Jack - Episode 98 | The First Amendment Argument

Episode Date: October 13, 2024

This week, Judge Chutkan rules on Trump’s objection to the whether the immunity brief’s appendix can be public; Judge Chutkan also rules on Trump’s request for more time to respond; and Trump filed a supplemental motion to dismiss.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 knowRule 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 98 of Jack, the podcast about all things special counsel. It's Sunday, October 13th, 2024. I'm Alison Gill. And I'm Andy McCabe. OK, now that we have the full 165 page immunity motion with limited redactions, the focus now shifts

to the immunity appendix. Now, Trump has objected to any of it being released, and we're going to go over Judge Chutkin's ruling on that matter. Plus, we have a Trump supplemental motion to dismiss the D.C. case in its entirety.

So he listened to the judge when she was like, look, if you want to dismiss this thing, please file a separate motion like a normal person. File a separate motion so I can deny that specifically, but maybe I'm getting out ahead of myself. No, probably not. We also have a ruling from Judge Chuckin on Donald's motion for more time to respond to Jack Smith's immunity brief. You'll remember at the end of last week, he asked for five more weeks. And he said, that's basically the same as the three weeks that you gave to Jack Smith. And if you don't have time to read the entire 165 page immunity brief and cross-reference the redacted names,

I took the time to record an audio version for you. It's in five parts. It's about five hours total, and it's in the Jack podcast feed. It's free to the public, so you can send it to whoever you think should hear it. We would appreciate that. And I also read the redacted names. I annotated it so you don't have to cross reference them. So that's all there for you. It is again, hey, take five one hour walks. It's lovely outside this time of year. There you go. That's an amazing thing that you did, I think, and really appreciate that. I'm sure many people, I know many people do. We'll talk about that a little bit later, but yeah, it's an incredible, that's not easy to read five hours of a legal brief, but of course you did an amazing job.

So thank you for that. Thank you. And there are points where you can hear me holding back laughter. So it's also entertaining. All right. Before we get to this week's filings, it's time for another installment, Andy, of Good Week, Bad Week. What do you got this week? I mean, this is's filings. It's time for another installment, Andy, of Good Week, Bad Week. What do you got this week? I mean, this is a weird week. I'm going to start off with one maybe you

didn't expect, and that is bad week for Vladimir Putin. Because like, he's definitely watching the news over here and seeing the release of all these little comments from Bob Woodward's new book War, which revealed to us this week that Putin and Trump has spoken on the phone at least seven times since Trump left the White House, and often under circumstances in which he kicks everybody out of the room first. So who knows what goes on there? Some of those phone calls must have taken place during the time in which Donald Trump was still in possession of highly classified, very sensitive, compartmentalized, in fact, documents. So that should be concerning to everyone.

But no one less than Putin, because we also learned he received a couple of COVID tests on the sly from his buddy Donald Trump. And he must be sitting back in Moscow thinking like, dude, what are you doing telling people? You're not supposed to tell people this that we talk. Unless Putin is the one who told. I mean, you know, just to let everybody know he owns Donald Trump. But yeah, America also loses. The fact that he gave our very important, this is testing equipment, the Abbott testing machines for hospitals that our hospitals desperately needed. But you remember, Andy, because I remember, and I know you do too, and I know a lot of the

listeners do, that Donald Trump didn't want us to be tested because he didn't want everybody to know how bad the pandemic was. He was trying to hide those numbers. Remember when he wouldn't let a ship dock because he didn't want to add that number of sick people to the total. So I think he must have gotten something in return because everything's transactional with him. But he definitely benefited by us not knowing how sick people were by giving away those rapid test machines to Russia. Yeah. I mean, the whole thing, I'm obviously making light of it because that's what we do here a little bit, but it's unbelievably concerning. And I still get asked to this day. I got asked, I did an interview on a podcast a couple of weeks ago, and I was asked, I said years ago

that it was possible that Donald Trump was an agent of Russia back when we were very concerned about his relationship and interactions with the Russians and so concerned that it led to the appointment of the first special counsel, Robert Mueller. I answered the question the same way, like, do I know he's an agent? Of course I don't. And I'm not involved in any investigative work, but I still have many, many questions about his wildly inappropriate norms breaking relationship with the leader of our biggest adversary on the world stage, our biggest enemy, you could say, on the world stage.

And this just adds to that raging dumpster fire of evidence. It's not good. It's not good for Team America. And yeah, so bad week for us, bad week for Putin. That's, you know, for Trump, does it actually do anything to him? I don't think so. I don't know that there's anything he could do that's going to really shock people in a way that, yeah, trade and changes their opinions about things, which is also really concerning for the rest of us, but whatever. Yeah. And I'll add, it was a bad week for Trump because he doesn't want any of this evidence released, even though he argued for releasing all of it a year ago when they were

discussing the protective order and litigating the protective order over the evidence in this very case. Now he doesn't want any of it released and a lot of it is getting out there. And I think based on what Judge Chutkin has ruled here and provided that the higher courts kind of stand by that ruling, I think we might even get a little bit more evidence released, but we'll see. We can't pretend to know what this particular Supreme Court is going to do or say at any given time, but we will go over this ruling from Judge Chutkin on the appendix, which of course is the second part. But first, Andy, let's start with the immunity in general. Remember, this thing, this monstrous brief comes in two parts.

You'll hear me refer to the motion, which is the 165 page unsealed filing we went over last week, the one that I read for the audio version for the Jack podcast in that five-part bonus series. And then there's the other part, which you will hear me call the appendix, which is all the evidence cited and referenced in the motion. Now Trump had until October 1st to object to Jack Smith's proposed redactions for the motion. And he had until October 10th to object to Jack Smith's proposed redactions in the appendix. Now, Trump wanted

more redactions in the motion, but lost that argument and Judge Chuckin unsealed it. Now again, he's objecting to any of the appendix being released. But this time has asked Judge Chuckin to postpone releasing it until he has a chance to ask the higher courts to order her to keep it under seal. Yeah. And so this is from Trump's October 10th filing opposing the release of the appendix. Keep in mind when he opposed the redactions in the 165 page motion, Judge Chutkin ruled against him because he failed to cite anything specific that he wanted kept under seal. He just took a bunch of broad sides against the whole thing, right? He also failed to cite any applicable precedent to keep it sealed. So Trump appears

here to either be ignoring that in this motion, or he simply doesn't have a cognizable legal argument for his request. He writes, President Donald J. Trump respectfully submits this response to the court's September 27, 2024, minute order regarding the redactions proposed by the special counsel's office to the appendix to the office's motion for immunity determinations. There should be no further disclosures at this time of the so-called evidence that the special counsel's office has unlawfully cherry-picked and mischaracterized

during early voting in the 2024 presidential election in connection with an improper presidential immunity filing that has no basis in criminal procedure or judicial precedent. no basis in criminal procedure or judicial precedent. President Trump maintains his objections based on overt and inappropriate election interference, violations of longstanding DOJ policy, the office's previous safety-related representations in this district and in the Southern District of Florida, grand jury secrecy, and the influence of potential witnesses and jurors of prejudicial pretrial publicity, which predictably followed from the filing of the redacted motion for immunity determinations. That was a long sentence, which bedeviled me. If the court decides to release additional information relating to the office's filing,

in the appendix or otherwise, President Trump respectfully requests that the court stay that determination for a reasonable period of time so that the president can evaluate litigation options relating to the decision. Yeah. And Andy, it's of note that Trump's lawyers cite an op-ed here from Ellie Honig, who seems to opine that the immunity brief somehow violates the Department of Justice policy, that they aren't supposed to take any overt investigatory steps within 60 days of an election. But as Judge Chuck can point it out, Trump failed to articulate how the release of this evidence would be prejudicial to him and that the court is not bound by DOJ policy nor has any jurisdiction over it.

So the court ordered special counsel to present their briefs and the redactions are based on rulings the court made about the evidence in this case a year ago, an argument by the way that Trump won. And Judge Chuckin said of the 60-day policy, quote, the court need not address the substance of these 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. So Trump wants all of the appendix in its entirety to remain under seal. And he fails again to point to anything specific or to explain how this could cause him legal

prejudice. He simply refers to his previous filing, which was also lacking in those things. I did so well last time. I'm going to make the same argument here. She said, you need to be specific about what you want redacted and you need to show me why. You need to give us a circuit precedent or legal precedent or something to tell me how this prejudices you.

But Andy, doesn't this also suggest that there are actually parts of the appendix that Jack Smith is willing to unseal? I mean, Trump wouldn't be saying keep it all under seal if Jack Smith were already keeping it all under seal. There's no doubt of that. We would not be here doing this episode in this way if Jack Smith wanted the entirety of the appendix under seal, the parties would have agreed to that and it would not have been a contested issue. So, yes, there's something in there that he's perfectly comfortable with revealing to the

public. And again, if last week's motion is any guide, which it should be, he's going to track the same course, which is he's simply following the standard that Judge Chutkin laid out a year ago when they previously fought about what should be redacted and what should be unsealed. Of course, the parties were on opposite sides at that time. Trump wanted everything unsealed and Jack Smith wanted to keep things more private. And of course, Judge Chuck King came up with some guidelines as to what remains of filings generally, what is the standard for remaining sealed. And so Jack Smith is applying that standard here and Donald Trump doesn't like it so much.

Nicole Soule Well, it's actually surprising to me because, you know, we assume that grand jury materials are going to be sealed, transcripts of interviews, 302s, materials gained from search warrants, interagency documents, documents from other governmental agencies, all listed as sensitive materials when they were doing the oral arguments about what to seal here and what not to seal. And I thought that the entirety of the appendix would be those sensitive materials. So I'm interested to see what is not considered sensitive under paragraphs 11 and 12 of the

protective order for evidence. And I'm also curious as to why Donald Trump didn't simply argue this thing you want to unseal is considered sensitive material under the protective order because here's why. This thing that you want to release, that's sensitive material and here's why. He didn't even bother to make an argument. Or even if he wanted to take the position of kind of expanding the scope of what should remain sealed, he could have said, this piece of evidence in the appendix at such and such a place should remain sealed because if exposed, it will harm the defendant

in the following way, a prejudice that's not fair, that can't be remedied later. That's the sort of- Or it could taint the jury pool. Right. fair that can't be remedied later. That's the sort of argument that could have gotten Judge Chutkin to expand her previously articulated view. But he doesn't do any of that. He simply relies on these nonsensical broadsides of election interference and things that Chutkin has ruled repeatedly do not impress her in any way. So I... Right. You can't be like, this shouldn't exist in my mind, in my opinion. And that's why none of this should be sealed. That's not how you make a legal argument.

And even the last line of this where he asks for a stay of that ruling, the normal way to do that is to say, we would ask for a stay of the court's order for a week to give the defendant an opportunity to appeal, period. But instead it's couched in this like, we're going to consider our litigation objects. Of course that's what you do, but that's not what you ask for. You come in and ask for time to prepare your appeal. If you turn out you decide not to appeal, you just let the time expire. That's fine, no blood, no foul. But again, nothing is normal here. I don't know why that is. I've never been able to figure that out if that's just the way these attorneys do attorneying or if they've adjusted the way they do things because they're kind of speaking to this audience of one to

please their client. I don't know, but it's weird. Well, the other thing, here's my thought. He wanted, in this particular filing, he says that he doesn't care if the public sees this filing, right? The one where he's objecting to the redactions. So in my mind, he wanted this filing to be public. He wanted to air his grievances and say, it's biased, it's vindictive, you're election interference, I'm totally immune. He wanted a chance to say that publicly, because if he had filed individual objections to material, he wanted to be redacted because it's sensitive, he would have had to file and under seal. And I think he wanted to just publicly air his grievances about election interference

again. That's kind of where my mind is. I think you're right. And it reinforces this basic premise that we've known all along that his litigation strategy is a political strategy. That's all it is. There's no difference between the two. There really is no great litigation strategy here. It's all about winning the presidency. So every motion, every reply, every surreply is an opportunity to pump out the same message, which is, it's not fair, it's election interference, it's vindictive. Even though legally we've known many of those things have already been completely dismissed, it's not going to stop him. This is the same

way he does politics. He goes out and says the same things at every rally, every speech. He has two or three little messages. It's like anti-immigrant and DOJ is not fair to me. And I don't know, maybe two or three others. And you just get, he just hammers the same message again and again and again. And that's what he's doing here. I could see his lawyers being like, well, let's argue this. Let's argue this. He's like, no, I want it public and I want you to say this. And they have to kind of do what he says because he's the client. But what a judge Chuck can have to say about this motion.

So she issued a ruling on the appendix redactions within an hour. She probably had a pretty strong opinion before any of this came across her desk. But she said, defendant has now filed an opposition objecting to unsealing any part of the appendix. As in his previous filing, he identifies no specific substantive objections to particular proposed redactions. Instead, defendant, quote, maintains his objections to any further disclosures at this time for the same reasons he opposed unsealing the motion. And he requests that, quote, if the court decides to release additional information relating to the office's filing and the appendix or otherwise, the court stay the determination for a reasonable period of time so they can evaluate litigation options related to the decision.

For the same reason set forth in its decision with respect to the motion, the court determines that the government's proposed redactions to the appendix are appropriate and that the defendant's blanket objections to further unsealing are without merit. As the court has stated previously, defendants concern with the political consequences of these proceedings is not a cognizable legal prejudice. Accordingly, the government's motion for leave to file the unredacted motion under seal and to file the redacted motion on public docket is granted with respect to the government's proposed redacted version of the appendix to the government's motion for immunity determinations. The court will grant defendants requests for a stay so that he can evaluate litigation options

and hereby stays this decision for seven days. Like how she puts evaluate litigation options. Yeah, she's like throws the same crazy language back at him. She's like, I don't know what this means or what you're going to do with this time, but just, okay, here's your time. It'll be a writ of mandamus. He will ask for a writ of mandamus, the higher court ordering her to put the whole thing under seal. And of course he won't make any specific requests because he'll want to file it publicly so he can air his grievances that are, the Biden, Harris, Department of Justice hates

me and it's not fair. And that's just, that's what it's going to be. That's what it'll be. So procedurally, what he needs is for a court to accept this appeal on an emergency basis. And it would be the circuit court, right? The DC circuit. And they would need to immediately stay the proceeding. Yes. Right? Or stay the filing. I guess maybe not the whole proceeding, but at least stay the

filing of this motion. No, right. They do this a lot, right? It's called an administrative stay. And you'll hear a lot of like headline people saying, court blocks release of evidence. And it's a temporary couple of days thing while they figure out whether they're going to put a more permanent stay in place. Right. It's a time out. Basically, it's a time out to them to either say, no, we're not even going to take this appeal or yes, we're going to take it and accelerated basis or not or whatever, whatever. And then we would have to go through a whole standard kind of hearing and appeal. But the rest of the case shouldn't get stayed for that. They have all

kinds of other stuff that they can keep doing. Yeah. That would be my prediction is that the DC circuit will grant an administrative stay while they consider a more substantial stay pending appeal. And then a couple of days later, they'll come back and say, your stay application is denied, but your appeal is granted. So you can go ahead and appeal, but we're not going to stop the court from releasing this while we consider your appeal. That's what I think is probably going to happen. Which makes the whole thing useless.

So I doubt you would even pursue the appeal at that point, but- No, right. We'll see. All right. Well, we have a lot more to get to, but we have to take a quick break. So everybody, stick around. We'll be right back. Welcome back. Okay. Remember when Trump used every filing and response to demand that Judge Chuck can dismiss the whole case because he's absolutely immune and Jack Smith is vindictively prosecuting

him? He did it in his motion. You can't not remember that because it happens every time. He did it in his motion to compel discovery as well as his opposition to Jack Smith's redactions in the immunity motion. And finally, Judge Chuckin said in her ruling on the immunity motion redactions, she said, in addition to the assertions discussed above, defendant's opposition brief repeatedly accuses the government of bad faith partisan bias. These accusations, for which the defendant provides no support, continue a pattern of

defense filings focused on political rhetoric rather than addressing the legal issues at hand. Not only is that focus unhelpful to the court, but is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in this case. The defendant has had an opportunity to make his case that his prosecution is improperly motivated. Future filings should be directed to the issues before the court." That's what she said. That's what we read last week. That was the smack down from last week. Yeah. And I wanted to, you know, I thought we should revisit that because I guess that dressing down prompted Donald to file a new supplemental motion to dismiss the entire case.

This is from October 3rd, President Donald J. Trump's supplement to motion to dismiss. President Donald J. Trump respectfully submits this supplement to the pending motion to dismiss. President Donald J. Trump respectfully submits this supplement to the pending motion to dismiss based on statutory grounds, the motion, and incorporates all previous statutory and constitutional arguments as applied to the superseding indictment. The superseding indictment stretches generally applicable statutes beyond their breaking point based on false claims that President Trump is somehow responsible for the events at the Capitol on January 6th, 2021. The special counsel's office seeks to assign blame

for events President Trump did not control and took action to protect against. The special counsel blatantly ignores the fact that the federal prosecutors have taken the opposite position in the district. There's a footnote here, okay? Citing a case of a January 6th rioter, when he said the special counsel, Jack Smith, is ignoring the fact that federal prosecutors have taken the opposite position in the district, right? And here's a footnote to that. The rioters defense in that case was that Donald told him to attack the

Capitol. But the judge said, quote, nor can there be any reasonable claim that President Trump intended to or actually authorized the defendant's particular criminal conduct. Quote, the defendant will be unable to identify any remarks made by former President Trump that authorized the illegal conduct, unquote. Now, of course, the authorization defense is different, right? That's a totally different thing. Trump is misunderstanding the law here, or he understands it and he's just trying to find an argument.

Well, he's reading it as if it's an exoneration. I agree, vindicated, see, absolutely innocent. It's not that at all. You can't authorize something that you don't have the authority to authorize. That's all it is. So if we take the hitman example, so let's say I hire somebody to go kill somebody and the hitman who I sent is like, I'm innocent. You can't put me in jail because she told me to do it. Now that doesn't let me off the hook nor does it let him off the hook

That's what Donald Trump is trying to make happen here and it's ridiculous So he goes on to say it is apparently of no consequence to the office That's Jack Smith and those who support their efforts, that former speaker of the House, Nancy Pelosi, was caught on a previously undisclosed video accepting responsibility for the events at the Capitol. There's another footnote here, citing the press release from Republicans in the House, okay, where Barry Loudermilk, the guy who gave pre-insurrection tours to insurrectionists, claim that this video of Nancy Pelosi proves she is taking full responsibility for the events of January 6th. Now, of course, I watched the video. The video does no such thing. In it, she says, there was no accountability.

And you're going to ask me in the middle of the attack on the Capitol, after they've already breached the Capitol, you're going to ask me if we should call the National Guard? They should have already been there, but they clearly didn't know. And I can, I take responsibility for not having them be prepared for more. So that's what she said. That's not her saying, no, I'm the one who incited the violence. The attack on the Capitol is my fault. She's saying my bad for not making more noise about the potential danger at the Capitol and insisting that Donald Trump give us more troops or whatever, right? This is just the latest in this kind of like five-year-old's approach to legal reasoning.

And this one I would call, it's like the jinx, you owe me a Coke legal reason. It's like, as soon as she said, I take responsibility, without listening to the words that follow it, they just stuck their fingers in their ears and said, that's it, that's it. She's admitted it. She admitted it. She's guilty of everything. It's bizarre. Yeah.

It goes on to say, even one of the special counsel star witnesses, General Mark Milley, acknowledged long before the charges were brought in this case that President Trump had instructed the Defense Department on January 3rd, 2021 to, quote, make sure you have sufficient National Guard or soldiers to make sure it's a safe event, unquote. And this is fascinating, Andy. I looked up that transcript. I read the whole thing in context.

And Mark Milley does say that in the meeting on January 3rd with the Secretary of Defense. Trump did actually say he wanted enough National Guard to be ready to make sure the event was safe from protesters. But in the same testimony, Mark Milley says, quote, there was never a mention of 10,000 National Guard troops though. That's a lie. Trump asked for 10,000 National Guard troops during the George Floyd protests, but not the January 6th protests. He also says, quote, now was there or was there not a subsequent discussion between the president and the Secretary of Defense? I don't know. But that meeting on January 3rd, that was the last time I had spoken to President Trump or have seen President Trump other than seeing him on TV.

So there's no interaction and people are going to want to know this. There's no interaction for me anyway on the fourth, fifth or sixth or anything afterwards with President Trump. I can't confirm or deny if there was a phone call or a meeting between Trump and Secretary Miller before the events of the sixth. I don't know that. I'm 100% confident that there were no phone calls, interactions with Secretary Miller or President Trump on the day of January

6th from 2 30 on. And I say that with confidence because I was with Chris Miller from 2 30 until almost midnight. That's stunning. Yeah, I know. Not even a single phone call to the Defense Department. No. And Milley's like, yeah, on the third, he said, make sure there's enough National Guard there. But he never asked for 10,000. He's mixing that up with the George Floyd protests. And I don't know if he talked again to Chris Miller between the third and the sixth. But he didn't. I do know he didn't talk to him while everything was hitting the fan.

Yeah, so that's damning testimony against Donald Trump. I'm surprised he drew anybody's attention to it at all. Yeah, that's remarkable. So Trump continues in this filing. He says, However, one thing the special counsel's office cannot ignore or hide from is binding precedent. The Supreme Court's decision at Fisher versus United States is yet another key application of the rule of law to reject lawfare overreach targeting President Trump. Okay. Fisher requires the dismissal of counts two and three of the superseding indictment and its logic fatality undermines counts one and three of the superseding indictment and its logic fatality undermines counts one and four as well.

Yeah, I'm not sure what logic fatality. I mean, I feel like this filing is the death of all logic. So maybe that's what he's talking about. But I think he finished him, I guess. Okay. Section 1512 C2 was enacted in response to corporate document shredding that bears no resemblance to the allegations in the superseding indictment. Under Fisher, the office may not use the statute as a catch-all provision to criminalize otherwise lawful activities selectively mischaracterized as obstructive by those with opposing political

views. As Fisher confirms, 1512 C2 requires proof of evidence impairment coupled with corrupt intent. Once stripped of President Trump's official acts subject to immunity and protected First Amendment political advocacy, the superseding indictment lacks sufficient factual allegations to support either element as required by counts two and three. President Trump expressed sincere and valid concerns about the integrity of the 2020 election pursuant to his authority as chief executive. He was part of an open public discussion regarding use of contingent slates of electors in a

manner consistent with historical practice and contemplated by the then existing version of the Electoral Count Act, ECA. The congressional record from January 6 reflects lawful debates on certificate objections contemplated by the ECA, as well as acknowledgement of the historical precedent for the contingent slates. There is no precedent for a criminal prosecution based on such a record." Because no one's ever done this before. And Andy, I want to address part of what you just read. You said, well, Trump said, once stripped of Trump's official acts subject to immunity and protected First Amendment political advocacy,

acts subject to immunity and protected First Amendment political advocacy, the superseding indictment lacks sufficient factual allegations to support either element as required by counts two and three. In last week's episode, you and I discussed the fact that the First Amendment argument was missing from Jack Smith's immunity brief, so thanks to Donald Trump for putting it front and center. To remind folks, Donald Trump argues that the First Amendment gives him the right to lie about the election and speak publicly about his fraudulent electors and all that. Now that right there is Trump admitting

he was acting in his private capacity as a candidate for office. Because the First Amendment protects citizens, not the government. And further, as Jack Smith has explained, there are documents at the core of the January 6th proceeding, namely the electoral certificates, the certificates of ascertainment, and the fraudulent certificates he created, he directed people to create, right? Yeah. Now those documents coupled with the false certificates, they're more than enough to

meet the narrower interpretation of 1512 C2 in Fisher. And we know that because Jack Smith has written about it plenty when he wrote his opposition to this dismissal for statutory reasons the first time. Yeah. I mean, I think that arguing Fisher is not a crazy idea, right? It's a recent Supreme Court case. It does go a little bit in his direction. We have talked about it a lot. I don't believe it gets him off the hook here because of the reasons that you just said, but it's a fair argument to make. But he does it in such a bizarre way, like weaving in this, I'm going to be immune because

everything's official acts. Once that stuff is stripped away, then you have to grant this motion. It's like, well, you can't, so we should just put this whole thing on the shelf until that gets resolved. Like there's, it's like, it's almost like a circular logic sort of argument. If I win the other motion, then I must win this one as well, which kind of doesn't make any sense. And of course, backs into this almost pseudo admission of private conduct with the First Amendment reference. So yeah, you can't ask for First Amendment political advocacy protection if you're not a political candidate for office.

There's nothing more office seeker than that. Right? And that's what it comes down to. Office seeker versus office holder. Yeah. And in those moments, your First Amendment right protects you as you are an office seeker for sure, but you can't have it both ways. Anyway, so his introduction concludes like this. It says, under these circumstances, the special counsel's office cannot establish the required nexus between alleged obstruction and any, quote, evidence used in the certification proceeding or that anyone acted with corrupt intent. Fisher forecloses the office's efforts to rely on the events at the Capitol on January

6 to support charges under 1512C as the superseding indictment does not sufficiently allege that President Trump impaired or intended to impair the integrity or availability of any document or of other object used in the official proceeding. The limiting interpretation that the Fisher Court applied to 1512C also strongly supports President Trump's narrower interpretation of Section 371 as charged in Count 1 and Section 241 as charged in Count four. Accordingly, for the reasons set forth below, as well as in the motion, the superseding indictment should be dismissed. That's a bit of bootstrapping there in the last sentence. Four paragraphs

arguing 1512, throw in some 371 and 241 as well. Yeah. I mean, might as well. Honestly, if I were the lawyer here, I would argue the 1512 C2 argument. I would actually be filing a motion to strike those charges and that information from the indictment, the superseding indictment. But I wouldn't be so focused on 371 and 241. I mean, you might as well throw it in there. But the 1512 C2 charge carries a max sentence of 20 years, whereas 241 and 371 are much shorter sentences.

They're more minor. Right. That's right. And if you got those charges thrown out, you would lose a lot. The prosecution would lose a lot of the evidence they need to make the other charges, right? So it's, you'd narrow the case so much, it would make it much harder to go forward. It's almost not worth bringing at that point. Again, I know we've beat this dead horse this week, but I feel like these guys can't make

the logical, effective, strategic legal arguments because they're constantly focused on this nonsense of it's not fair to me and it's all political election interference. Yeah. Yep. And poor Judge Chuckin has to read around all that to the point of the actual thing that they're discussing and then pick the law out and tell them no, which I think she will do. And I want to go into more detail that he puts in here. He actually goes into a legal argument detail.

And it's really not substantive. And we'll discuss it, but we do have to take a quick break. So stick around. We'll be right back. Bum bum bum ba da da da da da dum. Ba da da da da da da dum. All right, welcome back. So before the break, we left off with Donald's argument that the

entire indictment should be thrown out because of the Supreme Court's ruling in Fisher, saying that he never impaired or intended to impair the integrity or availability of any document or other object used in an official proceeding. Now, I think he's wrong, but the Supreme Court might agree with him to some extent. A motion to dismiss on statutory grounds though is not interlocutory. So assuming Judge Chuck can denies this motion, which I think she will, Donald can appeal this up to the Supreme Court, but it won't stop the proceedings. It's not interlocutory.

He'll ask for a stay. He'll get an administrative one. That'll be denied and it'll roll up like behind the scenes. As with any other kind of pre-trial motion to dismiss, it's more of a placeholder so that once you're convicted, then you've lodged your complaint. Preserve the issue for the record. Exactly.

All right. So the motion goes on to say, before Fisher was decided, the Biden-Harris Department of Justice had used section 1512C2 to either charge or convict 259 people relating to the events of January 6th. Department of Justice, quote, continues to assess, unquote, many of these cases, but has already acknowledged thus far that the decision severely undermined their position in at least 100 of them. Specifically, so far as has been disclosed, the decision forced prosecutors to consent

to the dismissal of Section 1512C2 convictions in 40 cases that had been adjudicated before the Supreme Court issued Fisher and to abandon 1512C2 charges for 60 more of those defendants. President Trump's case should be among the next to be abandoned. And if not, then it should be dismissed. I don't think those numbers are right. I was just going to say, I wouldn't take those numbers. Those numbers aren't worth the ink on the page. They are very good at fuzzy math. They're too rounded, right? 40 and 60, the chance of that happening is zero. I mean, it's just nonsense. I would, give me the list.

Give me the list of cases. And when Jack Smith responds to this, I think we'll see the actual numbers. We'll see. Oh, the defendant's math seems to be a bit fuzzy. Here's the actual number of cases. Mark my words. All of which have substantially different facts than the case that's subject to this matter. So anyway. Right. Because these guys didn't create fraudulent elector certificates. No, no, they didn't. They tried to send them in the mail to

Congress and the archives. They walked to the Capitol and threw a chair through a window or something. Yeah. Very different set of circumstances. They didn't send a mob to the Capitol and say, I'm going to be there too. Tell them to fight like hell or they won't have a country left. Yeah. Different set of circumstances. The filing goes on to say, prior to Fisher, Trump argued in the motion that the violation of 1512 C2 alleged

in count three of the indictment was defective because submitting contingent slates of electors and alternate certificates and advocating that Vice President Pence take action during the certification proceeding to investigate the integrity of the election was not obstructive. The special counsel's office opposed the motion by arguing that the charges were consistent with the DC Circuit's split decision in Fisher, which the Supreme Court later overruled. The office proceeded to use fanciful and inaccurate language to describe actions by President Trump and his advisors that are subject to presidential immunity. As President Trump

will establish in his forthcoming response to the office's presidential immunity submission, the challenged conduct, when described accurately, placed in context and stripped of the office's misplaced rhetoric, quote, qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Not really when you're arguing first amendment. And none of that is true. You can't make it hang on immunity that hasn't been decided yet by the way. But also it's just incorrect to say that this is inconsistent with the DC Circuit split in Fisher and that it's inconsistent with the Supreme Court's narrower finding.

So he's just back to arguing immunity and not statutory deficiency here. Yeah, that's right. And that, because that's, again, like we said earlier, that's part of the message, right? That's part of what he wants to echo out there as many times as he can. It's not going to be effective in front of Judge Chutkin. There's a couple of things more here. Like he's taking this, his arguments about, and again, arguing 1512 and the Supreme Court case Fisher, not a bad idea, but the way he's doing it is like, it's equivalent of saying the Supreme Court said that 1512 C2 does not apply to anything having to do with January 6th, so therefore you've got to dismiss.

And that's not what they said. So the facts here are very different than the Fisher case. So there is room for the government to come in and say, this case is distinguished from Fisher in the following ways. The Fisher ruling doesn't foreclose charging the defendant on these facts. And more broadly, I want to just make the point that I think is getting forgotten here, which is that the prosecution went in front of a grand jury for months and months and months, presented tons of evidence. The grand jury decided that there was probable cause to believe a crime had been committed and he was indicted. And then after the Supreme Court case, they went

back in front of a new grand jury, represented the evidence, changed things slightly and came to the same decision. He was charged because the grand jurors decided the prosecutors had proved their case at least to the level of probable cause. So now you can argue all you want that the prosecution mischaracterized something or they use fanciful language or they don't like me because they're political adversaries or something. None of that matters. Those are all things that get proven or disproven at trial. That's why you have a trial.

It's perfectly reasonable that a jury might hear all the evidence and say, we don't believe the government and we're going to acquit you of these charges. But you don't go to the judge and be like, they mischaracterize something, therefore you should dismiss the case. That's not like a sound legal argument to have a case dismissed. You have to be able to show, you know, there's all kinds of different ways you do it, but there's got to be a cognizable harm for like based on legal error. And he never presents even he never argues any of that stuff. No, Andy, the only thing he's arguing, he's basically saying, use any of that stuff. No. Andy, the only thing he's arguing, he's basically saying, this statute only applies

if I did what Jack Smith says I did and if I'm not immune. And so that's the shit you figure out at trial, pardon my French. It's not like if I'm up for murder, if I'm on a murder rap, I say, sorry, the murder statute is murky because I didn't do what you're accusing me of doing. That doesn't have anything to do with the statute. That's me defending my case. So let's go to trial and have a jury decide. And then to say, plus I'm immune, you know what? We're in the middle of working that out right now and I'll let you know if you're immune. That doesn't have anything to do with whether this statute is relevant based on the allegations in the

indictment, which the court has to take as true when it considers a pretrial motion to dismiss based on statutory deficiency. Yeah. He should be spending all this time not regurgitating yet another motion for dismissal on the exact same grounds for the 40th time, but rather filling up those 180 pages with really substantive arguments, arguing that this piece of evidence that Jack Smith wants to use against me, you can't because it fits within the scope of what the Supreme Court said you can't use or comes within absolute immunity or presumptive immunity or official act, what have you. There's a lot of ground for them to fight on there. We'll see how their response comes 20 weeks from now, whatever

it is when they have to actually file it. This is just politics, this thing. Yeah. So the motion continues. The special counsel's office also sought to defend the 1512 charges based on their false allegations relating to responsibility for events on January 6. They continue to do so, including in the superseding indictment where they falsely alleged that President Trump sought to, quote, leverage events at the Capitol to, quote, retain power. These false allegations do not render President Trump factually or legally responsible, let alone criminally culpable for the actions of others. Absent direct calls to imminent lawless action, which the office does not come close to alleging,

bedrock First Amendment principles permit public speakers, including President Trump on January 6th, to speak their mind without fear of criminal prosecution for the unlawful acts of others. And there it is again, the First Amendment. He now has admitted to the court that his speech at the ellipse was not an official act. Yeah, I mean.

I mean, it's bizarre that he keeps doing this. Yeah. But he then argues physical movement of electoral college certificates does not support 1512c2. He says the superseding indictment relies in part on what amounts to an impermissible certificate movement theory. Under this theory the alleged 1512c document is the legitimate electors certificates of vote and their governor's certificates of ascertainment, which staffers allegedly evacuated from the Senate, it's on video, after the crowd at the Capitol broke into the building. The incidental

movement of documents from one room to another did not, as a matter of law, impair the availability or integrity for use in an official proceeding of these documents. So they just happened to be moving them from one room to another for other reasons, not because the Capitol was breached by an angry mob of Trump supporters. But it says right there in the language, Andy, how could I have impaired the availability of documents?

They were just moving them to another spot. Unbelievable. I mean, if you can't prove obstruction by showing that the actual process was obstructed when they had to pick up the box of all the ballots and take it somewhere for protection and therefore could not continue counting them in the way the constitution requires. I mean, like, I don't know what better evidence there would be of that. That's it. Yeah. So then he argues the transmission of contingent certificates does not support 1512C2

charges. Contingent. I think he means fraudulent. Yes. I'm fairly confident of that. So he says, some of the certificates were refused by the archivist and the vice president. So the office has not adequately alleged that those objects impacted the proceeding in any way. In reality, far from an impediment to the certification proceeding, the then existing version of the Electoral Count Act acknowledged

the possibility of quote, more than one return or paper purporting to be a certificate and contemplated that Congress would consider and pass upon all the certificates and papers purporting to be certificates of the electoral votes. Well, yeah, that's what the law says, but the law doesn't say it's okay to submit fake ones. It just says Congress has to figure it out. It doesn't mean that, oh, then we could just write things on the back of a receipt and submit it as an electoral ballot, and that's fine. Yeah. To say, yeah, sure, I ordered the creation and submission of fraudulent documents,

but it's Congress's job to reject those. That's quite an argument. Exactly. He then says 241 should be dismissed, which is conspiracy against rights, our right to vote and have our votes counted. He then says, because President Trump's public advocacy was consistent with historical practice

and then existing versions of the Electoral Count Act, his efforts to ensure the integrity of the election. He's arguing that that I can't have violated rights because I'm publicly advocating even though, and you know, Jack Smith will explain in his opposition, the executive has no role in Of course, yeah. In the certification proceeding, the counting of the electoral votes, any of it. So that means he was doing it as a private and unofficial. And then he says of 371 conspiracy to defraud the United States,

in Trump, that's the Supreme Court of Medicine. Yep. The Supreme Court confirmed that the pall of potential prosecution discussed in McDonald presents unique risks to the effective functioning of government and harms the compelling public interest in fair and effective law enforcement. Again, this is just the sort of over-broad, atextual interpretation that the Supreme Court rejected in Fisher.

That reasoning further supports President Trump's motion to dismiss count one. And Andy, I read that passage about 45 times for 45th president of the United States and I still can't make sense of it. Do you know what he's trying to say here? It's, I don't, I can't claim I'm in his, in his or his lawyer's heads, But it feels to me like he's trying to make some sort of bank shot argument. He pulls this quote out of US Trump v United States, the Supreme Court case, in which they refer to McDonald, according to him, in the context being the negative impact of a potential prosecution presents risks to the negative impact of a potential prosecution presents risks to the effective functioning of government. Yeah, but that's an immunity argument, not a statutory argument against 371.

That's right. I'm not saying this makes sense. He's like, look over here. This makes sense over here. So therefore it should make sense over there too. That's when he brings it back to Fisher in the last sentence. I mean, I don't know. It doesn't work for me. Maybe what he's trying to say is, you know what, I'm sorry, I can't, I can't figure it out. I can't. You were overbroad in Fisher, so you're overbroad here in 371 as well. Exactly. I'm not going to tell you why or how, but here's a quote from the immunity ruling. Here's a quote that we like because it says, you know, government and enforcing the law

is bad. Yeah. They should be more circumscribed in how they do that. And then he says, again, this is just the sort of overbroad, atextual interpretation the Supreme Court rejected. So Fisher's like that too. And so therefore you should dismiss this case. Okay. It's not based on logic or common sense. So... No. One of those broadside things again. Anyway, that's that motion. I'm interested to see what

Jack Smith, if he is able to file a reply. I'm not sure where we are in this motions briefing. I think Jack Smith will get a reply to this and we'll bring it to you when he does. We do have one more quick little bit of business plus listener questions. We have to take one more quick break. So stick around. We'll be right back. Welcome back. All right. One more piece of business. Like I said, before we get to listener questions, remember last week, Andy, when Trump asked for five more weeks to respond to Jack Smith's immunity brief, because five weeks is the same as three weeks and the judge gave Jack Smith three extra weeks. And then he asked for another month to file a surreply.

And you and I said that since Judge Chuck can gave Jack Smith those three additional weeks to file his brief, that she'd probably give Trump another three. You said she'd probably split the baby, but certainly not five. And that she would grant him his 180 pages because he asked for 180 pages in this motion too. And here's a ruling, a minute order. Motion to extend page limits and time to respond to government's motion for immunity determinations and for leave to file a cert reply is hereby granted in part and denied in part.

The court's order is modified as follows. Defendants combined response and renewed motion to dismiss based on presidential immunity is due November 7th, 2024 and may have up to 180 pages. The government's combined reply and opposition is due November 21st, and defendant may file a combined reply and surreply by December 5th. So Andy, we were right. She didn't give him five weeks and a month. She gave him three weeks and two weeks.

Although I didn't think she'd grant him the surreply, but she did. Yeah. She always figures out what's perfectly fair, and then she gives him a little bit extra. And I feel like that's her hedging against, or I shouldn't say hedging, building a record that will be examined very closely on appeal, any number of appeals that'll come from this thing if it ever gets to a conviction. And she wants to create the very real impression of the fact that she's fair to the guy and gave him a chance. So I think that's really what that is. The end of the day, the special counsel's office doesn't care.

Right. I mean, all right, we got three extra weeks. You're going to have three extra weeks. So the new dates, again, defendants combined response to that 165 page thing, November 7th. Yes. And he can respond with 180 pages. And then the government's reply is due November 21st. And the defendant's surreply, which needs to be combined with the reply for the motion to dismiss based on immunity, by December 5th.

So he was asking to have for an extension totally going out to December 21st. So this is a little bit truncated, but he does get a little extra time to respond. All right. Let's talk listener questions. Again, if you have a question for me and Andy, you can click on the link in the show notes and it'll take you to a form you can fill out to ask us a question. What do we have this week, Andy? All right. So we have two this week. The first one is not a question, but I am bringing it in because often I say, look, I pick the questions, I try to pick questions that are representative of a lot of questions and comments that people write in about. This one blows that out of

the water. There were so many comments just like this that I absolutely had to read one of them. And it comes to us from Cosmo. And Cosmo says, greetings Jack Lovelies. Not a question, a comment. Thank you so much for the audio version of Jack's immunity brief. AG is a very good reader and made the whole thing come alive.

It reminded me of what happened four years ago. It's compelling, stunning, and easy to understand. Considering the fact that as we know, Trump doesn't read, we know he hasn't read the brief, that means he has likely listened to your audio version. Keep up the good work. I'm not so sure I agree with that last part, Cosmo. But Alison, so many people, so many listeners out there wrote in like really amazing comments about how much they appreciated the time and effort that you put into that and how they listened to it. So again, really well done and thanks for doing that.

Thank you. And thanks to everybody. And again, thanks to Just Security and Adam Klassfeld for putting out the list of those redacted names. There were a couple that I actually knew that they hadn't yet put in their annotated version. I'm specifically thinking of the Simpawtico software group and Berkeley Research Center, those two. Jack Smith has those and he's got Hirschman testifying it looks like like, that he put that, he put those results directly in front of Donald Trump. Right. So that's again some more evidence that that he knew he lost. Anyway, thanks everybody. I'm glad you're

listening. I'm glad it's getting out there. If you have anybody in your life who you think should hear it but they don't have time to read 165 pages, send them over to the to the Jack feed. It's totally free. Tee it up. Tee it up. All right. Now here's our question for the week. It comes to us from Mike D. Mike says, greetings and salutations. I have a question that I truly hope does not come to fruition in this timeline. The basic understanding is that if Trump wins in November, he's going to have his AG dismiss the case. What happens in the unlikely event that Democrats win the Senate and refuse to confirm an AG for Trump?

Will there be an acting AG? Will the whole thing be put on hold? It's a really good question. I had not thought of that. It would require a political victory for the Democrats in the Senate to put that whole thing on ice. But I think there will definitely be an acting AG. And I think you'll see that soon.

There's a lot of- Trump would just put one in. Trump would just put him in, not confirm him. He would make him the AG and he would say, what are you going to do about it? That's, let's be honest, that's what he's going to do. The acting AG has the authority of the AG and he would say, what are you going to do about it? That's, that's, let's be honest, that's, that's what he's going to do. The acting AG has the authority of the AG. So whoever's acting can do, can dismiss the case or tell Jack Smith, dismiss it, whatever. I think it's possible that Trump will put in an acting AG forever. He gets a really long run out of the first acting. And after that, the, um, the vacancies act limits the time that actings can serve.

You have to pull candidates from people who have already been politically, or already confirmed for other political jobs. Nevertheless, you just keep rotating actings to dodge a hostile Senate, which is the premise of this question. Right. Or the DC Circuit Court of Appeals, who has to approve those vacancies. Remember when Tim Shea left and Mike Sherwin came in and they did it that way because they would have had to have gotten approval from the DC Circuit Court of Appeals, which wasn't going to happen to keep Tim Shea in there. So they found Sherwin and brought him in. Yeah. So I don't know.

That's a really, really good question. I don't think it would stop him from getting rid of the case. That's the main point. But I think it's interesting because I think I'll see that if he's reelected, you're going to see a lot of actings running agencies. That's all part of the 2025 thing. And having people who don't have to pass that level of political approval

gives him more freedom to put whoever the hell he wants in those jobs. Yeah. No, great question. Thank you so much. And again, if you have a question, you can click on the link in the show notes and submit it for us and we'll see if we can get to it on the show. We really appreciate your questions and I know Andy, you do too. They're just so thoughtful. And also thank you for the kind words about the audio immunity brief. It was honestly fun to read. And, you know,

when you really sit down and read something out loud, it really goes a lot further than, you know, my initial, you know, skim that I have to do to get the information out as fast as possible. So yeah, take a listen. I hope you enjoy it. And for those who have, I'm glad that you that you did. Do you have any final thoughts this week, my friend? No, yet another week filled with amusing tongue twisting legal filings from the Trump team. So I'm sure we're going to see. Well, we know we have a few more of those in the in the pipeline. And yeah, we'll see what happens. We'll always be here next week to walk through all the craziness with you.

Yeah. And I'm looking forward to some of those Jack Smith responses, though I don't think that we will have the appendix on the public docket in time for the next episode, but perhaps the episode after. Everybody, we will be back in your ears next week. Thanks for listening to the Jack Podcast. I've been Alison Gill. And I'm Andy McCabe.