Jack - Episode 65.5 | The One Where They Granted Cert

Starting point is 00:00:00 I signed an order appointing Jack Smith. And those who say Jack is a finesse. Mr. Smith is a veteran career prosecutor. Wait, what law have I grew? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is? Send me to jail!

Starting point is 00:00:31 Hey everybody, welcome to episode 65 and a half of Jack, the podcast about things all special counsel. And my dream is dead. I'm Allison Gill. That is the saddest intro we have done in over a year of shows, but it's appropriate. Nonetheless, I'm Andy McCabe and also kind of stunned by the Supreme Court decision to really weigh into this case and very concerned for the future of what's going to happen to the election case. Yeah, and this could really and will have an impact on when the trial is held. I was hoping that they would deny the stay, but let me just read to you the order. It says,

Starting point is 00:01:06 Sir Shirari granted the application for stay presented to Chief Justice, and by him to the court, special counsel's request to treat the stay application as a petition for writ of Sir Shirari is granted. And that petition is granted limited to the following question, whether and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? Without expressing a view on the merits, this court directs the court of appeals to continue withholding issuance of the mandate until the sending down of the

Starting point is 00:01:42 judgment of this court. The application for a stay is dismissed as moot. The case will be set for oral arguments during the week of April 22nd, 2024. Petitioners brief on the merits and any amicus, curia briefs in support or in support of neither party are to be filed on or before Tuesday, March 19th. Wow, that's three weeks from now. Respondents brief on the merits and any amicus curia briefs in support of that are to be filed on or before Monday, April 8th, which is another gosh 30, no, let's, let's see, 11, like 19 days after the first thing is due. And the reply brief if if any, is to be filed on April 4, 5 p.m. Monday, April 15, the week

Starting point is 00:02:27 later in 2024. That's it. That's the order. And my first question is when they say that the question that is before the Supreme Court is whether and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Now I thought the DC Circuit Court of Appeals, well I should say they did, rule on this narrow case whether or not a president enjoys immunity when the alleged crimes are that he tried to

Starting point is 00:03:08 subvert the election and stay in office past his four-year term. But this seems to insinuate that they're going to decide whether any president has immunity for their official acts. It seems broader than what the DC Circuit Court said. And they also use the word alleged when they actually have to take what's in the indictment as true. But I think that, you know, that they just are using the word alleged because the indictment,

Starting point is 00:03:33 everything in an indictment is alleged until a verdict is handed down in the trial. So I don't know, Andy, this just is, again, you know, you remember my dream. My dream was that after they denied the leapfrogging thing back in December, that they would come back and deny cert or deny the stay. And that would make this trial get back on track

Starting point is 00:03:57 in the fastest way possible. That has not happened, as I said in the intro, my dream is dead. I am also very surprised that they took over a week to treat this as a petition for cert and grant it. As our guest this week, Steve Vladik said, if you remember. Oh, I remember well. Steve said that every day, Steve said that every day they take, the longer they take to give any sort of answers, probably bad for Trump because it indicates

Starting point is 00:04:32 either that they've decided not to take it and somebody's writing a dissent or they're doing some last minute bargaining or what have you around how to announce that. And his reason was doing this, saying yes, we're gonna take this, we are approving your request for cert, cert triari, they could have done that the next day.

Starting point is 00:04:57 They could have done that two days later. There was no reason to burn as much time as they have burned since Trump filed this appeal. And so it's really bizarre. It gets you to the question, well, first of all, I read the order in the same way that you do. There's two things that really grabbed me. The first was they tee up that question

Starting point is 00:05:21 in a way that makes it sound like what you're gonna hear next is a narrow sound like what you're going to hear next is a narrowing of what they're going to consider. But it's not. It's actually a much broader view. It's really opens the door to the entire can of wax. What constitutes an official act and what doesn't and therefore, is there any immunity? If so, how much and does it cover official and unofficial?

Starting point is 00:05:46 You know, all this kind of stuff is really, could be on the table. So it's a, I think it's a pretty broad review. And secondly is that use of the term alleged, like when you first, when you were reading it before, I'm like, wait a minute, who are they claiming is alleging what? Neil, I could resolve that in my head was that maybe they're, the term

Starting point is 00:06:06 alleged they're referring to Trump's allegation that all his acts were official. Maybe. But I don't know, that's not even a natural way to think about that. So it's very confusing, very confusing. Yeah. Very confusing, very confusing. Yeah, and it kind of indicates, Judge Ludwig has said, first of all, there are conflicting opinions among experts about when this trial could go.

Starting point is 00:06:35 Judge Ludwig says, and I think Renato Mariotti as well, says that they don't think that this will be decided by this term, which ends around July 1st. Oral arguments April 22nd and the term ends July 1st. And Judge Lutig explained the reason he doesn't think it's going to happen is because it seems clear that of the four justices that wanted to grant cert here, mooting the stay so you don't need the the five, at least one of them must be dissenting to what the DC Circuit Court of Appeals decided, that in this particular case, Donald Trump doesn't have immunity. And so that makes me wonder if Alito or Thomas or whatever is one of these judges who, one

Starting point is 00:07:29 of these justices who has said, hey, I think he gets immunity in this particular case. Or I concur that he doesn't and I have a lot to say about it. And so Judge Ludwig posits that that decision will take a lot longer than from what April, May, June, two and a half, two months and eight days, right? It would take longer than a couple of months to decide at this term. That would push this trial past the election. Now, some others, including Neil Cottyall and Randall Eliason and some other experts are saying there's a narrow path here to get this done before the election. If they have oral arguments April 22nd and decide in April or early May, and Andrew Weissman

Starting point is 00:08:17 also posited this as well, then we may see the trial go before the election. And we're reminded that there when, you know, when they first put this whole trial in D.C. on pause, there were 88 days to the trial, three months, basically, until the trial. And that that's how much time would be needed once it's back up underway, how much time would be needed to finish briefing and preparing and all that other stuff. But Neocati also suggested that Judge Chutkin could actually truncate those 88 days in favor of, as she has said in the past, you know, remember when they were trying to get the limited gag order through and she's like, if you keep talking, I'll make this trial go sooner. So, you know, there is a possibility she could truncate those 88 days and make the trial start sooner. But regardless of that 88 days, if a decision comes

Starting point is 00:09:16 down before the end of the term, we could see the trial go in July, August, something like that. And Andy, this is where my question comes to you, because of the DOJ's unwritten policy that we don't do anything overt to interfere in elections. It's not written anywhere that 60 days before an election policy. However, does trial count, or is that more for overt investigative acts? Well, we'll see what DOJ ultimately decides if they have the opportunity to decide that my interpretation My argument would be no it doesn't apply. The policy does not was not drafted to fit this situation the policy speaks to to fit this situation.

Starting point is 00:10:06 The policy speaks to investigative action and not all investigative action, just overt publicly known investigative action, like the execution of search warrants or arrest warrants, things like that. Or indictment. You could still, well, if you indicted someone, you could keep it under seal. That would be fine.

Starting point is 00:10:23 You could still serve grand jury subpoenas or search warrants on businesses and things like that, but you'd have to do it with nondisclosure agreements and things like that. That's really what the policy is meant to address, the overt investigative steps by prosecutors and predominantly the FBI. This doesn't really fit with that. Secondly, the schedule is not in DOJ's hands anymore. The schedule is in the court's hands. It's up to the judge to decide

Starting point is 00:10:59 whether the case is gonna go forward or not. So I really don't, you know, again, you never know so many things have happened in this that I would not have predicted. But I don't see the DOJ policy being like really the bottom line on whether this can happen in those last few months before the election. Much more relevant will be the stink that Trump will make if this thing gets back, if we get a decision in time and the case is kind of re-initiated, there's no question that he'll wait until the last possible second. We still have a long way to go.

Starting point is 00:11:33 We still have pretrial motions. We still have all kinds of things that need to be accomplished. He'll file motions and object to all those sorts of things and try to appeal the decisions on those, you know, on the appeal those decisions as they go against him. And then at the last possible minute, say, he'll say, you can't possibly put me on trial now in the last two, three months of the election. It's not fair. It's not fair to me as a candidate, not fair to my First Amendment right. It's not fair to all the people who want to hear what I have to

Starting point is 00:12:00 say and want to consider voting for me in the election, everything else. And then, Chutkin is in a really tight spot because there's a strong argument there. Of course my response would be you asked for it. Of course, but if she dispatches his request with any sort of speed, he'll then appeal that. So there's so many opportunities here. And we haven't even talked about the fact that the decision we ultimately get from this court could be one that requires further action by the trial court.

Starting point is 00:12:29 They might say, okay, we're sending back the issue of here's what we think is an official act, here's what we think is not. Now we want you, Judge Chutkin, to decide of all this stuff, which one falls in which category. So there's all kinds of ways that this could lead to many more legal issues that need to be resolved. So even if we get it back on in time, there's a lot of runway left here before it happens. Right, because if she makes a decision on that and says, okay, I've determined that this isn't part of that and we're going to go forward, that can then be appealed. Exactly. Any adverse ruling on any issue, microscopic or massive, he will appeal. He automatically appeals to everything because the strategy here is delay. So the thing that is really driving me crazy about this is if you think about their, what was their

Starting point is 00:13:22 motive for weighing in on this, It could be what you described before, that there are some who are taking his side on this argument, whether it's a Lido or Thomas or whoever it might be. Most of the pundits that I'm hearing on television are saying, no, no, no, still the odds are that the court will not rule in his favor. They will adopt some sort of ruling that's similar to,

Starting point is 00:13:44 or at least to some degree, affirms what the DC Circuit put out in their decision. If that's true, then they're only taking the case because they think the issue is of such momentous importance that they, the Supreme Court, have to weigh in on it. And if that's true, they are prioritizing their ability to have the final word over the nation's chance of getting this issue resolved before the election. And it is distinctly an issue that has such bearing

Starting point is 00:14:19 on the potential votes of close to 200 million people. I mean, it's just such an act of like, in its most innocent terms, it's an act of unbelievable arrogance. I think it's outrageous. I agree, and I wanna talk more about that motive and how this might impact other cases and what this looks like toward the election

Starting point is 00:14:43 if we get the narrow path of a quicker trial than post-election. But we need to take a quick break, so everybody stick around, we'll, welcome back. I want to talk more about what you were just talking about, Andy, and that's their motive, the arrogance, right, at the best, best case scenario. They want to swing their robes and weigh in on this, at least four of them do, which I can, you know, there's four that I could pick out that seem like maybe they or feel like they're more important than democracy. But I want to talk about something very interesting.

Starting point is 00:15:27 If they were going to grant this, why didn't they grant it in December when asked for the leapfrog? Do you remember when the first part of my dream scenario came true? When Jack Smith actually argued, you have to rule on this. This is important. You are the only court that can decide this. Why didn't they say, yep, you're right and grant cert before a ruling from the DC Circuit Court of Appeals? Well, I don't know. I mean, every time you layer on another factor like that, it gets a little more complicated to figure out, right? There's that

Starting point is 00:16:02 argument. There's also the argument that Judge Ludwig put out that you talked about earlier. And that complicates this understanding of what their motive might truly be. I do think that they exist. I think that they have a deep preference for normal order. And I think that that was likely a motivating force in their decision in December to say, no, we're not going

Starting point is 00:16:25 to go along with the leapfrog approach. And we'll see how they handle this review because if they just say, okay, thanks for your quick briefing responses and we'll hear the case and then it slots right into all the other ones and we'll announce it sometime next year, we'll know that that, you know, they're... I think that even if they do those, make those decisions out of these kind of, I don't know, ridiculously institutionalist perspective of trying to just keep things in normal order. It at least indicates an oblivience that borders on arrogance about what is really at stake

Starting point is 00:17:17 here. Like, you didn't see this in Bush v. Gore. They didn't sit around and say, all right, normal briefing schedule, talk to you. Maybe you'll hear from us next year. We'll have one of our mystery drops on a Friday afternoon, a year from now with the actual decision. They have the ability to do things as quickly as they want. They could say, brief it, you each get one shot.

Starting point is 00:17:40 Here's your day of briefs, and we'll see you next week for the argument. Well, that's what Jack Smith asked for and I wanted to bring that up. Jack Smith wanted 10 days for the first brief, seven days for the second and five days for the third, if necessary. That's like 22 days. Here we've got almost two months. Yeah. I mean, the case I'd like to point to is, I think it's ex parte que, and the case against the German saboteurs in World War II.

Starting point is 00:18:07 And Roosevelt's order to put them on military commissions trials, they were all on trial within like two weeks. And then they filed that motion that the military, challenging the constitutionality of the military commissions. Bam, it went right to the Supreme Court, who they were in recess at the time. And so they all convened at one of the judges' houses in New York and argued it in his living room and that the decision came out, not the written opinion, but the decision came out like a week later.

Starting point is 00:18:37 Like they've been doing this before. It's not- Watergate, I think they took out of term as well and had a ruling issued in two weeks, 16 days, for the Nixon tapes. So that also is another example, but also an example that this might go quicker than Renato Mariotti or Judge Ludig are insinuating. However, I have now kind of lost all faith in them doing this in a quick manner with regard to the election.

Starting point is 00:19:14 Now I'm, I generally don't tip toward pessimism, but like the court is- You have no reason for faith. The court is just slowing this down. Yeah, I mean, I, you know, I try to base my decisions on things, on fact, on evidence. What evidence do we have upon which to draw a particular conclusion or prediction? And right now, you have no evidence upon which you could base the conclusion that, oh, well, they'll do this very quickly and all the evidence pointed to them denying this day.

Starting point is 00:19:46 Right. And, and, and still logic points to them affirming essentially what the DC circuit decided. But maybe not. I mean, I think literally, I think the whole thing is up in the air. It's like an issue of first impression. I still think they'll affirm the DC circuit. It may be seven to two, maybe eight to one, somebody might want to write a long dissent. But all I can do now is hope that they get this decision out in a May timeframe, a May June timeframe. And if the 88 days is not truncated by Judge Chuckkin, that puts us at a trial starting

Starting point is 00:20:22 in August. And that means that, and Jack Smith has said in several filings that the trial will take three months probably. That puts it the trial for August, September, October. Now, talk about an October surprise. I mean, that's kind of good for Democrats in a political way if that's how it all shakes out because voters have short memories. Who knows, maybe not, like being on trial every day.

Starting point is 00:20:50 Maybe that's the best form of campaigning in 2024. I don't know, but I just think that the idea that a federal judge is going to schedule a trial like that, bumping up against the election for the next president of the United States. I just think it's unlikely. Well, she did say she had a vacation in August, but she's going to cancel it because she thought she might be at trial. Yeah, that could have been hoping that she was at a trial that had started in June. That was the end of the trial. Yeah, right. Not the beginning of the trial.

Starting point is 00:21:22 Not taking a jury in August. I mean mean it's Yeah, I think the chances of it going before the trial are now unlikely It's kind of flipped upside down before the action. Yeah, the chances of the trial going before the election are unlikely and if it doesn't The chances of the trial ever happening, ever, are no better than 50-50. Hmm. Well, it was up to us, the voters, in 2020, when we didn't get any of the Mueller stuff indicted, like we thought we would, because Bill Barr tanked all that with his legal council memos and deliberative process privilege and all that jazz. I mean, we

Starting point is 00:22:12 will have to see how it shakes out. Now, you know, normally I'd be like, no, it'll go. It'll go before the election because I think they'll come out with a decision in plenty of time. But with this slow walking of this grant of cert and the fact that they just didn't deny the stay, I mean, at the very least, at the very least, they scheduled a relatively expedited briefing schedule and our oral argument, right? We're still in the same term. They're still there. They don't have to be called back.

Starting point is 00:22:48 And we could very well get a decision before the end of this term, right? That's one scenario. If we get a decision before the end of this term, I think the trial goes before the election. If we do not, we do not. And at this point where I would normally be like, it'll definitely go.

Starting point is 00:23:08 I am actually just 50-50. It could go either way based on what the Supreme Court did today, do you know what I mean? Yeah, I see that. For me, like June 1st, if they get a ruling, if Jack Smith gets a favorable ruling, you don't know that he will. I think I'm pretty sure. I think most people still assume he will,

Starting point is 00:23:30 and that's probably the smart money. But if he does, by June 1st, you have a chance, a slim chance of getting it in before then. But it gets really hard to see that path after June 1st. Yeah. Just because of all the work they have to get done. And then the three month trial, which is right in the heat of the, of the campaign, I feel like that's going to be a tough one for her to force.

Starting point is 00:24:00 Yeah. But who knows? She's a, she's a tough woman. Yeah. Let me read to you what the DC Circuit ruling said. They said that they have no occasion to decide the big questions because they are only looking, they said, we're deciding issues quote specific to the case before us, in which a former president has been indicted on federal criminal charges arising from his

Starting point is 00:24:32 alleged conspiracy, there's alleged, to overturn federal election results and unlawfully overstay his presidential term. That's what they decided. But here, they say the question is whether if whether and if so to what extent does a former president enjoy immunity from criminal prosecution for conduct alleged to involve official acts. That doesn't seem like they have dicta here to decide that because that's outside of the scope of what the DC circuit court decided and put in writing and said, we're only deciding this very specific thing.

Starting point is 00:25:09 So it's very interesting to me that they decided they even have dicta here, meaning that this is something that they can argue or rule on. Yeah. I mean, at the end of the day, it's kind of like the whole issue. Like I was really hung up on Trump's request for the mandate. I can't even remember how he framed the thing. Basically his request for the stay, to keep the stay in place, because it wasn't actually captioned

Starting point is 00:25:38 as a request for Sir Triari, and a request to review the case. So- But Jack Smith asked for it. Jack Smith said. Yeah, he did, but in essence the Supreme Court, they say how it is. So they can say, here's what we're going to consider. And you know, no one, you can't go back to them and say, oh, not so fast, just this isn't squarely in the crosshairs of what the circuit court decided. They just look at the papers.

Starting point is 00:26:10 They just argue about more arguments, right? I mean, they could be like, look, this is specifically decided on this. So we don't need to, we can save for another day, whether all presidents are immune from all official acts or whatever. And like you said, they could remand this back to Judge Chutkin, creating this whole new appellate process and, and motion practice, if need be, because they want her to decide something. It sounds like the way they're teeing it up is that they, like you said, they may say, we think that presidents do have some immunity for some official acts.

Starting point is 00:26:42 Right. It's up to you now, Judge, to decide if this is... Go sort it out. That could take six months. Yeah. It could take a year or more with embedded Supreme Court appeals. Yeah. So, yeah.

Starting point is 00:26:57 Well, I have one more thing I want to talk about, but again, we need to take another quick break so everybody stick around. We'll be right back. Welcome back on this dark, dark day where Allison's dreams have died. It's the place where dreams go to die. I was so sure I even spent a Friday night like a party animal writing a mock Decision mock victory lap a Oscar speech for the immunity decision day. Yeah and and mine Andy said

Starting point is 00:27:38 The application for a stay of mandate pending review presented to the chief justice and by him referred to the court is denied of mandate pending review presented to the Chief Justice and by him referred to the court is denied. The questions whether presidents enjoy immunity from official acts and whether the impeachment judgment clause and principles of double jeopardy foreclose the criminal prosecution are unprecedented questions and raise serious substantial concerns. However, the court of appeals had no occasion to decide these questions because it analyzed and rejected President Trump's immunity and double jeopardy claims specific to the case before them. Because the Court of Appeals concluded no immunity attaches to a President's commission

Starting point is 00:28:13 of a federal crime to subvert the electoral process, it is not necessary to determine whether the double jeopardy claims or immunity for official act supplies in other situations. For those reasons, President Trump would not likely succeed in reversing the circuit court ruling, and the public and law enforcement interest in swift justice countervails concerns of stifling executive authority. The same public and law enforcement interest

Starting point is 00:28:36 weighs against the application, even if the standards to grant a stay had been met. Justice Thomas would grant the application the end. That's what I wrote. I like yours better than theirs. I mean, for real. It was so much better. Made so much sense. But now here's the question for you. Judge Cannon, and we're going to talk about the Mar-a-Lago case on the regular episode of the Jack podcast this Sunday.

Starting point is 00:29:08 But Trump has submitted an immunity filing, an immunity brief, a motion to dismiss on immunity claims with her. And she has a hearing this Friday, a long-awaited hearing to decide the disposition of the case and the trial schedule and all that other stuff. She's denied some C-Pasection 4 motions from Trump, Bernada, and Dale O'Vara, and again, we'll talk about those some days.

Starting point is 00:29:27 She did a right thing. But she could now say in this hearing about when the trial goes, hey, Supreme Court's deciding immunity on official acts. And since Trump is claiming that he has immunity on this official act of declaring the documents personal records, we're gonna stay this whole trial

Starting point is 00:29:49 until the Supreme Court comes down with a decision. So we might get a delay in that case as well. We could, we could. She could also say, if he's actually, once that motion's actually filed, it's been filed in that case already, right? Yeah. Or is this just one of the ones he's saying is coming?

Starting point is 00:30:04 No, he's filed it. It's already filed. So she could just say, I'm gonna hold that one until we hear what the Supreme Court says and just keep moving forward on. C-PAS, maybe? She'd be crazy to move forward on it.

Starting point is 00:30:24 And anyway, like there are factual determination. She'll have to make the matter. What the Supreme court decides on immunity. She will have to make factual determinations and they're holding will be directly relevant to how she does that. So she, she can't decide on that thing. But I think it's, um, you know, hill, if she says, okay, fine, we'll put that one on ice and everything else moves forward, Hill immediately appeal that to the 11th Circuit saying it

Starting point is 00:30:51 should be an interlocutory appeal, she shut the trial down. So you're gonna, yeah, you're gonna go down essentially the same road in Florida. Yeah, I think her lawyers this Friday during that hearing will ask for a stay based on Supreme Court deciding to grant cert. Yeah. You know, the other thing that's interesting to me about this, I'm just, I can't fathom it. I know. The other thing that I can't get off with considering here, and again, this is the unknowable, right? We're trying to think about their motives and all that other stuff, but you have to assume that on some level, they were, uh,

Starting point is 00:31:25 the fact that they're not rushing more to get this, now they decided to take it, they're not really rushing intensively to get it resolved quickly to put the case back on trial if that's in fact what their holding is going to be. And if that's the case, maybe they're thinking like, well, you know, we don't want to give the impression that we're rushing this to happen before the election and therefore treating this defendant differently and prioritizing, you know, the election over the defendant's rights. But that theory completely, completely ignores the rights and interests of justice and 200 million Americans' ability to vote.

Starting point is 00:32:08 Those countervailing issues. Right. That I brought up because they did it in Trump v. Thompson, right? Trump wanted executive privilege to prevent documents from going to the January 6th committee from the National Archives. And the Supreme Court was like, it doesn't matter if you have executive privilege or not.

Starting point is 00:32:23 The importance of this investigation and the importance that they get these documents outweighs, countervails, your executive privilege, even if you had it to exert and you don't, but even if you did, this is more important. And time and again, we've seen Jack Smith argue the importance of swift justice and the public's right and the law enforcement's right to speak in it. Of course. People's right to vote, which is central to the case itself as he's been charged with obstructing that.

Starting point is 00:32:58 To any extent that they were considering, well, we don't want to give the impression that we're rushing this to a pre-drawn conclusion or something like this, it just completely ignores the opposite side of that equation, which is, I think, more compelling. But yeah, the whole thing is frustrating on a lot of grounds. Well, I think we can now say, perhaps safely, that the sole criminal trial to go before the election, for sure, is Alvin Bragg's case. Yeah, the business record case. In Manhattan, that sleeper case, that dark horse case, right?

Starting point is 00:33:39 Coming up from the back of the pack again, because that was the first indicted. Now, granted, it was for crimes a long ass time ago. I mean, these crimes took place in 2016. Yeah, we've worked on that thing for five years or something. So this isn't the first coup case or documents case to go, but it's a first criminal trial to go. It starts March 25th. That's when jury selection begins.

Starting point is 00:34:02 It's supposed to last, you know, what, four to six weeks, something like that. But when I think when voters were asked, you know, voters were asked in the exit polls in some of these primary races, Iowa and New Hampshire, South Carolina, they were asked, if the president is convicted, does that change your vote? And anywhere from a third to a half of them said, yeah. But I think maybe they were thinking convicted in the coup trial, not just convicted on any felony. And by the way, I can't believe we live in a time where we have to parse out which conviction.

Starting point is 00:34:41 Which of the former president's current felony charges would affect your vote? I mean you'd have to hand each one of my list of 91 different charges and they could check the boxes. They liked it's hard to say It's hard to say and and again like the public's right to know That the resolution of these issues. The resolution of the fact that grand jurors determined there was probable cause to believe that a crime had been committed here, four crimes in particular in this case.

Starting point is 00:35:13 And those charges will, you know, probably we were at a 50-50 chance of those charges ever being resolved by a free, fair, and impartial jury. And that is outrageous. I just find that to be terrible, not just for this result. I think it sends such a resounding message to the rest of the country and indeed the rest of the world, like, there is no one else in this country who would have been given the same level of special handling and special treatment and consideration and

Starting point is 00:35:53 appeals as this defendant. And I guess what we all take from that is $50 million worth of legal fees gets you out from under a case like this. You used delays it long enough. Thousands of Americans will go through the criminal justice system every year, federal criminal justice system in this country this year and every year after. And none of them will have the opportunity to manipulate the timing of their trial and the resolution of their charges in the way that this defendant has been given by the courts. Yep, and I want to talk a little bit more about that due process, but we have to take one more break. So everybody

Starting point is 00:36:32 stick around. We'll be right back. All right, welcome back. Let's talk about due process. Trump has filed several motions in a lot of his cases, motions to dismiss based on all kinds of things. We're talking right now about immunity, absolute presidential monarchy, right? We call it the monarchy filing. He files for vindictive and selective prosecution. He files for Jack Smith not being appointed properly. But he also, pre-indictment stuff, but he also files for lack of due process. He has somehow not been afforded due process. And I, you know, I think to myself, especially in light of today's grant of cert by the Supreme Court, that I don't know,

Starting point is 00:37:26 and this is just to piggyback on what you said right before this last break, I have never heard of anyone who got as much due process in this country as Donald Trump has been afforded. And so it's gotta be, I mean, what must it be like right now at the special counsel's office? I mean, you've been on a special counsel team.

Starting point is 00:37:50 What is the feeling inside that office right now with this ruling? Yeah, I mean, so I built the special counsel team for Mueller, I wasn't on it, but I gotta imagine I've been on a lot of big investigations and spent my career around investigators and prosecutors. I gotta imagine they are just gobsmacked right now and angry and frustrated. They'll never say anything about it because they do not speak about judicial rulings and things in the cases they work.

Starting point is 00:38:24 That would be horrible, so that you won't hear that from them. But there's no doubt, this is just a really swift kick in the chest, which they'll dust themselves off and get back up and start figuring out the next step forward. I just, I feel like, well, as you said, I mean, if you wanna hear, like,

Starting point is 00:38:47 if you wanna understand this due process difference, think about it just in the context of these gag orders, these attempted gag orders, these multiple gag order motions, now we're gonna have one in Alvin Bragg's case. I'm telling you right now, there's not another defendant in this country who would ever have been given the amount of consideration and delicacy narrowing, you know, he's running

Starting point is 00:39:10 for president. So he has this, you know, whatever we're calling this, I don't know, an enhanced First Amendment right. We can't possibly have him, you know, limit his own speech in any way. No, A.G., I'm telling you right now, if you get charged and you start firing off things on the Mueller She Wrote Twitter account about how horrible the judge is,

Starting point is 00:39:32 you're gonna get told no more Twitter for you. Yeah. No more Twitter for you. So every step in this process is, you know, everything from no-raid jackets at the search warrant, all the way through motions. We're not gonna go into the locked closet. We're not even gonna contest whether or not

Starting point is 00:39:52 there's jurisdiction to hear this case in front of the DC circuit on a mutant immunity issue because it's not a proper interlocutory appeal. No, we, Justice Department, we want you to hear it because we think it's so important that we get a resolution to this. Like, yeah, maybe they may be second guessing that decision tonight. Um, yeah, it's just amazing.

Starting point is 00:40:12 And the end result is going to be a great denigration of the criminal justice system. I think people will rightly step back from the situation and look at it. And whether they like Trump or don't like him, whether they vote for him or don't vote for him, one over the wind, don't want to be win, whatever. If you don't like him, you're going to look at this and say total abrogation of justice. There's no accountability for political people in this country. And if you do like him, you're like, well, I guess that's what you have to do.

Starting point is 00:40:39 You got to be rich, like Trump and, you know, a loudmouth or whatever. I don't know what the reasoning will be, but it's not the experience that any of us will get. No, and same in the documents case, as we've long said, if I had a bunch of classified at home and didn't return it all on a subpoena, I'd be in jail. I'd be in jail right now, pre-trial. Yeah, I'd be in jail right now. Pre-trial detention to share is in jail right now. Got arrested.

Starting point is 00:41:15 Beautiful big old arsenal, but you know, yeah, but still reality winner. Yeah, the the the guy who gave Trump's taxes plus thousands of other people's taxes to the public. He's five years in prison, right? the yeah, He's five years in prison. Right. Yeah, I don't know. It's really, It's hard to get your head around. If you're trying to give a makeover to the Department of Justice, this court is not helping you.

Starting point is 00:41:43 No, not at all. Not at all. They're sinking it. Not much of a sense of urgency there. If I'm Jack Smith today, I'm in the office saying why the F when I told you in December that I wanted you to hear this and that only you could decide this,

Starting point is 00:42:04 why did you deny my petition for cert then only to grant it now? Right. That makes no sense. And if they had granted cert in February and still came out with this kind of slow ass expedited schedule, we would have had oral arguments this month. Yeah, exactly. Like what we're getting from the Supreme Court would be like, here's my analogy. You're like, definitely ill and you call your doctor and say,

Starting point is 00:42:30 I'm on death's door here. I got to come in and see you. And they say, okay, we'll have first available appointments in two weeks. And you're like, no, no, no, you don't understand. I'm really in bad shape. And they say, okay, we'll see you in 10 days. No, not good enough. Like that's what the Supreme Court has done. It's not good enough. End of April, we're gonna hear the case. No, it's not gonna make it. What you need to do is hear it now. You should have made this decision

Starting point is 00:43:00 and notified everyone a week and a half ago, and we should have already had the first round of briefings submitted by now. Well, you should have granted cert in December if you were gonna grant cert. Yeah, exactly. You've done it 16 other times. In the last however many weeks,

Starting point is 00:43:14 has Steve Lattic put out a chart. You could have cut this entire thing down, but now they've decided to grace us with their presence and their wisdom, so we'll see what happens. Wish we knew more about what goes on behind those scenes, just like I wish we knew more about what goes on behind the scenes of the Department of Justice, because we are all left to guess and speculate and wonder, but this does not seem like justice to me. And it's very, very frustrating. Well, it's not finished yet.

Starting point is 00:43:46 So we'll have to see, but it's frustrating. And it seems like a decision that was made in the abstract without much consideration for the reality of what's happening here in the court system and the effort to try to get a very significant case, at least heard and put in front of a jury before hundreds of millions of Americans have might wanna consider it before the election.

Starting point is 00:44:14 So yeah, I don't know, I can't really explain it. Yeah, and I think that I'm pretty sure, I mean, I'll ask some Supreme Court experts, but I'm pretty sure that this briefing schedule is not appealable, nor is this ruling, or this order. There's no one else. They decide these things, and then that's just how it is.

Starting point is 00:44:38 Yeah, I know, but I feel like if I were Jack Smith, I'd want to write a letter like, guys, really, April? You could write a letter saying, we request reconsideration of the schedule and they'll take two weeks. And then tell you no. Just push it back, right? And then say, okay, now everything's backed up two weeks

Starting point is 00:44:54 because we were busy with that other letter. So yeah, you gotta, you gotta at some point, you gotta pick your battles, I guess. All right, well, we will. I don't know what else to say. Other than I know. On the upside, I got nothing. Nope.

Starting point is 00:45:15 There's no upside to this one. This week's good week, bad week is gonna be pretty, pretty bad. Pretty bad for the good guys. But we did get correct rulings from Canon on some SEPA Section 4 stuff. Let's save that as a little nugget of treat to have on Sunday morning. Well, geez, all we're going to be reporting on from now through April is the Mar-a-Lago Documents case.

Starting point is 00:45:41 Sure, cases. Unless she stays it on April 1st or March 1st, then we're going to be like, all right, well, I guess we could go back and go over some of these decisions in more detail because of the absolute crazy amount of news that we've had to report on. My summer travel schedule might get much easier based on a court. But we will continue to be here. We will continue to bring you the news and we appreciate you listening. We will be back in your ears on Sunday.

Starting point is 00:46:09 Thanks for listening to this emergency episode of the death of Allison's dream. The grant of cert by SCOTUS in the immunity case. Do you have any final thoughts, my friend? Hang in there. We haven't heard the end of this story. Who knows where to land, but we'll be here to talk you through it. And yeah, I'm Andy McCabe. And I'm Allison Gil.

Starting point is 00:46:30 M-S-O-W. Media.

Jack - Episode 65.5 | The One Where They Granted Cert

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