Jack - Episode 85 | Prepare to be Underwhelmed (feat. Hugo Lowell)

Episode Date: July 14, 2024

The immunity question will be in Judge Chutkin’s court very soon. It’s unlikely that we’ll get a public hearing to decide what evidence is admissible.In Florida, Judge Cannon denied  de Oliviera’s motion to dismiss based on selective and vindictive prosecution.Plus, listener questions and more!Hugo Lowellhttps://twitter.com/hugolowell  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 85 of Jack, the podcast about all things special counsel. It is Sunday, July 14th, 2024. I'm Andy McCabe. Hey, Andy. I'm Andy McCabe. Hey, Andy. I'm Alison Gill. First, thanks to everyone who came to the live shows in Portland and Seattle.

We had an amazing time. And I hope you all left feeling a little energized and ready to work. Andy, it was great. Absolutely incredible. Oh, my god. It was so much fun. I have never done anything like that.

So I was like the live show rookie. But it was just great. People were amazing. A crowd showed up early, tons of energy. And for me, finally getting to meet Dana in person was a huge thrill. She is terrific. Yeah, just a great, great time.

Yeah, everybody got a wonderful, like amazing treat of listening to Dana do some of her stand-up routine. So it was awesome. The people were great. The meet and greets were amazing. And the cities, by the way, just amazing. It's been a long time since I've been to either Portland or Seattle. And so just beautiful. So thank you so much for your hospitality, everyone. We really do appreciate it. And it's I like I feel so much better having hung out with all of you. So I really appreciate it. But yeah, there's, there's actually quite a bit of news going on in Jack Smith's world this week. Yes. Yeah, we have a lot of news to cover, particularly in the, you know, in the fallout

of the immunity decision, including a filing from Jack Smith agreeing to supplemental briefing with Judge Cannon over the immunity issue and in order denying Walt Noda's motion to dismiss on selective and vindictive prosecution grounds. Yeah, although you know, she never, she never wastes an opportunity to go after Jack Smith, which even if she's denying a defense motion, and we'll talk about that. And we're going to speak with Hugo Lowell from The Guardian today about Trump's plan to delay evidentiary hearings in the DC case before Judge Chuckin. He broke that story. And then MSNBC confirmed. But first, I think it's time for another installment of Good Week, Bad Week. Yes. So this is a tough one, I think a little bit. I was really kind of scratching my head

as to be like, who stands out in this last week from the reporting that we've seen has been having a tough time or a particularly good time? And the name that keeps coming back to me is actually Judge Chutkin. I think the reality is starting to settle in. I'm sure it has for her, it probably did immediately, but for the rest of us, as we are all kind of reeling

from this Supreme Court ruling on presidential immunity, and in our own way, trying to figure out what happens next, Judge Chutkin actually has to do it. She's got to, she, it's entirely on her shoulders to figure out how this muddled mess of a ruling is interpreted and actually executed, right? Put into motion what the briefings look like, whether or not she accepts evidence. Is she going to get testimony? Is there going to be a hearing? Is it going to be open to the public or sealed? There's so many questions and really she got very, very little clear guidance. I would say none. That's just my opinion in

the order. There's these off-handed comments. It's clear as mud. Right? There's these bizarre comments, you know, oh, you should consider this or you should put this in the context of that. But there's no like clear test. We usually get tests from, you know, two-pronged tests or things like that from the Supreme Court. You don't get any of that. So I'd say tough week for Judge Chutkin to try to figure this mess out. Yeah, I agree. The only real test was the burden of proof is on the government for presumptive official act immunity and it has to not interfere with the functions of the executive

office. Like, and, and, and that's basically, basically what they said is we're going to decide eventually whether what you did is immune from criminal prosecution on a kind of case by case basis. So be nice to us. That's pretty much how it sort of came out to me. Yeah. It's impossible. It's impossible to imagine any case in the future not going to the Supreme Court. So they're definitely positioning themselves to be the final arbiters of everything. Yeah. Yeah. They are. They are the Supremes. They're the kings, they get to decide. And I think that it's, you know, Judge Chuckin was already in an historic place by having to preside over the first trial of a former president of the United States in federal

court. But now she has the added bonus of having to be the first judge to apply the president's or King's immunity. You know, we joked Andy calling it the monarchy motion, but that's what it ended up becoming the monarchy rule. Yeah, it really did. And we may I was flippant about that comment, you know, so many times because it just seemed so ridiculous, the idea of it seemed so ridiculous beyond what could actually happen. And here we are, it actually happened.

That's what we walked away with. And I think to go back to your comments about the standards she has to apply, it's not even really a standard. The fact that it starts as a presumption in favor of the defendant is enormous. So the government has to prove that what they're attempting to do will have no impact on the exercise of presidential authority. That's almost impossible to prove, especially when you're not allowed to use any evidence of official acts and you can't even question the intent

or what the president is trying to accomplish the motive. So essentially the defendant can just claim any impact on the presidency. Like it could impact us in this crazy way. And there's almost no way for the government to counteract or to disprove that claim. So it's, it's very, very hard. It's like a do your best and good luck. Like that. It feels like very non-legal to me. And that I think is very, very dangerous. Right.

All right. Well, we all know by now that the Supreme Court, like we've talked about, has ruled that presidents are above the law with those four holdings. And I just want to go over them really briefly, Andy. There's the core powers are absolutely immune holding. Yes. Official acts, as we talked about, have the presumption of immunity. Private acts are not immune, like Blasengame, and any evidence of a crime that falls under official acts or core powers is barred from trial, which is, you know, as you and I spoke about at the live shows this week and Professor Vladeck spoke about on the last episode of Jack, that is probably the most devastating part of this ruling. But in the wake of this, the court must now determine,

and as you said, it's all on Judge Chalas, on Judge Chuckin, what is and is not immune by way of an evidentiary hearing, or a series of evidentiary hearings. And joining us now to discuss Trump's possible plan to delay and minimize that hearing is a reporter in the Washington Bureau for The Guardian, covering Donald Trump and the Justice Department. Welcome Hugo Lowell. Hey, Hugo.

Hey guys. Hey, Hugo. It's good to see you, my friend. It's been a while. Great to have you back, dude. It has. And we always call out time for this podcast. Well, thank you very much. So Hugo, you wrote, and I'm quoting you here, Donald Trump is expected to launch a new legal battle to suppress any damaging evidence from his 2020 election subversion case from becoming

public before the 2024 election. And he's preparing to shut down the potency of any quote unquote mini trials where high profile officials could testify against him. So how is Trump planning on, like what is his plan to shut these down, delay them, kind of dilute them so that, you know, this evidence doesn't get out to the public before the trial? Yeah, it's really a two prong attack. The first prong is to tell Judge Chuckin, you don't need to hold any hearings at all. This can be resolved on legal argument and legal tests alone. We will say in our briefing that all of this can be resolved based on, for instance, was a president's executive powers encompassing this conduct or was it an official conduct?

And in that case, you can just decide it on the briefs. And if that fails and Judge Chuckin says, actually, you know, I have to do some fact finding here, for instance, maybe with the fake electors scheme, and I need to call in witnesses, I need to take in evidence around the side, you know, the Supreme Court ruling contemplated the trial judge here looking at kind of contextual information to get a sense of whether conduct actually was official. Then in that instance, Trump's lawyers will argue, well, you certainly can't call Mike Pence and you certainly can't call White House officials like Mark Meadows because guess what? We're going to relitigate all of the executive privilege fights that we had during the grand jury investigation. We're going to have pencil

cert speech and debate clause because we don't want him testifying at all. And as for people like John Eastman and Mike Rome and people on the fringes and people who weren't in the federal government but had leading roles in the effort to overturn the 2020 election, we will say, look, these guys have been charged in other jurisdictions, notably Fulton County. And that means they have a fifth amendment concerned to not incriminate themselves on the stand. And so you can do all the fact finding you like, but it won't be with witnesses who might provide damaging testimony in the way that they did during the January 6 committee hearings. Yeah, that makes sense to me as a legal argument coming from Team Trump. And I want to get into why it's like, this is like kind of the least bizarre request from the Trump team

that I've seen to date. And it's interesting because as you and I, and Andy, as we talk right now, we do not yet know Jack Smith's strategy, right? We haven't heard anything from or seen any filing on what Jack Smith, how Jack Smith thinks this should go. But we do have a couple of guesses and I want to talk about those after this quick break. We do have to take one quick break right now. But I also have a lot of questions about what this hearing might look like, because I know Hugo, you've spoken in depth about it with folks like Katie Fang and some really great experts in the field. And I know that you have gone into pretty deep dive. I have a lot of opinions here. I will run my opinions and see if you agree.

Yeah. Because I remember we were texting offline this week, looking at the rules of evidentiary hearings just to prepare for this. So we'll go into that, but we do have to take a quick break. Everybody stick around. We'll be right back. Okay, we're talking to Hugo Lowell at The Guardian. And Hugo, before the break, we spoke about Trump's strategy to delay or minimize essentially the public impact of the evidentiary hearing in DC that may happen as a result of the immunity ruling. So let's focus now on

his privilege argument. So the DC Circuit has already ruled previously in this case that the evidence at issue is not privileged. So how do you think or what are you hearing about how Trump is going to attempt to overcome that already existing determination? Yeah I think principally the argument is just because the previous chief judge in Washington, Barrow Howell, has ruled on some of these privilege and speech and debate rules motions doesn't mean it's binding for Judge Chuck.

And now in the kind of the post-endowment phase of this case, and they will say, the analysis that was done to get that evidence into the grand jury, for instance, Mike Pence testifying with some speech and debate clause areas foreclosed in his testimony, that's not binding. The analysis is now different in light of the way that the Supreme Court views this case. And it's kind of an interesting argument because if you think about how speech and debate clauses applied in criminal cases, for instance, against members of Congress, and I'm thinking of like Henry Halstosky's case, I'm thinking of even the Scott Perry case more recently, when he

had his phone seized by the special counsel and the FBI. In those instances, a judge takes the evidence that prosecutors want to put before the grand jury and they go through it and they see if there is any speech or debate clause implicated areas and that gets cut out before it even goes to the grand jury. Right. That's the kind of argument I think that the Trump lawyers will focus on in their kind of quest to tell Judge Chutkin you don't have to rely on the determinations that came before, it's actually incumbent on you

to re-decide these issues before you bring them in in terms of an evidentiary. I don't know about you, but I see a very low likelihood that Judge Chutkin is gonna reopen that Pandora's box. She's got so many determinations that she has to make likelihood that Judge Chutkin is going to reopen that Pandora's box. She's got so many determinations that she has to make going forward as a result of the Supreme Court hearing or ruling. And she is someone who we know is very confident and efficient from the bench.

I don't see her reopening that door. Now, they can re-argue these things in the context of the windup, essentially, to the hearing to apply the Supreme Court ruling. So it's almost as if the court has created a new privilege that Trump can rely on as a former president. He can still make the arguments against Mike Pence testifying in the hearing or a trial based on the fact that the Supreme Court has indicated that the conversations between Pence and Trump are likely come privileged, for lack of a better word, privileged as official acts.

So if she's not careful, and we know she is careful, she could end up basically litigating these issues within these issues. She could find herself with a fight on her hands about whether or not, let's use Mike Pence's example, Pence gets to testify in the mini hearing. You might have to, does he, there's a question about does he get to testify in the mini hearing, and then when he gets to the mini hearing,

does he get to testify in the mini hearing? And then when he gets to the mini hearing, does he get to testify about what actually happened? So there's like no end to how deep they could go down this rabbit hole. I see Chutkin making some bold decisions to avoid that. Yeah. I think that's true as well. I think that's true. I agree.

What do you think? Yeah. And I think this is going to, because this seems like, Andy, like just like you said, they've created a new privilege. It feels like the speech or debate clause for presidents. And so now we're going to like, I feel like this hearing will look like, you know, you remember Mike Pence trying to claim or assert the speech or debate clause because he was president of the Senate that day. I feel like that's the kind of hearing we're going to get. And it doesn't strike me as I know Lawrence O'Donnell was like, it's going to be a four

week hearing or a six week hearing and we're going to have Mike Pence raise his right hand and swear to tell the whole truth and maybe Cassidy Hutchinson. But we're not deciding here Trump's innocence or guilt. We're just deciding whether evidence or facts are immune or not. And then, you know, Jack Smith is going to have to look at the whole case once we go through this exercise and re-decide whether or not he's got enough evidence to obtain and maintain a conviction. So I'm envisioning a much different hearing, but I wanted to ask you, Hugo, because I know a couple of pundits out there are saying, well, this is the very next thing Chuck has to do because Roberts said in his opinion that these issues of immunity

have to be sorted out at the onset of the proceedings. And as I said, some took that to mean that this hearing will be the very next thing on the docket. But you know, you and I spoke offline a little bit, there's still outstanding discovery issues and motions to compel, right? And so wouldn't you have to have all that in first? I mean, I find it hard to go directly into this hearing without certifying on both sides that discovery is done. Yeah, absolutely. I think that's exactly how it's going to pan out. Let's just remember that this judgment isn't really back in Judge Chukkin's jurisdiction until the start of August because for some reason, the Supreme Court decided with this ruling that there would be the 25-day rehearing period and so it doesn't immediately get remanded back. Then there's that seven-day

process for the case to technically go back to the DC circuit and then to go back to the trial court. And so really you're looking at a 32 day delay on top of when the judgment came down. And so you're looking at the resumption of proceedings to be the 1st of August. So once you get to that, right, Chuck, and then it's like, got this case back in her control. And she looks at it and goes, well, you know, Trump's lawyers will almost certainly say to her, we cannot possibly start on evidentiary hearings until we have all of the discovery because, you know, that's going to impact in the event that you decide to have potential witnesses, for instance, the kind of cross examination we can do of those witnesses. And so I think not only do they have to, you know, run a firm that the discovery is complete,

but there's also a pending motion for supplemental discovery that Trump filed before this whole case got frozen prior to the immunity appeal back in December of last year. So I think she has to deal with that. Now, what I will say is based on kind of my conversations with people close to the special counsel's team, and also frankly Trump world world, they think Chuckin has already decided on a lot of these outstanding motions. And the moment she gets it back, she will just issue a bunch of rulings. And that is probably true. And I think also even the Trump lawyers will kind of concede that they're not going to get that much longer to review discovery if even they win that fight. And so I do think like

the additional delay for them to, quote unquote, review discovery is going to be quite short. But it kind of ties into what we've been talking about as a whole, because it kind of dependent on how Jack Smith moves now, right? If he wants to avoid even the risk of relitigating the stuff, because even if Trump can deny Trump's know, executive privilege, for instance, even if she denies it, by the time both sides submit briefs, and it's fully brief, you know, it's still going to take up weeks and weeks off for a while. And so, if he wants to avoid that completely, maybe he just goes and this is my theory. And you know, you guys, you guys tell me if you think I'm wrong. But my theory is, there is a universe in which

Jack Smith goes, I don't want to get involved in the litigation. And I want to introduce all the evidence that I can because it's going to help me in my case to overcome the presumption of official immunity. And the easiest way to do that is to just basically submit grand jury transcripts. I don't know if that's going to be because it's going to be actual transcripts. I don't know if Chuckin will want someone on the stand. So maybe it's like a, you know, like a special agent or an FBI agent on the stand kind of re-reading some of this stuff. I don't know how it will look like, but that is kind of a scenario that I've imagined in my head. And I wonder if that's the case. Does she hold these hearings in sealed session? Because it is

still grand jury material. Technically, there's a protective order on a lot of this stuff. And at least, there are a lot of materials that I know are still sealed from the grand jury investigation. And in the classified documents case, for example, and granted Judge Cannon is a bit of an anomaly, but she has held evidentiary hearings that involve grand jury material behind closed doors. So there is a bit of a push and pull here and I'm not quite sure how it will be resolved, but that's kind of how I'm imagining. That's exactly Hugo, what Andy and I were talking about at the live shows. I was like, Jack Smith seems like a sealed hearing kind of guy to me. And you know, to not taint the

jury pool and not try it in the court of public opinion. And if it's grand jury material, obviously it has to be under seal. And he's And he is deign to release witness lists, let alone show you who his witnesses are and what they might testify against. So, and, you know, thinking back to the whole Pence speech or debate hearings, that was just as Trump has asked for, just litigated through briefing, through legal briefing, I think maybe they did have a hearing or two, but it wasn't like, you know, you were saying that sort of thing that some folks, some pundits were imagining this like a full on mini trial with evidence.

Totally agree. Let's level set. We're all a bit warped by spending so many weeks watching the circus down in Florida. That's not how cases typically go, right? And Judge Chutkin is not going to give into requests for hearings, although as the cards line up, it might be that neither side requests it. So that's the first thing. Second thing is Jack Smith, as much as people would like to think, oh, you know what, maybe no trial,

but we'll get a massive hearing and all the witnesses will testify so everyone gets to hear everything anyway, that's not on his wish list. He doesn't care. He's not in this to make some big splash before the election or anything like that. He is in this to get a conviction in this.

He see this through to a trial and try to get a conviction if he can. And he's not going to start doing things differently simply because he'd like to make some sort of a statement about what Donald Trump did. That's not in the cards for him. They're anti that. I mean, I remember when Durham's top deputy resigned because he wanted to put out or they were pressuring Barr and Trump were because he wanted to put out, or they were pressuring Barr and Trump were pressuring him to put out an interim report ahead of the election. It's against the DOJ's nature, right?

It's not how they work. And then also, if the hearing is essentially an evidentiary hearing to figure out what the court and therefore the rest of the world can hear in the trial, you're unlikely to do that in a public way because you're basically airing out the evidence that you might exclude. And it is held against the defendant in the court of public opinion. So I think it's unlikely. If there's a hearing, and I'm not convinced there will be one, if there is, I think it will likely be sealed. I think it's unlikely. If there's a hearing, and I'm not convinced there will be one, if there is, I think it'll likely be sealed. I think Judge Chutkin is going

to take as much of this on the papers as she can. I think there's a possibility too, that Jack Smith might actually agree that some parts of the indictment have to be carved out now. I mean, as we know from the ruling, there have been some things that have been specifically referred to as kind of beyond the pale into the immunity area. Like the DOJ discussions with Jeffrey Clark. Exactly. So I think there will be some sort of an effort. She'll request that the party's brief, like what essentially, what do you think should come out of the indictment? And whatever Jack Smith comes back with will be really important there because he might essentially say, okay, you know, these paragraphs are probably gone.

That'll help them neck this thing down into a more, into like really focusing on what are the true evidentiary fights here. Because she wants to have as little of that as possible and to have it done on the papers as much as you can before you start having hearings and turn into Judge Kamin. Yeah. And Hugo, the last thing that you and I kind of touched on offline was whether or not any of the decisions in the evidentiary hearing from Judge Chutkin are interlocutory or can be appealed up to the circuit and up to the Supreme Court. And

looking at the Pence speech or debate evidence issues, it doesn't seem like they are. What have you found out? Yeah, it still seems to be a bit of an open question. I think this is partly because neither side wants to, both Trump and the special counsel side, neither side want to get involved in talking about this because they're not exactly certain in the first place. And then second of all, the moment you start talking about it, it kind of gives it momentum. And it's very funny how actually touchy feely both sides are, right? Trump's lawyers don't want to talk about, really don't want to talk about this at all

before the case is back in Chuckton's control. And as for the special counsel side, they just don't like talking, period. And so it's difficult to figure out exactly how they will fall on this. It's tricky because with speech or debate, like the concept and the way that at least, you know, DC has handled this is a lot of it just gets done ex parte in a judge's chambers before, you know, the evidence even goes before a grand jury. And so, and because it kind of, there's a sense that if there will stuff that will speech and debate close in, because that went before a grand jury, then that's, you know, you can't unring that bell and therefore there is this introductory thing for speech and debate.

But for something like an evidentiary hearing, you have a hearing to determine what is official and the Supreme Court has said in the opinion, well, the trial judge can explore the contextual things around it, which seems to give it this idea of you can't, like the judge can take in stuff that is kind of beyond the ordinary rules of evidence potentially. Like it just seems very vague, at least the way the Supreme Court has written about this. Certainly her final determination as to what is official and what is not official is in clock true. I think everyone has agreed on that, right? That's going to go to the circuit. It'll probably go up to the Supreme Court, and then it'll be reminded back.

As for the individual decisions on who can testify and what kind of evidence can go into the hearing itself, I gotta be honest, I think it's still an open question, and I don't know how courts will tackle this. Yeah, there's no precedent for this. Normal evidentiary issues do not lead to interlocutory appeals. You can appeal those decisions after you've been convicted and it can in some instances result in throwing a conviction out or going back retrying a case or whatever. Immunity in and of

itself is different because like if you don't resolve it interlocutory, then you have exposed the person who's claiming immunity to the rigors of a trial and if after the trial their appeal is successful and they should never have experienced that at all, it's kind of, you know, you can't unring the bell. This is kind of like a weird morph of both because the evidence, because who testifies or what evidence can be considered in the course of this hearing or motion, whatever it ends up being is ultimately impactful on an immunity sort of issue. So I don't know. It's a, that's, I, it's, that's one, uh, that's, we'll have to wait and see how that plays out. Yeah. And I'm interested to see how they cite case law for this. It's like, this kind of everything is going to be like, well, we've never done anything

like this before, but maybe this applies or maybe this, you know, it's going to be interesting. The sites are going to be like, some dude at Yale once said. There's no- I think, but I think, but I think that when you're talking about case law, the case law is going to favor Trump because Trump's going to say, look, the way you apply this is like speech or debate. And with speech or debate, it can't go before the grand jury. It can't even go into evidence to consider an indictment. And I think that's probably where this goes. It's a privilege argument, essentially.

But I will say, remember when Pence was fighting his fight, he came out like, I beat the government, yay. But he actually didn't do well in that fight. There were only two pieces of evidence that weren't allowed in that Jack Smith wanted in. And I think Jack Smith is pretty well versed on these kinds of privileges, whether they're new immunity, King privileges for presidents, or whether they're speech or debate privileges or executive privileges for somebody like Mike Pence. But the only thing he wasn't allowed to bring in was his discussion with the parliamentarian in the Senate about the language change that he wanted when he was opening the certificates and counting them. And then his discussion with his lawyer about his role in the Senate. And those were the kind of the only two pieces

of evidence of all of it that weren't that weren't allowed in there, his discussions with the president. They were but now you have to wonder, can I say, can I just say one thing, they were allowed if it wasn't obvious criminality. And there was like a criminality element in the way that Boasberg, who became the chief judge after Beryl Howell, applied the speech or debate kind of scalpel to his testimony. Of course, the tension now is you can't rely on something

as whether it's something that is criminality here because Trump's lawyers will argue it's official. You can't charge it, it's not a crime. Can't be crime. Right, and Robert said in the ruling that, which blew me away because this is completely opposite of what Judge Pryor says down in the 11th circuit, that the president can have oversight over the administration of elections because of the take care clause. Take care clause.

Yeah. And it's just, everything is up in the air. But I just wanted to bring you on because Andy, based on the conversations you and I had in Portland and Seattle and Hugo based on the conversations you and I had offline, I want to temper everybody's expectations about this evidentiary hearing. Because I know it sounds wonderful and sensational to think that we'll have a trial with Pence on the stand and everything will be public and we'll get to hear all this evidence aired out. But I would caution against kind of that sort of sensational, what I would consider a sensational idea of what this hearing might look like. I think I'm with you, Andy. I think a lot of this is going to be, if not all of it, under seal. And it may not, there may not even be a hearing because these things could probably

be litigated through the briefing process and legal arguments. And they can submit things, right? They can submit statements or like you guys said, they could submit to the judge excerpts from grand jury testimony. So for instance, on the fake electors thing, Trump is going to come in and say, no, I was under the take care clause, making sure that the election laws were being properly executed. And that's all he's going to say now. Yeah. And Jack Smith, his response will be something along the lines of, well, that's not what

they actually talked about. What they talked about was that they knew there was no fraud and that they were trying to make this crap up off the cuff. And in order to get that in, he's either got to put the live witness on the stand who can tell the judge what they know or potentially submit an affidavit from that person. So if there's a way to get, now keep in mind also like Jack Smith doesn't want to have all of his witnesses testifying in front of Trump's lawyers under oath before a trial. It's a pre-use. So yeah, he's got a lot of motivation to stay away from a hearing with live witnesses and

to instead just submit, you know, his really tight directed statements that are just a fraction of what the witness would testify to. And I think the judge would probably prefer that. She doesn't want this thing turning into a mini trial that's sealed and you know, so don't know how it'll go. But she's instructed not to have many trials, which is, you know, we're kind of hoping she does what Eileen Cannon does. That's something I would be too proud to hope for. Anyway, Hugo, thank you so much. Everybody check out Hugo Lowell wherever you are on social media. And of course, read him over at The Guardian. Do you have any final thoughts on this evidentiary hearing before we take a break?

I think at the end of the day, we don't know a lot of how this is going to play out because it's dependent on how Jack Smith moves, like kind of the balls in his court now. And he's got several options to introduce evidence to kind of overcome the kind of presumption, whether or not that's going to be grand jury material, whether like he even goes, you know, there is a discussion, I think this is unlikely, but there is discussion of him maybe going back to the grand jury and getting a superseding indictment that is slim to win that is, you know, just for instance, the fake electors scheme, I doubt that he will do that because he can kind of he can get to that same point,

you know, through the through the through the hearings and through the, the evidentiary process and, and, you know, superseding an indictment comes with its own problems, like, you know, resetting the clock on the night, defense prep time and stuff. And so I think a lot of this we'll have to wait and see, but I agree with both of you that in the main, I don't think we're going to have anything close to a mini trial and maybe we have one or two hearings to decide on. It might even be a hearing to hear argument on how she should approach these evidentiary things. So I don't think it's going to be nearly as exciting as people think.

Totally. Yeah. Sorry to be a bummer. Sorry to be a wet blanket, everybody. But we just see that we're trying to hear. Well, this is the reality, right? This is the reality of criminal trials. It's really boring at times. It's really fraught. Absolutely true. Totally accurate. Yeah. Yeah. It's like watching paint dry most of the time. These have not been like that because one of them is absolutely crazy and the other one has been this massive issue in front of the Supreme Court. But I will tell you, we are living off of your reporting. Thank you for the work that you're doing. It's just an incredible sources and great stuff. So everybody out there follow Hugo and read his stuff in

The Guardian. You will not regret it. Thank you so much, guys. 100%. Everybody. Thank you so much. And we're going to take a quick break and we've got to head down to Florida because we've got some stuff going on there. So stick around. We'll be right back. Hey everybody, welcome back. That's always so good to talk to Hugo. He has such good insights into what the team Trump is doing. And I'm really glad that he brought up the fact that there was an additional month of unnecessary delay gifted to us as a giant middle finger at the end of all this from the Supreme Court in that 32 days, right? Because there's no rehearing. I mean, a rehearing

on this, Roger Parlov has said this, and this isn't just me deciding. This is coming from other experts. There's no rehearing that's going to be granted on this, a particular ruling. There was no need to wait the 25 days to remand this back to the circuit court. And so they took the maximum amount of time for no reason before this gets back into Judge Chutkin's hands. Yeah, I totally agree. And I actually, I teed up a question about that. So we'll cover it in a little more detail at the end of the show

But there's been a lot of a lot of our folks we heard this at the live shows from people who are asking questions People, you know very naturally assume like well, that's there. Why don't we do it? And it's not it's kind of a mirage this idea of rehearing So but it will get we'll get into that at the end. Yeah, definitely. We really thoughtful questions from folks. All right, let's head down to Florida, where things aren't much better. This is on the Trump motion to suspend and dismiss pending his immunity briefing, right? Because now he of course has filed in every single jurisdiction, hey, I'm immune. What's happening? And so here's what he writes

down in Florida. This is kind of the first of this triple motion thing that I wanted to go over. He says, President Trump submits this motion for one, leave to file supplemental briefing regarding the implications of Trump v. United motion for one, leave to file supplemental briefing regarding the implications of Trump v. United States for the pending presidential immunity motion. A partial stay of further proceedings with the exception of the pending gag order motion, which that's not what it is. He's just using gag order because it's loaded language. That's the one to modify bail conditions, sir. And until President Trump's motions based on presidential immunity and the appointments and appropriations clauses are resolved. So basically that huge giant run on sentences. We are asking you

if we can file supplemental briefing on the immunity issue. So we can decide if I'm immune now that the Supreme Court has ruled the way that it's ruled and that we want you to stop everything except exactly except the motion to modify bail conditions because it's looking like it's going to go our way. like it's gonna go our way. And until Trump's motion based on immunity and the Appointments and Appropriations clauses are resolved. So he still wants to decide whether Jack Smith needs to be completely, the whole case needs to be thrown out because Jack Smith was not appointed properly or funded properly because of Clarence Thomas' little concurrence about,

oh yeah, and I don't think Jack Smith should even be there. And we'll talk about that in a minute. So he goes on to say, a partial stay that pauses all the SIPA stuff and other litigation is warranted because on the reasoning in Trump and such a stay would be consistent with DOJ policies and practices that special counsel's office claims to be bound by but is largely ignoring resolution of these threshold questions as necessary to minimize adverse consequences to the institution of the presidency arising from this unconstitutional investigation and prosecution. A partial stay is also appropriate to prevent

further exploitation of judicial institutions and resources by executive branch personnel in connection with a shameful ongoing lawfare campaign." So he's like, you need to shut all this down because it's not fair that they get to use the courts to come after me. Because I broke laws. It's like Steve Chung is writing the legal briefs now. Really, honestly. Get the law fair shot in there. It's, oh my God, it's so stupid.

Exigency supporting a partial stay is demonstrated by Biden's July 1st public comment from inside the White House, linking Jack Smith's abuse of the criminal justice process to Biden's desperate and failing attempts to communicate with voters prior to the election. These efforts are so extreme and fanatical that on July 2nd, in an apparent response to Biden's exceedingly weak debate performance. On June 27th, government officials leaked to the Washington Post Smith's misguided plans to continue to prosecute President Trump even as the president-elect. Now that wasn't leaked.

Okay, can I pause you here for one second? Yeah. Can we at least note how wildly far away we are from the point of this filing? We're in like six levels of persecution and jingoistic attacks on Jack Smith. I can't even remember why he filed this thing for. I'd have to go back to the beginning and read the first part again. It's so mind numbingly, terribly written. And it just can't believe that these things are actually appealing to Judge Cannon in some level. And we know that they are.

Like I'm waiting for the shark and the battery to come up because it just came. Exactly. You know what I'm saying? It just, it drifts further and further afield into grievance upon grievance. And did I mention grievance and it's not fair. And it's like, what are you, what are you asking for? I don't even remember now, but. No, I feel like Biden in the debate on June 27th, like, I don't even know

where to start with this, it's like an episode of hoarders. Um, but I want to talk about just this one, we're on this weird tangent. And he said that the efforts are so extreme. What efforts? I'm not really sure. Yeah. And fanatical. Don't forget the fanatical. Don't forget the fanatical. That the government leaked Jack Smith's intention of making sure that, you know, we're going to continue to investigate these and prosecute between the election and inauguration day.

It's so fanatical that the government leaked that based on Biden's bad debate performance. But I had that was a public filing on a public docket. Yeah, not a leak. So I'm very, I don't know where that's coming from. But he goes on to say, those leaks were a blatant violation of DOJ policy and practice with no apparent consequences to those responsible for the malfeasance that has obvious relevance to the court's appointment clause inquiries regarding the unchecked discretion and lack of oversight enjoyed by Smith as he seeks to subvert the upcoming election. I can't even follow that sentence. But Andy, now I think I understand what they're talking about. This is when I think, as they

said, the Washington Post reported that somebody had asked a high level person in the DOJ what the policy was on going forward with the investigation between the election and inauguration day. And they said, well, here's our policy and here's what it says. So that, again, not necessarily a leak, but. And this is like a massive series of bank shots to get back around to this, which is the point of, when he makes the comments about regarding uh, regarding the unchecked discretion and

lack of oversight enjoyed by the, by the Smith as he seeks to subvert the upcoming election. That's the argument for against the appointment. That's the, now you're arguing the appoint, the indictment should be thrown out because the appointment was not lawful. Because if you remember, their position in that is a lack of, you either are a independent prosecutor, and if so, you had to be confirmed by the Senate, and we all know Jack Smith was not, or you are functioning under the oversight of the attorney general.

And Jack Smith is just this wild guy, does all kinds of crazy things, violates policy, so clearly he's not being supervised adequately by the attorney general and Jack Smith is just this wild guy does all kinds of crazy things, violates policy. So clearly he's not being supervised adequately by the attorney general and doesn't therefore qualify to be a special counsel, which is a stupid argument. Yeah, and if he was, if he was being, you know, provided oversight by the attorney general, then he shouldn't be funded as independent. Like it's, they have all these circular arguments. Right, so you started with,

we'd like a stay in all proceedings because we want to submit briefs to argue basically this presidential immunity thing. And then we drifted through 16 levels of hell to get around to this bank shot to basically re-argue the other motion that's not even the subject of this filing. Right would have been if I were the judge in this case I just I would just

Deny everything it would have been fine to say we'd like to supplemental We'd like to have some supplemental briefing on the immunity issue and therefore. I think the other stuff should be stayed Except the bail conditions thing and the area thing that's all you had to say. Yeah, my friend. Period. No, that's it. But no, there's fanatical. No, just every turns into this overheated hyperbolic and blatantly wrong. Like this whole thing about it's a leak. It's a leak. You don't know that. You don't have any information. You're not presenting any information or evidence upon which to base that conclusion. There's nothing. It's not a leak. No. And how is answering a question about DOJ policy leaking?

DOJ can decide, yeah, they can decide to talk about anything they want. They don't typically talk about cases, but they could if they wanted to. It's not illegal, it's not classified. This is up to them to figure out. These are based on like DOJ policies and practices. And it's also like how rich that this is Trump arguing that DOJ just violated an internal policy. Oh, Mr. Let's all comply with the policies guy, come on.

Really? You know, and what's funny is that we didn't even get to learn because he went off on a tangent what President Biden's July 1st public comment from inside the White House was that linked Jack Smith to the justice process. Because then he goes into the July 2nd thing from the Washington Post. In an apparent response to Biden's debate performance, the Washington Post asked the DOJ what their policy is on prosecuting presidents between inauguration day and the election. It's very, very hard to follow. But he closes with this. He says,

collectively, these circumstances call for heightened caution while the court addresses threshold issues regarding Smith's lack of authority to drive this prosecution forward on the dangerous and reckless course he has repeatedly sought to foist upon the court period. For these reasons, a partial stay is appropriate. Man, no. But you know why a partial stay is appropriate? Because you want to brief the immunity issue. Exactly. The end. And it's all you needed. You didn't have to give the rhetorical drive-by shooting of Joe

Biden like, you said something a day ago, but I'm not even going to tell you what that was. It's just, if you were a first year law student and you submitted this in one of your essay, because your exam at the end of your class is the only grade you get, right? And if you wrote this and submitted it, you fail. Like there's no passing. And it's interesting. There's a footnote that says Walt Nauta and Carlos de la Veres have joined this motion. And I'm like, really? You want to join this motion? All right. Okay.

Jump into this flaming bag of whatever. She granted it. Let's talk about that. But because I mean, what did she say? What did she say in her minute order? It fundamentally was not an unreasonable thing to ask for in the first paragraph. It drifted into insanity. But she granted the motion in part and suspended most of the proceedings. So here's how that went. Paperless order, temporarily granting in part and reserving ruling in part on defendant Trump's motion for a supplemental briefing on presidential immunity and a partial stay. In order to allow for a full briefing on the motion and consistent with the special counsel's request for standard response period, the court stays the following impending deadlines.

Defendants rule 16 expert disclosures currently due July 8th. Defendants reciprocal discovery currently due July 10th and special counsel SIPA sections five and six submission currently due July 8th. Defendants reciprocal discovery currently due July 10th. And special counsel SEPA sections five and six submission currently due July 10th. Okay, on or before July 18th, the special counsel shall respond to the defendant on Trump's motion to stay and request for supplemental briefing on presidential immunity.

Any reply is due July 21st, 2024. The court reserves ruling on the request for additional briefing pending receipt of the special counsel's response and defendant's reply. No other deadlines are impacted by this order. So pretty- To granted it. Pretty tight, cut and dry.

He could have stopped at paragraph one and would have gotten the exact same result. But you know, it's kind of like, I guess their theory is anytime you're in front of the judge, whether it's on paper or in person, just roundhouse swing as many times as you can, and try to score points against your opponent. I think that's the theory. Yeah, although something interesting here, I think she threw him a bone. There was a line, maybe you skipped over it, it said, although the special counsel may proceed with filing, should it so elect. So, you know, you said special counsel seat by section five and six or to do July 10. And she said, you can go ahead and she says you can go ahead and file that Jack Smith

if you want. Yeah. Which is different from what happened up in D.C. when they stated on the interlocutory appeal. You know, Jack Smith kept filing things. Trump said, you're not allowed to do that. Stop quit. I hate you. And Judge Chuck is like, all right, fine. Stop filing things. But Judge Cannon says you can go ahead and file your CIPA section five and six thing here. So if you so you know, they will too. Oh yeah, heck yeah. Yeah. Okay. But Andy, we have one more thing to go over here in Florida. Well, I mean, we actually have two, but before the break, I wanted to bring this one up because this is Judge Cannon's denial of Walt Noda's motion to dismiss the indictment against superseding indictment based on vindictive and selective prosecution.

And this is actually a pretty solid ruling, although, you know, she does take a swipe at Jack Smith. She says this cause comes before the court. She can't help herself. She can't. Upon Nada's motion to dismiss the indictment for selective and vindictive prosecution, Nada seeks dismissal or in the alternative additional discovery based on claims that he was selectively and vindictively prosecuted. Upon review of the motion, the filings, the arguments, defendant Notta's motion is denied. To succeed in a selective prosecution claim, Notta must show one, similarly situated individuals were not prosecuted, and two, the prosecution was motivated by a discriminatory purpose. Neither prong

is satisfied here. She says, first, the motion fails to identify a similarly situated comparator who committed the same basic alleged crime in substantially the same manner. The two individuals identified as comparators in this motion by Nada are distinguishable, both in their conduct and in their relationship to the charges. Second, Nada argues he was discriminatorily prosecuted for exercising his Fifth Amendment

right against self-incrimination. That is, the special counsel indicted him for declining prosecutors' invitation to appear before a grand jury. Even if the court were to accept that Nada invoked his Fifth Amendment right, there's no evidence showing that Nada's exercise of his privilege against self-incrimination motivated the charges against him. Nada's vindictive prosecution claim fails for similar reasons. He fails to make the required showing of animus plus causation. To be sure, punishing a person for exercising his constitutional rights constitutes

genuine animus. But even accepting that Nodda effectively invoked his Fifth Amendment right, there's no evidence suggesting charges were brought to punish him for doing so. Nodda's argument that he was charged for refusing to cooperate also fails for the reasons set forth in the special counsel's opposition. Period.

That sentence right there is so refreshing. Yeah. Nodda's argument fails because of what special counsel said. Yeah. She's like, I take the special counsel's argument at its face value and I agree. Yeah. And she goes on to say, finally, the court turns to Nada's argument that the prosecutors had animus for his attorney Stanley Woodward. And that motivated the indictment. This argument is based primarily on one, an August 24, 2022 meeting during which Mr. Woodward alleges that Mr. Bratt, quote, attempted to coerce NADA's compliance with the investigation by dangling potential favorability

on Woodward's potential judicial nomination. Remember this bullshit? And this is to his nomination to the Superior Court for the district of Columbia based on interactions Woodward had with prosecutors in this case and others. Special counsel disagrees with NADA's characterization of these interactions. And even if the court were to accept NADA's version of events, visa via Mr. Woodward and the court expresses no view one way or another, it does not serve as a basis for dismissal. So she's like, I'm not deciding whether he did that or not. But that's not a basis for dismissal here, nor does it entitle him to discovery and furtherance

of his claims. So etc. The order shall be construed as commenting on the merits of the defendant's Trump's motion to dismiss the indictment based on selective and vindictive prosecution or any other motion pending before this court. And so, but like I said, she doesn't just leave it alone, right? She doesn't see and I, I kind of felt it coming when she was like, I'm not saying that they didn't dangle a judgeship in front of Woodward that day, but it doesn't do a dismissal here. But then what does she do in a footnote, Andy? I'm not saying, and then she says, she throws this footnote in. Anytime somebody says to you, I'm not saying, what follows is what they actually say. So that happens here. She

says, the court takes no position on what transpired at the August 24, 2022 meeting, nor does the court infer misconduct on the part of prosecutors or doubt Mr. Woodward's representations that he has conveyed his recollection honestly. The court understands that the special counsel's office at Mr. Bratt's request, voluntarily contacted the Office of Professional Responsibility. Those are kind of the internal watchdogs over how lawyers act in DOJ. So contacted the Office of Professional Responsibility to make a self-referral of the matter. Per the Special Counsel's representation, OPR is holding the referral in abeyance pending

completion of this case, which is also a pretty standard procedure. Because the referred matter is, at this point, collateral to this proceeding. However, the court recommends, but does not direct, that OPR take the necessary steps to preserve evidence for its inquiry as it deems proper. Okay. This is so completely useless. This is not, first half of the paragraph is her basically saying, I'm not taking a position,

I don't have an opinion, I'm making no findings. And then she proceeds to tell the Office of Professional Responsibility, who's already been activated in this matter, they've received a report, they're holding off until the case is over, and then they'll do their jobs. Now she's telling them how to do their jobs. It's totally unnecessary. Do you remember when Bobbi Brady became a hall proctor in the Brady Bunch? That's what she's doing. She's walking around into other people's agencies and being like, you

better preserve your evidence, Mr. Mann. It's, I'm not going to tell you how to do your job, but you better do your job. Like I hate people like that so much who just like walk into your place and they're like, I'm not even from here, but you should do this. It's like, like, it's so annoying. Um, but Marcy Wheeler proposed, the special counsel's office must just throw their hands in the air when they receive one of these orders from her, which is rare. They just heave it into the air, like in frustration. I can't even imagine how they, how, what the tenor of the, of the office is like when one of these things comes in.

One of my favorite memes is one of the, you know, those old timey cards with the people from the fifties and the sixties. And they're like kind of pen drawings. It's this guy and he's just throwing a bunch of papers up in the air and it just says, it's fuck this shit o'clock. And that's all I can think of when special counsel gets something like this. It's just, it's gotta be so mind boggling. But they won their, you know, they won their motion against Walt Noda, which is nice. And that prompted Marcy Wheeler to propose what I think might actually not be a bad idea. What if Jack Smith filed a motion to sever Noda and Dale O'Vara's case from Trump now

that they have to do this supplemental stuff with Trump on the immunity, what have they severed? Nada and Dale O'Vara just marched forth with just their indictments, run with those. Since it doesn't appear Cannon really gives a crap about them. I don't think she does. I really don't think she does, which only makes how much of a crap she gives about Trump look even more suspicious. I mean, really. But yeah, I mean, it's an interesting idea. I think it, unfortunately

doing that poses all kinds of other problems. Like it limits the amount of evidence that you can get in against these two. Like part of the good thing about having them all together is you get all the evidence into one trial at once and it kind of, it affects how the jury thinks about all three defendants. So yeah, there'd be a lot of things they'd have to figure out before they could do that. Yeah. Interesting thought. All right. We have one more quick story and then of course, listener questions, but we have to take one more break. So everybody stick around. We'll be right back. Hey everybody. Welcome back. All right.

We have one final filing and I like this one. I give this one an A. I give this filing an A. It's Jack Smith's filing on supplemental immunity briefing. And this is, you know, what Trump asked for and asked to pause most of the case. And here's what Jack Smith says. He says the government hereby responds under local rule 7.8 to Trump's submission of Trump v United States as supplemental authority. The government agrees to supplemental briefing on the immunity issue addressed in

the Supreme Court's opinion. But it goes on to say, Trump's notice also refers to Justice Thomas's concurrence addressing special counsel's authority to prosecute. That single justice concurrence addressing an issue that Trump did not raise, that the parties did not brief, and that was not relevant to the question presented to or decided by the court, neither binds this court nor provides a sound basis to deviate from the uniform conclusion of all courts to have considered the issue that Attorney General is statutorily authorized to appoint a special counsel. And it is as the concurrence recognized, the Supreme Court found that the statutes

on which the government principally relies here, 28 U.S. Code sections 515 and 533, quote, supported the appointment of the special prosecutor in United States v Nixon. Trump, the same is true here. That is his filing. And I like that. So he takes one sentence to say, yeah, we should do a supplemental briefing in the face of what Trump submitted. But I like that he pointed out what Justice Thomas said

about the appointment, the appropriateness and funding of special counsel. Yeah. I mean, he's got to put his, because Trump raised it, he can't just let it go. But he does it in a very factual, kind of very clear, quick way. I don't know. I wouldn't be surprised though, if she opens, reopens the can of worms on this whole thing in some way because she seemed so all over the map and the hearings on that motion like going into like, well

how much money have you spent? Like stuff that was just so totally irrelevant. There's no way she's gonna be able to just look away from this Clarence Thomas rogue concurrence. So I don't know, we'll see how it plays out, but I'm a little concerned. Well, I hope she knows that it's only him and it's probably only gonna be him. Might be Alito, but it's a nowhere road for her.

I hope she realizes that. Yeah, totally. All right, we have some listener questions. And if you have a question you want to send in, you can do so by clicking the link in the show notes and filling out the form. And so what kind of questions did we run up against this week? I think you mentioned a little earlier in the show, there were a lot of questions about this evidentiary hearing. Yes. Yeah. A lot about that. And of course, a lot of questions

about the immunity ruling. And they're consistent with some of the comments that we heard people say at the live shows too. So I got two questions for you here. Maybe it'll help to read through both of them and then just handle them at one time. So the first one's from Sarah. She says, thanks for helping me to hold on to the last shreds of my sanity. What I'm wondering is, is the immunity ruling permanent forever? Can Congress pass laws that would modify it or change the constitution or something like that? Okay. So that's one part. And the second is comes from Todd who talks about that 32 day delay. He says a question for the two funniest and best looking podcast hosts.

Thank you very much, Todd. Steve Lattic said the 32 days after the judgment, the case would be sent back to Judge Shutkin, but the interesting nugget he said was within 25 days, either party can request a rehearing. All right. So basically two concepts here. One is like, what can we do about this ruling? Can Congress legislate it away? Can they just pass a law that basically imposes criminal whatever liability on presidents? And the answer to that is no. I mean, could they mechanically do it? I guess, not that they ever, they pass much anyway, but it would immediately be challenged on constitutional grounds and would

therefore be thrown out. So they're not going to do that. We are kind of stuck with this. Yeah as long as this Supreme Court is sitting in this Supreme Court, as long as these justices are sitting in that Supreme Court, this ruling stands. As long as they are there. So the way to have this overturned and we have overturned, the Supreme Court has overturned itself when it gets things wrong and it's overturned itself recently when it's gotten things right. We need a new court. We need to change the balance of the court, change the faces of the court. That's right. And that's laser focuses you in on really the only two ways that this ruling ever gets changed or modified or goes away entirely is one, if another court comes back 10, 20, 50, 75 years from now,

it says that was totally wrong. We're overruling it. Or two, we amend the constitution and that process is so arduous as to be almost impossible. It would take years and years and years and a massive political movement to secure the votes necessary to do so. And that's so both of those are really far-fetched possibilities. So for the meantime being, we're stuck with it. Okay. As to the 32-day rehearing issue, I like the way you posted earlier in the show. It was a gift of additional delay to defendant Donald Trump. That's what it was.

It's not a real thing. You can put in for, you can request a rehearing. That's basically like immediately coming back to the court and saying, you got it wrong, and I wanna say something else, and I wanna have the whole matter reheard the chances of the court actually granting that I mean almost zero as a Practical matter I think because this is another one hard to opine on because you never ever see it. It never happens I would guess that DOJ has policies about not doing it unless there's some discovery of evidence

or information that was not considered during the oral arguments and in the briefings and that now has come to light and the court should have the benefit of the opportunity to consider that in light of their ruling. So under those circumstances, sure, but that's not where we are. There's nothing like that here. Yeah. And let's be clear, like when we do a rehearing en banc in the circuit court, you can do that because you might get a three judge panel on your initial ruling of, you know, three Trump judges and you think that they got it wrong. So you want the whole thing

to be reheard by the entire panel of judges. Here a rehearing is going to be the same facts in front of the same judges. Exactly. The same facts for the same justices. So much like trying to pass a law overturning them, having them rehear what they just decided is an exercise in futility because they're going to say no, or they might take it up and delay you another six months on your rehearing. So it's not a battle. It's not even a reasonable battle to think, I think that the special counsel would even think about taking, because you're just going to make, if you were making

the same argument in front of a different group of people, like an en banc rehearing, sure. Like if there were six other Supreme Court justices that would come in and listen to your, listen to your re-hearing. Bring in a new panel. Right? But that's not, that's not what happens at the Supreme Court level. This is it. And the only way, like I said, in the response to the first question to change this is to change the face of the court. And the only way to do that is to keep voting for Democrats because Republicans will never do it.

That's it. That's all I got. That's all I got for you. That's your path forward. It's a long, rocky, arduous path, but that's the one you got. It's bleak and I'm sorry, but that's what happens when people stay home from elections in 2016. We find ourselves where we're at.

So anyway, that's the question. Those are really awesome questions. Thank you for sending them in. And like you said, we got similar questions during our live shows, live show Q&A's that were just so fantastic. And I love the questions you all send in. So please continue to do that.

You can click on the link in the show notes and fill out the form, send us any question that you have. We'll be back next week. Again, I can't think of what more could possibly happen between now and then, but I'm sure something will because something always does. Andy? Something always does. There's always opportunity for mischief and surprises. And maybe, maybe somewhere along this journey, a couple of wins, right? Let's see. Keep those fingers crossed and we'll keep telling you whatever does happen. Yeah. Maybe we'll get some filings because everything is paused now in Florida except

for the appropriateness of the appointment and funding of Jack Smith and the motion to modify bail conditions. And that's the one, if you forgot, because it's been a while, that's the one where Donald Trump said that the FBI tried to assassinate him by misquoting a standard FBI operations form with the search of Mar-a-Lago. Those are the only things that are going on because everything else in both jurisdictions is now on pause. We're waiting for that to be remanded the first week of August in DC back to Judge Chetkin and all of the other things have been paused. Although Jack Smith can still file his SIPA section five and six if he wants. It had been paused down in Florida. Everything's on hold. So we'll see what we get in the next week.

And we'll bring it to you next Sunday. Thank you so much for listening. Andy, do you have any final thoughts? No, I'm just looking forward to next Sunday and we will be here to slice and dice it all with you. Awesome. All right, everybody. Until then, I've been Alison Gill. And I'm Andy McCabe. slice and dice it all with you.