Jack - Episode 81 | Anatomy of an Indictment

Episode Date: June 16, 2024

Judge Cannon struck a paragraph from Trump’s indictment and denied denied Trump’s motion to dismiss on insufficient pleading grounds. She may have made a significant legal error in one of her rulings. Trump filed a new motion to dismiss claiming spoliation of evidence.All this and more!Plus, a listener questions and more. 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. 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 81 of Jack, the podcast about all things special counsel. It is Sunday, June 16th, 2024. I'm Alison Gill. And I'm Andy McCabe. Last week, we left off with Judge Cannon rearranging the schedule to add oral arguments from non-parties on whether Jack Smith is appointed and funded properly. And Jay Bratt had refiled his motion to modify bail conditions. So this week, we have Judge Cannon letting Walt Notta join that Trump motion about the appointment and funding of special counsel.

And you guessed it, another delay as she grants Trump's motion for more time to file his expert disclosures. His last minute motion too. And we'll talk about that. The differences between how Judge Cannon treats the government and how Judge Cannon treats the defendants is really stark in this example that we're going to go over. Big news this week though, Judge Cannon struck a paragraph, paragraph 36 from the indictment, finding that it didn't apply to any specific charge. She also denied Trump's motion to dismiss on insufficient

pleading grounds, but she made what appears to be a pretty big legal error in that ruling. And we'll go over that as well as a new motion to dismiss from Trump on spoliation of evidence and what happens to the DC case if Cannon rules that Jack Smith's appointment or funding is somehow unlawful. But Andy, let's start with this ruling striking paragraph 36 from the indictment and what is somehow unlawful. But Andy, let's start with this ruling striking paragraph 36 from the indictment and what appears to be a clear legal error, which we'll talk about in a bit as well. But of course, before we get into that, we should do another round of Good Week, Bad Week. What are your thoughts this week?

Yeah, another a bit of a meh week. I, for most of the folks that we're tracking here. We didn't have any major movement by Jack Smith this week. We're going to cover some of the rulings here. They all continue to kind of dribble in in the same, like, vaguely not great direction for Jack Smith, but nothing really, you know, game changing. So I'd say he's kind of an even week for Jack. You know, Trump on the other hand has just, he continues to kind of blunder his way

through some bad decisions. And I think even particularly, like even just this is a small example, but yesterday had his big return to Capitol Hill first time up there since the insurrection on January 6th in 2021. And kind of the takeaway from that interaction with all of his besties in the Senate was, you know, he just said a bunch of weird stuff negative about Milwaukee and he somehow keeps raising Taylor Swift, which you know I take that personally.

I was going to bring up Milwaukee and Taylor Swift and of course Hannibal Lecter. It was just weird. I know he had a meeting with CEOs as well and the CEOs walked out of there like, what is wrong with his brain? Well, yeah, and it started with the rant in Las Vegas about death by shark versus death by electrocution in an electric boat. So I don't know. There's been a lot of really, I think, very well-grounded questions about his mental capacity

this week. So I'm pointing to that as a bad week for our former president. Yeah, I'm with you too. And I think in under like 14 hours, I think the mad dog pack got a billboard up in Milwaukee of Donald Trump saying Milwaukee is a horrible city. Just really all around sort of not great week. And I think also, you know, he probably, his party at least,

had a kind of another rude awakening in the form of a special election in Ohio's sixth, right? We, Trump won that district by 30 points. And this Democrat who only had like seven grand in the bank, who was way outspent, only lost by like nine points. And that's a significant swing. And the reason that no money came in from the national party to that race was because they're like, it's a Trump 30 plus 30 district. There's like why would we spend a dime there? Right. And I think that that's a lesson going forward. But I'm with you, kind of a meh week for Jack Smith.

Yep. Taking punches from Judge Cannon like he always does. Yeah, yeah. And we got a couple of those to touch on today. Yeah, let's talk about that strike in the paragraph from the indictment, which to me was the big, at first that was the big news of this filing until I think it was Andrew Weisman, you know, brought to my attention that clear legal error.

Yeah. So this is, this is really interesting. I agree with you. They kind of overheated coverage of the ruling initially. It was like, oh my God, she dismissed the indictment. What? But of course it's a lot less than that. So let's dive in a little bit.

So the ruling is in response to Trump's motion to dismiss the indictment under rule 12B3B of the federal rules of criminal procedure. So just to kind of lay the groundwork here, federal criminal rule 12B3 lays out the motions that must be made before trial. Now, when you get to subpart capital B of 12b3, that specifies the motions that can be made and indeed must be made pretrial that allege a defect in the indictment or information. And these defects are specified as joining two or more offenses in the indictment or information. And these defects are specified as

joining two or more offenses in the same count, which is duplicity, charging the same offense in more than one count, which is referred to as multiplicity, lack of specificity, improper joiner, and finally failure to state an offense. So, Canada's ruling describes Trump's motion as,

Defendants seek dismissal of the obstruction and false statement charges set forth in counts 33 through 41, raising a series of duplicity, multiplicity, joinder, and failure to state an offense arguments about the format and pleading methodology. In the alternative, defendants move to strike various allegations from the superseding indictment, invoking the mechanism in Rule 7D for striking surplusage. Okay.

So, here we go. Legal lesson number two. I know this is a lot, but stay with me. Legal lesson number two, federal criminal rule seven lays out the requirements of an indictment. Okay, so this is everything about like, what an indictment must have, what it doesn't have to have, that sort of thing.

Now, subpart D of rule seven addresses surplusage by stating that upon defendant's motion, the court may strike surplusage from the indictment or information. Okay. So I know that surplusage sounds like a tasty new kind of sausage. That's what I think of, but it's not that unfortunately. I wish it was. Surplusage is language contained in a pleading that is unnecessary or irrelevant. So usually when a defendant invokes this, which is, I mean, I don't really see this very often. I don't remember ever seeing it before. But when a defendant does this, they're trying to get language out of the indictment that makes them look bad, right? And which technically

is not legally necessary to prove the crime charge. is not legally necessary to prove the crime charge. So this, you know, if they can get it striked, then maybe they can keep that sort of language that's bad for them away from the jury. So Judge Cannon denies Trump's motion to dismiss, but not without taking swipes at the special counsel. So first, she goes after the speaking indictment. Okay, she's gonna explain how she sees that.

She says, in most criminal cases, the charging document merely tracks the elements of the statutory language, cites the statutory provision involved, and provides a brief description of the alleged misconduct with a relevant time period. That is all that is legally required, and both the special counsel and the court

have relied on that minimal baseline in addressing defendants requests for a bill of particulars. Sometimes, however, the government elects to use a so-called speaking indictment, including in the indictment various non-essential allegations more akin to a narrative about the government's theory of prosecution. And then like per Yuge, she agrees with the government, but only after taking a bunch of pot shots at the government. Here she says, having reviewed these arguments in their totality and carefully considered the superseding indictment as a whole, the court agrees that much of the language in the superseding indictment is legally unnecessary to serve the function ofeding indictment as a whole, the court agrees that much of the language in the superseding indictment is legally unnecessary

to serve the function of an indictment as explained in the foregoing case law. The court also notes the risks that can flow from a prosecutor's decision to include in a charging document an extensive narrative account of his or her view of the facts, especially in cases of significant public interest. Notwithstanding these concerns, given the rigorous standard for applying Rule 7D, the

court exercises its discretion with one exception below not to order the striking of allegations requested by Trump, the defendants. At least not at this stage, she says, because defendants have not clearly shown that the challenged allegations are flatly irrelevant or prejudicial. At what stage can you strike more from the indictment? I mean, this is when you do that. Like this is- This is judge without prejudice. And didn't you say it has to be done pre-trial? Of course.

Yeah, okay. Yeah, it has to. So yeah, she's just petrified of making decisions, making permanent decisions that have lasting effect on the trial. Unfortunately, that's her job is to make decisions about how to shape this thing. So every decision contains this kind of language that just leaves her a back door to kind of soften the blow or maybe buy her some time to change her mind later. It is one of the worst aspects of her.

Maybe she wants to have a hearing about it or something. Who knows? But she, so she wants to strike paragraph 36. She says it's prejudicial and orders it stricken from the indictment. This again, doesn't remove any charges, doesn't dismiss any of the charges, but it does remove this paragraph. It says, in August or September 2021, when he was no longer president, Trump met in his office at the Bedminster Club with a representative of a political action committee.

During that meeting, Trump commented that an ongoing military operation in country B was not going well. Trump showed the PAC representative a classified map of country B and told the PAC representative that he should not be showing the map to the PAC representative and to not get too close. The PAC representative did not have a security clearance or any need to know classified information about the military operation. So what do you think Andy? You know the document that's mentioned in that paragraph is not charged.

I'm thinking of the one he waved around at the ghostwriter. That one is charged. But not this one. So is this language frivolous to the charges? It seems to me like the element of intent is what this paragraph is about or at least the understanding that what you have there is a classified document and you didn't give it back when we asked you for it.

Yeah. I think the important thing to remember here is the one key thing that Judge Cannon left out of her dissertation on indictments that we went over is that this falls squarely in the category of prosecutorial discretion. Prosecutors decide what to put in indictments and what not to. And yeah, most of the time indictments are very bare bones. Your average drug case, I mean, it's like very, very skeletal sort of facts, references to the relevant statutes that the person's being prosecuted under, something that indicates timeframe when the events happened and then, you know, the basic evidence that they have that the defendant committed the offense. People in, and she kind of points out, well,

in high, you know, high profile cases cases It's even more dangerous to do this The opposite is actually true in high profile cases with intense public interest the prosecution can only speak through their indictment So it's really only in these cases that the prosecution kind of lays in more facts So that the public can understand what's going on and it's within their discretion to do so now There's a limit, you know, you can't throw in all kinds of random accusations against the defendant that are not actually things you're going to charge. But again, like judges are pretty, I think pretty reluctant to weigh in and tell, you know, take the pen essentially to the prosecution's indictment. Here, the result of throwing this paragraph out, it really

isn't much of a result. It doesn't affect any of the charges. There's still all kinds of theories that he could try to get this evidence in. So for instance, the PAC representative is somebody who they may want to call as a witness. And so essentially you're going to get this whole story in anyway at um, at trial. So there's not much to it. She loves taking a shot at them. It gives her an opportunity to do that. Um, but I, at the end of the day, I don't think there's much, uh, significance to it.

Yeah. And that makes me think like why I feel like if, if Jack Smith files an opposition to this or emotional reconsideration, she'll have another four-week briefing period and maybe a hearing with some moral arguments from, you know, Gonzo from the Muppet Show. I don't know. Like this might be one where Jack just says, not worth fighting over. I totally agree. Right. Like, fine. Yeah. You got to pick your battles and I don't I mean, it's like, I'm not a expert trial attorney, my stretch, but I just, this doesn't seem like a hill that's worth dying on.

However, I think there might be a hill worth dying on in this ruling. And I think we could see a motion for reconsideration in which case you could just throw that in there. It wouldn't add any time to it, but I don't know. We'll talk about it. But we have to take a quick break. So everybody stick around. We'll be right back. Welcome back. Okay, before we move on from this rule striking paragraph 36, you mentioned a potential error. And I think, I think you really have a much more relevant point here

than the one we just went over. Yeah, yeah, it really jumped out at me jumped off the page when I read it, because we just went through this in jury instructions in Manhattan, right? And I thought, well, I must be mistaken, right? Because that state maybe, because I had a different feeling about it. But that's when I went, I go and I see what the experts are saying. And Andrew Weissman was pointing it out, too,

on their podcast, Prosecuting Donald Trump. And it seems like kind of a big deal. Yeah, I agree. This is one maybe worth fighting for. The issue you're talking about has to do with counts 34 and 36. And here's what the ruling says. Defendants Trump and Nauta argue that counts 34 and 36 should be dismissed for duplicity and mis-joinder in violation of rule 8,

warranting dismissal under rule 12b.3b.1 and 5. The special counsel responds that counts 34 and 36 charge both defendants with one crime, specifically a violation of 18 USC 1512 B2A, committed by different means, with Trump accused of committing the offense through two means and Nauta accused of committing the offense through one means. Although the specific pleading format employed by the special counsel in counts 34 and 36 appears somewhat unconventional and is susceptible to some confusion. No, no, it's not. Well, maybe by her, but whatever.

The court is ultimately satisfied that neither count requires dismissal on the grounds of duplicity. Count 34 charges one defendant, Trump, with violating 18 USC 1512 B2A by two different means. Quote, hiding and concealing documents from a federal grand jury and misleading Trump attorney one by moving boxes that can contain documents with classification markings to prevent him

from producing those documents to the grand jury. So two different means there, right? Hiding and concealing documents from the grand jury. So two different means there, right? Hiding and concealing documents of grand jury and misleading Trump attorney one. Okay, goes on to say, it also charges another defendant NADA with violating section 1512B2A by a single means, misleading Trump attorney one by moving boxes with classified materials to prevent him

from producing them to the grand jury. Count 36 is structured similarly, all in the context of section 1519. And this way, Right. That's, and I just want to jump in here. The 1512 B2A, that's obstructing an official proceeding. 1519 is conspiracy to obstruct an official proceeding. Do I have that right? Yeah, I believe that's right. Okay, and so that's why those two counts are structured similarly but are different.

That's right. So she goes on to say, In this way, neither count charges more than one crime, although given the pleading format, there likely will be a need for clear prompts and separate verdict forms forms requiring the jury to determine unanimously which means if any each of the two defendants charged in counts 34 and 36 used to commit the alleged crime. So that's really the nugget of this one. She's saying the jury must by unanimous decision determine

which means if any each of the two defendants charged in 34 and 36 used to commit the crimes. Right. Meaning all 12 would have to unanimously decide that Trump misled attorney one. Right. To violate, to break the law. Because it's only one option for NADA. But so for Trump, there's two separate means that are alleged to violate, to constitute the one crime. And you could base your decision on either, right?

Well, not if she was... Yeah, well, yeah. Here's the problem. Right. Here's the problem with requiring that unanimity from the jury on the means. You can't require that. As we just saw, like I said, in the Manhattan DA's criminal conviction of Trump, the judge said the jury must be unanimous on the crime, but not the means.

Meaning a third of the jury could have determined that Trump falsified business records to cover up tax crimes. Another third of the jury could determine he falsified business records to conceal the falsification of other business records. Or the other third of the jury could determine he falsified business records to exceed the FEC, to cover up the FEC campaign finance donation limits, right? Like they didn't have to agree on the means. And Weissman says this is black letter law. He says it's settled in the Supreme Court precedent. So she can't require the jury to be unanimous on the means by which Trump broke the law. And I didn't know that Andy, I thought the judge could require that

we could require unanimity because everyone seemed happily surprised when Judge Mershon gave out his, you know, ruled on those jury instructions saying you don't have to be unanimous on the means. But several experts have pointed this out as a clear error. And if it is black letter of the law that you don't have to be unanimous on the means, I imagine Jack Smith will have to address this at some point. It's a clear error. Yeah. Yeah. And it also, I remember there was a lot of talk about how the Manhattan DA's case was, you know, a lot of pundits said it was unnecessarily confusing because, you know, Alvin Bragg never specified exactly what that structure of the

violation, the intent to violate a second law, which is how the offense becomes a felony. But he did. He was very, you know, throwing all these different possibilities out there. Well, by doing that, he gave the jury a lot more running room, right? He gave, you could have, as you detailed, you could have a couple of jurors who are really kind of convinced on one means and then another juror was thinking about it in terms of another one. As long as they come to the same conclusion, even if they got there through different means, it's okay.

I mean, I have a feeling they were probably unanimous on all the means, but... I mean, it certainly looks that way from the, from the verdict form, but nevertheless, but you don't have to be, you didn't have to be like, if, if, if you've got 11 folks who say he definitely did this to, to evade taxes, right? Or, you know, and then one person's like, I don't really know if he did it to evade taxes. You can say, all right, one person, do you think he maybe did it to, you know, cover up other false business? Low the FEC restrictions or something. Right. You've got other choices. But Alvin Bragg was clear. He put it out in his November

filing, which was approved in February by the judge, a month before the trial started. So they were all that I knew the three means. I don't I'm not sure why some other people didn't or thought that they only came out at jury instruction. But that is I think, you know, what the crux of the issue in this particular coming out and saying you're going to tell the jury they have to be unanimous, we have to prompt them to be unanimous on the means here, seems like a clear legal error. Remember when he did his, she wanted to release the witness lists, and he's like, clear legal error, manifest injustice, ah. I think we might see that here. The stakes are really high because sometimes when you get indications

or you have a reason to believe that there are going to be distinct disagreements over jury instructions, the fighting over those comes like halfway through the trial or as you approach that point at which the jury is going to get the case. But here, he's really got his back up against the wall. He's got to, this is, as you said, an issue of clear error. So if this goes all the way through and they leave it until the trial to address it and get an adverse ruling, they could be smoked. You don't stop a trial on the day before the jury gets the case to file an appeal. So like I really feel like they have got to fix this thing now.

But it might not matter if she dismisses the whole kit and caboodle based on an inappropriate unlawful appointment and funding of special counsel. She's making a four part play out of this and with, you know, complete with a chorus line. And we're going to talk about that because there's been some additional information since last week on that. And we'll do that right after this break. Stick around. We'll be right back. Hey, everybody. Welcome back. Andy, let's talk about the huge production that Judge Cannon has created over the motion to dismiss based on the unlawful appointment and funding of Jack Smith. Andy, do you remember when we were going over Cannon's ruling, allowing

oral arguments from third parties? And there was a brief mention of Walt Notta that kind of jumped out. Yeah, it was a, hey, wake up. Yeah. It was a nudge, nudge, wink, wink. Right. Hitting the kid in the classroom who's sleeping on the back of the head with a ruler. Like, hey, hey, pay attention. Yeah. She said in that ruling, she said, quote, by appropriate notice to be filed no later than June 10th, defendant Nata shall clarify whether he adopts or joins in defendant Trump's motion to dismiss based on the unlawful appointment and funding of special counsel Jack Smith.

And I just imagined Stan Woodward going, well, it seemed like a really stupid motion, so we weren't going to join it. But now that you say that you want us to, I think we'll join. He would would thought, you know, I've blown a couple deadlines so far. I'm not going to miss this one. This one's got to get in on time. She's basically saying like, hey, I could dismiss the whole case here against your your buddy. Do you guys want to have a piece of that if it goes that way?

Yeah, and that's what happened, man. Not a snap to attention, woke up, wiped the drool off of his mouth, like we used to when we fell asleep in class, and filed to join the motion. And then this week, Judge Cannon granted it in a minute order issued on June 11th. All of this, the one day hearing on the motion, the multiple amicus

briefs, then making it a two day hearing and allowing 30 minutes of oral arguments from each side by third parties, then telling Nada to join and granting his motion. She's really actually considering this motion. And I mean, she considers every single one and takes nine months to litigate the redactions. So I was wondering, man, what if she, why is she so focused on this? What if she grants it and dismisses the entire case on the unlawful appointment and funding of Jack Smith?

I thought, you know, why this motion? Why, when she has so many other motions she could do this song and dance with, are the rules and regulations surrounding special counsel extra squishy enough for her to get away with it? But I also wondered if a ruling like that would wipe out both Jack Smith cases, right? Like if she finds Jack Smith is unconstitutionally appointed or funded, does that make all Jack Smith prosecutions go away? And this particular appointment of him is special counsel. Maybe that's the reason she's considering this, right? She can kill

two birds with one stone. But I didn't know whether a ruling from Canon could impact the DC case. So what do I do? I asked the experts, right? Nice. And here's what Joyce Vance told me. She said, I said, what does this do to the DC case? She said nothing. Her ruling is not binding on any other judge. Her decision would be appealed to the 11th. If they didn't reverse her and in DC,

a conflicting ruling emerged, that would be the kind of circuit split that SCOTUS would resolve. But there isn't a lot of legal merit to this argument. So that's what Joyce had to say about this. And I'm wondering is the whole point of this to get that SCOTUS split decision and force the DC case up to the Supreme Court again. You know what I mean? I think that, well, I think Joyce is right on the mechanics of this. If Trump prevails in

Florida, it doesn't really have any precedential effect on DC, but it has a practical effect. If Trump is successful in Florida, you know this same motion is going to come down the pike in DC, and they're going to cite the Florida case. Florida case won't be controlling because it's a different district. But they're going to say, look, they're going to take another shot at it. I don't think the motion has much merit either.

I think the most divergence in how the district courts decide it would not be enough to really get the Supreme Court's attention or involvement, I don't think. But a difference in how the appellate courts review it could potentially bring that kind of Supreme Court scrutiny. But honestly, I think the most likely, if she grants it, I think the 11th Circuit's gonna just turn around and slam her over it. It's not gonna survive their review, and it could very well be the decision that gets the case taken away from her.

Interesting, very interesting. So, and it's also- Go, do it, yay, do it. It's also possible that knowing that this decision is coming up, it may be that Jack Smith is keeping his powder dry on the thing we were just talking about, the issue of potential legal error on that jury, referring to the jury having to be unanimous on the means. He may be thinking, well, wait a second. Let's see what happens on this Cecil B. DeMille production

over three days and 40 parties. And if she goes the wrong way on this one, then we'll just package it all up together. And we throw that at the 11th circuit and say, it's time to find a new chief for this thing. Not a new judge, obviously. Yeah, yeah. So we'll see.

I mean, there's a lot hinging on both of these motions, but you know, I kind of feel like at the end of the day, she's just going to deny the motion. She's going to take a bunch of shots at Jack Smith and then deny the motion, maybe without prejudice, and we'll just walk back, get back in line, and keep marching. Right.

Yeah, I mean, that seems to be the if past is prologue, right? Yeah. But there's a new motion to dismiss that she could get all excited about. Yes, there is. So we have a brand new motion to dismiss the indictment based on spoliation of evidence and violation of due process.

Now, are we pronouncing spoliation? Because as I was reading it, I was telling myself it was spoilation. Well, and that's how I was spelling it, right? Like when I'm reading it, I was telling myself it was spoilation. Which seems to make more sense. And that's how I was spelling it, right? Like when I'm typing away, I'm like S-P-O-I-L-A-T-I-O-N. And it's like, nope, it's spoliation. And I'm like, but is it pronounced spoliation?

I have no idea. I really don't. All right, so we'll take listener feedback on that one. We'll be looking for that in the questions next week. Okay, so President Donald J. Trump respectfully submits this motion to dismiss the superseding indictment and to suppress all evidence seized in connection

with the August, 2022 raid at Mar-a-Lago. Raid, raid of course, yeah. Based on the FBI's destruction of important exculpatory evidence relating to the locations of the allegedly classified documents at issue. The prosecution team destroyed exculpatory evidence supporting one of the most basic defenses available to President Trump in response to the politically motivated charges in this case. The special counsel's office has wrongfully alleged that President Trump was aware

of the contents of boxes in August 2022, when those boxes were packed by others in the White House and were moved to Florida in January 2021. The fact that the allegedly classified documents were buried in boxes and commingled with President Trump's personal effects from his first term in office strongly supported the defense argument that he lacked knowledge and culpable criminal intent with respect to the documents at issue. Any proximity between allegedly classified documents and other dated materials from years before the move, such as letters and newspapers,

would have further strengthened this argument. The prosecution team's instructions to agents who executed the raid essentially acknowledged these propositions and directed the agents to take care, to document the location of both seized items and potentially privileged materials. However, the agents disregarded those instructions. The government was more interested in staging and leaking manipulated photographs to the press than preserving key sculptural evidence that has now been lost forever. The agents did not maintain the order of the documents and they did not take photographs

that would have served as alternative evidence of the document sequence in each box. In July of 2023, the agents disclosed this fact during a meeting with prosecutors from the special counsel's office and the U.S. attorney's office for the Southern District of Florida. But the office, meaning the special counsel's office, did not timely disclose the notes from that meeting for almost a full year. Indeed, they persisted in that suppression,

notwithstanding that the notes were responsive to an October, 2023 discovery request from President Trump, while urging the court to rush to trial based on false assurances that they were in compliance with their discovery obligations. Hmm. Okay, so he's alleging that the agents didn't maintain the order of the documents during the search, but they did, and that they didn't preserve the order by other means. Correct.

But they did. They scanned these in, in order and sent those scans. And when, you know, remember when, uh, what's his face went through a couple of the boxes and they had a whole production just to get them to him, like in December of last year, cause he needed a skiff and he's like, we built you a skiff and there was that whole back and forth. And then he went through some of the boxes and I guess they didn't match the scan. And it's because all the boxes kept being moved around like in the special master fiasco and all that other stuff. But he's saying that there was a meeting in July 2023, where the FBI agents, I guess,

in a meeting- That's what he's alleging. Yeah. In a meeting with prosecutors from special counsel's office, told them something about the order of the stuff. And he didn't get the notes of that meeting until- October of 23. No, they persisted in that suppression, notwithstanding that the notes were responsive to an October 2023 discovery request. Well, he's got them now.

When did he get them? Yeah, it's not, I don't think it's clear. I was thinking of the October 23 date, but that's not, it's not clear. How did he get him? I mean, like I'm the first time I read this, I'm like, how does he know about a meeting between the prosecutors and the attorneys? Like, you know what, I bet he has these, I bet he has the notes and they're not what he thinks they say. And he's calling it a discovery violation and the evidence is spoiled, right? That's probably what's going on here. But here in the motion, he says, in hearings during March and April 2024, special counsel's office misrepresented to

the court that the pre-raid sequence of the documents was intact. Only after an evidence inspection by counsel for Trump's co-defendants revealed the extent of the problem, did the office disclose in a May 3rd, 2024 filing that the documents were not intact as had been claimed previously. Vague language in that submission and corresponding additional discovery demands from President Trump caused these due process violations to further unravel. To date, the office's discovery obligations and ethical requirements have taken a backseat to President Biden's election interference mission. Of course they have.

That must stop. For the reasons set forth below, the court should dismiss the superseding indictment, suppress evidences during the Mar-a-Lago raid, and conduct such fact finding as is necessary to shed light on the misconduct by those responsible for destroying exculpatory evidence. So what do you think?

We're gonna have a month long briefing practice followed by a hearing? Absolutely. There's no reason to believe that we won't have an extended briefing, response, rebuttal, reply, who knows what's next. And then it'll be another few weeks before they schedule a half a day hearing, at least. Maybe they bring in some am a Miki, who knows.

Yeah, right. But you got to hand it to Trump once again, another motion they're swinging for the fences. They want not just an absolute dismissal of the indictment, which means a dropping of the charges. They want a fact-finding commission to come in and shed light on this misconduct. Like, his motions are so unbelievably conclusive. I don't know. We've said it a million times. It's just kind

of nonsensical to read. Yeah. And even though we could go through the whole fact-finding thing and take six months to do this little separate trial, I know judges are loathe to have mini trials and that's what he's doing. He's got 13 little mini trials brewing. Exactly. And she's not loathe to do this, but all the truth will come out,

but that won't matter because that's not the point. The point is to delay. You know, Jack Smith could very well reply indicating the existence of the independent, whether it's an inventory form or photographs or the scanning procedure of the document that preserved the record and basically say, yeah, when the when the doc when the box got back to you, things had been looked at and moved around. but it doesn't matter because the order they were scanned is the order they were found in.

That's what you refer to. If you're trying to make arguments based on what document was next to whatever other document, what you need to look at is the order of the scan. And that should be enough for any judge to dismiss this motion. He has said that. He has explained this whole entire thing in a previous filing. So I'm not sure. But here we are.

But we're not done with delays yet. We've got one more to tell you about, but we have to take another quick break. So everybody stick around. We'll be welcome back. All right, one more delay to report in the Mar-a-Lago case before we get to listener questions. Listeners, if you have questions, there's a link in the show notes, you can click on and fill out the form and send in your question.

So Trump had a motion that he filed on June 10th that reads, President Donald J. Trump respectfully submits this motion on behalf of all the defendants seeking an extension of today's deadline for rule 16 expert disclosures until July 8th, 2024. Defense counsel have been diligently working to identify and engage potential expert witnesses, but the process is not complete. As the court is aware, President Trump and his counsel recently concluded a six week trial in New York, which has made the timing of the expert notice deadline challenging. Okay, why didn't you bring that up?

I don't know. Since the New York trial, we've also been reviewing recent productions of classified and unclassified discovery by the special counsel's office, preparing to file a pretrial motion based on certain of those disclosures and preparing to timely file our SEPA section five notice, pursue it to the deadline set by the court. That deadline was originally in November of last year. I mean I almost choked when I read that the first time. Our timely, there's

nothing timely about anything SIPA in this case. It's all out of time. And as he's going through this list of their terribly time consuming tasks, I know the listeners can't see this, but I'm playing the imaginary violin here. Like hire more lawyers or get it done. Like this is not, you know. Well, they say moreover this last weekend, a potential expert who was under consideration notified us that she, he could not work on this case. We're in discussions with other potential experts, but given the need to confirm that witnesses are conflict free and able to complete the engagement process, we have been unable to finalize our expert

engagement by today's deadline. So Andy, I just, quick question. What do you think Judge Cannon would say if Jack Smith asked for an extension on the day something was due? Oh my God, no chance. No, you lose. No soup for you, Jack Smith here in the Southern District courthouse. Not a chance. There'd also be a rule change and a minute order as long as my arm. And possibly sanctions. Like who knows?

Like, oh. Further of this will go sanctionsville. Yeah, exactly. Well, here's, here's what the government said, by the way, because now that the, now we have the new meet and confer rule where you have to separately add a certified meet and confer and give 200 plus words verbatim of whatever the opposing side says. Here's what the government says. The government opposes a third extension of the defendant's expert notice deadline.

Love the way their request didn't even mention the fact that it was a request for a third extension. Just ignore that part. It makes them look bad. Since the court set defense expert notice deadlines of November 15th, 2023, the defense has already sought and received two adjournments of pretrial deadlines, one that vacated the defense expert notice deadline altogether until an undefined later date, and another that resulted in the month-long extension of the deadline from May 9th to June 10th. Both of these were over government objection. This

morning, June 10th, the day the notice is due, Trump's counsel notified the government for the first time of his intention to seek another extension of the deadline because, according to counsel, over the weekend of June 8th and 9th, Trump's expert declined to participate in this trial. The government assumes that this is the only expert Trump intends to notice because otherwise there's no reason he couldn't designate the other experts now. Regardless, the defense has had notice

of the government's experts for nearly five months since January 12th, 2024, and there is no reason the court should grant yet another extension. So here's Cannon's decision, Andy. She says, for the reasons stated in the motion, the court finds that good cause exists for the extension request and that no prejudice to the special counsel or to the proceeding will result from granting the relief sought in the motion. Honor before July 8, 2024, defendant shall file their rule 16 expert disclosures and moving forward, any requests for extension or enlargement

must be filed sufficiently in advance of the deadline at issue. Okay. Thanks. So she mentions it, but Hey, in the future, give a little more time. She doesn't say how much time she doesn't. I mean, this is so ridiculous to me. Oh my God. I mean, I have so many things I want to say.

First of all, what happened to the meet and confer guidelines, the brand new guidelines on meet and confer? Oh, they had that. They had it. They had a whole separate certified meet and confer with the verbatim from the government. That's, that's how, where I got that government's response was from their certified new meet and confer shiny brand new. So close. I mean, it must've happened that day because they say that they lost the expert, whatever over the weekend of June eight to nine.

Yeah. That's what the government said. They said Trump's counsel called us today, the day that it's due, and said that they weren't going to, they're going to ask for an extension. Yeah, I mean, I, you know, I actually like, why not? Why, if you're Trump's lawyers, why wouldn't you do this? Because they get away with it every time. So keep doing it. Keep asking for ridiculous things, filing insane motions that have no legal basis,

because it works. Every time they file it or make some kind of ridiculous request, it gets granted. Every filing gets fully considered with a massive hearing and briefing process. So the message she's sending them again and again and again is I am open to whatever nonsense you guys are up for. And that's definitely happening here.

Agreed. And actually the problem with this one is there's not a lot, what's if she was gonna decide the other way on this one, what would she have done? Said, okay, fine, you failed to meet the deadline, you don't get to use any expert witnesses. She gonna do that? Not a chance.

That would create, so he'd go to trial without any expert, without the ability to bring in an expert witness because he missed the deadline. No judge is gonna do that because it creates a obviously appealable issue. But she could have at least taken him to the woodshed and said, I'll give you to the end of the week. I'll give you three days or something like that. But no, she's totally open to this stuff. And as long as that's the case, they're going to keep doing it.

Yeah. And she didn't say that this is sanctionable behavior or contemptuous behavior. She didn't say in the future, all of your filings for extensions must occur a week in advance of the due date. She just said, Hey, next time, maybe a little bit sooner. Cool. Thanks. Bye. It's just ridiculous.

Yeah. If Jack Smith had done this, who boy, there'd be sanctions hearings. There'd be a show cause. Maybe contempt. All right. Well, let's move on to our favorite segment, listener questions, because I know we've got really, really incredible listeners that just ask the best, they have the best inquiries for us. So what do we have this week, Andy?

All right. So the first one I picked, because it's kind of, I mean, breaking my tradition here, it's a little bit off topic. I don't think it's anything we've discussed this week, but it does reference kind of the end of the show last week. So Barbara from Missouri writes in during your conversation toward the end of episode 80 about the ongoing investigation into the fraudulent elector scheme, you reminded us that one of the duties of the special counsel is to write a report on their findings. This made me wonder about the timing of the report. Since the trials are obviously not going to be held before the election, would it be possible for the report to come out before the trials so that the public could have more

information prior to the election?" And then she goes on to say, thanks for all you do. I'm an OG listener and value the way you make complicated topics accessible to everyone. Thank you for that, Barbara. I appreciate it. It's kind of an interesting question and I think it's a very logical and reasonable one, but I'm afraid the answer is probably a pretty clear no. So yeah, there's really no clear path for either of these cases to

go on trial before the election because of all the reasons that we've been discussing for weeks. But as long as there is the possibility of going to trial ever, the special counsel is not going to release their report until after that, essentially until either the trial is over or it's impossible that we'll ever have one. So they would never put information out that could in any way prejudice the outcome of a trial. So as long prejudice the outcome of a trial. So as long as the possibility of a trial is still hanging out there, they're going to hold their fire on the report until they have to.

Now in the normal world, they would get to have these trials and when it's all done, they'd put their report up. In this case, of course, there's the challenge of what happens if Trump gets reelected and then they're all going to get fired very quickly. So my guess is they've probably done a lot of work on the report already and I would expect that they'll be ready to hand off something to the attorney general in the event that Trump wins in November. Yeah.

Though I, you know, I quickly looked this up because I was reminded of the Durham investigation. Um, this is from the New York times by summer of 2020 with election day approaching, Bill Barr pressed Durham to draft an interim report centered on the Clinton campaign and FBI gullibility or willful blindness. On September 10th, Ms. Danahee discovered that other members of the team had written a draft report that Durham had not told her about and Danahee erupted, according to people familiar. She told Durham that no report should be issued before the investigation was complete and especially not just before an election. And she denounced the draft for taking disputed information at face value

and she sent colleagues a memo detailing those concerns and then she resigned over it. So that's what I was immediately recalling when you said, can we get an interim report out there? I was like, that would be really cool. But I think that that's very against kind of DOJ standard operating procedure. And it was a big problem with Durham. And I think that and Danny, he wanted to resign over it. You remember all that? I do. And, and the, you know, that was a political, it was a political move. Dennehy was right. And what Barr was trying to do is get a report out there before the election went the other way, essentially. And Dennehy objected to it.

And Durham didn't do it. But what he had was, and I think they probably were fairly confident that this would be the case, that once Biden got elected, Biden and Garland didn't tank the special prosecutor. Nope. They respected the designation and the process, even if they were likely suspicious of his goals and what he was trying to do, and they let him take his sweet time to finish his prosecutions and his report.

Jack Smith will not have that opportunity. I don't think there's a snowball's chance that they would ever release a preliminary report before the election for some political purpose. You will not see that, take that to the bank. But I think that if he knows he's about to be fired, he's going to want to hand over the results he has at that moment to kind of preserve it for the record. That's not the same thing. That would take place after the election is already behind us. So

it wouldn't be a move in effort to try to change the, you know, change the history or change the direction of things. It would simply be establishing for the world what they had determined at that point. And then there you go. Right. And it just, you know, he, he wouldn't draw any conclusions about guilt or anything like that. He was pretty much the way, you know, Mueller put his stuff together was like, here's the elements. Here's what happened. The elements were met. Have a nice day. You know, kind of because they haven't been gone to trial yet. So wouldn't have gone to trial yet by that point. Very good question. Correct. All right. One more very quick one,

because I know this is this a topic that you and I have been discussing all day. Mel from Sherman Oaks. He's got a lot of questions about the Supreme Court and what they're going to do with their holding on the immunity case, right? And he seems to think they'll hold onto it to the last minute. And then he goes on to ask, we know it's up to us in November to decide whether or not Trump will ever be tried on any of the special counsel cases. But do either of you believe that it's at least a good sign that SCOTUS will not grant him immunity? This is the fact that they haven't released their decision yet. He goes on to say, if they were going to grant it, wouldn't they have rushed that decision out quickly to remove the burden and taint from Trump

as early as possible? I'm not sure about that, but I do think it's still, as late as it is, I think the likelihood is they are going to find some kind of immunity for presidents, and they're gonna try to define that in some way that the court can work with. And I think it remains to be seen as to whether or not the way they defined it, Trump will fall within that sort of immunity.

I think it's still a pretty good chance that he will not. It seems to me they didn't really give any significant consideration to this idea of absolute immunity. So I think that's not going to happen. But they definitely seemed interested in their, you know, making a quote decision for the ages that it should be something that preserves some protection for presidents against like clearly politically motivated criminal cases and maybe only ones that come from the States. I don't know.

Um, but we'll see. I think it's going to be some splitting of the baby, which will then require the DC court to apply the new standard and figure out where we're going. Yeah. I don't think that, first of all, thanks for the question. Yeah. And I was opining on that today. I said, they're going to wait till the last possible moment because I called him the flag man and the bag man. Alito and Thomas are going to want to help Trump as much as they can by delaying this as long as possible. And I, you know, he wants to know if it's a good sign that they won't grant absolute immunity. I don't necessarily think that that was ever on the

table absolute immunity for Donald. I agree. I'm with you. I think what's taking so long is Alito and Thomas maybe writing a dissent or saying something specific about this. I think there will be a remand back down to Judge Chutkin and whether what they give her to decide is appealable or not is what's going to dictate how long, much longer this case is delayed. If they send, if they say, Hey, yeah, presidents have absolute immunity on core executive functions, which by the way, they already do enjoy that because they're core executive functions.

But let's say they do that. And then they say, you know, you go, you just, they might actually say nothing in the Trump indictment here falls in that category. So back to court you go. Or they may say, Judge Chuck, you have to figure out if any of the items, any of the charges fall within the immunity we've just granted to presidents. Go. And then we'll see what happens from there. If what she comes up with is somehow appealable back up to the Supreme Court, then we're... The clock starts over. Yeah, the clock starts over. Yeah, the clock starts over.

That sounds right to me. I think as a practical matter, even if you don't get to that point, there's still the likelihood of getting the DC case on trial before the election is almost nil. Well, if she uses the same amount of time, Anna Bauer just did this calculation. If she uses the same amount of time, she doesn't truncate the time that she had already given Trump to prepare his defense. Trial would start September 16th, but that's if a ruling had come out, I think today. So now, you know, if we go another three weeks, then we're looking at October, which is still something that I don't think Judge

Chuckin would be opposed to if she gets it back and can go again. She may also truncate the time Trump has left to prepare for trial a little bit, maybe dragging it back to mid-September. We just, that would, we're all speculating at that point, but I don't think she would decide not to go to trial in October just because there was an election. She has said multiple times, and it would be weird for her to go back on herself, I don't care what your job is. And if running for president is your job, don't care. Yeah, I don't care. Yeah, I don't know. I think there's gonna be a lot of pressure on her

not to start the trial at some point right before the election. What that point is, is it October 1st? I don't know, is it September 15th? Yeah, does she have something in her head that's too late? Right, like at this point, I could still start it and get it in and not impose an undue burden on his ability to communicate his, you know, to the voters during his run for the presidency.

I know you make a lot of arguments about how that shouldn't be a factor, but I think it is whether you like it or not. But we'll see. We don't know. And, and the first hurdle is, does she get the case back? I E is there no absolute immunity? Pretty confident we'll get over that hurdle. Right. Once she gets the case back, what does she have to do? Right. What does she have to do? And is it appealable? Even just the process of going through whatever they set up for her could take a while. And then as when the result of that process comes out, is it appealable back to the Supreme Court?

Like, here we go. So, yeah, I know. I was honestly thinking like in my head, I think like a January, I'm looking, I think like Q1 next year is when this trial goes, but we'll see what happens. But that's, you know, that's why we're saying that the Supreme Court has already kind of de facto granted immunity in this case by allowing it to not go making sure it doesn't go before the election. They've already given him the gift of a thousand Christmases. He already got the bike under the tree and the GI Joe with the kung fu grip. Every is like every day, every day beyond now is just like an extra stocking stuffer.

That's so funny that you quote that you quote, I'm assuming you're quoting Trading Places because he says that I'm not going to be able to get my kid the GI Joe with the Kung Fu grip. I was actually, it didn't even occur to me. I was thinking about what was the best Christmas gifts when I was a kid. And for me, bike, because I'm a big cyclist. I'm like, well, not everybody loves a bike, but I do with the comfy grip was like literally a national obsession. But it's funny because I arrived at the Philly train station today and I wanted to look for the escalator where he goes down, you know, and waves goodbye to Ophelia and the Butler

Coleman. Yep. And she's like, I could use a stiff drink, right? And yeah, we walked away headed to the New York Stock Exchange with our life savings. That's what I do when I visit a town. I go on a movie tour. Like when I was in Chicago, I'll do what the Ferris Bueller did on his day off and stuff like that. So it's funny that I just arrived in Philadelphia and you did a GI Joe with the stuff like that. So it's funny that I just arrived in Philadelphia and you did a GI Joe with the Kung Fu grip. So anyway, thank you for listening everybody to Jack the podcast about all things special counsel. Again, who knows where we're going

to be next week. I still don't think we're going to have an immunity decision because the next decisions are coming down on June 20th. And actually that was the date that Anna Bauer based, now that I'm remembering it, that Anna Bauer based her September 16th trial date on, June, the June 20th decisions. Uh, if they come back and say, go for it, go forth with the trial, September 16th would be the start date if she didn't truncate it at all. So we'll see what ends up happening. But thank you to listeners for submitting your questions.

They're always very thoughtful and wonderful. Do you have any final thoughts today? No, just another great, seemed like a slow week, but there's always meat on the bone to talk about here. If you're interested and we know our audiences is getting down in the weeds on these legal filings. I feel like it's the only way to really know what's happening in these cases. So appreciate folks for sharing that interest and listening to what we had to say. So thank you. Yeah, appreciate it too. And we're going to be live at Hamilton in DC on what August 16th.

There are still some tickets available. You want to snatch those up because they're gonna go fast once they start publicly promoting that show so grab them get them while you can and We'll see you out on the road. And of course, we'll be back in your ears next week So I've been Alison Gill and I'm Andy McCabe