Jack - Episode 76 | Live from The Hayden Center at the Schar School of Policy and Government

Episode Date: May 12, 2024

Today we bring you our live panel discussion hosted by Anna Bower of Lawfare and featuring myself, our SIPA expert, Brian Greer, and of course, Andy McCabe. In this show, we'll be going over the latest trial postponement from Judge Aileen Cannon, as well as an overview of where we are now, where we started, and how we got here.Plus, audience questions!   Thank youAnna Bowerhttps://twitter.com/AnnaBowerFilm Vision Mediahttps://www.filmvm.com/Michael V. Hayden Center for Intelligence, Policy, and international Security at George Mason University's Schar School of Policy and Governmenthttps://haydencenter.gmu.edu/Brian Greerhttps://twitter.com/secretsandlaws 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 episode 76 of Jack, the podcast about all things special counsel. It's Sunday, May 12th, 2024. And today we bring you our live panel discussion hosted by Anna Bauer of Lawfare and featuring myself, our SIPA expert, Brian Greer, and of course, Andy McCabe. In this show, we'll be going over the latest trial postponement from Judge Aileen Cannon, as well as an overview of where we are now, where we started, and how we got here.

A big thanks to Film Vision Media and to the Michael V. Hayden Center for Intelligence, Policy and International Security at George Mason University's Schar School of Policy and Government for hosting this event. We even have a Q&A with guests and students following our discussion.

I hope you enjoy it. Good evening, everyone. I'm Mark Rozelle and I serve as the Dean of the Schar School of Policy and Government here at George Mason University. And we are very proud to host the Michael V. Hayden Center. We have a very special event this evening to close out another very successful academic year of Hayden Center programs. It's great to see all of you here this evening.

And in fact, we have over 700 persons signed up for both the in-person and the virtual participation in this forum. And those of you who are here in person, you have the added bonus of a nice reception after the event with our panel members and several of our Schar School scholars. The Hayden Center is a jewel of George Mason University. The quality of these programs is among the best that you will see in higher education and we do it with leading policymakers and thinkers who are committed

to addressing the most challenging public policy issues of the day away from the often overheated debates and discussions in our national politics, so that we can develop informed understandings of key issues. This kind of analysis we know is needed now more than ever. When the Schar School was founded back in 2016, our benefactor Dwight Schar expressed his hope for programs such as these that are nonpartisan, non-ideological, about good government and good public policy

wherever it comes from, regardless of party or ideology. And with that in mind, the Hayden Center was founded six and a half years ago by former NSA and CIA director and Sharr School Professor Michael V. Hayden. The Hayden Center has been a prominent voice in explaining and demystifying intelligence and security issues. If you missed some of our past programs,

we have all of them on the Hayden Center website and on our YouTube channel. So thank you everyone for attending. I hope to see you at future events here. And I now welcome to the stage the director of the Hayden Center, Larry Pfeiffer. Larry. Hey everybody, really glad to see you all here tonight. I know we've always got competing interests, particularly when the weather is as beautiful

as it was today. So thank you for coming. General Hayden unfortunately couldn't be with us tonight. He had a competing schedule issue that he had to deal with. But he did ask me to read this statement. I'm sorry I cannot be with you all this evening. Tonight's event should prove to be very interesting. I have gone on the record with my deep concern about the alleged mishandling of classified

material by the former president. As outlined in the indictment, the behavior is inexcusable and the delay in resolving the matter is very corrosive to our system of secrets. I look forward to hearing what Alice and Andy, Brian and Anna have to say about that. So Mark gave you a great introduction about what the Hayden Center is. I would just note for you all that tonight's event is being live streamed on YouTube,

but it's also being recorded. So just be cognizant of that if you have any concerns about being caught on tape. The Hayden Center is also on social media. We're on Twitter, we're on LinkedIn, Facebook, Threads, Mastodon, Blue Sky. If you know of any other great social media sites we're not on, let me know after the event.

You will see on the screen we got some great handles that are available on a number of those sites. If you feel like live tweeting the event tonight, those could be some great handles you could cross reference for us. So thank you for doing that. There'll be time for questions from the audience tonight. That is always the best part of our events, I think.

We ask you to line up at the microphones on the opposite aisles here when that time comes. Anna will let you know when that time is getting ready to come. When you do come to the microphone, please let us know who you are. But if you wanna remain anonymous, that's okay too. Keep your questions brief,

keep them in the form of an actual question. And for our virtual audience, use the live chat function of YouTube to ask your question. Following the event, there's a great reception Mark mentioned. We hope to see you all there. It'll be in the adjacent multi-purpose room

across the foyer here, so please do join us for some time there. By way of introductions, tonight we're excited to bring you this rare live presentation of Jack, a special counsel podcast. I know there are many fans of the podcast in the audience here. This podcast looks at the various legal charges

brought by the Department of Justice Special Counsel, Jack Smith, against the former president, as well as the other trials he faces in New York and Georgia. Of keen interest to the Hayden Center, and many of you who work in the intelligence and national security business, are the charges brought against the former president

regarding the retention and mishandling of national defense information at his residence in Mar-a-Lago. So joining us are the co-hosts of the podcast. First off, Alison Gill, who is the second one on the end there. (*audience applauding*) Alison is the founder of MSW Media,

a podcast network that's focused on news, politics, and justice. It has included the first podcast for which she had received a Webby Award and for which she received a lot of attention called Mueller, she wrote. That was succeeded by the podcast we're doing tonight, Jack, a special counsel podcast.

She has another weekly podcast called Clean Up on aisle 45 that looks at the Biden Department of Justice and the intelligence agencies, and that's co-hosted by Peter Stroke of former Department of Justice, Department of Justice? FBI, FBI fame. I know we don't. Don't let any, Andy will tell you that even though

the FBI belongs to the department, they don't really belong to the department of justice. The twain should meet. Yeah, and then there's a daily podcast she does with Dana Goldberg called The Daily Beans Podcast that serves up social justice, politics, and news. Allison's got an incredible resume that we could probably spend all night talking about,

but just some highlights here. She is a US Navy veteran. She spent time with Sprint, the old telecommunications company. She was involved in hotel and restaurant management. She's worked for 13 years at the Department of Veterans Affairs. She is an award-winning stand-up comedian.

And very importantly, she's been a voice for victims of sexual assault in the U.S. military. Secondly tonight, we have Andrew McCabe, Andy McCabe there with the guy in the middle. For those not familiar with Andy's former Secondly tonight we have Andrew McCabe, Andy McCabe there in the, there's a guy in the middle. For those not familiar with Andy, he's a former acting director and deputy director of the Federal Bureau of Investigation. Served in several key posts in his 20-year career there.

Many of you see him now on CNN where he serves as a senior national security and law enforcement analyst. And then important to us here at the Hayden Center and the Schar School, he's a distinguished visiting professor and we've got students in the class who've had the big benefit of attending his classes. Here at the end, we have Brian Greer. Brian is a former attorney

for the Central Intelligence Agency and a member of Central Intelligence Agency's Senior Intelligence Service, which is the high rank executive rankings of the agency. Some of the positions he held, he served as Chief of Staff to the General Counsel, Caroline Crass. He served as Deputy Chief of the Litigation Division at CIA. He served as an operational attorney in the Weapons and Counter-Proliferation Mission Center and their East Asia Division.

You can ask him later on what an operations attorney does. He probably won't tell you. You can find him today on social media, Secrets and Laws, offering some great informed commentary on the goings on of the various court cases, particularly the classified documents case. And he's a frequent guest on this podcast, which is why he's here tonight. And moderating for us tonight is Anna Bauer. Anna Rush. Anna took the fastest train on the East Coast to make sure she got here in time because she was spending the morning and early afternoon

at the Donald Trump trial in New York City. So she actually left Stormy Daniels to come and be with you tonight. Anna is a legal fellow and courts correspondence for Lawfare, which is another great website that hosts podcasts, including a podcast called Chatter by David Priest, one of our senior fellows on the front row. She's a 2022 Harvard Law School graduate. She got a bachelor's in law from the University of Cambridge.

She was a Fulbright scholar at Andalou University in Turkey and has spent time serving in the court system in Georgia. So with that, I will turn it over to Anna to begin the conversation. Thank you all for joining us. Thank you so much. Thank you so much. I, you know, it's not every audience that I would miss

the cross-examination of Stormy Daniels for, but I am so thrilled to be here and thank you, Allison, for having me here to moderate this discussion. I am a long-time listener of Jack and very excited to be here, but what I wanted to start with is kind of the story behind Jack because this is something even though I've been on some of your podcasts you know I know you I I know what the

podcast is all about I actually don't know how it is that you and Andy became connected on one hand we have you you know you you had a long career in the Department of Veteran Affairs you You also did work in comedy. And I think that you started your first podcast, you know, podcasting out of your kitchen. And then on the other hand, we've got the former Deputy Director of the FBI. So, how did the two of you connect

and what's the story behind Jack and what did you guys wanna accomplish with this podcast? It blows my mind too. I remember I got a text from Harry Littman, former, I think, assistant deputy director of the Department of Justice or something, and he needed to get your phone number. And I had it.

And I... Damn you, Harry. Yeah. And I had it. And I... Damn you, Harry. And it just, it's, it's, I never imagined myself being here. So we call it the kitchen table days. When I started the Mueller She Wrote podcast at my kitchen table with some $99 microphones and a prayer. And we started covering the Mueller investigation in 2017.

Our first episode came out when the first indictments came out against Manafort and Gates. Then we did an eight part series. We had something called the MSW Book Club and I did an eight part series on the threat by Andy McCabe and we largely credited, we were just like three, like, he started the whole thing. He went to Rosenstein and said,

you gotta get a special counsel. And he was crying, not him, but Rosenstein. And he did and he saved it, he preserved it and all that stuff. And so it was very odd to then be able to have Andy on that podcast to talk about the book. When then we did a whole episode about Jill as well. And I was invited to a book talk.

I think it was May of 2019. Yeah, 2019. And it was brilliant to be able to hang out and meet with him. So then Mueller investigation ended, that went away. And new special counsel was appointed to investigate the same fellow. And I got tons of messages.

You gonna do Jack she wrote? Or you know. Mr. Smith goes to Washington. Everyone had their ideas for the name. And I was like, no, I'm no, wait. And I called Andy and I said, do you wanna do a podcast with me? He actually has a funny story about asking your wife.

Yeah, so, you know, that's the person I ask everything of. So, Allison called and I was like, wow, that actually sounds kind of fun. Like, why not? I binge on all of this information anyway, just out of interest and the off chance that someone on CNN will want to talk about it. So, I thought, yeah, that might be kind of cool.

So I went up and talked to Jill, my wife, and she was at first like, oh my God, no. You're like, you don't need another way to be like, out there talking about this stuff and like, you know, drawing fire and everything else. But yeah, pretty quickly she warmed up to the idea. I was like, hey, it's not gonna take a lot of work and we'll just do it for a couple weeks.

These things are gonna go pretty quick, I think. These trials will go quick. And here we are, what, 75 or 76? 75. 75 episodes later, one a week, 75 weeks in, and we're not close to a trial yet. So that part didn't turn out so good, but it's been amazing.

I mean, it's been a great adventure, really because two reasons. One, I have an amazing partner. I spent my entire career in the bureau working with a partner and working closely with colleagues and so I know the value of being on a good team. And this is a great team. And Allison and her staff who helped produce the show are amazing.

And there's no one in this country that knows these cases, these dockets, the motions, everything, all the legal nitty gritty stuff as well as Allison. So that was the first thing. And the second thing is she has this incredible audience of devoted listeners who are informed and really seeking more information. Wanky information too, they love it. And I love that so much.

And then when I, because I had been following, because I don't know anything about SIPA, and there was a lot of that going on, and I was following Secrets and Laws over here on Twitter and getting all that incredible information, and I said, Andy, what do you think? We should have him on. We should have an under seal segment

with the old CIA guy. And he's like, yeah, definitely. And so. Yeah, I'm a lawyer, which means I know when you need a lawyer. And we needed a lawyer who knew this stuff way better than I did. And we found him. Yeah, so we roped Brian in. What do you think?

You're regretting your decision to come on a couple of times. I hope not. I don't regret it at all. I took a lot of inspiration from in the dark days of COVID, when people started to appear on Twitter who were public health experts and started explaining all this stuff to people in 20 or 30 part Twitter posts.

And then, you know, that was very informative, took a lot of comfort in that. When this case broke, I thought, I could kind of do something like that with a more boring topic of CIPA. But I'll see if people are interested and started doing that. And then, yeah, Allison started becoming, I think, my biggest proponent. And and being on the podcast is great.

It is such a great audience of I don't know why y'all are so interested in SIPA. But there's other live podcast tapings about like pop culture celebrities. But glad you're here and super happy to be part of the podcast. Hey everybody, thanks for listening to the Jack podcast and our live panel. Up next, we'll cover the Mar-a-Lago indictment, but we do have to take a quick break. Stick around. We'll be right back. And we will get to SIPA, but first I want to rewind to about, I don't know if it was maybe 70 something episodes ago, whatever it was, when all of this first started, the

first indictment that was handed down or up, I'm not sure if indictments are handed down or up, I think up maybe, but so the first indictment that was handed up in the Southern District of Florida, the classified documents case, this was last June, it's almost been a year since this case started, and I want Andy to see if you can just kind of give us a little bit of a recap of where we've been in that time. You know let's zoom out a little bit and just get a sense of what's happened.

Yeah absolutely so before I do that I just first have to say hello to my current and former students many of whom are, and encourage you that when you are asking good but not hard questions towards the end of the program, the grades for this semester are still not finished. So keep that in mind. Okay, so the documents case, I think maybe it'll be helpful for me to talk a little bit about how we got to the search warrant,

and then I'm gonna hand it off to you to cover more of the kind of docket heavy stuff. But yeah, of course, we've all heard the stories of the chaos and kind of confusion and lack of preparation that went into Donald Trump's departure from the White House. He was notoriously not really interested in planning or hearing about anything connected to actually having to leave. So things were left to the last minute. And we also know now from several witnesses

that I can't say if this is, I assume this is different from other administrations, but I can't say that for sure. But we know that he had a habit of taking a lot of things up into the residence documents and things like that. We know that they had a habit of taking a lot of things up into the residence, documents and things like that. We know that they contained those in boxes that he stored in his bedroom, basically where he slept. So there were numerous boxes full of all kinds

of different things in there. I don't think that's pretty, I don't think that that was typical. But my point in raising it is because now you have potentially important documents, presidential records, maybe classified stuff in the residence. And the residence is the place, that's the focus of like pack-up day on the last day of the administration.

And as with many administrations, everything, it sounds like everything that was there was either boxes were just taped up or they were placed inside of other boxes and it was all shipped down to Mar-a-Lago. We now know they probably had somewhere in the neighborhood of about 100, maybe 90, we've heard different guesses because no one's absolutely sure as to how many boxes went down.

But they were stored for quite some time in different places around Mar-a-Lago. We have photographs of that in the indictment. In the ballroom, in the bathroom, ultimately ended up in a storage room. He was then contacted, and his representatives were contacted by the National Archives, who suspected that there were materials missing,

and that began a contentious back and forth in which the archives tried to take possession of those presidential records, which are the property of the archives tried to take possession of those presidential records, which are the property of the archives and all of us as citizens. And he resisted that pretty, in a pretty determined way, despite having a lot of advice from advisors and lawyers

that he should probably just give them back. Well, a hundred times he was, just give the stuff back and it'll be okay. Like over and over and over and over and over again. Surprisingly, he dug in. So in January of 21 or 22, 22, January of 22, I think January 17th of 22, after he had reviewed many of them personally,

he sent back about 15 boxes to the archives. When they received them, they reviewed them and determined there were many classified documents in that batch. So they referred it to their IG. Their IG referred it to the Department of Justice. That's the normal process that every agency goes through when they think they've lost some classified material.

It's called a 811 referral, right? And the DOJ gave it to the FBI to investigate. Lot of questions about how that was done, we can talk about that later. But nevertheless, due to some reportedly significant reluctance in the FBI to pursue a search warrant, again, after many calls and requests and all that sort of thing,

they decided to use a grand jury subpoena, a much less aggressive approach to get the documents back. He was served with that subpoena, get some interaction with DOJ over that. They finally went down to Mar-a-Lago in a fit of peak to recover what they could. They were given an envelope of maybe two dozen documents. 38.

38, there you go. You see who's got the memory there. That's so sad. I don't know where I was yesterday. Yeah. But I know there were 38 classified documents in a double-taped red well down below. They were shown the rest of the boxes in the storage room,

but not permitted to go in there and go through anything. It was an odd choice on their part. And so after that, they started working on their search warrant, and of course, that was executed on August 8th, and ultimately led to the indictment. Yeah, about, gosh, many, many months later, after that search warrant, once the indictment came down,

and many of us were wondering, why Florida? Any of us are still asking that question. We were wondering, is there gotta be a way to do this in Bedminster or DC or somewhere where Eileen Cannon is not? But no, that's where they brought it. And I think at the time we were saying, well, it's such an open and shut case,

it doesn't matter who the judge is. Hoo boy. So what's been going on just in general is she early on said, no redacted stuff allowed on my docket without my permission first. So if you have anything with a redaction, you have to email it to the Trump lawyers and to Eileen Cannon's email of the court, and she has basically created a secret docket.

And then, and I think personally, I think the goal here is that when you've got a 27 page or a 24 page motion to dismiss on vindictive and selective prosecution, let's say, that's 24 pages, and then you've got 150 pages of exhibits which need to be redacted, which has to be litigated. And of course Judge Cannon wants a hearing about it. And that all has to happen before it even goes on the public docket.

So we've got what, 13 or so motions to dismiss with hundreds and hundreds of pages of exhibits that have to be litigated. And we just today learned that she set hearings now for each for a lot of these. Now I don't think for all of them, but for a lot of these motions that would in normal course just be looked at and dismissed.

And I mean, they're used as a placeholder for potential appeals later, right? But she just came, you know, the news today was Judge Cannon indefinitely postpones the trial. She did that when she took the case. But it's official today. And more, I think, newsworthy, and maybe, Brian, you can talk about this,

because originally the SEPA Section 5 hearing was set for May 9th. Nauda de Oliveira, Trump had been asking for it to be postponed because of the New York trial. She set the May 9th deadline on April 10th. We were well aware of the trial. And we were all like, there's no way she's gonna postpone the May 9th thing and she did.

And she put it into June, middle of June, which is where Trump originally wanted it. And then she set up a hearing for the motion to compel, like several of the different motions going all the way into July. And absolutely unnecessary, but very good delay tactic. It's not appealable, so that's kind of where we're at. One quick summary of where we are.

The purpose of all this pre-trial litigation is to get ready for trial. From the prosecutor's perspective, literally nothing has been done so far that is going to shape what is going to happen at the trial. It's been, we're still towards the end of discovery, now 11 months later, not quite done with discovery

because there's still some outstanding. The hard stuff is all ahead and we haven't even gotten to that part. Right, and let's get to that. And I, but I want to start with, because people have heard this term SIPA and they might be thinking, what is SIPA? Why should I care about SIPA?

But it's really important in this case that involves classified documents. It raises the question when you have a case involving classified documents or classified information, there is this question of how can the prosecution prove the charges that someone actually willfully retain national defense information that was classified information without in open court actually revealing those secrets.

And one way that that is dealt with is through the Classified Information Procedures Act. So Brian, as our SIPA guru, can you tell us just what is SIPA, where are we in the process and what is to come as you just kind of alluded to? Again, apologies that I'm talking about SIPA, but you can. So, the Classified Interspiration Procedures Act.

If you believe that we're living in a simulation with like lazy screenwriters, one thing that they threw in is in this statute that's now critical in the prosecution of former President Trump, the author of this statute was none other than Joe Biden. So what he did or didn't do in 1980 is now going to directly impact whether he is reelected. See?

Yeah, see? They're always thinking ahead. Anyway, he authored in 1980, it's proven to be a very good statute for the government. And I would say for the defendants too, in terms of this provides an orderly process for resolving these cases. It was designed to prevent the problem of gray mail,

where defense counsel could basically threaten to disclose classified information at trial anytime there was a national security prosecution. It provides, if you've listened to the podcast, I talk about the funnel, and I sit there in my bedroom with no camera and do this, so now I can do this for you. It provides basically a funneling process

for resolving these disputes pre-trial involving classified information. You can't have what happened today in the Stormy Daniels case, where you have objections and admissibility and hearsay grounds in the middle of the trial while it's going on. You've got to fast forward all those rulings

that might happen in trial or two weeks before trial to months before trial. And so that's what it does by filtering the information down first through looking at discovery, what can we limit from there through redactions and substitutions, and then let's get ready for trial, which we'll talk about, how can we further limit

what's admissible, what's relevant, and then some protections that are applied to that. But the whole point is, let's filter that down, get to this small bucket of information for trial, not this, but this, and then let's go to court based on that, or appeal if you need to based on that. Right and so in the context of Trump's case in Florida, where are we in that procedure?

There's mention of a SIPA section five notice. What does that mean? And kind of what should we be looking forward to? What are some of the big legal issues? Because you said there's a lot to come. What could be something that's a thorny legal issue that is related to SIPA that maybe could delay things even further?

So if you're looking at my funnel, we're only about one rung down from section four into section five, which is, so section four was just resolving discovery issues. That's largely been resolved, although she withheld judgment on some of those matters that could come back later.

So section five is, all right, let's focus on what information is potentially gonna be used at trial. That's on Trump's team and other defendants to write a notice that describes in detail what that is. That's been- I read that it's like, this is like the, five A is like the linchpin of the statute.

Yeah, that's courts have called it that, and it really is sort of the key document that will inform the rest of the case, which is here's the universe and it's critical. And she actually told them this in order, that they describe all the information in particularity, not just here's a document, that's all we're gonna say. They wanna know specifically

what they're gonna rely on at trial. So this like sets the ground for the battle. Yes. These are the, defense comes forward and says, these are the documents we feel like we need to use at trial. So this like sets the ground for the battle. Yes. The defense comes forward and says, if these are the documents we feel like we need to use at trial and now we get to fight over, do you really need to use it? And if so, can we use a substitution or make redactions

to make it acceptable to the government to reveal that at trial? And critically, if it's not in the section five notice and Trump's team tries to elicit some classified information at trial, it's not covered by the notice, they cannot introduce it. Even on rebuttal. So that's pretty critical point.

Once we get past that, then we're into normal sort of pre-trial litigation about relevance and admissibility of this evidence. DOJ will argue that's inadmissible hearsay, that's not admissible because it lacks foundation, it's not legally irrelevant. That'll all happen now, not until I think mid or late June, I think in the schedule she just issued,

no, later than that. Yeah, later than that. Yeah, later this summer. And then the most important phase happens, which is 6C, which is, okay, you've got what's gonna be used to trial. DOJ is gonna try to apply certain protective measures to it, summaries or substitutions,

or the biggest issue here will be, does DOJ have to declassify and show all these documents to the public or not in order to convict Trump? DOJ will try to use something called the silent witness rule, which is have a government witness who's a classification expert testify about that document, show it in full to the jury only, not to Anna sitting in the courtroom, sorry.

And they'll testify it in generality. So if it's the Rand War Plan document, they might reveal that publicly, but they'll say look in section three, paragraph three, that describes what the US government would do in the first wave attack, how they'll say look in section three, paragraph three, that describes what the US government would do in the first wave attack, how they would do it, and then they explain why that's classified. So that would be general testimony,

and that would be a way of protecting those secrets still. And it makes sense, right, the government should be able to do that because otherwise you're spilling all these secrets at trial, but Trump will have all these arguments that it's basically unconstitutional and violates his due process rights and rights to cross examine witnesses if they do that because he wants to get in the specifics

in front of the jury. So that fight will all play out. That's been used successfully in a lot of cases in DC and Virginia, but never in the 11th circuit. So it's sort of uncharted territory, but that'll be the biggest issue to come in this case on the classified front by far. And like we're so far from even talking about that.

Right, and so I think it would be fair to say that there are ways that this case can impact other, it's not just that this is about a former president being prosecuted for allegedly stealing our nation's secrets, but it's also because of Trump's willingness to litigate a lot of these uncharted territories within CPI could affect other prosecutions that involve classified information.

That's definitely true, and we've seen that in things like one of the early steps in the process things like one of the early steps in the process is an in-camera hearing where the government gets to come in and speak to the judge without the defense present and that's having to identify, to make determinations about what they'll turn over in discovery. And Trump filed a motion demanding

that that be an adversarial process, that they be present for those arguments because they wanted to object to things. Had she gone along with and granted his request, that's the sort of thing that can upend the SIPA process for every case that comes after it, right? It could establish a precedent that would really undermine the kind of sanctity of the SIPA process and its ability to protect government secrets.

So we barely dodged a bullet on that one, but again, it took weeks and weeks for her to make a decision that really to any other federal judge that's litigated national security cases would have dismissed that motion in court without argument and issued a ruling without explanation. It's just so preposterously beyond the scope of how that litigation is done. Right, and I wanna get to another decision that Judge Cannon made that Allison referenced

that I think many other judges would have dismissed kind of at face value, that is the fact that she set an evidentiary hearing on what is called the scope of the prosecution team. This is a motion that were, a request that related to Trump's motion to compel. So Allison, can you tell us a little bit about that? What does that even mean?

And why has Judge Cannon set an evidentiary hearing on the scope of the prosecution team? I actually was gonna ask Brian about, when you were talking about what classified documents come in, what happens when Trump claims that there are documents that don't exist and he wants them because he's doing that.

And basically when you're doing a motion to compel, the government, and correct me if I'm wrong here, the government only has to give you what they have. And so what- This is in the government's discovery obligations, right? The government is obligated to provide information to the defendant that he needs for the preparation of his defense.

And so what Trump is trying to do, he's trying to broaden the scope of the government in this case. He wants to include the Department of Energy. He wants to include, like, just basically every agency. I mean, he was asking for material, like, if anyone in the federal government ever said something nice about me, I need it.

And he tried this up in DC, and you and I compared the differences between Judge Chukhin and Judge Cannon. Judge Chukhin was like, these don't exist. No, denied. But what Judge Cannon has done is she's actually going to set a hearing to entertain the idea that the special counsel's office is bigger than it is.

To try to group in more discovery that most of which doesn't exist. So, and he shouldn't be able to have access to anyway. What they may zero in on which will frighten the government which is, so it's the prosecution team, so it's typically DOJ and FBI are the prosecution team, the rest of the government is not.

Trying to rope in former lawyers like me at the CIA who worked on this, I didn't work on this case there, but people there now who did, into the prosecution team and potentially having an evidentiary hearing talking about them and their role is gonna be very worrisome to people in the government for sure and what that hearing looks like.

And it also just fundamentally misunderstands what the role is of all these intelligence agency lawyers. They are by law not acting as law enforcement officials. They are not making decisions about charges, things like that. They don't represent the government in this case. They represent the victim, right? Like can you imagine in other contexts

where the victim's lawyer is brought in and then they represent, even if they weren't the victim, they are the equity holders of the classified information. So they have to provide the permission to use it. That does lead to substantive discussions about where are you gonna charge, which documents, things like that, but that doesn't mean you're part of the prosecution team, you're part of,

you're like a witness, a lawyer for a witness. Well one of the things he wanted was, you remember the intelligence community assessment that Obama ordered? I remember that. that Obama ordered. I remember that. And he wants basically every classified document that had to do with putting together that report.

And that's from every agency, intelligence agency, that whether they're 17, probably not all, but you know, a lot of them. And that's just simply not part of the prosecution team. And Judge Cannon is like, well, let's just have a hearing about it. It's dangerous and bizarre. But it's all part of a very effective,

you can't argue with that, very effective strategy to delay these cases. That's the point of the filing of motion with 150 pages of redacted exhibits because you know that she's then going to litigate whether or not those redactions need to stay or whether they get revealed. And that litigation, they've set a hearing two weeks from now, you force both sides to brief, and then they each get to respond.

Sometimes she'll make a ruling, then there'll be a wrong ruling, motion to reconsider. You get a ruling for months, then you get it, and it's horrible, so the government has to follow it. So every one of these layer upon layer upon layer of needless litigation is just adding weeks, months, and who knows how much longer it took. Well, let's get to the subject that we're dancing around

a little bit here, which is Judge Eileen Cannon. She is someone who, a judge who has had familiarity with this case even before it was a criminal case. She is the judge who when Trump, following the search at Mar-a-Lago, there was this kind of very strange motion in which Trump requested to have a special master appointed to sort through the boxes of classified documents. She was the judge who presided over that case and to virtual, you know, it was virtually pretty much everyone in the legal community

plus the 11th Circuit who said that her decision in that case was very strange and it was overturned by the 11th Circuit, then she ended up being the judge who was randomly assigned to preside over Trump's criminal case after that proceeding and after the indictment came down. She has since continued to be criticized for several of her decisions.

You have pointed out some of them tonight. And there are many commentators who have suggested that it is well past the time that Jack Smith and the special counsel's office should try to seek recusal or reassignment of Judge Cannon based on some of the decisions or choices that she's made within this litigation. So what do you guys think about that? This is kind of to anyone who has thoughts, and what's the case for saying, actually no, now is not the time yet?

I would say that there really hasn't been anything truly appealable up to this point, and as much as it's awful and terrible, and as much as she sucks. Andy terrible and as much as she sucks, Andy, you and I talked about this, you only really get one shot to go to the 11th Circuit. If you blow it, boy.

And what's the procedure for that? Because I think maybe it's helpful for people to understand a little bit about. Yeah, they could ask her to remove, or recuse herself, she's never gonna do that. They could ask the chief judge, never gonna happen. The only recourse would be, they have an appealable issue to go to the 11th Circuit, and they could ask on remand,

reassign this to another judge. That has been done on rare instances in the 11th Circuit, but the case law is pretty clear that there have to be repeated instances where the judge showed that they cannot fairly judge the case or fairly follow the law. They could cite. An example is the motion for reconsideration

because his motion to compel, Donald Trump's motion to compel discovery, had exhibits of witness lists and their names on it and she ruled that those should be made public and Jack Smith said, no, no, that is a clear error, legal error, manifest injustice will result, reconsider this motion. And then time, time, time.

And then she's like, okay, kinda, but we need to litigate what's gonna be redacted from the witness statements, but I won't release the list. So had she come back and ruled and denied his motion for reconsideration, that would have been appealable to the 11th Circuit because she would be about to release the witness lists to the public.

Even then, DOJ, if that would have been appealed, they'd have to think really hard. Is that the one? Even then, yeah. Or do we have her lose this and wait for one more? Because again, the hard stuff is all ahead. This has been the easy stuff so far. Thanks for listening to our live event at the Schar School of Policy and Government. Coming up, we are going to discuss the immunity argument and willful retention. Stay with us. We'll be right back. Looking ahead, let's leave Eileen Cannon behind in Fort Pierce and move to Washington, DC,

where there is another federal criminal case against Donald Trump. It is one, though, that has maybe not been in the news as much because it's been on pause for several months now. The reason being that Trump filed a motion to dismiss his charges based on presidential immunity that was denied and then he has now appealed all the way up to the Supreme Court. The Supreme Court of the United States

is now considering the motion or the appeal. They recently held oral argument on the subject. Andy and Allison, this is something that you've covered in detail on the Jack podcast, but I'm curious, Allison or Andy and Brian, any of you, but I'll start with Allison. What are your big takeaways from the immunity arguments at the Supreme Court? What do you think they'll do? It's so fascinating to me that the argument that Trump was making to the Supreme Court, what do you think they'll do? It's so fascinating to me that the argument that Trump was making to the Supreme Court

was that if you don't give me absolute immunity, or at least immunity for official acts, and these are official acts, they're not. That every single former president from now on will be hounded by rogue prosecutors who will do the wrong thing. And the statement that stood out to me the most was when Justice Sotomayor said,

our justice system isn't perfect, but we have layers and layers and layers of protection against that. And Judge Eileen Cannon is showing us those layers and layers and layers of protection. I mean, it's so blatantly obvious to me. And again, and if you've listened to the podcast, the first thing I thought of was the rogue prosecutor

who wanted to bring an indictment against Andrew McCabe and couldn't get the grand jury, who apparently indicts a ham sandwich, which I can't believe he said in the Supreme Court chambers, couldn't get an indictment, tried to get another grand jury, couldn't get an indictment.

Then we have rogue prosecutors like Durham, who managed to get a couple of indictments, but those didn't end in convictions because he didn't have the evidence that was needed. So we have protections, layers and layers of protections against rogue prosecutors, and I think Judge Cannon is a perfect example of that. But that was my main takeaway from the immunity argument.

I don't think they're gonna grant him absolute immunity, but my big problem was that they were seeming to discuss some big future question of the ages instead of looking at the question that was before them, which is why I thought they would refuse to take the case just like they refused to take Trump v. Thompson. I was, it boggled my mind that they actually granted cert for this and that the question that they're considering

is not what the DC Circuit Court of Appeals found and Judge, Justice, whatever, Roberts, got it wrong on multiple occasions talking about what the DC Circuit Court found in those hearings, saying, well, they found that there's no immunity for anyone ever and that's just simply not true. They decided specifically in this case, for somebody who tried to overturn

and subvert an election result and tried to overstay his four years, this specific case, Donald Trump doesn't have immunity. But the Supreme Court for some reason thinks it's a question for the ages about all future presidents. Yeah, I mean I think the other side to your point is while we have layers and layers of protection

against this really baseless theory that prosecutors all over the country will be chasing every president that follows, we do have protections against that. What we don't have is protections against a president who is unbound by any criminal law. Judge Jackson brought that up. And she was so right. She was great in her questioning, I thought,

in looking at the opposite side of the Trump argument, which is, isn't it a horrible thing to grant presidents absolute immunity? What's to stop them from turning the White, the Oval Office into the center of a crime ring? And the answer is there isn't anything at that point. So yeah, I was equally troubled by the arguments. I think our episode that week was like saddest episode in the last year. We were like borderline ranting the whole time.

Sorry about that. I agree like the question, the DC circuit very clearly said, we don't even have to get to the question of absolute immunity or even the question of any immunity for a narrower set of official acts, because what is alleged in this indictment,

which that's what you have to take as fact for the appeal, is so far beyond anything that you could make an argument for immunity for, that in this case, there is absolutely no immunity. If you start granting immunity for presidents who break the law to remain in power, that's it. The whole thing is over. Anybody who's elected can do anything they want

to stay in power forever and we are not a democracy after that. It's King George. Da da da da da. So, and then my other concern, Anna, is there was such a clear disinterest among certainly Justice Gorsuch, Alito, and Kavanaugh. They all responded to the attorney's answers

to their questions. When they would ask a question, the attorney's answers to their questions. When they would ask a question, and the attorneys would begin to reference the facts of the case before them, they all said some version of, I'm not concerned about this case. I'm not talking about the facts in this case. Don't argue the facts here, I'm not talking about that.

Great, can we lift the stay and get on with it, and then you guys do your weird robe thing for future presidents? And Gorsuch kind of exposed it the most clearly. He said, we're not worried about this case, we're making a rule for the ages. And so if you combine that, now getting a little conspiratorial,

I'll admit that, if you combine that statement with the knowledge that these men are very clearly interested in, and I would argue committed to this idea of the unitary executive. And even if they wouldn't embrace that term, they are all people who are very concerned about preserving and expanding executive power.

And so I just feel like there's a subtext here that the court took this case and took it in the lackadaisical fashion that they have. Because of- Well they don't think ahead because they go away. They aren't gonna be so supreme. Their interest is in the executive and how this ruling will affect executive power.

Their interest is not in result bringing this case before a jury of Americans so that we can either have accountability for laws broken or an acquittal. The importance here is that a jury gets to hear this evidence and whatever they decide should be respected. And I should say too, that this case, what the Supreme Court decides, it's not just the January 6th case.

There are pending presidential immunity motions, both in Fulton County, Georgia, where Trump is indicted, and then also in the classified documents case. But Brian, I wonder if you could focus for a minute on the classified documents case, because the fact pattern is a little bit different in that many of the events took place when Trump was clearly no longer the president.

So how could a favorable decision from the Supreme Court, maybe not finding that there is absolute immunity, but that official acts, there's some type of qualified immunity maybe. How could that affect the classified documents case and what's going on there? I think this issue's been overlooked a little bit, understandably the January 6th case is way further ahead

and all those acts were clearly, at least while he was president, whereas we don't have that in Florida. But I'll make their best argument for immunity there. Hopefully I'm not helping them. Which is, well, this is not their argument, but just a side note. Trump's petulance has typically gotten him in trouble

in life, but there's one instance where it didn't, which is him not attending the inauguration of Joe Biden is going to end up helping him a lot in this Florida case. And because he didn't attend that, he took off while he was still president of the United States and went to Florida while he was still president and brought the documents with him to Florida.

So they will claim that the movement of them there was an official presidential act. And they will also claim that his designation and air quotes of them as personal records was also an act that's afforded to presidents. And that that also occurred basically when he moved them while he was still president. And Jack Smith will say,

you're not indicted on any of that. You're indicted for retaining national defense information. And yeah, Jack Smith will have very good counters to that. But as we've seen, just those arguments alone can gum up the case for months. It's Judge Cannon that's gonna bring in the decision. Maybe multiple rounds of appellate litigation. And what could be relevant from the Supreme Court case,

it's not just in general, but okay, even if it's not core, and this may not be decided till the second round of Supreme Court litigation, even if we're good that the court conduct there is not presidential, what about the fact that those events are still relevant, that he took him to Florida. It's still, Trump will argue that

that's the reason the crime was committed because I took him while I was president. So how far that extends into evidentiary questions will be key in Florida case and hasn't been resolved yet. He does have this weird argument too that it also gets magically gets rid of his obstruction charges in Florida, even though those were 100% private, 100% post-presidential.

I don't understand that argument. It's the same argument that led to Jim Comey being fired and that not being obstruction, which is if he thinks the investigation's invalid, he can obstruct, I guess. Well, Bill Barr told him in a nice memo that we finally got to look at that in order to obstruct justice,

there actually has to be an underlying crime. They're trying to extend that to, you can be a former president and do the same. And he'll bring that out. Bring it out, but look. They did, yeah. All right, I wanna get to audience questions. So if you do have questions

and you're thinking about asking a question, then just get ready because we will, we have one more thing, but just get ready. This is your morning. So I wanna end, we've talked a lot about criticizing Trump's legal strategy or legal arguments, criticizing some of Judge Cannon's decisions, but I think that it's also fair to say

that the special counsel's office has not been immune from criticism. People have pointed out that there may have been some missteps in certain decisions that the special counsel's office itself has made. Of course, there is an element to all this in which people are, Monday, what's the term? Monday morning quarterbacking?

That's the term. I'm not a sports person, so sorry. But so there's this element of all of that in which you're in retrospect looking back. You don't have perfect information about why the prosecution has done what it has done. And yet I think that it's fair to say that it would be great to hear from all of you,

what is it that you think could have been done better? Are there any decisions that you would have made differently if you were someone who's making decisions within these various prosecutions? Well, if we're talking about Jack Smith, I mean, so much of it is still unknown. If we're talking about Jack Smith, I think that I'd like to know a little bit more information

about why they felt that they couldn't bring this case in DC, the documents case in DC. And maybe that's because he's not charged with stealing the stuff from DC. But if we go back before Jack Smith, I definitely think that the FBI, sorry Andy, I definitely think that the FBI, sorry Andy, in their reluctance to dive into this, which may be well founded because of what happened

to a lot of folks at the FBI after the Mueller investigation. The FBI, we've recently learned that Merrick Garland wanted to start investigating the top of the coup all the way up to Trump when he got there, the week he got there. And there was a lot of pushback from some Trump allies and Trump holdovers and not even necessarily that, but just more cautious people at the Bureau

and at Department of Justice, Axelrod, right? And after a couple of months, Merrick Garland was very frustrated with the slow pace and put together the investigations unit. But he kept this, it's so small because he didn't want some of these other folks to know about it, that there's just not a lot of resources there. And when they started to try to get search warrants

and subpoenas, the FBI was like, oh, I don't think that's a great idea, I'm not gonna subpoena the Willard or whatever. And that really kind of, finally, I think he was able to put a chief of staff in with Chris Ray that was more amenable to these things in early 2022, and that's kind of when the dam broke. We didn't have to go to the inspector general

and the post office cops to get search warrants on phones. But I think maybe that would be something I would want to look at. I think there's a lot of good questions there. Whether or not we'll ever get answers is a different good question. When you look at that timeline, and I think it was the Times that covered that,

it was a big New York Times article about this a couple weeks ago, I recommend you take a look at. There was a lot of time lost, and now here we are at the brink of an election, and it's critically obvious that that's the biggest challenge to both these cases, is trying to get them done before the election.

So yeah, I can't explain why there was such reluctance. There were some things in that article I thought sounded pretty typical. There was just bureaucratic inefficiency. He started the investigations unit to attack this problem, and they really didn't make any progress for months. There was no concerted organization pulling people together and getting them forward,

so that's a leadership issue. So you had Ron Johnson and Ted Cruz and Rick Scott and Mike Lee refusing to confirm the DC US attorney who didn't get there until November. There were a lot of things. I think the hot wash on that will be ugly. As far as the decision to bring the after action, sorry, a little jingo there. The decision to bring the documents case in Florida,

I think was an understandable kind of legal and tactical dilemma. The facts in the case point towards Florida. There is a constitutional preference that people should be, people who are gonna be accused of a crime and prosecuted that that should happen where they live and certainly in a case where most of the facts are there where he lives that would bring you to Florida.

You could have tried, there were some things that happened in DC, you could have probably have gotten venue in DC but it opens up the door to all those issues that you brought up about how he was actually president when he did the things he did here in DC, so that's a complication, and you leave yourself open to multiple lines of attack

on appeal if you get a conviction. And so I think under those circumstances, it was not a terrible decision to bring the case in Florida. Now, I don't think anyone could have predicted how horribly Judge Cannon would run the case. So we're in a tough spot on that. But I understood, I also think that Jack Smith was trying to take the high road

and do it right, do it the right way. And then on top of that you have the perception problems with the first cases against the former president. So anything that the department does, so this gets back to the recusal issue right, if they took the appeal and tried to get the case reassigned or if they really pressed her to recuse herself, they run the risk of creating the impression that they're doing those things in a way to kind of game their way into a more favorable judge in a way that's kind of slimy

or not really fair to the defendant. And this case, because of who the defendant is and the incredible support that he has among a large portion of the country, that's a problem. You don't want this prosecution to be perceived as something unfair. It's not.

It's going through the process that the Constitution ensures for everyone. He has in fact received so many benefits, moments of benefit of the doubt and special handling many, many times in the course of these prosecutions. But nevertheless, this narrative of oh, it's unfair, it's a political attack job is very corrosive and undermining to the health and welfare

of the department and the FDF. Yeah, Brian, what about you? Yeah, just the final point on this, this little bit of my pet peeve, having been in government and been in as well, you get second guessed a lot. And I think it's generally best to assume when you're on the outside,

the people inside the government are generally more competent than you give them credit for. They've thought about things a lot harder than you have and they have a lot more information at their disposal, particularly on classified matters. So bring that in, that's not to say it's not healthy, you should have these discussions always about second guessing the government 100%,

but I always bring that into it. So something like recusal, they've thought harder about this than all of us. They've studied the case law more than we have and all that. This venue question, I guarantee that they've thought about, they thought, this issue that Andy talked about is nuanced,

but if they brought it in DC, I thought they could bring it in DC if they argued conspiracy, right? None of the actual criminal conduct was all in Florida, but the conspiracy started in DC. Well, if they argue to conspiracy, right? None of the actual criminal conduct was on Florida, but the conspiracy started in DC. Well, if they'd done that, they would have run straight into this immunity issue because he was president when that happened.

The president has full authority over classified documents, how they're handled, what he does with them, all that. That is actually core constitutional authority. So if they'd done that, like I thought they should even for a while, they would have totally screwed themselves. They could run the risk of done it. Yeah, like for later they should even for a while, they would've totally screwed themselves. Yeah, like for later.

So they're always thinking far ahead that we are. There's probably still little things, I think how long even the Florida case took to be brought. We were all second guessing, but then it came out, you know what, a lot of this key obstructive evidence, which is really key to the case, all came in and like the winter and even the spring of this last year, So yeah, they always

there's always more going on behind the scenes. For sure. Absolutely. Hey everybody, you're listening to the Jack podcast live panel at the Schar School and up next, we have some thoughtful questions from audience members, but we have to take a quick break. So stick around. We'll be right back. We're gonna go to audience questions so if you have oh there are already people lined up fantastic if you could just keep in mind to try to keep it to a question and just so that everyone who wants to ask a question has the opportunity to do so, keeping it to one question would be great. But we're excited to hear your question.

So Sam, I think, is the first. Oh, I'm sorry, Larry. I didn't realize that you were lined up. Okay, got it, cool. Larry. Pulling a question from the live chat on YouTube, thank you to our great YouTube audience that's watching the event. Amy Thompson has a question with regards to how common are these classified document cases

or fraud-related cases usually concluded? The timeline that we've operated on, is this out of the norm dramatically or is it maybe a little bit extended? And, you know, absent the, if it wasn't a former president under these indictments, would these cases have been adjudicated more quickly and resolved more quickly? Yeah, I think- Well, don't, most of the time, people just give the stuff back or take a misdemeanor plea?

Yeah, I mean the number, I'll leave it to Brian on the timing of the cases that actually go to trial, which is the infinitesimally small minority of cases. Investigations that we start from these referrals to DOJ from different agencies that they may have somebody who leaked something or they maybe think somebody's intentionally stole something or is withholding classified Far away the most common thing is you you Approach these people and they give the stuff back and if it's a particularly egregious they may have to plead guilty to lesser offense a misdemeanor level, like retention offense

or something like that, but most people, they do this out of mistake. Perfect example to other investigations of this, both of Vice President Pence and President Biden in both of those cases, the prosecutorial authorities, one a special prosecutor, the other a US attorney, determine that there was no intentional violations of the law there.

So that's the most common thing, they don't actually go to court. But the ones that do go to court, it's a big range, right? There's a lot of that. Yeah, yeah, I mean, these unauthorized retention cases are thorny for the reasons we talked about. It happens a lot, but it doesn't necessarily

rise to a level of criminality typically. And I mean, you can think of some cases that aren't public, I'm sure that can too. Where there's horrifying, some horrifying things have happened where people took lots of classified stuff home who did not necessarily have innocent intentions in mind. But even there, let's say, I mean, some of those cases were resolved on other charges.

Those people who are weird hoarders typically have child pornography. So yeah, so there's cases like that where those get resolved through other legal means. So DOJ doesn't wanna really bring these cases, but you can't ignore them. When it rises. No.

When it rises to a certain level, you cannot ignore it. And this one was clearly above the level of, you cannot ignore it. This one is out of the ballpark. There's not another case like this. The intentional withhold, evidence of intentional withholding, that is like the hardest thing to find in any of these investigations.

This case is replete with it. He was asked so many times and refused to give it back. And then he did give some things back after looking at them personally. And also made the decision to keep all the rest of it. And then tried to destroy the video. So it's just layer upon layer of unavoidable intentionality. Didn't try to destroy the video.

The obstructed elements along with that. And then tried to destroy the video of him destroying the video. But then just real quick on the timing, one to two years is sort of normal depending on the district. What's different here is DOJ moved heaven and earth to provide all the discovery immediately after they indicted.

To accelerate it. As soon as the protective order was in place. That normally doesn't happen in these cases. And that's what delays things. So they moved Heaven and Earth to make it happen faster. And Canada did not sort of. Like before November, they had like 90% of the discovery. That doesn't happen in a normal case.

Let's move to this side of the room. Thank you. So congratulations on 75 episodes. Had it been you, Andy, who had taken intentionally, not boxes, but one folder, you wouldn't be with us today, your students wouldn't be enjoying taking your course and this audience would be, you'd be in jail. I don't even say the word classified.

Yeah, yeah, exactly. All right, except that. So, and I'm sure Dean Rozelle will extend this room for you on the 500th episode, but is that where we're headed? Are we headed for 500 episodes? Are we headed for 750 episodes after what we heard today? I mean, at this rate, we've got a lot of episodes left in us. There's no trials on the horizon, literally,

not even a date, an effective date. Although May 20th, right, for the Florida case? It's still officially. No, no, she officially postponed it indefinitely today. Bummer. So close. Yeah, so there's no end in sight for the Jack podcast. No end in sight.

Thank you. Thanks, Steve. All right, Sam, over to you. Yes, I cannot believe you remembered my name. We met briefly beforehand. I'm a major fan of both Daily Beans. I listen to it daily, so thank you. And then now, Lawfare is in my ears twice daily

with these daily dispatches, so thank you to both of your teams and to both of you. My question's actually about Fisher, if that's okay. One thing I couldn't really understand about the Fisher case is there was all this discussion about the meaning of otherwise in this Reagan era statute and which other uses of otherwise use them generous and how we're going to wrap our heads around what otherwise means. Maybe this is just because I'm not a lawyer and don't understand this but this is a statute that was passed presumably with lawmakers who are still like alive and kicking and could explain what their intent was around that word otherwise in the

Fisher case and whether or not that would apply to some of the actions taken by several dozen including Trump, J6 defendants. So is there a rule that precludes, just generally in law, going to initial litigators? We don't have the founding fathers anymore, so we can't ask about the First Amendment, but we can ask about this, you know, 88, what year was it passed, statute. So why can't we just ask the writers of the law?

And before people from the panel answer this, I'm gonna ask to, for whoever decides to answer it, to explain what the Fisher case is and how it relates to the Trump prosecution because I think a lot of audience members may not be aware. I started selling title 18 US code 1512C2 shirts, what, two years ago?

US v. Fisher, January 6th defendant says that because he was there and violent and doing things that didn't have to do with documents, that he shouldn't be charged with 1512 C-2, because C-1 is documents, C-2 is otherwise obstructing an official proceeding, kind of a catch-all for anything that's not covered in the documents, C-1.

And that otherwise is the big question, and whether or not it connects it to C-1. And I think Jack Smith, we've talked about this, wrote his indictment for the narrow understand, narrower, if they decided to gut 1512 C2 in the Fisher case. Yeah, so that obstruction, that particular part of the obstruction charge is a statute that was written in response to,

you had cases where particularly in corporate fraud where accounting firms would just destroy evidence rather than turning them over. Yeah, I think it was Enron, right? And so they drafted this statute to go after that sort of malfeasance. So it starts out as like targeting, you obstructing an official procedure using a document.

But then they tack on C2, which is, says or otherwise obstruct an official proceeding. Most people, most judges who have addressed this issue have said no, otherwise makes it something other than using the document. And. 13, 14 judges, it's just Nichols was the only one who. The judge that Mr. Fisher drew off the spinning wheel

saw it a different way and that's what propelled his case through the DC Circuit Court and then ultimately the Court of Appeals. So in answer to your question, Sam, wherever you've gone, there's not a law that I'm aware of that would preclude the justices from referring to a current comment from a legislator who was involved in the process.

But typically when they use legislative history, it's only those statements that were preserved in the legislative record at that time. And there's kind of an evidentiary value to those statements if they are actually on the record in the activity of the Senate or the House. So the court doesn't actually do any proactive work of bringing people in or calling people up and asking them, even if they were someone who was involved in that legislation early

on. They don't typically do that. I could see how maybe- Could they do like an amicus brief? Sure, so if you were a legislator at that time, you saw this thing, you're like, I can tell you what we meant by otherwise. You could potentially write an amicus brief

and submit it to the court. Court doesn't have to accept every amicus brief if they accept it, they can consider it or not. Let's write one. Um. Oh man, I'll never get out of the house. Great question, Sam. Okay, we have a few minutes left,

so we're gonna do a lightning round. We're gonna try to get to the gentleman in the navy shirt at the very end of the line. But we gotta make it quick. So panelists, keep it short. Questioners, keep it short. Questioners, keep it short. We're gonna make it happen. Hi everyone, thank you so much for coming out tonight.

My name's Bri, I'm a current master's student here at the Schar School studying international security. My question kinda revisits our previous talk about the Supreme Court's ruling on executive powers. So I imagine we live in this hypothetical world. Trump is getting out, Scott free of all these charges, he's elected in November. What, I know, scary, I'm so sorry,

I even put that into the universe. What type of legal or policy changes do you all foresee coming, whether it be changes to SIPA, whether it be immunity laws for the executive, et cetera? I don't know that I can answer this in a lightening sort of way but. Do we have a project 2025 slide deck we can throw up? Yeah, I mean, I think it changes that we will see

in a second Trump administration will be profound. They will be, I think they will shake the institutions of our government to its core in ways that people really haven't thought of before this moment in time. By reclassifying as many as 50,000 employees, currently civil service protected senior executives across the government as political appointees

and therefore subject to immediate termination for no real reason. I think that's the thing that scares me the most about what the Trump team and his advisors have already said is their plan. We're not like hypothesizing on what they may do. We don't have to do that. They've put out a pretty detailed description

of what they will do. That's just one of many things. It'd be interesting to see though how, if he tries to get laws in place like giving presidents immunity, assuming the SCOTUS doesn't, what will happen to Congress, because it's still a co-equal branch of government,

but will it no longer be under a Trump administration, and how could that be affected? You know, how could that be put into effect? So hopefully it's not an exercise that we have to learn. And with that, I'm going to call time on that round of the lightning round, and we're gonna go to the next question. Good evening, thank you all for coming tonight.

Appreciate the presentation. This podcast is about Jack and I'd like to know the group's opinions leading into what Anna asked. What kind of experiences do you think he brings from his experience at the Hague, prosecuting long, high profile political cases? Thank you. I think it makes him fearless to indict politicians.

And he kind of had that before when he was a pin, right? Yeah, he's got deep experience doing white collar cases, particularly public corruption cases. Some of those cases, huge complicated impactful cases, some of which went his way, others that did not. That's what happens when you're out there doing the work in an aggressive way and not just sitting back waiting for, you know,

completely baked cakes to be put in your lap. So I do think he's fearless. He's also not afraid of piecing together incredibly complicated cases with challenging evidence. I think that's what he gets from his Hague experience. Hello, thank you all for coming out tonight. We really appreciate it. Tangentially related to some of our previous questions,

if there is no end in sight, what will be the impact of these pending trials on the upcoming election? That's a really, that's a ball in the air, I'm afraid. I'm not really capable of predicting those things. I wish the media hadn't set up the public to say that you need to have a decision on a conviction or a acquittal in order to make a decision

about how good Trump is going to be. I have long said for me justice was being indicted because then you were in the system of justice and whatever happens after that is justice. You may call it a miscarriage of that but I personally don't understand why you have to wait for a specific conviction in order to make your decision not to vote for him.

Yeah, I think it could affect different people different ways. He's gotten some benefit out of the indictments. It's helped him raise money. It's maybe really solidified some of the support among his base, although they were already kind of strong supporters to begin with. How it affects people in the middle,

it's clear some of those polls indicate that strong supporters to begin with. How it affects people in the middle, it's clear some of those polls indicate that there are people in the middle, undecided or kind of middle of the road voters who are saying if he's convicted, that's gonna make them less likely to vote for him. It's really hard to say what happens this far but no conviction.

And it also might depend on the substance of the case as well, like the New York case versus the DC case or the classified documents case. But we're gonna go to the next question. Hi. So if we have a situation where you actually have jurors being shown these sections of incredibly classified documents, I'm sure that's the technical term.

Do you need background checks on the jurors? Are they going to be watched more carefully? It's 12 random people who didn't have anything to do for the next few weeks. So, how are we? Normally you have to go through like these insane background checks to have access to this

and they're just gonna like show it to these 12 people who apparently don't wanna get out of jury duty. That's a Brian question. Yeah. Great question that people ask that a lot and there are just certain instances where our government and the total community have decided

they just have to trust people. They do that sometimes with sources who they barely know. They might not wanna tell them too much, but a little bit. They do that and they trust judges. Judges aren't cleared. They're considered to be worthy of receiving the classified information by the nature of their office. Grand jurors receive classified information.

They're not cleared either. The president is given all sorts of, has no checks and balances when it comes to classified information. Literally none on classified information. And then when it comes to the jurors, they're just trusted. Voydeers not very much, but it's a little bit.

They would be admonished by the judge to please don't disclose this classified information outside of this, but there wouldn't be necessarily like a constraint on them from doing that. But that's what makes these cases hard. And we don't even think about the national security implications of these cases, but there is foreign government information

all over those documents. Not just we think of individual sources, but it's all of our foreign partners who have sources have given us the information that's in those documents. Bringing these cases to trial is so hard for the government to get this far and then to see a judge like Judge Cannon just sort of forward all that is pretty infuriating.

We are already one minute over, but Navy shirt guy. Hi, I got here late, I hope this wasn't already covered. Ignoring optics, not a factor. Is there any rule or law that would prevent Eric Garland from saying, damn the torpedoes, I'm putting the foot on the pedal, I'm appointing special counsel, March whatever day he started? from saying, damn the torpedoes, I'm putting the foot on the pedal, I'm appointing special counsel March,

whatever day he started. You mean when Garland showed up on the job? Yeah. Oh no, he could have done that on day one. Good, okay. Yeah. I have a tweet from October of 2021 saying that he should have appointed special counsel.

And with that we are done. Thank you so much to everyone and Larry. I don't know. So thanks everybody for joining us tonight. Thanks to our wonderful panel. Thanks to Alison and Andy for agreeing to do this. The audio from tonight's event is gonna be used for a special bonus episode of their podcast.

You can say you heard it here first. The video of tonight's event is available before you probably get a drink in the reception. Or at home if you're already drinking, it's okay. So, Brian, Andy, Allison, thank you very much. Congratulations on this podcast. I have a feeling we may get to have you back again a year or so from now. And Anna, thank you very much for agreeing to do this

and moderating so wonderfully, and especially as busy as your life is these days. So thank you. So reception across the hall. For those of you who are here, I would ask you to go ahead and make your way there. Don't come up and crowd the stage. Let the folks get their microphones off

and they'll join you over there in the room. Thank you. Applause. Music. . . . .

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