Jack - Episode 67 - Stop Trying to Make Immunity Happen

Episode Date: March 10, 2024

This week, in Mar-a-Lago, DoJ responds to Trump’s Motion to Dismiss based on immunity and the PRA; DoJ responded to Trump’s Motion to Suppress the fruits of the Mar-a-Lago search, but that filed on Judge Cannon’s secret docketThe DC case may be impacted by emails that reveal  new communications indicating Sen. Ron Johnson and his top aide were told papers sent to his office on Jan. 6 had to do with Wisconsin's Presidential Electors.Plus, a couple of listener questions.The Presidential Records ActThe Presidential Records Act | National Archives Brian Greer’s Quick Guide to CIPAhttps://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/  AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to know:Rule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady 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%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/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

MSOW Media I signed an order appointing Jack Smith and those who say Jack is a finesse Mr. Smith is a veteran career prosecutor 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! Welcome to Episode 67 of Jack, the podcast about all things special counsel. It is Sunday, March 10th, 2024. And I'm Andy McCabe. Hey, Andy. I'm Allison Gill. It's a filing day in Florida this week. Filing day. Yeah, we. That needs a theme song, I think.

Yeah, we need to make a little jingle for it. Filing day, filing day, like to Spiderman or something. I don't know. We'll figure something out. There you go. But yeah, March 7th was filing day. We have multiple responses from Jack Smith to Donald Trump and his co-defendants' motions to dismiss the charges against them,

including responses to Trump's motions to dismiss on immunity grounds and under the Presidential Records Act, which you might hear us refer to as the PRA. So if we say PRA, we're talking about the Presidential Records Act. Got it. We also have two new lawyers filing a notice of appearance We say, PRA, we're talking about the Presidential Records Act. Got it. We also have two new lawyers filing a notice of appearance for the special counsel office

and Judge Cannon setting a hearing date for some of the motions over objections from the government. Yeah. The government filed this whole motion and said, you don't need any hearings for anything. That's, you know, come on. These are- Come on, come on. Go quicker, quicker, quicker. You can hear them saying in the background.

Right, yeah. So we'll talk about that. And should we do a good week, bad week this week? Sure, yeah. I mean, as always, you know, I think of it in the perspective of Trump and I think of it in the perspective of the special counsel team. So for Trump, man, I got to say bad week, right? Because you have to put up a $93 million bond

and that's only in one case and it's only about a quarter of what you're going to have to put up eventually. You know, despite his incredible efforts to weasel out from under that thing, he had to finally step up to the plate and put up some dough. So I feel like that made it a bad week for him. On the special counsel side, kind of a quiet week until filing day, right? And hard to say how those many filings will go. We'll talk about some of them today, but I'm going to say it's right down the middle for them this week. Yeah. I think it was a bad week in some

respects for the form of president and a good week in some respects. And I say that because it's bad that he had to put up a $93 million bond for him, but it's also good that he actually got somebody to secure that bond. He didn't have to come up with all of the cash. He got some international insurance group or something, a subsidiary of the Chubb group. And what's really interesting is that in 2018, Donald Trump appointed the CEO of the Chubb group to one of his commerce advisory boards. So I don't know if this was one of those, you know, squid pro crows that we talk about all the time, but it reminded me and, and Andrew Weisman actually brought this up. It reminded me

of when Stephen Cawke, remember that guy who owned a bank and lent Donald Trump a ton of money, about 25% of the bank's entire ledger. In return for Donald Trump recommending him or Manafort, I should say, recommending him to be Secretary of the Army, he never actually got the job, but Stephen Calk was indicted for that scheme. So this happened in reverse order because you know, because this guy was appointed and now the Chubb group is securing this bond for Donald Trump. But it'll be also, I'm interested to see, we're probably not going to learn too much more about it, but I'm interested to see if

they also secure the $454 million bond that's coming due later this month in the New York Attorney General's case. So bad week, good week. I think Jack Smith always has a good week because we have a whole podcast that talks just about him in his office. That's us having a good week. I'm not sure that's him having a good week, but okay. You know, I'm gonna be positive about it. It depends on if he gets his subway sandwich or not. I think. But you know, I'm with you, he had a quiet week. But I think Donald Trump also had a bad week because of that amazing State of the Union speech that Joe Biden gave last night,

which, you know, State of the Union speeches are supposed to be apolitical, they're supposed to be more about the State of the Union. And he did that because he talked about his predecessor and how he's different from his predecessor. But he walked right up to the line and I think he did an outstanding job. I think he hit it out of the park.

And I think that the Katie Brits response was also historically bad and will be mocked for years to come along Bobby Gendles and Marco Rubio's. But I think that probably there was probably ketchup on the walls down at Mar-a-Lago after last night. Yeah, you can only hope so. I agree with you on last night.

I think his main goal, he had to answer the critics last night and I think he did that. That's really priceless and should put some wind in his sales as he looks at the really beginning his electoral effort in a kind of considered way. The response is always horrible and it always seems to be kind of the death knell for whoever does it. There's so many people that have done it and then you never heard from them again. So it amazes me they still convince politicians to go out there and do it. You know, there's so many people that have done it and then you never heard from them again. So it amazes me, they still convince politicians to go out there and do it. I thought the whole thing was weird, sitting in a kitchen that was obviously not hers. And yeah, it just seemed kind of like totally divorced from reality. But who knows, maybe

we'll never see her again if it's going to go over like many of the other responses have. Yeah. And to think, she's considered the good senator from Alabama. So. That's a very strange standard. But I got to agree, she probably is. Despite the despite her performance last night, I'm going to put her ahead of Mr. Tuberville or I'm sorry, Senator.

Senator Tuberville. Sure, coach. All right. So there are over 165 pages in response to Trump's multiple motions this week, so we better dive in. I think we should break all this down in the following way. We can cover the responses to the bigger motions today, the motions to dismiss, including the PRA, the Presidential Records Act, and immunity motions. And I think that we'll save the other motions and immunity motions. And I think that we'll save the other motions for next week. So we actually have more than we can report on in a single week. So we're going to have to split those up. And then

we'll end by spilling some tea on new documents that show the scope of Senator Ron Johnson's involvement in the fraudulent elector scheme. That could impact Jack Smith's investigation there. So with that, let's dive into something we have both been waiting for me and you and Brian Greer. Jack Smith's response to Trump's claims of immunity in the documents case. And the three of us, Brian Greer, you and I had asked how someone could claim presidential immunity for crimes they committed after leaving office, of course, allegedly committed. And it seems as though Jack Smith has the same questions. The government's opposition to Trump's motion to dismiss based on presidential immunity

is 27 pages long, and Jack Smith opens with this. He says, Defendant Donald J. Trump moves to dismiss counts one through 32 in the superseding indictment on the basis that a former president enjoys immunity from criminal prosecution for official acts, undertake him while president, and that his purported immunity extends so far as to shield him from prosecution for acts that he undertook after he left office. That frivolous claim is offered for one transparent purpose, to delay the trial, and it fails for two independent reasons. So he brings it up right from the jump.

Yep. Let's get this party started right off the top. So as you teetered up, the first reason is exactly what we were talking about on the last episode with Brian Greer. They say the superseding indictment does not charge Trump for any acts that he undertook as president, let alone an official presidential act. The superseding indictment alleges that even though Trump lost the authority to possess documents containing national defense information after his term as president ended, he nonetheless

willfully retained such documents after his presidency, including by conspiring with others to conceal his ongoing unlawful possession from his own attorneys, federal investigators, and the grand jury. Every criminal charge in the superseding indictment is based on conduct in which Trump engaged after he left office. Even if a former president could claim some immunity from criminal prosecution

for official acts and he cannot, Trump could not benefit from any such immunity in this case. Second, although the court need not reach this issue since it has no connection to the superseding indictment, Trump's novel immunity argument fails on the merits. And that's really, that's for all the same arguments he made in the immunity case before the Supreme Court, which now of course has oral arguments for April 25th, the last possible day to hear arguments in this term. Yeah. And that just seems, I feel, I really truly feel like the liberals, the liberal justice has cut a deal here on the 14th Amendment case. I feel like they were like, hey, we want a dissent, and Robert said, would you concur instead? How about a concurrence with a little added statement? And they said, okay, but only if you hear the immunity case

this term, and maybe Robert said, okay. And so they changed the language. And of course, we've seen in several stories and reporting that the opinion for section three of the 14th Amendment was changed from dissent to concurrence at the last minute. And they put it out there right the day before Super Tuesday. So, and then I just feel like the conservatives said, well, we said we'd hear it this term and so they scheduled the arguments for the last possible day in this term, which leads me to believe Andy that they are not going to issue a decision on immunity until the last possible day they need to issue those rulings in this term, which again, sometime around July 1st, according to Judge Lutig. But we'll see, there's still a chance that this could go before the

election. And I know a lot of folks on social media have been asking me and sending me emails saying, well, if that's the case, then Jack Smith should just indict everybody else. If the trial is not going to go before the election, just indict everybody else if the trial's not going to go before the election. Just indict everybody else now. And I don't think I agree with that assessment. I think as long as there's a chance it could go before the election that he should hold off. But Pete Strzok actually brought up a great point.

And I'm sure Jack Smith and his entire office have discussed all of these possibilities. Yes. That, you know, if for some reason Donald Trump does win the election in November, there's a two month window in which he could indict all those people. Because, you know, and I talked to Pete about this, you scrambled, I believe, to get Rod Rosenstein to appoint a special counsel to preserve the crossfire hurricane investigation in the face of Trump being elected and and it worked right he didn't actually end up

Successfully firing the special counsel. I think they curtailed it quite a bit But you know, I think that this time would be much different I think there would be no hesitation to fire Jack Smith if Donald Trump took office and just closed down all of these investigations pretty immediately because he had... There'll be no adults in the room this time. You know what I mean? Yeah, I do. There's a lot there.

I think on that last point, you don't know... We've learned this time and time again since Jack Smith was appointed. We don't know what they know. We don't know what they're doing. As much as we look at and read and try to analyze, it's possible that they are sitting on draft indictments. It's possible they have their evidence lined up, they have their witnesses lined up, and all they need to do is throw a couple of people into the grand jury to get others indicted. And they certainly could do that in between the election and an inauguration. Or even a final report written up as much as they can.

Yeah, you would expect that they've probably been drafting the final report all along. Not that you have the conclusion on day one of the investigation, that's certainly not the case, but as things develop and when you get to the point where you're confident enough to be presenting things to a grand jury, you're certainly then in a position to be drafting what that report looks like. So I would expect there's some work that's been done on that already. As for what happened on the 14th Amendment case, I don't know. If they cut a deal, they cut a bad deal. They should have cut a better one. They should have said, okay, we have to hear and decide and release the decision on the

immunity case in the same time that we've done this one, which is 25 days. A more expedited appeal. Right. So that clearly didn't happen. It was also pretty obvious from the questions during the oral arguments that even the liberal judges didn't support this. I talk about this differently, like there's a constitutional side to this issue,

and then there's a practicality side to it. Everybody seemed focused on the practicality side. Like this is just a bad idea to have one state. Any individual state could basically determine, well not any, but many individual states could determine the outcome of the presidential election. And that is fundamentally inconsistent with what the framers thought about how the entire nation should vote for its leader.

But they took it a step further by saying, by requiring Congress to act. And that was the 5-4 decision, not the unanimous decision. Right, that's the differences. They also, in the ruling or in the decision, they ignore everything that points in the opposite direction. There's not a lot of attention given to the fact that states run these elections for federal officers. That states physically enforce the standards for the ballot, produced the ballots. They just glossed over the significant role that states play in running the elections, controlling the elections for federal officers, I thought. But they had to do something to

get to the practical result that they were clearly all in agreement on. The originalists might say that wasn't great logic, but here we are. Yeah, here we are. And also, Andy, I know we had a listener question, I think it was last week or maybe the week before, about whether Jack Smith would bring up Trump's repeated attempts to delay these proceedings. And Special Counsel does that in this final paragraph of the introduction, says Trump's immunity claim here is so wholly without merit that it is difficult to understand it except

as part of a strategic effort for delay. Non-frivolous immunity claims are typically subject to interlocutory review, and district court proceedings are stayed pending the resolution of appeal. Trump knows all this, but his claim is so lacking in merit that a groundless appeal should not be permitted to have that effect. Rather than countenance such dilatory tactics, the court should deny the dismissal motion

and certify Trump's immunity claim as frivolous so that he cannot use this meritless argument disconnected from the actual charges as the basis for interlocutory appeal aimed at delaying the trial. And so I learned something in this paragraph that if the court certifies a claim as frivolous, it can't bold move for them to kind of swing for the fences there. I think it's totally called for and supported and a confident, competent judge who's really focused on moving the case in front of them along, I think is a good chance that they would go that way, but we're not there.

Yeah, right. That's a pretty strong argument for Trump's blatant attempts at delay. Now we've gone over the special counsel's arguments against immunity on the merits pretty extensively, so we don't really need to focus on those arguments because they're all repeated here. Because, you know, as you said, even if somehow you think that any of this happened while he was in office, here's why the immunity claims fail. And it's all the same arguments that he made to Judge Chuck Kin, the DC Circuit Court of

Appeals, and the Supreme Court. So let's focus on that first argument that nothing Trump is charged with happened during his presidency. Now willfully retaining the documents after he left office is the basis for the indictment. Jack Smith says in the superseding indictment counts one through 32 charged Trump with the unauthorized possession and willful retention of documents relating to the national defense. As the superseding indictment makes clear, those counts begin at the termination of his presidency. They begin at the termination of his presidency when he was no longer authorized to possess the classified documents, charging violations that began on January 20th, 2021, and continued until either January 17th, 2022, when NARA received the 15 boxes from Trump,

that's the National Archives, or June 3rd, 2022, the date that the Trump attorneys provided a certification and 38 documents with classified markings, or till August 8th, 2022, the date of the search of Mar-a-Lago. The additional counts charging Trump likewise apply only to conduct undertaken after his presidency. So that's referring to all the attempts to delete the security footage and move the boxes and obstruct justice, right? All that obviously happened after. But he says counts one through 32 also the clock didn't start ticking on those crimes until he was out of office and no longer authorized to have them. That's right.

And then the government brings up a great point about this motion being designed to delay the proceedings. They say, a finding of frivolousness here is also strongly supported by Trump's transparent and persistent purpose to delay the proceedings. Indeed, although issues involving immunity should be raised properly, see Clinton v. Jones, which observed that immunity questions should be decided at the earliest possible stage of litigation, Trump has waited more than eight months since being indicted to assert his purported immunity. In the first time, he alluded to a presidential immunity claim occurred only recently in a motion seeking more time to file pretrial motions. By contrast, in United States v. Trump in D.C., Trump informed the district court at a status conference within a month of the indictment that he intended to file an executive

immunity claim, and then he filed such a claim just over two months later. The court should deny Trump's motion to dismiss on the presidential immunity grounds and certify that his immunity claim is frivolous. That's good. Yeah, I mean it's a great point, the delay. But again, like I mentioned just a second ago, I just feel like what they're asking, they're asking Judge Cannon essentially to blow out this entire issue, not just to deny it, but to deny it in such a decisive and fundamental way as to declare it frivolous. And they're doing that at a time when, one, the Supreme Court is about to hear a Trump immunity claim. I get it, it's very different. It's in a different case, but oh well.

And two, let's not forget, we're talking about Aline Cannon here, the judge. I think it's highly unlikely that she's going to be bold and decisive enough and committed to moving the case forward enough to say, you're right, this is frivolous. Move on. Yeah. And despite Jack's misvery clear arguments that this is very different from the immunity claim in DC because what he did actually took place when he was in office. Right, right. Yeah. Yeah, there we are. Another noteworthy passage I thought was when Jack Smith said on Trump's view in under his little immunity fairytale, criminal immunity would shield not only a president who sold documents, sold documents

that contain classified information to an adversary while president, but also one who designated classified documents personal, took them with him after his presidency, and then arranged for their sale and delivery after leaving office so long as he initially took the documents while he was president. He puts this up as a hypothetical, and he's done this before two other times. And I've brought it up both times that he did it in his response to Trump's immunity motion to dismiss, to judge Chutkin at the circuit level, or at the district level, and then also to the DC Circuit Court of Appeals. And you remember when you mentioned, well, he could have a political enemy killed or

he could sell nuclear secrets or he could do four different things, all kind of close to stuff Trump has done. All hypotheticals that really kind of fit. So yeah, there's no question. He's making arguments. He doesn't want the judge to have to reach really far to imagine how his argument fits. It's predicated on facts that are very easy to imagine are in fact the case. Yeah. This is the third time Jack Smith in three separate filings has brought up. Trump

says that it's cool if he sells nuclear secrets and delivers them, sells them and delivers them. I'm just like, that's really interesting. Like, he, what's he saying? You know, I don't know. I mean, he's now Trump's not been charged with transmission. No. No. Which is also under 793, I think F, but maybe E. I think E is the one that he's charged with. I'd have to look at the Tashara indictment to be sure.

But he's not been charged with transmission. But man, Jack Smith sure does bring it up a lot. So that was interesting. All right, we have a lot more to get to, but we have to take a quick break. Everybody stick around, we'll be right back. Hey, everybody, welcome back. Alright, let's pivot to the government's response to Donald Trump's motion to dismiss

under the Presidential Records Act. You'll remember, we covered this Donald Trump motion on one of the earlier podcasts. We don't need to remind you of those absolutely ridiculous assertions because Jack Smith does that in fine style, in his response. And he's very good at that. And he has to, because he has to address all the arguments that are made in the original motion.

He says, defendant Donald J. Trump moves to dismiss the superseding indictment based on the Presidential Records Act. And I want to interject here real quick, Andy, when they say the superseding indictment, that's the whole indictment, not just the additional obstruction charges. They just refer to it as the superseding indictment. It's the last and final word on the indictment. It includes everything that came before it and what they say in the last five. That's the most current of the charges. The omnibus indictment. Yeah, and they can add and add and add. I mean, ask Senator Menendez. All right, Trump's claims rest on three fundamental errors, all of which reflect his view that,

as a former president, the nation's laws and principles of accountability that govern every other citizen don't apply to him. First, the PRA does not affect the scope of the 793E charges. That's the statute that underlies counts 1 through 32 of the superseding indictment. Section 793E prohibits the unauthorized possession and willful retention of national defense information. Even if the raft of highly classified documents that Trump took from the White House to Mar-a-Lago were somehow categorized as personal under the Presidential Records Act, that would still not render his retention of those documents for purposes of Section 793e. The authorization for a former president to possess classified information comes from the applicable executive order, not from the PRA. And Trump was not authorized to possess classified records at all, let alone at an unsecured

location or unsecured locations at Mar-a-Lago. This is really interesting, the way this argument weaves because I feel like we've gone to a lot of effort to always point out to folks that the 793 charge is not predicated on the information that was allegedly retained being classified. It just has to be, quote-unquote, national defense information. So as I first read this, I started getting confused like why are they weaving this classified point into the brief, but then I went on and I realized

like hang on just a minute because they explain the way these two concepts are relevant to each other and actually supports the overall argument that Trump, no matter what he claims about declarations of personal records, he did not and could not possibly have had the authority to retain this stuff in the way that he did. Right.

All right. So the special counsel goes on to say, second, the charged documents are indisputably presidential, not personal, and Trump offers no basis to conclude otherwise. Instead, he contends that because he transferred the documents to Mar-a-Lago rather than to the National Archives, the court must conclusively presume that he designated the documents as personal. Yes, you just presume that I did everything necessary here. Despite contrary allegations in the superseding indictment,

the presidential nature of the records and his own public statements saying the opposite. I'll put a pin in that for later. He further contends that an implied and counterfactual decision to treat the records as personal lies beyond the scope of judicial review. That is wrong. Nothing in the PRA the presidential records act leaves it to a president to make unilateral

unreviewable and perpetually mining decisions to remove presidential records from the White House in a manner that thwarts the operation of the presidential records act. Yeah, and third he says Trump is wrong to assert that the PRA's civil remedy for recovering presidential records preempts the DOJ's authority to criminally investigate and enforce law. Congress enacted Section 793e to allow criminal prosecution of persons who jeopardize national security by improperly retaining the government's closely held defense secrets. The civil remedy to recover records serves an entirely different purpose to vindicate Congress's determination that the United States owns presidential records. The two statutory

schemes are complementary and compatible, neither forecloses resort to the other. The government therefore had valid legal authority to conduct a criminal investigation involving the charged documents, and Trump's disagreement provides no defense to the obstruction of justice charges in counts 33 to 36, 40, and 41, the scheme to conceal charges in count 37, and the false statement charges in count 38. The law provides many means to challenge the government's right to investigate. Lying to investigators is not one of them. First of all, well written. But basically, that's a challenging Trump's argument that he should have

just been sued to get the documents back like Pete Navarro was, right? Right. And neither one of those, the civil remedy of suing to get documents back for presidential records or criminal investigation, neither one forecloses resort to the other, meaning if you do one, you aren't allowed to do the other. He has this weird thing in his head where if you're acquitted by the Senate, you can't be criminally charged.

Like he does this denying the antecedent thing all the time. This is one of those times, right? Because Trump is saying, no, sorry, because you didn't go civilly after me, that means you can't criminally. It's just bizarre and it's a ridiculous argument. So many of the positions he takes are basically challenging the government's prosecutorial authority, challenging the government's authority to determine who should be investigated and who should be charged.

And he has to do that because he can't take the other defensive tactic, which is to say, I didn't do it. So he has to run right at the government and say, oh, it's not fair. You didn't have the authority. Jack Smith wasn't lawfully appointed, whatever. There's a million different arguments. I get back to the same thing.

That's basically a challenge of the government's ability to investigate and prosecute people for violating criminal laws. Because oftentimes, he finds himself in this trick bag where perfectly obvious on the facts that he did what the law proscribes. So the government sums it up nicely on page six of this 29-page response. They say, Trump's reliance on the PRA as a basis for dismissing the indictment is wrong. The PRA does not exempt Trump from the criminal law,

entitle him to unilaterally declare highly classified presidential records to be personal records, or shield him from criminal investigations, let alone allow him to obstruct a federal investigation with impunity. You know, and the key argument here is that even if Trump thought these records

were personal under the PRA, that doesn't make his retention of classified documents authorized. And now here comes our national defense information slash classified information explanation. They say, establishing the documents were classified does not automatically establish that the documents related to the national defense, although it is relevant to that issue. But classification status does establish who may lawfully possess classified documents and under what circumstances. And if a person is not entitled to possess those documents, his possession is not authorized for purposes of Section 793. Under the provisions of Executive Order 13-526, once Trump left office, he no longer had authorization

to possess classified information. He never received a waiver entitling him as a former president to possess it. And he stored documents at a location that was not an authorized location for the storage, possession, review, display, or discussion of classified documents. Ah, so the Presidential Records Act doesn't actually say anything about classified documents because that's under the purview of the executive order and effect at the time. And the EO in effect at the time says a former president doesn't have authorization to possess these classified.

Seems pretty straightforward to me. Yeah, it is, right? Because it undermines his entire argument that, well, you know, I was allowed to possess national defense information. No, you weren't even allowed to possess classified information. So it's true that the statute criminalizes the willful retention of national defense information, but if you're also possessing classified in an unauthorized manner, it's relevant to that determination. Yeah.

And this is interesting too. It kind of takes almost like a backhand at Roberthr here because he says that he brings up the Ronald Reagan Diaries. And a lot at the center of Robert Hehr's investigation were these notebooks of Joe Biden, which were actually diaries. But Robert Hehr called them notebooks, so he could, I don't know, say you shouldn't have them. But here, Jack Smith says, Trump alludes to the DOJ's inaction over Reagan's diaries,

which he retained after leaving office and which contained classified information. But DOJ's decisions decades ago, with respect to a former president's diaries, established no legal precedent for the interaction of the PRA and executive orders governing classified documents. This case involves classified records

created by intelligence and military officials for highly sensitive presidential briefings. Trump did not create them. They do not reflect his personal thoughts. They came into his possession only through his official duties and, except for one charged document, bear classification markings. They have no resemblance to diaries." And then in a footnote, he references the report

Special Counsel Robert Hurr wrote about the Biden documents and says, the Hurr report reached the same conclusion, quote, we therefore declined to adopt the argument that compliance with the PRA authorizes former presidents and vice presidents to retain national defense information in unsecured and unapproved locations. So there's that. Yeah, that's got to hurt a little bit. Jack Smith using Rob Her against Trump. So, oops. So Jack Smith addresses something that stood out to me in Trump's motion to dismiss, that somehow the National Archives referral to the DOJ was improper.

The government says, finally, Trump contends that NARA made an improper referral to the DOJ on February 9, 2022, and that the FBI therefore had no basis to predicate an investigation of his unauthorized possession of classified government documents. He claims that, as a result, the obstruction and false statement allegations in counts 33 through 42 must be dismissed. You did not pass go and collect $200 and therefore- It sounds like his crossfire hurricane thing, right? Like claiming that you didn't have any evidence to predicate opening an investigation, which you did.

Right. Right. So they go on to say that each aspect of that argument is fundamentally wrong. Nothing in the PRA preempts the application of federal criminal law or divests the government of criminal investigative authorities. And in any event, an individual's claim that the government lacked authority to investigate provides no defense to charges for obstructing its investigation. That's so well put. You still can't obstruct the investigation, my friend.

I love that piece because it goes right to this idea that these constant arguments attacking the government's authority, oh you didn't follow your process therefore you couldn't have opened the investigation that you had. It's just it's not actually a legal defense. They're wrong and it provides no cover for him. We just have to hope that the judge sees it that way as well. Yeah and you know, Nara's remedies do not preempt criminal statutes or investigative authorities, he says. And second, Trump had no right to lie and obstruct the FBI's investigation.

He goes on to say, if Trump believed he had valid, a valid legal basis for challenging the government's investigation, he could have moved to quash the grand jury subpoena. And he can move to suppress the fruits of that search warrant. And he has put a pin in that. But his PRA-based claims give him no license to obstruct the government's investigation through lies and concealment. Bing, that's, I mean, it's hard to get around that argument.

It really is. I mean, Canon might find a way. Yeah, it's like when you read one of these motions from the defendant, it's like your head is twisted into pretzels, right? It's just a confusing, you're like, I can't follow the logic here. And then you read one of these responses to it, and you're like, that makes sense. That's actually based on law. It applies a relevant standard. It reflects precedent and the facts, which are pretty clear here.

Despite what, you have to give them credit. The defense has done a great job of obfuscation and distracting the judge and everyone else away from the facts in this case which are absolutely cataclysmic for him. And I mean, it's basically the long and short of it here is like, if you rob a bank and you got the loot in your car and a cop pulls you over and searches your car without probable cause and finds the money, that's fruit of the poison tree, right? But if you obstruct that investigation somehow, like by later telling your friend a lie to the court or anything like that, you're still not allowed to do that.

You aren't allowed to lie and conceal and obstruct. It's an entirely separate offense. Totally. So, and you're hypothetical, if that bank robber who was arrested with the money as a result of an invalid search. If he then, when they bond him out of jail, he calls up his friend at the bank and says, oh, I don't know, erase all the videotapes of me robbing the bank. That's obstruction. It doesn't matter.

It has nothing to do with the bad search of the car. It's a totally different offense. So yeah. I think you're right. All right. We still's a totally different offense. So, yeah. Yeah, I think you're right. All right, we still have a lot more to get to, but we have to take another break. Everybody stick around, we'll be right back.

["Bad Song"] Welcome back. All right, let's jump right back into it. At the end of the government's response to Trump's PRA claims, Jack Smith mentioned a motion to suppress the fruits of the search warrant. That was our little pin from the last piece there. However, we don't know what's in that response because of Judge Cannon's secret docket, the infamous Cannon's secret docket, the infamous Canon secret docket, which we talked about, I think, last week. So on the same day the government filed multiple responses to Trump's motions on the public

docket, Jack Smith also filed the following notice. He says, pursuant to the court's paperless orders at ECF numbers 320 and 365. Okay, per ends. This is the official document that creates the secret docket. Yeah, so it's 320 and 365. That's the secret docket orders. Okay, so pursuant to the court's paperless orders, the government hereby gives notice that it's submitted to chambers and to defense counsel via email the following pleadings. Now remember from last week, that's the beginning of the secret docket process, right? If you have something, you want to file, but there's going to be

an argument over how much of it is sealed or redacted or have you, you start this little secret process not by putting something on the docket, you just drop an email with the court and with the defendant. It's like, It's like kind of like high school or something. I don't know. It's very strange. In my entire career of dealing with criminal investigations, I've never seen this before. But I was thinking it's creating so much extra work for everyone. Oh, yeah.

Instead of just filing these things, redacted or under seal. Are you surprised that she's engineered a process that's slowing things down? Slowing things down and is not very productive or efficient? No. No. Okay. All right.

So here's the following pleadings that he noticed in this surreptitious email. Number one, the government's opposition to defendant Donald J. Trump's motion to dismiss the indictment based on prosecutorial misconduct and due process violations. Number two, the government's opposition to defendant Donald J. Trump's motion for dismissal or suppression of evidence obtained from Mar-a-Lago or his attorneys. And number three, the government's opposition to Waltine Nauta's motion to dismiss the indictment based on selective and vindictive prosecution. Ah, so there's a fruit of the poison tree motion. This is a number two in there. We don't know what it says. Exactly. So this is the little notice is telling you like these are the three things that the government filed through this

or started filing through this secret process. that the government filed through this or started filing through this secret process. The special counsel notice goes on to say, the government also submitted via email to Chambers and Defense Council the exhibits to its opposition to Waltine Nauta's motion to suppress evidence because the opposition itself does not require redactions or implicate any ceiling or redaction concerns. The government has filed it publicly. does not require redactions or implicate any ceiling or redaction concerns, the government has filed it publicly. Okay.

So, I get it now. So we've got three motions that we've filed on the secret docket, plus a couple of exhibits from a motion we filed publicly because the motion itself or the opposition to the motion itself didn't have anything we needed to redact, but the exhibits sure do. The government then followed up with their motion about what to redact because now you have to file a motion about that. And this is, you know, for what they want redacted on those secret docket filings and exhibits.

In accordance with the court's paperless orders, numbers 320 and 365, according to the secret docket, we'll just say the government files this consolidated motion to respectfully request the redaction or sealing of certain information contained in three of the 13 oppositions to defendants rule 12 motions with those accompanying exhibits. The government is filing this motion publicly, but it's emailing to Chambers and Defense Council red box versions of the three responses and accompanying exhibits showing its proposed redactions. So I'm imagining, this is me talking now, I'm not reading from the thing.

Andy, if you're filing, you want to show what you're going to redact, you put it in a red box. Yes. And that's what you are proposing be redacted. It's almost like proposed edits on a document that multiple people are working on. Although I have to confess the first time I read this, I thought, wow, is this like some special way of delivering things in the secret docket? It has to be held in a red box with like a purple bow on it or something like that.

No, no, none of that is accurate. He says, it's also attaching as an exhibit to this filing a chart identifying the pages of the government responses requiring limited redactions, the exhibits requiring redactions or sealing, and the reasons for supporting the government's request to redact or seal. Very helpful. Yeah. Everyone needs a cheat sheet and he's healthfully prepared one and submitted it with this stuff. Yeah.

He's going way, this goes all the way back to discovery. We labeled everything, then we gave you an annotated transcript with pictures, we did a dance, we put a 13 rule 12 motion. Yeah, 13. He goes on to say, the government continues to assert that the 11th Circuit established the standard for sealing or redacting discovery material, appended to substantive motions in Chicago Tribune Company versus Bridgestone Firestone Inc. That's the good cause standard. We just have to show good cause. Moreover, the government has met that standard both through the court's entry of the protective order. Remember that thing you did, Judge Cannon?

The protective order of the discovery. And through the justifications it has proffered for protecting the information the government seeks to withhold from the public docket. Witness security, grand jury materials, subject to rule 6e, that's grand jury materials, that's very sacrosanct, the secrecy of the grand jury. Protecting against the pretrial dissemination of JANKS Act material and other memorializations of potential trial testimony and of course privacy interests Act material and other memorializations of potential trial testimony and of course privacy interests of ancillary third parties. All that stuff that is normally kept from the public, but especially when there's a

protective order on discovery. So that's basically a fancy way of saying, even though Judge Cannon, you have not yet ruled on unsealing those witness lists that we've been talking about for a while. Jack Smith wants to remind the judge of the 11th Circuit precedent, because she's in the 11th Circuit, that the standard is good cause, not the higher standard she applied when she ordered those witness lists unsealed, which Jack Smith called a clear legal error and manifest injustice, remember all that? I do.

And further, Andy, the government issued notice for appearance by two lawyers, James called a clear legal error and manifest injustice, remember all that? I do. And further, Andy, the government issued notice for appearance by two lawyers, James Pierce and Cecil Van de Vendor, which is one of the cooler names in this saga. Yes. Pierce's name showed up on the response to Trump's immunity motion and Van de Vendor's name

was on the response to Trump's PRA, Presidential Records Act motion. But Van de Vendor has been handling appeals for the special counsel's office. So I was wondering, and so was Alan Foyer on Twitter, if he's not poised to appeal a ruling by Judge Cannon to unseal those witness lists, that's a totally different thing

than what he's talking about in this particular filing. But he's kind of harkening back to it, right? He's like, it's, it's hanging out. It's still hanging over your head. This whole confusion over the standard to keep something redacted or sealed. Yeah. And you know, they're just waiting to pull the trigger on that. And it's, I mean, that has got to be having an impact on the judge. I think so. And back to that motion to redact portions of the responses filed on the secret docket, the government writes, indeed, given that, one, the government's redactions

to its three oppositions are truly minimal, representing portions of only 13 out of 268 pages of briefing. And two, the articulation of threats that witnesses have already faced in this case and the potential for threats if names and identifying information are disclosed. The government has demonstrated that limited ceiling or eduction proposed here meets not only the good cause standard but also the higher standard of being necessitated by a compelling governmental interest and Narrowly tailored to serve that interest so even though the government thinks that cannon made an error by applying the higher standard

DOJ is kind of going belt and suspenders here arguing that it still meets the higher standard as well Yeah, like hey Just a reminder 11th Circuit says you're wrong and will appeal if you release those witness lists because of it's the good cause standard. But we've met the good cause standard here in this particular wanting to keep this stuff secret. But not only that, we've met the higher standard that you mistakenly applied to that previous order to unseal the witness lists. And I know I just said a mouthful. I don't know how I keep these things straight in my head. Andy, I really don't. But those witness lists were addendums or attachments or exhibits, I should say attachments to a Trump motion to compel. And he wanted them

unsealed. And Judge Cannon said, sure, go ahead. Because the government only, you know, they didn't meet the high standard of necessitating a compelling governmental interest and narrowly tailored. And that's when Jack Smith filed a motion for reconsideration saying, yo, yo, you're wrong on the law, clear legal error, manifest injustice, we only have to meet good cause. That's all for that witness list and witness testimony. This here for these responses to motion to compel on the secret docket, he's saying, hey, it's still just a good cause standard. Remember, I'm fighting with you about that and the 11th Circuit says I'm right and we're

going to appeal. He said we're going to appeal if you order us to release those witness lists on the earlier motion. Well now on these guys, not only do we meet the good cause but we meet the higher standard that you wrongly applied to that other thing we're fighting about. That's kind of where my mind is. So let's just save each other the effort and you rule in our direction and then we won't have to start

another whole appeal process here. Yeah, she does the right thing. She'll rule on the motion to compel or the reconsideration and she'll say, you're right, I was wrong. 11th Circuit precedent says you only have to bring good cause and you did bring good cause you met that standard and here you're also meeting the good cause standard so you can make these redactions I approve them that would get her out of a lot of hot water and it would avoid an appeal going

up to the 11th Circuit but again if the interest or if the if the goal is to delay you know an appeal to the 11th Circuit would definitely throw everything out of whack for a month or two. Yeah, yeah, for sure, for sure. So, the categories that the government wants to keep from the public are as follows. What are they? Because I was very interested in this part of it. And they're pretty standard, right?

Yeah, they really are. This is not like a big, you're not going to be in this part of it. And they're pretty standard, right? Yeah, they really are. This is not like a big, you're not gonna be surprised by any of this. So the first category is search warrants. And they say that after the March 1st, 2024 hearing, the government reviewed its redactions to the Mar-a-Lago search warrant, affidavit, and the eight warrants related to defendant Noda.

Eight. That's kind of interesting. We haven't heard that before. Wow, Walt. How many things did they have to search warrant for you? That's probably a lot of ISPs and telephone providers. Yeah. That's sort of stuff.

Because you had a laptop and an iPad and two phones. Yeah. So that's not like eight search warrants at his house, but maybe one at his house, you never know. But most of that is probably for data. But in any case, they go on to say, in light of observations the court made during the hearing and what will inevitably come out during litigation of the suppression motions, the government revisited the redactions that it previously sought in the matters before Judge Reinhardt. The government has now substantially unredacted the affidavits with the primary goal of the

remaining redactions to be to obscure the number of witnesses in support of each warrant and which witness was responsible for which piece of information. Thus, the references to witnesses, even in anonymized form, are redacted in their entirety except when Nauda appears as the witness. Because, yeah, you know him. Yeah, we all know his identity. He's the subject of the indictment. The next one was interesting, though.

Apparently, there's some sealed matter in the District of Columbia. Yes. So, number two is a sealed matter in the District of Columbia. Yes. So number two is a sealed matter in DC. So they say exhibits 15 to 19 to Trump's motion to suppress and exhibits two and three to the government's opposition come from a matter that is sealed in the District of Columbia. At the March 1st hearing, the government indicated that it would be seeking relief as to the sealing restrictions from the court in the District of Columbia.

Since the hearing, the government has concluded that, pursuant to Court Rule 6e3g, the government must request the court in the District of Columbia to transfer the petition for relief to this court. The government is preparing such a filing and will serve it on the appropriate parties. Once the court has the matter, the government will be seeking to have three pleadings in these exhibit sets redacted, likely consistent with the search warrant packages, and the remaining docket entries sealed to protect witness testimony and the privacy of ancillary parties. I think this might have to do with those. Remember when they got the lies to the DC grand jury from Nauda? So I think that might be the DC case that has to come down here, but I don't know. I'm just guessing. Could be anything. Yeah. Yeah, it could be. We'll see where that one lands. Now, Jack Smith also wants to redact or keep sealed the grand jury transcripts,

which makes sense under Rule 6E, the grand jury secrecy, says in addition, the transcripts represent Jank's Act materials for potential witnesses and removing their possible testimony from the public realm until trial protects the integrity of the proceedings. Very common. At the hearing, that's the March 1st hearing, the court observed that it had failed to find any decision considering the withholding from the public, the quantity of information the government seeks to do here. That's Jack Smith saying, remember at the hearing, Judge Cannon, when you said, boy, the government sure wants to withhold a lot of stuff? Jack Smith says there's a reason for that. There are a few criminal prosecutions in which

the government has produced so much grand jury and Jenks act material so far in advance of trial, especially in a circumstance where the potential for threats and intimidation to government witnesses is real and verifiable. So the reason you have so much stuff to protect is because we handed it all over so fast and so furious to you and the defense. And that's why there's a lot right now. That's why you haven't seen. And plus, this is what your third trial, like, when you're comparing this to. I mean, even with her limited experience, she should understand the necessity of protecting

grand jury testimony prior to trial. That comes up in all kinds of random criminal cases. That's not just this one, but it does raise an interesting question for me. There's no question that they have taken this high road position with their approach to this prosecution in terms of the venue that they brought it in and in terms of the way they've handled themselves and discovery. They've turned over a ton of stuff. They turned it over very early. And you wonder, like, I wonder if they're rethinking that, if they're thinking like,

did we, in going above and beyond what was required and trying to really put him in the best position possible so he couldn't possibly complain about anything. He has now complained about everything. Should we have been more aggressive and just like cut to the bone? The raw minimum amount necessary, given things over at the last second? I don't know. It's a good question. I think it's a worthy one they should consider.

Yeah. Maybe something they could have asked, uh, the Mueller team about. Um, the last two things he wants to keep secret are witness testimony and third parties, which make sense, right? Um, FBI 302, uh, interview, you know, 302s of interviews, other writings, emails that memorialize witnesses' potential testimony, privacy interests of ancillary third parties who names, whose names appear in various materials should be paramount, right? that memorialize witnesses' potential testimony, privacy interests of ancillary third parties whose names appear in various materials should be paramount, right? But that's something we always

redact because we don't want to accuse someone of something that when there's not a crime committed, that kind of a thing. So all pretty general stuff. I'm a little curious about that sealed matter in DC, but I'm imagining we'll find out during the course of trial. Yeah. And let's remember, this is just to restrict it from the public. The defense team and the defendants all get it. They get all this stuff in full, unredacted, unsealed form to use to prepare their defense.

The attorneys can say everything else. It's just to keep it from the public to make sure that people don't get, as you said, have their privacy violated or get threatened or undermine the trial testimony that's going to come out eventually. There's no reason to do it now. But just like the witness lists on that motion to compel, Donald Trump, Walt Nauta, and Carlos de la Vera oppose keeping all of these redactions and keeping anything under seal. They oppose. Right. Right. Okay. Jack Smith also files responses to Trump's motion to dismiss for vindictive and selective prosecution, the appointment and funding of the special counsel, and unconstitutional vagueness. So we're going to cover those on the next episode because this episode is already

busting open with content. Ken and also accepted two amicus briefs. Those are friend of the court briefs. One saying that the National Archives referral to DOJ was improper and another one saying that Jack Smith's appointment is unconstitutional. So I'm thinking that looks like the Federal Society lawyers have really been busy. Steve Miller wrote one of these. So it's in Transylvania and you have to know it's it's very it's really poorly written. We'll get to we'll have fun with that next week I think. Good times, good times. And the defendants asked for evidentiary hearings on their motions. So five of Trump's and all five of Walt Nautas, the DOJ has opposed a hearing for any of the

motions but Judge Ken, of course, has set a hearing on March 14th for three of the 10 hearings that were requested because not only do you grant hearings you grant them slowly and it'd be in a piecemeal fashion that strikes it out. Trump's motion on constitutional vagueness and Trump and Nauta's motion on the Presidential Records Act. Yeah, and it's blowing my mind that she is even having a hearing on the Presidential Records Act, bananas, things. Those are just so far out of left field and so wrong on the Presidential Records Act, bananas, things. Those are just so far out of left field and so wrong on the law. Yeah, I agree. I don't know why she seems to have this feeling that it's not acceptable

for the judge just to accept particularly the government's arguments on a point and then issue a ruling. Somehow, like she has to, every single issue has to be aired out, you know, orally as well as in writing. And then she strikes some solemnotic, you get half, you get half result. Even when, you know, something is as clear as this presidential records act, nonsense, but. And there are some judges that really always give

the government a really hard time, but end up siding with them anyway. I think Judge Sullivan we've heard. And a lot of folks are like, hey, if the judge is really going against you, that means you might be doing well. But Eileen Cannon has a little bit of a different background in this arena. She doesn't have a bunch of cases we can look back to to see what percentage of the time she sides with the government.

That's right. Finally, one of the most interesting filings this week came from DOJ, updating the court on its discovery production. Jack Smith said, on March 7th, 2024, the government provided a 14th production of unclassified discovery to counsel for defendants. Production 14 consists of nine pages and includes the memorialization of an interview conducted on March 6th. So, that's the day before. So, that one day, not even 24 hours probably went by that they produced the results of this investigation. And it was this week.

So that's amazing, I think. Yeah. And so this is really fascinating. We don't know what it's about or who it was, but boy, it certainly sounds like they came into a new witness, maybe a cooperator, somebody who has told them something significant that they didn't want to sit on it for even a day, they immediately turned it over. That could be, we don't know, but it could be because they anticipated if it's somehow really significant testimony, they are anticipating that the defense will try to suppress it for some reason and they want to get it for some reason, and they want to get it out there as soon as possible.

So if there's going to be an argument over it, we can get that done. So yeah, I don't think you would do that with just some run-of-the-mill interview that wasn't pretty important. You know, what's interesting is we didn't really see any motions to dismiss, except I think Juan from Carlos de la Vera. Maybe they got to him. They all kind of came from now to and Trump. Yeah. Yeah. Interesting. It would be smart.

Ask your buddy to Varis, who is sitting at home, not out on bail, not under indictment. Exactly. There's a long view here. You could take that play or just strap into the roller coaster and see where it stops. So we could hear something important on this very soon. And if we don't, maybe it was just some interview

that they got that's ancillary to something else to prove to get something into evidence or something. I don't know, but I don't know. We may or may not hear about it. How about that? There you go. All right. We have to take one more quick break and then we'll be back with listener questions. Stick around. We'll be right back. ["Dance of the Sugar Plum Fairy"] All right, everybody, welcome back. I have one more quick story for you, Andy, before we get to the listener questions

that might impact the DC case. Let's go back in our brains up to DC. We've been in Florida all day. This is from CBS 58 in Wisconsin. I love the locals love it documents released this week as Part of a lawsuit settlement reveal new communications indicating senator Ron Johnson and his top aide We're told papers sent to his office on January 6th. We're actually the fraudulent electors Wisconsin's presidential electors for years

Ron Johnson has downplayed his knowledge about the effort to deliver fake documents to Vice President Mike Pence at the time, pledging electoral votes for Trump from seven states, including Wisconsin. He's long denied this. Remember, he's walking with his phone and the reporter's like, I can see your phone, you're not on the phone. The newly released records include communications from Jim Trupas. He was a Trump lawyer in Wisconsin during the 2020 recount and subsequent effort to throw

out more than 200,000 absentee votes from Milwaukee and Dane counties. You know who? Yeah. These are the same votes that we heard from Kenneth Cheeseborough's testimony. This was, there was a real timing issue there. They couldn't get the fake electors stuff produced and signed and mailed in time. Were they going to just mail it or should they FedEx it? Then they actually had them flown down because they weren't confident that they would make

it on time. Yeah. And Ron Johnson's, I didn't know what it was. I didn't know my staff didn't know what it was. We didn't know what you were trying to hand us. Now, previous document dumps, including those from the January 6th committee, indicated Johnson had pushed for the state legislature to get involved and pick the state's electors. Those records also indicated Johnson connected Troupas to his staff.

This week's records release shows texts from Troupas directly to Ron Johnson on the morning of January 6th. Andy, uh-oh. to Ron Johnson. On the morning of January 6th. We need to get a document on the Wisconsin electors to you for the VP immediately. That's what Jim Trupas said to Ron. Six minutes later, six minutes, Johnson initiated a group text with Trupas and Sean Reilly, his chief staff. Putting people together, making the connections. You've both just met a cool person, wink, wink.

Quote, Jim Troupas meets Sean Reilly. That's what Johnson wrote, and Johnson also misspelled the last name of his chief of staff. About one hour after that, Ron Johnson notified Jim Troupas, we've been informed that the VP cannot accept any unsealed mail and I can't hand it to him directly. And Trupas said, at minimum, you could read it into the record. And Johnson never replied to that suggestion. Now, while Trupas told Johnson the documents pertained to the state's presidential electors, Johnson has repeatedly said neither he nor his staff knew what Trupas was trying to get to Pence. But there's more text messages that shows Mike Roman told Sean Riley what they were. Maybe it was a different Riley who spelled his name differently, so the message never

got to Ron. No, I'm Sean Riley. Oh, yeah. I think what happened here is somewhere along the flow of this information and after having jumped in and connected all the relevant parties on the things he knew about, he realized, oh, wait a second, maybe I'm becoming a co-conspirator. I may have committed some light treason. Yeah.

I think I might be in this conspiracy now. Oh, I can't hear you. Can't hear you. We can't take anything and not verify it. Yeah. Yeah. Yeah. This is serious. All right.

So what do we have for listener questions today? Well, we've got a bunch of questions about, as you would expect, about the SCOTUS decision on the 14th Amendment decision. So I just picked one, which I thought was pretty representative, and we'll start with that. So this one comes to us from someone whose name is just indicated as nah, N-A-H. I'm not sure what that means. They start with hello justice guardians of my galaxy. So SCOTUS ruled 9-0 against any one state keeping Trump off their ballot because one state shouldn't decide an entire election. Then in a 5-4 decision added that Congress must enact legislation under 14A, Section

5, to ascertain what particular individual should be disqualified. Question one, does the impeachment process qualify as enacted congressional legislation to determine if a particular individual is disqualified? No. Exactly. I agree. However, if you... That's a quick one. to determine if a particular individual is disqualified. No. Exactly. I agree. However, if you impeach and you convict, you can write in the conviction that they can't

hold office anymore. Yeah. Yeah, yeah. That's a good point. That's a very good point. I hadn't thought of that. Okay, question two. She says, I know a simple majority is not enough to convict and remove a sitting president through

impeachment, but can another entity other than one of an individual state use the second impeachment vote, which the House was 232 to 197 and the Senate was 57 to 43, as grounds to disqualify Trump from ballots nationwide. And again, sadly, I think I'm gonna go no on this one because I think as I read the Supreme Court decision, they clearly what they are saying is that Congress has gotta pass a law saying like, this is how this insurrectionist exclusionary factor can be applied to candidates for federal office.

Yeah, basically that it's not self-executing. That's right. Congress has to make it happen. Sort of like that inherent contempt thing we were talking about. Why don't they just jail Roger Stone and put him in the basement of the Congress if he won't testify to the January 6th committee? It's because there's no mechanism to enforce inherent contempt of Congress. And I think Ted Lu tried to get some legislation introduced

to do that, exactly that, but they weren't interested in that. Because they were like, well, if we do that, then they'll subpoena us. And we tried to say, they're going to subpoena you anyway. But anyway, here we are. So that's what I'm saying. when everyone says, you know, Mitch McConnell could have ended this by voting to convict on the second impeachment. What they mean is that there's, there's only a couple of ways to remove a president. One

is to impeach and convict. And there's only a couple of ways to bar them from running again now because of what SCOTUS has said is that you have to have Congress pass a law to do that, pass legislation or resolution to do that. But also- If you're trying to do it under the 14th Amendment. If you're trying to do it under the 14th Amendment. But there's another way to bar somebody from running for office again, and that is when you convict after impeachment in the Senate, you can actually write in the conviction that the punishment is that you can't. You're not eligible to run for office again. And that's why everyone's like Mitch

McConnell could have ended all this four years ago, three years ago, but didn't. And that's like really infuriating that we're here now and having to deal with that. But also, you know, I think that even there's 2383 inciting an insurrection has a clause in it that says you're barred from running from office again, but I don't even think that would stand up constitutional scrutiny. And I don't think would be a... I think if we ever got to that point where we have somebody convicted of insurrection that was trying to be kept off the ballot, I think that SCOTUS would overrule that and say it's unconstitutional because the Constitution is clear about

what the presidential qualifications are and that's not one of them. Yeah, I think that's right. And then that puts you right back into the jackpot of having to prove an insurrection case, which is not easy. But we've seen that with the very few that have gone forward. There's also the mishandling of classified documents, a felony that has a provision that says you can't run for office again, and they were trying to use that on Hillary. And I don't think that would stand up to scrutiny of the Supreme Court Constitution either. Unlikely, unlikely.

But I will tell you, I love that so many of our listeners are like thinking through this, and they're coming up with other plans, other ways that Congress could do it, how could people do it based upon the recent impeachment record? It's good critical thinking, and it forces us to get our heads around these issues in a different way. So, thank you, NAH, for sending in that question. Yeah, thank you. Next question, Chickadee says, I listened to so many political legal podcasts, how I

only found Jack last month is beyond me. Your analysis is so unmatched that I binged all 67 episodes in two weeks. That's righteous. That's a lot of listening time. Well done, Chickadee. Holy cannoli. It is constantly casually remarked that if Trump were to be re-elected, which is seemingly increasingly possible by the day, especially if this trial is pushed past the election,

he could immediately close all federal cases and pardon himself. Why does all commentary treat this as legally valid? It seems wildly absurd that an untested legal loophole, one that could effectively upend democracy as we know it, would be embraced by any of our branches of government. It's a good question. It is a good question, but I think most of the commentators that are talking about what might happen if Trump wins the election in 24, it's really more from the perspective of what he can do to the Justice Department, right?

He can put in an attorney general who will follow his directives and then he could tell that attorney general, fire Jack Smith, be done with this and dismiss all the cases against me. And that's not really an unproven legal theory. Okay, it's never happened before, but it is pretty clear that the president has the authority to tell the Justice Department what to do. It's violating all kinds of norms and probably a terrible idea, but there's no law that would prohibit him from doing that. He certainly has the authority to... He did it with Roger Stone, Mike Flynn, then pardoned them. They were done. The self-pardon...

I don't think you would need to do it. No, I don't think so either. So that's the unproven legal part. The lawyers argue with each other as to whether or not under the Constitution a president can pardon himself. I don't think he needs to. If he did, it would be tangled up in all kinds of lawsuits forever. So it'd be tough to unwind and in a 50-50 shot at best. Yeah, I agree. But thank you for the questions. Everybody there's a link in the show notes to the questions and you can always send us whatever is on your mind.

We really appreciate the questions. And wow, 67 episodes in two weeks. Good on ya, that's a lot. Heck yeah. Heck yeah. Woohoo. We have done another episode that exceeded one hour, my friend. And we didn't even get to all the responses to the motions. We'll have to push some of

those off to next week. But thank you all so much for listening. Do you have any final thoughts before we get out of here this week? You know, and what looked like a quiet week kind of blew up on Thursday with all those filings. So this is just, I think think what we can expect going forward as these cases kind of ramble towards some sort of conclusion one way or the other. So yeah, we'll have a bring a couple of nuggets to the table already for next week. So I would expect another jam packed show. Yeah, at some point, we might have to go to two episodes per week. I hope you'd all be interested in that. I know Chickadee would.

She listened to 67 in two weeks. So I think we could handle it. Chickadee can handle it. She can handle it in an episode a day at that rate. Good for you. Awesome. Everybody, thanks so much. We'll be back in your ears next week.

Please join me on the Daily Beans tomorrow morning for all your news with swearing needs. And of course on Wednesday, Pete Struck and I will host Clean Up On Isle 45. Always a good time. Thank you so much. I've been Allison Gill. And I'm Andy McCabe. And I'm Andy McCabe.