Jack - Episode 96 | Leave to File

Episode Date: September 29, 2024

This week, Judge Chutkan approves Jack Smith’s request to exceed the page limit with his immunity brief over Trump’s objection; Trump’s earlier win on what doesn’t have to be filed under seal may come back to bite him.Plus, listener questions. Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ 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 96 of Jack, the podcast about all things special counsel. It's Sunday, September 29th, 2024. I'm Alison Gill. And I'm Andy McCabe. My gosh, we have a lot to discuss today, including Jack Smith's request to exceed the 45 page limit and file a 180 page immunity brief in DC, along with of course, Donald Trump's opposition to that motion. His wacko opposition to that motion, by the way.

And I should be clear, opposition to the motion requesting And I should be clear opposition to the motion requesting permission to file. Right. Opposition to the actual motion. No, right. Yeah, just I just want to file more than 45 pages. Okay. Which just shows he uses every single motion as an opportunity to just put his electioneering BS out into the public. But we also have Judge Chuckin's ruling on both of those motions, and it's great. And we have a new timetable for Trump to respond to Jack Smith's proposed redactions

in the actual immunity brief. And now we have Jack Smith's motion to file his immunity brief under seal, along with a summary of his proposed redactions. We finally get a look at what Jack Smith wants the public to see and what he doesn't want to see. And it looks like he only wants minimal redactions. It looks like he wants kind of what we talked about, but actually a little bit more.

Plus, we have a new motion from Jack Smith asking for permission to respond to Donald Trump's really weird discovery motion. And that has been granted by Judge Chuckin as well. But first it's time for another installment of Good Week, Bad Week. Andy, what do you got? This is a little off topic, but Bad Week, Eric Adams. I mean, wow, who saw that coming? I guess we all should have.

Bad Week people who get foreign money for influence who might be president one day, because that's kind of significant. Yeah, yeah. Basically don't do that and you're okay. That would be fine. But no, and it's an allegation. I get it. It's just an indictment.

So we'll see how this goes. But that thing is awful. I don't know if you've read it. It's just an indictment. So we'll see how this goes. But that thing is awful. I don't know if you've read it, but it's a man, there's a lot in there, a lot of facts, things that are just like everything from like you think, wow, that was a really bad idea to like just generally stupid things that you could have easily avoided, like taking upgrades on flights and stuff and not declaring it. And texting about it. Now the lady, my favorite is the lady who got up in the middle of an FBI interview and deleted text messages in the bathroom.

Hold on a second. I forgot something out where my phone is. Can I go? Can I? I'll come back in a minute. Yeah, I need do is the restroom? Okay. Delete all my messages. I always do. Well, apparently not because we got that one. You always do and what in the FBI headquarters bathroom? That's where you go. Okay. So just, yeah, real bad week for him. But you know, the people who were greasing him up, these guys from Turkey, these foreign officials, these American businessmen that were giving him all this money and then breaking it up into straw donations

so he could rip off New Yorkers with the campaign donation match that they do in that city. They were all saying the reason that they were giving him all this money is because they thought he might be a candidate for president one day and they wanted to buy influence. And so who started this magical trend? Anyway, yeah, I, I also am going to say a bad week for Trump because he just got to put his eyes on Jack Smith's case in chief with all of the evidence against him. I mean, he's gotten, you know, millions and millions of pages of, uh, of documents and evidence, but here it is all in one spot with how Jack Smith basically intends to prove

his case. Right. Smith basically intends to prove his case. And in response, Donald Trump goes out on truth social or whatever, which is tanking by the way, because one of his partners just sold a hundred million dollars in shares. He goes out on to social and says, which hunt? I mean, I can't remember exactly what it was, but he was very focused on those 10,000 national guard troops. He insists that he ordered. And so there's something in there in Jack Smith's brief that shows that he has proof that Donald Trump never once ordered any national guard troops. And I think that that's pretty

significant. I mean, we had testimony during the January 6 hearings from Christopher Miller, the secretary of defense at the time, who was in charge of that, testified, no, he never ordered that. We have Kash Patel admitting in a Colorado court for the section three of the 14th amendment thing, saying, I know there's nothing, there's no order for 10,000 guard troops. So there's not even 10,000 national guard troops in DC. But anyway, he went off about that and he went off about in remarks, him and some of the surrogates talked about how they think Donald Trump really actually thought the election had been stolen. And so they kind of went off on that too. So Jack Smith must have a

bunch of evidence here in this proffer that that's not true and that he knew that he lost. So it'll be very interesting to see what we get to see publicly. And he'll brood on that for a while. We could get little shots here and there, middle of the night, truth social, and another thing. On that page 172, who knows? So it's worth keeping an eye on that because he doesn't let these things go away. This might actually be a motion that he reads.

He might actually go through this one and look at, oh my God, they got that too. I mean, it could be a morose moment for him. Yeah, or at least have his lawyers explain it to him in terms he can understand. But yeah, it'll be very interesting to see what gets released to the public. And I think we, with the motions that we got this week, even though we don't have, we don't yet have the immunity motion from Jack Smith, we get a peek into what Jack Smith wants us to see and what he doesn't want us to see. And so, taking all that into account, it's been a really big week on the DC docket regarding this brief. Because first he asked for permission to exceed the page

limit, which Trump opposed, but Chetkin ultimately granted. Then Jack Smith filed his brief under seal along with a motion to file the brief under seal, along with a motion to file the brief under seal, which he also filed under seal. And now we have an order from Judge Chutkin giving a timeline on when we, the public, might get to see a redacted version of the 180 page immunity brief. So let's start with the motion filed a week ago. We're going to go back in time at the beginning of the week when Jack Smith asked Judge Chuckin for permission to exceed the 45 page limit for his immunity brief.

And that makes sense, right? You're gonna have to comply with the Supreme Court's order to go through all this evidence and determine what's immune and what's not. So you're not gonna make it in a 45 page brief. You're gonna have to submit all that pled and unpled evidence, which means it hasn't come up in court filings before. You have to put all that in there, all the stuff you intend to use in your case, and there's no way that fits in 45 pages. So here's some of what Jack Smith wrote to Judge Chukhin.

In Trump v. United States, the Supreme Court emphasized the, quote, necessarily fact bound nature of any presidential immunity analysis. Therefore, determining whose characterization may be correct and with respect to which conduct requires a close analysis of the indictments extensive and interrelated allegations. So that means you're going to have to have a lot of detail here. Yeah, that's exactly right. And so the special counsel continues. That means you're going to have to have a lot of detail here. Yeah, that's exactly right. So the special counsel continues, the government believes that a comprehensive brief by the

government will be of great assistance to the court in creating that robust record. And the government thus seeks leave to exceed the typical limit for a single motion. See local criminal rule 47E, which limits opening motions and oppositions to 45 pages and replies to 25 pages. The government has substantially drafted its opening motion and estimates that the filed version will not exceed 180 pages. The government estimates that roughly half of its motion will consist of a detailed factual proffer and that extensive footnote citations to an exhibit

appendix increase the motion size by more than 30 pages. Wow. So all of you who don't read footnotes, you're going to cruise right through this because there's a lot of them apparently. Yeah. And they're all probably going to be redacted. We'll get to that in a minute. But basically here's the breakdown of this motion.

First of all, well, of this filing. First of all, we have the motion. Then we have the appendix, right? The motion is him explaining why none of this is immune and citing evidence in the appendix to support why it's not immune. And then we have the appendix, which is all of the transcripts and stuff they got from search warrants and grand jury testimony and stuff like that, right? All the actual evidence. And so what he's saying here is about half of this is appendix and about half of it is motion, right?

Like the explanation, the narrative. And of those 90 or so pages of motion of narrative, about a third of it is just footnotes citing the appendix, you know citing the appendix, the appendix and the evidence. So that's just 30 pages. And again, it's not like 30 separate pages. It's like, you know how the bottom half of each page will just be a bunch of footnotes? Right.

Yeah. So you got 60 pages of motion, but half of it is eaten up by footnotes or 90 pages of motion, but about a third of it is eaten up by footnotes. So that's what he is explaining there. Yes. Yeah, that's right. And of course, Donald Trump opposes exceeding the page on it. And the government acknowledges that saying, the government conferred with the defense,

defense counsel opposes the government's motion at this time and requests that the court set a deadline of September 24th, 5 p.m. for the defense response. Then special counsel addresses how much of the brief the public will get to see. So they say, for the court's awareness, the opening brief and its exhibits contain a substantial amount of sensitive material as defined by the protective order. Consistent with the protective order, the government intends to file a motion for leave to file under seal that attaches an unredacted copy of the motion and appendix proposed redacted versions to be filed later on the public docket at the court's discretion.

Okay. So, he's saying, I'm going to file a motion for leave to file this, all of this under seal. I'm going to give you the unredacted motion, the unredacted appendix, and then I'm going to give you proposed redactions for the motion and proposed redactions for the appendix. Correct. Cool. And then Jack Smith acknowledges that because there's so much to consider here, we're not going to give you a timeline judge. He simply says, the government respectfully requests the court's decision on this motion as soon as practicable. There's a lot to go over.

Yeah. So, Jack Smith wants to exceed the page limit, which makes sense. Trump wants to oppose it for reasons. What are Trump's reasons? What does he put in his opposition to exceed? And remember, this is just supposed to be an opposition. It's just supposed to be why Trump doesn't want him to exceed 45 pages.

Yeah, we're fighting over the page limit. They couldn't just say, all right, fine. Take what pages you need. Well, Trump filed his opposition two days later, and I'm unable to find any discernible legal reason why Jack Smith can't exceed the page limit. I mean, his opposition is, it sounds like another motion for Judge Chutkin to dismiss the entire case.

So here's some excerpts. A 100 page, I'm sorry, 180 page filing would be the embodiment of the type of improper extended proceeding that the Supreme Court forbid as an impediment to the effective functioning of government. BTW, you're not in the government right now. So I don't think any of that counts here, but all right, I go on. The court may not adjudicate superfluous presidential immunity issues, including by allowing the office to file this monstrosity if President Trump can establish at the outset that immunity requires dismissal of the entire case.

The office, meaning Office of Special Counsel, wants desperately to bar President Trump from the opportunity to make that showing so they can improperly air their biased list of grievances. These defects in the prosecution arise from, among other things, the absolute nature of immunity, the immunity attaching to the office's allegations relating to Vice President Pence. For all of these reasons, the Court should deny the motion and reconsider the September 5, 2024 scheduling order by rejecting the special counsel's lawless request to file out 180 page public defense of their defective superseding indictment before they are in

compliance with their discovery obligations. But all right, I'm giving him a little extra credit for use of the word monstrosity, which I think is awesome. Other than that, the rest of it is complete nonsense. So after going through the whole immunity thing, going up to the Supreme Court, the Supreme Court saying, we're going to decide this, we're not going to decide this. Judge Chuckin needs to decide this. We get down to Judge Chuckin and Trump says, no, no, no, no, no, no. We have to go back to the Supreme Court. You have to dismiss this whole thing because it's all immune, even though that's not what the Supreme Court said or ordered.

All right. And I got to tell you, Andy, a day before Trump filed that, uh, I made some predictions on my sub stack about what he would say about what this filing would look like, cause that's what I do. That's how I party. You put on your inner Trump and you just start writing legal briefs. Uh, I predicted he wouldn't actually address the number of pages. And now that we've heard what you just read there, that Trump says, here's what I predicted he would say the day before he filed

that. How dare the lawless special counsel attempt to exceed the page limit to file an already lawless brief that he shouldn't even be allowed to file because the court should reconsider the September 5th scheduling order and dismiss the case outright because the Mike Pence stuff is totally immune. Nailed it. Not to mention everything in the office is false indictment. It's all official acts and we contend that the immunity is not just presumed, but absolute. Nailed it. So even though zero pages should be allowed to be filed, the court should deny the page limit exception and dismiss the whole shebang immediately.

And if you don't, you should delay the immunity brief until 2032 and force the special counsel to answer for his discovery violations. Well done. Pretty close. Well, yeah, I think you're definitely right there in the ballpark. So you've managed to start thinking like a Trump lawyer, which should concern you deeply on some level. I'm actually really sad that I didn't have

the word monstrosity in there. I know, that would have capped it off. Then I would have thought you're actually, you're conspiring with these guys. Right, yeah. Then yeah, who you talking to on the Trump team, Gil? Exactly. All right, so we'll be right back

with Judge Chuckin's ruling on these two motions. It's fantastic, but we have to take a quick break. So stick. So we'll be right back with Judge Chuckin's ruling on these two motions. It's fantastic, but we have to take a quick break. So stick around. We'll be right back. Welcome back. Okay. So we've gone over Jack Smith's September 21st motion to file a 180 page brief along with Donald Trump's incoherent September 23rd opposition.

Now we have Judge Chutkin's ruling from September 24th. Remember, all this happened in the span of four days this week. Four days this week. Are you listening, Eileen Cannon? That's how quickly these things can happen, four days. Okay. Judge Chutkin writes, the court will grant the government's request for leave to file an oversized brief on the pending immunity issues.

For the second time in a week, defendant urges reconsideration of the current pretrial schedule in a brief intended to respond to a separate issue and without actually filing a motion to that effect. Defendants' arguments against the requested page limit expansion comprises a single statement that the government's request, quote, would quadruple the standard page limits in this district. The rest of the nine page opposition rehashes the defendant's position that immunity briefing should not begin until he files a motion to dismiss several months from now.

The court has already addressed the scheduling objections defendant raised when he was given an opportunity to do so. Ouch. So one line, your whole argument, your whole legal argument against exceeding the page limit is it would quadruple the standard page limit. That's right. The rest of it is BS. She goes on to say, having the government file an opening immunity brief reflects the

romance unusual procedural posture where the court has been directed by the Supreme Court to accept party submissions on and make specific determinations about the nature of the allegations, which the government modified in the superseding indictment. The length and breadth of the government's proposed brief reflects the uniquely challenging and fact bound nature of those determinations. We have to look at a lot of information to determine immunity, which the Supreme Court has ordered me to do. The brief's atypical sequence and size, thus both serve the efficient resolution of immunity issues in this case at the earliest

possible stage. And at the earliest possible stage is a quote from the Supreme Court. That's right. That is reason enough to grant the present motion. And I love this part, Andy. She says, for completeness, however, the court will address more broadly the defendant's new and sundry arguments about the pretrial schedule, none of which articulate a cognizable prejudice. So she says, I don't really have to do this, but I'm going to go ahead and address all of your airing of grievances, Mr. Trump. And then she, that's what she goes on to address those sundry, which means like many superfluous, various Trump arguments of which there are five, right?

Yes. Yeah. And she, as you noted, begins that by saying, none of which articulate a cognizable prejudice, which is basically saying you're going to lose. I'm going to go through all this and at the end you will lose, but I'll go through it anyway. Okay. So she says, first, he protests that the government aims to proffer their untested and biased views to the court and the public as if they are conclusive, but allowing a brief from the government is not contrary to law procedure and custom as the defendant claims.

It is simply how litigation works. Each side presents arguments and proffers evidence on disputed issues. Here, whether defendants charge conduct involved official acts and receives immunity. An explainer. An explainer of how cases go. Here's how pretrial stuff goes, sir. We get briefs, one, two, three, maybe a hearing. I consider we make a decision. We go forward. We move on.

Yeah. Like, wow. Second, defendant, this is from her ruling. Second, defendant asserts that there are dispositive threshold legal questions that can and should be resolved first, including the absolute nature of immunity, the immunity attaching to the special counsel's office allegations relating to Vice President Pence, and the lawfulness of the special counsel's office structure, like whether he's appointed properly. These

threshold questions necessarily require the very briefing that the court has ordered. In ascertaining whether any charged conduct qualifies for immunity, absolute or otherwise, the court must first determine that it qualifies as official. Of course. Of course. Okay. Third, defendant argues that immunity briefing quote is particularly improper, close quote, before the resolution of pending discovery disputes. Recognizing the defendant's interest in obtaining lawful discovery that could bear on his own arguments and factual proffers related to immunity, the court has frontloaded discovery briefing in its schedule. We've addressed that by setting up a schedule for the discovery issues.

Yeah, she front loads. That discovery brief was due September 10th. Jack Smith's response, a sir reply is coming soon. We'll get to that in a minute. But she set it up so that she didn't do immunity and then discovery. She set it up so we're doing both at the same time. Fourth, defendant contends that the briefing schedule would be unfair given the court's order restricting certain extrajudicial statements. That's the not a gag order. Right. Right. You can't come out with this whole

brief and if I can't say anything about it and if I can't intimidate witnesses, it's not fair. That's the best part of litigation. The bullying part. Yeah. So that's, you know, Donald Trump is arguing it's not fair because of the gag order and the government's position with respect to the protective order in this case. But the former contention, the one about the gag order, mischaracterizes the court's order because what she's saying is we aren't stopping you from saying most stuff. It's

very limited gag order. And even so identifies potential political consequences rather than legal prejudice. And the court did not accept the government's position. Now, on the other thing, right, because she says, Trump argues that the government's position with respect to the protective order is wrong in this case, right? Meaning, well, I'll break this down. Let me just tell you what she said first. The court did not accept the government's position that the defendant had a problem with, quote, that even materials marked non-sensitive under the protective order should be kept under seal. Instead, extending that protection only to sensitive materials.

The court likewise rejects the defendant's unsupported assertion that publicly docketing non-sensitive materials during the immunity briefing would impermissibly impact potential witnesses and taint the jury pool. Moreover, and once again, the defendant offers no reason why the same predicted harms would not result from his own proposal, which would include immunity briefing with presumably the same materials. So there's a lot to unpack there. So let me translate. Trump says it would be unfair to air the stuff right before the election because he has a

gag order and because the government wants to release everything and Trump isn't allowed to say anything. Okay. And she says none of that's true. The gag order doesn't say that. And the government's position was actually he wants to seal everything a year ago when they were going over the protective order, which is, you know, when you go to discovery, you get a protective order so you can decide what can be released

to the public as far as the evidence goes. And back then, Jack Smith wanted to seal all the sensitive material and non-sensitive evidence. And Trump opposed it. Trump said, no, transparency. We need it out there in the public. He wanted to get the witness list down in Florida, right? So he could go out and intimidate witnesses. No, release it all, release it all now. But she ruled back then that only sensitive material should be redacted. She ruled against Jack Smith and for Donald Trump, mostly. I mean, it was in part transparency, really.

I mean, she's trying to keep it as open as she can, acknowledging that you can't be completely open. Right. So Trump has changed his position on this since August of last year when Jack Smith proposed a protective order over all the evidence. Again, Jack Smith wanted it all sealed. Trump wanted it all public, arguing that the sealing would violate his first amendment rights. Basically because he wanted to use the evidence again to try the case in the court of public opinion, intimidate witnesses, taint the jury pool. But now he wants it all under seal because there's an election coming.

To which Judge Chuckin replies, defendant's concern with the political consequences of these proceedings does not bear on the pre-trial schedule. What needs to happen before or shouldn't happen before the election is not relevant. Dismissed. Yeah. You wanted this last year, bro. You wanted only sensitive materials redacted last year, sensitive materials being grand jury stuff, witness names, et cetera. And Jack Smith wanted sensitive and non-sensitive stuff sealed. And I ruled in your favor, only sensitive stuff, Donald Trump. I ruled in your favor a year ago.

And here we are a year later. Same rules apply. And you're trying to say, no, none of it, none of it should get to go out. And his argument is, but there's the immunity now and gag order. Like it's, it's nonsensical. Yeah. Okay. So fifth and finally, defendant claims that the government's forthcoming brief violates department of justice policy.

He asserts that the brief quote would be tantamount to a premature and improper special counsel report. Interesting. That has a real familiar ring to it. Doesn't it? That has a real familiar ring to it. Doesn't it? It does because it kind of reminds me of when Trump pressured Barr to release an interim Durham report before the 2020 election.

Remember that one? What? Yeah, yeah. And then somebody quit over it. It was a whole thing. Mm-hmm. Anyway, she goes on to say, and he argues that the brief would run afoul of the justice manual, which prohibits federal prosecutors from quote, selecting the timing of any action,

including investigative steps, criminal charges or statements for the purpose of affecting an election. The court need not address the substance of those claims. Defendant does not explain how those putative violations cause him legal prejudice in this case, nor how this court is bound by or has jurisdiction to enforce Department of Justice policy. For these reasons, the government's motion for leave to file oversized motion is hereby granted and the defendant's requests for reconsideration of the pre-trial briefing schedule are denied. Yeah. Yeah.

The court is not bound by DOJ policy. Have a nice day. Which, I mean, we've been saying this all along, right? He's like, this is this 60 day rule violation. No, the court ordered us to do this. This is the court, not the DOJ. Not like Durham coming out with an interim report that no court asked for.

Right. And also, to be fair, you know who else can not abide by DOJ policy? DOJ, when it decides not to, because it's all under the authority of the attorney general. And if the attorney general decides in any given case that he's going to waive the policy for these specific facts, he's got the power to do that. You might not agree with him doing it. You might say it's not fair, whatever, but he can do it. It's not a law. Yeah, I know. I just love that she's like, bro, I don't work for the DOJ. Neither does the Supreme Court. We're a whole separate branch of government. You should check it

out. Yeah. Just think about that sometime. Yeah. There's three actually. Nevermind. You know what? Nevermind. Just denied. Go think about it. Ask your lawyers. Maybe they'll explain it to you. All right, we have more to get to, including the actual filing of the 180 page brief, which we don't have yet, but we do have a couple of things surrounding it. And we'll get to that in just a second. Stick around. We'll be right back. Hey everybody. Welcome back. All right. All of that brought us to Thursday, just this past Thursday when Jack Smith filed his 180-page immunity brief, which as

we predicted was filed under seal. What I did not see was a motion from Jack Smith asking for permission to file the brief under seal. There was actually zero public docket activity on Thursday. But around the time the brief was due, 5 p.m., CBS reported that Jack Smith had filed his 180- page brief under seal. But I wondered why we didn't see a motion for permission to do so. I actually texted you and our friend Brian Greer wondering if he filed his motion to file under seal, under seal. As it turns out, he did. He filed his motion to seal under seal. That's two seals under.

Yes, that is inception. Double seal. And it was publicly docketed on Friday. Andy, this motion to file under seal gives us the clearest picture yet of what Jack Smith thinks the public should get to see in his 180 page brief. And I have to say it's a little more than I thought he would want us to see. Yeah, yeah, I think that's right. He's bound to follow the protective order. And as Judge Chutkin said in her ruling on exceeding the page limit, last year when litigating the protective order, which governs what can be sealed or redacted, she kind of ruled against

Jack Smith, who wanted all the evidence, sensitive and nonsensitive, to be sealed. And she ruled in favor of Trump, who at that time only wanted sensitive information like witness names and grand jury material under seal. Jack Smith knows he has to follow that ruling here. So the government's motion to file under seal says, consistent with the court's September 5th scheduling order, the government is filing today a motion for immunity determinations, here and after referred to as motion. Through the motion, the government asks the court to determine that the defendant's conduct

in the course of the charged crimes is not subject to immunity. The motion is supported by a variety of proof, some of which the government has designated sensitive under the protective order, such as grand jury testimony, materials obtained through sealed search warrants, transcripts and reports of witness interviews, and materials obtained from other governmental entities. The protective order requires the government to submit these materials under seal. The protective order also requires the government to simultaneously submit under seal a redacted copy of the motion proposed to be filed on the

public docket. Accordingly, the government seeks leave to file the following documents under seal. For remaining under seal, an unredacted copy of the motion and an unredacted copy of the appendix. For filing on the public docket after the defense has had an opportunity to respond and the court has ruled, a proposed redacted copy of the motion and a proposed redacted copy of the appendix. All right. So as we said, we have to separate this 180 pages into two chunks, the motion and the appendix, right? So once we understand that, it becomes a lot easier to understand what Jack Smith is talking about here and his explanation as to why none of this is immune, right? That's the motion.

Right. That's his narrative, which I went over in detail. You and I have talked about this in detail. He's going to talk about how it's not the president and the vice president, it's a candidate for office and the president of the Senate. Or all of his lawyers are working for either the private campaign or him in a private capacity. They're not government lawyers. It's why he pulled Clark out as an unindicted co-conspirator and the discussions with him and the DOJ about the letters he sent down to Georgia. All that

came out. He's going to argue that the speech at the ellipse on January 6th was a campaign speech. He said it several times in his superseding indictment during his campaign speech on January 6th. And then he's going to talk about how he filed that intervention in the Texas lawsuit as a candidate for office. And that's a private person. That's not a fish. So he's going to, that's the motion. That's the first 90 pages, 30 of which are footnotes, but that's the first half, the narrative. Here's why none of this is. And so what Jack Smith is proposing is that both parts can be filed publicly, but with

redactions of sensitive material. Yes. And then he then cites three guideposts that have informed him about what to propose to remain under seal. Those guideposts are the protective order from last year that we talked about, a previous order from Judge Chutkin granting a government motion to file something under seal, and Judge Chutkin's entry of a rule 57.7 order. So Jack Smith says in his motion to file under seal, with these guideposts in mind and with the simultaneous goals of providing the court

with a detailed factual proffer, protecting sensitive materials and the witnesses whose accounts support that proffer, and allowing an appropriate degree of public access, the government has proposed redacted versions of its sealed motion and sealed appendix for filing on the public docket. In the proposed redacted motion, the government has redacted the names of individuals aside from those whose names appear publicly in the superseding indictment, such as the defendant and vice president, Michael R. Pence. Right, right. I think we said that last week, right? That he would want to redact all the

witness names except for those that are obvious, right. And I believe we use Mike Pence as an example of that. Yes. Yeah. Yeah. I mean, he's, he's identifiable by the context of what you're talking about. Even if his name isn't in there, there's only one vice president who was serving as president of the Senate on January 6th. Yeah. And he's mentioned in the indictment, which is public, a public document. Now he goes on to say that the first 60 pages or so, the motion, he wants to redact witness names and reference their names and reference to their names in the footnotes. He says in the motions text, the motion being the first half, the government has not redacted quotations or summaries of information from sensitive materials. But in the footnotes, we have redacted citations that reveal the

nonpublic sources of that information, including grand jury transcripts, interview reports, or material obtained through search warrants and material from other governmental agencies. As far as the 90 page appendix goes, he says in the proposed redacted appendix, the government has redacted non-public sensitive materials in their entirety. And the government also has proposed limited redactions to some publicly available materials such as the defendant's tweets. And we want to redact them in a way when that material identifies or targets an individual

who because of their status as a potential witness or involvement in underlying events, may be susceptible to threats or harassment or may otherwise suffer a chilling effect on their trial testimony. So as far as the appendix goes, we'll get to see the evidence that's already publicly available but not much else. And in the motion, the first 60 pages, we will get to see summaries and quotes of the sensitive material in the appendix, but only to the extent that it doesn't reveal the source of that information. And that's amazing because I figured for sure, well, maybe not for sure, but I figured we wouldn't get summaries

of the sensitive stuff. Yeah. I mean, I think he's going out of his way to be consistent with the original protective order from last year, which you got to wonder like, is he glad that he kind of lost that argument last year? And because now it's working to his advantage or does this process kind of unnerve him a little bit, but he's doing it anyway, because that's what she said. That's the existing rule we have to follow here. Let's call him up and ask him, Jack Smith, but he's doing it anyway because that's what she said. That's the existing, you know, rule we have to follow here. Let's call him up and ask him, Jack Smith, how do you feel? How are you feeling about this, Jack? Okay.

Then Jack Smith goes through the Hubbard factors, which are what Judge Chutkin will consider when deciding what to keep under seal. They say a court must consider six factors in assessing whether the competing interests to seal overcome the presumption of public access. They say, a court must consider six factors in assessing whether the competing interests to seal overcome the presumption of public access. One, the need for public access to the documents at issue. Two, the extent of previous public access to those documents. Three, the fact that someone has objected to disclosure and the identity of that person. Four, the strength of any property and privacy interests asserted.

Five, the possibility of prejudice to those opposing disclosure. And six, the purposes for which the documents were introduced during the judicial proceedings. Now under the first factor, as the court concluded in its prior opinion, the need for public access to the names of particular individuals is, quote, relatively small. The court also previously acknowledged the intense public interest in and attention to this case, but found that generalized interest not to be substantially served by disclosing the names of specific individuals. Rather, the public's interest is fully vindicated by accessing the substantive material in the government's filing. For example, the

unredacted substance of what a witness said is more important and for purposes of public access than the redacted identity of the specific person who said it. Yeah. So he's not going to let us see grand jury testimony and transcripts, but he is going to tell us what witnesses have said. It's just not going to let us know who that witness is. But we can then just sit around and guess about it, which is half the fun. Yeah.

And you know, we will. This sounds like, oh, this definitely sounds like, you know, Mark Jacob or whatever. You can't seal us for gosh sakes. So we are going to get substantial testimony summaries. That's so cool. Now next is Hubbard factor two, the second Hubbard factor, the extent of previous public access ways in favor of sealing. The public has not been provided with access to the names of the individuals who testified before the grand jury, who were named in sealed search warrants, who were identified in witness interviews and transcripts or reports. The narrowly tailored proposed redactions to the

material serve the compelling interests of witness safety and integrity of the judicial proceedings, while not unduly keeping otherwise public information out of the record in this case. unduly keeping otherwise public information out of the record in this case. Now the third Hubbard factor, whether anyone is objected to disclosure, also weighs in favor of sealing the names of the individuals. The government is a party to this case and we've objected to the disclosure. And Andy, they seem really focused on kind of just redacting the names of these individuals and then obviously the sensitive materials in the appendix. Correct. Correct. Okay. So as to the fourth Hubbard factor, the privacy interests at stake

are substantial and the court's prior conclusion regarding this factor remains true. The individuals whose identifying information and transcripts are redacted have already been harassed and threatened and they have a strong interest in not repeating those Experiences the court has previously noted its concern that quote members of the public might use sensitive witness information In ways that intimidate witnesses or threaten the integrity of the proceedings The fifth Hubbard factor also weighs in favor of redacting and sealing the names of individuals. As this court previously concluded in evaluating this factor, quote, the government has identified a significant risk to its interests.

Witness intimidation could not only affect the willingness of any of the targeted individuals to participate in the law enforcement process, but could also chill the testimony of other potential witnesses in this case. Right. So if you name one guy, another guy might go, oh, I'm not going to talk now. That's right. Now, as for the sixth factor, the purpose of the filing, they say as in the court's prior evaluation of the sixth Hubbard factor, the identifying information regarding specific

individuals named in the government's recitation of the facts may have minimal effect on the court's decision regarding immunity and should remain under seal. However, unlike the analysis that the court was called upon to perform in the litigation regarding local criminal rule 57-7, where the specific language of threats was not critical, here the content of statements made by others, both the defendant and other parties, is central to the court's fact-bound analysis of the immunity issues on remand. Accordingly, consistent with DC Circuit precedent and the court's prior orders from the Supreme Court, the government proposes the redaction and sealing of only the names of the

specific individuals identified in the government's brief. Now what he's saying here is that back in the day when litigating whether to release the names of witnesses that were already being intimidated, Jack Smith wanted the threats to witnesses, the threats, the evidence to remain under seal because we would have been able to guess who those witnesses were. But here to decide immunity, statements made by Trump and witnesses are actually central. Yeah.

Yeah. Well, we may find out. Okay. So then he concludes, after permitting the defense to be heard on the proposed redactions for the versions of the motion and appendix to be filed on the public docket, the court should grant the government's motion. So, oh my, how the tables have turned. Last year, when arguing what evidence should be sealed, Jack Smith wanted it all under seal. Trump said, no, only sensitive stuff, please. And the judge, Judge Chuck, can actually agree with Donald Trump. And now, a year later,

Trump wants it all under seal because it's totally unfair because of the election and the gag order. But we're bound by Judge Chuck and Zorder from a year ago, the one Trump actually fought for. So I guess always be careful what you wish for. Yeah. And it's not just simply a matter of like, this is what I decided last year. So it has to hold for this year.

It's really you go through this analysis, you see how the factors considered in the same light, they point in the same direction. Like, substantively, this has not changed, even if the parties have kind of reversed their positions around it. All right, and this just in. Judge Chutkin has issued a minute order regarding what should be released to the public.

And it says, the clerk of the court is directed to file on the public docket the government's motion for leave to file unredacted motion under seal and to file redacted motion on the public docket. It's hereby ordered that the defendant shall file under seal any objections to the proposed redactions in the government's motion for immunity determinations by 12 o'clock PM on October 1st 2024 and shall file under seal any objections to the proposed redactions in the appendix to that motion by 5 p.m. on October 10th 2024. All right that's really interesting to me because she, because this brief comes in two chunks, the motion and the appendix. She wants Donald Trump's objections to the proposed

redactions in two chunks. Right. So October 1st, she wants the Donald Trump's objections to Jack Smith's proposed redactions in the motion, the front part. And she wants them by noon on October 1st. Why not 5 p.m.? Is she intending on... Because she's gonna fire an order out that day. She knows what direction she's gonna go. She's gonna get that and then she's gonna say, nope, nope, yep, nope, nope, nope, yep. And clerk, unseal the motion. So we might get this in two phases. Yeah. One of them around October 1st, one of them around October 10th, because he has till October 10th to go through all of the redactions in the evidence and decide whether, you know,

argue it. Conveniently staggered to cover two shows. Thank you, Judge Chutka. Really appreciate that. Yes, thank you for not releasing the whole thing in one week. That whole monstrosity in one week. Oh man, I mean, I'm kind of glad

we didn't get it all on Friday, because I'd have been like, with all the, we're already 40, 50 minutes into this show. Yeah. And we're just covering the stuff leading up to this 180 page immunity brief. So we're going, we could get it in two chunks. I can't think of any other reason why she would split it up like that or why she would want it due at noon. Yeah.

No, I agree. I agree. That's coming out quick. We'll see. All right. Remember earlier when we talked about the fact that she's front loaded this whole thing with discovery motions as well so that the immunity and the discovery could run concurrently? Well, we have another filing that happened this week in the discovery motion. So we're going to switch lanes.

We're still in DC, but we're going to talk about the discovery motion right after this. Stick around. We'll be right back. Hey everybody. Welcome back. Before we get to your amazing listener questions, we have one more filing on the DC docket. Andy, you'll recall that Judge Chuck can ruled that we can litigate Trump's discovery issues and the immunity concurrently. And last week we went over Trump's bizarre filing supporting his even more bizarre discovery demands and his motion to expand the prosecution team.

He filed an omnibus reply to what he had already filed last year. So it's actually so bizarre that Jack Smith wants to respond to it. On September 24th, two days before he filed his 180 page immunity brief under seal, Jack Smith wrote to Judge Chuckin, principally, the defendant suggests that the Supreme Court's decision in Trump v United States permits discovery demands for additional broad categories of material and provides new justification for some of his original meritless demands. He also advances revised arguments for his original request to compel discovery and regarding the scope of the prosecution team. The defendant further attempts to use this reply as a vehicle to seek

other inappropriate relief such as dismissal on grounds not previously argued and reconsideration of the court's prior order, denying dismissal on an unsupported claim of selective and vindictive prosecution." I think we brought that up, didn't we? We put everything but the kitchen sink in that, right? This is where he wants the solar winds hack stuff, the foreign interference, the ICA, which is the intelligence community's assessment on election interference from Russia in 2016. I want stuff from the Department of Energy. I want letters from everyone ever in the government and in the history of the world.

I want to reply to this. So the next day, the 25th, Judge Chuckin granted Jack Smith's request and he now has till October 1, which is what he asked for to respond to Trump's weird discovery motion. So we will be getting that this week along with potentially the unredacted motion for immunity. Yeah, that one's going to be a good one. There will be plenty of comic relief, I think, in the response to the discovery thing, whatever that was. Yeah. And we'll get some insight as to whether or not they listen to this show and heard all of our jokes and and responses to what to what Donald Trump wrote. All right. It is time for listener questions. If you have a question,

we have a link in the show notes that you can click on and you can submit us a question and we love your questions. So please do that again. That link is in the show notes. Andy, what do we have this week for listener questions? All right, We got two. One of them is super fast and I'll handle it. This one comes to us from RU Flossing. And the question is, is Andrew McCabe former FBI and CNN contributor? The answer is, are you kidding? Yes, of course I am.

Thank you RU Flossing. Glad you wanted to clarify that. All right. So the next one, again, emblematic of a few questions. Oh, yes, I am flossing if that was also a question. Maybe it was a two-parter. Good to know. Yeah, there you go.

It's almost like three questions for today. I'm with you on the flossing part as well. So okay, this one comes to us from Miss Nelson and she, I picked this one because a bunch of people were asking questions basically about the Trump lawyers and their approach to these motions. So Miss Nelson says, I like listening to the sound of your voices. Sometimes I desire the next podcast so I can hear you too. Oh, thank you.

Very nice. Thank you, Miss Nelson. Okay. She goes on to say Trump's lawyers seem to repeatedly file motions that were previously answered that deliberately misstate the law and are time wasters. Will there be any consequences for them such as warnings or sanctions or disbarment? In future cases for other clients, will they receive harsher or more critical treatment from judges than they otherwise would have gotten?

Also, do you think they're in it for the money or are they true believers? So I'll take each of those in turn. Consequences for them such as warning, sanctions or disbarment? No, there really won't be. I don't think in this case, while I agree with you that their lawyering raises all sorts of questions, I don't really think we get quite to the point of sanctions. No. Yeah.

It's not frivolous. It seems silly, some of the things that they argue, but there's no requirement that you have to make a perfect or even good argument. You just can't be obviously wasting the court's time. And I know people are probably howling right now, but they are definitely using their arguments and creating arguments and making filings in an effort to drag things out and run the clock.

That's not an impermissible tactic for defense attorneys or really any attorneys. So it's not the sort of thing that would get you sanctions or disbarment is almost impossible. That's like a conduct hearing in front of the state bar. We've seen that, right? In some of the January 6 lawyers like Eastman and Rudy. No, yeah, Rudy was just disbarred again.

You really have to like put like knowingly false information in your pleadings. And we haven't really had any of that. It's been a lot of bluster. It's been a lot of ridiculousness. It's been a lot of political grandstanding, but nothing that I think would reach rule 11 status for sanctions. But they have been warned. They've had some warnings here and there and some judge chucked in minute orders like, hey, next time you're going to file something late, file your permission or your request for permission to file it late before the deadline. Before it's late.

Yeah. Right. Or, you know, she's reprimanded them a little bit here and there in hearings and, you know, hey, watch yourself. You're yelling or whatever. But I don't think anything that reaches a sanctionable level. I think that's right. And you know, to the extent that they're, they're burning the clock, that's not one

of those things that gets you smacked down. Disbarment is like a far cry. Like you said, you've really got to be based on like knowing falsehoods perpetrating essentially a fraud upon the court. Whether they'll be treated harsher in future cases, I doubt it. I doubt it. Doesn't really, every case is a new chapter and kind of everybody starts from the same spot.

And finally, whether they're in it for the money or they true believers. It's a good, really interesting question. I'm not 100% sure I can define true believer, but there was an article in the New York Times some months ago about, not Sauer, but Todd Blanch, who used to be a Southern district, a prosecutor in the Southern district of New York. And the tone of the article is basically saying that his former colleagues from the Southern district

really noticed a change in him just prior to and then after he started representing Donald Trump and kind of adopting some more strident sort of conservative views. He's also moved his family down to Florida. So I don't know. I mean, are those indications that Mr. Blanche is kind of beyond just his work for the former president? he's a supporter of his, could be, could be. But a lot of it too, I think you can't understate the significance that some attorneys see in representing the president or a former president of the United States. It's one of those things that's seen as kind of characterizing your career. Now you could make a good argument that it's not a

great characterization. So it really depends on what direction you're looking at it from. But there are a lot of folks that would kind of go out of their way to represent such a high profile figure because of the sort of gloss that they think it imparts to their career overall. that they think it imparts to their career overall. And I think as a defense attorney, you really do need to do the best job you can for your client. That's right. I think it's required ethically. Absolutely.

And so whether they're true believers or not, they're going to do their level best to make whatever argument they think is going to be the best legal argument. Now, does it always end up being the best legal argument because they get into it with Trump about what Trump wants to say and what they think they should argue? Obviously. I mean, that seems pretty clear to me that that's going on. Yeah. That's a hugely significant point.

They are making arguments for the court, but they are also pleasing a client who is a notoriously hard person to please. Case in point, he brings them all up on stage to talk about them and then proceeds to rip them in front of the world and say how he doesn't think they've done a very good job. So, yeah, do I think that some language got inserted into some of these briefs because it like punched it up a little bit in a way that they thought he might like? Yeah, no question. Those kinds of things happen.

Or because he insisted, right? I mean- Or because he insisted. Of course, that would assume that he read it first and made edits and I'm not 100% sure that happens, but- No, but I'm sure he could. I'm sure he's put down the hammer saying every single brief has to include that I'm absolutely immune and that this should be dismissed. Yeah.

I'm sure he's made it clear to them that he, I, did you tell them it's an election interference? Did you tell him, this is Joe Biden trying to prevent me from beating him? We're arguing about page limits. I don't care. Doesn't matter. Put it in there. You know, I mean, I can see it. You gotta put it in there. This is like, um, this is like when Rod Rosenstein told Trump, let me write the memo for you firing Jim Comey. And Trump said, well, make sure you put in there the Russia investigation. And Rosenstein said, I don't, I don't need the Russia investigation in my memo and I don't think you should put

it in there. And Trump looked at him and said, okay, but put it in anyway. This is the guy that's your client. It can be hard to navigate. Yeah. Well, everybody, thank you so much for your questions. These were wonderful. I appreciate it.

And yes, Andy McCabe is former FBI and a CNN contributor. Thank you for clarifying. Yes, we both floss because gum health is important. It's priority in this house. Absolutely. We don't have a yuck mouth. And again, thank you so much for listening. I mean, this was a tough show to put together because it was just filing after filing after filing and we didn't even yet get any part of that 180 pages. But we might get the first half. We might get frontloaded on October 1st, along with Jack Smith's response to Trump's really

weird motion to compel discovery and expand the size of the process or define the prosecution team size or whatever. Because remember, he doesn't think it's just the investigators. He doesn't think it's just Jack Smith's office in the FBI. He thinks it includes every executive department, every intelligence agency, department of defense, department of Homeland Security. He wants to expand this and get everything that he possibly can.

I mean, obviously that's just a delay tactic And maybe also to get his hands on stuff that he didn't have time to steal when he left on January 20th So I'm missing the fourth letter to Kim Jong-un. Can you get me that in discovery? He got his map of the hurricane that he drew the sharpie on but yeah He left behind a couple of things that he might want it might have wanted to take or that maybe Mark Meadows wouldn't let him. So anyway, thank you again so much. And we'll be back next week with a lot of new information. Andy, do you have any final thoughts? Just looking forward to next week as those things come in. I mean, let's put it in context,

180 page filing. That's like half a Mueller report. About a third. Right. Was the Mueller report like 400 pages? 500, almost 600. All right. So close still anyway. I get it. A lot of its appendix we won't really see. It is. It's chunky. And a lot of its footnote too. So.

Yeah, it's chunky. We're going to get, we'll have a lot to talk about. Looking forward to that. All right, everybody. We'll see you next week. I've been Alison Gill. And I'm Andy McCabe.