Jack - Episode 89 | Back to the Docket

Episode Date: August 11, 2024

Judge Chutkan is back to moving things along as swiftly as possible by ordering a status conference, denying Trump’s motions to dismiss.Jack Smith asked for a little more time to brief the court on how the Supreme Court ruling on presidential immunity will affect the indictment and future proceedings.What would it take for the FBI to investigate Supreme Court Justices?Plus we take some listener questions. Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJMarcy WheelerJack Smith Asks for an Extension - emptywheel Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ  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 89 of Jack, the podcast about all things special counsel. It's Sunday, August 11th, 2024. I'm Alison Gill. And I'm Andy McCabe. Wow, within an hour, an hour AG of the DC Circuit Court, remanding the case back down to Judge Chutkin. She wasted no time in issuing orders and rulings.

Three came down over on Saturday, seemingly while she was on vacation. And we will go over those today. Yes. Three, three, but in two filings. And Jack Smith has asked for more time now to file the joint brief on immunity. Judge Chutkin gave both parties until August 9th. Jack Smith wants till August 30th. And of course, there's no opposition from Donald Trump.

I think this is the first time the government has asked for more time, Andy. I think it might be. He's asked for more pages before, but never more time. Yeah. In his omnibus response. I remember that. And then Trump came back with bad math saying he needed more time to respond when it was actually fewer pages than it would have been for him to respond to both. But anyway, we'll go over that in detail. We'll discuss what the Department of Justice could be contemplating. But first, we'll go over that in detail. We'll discuss what the Department of Justice could be contemplating.

But first, another installment of Good Week, Bad Week. Andy, what do you got? You know, I feel like the last couple of weeks, this is reverted to like, here's when we talk about Donald Trump's bad week. But it just keeps happening. And so it's kind of hard to avoid in the good week, bad week lineup. And I think, you know, another not great week for the guy who was rolling. I mean, he was really on a roll there.

I mean, he was having a bunch of good weeks. He's looking almost unstoppable with between immunity and Florida getting sandbagged. And then they're all culminated with the assassination attempt, which I get it is not a good thing, but he came through it unbelievably well and was able to turn it into a very effective messaging moment. Fundraising moment at least. Fundraising moment for sure. Then he had his convention. That was kind of a, I don't know, a little victory lap or something.

It was like produced by the WWE. It was so weird. Complete with wrestlers, shirtless and all that stuff. But man, last week we talked about that disastrous appearance at the convention of black journalists. I may be getting the title wrong. Oh, the National Association of Black Journalists. Yeah. There you go. This week, he's really kind of, he's been quiet, not around.

And then people are saying, why is he so quiet? So he went out and gave that unhinged press conference a day or so ago that sparked all kinds of questions about his mental capacity and fitness and everything else again. And you know how that went down too, right? His people were like, just stay low, lay low, stay quiet. He's like, no, I know better than all of you. I'm going to put on

my own press conference. Watch. And then he just went out and just lied his face off for over an hour. Of course, the press isn't covering it the way they cover, you know, the way they covered the debate performance by Joe Biden. But yeah, that was awful. It really, I mean, just absurd things, the comparisons that Martin Luther King, I mean, like, he's like, what in what world and what, what, what color is the sky in your world? I mean, it's just, you just don't know. But Well, it's perception. Do you see Rayleigh scattering shows us? Because that's totally

what he would talk about. Yeah. I've got 80,000 people at my rallies. 80,000 people. There's no way. You didn't have 80,000 people at a week of rallies, nor did any other politician. I mean, that's like Taylor Swift numbers right there.

So forget about that, Donnie. But anyway, I feel like it's another bad week. He's really kind of getting run over by this string of good weeks that the Democratic, now can we say candidate, is having. Yeah, we can. And her VP pick, Governor Walz. And you know, I'm going to piggyback on your bad week for Trump because just today, actually, as we record this on Friday, the dominoes are falling. Nick Fuentes, you know, the neo-Nazi guy, he has pulled his support from Donald

Trump and he's kind of been doing that over time. And then followed by Tim Poole, a podcaster who said he's not going to vote for Trump now, he's going to vote for RFK Jr. And when RFK Jr. shows up in the polls, when they do like a head to head between Kamala and Trump, and then they add a third party like RFK Jr., Trump actually does worse. I think RFK Jr. siphons more voters away from Donald Trump than he does from Kamala Harris. But today, Joe Rogan has told his audience of millions of people that he is not going to vote for Donald Trump. And while Kyle Rittenhouse lasted about 10 hours, it's going to be a lot harder to pressure Joe Rogan to get back into the fold. So this is really bad news. They're imploding. The campaign is imploding.

All of these huge influencers that were once for Donald Trump are now in the RFK Jr., I guess, brain worm and fake bear bicycle accident dog eating contest. I can't let that one go by because I read those stories this week from overseas because I was so fascinated by it. So you're telling me that people know that this guy planted a fake, no, I'm sorry, he was a real dead bear, but faked run over by a bicycle in Central Park and then just left it there. And they're like, yeah, that's the guy I want to vote for. That episode is such a classic example

of great presidential judgment. That's the guy I want right there with his finger on the button. Dead bear guy, brain worm guy. What? I mean. Yeah, somebody was like, picture him sitting down with Israel and Hamas trying to hammer out

a two state solution. No, but yeah, no, that's who they're going with brain worm guy. Wow. So yeah, bad, bad week. Bad week. Good week for brain worm guy, I guess. But what does that ever come to? All right.

So there you go. That's good week, bad week. Um, and let's jump back in. Let's go to DC, the place we've got some action. We've been waiting for action, and now we got some. Because that case hit the ground running this week. So OK, so you know last week we announced that the Supreme Court had remanded the case back

to the DC Circuit. And then about 15 minutes after that, the circuits, they said, hot potato, pass it right along. They sent it back down to Judge Chutkin. Shortly thereafter, Judge Chutkin issued an order and a ruling. So let's go over that document first. It's one document, one page,

classic judicial economy of words, which we don't typically see in the other case we cover. But this one- Yeah, it was a 93 page ruling. This one pretty tight. And it says, let's see, the court has regained jurisdiction over this case. The court accordingly orders the following. A status conference in this matter is hereby scheduled for August 16th, 2024 at 10 a.m.

The requirement of defendant's appearance is waived for the conference by August 9, 2024. The party shall confer and file a status report that proposes jointly to the extent possible. She says that. Nice. A few boys could cooperate, but I'm not counting on it. Propose a schedule for pre-trial proceedings moving forward. If necessary, the parties may explain any disagreements in separate sections of the report. Which is going to be the bulk of the report, let's be honest.

The defendant's motion to dismiss the indictments based on statutory grounds is hereby denied without prejudice. A defendant may file a renewed motion once all the issues of immunity have been resolved. Briefing deadlines with respect to the government's motion in limine and motion for SEPA section six hearing are hereby stayed. The court will set additional deadlines following the August 16, 2024 status conference. Okay, so three main takeaways. Brief by August 9th on how to proceed. Status conference on August 16th, and you don't have to be there in person, Donald Trump. Yeah, and that's actually nice.

I mean, that she goes, she doesn't like, he's expected to be there for all this stuff, but she goes out of her way to say, okay, you don't need to cover this. You can send your lawyers. That's fine. Yeah. And third, a denial of Trump's motion to dismiss on statutory grounds. And we'll talk a bit later in the show about the briefing schedule as Jack Smith has asked for an extension. But that dismissal without prejudice of the statutory thing, that's important because

she's basically saying that the entire construction of the indictment could change, given not only the immunity decision that could eliminate some charges or evidence, but also given the Supreme Court ruling in Fisher about Title 18, U.S. Code 1512C2, that statute, which is the basis for two of Trump's four counts. And we'll talk more about that when we discuss the reasons that Jack Smith might have asked for more time as soon as we get back from this quick break. So everybody stick around. We'll be right back. Welcome back. Okay, right after she issued her order denying Trump's motion without prejudice

and setting a briefing schedule, Judge Chuckin also issued an order denying another Trump motion to dismiss. And we're going to talk about that in a few minutes. But first, let's discuss Jack Smith's motion to delay the briefing schedule because it touches on what you brought up right before the break, that the structure of the charges could change considerably and that takes time. So first, let's go over what's in Jack Smith's request for more time. In that request, he says, the government continues to assess the new precedent set forth last month in the Supreme Court decision in Trump v. United States, including through consultation with other

Department of Justice components. And then they cite to 28 Federal Records 600.7, which says, a special counsel shall comply with the rules, regulations, procedures, practices, and policies of the Department of Justice, including consulting with appropriate offices within the department for guidance with respect to established practices, policies, and procedures of the department." Huh. And that's almost like a little bit of a nudge down to Judge Cannon's dismissal of the Florida case, right? Like, look, I have to go and get permission and talk to other components of the Department of Justice who I work for, who hired me. I feel like that's kind of a nudge nudge, wink, wink.

What I thought reading it was like, why didn't they bring this up in that argument? Why didn't they use this as another example of how he's not some rogue, absolutely independent guy out there. But in any case, he's showing Judge Chutkin that he is required to go through a fairly rigorous consultation process with DOJ and he needs more time to do that. So he goes on to say, although those consultations are well underway, the government has not finalized its position on and this I think is really important here, E.G. The government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision. The decision of course being the Supreme Court case.

So is that you think he's kind of saying we want to do this on paper and not in a hearing or do you think it's we just need to think about the most appropriate schedule to brief issues related to it? Well, I think there is a little shot to the paper preference there, but also he says the most appropriate schedule for the parties to brief the issues related to the decision. That meaning what's the best and most effective and appropriate way for the parties to brief the issues related to immunity?

And that could be because they're thinking, wait a second, maybe we need to figure this other thing out first. Or maybe we don't. Maybe the top issue is immunity and we need to go with that first. Like that, the timing of the briefing really reflects the flow chart of the decision-making, right? So if you're trying to figure out the schedule, the order in which different issues should be briefed,

you're basically deciding like, okay, what needs to be decided first, then second, and what follows from that, and the third, and yada, yada, yada. So they go on to say, the government therefore respectfully requests additional time to provide the court with an informed proposal regarding the schedule

for pretrial proceedings moving forward. The defense does not object to the government's request for an extension. I'm surprised they didn't ask for more time. The defense has never seen a request for an extension of time that they didn't like. Yeah. Therefore they like this one. Accordingly, the government requests that the court enter an order requiring the parties

to submit another joint status report by Friday, August 30 and continuing the scheduled status conference until a convenient day thereafter. And then they just talk about what days might be available. Yeah, they say the government's available any day after August 30th. But Trump is unavailable on September 6th and the week of September 16th. And Andy, given Judge Chuckin's denial without prejudice to Trump's motion to dismiss on statutory grounds like 1512C2. I'm almost certain that the Department of Justice here is asking for more time. So like you said,

they can figure out how to move forward with different issues like 1512C2. That would require not only figuring out what evidence will be available to them to charge the fraudulent elector scheme, for example, after the immunity ruling, but also perhaps to retool the indictment against Trump to focus on the fact that he orchestrated the creation of a fraudulent document for very unofficial purposes. Yeah, I think you could be right there.

And I also think that this is them tactically thinking like, let's fix the 15, it could be, we don't know, but it could be them thinking, let's fix the 15-12 problem first, because that frames the rest of the immunity issue. In that process, we can kind of craft our way around stuff that's not going to be allowed anymore because of immunity. But all right, because if you if you recraft the indictment to say, to focus on the creation

of a fraudulent document, then you're going to want to ask what's immune now in this new thing, or do you want to find out what's immune before you recraft your indictment? Do you know what I'm saying? If you do immunity first, you're basically saying that the indictment in its current form stands and we'll just deal with the pieces that are left after we eviscerate it with the immunity analysis. But he's not wanting to go with that.

My sense is he's thinking, hmm, let's take advantage of this opening that we have to deal with on the 1512 C2 issue to kind of restructure things. And then that sets the framework for the immunity conversation. That's a possibility. And I think Marcy Wheeler, it seems, sort of agrees with that. She writes at her blog, emptywheel.net, of course, no one knows why Smith might need the delay. By far, the most obvious, however, has to do with how the DC US Attorney's Office plans to apply 18 USC 1512 going forward

after SCOTUS limited the application of obstruction charges in Fisher to matters pertaining to the evidence. Two of Trump's charges are obstruction, one charges a conspiracy, and the other individually. Thus far, she says, DOJ has dealt with the crime scene cases implicating obstruction on a case-by-case basis. Those cases before Carl Nichols, the judge whose outlier ruling was adopted by SCOTUS in the Fisher case, are getting dismissed. But some others are getting delayed.

Still others are getting recharged under 18 USC 231, which is the rioting statute. Sentencings involving obstruction are likewise being delayed. She goes on to say, as Justice Katanji Brown Jackson noted in her concurring opinion on the obstruction ruling, because the vote certification involved the electoral certificates themselves, some of those crime scene cases might survive the Fisher ruling. DOJ has always argued this was possible, but it's likely only possible, if at all, for those defendants who knew the import of the certificates themselves. For Trump, however, the continued exposure is far broader, as Justice Amy Coney Barrett noted in her concurrence on the immunity ruling, because by orchestrating the fake elector

certificates, Trump created a fraudulent document. Yeah, and the Supreme Court explicitly said creating a fraudulent document. Yeah, and the Supreme Court explicitly said creating a fraudulent document would be chargeable under our new narrow understanding of 1512 C2. That's right, that's right. Marcy goes on to say, and DOJ needs to figure out how these two potential bases will interact going forward. Likely, the DC US Attorney's Office has also has to consult with the Solicitor

General's Office to figure out what they think will survive an appeal, including how an obstruction charge built on the fake electors would survive. So that's probably a big cause of the delay. DOJ as a whole has to settle on how they're going to deal with obstruction going forward in light of Fisher. Charges for some crime scene defendants may depend on how Smith approaches obstruction charges against Trump. OK. All right, so that sort of makes sense.

And let me read what the Supreme Court said about the fraudulent electors. Because Trump argued, of course, that he's allowed to oversee state administered elections because of the take care clause, take care to the, you know, the laws are faithfully executed. And that gives him the authority to provide that oversight. Now something that the, this is something by the way, the 11th circuit's chief judge prior, very conservative, good friend of Clarence Thomas.

He disagrees with that. And he ruled as such in the Meadows case, when Meadows wanted to kick his Fulton County case to federal court. Judge Pryor said, even if I allowed former DOJ officials to have to go to the federal courts to have their cases heard, even if I entertain that, overseeing elections is not your job in the White House. And so that's really interesting. But in the immunity case, the Supreme Court said there weren't any briefings back and forth on whether Donald can meddle in elections run by states. So they weren't able to opine on it, which is really weird, because they weren't briefed

on immunity for future presidents either. But that didn't stop them from making a rule for the ages. But I digress. Here's what Robert said about the executive branch messing with elections. He said, unlike Trump's alleged interactions with the Justice Department, this alleged conduct, meaning the fraudulent elector stuff, cannot be neatly categorized as falling within a particular presidential function. The necessary analysis is instead fact-specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons. And the party's brief comments

at oral argument indicate they starkly disagree on the characterization of these allegations. The concerns we noted at the outset, the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties, thus become more prominent. We accordingly remand to the district court, Judge Chukin, to determine in the first instance, with the benefit of the briefing that we lack, whether Trump's conduct in this area qualifies as official or unofficial. So basically, lower court, you figure it out, and then come back to us and we'll tell you if you're wrong. Yeah.

It doesn't really inspire confidence, but it is where we are. It's such a weak dodge, I think. He's going so far out of his way to explicitly state why they can't opine. They opined on every other thing under the sun. Why? Exactly. It's just like he's reaching too far. He's working too hard to convince you of this.

When in reality, I think the entire take care clause argument is ridiculous. I mean, the take care clause doesn't obligate the president of the United States to ensure that every state law is, is, you know, executed perfectly. It's a requirement that comes out of the Constitution. Although this doesn't, it's comes out of the Constitution. Although this is not specified in the Constitution, I think you'd have a really, if that was the only issue before any reasonable Supreme Court,

does the take care clause apply to a president in a way that obligates his attention and effort equally to state and federal laws? I mean, it's hard for me to imagine a court that would say, yes, that was the case. It's clearly intended to put the president in the position of enforcing federal law. You are the chief federal law enforcement officer in the country. Yeah. And, and if, if one of your arguments is, hey, you can't prosecute a president because I won't have time to president.

Right. But then on the other hand, saying that the president has to take care that every single state and local and municipal laws executed properly makes absolutely, you would really then have no time to president. And it's absurd when you think about the history behind the constitution to think that

you could have gotten that room of men representing such a diverse array of states to come together on this idea that yes, the federal government should be responsible for enforcing all state law everywhere. Like, no, that's exactly what they didn't want. It doesn't make it. It doesn't make any sense at all. But I do think it's very interesting when we know when you have to think about how Fisher and the narrowing of 1512 C2 would apply here. You know it makes sense to me to take the indictment as it is and pull out what doesn't work and then retool it. But also with the immunity ruling in mind you could retool the entire indictment, taking out any of that evidence, the DOJ stuff,

because the Supreme Court explicitly forbade, said it was completely immune for him to talk to his Department of Justice, pull all that out, reissue the indictment, then go over it piece by piece, and piece of evidence by piece of evidence. But then you have a whole new discovery. And I mean, like we're talking a lot of time. No question. This whatever route they go, whatever kind of major bucket of issues they confront first and which ones they get to second. It's still a massively complicated problem.

Even Fisher alone was gonna require a significant amount of work to restructure the indictment. I mean, at minimum, a lot of people, I remember the day Fisher came out was talking to people at CNN, and several lawyers were saying he should just dismiss those counts. Walk away from 1512, go with the remaining

two counts and just go forward with the cleaner case. You avoid any issues on appeal, yada, yada. But I think that's kind of, it's the most expedient kind of line US attorneys way of handling things. This is not that case. So I doubt that they would do that. I think they're going to go back and really kind of restructure it, rephrase it, maybe put it under a different part of the statute, what have you. So that's a big, that's a big ask. And that's before you even start thinking about this immunity nonsense. So there's a lot of work that they have to do. But Chutkin, I think, is sending us a very clear message that she's, she don't care. She's not afraid. She's ready to dig in and start sorting this thing out.

Yeah. Yeah, for sure. And Marcy raises one other possibility that the government might be considering. And we're going to discuss that, but we have to take another quick break. So everybody stick around. We'll be right back. Hey, everybody. Welcome back. All right, let's talk about that. I alluded to another possible reason that Jack Smith might have asked for more time that I read in Marcy Wheeler's blog and why he specifically asked for August 30th. An interesting prospect raised by Marcy in that same article, they may be considering filing new or different charges. Kind of what we were discussing and alluding to a little bit in the A block there. She writes, Jack Smith asked for delay until August 30th. That's probably the last day that the DOJ would permit charging anyone political before an election. That is, as

happened with some crime scene defendants, and she means like the boots on the ground people at the Capitol that day. Right. Gen 6 people. Yeah. DOJ may be considering recharging this case or charging others against whom some of these charges would stick, you know, the co-conspirators. And aside from the possibility of charging a bunch of Trump's co-conspirators, that allows

for one very provocative possibility. And the provocative possibility she's talking about, Andy, is charging Trump with insurrection. Title 18 US Code 2383. I sold shirts with that code on them because I thought that that should be charged because of 2383, you can actually go forward and trying to remove him from the ballot for taking part in an insurrection under section three of the 14th amendment. Marcy reminds us that if Jack Smith originally avoided the insurrection charge to avoid any claim that Trump's impeachment acquittal would rule it out, meaning it would cause some sort

of weird double jeopardy, he has no such worry now. You recall, John Roberts said in the immunity ruling that someone acquitted during impeachment can still be criminally charged with that same crime. No double jeopardy attaches. Because, you know, Trump was oddly arguing that, impeachment judgment clause meant that he couldn't be charged with a crime. It was the weirdest, most backward argument. But in order to respond to it, Chief Justice Roberts said, look, if you're acquitted of an impeachment, that's a political process, that doesn't preclude you from being charged criminally for the same behavior.

That's right. And he said that explicitly. Yeah. And Marcy also points out that recharging Trump to include insurrection is the exact equivalent to what DOJ is doing elsewhere with the January 6 rioters, replacing the obstruction charge with a rioting charge. And she also says, and it's not clear to me how she knows this, but she says it would be consistent with the inclusion of a Proud Boy prosecutor on the Trump case,

which I suspect to have occurred. I'm not sure why she suspects that to have occurred, but I may have missed that. There were several announcements on the docket of appearances by like Pierce and, you know, several other lawyers. And I think maybe one of them was a somebody who worked on the prosecution of the Proud Boys I would have to go back and check that but she says she suspects it's occurred right right yeah and I don't know if I've learned anything though Andy in these last nine years covering this stuff is that justice is a lot of hurry up and wait a ton and

perhaps they're just reconsidering how to move forward with the current stuff is that justice is a lot of hurry up and wait. A ton. And perhaps they're just reconsidering how to move forward with the current indictment under the new immunity rules. And maybe they just need more time to consult with other DOJ officials, as is required under the special counsel regulations, which was an argument that was made down in Florida before she dismissed the case, Judge Cannon did. Like for example, as you mentioned, and as I think Marcy mentioned as well,

having to consult with the solicitor general. Because one of the rules of indicting somebody, and we've known this for a very long time now since I've been covering way back to the Mueller investigation, is that you not only have to have confidence that you will succeed in obtaining a conviction, you have to have confidence that you will succeed in obtaining a conviction, you have to have confidence that you will maintain it on appeal. That's right.

And the Solicitor General is the person who does the appeals, right? He's the one who argues or she's the one who argues the appeals and has the expertise to tell you, yeah, this is survive on appeal or no, this probably wouldn't survive on appeal. And that's probably one of the components of the Department of Justice that Jack Smith needs more time to consult with. And that's why he asked one of the reasons he asked for this. But I would think that they would need a resolution all the way back up to the Supreme Court on immunity, especially for what evidence can be used. Because you remember that fourth finding, the one that blew us all over, that even evidence

can't be used in court if it was part of an official act. And I think they would need that before they charge the rest of the unindicted co-conspirators or bring new charges. But they could also, as we talked about, bring the new charges first to narrow the, to make the immunity work easier going forward. So maybe that's what they're weighing. I don't know. Either way. I mean, there's an infinite number of things that they could be doing. There are, there are some things that we know they're doing. We know they're consulting vigorously across DOJ

with all these different elements. Each one of those places needs a certain amount of time to consider the question, maybe write a memo. These are not like, you know, make a decision at the table and everybody walks away and doesn't remember how it happened. You gotta have like a solid record of this stuff. And that all takes time. And let's not forget, I mean, there's the most kind of obvious and simple

explanations for some of these things. It's August. Not everyone is around all the time. You know, it's like, I know this is a very important thing. And we want it all, we all want it to move forward. But simple things like availability and travel and the time that it takes to consider and write memos and get those approved and you know the paper crosses each other and that sort of stuff. It's a lot of work and you know it's not doesn't surprise me that he felt like he needed more than what has this been a week to get it done. Yeah, yeah and I and I also think that judge Chuck can denying without prejudice Trump's motion to dismiss on

Statutory grounds like 1512 c2. I think that was a big hint like figure this out, too You're gonna need to figure out 1512 c2 as well and and then come back It was actually a hand to him because she essentially said with that dismissal your old motion is not almost not even relevant anymore because there's issues hanging out here that could impact your any Motion to dismiss on statutory grounds that we need to resolve some of these things first before you can then make an act a competent Motion so she actually I think did him a favor with that But in any case Joyce Vance wrote the following for the Brennan Center along these lines.

She said, Smith should insist whether Trump agrees or not on having the court review the charges and the evidence and decide what prosecutors can move forward with. Smith should ask the judge to go through the indictment charge by charge and allegation by allegation. And Trump should be required to establish why he is entitled to immunity for any particulars he believes should be excluded.

Prosecutors should be permitted to argue, as the Supreme Court said they could, that some conduct is the type of official act entitled only to presumptive immunity and that the government can overcome that presumption by showing that the charge conduct as a crime or using it as evidence will not interfere with the function of the presidency.

Ultimately, the judge should evaluate the arguments and make her calls in an order that will create a strong record that can be used to support the position that any charge or evidence Chuck can permits the government to use fell outside of presidential immunity. The Supreme Court left most of this up to her, suggesting only that Trump's activity with the Justice Department officials was absolutely immune. Smith should call on the judge

to carefully scrutinize all else and engage in a painstaking decision process, knowing that the issue is inevitably headed back to the appellate courts, and a clear solid record supporting this case will be critical. In fact, Chutkin may be anticipating a process like this. In her memorandum opinion denying Trump's selective and vindictive prosecution motion

on Saturday, she revisited each of the four charges against Trump, carefully specifying the paragraphs in the indictment that pertain to each of them. It would come as no surprise for her to have done that in preparation for just this type of exacting review. Yep, yep, she sure did. And by the way, what you just mentioned, what Joyce mentioned, the vindictive and selective prosecution motion for dismissal, she denied that on Saturday as well. And we're going to discuss that. And we're going to take listener questions right after this quick break. Everybody stick around. We'll be right back. Welcome back. All right, we have breaking news. Let me read this from this minute order just issued by Judge Chutkin on Friday. The government's 210 unopposed motion for extension of time

is hereby granted. Ah, okay. The Joint Status Report previously due August 9th, 2024 is now due by August 30th, 2024. The status conference previously scheduled for August 16 is continued until September 5, 2024 at 10 a.m. That's interesting. It just occurred to me. The reason he's not going to be available on September 6 is that's oral arguments in the appeal of E. Jean Carroll's five million dollar victory. That, you know, so that's Septemberth and his sentencing is September 18th. So his September is heating up. It's looking very legal.

He's going to be in court a lot. Yeah. I mean, he doesn't have to be there. So I'm assuming that still stands that he can either attend remotely or send his lawyers in. But don't you think he spends like hundreds of hours preparing with the attorneys and reading all their briefs and approving them? Of course. He reads everything. He has it explained to him. Yeah.

What are you talking about? Get away from me with that paper. Is that Twitter? Because I don't, that's all I know. Also get this. She entered another minute order on Friday. This one says, motion for leave to appear pro se to Kash Patel dated August 5th as to Donald Trump. Even if construed as a motion for leave to file an amicus brief, the court is not persuaded that filing this submission is warranted. Although courts have in rare instances exercised their discretion to permit third party submissions in criminal cases, neither the federal rules of criminal procedure nor the local criminal rules contemplate that practice.

At this time, the court does not find it necessary to depart from ordinary procedural course by permitting this filing. This document is unavailable to anyone because the court has denied its filing. And so I don't even think he was asking for leave to file an amicus brief. I think he was asking to file a motion in this case. I mean, I so don't understand this. A motion to appear pro se is typically filed by a litigant, which Cash Patel is not in this case, who wants to represent themselves. So I haven't seen the filing, so I can't say what he's actually asking for, but it could be anything.

It's denied. We can't even see it. Yeah, that's it. We don't even. I love this shot though. Although courts have in rare instances exercised their discretion, then she goes on to explain why they absolutely should not have. Yeah. Kind of like a slap in the face to Judge Cannon, who let pretty much anyone file anything on the docket except for Jack Smith. Actual motions.

Right. Who had to file onto a secret docket in order to get red box redactions approved. But yeah, that's pretty. She basically says, although courts have done this in the past, it was a terrible idea. It should not have been permitted, and I will not let it happen in my court.

Goodbye. Yeah, and I think it's pretty also, we were about to talk about this denial of Trump's motion for vindictive and selective prosecution. That's something that Judge Cannon would have taken six months to decide and would have had multiple briefings and then side briefings and then secret docket stuff and then amicus briefs and then maybe oral arguments followed by a three day hearing. And she just, well, tell us what she decided because it's pretty obvious. Yeah.

The result of what you just laid out would have been, even though I don't like what the special prosecutor said, I agree with them and I'll dismiss the motion without prejudice and invite the defendant to raise it again later before jury selection or something. Okay. So the final bit of news today is of course, as soon as Judge Chuckin got jurisdiction back in addition to her order, setting the briefing dates and denying without prejudice the motion to dismiss on statutory grounds, she also denied another Trump motion. So this is from ABC News.

In her second move since resuming control over Donald Trump's federal election interference case, Judge Tonya Chutkin denied the former president's motion to dismiss the case based on selective and vindictive prosecution. Chutkin found, quote, no evidence that prosecutors abused their authority or behaved vindictively when bringing

their case against the former president. And this is the one where he's like, Joe Biden conspired and did this to me to do it, to keep me away from the presidency, but offered like literally no evidence. No. ABC goes on to say in denying Trump's motion, Chuck can criticize what she called Trump's improper framing and that the allegations against him are a theory that it is illegal to dispute the outcome of an election and work with others to propose alternate electors. Quote, at this stage the court cannot accept the defendant's alternative narrative. That's what she

wrote. That's court speak for BS. Yes. Now before the federal case was frozen for more than a half a year, as we know by the Supreme Court, defense attorneys attempted to have this case thrown out by arguing Trump was selectively prosecuted and unfairly targeted, quote, to prevent him from becoming the next president again. Quote, after reviewing the defendant's evidence and arguments, the court cannot conclude that he has carried his burden to establish either actual vindictiveness or the presumption of it and so finds no basis for dismissing the case on those grounds. This is a 16 page order, by the way, not a 93 page order. And Chukin found that Trump

failed to provide evidence for either prong of the two part test to prove selective prosecution, that he was first singled out for prosecution and second that the case was motivated by discriminatory purpose. Quote, finding no evidence of discriminatory purpose in the sources the defendant cites, the court is left only with his unsupported assertions that this prosecution must be politically motivated because it coexists with his campaign for presidency. Wow. Wow. I mean, she just picks him apart and says, the court cannot accept your narrative merely because your crimes coexist with a presidential election. Sorry.

And can I point out my OCD is completely triggered here by the phrase, the next president again. Yeah, me too. If you're the next president again, aren't you just perpetually next? Yeah. You're never actually it. Nope. Right, you just kind of.

You're the next. You're the next, you're the next. You're not there yet, you're next, you're next. Yeah, and that's why she put that in quotes too. She was, in her ruling, she's like, kind of like, as if to infer whatever that means. Exactly. The next president, you'd be like the president at DMV, right?

You're next, you're next, you're next. But you never actually get to the counter and resolve your problem. Always a bridesmaid, never a bride. There you go. There you go. All right. So I'm excited to get to our listener questions today, Andy, because they're really good. If you have a question that you want to submit to us, there's a link in the show

notes that'll take you to a forum to submit a question to us. So what do we have today, Andy? All right. So we have two. The first one is pretty quick. I brought it up just because I think it's helpful to clarify these things periodically. And then the second one's a little bit more of a thought experiment. We can go into that one in more detail. But the first one comes to us from Chip. And Chip said, if the Supreme Court is never

mentioned in the Constitution, can't the president just executive order them to be dismantled? And they are actually mentioned in the Constitution. In the Constitution, Article 3, which is the article that establishes the judicial branch of government, it starts with the language, the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. So that's the one we started with. And it is the only court that's actually specifically named in the Constitution. Everything else was created by law. So the federal courts and the federal appellate courts

were all created by acts of Congress. But because it's constitutional, yeah, the president can't just really do anything he wants to get rid of the Supreme Court. And that's why they are a co-equal branch of government. Yeah. And that's interesting that the district courts, appellate courts, all created by legislation, right? Because we just actually got approved through the House and the Senate and signed into law to add 60 something more judges, 63 I think, to the federal bench. So that's the kind of thing that Congress does. Exactly. Exactly. That's what of course led to the infamous Marbury versus Madison, which

we talked about a hundred times that I never seemed to get away from. Marbury says I can do whatever I want. Yes. It doesn't say that. It really says the opposite. All right. So that thank you, Chip, for that one. Well, let's move on. You want me to read the next one? Yeah.

You want me to read the last one? There that's actually one. Oh, it's one. It's all from Shelley. All right. Let's go. Shelley from North Dakota. Hello from North Dakota.

All right, let's go. Shelly from North Dakota. Hello from North Dakota. I ran for North Dakota governor on the Dem NPL ticket against Burgum in 2020. I donated to Andy when he lost his job just before his retirement. A few of the North Dakota politics types were abuzz when Alison followed me

with her hundreds of thousands of followers. You've been in my ears for years as I drive across the prairie. Shelly, thank you. Such a nice image. I know. My question is for Andy. When would or could the FBI get involved in investigating a potentially corrupt federal or Supreme Court justice? For example, if one of our foreign allies picked up a conversation between Thomas and Russia or Canon with Trump and his team and shared it with the United States. Is that enough to start an investigation? How do investigations against corrupt justices begin?

All right. Really good question. So let's start at the beginning where, and I'm sure AG, you know this as well as I do from your Mueller, she wrote days. Yeah, and definitely by the book, The Threat, by Andy McCabe, where he describes the process by which opening an investigation must be followed. There you go. It's right in there. So, the FBI can open a full, what we call a full field investigation. That's like, you know, the most robust sort of investigation you can do with what they need to open an investigation is information that a federal crime has been committed or that a threat to national

security exists, might exist. And what you described here kind of fits into both of those. It could fit into both of those categories or one or the other, depending on how you framed out the hypothetical. So let's say, let's go with your example about a foreign government has uncovered evidence that Clarence Thomas is somehow interacting with Russia in a way that would make him an agent of the government of Russia or something like that. If that came to the FBI, that would certainly pose a national security threat and they could open a case. It would be absolutely without a doubt a, what we call a sensitive investigative matter, which would mean it just would require an unbelievably

high level of approval before the case could get opened and start to be worked by agents. And that would not happen without the full knowledge and approval of the FBI director and the attorney general and really everyone beneath them that needed to know because it's such a wildly controversial thing. I don't, my, I am not aware of that ever happening in the history of this country. But that's kind of what it would take.

It raises all kinds of interesting questions about whether or not they would do it as a quote unquote normal. It wouldn't really be anything normal about the case, but would they do it internally? Or would they bring in a special counsel to take to run the investigation kind of, you know what I mean, like outside the day to day of DOJ?

That's my sense is how they would probably do it. It raises all kinds of sensitivities because do you really want the regular department to be pursuing and making investigative decisions about these judges who will ultimately decide many cases that impact the department and the work that they do and the authorities that they have and yada, yada, yada. So I think they'd probably bring in a special counsel. They would still need some FBI agents and others to help the special counsel to kind of form that

investigative unit. But obviously we're all familiar with that now. So that's kind of how it works. There's nothing that there's no law or policy that prohibits DOJ from doing that. In fact, they are tasked with investigating and prosecuting violations of federal law. This could easily be that. And so it would fall well within their authority to do it, but it would be very, very, very controversial. Controversial, yes, but they should be free from politics. And here's my two cents on it, right? If the FBI can investigate members of Congress, which is a co-equal branch of government, members of Congress are no higher or lower on the food chain than a Supreme Court justice.

That's right. They are co-equal. I think we have a hard time swallowing that in this political environment right now. If the FBI can investigate members of the executive branch, including themselves, environment right now. If the FBI can investigate members of the executive branch, including themselves, which is another co-equal branch of government to the justices, then I think of course if they have the predicate to open, and you can talk about that language, I can't remember exactly what it is, an investigation into Supreme Court justice, I assume that they can. Let's take a real life example. Senators Whitehouse and Wyden have sent a letter to the Department of Justice asking for an investigation into the taxes of Justice

Thomas and Harlan Crowe. For example, if Justice Thomas' loan for his luxury motor coach were forgiven, he would have needed to pay taxes on the forgiveness of that loan. And if he did not, that could be a violation of the law. So talk about what kind of evidence would have to be in existence besides just a letter saying, hey, you should look into this. What would need to exist in order to, to kick off that investigation? Because we talked about what sort of evidence would need to exist to kick off Crossfire Hurricane, right? And that was plenty of evidence. So what would need in this tax example, what would need to exist for the FBI to do its job and investigate a sitting of Supreme Court justice the same way they would investigate a member of Congress or a member of the executive branch or even an FBI agent who broke the law. Yeah. So the tax case is both good and bad. It's a little bit tough to work through the

hypothetical because of the IRS's investigative jurisdiction, which is actually statutory in nature. And so, you know, there's things that they do kind of on their own. But nevertheless, if- Okay. What if we just limited it to failing to fill out your financial disclosure forms? Yeah. Failure to fill out the financial disclosure would likely not give rise to an articulable violation of federal criminal law unless Congress passed a law requiring it, you didn't do it. But let's stay with a financial, let's say there was an allegation that he was receiving, or any justice was receiving like massive cash gifts from someone.

Like maybe some of the money Harlan Crowe gave him came from a turkey. Yeah, it'd have to go, yeah, that would be a problem. So if it's a foreign government giving you money and you fail to register as an agent of that foreign government, it could be a violation of FARA, right? The Foreign Agents Registration Act. So typically the way those FARA violations come about a lot of times is you learn about something that someone's doing maybe even through like public reporting or whatever and DOJ typically issues a notice of possible violation to the individual and sometimes then pursues it criminally. So like that's kind of what it would take. You would, if it was just a general public corruption sort of case, like you would need an allegation that justice received money in return for making a particular judgment

or taking an official act on behalf of the person that gave them the money. But again, if you had, if that information came to you, no matter how it came to you, if it came to you through an informant, a co conspirator, a witness, whatever, then you would have the information necessary to reach that admittedly low threshold, which is having information that indicates that a violation of federal criminal law has occurred or may occur. That's all that's necessary to predicate a full investigation. People will say it should be more, but I disagree with that, but that's what it is. Well, because if you don't find enough, you just don't pursue it. And then you've got to get it in front of a grand jury, and the grand jury has to agree with you.

Nobody gets thrown in jail because you open an investigation. You don't even get indicted because you open an investigation. There are all kinds of other stops in the process as we know. Now is the IRS investigative arm, is that under the DOJ or is that under the Treasury? Or is the Treasury under the DOJ? It is not under DOJ. And that's why there's one area where like if you're doing a criminal investigation, you want to get some of these tax records.

It's very complicated. Even as an FBI agent with a fully predicated investigation, you don't just go to IRS and say, hey, give me this dude's records. Like you basically can do with any other government record. You actually have to have an order from a federal judge requiring the IRS to hand it over. And usually in those cases, what you end up working is like on a ad hoc task force. Like you bring the IRS investigator over to work the case with you because they have unique authorities and access to that information that we don't instinctively

have as FBI agents. So why would Senators Wyden and Whitehouse send their letter to the DOJ and not to the Treasury or the IRS? It's a good question. I'd have to look at exactly what they said in the letter. And obviously, I don't have it here, but to give you a better answer. And I'm sure part of the answer is a little bit of those letters, a little bit, a lot,

depending on the letter and the writer, is performative. Or political in nature. Or political. And of course, if the DOJ gets it and says, this is IRS, they could refer it over to them. Exactly. Exactly. And some of this stuff comes in that way, is referrals from other agencies. That's very often how the document cases get started.

And then some notorious ones like you get referrals from IGs, from other entities. We have a great example of the National Archives referring their investigation into the missing classified documents when they got the first 15 boxes back over to the Department of Justice. Exactly. Hillary Clinton's email case came to us from the State Department IG. Oh, right. That's right. So it happens pretty frequently. All right. Well, excellent questions and a lot of good stuff to think about. So thank you very much. And if you have any questions, again, there is a link you can click on in

the show notes of this program to submit your questions to us. Now we're back in a holding pattern, my friend. Although we should be getting the appellate brief to the 11th Circuit from Jack Smith for the dismissal of the Florida case by Judge Cannon by August 27th. Not sure they'll wait the entire time. But that's due August 27th. And now of course, these briefings in this case aren't due till August 30th. So it seems like we're in another, we're in another bit of a long- Staring at the end of the month sort of thing. So this is actually a really great opportunity if you have any questions to submit them and

we can answer a ton probably. And you know, I say that and then there's going to be a million hours of news on the Jack Smith investigations that happens between now and August 27th. It is always the way. But if there were any time that you might have a better chance of getting your questions answered, now is the time. So send those to us by clicking on that link in the show notes. Another really amazing week of news. Again, I think the big story here this week is that Judge Chuckin is wasting low time. You'll remember she said in another case unrelated to the Trump case that she was going to be on vacation the first week of August. And so she's presumably out there on vacation, issuing these orders and rulings. And I think that that's pretty baller. It reminded me of, remember when on Thanksgiving,

days after Jack Smith was appointed, he's writing letters, signing them, shooting them off. And it was one of those really good short letters where we talked about if I have more time, I'd have written a shorter letter. So that's, they're not messing around. Yeah, no, I totally agree. I think we're going to see things happening here. I wouldn't be surprised to see her gin up other parts of the case to like kind of get multiple balls moving in the right direction. So we'll see. But it's just good news that there's a heart beating at the center of that thing again, which is really nice to see. It's a strong kind of vote for some sort of resolution.

If the resolution at the end of the day is this case can't survive based upon the Trump v United States immunity ruling, then that's what it is. We all know where and how it died, but we can move on. But we just got to get to wherever we're going to get to. And I'm confident that that'll happen now that she's back on the case and making moves. Yes. And we will obviously keep an eye on that docket. I should check one more time to see if anything's hit before we sign off. Probably not. But let's see. Looking at the docket. I owe Pacer so much money. Nope. Just the order approving the extension that he

asked for to August 30th is the last thing on the docket. So got it. Yeah. All right, everybody. Thank you so very much for listening. We appreciate you. And I know that we're going to see some of you at our live show August 16th in DC at Hamilton live. That's going to be a great show. Andy, you're going to be there. Pete struck our SIPA expert Brian Greer will be with us. Glenn Kirschner and of course, Dana Goldberg will be nice. Good to see Dana again. Yeah, I'm really looking forward to it. That's going to be a great show. So much going on. So many people around here. Really everywhere we go. Super informed and like dug in. They want to be a part of the conversation with us. So that's

always great to see. And so we look forward to seeing you folks on the 16th. Yep. And send out your questions. Use that link in the show notes. Thanks very much. We'll see you next week. I've been Alison Gill. And I'm Andy McCabe.