Jack - Episode 72 | Clear as Mud

Episode Date: April 14, 2024

This week; a long list of retired Admirals and Generals filed an amicus brief to the Supreme Court in Trump’s upcoming absolute immunity argument.In Florida, Judge Cannon grants, in part, Smith’s motion to reconsider releasing witness names and statements. Cannon also set an April 12th hearing for Nauta’s and de Oliveira’s Motions to Dismiss. Andy has some fun going over the transcript of Nauta’s FBI interview.Plus, a couple of listener questions, and more!Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCould the Special Counsel Challenge Judge Cannon’s Jury Instructions Before They’re Delivered? | Lawfarehttps://www.lawfaremedia.org/article/could-the-special-counsel-challenge-judge-cannon-s-jury-instructions-before-they-re-delivered Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ 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! Welcome to Jack, the podcast about all things special counsel. It is Sunday, April 14th, 2024. And I'm Andy McCabe. Hey, Andy. It's me, Alison Gill. Every Sunday after the show, I think, eh, I bet this week will be pretty slow. Why do you think that every week? You should know better now.

I should really know better by now because then pacer notifications light up like a Christmas tree. And this week we have Jack Smith's briefing to the Supreme Court on immunity. And in DC, we have an amicus brief filed by a long list of retired four-star generals and admirals in support of Jack Smith's arguments against presidential immunity. And down in flow, Ryda, we have Judge Cannon, who has granted Jack Smith's motion for her to reconsider releasing witnesses' names and statements. But of course, she only grants it in part. Judge Cannon also set April 12 as a non-evidentiary hearing on a motion from Walt Noda and Carlos

de la Vera, Trump's co-defendants, about their motions to dismiss the indictment or in the alternative to require a bill of particulars. Also in Florida, we have Trump's speedy trial report along with a transcript of an interview between FBI agents and Walt Noda. That's a good one. But first, let's go right to another installment of good week, bad week. All right, what do you have this week, Allison? I think this is a particularly bad week for Donald Trump.

And Andy, I want to personally thank you, my friend. Were it not for you and your quick thinking to get a weepy, wispy Rod Rosenstein to appoint a special counsel, the Manhattan District Attorney would not be starting Trump's first criminal trial tomorrow. A lot of people, I'm sure folks who listen to this program know, but a lot of people don't know that this trial, these crimes, these charges originated with the Mueller investigation. It was some of the earlier work done by the Mueller team. And so, thank you for getting a special counsel appointed.

And we know that one of the Appendix D14 cases handed off to other agencies and jurisdictions, one of them was the Cohen case that got handed off to the Southern District of New York where Bill Barr promptly ruined it. And then that made handed off to the Southern District of New York where Bill Barr promptly ruined it. And then that made its way to the New York Attorney General, which made its way to the Manhattan DA. And here we are over seven years later, ready to start our first criminal trial. It's really incredible that we're actually on the eve of something happening after talking about these four cases for so long.

Anything. Yeah. Anything. Yeah. Right? Well, you are absolutely welcome, if that's appropriate, in terms of my extremely minor role. I mean, you had to go and talk to Rod Rosenstein. So, you know, thanks for that. Yeah.

And it was a turbulent couple of weeks that, of course, did not end well. But you know what? I don't regret it. I mean, at this point, yeah, it was a crazy time, but getting that special counsel appointed, getting Mueller appointed, which all credit to Rod on that one, I did not suggest to him who to appoint, but yeah, it certainly started a ball rolling in a particular direction that at various times has been disappointing and not led to the results that a lot of people would have

liked. But nevertheless, I think we're still seeing the echoes of what started with that investigation. Yeah. And then of course, Donald Trump's stock, figuratively and literally, is tanking. He's got his weird bond thing that's really going to be under scrutiny here in a hearing on April 22nd, because the people back into bond don't have the cash and now the contract is weird. Like it's saying that they won't pay this if Trump loses on appeal, which is the whole point of a bond. Also Trump recently has lost 10 motions to delay this trial that's about to start tomorrow.

Three in the past week alone, that's a bad week for Trump. He also didn't get his witness lists released like he wanted to by Judge Cannon. We'll talk about that later. But I think it's kind of a mixed bag for Jack Smith's week because while he got the PRA motion dismissed, and he got, that's the Presidential Records Act motion, while he won partially on this other motion that we're gonna talk about, it's still, there's still a ton of motions

that don't even have hearings set yet. And a lot of, he doesn't get to go, he doesn't have a clear path to the 11th Circuit, with this ruling on witness lists. I think it's kind of a mixed week for him. It typically is. I think if you're Jack Smith, you got to measure the good weeks with millimeters, not so much inches, feet, yards, miles, or anything else else because progress is coming very slow for him. But they haven't had so far, there's some big motions and rulings hanging in the balance

out there, none bigger and more impactful than the Supreme Court immunity hearing, which we'll talk about a little bit later. So there's a potential for big things to happen to him, but so far things have been going in a positive direction, but just very slowly. And I will say, and let me throw in here, good week for the citizens of the United States of America if FISA actually passes in a reauthorized form that enables the FBI to continue using it in some sort of effective way. I see the House did pass their procedural motion to get FISA, to get a vote on FISA on the floor. So we should get more on that by the end of Friday. And then of course it has to go back to the Senate, but super important tool for the national

security team that tries to keep us safe. So fingers crossed. Agreed. All right. So what do you think we should start with? You know, let's go to DC with Jack Smith's brief to the Supreme Court on immunity. And as always, with all the briefs we get from that team, it's extremely well written. So here's just as a

kind of an overview of the government's arguments. They say, first, a former president lacks absolute immunity from federal criminal prosecution for conduct involving his official acts. They go on to say that no presidential power at issue in this case entitles the president to claim immunity from the general federal criminal prohibitions supporting the charges, fraud against the United States, obstruction of an official proceeding, and the denial of the right to vote. The president's constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them. I mean, I think that's pretty logical right there.

It's very sound reasoning. If you are responsible under what they call the take care clause in the Constitution, then it comes along with the obligation to actually obey the law and follow it. They go on to say the closest historical analog is President Nixon's official conduct in Watergate, and his acceptance of a pardon implied his and President Ford's recognition that a former president was subject to prosecution. Since Watergate, the Department of Justice has held the view that a former president may face criminal prosecution and independent and special councils have operated from that same understanding

until petitioners arguments in this case, so had former presidents. Yeah, they're just laying it out here. It's great. Yeah. The impeachment judgment clause does not establish a rule requiring a president's impeachment and conviction before a former president may be prosecuted. That's pretty clear. And then they go on to say Marbury did not hold. I repeat, did not hold. One more time, did not hold that a president's official acts can never be examined in a court. In a host of cases from the founding to the present, refute that claim.

And finally, the absence of any prosecutions of former presidents until this case does not reflect the understanding that presidents are immune from criminal liability. It instead underscores the unprecedented nature of petitioners alleged conduct and none of the dissimilar historical examples on which petitioner relies suggest otherwise. Yeah. Okay. So that's part one of his argument. And the way he breaks this down, I love it. He says part one is these official acts that we're talking about here, official, are not within the outer perimeter of his office and no immunity should attach. Just historically speaking,

this is against the principles, the bedrock principles of why we became a country in the first place, the founders understood this, et cetera. And that's the premise on which both Judge Chutkin and the DC Circuit Court of Appeals relied upon. That's what they ruled, right? Yeah, it's that historical context. It's been really the front line argument at each level of this odyssey. And it's particularly important to put it

in front of this audience, these nine justices, six of whom pride themselves on being originalists, right? Which is a school of constitutional interpretation that basically says you have to put yourself back into the historical time of the thing that you are interpreting, the piece of the Constitution or what have you, and interpret it in the way that the founders intended then with the understanding they had and the facts and context at that time. And so, you know, this historical context argument, I think it's either going to appeal to them if they're inclined to agree with the special counsel, or it's going to really

paint them into a very uncomfortable place if they're inclined to go the other way because they're going to have to explain why they're abandoning that philosophy in this case. Right. And that's one of the main arguments in this brief. They say if Donald Trump were correct, that a former president has permanent immunity from federal criminal prosecution, except after his impeachment and Senate conviction, which has never happened, it would upset the separation of powers and usher in a regime that would have been anathema to the

framers. The framers had experienced firsthand the dangers of a monarch who was above the law, and they adopted a system of checks and balances to avoid those dangers. They designed a constitution that would ensure an effective and energetic president under Article 2, but one who was accountable to justice under laws passed by Congress under Article 1, enforced by the executive branch under Article 2, and adjudicated by the courts under Article 3. That careful design leaves no room for an implicit and previously unrecognized rule categorically immunizing the president from accountability for criminal conduct involving the misuse of his office. So that's big argument number one.

But like all good filings from Jack Smith and from the Department of Justice, there's an even if. I call these the Department of Justice. There's an even if, as I call these the even ifs. Okay? And this argument, the second part of his argument goes particularly toward the idea that the Supreme Court could remand this case back down to the district court having Judge Chutkin decide what official acts are immune and which ones aren't and do these apply and then that could be appealed and go back up to the DC Circuit which could appeal then go back up to the Supreme Court and we would be months and months into this

thing if that were to occur. So the second part of this argument is that even if this court holds that a former president is entitled to some immunity from criminal prosecution for official acts, that principle does not preclude trial on this indictment. First, the specific form of criminal conduct charged here, efforts to subvert an election in violation of the term of office clause in Article 2, that's the Judge Ludig at all amicus brief, to subvert an election in violation of the term of office clause and the constitutional process for electing the president, that does not justify any form of immunity. Second, the private conduct, the private conduct that the indictment alleges is sufficient to support the charges.

Thus, even if liability could not be premised on official acts, the case should be remanded for trial with the district court to make evidentiary and instructional rulings in accordance with this court's decision. The petitioner could seek appellate review of those rulings if necessary, following final judgment. And please put a pin in this, Andy, because I'm going to talk about this in a minute. But this even-if scenario, I want to come back to it later because it's not a new argument, but it is something that it appears the Supreme Court wants to decide and could determine whether this gets remanded back to Chutkin to go ahead with the trial because these charges don't apply here or whether or not these are some sort of official act or to have Judge Chutkin determine if what he did was some sort of an official act which is then appealable. So I want to talk about

that in a minute. But we do have to take a quick break first, but I wanted to ask you what your thoughts were on this two-pronged argument. One, immunity for presidents is a dumb idea and doesn't exist ever, nor should it. But two, if you do think that there should be some immunity for some presidents for doing some stuff, none of that applies here. Because this was something that Donald Trump did as a private citizen, not as the president of the United States. Yeah, I think that that first argument, the historical one is so clear, it's so resoundingly strong, it absolutely should carry the day. I'm not saying it necessarily will, but it should,

as it did in the district court and circuit court levels. That's no question about that. But we know from history that the Supreme Court is sometimes reluctant to issue just an out and out blast sort of ruling, right? To just come out and say, yes, adopting everything one side says and rejecting everything the other side says and throwing the case out or throwing it back, whatever the result requires. Especially in a case like this, this is a fundamental question of constitutional law. It's never been addressed by courts in exactly this way. It's never been presented in this way. And so I think this is the special counsel team acknowledging what a lot of commentators have said

since we found out that court was taking this at all. And that is the court might be, some people say, oh, the court might be looking for an off ramp, a way to avoid making a decision and then throw the case back down for further kind of analysis by the trial court. I don't so much see them looking to shirk their responsibilities and find an off ramp, but I do think that there is a decent likelihood that they're really going to get into the fine points here. They're going to weigh in on this broader issue, which again, might not be implicated here, but on this broader issue of like, is there potentially some ground within the president's authority and the execution of its official duties, should the president have some sort of immunity for official acts? And depending, if they want to get into that,

if they want to acknowledge that some degree of immunity might exist under the right circumstances, then that by definition means the case has to go back for something. So what Jack Smith is trying to do here is create an option that, okay, fine. You find that there's some immunity, that's going to require some sort of a factual finding by the judge here, but it can be done within this litigation. You don't have to derail this entire thing for separate hearings. You can just leave it up to the trial judge to make decisions as she goes about what's admissible and what's not, what the boundaries are, what's an official act and what's not. And then if the defendant challenges that, if he's convicted and then challenges that,

he can do that on appeal later. It's kind of them finding a very practical way to leave themselves an escape hatch. If they don't win an out and out 100% victory, there's still a way that this case goes forward without getting impossibly delayed. Right. Yeah. Or to simply say, sure, there might be immunity, but not here. Yeah, exactly. Exactly. Which was, I think, reason enough to deny the stay in the first place and not grant cert in this case. But because that wasn't what the Circuit Court ruled, and that wasn't what Judge Chutkan

ruled, they ruled on the big picture of historical immunity as a dumb idea. None of them, I couldn't find in any case, and we'll talk about this after the break, or either of them said, none of these are official acts. And so maybe that's what the Supreme Court wants to step in and rule on here. I think that that's kind of shown in the way that they frame the question. Remember when the question came out? We said, that wasn't the question. That's not the question, but when you look at it- They tee this up in that question. There's no question about that. They really do. They really do. I want to talk a little bit more about that, but we

need to take that quick break. Everybody stick around. We'll be right back. Okay. Welcome back. Andy, I picked up on a pattern after the brief and response to the DC Circuit Court from Jack Smith on the immunity stuff. I picked up a common theme that seems to underpin all of his briefs, his briefs to Judge Chuckin and the DC Circuit and now the Supreme Court.

You know how, remember in Jack Smith's argument against immunity in Florida, we're talking about the documents case with Judge Cannon in Florida. He said none of these things Trump is charged with took place when he was president. All of this is willful retention after the fact and obstruction after the fact. So there can't be any immunity. Well, he's consistently but sort of quietly made the same kind of argument in the DC immunity case. And that argument is that nothing Trump is charged with is based on anything he did as president. The charges are based on things he did as a candidate for office. Even though he was president at the time, the actions he took, he took as a private citizen running for office.

So I went back to all of Jack Smith's immunity briefings in DC and I searched for the word candidate. It appears dozens of times across his briefings. Here's just some examples. This is in Smith's brief to Judge Chutkin, the original, in the district court on immunity. He wrote, instead, the allegations focus principally on the defendant's actions as a candidate for elective office. And he also said, furthermore, the indictment alleges that the defendant acted deceitfully or corruptly to secure a personal benefit to himself as a presidential candidate, not to carry out constitutional obligations entrusted to the presidency.

He also argued in that brief, quote, that is particularly true with respect to allegations that the defendant conspired with and directed individuals outside the government to facilitate his effort to turn the election in his favor as a candidate. And he also said, quote, the defendant fails to explain how communications related to the preparation and submission of slates of electors on behalf of a candidate for office fall within the outer perimeter of presidential duties. That's all in the Chetkin brief. Now, down in the DC Circuit Court of Appeals, Jack Smith says, the indictment alleges conspiracies

to advance the defendant's prospects as a candidate for elective office in concert with private persons as well as government officials. And he also said the president's conduct falls beyond the outer perimeter of his official duties if it can only be understood as having been undertaken in his capacity as a candidate for reelection. And he also said the defendants further claimed to have been carrying out his official duties entirely ignores that as a candidate for reelection, he's alleged to have conspired to overturn the legitimate results of a presidential election. And that's kind of what we see now in this part two of his arguments in Jack Smith's

brief to the Supreme Court. He says, the conspiracy centrally embraced private actors agreeing with Trump to achieve his private end through private means. In particular, Trump is alleged to have conspired with four private attorneys and a private political consultant in his effort as a candidate to subvert the election results. Petitioner confirmed that he acted in a private capacity by seeking First Amendment protection for his false speech and moving to dismiss the entire indictment on that basis.

So, you know, he's saying he's a candidate for office. And quote, even if the court were inclined to recognize some immunity for a former president's official acts, it should be, it should remand for trial because the indictment alleges substantial private conduct in service of Trump's private aim. The district court can make evidentiary rulings, like you said, Andy, and can craft appropriate jury instructions for trial clarifying that the petitioner may be held criminally liable based only on the private conduct alleged in the indictment, on the private conduct alleged in the indictment, even though the jury could consider official acts as evidence for limited and specified purposes. So this is brilliant. He's sort of done this in two ways, right? He's teed up this indictment. He wrote this indictment

to say that your official acts are crimes and you should go to jail for them. But also, if you want to pull out the official acts as though Jack Smith saw this train coming, the immunity train coming, all of this indictment stuff is still true as a candidate for office. We can disregard his official acts. We don't even have to go there. You know? And so it's written in both, for both, just like Jack Smith wrote it for both interpretations of 1512C2. As we know, oral arguments are coming up for USV Fisher, which could gut 1512C2, because one judge out of, I think, 13 or 14 said it has to be based on a document. You have to do something to obstruct a document. And Jack Smith wrote this and charged these crimes specifically to withstand

a gutting of 1512 C2. Yeah, it's kind of fascinating because Trump's response to this, his reply, his kind of defense to this, this argument will be, well, my actions were official because I was acting in my official capacity to protect democracy and make sure that the elections are fair and there was no fraud in the election. That's going to be his response to Smith's claim that no, you were acting as a candidate to try to overturn the results in your own direction. The interesting thing is here, he didn't argue that in his motion. Trump didn't basically begin with his strongest and most forceful argument saying I at all times acted in my official capacity as president and then laying out

extensive proof as to why. First of all, he doesn't have that. And this gets him into a very uncomfortable place. Instead, he kind of did the Jack Smith thing. He argued the maximalist argument. A president must have criminal immunity because if he doesn't, then he's going to be afraid to make decisions and you'll be harassed and it'll all turn political, yada, yada, yada. So he has kind of avoided getting too deep in the weeds on this question of proving whether or not the actions that he took were official or private, personal. So if the case

gets sent back for that sort of determination, I think he's already thinking that that's not a great, that's not ground he wants to have to fight on. Right? Well, no, because he's fought the opposite. Right. He has tried to dismiss on first amendment claims saying that a candidate for office, a private candidate for office should be able to say whatever they want. Basically, I should be able to lie to the public as a candidate for office is his argument. I should be able to spread the big lie. And you'll remember Texas v Pennsylvania, which was that lawsuit filed by I think like 17 different Republican attorneys general.

Yeah, attorneys general, yep. Against Pennsylvania. And Trump filed a motion to intervene. Like I'm an interested party here. Here are my thoughts, right? It's kind of like an amicus brief, but you're an interested party. You're actually in. Yeah. And this motion to intervene was, by the way, signed off by John Eastman, who's about to be disbarred. And it said, I have the right to file here because I am a candidate for office. He wouldn't be able to file an intervention if he were acting as president.

He did this in Fulton County too, argued that he was a candidate for office, he's arguing it all over the place, which are really great rebuttals to any of that kind of defense, which is why I think he has to go, he has to go full bore on the immunity and presidents will be scared. Yeah, yeah, because he can't, he can't produce the receipts that would be required to prove that the things he did were actually part of his official responsibilities as president. And as we said a few minutes ago, if the court is inclined to acknowledge some sort of, the possibility that there could be some sort of presidential immunity from criminal conduct in a very limited scope

of official acts, because Trump didn't actually present any evidence upon which they could make that decision about what he did, they almost have to send it back for determination by the lower court. If that's their inclination, that's going to mean this thing goes back for something, because the court is going to, if that's their inclination, that's going to mean this thing goes back for something. Because the court's going to say, well, now we need the trial judge to, here's the standard, here's the rule, now you go apply it to the facts. So that's why Jack Smith

is building this kind of, I don't want to call it an off ramp, it's like an argument in the alternative. If that's what's going to happen, that's fine. Send it back for trial and the judge can do all that in the course of the trial because most of what's alleged here are things that happened in his private capacity. Yeah. And that's the hope, right? That they don't remand and say, you figure it out and come up with an idea that they actually rule. There may be immunity. We'll figure it out and come up with an idea that they actually rule. There may be immunity. We'll figure that out in the future as it arises for other presidents.

But today, you were acting in a private capacity. They could decide that or they could, like you said, throw it back. I think they'll throw it back. I think there's just not a deep enough factual record in front of them here. But they could remand to trial and say, go forward with trial and we can discuss this at, we can fight, you can fight that fight after. Sort it out later. Yeah. Right.

I agree. Which would be good. Cause the trial, you know, the idea is to get the trial going again. Lift the stay. Yeah. I'm going to put that on a t-shirt. Lift the stay. That's a good one. Let's do that. Let's make those shirts. Now here's the question considered by SCOTUS and I think this is why. First of all, Jack Smith's been making this argument since the jump, since way back in the Chutkin times, right? And then also to the DC Circuit and now here again. But this is how SCOTUS teed up the question, whether and if so, to what extent does a former president enjoy presidential immunity from criminal

prosecution for conduct alleged to involve official acts during his tenure in office. And this sets this up, like you said, Andy, for the Supreme Court to say, well, you know, if these are actions that took place as a private citizen, as a candidate for office, you decide that, Judge Chutkin, as you go through, as evidence comes up. And, you know, if there are official acts here, they can be, you know, after the trial is over, then you can feel

free to bring those up again, Mr. Trump. Yeah, you can imagine them coming up with some sort of a direction like, okay, we determine that, like, here, we determine that, like for here, you're talking about the same acts, it's just one side says they're private and the other side says they're part of official duties. You could see them coming up with a rule like, I'm just making this up. Official duties within the scope of your duties as president are things that only the president can do, right? So if you're doing something that's kind of dual capacity,

it's to your benefit as a private candidate, but it's also in response to a question or a concern that you have about the safety or security of the election, doesn't count. Right, because that's been argued to be beyond the scope of the duty of presidents to oversee elections. What you would want to do is create a super narrow piece of space that would grant immunity

from criminal acts for things like, you know, sending troops to war. Ordering a drone strike. Right, that's something only a president can do. Something that's squarely within the realm of the president's commander, chief authority, but not in any other, you know, doesn't bleed into any other category. I mean, I don't know, I'm just kind of making this up at the top of my head, but I could see them coming up with something like that. And you're right to point out their use of the word alleged in the question, because you can also see them kind of saying, we don't know. He alleged that they're official acts, but there is not

enough information in front of us to determine that. They're saying it's still a question. Yeah. It's still a question whether these were official acts or within the outer perimeter, right? And so I think that that word alleged is doing a lot of heavy lifting here. Something else I noticed too, which was kind of a cool novel argument before we go on to the next thing. You know how they say, you know, cause Trump's like, well, all presidents will not be able to do their job

because they'll always be looking over their shoulder and be afraid of being died. This one drives me crazy, but yeah, go ahead. You know, there's all these like, look, it can't, it's not possible. You've never, no other presidents had immunity and they haven't had this problem before. And they give the example of Ford pardoning Nixon. Like we talked about at the top of the show saying Ford pardoning Nixon implies that you

can prosecute a president. Otherwise you don't need to pardon a president. Correct. There was another argument here I thought was really great, and I hadn't thought of this. You remember that old office of legal counsel memo that says you can't indict a sitting president? Who could forget that? That implies that you can indict a former president.

I mean, it's just its mere existence, right? So I thought that that was a pretty cool novel argument. I hadn't seen that one yet. Doesn't mean it didn't happen. Doesn't mean the argument didn't happen before. I just don't recall it being brought up before, but I thought that was a pretty good one. I think that both that what I'm referring to as Trump's maximalist argument, that you can't possibly be subject to criminal liability because you couldn't function as president,

da da da da. When you tie that to his argument that, oh, everybody knows you have immunity because no one's been prosecuted yet, it exposes the point that Jack Smith has made in other filings, and I don't remember it being really emphasized here, is that, yeah, it hasn't happened before because presidents know that if they stray outside the boundaries of criminal law, they could be held criminally responsible.

Presidents don't just decide whatever they want. They do it with a knowledge of the scope of their authority and what's lawful and what's not lawful. That's why they have teams of lawyers and advisors to keep them within that bounds. Aren't we lucky? Aren't we lucky that this hasn't happened before? Knowing that presidents are subject to criminal laws just like the rest of us, that's our guarantee that they won't do crazy, unlawful

criminal things. And it's worked so far. Monarchical things, right? Until now, of course. Yeah. And also, just the whole, the reason that we haven't had an indicted president before is because nobody's done the stuff that you did. Right. Yeah. I mean, unprecedented and hugely illegal and outside of the bounds of your official duty. I mean, it's there's 900 reasons and Jack Smith argues them all, I think perfectly here in a way he split it up by saying here's the here's the main argument. There's no immunity for presidents. Here's a secondary argument, even if you do find some immunity in some circumstances, there's none here. There's a way, right.

There's a path to acknowledge that and deal with it in the course of the trial. Yeah, excellent. So in addition to the brief from Jack Smith, we also had a group of retired four-star admirals and generals filed an amicus brief with the Supreme Court in support of the government. And they say, petitioner's theory of presidential immunity from criminal prosecution is an assault on these fundamental commitments. The notion of such immunity, both as a general matter and also specifically in the context

of the potential negation of election results, threatens to jeopardize our nation's security and international leadership, particularly in times like the present when anti-democratic authoritarian regimes are on the rise worldwide, and such a threat is intolerable and dangerous. Petitioner's theory that the president is absolutely immune from criminal prosecution,

if accepted, has the potential to severely undermine the commander-in-chief's legal and moral authority to lead the military forces, as it would signal that they, but not he, must obey the rule of law. Under this theory, the president could, with impunity, direct his national security appointees to in turn direct members of the military to execute plainly unlawful orders, placing those in the chain of command in an untenable position and irreparably harming the trust fundamental to civil military relations.

Petitioner's position implicates the peaceful transfer of power, a hallmark feature of American democracy, by permitting the President to take actions that would harm our national security and undermine our role as the international standard bearer of democracy. Presidential transitions are times of significant national security risk. Leaders in the outgoing administration must prepare their successors to take the reins. And any complications in this handoff can diminish the successor's preparedness to handle national

security threats." Kind of an interesting set of arguments and definitely an effort to like elevate the conversation to get the judges to think or more specifically their law clerks, to think about the broad impact that a decision like this might have on the administration and execution of military authority, on our perception around the world, things like that. Yeah. And we saw a lot of this. We saw a lot of him toeing the line on this. He wanted the Department of Defense to seize voting machines. He wanted to send out the troops to the Black Lives Matter protests and illegally shoot people in the legs.

Or when he won a lot of kind of unlawful orders that didn't quite make it because obviously the chiefs, joint chiefs, were like,s, joint chiefs were like, no, bro. And in fact, I think Milley put out a statement like, leave us out of it. The Pentagon doesn't have anything to do with elections. So there was all kinds of pressure on the Department of Defense to do this. And I think that it's great that this long list of retired admirals and generals have written this amicus. Internally, they had conversations around like, all right, if you get the call, don't

do anything until you call me first. If you get the order, stop, let's confer. Let's get on a WhatsApp chat and figure this out before anybody does anything crazy, which in and of itself is nuts. You know, to think that they were kind of building in this pause between them and the order from the commander in chief is just insane. But yeah, Milley had to call China and be like, don't worry guys, stand by. Like it's, and then of course, the president is like, that's treason. And no. Yeah, not really.

What you're doing. So, you know, it was just, I thought this was a really great amicus brief. You can read it. You can find it online pretty easily just by Googling for that amicus brief from the retired admirals and generals. They're all four star too. So it's a big deal. Yeah, for sure. from the retired admirals and generals. They're all four star too. So it's a big deal that they got this. There's a bunch of amicus briefs. They are continuing to repeat the same amicus briefs that we saw filed in the DC Circuit Court of Appeals and in the district court. But this one was kind of new and kind of important. So I thought it was good to bring it up. Thanks. All right. We have more to get to. We still have to head to Florida, y'all. We just- Here we go. As the kids say, let's go. Yes. Let's go to Florida. And we'll do that right after this break. Stick around. We'll

be right back. Welcome back. All right. Let's go to Florida. The big news in Florida last week. Show me what you're working with. Of course, the big news in Florida last week was that Judge Cannon denied Trump's motion to dismiss based on the Presidential Records Act after Jack Smith responded with his thoughts on her order to compose jury instructions based on a misunderstanding of the law. Okay, that was last week. This week, the big news in Florida is that Judge Cannon has granted, in part, Jack Smith's motion for her to reconsider releasing the witness lists and statements. So you'll recall that Trump attached the witnesses' names

and statements to a motion to compel discovery, and then he asked for those lists to be unsealed. Cannon ruled to unseal them, and Jack Smith immediately filed a motion for her to reconsider that ruling, because he had met his burden of good cause, which is what's necessary to keep those items sealed. And then of course, he called her order a clear error, which was a little

aggressive, a little act of frustration or just a shot across the bow, but either way had its intended purpose, I guess. So Jack Smith warned her that if she unsealed the witness list and the witness statements, he would appeal that decision to the 11th Circuit. Well, she ruled this week that she would not unseal the witness list and that Jack Smith did meet the good cause standard to keep them sealed. But she also ruled that the witness statements should be unsealed and that Trump's legal team and the special counsel's office should get together and decide on appropriate redactions of those statements so they

don't reveal the identity of the witnesses based on clues in the statements. And AG, I gotta say the idea that those two sides will come up with some sort of agreement on how these things should be redacted. It's about, it's, it's less than the likelihood of me winning the power ball tomorrow. And I don't even have a ticket. So that'll tell you how low likelihood that is. No. And again, months ago, she should have just granted the ceiling motion from Jack Smith on all of this. And then in this case, she could have just granted the ceiling motion, but no.

Now she's sending it back to the parties who get along famously. Oh yeah. And totally agree on all sorts of stuff and said go ahead and you guys figure out what to redact in the second half of this. But the witness list can be filed under seal. Yeah, it's basically a roadmap to further delay.

It is. That's what this is. Yeah, it's like, okay, now you'll have to have a meeting. So they'll fight over that. Maybe they'll actually have to go back before the judge and file motions complaining about each other just on scheduling. They will, no one will agree on anything, which means they'll then have to submit, submit You know filings to the court on what they propose versus what the other guy proposed and then she'll of course schedule a hearing on that You should wait a month and then schedule a year Maybe invite more filings after the hearing and then it'll just sit on the back burner for a long long time forever Yeah, and so and and she avoided the 11th circuit again long, long time. Forever. Yeah. So it's awesome. Yeah.

And so, and, and she avoided the 11th circuit again. Yeah. Yeah. She slipped. Which is her goal. Yeah. Her goal is to avoid the second, the 11th circuit and delay as long as possible. And in what has become typical Judge Cannon style, she blasted Jack Smith while simultaneously

ruling in his favor. This is what she does. She's like, this sucks, this is dumb, this is wrong, I hate you, but okay, I'm going to grant you motion. Okay, you're right. Yeah. The court grants the special counsel's motion in part, reasoning as follows. As a preliminary point, the arguments and evidence advanced in special counsel's motion could have and should have been raised in prior filings. Denial of this motion would have been appropriate on that basis alone. But I didn't.

The special counsel's initial seal request failed to offer a governing legal framework or any factual support for relief saw. She's basically saying, you didn't explain this to me like I'm five in your initial ruling. You went ahead and assumed that I knew shit and that's unacceptable. The special counsel's initial SEAL request failed to offer a governing legal framework or any factual support. Instead, it contained only conclusory and unsubstantiated assertions, which she agrees with, by the way, about witness safety, the integrity of the proceedings, and privacy interests later. In response to the Press Coalition's motion, the special counsel failed to engage with, let alone refute, the Press Coalition's argument that the First Amendment attached to the subject materials. These are things that should be

able to be assumed. Do you know what I mean? Yeah. Like, you just came to the conclusion that witnesses should be safe without any explanation or that the integrity of the proceeding should be protected. You just concluded. You don't have to prove a criminal case of threatening a witness. All he has to establish is good cause. It's a pretty low threshold.

Yeah. And do you need me to explain to you why it's a good idea to keep witnesses' names? Why a witness who's not known by anyone is safe and one whose name is known by the general public as an enemy of the former president might not be safe. Yeah. So she says, only now after failing to meaningfully raise arguments or present evidence that could have been raised in these responses, the special counsel moves for reconsideration and argues in no uncertain terms that the court committed

a clear error by applying an unobjected to legal standard. And this is to say nothing of the special counsel's failure to comply with this district's local rules on sealing, which the court has emphasized repeatedly throughout this proceeding. Okay. So she's like, first of all, before I rule in your favor, let me tell you why and how you should have argued. And he did argue these things earlier. He talked about why witness lists need to be protected. He even asked for leave to file evidence of actual real-time witness intimidation that's occurring right now that's under criminal investigation. Apparently, I don't know, maybe she missed it. Nevertheless, she says, and

she always does, nonetheless, despite all that, the court exercises its discretion. I am the decider to reconsider its ruling in light of the special counsel's newly raised arguments and to apply rule 16's good cause standards to the defendant's motion to compel. So even that is just full of snark. It's like- Yeah. It's very pokey. The whole thing is pokey. Right from the beginning, you start reading, you're like, oh, oh, wait a second Like remember in in forgetting Sarah Marshall where she's like, will you sit down Peter? Will you sit down? And he's like, okay, but I'm gonna sit down because I'm choosing to sit down not because you've asked me to sit down

And she's like, okay, like that's what this is like I'm gonna go ahead and rule in your favor because I have the discretion. I have the power. Right. It's not because anything you said. It's because I just, I decided this on my own. I pulled it off the secret docket.

I figured out which one we were talking about. And then I've discarded everything you said because you're mean. And I came up with this reasoning by myself. Yeah. And then she goes on to just... And Jack's just going to be like, okay, fine, whatever. Yeah, like whatever. And she goes on to then muddy the water, basically. She says, none of this is to say that the issue presented on reconsideration is clear cut or straightforward. Yes it is.

Maybe not to her though. I guess not. And then she says, notwithstanding the still developing and somewhat muddled questions raised in this criminal case, the court determines for the reasons previously stated that no right of access attaches to the disputed discovery material referenced and or attached in the defendant's motion to compel. That last part had been hard to write. Yeah. Even though things are super confusing. Yeah.

That's the sentence. That's the money sentence right here, right? There's no right of access to disputed discovery material referenced or attached in the defendants in Trump's motion to compel. You don't have a right to that. The public doesn't have a right to that. She had to say all that stuff first. It's so defensive. The whole

thing is like, it's, it's really kind of reeks of like anger and self justification and defensiveness. And it's like, you're a federal judge. Your arguments, your arguments didn't persuade me because you didn't make them until just a second ago. And I've decided based on what I know, because I'm the smart person, that I'm going to do this. She would be, this is like that old adage from like Ben Franklin's time, empty barrels make the most noise. It's like she would be so much better off if she just issued like one line orders. You know, the court determines for reasons that no right of access attaches

to the disputed discovery materials referenced and or attached in the defendant's motion to compel motion denied. That's it. And leave it all, leave her reasoning as a mystery because when she exposes like how she actually feels about this or how she got to this point, it's just, it's not, it's not a confidence inspiring. And it's also wrong because he did make these arguments.

Yeah. Very clearly. And even filed for leave to present evidence. Yeah. Yeah. So here's what she has to say about the witness statements that she has now refused to keep under seal. The court reaches a different conclusion as to the special counsel's broad-based request

to seal the substance of all substantive Jenks statements referenced in and or attached to the motion to compel, arguing for wholesale sealing of potential witnesses' statements to avoid influencing the testimony of other witnesses or the jury pool." Now I have no air left because that sentence is so long, it's almost incomprehensible. But she's basically saying, okay, now here's the next ruling. It's a different conclusion with respect to keeping the witness statements under seal. This is not just the names of the witnesses, but the things that they said that under Jenks

are required to be turned over in discovery. Yeah. And again, the argument here is that Jack Smith says he showed good cause to keep these under seal. Because if you release everybody's witness statements, then all of the witnesses can kind of use them to create their defense. It's not good for maintaining your witnesses that the integrity of their recollections and therefore the evidence that they'll present in trial. But also, if you release all their statements, especially when you have multiple statements, it's pretty easy to start comparing

them with each other and then figuring out who they are. So if you seal the names, but you let the statements go out, you're creating basically the same risk. So she says, by granting the sweeping and undifferentiated request, which the special counsel also raises and seal requests associated with the defendant's substantive pretrial motions, I don't know why she referenced that here,

the court would be authorizing the categorical sealing of large portions of the record attached in support of critical pretrial defense motions. For the reasons below, the court does not find the special counsel's generalized witness and jury pool influence concerns sufficient to establish good cause to categorically seal the remaining portions of the substantive

witness statements in the manner requested." Okay, so she then orders, honor before April 15, the special counsel shall file under seal an index identifying each potential government witness. Honor before April 16, the parties shall meaningfully confer regarding the redaction of Jenks material that could identify potential witnesses, erring on the side of redaction. That's an interesting one. Should the parties be unable to reach an agreement on any particular content? That sentence should probably read, when the parties are unable to reach an agreement on

any particular content. They shall jointly submit a sealed notice to the court on or before April 19, identifying the areas of dispute with particularity. On or before April 22, the party shall file public versions of the motion to compel, response, and reply as separate entities on the docket consistent with disorder and the aforementioned index of anonymous witness names." So there you have it. It's clear as mud. Yeah, right? Clear as mud. So she granted in part, denied in part, and said, well, she granted in part, and then said, for for the witness statements you haven't shown good cause Jacksmith correct and you need to get with Donald Trump and y'all figure out what to redact

from these statements And again, this is public the filing like because Trump would has these we'll get these right? Oh, yeah Yeah, absolutely. He gets everything in unredacted form. He knows who these witnesses are. He knows what they're saying. It's simply about the public release. Yeah, and that's kind of why, like there's a couple things Jack Smith could do here.

He could be like, all right, he could agree to it and just meet and confer and move forward. Or he could somehow object to, I mean, his motion for reconsideration was very clear. You have to do all this stuff where I'm going to the 11th circuit. She's not doing half of it. But maybe he thinks that her remedy to meet and confer and redact and get those redactions approved and to err on the side of redaction might be enough to keep him from going to the 11th circuit. So he has an avenue to go, but it's not an avenue I think he would go down.

It's not a clear one because there's a process that he's got to exhaust before he would get to that point. He's got to have a meeting, they got to confer, they got to go back and forth. If they haven't agreed, then they submit these detailed particular statements to her. She sits on it for a month. Unless he decides that they should know, they need to be wholesale sealed. Redactions are not appropriate. If his redactions are massive, the other side, of course, is not going to agree.

Then you're headed for another showdown. Honestly, I think the best thing he could do here is go with as limited redactions as humanly possible and get this thing over with. Put it behind you. But the problem is, this is just one part of one motion. Exactly. And there are many that are on a secret docket. And there was a hearing today on Friday as we record this about Nauda and Dale Rivera's motion to dismiss or for a bill of particulars that we don't have a readout from that hearing yet.

I keep refreshing, but I don't see any news as far as what went on in that hearing yet. I'm sure we'll get more information from our trusted news sources as they come out of that hearing or emerge from that hearing and start doing the write ups. But basically they're arguing for motion to dismiss. And there are still multiple things that Judge Cannon hasn't even set a hearing for, right? And we'll get to that in a minute. Yeah, there's motions to dismiss hanging out there that are still haven't been litigated yet. Beyond NADA and De La Veres, there was something like 12 or 13 of these pretrial motions initially. And I'm not sure even if that number included NADA and De La Veres,

but we've only gotten a couple two so far the Unconstitutional vagueness the presidential records act all the stuff we've been talking about here is not one of those So it's just piling up and going nowhere Yeah, all right. We have two more quick pieces of news out of Florida But we're gonna take a quick break and then we'll also do some listener questions. Everybody stick around, we'll be right back. ["The New York Times"] All right, welcome back. Those two other quick pieces of news out of Florida. Remember when Judge Cannon asked Trump

to file a speedy trial report, Andy, and we were like, what, huh? What, what, what? It's usually not done, right? Usually the government files the speedy trial report, Andy, and we were like, what? Huh? What, what, what? Ooh. It's usually not done, right? Usually the government files the speedy trial report. Yeah, that's a government responsibility. And it's usually not controversial. It's very like, you know, it's like accounting. You got to count your days by following particular rules and you submit it and that's it. You move on. Yeah. And up to this point, the government has filed 13 speedy trial reports in this case.

And after a meet and confer with the other side, with Trump's side, there was no objections by Trump, Nauta, or Dale Lavera to anything that they had to say in their pretrial speedy trial reports. But Trump's speedy trial report, and the ones from the government are like a page long. Right. Here, this day, this day, blah, blah, blah, 70 days left on the clock. And 70 days is the clock. Nothing has told.

And so Trump's speedy trial report was six pages long, and it included all kinds of political grievance. He complains again and incorrectly about the amount of discovery. It's overwhelming and how it's burdensome to him, how the Department of Justice has been slow to hand it over, which is not true, how Cannon has to rule on all of the pre-trial motions that are outstanding,

especially his overbroad motions to compel more discovery that probably doesn't exist from every federal agency ever in the history of the United States, right? And then there'll be even more discovery. And remember when Trump and NADA couldn't figure out how to watch their own video of the CCTV footage and how Jack Smith was like, it's your company's CCTV footage.

It's from the Trump organization. We can't figure it out and he's trying to watch it on a tablet. So they drive a laptop over to him and set him up and do a bunch of IT support. Well, Trump is telling the court they still cannot figure out how to watch the video. So that still hasn't been done. But what I found most interesting, Andy, was Trump's framing.

He's like, the video doesn't fit in my VHS. There's no CD-ROM drive on this computer. I found this the most interesting. Trump's framing of the 70 days that remain on the speedy trial clock, the speedy trial clock. He says, quote, 70 days must remain before trial begins. And he says that instead of the trial must begin within 70 days, right? That's, it's, he's looking at it as a minimum, not a maximum. And that's not how an innocent man anxious to clear his name talks as we've said a million times. And that's not how an innocent man anxious to clear his name talks as we've said a million times. And he also repeats the phrase, the ends of justice continue to outweigh the best interest of the public and the defendant in a speedy trial.

Yeah. Because you know how Jack Smith keeps arguing that the public has a right to have this matter decided. The public has a right to have this matter decided. The public has an interest in a speedy trial. Yeah. Yeah. Well, he's no, my justice, I outweigh the best interest of the public is what Trump keeps repeating in that speedy trial report. And the other news, by the way, is Walt Nott as lawyers have released a transcript of his

interview with the FBI after Judge Cannon said it could be unsealed. I was hoping you could give us your FBI perspective on how that interview went and your thoughts on, you know, well, we know why it's coming out, but just I was reading it. I found it very interesting the way that the FBI seemed very friendly, but then was very stern. And then there were some tense moments. I just thought it was a kind of a cool lesson in how the FBI interrogates people. It's totally cool. And I loved it. I had so much fun reading this thing because it's been, I've been in a lot of these rooms over the years, but I haven't been in one in many years.

And so it was really taking me back. So it's, it's two FBI agents and Walt Nauta and his attorney. And I don't know what he's paying that guy, but it's probably too much because he does not really weigh in very much until the very end of this 120 page, something like that, transcript. So it is fascinating. It's like classic 101 on one FBI agent interviewing technique. They come into the room and they sit him down and immediately they launch into the

classic like smoking and joking, Hey, we're all just friends here. You know, like basic rapport building techniques. They're, they're like, they make some crack about the suit that he's wearing. Cause apparently he had been in front of them some other time. Right. How it looks like from something from I met your, how I met your mother. Yeah. They're like, is that the same suit you wore the last time? Which I thought was a really odd joke, but anyway. So then, um, he's very kind of clipped in his responses, I think, initially and throughout the whole thing. And then one of the two agents is a former Navy guy. And so they, in their first, you know, they, you always start out by saying like laying out the ground rules, hey, you're

here voluntarily, you can get up and leave anytime you want. If you don't understand anything I ask, you just ask me, I can repeat it, you know, or you can just refuse to answer a question. You don't have to answer anything you don't want. And your lawyer's here. He can help you out. If you want us to leave, you know, you just try to like lower the tension in the room. So they do all that stuff. And then they, they start out with the basics, like, you know, what kind of work do you do? What was, and they get around to what was your job in the White House? And he starts explaining his Navy background and the Navy guy dives right in. You know, they plan this ahead of time.

Oh yeah, they're, they're 100%. None of this is like spontaneous, but you're trying to make it look spontaneous. 100%. There's a Navy guy in the room, of course. Yeah. And he hits them with the, I forget, you probably remember the, you're a senior, I'm trying to remember the order of promotion for a guy in his role. He's like, Oh, senior chief. Like, yeah, not just a chief, you were a senior chief, senior chief. And he's, and

he's like, well, yeah, he's like, I mean, that's, you know, a lot of people don't understand the significance of that. And immediately, and, and not a bites the hook, like immediately he's like, yeah, were you yeah, were you in the Navy? And now the agent's like, well, yeah, I was. Doesn't say where, you know, of course, and Nauta's like, well, where were you? And then, so now they're trading, you know, assignments and all this stuff. And Nauta's like, wow, most people don't understand the significance of being a senior as opposed to just the chief. It totally goes down this like, yo bro, you know, we're friends. Yeah, dude, you know, it's a whole bromance developing there.

You're important. You're really important. They're totally kind of trying to open up. I felt that it must be weird to wait on somebody hand and foot as a senior chief. You know, I felt that sort of like, come with me along this road of how you were exploited. At one point they started asking him about his accommodations at Bedminster and he says they're nice and the guy's like, well, there's like five star, like, we're not familiar with that where we come from, right? We're used to kind of roughing it out there. We're the same. We're like-minded, we're just alike, we're both government workers, soldiers, sailors, whatever.

And so there's a lot of that in here, which is kind of funny to read. I'm looking up the notes that I took. They get right to the January 17th, 2022 moment when the truck arrives at Mar-a-Lago to retrieve those infamous 15 boxes that they sent back. And Nauta admits that he took the boxes from the pine room in Mar-a-Lago and delivered them to the truck. The truck was so big, they couldn't get it into the Mar-a-Lago grounds. So they had to meet him in this parking lot outside the fence or something.

So there's a lot about that. And knowing he's going to admit that, he's probably admitted it before, they use that as a way to expand like, well, did you know where those documents came from? And this is going into the biggest area of questioning in this thing. It's where are documents kept at Mar-a-Lago and under what circumstances are they kept? What rooms, what storage rooms are they locked? That's really what they want to know. And so they get like, I'm looking at page 23, at some point, they notice as I don't know where he, meaning Trump, kept those boxes. Now, like that is such a broad denial. Like he's

hosed right there. Because there's text messages between him and other people at Mar-a-Lago talking about moving the boxes out of storage into maybe the pine room, maybe the residence, whatever, where Trump wanted them. They got them on camera. There's pictures. He took pictures of the boxes in the storage room and texted them to people. As soon as he says that, I'm like, oh, now they have leverage over him. It kind of goes in that direction for the next several pages. Is there any other place where the president could have kept boxes and notices? Not to my knowledge. Clearly, he has knowledge of this. In fact, at the end of the interview, he starts talking about the boxes that were stored near the

laundry room, which I think is the storage room where we've seen all those pictures of the boxes stacked up against that right wall. He's asked a lot of questions about staff and identifying other staff and would this person know where boxes were or that person. And you get tons of no's, I don't know, I don't know, I don't know. But it's not until page 56 is where they decide to go from this friendly, we're all Navy guys, look how great this is. And they start to turn up the pressure on him. And the way they do it is after getting nowhere with having him identify where stuff are and who'd been moving boxes around, in the middle of a long question, then one agent says, you know, there's video all over the place and

we have that. So, you know, like kind of prompt him like, dude, that's the moment in the interview where a guy has already, you know, he's already lied to you. And now you're going to try to get him to admit that what he'd said earlier was false. And so you, you, that's when you pull out the, the witness statement, the photograph, the text message that proves that what he said earlier was wrong. In this case, what they used was basically telling him. We have it on video and he still doesn't come around.

It's just so clear to me that Noda completely hosed himself in these interviews. Do you get a sense and would the agents in the room get a sense as to whether or not he was coached? They ask him about that. They go at it very vaguely towards the end of the interview. They ask him like, well, you're a guy who just follows directions. That's probably why they have you here. You're the low down on the totem pole. You're a good soldier. You just take the order and do it. You just really think about that. People on the other end of the totem pole usually don't get held responsible.

And the lawyer says something like, what are you trying to say? Yeah. What are you getting at? I think it's Stanley Woodward. What are you getting at? The people on this side of the table, meaning just him and Nauta, don't really understand where you're going with this. Why don't you be more specific? Just come out and say what you're getting at. What are you implying? So the agent's like, did you tell anyone that you were here today? And did anyone tell you what to say?

Did anyone instruct you on how to answer questions other than your lawyer? And then they just kind of expand that from there. At that point, all of the report pretenses dropped and they're just like, they start hammering him with questions that he cannot answer. He's just saying, I don't know, I don't know, no, no, I don't know. And he's just pulling the ripcord at that point, like, give me the hell out of here. It's so clear that, you know, he does make this one very defensive statement on page 67. What are you, you're saying something about my character?

No one had said anything about his character, but he brings that up. And then the lawyer goes on this diatribe about we're here voluntarily because we're trying to help. We're trying to be cooperative. They're very much not being helpful or cooperative in any way. No, no. Have you met your friend Tavares? Now, there's a helpful and cooperative fellow. Yeah, no doubt. We know helpful and cooperative and you, sir, are no helpful and cooperative. But this sounds

to me, I like the smile on your face. You just seem like, this seems to me like something that just lit you up where you were like, this, like, this seems to me like something that just like lit you up where you were like, this is text. It's so fun to read. At first when they were just there. I'm not trying to criticize these gentlemen, but it was, it seemed kind of hacky at first. And I, and I was like, Oh man, you know, this is, am I going to be like frustrated by this? And they, and they really got it going.

I mean, it worked. It kind of opened them up. They definitely established some rapport with them, which I think in a lot of circumstances would have worked well. The problem here was not as in over his head. He knew what he had done. And he went in and absolutely lied about it, minimized in many significant ways and really painted himself into a corner. I mean, he eliminated his opportunity to cooperate here. Well, I am fully convinced that a lot of FBI agents, had they not chosen the FBI, could

also be comedians because first of all, you're funny. People are like, how are FBI people so funny? Well, you brought up a really good point. You have to act like you're spontaneously doing these things when you're questioning somebody. Comedians have to act like the joke they're telling you is the first time they've ever told a joke. They're just thinking of it. Yeah, right off the top of the head. Yeah. And they're like kind of surprised with you about how funny what they just said is. And so that is a talent that has to be, I assume if you don't hold it naturally, you have to hone it and learn it when you go to the academy. It's really hard.

You definitely have to do that. And then on the flip side of that coin is sitting in those interviews, if it's going well and someone starts to really share the n know, the nitty gritty with you, exposing themselves, talking about things that they did or were wrong, you have to sit there and listen to all that and be totally neutral. If you, your facial expressions or your reactions or your comments indicate any kind of judgment in that moment, it'll shut the whole thing down. And sometimes you actually have

to be encouraging, like, oh yeah, you know, like, like say things that are almost kind of minimize what the person is saying, which is like repulsive on some level, but you just want to encourage that person to continue being revealing. And, you know, it's counter intuitive. Like somebody ... It is. I interviewed a guy once who I did not think... I interviewed him about a homicide and I did not think that he had committed the homicide. And when he told us the story of

how this other guy got shot, you know, the pressure was building in the room and we're all just like sitting on the edges of our seat and he's getting like deeper and deeper into the recollection of it. And he's like starting to sweat. You can see like in his head, he's in another place and he gets right to the moment we didn't know who had shot the guy. And he said, and then that's when I took out the gun and shot him. I mean, like, it was like, Oh my God, you shot him. Like, but that

you have to just be like, yeah, okay. Sweet. Yeah. Totally normal. That was a reasonable thing for you to do under the circumstances. Yeah, I got it. So go on, tell us some more. But it's hard because you want to be like, Oh my God, you shot him. That's awful. You shouldn't have done that. It reminds me of Mitch Hedberg's joke about his acting resume before he was in Almost Famous. He said, my acting resume was pretty sparse. It said, when I play pool, if I make a shot, I act surprised. Exactly.

Or I try not to act surprised. Something along those lines where you have to just sit there and go with the flow especially. I think in some instances, you're probably not too worried that the person across the table is a diabolical genius that can eff your ass up and make it very difficult and be psychologically manipulative. I don't think that we have that case here. And so maybe that's why some of the stuff was so hack in the beginning. I think they were just going for the obvious appeal. And look, it worked.

I think they did a better established rapport with the guy. I think they did a great job with the interview. If you're talking, some of the people you talk to, their backs up against the wall, they've already decided they're not going to tell you the truth. That's just how some of them go. You can't, you know, you're not, it's not magic. You're not going to cast the spell over somebody and convince them every time, convince them to do something that they probably shouldn't do.

So, yeah, it's fascinating. So I highly recommend it's very, very quick 120 page read. Nice. Well, thanks for going deep dive on it and giving us your personal insights. Because I was like, I can't wait to see what Andy has to say about how this whole thing, it must just have been like riding a bike, like just like, yep, there's that. Oh, and there's that I recognize that. Check, here comes the pressure. Here's where the leverage, here's where the room gets kind of uncomfortable. People start sweating more. Yeah. It's really fun.

It's really cool to have that inside information from you. So thank you for those insights. All right. We have listener questions and gosh, we only have a few minutes left. Again, one of these weeks where I'm like, oh, nothing much is happening and it still ends up being an hour long show. The elusive one hour show. Yeah, it continues to dodge us. But all right. So one question this week, I picked this one because a lot of people asked, as always, I try to pick a question that represents a concern that a lot of people have. And so this one gets right at it. So this comes to us from

John in, I'm going to mess this up. Ypsilanti. Ypsilanti? Okay. Awesome. John and Ypsilanti. Alison and Andrew, the best looking and well-versed podcast duo. Nicely done, John. Nicely done. My question is two part. It seems Judge Cannon lacks common sense and even more so lacks legal experience as evidenced by Jack Smith having to guide her during this trial. Do you think she's getting help from the other judges given that she is squirming out of trouble at the last possible second with obscure and unique filings? So that's a good question. That's the one that everybody's, a lot of people asked this week. I think she's probably not getting the kind of help that you're thinking of, John, for

a variety of reasons. One, there's only three judges in that courthouse. And I would guess that they are, because they are kind of a sub office of the federal courthouse in Miami, there's probably not a lot of established kind of whatever, mentorship or guidance. Generally, federal judges are on their own. They can kind of do whatever they want. And I'm not a federal judge, never have been one, but my perception from my experience in dealing with them is I'm not sure that they go to each other and say, hey, I got this really tough legal argument, a legal issue, what would you do?

I think they probably talk to each other about general things, but I don't think they probably talk about the actual cases they're deciding. It's more likely that judges rely on and confer with their staff, their clerks. And the clerks are at this level, federal district court level, these are like some of the most accomplished law students or maybe first year out of law school associates in the country. From the best schools, you got to be coming out of a really solid record from a very highly

ranked law school to be able to get these sort of clerkships. There's already some bad news about that for her. We know that two of her clerks left the clerkship before it was over. Now both profess to have some personal reasons for doing that and that maybe that's all there is to it. But I can tell you that is unbelievably rare. Clerks do not leave the clerkship only last one or two years. And it is like unheard of to leave. That's coveted, highly coveted position.

It is. And it is a stepping stone to like a very big high profile career, either in the private sector and in law firms or in government service. So not the kind of thing you walk away from. So that's not a good sign. I also think like her rulings themselves indicate a lack of sophistication and experience. And of course we know that she has had hardly any trials and never anything as big or high profile as this. And on top of all that, she's under this incredible microscope where, you know, jerks like me criticize her every week on podcasts and stuff. So I'm sure she's probably not enjoying that.

Not saying she's a listener, but you can't go anywhere without hearing people questioning her abilities and competence and the way she's managing this case, which has been terrible. So that's probably all making things worse for her. Yeah. And she gets a lot of her ideas just straight out of oral arguments and hearings. Like the weird jury instruction thing

that came right out of the mouth of Boeve, who is an attorney for Donald Trump in that March 14th hearing. So she's grabbing those ideas from there. She's giving clues in her minute orders like, hey, you might want to argue this. Have you thought about this kind of jurisdiction? Remember when she was trying to do the special master thing and she's like, have you thought about arguing this special kind of jurisdiction? And they didn't even pick up on that. So I think she knows what she's doing and at least knows enough to avoid the 11th circuit again. Yeah, I think she's been really crafty in that,

in that respect. Of course, not in a good way. I also think these kind of ranting orders like we got this week show a level of frustration and defensiveness and again, lack of experience. Like you don't have to be defensive or frustrated. You're the judge. You can do whatever you want and no one can fire you. So that's the way most of them approach it. Usually get like supreme arrogance, but here she seems to be really kind of lashing out,

which is not a good sign. Yeah, either that or she's giving fodder for MAGA to argue in public. So, but yeah, no, good question. And I think the second part is if this trial, if Judge Chutkin or someone like Judge Marshawn had this trial, it would probably be well underway. I'm not sure if it'd be well underway, but I think it would be close to going. It'd be a damn sight further underway than it is now, that's for sure. Yeah. Yeah.

Oh my gosh. She's, um, I agree. This is a, this is a complicated trial on some levels and, but there's a half of these, these motions would be decided by now and most of them from the bench without extra arguments and writing. And so, yeah, it's, it's unfortunate. It is. All right, everybody. That's our show. Thank you very much for sticking around for over an hour. I know we had a lot to get to today. There was a lot of news. I'm sure there'll

be more news. I'm not going to do it tonight, Andy. I'm not going to be like, oh, I bet it'll be a nice quiet week. I'm not going to do it. Let it go. I'm going to let it go. And you know, of course we'll see some of our patrons on April 20th at our gathering there in DC. We'll have another show between now and then. And then we have a very cool event we're doing in DC on May 7th, you and I and Brian Greer. And we're going to give more information on that as we get it. Yes, it's free, but you have to kind of register to get your name on the list. RSVP will have all

the information about that. If people want to come out and see us on May 7th, do kind of a live Q&A and a bit of an interview, interviewing the hosts as it were. So more on that to follow. Yep. And then of course, August 16th, you, me, Pete Strzok, Glenn Kirschner, the Hamilton Theater. It's going to be awesome. Tickets are going fast. You can get them at allisongill.com. Anyway, thank you so much everybody for listening. Thanks for your questions. If you have a question, there's going to be a link in the show notes. You can click to fill out the form. We will see you next week. I've been Alison Gill and I'm Andy McCabe.