Jack - Episode 92 | Superseding Indictment

Episode Date: September 1, 2024

This week, Jack smith hits Trump with 4 superseding indictments in DC to meet the Supreme Court’s rules of presidential immunity.Jack has also filed his brief in the 11th Circuit appealing Judge Cannon’s dismissal.Plus, a listener question. 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. Wait, what law have I broken? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is?

Send me to jail. Welcome to episode 92 of Jack, the podcast about all things special counsel. It's on, we're back. It's Sunday, September 1st, 2024. I'm Alison Gill. Game on and I'm Andy McCabe. It has been what? Over a year, significantly over a year since Jack Smith returned indictments against Trump in DC for his role in trying to overturn the 2020 election and in Florida for retaining classified documents and obstructing justice. In both cases, it's been the courts that have brought these cases to a grinding halt. But this week, this week, AG, we have some filings. Oh boy, do we have filings. I'm back, right?

Yeah, that's right. In Florida, special counsel Jack Smith has filed his appeal brief to Judge Cannon's dismissal of the entire case on the grounds that Jack Smith was appointed and funded inappropriately or unconstitutionally. And in DC, Jack Smith filed a superseding indictment on the same four counts with a brand new grand jury, brand new to him. The grand jury had been sitting for about a year, but brand new to him in this case. Removing from the original indictment anything that could be considered immune under the Supreme Court's ruling and adding some language that clarifies the new Supreme Court interpretation

of the obstructing and official proceeding statute under the Fisher case, right? That's right. So we're going to go over both as we wait for the Joint Status Report filing. That's due today and I still haven't seen it. I keep refreshing the docket. And there's still a hearing, a Joint Status hearing scheduled for this week, Thursday, September 5th, on how to proceed in the DC case. But first, it's time for another installment of Good Week, Bad Week. Yes, it is. And why not start with one of the weirdest things that happened this week, which was of course, the kerfuffle, the fisticuffs, however we want to refer to it, and Arlington, the assault and Arlington National Cemetery. It really, for me, it's this, this is so, it's on the one hand,

totally predictable, kind of a fits into the, of course they did sort of category. But also on the, on the other hand, it's like amazing to me that, that it seems like the Trump campaign has been stumbling since Kamala Harris emerged as the Democratic choice and now of course, nominee for the presidency. And one day after another, it's a different self-inflicted wound and this one was really pretty awful. Of course, referring to this Trump's appearance at Arlington Cemetery with one of the family members of the fallen heroes who were killed during the evacuation of Afghanistan. And of course, he brought with him his campaign

team and a photographer or photographers, and it was never perfectly clear to me how many he brought, who were capturing the moment and still in video photography. And then they posted those photographs and videos on TikTok as an official campaign advertisement. Of course, that's illegal. It's not permissible to take photographs and videos in Arlington National Cemetery. It's specifically against the rules there. They were apparently notified that it was against the rules

and would not be permitted. And that's when some sort of conflict erupted between the representative of the cemetery and Trump's campaign staff. That person claims to have been kind of roughed up, shoved out of the way, assaulted in some way by the campaign staff. They of course deny it. And then they went on some sort of a trolling campaign accusing her of being mentally ill and a despicable person or something

like that, which is just, it's just classic outrageousness for that crowd. Yeah. And where this to me ties into, you know, what we talk about here on the Jack podcast and even the other indictments in other jurisdictions at the state level that Trump is involved in, is that this Arlington employee has refused to press charges, not because the incident didn't occur or that she doesn't think that they're warranted, but because she is afraid of retaliation from Trump supporters. And there's a long history we have, you and I, Andy, of of talking about like let's say the don't call it a gag order limited gag order in DC the

Jack Smith filing a motion for reconsideration in Florida to not release the names of witnesses which judge Cannon had ordered But he filed a motion reconsideration and she caved on that as she should have and all of the evidence that Jack Smith has presented tons of evidence that Donald Trump uses his bully pulpit to get his followers to commit political violence and go after these folks and intimidate them. There was even a separate federal case in which he introduced evidence to, I think it was Judge Cannon about, yeah, it was Judge Cannon because she was going to let it happen under seal and ex parte, but then she changed her mind on the under seal thing and Jack

Smith had to hand it over to Donald Trump. Evidence of another federal criminal investigation of a Trump supporter going after either law enforcement. I think it was law enforcement at the time, because we know Jack Smith was trying to prevent Donald Trump from saying that the FBI attempted to assassinate him based on certain documents that were released, and he keeps repeating that lie,

by the way, but you and I know there's a long history of proven retaliation, physical violence, and intimidation, and retaliation, physical violence and intimidation and retaliation and bullying against anybody who goes up against Donald Trump. And so she seen this all, Ruby Freeman and Shae Moss, she's seen all of this and decided she didn't want to put herself or her family in danger. And I know that Tim Kaine of the Senate Armed Services Committee

has asked for a copy of the report, but this is, you know, this is bad news. It's a bad look for the Trump campaign. So I would definitely chalk it up to the bad week column as well. Yeah, totally. And to me, it really kind of shows, Spotlight's like a very basic tenet of leadership in which is that the staff and the employees, agents, whatever, of that leader take on the attributes of the leader. That's just the way it works. And if you have a leader who is charitable and cares about their people and doesn't humiliate people in public and isn't vindictive, then the people who work for that leader, they tend to emulate those same characteristics. They understand on a very conscious level that that's what it takes to get ahead, but also they just, they, people

naturally kind of mimic the characteristics of the person that is responsible for them. The opposite is also true. When you have someone who does not believe that the law applies to them in any way, they can basically do whatever they want. You can flout the rules. Doesn't matter what the rules are. You do whatever you want. Whatever is expedient, whatever you think is to your advantage, the people around you

start acting that way as well. And it feels to me like that's what happened here. You have somebody who approached the campaign staff, not Trump himself, but the campaign staff saying, hey, put the cameras away. You can't do that here. And they basically said, too bad. We're doing it anyway.

This person, this private citizen who invited us here said it's okay. Not that that person has the authority to grant that sort of privilege in any way. Yeah. And Trump blames that Gold Star family too now for this incident. Well, they told me to or whatever. Yeah. And Trump blames that Gold Star family too now for this incident. Well, they told me to or whatever. Yeah. And so you tie it back to Jack Smith, the special prosecution, the immunity ruling particularly. This is where we're headed with this immunity ruling with someone if he's

elected ends up back in the White House, cannot be touched for anything that is done even arguably within the scope of his official duties, is not bound by the criminal laws of this country like everyone else is. You can expect the people that work for him and around him and run the agencies he's responsible for, for acting in the same way, I think. That's just my theory. So that's the first part of Bad Week. Bad Week for the campaign, I think it looks terrible for them, but really bad week for

those Arlington Cemetery folks who worked there and who preserved that wonderful place for the heroes that are memorialized there, and for the rest of the country to be able to go there and honor them appropriately. So bad week for them too, and that's really unfortunate. Yeah. And another thing I'll put in the bad week for Trump column is that yesterday, just yesterday, Thursday, he said that he might vote to enshrine abortion rights in Florida, because he's a Florida voter. He says he doesn't necessarily agree with the six week ban. I think six weeks is too short. And then he got a ton of backlash from his hardcore pro-life base.

And then just today, he said, he flip-flop. He said, oh, no, I'm going to vote for the six week abortion ban. So that flip-flop doesn't look very good, especially with everybody going so hard. Went the right wing. The one thing that they found was that, I don't know, five years ago, Kamala Harris wanted to ban fracking. And then four years ago, she changed that position because she was going to be part of an administration that would really expand green jobs. And so it kind of made it irrelevant at that point. So that was bad. But you know who had a real good week? Who's that? Jeff Clark. Yeah. Jeff Clark had an excellent week.

He was removed as an unadited co-conspirator from the indictment. We're going to talk about what's been moved and what's been added. But he had a great week. He is no longer an unadited co-conspirator. He's in the clear on January 6 because he's out. He's removed from the list, will never be included.

And everything that he engaged in with the president trying to overturn the election can no longer, you know, we shall never speak of it again. It cannot be used against him or anyone else. We can't talk about it. We can't use any of that evidence, even though Jeff Clark is not a former president and is an immune under the Supreme Court's ruling, but essentially kind of he is. So good for you, Jeff. Beat the system. Catch you next time, buddy. Well, it kind of, to me, one of the most egregious parts about the immunity ruling is that a

conspiracy to create a fraudulent investigation in order to get legitimate electors thrown out in swing states. I was talking about that conspiracy. This is a conspiracy way back forever ago. I thought it was one of the worst of the five different conspiracies that were the manner and means of the bigger problems with what we see from this immunity ruling from the conservative court. Yeah. And we talked about that at the very beginning.

One of the things we were concerned about is the kind of bleed over effect. Yeah. They're saying the president is absolutely immune from core functions and presumptively immune for everything that he does, says, thinks, talks about, writes about within the broad scope of official duties. And so that by definition creates a level of immunity, effective immunity for all the people around him who are interacting with him who might be involved in that conduct. And so Jeff Clark's a perfect example of that. Jeff Clark's not a president, he's not

immune, but realistically impossible to prosecute him now for this stuff because you could never get that half of the case in. You couldn't, you could have other witnesses who were there talk about what was said, but you could never say why he was doing those things because it's that connection to Trump and you can't talk about it. So that's a real problem. Yeah. And let's talk about the superseding indictment in DC because what Jack Smith did here, first he did it in record time. The fact that he went, retooled the whole thing, cut what he thought wouldn't make it, took it to the Department of Justice, asked for more time from Judge Chutkin, took

it to the DOJ to make sure, asked the Solicitor General if this case would stand up on appeal because as you know, you can't bring federal criminal charges unless you can prove that you can obtain and maintain a conviction on appeal. So I'm sure he talked to them. Because Bloomberg came out with reporting last week that Jack Smith was not going to be seeking a mini trial, and that angered some other podcast hosts and pundits. But here at the Jack podcast, that's what we were expecting. So I wasn't surprised by that. But, you know, there's, there's a long history of protecting

these cases. And we talked about this and why Jack Smith probably wouldn't want to parade out his witnesses and all their testimony and his case in chief, because he's argued in multiple proceedings that we have to protect the integrity of the proceeding. We don't want to taint the jury pool. We don't want to try this in the court of public opinion. And we want to protect witnesses from retribution. And so that's been sort of what we were expecting from the get go. That's right. That's right. And as we know, the Supreme Court issued this obtuse and hard to deal with ruling on immunity.

It's so vague that it basically turns the justices themselves into the arbiters of what cases are prosecutable. So just as a review, the ruling had four main holdings. One, that we've just been talking about, core presidential powers are absolutely immune. So those things that are referred to in the constitution, for example. Two, official acts, anything that he does within the scope of his official duties have presumptive immunity and that carries with it a high burden on the government to overcome that immunity in any sort of prosecution. Three, they did say that his acts as a private citizen

are not immune, do not come within the scope of his immunity. And finally, maybe the worst of all, I don't know, it's hard to pick a worst and there's so many. It's pretty bad though. But a really significant piece of this is that evidence from official acts is barred from being used in any proceeding because it's covered by that presumptive immunity. And Andy, I think that's why he went to a different grand jury. Because the original grand jury had seen some of that potentially immune official acts evidence. And Trump could probably meaningfully argue that that grand jury was tainted by what should

be evidence that's considered immune. And so I think that that was why he wanted to go to a fresh grand jury. I mean, I know that they've been sitting for a while, but a new to him grand jury and get this indictment all over again with the truncated evidence that doesn't include official acts of immune evidence. And I thought that was smart. I think that's probably right. And there's no, because none of this has ever happened before.

These are all issues of first impression. We don't really know if a defendant in this case, Trump, could later attack the new indictment on the grounds that the same grand jury had been prejudiced by the earlier evidence, which is now not admissible against him. But if you're Jack Smith, you just hedge against that, right? And I think that's the good decision that you're referring to. He just, who knows, maybe Trump could file that motion and win. Maybe he wouldn't win, but let's just eliminate the possibility of that now. Go to a new grand jury's clean slate, and then we avoid that problem.

Yeah. And you had mentioned several times, you're like, what needs to happen here is whether we go through a mini trial hearing to decide what's left, then Jack Smith will have to go back to the DOJ and to find out if what he has left is enough to bring a case. That's right. That's right. Because you had brought that up. And on July 1st, Andy, when that immunity ruling came down from the Supreme Court, I

wrote about it on Substack. I was very upset. And I said, I literally said, I believe most of Trump's acts were as a candidate for office, meaning they're personal or private. But if the evidence of official acts cannot be used as evidence at trial, Jack Smith will likely have to overhaul his indictment. And so what I was getting at there was you got to go to

a different grand jury. You can't use the same evidence in the case. And the reason I used the word candidate here is two reasons, lots of reasons, but two main ones. First, Jack Smith has been referring to Trump as candidate Trump and private citizen Trump in multiple filings, including in his immunity briefings. I assumed he was doing that because of the Supreme Court's ruling in Blossing Game v Trump. That's the civil case where a bunch of Capitol police officers sued Donald Trump for his actions on January 6th.

And they, you know, the court determined that personal acts are, you know, you can sue. Yeah. But I started to think about this well before Blossom Game. This is when Mo Brooks was asking the Department of Justice to represent him in a lawsuit for the same stuff brought by Swalwell at all, a couple of Congress people. I think, and you know, Benny Thompson actually withdrew from that suit because he became the head of the, you know, January 6th committee investigating from that suit because he became the head of the January 6th committee investigating. But that Mo Brooks thing, I found very interesting. And what the DOJ wrote is they declined to represent Mo Brooks saying, quote, the record

indicates that Brooks's appearance at the January 6th rally was campaign activity. And in a variety of contexts involving state and local elected officials, courts have routinely rejected claims that campaigning and electioneering activities fall within the scope of official duties. Brooks thus has not sustained his burden of demonstrating that his conduct at the January 6th rally was undertaken in his official capacity. That's right. That's right. And let's go back for a second to the Blassing Game ruling from the DC Circuit Court of Appeals because it's of course still good law. Okay, they said the office of the presidency as an institution is agnostic about who will occupy it next and campaigning to gain

that office is not an official act of the office. So when a sitting president running for a second term attends a private fundraiser for his reelection effort, hires or fires his campaign staff, cuts a political ad supporting his candidacy, or speaks at a campaign rally funded and organized by his reelection campaign committee, he is not carrying out the official duties

of the presidency. He is acting as an office official duties of the presidency. He is acting as an office seeker, not an office holder. No less than are the persons running against him when they take precisely the same actions in their competing campaigns to attain precisely the same office. Hmm. Yeah. I think that that's...

It's a good foundation for where we're going next, I think. Right. I do too. So, you know, I think, you know, we already kind of talked about that, you know, that's kind of why he went to a different grand jury was to eliminate the taint of, you know, possible immune evidence. And the Supreme Court in its immunity ruling, also something they didn't weigh in on, was whether or not, and we're going to talk about this shortly, a president has any responsibility when it comes to administering elections. And I think that Jack Smith really shores that idea up in this new indictment.

Because the Supreme Court actually said, they acknowledged like that Jack Smith, they say, we acknowledge Jack Smith, the special counsel argues that the president has no responsibilities when it comes to overseeing elections. Those are states, right? That's the state's responsibility. And Trump argues that the take care clause means he has to take care that the laws are faithfully executed and provide oversight to the state administration of elections. And the Supreme Court says, we're going to let you decide, Judge Chuckin, we're not going to weigh in on this, which they could have. They weighed in on every other GD thing that they didn't have to weigh in on, but they

didn't weigh in on every other GD thing that they didn't have to weigh in on, but they didn't weigh in on that one. So anyway, when I said on July 1st, I believe most of Trump's acts were as a candidate for office, meaning they're personal. But if the evidence is official, it can't be used at trial. Jack Smith will likely have to overhaul his indictment. When I said that, I'm very happy to see that the special counsel obliged. Maybe they read my blog. I don't know.

You never know. You never know. You've got to keep up alive. I'm sure that well before the immunity decision, they were already thinking about how they were going to have to deal with this. But we know we're going to discuss his overhaul of this indictment, but we need to take a quick break. So everybody stick around.

We'll be right back Welcome back. All right Let's go over the changes in the indictment and talk about how each change serves the idea that Donald Trump was acting as a candidate for office Not only that but some of the new language helps clarify how Trump violated Title 18 USC section 1512C2 under the Supreme Court's new, narrower reading of that statute in light of the Fisher case. Right, yeah.

And not only is Jack Smith contending with immunity, but like you said, one of the statutes Trump is charged with violating, 1512C2. And he's kept all four counts, Jack Smith has. And that 1512 C-2, just real briefly, it was narrowed. The understanding of it was narrowed by the Supreme Court because it used to be that it was a catchall for any kind of obstructing an official proceeding that didn't include documents. But the Supreme Court ruled this year in the Fisher case, like you said, that C2 must now relate to documents. So Andy, what's some of the new language that Smith added to the indictment? Sure. So as we mentioned earlier, there are several instances where Jack Smith added words clarifying that Trump was a candidate that

and that he was campaigning. So in the first several paragraphs when referring to Trump, Jack Smith removed references to Trump being the 45th president, and instead refers to him as a candidate for office and a citizen. Then when he lists the unindicted co-conspirators, he added the words, quote, private attorney or campaign official to each description.

So again, like reiterating this idea that these people were acting in private capacity when they were interacting with the candidate for office, not the holder of office. Throughout the whole thing, wherever it would say, the defendant or Donald Trump, he would add candidate for office, Donald Trump, candidate for office, and he put that in there. A private candidate for office, Donald Trump, candidate for office, you know, and

he put that in there. A private candidate for the office of the president of the United States. And he did mention who also happened to be the incumbent president, but that still fits within the blousing game settled law. Sure, sure. So he even added a mention of the Georgia lawsuit where Trump himself declared that he was intervening as a candidate for office. The special counsel says, the following day, represented by co-conspirator two, the defendant,

not as president, but in his capacity as a candidate for office, moved to intervene and join the state attorney general's lawsuit. That's so important. And I was like, I'm so glad that he added that in there because you remember that lawsuit in Georgia, the one eventually, by the way, that Eastman would email and say, oh, those numbers in there aren't true. There's not that much fraud. That particular, thank you Eastman for your emails from Chapman University.

But I'm glad that he put that in there because in the front, he, Donald Trump specifically says, I am filing this as a candidate for president to distance himself from filing it as president of the United States. So that just bolsters the argument. Yeah. He didn't say I'm filing it under my authority and obligation under the take care clause to ensure that the rules of the state of Georgia are followed. No, he didn't say that.

No, no. And early on, like I said, Jeff Clark was removed from the list of co-conspirators and she just mentioned the list. And that's because of the Supreme Court's explicit ruling that Trump's discussions with Department of Justice officials are core immune acts. That's because of the Supreme Court's explicit ruling that Trump's discussions with Department of Justice officials are core immune acts. That's right. That's right. And in the original indictment, there were five conspiracies that Jack Smith cited as

the manner and means by which Trump violated the four statutes. And now there are only four such conspiracies. What remains are the following. One, the conspiracy to use election fraud lies to get legislators and election officials to subvert legitimate election results and change electoral votes. Two, the fraudulent electors scheme. Three, enlisting Mike Pence to throw out electoral votes. And four, sending the mob to the Capitol to stop the electoral vote count.

Jack Smith, as you just said, removed the Jeffrey Clark conspiracy where he sent letters to swing states about false voter fraud to prompt their legislators to substitute fraudulent electors. Right. So that's all gone. But Jack Smith and the DOJ and the Solicitor General say, you know, four conspiracies is enough. Yeah.

Four statutes, four conspiracies. I like the balance. It's nice. Yeah. It's, yeah, it's, it's a good round number of conspiracies to be a part of. And I've seen some folks saying that, that removing all that weakens the indictment. And I mean, I guess having five conspiracies is better than having four, but I think four is still plenty. The higher-ups of the Department of Justice agreed, and so did a grand jury.

Something that's important in this section as well, Smith makes clear that Trump enlisted Pence as president of the Senate, not as vice president of the United States. What he's getting at here is that this wasn't the president and vice president having discussions. It was a candidate for office. It was a candidate for president and his running mate in his role as president of the Senate that were having discussions. Neither of those people are afforded immunity.

That's right. Candidate for office, you don't get immunity. President of the Senate, you don't get immunity. Although, you know, Pence did try to get what's called speech or debate immunity as his role as president, in his role as president of the Senate, but most of that was rejected by the courts already, including the Supreme Court. So that can't really, that doesn't need to be relitigated because I know a lot of people were like, yeah, but isn't the president of the Senate, don't they get speech or debate clause, privilege protection? They already tried that.

They did. They tried it. And what little protection he got was derived not from his role as part of the presidency, but for his role as president of the Senate, because it's a privilege that applies to legislators when they're discussing legislative business. It's entirely separate from this immunity that the Supreme Court recently recognized that covers the president and his conversations. And he also didn't get speech or debate immunity for his discussions with candidate Trump. The only thing he got, he got two things. He got a memo from his lawyer, from Pence's lawyer telling him he doesn't have the unilateral authority to buck the electoral count act.

You can't just throw out votes. A letter from his attorney and his discussions, Pence's discussions with the Senate parliamentarian about changing the language on the floor that day. Only two bits of all of the evidence that were not allowed under the speech or debate protection. So I think that's important to note here and also Jack Smith does this throughout the whole new indictment with Pence. Every time he brings up Pence he refers to him, Pence as his role of president of the Senate. So he keeps adding that language.

Yeah. I mean, I guess we should say though, A.G., the fact that he refers to it that way doesn't mean that this is basically his position. This is his pitch. And this is a very, I guess, not so subtle way of constantly trying to get Judge Chutkin in the mentality of these people were not acting in their official roles

as part of the presidency, but rather as a candidate, as president of the Senate, whatever, whatever. It's possible she won't agree with him or she will. And then on appeal, the appellate court won't agree with him or the Supreme Court won't agree with this. But he's doing everything he can to point all the indicators in that direction and build some momentum behind these ideas. And I mean, I think he's doing it convincingly, but I'm probably a little biased. No, I think you're right. I mean, the goal here is to make this very easy to draw a clear line for Judge Chuck to be able to make a clear legal distinction between private acts as a candidate and Pence in his role as president of the Senate and not the vice president, meaning none of it's immune.

These are all private acts and she can wrap it all nice up and neat like Blasengame did. But we know that Trump's attorneys are going to come back and say the exact opposite. And they're going to say, no, he was actually acting as president on chill capacity for this reason and that reason and another reason. And ultimately it'll be up to Judkin to decide. And you know, she may not go Jack Smith's way, but I think he's doing everything he can here to salvage as much as he can out of the indictment or the new indictment. So another big change here is all of the evidence that Donald Trump knew he lost the election.

So the original indictment included a long list of agency employees and White House advisors telling him he had lost, including the Department of Justice. But none of that is admissible as evidence anymore under the new immunity rules. So Smith had to remove all that stuff. But there are plenty of other officials left that told Trump the same thing, that he'd lost the election. And here's what Jack Smith added in. He says, the defendant was on notice that his claims were untrue. He was told so by

those most invested in his reelection, including his own running mate and his campaign staff. Federal and state courts rejected every outcome determinative post-election lawsuit filed by the defendant, co-conspirators, and their allies. State officials, including election directors and secretaries of state in his own political party, issued public statements dispelling the defendants and co-conspirators myth of widespread election fraud. And on November 12th, the National Association of Secretaries of State, the National Association of State election directors, and other organizations issued a statement on behalf of several coordinated entities of State, the National Association of State Election Directors, and other organizations,

issued a statement on behalf of several coordinated entities declaring the 2020 election to be the quote, most secure in American history and that there was quote, no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised. And that's all brand new to this indictment. And I mean, a lot of it is, was kind of worded differently and taken out. But when Jack Smith removed the entire section, because a good deal of that section, like you said, Andy, was agency officials, DNI, for example, the Bill Barr, US attorneys who had investigated, like BJ Pack, like you told him no. So he just

crossed all that out and just added this paragraph to sort of sum up all of the evidence that he has that he can show that Donald Trump knew he lost. So before immunity, basically, what Jack Smith has done here, there was a Mount Everest of evidence that he knew he lost. And after immunity, it's like Mount Shasta, but there's still a ton. So let's talk about the tweets that Jack Smith initially had in the original indictment. He kept some and got rid of a lot of others. For instance, the tweets that Trump made from the Oval Office telling folks to go in peace after three hours of rioting, the video he put out that had multiple edits to it, conversations he had with advisors like Ivanka telling him to tell the rioters to go home. All of those are probably official

acts, because they're White House advisors and official tweets from the Oval Office as president. And those have been removed. And the tweets inciting more violence though, against Mike Pence as president of the Senate, those tweets remain. And here's how special counsel frames the distinction between personal tweets and presidential tweets. He says, the defendant continued to make false claims nonetheless with deliberate disregard for the truth, including through his Twitter account, throughout the conspiracies. Although the defendant sometimes used his Twitter account to communicate with the public

as president about official actions and policies, he also regularly used it for personal purposes, including to spread knowingly false claims of election fraud, exhort his supporters to travel to Washington DC on January 6th, pressure the vice president to misuse his ceremonial role in the certification proceeding, and leverage the events at the Capitol on January 6th to unlawfully retain power. And I think, Andy, that using these tweets is going to be one of those things that is going to be fervently appealed by Donald Trump and his team. And this might be one of those arguments where, you remember how you said the government has the high burden of proof to show that these weren't official acts?

I think that might apply to these tweets and their use in evidence. And a lot, I think, could boil down to whether these tweets can be used. Yeah. I mean, I definitely see this as a much grayer area. And so they will likely have a pitched battle over tweet by tweet. And it'll be interesting to see where Judge Chutkin comes out on it. It's almost impossible to imagine her drawing this line, kicking some out, leaving some in without also communicating some sort of standard that explains where she's drawing the line. So that's kind of one of the things I'll be looking for. Perhaps the tweet could be seen as electioneering,

rather than an official tweet. Yeah, there's different ways that you could kind of categories of personal, i.e. non-official tweets, and then maybe categories of official ones. It's a wide open area, so we'll have to wait and see kind of what guidance she gives us. But back to the indictment, Jack Smith also added this paragraph, quote, the defendant continues his lies through the day of the certification proceeding on January 6th.

That morning, the defendant gave a campaign speech at the privately funded, privately organized political rally held on the ellipse in Washington, DC. I'm laughing at the qualifiers here. Campaign speech, privately funded, privately organized. Super private citizen candidate Trump. Right. Political rally, not a foreign policy speech. No, none of that.

Okay. During the speech, the defendant used many of the same unsupported, objectively unreasonable and publicly disproven lies to exhort the gathered crowd to march to the Capitol. And this is, I think, how he's trying to hold up his fourth conspiracy that he sent the rioters to disrupt the official proceeding that includes documents that this was a campaign speech. It cannot be considered like Mo Brooks, like the Mo Brooks decision. And I think Mo Brooks, the DOJ even took it a step further.

They're like, sorry, that's campaigning, that's electioneering. It's not, the DOJ can't rep, it's not part of your official duties. But they said, even if, even if the court disagrees that this is campaigning or electioneering, overthrowing the government can never be part of your government job. I just thought that was a really nice addition there. But Mo Brooks doesn't enjoy the immunity that President Trump does, so it has to be spelled out like this. And you know, we've talked a million times about how Donald Trump has no official duties to oversee

state elections. And that comes in, like I said, as well here, it reminds me of when Mark Meadows wanted to move his Fulton County case to federal court. And Judge Pryor, the very conservative chief of the very conservative 11th circuit, denied his request saying no one in the executive branch could ever have a responsibility as they pertain to elections because the states administer their elections per the constitution. And Jack Smith added this three times in the new indictment that I counted. He said in one instance, the defendant had no official responsibilities related to any state's certification of the election results.

He also added, the defendant had no official responsibilities related to the convening of the legitimate electors or their signing and mailing of their certificates of vote. And the last one's my favorite. The defendant had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election. All of the conversations between the defendant and the vice president described below

focus on the defendant maintaining power. So that's kind of another way that they drag Vice President Pence from his role as the vice president, talking to the president, down to president of the Senate with his ceremonial role to count the ballots and Donald Trump's running mate. I think this is so well done. Yeah, I do too. I still think it's, I think it's hard for some people to get their heads around though, because there's this, you have to accept this idea that, I mean, use the president and the vice president as an example. You presume they're talking together all the

time, let's say every day. And a lot of that stuff is like policy decisions, strategy, foreign policy, domestic policy, economic stuff, all official. But sometimes they're going to be talking about, okay, who's doing the rally in Oklahoma? When are you going? Who's going with you? Who are you going to have speeches? It's campaign stuff. And you toggle in and out of your job role when you're doing that. It's the same as the Hatch Act, right? There are things that the campaign has to pay for, and then there's other things that the presidency, the office of the presidency can pay for. And there's lines that are drawn there.

Well, lines that most presidents respect. This one had a pretty notorious history of not respecting, I think the most egregious example being holding his nomination convention essentially at the White House in 2020. Which is something that no president has ever done. But in any case, you have to kind of keep that toggling back and forth idea in your head when you're thinking about this description of him in these acts as acting as a private citizen.

Yeah, the way I kind of keep it straight in my head, Andy, is I think, is this POTUS talking to the VP or is this candidate talking to the president of the Senate? The running mate, yeah. Or the running mate. Right, right, right. So there's a few more statements that special counsel added to clarify that there are core documents at issue which fit the new narrower criteria for obstructing an official proceeding. He says, on the floor of the House of Representatives, the vice president in his role as president

of the Senate began the certification proceeding. At approximately 1 11 p.m., the VP opened the certificates of vote and certificates of ascertainment that the legitimate electors for the state of Arizona had mailed to Washington consistent with the ECO. After a congressman and senator lodged an objection to Arizona's certificates, the House and Senate retired to their separate chambers to debate the objection and forced the Senate to recess.

At approximately 2 20 PM, the official proceeding, having been interrupted, staffers evacuating from the Senate carried with them the legitimate electors' certificates of vote and their governor's certificates of ascertainment. The House was also forced to recess. Wow. So I think what Jack Smith is doing here is really driving home the point that there were documents involved in this proceeding. We have not just the certificates of vote,

but we have the governor's certificates of ascertainment. We have him painting the picture of the president of the Senate, opening these documents to count them, and then hearing objections and going to their corners to debate. And then the mob attacked the Capitol and they had to carry those certificates out and it stopped the process and the proceeding, which means that, you know, just sort of paint the picture that these documents, these certificates of ascertainment and certificates of vote are central core documents to this proceeding. The whole proceeding revolves around these documents as a matter of fact. That's right. And this is all the aftermath of Fisher where the court, as you explained

earlier, the court said, no, it's not just a catch-all 1512C2. It has to relate to documents. It follows the requirements of 1512C1. And so in an effort to tie this to documents and show that there was an actual obstruction of documents, I think this was really interesting because when we think about that idea, when I think about it, I typically think of the false documents, the false elector certificates, right? And those are obviously part of the indictment as well. But what Jack Smith has done in these paragraphs is he said, hey, don't forget about the actual real documents. Those were obstructed as well. It's this nonsensical objections that forced the end of the process

and the two sides to go out and debate and all that stuff. That was an obstruction of the actual proceeding and it was done by kind of manipulating the actual real documents. So you have plenty of documents in this obstruction. Yeah. Yeah. Something that I didn't see in the indictment, but I'm sure will come up at trial is the fraudulent documents, like you said, because even the Supreme Court in their immunity ruling or no in their Fisher ruling, sorry, there's so many rulings here, said that in the event of creating a fraudulent document is obstructing an official proceeding. So I'm sure we'll see that evidence. It's not mentioned here. But again, that might

be to kind of keep your case in chief, a lot of it close to the vest so that Donald Trump can't prepare as heartily and as fruitfully for his defense at trial. So we'll see what ends up happening. Judge Chuckin, whatever she rules, if she says these are private acts, these aren't, these tweets are private, these aren't, whatever she rules, Donald Trump's going to appeal and it will be interlocutory. And so we'll have to go all the way back up to the Supreme Court. But I think Jack Smith here with this retooled indictment with a fresh grand jury has really kind of helped the process along quite a bit.

And I just checked the docket, still no joint status filing that's due today. I'm assuming they have till midnight to file it. I'll check again at the end of the next segment, but still no there. And as we know, we have a hearing on this, where we go from here on September 5th. So yeah, I think two things, my takeaways here, two things to remember. One, masterstroke really by re-inditing the case, because what it did was it enabled Jack Smith to really take the initiative in defining the conversation that will follow. He didn't just leave the existing indictment out there with everybody assuming big chunks of it would be thrown out and others won't, what's in, what's

out, do we have a hearing, whatever, before they even submit their plan as to how to go forward and make these determinations that the judge is gonna have to do, he recrafted the indictment to kind of, he fired the first shot, right? He's already put in front of the judge what he thinks fits. And I think that was a good move. The second thing is, let's all remember,

everything that's in this indictment is not gonna make it into the final round, right? Some of this is going to get thrown out. She's going to disagree with him on some of these things. Maybe it's a tweet here or tweet there. Let's go to Certainly Will if she doesn't. Right. She's not going to just be like, oh, you're right, Jack, and they're out of here. But that's why it's big. And that's why he went with all four original charges. He's taking his bet.

He's putting each one of those original charges in what he thinks at this point is its most solid ground. And we'll see. We'll see what comes out of the process. Yeah, yeah. And I'm interested to see what happens at the hearing because I just want to give everybody a heads up. You know, a lot of people are like, we could still have a mini trial. I really don't think, I really think Jack

Smith will want to do this on paper. A lot of it under seal. He's not going to want his witness list to get out. He's not going to want grand jury testimony to get out. He's not going to want to try this in the court of public opinion. That has never been him. And it's frankly not what the DOJ does in general. They often argue against it. And he's put in so many filings, he's written these kinds of things in order to keep witness lists under seal, keep certain things under seal, and keep grand jury testimony under seal. So I wouldn't anticipate any kind of a mini trial to go over this new indictment and what might

be immune and what might not be. There may be hearings, but I think, I don't know that we're going to get any witness testimony. I don't know why it would be necessary, but I think they might try to do this all on paper and with a minimal amount of hearings. That's just my two cents. I know a lot of people are going to be, make a lot of sauce about that and be upset about it. But I mean, if you look at the way that he's conducted this entire investigation and the other entire investigation, he tends to be more, let's keep this out of the public eye. Yeah. I think you're right. I think that's what he prefers. That's what he'll shoot for.

It's possible that she might even, she might have some sort of an oral argument on the motion, whatever we're calling it. But I don't see this going to a mini trial with testifying witnesses either. They may submit affidavits, here's what this witness would say, here's what that one would say, and a lot of that might remain under seal. I'm sure Jack would try to keep that stuff under seal. But yeah, we'll see what happens. I would.

I mean, I would if I were Jack. All right, everybody, we've got to 50 minutes and we still have the appeal. So we're going to talk about that. I know, I know we're going to talk about it right after this break. Stick around. We'll be right back.

Hey everybody, welcome back. So this week, in addition to the superseding indictment in DC, we also got Jack Smith's appeal to Judge Cannon's ridiculous ruling that dismissed the Florida case in its entirety on the grounds that Jack Smith was appointed and funded improperly. And Andy, we were kind of right on the money with our episode. We did a primer of what to expect in the appeal. We did it about a month ago, maybe six weeks ago. And I think we brought up four specific statutes that was it Marty Letterman, leader man taught me about?

Yeah, we did. We did in our appeal primer episode, which, okay, it's maybe hard to remember because we've had so many great questions based episodes since that. We've done a lot of listener questions. But in that primer episode, we covered the four statutes that Marty Lederman had pointed out, which are 28 USC section 509, 510, 515, and 533 for everybody who's keeping score at home. Each of them by themselves gives the attorney general the power to appoint a special counsel and also the power to delegate whatever part of the DOJ's authority the attorney general has at all. He can delegate whatever he wants to this person he's lawfully appointed.

But Jack Smith, as you would expect to go with the strongest possible hand, he has cited all four of these in his appeal to the 11th circuit. So the special counsel says, Congress has bestowed on the attorney general, like the heads of many executive departments, broad authority to structure the agency he leads to carry out the responsibilities imposed on him by law. Two statutes provide the attorney general the specific authority to appoint special counsels to carry out his law enforcement missions, 28 USC 515B and 5331. Two other statutes confer on the attorney general

the necessary overarching authority to staff, structure, and direct the operations of the Justice Department, which includes the power to appoint inferior officers and assign specific matters to attorneys such as the special counsel. And those statutes are 28 USC 509 and 510. Precedent and history confirm those authorities, as do the long tradition of special counsel appointments by attorneys general and Congress's endorsement of that practice through appropriations and other legislation. The district court's contrary view conflicts with an otherwise

unbroken course of decisions, including by the Supreme Court, that the attorney general has such authority and it is at odds with the widespread and long-standing appointment practices in the Department of Justice and across the government. This court should reverse. That's it. That's all you need to read. That's the whole thing in a nutshell right there. I love that though. I mean, it was so great when I was like, yep, 509, 510, 515, 533. And they're all right in his opening paragraph. He also brings up Nixon, right? He says the statutes that the Supreme Court cited in Nixon, 509, 510, 515, and 533, authorized the attorney general to appoint a special counsel there.

So that's why Nixon was brought up so much. And even though Judge Cannon only relied on what she considered the unconstitutional appointment of Jack Smith, she did opine for a second on the appropriateness of the funding of special counsel. She basically said, because he was appointed inappropriately, he's not funded appropriately, which is a weird way to latch onto that. But in response, special counsel writes this. Jack Smith says, the special counsel is properly funded. It is through the congressionally enacted, quote, permanent indefinite appropriation to pay all necessary expenses of investigations and prosecutions by independent counsel appointed pursuant to the provisions of 28 U.S. Code 591 or other law. The district court's contrary

conclusion depended solely on its erroneous determination that no other law supported special counsel's appointment. But sections 509, 510, 515, and 533 authorized the attorney general to appoint the special counsel as the Supreme Court held in Nixon. Because its premise was wrong, so was its conclusion. And that's what I was getting at, right? You're going to say, well, he wasn't funded appropriately because he wasn't appointed appropriately. But if you're way off and way wrong on him being appointed properly, then your argument

about his funding is moot. Yeah, it's circular reasoning, right? You can't, if you get the first step wrong, the second one is also going to be wrong. So also in the appeal, they say the attorney general validly appointed the special counsel who is also properly funded. In ruling otherwise, the district court deviated from binding Supreme Court precedent, misconstrued the statutes that authorizes special counsel's appointment, and took inadequate account of the longstanding history of attorney general appointments of special counsels. The long history of attorney general appointments of special

counsels confirms the lawfulness of the special counsels appointment. From before the creation of the Department of Justice until the modern day, attorneys general have repeatedly appointed special and independent counsels to handle federal investigations, including the prosecution of Jefferson Davis, alleged corruption in federal agencies, including the Department of Justice itself, Watergate, and beyond. The district court erroneously disregarded this history

as, quote, spotty or, quote, ad hoc, giving undue emphasis to superficial differences in the appointment and roles of certain special and independent councils. The district court's rationale could jeopardize the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the executive branch. Right. Like if you take away the head of an agency's ability to appoint people and structure

its agency to do the work that it has to do by law, you're basically unraveling the entirety of the executive branch. There are so many other people in the Department of Justice alone who would disappear overnight. And then talk about like the Department of Defense. How many people are appointed by the Secretary of Defense, funded by longstanding appropriations given by Congress without specifically referring to that exact position? Disappear, all gone.

So, yeah, crazy. I'm hoping this is a pretty open and shut case, but you know, Jack Smith and the DOJ argued the long history and purpose of not letting presidents be kings, and they lost that. And they have outlined the long history and precedent of Roe v. Wade, and we lost that. We lost the Chevron doctor. We lost all sorts of settled, what we were told, even in their confirmation hearings, was settled law. So who knows? I used to be able to think this is an open and shut case,

but with the Supreme Court, I can't say those words anymore. Yeah. How weird is it that as you look at the potential trajectory of this series of motions and appeals, I'm way more confident about the 11th circuit than I am the Supreme court. I'm not confident about the fifth circuit than I am the Supreme court. It's crazy. But I'm like friends with the 11th circuit right now. I'm like, we're like pals. And on the other hand, the Supreme court is the place where logic goes to die. Yeah. Yeah. As well as 11th circuit precedent. Not yet, but hopefully. And Judge Pryor sits atop the 11th Circuit, really good friends with Clarence Thomas. So we'll see what ends

up happening. Something conspicuously missing from this filing is any ask of the 11th Circuit to remove Judge Cannon from the case or have her recuse from the case. And I think that this is probably, you know, we talked about what that would look like in my mind, what that would look like would be a separate motion to the 11th circuit. And it would come after perhaps, let's say, Jack Smith wins this and the case gets reinstated. Then perhaps he could go to the 11th circuit, ask for her recusal based on this loss that she got overturned here. Her overturn in the, where the 11th circuit handed her her robes in the special master case. The

fact that two judges in her district, senior judges called her and told her she should recuse and she refused to do so. You know, her constant filings and weird secret docket, like whatever he wants to add there. But I think that that emotion to recuse would have been separate from this anyhow. I think this is keeping them separate is a good idea. Yeah, it saves them the risk of doing it prematurely. It also may not even be necessary. I think it's the kind of thing, and I could be wrong about this. I have no experience with having dealt with a judge this bad that you would presume that this might even be a possibility. But I think it's the kind of thing that the court

could do, suespante. If they decide to revive the case, they could also, as a part of that, they could conclude it's not reasonable to think that she could continue in an unbiased fashion presiding over a case that she already went on record and said should not have ever existed. So, um, so I think it might not even be like, because of all the mistakes you've made, it could just be like, you, you don't think this case should exist. So you don't have this case and its entire prosecutorial team is even constitutional and you're dead wrong about that. And we've now pointed that out, but there's no, there's

no re- we can't expect you to now continue to, you know, oversee the case and judge the prosecution in an unbiased fashion. So I think it was good, keep their powder dry, see what the court does in terms of the substantive holding and whether or not they addressed the continuation issue with her. And if they don't, then I think, you know, they could always file another motion. So we'll see how that goes. I think that's such a good point. Yeah. Cause the court can do this. The 11th circuit can remove her Sue Espante, meaning without Jack Smith asking. Right, right. On their own, meaning without Jack Smith asking. Right. Right.

On their own. Just for their own initiative. On their own. Yeah. And so that's probably, if I'm Jack Smith, I'm like, let's see if they do it for us. We don't even have to ask because it's better to have not asked and have it been done by the courts than for Trump to come back later and said, they wanted her kicked off the case and blah, you know, whatever.

How do you, how do you pose that motion? How do you file a motion opposing her removal from the case and you know, whatever. How do you, how do you pose that motion? How do you file a motion opposing her removal from the case? Like we want her because she's really good for us. I mean, like that's the point. No, you can't have her for that reason. Like, I don't know. I promised her Supreme court seat. I can't go back on my promise.

There's no other judges as bias for me. And therefore I need this one. She's my fave. Yeah. Yeah. That really, he will though. I wouldn't put it past him. Oh, for sure. Yeah.

All right. We're just in an hour, but we're going to take one more quick break because we still want to take listener questions. We love listener questions. They're so smart. They're so detailed and we want to just take one, but we're going to take this quick break. So everybody stick around. We'll be right back.

Welcome back. Okay here we are AG at that part of time in the show that we look forward to every week and that is listener questions. We're just going to take one this week because we've had so much to go over but I think it's a really good one. And this one comes to us from Tim. Tim says, first, thanks for a consistently excellent podcast. Thank you, Tim. Appreciate the good thoughts there. And of course, you know, I love to read those out in the question time. And then Tim goes on to say, second, given the new superseding indictment in the DC case, if the defense raises issues related to Trump's official conduct, could the prosecution then use that information to prove its case? In other words, is it possible

for the defense to quote, open the door in a way that would enable the prosecution to enter into evidence facts about Trump's official conduct that would otherwise not be admissible. This is a really good question. It really is. I had not thought about this at all. We've heard that so many times in a trial where you see the defense ask a witness a question and the judge says, be careful because if you ask that you open the door and that allows the prosecution to bring in the evidence that you tried to

keep out. Right? Right. So it might be something like, uh, I'm trying to think of a good example here. My lawyer friends are going to shell me. I'm sure after I don't come up with a good one. Maybe Trump wants to introduce something from Jeff Clark where he told him that there was election fraud. Can the judge then say, well, if you're going to bring in Jeff Clark's thoughts on election fraud, you're going to now allow the prosecution to talk about everything else Jeff Clark did. Think about, let's go even a little simpler. If a guy's on trial for murder and in his defense case, let's say in the prosecution's case, they want to say something that, they want to refer to something that, an email that the defendant sent his wife. And the defense of Jackson says, you know,

it's a privilege, you can't get that in, it's. Marital privilege prevents that. And then the prosecution rests, the defense gets up, they put on their case, and in their case they refer to a conversation that the defendant had with his wife. Once they do that, they've opened the door, they've waived the privilege. Now the prosecution can come back in their rebuttal case and refer to those kinds of conversations. So something that's inadmissible against the defendant can become admissible if the defendant raises it. Right? That's the basic premise. So kind of like when Trump wanted to use the defensive counsel. Yeah, yeah, exactly.

Exactly. And, and they're like, well, then you got to turn over all your emails because you're waiving attorney-client privilege. No, no, I just want to do it for a little bit. I don't want to release all my emails, you know, right? That's the idea that if something is inadmissible against the defendant and the defendant then goes in and raises it themselves, then they kind of have against the defendant and the defendant then goes in and raises it themselves, then they kind of have opened the door and now the other side gets to use

that stuff at the same time. So, what Tim is asking is, we know from this immunity ruling, we know that any conversations that the president had that were arguably part of his official duties, they come within that very broad scope. None of that evidence can be used against the president in a criminal prosecution because of this presumption of immunity that covers every official act. But if in his defense, Trump entered, you know, referred to or entered a conversation or information that would otherwise have been inadmissible for those on those same grounds, would that open the door to the, to the prosecution using that same sort

of information in their case against Trump? And there's a, there's a really good clean, plain example of this. Trump wants to bring in conversations he had with the DHS, right, to prove that there was election interference, like there was some sort of a meeting with, you remember? And he wanted to bring that in as evidence. And Jack Smith was trying to keep it out, or one way or the other. But if but if let's say Trump wanted to bring in evidence that his DHS secretary Chad wolf or something. Yeah said that there was foreign election interference and that's why he had to you know Take care of that. The laws were whatever or even does that mean that any conversation now with him can be brought in or that?

Nothing's immune. I honestly would would since this is immunity and it's first impression, it's all brand new, that that would just be argued. And that Trump would say, no, you have to keep that out because I'm immune, it's immune. And then to avoid interlocutory appeal on it, that evidence, I would imagine Jack Smith just wouldn't go down that road. Well, we don't, first of all, we don't know. Cause like we were talking about before, this

is all brand new and no one has ever had to deal with these issues before. So we don't really know, but I'm going to give you my best guess. So like, let's say Trump wants to, uh, in this prosecution, he wants to admit some evidence about a conversation he had with Jeffrey Clark. Now we already know the Supreme Court has already said his conversations with members of the Department of Justice, that comes within official duties, therefore he's presumptively immune and that stuff can't be used as evidence against him. So if Trump opens the door by introducing some piece of evidence about a conversation he had with Jeff Clark? Can Jack Smith now use all kinds of Trump DOJ generated evidence? And I think the answer broadly is no. But what they might be able to get away with is using evidence of conversations between

Trump and Jeff Clark. Like it might open the door just with respect to that very specific class of evidence. I think it could. I think you'd have a good argument there if you were the prosecution like, Hey, we didn't bring it in. He brought it in and now we're going to use it. You know, we're going to use it on as impeachment material against Jeff Clark if they call him as a witness or something like that. So bottom line, thank you, Tim. Great question. You've tied us up in a knot here, but I think you're onto something. And I don't know that it would open the door to all official conduct evidence, but it might open the door to just official conduct evidence of the very same nature that the defendant

opened the door with. That would be my guess. Yeah. And my guess is that Donald Trump will be able to use whatever he wants in his defense, but that because it's immune, the prosecution won't be able to use it. And if the prosecution did try to do that and the judge did allow it, I think that Donald Trump would object and file another interlocutory appeal. And so I don't know. Again, like you said, this first time we've done any of this with presidential immunity. So it's, it's, we're all in uncharted waters.

The interesting thing though, if that happened, this would all be happening at trial. I guess, I guess you could raise it in like pre-trial and eliminate motions or something like that. But if what we're really talking about happens at trial and at that point, you're not getting an appeal. They're not going to pause a trial to appeal it. It would become an issue, an appealable issue after the trial, but- In pre-trial motions maybe. Yeah. Who knows? A lot of branches to this problem, Tim. You've really given us a good one. It touches everything in not a fun way. It's like, it's not like everything the light touches is awesome. Everything this touches is awful because it just creates 10 new problems and

more delays because we have to tiptoe around the new king and his immunity. I hate it. His imperial immunity. I hate it. I hate it. It's the worst decision ever. But anyway, thank you. I know we went a little long. We appreciate you. We had a lot to cover this week. And Andy, one last look at the docket, still no joint filing. So we will let you know what happens on the next episode of Jack. And we'll also talk about what we can at least get from public reporting about the September 5th status conference hearing that Judge Chuckin scheduled. She actually moved it back a little bit so that so that Jackson would have more time

to to do what he did and file this retooled indictment. Thank you so much everybody for listening. If you have a question, you can send it to us. There's a link in the show notes. Your questions are amazing. I'm going to actually be thinking about this one for the next couple of hours. I guarantee it. But I appreciate you all so much.

Andy, do you have any final thoughts before we get out of here for the weekend? Yeah, just thanks to everyone for tuning in again. And we are back. Things are moving, things are happening. There's a lot to talk about. So yeah, don't miss an episode. At times the slow days are behind us. That's for sure. And not that there's anything else going on in the news or anything. So

thanks for keeping up with us. We'll see you next time. I've been Alison Gill. And I'm Andy McCabe.