened for the March 4 trial.In Mar-a-Lago, Judge Cannon is handed her first real test and the chance to make an appealable decision concerning CIPA Section 4 filings.Hunter Biden gets indicted on nine tax charges by Special Counsel David Weiss.We rank the recent Special Counsels.Plus, we have some great listener questions.Rule 403bhttps://www.law.cornell.edu/rules/fre/rule_403Brian Greer’s Quick Guide to CIPAhttps://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/ Some 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. Hey, everybody. Welcome to Jack, the podcast about all things a special counsel. Or should we say today special counsels in a Sunday, the, December 10th, 2023. I'm Allison Gill. And I'm Andy McCabe, nice teaser there. We're getting very professional with this. We have a lot to cover as, as always, including Jack Smith's

motion to admit evidence from before and after the DC conspiracy under rule of evidence 404 B and Trump's opposed effort to stay the entire proceeding, including the entire pretrial schedule. Yeah, sure, buddy. And well, he, I mean, he might get some temporary administrative stays while he appeals, but we also have jury notices going out to the District of Columbia. My friend, John Allen over at NBC had somebody in the district show him something he got in the mail and all the dates line up with what's going on in DC in the Trump case.

And so they're pretty sure that it's that. So they are now testing the jury pool. And we also have a ruling from the DC circuit court of appeals. That's the court above judge Chetkin, on the Don't Call it a Gag Order. And we'll talk about that. We've got a couple of sepa filings, and I think it's reaching an inflection point down in Florida with the classified documents case, because now Donald Trump doesn't want

what normally happens, which is sepa section 4 to be X part A between Jack Smith and Judge Cannon. He wants to be all up in that program with his tiny little hands. So he's filed a motion and we'll talk about that to unseal the Cepa filings for Section 4. And that is kind of, like I said, it's an inflection point down there. This is probably the first decision Judge Cannon will make that isn't just a nickel and dime delay decision. This is a big one. Yeah. It shows us like it's it's delay relevant for sure,

but it's like, is she going to completely depart from well established precedent law and practice? And that's really what's at stake here. If the answer to that is yes, man, we are, we're available for a strange, a mighty strange trip. We are available. We are available. It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle.

It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle.

It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's a miracle. It's going to be April 20th in DC. So if you've been on the fence about supporting our shows, now would be a good time so you can get an invite.

We'll be picking up the tab for dinner and drinks. We'll have some great guests speaking, including me, Andy McCabe, Pete Struck. That's you, Andy, by the way. Oh, that's me. Oh, I better start working on something. Glenka, start preparing your remarks. Glenn Kirschner will be there.

Capital police officers, Harry Dunn and Danny Hodges, Olivia Troy will be there. They'll be more guests added. And we will send out notices for RSVPs probably in January, maybe the first week of February, there's limited space. So it'll be a first come first serve basis. And we won't have plus ones because that'll cut our guest list in half for patrons. So if you want to bring somebody, they will need to sign up to become a patron too. It's the fairest way we could come up with this. Any level patron

gets an invite. You don't have to be like $100 a minute. It's, you know, which when we have tons of those, no, we don't, but any level, any level. And that's patreon.com slash muller. She wrote supporting independent media is supporting democracy. All right. I really want to start with, I know that the don't call it a gag order thing is big news, but Jack Smith's 404B filing in the DC case. I want to start there because it gives us a more of a look at his case in chief and some of the evidence he intends to introduce a trial. But Andy, first, let's talk about what Rule 404B is. Yeah, this is super important.

It's one that I think the fence attorney's generally loath, because they see it as kind of the prosecutors like back door to getting evidence in front of the jury that they otherwise wouldn't be able to. But so basically, Rule of Evidence 404B generally prohibits the prosecution from introducing evidence of prior crimes and wrongdoing, right? It provides that act evidence is not admissible to prove the character of a person in order to show action and conformity therewith. And that basically means like, A.G., if you're on trial for, you know, dealing narcotics and you used to, you know, in years earlier,

you had another conviction for stealing cars. They can't enter the evidence of the car theft, as simply to show the jury, look, she's a bad person. She did this once, she did committed a crime once before. Therefore, it's more likely that she committed a crime here. Evidence of prior bad acts cannot be a minute of trial to show the defendant's propensity to commit crimes similar to the offense in question. So in other words, 44, prevents or 44B bars character evidence, right?

Jury's not likely to afford the presumption of innocence to a known criminal. Nonetheless, there are many exceptions to 404B, and that's usually where the fight and starts. Right. I get it. So that's why the defense objected, I remember during George Floyd's trial, when the prosecutors tried to question witnesses about Floyd's prior criminal history. That's exactly right.

Exactly right. And like many rules of evidence, they begin with the ban, right? Think about hearsay. You cannot enter testimony. If you're going to enter testimony, you have to have the person who was there. You can't testify about something I said to someone else, right? And you can't offer testimony like that to prove the truth of the matter asserted. Or like the emails, like the Eastman emails, you know,

a lot of times emails are considered hearsay, but they're, you know, so you start with what's banned, but then they have lists of exceptions, right? Start with what's banned, and then you have a million exceptions. And that's how a 404B works. Exceptions to the 404B, the 404 ban on the sort of evidence are motive, evidence of evidence that would prove opportunity, evidence that would prove intent, evidence that proves preparation or planning, evidence that proves knowledge, identity,

or absence of mistake or accident. That's why Jack Smith filed this notice. Yeah, it's a lot of big categories there. So there's a lot of room for prosecutors to squeak things in through one of those exceptions. Yeah, and this is an emotion asking for leave of court. He's not asking for permission to introduce this as evidence. It's a heads up.

He's saying, I'm giving you notice. Here's how he opens. He says the government will provide the defendant and court extensive advance notice of the intrinsic evidence at plants to introduce a trial, including through his, its exhibit and witness lists, motions in lemonade and detailed trial brief setting forth the government's plan trial presentation. In an abundance of caution, the government below notices evidence that, although intrinsic to the charged crimes, pre or post dates the charged criminal conspiracies.

If the court were to find that any part of the noticed evidence below is extrinsic, the evidence is also admissible under federal rule 404b because the government will offer it not to show the defendant's criminal propensity, meaning this is an evidence to show that he, you know, he's likely to commit these crimes again because he did it in the past, but to establish his motive intent preparation knowledge absence of mistake and common plan. That's exactly right. So he's he's saying here, here's all my evidence, and I want you to know about it ahead of time. Again, this is a matter of judicial economy. He's trying to tee up the fights over these pieces of evidence early in the process. So it doesn't slow down the trial.

But he's also saying, if by some chance, the court finds this evidence extrinsic, which means outside the scope of the charge conduct, well, then it also qualifies under 404B. So he's kind of covering both bases. Yep. Yep. And he outlines six categories of this type of evidence that they planned to introduce a trial. And it's really fascinating because we know from his past filing opposing Trump's motion to strike January 6th riot language from the indictment. Member Trump wanted all that taken out saying it was prejudicial and incendiary and I didn't do it.

You didn't charge me with insurrection. He noted, Jack Smith noted in that in his opposition to that that he intends to prove Donald Trump was responsible for the attack on the Capitol. So this is really, I think, intrinsic evidence. But like you said, if the court finds its extrinsic, you know, and doesn't, you know, isn't part of the criminal conspiracies, that it can still get in under 404B because it shows intent and knowledge and all those other things. That's right. That's right. And it's, it is cool because when we saw that opposition to Trump's motion that you referenced, that was the first hint of like,

oh, he's going down, he is shooting at the big target with this thing, he's going right at responsible for the insurrection. Well, this motion really lays out the receipts, right? You get the details of kind of how he's going to do that. It's a first kind of semi-road map that we've gotten. So the first category is historical evidence of the defendant's consistent plan of baselessly claiming election fraud.

And this is one of those situations where the DOJ plans to use Trump's own words against him. And even though he made the statements before the conspiracy, these statements would therefore be admissible under 404b because they demonstrate the defendant's common plan of falsely blaming fraud for the election results he does not like, and his motive intent and plan to obstruct the certification of the 2020 election results and illegitimately retained power. And so Jack Smith then gives some examples of these statements. So for example, as early as November 2012, the defendant issued a public tweet making baseless claims that voting machines had switched votes from then candidate Romney to then candidate Obama.

During the 2016 presidential campaign, the defendant claimed repeatedly with no basis that there was widespread voter fraud, including through public statements and tweets. For instance, on October 17, 2016, tweeting, of course, there is large scale fraud happening on and before election day. Why do Republican leaders deny what's going on? So naive. Yeah. And he won that election. So, and even that, I remember that in the Mueller investigation. You remember? Yeah. I remember the book self. I'm sorry. The Mueller investigation, there was a, some, I think, Facebook messages between Don Trump, Jr. and Julian Assange and Julian Assange is like, I think it's interesting not conceding

that you lost the election. If your father loses, he should say he didn't lose. And then he can blame the media and call it rigged. Like it's, it's been a play for. Yeah, it's forever. Yeah, for sure. I mean, you know, and in 2020 he had others doing it for him as well. I remember that that appearance that Bill Barr made on Wolf Blitzer's show where he basically ranted and raved about. Oh, no, you know, what is it? The mail-in ballots are rife with fraud. Everybody knows that and Wolf pressed him on it like, okay, give me an example.

And he's like, well, everybody knows. And then of course, a couple months later, he's like, yeah, no evidence of fraud. Sorry about that. Yeah. And that of course, a couple of months later, is like, yeah, no evidence of fraud, sorry about that. Yeah. And that might come up in trial, too. He's only given a couple of examples here just to give examples of the kinds of evidence he wants to introduce.

But because that kind of stuff happened during the conspiracy, I don't think it would necessarily need to come in under 404b. No. But the next category is historical evidence of the defendant's common plan, his plan, to refuse to commit to a peaceful transition of power. And remember, a common plan is admissible under 404 B exceptions, even though these statements

happened before the conspiracy. And Jacksoness says, quote, the government will offer proof of this refusal as intrinsic evidence, intrinsic evidence of the defendant's criminal conspiracies because it shows his plan to remain in power at any cost, even in the face of potential violence. And he gives some examples here as well. September 2020, a news conference, I think it was Brian Caramass, him in the press room. Are you going to commit to a peaceful transfer of power? And he refused. And then he obfuscated, well, the ballots, you know, he just didn't answer the question.

And in the presidential debate in 2016 with Hillary, he was asked whether he would accept the results to which he responded, I'll look at it at the time. And the debate moderator said, yeah, but there's a tradition in this country, one of the prides of this country, the peaceful transfer of power, that no matter how hard fought a campaign is at the end, you can see it. And that the country comes together in part for the good of the country. Are you saying you are prepared now to commit or you're not prepared to commit to that principle? And Trump said, what I'm saying is I will tell you at the time, I'll keep you in suspense,

okay? That's what he said. I'll keep you in suspense. And what's interesting too is, you know, we've got Flynn testifying to the January 6th committee, Liz Cheney asking him, do you believe in the peaceful transfer of power? And he took the fifth. He played the fifth. And then what's interesting too is in Judge Judge Chukkin's ruling against total presidential immunity, the monarchy motion, as we called it, she brought up Washington's speech, his farewell speech.

And so, you know, that's, it's all tied kind of together there. Jack Smith concludes this category by saying the defendants' consistent refusal to commit to the peaceful transition of power, dating back to the 2016 campaign, is admissible evidence of his plan, his plan to undermine the integrity of the presidential transition process when faced with the possibility of an election result that he would not like, as well as his motive intent and plan to interfere with the implementation of an election result, with which he is not satisfied. Other things that could come in during the conspiracy, GSA Emily refusing to sign off on the transition, refusing to give transition offices to President Biden.

That's all his plan. He was planning this premeditated planning to not participate in the peaceful transition of power. Absolutely. Absolutely. He's going to be very powerful evidence in telling a complete story to the jury. And it's clear why the special counsel wants to get this stuff in. Yeah, it really goes toward intent and motive and all that stuff. And so when we read that filing about striking the language

and the opposition to it and Jack Smith saying, I'm going to prove you wanted that riot to happen and you caused it. This all goes to that. So, all right, everybody, we need to take a quick break. We have, I think, three, four, five, six, four more categories of evidence we want to discuss. And then we'll talk about the gag order. We'll talk about the seepest stuff.

We have a lot to get to today. But we have to take this break. Stick around. We'll be right back. Okay, we're back and here comes category three. It's evidence of the defendant and co-conspirators' knowledge of the unfavorable election results and motive and intent to subvert them. Yeah, so here, Jack Smith says, the government also plans to introduce evidence of an effort undertaken by an agent and Unindicted co-conspirator of the defendant who worked for his campaign and

That person is then referred to as the campaign employee To immediately following the election Abstruct the vote count on November 4th 2020 the campaign employee exchanges series of text messages within attorneys supporting the campaign's election day operations at the TCF Center in Detroit, where votes were being counted. In the messages, the campaign employee encouraged rioting and other methods of obstruction when he learned that the vote count was trending in favor of the defendant's opponent. The paper goes on to read.

Then there are several redacted lines and it continues. The government will also show that around the time of these messages, an election official at the TCF Center observed that as Biden began to take the lead, a large number of untrained individuals flooded the TCF Center and began making illegitimate and aggressive challenges to the vote count. Thereafter, Trump made repeated false claims regarding election activities at the TCF center when in truth, his agent was seeking to cause a riot to disrupt the count. Quote, this evidence is admissible to demonstrate that the defendant, his co-conspirators, and

agents had knowledge that the defendant had lost the election, as well as their intent and motive to obstruct and overturn the legitimate results. Yeah, and those redaction bars could be from context, I take them to be that unindicted co-conspirator who doesn't have a, and we'll get to that in a second, encouraging a riot or talking to somebody about starting a riot, because that's what's, Jack Smith says he's going to be able to prove here, and then also perhaps the connection that Trump knew about it or somehow participated in it. And as I said, this co-conspirator doesn't have a number.

There's newly named unindicted co-conspirator doesn't have a number. There's newly named unindicted co-conspirator. He's not referred to as co-conspirator three or co-conspirator six. He doesn't have a number. That tells me he is not one of the unindicted co-conspirators we already know about. This is somebody new. And the reason I think that is because later in the filing, Jack Smith names co-conspirator one. And we know who that is. So it's like kind of like how when we were reading the indictment and we were trying to figure out who the six unindicted co-conspirators were,

and Mark Meadows was named later in the indictment, and that led us to believe he's not one through six, or he would have been named, or he would have been called an unindicted co-conspirator and given a number. And so based on past testimony and evidence from the January 6th committee on the attack on the Capitol, I think it's Mike Roman because he was texting

about the TCF Center with campaign lawyer, the last name of hit. And to me, that makes it clear to me that this is Mike Roman. Which means we had a little, to me, that makes it clear to me that this is micro-met. Which means we had a little, we still had a little bit of a, not knowing who his pool on who number six was. Who took a spirited six-met. You take a spirited six-met.

You take a spirited six-met. You take a spirited six-met. You take a spirited six-met. You take a spirited six-met. You take a spirited six-met. You take a spirited six-met. You take a spirited six-met. You take a spirited six-met.

You take a spirited six-met. You take a spirited six-met. You take a spirited six-met. You take a spirited six-met. You take a spirited six-met. You take a spirited six-met. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation.

So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation.

So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, graduation. So that means by process, which it sounds like he might be, if Jack has all this evidence, unless Jack just got it from his phone and maybe he hasn't charged this guy yet, but that we know, as of August 1st, 2023, the DC investigation continues. So we don't know if he's

going to be indicted in a mop up case or if he's cooperating. We really just don't have any idea. Yeah, referring to him as an unindicted co-conspirator, I find it, I think it's unlikely they would have done that if he was a straight up co-operator. So he may, his status may still be kind of in the wind as we say, but, um, yeah. Well, because remember, he was like trying to cut a deal with the Fulton County and then said, no, he turned down her deal and there isn't a co-operation deal between Mike Roman and Fanny Willis at this point. So, I think it's probably up in the air with the feds too. Yep, that's my guess. And, Andy, one more question.

This happened on November 4th. Why is this in the 404B notice? Because that seems like it's during the conspiracy or is it so on the edge that maybe the court might think it's extrinsic and so they explain it. Yeah, so I think it is on the edge and it's and it's pretty close to the edge. It might be on the edge because um, they may not have a super strong link between Mike Roman. On the one hand, him texting the the dude at the voting center is solid, but how do you tie that back to Trump? Like, they may not have great evidence, saying indicating that Mike Roman did that at Trump's

direction or something like that. So assuming that it's close to the line, I think that this highlights what we talked about before that Smith is including it here basically to cover his bases, right? So he has that line earlier in the motion where he says, if the court were to find that any part of the noticed evidence is extrinsic, meaning outside the scope of the charge conduct, the evidence is also admissible under federal rule of evidence for for B. So he's kind of airing on the side of caution. He may try to get all this, my, presume Mike Roman stuff in, as just standard trial evidence. But if he gets, if he incurs flak with that, he's now put them on notice

that it's 404B qualified. Yeah, or it might also be like, this is such a, huge piece of evidence. Maybe it's like, hey, Trump, if you, you know, so, if case you want to file a motion and eliminate to keep this out, I'm letting you know about it. We plan on using it. Kind of a way to smoke out the big pieces of evidence he wants to put in so that Trump later can't go. It wasn't flagged in discovery. I didn't get it.

I didn't know about it. I would have filed a motion and eliminated, but so now I'm going to appeal and have it over to, you know, whatever his weird arguments would be. I'm just going to be like, here it is in black and white. We told you. We told you well before motions in lemonade were due. And I think that basic approach is really interesting because we're going to talk about this in a little bit in our comparison of special councils.

But this is Jack Smith's way, right? He does everything ahead of time. He's not playing hide the monkey with anything. He's putting this stuff out there, basically saying, Hey, if you want to fight over this evidence, let's do it now. So then we get to trial. Everything is smooth. You're not going to see any like revelations that trial.

Oh, we just found a new witness. We didn't know about. I mean, he's going overboard to be as scrupulous and upfront and transparent as you can possibly be as a prosecutor. And I think that's absolutely the right way to do it here. There's no room for like heroics and playing games. He's got a toe of the line on every detail.

And I think that's what you see here. Yeah, I just hear Marissa Tome in my cousin, Vinnie. It's called Disclosure you dickhead. He can't, he's not allowed any surprises. I just, I love that movie. So I've watched that like a year and a half ago and just loved it all over again. I think it was in a hotel or something. There's nothing else. I was like, wow, this is masterful. It's wonderful. I'm so glad she got the Academy Award for that. Okay. On a category four, pre and post conspiracy evidence, stuff that happened before and after the conspiracy, yeah, that the defendant and his co-conspirators suppressed proof that their fraud claims were false, not just ignored, suppressed proof. Their fraud claims were false and retaliated against officials who underlined their criminal plans.

I'm thinking of firing Chris Krebs. I'm thinking of, you know, ignoring the not publishing the two research firm reports he got that said there were no, there was no voter fraud disallowing, not telling, you know, Pat Sipolloni and Pat Filbon about some meetings he was having at the White House with Rudy and Sydney, you know, like that kind of stuff, right? He said this indictment provides evidence that the defendant repeatedly sidelined advisers and officials who told him or the public that truth about the election results and who pushed back on his false claims. The defendant and his co-conspirators and agents aggression in stifling dissents against election fraud claims before, during and after the charge conspiracies is admissible to demonstrate the defendant

and his co-conspirators' knowledge that their fraud claims were false. So that's important, right? Like just silencing dissenting voices, saying there was no fraud. The jury then can infer that he was, knew there was no fraud and was, you know, that the claims were false.

It definitely goes to kind of guilty knowledge. When you're doing things to cover or something up, you know that that thing, if it's discovered, is bad. Right. So that's what's happening here. And I do believe like this thing basically was I read this paragraph, you you hear in your mind, judge the the prosecution calls Chris Krebs to the stand. That's going to have such a perfect fit for what they're describing

here. I yeah. And Johnny McIntees memos to fire these people who wouldn't go along with his plans, including Esper, the Secretary of Defense, Krebs, you know, disinviting, like I said, the Pats, Philbinnen, Cipollone to any of these meetings. That and Hirschman, that shows. So because we were always talking about like, well, he's only surrounding himself with idiots who agree with his stupid theories. That's actually evidence that you know that what you're doing is BS. And that's why he wants to bring it in.

All right. Category five is pre and post conspiracy evidence of the defendant's public attacks on individuals, encouragement of violence and knowledge of the foreseeable consequences. The defendant has established a pattern of using public statements and social media posts to subject his perceived adversaries to threats and harassment. And to that, I can only say, oh yeah, he do.

I mean, you have a little experience with that yourself. Just a little. I hate to make it all about me all the time, but it's about me. So anyway. You can file an amicus brief. It can confirm. Andy McCabe can confirm. Would be a short brief. I'm like, yeah, yep, props to the

special counsel for real. Same. Okay. Hamesys goes on. So this includes Trump's September 2020 pronouncement to the proud boys to stand back and stand by and his attacks after the conspiracy against Ruby Freeman and Shay Moss. The government will introduce such evidence to further establish the defendant and his co-conspirators plan of silencing and intent to silence those who spoke out against the defendant's false election fraud claims. It also constitutes after the fact corroboration of the defendant's intent, because even after it was incontrovertibly clear that the defendant's public false claims targeting

individuals caused them harassment and threats, the defendant persisted, meaning that the jury may properly infer that he intended the result. That's cool to me. I didn't realize that that was a thing. So if he puts out a tweet and, you know, Judge Angeron gets 237 single space type pages of threats, and then he does it again, that shouldn't say you didn't know. You have much harder time saying I didn't intend to cause him any threats or any problems because otherwise you stop, right? You stop doing it.

Yeah. And it's kind of an interesting bank shot here. There's like, you can see referenced in these, in these details, there's multiple exceptions of 404B kind of touched upon in each of these recitations. So he's not putting all this eggs in one basket for any of this evidence. He's kind of covering it with a bunch of different, you know, it's not putting all this eggs in one basket for any of this evidence. He's kind of covering it with a bunch of different, you know, it's not, it's indicative of planning,

but it's also goes to intelligence. That is. Yeah, exactly. And he doesn't even have to prove him motive, but here he is. All right, category six. And this one, I think, is one of the most important ones because it really puts the proud boys,

the oath keepers and Donald Trump as conspirators together. Post-conspiracy evidence, the defendants steadfast support and endorsement of rioters. Now, Jack Smith will cite examples of Trump's verbal and financial support, financial like, you know, how he pays the January 6th choir to sing the national anthem at his rallies, like, you know, how he pays the January 6th choir to sing the national anthem at his rallies, his verbal support, he's going to show that because of that support and because he's made statement saying they're really being treated terribly, that shows that those rioters did what he intended them to do. That's right. Because otherwise he'd be like, that's terrible. What happened that day? I didn't intend for that to happen. You know, he's like, they were great. They're wonderful. I love

you. You guys shouldn't have done that. Any normal person would be like, whoa, whoa, hey, I didn't say the tactic capital, but he's, no, he embraces them and their actions. It reminds me of like what that mob case, I think I was talking to you about where the guy sent him out to to put a guy in a hospital and the guy jumped out and shot him. And you know, the mob was like, bro, come on man, I didn't tell you to shoot him. Sometimes that shit gets out of hand. I mean, I'm just saying. And that got him off the hook for murder, you know, because he said that's he actually ended up either whacking or punishing that guy, which shows he didn't intend to kill the other guy anyway. That's complicated.

That's complicated. It's complicated. Evidence of the defendant's post conspiracy embrace of particularly violent and notorious rioters is admissible to establish the defendant's motive and intent on January 6th that he sent supporters, including groups like the proud boys, whom he knew were angry, and whom he now calls patriots to the Capitol to achieve the criminal objective of obstructing the congressional certification. And this goes to the heart of what he said in that opposition to strike the language

from the indictment. You did this. You caused this riot. Yep. And that's so big. And finally, evidence of the defendant's statements regarding possible pardons for the January 6th offenders is admissible to help the jury assess the credibility and motives of trial witnesses.

Because through such statements, the defendant is publicly signaling that the law does not apply to those who act at his urging, regardless of the legality of their actions. And we had a lot of that pardon dangling in the Mueller report too. For sure. For sure. You know, you, this is all going back to that, especially that shout out to the proud boys.

Um, people he knew would be angry. It's the will be wild tweet, right? I mean, it's like, I don't know how he's gonna deal with it. He's gonna try to keep the stuff out for sure, but. And then listening to the rally the night before, the ellipse rally, ooh, they're angry. They see mad, they're riled up, you know, you could hear it through the window of the White House.

All right. We have, we still have a lot more to get to. I, I woke up today, I was like, kind of a slow week. And then bam, bam, bam, we get some breaking news. And we're going to talk about that breaking news right after this break. Stick around. Welcome back. Okay, we have some breaking news about the don't call it a gag order appeal. As you know, judge Chuck can issue the order preventing Trump from talking about witnesses, prosecutors, court staff and their families, but it did not prevent him from going after the judge Joe Biden, residents of DC.

Why you'd want to do that? I don't know. But and also the case in general, um, Trump appealed and judge Chuck and denied the appeal. So Trump then appealed to the DC circuit court of appeals. There was an expedited briefing schedule. And the three judge panel has now come back with a decision up holding most of the original order. The only difference is that Jack Smith himself is now not protected by the order. So Trump is free to talk about him. And he probably will a lot like this is the only guy he's allowed to go after. It's not stopped Jack bashing. He's going to violate this thing immediately.

But yeah, we can talk about that in a minute. But anyways, so from the ruling, it says specifically, we affirm the order to the extent it prohibits all parties and their counsel from making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding. The order is also affirmed to the extent it prohibits all parties and their council from making or directing others to make public statements about one, council in the case other than the special council, two members of the court staff and the council staffs,

or three family members of any council or staff member, if those statements are made with the intent to materially interfere with or to cause others to materially interfere with, councils or staff's work in this criminal case, or with the knowledge that such interference is highly likely to result. We vacate the order to the extent it covers speech beyond those specified categories.

C28 USC 2106. The administrative stay issued by this court on November 3, 2023 is hereby dissolved. Mr. Trump is free to make statements criticizing the current administration, the Department of Justice, the special counsel, as well as statements that this prosecution is politically motivated or that he is innocent of the charges against him. We do not allow such an order lightly. Mr. Trump is a former president and a current candidate for the presidency. And there is a strong public interest in what he has to say. But Mr. Trump is also an indicted criminal defendant. And he must stand trial in a courtroom under the same procedures that govern all other criminal defendants, that

is what the rule of law means. That's going to be cited in so many things in the future. Yeah, for real. That statement right there. So I think this is, I totally figured this is where they'd come out. I thought they'd narrow it a little bit, but keep it in place. I think the way that they really go deep on the requisite intent will create a real horn it's nest for Chutkin to deal with if she decides to try to enforce this against him in some way. Or if Jack Smith tries to file a motion to tried to force it. Yeah, exactly.

And the court left to open the possibility for Jack Smith to file a motion for a limited gag order for him going after the jury pool. They say in a footnote, since the district court did not rely on the interest in protecting jury impartiality and independence, we do not consider whether that interest might support different restrictions from those we hold are justified to protect witnesses, counsel, court staff, etc. As a result, nothing in this opinion speaks to the district court's authority to consider additional measures to protect the jury pool and the jury should such protection prove necessary going forward. So that's like, if he goes off on the j... keeps trying to taint the jury pool, feel free to file. We'll listen to it because we didn't

consider that in this particular order. And then the other thing that happened is the court addressed Trump said, well, you know, you can... We can just forget, you know, we don't have to deal with the gag order thing if you just have the trial after the election. And I'll trade you one delayed trial for a gag order. Yeah. And the court here addressed that. They rejected that premise saying delays in tail serious costs and frustrate the public's interest in the swift resolution of criminal charges. And that's big because that's gonna come in handy

in this whole immunity interlocutory appeal fight. That the court that's, you know, we're gonna talk about this in a minute. He just appealed to the DC Circuit Court of Appeals for his immunity, you know, with that beautiful order that Judge Chuck and wrote last week saying you weren't a king. You know, we're concerned about the speed with which that gets resolved

because it's an interlocutory appeal. It's constitutional issues. It has to be decided before the trial starts. And here is the same court that's going to make that decision saying there are huge costs to delaying this trial. Yeah, I mean, that helps. Egnolaging it on the record in this case already is helpful. It's a good thing that prosecutors, I'm sure, will cite too, but it also lays down a little bit of a marker for the DC court. Like, it'd be strange for another panel to come back and just kind of ignore that.

Not that they're bound to it, but it would be awkward. So yeah, awkward. Especially if it goes but it will be awkward. So yeah. Awkward. Yeah, especially if it goes on bonk to the full panel, if he like pulls great and gets three Trump judges or something, you know, yeah. And we don't know who that panel is yet. Let's talk about that. Because last week, like I said, Judge Chuck and denied Trump's motion to dismiss the entire case based on absolute immunity. We called it the monarchy motion. In her outstanding, amazing, well-written, I mean, this is going to be a historical, this is going to be studied forever because it's so good. Trump has filed his notice of appeal to the DC Circuit Court of Appeals.

And then filed a motion for a stay with Judge Chuck Kintn saying, you're no longer in charge of any of this, but can you give me a stay? Which was weird. I filed my notice. You're not the boss of me, but I you give me a stay? Which was weird. He's like, I filed my notice. You're not the boss of me, but I'd like to take a day off. Right. All right. Yeah. So he filed notice and then he comes back to Chuck and he said, I filed notice with the DC circuit cord of appeals. So you're not important anymore, but I want to stay. And he didn't just file to stay the trial.

He pending the appeal, because remember, again, this is a constitutional issue, would have to be decided before the trial starts, but he has to stay all proceedings in this matter, which at this point would include her rulings on his other motions to dismiss, statutory and vindictive and selective prosecution, the seat of proceedings, because

there are a few classified documents in this case that would be on hold. The jury's elections begins February 9th. Those notices went out to the DC jury. Jury pool. That would stop. All of everything, everything would stop. And he added a little dictator language to this motion to stay everything. Quote, President Trump will proceed based on the understanding and the authority set forth here

in absent further order of the court. We will assume that this stay is in place. We're going to act like this, that there's a stay. So I will assume I'm right. And as I hear from you that I'm wrong. I mean, even though you don't have any more say anymore, which I just said, but you do. So I mean, it's just the most ridiculous thing. And Trump asked Chuck and to rule on the stay within seven days. So you don't have any, you have no power here, but please tell me in seven days. And judge Chuck and has asked, replied with a minute order, asking for a very quick briefing schedule.

DOJ has till today, Sunday at 5 p.m. to file their opposition to the stay. And Trump has until Tuesday at 5 to respond. And I'm assuming she'll make a decision pretty quickly after that. Now, keep in mind, nothing is stayed in this trial at the moment. And today, the DC Circuit Court of Appeals, which is the Court above Judge Chuck in, acknowledged the receipt of Trump's notice to appeal. Now, a panel has not been assigned at the time of this recording, and a briefing schedule has not yet been ordered. But like I said, in that decision on the limited gag order, this same court was like this

needs to go fast. We need to, in the interest of just the public has an interest in a speedy trial here. It seems like this court wants this trial to go before the election, which is good, but the panel hasn't been assigned. We'll let you know when it is, but they did say that the docketing statement form and entry of appearance form and a transcript status report are due December 26. That's kind of a boilerplate time and things that are due. And once the panel is assigned, I assume Jack Smith will ask for an expedited briefing schedule

and the panel will then schedule it. So it could be before December 26 might be in January. We don't know when they're going to assign it, but it seems it also depends on the judges that are assigned to the panel. But this court seems to understand the urgency. Yeah, I think that's clear. And of course, as you mentioned, the significance of what he's asked for,

it would essentially stop the clock on the trial from now until the absolute resolution of this interlock tutorial appeal on the constitutional issue. And that could take God knows how long, right? I think, I think as you just laid it out, the district court is, or I'm sorry, the, the DC court of appeals is likely to get through it as quickly as they can a couple of weeks here and there. But then if he loses and he goes to the Supremes, who knows what they choose to do, that could take forever, they can keep getting work done while this constitutional issue is sorting

itself out through the appeals process. They can keep having, you know, motions on evidence, lemonade motions, uh, seep a stuff. And I, I, there's an, I don't see really any chance that Chudkin's going to go along with his request for stay. And that's, you'll probably venturing around and appeal the decision on the stay. Well, yeah, in the DC circuit might give him a temporary administrative stay while they consider a more robust stay. But with what I think will be a very quick briefing schedule on the appeal, I think it might be moot anyway, because there's really nothing happening.

The only thing we're kind of waiting for right now in the next couple of weeks is those decisions on his motions to dismiss on statutory and selective and vindictive prosecution grounds, except maybe the SEPA hearings, which are, I think, will also go very quickly. I don't think we're looking at any kind of delay, significant delay if these courts adjudicate this appeal post-haste. But we'll see. We'll see. All right.

So in the exciting news bucket for the week, the jury notices have gone out. At least the hounds, right? In an exclusive from NBC, the US District Court for the District of Columbia has sent perspective jurors a quote, prescreening form asking about their availability to appear in person on February 9th to fill out a written questionnaire for use in the jury selection process for a March 4 trial. And they don't tell you which one, but we know what it is. Yes. We know which one it is. They're going to have to, I mean, I can't even imagine the size of the pool.

It's going to be huge way bigger than a normal jury pool for a trial because I'm sure they're anticipating. It's going to be a long trial with high profile. That is always harder to see to jury in. And of course, you know, this is what it is. So the. And these, these notices went out before any kind of a stay has been awarded. If even one is awarded, even if it's in a temporary administrative one. So they went out, they're out, which is good. Yeah.

That's this happens. And you know, again, it's another sign that didn't get delayed. Right. Chuckens office is moving this thing forward in any way, every way they can every day. So a resident Washington DC who received one of the forms in the mail Monday shared an image of it with NBC news. And of course, those dates line up with the February 9th and March 4th dates assigned by judge Chutkin. So here we go. Let's, uh, that's a, uh, a rare positive,

fusive news for our listeners. Off to the races. All right, time to head down to warmer climbs and the SEPA battle that's heating up on the other criminal case against Donald Trump, the retention of national defense information and obstruction of justice case in Florida, also known as the documents case or the Mar-a-Lago case.

And we've talked a bit on past episodes with our SEPA expert Brian Greer about SEPA section 4. And 99.99 times, like even maybe even more than that, like almost all the time. It's usually an X part A exercise, meaning the DOJ gets together with the judge behind closed doors and they work out how they're going to summarize or redact classified info before they hand it over in discovery. But well, no, not even before because most of this has gone over in discovery, but I think how it's going to be presented at trial. That's right. Yeah. And then it's given to the defendants to say, this is how we're going to be presenting at a trial. And then they can argue.

And the ex-partei nature is important because it gives each side, it gives the prosecutors anyway, the privacy with the judge to talk about things to explain the relevance or what might be damaged if a, if a particular line of a particular document isn't redacted, what sort of damage that could result to national security. That's all stuff that's not even relevant to the defendants trial. It's not discover relevant to the defendant's trial. It's not discoverable. And so there's no reason the government should have to share that with defense attorneys and the defendant and then argue about it.

It's just a way of protecting secrets, important natural security stuff. And that bit is usually non adversarial, right? Because once it's presented to the defense, the defense can file objections to how that's presented. They get a chance to do that. It's not like the judge and the government get together and say, this is how it's going to be done. And then they give it to Trump and say, this is it. This is all, this is how it's done. He gets a chance to object. But now Trump has filed a motion on December 6th to access the CPISection 4 filings. Quote, a motion pursuant to CPISection 4 is a critical juncture where the government

asked the court to endorse the withholding of discoverable material by determining inter-Aliah, whether the material is relevant or helpful to the defense. In effect, prosecutors filing a motion pursuant to this provision or seeking permission to withhold Brady material. That is never true. That's not what's happening, but okay, fine. It's like his, I need the missing January 6th Brady material immediately. There's none, bro. He just keeps going after this Brady janks.

Yeah. We giggly us down. He's just thrown out the Brady label because he's trying to characterize what is actually a very standard practice, lawful practice in national security cases. Gigglya. He's just thrown out the Brady label because he's trying to characterize what is actually a very standard practice lawful practice in national security cases. He's trying to make it look like something bad. Oh, prosecutors are violating my rights again. They're withholding ex-cultivatory information. Exactly. Things that show I'm innocent, they won't give it to me. They go on to save. These motions require the court to stand in a defendant's shoes, predict defenses. The defendant

has not yet presented as an entitled to develop and modify until the case is submitted to the jury for deliberations, and protect important defense rights to exculpatory information and impeachment material. Now Trump gives only three examples of times when the courts have denied a seepah section for X partay, that it be X partay. And none of them really are relevant to this case. He's also asking that Walton Aude gets access to all the classified material.

What? And then, this, I don't want it. This boggles my mind. He lists other proceedings that aren't X partay. He's like, hey, there's FOIA cases and that aren't X part A. He's like, hey, there's FOIA cases and X part A, there's habeas petitions. Some FISA proceedings aren't X part A. Like what? Hey, Andy, my last lab results at the VA weren't X part A, so CEPA section 4 filing shouldn't be either. It's just weird. He then argues local rules against ceiling, which also have nothing to do with

CEPA stuff. That's irrelevant to CEPA proceedings. That it doesn't apply like, you know, how most courts are like like I'm thinking of the judge barrel house stuff and the judge Bozberg stuff up in DC like the courts they're loath to Keep things sealed and as soon as they, they like to unseal stuff. And so he's saying, hey, you like to unseal stuff all the time, courts? How about these see a section four classified documents to my Diet Coke Valley? It's just not relevant. And kind of ironic, coming from the guy who as president was responsible for keeping the

government secrets and who notably got up and railed about going after leakers and people who misused classified and how bad Hillary Clinton was for having classified on her email server. Yeah, that's the same guy who's now arguing, open the doors, judge, let the sunlight on the sepia stuff. I'm not president anymore. I don't care what gets out. For the four going reasons, President Trump respectfully submits that the court should order the special counsel's office to provide his cleared counsel. That means, you know, counsel that has the right clearances with attorney's eyes only access to all seep a section for submissions and to file redacted versions of those submissions on the public docket so that the public and the press can access the unclassified portions

of the documents. Always fighting for the rights of the press. And this, yes. This is kind of an inflection point in this case, isn't it? Because as I said earlier in the show up till now, it's been nickel and dime delay, right? Like, she's kind of showing her deference to Donald Trump by waiting two and a half months to issue a protective order over evidence. And you know, these delays, delay, delay, the whole thing where she's pushing all the sepah back. And then she wants to meet again on March 1st to decide about whether

a trial date needs to be pushed back. It's, it's that kind of stuff. But this is a peelable stuff, I think, right? If, if she grants this, I think that Jack Smith can then have an immediate expedited triggered appeal under SEPA rules to go to the 11th Circuit and say, guys, remember me? He's at it again. Yeah. Absolutely. He has to do that, not just in a desperate effort to keep this rambling wreck on schedule, but also to protect, to avoid starting to create some sort of damaging precedent that could affect other national security cases. DOJ is not going to let this case take a chunk out of CEPA for that. No.

And the 11th Circuit is not going to let classified documents go to people who aren't going to see them. They showed us that when they wouldn't allow them to go to the special master in the whole special master case that we had that was over. Judge Cannon's ruling was overturned by the 11th Circuit. I'm hoping Judge Cannon knows if she rules improperly. In this case, the 11th Circuit will overrule her again. Yes, yeah, agree. All right. We just have a little bit left to get to. A new special counsel, an old special counsel, actually, older, far older, not in age on the earth, but as far as he's been a special counsel, we have more news about that and the Hunter Biden indictment that just came down.

And then of course, we'll take listener questions, but we're going to take a quick break, stick around, we'll be right back. Okay, welcome back. So let's jump from in and out of the Pure Jack Smith Lane to cover a development that gives us what I think is a good contrast between special councils. So I'm talking between special councils. So I'm talking, uh, AG, of course, about David Weiss, who is the special council investigating Hunter Biden, and who revealed yesterday that Hunter will be charged with nine counts of tax charges. So three felonies and six misdemeanors in a new indictment in California. Um, and I think this raises a bunch of really good questions. Uh, but also when you just look at how we got here to this place in the case, I think you see some pretty stark contrast to the way that we've seen Jack Smith approach his work.

So let's just review the typical route is investigate and write cooperate. Right. That's how it usually works. Investigators do their work. Prosecutors get an indictment when they think they're ready to. And only after the indictment does the defendant make an effort to come in and cooperate in plea bargain. If the defendant pleads guilty, obviously

the prosecutors usually drop a few charges and then they agree that the investigation is over, meaning we say in the biz, we call it coverage. It definitely gets coverage. It is not gonna be charged, you know, or face any more charges for that conduct that he's already pled guilty to. So things that happened around the same time or were generally considered part of the same activity.

And the first advantage doing that is that very clearly establishes on the public record what the universe of possible offenses is, right? The indictment shows us what the prosecutors think they can prove. At the end of their investigation, here's what we can prove, here's what we think we can convict this guy on. The second advantage is the world knows the entirety of what the prosecutors had advantages, the world knows the entirety of what the prosecutors had and how much they were willing to give away. Right. So after the plea comes out, it's publicly known. Oh, they started with whatever nine charges, 23 and whatever. And the defendant agreed to plea guilty. They dropped six and now he pleased to three, whatever. So in this case, very different path. In this case, you had a five-year

investigation within which the target, as we've heard in the reporting, cooperated to some degree, he was interviewed, I believe, and he also provided some documents. Then the two sides agree on a plea agreement before an indictment. That is weird. Just that piece alone, a plea agreement without an unpreseating underlying indictment. And that in my mind, that's what creates and leaves open the possibility for people to question and really project their own paranoia, frustration, whatever their own paranoia, frustration, whatever, on the investigation. You know, it looks like not the judge did it in this case. Yeah. Well, Judge was like, all right, so we got coverage.

Then no more charges. Well, this reveals the next piece, which is they do this silly thing about entering, coming up with a plea agreement before anyone knows what the investigation actually revealed, which leaves open the door for people to think like, oh, he's getting a sweetheart deal or whatever. But fearing the political fallout, prosecutors include in the indictment wording to the effect of you get no coverage, we're going to continue investigating. In the indictment or in the plea deal. In the plea deal. And that's the thing that blows up the

police. So the judge is like, hold on a second. I've never seen this. Do you know Mr. Defendant Biden, you could get charged again. And then yeah, yeah, that's what is the turn is really hold on a second. We didn't realize that they have the meeting You know, they they stop the hearing they go have this meeting they can't come to an agreement She gives them a couple weeks and of course the end result is they can't come to an agreement because now I virtue of how David Wyser structured this thing yet leads both sides pissed off. And everybody's like, no, why would I plead knowing that I could probably get charged again for the same sort of stuff or so on as related stuff? And everyone else is like, oh, this is, this is a terrible thing. So I just think it's an interesting case study of sloppy. It's kind of sloppy.

It seems to be directly related to the special council, likely trying to insulate himself or protect himself from political pressure, which he's receiving a lot of. And so doing some really unconventional things. On the other hand, look at Jack Smith, like we talked about earlier, this guy is like got the book out and is following every rule, aggressively pushing the dead lines, you know, asking for speedier resolutions to things, but he's been very transparent. They've turned over a lot of discovery. He's trying to avoid, he's trying to deny Trump the ability to plant any kind of landmines in the case that could slow it down later. So all special counsels not created equally apparently. No, and all discovery that's gone to Trump is like filed and numbered.

And we gave you this in an annotated January 6th transcript. And we gave, you know, and Trump's like, look at all this stuff. And he's like, well, a lot of it's repeats because you asked us to include that stuff. And so, you know, that continues to go on. And another thing too is that, you know, this, I think, I personally think that Abilol and Hunter Biden have a pretty good case for vindictive and selective prosecution. First of all, they had all this back in the plea deal. Like, and now it's felonies, that's weird.

And then, I mean, you want to talk about Trump projecting every accusation as an admission when Trump says this Jack Smith thing is election interference. Jack Smith's been there for a little over a year. David Weiss has been there for five years, and now we're getting an indictment. That selection interference, okay. Yeah, and I think Abbey Lowell's comments yesterday were really revealing. He said, like, here we are getting charged,

whatever nine counts from, on the same evidence that a month ago was a plea deal for two misdemeanors. And let's remember that all of this is based on tax finagling or whatever, tax malfeasance, let's say, that happened before 2018, and which he allegedly paid the government for in 2018. So if he takes them to the hoop on this nine count case. I think this is a fair chance that he beats it to be perfectly honest. I think so too.

I think so too. If it makes it to trial, especially since all the public hearings and the IRS whistleblowers quote unquote, I mean, that's really damaging for the prosecution. But you know, I mean, it's just, we have so many, and we do have a filing from Hunter Biden to get information for Rule 17, B. Sipinas, that look like it could reveal some

maybe vindictive and selective prosecution. But then, you know, then, of course, David Weiss responded like he was filing a motion for a vindictive and selective prosecution and gave him his whole defense of that argument. And so now when he files the motion, he'll know exactly what David Weiss is going to object to. I thought that was pretty smart on behalf of Abby Loll. But if they do vindictive and selective prosecution, it's going to be hard to prove

though because Merrick Garland is the attorney general. Even though David Weiss was appointed by Barr and Trump on all that five years ago, Merrick Garland is the attorney general right now. And he hasn't wanted to interfere in this. And that could make it look like it's not vindictive or selective prosecution because Merrick Garland is allowing it to go forward. But also this indictment is a speaking indictment. There's a bunch of stuff in here.

It reads like the Durham indictment, right? All this Russia blah, blah, blah, blah. And thenment is speaking indictment. There's a bunch of stuff in here. It reads like the Durham indictment, right? Like all this Russia blah, blah, blah, blah. And then with the Durham indictment. And then in this indictment, it's just, he didn't pay his taxes for a few years. He eventually ended paying him, but he goes off on China and barisma and all this kind of, almost cons, right.

He bought exotic cars and clothes and, you know, hookers and pretty much anything except paid his taxes. There's like these smarmy kind of references in there. And I get the exotic lifestyle thing because that showed up in Manafort's indictment as well. But all the China and Burisma stuff, which is just conspiracy theories, that kind of fuel what the GOP Congress is trying to indict Biden on, which they have absolutely zero evidence of. So this reads to me like a Durham conspiracy theory laden indictment.

Yeah. But yeah, I'm with you in the comparison with Jack Smith. I mean, on a scale, like the special counsel spectrum, on a scale from Durham to Jack Smith, I put David Weiss down on the Durham end. I really do. Yeah, if Smith is a 10 and Durham's a zero, which is how I would rate both of them. I mean, I gotta give,

I can't give Weiss anything better to five at this point. Well, I give him over like a seven and a half and then I would give her like a four and I would give, I would give Weiss like a two. I mean, that's not bad. He hasn't done anything to indicate like pre decision or corruption or anything like that. I think this is more bumbling and like, or decisions of strategically, you know, I just think he's, he's, he ran for the, for the exit exit door with that with that premature plea agreement.

And that caused all kinds of problems. Now he finds himself in this kettle of fish, which is like almost undueable. And he's got Abby Lowell staring at him, which is on me. His life. And he's like guys are wolf. And they want him to testify to Congress, Hunter Biden. And if I'm Hunter Biden, I'm like, I don't know if David Weiss is done or not yet. So I got to plead the fifth on everything.

All those other under open criminal investigation right now. If it's if it's not and it looks like now that's going to take place in private. Because of course, Congress doesn't want him to testify on on TV. He's going to make them look ridiculous. So if it's in private, I think he just goes in there and says, I take the fifth to everything. And just like, you know, screw like screw you. Yeah, yeah, because I have two. I still have, I'm a part of an ongoing opening, ongoing investigation, yeah. Yeah.

All right, time for some listener questions. What do we got? Yeah, listener questions. You're gonna hit one topic this week that was kind of the focus of a lot of people who wrote in and that topic is like, kind of what are the consequences and effects of what people think of as frivolous motions and like nonsensical filings to the court, which obviously a lot of our listeners

are feeling that way about some of Trump's motions and stuff. So from Lynn, we get, do Trump's lawyers come up with this stuff or is it just, it was Trump actually writing or directing these strategies? Rob says, what does it cost to file an appeal? How much time and money is Trump wasting on lawyer fees, court resources? And then someone who's, I don't know if this is a name or a, or a nickname, POSPOERI says, why is the taxpayer burdened by the costs associated with frivolous motions?

So we are because it's kind of an essential piece of maintaining an equal and fair justice system for everyone and due process for everyone and not everyone, most, almost, litigants don't have the same access to resources that Trump does. And so the courts air very much on the side of letting people have their chance to say whatever it is they want to say and file whatever motions they want to file. There's really only two ways that courts respond to this stuff. One is, of course, sanctions. They can impose a sanction on the attorney or the the would again, and that's a monetary fee,

and they're pretty reluctant to ever do that unless it's like obviously totally over the top baseless claims, usually around the initiation of the suit, not so much a motion filing, or they can actually dismiss a suit that they think is frivolous. I actually had one that a person filed against me and some other people based on my prior position and the court dismissed it as frivolous. Of course, she's appealing now, so it's still going on, but whatever. So that's kind of the only arrows they have in their quiver about what to do about it. How much does it cost?

Well, it doesn't cost them very much at all. There are some minimal costs associated with filing fees and certainly Trump can handle those. It depends on what your lawyer charges per hour. What a good, good federal court's appeal can, handle those. It depends on what your lawyer charges per hour. Yeah. What a good federal courts appeal can, you know, for a regular mid-level lawyer can cost, you know, between 10 and 20 grand. Yeah.

Oh, you know, all told. But if your lawyer gets, you know, 15, 85 an hour, like this, this expert witness in the New York Attorney General trial cost him $850,000. That's why he was in court, I'm pretty sure, because he wanted to see cost him $850,000. That's why he was in court, I'm pretty sure, because he wanted to see how his $850,000 investment paid off. Yeah, you're an average guy. Big name partner at a big firm in Washington, D.C. is getting north of 1,500 an hour.

So it doesn't take long to handle for the huge bill. It's discovery that costs an arm and a leg. I've noticed that can run into the millions in these huge cases with high-powered attorneys. Sure. And even, even if you have to sue Rudy Giuliani because he didn't pay you. Exactly.

Even with the high-powered attorney costing you a lot, they're behind every high-powered attorney is a fail-anx of associates and paralegals and the technical guy who figures out how to download all your emails and put it up into some system that's searchable by the attorney. And third party experts and out of preservation. That's crazy. Discovery.

It's trust. What are they called? I don't know. There was some like $350,000 charge that Rudy couldn't pay for just a firm that just goes through the discovery and searches for relevant stuff. I mean, it maintains the data basically and can respond to the other side's discovery request. So it is wildly expensive.

And I'm sure Trump is burning through tens of millions keeping this going. Yeah, and it's not all of its taxpayer money. The taxpayers pay for like the courts and the staff and stuff like that. But all that stuff is paid for by in Trump's case, probably mostly people on Social Security who checked the box to give a,

or didn't uncheck the box and now forced to give monthly donations through Red Wind to the Save America pack. That's probably where most of it is. And honestly the cost of being paid. The cost to us and the public, the court is there anyway. And these are salary employees that are doing their job. So that cost happens. But the cost is that the more time everyone has to spend on this nonsense, they're not

moving other cases along. So other people have to wait. There's more delay overall. It slows down the docket. So there is an effect, but it is kind of one of the costs of having a free and pretty fair system. So there you go. Yep. And the taxpayer does pay for special counsel through a permanent fund at the US Treasury, which as we've said a million times can't be diffunded by Marjorie Taylor green. That's right.

But that fund is always there also. Yep. So it's not like additional appropriations to pay for Jack Smith. So when Trump says this cost $30 million, the Mueller investigation, it was already there for this. For sure. Anyway, that is our show for the week. We got a little bit shorter than last week.

Um, I was, I had it under an hour before that gag order, not don't call it a gag order. Ruling came out and, uh, that of course, not 404 B motion was pretty amazing. So, oh, we'll see what we have next week. Um, I, I expect we'll get a briefing schedule for the immunity appeal. I think we'll have that by the end of next week. They'll just need a sign of panel and we'll see what they want to do.

And I think maybe Judge Chuck can put out her orders, her rulings on the selective vindictive prosecution and statutory considerations. I think she might get those out while there's no stay. Yeah, just get them out there. Yeah. We'll be able to talk about that on the next show. And thank you again, Patrons. We'll see you on April 20th in DC. We'll send that location information and RSVP's out in the new year. Anything any final thoughts before you get out of here my friend?

No, I think it's been another great week and look forward to what we have next week. So we'll see everybody in a few days. Yep, we'll see you then. I've been Allison Gil. I'm Andy McKay. You