Jack - Episode 83 | Side Quests in Mar-a-Lago

Episode Date: June 30, 2024

Judge Cannon is off on several side quests. Including hearings on alleged violations of Trump’s 4th Amendment rights; the funding of the Special Counsel; Evan Corcoran’s notes.She’s also called for briefings on Trump’s motion to dismiss based on spoliation of evidence.We have updates to Jack Smith’s motion to modify Trump’s bail conditions and information about a previously unknown trip Trump took from Bedminster to Mar-a-Lago before the search to check on his boxes.The Supreme Court handed down its ruling on the Fischer case. How does their interpretation of 18 U.S. Code § 1512 affect Trump’s indictment?Plus, a listener question.  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 83 of Jack, the podcast about all things special counsel. It is Sunday, June 30th, 2024. I'm Alison Gill. And I'm Andy McCabe. Oh my gosh. We have so much to cover this week. I hope we can get it all in. Okay. So that includes hearings held by Judge Eileen Cannon on Trump's motion on his fourth amendment rights being violated with the search warrant of Mar-a-Lago, the multi-day hearing on the funding and appointment of special counsel Jack Smith. Another hearing on whether Evan Corcoran's notes are protected by attorney-client privilege

and new hearings that she scheduled on that issue. Hmm, lovely. We also have briefings in the spoliation of evidence motion. That's totally separate from all the hearings this week. We have updates on Jack Smith's motion to modify bail conditions. We have a secret trip that Trump took from Bedminster to Mar-a-Lago before the search to check on his boxes. I got the theme song from Secret Agent Man just rolling through my head.

Yeah. And we have updates on Supreme Court rulings, including the narrowing of Title 18 U.S. Code Section 1512C2 and a decision on immunity that is expected tomorrow, Monday. Andy, it is a jam packed show today, but we should do a quick round of Good Week, Bad Week. Yeah. So like, I don't know. I mean, I, well, I I mean I guess I'll in a very kind of top line way I'll say Donald Trump good week yeah, I mean like he had a we you know, we've all been kind of digesting the Debate performance from Thursday night, and I think he's probably feeling pretty charged over that But the Friday's decision on the Fisher case is definitely a good thing for him. For a bunch of different reasons. It's not insurmountable for Jack Smith and the special counsel team.

We're going to obviously go into all the details of that. But I think those two things alone, he hasn't had a lot of good news lately, but he had some good news this week, I think. Interesting. I was going to say a bad week for Trump on 1512 C2 for the opposite reason, because when I dug into that and read into it, it actually doesn't touch his charges at all, as far as I can tell. And there's some specific language, like I said, that we'll, you said, we'll get into a little bit later. It does narrow the scope, which isn't, you know, like great for Jack Smith. But I don't, but you know, and there may be some additional briefings that have to happen once the trial gets back on track. Who knows when that'll be that, that cover this particular, these, these two charges, because he's charged with

1512C2 and 1512K, which is conspiracy to commit 1512C2. So the foundation of that second conspiracy charge is 1512C2. But there may have to be additional briefings or hearings or reconciliation on that point regarding the narrowing because I'm sure Trump's Trump will file a motion to throw it out based on this new ruling. Totally. And I think on that grounds alone, it's good for him. Right. Because look, the big picture is always delay. There's no question he gets some mileage out of this. Again, we don't know if he needs any more delay, depending on how things go on Monday.

But if the trial gets back on track, he's definitely going to use this case. He's going to file some motions. There's going to be litigation over how and whether or not the indictment survives this. I think it does as well. I think we're probably of the same mind on that, but there'll be talk about it and there'll be hearings. And if they don't go his way, there'll be appeals like, la la la, we've been down this road so many times. So for that reason alone, I think it's positive for him, but obviously the devil's in the

details as to how the whole thing shakes out. Yeah, I agree. I agree with that. And whether or not he can appeal all the way up to the Supreme Court a motion to dismiss 1512 C2, it would be on statutory grounds. And the interesting thing is, and we'll talk about this as well, is that Judge Chutkin hasn't ruled on Donald Trump's motion to dismiss on statutory grounds. So this could all come out in her ruling, but I don't think that that's an interlocutory

or an appealable thing all the way up to the Supreme Court. So that might just be the end of it. But again, who knows when that even happens? We'll know more tomorrow, you know, Monday when the immunity ruling comes out. The second shoe drops on Monday. All right. So should we jump in? Yeah, let's jump in with the Supreme Court. We're already there. Aside from gutting the 40 year old Chevron doctrine in the biggest power grab for the court since Marbury, according to Ellie Mistal, and right after making it legal to bribe government officials as long as you do it after the favor, the Supreme Court on Friday narrowed the scope of Title 18 U.S.C.

Section 1512C2 in the Fisher case. And here's what Chief Justice Roberts writes for the 6-3 majority. He says, the Sarbanes-Oxley Act of 2002 imposes criminal liability on anyone who corruptly alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so with the intent to impair the object's integrity or availability for use in an official proceeding. The next subsection extends that prohibition to anyone who otherwise obstructs, influences, or impedes any official proceeding or attempts to do so. We consider whether this otherwise clause should be read in light of

the limited reach of the specific provision that precedes it. And the Supreme Court holds that to prove a violation of 1512 C2, the government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding or attempted to do so. So Andy, this whole thing Sarbanes-Oxley came about after I believe Enron. And 1512C1 was basically written

because somebody told somebody else to destroy evidence. Yeah, the obstruction law on the books at the time would penalize people for engaging in a conspiracy to obstruct, but it didn't actually have a separate offense for the person who burned up or shredded the documents. And so when Sarbanes-Oxley came along, because that sort of stuff had gone on in these big financial fraud cases, they added this provision to the existing obstruction law, 1512, and that's how you got C1 and C2. Yeah. And the majority here argues that C2 wasn't a catch-all for all kinds of obstruction.

They said it's a catch-all for document type obstruction, but allows for somebody who instead of directing someone else to destroy documents, that if they themselves shred documents, then they would be liable. So that is the way that they've ruled in this case. And you know, I was worried about them more broadly saying that January 6th doesn't count as an official proceeding or other things like that, but that's not what happens here. So the Supreme Court linked, like you said, C2 to C1. So what does that mean for January 6th defendants?

My reading is that most of the cases will actually still stand, including Donald Trump's. Yeah, so let's talk about the, let's put Trump aside for a second, just the existing J6 defendants. I mean, the numbers bear you out. So there's, I don't know, 280, something like that in that neighborhood, people who have been, January 6th defendants who have been charged with 1512 C2, most of them, vast majority, were also charged with other more serious felonies. So anyone who was convicted of everything they were charged with, of course, the way sentencing works is you get a sentence for every crime that you're convicted of and those sentences run concurrently, right, at the same time. So you really basically only serve the longest sentence you're given.

That's the one that determines how long you're in. So most of these defendants also, none of them really got anything close to the statutory maximum under 1512 C2, which is 20 years. So it's, in most cases, it added, you know, it was a couple of years sentence, but probably was dwarfed by longer sentences they got for violent activity. So those folks, it won a couple years sentence, but probably was dwarfed by longer sentences they got for violent activity. So those folks, it won't affect the amount of time that they spend incarcerated. The counts themselves will probably get dismissed. Those convictions for that crime, 1512 C2, will probably get dismissed.

I would expect that's how DOJ will handle it because they won't want to, it's not worth it to them to have to go back and relitigate every case. Well, DOJ actually just filed, this is from Adam Klaasfeld, the aftermath of the Fisher ruling begins in the case of Richard Barnett, that's the guy who kicked his feet up on Nancy Pelosi's desk. Yes. Prosecutors have already highlighted that the limited reach, that the decision of the Supreme Court has such a limited reach that they do not reject the application of 1512C2

to January 6th. So it seems that they're arguing, as Katanji Brown Jackson put it, we'll go over, you're going to talk about that in a second, that this wasn't just vacated and said, he can't be charged with this. That's not what the Supreme Court said. The Supreme Court said, we're narrowing, and then we're remanding this back down so that the court can decide whether Fisher violated it now that we've narrowed it. And in a lot of these cases, the January 6th defendants are still in violation of this statute because they tried to impede the certification of

electoral votes and those are documents. But like Fisher probably might get dismissed because he went in way after Congress was in session or something like that. So it's going to be up to these individual circumstances of these defendants. That's right. There are only about 50 FIVO defendants who were convicted only of 1512C2. And I would expect in each of those cases, they'll take a look at the facts and if they were convicted, if the factual basis for that conviction included some sort of use of a document, hiding a document, destroying a document, whatever, they might let those stand. The defendants will all file to have their convictions thrown out and this

will be fought about in court. People who had no sniff of a document in any way in their case, but pled to or were convicted of 1512 C2, they might actually find their cases, their convictions waived. But it's, again, you know, DOJ has got to really figure out what their parameters are going to be for really fighting these things tooth by tooth or letting some of them go. So, but again, it's only 50 people of the almost a thousand or more than a thousand who've been convicted, only 50 are only looking at this charge. And so those cases will be the ones that are most impacted. Yeah, agreed.

Yeah. All right, so Katanji Brown Jackson writes in concurrence with Roberts. Now this is an interesting thing because a very mixed decision here in terms of ideological line. So Roberts writes the opinion for the court with him. On that opinion, you have, I guess, Kavanaugh, Thomas, Gorsuch, you got Roberts, that's four, who am I missing? Alito and Brown Jackson. Alito and Katanji Brown Jackson.

So it's a little bit of a mix there. And then writing in dissent, opposing the court's opinion, you have Sotomayor, Kagan, and Justice Barrett, who actually writes the dissent. We can talk about that in a minute. So Judge Jackson writes in concurrence, in my view, the court properly interprets 1512C2 in the opinion it issues today. It also rightly vacates the judgment below

and remands the case for further proceedings. Joseph Fisher was charged with violating 1512C2 by corruptly obstructing, quote, a proceeding before Congress, specifically Congress's certification of the Electoral College vote. That official proceeding plainly used certain records, documents, or objects, including among others, those related to the electoral votes themselves. And it might well be that Fisher's conduct, as alleged here, involved the impairment or

the attempted impairment of the availability or integrity of things used during the January 6th proceeding in ways other than those specified in C1. If so, then Fisher's prosecution under 1512 C2 can and should proceed. That issue remains available for the lower courts to determine on remit. So essentially, it'll be up to the lower courts to determine on remit. So essentially, it'll be up to the lower courts

to determine whether each defendant charged with 1512C2 impaired or attempted to impair the availability or integrity of the electoral certificates. Because that's really documents at issue in this case. Yeah, and I talked about this. Here's something that I wrote last December, Andy. I said- Going back into the archives.

Yeah, ooh, this is about Fisher. I said, folks are worried that the Supreme Court would gut 1512 C-2 by ruling in favor of Fisher and finding that you have to mess with documents. I thought surely Jack Smith thought of this when he crafted his indictment against Donald Trump. So I went back and I read Trump's motion to dismiss I thought surely Jack Smith thought of this when he crafted his indictment against Donald Trump. So I went back and I read Trump's motion to dismiss on statutory grounds, which Chutkin

has not yet ruled on, and Jack Smith's response to Trump's citation of Fisher. Sure enough, here's what Jack Smith had to say. Quote, the indictment would likewise suffice under a narrower conception of section 1512C2's Actus Reus element, which Fisher rejected, that focused on tampering with records. The certification proceeding that the defendant and his co-conspirators are alleged to have obstructed is required under the Electoral Count Act, which specifies procedures that rely on specific core records, the certificates of votes from each state. Preventing the members of Congress from validating the state's certificates

constitutes an evidence-focused obstruction and thus would violate Section 1512C2 even on a narrower view of the statute's scope. That is particularly true where, as here, the criminal conduct included falsifying electoral certificates and transmitting them to Congress. And that came up in this ruling today in Roberts writing for the majority. He said when the phrase, otherwise obstructs influences or impedes any official proceeding, is read as having been given more precise content by that narrower list of conduct, subsection C2 makes it a crime to impair the availability or integrity of records, documents,

or objects used in an official proceeding in ways other than those specified in C1. And he says, for example, it is possible to violate 1512 C2 by creating false evidence rather than altering incriminating evidence. And Andy, that just seems to specifically address the Trump charge, creating the false elector certificates or conspiring to do so. And I think it can be said that Trump sending his mob to the Capitol was with the intent to impede the true certificates. And then finally, as you brought up, here's what Justice Amy Coney Barrett wrote in her dissent with Sotomayor and Kagan. She said, the court does not dispute that Congress's

joint session qualifies as an official proceeding, that rioters delayed the proceeding, or even that Fisher's alleged conduct, which includes trespassing and physical confrontation with law enforcement, was part of the successful effort to forcibly halt the certification of the election results. Given these premises, the case that Fisher can be tried for obstructing, influencing, or impeding an official proceeding seems open and shut. So why does the court hold otherwise? That's why she descends. So given that the court doesn't dispute that January 6th was an official proceeding and that it's illegal to impede the certification of electoral votes either by preventing them from being certified or

by falsifying your own fraudulent certificates, I think the Trump counts survive this. And I think a lot of the boots on the ground convictions will also stand. Yeah, I think it's the most likely possibility. But there's a couple of things here. So if you think about the range of possibilities, speaking specifically about the Trump indictment, Jack Smith could on one hand

keep as is, forge ahead, fight the motions that come. The other end of the spectrum is you could drop counts two and three, right? Two is the 1512k, the conspiracy to violate 1512c2, and three is the substantive 1512C2 count. Okay, there's a pretty big middle ground in between those extremes and that is superseding the indictment to kind of clean up the way it's currently phrased. And there's a bunch of different ways that he could do this. He could, this is just one possibility, he could drop count three, which is the substantive 1512C2. I don't know that that's necessary, but he could decide to do that just to avoid the

problem and then restructure the conspiracy count, count two, to base it on other violations, other obstructive acts. Like for instance, earlier in the statute, it talks about obstructing an official proceeding through threats or intimidation or acts of violence, things like that. We certainly have all that in this case. I think he probably didn't go that way initially because he thought it was so easy to go with 1512 C2 because it's the overall catch-all sort of language. So that's one option. Or he could keep counts two and three, but he could basically make the indictment more clear that the conspiracy is based on the use of documents. So if you look at the indictment, page five, paragraph 10A, which talks about, which, you

know, this is the part of the beginning part of the indictment where he's basically laying out here's how, here's what the conspiracies were trying to affect. And in that paragraph, he talks about the use of the fraudulent electors. And then of course, later in that same paragraph, paragraph 10E, he talks about the use of violence. Defendants and co-conspirators exploited this disruption created on the grounds of the Capitol to convince members of Congress to further delay the certification. So there's, he can essentially supersede to kind of put finer points on those two counts to avoid a problem running into this interpretation from the Supreme Court. Now, to do that, you're adding more time to the clock, right? This is more... So essentially to commit to this course, he's basically acknowledging no chance this thing is ever going to go to trial before the election.

And so now that since the heat is off a little bit sprinting pre-election trial, he could step back in, restructure the indictment just a little bit ining pre-election trial. He could step back in, restructure the indictment just a little bit in light of this opinion and come out with the same four counts or some version of that. Okay. So here's the crazy thing. And I got this, I had a long conversation with Tim Parlatore today in the green room at CNN. And I told Tim that I was gonna talk about this on the pod and that I would give him credit for the idea. And he did not seem to be, he was fine with that.

So it was a really interesting conversation. Guys, by the way, this is new to me. Andy didn't tell me that this happened. This is like breaking to me right now. This is right out of the oven. So he and I and Ellie Honig had been on TV talking about it. Both of them seem to be of the mind that Jack Smith should just drop the obstruction counts and it would clarify things. He gets to dodge this problem and keep the case on

track. My answer to that was if this was any old RICO case targeting like a big drug distribution network and you got like a thousand counts and you got an interpretation like this that banged up some of your counts, you would drop them because why not? This is not that case, right? And the obstruction, the alleged obstruction here is fundamental to the crime that was committed by the president, then president of the United States. So I don't see them walking away from it. So we were talking about this, how could you clean it up with a superseder? And Tim mentioned, so if he supersedes and he's now, you know, he's got a little bit more time to work with because he's no longer racing the clock. Why not also in that superseder add some counts against the co-conspirators?

Oh. So, that opens a whole new doorway of possibility. Right, because now you're talking about you're no longer racing the clock. That's right. It doesn't matter if you add a bunch of hangers on to this indictment and they delay it further because it makes no difference. We've got a whole brand newers on to this indictment and they delay it further because it makes no difference. We've got a whole brand new four years to go.

And if you add six defendants who aren't current or former presidents of the United States, it is possible there's one path that even if Donald Trump wins and has himself dismissed from the case, the case continues on against the other six, unless he pardons them. So, you know, there's a million ways that this could work out. But anyway, I just thought I'd throw that out there. I thought it was an interesting theory from Tim. That is now you can next time you're in the green room and you're talking to Ellie and Tim and whoever else is there, you can tell them Allison said that Jack Smith shouldn't do any of that until

Judge Chuck can rules on Trump's motion to dismiss on statutory grounds because she may handle it right then and there. Yeah. And taking into account this new narrowing of 1512 C2 as Jack Smith argued in his response to that motion to dismiss, this doesn't touch any of the charges even under the narrower understanding of 1512 C2. He was prepared for it. She might come back and say, yep, nope, all these charges can go forward. And then he doesn't have to modify anything because that is not an appealable ruling by Trump. Right. So I would wait to see what Judge Chuckin does. And if Judge Chuckin says, you would need to modify these or it's not clear or you need

to make clear in a bill of particulars or something, I don't know if that applies. But if she just says, no, you're right, Jack Smith is right. The documents at issue here are the core documents of this proceeding, which are the certificates, uh, votes that needed to be certified under the 12th amendment. And so these charges can move forward. And because she hasn't ruled on that motion yet, it's one of the many pre-trial motions she still needs to rule on within that 88 days that she says she would give

him once the case is back on track, if it gets back on track. Um, I, yeah, I would wait until she rules on that. Yeah. If she gets the case back, it's because there's a ray of light still in the sky after Monday. But it also means there's a lot of work for her to do and for both sides to do. So there's a lot of action coming down here, unless, of course, they find absolute immunity and then the whole thing is gone. Yeah. And she could get the case back and she

has to make a decision about charges based on the new rules of immunity. And that would be appealable from Donald Trump, because immunity is an interlocutory issue. And then it would never go before the election. It would go, but not before the election. And then we could talk about the parlatory method of indicting those co-conspirators. That's fascinating. Which starts to make, what was it, two weeks ago? We talked about the FBI agents and the US attorneys who were in Michigan interviewing the state police officer

About his you know keeping the fake electors out of the courthouse Starts to make some some of that starts to make sense. Yeah, we're gonna have a lot more to speculate on after Monday's Ruling for sure. Wow, that's really fascinating. Also, just real quick at the end of the session on Friday, Chief Justice Roberts, as we said, announced that Monday is the final decision day. So we will get that immunity ruling. It's tomorrow morning, 10 a.m. Eastern.

Set your alarm. I've been getting up at 7 a.m. on the West Coast every morning to see what they have to say. All right, we've got a lot more to get to, including all these hearings. Stick around, we'll be right back. Welcome back. All right, let's head down to Florida where this week there were four hearings in front of Judge Eileen Cannon. There was a hearing on whether Jack Smith was appointed and funded properly.

There was a hearing on Jack Smith's motion to modify bail conditions. A hearing on whether Evan Corcoran, he was Trump's, I guess, one of the initial lawyers in the Florida case for Trump. But anyway, there's a hearing on whether his notes are subject to attorney-client privilege and a hearing on whether Trump's Fourth Amendment rights were violated when the FBI searched Mar-a-Lago almost two years ago. So let's

go through them in the order they happened, which means we'll start with the appointment and funding of special counsel Jack Smith. So you'll recall that Cannon scheduled a multi-day hearing to include oral arguments from Amiki for both sides on last. I mean, I can't believe we just said that or I just said it because that does not happen ever. But anyway, it's Florida and it's Judge Cannon's courtroom. So here we go. On last week's episode, we covered the first part of the hearing, which was about Jack Smith's appointment. And Judge Cannon sounded skeptical of those arguments. And then on Monday, the hearing continued with the special counsel funding arguments. Now, Bovet argued on behalf of Trump that the special counsel's office should

not have access to the, quote, permanent, indefinite appropriations on which the office is currently relying as a funding source. He also argued that the special counsel office was not properly established by, quote, other law, which is similar to the arguments that the defense used while arguing against the appointment of special counsel, and that Congress authorized that permanent appropriation for independent counsel, not special counsel. I know it sounds crazy but that's the limb they decided to stand on. So when Cannon asked Bovet what cognizable injury results from special counsel accessing that funding Bové said quote the imminent threat of Liberty restraint to Donald Trump resulting from the continuing prosecution or a conviction

Oh, okay. I might be punished for committing crimes How that in okay, that's an injury but I'm not not sure how that derives directly from the funding. But okay, nevermind. No. But Congress didn't do it. So basically, the Trump argument is that the government is contradicting itself. The government argues that the special counsel is not totally independent, right? It has oversight from the attorney general. That's what they argued about their appointment on Friday.

But on Monday, they argued that special counsel is independent and therefore can access the funding for independent counsel. Yes. Yeah. To which Cannon responded, you've argued that the special counsel is taking inconsistent opinions, but aren't you doing the same thing? Just flip flopped? Good one, judge. Yeah, exactly. That's what they're doing. Well done. Yeah. So we don't yet have a ruling, but Cannon sounds skeptical of both arguments. Yeah. After all that three-day hearing, briefings, amicus briefs, amici, oral arguments. Yeah. Yeah. Although I will say she was, I thought, really disconcertingly interested in the funding

thing just from a numbers perspective, asking all kinds of questions about how much money and how long does this go on and why does Congress give them all this money? Like none of that is relevant to the legal issue in this motion. It seems like she was just curious. Yeah. But second-guessing Congress's decision as to how much money they decide to appropriate to the Justice Department is pretty far outside her jurisdiction. But I digress. Yeah. But this is also the permanent funding from the Treasury that the Attorney General has control over. So, you know, Boves or Blanche is like, well, Congress didn't, it's not part

of the appropriations. And they're like, yes, it is. So it's just, it's, it's a bizarre argument. But like you said, that's the limb they're standing on. And it's of note that during Friday's arguments, Boves asserted that Bill Barr's special counsel appointments were all confirmed by the Senate. Right? They don't, well, you know, like David Weiss and Durham, John Durham, they were US attorneys. And actually the special counsel regs say that you can't appoint from inside the government, but nobody actually argued on that. And I thought that was weird. But they were US attorneys confirmed by the Senate before being assigned to their respective

investigations. But in a Monday filing, Jack Smith said, you're wrong, ding dong, you're wrong. As my dad used to say, Jack Smith says, as noted at the hearing William Barr appointed three attorneys as special counsel during his first term as attorney general. They were not US attorneys. They were private attorneys. And those appointments included Nicholas Bua appointed in 91 to investigate the inslaw matter. Malcolm Wilkie appointed in 92 to investigate the house banking matter and Frederick Lacey appointed in October of 92 to investigate Iraq gate. So he basically was like, yeah,

no, you were actually really wrong on the facts here. Bill Barr appointed more than those special counsel, and there were plenty that- Plenty who weren't ever confirmed. And I would point out the two that they wanted to draw attention to, Weiss and Durham, yes, they were confirmed by the Senate, but not for the role of special counsel. No, no, no. Merrick Garland appointed them. Well, no, Bill Barr did make a Durham special counsel, but only after he found crimes against Trump in Italy that had to be investigated. We still don't know what those were. And of course, it was Merrick Garland who made David

Weiss special counsel. But the next hearing was Monday afternoon. And this was regarding Jack Smith's motion to modify the bail conditions based on Trump's public comments about the FBI's limitations on use of force, that operations form, that standard form that goes out for every search during and this was for the search of Mar-a-Lago. You recall Trump alleged that Biden and the FBI were trying to assassinate him with deadly force or whatever. And Judge Cannon did not seem willing to entertain Jack Smith's motion to modify the bail conditions. She even admonished Harbach as Jack Smith looked on. Adam Classfeld reported from the courtroom that Cannon said, Mr. Harbach, I don't appreciate your tone. And then addressed him about his lack of decorum in her courtroom

after he alluded to his rough reception saying he'd only been able to get out one of his points because she kept talking. Now, Todd Blanch argued for Donald Trump saying, there's no actual connection between Trump's posts and his statements and a danger to law enforcement. There's no threat to FBI agents, no incitement of violence. The attacks are clearly against just president Biden. Now Harbach argued, you don't have to wait for something terrible to happen, for a tragedy to strike, to modify a defendant's bond. Trump has a peculiarly potent tool of his followers that follow him on social media and Trump knows the power of that tool.

And you don't get to manifestly lie about the FBI coming to do violence to you and your family. That is over the line. Now Cannon had ordered all briefing in the matter to be turned in by June 26th. And on that day, Jack Smith filed a long list, pages of instances and exhibits like 13 exhibits of evidence where Trump's rhetoric led to violence against FBI and law enforcement. But then Judge Cannon issued an order, an amended order saying, you know what, I'm going to give Trump one more chance. I'm going to, I'm going to let Trump respond to this and gave him until July 5th to do so. So very interesting. Yeah. You

know, Stephen Miller, by the way, this was kind of funny though. Stephen Miller filed an amicus brief. Stephen Miller, right? Like, knows for ought to file an amicus brief in support of Trump in the matter, but Judge Cannon actually denied it. She's like, no, no. It's like saying you're an amicus, meaning friend of the court. No, I'm sorry. You have no friends. You're an enemy of the universe. You know, and I have to, I can't let this go because I'm, I think I'm like publicly known now as a, not a supporter of these efforts, but I have to say the filing on the 26, the long list, could have used that upfront. Right. And it should have been an emergency motion. It should have been on an

emergency basis. It's going to be real hard to take this to the 11th on an emergency basis without filing as an emergency. I don't know why they did that. I have my suspicions about a lack of enthusiasm on the part of the prosecutors about this motion. But of course, that's just rampant speculation. But they did, though, bring the June 11th threats against the FBI agent in the Hunter Biden case. They did add that as as evidence of, you know, threats against law enforcement. Yeah. So that I talked about that last week. I'm like, he should add that. And he did. But I mean, you're right.

This all should have been up front and there should have been a declaration attached and should have been on emergency basis and they should have asked for a expedited briefing. Briefing schedule. Yeah. Okay. So the next hearing was Tuesday morning and it was about a Trump lawyer, Evan Corcoran's handwritten notes that he transcribed from a voice recording. Now Trump is contending that those notes are attorney-client privilege and need to be thrown out as evidence. Even though Judge Barrell Howell in DC, who was the presiding judge over the grand jury for this case at the time, Judge Howell ruled that they were subject to the crime fraud exception. So she said, yeah, you know, essentially these notes

that memorialize the conversation between Corcoran and Trump, which normally would be privileged, are no longer privileged because that conversation was an effort by, in this case, Trump to cover up a crime, right? That's the substance of the crime fraud exception. If you, you know, it's not, if you talking to your attorney and you're lying to him so that he doesn't know about some crime you committed and no one finds out, then that conversation is not privileged.

Okay, so this hearing in Judge Cannon's courtroom was a sealed hearing. So we don't know what Judge Cannon thought of the arguments, but this past Thursday, she granted Trump an evidentiary hearing because she wants to decide afresh the extent of the crime fraud exception and how it applies to ex-Trump lawyer, Evan Corcoran's notes. So we have another hearing, a hearing based on a hearing, because the first hearing was legal arguments, non-evidentiary. And then this one's going to be evidentiary. then this one's gonna be evidentiary and she talked and then we need another hearing about legal arguments after that one and then maybe another one for amicus briefs. Well it's funny because you know Jack Smith is

like you're trying to create mini trials and the Supreme Court hates you for that don't do that. Tell everybody what she wrote. Okay so she wrote there is a okay I gotta I gotta get a full breath for this because this is a classic... Run on cannon sentence. Yes, run on cannon sentence. There is a difference between a resource wasting and delay producing mini trial on the one hand and an evidentiary hearing geared to adjudicating the contested factual and legal issues on a given pre-trial motion to suppress on the other.

Sorry. More practically, the parties can meaningfully confer beforehand on the scope and timing of the hearing, raising appropriate objections with the court as necessary. The parties can and will file exhibit and witness lists as is customary in federal criminal suppression litigation and the special counsel can request the court to impose reasonable limitations on the evidence produced to ensure efficiency and control. Okay. That's just an invitation for Trump to file a bunch of extraneous crap so that they have to litigate it as evidence allowed into this hearing. Ask for nonsense that the special counsel has to then come out and oppose and then dispute

the resolution of that side conflict. I mean, it just, it never ends. Yeah. And litigate redactions on the... So it's just delay, more delay, a lot more delay. Hearing about a hearing and then, you know, now witness lists and evidence and then disputes about evidence being allowed and witnesses being allowed. But if she throws out Evan Corcoran's notes, that really would do a lot of damage to the obstruction charges. But it is also something that is appealable to the 11th circuit. Yeah. I think it's also possible, especially now that she's steering the ship of fools into this territory,

that she could kind of split the baby. We know she likes to split babies. And by that, I mean, OK, this note can come in, but these notes can't. And this conversation feels crimy, but this one feels normal. So what, I mean, what comes out of this is really anybody's guess, I think at this point. Yeah. Baby splitter and run on sentence champion, Judge Cannon. Finally, what we're calling

the fourth hearing was actually part of the crime fraud exception hearing, this hearing that we were just talking about. Trump wanted an additional Frank's hearing. I'll tell you about that in a second. Annie wanted to throw out evidence seized at Mar-a-Lago based on a lack of particularity of the places to be searched and things to be seized. A cannon ruled Thursday denying Trump's motion for a Frank's hearing, but she reserved ruling on the particularity issue. Cause guess what?

She needs more facts. You're kidding me. So a Frank's hearing is where Trump would have to prove the search warrant affidavit contained allegations that are knowingly and intentionally false or in reckless disregard of the truth and that the statements were material necessary to the magistrate's finding of probable cause. That's the Judge Reinhold is the magistrate who signed the search warrant. And the ruling says upon full review and for the reasons stated below, the motion is denied as to the request for a franks hearing because defendant Trump has not made the requisite

substantial preliminary showing that the affidavit in support of the Mar-a-Lago search warrant contains any material false statements or omissions. The balance of the motion cannot be resolved on the current record, however, because of pertinent factual disputes. And thus, the court reserves ruling on those issues as stated below pending an evidentiary suppression hearing to be scheduled by a separate order. So now we're getting another hearing on so she can develop more facts on his like fourth amendment, I guess, grounds. And this all on top of the fact that her comments during the hearing that they already had on the search warrant really all seemed to indicate that

she was not supportive of this motion. Yeah, we all thought she was going to toss it out. And she was like, no, I need more facts. We're going to have a hearing. I'll order that hearing later. So close to actually making a decision from the bench. But no, we missed it. Swing and a miss.

All right. Well, we have Jack Smith's response to Trump's motion on spoliation of evidence and it slaps. It's a banger, Andy. We'll go over the highlights after this quick break. Stick around. We'll be right back. Hey, everybody. Welcome back. Okay, back to the mountain of emotions in the Mar-a-Lago case. On top of all these hearings we just discussed, all the new hearings that came out of these hearings and all of those motions. As you know, on June 10th, very recently, just a few weeks ago, a couple weeks ago, Trump filed a motion to dismiss on spoliation of evidence.

He had two main beefs with special counsel, Andy, if I remember correctly. First, some of the contents in some of the boxes had shifted during flight, no, had shifted and the order of the documents is essential to his defense. And the second thing was that Jack Smith violated Trump's due process rights by not immediately handing over notes per discovery from a meeting during which the government admitted that the order of some of the stuff in the boxes had shifted. Now this is a brand new motion. It's on the public docket.

It's not on the secret docket. And it's just patently ridiculous. We went over Trump's motion a couple weeks ago when he made it on June 10th. And now this week, we got Jack Smith's response. You'll recall last week, we reported Jack Smith asked Judge Cannon if he could exceed the page limit on this filing. He wanted seven more pages. She granted that request. So we knew it was going to be good. Like he needs more pages than is allowed. And here's how we-

I have more that I want to say, Judge, and I'm going to need some more runway to get this out. Yeah. And here's how they open. Defendant Trump does not offer the court a single case at any level, at any time, from anywhere in the country in which the disruption of the precise order of documents gathered in the execution of a search warrant provided support for a spoliation claim. In the roughly four decades since the

Supreme Court set the applicable standard, the 11th Circuit has never found, ever, that a defendant's due process rights were violated by the government's loss or destruction of evidence. Despite this, Trump asks this court not only to be the first to find spoliation on such benign facts, but also to employ the most drastic sanction available, dismissal of the indictment. His motion is meritless and the court should reject it. I'm just imagining what was going through Judge Cannon's mind when she read that the first time. She probably thinking, I don't want to be first. Yeah, either, either that or like, what a jerk.

I'm going to hand him his lunch. You know, like, I mean, I was going to use more stereotypes. But somewhere in her mind was like, hmm, there's not a single case out there. Just means I got to be the first one. Eleven Circuits never done it. Oh, ding, ding, red flag. They don't like me. That's right.

So Jack Smith goes on to describe the carelessness with which Trump handled some of the most, the nation's most critical national defense information. He says, Trump personally chose to keep documents containing some of the nation's most highly guarded secrets in cardboard boxes, along with a collection of other personally chosen keepsakes of various sizes and shapes from his presidency, Newspapers, thank you notes, Christmas ornaments, magazines, clothing, and photographs of himself and others. At the end of his presidency, he took his cluttered collection of keepsakes to Mar-a-Lago, his personal residence and social club.

That's great alliteration, cluttered collection of keepsakes. Yes. Where the boxes traveled from one readily accessible location to another. A public ballroom, an office space, a bathroom, and a basement storage room. After they landed in stacks in the storage room, several boxes fell and splayed their contents on the floor. And boxes were moved to Trump's residence on more than one occasion so he could review and pick through them. Again, another very visual sentencer. You can imagine him with those little fingers picking the documents out.

Against this backdrop of the haphazard manner in which Trump chose to maintain his boxes, he now claims that the precise order of the items within the boxes when they left the White House was critical to his defense. And what's more that FBI agents executing the search warrant in August of 2022 should have known that. So well put. Like that's so good. And the fact that that is so compact and that has got such good word economy, they still needed seven pages. Yeah.

Next, special counsel gets into the applicable law for spoliation claims, right? To establish a due process violation based on the destruction or loss of evidence, a criminal defendant must make two showings. First, he must show that the evidence was likely to significantly contribute to his defense. Second, the defendant must demonstrate that the government acted in bad faith. And Jack Smith reminds Judge Cannon that the 11th Circuit has held that even a remedy of spoliation instruction requires proof of bad faith, meaning that Trump is asking for dismissal of the entire indictment, not for the court to instruct the government to fix the problem. But even that

lesser remedy requires a showing of bad faith. And that's where Trump runs into the problem. But even that lesser remedy requires a showing of bad faith. And that's where Trump runs into a problem. And here's a quote from the filing. In the roughly four decades since Trombetta and Youngblood, the 11th Circuit has never found that a defendant's due process rights were violated by the government's destruction or loss of evidence. Here, Trump has failed to make either showing necessary

to establish a due process violation, and he cites no case finding spoliation in circumstances anywhere close to this case, where nothing has been destroyed and the claim is based only on agents not maintaining the precise order of documents in a box whose ownership is uncontested. And by the way, that ownership is uncontested is another nudge nudge wink wink to the PRA, national archives and what the 11th circuit ruled in the special master case. Like you don't own these things, my friend. He then explains that Trump is unable to show that the order of the documents is

crucial to his defense at all. Since no evidence was destroyed. Trump has two reasons that the order of the stuff in the boxes is important. First, if a document marked classified were not positioned in visible locations at the tops of the boxes, that could support a claim that he may have simply overlooked the documents. Kind of like what happened with Biden. Number two, if documents marked classified were found in close proximity to items like newspapers and letters dated long before his term of office ended, that could support an inference

that he may have placed them in boxes years ago and therefore forgotten that some of the nation's most sensitive secrets were in boxes before he sent them to Mar-a-Lago. I love, I love these arguments. Now per-huge Trump's previous arguments and other filings contradict his arguments here. Jack Smith says, here he is arguing that the Constitution required the agents not only

to seize all non-classified documents in proximity to the classified ones and maintain their order, but in his special master filings, he argued the non-classified stuff could not even lawfully be seized. Whoops. So, yeah, here's the quote. Indeed, if the agents had followed the procedures that Trump claimed at the time were constitutionally

required, taking only the classified documents and leaving everything else behind, there could well be no evidence of which documents were in the same box with a particular classified document, much less evidence of whether a particular document or personal effect was one inch or two inches away from a classified document. So he's just ripping him to shreds. Yeah. Yeah. And that brings us to Trump's other argument that the government violated its discovery

obligations by failing to hand over notes of a meeting where they discussed the order of the documents in the boxes, thus violating Trump's due process rights. The special counsel says, Trump wrongly suggests that prosecutors breach the justice manual unless they review and identify every item that is potentially discoverable, quote, at the outset of the case. To the contrary, the Justice Manual, the case law, and Rule 16 make clear that the government's discovery obligations are continuing and that the government has

continued to review and produce additional materials as required, including potentially exculpatory information and early Jenks Act materials. The agent notes on which Trump relies here were supposed to be on a disc whose contents were produced to the defense in February 2024, months before the defendants raised the precise ordering of the documents in the boxes as a defense. But the notes were not produced in the February production due to a technical problem in the file transfer process

that was not discovered until May. In any event, after the defendants made their request, the government discovered the error and produced the notes well in advance of trial and in full compliance with the government's obligations. That's exactly what I said last week. I'm like, you can't violate discovery obligations if discovery is still happening. The trial isn't, we aren't, you, you got them. Like you got them, bro. And here's how Jack Smith closes out this filing. The advanced planning of these steps, their execution in fact, and the litany of additional protocols and precautions that

were taken in connection with this search, labeling each and every box in the storage room prior to the search in order to be able to identify from which box each seized item came, employing later offsite careful review of potentially privileged materials before releasing any to the case team, preserving box-to-box integrity, and taking photographs of the searched areas both pre-search and post-search are all utterly inconsistent with bad faith. In short, this search was conducted lawfully, professionally, efficiently and respectfully. Trump proffers no evidence of bad faith because there was none. And for the foregoing reasons, Trump's motion should be denied without a hearing. And that was something else he brought up too that I didn't

put a quote in here for, but even if the dates of newspaper clippings would show that these were old and he had these in the boxes, everything that was in an individual box stayed in that individual box. So the difference in the dates, it's not like he moved stuff from one box to another. So all of the dates and things in that box would be around the same time. It wouldn't be, you know, it's the intra box integrity was maintained.

Yeah, it doesn't matter. And the dates, you know, the might there be old dates on articles that are in there with documents, like, there's no element of these charges that's relying on date, dating his possession of national defense information. I get it. He wants to make some sort of argument like that and he can do that, but it's ultimately not relevant to the elements of the offense. The other thing is evidence in a search warrant is frequently manipulated, not manipulated in a, you know, sneaky way, but like, you know, you see as a handgun or any firearm, you have to examine it, make sure it's empty, safe and empty. And then if you have a firearms instructor come through and put a zip tie through it. So like, it's not in the exact, exact condition as it was when

you open the defendant's underwear drawer and found the, you know, the pistol. And the same is true for documents. Like people have to go through and look at them and see what's there. Before they get seized, the agents have to determine that it's actually what's in there is relevant to and comes within the four corners of the search warrant. So there is no expectation that everything you take off a search warrant is like preserved in amber the way it was before you walked in the door. Yes, there's chain of custody. So who had custody and control over it and who may have looked at it or looked at the documents and replaced them or whatever are things that agents have to be able to testify about. But it doesn't mean that those things can't happen. Like fundamental examination of the evidence has to take place.

Some of that takes place on scene and, you know, things getting moved, looked at, put back, that's just a part of the process. Do you know what I bet happened? It sounds to me like Trump, you know, when he's having the guys bring his boxes up to his anti-room, a pine hall and picking through stuff, which Jack Smith mentions in this, you know, before he's picking through them, before that he was picking through them to return some of the boxes to the National Archives. I bet Trump sat there and took the real important documents he wanted to keep and put them in old boxes next to stuff dated with old dates on them so that he could say, oh, I put that in there in 2015

or 2017. I haven't even thought about that. I bet he was mixing this shit up because he went through these boxes and took things out of boxes and sent boxes back down for Corcoran to look through. Those boxes weren't preserved as they were when they were moved out of DC. And we got a lot of new photographs too in the exhibits of this. We got photographs of other boxes that had spilled over. We got a box of the photographs too in the exhibits of this. We got photographs of other boxes that had spilled over. We got a box of the photograph of the leather box that contained some of our most guarded secrets and possibly the binder that everybody, you know, of Russia, of the crossfire hurricane, maybe, I don't know.

But they were kept under diet coke things. Cases of diet. Yeah. And there was actually one box that right on top had the article of me and my whistleblower with a big picture of Val Broeksmit on it, who was a Deutsche Bank whistleblower with with that had to do with Trump and Russia and money laundering. So just like very interesting new photographs that shed light on just how there's no way that the integrity of the order of the stuff in this box

makes a difference. It was chaos, like he said. And the other thing is like his arguments basically both hinge on some version of this. Like if I had the original order, if it were maintained, then I could use that as evidence of the fact that I didn't really know what was in there. So they're both kind of come back to this. Well, I didn't really know there were secret stuff in there. That argument is destroyed by the obvious record, right? His multiple, you know, there's going to be all kinds of witnesses who testify about boxes coming in, going out, coming in, give me this one, give me that one, stuff being reviewed. He's reviewing it, determining what goes back to NARA, what

doesn't go to NARA, and then fights with them for a year over keeping all this stuff. And tries to destroy video of it and obstructs the return of it. To keep a bunch of boxes that you don't know what's in. He wants to be like Biden and it's just not going to work. No, it's not. It's just not going to work. It's not. Biden didn't flood the garage.

He didn't take video. He didn't destroy video of video of him trying to destroy the video. Like it's... He didn't dispatch Bob Bauer to go out to the house next to his house and meet with someone through the hedges. Through the hedges. Yeah, Like Homer Simpson. All right. We have one more quick story from Kathleen Falders and then we have a listener question or two. We're going to do that right after this quick break. Thanks for hanging in. Stick around. We'll be right back. All right, everybody. Welcome back. As I said, there's one last story from Kathleen Falters

at ABC before we get to the listener questions. And here's what she writes. She says, a trip to Mar-a-Lago taken by former President Trump that aides allegedly kept quiet just weeks before FBI agents searched the property for classified materials in his possession, raised suspicions among special counsel Jack Smith's team as a potential effort to obstruct the government's classified documents investigation." So this kind of backs up my little theory that he was rearranging boxes. The previously unreported visit, which allegedly took place July 10th through 12th in the summer of 2022, was raised in

several interviews with witnesses. That's according to sources familiar as investigation as investigators sought to determine whether it was part of Trump's broader alleged effort to withhold the documents after he received the subpoena. So the subpoena was in May, they came down in June and had, you know, Corcoran June 2nd search the thing June 3rd, they came and they got the 38 documents in the double-taped red weld envelope. Then July 10th through 12th, Trump took a trip from Bedminster, where he summers, down to Mar-a-Lago to go through his boxes,

check on his boxes, that's according to sources. Check on those boxes that he doesn't know what's in any of them? I don't even know what's in them, and the order is very important of what's in them. And so that's the little order of operations here. That trip was kept secret. At least one witness who worked closely with Trump recalled being told at the time the trip was to check on his boxes. So that's an interesting, you know, and I think that this came out in some of the stuff that Walt Nauta released in his documents that he unsealed.

But it's a fascinating look at an additional trip after the subpoena and before the search warrant was executed to go down and check on his boxes again. This is a really interesting story. To me, it's showing you a little peek behind the curtain of the enormity of what the special counsel team already knows. They know about this, I'm sure. And what else don't we know? Yeah. If this thing ever gets laid out in court, we'll have the whole TikTok from beginning to end of, you know, the timeline of exactly what happened. And there's probably so many little nuggets like this that we're going

to be like, Oh my God, look at that. So yeah, stay tuned. They still have a heck of a lot more than, than we know about. Yeah, for real. And who knows when we'll learn about it. All right, let's go to listener questions. If you have a question for us, you can click on the link in the show notes and send us a question. What do we have this week for listener questions, Andy? Well, so we just have one this week. But again, picked because there were many questions kind of pointing in the same direction. So I went with one that sent to us from, I'm not sure how to say this name.

Timme. Timme. Timme. I don't know if that's a real name or if that's just part of his email address. But in any case, he says hello to the best looking podcasters. So he's off to a good start right there in the first line. Then Timme asks, let's say Canon rules Jack couldn't be special counsel.

Would that mean the trial goes away and can be, he says refined,. I think he means refiled or would it stay the way it is but he just can't work on it but his team can? Oh good question. Yeah and this is I'm not really sure. I guess I should never be picking a question that I don't have the answer to but this one I'm a little bit I'm a little bit shaky on so I'm anxious to hear what you think as well as always, but- Oh, I've got thoughts. My impression is if this of course refers to the motion that we were talking about, which Trump has challenged the appointment of Jack Smith and the funding of Jack Smith. So let's say he wins that motion on one of those grounds. I think the entire effort, well, Jack Smith would be out, right? He would

lose his position as special counsel. The rest of the folks on his staff are all employees of the justice department. So they could theoretically continue working on these investigations in this case. The question for me is whether or not the indictment itself would get dismissed without prejudice and then they would have to re-present the case to a new grand jury and re-indite it. And of course, all of that presupposes that Trump did not win the election

and then these things can actually happen. So that's kind of how I'm thinking about it. It also presupposes that the special counsel's office would lose an appeal on this. Yeah, yeah, of course. To the 11th Circuit, right? Because the first thing that happens if she yanks, if she says you were appointed inappropriately or improperly or you're funded improperly, they're immediately going to appeal to the 11th Circuit.

And I am 100% certain that the 11th Circuit would uphold him as special counsel. Yeah. Honestly. Agree. That's what I think. And also I had asked Joyce Vance about what would happen to the DC case. And Joyce reminded me that no other judge is beholden to another judge's decision. So that's right.

Nothing would happen to the DC case unless it went up to the Supreme Court and the Supreme Court ruled that Jack Smith was can't be special counsel. Then we're looking at something different, but I doubt that would happen. Yeah, I think you're right. I think special counsel wins this motion at the trial court level. If he doesn't, absolutely it gets appealed because this is a DOJ writ large issue. It's much bigger than just this case. Right. Special counsel regs. It's like all of them. So the attorney general would have every reason to really want to push that appeal. We'd likely win there. But so this is not, I think this is a very low likelihood of probability.

But if it did happen, you go down all those lanes and Jack Smith gets kicked off the case, I think probably the indictment being the product of a special counsel who, under that theory, never had the authority to seek such an indictment, I think the indictment would probably get dismissed without prejudice. Nicole Forleo Mm-hmm. I think that's right. And then I think the Department of Justice would just take the case. They would have to decide. Are they going to represent it and restart the whole thing? I think, I think that's right. And then I think the Department of Justice would just take the case.

They would have to decide. Are they going to re-present it and restart the whole thing? I think they would, given the gravity of the sitch. If they could, they would. And maybe they'll pull Judge Middlebrooks this time instead of Judge Cannon. I don't know. I don't know what is, if he's met his quota or not, or if he's over in Miami and restricted to Miami only. He might've been taken out of the running. Put yourself back in the running in Palm Beach, Judge Middlebrooks, please. Don't count yourself out, please.

Judge Middlebrooks, by the way, is the one who dismissed Trump's lawsuit against you, Andy and 30 something other defendants, 31 other defendants, and lodged a million dollars worth of sanctions against Alina Haba and accused Trump of judge shopping when he files in Palm Beach County. That's good old Middle Brooks. Very good judge. All right. That is our show. Thanks for the question. Again, there's a link in the show notes if you have a question for us. Very good question from Timay. Any final thoughts before we get out of here this week? I mean, we've got immunity decision tomorrow, man. It's immunity day. Yeah, man. It's going to be a big day. Buckle in. It's crazy coming this late in the term,

right in the middle of, it's like the beginning of 4th of July week and all that stuff. But we will be here to hash through it and figure out how it applies to these cases because once again, it's the place to go for news on all things special counsel. Absolutely. Thanks everybody for listening. You're incredible. And we will see you next week. I've been Alison Gill.

And I'm Andy McCabe.