Jack - Episode 68 | Judicial Glosses

Episode Date: March 17, 2024

This week, in Mar-a-Lago, Jack Smith responds to Trump’s motions to dismiss, Cannon dismissed one of Trump’s motions, but that’s not all good; Steven Miller’s organization filed an amicus brief supporting dismissing the case based on the Presidential Records Act; Judge Cannon extends the filing period for reply briefs and lays the groundwork for what could be some serious shenanigans.In an interview with Kaitlin Collins “Witness #5” said he heard a Mar-a-Lago guest discussing that Trump told him confidential information about submarines.Plus, a couple of listener questions, and more! 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

MSW Media I signed an order appointing Jack Smith. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. Wait, what law have I broken? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is?

Send me to jail! Hey everybody, welcome to episode 68 of Jack, the podcast about all things special counsel. It's Sunday, March 17th. Happy St. Patty's Day. And 68, the number 68 has a special place in my heart because my first car was a 1968 Ford Mustang. Nice. You should have kept that thing. I paid $1,800 for it in 1992. Oh my gosh. It would be worth much more than that now.

Yeah, it probably would be. Three on the floor. It's a fantastic car. Anyway, I'm Alison Gill. And I'm Andy McCabe. I'm a very jealous Andy McCabe at this moment. Big show today. Big show. Not only are we going to go over the remaining Jack Smith responses to Trump's motions to dismiss that appear on the public docket, but we're also going to go over the hearing on three of those motions this past Thursday and the implications of Judge Cannon's ruling to dismiss one of them without prejudice. Yeah. Sounds great, but it's not that great. We're also going to go over employee number five, which reminds me of Mambo number five. We should write a song. That's Brian Butler,

I think, his interview with Caitlin Collins, your colleague at CNN. An extension to file certain reply briefs has been granted by Judge Cannon. The 2025 special counsel budget, which is interesting, but then not. We have a sealed ACIPA section four ruling. We have Jack Smith's reply to an amicus brief, which is hilarious, and newly released testimony about what Trump knew on January 6th about whether or not the rioters were armed. And Andy, I think we should start in Florida with Thursday's hearing and Judge Cannon's denial of Trump's motion to dismiss on unconstitutional vagueness grounds. And I want to start there because I think that this is probably the most important piece

of Jack Smith News this week. Yeah, I'm with you on that one. It's a really weird piece because it looks like one thing, but then when you dig down into it, as we will, you see some more dastardly implications down the line. But just for the top line to start us off, let's just level set where we are with this thing. He filed a motion basically claiming that 18 USC 793, the Espionage Act, is unconstitutional in the way that it applies to him. Now, to be perfectly clear, this is a motion that should not have even been granted a hearing. It is so preposterous and such a blatant effort to just throw stuff at the wall to create

delay that many, I would say most judges on the federal bench would have simply ruled on it without a hearing. And confirming that opinion was the wonderful former federal judge, Nancy Gertner, who I happen to be on TV with last night said the same thing. So that's the way that I've been leaning on it. But to hear a formal federal judge say like, this is absurd. Like this one and several of these other motions that Trump has filed are the sort of things that federal judges just cut through very quickly with short orders and don't even waste any time with hearings.

But that of course did not happen because we are in the courtroom of Judge Eileen Cannon. Now I guess to her credit, Cannon seemed skeptical of Trump's arguments for both the PRA and the unconstitutional vagueness claims. And that doesn't actually surprise me because essentially what Trump is asking her to do here is declare the espionage or at least part of it unconstitutional. That would be a massively bold move. And Judge Cannon is not a judge who makes bold moves. So I think Trump was a bit cursed from the beginning here. Well, it's not like a seditious conspiracy charge.

We've used 793E, we, like I've got a mouse in my pocket, y'all have used 793E hundreds of times. I mean, this is a well established law. That's very true. And it's also not just the aspect of 793 that Trump has been charged with here. It's a big law. It's got a lot of different aspects to it. There are significant and legitimate legal arguments about whether or not parts of the Espionage Act maybe are a little bit overly broad or vague,

but this is not one of them. And certainly the application of Trump on these facts is pretty cut and dry. Yeah. Well, Judge Cannon says otherwise though. As per her usual MO, she trashes the government and trashes the law, but then says, but I'm going to rule in favor of you anyway. I mean, that's kind of how she operates. But there were three motions discussed in the hearing on Thursday, two for Trump, one on unconstitutional vagueness, one on PRA, and one for Nauta, who joined Trump's PRA motion to dismiss.

And just to level set, PRA? Presidential Records Act. There you go. Thank you. Sorry. Yeah, I keep forgetting. Like I blow through all these like, oh, everybody knows what PRA is. We're government people. That's what we forgetting. I blow through all these like, oh, everybody knows what the PRA is. We're government people. That's what we do. The regular people sometimes are like, what are they talking about? We abbreviate everything. Now, shortly after the hearing on Thursday, Cannon ruled pretty

quickly on one of the three, and that's Trump's motion to dismiss based on unconstitutional vagueness, the one you were just talking about. And it's written in a really weird way. So let me give you an example. Here's what she says. Defendant Trump seeks dismissal of counts one through 32 of the superseding indictment. Those are the ones that are, those are the charged documents, right? The classified documents, the national defense information. On the ground that the statutory phrases unauthorized possession and relating to the national defense and entitled to receive that appear in 18 US code 793 are unconstitutionally vague as applied under the

facts presented in violation of due process and the rule of lenity. Then she says this sentence and I still don't know what it means. She helped me out. She says, although the motion raises various arguments warranting serious consideration. Okay, first of all. Okay, we're on shaky ground already, but okay. No, it doesn't. She goes on to say, the court ultimately determines following lengthy oral argument that resolution of the overall question presented depends too greatly on contested instructional questions about still fluctuating definitions of statutory terms and phrases as charged,

along with at least some disputed factual issues as raised in the motion." So I guess what she's saying is that some of the stuff Trump raises in his motion are still under dispute. I think she's also saying that there are contested instructional questions about a still fluctuating law or definitions of terms. I don't understand this sentence. Well, what this whole thing says in total is time

to hire a new law clerk because you couldn't write an order in a more obtuse and hard to understand way. But I think the first part of that where she says resolution of the overall question presented depends too greatly on contested instructional questions. That's a reference to jury instructions, I think. I mean, we're trying to read the tea leaves here. The next piece about still fluctuating definitions of statutory terms and phrase, I don't know what that means. Statutes don't fluctuate in my experience. Is there a committee that I'm unaware of that's trying to determine whether or not the definitions and terms and phrases in the law are up for debate? I don't get it.

I guess there is. They're called judges. That's what they're supposed to do. But no, I mean, there's no fluctuation of a law. It just says what it says and then the courts interpret it as they go. Maybe she means I'm still trying to figure out what these words mean. Maybe. That could be. I don't know. But she goes on to say for that reason, rather than prematurely decide now whether this law in these circumstances yields unsalvageable vagueness despite the asserted judicial glosses, what? The court elects to deny the motion without prejudice to be raised as appropriate in connection with jury instruction briefing and or other appropriate motions Accordingly, it's ordered and adjudged that Trump's motion to dismiss one through 32 based on unconstitutional vagueness is denied without prejudice

And Andy at first you're like, yeah, she denied a motion from Trump and it seems like a win But I think it's actually probably the worst case scenario for the government It could be it could be Because had she granted Trump's motion, Jack Smith could appeal this to the 11th Circuit, right? Yes. And had she outright denied it, like most judges do with prejudice, Trump would not be able to bring it up again later. But she denied it without prejudice. And Joyce Vance, former US attorney, writes in her sub stack, she says, the good news here is temporary. It's what I'd call an ugly win for the government. The judge dismissed the vagueness argument,

but just for today. She did it without prejudice, which means that Trump lawyers can raise the argument again later in this case. In fact, the judge seemed to do just that in her order, essentially inviting the defense to raise the argument again at trial. She says the motion turns at least in part on disputed factual issues. That's significant because those disputed issues get aired at trial when the evidence is presented to the jury. If the judge had ruled against the government today,

special counsel would have appealed, could have appealed, but that's not the case. If after today's ruling in the government's favor, she permits Trump to resurrect the motion at trial, she could grant the motion to not the case. If after today's ruling in the government's favor she permits Trump to resurrect the motion at trial, she could grant the motion to dismiss the case then. And at that point with very rare exceptions the government cannot appeal. That's because once the jury has been impaneled double jeopardy attaches. So if you're asking at what point in a trial or a prosecution does double jeopardy attach, it's once the jury has been impaneled. Correct.

And that prevents the government from retrying the defendant on the same charges if he's acquitted, which is what would happen if the judge granted a motion to dismiss at that point, but before the jury rendered a guilty verdict. That's the nightmare scenario here. Now, our SIPA expert friend, Brian Greer, says that he thinks it's more likely she'd use vagueness concerns in an excuse to limit certain definitions in the jury instructions. And that's sort of kind of what she spelled out in that weird sentence, right? Yeah. And I was talking to Jeff Tubin last night who said the same thing. Because

when I first read the order, I said, she isn't actually proposing to send the question of unconstitutional vagueness to the jury. And he said, no, no. In jury instructions, they will have to essentially kind of define the statute for the jurors. And she's kind of leaving the issue on the table to allow the two sides to fight over the instruction later. I think that's probably the more likely result of this rather than kind of planting the nuclear bomb surreptitiously in the case only to activate it later and dismiss the case forever gone, whatever. That's a scenario. The scenario Joyce Vance lays out could happen, but I think

Brian's suggestion is probably more likely, but just put in that big column of things that we have to wait and see on. Right. And if this law clerk gives any of the jury instructions, it's going to be like, the judicial glosses of ever fluctuating definitions of the term document must be taken into consideration when you try to decide whether or not he willfully retain documents. It's going to be wacky.

Everything about this case is insane. I mean, she has so incredibly complicated this process at the point at which it's not even really that complicated. It's going to get way more complicated as we go on. And it's just hard to imagine how she's going to react there. I mean, you think of the, just start racking up the number of motions that are sitting out there that haven't been decided. No orders have been written. It's just colossally horrible judging. So you can't be surprised by these crazy rulings, but I do think it's important to understand the two ways they could go. And on that happy note, next up, Trump, Nauta, and Dale

Lavera filed a motion to get a 10-day extension to reply to Jack Smith's responses to Trump's motions to dismiss. So Trump and his co-defendant, you will recall, filed 13 motions to dismiss, and Jack Smith opposed all of them. And Trump now wants 10 more, Trump and his co-defendants want 10 more days to respond to all of those Jack Smith opposition filings. Jack Smith opposed the motion for the additional 10 days, saying, an extension of time such that they receive more than twice the time allotted by the local rule

is unreasonable. The briefing schedule has been in place for months. Only now, on the eve of the reply deadline, does the defense complain that it needs more time, mostly based on circumstances about which they have been aware of throughout the pendency of their motions. The trial date in New York has been in place since 2023. The evidence Nauta and Deo Lovera will inspect tomorrow has been available to them since the government first provided them discovery. And Nauta fails to explain how any questions about

grand jury practice in the District of Columbia could affect his reply briefing and why he has waited until now to seek this information. And the fact that the defense must travel to Florida for a hearing on Thursday is not unique to those teams and poses no cause for such delay. The court should deny the defendant's motion. But guess what happened? There's your drum roll and Judge Cannon granted Trump's motion and has given him until March 24th to file his responses. Now that would have been one day before jury selection began

in his New York trial, but he just got a delay there too because the Southern district just handed over another hundred thousand pages of discovery and then DA Alvin Bragg has agreed to a 30 day delay. So we don't have the judges ruling on that yet. We don't know exactly how long it'll be. But on the good week, bad week side, you know, Trump's got some- It's a good week for Trump. Yeah. It's been a pretty good week for the Trumpster. Yeah. But I will say about that production or lack thereof from the Southern District of New York, of that 119,000 pages, I think the total is, only about 31,000 are relevant to the case, probably fewer. Trump has many of those already. And the DA

filed this morning saying that none of those documents were part of their first request over a year ago. We're still waiting to get all the facts on that. We don't know who or why there's new production. The DA blames Trump for dilatory, you know, he wants to delay this basically. But we don't have that judge's ruling yet, Judge Merchan's ruling yet on the 30 day delay. Alvin Bragg asked for 30 days. He says he's ready to go March 25th, but he's cool with a 30 day delay And Trump wants 90. Yeah And you know, I think the biggest indicator to me is from Bragg's filings first the first trance of documents

He got with that 70,000 plus he said there's only about a hundred and fifty hundred and seventy that were even relevant and the second trance He got which I think was 30,000 something that were even relevant. And the second tranche he got, which I think was 30,000 something, he had only received those the day before he wrote that filing with the court. So he'd already been through all of them. So you're not, okay, it sounds like a huge number. It is a big number, but it's not something that's going to take the defense 90 days to go through. Alvin Bragg's team went through it in a day, essentially, or a couple days. Right. And then there was one last additional dump that was supposed to happen next week,

but it happened Friday. So they got everything. And somebody, I think somebody was like, I think it might have been Andrew Weisman or somebody quoting him with saying, it looks like Alvin Bragg called up the SDNY and went snap-a-doodle and got it in a day instead of a week. They weren't looking good yesterday. They're taking a pretty sound beating all over the media. So you got to imagine there's some of the newer attorneys in the Southern District spent the entire night in the office last night, culling through documents actually have that on pretty

good source that the entire office is basically diving on those things trying to figure this thing out last night. So I'm not surprised they did it quickly. Oh, at the DA or the Southern District. Okay. Yeah. I, you know, there's a lot of speculation out there, whether it was the Southern District of New York that made this decision on their own or decided to withhold documents a year ago and why and whether or not they elevated it up to Merrick Garland to discuss it with him. Nobody kind

of really knows anything about the inner workings of the Southern District of New York, but they are pretty, they've called the sovereign district of New York. My feeling is they probably made this call on their own, but I don't know. And also, Marcy Wheeler put out a great piece about eight potential reasons they may have initially withheld these. There may have been open and ongoing investigations like into Victor Vexelberg, who was giving $400,000 through Columbus Nova to essential consulting, which is you always have to say it with that accent. It could have been, there could have been a tax, open tax fraud, federal tax investigation into Trump himself. There could have been, it could have been trying to cover up some of what Barr was doing

with the Southern District of New York to prevent the DOJ from getting a black eye. We just, we really don't know. I doubt and I doubt we'll know. Yeah. In my experience, A.G., despite the kind of lofty kind of comments about, oh, we're all law enforcement together, it's kumbaya. When one prosecutor's office asks another one for documents from a case or even access to a witness, from a case or even access to a witness, the office that receives that request, they look for every possible reason why it could potentially harm an existing or future case before they decide whether or not or what to turn over. So there's that.

That's just kind of standard practice. And this is entirely a decision that happens in the district, in the, in the, in this case, Southern District office. This thing does not go to DOJ. In fact, DOJ probably knew nothing about it until it became a media story yesterday. And then I would expect somebody from the criminal division probably called them up and said, WTF, what is this? And how did this happen? Right. I think they were probably as surprised as the rest of us. Exactly. So, this is not a DOJ main, you know, Merritt Garland or anyone else there for that matter

saying, you know, sit on this for a while and, you know, for whatever reason you can't even imagine. Yeah. All right. Finally, before we get to a break, one other quick story. Judge Cannon docketed her ex parte order following the February 12th and 13th SIPA Section 4 hearings. Remember when she met with the government? Yep.

And the government was like, this is what we want to redact. Here's all the stuff that he took. Check this out. Holy shit. Here's how we want to present it at trial, et cetera. And she released that order on the docket. The order was entered February 19th, a little less than a week after those hearings, and it's entirely redacted. So redacting for me, but not for thee, I guess, on Judge Cannon's docket. And while a lot of this does need to be kept under seal, Andy, obviously, for obvious reasons, Judge Chutkin up in DC, this is another one, you know, compare and contrast with Judge Chutkin up in DC, this is another one, you know, compare and contrast with Judge Chutkin and Judge Cannon. Judge Chutkin at least provided a few pages of explanation

for her SEPA Section 4 ruling, but we get nothing here. It's important to note that with a ruling date of February 19th, it appears that the government did not appeal her SEPA Section 4 ruling to the 11th circuit because I don't think that you would get a month to appeal that. So perhaps that's a silver lining here that maybe she did the right thing. There was no appeal. But maybe another silver lining is that if she had written a Chutkin-esque order explaining her decision, it would have sounded like something out of a Harry Potter novel, right? So we would have been sitting here and go, what does any of this mean?

Judicial glosses? Is that makeup? I don't know. Is it lip gloss or is it? I don't know. I don't even know what the name of my new band. The judicial glosses. All right, everybody.

We have a lot more to get to, but we have to take a quick break. Everybody stick around. We'll be right back. Welcome back. Okay, we promised we would go over Jack Smith's publicly filed responses to Trump's motions to dismiss that we did not get to last week. So now we'll go over the highlights of those government responses, which of course opposed Trump's motions to dismiss based on the appointment and funding of the special counsel and selective

and vindictive prosecution. We were going to cover the unconstitutional vagueness motion, but we did that already with Judge Cannon's ruling to deny it without prejudice. So let's start with Jack Smith's response to the motion to dismiss based on selective and vindictive prosecution. So before I dive into the actual motion, I just want to say that motions alleging vindictive prosecution almost never succeed. And the basic reason, we'll get into the legal structure

of it in a second, but the basic reason is that the courts generally think like if the evidence in the law supports a conviction, we don't really care if the motivation was vindictive. I asked this a lot back in the Mueller days early on as a baby podcaster, talking about some of the text messages that went back and forth between the Mueller team about, you know, Trump is a bad guy or whatever. And I was like, why would that be a bad thing? I mean, wouldn't you like really extra investigate?

I mean, you got to go on the facts and the law anyway. So why does it matter if you don't like somebody? And listen, that exists in every case, right? You spend five years investigating some Russian OC guy. You really believe, you know, you've seen a lot and heard a lot, talked to a lot of people, seen a lot of evidence. You believe that person's a bad person that need to be put in jail because they've done all these violations of criminal law. You don't have to like the person you're investigating. It doesn't make it vindictive.

Well, you did the Boston bombing, right? Yeah. There you go. There you go. I mean, you can't be like, I'm sure he was a pretty great guy. Well, I'm going to be fair and balanced about my opinion about Joe Carson or Naev. Not really. Well, I'm going to be fair and balanced about my opinion about Joe Carson or Nyev. Not really. Not really. So, because it doesn't matter, right? At the end of the day, it's what the facts are, what kind of evidence do you have to uphold the elements of the offense?

And while that seems a little bit harsh, you kind of have to remember that courts only rule on the evidence before them and hopefully nothing else. The rest of it is kind of drama and background noise. So anyway, okay, back to the SC, the special counsel's opposition response, which states, when Donald J. Trump left the White House in January of 2021, he arranged for scores of boxes holding hundreds of highly classified documents to be sent to the Mar-a-Lago club where he had a personal residence. These documents had been generated by members of the intelligence community and provided to Trump during his term in office to facilitate the execution of his duties as president of

the United States. When those duties ended, so too did Trump's authorization to possess the documents. They were not keepsakes, memorabilia, or trophies for him to keep and use as he pleased after his return to life as a private citizen. They contained sensitive, highly classified information related to the national defense, and as such, the Espionage Act proscribed their retention in an unsecure location by a private citizen who lacked authorization to possess them. Trump, nevertheless, knowingly possessed and willfully retained the classified documents.

That alone distinguishes his conduct from a litany of former government officials who have retained classified documents beyond their terms in office through inadvertence or carelessness, but then returned them upon their discovery. But Trump's conduct went much further. Here's where it starts getting a little gnarly. Trump contends that he has been subjected to selective and vindictive prosecution, but he has not identified anyone who has engaged in a remotely similar battery of criminal conduct and not been prosecuted as a result. He has likewise failed to provide any evidence that his indictment was

brought solely to retaliate against him for exercising his legal rights rather than because he flagrantly and repeatedly broke the law. The special counsel has followed the facts and the law while adhering to all department regulations, including the prohibition on making a prosecutorial decision based on a defendant's, quote, political association activities or beliefs or, quote, for the purpose of giving an advantage or disadvantage to any candidate or political party. That is from the Justice Manual, and they cite the chapter here. Trump fails to show otherwise, and his request for dismissal or discovery based on selective and vindictive prosecution should be denied.

Yeah, and like every Jack Smith filing, he breaks it down in an easy to understand way. He's very clear about this. He covers the legal requirements for vindictive and selective prosecution. He says there are two prongs required. You have to demonstrate, one, that the federal prosecutorial policy has a discriminatory effect,

and two, that it was motivated by a discriminatory purpose. The first prong requires a showing that similarly situated individuals were not prosecuted. And what that means is, hey, this guy did the same crime as me, but he didn't get indicted and I did. Yeah. Yeah, exactly. So that's the discriminatory effect, right? You were discriminated against

when other people who did the same thing were not prosecuted. Yep. Yep. And here, Jack Smith compares Biden and Trump by quoting the H.E.R. report. The evidence falls short of establishing Mr. Biden's willful retention of the classified Afghanistan documents beyond a reasonable doubt. And on the other hand, with Trump, classified Afghanistan documents beyond a reasonable doubt. And on the other hand with Trump, he says, Trump knew the contents of his boxes, having personally collected the materials in them during his presidency and had been personally involved in the process of packing them up at the end of his term in office and causing them to be transported to Mar-a-Lago.

It further alleges that Trump on two occasions after his presidency, showed classified documents to individuals lacking security clearances while commenting on the classified status of the items. And then in a footnote, the government says, I love the footnotes. This is my favorite. Trump has since provided additional evidence of his knowing possession and willful retention, publicly claiming that he took the documents with him, openly and transparently, he put that on Truth Social, and that it was his right to do so because he made sure to keep secured documents in a secured place, he also put that on Truth Social, thereby confirming that he knew he had the documents and made

the considered decision to retain them. He has separately made the unsupported claim that before leaving office, he decided to declassify the documents, quote, by thinking about them, unquote. He said that on Fox News. He also put on True Social, luckily, I declassified. And Jack Smith ends with if he persists in these declassification claims, that too would provide additional evidence that he knowingly possessed the documents Which might be why he didn't go with that defense Andy. Yeah, maybe you know what?

I can't believe you didn't put in there Not that it isn't persuasive as written but the fact that he personally reviewed the contents of the document of the documents and then sent 15 boxes back to Nara But kept the other 60. Yeah. Like the fact that he looked at them, decided to send the stuff he didn't really care about back,

it also means he also decided to keep the things he kept. So it's just like, that's unbelievable to me. Yeah. And then Jack Smith goes on to refute that Mike Pence, Bill Clinton, Jim Comey, Hillary Clinton, David Petraeus, Sandy Berger, John Dutch, and Deborah Birx were anything like what Trump did. And just a couple of them here with Pence, 15 documents were found.

None of them carried high level classification markings. They were all given back in a day or I think two max, right? Yeah. With Clinton, Bill Clinton, he had taped diaries that he kept in his sock drawer that were deemed personal records under the presidential record act because that's how diaries are treated. With Hillary, and you know, the reason that Trump quotes the judicial watch so much is because judicial watch sued about those- It was their lawsuit for the Clinton tapes. Yeah, the Clinton socks case, they call it. Now, of course, Trump went on Newsmax and said that Bill Clinton smuggled documents out in his socks. I don't even think he understands.

And also, he claimed that Hillary had acid that would destroy things within a 10 mile radius and used bleach on her servers but I think what he's trying to say is that there's a software program called Bleach Bit that helps you delete stuff en masse, right? Yeah, super hard to say with any confidence what Trump was trying to say but I do think your guess is as good as mine on that one. I heard him recently refer to as, she had this thing called Bleach It. Yeah. No, no.

No, that's not it either. Also not right, but whatever. I think that he literally thinks she dumped bleach on stuff. Yeah, he also brings up a lot lately that she hit her phones with a hammer. Smashed phones with a hammer. That didn't happen. Well, they did get rid of old phones, like before the investigation was ever even in existence as she would cycle out of one phone into another phone. I think she used these, the old Blackberries is like the phone that she had to have.

They would take the one they were getting rid of and destroy it so that people couldn't get into it. There's nothing suspicious about that. No, right. That was the way, that was practiced. That was the common way to do that. And with Hillary, no charges were brought. Quote, none of the emails contained clear classification markings. Only three email chains contain any classification markings of any kind and somewhat ambiguous ones at that. And there was no evidence that former Secretary Clinton

believed or was aware at the time that the emails contain classified information. So not similarly situated. With Comey, we talked about this so much on the Mueller She Wrote podcast. He had seven memos. We called it the, there's an episode, I think in April of 2018 called the Comey memos. He had seven memos detailing his meetings with Trump. Remember he wanted to... Oh yeah. Contemporaneous notes. I remember them well. Right? Yeah. You know anything about that?

Just a little. Just a little. I even had a group called the Comey Five, who were the five people he shared his memos with. Well, I think I was on that list probably, right? I think you were. He took home four of those memos and left two, I think, in the office, because they were classified. They had some classified information in them. But he took four of them home because he didn't think that they had any classified information

in them. But later it was determined to have some secret and confidential information in those. And then he immediately gave them back. And he kept them in a locked safe and not in a toilet. So- Yeah. Jim had a skiff in his house. He had a skiff in his house. As is common among principles of agency. So he had a fully authorized top secret quality skiff in his house. Did you have a skiff in your house? He also- No. No. I had a safe so I could keep things up to the secret level. I do not have it anymore,

as you might imagine. That's okay. I probably took up a lot of space. Yeah. I was like, get that thing out of here. I know for a fact that Jim wrote the memos. He picked his words carefully trying to avoid anything that could make them classified. So in his mind, they were not classified. They were only classified after he got fired and the team went back and reviewed the memos and some classification authority determined that there was very, very, very few, a couple of little phrases here and there that were confidential or something, or I think maybe one thing secret, I don't

know. But it was a, they were classified after the fact. Yeah. So none of these guys. So if you were thinking about prosecuting him, you'd have to get over that question of intent. And there's almost no, there's no way you could possibly prove that he intended to retain classified information because it wasn't even classified when he retained it.

Yeah. And none of those folks were subpoenaed and didn't hand them over and then moved them and then tried to destroy a video of them moving them. Like that, it gets so bad. Sent their personal aid back to Florida to sneak onto the property through the hedges of the property next door and talk to guys who were told to deny that he was there? I mean, come on. That's nonsensical. So none of Trump's similarly situated individuals were remotely similarly situated. So obviously that's a fail on the first prong of the vindictive prosecution test. Okay. So now let's go back to the special counsel response. They say the second prong requires a showing that the prosecutorial decision was in fact

motivated by a discriminatory purpose on behalf of quote, the decision maker. Now notably, they go on to say, notably Trump does not contend that the special counsel himself was motivated by improper considerations, which would normally be fatal to his claims, as they require a showing of improper purpose on behalf of the prosecutorial decision-maker, as we just said. To avoid this problem, Trump sketches out a theory in which the special counsel, quote, was prevailed upon to bring the charges by another, evidently referring to Biden, quote, with animus such that the prosecutor could be considered a, quote, stalking horse.

That theory finds no support in evidence or logic. Indeed, the very sources Trump relies on undercut this claim. Now, we know that from Trump's filing, Trump used an April 2022 news article about investigating the riot at the Capitol that says career prosecutors working on the case felt only the pressure to quote do the right thing but he leaves out the part of the article that says to follow the facts and the law wherever they may lead in that quote the Justice Department officials do not keep Mr. Biden abreast of any investigation. Trump also raised a September 2022 interview with Biden where Biden gave

his reaction to the Mar-a-Lago search, but also said during that interview that he was not notified ahead of time, had not asked for specifics about the documents found at Mar-a-Lago because, quote, I don't want to get myself in the middle of whether or not the Justice Department should move or not move on certain actions they could take and that I agreed I would not tell them what to do and not in fact engage in telling them how to prosecute or not. So they're just, he's cherry picking. He's given it the Marbury versus Madison treatment. Exactly.

By the way, that's a reference to Trump saying that he's totally immune because Marbury versus Madison says that president's actions aren't subject to judicial review, but goes on to say unless you commit crimes. Everybody knows the landmark case of Marbury versus Madison stands for the prospect of limitless presidential immunity for crime. That's what he does, right? Because everything that he uses as evidence is actually the strongest evidence against him, including Marbury v. Madison, including thesebury v. Madison, including these articles and interviews. So it's just, it's fascinating.

It's the hall of mirrors that is his mind. Okay. All right. The special counsel goes on to say, indeed, the evidence that he has presented undercuts his claims as it repeatedly emphasizes that the prosecutorial decisions made by the department generally, and the special counsel specifically have been made on the basis of the made by the department generally and the special counsel specifically have been made on the basis of the facts and the law. The attorney general appointed the special counsel to ensure prosecutorial independence. The special counsel and the career prosecutors in his office have faithfully carried out their duties in this case and the indictment is the result of a thorough and impartial And the indictment is the result of a thorough and impartial investigation guided by the facts in the law.

Trump has failed to make a showing sufficient to entitle him even to discovery, much less dismissal on his claims of selective and vindictive prosecution. His motion should be denied. Well put. Very succinct. Yes. All right. And finally, before we take another break, Jack Smith has a response to Trump's motion

to dismiss based on the appointment and funding of the special counsel. And this one's pretty straightforward. Every single person who's been prosecuted by a special counsel tries this one and they all fail. Defendant Donald Trump argues that special counsel lacks the legal authority to prosecute this case and the lawful funding to carry out any prosecution. Each argument is incorrect and neither supports the dismissal of the charges that were properly returned by a grand jury in this district. The Supreme Court recognized in closely analogous circumstances nearly 50 years ago in US v. Nixon that the attorney

general has the authority to appoint a special prosecutor and Trump's funding argument is equally unsound. The special counsel's investigation is lawfully funded through an appropriation that has been used repeatedly to pay similar special and independent counsels. And the lawfulness of this practice is confirmed by statutory text, history and longstanding practice, including funding for special counsel appointed during Trump's administration. And I was hoping you would bring that up. There is that. Oops. We got special counsel Weiss. We got that. Oops. We got special counsel Weiss. We got special counsel Herr.

We got special counsel Durham. We got, you know, like. So sorry. Same stuff, same funding. Trump's attack on the source of funding would in any event provide no basis to dismiss the superseding indictment and the court should deny Trump's motion. So pretty straightforward. Yeah, I vote both of those. Again, we're on territory

now. Having seen the filings, she should issue an order. She should deny these motions with a very brief one page, maybe two page order, maybe a little more clearly written than the last one and walk away. Just keep going. You're going to keep batting them down. There's what? 13 total. You got a lot to get through. Start thinking about judicial economy. Yes. Yes. Agreed. And I am checking the docket right now. I'm looking to see if we have a decision on the presidential records act. And we don't. Although this is interesting breaking news. Mike Pence just told Fox News he is not going to endorse Donald Trump for president.

Wow, look at him. Got a spine there. Got a spine back. But yeah, he tried to kill you, bro. Yeah, I was going to say, like, you and your family at risk. Yeah, very big risk. Especially when we get to the story later in the show about what Trump knew about those rioters

before he texted about Mike Pence, but we have to take a quick break. So everybody stick around. We'll be right back. Hey everybody. Welcome back. Let's talk about Jack Smith's reply to Stephen Miller's, I'm sorry, I can't say it Jack Smith's reply to Stephen Miller's, sorry, I can't say it with a straight face, Stephen Miller's amicus curi brief. Does this not totally, I can't get out of my head with friends like those. I just can't. They're the best people. Oh, geez. And this was in support of Trump's motion to dismiss based on the Presidential Records

Act. Now, as we know, Trump thinks that the PRA, Presidential Records Act, says that as soon as he took the classified documents, they magically became personal records and therefore his under the Presidential Records Act. We know Judge Cannon had a hearing Thursday on Trump's motion to dismiss based on the Presidential Records Act. She hasn't, whoops, she hasn't. I just checked. We don't have a decision yet.

Well, last week, Stephen Miller wrote wrote and Judge Cannon accepted an amicus brief supporting Trump's motion to dismiss the documents case based on the presidential records act. Here's what Jack Smith has to say about it. First of all, it's only like seven pages. So it's fantastic. His Jack Smith's response. The brief's principal argument rests on three contentions. One, that a federal agency cannot make a criminal referral to the Department of Justice in the absence of a statute or regulation explicitly authorizing the agency to do so. Two, that the National Archives lacks explicit statutory regulatory authorization. And three, any indictment that derives from a criminal referral lacking such explicit statutory or

regulatory authorization has to be dismissed. All of these contingents are wrong. First, a federal agency is free to report suspected criminal activity to the Department of Justice by way of a criminal referral, and no statute or regulation authorizing such a referral is needed. Indeed, the DOJ routinely receives referrals in various forms for many number of entities and individuals, including members of the public, federal, state, and local agencies, and members of committees of Congress. And that's right out of the justice manual, Andy. There's even a tip line on the FBI website.

This is why people who aren't lawyers shouldn't submit briefs to court. Right? I mean- The FBI accepted Alexander Smirnoff's information. I think that they can probably take a referral from the National Archives. Jack then gives some hypotheticals, which I love. He says, under Stephen Miller's theory, for example, if a person illegally carries a firearm into the National Archives facility or uses illegal drugs there or forcibly threatens a National Archives employee, National Archives is powerless

to report that criminal conduct to the FBI and instead must first engage in a notice and comment rulemaking to promulgate a regulation authorizing it to make such a referral. The court should reject this unsupported and untenable theory. Generally, when your brief leads you, the theory underlying your brief leads you to absolutely insane results. You probably shouldn't be making that argument. I'm just saying, that's just basic kind of legal brief writing 101. Like being able to have a member of SEAL Team 6 assassinate your political enemy? Yes, there's that one as well.

OK, so and I like this one. The special counsel says, second, even if it were true, which it is not, that an agency is powerless to make a criminal referral absent explicit statutory or regulatory authorization, NARA had such authorization here. NARA has an inspector general who's not only authorized but indeed required to report expeditiously to the attorney general whenever the inspector general has reasonable grounds to believe there has been a violation of federal criminal law.

Okay, so wait, so wait, so wait. So Stephen Miller says you need a policy, you need a some sort of a policy written to make a referral. Yeah, you need some sort of legal authorization to make a referral. Well, hey, guess what, Stephen, maybe you should have done a little research before you put that in the brief. I don't know. So first of all, you don't. But second of all, we have one. There's a law that says that the National Archives has to. Okay. I guess sitting through meetings looking insouciant and scribbling on a pad doesn't make you a lawyer. So yeah, there you go. Interesting. All right.

I say that only from meetings I have spent watching it. Okay, third, any purported procedural defect in the referral process could not possibly provide a basis to dismiss the indictment. Courts have routinely rejected efforts to challenge facially valid indictment on the grounds that the evidence supporting the grand jury's decision was inadequate, incompetent, or obtained in a violation of constitutional privilege. So yeah, another thing that you would have uncovered had you actually had a lawyer doing research for you to figure these theories out, but okay.

Hi, Larry. It's one of these days we should submit an amicus curie, just for fun. Apparently anyone can do it. So let's fire one up. I guess so. All right. Let's stay in Florida. Let's talk about the Kaitlin Collins interview of Trump employee number five.

Now a couple of things, John, most of the stuff we knew, right? He was actually, seemed to have a very good memory and grasp on the facts, which gave me a little bit of relief because the problem with going on the national television and doing an interview when you're going to be a witness for the government in a case is that if any of your facts in that interview contradict anything that you said to the grand jury, you can be impeached as a witness. Yeah. Or if they contradict the testimony that you give on the stand in any way,

even just a little slightest little alteration and shading or reference. So he definitely, he didn't help himself by doing these public interviews. So if I'm Trump's lawyer, what I'm going to be trying to do when he's on the stand and I'm cross examining him is I'm going to be trying to get him to say something or anything contradictory to what he said in that CNN interview. Exactly. And it's almost impossible to avoid that as the witness. That's really hard.

So it's the prosecutors I would imagine are not happy with the fact that he decided to go public. It's his decision. He can do whatever he wants to private citizen. Interestingly, he does not seem to be under any kind of a deal, right? So which means he has not been charged. He's not apparently, far as we know, he's not thought to have done anything wrong. All that is to his credit. It makes him a very good witness. You're much more persuasive if you are not testifying because you got some sort of a deal for immunity or something like that. And I believe him. I don't think he knew what was in the boxes or what he was moving. He seems

He comes off really well, I think. He doesn't seem like he has an axe to grind, although he did make a couple of little kind of political-ish statements towards the end where he said he didn't think Trump should be president again. And again, that's not an unreasonable opinion, but it does open him up to claims from the defense that, oh, you're only saying this because you're a political partisan and you don't want Trump to win and that's really your motivation for testifying. So that could be a little problematic, but it's not deadly. He has really distinct value. I mean, everyone was really focused on his recollection of the great exchange of boxes at the airport, which is fascinating, really sheds of, you know, first person testimony on it, on it, on an event that's like, you

know, it's almost cinematic the way he describes it. So it's great testimony. But there were two other things that I thought he was really good for. One, the government could have a little bit of a problem with De La Vera because De La Vera, I think, will come into court and say, hey, you can't convict me for obstruction because I didn't know that any of the stuff I was moving or the videotapes I was asked to delete were actually the subject of a criminal investigation. So to be guilty of obstruction, you have to have knowingly and willfully obstructed an ongoing government process or investigation. If no one told him about the subpoena or the government's interest in that stuff, he might be able to use that

defense successfully. So Butler, because he's very close to Dale Lavera, they go for walks at night together, they've been from, you know, they live in the same neighborhood. Besties. Besties. So it's possible that he made statements to Butler that would undercut that defense. So that's a good possibility. And the second thing I thought was really interesting was this is the guy who likely identified for the government, Anthony Pratt, as a witness. Pratt is the Australian billionaire who Trump allegedly shared top secret information about US and nuclear, US and Russian nuclear submarine capabilities.

And we know that because Butler says he was driving Pratt in the car immediately after meeting with Trump. Pratt gets in the car and tells his assistant, his chief of staff says to him, how did the meeting go? And Pratt immediately launches into this retelling of all this very sensitive information. And Butler is like, oh my God, I can't believe I'm hearing this. So I think, so he's already been a successful witness because he's identified another powerful witness. Yeah, so he could be the way to establish to get Pratt's testimony. They wouldn't, they, and I can't say this, you know, 100%, but my guess is the government would not have even ever known

about or thought about Anthony Pratt as a potential witness against Donald Trump, but for Butler telling them this story. We do know that Pratt has been in and talked to the government. I don't know if we know if he's been to the grand jury or not, but he'll likely be a witness at this trial to testify about how Trump handled information and how irresponsibly he gave information to him, Anthony Pratt, who's not even an American. He's a foreign person. Australia, okay, it's not Russia or China, but... It's foreign.

Yeah. So, I mean, Butler has already paid dividends for the government. Yeah. And Butler's testimony about that conversation wouldn't be admissible on its own because it would be hearsay. However, it could establish the foundation. You know, I know that people have been watching a lot what's going down in Georgia in those televised hearings, and you hear the judge say a lot, you're gonna have to establish foundation to get this in first, you gotta establish it. And so you bring him up on the stand and said,

yeah, I heard Pratt tell him this. And then that allows you to bring Pratt up in and talk to him. So it's like, it's a- I mean, Pratt can certainly relay the conversation. He's not, Trump isn't charged with that. That's not with the basis of one of his charges. So there's all kinds of ways that the government could shoehorn that in as an exception to

hearsay because it's not actually, he hasn't been charged with telling this submarine information. So you wouldn't be offering it to prove the truth of the matter asserted, but there are other ways that you could get it in. Because it shows intent. And when we went over that filing of the waves that Jack Smith says he's going to show intent, I think that that sort of was a clue to stuff like that. Yeah. Yeah. We'll have to see.

But you know, it's Butler, man. He's a pretty good witness. He's good for the government. Yeah. And the government, like you said, probably not real happy that he won on TV, but he says that the reason that he did is because he was gonna be outed anyway because he was fearful that Judge Cannon

was gonna release all of the witness list names, all the names of all the witnesses. So he was like, I'm just- That's a well-founded fear. I'm just getting out ahead of what he's afraid Judge Cannon will do. We still don't have a decision on that motion to reconsider her unsealing the witness lists and we'll let you know when we do. We just have a couple more quick stories and listener questions, but we have to take one

last quick break. Stick around. We'll be right back. Okay, so we have two more quick stories before we get to listener questions. First up is a story from Politico. The Justice Department is projecting that special councils will spend $4 million in the next fiscal year, just a fraction of the $29 million they are expected to rack up in the year ending in September. The new estimates, contained in President Joe Biden's budget sent to Congress, come as special counsels handling criminal cases against former President Donald Trump and Hunter Biden are gearing up for as many as four trials in the coming months. Quote, the $4 million figure is merely a placeholder for purposes of the FY 25 budget, Justice

Department spokesperson, Wynn Hornbuckle said. The department performs further analysis 90 days before the beginning of each fiscal year when a special counsel provides the budget request for the following fiscal year. So it's a placeholder. Yeah, I think they know that's probably a pretty low estimate, but the bill is, you know, no question it'll come in a couple times higher than that. Well, you know what they don't have to pay for? A trial of Joe Biden. So that's good.

By the way, also, Wynn Hornbuckle, great name. For real, right? Damn. All right, this from the New York Times. When Trump got into his armored vehicle after his speech at the ellipse on January 6th, he immediately brought up a topic he often broached after his public appearances, how big was my crowd? But within 30 seconds, his conversation with his lead Secret Service agent took a more

contentious turn, according to a transcript released last Monday about an interview by House investigators of another Secret Service agent who was driving the beast. That's the car, right? Mr. Trump wanted to go to the Capitol, but his lead agent, Robert Engel, said no, telling him there was no plan in place. Quote, the president was insistent on going to the Capitol. That's what the driver said, and we don't know the driver's name. It was clear to me he wanted to go to the Capitol. He was not screaming at Mr. Engel. He was not screaming at me. Certainly his voice was raised, but it did not seem to me that he was irate. He certainly didn't seem as irritated or agitated as he had on the way to the ellipse.

Now, the driver said Trump didn't lunge at the driver either or grab the steering wheel or go for the collarbones. Republicans have jumped on this saying it undercuts Cassidy Hutchinson's testimony. She's a liar. She's a liar. It does not undercut Hutchinson's testimony. She only testified to what Engel told her happened in the car. She was very clear about that. You'll remember. She was like, I saw Engel and somebody else outside of Mark Meadows' office, and this is what Engel told me happened in the car.

Yeah. Engel also told her, and she relayed to the committee, that Trump desperately wanted to go to the Capitol, and this confirms that. So, you know, it is at worst a mixed bag. So it's not the bomb to her testimony that some people are suggesting. And the Times, of course, opened with that. But to me, the more important parts are buried in the story. More important parts of the driver's testimony include that Trump was very angry at Pence saying Trump was upset that Pence was unwilling to not certify the electoral college. He also testified that Trump didn't think an unplanned trip to the Capitol would be dangerous because they were his supporters.

Most importantly, in my opinion, Andy, the Times says, at some point during the trip to the ellipse or on the way back, the driver testified, Mr. Trump and Mr. Engel discussed why people in the crowd were being kept back from the speech site with Mr. Engel telling the president that they had prohibited items of some sort. And later that those people were allowed to go to the ellipse with those prohibited items. So that actually corroborates Cassidy Hutchinson's testimony about Trump shouting about, take down the magnetometers, take down the mags. they're here to see me, they're not here to hurt me. Yeah.

Yeah, I mean, he knew what he was doing. He knew what he was getting into, and he knew more, potentially more tragically, he knew what he was exposing Mike Pence to when he sent that text. That's what freaks me out. He knows that there were people with unauthorized items, AKA weapons, that

went to the Capitol and still would not call them off and then tweeted that thing about Pence. Yeah. Yep. There you go. All right. We have listener questions. Yeah. If you have questions, we've got a link in the show notes for you to submit your questions. What do we have this week, Andy? All right. So I got two here. First one's on the quicker side. This comes from BW. She says, hello, Andrew and Alison. I love your weekly podcast and I'm a devoted fan. You guys are simply the best, intelligent, witty and attractive. What more can I say? BW? Nothing. You covered it

all. Intelligent, witty and attractive. I mean, I feel like, you know, five stars so far on your question. Okay. here's my question. After the Supreme Court hears arguments for Trump's immunity claim and assuming they decide against Trump, is it possible they might lift the stay immediately with the written opinion to follow in due course? If so, this might be one way that the Jan 6 case might get back on track for a summer trial. What is your opinion?

I think that that's possible. I think it's not typical. I don't think the Roberts Court has a real track record of kind of issuing decisions and then coming back with the opinion. They do it pretty much the traditional way. But really, I think the point, the most important point to make here is they can do whatever they want if they wanted to acknowledge the Incredible stress that this case is under on the calendar. They could do something like that But I don't think that we have any reason to believe that they're gonna step away from what is pretty much normal procedure And I'm not giving them any credit for like oh oh, look, they squeezed it into this session. No, sorry.

I'm not giving them any credit for handling this in an expedited manner. So I wouldn't hold out hope for this as a possible result. No, I think that the stay is lifted when their written opinion hits the docket. I agree with you, Andy. Yeah, I think that's the way that one will go. All right, question number two.

This one's got a little bit more reading. And this comes to us from Mel, who starts out by saying, Dr. Gill has put out on the interwebs some really interesting thoughts about whether or not the special counsel's office seeing the decreasing likelihood of a trial before the election should drop the gloves and start indicting all the other co-conspirators. My question is about the Supreme Court as the umbrella issue. The GOP six justices sure look like they may impede any chance of accountability for the former guy. Whether or not Jack does something external that risks angering those six may not matter if they've already chosen

their course. So if there's enough evidence on Ginny Thomas to charge her and get a conviction, why not indict her, among others, not singling her out, and force her husband's hand on the recusal issue. Jack has the advantage of knowing that SCOTUS writ large is about as popular as a Red Sox fan at the Yankee Stadium, so why not go all in and show them up? And then he says, of course, thanks both of you. The podcast is indispensable. We seem to have stopped having to praise your good looks, wit and charm, but I appreciate them just the same. No, no, you don't have to stop. I'm just saying you can keep going. Okay. So there's a lot there.

But I think the thing that really stands out to me from this question is, this just isn't the way prosecutors look at their job. This isn't about Jack Smith like trying to prove a point with the Supreme Court or scoring a victory against what might be a loss or two with the Supreme Court. So I think that Jack Smith, if he has a plan to indict co-conspirators, if there is such a plan, my guess is that the plan all along has been put that off until after the most

important part of this effort, which is having a jury hear these issues before the election. Not getting a conviction or throwing them in jail or saving the Republic from Donald Trump, but rather putting these issues in front of a jury of his peers in time for people to consider the result of that before they have to vote in the election and make an important decision. And everything else is superfluous

and secondary or even after that. Yeah. I still hold my position that if he indicts everybody else, they're all going to file motions to consolidate with Donald Trump's case. Those will have to be heard and then decided on and then appealed and all the way up. And then they can file their motions in limine and their motions for pretrial dismissal and those can be tried to get them in an interlocutory manner and all this other stuff and they have to go all the way up and down. It would take forever. So like you told, I think you called them mop up cases, Andy, when you did that with some of the organized crime cases.

But I still think as long as there is a chance that this trial can go before the election that he won't. Now, maybe he's got a plan. If this trial doesn't go before the election and Trump wins, then maybe he unerses all of his indictments and releases his report before Donald Trump takes office. And, hoo, I shudder to think. But we don't know.

We can only assume the reason he hasn't indicted the unindicted co-conspirators is because he wants this to go fast, because it's built for speed and he doesn't want all of these people glomming onto this case and weighing it down and making it, you know. Yeah. That's the tactical reality. To start throwing people in, it's like just throwing bombs

into your case. Look at how complicated Georgia is with all these defendants. And they at least all came in at the same time. It would be really, really reckless to do that, especially at this point. But if these cases go away, if the Supreme Court kills it or they get delayed to after the election, Trump gets elected, he turns them off, you're going to see a devastating

report. You know, whether or not anyone follows through on that and goes after guys like Rudy Giuliani or Eastman, Clark, or Eastman, or any of those guys, who knows? But that's for the next phase. That's for the next podcast. Yes, for the next one. We'll have to come up with a name for it. Anyway, thank you so much for your questions. Again, there's a link in the show notes if you want to submit a question for me and Andy. And we did it in just a little over an hour this week. I'm very proud of us. We'll see what happens next week as we go through

this week by week following these Jack Smith prosecutions. Again, April 25th, that's still more than a month away, where we even have an argument on the immunity case. And then we're probably, since they scheduled it on the last possible day to get a hearing, that indicates to me that they're going to release their decision at the last possible day to get a hearing, that indicates to me that they're going to release their decision at the last possible minute at the end of the term. The last day of June. And July, early July, late June. Maybe I'm wrong, but I'm real, where I was gung-ho, like they're going to do the right thing and bam, my hopes were dashed. The dream died and now I just don't trust them. I mean, I never trusted them, but I thought this

was for sure an easy call. Anyway, do you have any final thoughts, Andy? I just think yet another interesting week, the legal, the requests for legal commentary keep flowing in and it's good for us to be able to round it up. The end of the week for everybody get them ready for another week of God knows what and the trials of Trump. And speaking of that, we will see you next week on Jack. I've been Alison Gill. And I'm Andy McCabe.