Jack - Episode 75 | Chock Full of Run-on Sentences

Starting point is 00:00:00 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?

Starting point is 00:00:23 Send me to jail! Hello and welcome to episode 75 of Jack, the podcast about all things special counsel. It is Sunday, May 5th, 2024. I'm Alison Gill. And I'm Andy McCabe. As we wait for the Supreme Court's ruling on immunity for the election subversion case, today we'll focus on the latest in Mar-a-Lago, along with the possible fallout of fresh subpoenas being issued by Michigan for Kenneth Chisburro's secret Twitter accounts and direct messages, as his cooperation in multiple jurisdictions could be in question. Oopsie. Oopsie daisy.

Starting point is 00:01:09 I hate it when that happens. Mr. Unindicted Co-Conspirator, that does impact the special counsel's investigation. And in Florida, we have Walt Nott's grand jury transcript as well as Trump's motion to dismiss based on vindictive and selective prosecution. Finally, coming off of the secret docket, we'll cover that today as well. And we also just right this second, the Pacer has entered in a Jack Smith response to Walt Noda wanting to delay the SEPA Section 5. And so we're going to put a link to that filing in the show notes. I haven't really opened it yet. But later in the C block, as

Starting point is 00:01:51 we record this, you can follow along with me what it's like for me to read one of these filings for the first time. So we're going to go over it that way, kind of a cool window into how I read court filings. They're climbing into the mind of AG. Yes, and I feel sorry for every single one of them. Please also when you open this link, get yourself some hand sanitizer. No, this is like a really weird version of MTV cribs, but it's like AG Reads legal filings. Very similar in some ways, but not all.

Starting point is 00:02:28 Yeah, so open it up and we'll go through it together. And you can see kind of what I look for and how I do it. Excellent. Also, Andy, we're going to be live at Van Meter Hall at the Schar School of Policy and Government at George Mason University in person. I know. I'm so excited for this.

Starting point is 00:02:42 So this, for people who don't know, I teach at George Mason in the Schar School. I teach one class every year, just finishing it up, grading some papers these days. And they were super nice to invite us to come in and have kind of constructed this whole live event around our podcast. So yeah, we're gonna be there this Tuesday, May 7th. There's

Starting point is 00:03:06 gonna be a meet-and-greet before and a reception afterward with the two of us and Brian Greer. And it's gonna be moderated by Anna Bauer from Lawfare. We are so lucky to have her. Yeah, we absolutely are. She's one of the best reporters out there. And you know, she's working for law fair. I mean, I consider it independent media. I think she's fantastic. And we are really happy to support her and her reporting as well. So this is a free thing. It's Tuesday, the RSVP link to get a seat, you have to RSVP to it. And you'll get to come to the meet and greet and the reception after well, Maybe that might be

Starting point is 00:03:45 reserved for some of the university folks, but we will be wandering around afterwards. So you can probably talk to us. But that RSVP is going to be in the show notes. So there's two things in the show notes for you. That filing from Jack Smith that will go over in the C block. And of course, the RSVP to the May 7th event, this live podcast event moderated by the amazing Anna Bauer at Van Meter Hall. Again, that's at the Schar School at George Mason University. So very excited about that. And we look forward to seeing you there. So before we dive in to what's going on in Mar-a-Lago and giving the latest down there in that case, shall we do a good week, bad week?

Starting point is 00:04:25 Matthew 10 always need a good week, bad week. This one's kind of interesting. It's been, as you know, a very quiet week on the Jack Smith side of things, not a whole lot going on. We're going to cover obviously a few things from Florida and DC remains completely on ice. So I would say just because things are not moving very quickly, no movement in DC and constant obstacles in Florida. I think you put those together and it's been yet another not great week for the special counsel team. Not things that they can control, but nevertheless,

Starting point is 00:05:03 things remain kind of stuck in the mud there. And on the Trump side, man, I got to say another pretty bad week for Donald Trump. Holy cow. It's just one witness after another in the New York criminal trial. We've heard some interesting witnesses this week. And again, you know, if we look at it from that same lens that we're talking about with Jack Smith, from just a timing and progress sort of perspective, Trump is really wasting all of his time sitting in court and really getting nothing done on his campaign side of things. So I'm going to call that a bad week for him as well. Yeah, and a bad week for him, because now he probably has to go to his son Barron's graduation,

Starting point is 00:05:46 which he probably wasn't planning on attending. But when it came up at trial, you know, he was asking for it and the judge said he'd consider it. And then of course he goes out and says that this terrible, conflicted judge who should recuse himself has barred me from attending my son's graduation, etc., etc. And then of course, recently this week, the judge ruled that he could have the day off and he gets to attend his son's graduation, which he probably was not wanting to attend. So now he kind of has to go. Now, I mean, it's not under court order. It doesn't have to go. Somebody actually emailed or even sent me a message and said, is he in contempt if he doesn't go to the graduation? I'm like, no, he doesn't

Starting point is 00:06:28 have to go. But boy, after coming out and whining about it as a victim for Fox is spending news cycles on it, it would look really bad if he didn't go. Yeah. Although like last, you know, complaining all along that he's not being able to, he's not been able to campaign because he's been in court so much. And then last weekend he gets three days off and spends zero of them campaigning. So I don't know.

Starting point is 00:06:54 Exactly. I think that there's, you know, maybe we should have a graduation watch taken over under on his chances of actually going. Maybe he'll make an appearance, or maybe he'll say that because of security reasons, the school said that it wasn't a good idea or something. I'm not going because they didn't make me the valedictorian.

Starting point is 00:07:15 I'm not getting an honorary degree. It's not fair. It's a rigged system. It's another rigged valedictorian, a Trump-hating valedictorian. Stop the count. Oh, jeez. Oh my goodness. It's off the rails already.

Starting point is 00:07:29 We're only like on the very first few minutes of the show, but all right, we're going to forge ahead. It does. It happens. And also a bad week for Trump because his independent accounting firm over his Trump media management company, the one that Truth Social is a part of, just got hit with some severe, massive fraud sanctions from the Securities and Exchange Commission as being an audit mill. And so they've been fined $14 million and shut down. They can't operate anymore. So now Trump

Starting point is 00:07:59 is going to have to find another insurance company to handle Trump management, you know, DJT stock, etc. And so I was joking with a friend this morning that maybe we're looking at Knight specialty accounting services opening an office in the Caymans and having Mr. Hankey show up with some glasses and a mustache as his new accountant. I think that would be great. There you go. It could happen. You know, the Trump Social Company, I saw this morning that new figures out there down,

Starting point is 00:08:39 Trump Social is down in terms of monthly view users. It's down 20% year over year and 4% month over month. So it's, I guess what we know about it so far is it's made no money and is currently losing users at a pretty alarming rate going in the wrong direction. So I guess just stay tuned to see how futures go with the stock value. Yeah. Well, I didn't buy any, so I'm safe.

Starting point is 00:09:08 No, me neither. Mark Safe from DJT Stock Drop. There you go. All right. So what are we going to talk about first? So let's start with the motion to dismiss the Florida espionage and obstruction charges based on vindictive and selective prosecution. So what we know about this motion is that up until this week, the filing was just languishing on Judge Cannon's secret docket while the

Starting point is 00:09:30 parties litigated what needed to be redacted from the filing and the exhibits. Now the actual motion is only 24 pages, but there are over 150 pages of exhibits that had to be litigated for redactions, which, you know, AJ, that's probably the point for the Trump camp. I mean, this seems to be a pattern here. You will recall that they took months to litigate the exhibits attached to Trump's motion to compel discovery, which included, of course, witness names and testimony that the government did not want made public. So let's take a look at Trump's motion to dismiss on vindictive and selective prosecution grounds.

Starting point is 00:10:09 We know that the Supreme Court has previously defined selective prosecution as, quote, not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Vindictive prosecution occurs when a prosecutor retaliates against a defendant for exercising a constitutional or statutory right and they do that retaliation by increasing the number or severity of charges against the defendant. So it's a very high bar to get a motion dismissed on vindictive and selective prosecution grounds. It almost never happens in a normal world. And in a normal world, this motion would have been dismissed by now,

Starting point is 00:10:55 at least based on Trump's arguments, which are incredibly weak. Yeah, I think I put it on Twitter. I said here it is. It's really really stupid He opens his motion by quoting special counsel Robert Herr's report on President Joe Biden's handling of classified documents Quote with one exception there is no record of the Department of Justice Prosecuting a former president or vice president for mishandling classified documents from his own administration. The exception is President Trump. The basis in his politics and status as President Biden's chief political rival.

Starting point is 00:11:36 Thus, this case reflects the type of selective and vindictive prosecution that cannot be tolerated. Accordingly, Trump says, further discovery and a hearing are necessary. Of course they are. And the superseding indictment must be dismissed. And so of course he's not just asking for dismissal. He wants a hearing and more discovery from the government for further consideration. And if he gets more discovery from his motion to compel,

Starting point is 00:12:01 which doesn't exist, he will want to amend this motion with that new discovery. So from a different motion, he wants to amend this one and reserves his right to do that. And he will do that after a considerable period of review of that discovery. So in Trump's world, in his perfect world, he would get his motion to compel discovery granted. Then he would get a few months to review that discovery. Then he would amend this motion for vindictive and selective prosecution. Then he would get a hearing on this motion and then Judge Cannon could rule on this

Starting point is 00:12:34 motion probably sometime next year. Of course, of course, that additional discovery, like I said, doesn't likely exist. And Trump has had 90% of discovery since last year, November. But that might not necessarily stop Judge Cannon from ordering additional discovery review and scheduling superfluous hearings. And Andy, this motion we're about to go over, this is just one of about like 13 motions with exhibits that have yet to be litigated for redactions that are still sitting on her secret docket. It's unbelievable. I mean, it's just become a, it's a farce. The lack of progress in this

Starting point is 00:13:13 case is just an absolute farce. Yeah. And I'm surprised they're not like having hearings about what the word the means, you know? It's, it's, it feels like that granular at this point. I mean, if they actually follow the path that you've laid out here, Cannon would rule on the motion after the election in 28. This is literally just going nowhere. It's round and around in circles. And the existence of the infamous secret docket is just making the whole thing worse. But I digress, sorry. No, it's fine. It's frustrating and it's hard to watch. But back to Trump quoting the

Starting point is 00:13:55 Her Report, just that one little sentence. It reminds me of Trump's immunity arguments, right? Remember how he pulls one sentence out of Marbury v. Madison? Yep. And pulls one sentence out of the executive vesting clause, cherry picking out of context sentences and shoving them together to support his argument for absolute immunity. Totally. So Marbury says that the president's acts are not reviewable by the court unless he commits crimes and then they are. But Trump only uses that first part, not reviewable by the courts, and leaves out

Starting point is 00:14:25 the rest. And he's doing the same with the Herr report here. Yes, Herr did say there is no record of the DOJ prosecuting a former president for mishandling documents from his own administration. Herr did say that. But then right after he said that, he says, it is not our role to assess the criminal charges pending against Trump, but several material distinctions between Trump's case and Biden's case are clear. Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts. Trump leaves that out.

Starting point is 00:14:58 Yeah. And you know, her puts the first part in because he's setting the context of what he's doing He is about to conclude that no charges should be pursued against President Biden and so he starts this whole You know report off by saying no one has ever done that so it kind of like setting the tone is like this is a really Extreme thing to do It doesn't ordinarily go in this direction. And of course, yeah, there is one exception. The guy whose conduct involves serious aggravating facts. Right. Right. And this is an MO for Trump. It reminds me of the mischaracterization of

Starting point is 00:15:42 the Mueller findings written by Bill Barr. He completely left out the part that explicitly did not exonerate Trump. And he held that back for three weeks while they went on a spin tour of total exoneration. And most people never got over that first impression. And it's just like with the immunity case, what her really said cuts against Trump's argument and is probably the best evidence against his argument for vindictive and selective prosecution. It's almost like he's got this method of picking the best evidence against him and pulling sentences out to use it to defend himself.

Starting point is 00:16:21 He does it time and time again. Yeah. I mean, it's fundamentally misrepresenting the law, misrepresenting the case history, misrepresenting the facts. And, you know, yes, it's true that defense attorneys in criminal matters, like their job is to create a mess, right? The prosecution's got to build a house and they've got to use evidence and witnesses, and they've got to start with a foundation and bring in testimony. And you know, it's a very intricate process and it has to be believable beyond a reasonable

Starting point is 00:16:52 doubt. All the defense has to do is knock the house down and create a mess and just do whatever they can to create doubt. The thing that prevents most defense attorneys from doing that in this way, the way they're doing here, in most cases is they don't want to lose credibility with the judge. You wouldn't make an argument like this basically misrepresenting what Rob Herr said or what the Supreme Court said in Marbury, because any judge worth their salt would see through this very quickly,

Starting point is 00:17:26 their clerks would see through it very quickly, and you lose credibility in front of the judge. It makes you less likely to win these motions and these arguments day after day. But that's not really the case here. They are taking these massive swings for the fences in what they're doing and how they're executing their strategy and how they're making their arguments. And it's so far, it's working. It's not, Canon does

Starting point is 00:17:49 not seem to be holding this stuff against them in any perceptible way, which is extraordinary. Right. And we see the difference. We see the stark contrast with Judge Chuckin in the January 6th election subversion case where she gets motions like this and within a week she's like, this is dumb, no, dismissed. No hearing, no motion to compel discovery, no additional time. No, I'm not even considering this and here's why. And she gives very good reasons why.

Starting point is 00:18:18 So not only in the quote unquote real world would we have somebody, a defense attorney who doesn't wanna upset the judge, but we would have a judge that would shut this kind of thing down very quickly. And we don't have that here either. Not at all. This is what happens when you let the thing get out of control.

Starting point is 00:18:36 You are telegraphing to both sides, and in this case to the defense, it's fair game. Do whatever you want. I'm not gonna stop you. I don't even understand what's fair game. Do whatever you want. I'm not going to stop you. I don't even understand what's happening here. You know, the calendar is totally effed up. And so you can't blame them. You can't blame Trump's attorneys for running in this direction because it's working. They're getting away with it. They're proposing ridiculous things and those ridiculous proposals are being given the same sort of

Starting point is 00:19:05 consideration by the judge as factual, reasonable proposals. So there's no downside, so why not do it? Right. Especially if your whole goal is to delay. Of course. Yeah. We've got all the secret docket and all these motions with all their exhibits and attachments that have to be litigated that take months, one at a time, not concurrently, but consecutively. And that's the goal and it's working. So yeah, why, if it ain't broke, if you know, for Trump, don't fix it. So that's where we're at. All right, we're going to dig into Trump's arguments

Starting point is 00:19:41 in this filing. And I use the term arguments loosely, but we have to take a quick break. So everybody stick around. We'll be right back. Welcome back. Okay, we're going over the Trump motion to dismiss the Florida case based on selective and vindictive prosecution. The main crux of his argument is that all kinds of people have mishandled classified documents and they weren't indicted. So because he's similarly situated to these people, he shouldn't have been indicted either. That is kind of one of the tests of this sort of motion is you want to compare, you have to basically prove to the court that you're being treated differently than other people who are quote, similarly situated. So other people who have allegedly done the same sort of thing. You're being

Starting point is 00:20:35 punished more severely and charged more severely. And I'm thinking about Hunter Biden, right? With his tax crimes and his gun crimes, those charges aren't usually brought. And he actually had very good proof of being similarly situated to other people who committed the same acts but weren't indicted. But he still did not get his motion to dismiss on addictive and selective prosecution, even though there are clear differences between Trump's case and his case in that Hunter Biden is similarly situated to like Roger Stone owes $2 million in taxes, just got a lawsuit against

Starting point is 00:21:10 him to file his taxes or people with those gun charges aren't usually charged unless they are being charged for a different felony like armed robbery or something. And then they tack that gun charge on there. This is just a standalone gun charge. And there was multiple cases showing that Hunter Biden was similarly situated, but still not strong enough to dismiss pretrial. Yeah, it's a super high bar. And you don't get over it by just simply coming in and saying, they're not treating me fairly. It's like you have to prove that you're not being treated fairly. If you go back to the, and I know we're going to get to this in his argument in a second, but just to use the Clinton investigation

Starting point is 00:21:51 as an example, one of the things we did before deciding not to ask for an indictment was we had DOJ go back and pull up every single prosecution or case really, even cases that didn't result in prosecution in which the charge would have been Espionage Act, unlawful retention and lay out for us what happened and if there were charges brought, what they were and what the result was. Because we wanted to make sure that we were thinking about what we had found in that investigation in the context of how similar cases had been decided, which is just a pretty standard thing to do in any of these sorts of cases. Now here, because he's trying to make this similarly situated argument, that's why it's important that he left out huge parts of the Her report

Starting point is 00:22:43 because Rob Her explained why Trump's document situation is not similarly situated to Joe Biden's document situation. But of course, Trump left all that text out of his motion. Trump's motion says, quote, American history is chock full of public examples. Who uses chock full of illegal filing? Did it jump out at you too? Because I was thinking of the old Purina chuck wagon commercial where they're like, it's chock full of goodness for dogs. I was like, wow, chock full. Okay. I can't even read it. I've read this sentence a bunch of times and I can't read it without

Starting point is 00:23:20 like choking on it. It's chock full of problems, this sentence, I'm telling you. Okay. So I'll go back to the motion. The motion says, American history is chock full of public examples involving alleged mishandling of classified information and documents, which did not result in the type of politically motivated charges that the special counsel's office has brought against President Trump and his co-defendants." Massive run on sentence, by the way. Set forth below are some of the most glaring and egregious examples. Yeah. And I mean, for me, American history is chock full. Why can't you just say like replete with? There are many examples. I mean, like there's all kinds of ways to do this.

Starting point is 00:24:06 That's a little more professional and effective than chock full. But okay. Boy howdy. Okay. So he begins by comparing his conduct, of course, to what Joe Biden did. He goes over all the details about the investigation into Joe Biden by special counsel Herr, but of course leaves out the part where the government determined that there was not enough evidence to bring a case against Joe Biden. He also leaves out

Starting point is 00:24:30 the part where Herr says, quote, several material distinctions between Mr. Trump's case and Mr. Biden's case are clear. You know, that completely undercuts Trump's argument that what he did and what Biden did were basically the same thing. And so that's why he didn't include that line in his motion. Yeah. And he also didn't include the material differences that her lists. Right. He, he expands on those differences. He says, most notably after being given multiple chances to return classified

Starting point is 00:25:01 documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it. In contrast, Mr. Biden turned in classified documents to the National Archives and the DOJ, consented to the search of multiple locations, including his homes, sat for a voluntary interview, and in other ways, cooperated with this investigation. So it's so different. It's so very different.

Starting point is 00:25:38 And if, man, if I were the defense attorney here for Trump, I wouldn't draw any attention to the her report. I mean, right? It's really bad for me. the defense attorney is here for Trump, I wouldn't draw any attention to the her report. I mean, right? Really bad for me. It's really not good. And again, the danger is like, one of her clerks, I'm not suggesting that this will happen because it hasn't happened so far, but it should happen. One of her clerks says, hmm, let me take a look at that her report and see what it says.

Starting point is 00:26:02 And then it's like, oh my gosh, you know, realizes how wildly they've mischaracterized the significance of what her found in his investigation. So, but you know, it's worth it to them to take the chance because why not? Yeah, for sure. Trump then compares his behavior to what Vice President Pence did. Quote, the same result for Vice President Pence following an investigation by the DOJ that concluded, coincidentally or not, just in time for Pence to declare his since terminated candidacy in the 2024 election. Both President Biden and former President Pence returned classified documents during an iterative process, but

Starting point is 00:26:42 no one inferred obstructive intent from the multiple disclosures. Unlike President Trump, both men were offered an opportunity to consent to FBI searches rather than being forced to face the public spectacle of having their private homes raided by armed agents. And let me just say something here. He's contending that Biden and Pence were offered the opportunity to have the FBI come into their homes and look for stuff. And they granted it. Trump fails to mention that he had a year-long negotiation with the National Archives trying to get the material back without an indictment. Followed then by a Department of Justice subpoena before the search

Starting point is 00:27:34 warrant. Remember the FBI was like, I don't want to search it. Let's do a subpoena. And the DOJ is like, let us search. And they're like, no, let's do a subpoena. And the DOJ is like, fine. So they subpoena him. Trump had multiple chances to return all the material before he was indicted. And he was asked, and not only was he just asked, he was legally asked via subpoena. Yeah. Which they called his lawyer and said, this is really serious. You need to give us this stuff back now. And need to give us this stuff back now. And then they got on a plane and flew down there the next day after the phone call. And DOJ lawyers and a couple of FBI agents went to Mar-a-Lago and the lawyer handed them over what?

Starting point is 00:28:17 A little, an envelope full of documents. 38 documents. 38 documents. And how many more boxes of documents are just sitting behind the door to that whatever, the Pine Hall, the... Yeah. And in the basement. And we know, and we've said this so many times, Andy, that had he complied with National Archives, or had he complied with the subpoena, there wouldn't be an indictment here. No way. Not a chance. Not a chance. But anyway, here we are. All right, so then he compares himself to the Clintons.

Starting point is 00:28:52 He says, despite prolonged mishandling of classified information and extensive deletion of evidence, no member of the Clinton family has been charged with a crime. Hillary Clinton led the State Department using a private email account, routed over servers at her private residence to communicate regarding the type of foreign affairs matters

Starting point is 00:29:13 the special counsel's office and the intelligence community relegate to basement skiffs in this case. The FBI identified 193 classified emails and the data that Clinton did not cause to be deleted, and we will never know the extent of the classified information in the data she caused to be destroyed using Bleachbit, at least two instances where an aide destroyed Clinton's old mobile devices by breaking them in half or hitting them with a hammer, 20

Starting point is 00:29:44 and other methods. But no charges followed. The decision was supported by the same George Toscas who did not quote, give a damn about the optics of the Mar-a-Lago raid. There is so much in that sentence. I almost feel like Trump must have written it because it's borderline incomprehensible. I mean, it's... I see what he's doing. He's trying to use the resolution of the Hillary Clinton use of a private email server investigation as an example of a case that's similarly situated but was handled differently. That's the point he's trying to make.

Starting point is 00:30:28 And he's trying to make it with obstruction. He's trying to equate her deletion of emails, of duplicate emails, with his trying to delete video and flood the server room. And halfway between, before that thought has even crossed the mind of the reader. They hit you with hitting hitting blackberries with a hammer, which was never considered to be obstructive conduct. When you put it in the context of how to have it, she was getting she would get a new device

Starting point is 00:31:05 and then they would get rid of, throw away the old device and before they threw it away, they would break it to ensure that someone couldn't go on there and access her personal or private or business communications. Yeah. And something that is conspicuously absent from this filing. Is Donald Trump going over the three elements of obstruction of justice and how Hillary Clinton met those three and how what he does and what he did does not? And we've talked about this at length because of volume two of the Mueller report. I learned a lot about the three elements of obstruction.

Starting point is 00:31:41 The first, you have to have an overt act of obstruction of justice. Second, a you have to have an overt act of obstruction of justice. Second, a nexus to an official proceeding. Both of these cases, Trump and Clinton have those. Yep. Okay. But then you have to have intent. And in no part of this filing,

Starting point is 00:31:58 does Trump explain how any of these quote similarly situated people had intent to meet the third element of criminal obstruction of justice, nor does he explain how what he did does not meet that element. And that is something that I would put in a vindictive and selective prosecution motion to show that I'm similarly situated, is to show how the elements were or were not met of the crimes I was charged with. Yeah. I mean, if that would be if you had a legitimate argument, he does not. So that's

Starting point is 00:32:36 why he doesn't touch it because he wouldn't be able to prove it. The balance sheet of comparing those things would not be in his favor. So he just avoids any of that like really substantive argument and just goes for this crazy mishmash of stream of consciousness melding of headlines basically. In sentences that are so long, you cannot read them out loud without taking a breath in the middle, which drives me crazy. I'm sorry. It is.

Starting point is 00:33:07 It's poorly written. It's chock full of run-off sentences. That's it. It's my new thing now. Everything is chock full. I'm going to drive my kids crazy. Hey, you're chock full of BS today. You're chock full of beans, aren't you? And how? Can't swing a cat without hitting somebody chock full of BS today. You know that? You're chock full of beans, aren't you?

Starting point is 00:33:29 And how? Can't swing a cat without hitting somebody chock full of beans. All right. So I digress now. Trump then repeats the Clinton Sox case, right? Brought and lost by Judicial Watch, led by Tom Fitton, who, by the way, repeatedly advised Trump that he didn't have to give back the classified stuff. Tom Fitton still trying to squeeze a victory out of that loss in the Clinton socks case. I don't know how he kept coming back to that either. Yeah, it's easier to squeeze those arms into shirts that are six sizes too small. And we've gone over, is that Tom Fitton? Yeah, the shirt's

Starting point is 00:34:00 not fitting. Yeah, that's how I remember. And we've gone over the Clinton socks case in detail on this show in the past, so we're not going to rehash it here. It's just totally irrelevant. And same with the Comey memos and the Petraeus leak and Sandy Berger and John Deutsch who pled guilty to misdemeanors. So they were actually charged. They pled. Right. And Deborah Birx, by the way, who had six boxes of documents that she returned to the National Archives as soon as they asked her to. Again, none of these are similarly situated to Donald Trump. Had he pled guilty, he might have got, you know, or returned the documents, none of that is brought up at all.

Starting point is 00:34:37 Yeah. Yeah. I mean, like, I guess in some crazy world where people do things that are logical had he, after receiving the first letter from NARA, said, you know what, come on down here. I got a hundred boxes in this room right next to the bathroom. You can look through whatever you want and take back whatever you want. Maybe that would have resulted in, hey, we really have to do something here. You have tons of classified. How about plead to a misdemeanor? I don't even think so. I don't think it would have gone that far. But they said like a million times, National Archives, just give it back. Everything's going to be chill. Everything will be Jake if you give it back. And then the

Starting point is 00:35:14 subpoena, they flew down there, hey, just give it back to us. What's in that room? Nothing. Don't go in there. Okay. And then they get the subpoenas for the CCTV and they find out that they were moving boxes and lied about it and that he deceived his lawyers. And then they have video of them trying to delete the video. And he asked his lawyer to remove the incriminating documents from the ones he was going to turn back. Oh yeah. Just pick them out and he does the picking motion. Yeah, it's terrible. None of these folks are similarly situated at all.

Starting point is 00:35:47 And had he read two sentences down in the Her report, he would have gotten that information. For sure. All right, so finally, there are the exhibits to this motion, which include four letters from Jim Comer about Biden's classified documents case, statements from the Biden White House about their cooperation, a letter from Pence's attorney about the investigation into him, I guess proving he was

Starting point is 00:36:10 investigated. A letter from Pence's lawyer to NARA, the National Archives, showing his cooperation, which again, I don't think makes Trump look all that great here. But okay, whatever. They like a lot of exhibits. So it doesn't matter what they are, apparently. A copy of the plea agreement with Petraeus. I don't, again, I don't understand how this helps him. Why? All it shows is that he cooperated. All Petraeus got was a misdemeanor and they charged me with felonies. I suppose that's

Starting point is 00:36:43 the argument. He copped to it. Yeah, and it's like, okay, you want to plead to a misdemeanor? No. He's not going to take that anyway. So again, the plea agreement with Sandy Berger over his document mass. The 24-year-old inspector general report on John Deutsch, which shows why he wasn't prosecuted. The DOD IG report on Deutsch. An email from the National Archives listing all the ways Trump flouted the preservation of presidential records. By the way, the redactions in this were likely what caused

Starting point is 00:37:25 the months long delay. So there's a lot of that has been redacted out. And finally, an email from the National Archives detailing a meeting at the White House about the Trump boxes. Trump is probably trying to show the White House and the Biden administration were involved in the prosecution, some cabal of improper planning. But all it really shows is that the White House counsel was advising on privilege. There are several redactions of names here as well. Yeah. And it's those redactions in these exhibits attached to this motion that required it to be filed on a secret docket and litigated for months. Yeah. Yeah.

Starting point is 00:38:07 And none of it helps Trump. No, but you got to give them some credit begrudgingly, right? These lawyers know what they're doing. Of course, this is the delay. And the name of the game is delay. And they baited that hook with all these exhibits and things that they knew the government would fight them over and And Cannon took the bait. So here we are, nowhere close to a trial.

Starting point is 00:38:29 I'm interested to see what happens because of all the reporting of all of Trump's grumbling of the expensive nature and lawyers shouldn't be paid that much. It's going to be interesting to see when delay meets pay. Oh yeah. You know, because this delay costs a lot of money. Yes. And so it's going to be very interesting to see if a wall at some point is hit where Trump's lawyers are like, you're out of money or we need more money if you want us to litigate

Starting point is 00:38:58 these exhibits on your motions on a secret docket. It's going to cost you this much more money and we're not going to go forward until you pay it. I mean, there's going to be a point where he can't afford this anymore. He always kind of signals what he's doing. Often he just comes right out and says what he's doing. But even before that, sometimes you get the signal. And I'm wondering if we got that signal earlier this week or end of last week started seeing reporting about his relationship with Todd Blanch is starting to go south. He's not happy with the way Todd Blanch is conducting himself in court or something like this. He's not yelling and screaming

Starting point is 00:39:39 and fighting with the judge, which is what Trump wants. And so therefore, they're kind of, there's a little bit of friction there. This guy walked away from his law firm partnership, moved his family to Florida, like completely went south and opened up like a throughout a shingle sort of one man law firm to do this representation. So yeah, at some point, Todd Blanchard, I can't imagine he went into this with some massive war chest of cash that he can use to basically front all this work. There's no way. I mean, he's been paid a lot of money so far, but you just can't help but wondering if yeah, the spigot's going to get turned off at some point if he doesn't like the way that case is going.

Starting point is 00:40:26 Or because he runs out of money. That too. I mean, you know, they scraped to get that $175 million bond put in. And you know, he spent I think $86 million so far on his attorneys. And then there's this whole other separate secret company, Red Curve Solutions, that is pre-paying legal fees and being reimbursed by five Trump PACs, which is illegal. So he's digging for cash right now. Yeah, I don't know how much longer it's going to, you know, with the delay, we'll meet the pay and we'll see what happens. All right. That is the filing. I've written about it on my brand new Substack. Thank you

Starting point is 00:41:10 for following it. Andy, I was a bestseller status in one day on Substack. So it's free. All my content is always free. You can pledge if you want to support independent media, but it's free and it's at mulersheroat.substack.com. I wrote about this particular thing and a lot of other things too, including what's going on with Chesbro, which we'll talk about later. But we have to get to that Walt Noda grand jury testimony transcript, part of which was released as an exhibit in the motion to compel. And we'll talk about that after the break. Stick around. we'll be right back. ["The Last Supper"]

Starting point is 00:41:55 All right, everybody, welcome back. This week, we got the transcript of Walt Nott's grand jury testimony that took place in June of 2022. And we got this testimony pursuant to the order from Judge Cannon to unseal some of the redacted material that Trump attached as exhibits to his motion to compel discovery, different from his motion for vindictive and selective prosecution that we just went over. Totally different motion. And that was the

Starting point is 00:42:20 fight about whether to unseal witness names that special counsel opposed by filing a motion for reconsideration because Judge Cannon ruled that they needed to be unsealed. And he said, that's a clear error and manifest injustice. And then she thought about it for a long time and finally agreed to most of what the government wanted. But she did order some of the witness testimony to be released after they litigated privately what should be redacted. And none of this actually helps Trump's case.

Starting point is 00:42:48 Again, it was probably just attached to trigger that lengthy litigation over what needed to be redacted. And she also held an unnecessary hearing on the matter. And now, months later, here we are. I believe that hearing was March 14th, if memory serves. Now, on the whole, the lies that Nada told the FBI are the same lies that he told the grand jury. But there are a couple things that weren't in the FBI interview that we thought we should go over those differences. First, after

Starting point is 00:43:16 bragging about his clearance in the Navy and how high it was, which is one of his arguments about why he should be able to see classified discoveries because he had a top secret clearance in the Navy and he had high clearance when he was a valet at the White House. After all that bragging, Nata said that he was unfamiliar with what a classification marking looks like or where it would appear on a document. And he also told the grand jury that he didn't know what a skiff was. This was a really interesting part of the exchange for me because I feel like it also, it's a little bit of a reveal of what was undoubtedly some very heavy handed attorney counseling. So he says on page 11, line eight, well, he's asked, has he ever seen classified

Starting point is 00:44:02 documents? And the question is, and frequently that's printed, meaning the classification level, across the top of a page. Now anyone who's been following this case in the media knows that. We've all seen hundreds of pictures of them. And he responds, I'm not, to my knowledge, I don't remember. So this is a classic. When you're preparing to testify or you're preparing a witness, attorneys often will tell, well, they'll instruct their clients to like, don't guess.

Starting point is 00:44:35 If you don't know, don't guess, don't try to help. And the way that you do that is by saying you don't know. Now attorneys have to be careful. They can't say, if you just say, I don't know, to anything you don't want to answer, because that would be subordinated perjury. If you actually know and you say you don't know, that's technically perjury.

Starting point is 00:44:55 So what they say is, listen, if you get asked a question, you don't have to work for the answer. If you're not immediately, absolutely 100% sure of the answer, immediately, you don't have to waste time trying to figure it out. You don't have to think real hard. You just say, I don't remember. Got it? And so that's clearly what he does here. He's like, I'm not dot dot dot to my knowledge. I don't remember. There's some, and he does this a lot. He does. Yeah. In the testimony, he pulls the, I don't remember. So there's some. And he does this a lot. He does. Yeah. In the testimony. He pulls the I don't remember card often. And it's typically about stuff that like

Starting point is 00:45:30 anyone in his position would probably have some memory of. Right. Because like he said, if he doesn't recall observing any boxes in the Trump residence at Mar-a-Lago, even though like 15 other witnesses did. Right. And he testified that there were probably two or three boxes still remaining at Mar-a-Lago, even though like 15 other witnesses did. And he testified that there were probably two or three boxes still remaining at Mar-a-Lago when it's actually like 25 or 30. And he also told the grand jury that the 15 boxes Trump returned to the National Archives were chosen entirely at random, which is also a clear lie.

Starting point is 00:46:02 Yeah. I mean, that is inexplicable. And you know, it's funny at the end, you see the grand jurors figure that out. So at the end of the testimony, the grand jurors themselves actually get to ask questions because technically this is a grand jury investigation. And at least three different grand jurors

Starting point is 00:46:20 ask him about that directly. There is one on page 64. I love this. The grand juror says, so you're instructed to take some of these boxes up to the pine hall. Yes. And he answers correct question, but you're not instructed to take any particular boxes. Answer correct. Question. You just pick up one box off the top? Answer, yes. Question, so you don't know what the contents of the boxes are you're taking? Answer, I do not. So it's so obvious. Like the, the grandeur is incredulous. They're like, what? This is, Yeah. And he says, he says eventually he just, after about 14 or 15 boxes, Trump said, that's enough.

Starting point is 00:47:05 Yeah, hey, that's enough. Just it's ridiculous. I mean, and that's why they, you know, that's why he's charged and not testifying. One of the reasons. Another difference between the FBI interview and the grand jury transcript is that he wasn't asked about pardons during the grand jury testimony. But in the FBI interview, he was told that if he was charged with lying to the FBI, the former president would pardon him when he won a second term in 2024.

Starting point is 00:47:35 That's interesting that they left that out. Yeah. I'm not sure what the thinking was behind that. Well, he's not being charged. That's not one of the acts of obstruction is offering him a pardon. So it's probably irrelevant to the case in chief, but it is an interesting tidbit. I think that's probably right. You don't really, you know, that you're not, it's not like a petty jury or trial jury where you're trying to, in addition to get the evidence in front of the jurors that they need to draw a conclusion of conviction, you're also trying to like,

Starting point is 00:48:09 you know, show that a guy's a bad guy, is involved in other sleazy stuff, things like that. That's not really quite the same concern in front of the grand jury. It's a different process, much lower standard of proof. Ah yeah, so we might hear it in trial, but not in the grand jury. Yeah, if they can get it in, which is another whole question.

Starting point is 00:48:26 Yeah, you'd have to you'd have to make sure you can bring that in because it's seems like a an uncharged bad act. You know, exactly, exactly. Yeah. So another standout moment in the testimony is when Nodda recalled that officials in the White House Office of Records Management would pick up all the papers Trump threw on the floor each time he would leave for the evening. That's such a visual.

Starting point is 00:48:51 What a dick. What a dick, right? Yes. Just going through, toss it on the floor if you don't want it, and then have them come in and pick it up and take it away. Yeah. It's like when I found out he drives the golf card on the green. It's like that behavior.

Starting point is 00:49:06 Exactly. It's just so shitty. It totally is. And it also shows that he sucked at handling classified information. Yes. Yeah, so this is throwing the documents on the floor. It segues perfectly into this next question, which is not

Starting point is 00:49:24 a good answer for Team Trump. The prosecutor says, in your time as a valet or specific related to packing up, did you ever learn about obligations related to or rules about the preservation of presidential records? And the answer is, from what I understood, it was just a matter of them coming, collecting all, you know, anything that he touched or had his name or wrote on, they were to collect for records. Question. And they were collecting that because those are presidential documents that belong to the American people or the government. Answer, I believe so. That's uncomfortable. I mean, if he ever ends up as a witness, it's wild. It's 180 degrees in opposition to Trump's theory of this whole case. Like they're all

Starting point is 00:50:15 mine. They're all personal records. They have nothing to do with the government. So yeah, Nauta kind of walks into that one. And then of course there's another interesting answer from Nauta about the lock on the basement storage room where he answers, yes, there was a lock on the door. I don't know if it was always locked because those doorknobs on there, they're kind of finicky. So I don't know if it was always locked. Yikes. I mean, this was a big point of contention for Trump where he was like, they were safe,

Starting point is 00:50:48 they were locked, they were locked away. Of course, of course. But this answer actually makes sense because we do know that when DOJ and the FBI went in to retrieve what they were going to be given as a result of the subpoena, they said, you got to put a better lock on that door. Yeah. They asked if they could go in and they were like, no. And that's when the ding, ding, ding. And they started then a couple of weeks later came the CCTV subpoenas for Pine Hall, for outside the basement. Yeah. Totally just like what happened with Clinton and Petraeus. So it's the same, like mirror image.

Starting point is 00:51:25 Yeah. Same, same. Well, that's interesting. Any other standout moments that you saw in this grand jury interview? I mean, it was pretty much mirrored his FBI testimony, but the lies were there, just blatant lies. Yeah. There was just one towards the end that I thought was also pretty significant. And it's where the prosecutors basically, they call him out for lying, having testified differently, lied to the FBI in his interview,

Starting point is 00:51:52 and then he's testifying differently about the same sort of questions here in front of the grand jury. So they start by saying, did you tell the FBI that the first time you had ever seen any of the boxes was when you moved them from the Pine Hall to the moving truck? Answer, yes. Question, but it's your testimony before the

Starting point is 00:52:12 grand jury today that in fact you moved boxes up from the basement to Pine Hall, right? Answer, weeks prior, yes. Question, so sir, I have to ask why would you have told the FBI that the first time you saw them was much later when in fact you saw them weeks prior? Answer, they had asked me if I had saw those boxes in Pine Hall. That's what I understood what they were asking at the time. Question, and when you told the FBI that you didn't know where the boxes in Pine Hall came from, that actually turns out not to be true, right?

Starting point is 00:52:48 Bingo. So you can't like, he's trying to climb out of it by saying, oh, I thought the question meant that this did I see him in Pine Hall? Yeah, but you also said this. Oh, good job, Grandjurer. Yeah. So his answer is, well, I mean, that could have been the boxes that I brought up or they could have been boxes from wherever they were inside his room.

Starting point is 00:53:13 Question, but to your knowledge, you've been the only one who's taken boxes from the storage room in the basement to Pine Hall in the residence, right? Answer, to my knowledge and from what I understand, the boxes that I moved, yes. So they pin him down as being not consistent in his official statements under oath on the record in this thing. And that is of course really not good either. So if you look at that in the bigger perspective of like, is it ever really, like what chance do we have of someday seeing Nauta as a witness in this case instead of a, instead of a defendant, like would he plead out and provide testimony? I think it's highly unlikely because he's got a terrible record of testifying. They've

Starting point is 00:54:06 called him out as having lied to them in the past. And these are all, this destroys your value as a witness. So he's kind of stuck going down with the ship as a defendant. Nicole Sarris Yeah. I mean, unless he's got some sort of other damning evidence that could be corroborated by a legit- Aaron Powell Yeah. And it would have to be huge. It would have to be a massive revelation that we're not aware of at this point. And that could always happen. Um, and of course, like you said, they'd have to, they'd have to be able to back

Starting point is 00:54:33 it up with documents, right? Like, Oh, I've been keeping text messages from you of Donald Trump asking me to flood the Gerber room or something. You're on board, my friend. I've got the P tapetape right here with me. It's a very relative situation. Yeah. So I doubt it too.

Starting point is 00:54:51 I think he's got to go down with the ship now. He's a totally, uh, uncredible witness. I agree. All right. That is that. And, um, why, you know, I'm assuming we're going to get more stuff released with redactions coming off the secret docket. We'll cover that when it happens. But right now is when I want you to click on that link in the show notes to open up that document filed by Jack Smith

Starting point is 00:55:16 just as we started recording this. It's called the government's response to defendant Walt Notta's motion to extend time. And here's how I go through these filings. Andy, first of all, I read the top, I read the date, United States Court, West Palm Beach. Okay, I know it's the documents case, government's response to Walt Notta's motion to extend time. And I always like to take a minute to read the introduction because everything that's in the body is kind of summarized in the introduction. So let's go over the introduction. It says, and this is Jack Smith, on April 10th, which gosh, is less than a month ago, the court set a May 9th deadline for defendant's expert

Starting point is 00:56:00 disclosures and notice pursuant to Section 5A of the Classified Information Procedures Act. So this is the May 9th SEPA Section 5 deadline. Three weeks later, on May the 1st, which is just a couple of days ago, Walt Notta moved for an extension of the deadline. Originally, Notta had counted on leveraging his counsel's vacation and trial schedule to delay the proceedings. But when his counsel's trial schedule excuse evaporated, ooh, Nauta was forced to devise a new basis that the government's discovery is insufficient for him

Starting point is 00:56:36 to identify the classified evidence he wants to disclose at trial and to notice any expert testimony. Nauta's latest basis for delay is both factually wrong because the government has afforded NADA technical support, indexing and material not required by the federal rules or provided in most criminal cases, and legally baseless. The shortfalls NADA alleges do not impact preparing a SEPA section five notice or a rule 16 expert notice.

Starting point is 00:57:03 So the court should deny his motion. So immediately my thoughts are what Jack Smith is referring to here is remember when Nauta wasn't able and still wasn't able to watch the CCT footage of him obstructing obstruction. Because they couldn't figure out how to use the laptop or something. Yeah. He was trying to watch it on a tablet. This, by the way, is CCT coverage recorded by the Trump Organization. Yeah. So they couldn't figure it out.

Starting point is 00:57:30 So the DOJ came in, gave him a laptop, gave him some IT, showed him how to start the video. Everything was supposed to be fine. He says he still hasn't been able to watch it. And so what they're saying here is, at first, you said it was because your lawyers were sick and you needed more time. And now because that excuse has evaporated, you want to fall back

Starting point is 00:57:48 on your BS CCTV discovery story that you can't figure out how to watch this, which by the way, none of it is relevant to SEPA section five. So you're like wrong six ways. So that's what I get out of the introduction here or the first summary paragraph. And then I scroll through, I see an introduction, I kind of skim it and then I see an argument and the procedural background, which is where they give all of the how we got to this point and then the factual background. And they talk about the August 8th search, processing boxes after seizure. That's how the government processed all that stuff. Preservation of which boxes

Starting point is 00:58:33 contain documents with classified markings. I read these headers so I can get it in my head how the order of this. The order of these court filings, particularly from the government, usually follows the same sort of template. The location of classified documents within each box, which is very interesting. I'm going to flag that in my mind and come back to that in a second. And then they have the discussion part. That's part C, saying, number one, Nauda already has an accurate record of the boxes in which the documents with classified markings were found. He already has all that, which is what he's saying that he needs. Number two, he doesn't need to know the internal document sequencing of each box in order to make a SEPA Section 5 disclosure. And then part two of this is the court's expert notice

Starting point is 00:59:19 deadline is not premature. And that's the Rule 16 where you have to talk about your experts. And then the conclusion. And I know a lot of people like to go right to the conclusion, but I like to get sort of a chronology of the layout of the filing before I get there. The conclusion, it says for these reasons, now this motion should be denied. That's the simple conclusion. And that sometimes doesn't give you much, right? So then I want to scroll back up particularly to that part that stood out to me, the location of classified documents in each box, right?

Starting point is 00:59:52 And since the Jack says, since the boxes were seized and stored, appropriate personnel have had access to the boxes for several reasons, including to comply with orders issued by this court in the civil proceedings noted above for investigative purposes and to facilitate the defendant's review of the boxes. The inventories and scans

Starting point is 01:00:10 created during the civil proceedings were later produced in discovery in this criminal case. Because these inventories and scans were created close in time to the seizure of the documents, they are the best evidence available of the order of the documents were seized. And that said, there are some available of the order of the documents were seized. And that said, there are some boxes where the order of items within that box is not the same as in the associated scans. There are several possible explanations, including the above described instances

Starting point is 01:00:37 in which the boxes were accessed since then, as well as the size and shape of certain items in the boxes. For example, boxes contain items smaller than standard paper, such as index cards, books, and stationery, which can shift easily, etc. So regardless of the explanation, he says, as discussed below, where precisely within a box of classified documents was stored at Mar-a-Lago does not bear in any way on NADA's ability to file a SIPA Section 5 notice. So I think that that's fascinating. There was also something that stood out to me as I was scrolling through here that the government was using those classified document folders.

Starting point is 01:01:24 Because what you do is you pull out the classified document and then you put a placeholder in there so that you can see where the classified documents were within the box. And the reason you do that is because it's important to know where the classified document sat in relation to other documents that weren't classified because that can show intent and willful possession. And it can it can give you a date, right? If you're wondering when a classified document got in a box, if it's sitting right next to a newspaper with the date on it, you can kind of sometimes make, you know, there were documents

Starting point is 01:01:55 in his desk that were dated that they were able to put into kind of a time range because of the other things that they were co-located with. Yeah. And so on page six, under section B of the August 8th search, I thought that that would be a very important piece of this filing. And it says in there, a few sentences down, if a box did not contain potentially privileged documents, the filter team provided the box to the investigative team for onsite review. And if the investigative team found a document

Starting point is 01:02:25 with classification markings, which remember Nada says he doesn't know what that looks like. Of course. It removed the document, segregated it, and replaced it with a placeholder sheet. The investigative team used classified cover sheets for this purpose until the FBI ran out

Starting point is 01:02:41 because there were so many classified documents. At which point the team begun using blank sheets with handwritten notes indicating the classification level of the document seized. The investigative team seized any box that was found to contain documents with classification markings or with presidential records. And that jumped out at me as well. There were so many classified documents during

Starting point is 01:03:05 the August 8 search that they ran out of placeholders. Yeah. I mean, and of course leave it to us to not bring enough tools to the fight, but I'm just being picky. Well, you couldn't have known that that would not you personally, but how was the FBI to know? I mean, they only got 38 back, they had evidence that there was additional classified. And what this tells me is that the FBI was not prepared to find that much classified when they went back for the search. Yeah, I'm sure that's the case. I'm sure that's the case. I mean, okay, I'm not sure, but

Starting point is 01:03:39 I'm making a pretty confident guess. They didn't roll in there thinking that they would get what they got. Yeah. And that's kind of astounding. And the fact that there was a finicky lock on the door the whole time. Also very scary. In addition to things being stored in the bathroom and on the stage at the ballroom and in the spilled over boxes and closets, the fact that he threw stuff on the floor

Starting point is 01:04:04 and wanted people to pick it up. I mean, it's all so, so bad. And this is all going to be presented in the case in chief in 2046 when we have trial. There you go. There you go. So that's how I go over a filing. I'm going to probably write this up, Andy, in more detail at the MuellerSherot.substack.com. So you can look for it there. Again, free to subscribe. So go check it out. But that is how I go through these court filings. And now that I've skimmed it, I'm going to

Starting point is 01:04:31 give it a very thorough read and I'm going to write something up on it and that will lock it into the brain. So when people say, how do you keep all this stuff in your mind? That's how it goes in. That's how it goes in. And it doesn't come out. I can't remember why I came in this room, but I can remember that that hearing on the was March 14th on the motion to compel this covering. Outstanding. See, the rest of us don't care that you can't remember the other things in your life. We only care that you can remember these things and you do it well.

Starting point is 01:04:59 So there you go. It's all good. Well, thank you. All right. We just have some quick listener questions and another note, I have a question for you about the cheese, about Ken Chasbrough, but one last quick break, we'll be right back. Bum bum bum, ba da da da da da dum.

Starting point is 01:05:14 Ba da da da da da da da dum. All right, everybody, welcome back. There's been a minute order entry, everyone, for a telephone, a telephonic conference hearing that Judge Cannon has scheduled for the 8th of May, one day prior to the SEPA Section 5 deadline, which we don't have a ruling yet on whether or not she's going to grant more time for that. Again, she's painted into a corner on that. We've talked about it last week because Trump wanted June, Jack wanted March, she said May 9th, and she was well aware of the New York trial when she set the May 9th deadline just a few weeks ago. But

Starting point is 01:05:53 there's a minute order entry. This meeting on May 8th by telephone, 2 PM. The party shall be prepared to discuss specific grand jury material implicated in this proceeding in light of the special counsel's sealed status report 483, which includes updates to pending disclosure proceedings in the U.S. District Court for the District of Columbia, pending sealing redaction arguments related to grand jury material attached to or quoted in defendant Trump's motion to dismiss based on prosecutorial misconduct and due process violations and his motion for relief related to Mar-a-Lago raid and unlawful piercing of attorney-client privilege.

Starting point is 01:06:31 So it's not an in-person hearing. It's a telephonic hearing for some of these redactions on these exhibits and additional motions that are still on her secret docket. It's all to be dissected at future shows. Yes, yes. Look for them. Look's all to be dissected at future shows. Yes, yes. Look for them. Look for them to be dissected. This stuff is going to be parsed out to us over weeks and months.

Starting point is 01:06:53 Yes. Now, Andy, before we get to the listener questions, I want to ask you about the new search warrants. I thought they were subpoenas. They're actually search warrants that were executed by the Michigan attorney general to get hundreds of pages of documents from Ken Chesbrough's secret Twitter account. Remember Badger Pundit? Yes.

Starting point is 01:07:10 You'll recall he was cooperating with multiple state investigations after having pled guilty in Fulton County, but there was some public reporting about a second Twitter account that he had and the posts on that Twitter account contradicted what he told the state prosecutors. And this week, Michigan executed search warrants for communications associated with that account, direct messages, Gmail accounts, etc. Now, as an unadited co-conspirator in the Jack Smith case, we haven't heard anything about him cooperating or not cooperating with the Jack Smith case outside of the fact that he asked for the permission to travel to DC when he was, when he pled guilty as part of his conditions for his guilty plea in Fulton County. But we haven't heard anything further on that. Yeah.

Starting point is 01:07:56 How could this new information impact the federal investigation? Yeah. So I think, I mean, fairly obvious how it impacts Michigan. It sounds like they're doing their homework now to see, they're investigating whether or not they should be charging him. So his bid for immunity across the board is falling apart. And this is just Michigan going out and actually collecting the receipts, essentially, of what we heard about with that other fake account. On the federal side, for him to officially cooperate on the federal side, he would have to come in and plead guilty to something and then cooperate. And then ultimately they delay

Starting point is 01:08:37 sentencing him on what he agrees to plead guilty to until after his cooperation is over. You can do that and keep it sealed so that typically you do that so that the defense and co-conspirators don't know that someone has cooperated and is providing evidence to the feds. So it's possible that that's happened here, but honestly, my guess, and this one's worth what you paid for it, my guess is that this special-

Starting point is 01:09:04 The podcast is free. Yeah, yeah, for sure. My guess here is that the Jack Smith team knows about this stuff and has had these documents for a long time. This is like Federal Investigation 101. You just blanket subpoenas and 2703D orders and things like that out to get exactly this. Like people, the history of people's communications, their personal. But we didn't even know about this second secret Twitter account until the public reporting came out. At least Michigan didn't. And I also think that this might give Arizona a second look since he cooperated there and is an unindicted co-conspirator.

Starting point is 01:09:41 Yeah. So I would guess that they've had this stuff at least since then, if not before. They're pretty good about knowing about these things before we find out about them. I wonder if Jack Smith had it and poked Michigan and Arizona and said, hey, we got these things. Do they usually do that? You know, I'm trying to be nice. We don't, we're not really known for being very giving. You know what I'm saying? Like, I'm trying, you know, I'm trying to call, call it out here. Well, it can leak and it can hurt the investigation. And it kind of seems like stuff you want to keep close to the vest if you had it and someone else did it.

Starting point is 01:10:23 The default rule is no, you don't share anything from your investigation, especially while it's ongoing and especially when it's as big a deal as this. So I feel like that's probably low probability outcome there. But there's all kinds of reasons why they would want this information. They could just subpoena him, you know, to testify. Let's say they were going to trial. They could try to force him into being a trial witness. Now he could come in and take the Fifth Amendment and not provide any information. Of course, then they'd have the option of immunizing him then just to get his testimony.

Starting point is 01:10:56 Or they've already decided that they're going to indict him and he's a shit witness. They could be building their case against him so that they can indict him at some point, either for the purpose of turning him into an official cooperator or just to indict him for being a bad dude. Maybe they're planning on doing that someday. Or it could be they expect he'd end up as a witness for the defense in some respect. And so they want to assemble all this information so that they have it to cross examine him on.

Starting point is 01:11:26 Yeah. And I tell you what, it's good to know if Chesbro did lie to prosecutors in Michigan and Arizona and Wisconsin, it's good to know that now for the feds because then maybe he gets taken off the table as a potential witness. Exactly. I mean, that is like the worst baggage that you can bring off the table as a potential witness. Exactly. I mean, that is like the worst baggage that you can bring to the table as a witness, having lied to prosecutors in essentially the same case about the same interrelated facts. So yeah, again, it's like we were just talking about with Nauta, like for cheese bro to really come out of the shadows as a strong witness for the government,

Starting point is 01:12:05 man, he's gotta have something huge and it's gotta be corroborated. The value of whatever he can offer has gotta be so big to overcome what he's gonna cost you in baggage. And remember, the baggage question for any witness is beyond it is immediately relevant in that

Starting point is 01:12:25 it undermines the witness's testimony and all that sort of stuff. But it also spills over to the case in general. If you build your case around witnesses who are terrible, you're very unlikely to get a jury verdict in your favor. The jury, I had a case just like this when I was an agent and it was built on the testimony of two cooperating witnesses who I had convicted in a much bigger, more significant case and they were horrible people. And the defense attorney exposed that very well on their cross-examination.

Starting point is 01:13:01 And we lost the case, we got an acquittal. And I think to this day, I'm pretty sure from what the comments that the jurors made to the judge, they just thought that these two people were just so disgusting. They weren't going to go along with, you know. Yeah. Unless it's like a strictly documents case where like the trial right now with Michael Cohen, this is a documents case. So he's just there to corroborate the documents or Manafort. I mean, their star witness was Rick Gates and everybody hated him. I almost swore. But they did not, he was not a credible witness. He stole from Manafort millions of dollars. He cheated on his wife four times, awful, terrible witness. But the documents are what

Starting point is 01:13:44 led the day. And that makes a difference probably in Mar-a-Lago, but the documents are what led the day. And that makes a difference probably in Mar-a-Lago, but not necessarily in January 6th, where it's more of a subjective case and less of a documents case. Yeah. And like, I think Cohen is a great example. We'll see how it works in the Cohen case in New York. Whether or not, I mean, he's going to get beat up on cross-examination, whether or not that totally undermines his testimony, and then whether or not that beat down poisons the rest of New York's case,

Starting point is 01:14:11 we'll have to see. It's very clear that the prosecutors are being super proactive about questioning all these other witnesses that we've seen so far. Any of them who know Cohen, they spend a lot of time talking about how terrible Cohen is because they want the jury to hear that again and again and again and again so that by the time Cohen actually shows up, it's kind of passed. They already hate him. Yeah. And they're not going to be shocked by it, right?

Starting point is 01:14:34 No, and he's really there to just corroborate these documents. Exactly. It's the whole take the sting out of it, right? You always bring out the bad news first so that they don't hear it from your opponent. Yep. So anyway. Yep. Drawing the sting. We called it on Mueller Street, but we called it lubing the sting.... bring out the bad news first so that they don't hear it from your opponent. Yep. So, anyway. Yep, drawing the sting. We called it on Mueller Shoe, but we called it lubing the truth.

Starting point is 01:14:48 But yeah, that was it. That was the phrase. All right. Let's go to listener questions again. Oh, I'm sorry. There are three links in the show notes. You're going to get that filing from Jack Smith. You're going to get the link to RSVP to Tuesday's live event at the Schar School at George Mason

Starting point is 01:15:06 University and the link to send a question. Andy, what do we have? All right. So as you would expect, a lot of questions about our diatribe on the Supreme Court last week. I started to feel bad. Like maybe we just scared the crap out of people, but you know, it's a tough situation. So is what it is. One good. I picked one here because it raises a couple of issues. It's a little bit of a longer question, but here it is. It comes to us from Gareth from the UK. And he says, greetings from the UK. Love your work. Our politics here has pretty much followed yours in an utter s show.

Starting point is 01:15:43 So I listen and hope that if things turn around over there, maybe we just might manage it here. On the Supremes and their hypotheticals, couldn't a POTUS declare any individual a terrorist and then give an apparently legal order to the military to kill them? If the order came with a legit looking classified intelligence report from the Oval Office, how would the hypothetical SEALs know that it was an unlawful order? So this goes back to the, some of the hypotheticals they talked about in the argument,

Starting point is 01:16:13 the justices were saying like, what are the, what ensures that this won't happen, right? Like how do we- Right, that a president can't order the military SEAL Team Six to assassinate a political rival. Yeah, and coming, that's everybody's favorite example of a president breaking the criminal laws. And one of the assurances, they said, well, you know, the military won't execute a clearly unlawful directive from the commander in chief.

Starting point is 01:16:38 So Gareth's question is like, what if they don't know it's illegal? Wouldn't they just go through it anyway? And then he says also for all the talk about political rivals, isn't it a greater risk that a president who was free to break the law might threaten the courts, including the Supreme Court justices? So the question really raises a lot of issues that people seem to really index on. And I think, you know, I don't really have, I think the legal arguments have all been made and we've gone over those in detail.

Starting point is 01:17:12 I think it just kind of highlights the seriousness of the overall issue. And that is if the court finds some degree of immunity, and I don't believe it will be absolute immunity, but whatever immunity it is, cuts away from the accountability of a president. You get closer and closer. As big as that immunity gets, all the way to absolute immunity, you ultimately get a presidency that is unbound, that is essentially

Starting point is 01:17:47 an autocracy, a presidency above the law. Yeah, what Katanji Brown Jackson warned, turning the Oval Office into the seat of crime in the United States. Exactly. And I do think that there's actually a good check on this though, Andy, because a lot of people wrote in and asked us us and not just to this show, but the Daily Beans, well, why hasn't the Oath Keepers organization or the Proud Boys organization been designated a domestic terror group? And the reason is, is because by law, we can't designate

Starting point is 01:18:21 domestic groups or people as terrorists. That's right. So the check here on this for this specific question is Congress. Congress would have to pass a law allowing a president to declare someone a terrorist, a domestic person, because the hypothetical is a political rival, so I'm assuming that they would be domestic. Domestic, sure, yeah. And right now

Starting point is 01:18:45 you can't do that. Now that doesn't mean he won't try, but the courts won't allow it to happen if it does go up to the courts. So that would be what I would say would be the check here is that Congress would have to pass a law allowing a president to declare a citizen a terrorist. Yeah, I think that's right. The fundamental problem though, is each one of those theories relies on the current status. And if we have a president, if we elect a president who is kind of all in

Starting point is 01:19:23 with this unitary executive theory and believes that they are essentially above the law, unbound to the law. I don't think it's beyond the scope of possibility that that president would just begin to do things that were likely clearly unlawful and maybe could be unwound by the courts eventually. But in the heat of the moment, you know, a president who says- Takes a long time, yeah. Draft me up an executive order.

Starting point is 01:19:53 Or an office legal counsel memo. That suspends the, suspends habeas corpus in the case of individuals determined to be a danger to national security and authorizes their temporary detention pursuant to this executive order. Now that would probably, if subjected to normal judicial oversight, that would be dissected and thrown out as unlawful, but that takes a long time. And if you're unbound by the law, what do you care? What do you care what the judges say?

Starting point is 01:20:28 Yeah, so then the check is whoever's working at DOJ, but if you've got nothing but yes, man, at the DOJ, then that goes away. So then the ultimate check on executive power, as said by Judge Ludwig, is the vote. The vote. The people vote. That's the ultimate check.

Starting point is 01:20:44 We have to vote for people who won't do things like this. Yeah. So Jack Smith ain't going to save us. Never was. It's not his job. It's not DOJ's job. It really comes down to choices. So anyway, that's our question. As I said, I think in 2018, we are the Mueller's that we've been waiting for. We were approaching that midterm election. Yeah, it's nice to be seen. Do we, and I mean like all of us, the whole country, do we have the perspective and the common sense and the will to make good choices, choices that really this whole endeavor is

Starting point is 01:21:24 going to rely upon. Yeah. Well, good question. Thank you for that. And I love that we get questions from abroad too. Keep sending them in. Again, the link is in the show notes. I hope you enjoyed the show today. I know we went over a little bit. It was a quiet week, Andy, and we pulled out a 90 minute show. We did all the time. So I look forward to seeing everybody at Sharr School on Tuesday. Especially I get to meet Brian Greer in person, our SIPA expert.

Starting point is 01:21:49 Secrets and Laws on Twitter. I get to finally meet him in person. That'll be fun. And it should be a great event. And of course, if you can't make it to that event, Andy, you and I and Pete Struck and Glenn Kirschner will be at the Hamilton in DC on what? August 16 for another live show. So we'll see you there if you can't make it to the Sharr School on Tuesday. Thank you so much. Any final thoughts before we shut it down for the day or for the week?

Starting point is 01:22:16 No, just sitting here with bated breath to see what happens next week because it's always an adventure. Yeah. And I'm not holding my breath for the Supreme Court to do anything for another two months. End of June, first week of July, two months from now. Totally. Those guys are in no rush. No, they are not.

Starting point is 01:22:32 All right. Thank you so much, everybody. We'll see you next week. I've been Alison Kielg. And I'm Andy McCabe.

Jack - Episode 75 | Chock Full of Run-on Sentences

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