Jack - Jack | Episode 71 | Post Hoc Legal Invention

Episode Date: April 7, 2024

This week; Jack Smith responds sharply to Judge Cannon's order to write jury instructions based on the Presidential Records Act (PRA); Cannon denies Trump’s Motion to Dismiss based on the PRA, but doesn’t rule that he cannot try to use it as a defense.The American College of Trial Lawyers release a statement condemning Trump’s dangerous rhetoric as a risk to democracy.Plus, a couple of listener questions, and more!Could the Special Counsel Challenge Judge Cannon’s Jury Instructions Before They’re Delivered? | Lawfarehttps://www.lawfaremedia.org/article/could-the-special-counsel-challenge-judge-cannon-s-jury-instructions-before-they-re-delivered Brian Greer’s Quick Guide to CIPAhttps://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/ AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to know:Rule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

MSW Media I signed an order appointing Jack Smith. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. 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 71 of Jack, the podcast about all things special counsel. It's Sunday, April 7th, 2024. I'm Alison Gill. And I'm Andy McCabe. We have a big show today, including one of Jack Smith's most important filings in the Florida case so far, followed by Judge Cannon threading the needle yet again with a substantively ambiguous response, really raising more questions than she answers. Yes, that's her MO.

We also have Trump's response to Cannon's jury instruction order. Remember the weird order that we went over after that March 14th hearing she came out with at March 18th and she said, you guys need to write me some jury instructions based on things that don't exist? Exactly. Well, both Jack Smith and Trump responded to that. Of course, we're going to go over both. And Trump's public response on Truth Social to Jack Smith's scathing brief, along with Judge Cannon's request

for a speedy trial report and an American College of Trial Lawyers statement condemning the former president's dangerous rhetoric against judges and prosecutors. Yeah, that's a stack of business to get through there. So let's dive in immediately and cover real quick my favorite, good week, bad week. All right, so in the bad week category, I am nominating the former president Donald J. Trump. And here's my reasoning. New York is not going his way right now. The New York

criminal case, he's pushed for delay. I think there were three separate motions to delay the trial in that case. He lost on all of them. He also got his gag order expanded this week to cover the relatives of the judge and others working on the case. Of course, he loses his PRA motion to dismiss. We'll go through that in great detail. And finally, you got New York really digging into the background on, as my daughter would say, his SUS bonding company. So yeah, this dude with the insurance company in California that kind of appeared at the last second to guarantee his $175 million bond. Letitia James is saying, not so fast. We'd like to know a little bit about what sort of assets you have actually backing that up. Yep. Yep. And for a lot of the

same reasons, bad week for Trump for me too. We have Judge Mershawn denying Trump's motion to dismiss based on immunity. We have Judge McAfee denying Trump's motion to dismiss based on First Amendment rights. We have Judge Cannon denying Trump's motion to dismiss based on the Presidential Records Act. Now, Judge Mershawn, though he expanded the gag order, he is allowing, we just learned on Friday, for briefing in Trump's recusal motion for Judge Marshawn. He is going to allow briefing on that. I think probably to just get it on the record for how stupid it is to deny it. Honestly, I think that's all there is.

Entertainment value. He's like, oh yeah, I got to hear this. Come on in. It's out of sheer morbid curiosity I'm allowing this to continue. This car wreck, you know I'm watching. Bring it to the courtroom. Yeah, I think this whole thing that you brought up with this bond, even after they lowered it from $464 million to $175 million, that first off, when they put the bond together, the court rejected it because Knight Insurance, which is owned by the king of subprime car loans, one Mr. Hankey, who's securing this

bond, failed to attach his financial records. I thought it was just like a clerical mistake. Nope. I'm pretty sure the reason he didn't attach his financial records is because once he did, they found out that he doesn't have the cash on hand to cover the bond. And so New York attorney general is contesting the bond. He might be back to square one if the court rejects it. I mean, come on. You're talking about a defendant who is convicted of fraud for misrepresenting the values of his own company. So of course you're gonna check the bond holder that maybe he's another fraudster. I mean, you just, you can't make this stuff up

and they can't be too careful. Honestly, all the numbers coming from that entire side are totally fugazi at every level of this story. So, you know, I think they're doing the right thing there. So yeah, fascinating. Really bad week for Trump though. Really bad week for Trump, I have to say. Yeah, for sure.

For sure. Okay. On the Good Week side, I'm putting Jack Smith in the Good Week category really for one reason only, and that's just because his filing just kicked some ass this week. And I know, you know what? Sometimes it just feels good to kick some ass in week. And I know, you know what, sometimes it just feels good to kick some ass in a legal filing. And that's what he did, really set the whole media sphere on fire. People have been talking about it for days. You know, we'll go over obviously the

details of what he said and how it may have influenced the judge's order. But yeah, really bold, very attacking, a little bit to use your word, sassy filing on the part of the special counsel. A little bit of sass is good for you, right? So I'm giving that a good week. Remember the old, I just stepped in a big pile of sassy Saturday Night Live. I miss him. All right. Yeah, no. And I think a good week too, especially for this filing. It was just really well put together. And it goes over some things and you got all this great media coverage, but the media didn't cover some of the more interesting parts of the story that we're going to cover here.

Particularly I'm thinking of the meetings between Tom Fitton and Donald Trump and when he decided to formulate his presidential records act defense. And you can't, I think Jack Smith refers it to this post hoc defense. You can't come and say that you- Post hoc legal fiction is who he refers to it. You can't come and say that you designated all of these records as personal, but didn't even think of that defense

until 2022. It's brilliant. It's so well done. Yeah. I want to dive into this already, but we should regroup and start and do it in proper order. Yes. Let's do it in proper order. Jack Smith's response to Judge Cannon's order requiring both parties, both Trump and Jack Smith to write jury instructions based on a hypothetical misinterpretation of not just the presidential records act, but that it applies at all in this case, right? Yeah. And a misinterpretation of what the special counsel has charged and what they're asking for. I

mean, the whole thing is just so off base. Yeah. Yeah. Now in previous episodes, we pondered the government's possible responses to this weird order, which included, I think Andrew Weisman was saying a possibility is that Jack Smith could seek a writ of mandamus with the 11th circuit. And you and I thought that was a bit of a stretch, but it was a possibility. Andy, I had thought Jack Smith would say, you're wrong on the law and I won't entertain it. So you should dismiss if you think that that's what the PRA says. If you think the PRA says Trump can designate national defense information as personal records, just dismiss the case so I can appeal it to the 11th Circuit. That's what I thought. Or three, there was a possibility that he said he just complies

with the order and writes the jury instructions. And it looks like we got a little combination of all three. On the surface, we did. But I think in theme and in position, I think he's closest to and in position, I think he's closest to your suggestion. Yeah, I think I was pretty close. He didn't go full, like, all the money on the table, Vegas bet, like, which is what your theory reflects, but he went pretty close. He came close, yeah, all the way up to asking her to dismiss the case if this is what you really believe.

He didn't do that. And Andy, you had said that you didn't think he was going to go that far. So special counsel did indeed say your interpretation of the law is wrong and here's why. But then he did write the jury instructions as ordered, but not without quite a bit of legal snark peppered into them. And it's beautiful. And not before he wrote what an actual jury instruction in this case should look like and then asked her to adopt that one. He demanded she rule on the PRA motion, that's the Presidential Records Act motion to dismiss, well before trial so that the government could appeal it before double

jeopardy attaches. Now double jeopardy means you can't be tried for the same stuff twice and double jeopardy attaches once a jury is seated in a case. A petit jury, not a grand jury, but a petit jury, the one in court. But Jack Smith pretty much dragged Cannon for her misinterpretation of the law, or at least her insinuated misinterpretation of the law. She gives a little bit of a defense in her ruling. We'll go over that later. But instead of dismissing the case, she ultimately denied the Trump motion to dismiss based on the Presidential Records Act. And again, like I said, we'll get into her ruling a little later, but let's talk about how Jack Smith responded. He painted her kind of into a legal corner. And then we'll talk about how she

seemingly and ultimately wiggled her way out of it yet again. Yeah. Yeah. I mean, this thing is so direct. It's so to the point he doesn't, he pull a single punch. You mentioned a couple, the beginning, your legal premise is wrong. I mean, just that, that's a very harsh thing to say to the judge who's deciding your case. He comes back with the government must have the opportunity to consider appellate review. And then he says before jeopardy attaches. Like, I think this is not just a punch in the nose. That's a little bit of it. But it's also like, I think that they are really considering that she does not understand the implications of

what she's doing and also what she's not doing by having this incredible delay. So they are having to call out these obvious elements of the law in a way that you wouldn't normally see. I love, there were some great references in there to the testimony of several Trump attorneys. So a little bit of a highlight of what we might see if this thing ever makes its way to trial. Cool reference to this witness who they refer to as second employee. This is another person who is going to provide testimony about how this designation of the

presidential records as personal never really took place. And then finally, the references to Trump, one he phrases as the implausibility of Trump's legal fiction. And then another place, Trump's post hoc legal invention. So yeah, there's some real roundhouse swings in here, which makes it fun to read. Okay. OK, so Jack Smith opens like this. He says, the court has issued an order directing the parties to file preliminary proposed jury instructions and verdict forms for counts 1 to 32 of the superseding indictment with a specific requirement that the parties, quote, engage with two competing scenarios

and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury. Both scenarios rest on an unstated and fundamentally flawed legal premise, namely that the Presidential Records Act, the PRA, and in particular its distinction between personal and presidential records determines whether a former president is authorized under the Espionage Act to possess highly classified documents and store them in an unsecure facility despite contrary rules and executive order 13526, which governs the possession and storage of classified information. That legal premise is wrong and a jury instruction for section 793

that reflects that premise would distort the trial. Do you know when I first read that, I read it in her voice and my cousin Vinnie, that legal premise is wrong. You know, when she says, he's like, does the defense's case hold water? And she goes, no, the defense is wrong. That's how I read that immediately. The legal premise is wrong.

Totally appropriate. And I love the reference to that premise would distort the trial. That's building your appeal right there. He's letting her know that's the standard for getting, you know, for the writ of mandamus over the bad jury instruction. So he's throwing that in there. He goes on to say, moreover, it is vitally important that the court promptly decide, promptly decide whether the unstated legal premise underlying the recent order does, in the court's view, represent, quote quote a correct formulation of the law. If the court wrongly concludes that it does and that it intends to include the PRA and

the jury instructions regarding what is authorized under section 793, it must inform the parties of that decision well in advance of trial. The government must have the opportunity to consider appellate review well before jeopardy attaches. This is a very thinly veiled threat on the part of the special counsel. And I would, I think it was effective. I think it got her attention. Yeah, I think so too. So he goes on to say the adoption of a clearly erroneous jury instruction that entails a high probability of failure of a prosecution, a failure the government could not then seek to remedy by appeal or otherwise, constitutes the kind of extraordinary situation in which

we are empowered to issue the writ of mandamus. Again, he's laying the foundation here right in front of her face saying like, here's where we're going if you go the wrong way on this. Yep. Rit of mandamus land. And when I first read this response, Andy, I read it as Jack Smith asking her to rule on whether she intended to use her misinterpretation of the PRA in the jury instructions at trial. But a lot of legal experts are saying though that Jack Smith was just asking her to rule on the Trump motion to dismiss the case based on the presidential records act. Cause you know, Trump filed a motion to dismiss based on the PRA.

And the reason I read it this way is because Smith says in his filing, quote, if the court wrongly concludes that it does and that it intends to include the PRA and the jury instructions, it must inform the parties of that decision well in advance of trial. And if she doesn't inform the parties of her intent to use the PRA and the jury instructions well in advance of trial, the government says that that would be the kind of extraordinary situation in which she could use a writ of mandamus. I want to bring that up and put a pin in it for when we talk about her ruling on Trump's motion to dismiss based on the PRA, because in my opinion, she did not do what Jack Smith

asked. She addressed it, but she didn't do what he asked. He specifically asked her to approve his jury instruction and to inform him well in advance of trial. How do you read it? Yeah, I think probably somewhere in between you and the folks whose analysis you're referencing, my read is like agreed. His first priority was deny the motion to dismiss, right? That's that's the issue that's Right square and the crosshairs on this thing. And so he wants that denied But I felt like he was also looking for a ruling that would essentially preclude Trump from using the PRA as a defensive trial there's language in his trial. There's language in his response and his filing that goes back to this idea that like there is no place for the PRA in this trial. He has not been charged under the PRA. PRA has no impact on

the Espionage Act or on the executive order that lays out the rules for handling highly classified national defense information. And therefore it's irrelevant. He shouldn't be able to use it at all. And that would, of course, also include obviating any need for a jury instruction on the PRA. So I think what he wanted was the swing for the fences for her to come out and say, motion denied and PRA is off limits for the trial. He definitely did not get that. But wouldn't it be more appropriate to ask to preclude the PRA as a defense in a motion and limine?

That would be the normal way it's done, but we've been backed into this abnormal position because of the crazy interact with these two flawed jury instruction demands. Right. Okay. Right? So yes, you're right. Yeah, it wouldn't have been an issue. He would have asked for it in motion to eliminate if she hadn't had them write up weird ass

jury instructions based on- That's exactly right. This whole thing is ass backwards because of her, the way she approached it by bringing up the nonsense of the jury instructions when it's like not done this way. Typically, there's part one of the pretrial conferences at one of the pretrial conferences, the defendant has to basically announce what defenses they're going to use. And you would then, conferences, the defendant has to basically announce what defenses they're going to use. And you would then, that would be a normal opportunity for the prosecutors to say, no, you should be precluded from referring to the PRA here because it's not relevant, blah, blah, and make all these arguments. And depending on how that goes, or if that doesn't happen

at all, they could make a motion in lemonade or raise those same issues. But we kind of are doing it backwards because it's Eileen Cannon land. Yeah. And I'm pretty sure Smith asked if Trump plans on using a defense of counsel, advice of counsel defense, we need to know that before trial. So that one you typically know before trial, but right before a trial. And what he moved his motion in that one was, hey, you should make him come, you know,

say yes or no on this particular defense because if he's gonna use it, there's a lot of work that we have to do. There's additional investigation that we have to do about the attorneys and the statements and all that stuff. And if you don't get that out of the way now, it could delay the trial. Novel concept. Here we are months and months delay. Yeah. Remember he did that in the election interference hush money case. He said, I'm

going to use an advice of counsel defense, but I don't want to have to testify and I don't want to have to, you know, waive attorney client privilege. And the judge was like, get GTFO. And that's the judge said. Denied. And that's the way most of these should be decided, right? Yeah. That's why you have hearings. You get them both in front of you. They argue and you issue an order from the bench. You don't even have to explain it if you don't want it. You just

say, motion denied, move on. They're not here. We're in cannon land. Yeah. Well, the special counsel's response continues on, right? I mean, they pretty much lays it out and twist the knife a little bit. Yes. They go on to say, as instructed by the court, the government below provides a clear and well-supported jury instruction for the elements of Section 793E.

The proposed instruction correctly instructs the jury that the element of unauthorized possession depends on the plain language of the statute. Executive Order 13526 and the executive order's implementing regulations, and it makes no mention of purported designations under the PRA. As required by the court's order, the government also provides proposed jury instructions that incorporate the inaccurate legal premise reflected in the court's order under scenario A and scenario B. Yeah. And that's a little bit of what I thought he would do. Like, you know, if I have to, here's your garbage.

You know? Totally. Yeah. And I think he put his own correct instruction up first because part of it, like, he kind of had to answer her question because she ordered them to do it. But you don't want to do it in any way that could possibly suggest that you agreed with it. So by putting his own preferred correct instruction in first, he's making an undeniable record that like this is what it should look like, not this nonsense you're pushing us towards.

Yeah. And not only that, but the way he titles the sections that she asked for and some of the verbiage he puts in those jury instructions based on a misinterpretation of the law. He makes very clear that he disagrees with all this and we'll go over that. But we do have to take a quick break. So everybody stick around. We'll be right back. Okay, we left off after the introduction of Jack Smith's response to Judge Eileen Cannon's order to compose jury instructions based on the PRA. In the next section, Jack Smith drives home the point that there's simply no way Trump

could have designated the classified documents as personal. Special counsel gives several reasons why. First, Trump's argument that the DOJ shouldn't have indicted him and should have just sued him to get the records back. Now Trump's concession that the Department of Justice may seek to recover such documents in a civil suit in which a court would be perfectly free to determine whether the particular contested record was personal or presidential. So, AG, what he's saying there is you've already proposed that this should have been done in a civil suit and the very nature of how a civil suit would determine that indicates that you understand

a court has the right to make the decision what's presidential and personal, not this unreviewable right of presidents. Right. Not you. Right. Okay. Second, they say Trump has never suggested that he in fact designated the documents at issue as personal.

In fact, the very notion that Trump could benefit from a purported designation under the PRA was invented long after he left the White House. This is what we were talking about at the top of the show. During its exhaustive investigation, the government interviewed Trump's own PRA representatives and numerous high-ranking officials from the White House, chiefs of staff, White House counsel, and senior members of the White House counsel's office, the national security advisor, and senior members of the national security counsel. Not a single one had heard Trump say that he was designating records as personal or that at the time he caused the transfer of boxes to Mar-a-Lago, he believed

that his removal of records amounted to designating them as personal under the PRA. To the contrary, every witness who has asked this question had never heard such a thing. During the nearly year-long back and forth with the National Archives, neither Trump nor any of his representatives suggested that Trump had designated all of the records as personal, either deliberately, implicitly, presumptively, or otherwise. To the contrary, everyone involved in this back and forth agreed that there were presidential records that had been taken to Mar-a-Lago that needed to be located and returned to NARA. Likewise, in his off-the-record interview with a writer and publicist on July 21st,

2021, Trump himself never suggested that the classified documents he revealed to them were personal or that he was free to do with them whatever he chose. Instead, he said they were highly confidential and remain classified. Trump released a public statement after returning boxes to NARA stating that, quote, the National Archives did not find anything. They were given upon request presidential records, not personal records. And, A.G., I feel like that's the most, to me, the most persuasive argument. He gave 15 boxes back. If this just- He called them presidential records.

Right. And now he's saying the fact that other people packed up his stuff and moved to Tamaralago constituted some sort of a proactive decision that they were all personal records, it was just entirely inconsistent with the way he himself acted and spoke about the records, including the fact that he returned some. Yeah, well, you and I have had this discussion based on his potential or possible defense that he declassified these records with his mind. Not that he designated them as personal,

but just declassified them. Right. Because when, you know, if he wouldn't have waived that document around at Bedminster with that ghostwriter saying that it was still classified, I can't declassify it now because I'm not the president. I could have declassified it when I was the president. Or we talked about the fact that, you know, pursuant to the subpoena issued in May of 2022, they actually returned several classified documents. Instead of saying, I declassified them.

Or personal. Or right, instead of saying, oh no, these are all my personal papers now, you're not entitled to them. Motion to quash the subpoena, right? No, none of that ever happened. Nope, nope. And in fact, it goes on here to say that it wasn't

until February of 2022, after a meeting between Team Trump and Judicial Watch, okay, that Trump started using the term personal records and using that argument cooked up by Tom Fitton. It says, February 10th, 2022, Trump released a statement claiming in part, quote, I have been told I was under no obligation to give the material based on various legal rulings that have been made over the years. Now he goes on to say, but even after February 2022, the discussions with the Judicial Watch president, Trump and his attorneys continued to acknowledge

that the classified records at issue in this case were presidential rather than personal. For example, in May of 2022, Trump's former attorney accepted service of a grand jury subpoena requiring Trump's office to produce any documents with classification markings. Trump did not seek to quash the subpoena or argue in any way that he did not have to comply because he designated any classified records as personal under the PRA. Instead, he hid most of those documents from his lawyer, made false statements to mask his continued possession of them, and attempted to enlist his lawyer in concealing or destroying the classified records.

Soterios Johnson Who enlists their lawyer to conceal and destroy their own personal records. Exactly. And also in a September 1st, 2022 hearing before this court, Trump's counsel repeatedly described the records at issue as presidential. Oops. And the implausibility of Trump's fiction was also readily apparent to the 11th Circuit, nudge nudge, wink wink, which also distinguished personal items like medical documents, correspondence related to taxes and accounting information, designated those from the highly classified documents at issue in this case. The court should reject Trump's post hoc legal invention and the PRA should play no role in this trial and the PRA should

play no role in this trial. Those are the two things that Smith is asking for. Exactly. Exactly. Okay. So now let's take a look at Jack Smith's proposed jury instructions. So first, as we said, he includes a jury instruction based on what the law actually says. What a novel concept. And of course, he was not asked to do that, but he does it anyway because this is him kind of setting the record straight. Yeah. And also sort of putting back like right back to back to each other so you can compare, easily compare and contrast how stupid what she was saying sounds. So he titled the section, government's proposed jury instruction. The jury is correctly instructed

that unauthorized possession is based on executive order 13-526, not on the PRA. He goes on to correctly define the law and the elements of the language, including willful retention, possession, need to know, national defense information, and unauthorized possession. And then he lays out the elements of Title 18, USC Section 793, and the executive order, not the PRA that governs it. Next, he complies with Judge Cannon's orders

for jury instructions based on the misinterpretation of the law, and he is not very subtle about it. Scenario A, the jury is incorrectly instructed that the defendant is authorized to possess any personal record, regardless of classification, and the jury is then asked to determine whether each document is personal or presidential. Any jury instructions premised

on the erroneous legal suppositions set forth in Scenario A would necessarily be deeply flawed. Scenario A posits that the jury would be instructed to determine as a factual matter whether the documents charged in counts 1 through 32 qualified as presidential or personal records as defined in the PRA. But that would be asking the jury to make a factual finding with no proper legal connection to the charges in this case because the PRA designation is irrelevant to the issue of authorization under section 793 and thus is not relevant to whether

Trump was authorized under executive order 13-5-26 to possess classified documents at Mar-a-Lago. The PRA does not speak to authorization to possess classified information, let alone in an unsecured facility. The government nonetheless sets forth below draft text for such an instruction as directed by the court, with the status of the documents as presidential or personal records being a question for the jury. And here goes their proposed crazy instruction. I instruct you, however, that as to a former president, even if he lacks a security clearance, lacks a need to know classified information, and stores information outside of a secure

facility, he is authorized to do so if the classified information is contained within a quote personal record. I love that. It's crazy time. I instruct you however. Yeah. Man. She must have a feeling when she read that.

A strong language too. And it, you know, I know it doesn't seem like it. It reminds me of way back in the day when I first had you on the Mueller She Wrote podcast and we talked about Robert Mueller actually writing a letter to Bill Barr. You called it going to paper with his dissatisfaction of the mischaracterization of his findings. And it seems like, you know, to the rest of us who might use strong language on an everyday basis, pretty, you know, sort of tame. But the fact that he wrote a letter at all was such a huge deal. Massive. Yeah. And it's still done within the kind of accepted norms of professional language and in this case, legal

ease. But when you can see these moments of like real stridency kind of comes out in the language, it's like, Oh, it's kind of a little bit shocking. That's certainly my impression here. Yeah, same. He goes on to say, this is Jack Smith, scenario B, the jury is incorrectly instructed that the defendant is authorized to possess any record that he designated as personal and is further incorrectly instructed that by failing to transfer the charge documents to the National Archives, the defendant made the unreviewable decision to designate the charged documents as personal. And throwing the word unreviewable in there is another little turn of the knife,

right? Totally. When you get to the end of this instruction, it's remarkable. The absurdity of it is undeniable. It's basically like, well, the case is over. Aittal. What the instruction, if you put yourself in the seat of a juror and then listen to this instruction and you'd be like, well, I don't really have anything to do then. Yeah. And he goes on in this scenario. And scenario B was a little more out there than scenario A. They were both incorrect. But scenario B was a little more out there than scenario A. They were both incorrect. Yeah. But scenario B was, woo.

And so he says, like scenario A, proposed scenario B rests on the erroneous and unsupported legal proposition that the designation of records as either personal or presidential under the PRA has an impact on whether a person is authorized to possess classified documents under section 793E. It has no such impact, but Scenario B also incorporates additional layers of erroneous legal propositions at the core of Trump's legally flawed and factually unsupported PRA defense. Whosh. As to this scenario, the jury instruction would amount to nothing more than a recitation of Trump's PRA defense as

presented in his motion to dismiss and would result in directing a verdict against the government. As set forth above, the court should deny Trump's motion to dismiss and reject any such jury instruction. Nevertheless, as directed by the court, the government sets forth below a draft jury instruction. For the reasons set," and then he goes into it and he does the same thing again where he's like, he says, I instruct you even though Trump lacks a security clearance, has no need to know basis, stores information in the shitter, even all that, he's authorized to do it. But then he concludes with this. He said, for the reasons set forth above and in the government's opposition to Trump's motion to dismiss based on the PRA, the court

should reject the legal premise that the PRA's distinction between personal and presidential records has any bearing on the element of unauthorized possession under Section 793e. As such, it should deny Trump's pending motion to dismiss and adopt preliminary jury instructions as proposed by the government above. If, however, the court does not reject that erroneous legal premise, it should make that decision clear now, long before jeopardy attaches, to allow the government the opportunity to seek appellate review. So that's, I mean, just all of the, you know, insertions of the words like, okay, the jury is incorrectly instructed to, you know, and, you know, all of the stuff about, all right,

Trump is allowed, even though he doesn't have this, even though he doesn't have that, even though the law says this, he's allowed to do this. It's pretty in your face. It is very in your face. And part of it is just a legal necessity, right? She's asking you to do something

that you believe is contrary to the law. You have to keep pointing out, this is contrary to the law, this is contrary to the law. Cause you don't want any chance that the judge could come back later and say, well, you know, you kind of went along with this premise and you submitted those. That's why I thought he wouldn't do it. That's why I thought he'd be like, I'm not going to write those. But he did because she ordered him to.

So it's a little bit good tactics, you know, making it very clear which side you're on here and what your position is. But it's also an effort to push her in one direction. They're trying, they're, who knows? I don't want to, I don't want to say what's in their heads, but it's possible that, you know, in all they're filing so far, just arguing the law is not persuasive enough to this judge. I think they're think they're intentionally kind of reminding her that she's got some skin in this game, that the direction this is headed, if she goes down this crazy path

and formally accepts Trump's theory of the PRA defense and is already like building jury instructions about it, this is gonna land in the 11th Circuit one way or another, and she's going to get slammed down again. Probably something she didn't like the first time. Yeah, and probably with Arita Mandemus in tow. Yeah, yeah, exactly. Now, Trump responded to Cannon's order too,

and pretty much typically as we expected him to, right? Yeah, yeah. So his response to Judge Cannon's jury instruction on March 18th was of course due the same day that Jack Smith was. And he even argues that if Judge Cannon really feels this way about the PRA, she should dismiss the case. And you know what? He's right. That's pointing out the obvious. Like, Jack raises the same issue. Like, if you do this, you're basically deciding the case. And, you know, for the opposite reason, Trump is now saying the same thing. If you believe in my insane theory, you should just dismiss the case outright

now. Interestingly, Judge Cannon ruled on Trump's motion to dismiss based on the Presidential Records Act two days later. And we're going to go over that ruling after this quick break. So stick around. Hey everybody, welcome back. All right. Let's pivot to Judge Cannon's ruling on Trump's motion to dismiss the entire case based on the Presidential Records Act, which is what I think is only part of what Jack Smith was asking for in his response to her jury instruction order. Probably the main thing that he was asking for,

but like one part of it, because I think you're right about that. This is another ruling that seems like a win at first for the government, but kind of isn't. Like remember when she denied Trump's motion to dismiss based on unconstitutional vagueness of the Espionage Act, but then she did that without prejudice? Yeah, this is a lot like that. It's a win, but it leaves massive holes, raises massive questions for what happens next. Leaves a big door open, right? So Trump's motion, quote, seeks dismissal of counts one through 32.

This is from her ruling, by the way. Seeks dismissal of counts one through 32 of the superseding indictment based on the Presidential Records Act. Those counts charge defendant Trump with willfully retaining and failing to deliver documents containing national defense information. And she puts in parentheses, without transmission, communication or delivery, the motion also seeks derivative dismissal of the remaining counts. Basically, like if you dismiss counts one through 32, the rest of the counts don't matter. Correct.

As she says, the motion is denied. Bound by the four corners of the superseding indictment, counts 1 through 32 track the statutory language and essential elements of the charged portion of 793E, making it illegal to have unauthorized possession of any document relating to the national defense and willfully retaining the same and failing any document relating to the National Defense and willfully retaining the same and failing to deliver it to the officer or employee of the United States entitled to receive it. Those same counts make no reference to the Presidential Records Act, nor do they rely on that statute for purposes of stating an offense. So that seems to answer Jack Smith's request in part. You'll recall

Jack Smith said she should deny Trump's pending motion to dismiss and you should adopt preliminary jury instructions proposed by me, the right ones. But as for the second thing, that she should preclude using the PRA argument and jury instructions, she doesn't really go there. She says, for these reasons, accepting the allegations of the superseding indictment as true, the Presidential Records Act does not provide a pretrial basis to dismiss. And it's her use of pretrial here, which is what a 12b2, 12b6 motion is. But it leads me to believe that she, that this can be raised again later. Meaning she's kind of deferring it. And I believe Jack Smith said if she defers

the question, he could seek a writ of mandamus. But I think what he's saying is he could seek a writ of mandamus when she brings it up again, if she brings it up again. Not necessarily now. Right. I don't think he's committed to doing it immediately. Yeah. And Jack Smith said in his filing, the question of whether the PRA has an impact on the element of unauthorized possession under 793E does not turn on any evidentiary issue and it cannot be deferred. So what he's saying here is like there's stuff that can be deferred until trial because evidence could come up, witness testimony could come up. But he's saying the heart of this law doesn't turn on any evidentiary issue. So

you can't defer this. This is purely a question of law. And it is appropriately before the judge, the judge makes decisions on questions of law. And this is one that the judge. The judge makes decisions on questions of law. And this is one that should be made now to clean up, could get it off the radar and out of the mess. Before double jeopardy attaches. Of course. And that's exactly what he says. It's purely a question of law that must be decided promptly. And it's weird because, you know, juries are the finder of fact, the judge is the finder of law, right, determines what the law is. She's refusing here to determine,

the only thing she's determined is that it can't be dismissed based on the PRA pre-trial. That's the only thing she's determined here. Yeah, that's right. And that's a very, a very narrow standard, right? 12, the 12B motion, basically you go back to the indictment, you look at it, and if the prosecution has alleged an offense, has adequately alleged offense, meaning provided evidence and made allegations for each element of the offense, then the 12B motion fails. And that's what she's saying happened here. It's not really the same as the unconstitutional vagueness issue because this is a much, like I said, a 12B is by definition a pretrial

motion. So she's denying it. The 12B motion is absolutely denied with prejudice, but using the PRA as a defense has not been ruled out. And that's, I think, what we were talking about before. That's the bigger swing that I think Jack was hoping for, but definitely didn't get it. Right. And she even specified she's not going to rule on that. Yeah, that's right. She says further in the order, separately, to the extent the special counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and

evidence, the court declines that demand as unprecedented and unjust. This part really gets me because I feel like she is misrepresenting what Jack Smith asked for. He didn't ask for an anticipatory finalization of jury instructions. Right. We're only talking about jury instructions. He just said keep the PRA out of your mouth. Yeah, we're only talking about jury instructions

because she brought it up at this awkward and inappropriate time. Yeah, right? Like how can you be like, why are you telling me I have to rule on jury instructions? Why are you asking me to write them? Exactly. He didn't say we want you to... This whole thing didn't start by Jack Smith filing a motion saying I want you to commit to final jury instructions. And here's what they are. It started

because she said, I want you to write these unlawful jury instructions or interact with these scenarios. Right, right. It's bizarre. It's what she goes into next. I have a hard time like even characterizing this. To me, it's just like a really weak explanation of her order on March 18th. The one where she asked for jury instructions? Yeah.

She's like, yeah, she tries to, yeah, she tries to say why she did it. She tries to explain it. Like she's, this is not something that federal judges do. They don't explain themselves. They don't put themselves out for you. They don't, they don't have to justify themselves, right? But she, that's what she's doing here. She says the court's order soliciting preliminary draft instructions on certain counts

should not be misconstrued as declaring a final definition on any essential element or asserted defense in the case, nor should it be interpreted as anything other than what it was, a genuine attempt in the context of the upcoming trial to better understand the party's competing positions and the questions to be submitted to the jury in this complex case of first impression.

As always, any party remains free to avail itself of whatever repellent options it sees fit to invoke as permitted by law. Well, first of all, neither scenario A or B represented the special counsel's position on anything. So this is not some like academic, I want to see what you think in your competing positions on these jury instructions.

Yeah, I was real confused about your unclear position on what's going on in this case. Could you please clarify by answering these two inexplicable and completely wrong scenarios for me? Pretend I'm a unicorn. How would you ride me? What are we talking about? That's not part of this case. Peori is not a defense here. Why are we talking about jury instructions? The whole thing doesn't make any sense. But what she's done with this piece of her order is like, try to re-characterize what actually happens, like revisionist history. Right. I wasn't trying to develop jury instructions.

I was simply trying to understand what you thought about my complete misinterpretation of the law. Well, she found that out. I told her. Yeah. Deal. Oh, yeah. But it seems that Jack Smith is saying he could seek mandamus relief later if she issues

weird jury instructions, like during trial. As he says, courts have permitted the government to obtain writs of mandamus when a proposed criminal jury instruction clearly violated the law, risked prejudicing the government at trial with jeopardy attached, and provided the government no other avenue of appeal. So it seems to me like what he's saying here is dismiss the PRA and adopt my jury instruction. Otherwise, if we get to trial and you try to bring this up again, I am going to take it to the 11th Circuit

with a written mandamus. Yeah. Now, he also seems to say that he would seek appellate review ahead of trial if she indicated she'd adopt the wrong jury instructions before we go to trial. Because he says, if the court intends to include the PRA in the jury instructions regarding what is authorized

under Section 793, it must inform the parties of that decision in advance of trial. So if you're going to use this in the jury instructions, we need to know before you seat a jury. The government must have the opportunity to consider appellate review, not mandamus, just appellate review before jeopardy attaches. If it's after jeopardy attaches, that's when mandamus is appropriate. Beforehand, let me know, I'll just do a regular old appeal with the 11th Circuit and we can laugh about it. Exactly. But she seems to wiggle out of both here by refusing to decide on the jury instruction

but dismissing the PRA pre-trial. She seems to leave the door open. Do I have this right? Does her ruling here preclude her from issuing whack jury instructions that would assume Trump's removal of documents automatically designate them as personal? Not at all. Okay. Not at all. This could absolutely come back. And I think that's what you're seeing the special counsel team refer to here.

You know, for my money, I think maybe the best course for them is to now go forward with the motion in limine. File a motion in limine, tee it up to have any defense based on the PRA excluded from trial and force her to rule on that. Because that's appealable. She dodged it completely with this order, denying the motion to dismiss, dodged that issue entirely. So rather than fighting over the- Yeah, I guess what I don't understand, I'm sorry to interrupt, but I guess what I don't

understand is why she had to get all weird about it and try to explain herself. Why didn't she say, hey, if you don't want him to use the PRA as a defense, the appropriate venue is a Motion and Luminae, and we'll see you at the Motion and Luminae. That would have been a logical thing to do. That's basically what a experienced, well, an experienced, confident federal judge would never have found themselves in this situation at all. But let's say they did, that's what they would be, they would basically call the prosecutor's bluff and be like, yeah, that's what you, you should file a motion and I'll decide it. And that's, I think, what they should do now.

Right. Because Jack Smith wouldn't have brought this up on his own. He was only responding to her weird jury instructions. He wouldn't have called for her to say whether or not she's going to bring the PRA into this before he filed a motion in limine. He would have brought it up in a motion in limine. He only is bringing it up at this point before emotion and limine because she forced him to write some jury instructions based on a misinterpretation of the law. It's a really good point. You can't overstate how the impact that teeing this thing up in the way that she did has totally distorted the issue and how an issue like this would normally get resolved pre-trial.

So I feel like that's maybe what they should do here is reload this into normal order, file a motion in limine asking her to exclude that defense, exclude the PR. I mean, just different ways you could do it, but that would at least give them a shot to resolve this pre-trial, pre-jury selection. And then if that doesn't go their way, they could appeal it. If that doesn't work, then you still have writamandamus options at the jury instruction point in the trial. But that's not the best way to, you don't want to rely on that. The standard for the writ of mandamus is super high. So that's a pretty risky bargain.

Yeah. But I mean, you know, he's warned her. But assuming that this gets sorted out in a motion in limine that if she denies, will be appealed and then would be settled, you wouldn't have to rely on that writ of mandamus during trial because he would be precluded by the 11th circuit from arguing PRA. So that is what I think is going to happen here. I don't think he's going to go to the 11th circuit right now. I don't think he's going to ask for recusal. I don't think he's going to appeal the fact that she didn't rule on jury instructions or seek a writ of mandamus at this point. I'm with you. I think he's

going to continue forward. He's going to ask to preclude the PRA and emotion and limine. If she denies it, then he will appeal and see if he can get the PRA argument thrown out before double jeopardy attaches so that he won't have to bring a writ of mandamus during trial based on a misinterpretative jury instruction. That's what I think we're looking at. I think that's the smart move. I mean, there may be aspects of this that actual federal prosecutor trial lawyers, not like lawyer FBI agents like me would know. So that's kind of my cheap seats perspective on it. But we'll see.

That's my extra cheap seats perspective on it. I never even worked for the FBI. I don't even have a JD. That's just- You do pretty good. You fake it really well. Those dumbsmabeans, as I like to say. All right. We have one more quick story to get to, and of course, listener questions, but we have to take one last quick break. Everybody stick around. We'll be right back. Welcome back. Okay. So we have one more quick story and then we'll get to listener questions. But before that, there's one weird thing kind of left hanging by, by down in Florida this week. And That's the fact that Judge Cannon has now

asked Trump to submit a speedy trial report. What? Yeah. Again, so I guess we're to the point where we should stop being surprised by these, let's just call it non-traditional things that are happening in this case. But yes, Judge Cannon has asked the Trump team to submit a speedy trial report. This is of course periodically, judges ask for these almost always from the prosecutors and the prosecutors have to basically toll the number of days that count against the speedy trial computation, right? Because a

lot of days don't count if they're a filed that have to be, you know, decided that like stops the clock. So in any case... Right, and right now the whole clock is stopped. Yes. That's why this is a very kind of the court administrivia sort of thing that they always rely on. It's a burden to have to figure this out and the government typically carries that. But here, all of a sudden, Judge Kennedy has asked Trump to do it. Now, Andrew Weissman suggests that she may use it to show how she has complied with the act's timelines and not been sluggish. Maybe he's presupposing that she's expecting to get a very positive report from the Trump team who's probably super happy with as slow as things have been going.

But it's also possible that if Jack Smith ends up going to the 11th circuit at some point, she might be able to use this maybe more favorable report from the Trump team as a response. But who knows? It's another kind of strange decision by this judge. Yeah, it's weird. Well, we'll keep an eye on it. Very strange Okay, so the last piece of news we wanted to cover And this has to do with Trump's extra judicial statements attacking judges prosecutors and their families Now you'll notice that despite judge cannon denying Trump's motion to dismiss the case based on Presidential Records Act, he didn't go after her on social media. In fact, quite the opposite.

He posted this week on Truth Social, deranged special counsel Jack Smith, who has a long record of failure as a prosecutor, including a unanimous decision against him in the US Supreme Court, should be sanctioned or censured for the way he is attacking a highly respected judge, Eileen Cannon. Wow, that's interesting. This is like the first time I've seen him not go after a judge for denying one of his motions. And by the way, a Jack Smith has a 98% conviction rate.

Just throwing that out there for you. Yeah. a Jack Smith has a 98% conviction rate. Just throwing that out there for you. Yeah, and like the utter hypocrisy of this man who's now subject to gag orders, and not one, not two, but three cases in the last couple of months, he's ranting and raving about demanding somebody be censured for the way they attack a judge. I mean, he attacks these other judges every day.

I know. And this week, the American College of Trial Lawyers wrote a letter about this, condemning his attacks on judges, all but the one and prosecutors too. They say the American College of Trial Lawyers acting through its Board of Regents and Executive Committee condemns the recent vitriolic statements made by former President Trump attacking the character, integrity and sanity of Regents and Executive Committee, condemns the recent vitriolic statements made by former President Trump attacking the character, integrity, and sanity of the judges and prosecutors handling the cases against him with accusations that they are sick,

deranged, evil, corrupt, and crooked. Attacks like these are dangerous because they risk provoking violence against judges, prosecutors, and their families. They also undermine the public's trust in the rule of law and threaten the independence of the judiciary because they are intimidating. And we just had Andy, another act of violence from a Trump supporter with the gentleman

who rammed his car into the entry barrier of the FBI headquarters in Atlanta. In Atlanta, sure, the field office. The field office in Atlanta. In Atlanta, sure, the field office. The field office in Atlanta. And they, you know, just a quick little online search of his social media, anti-vax, pro-Trump, you know, MAGA stuff, QAnon. And it's- Same as the guy who did the same thing in Cincinnati, right?

And Tennessee, I think, too. Yeah. So it's a real thing. It's not just like people like me going on television and talking about it might happen. It is actually happening. This is not theoretical. Yeah. And the lawyers say, we recognize, of course, the former president's right to engage in

political speech, but speech that is intended or appears intended to provoke violence or to intimidate those engaged in public service, such as judges and prosecutors, has no place in our system and puts our very democracy at risk. It should be universally condemned." And then they go on to say, we call upon all lawyers and their professional organizations to rededicate themselves to preserving a fair and impartial court system and to protecting the independence and safety of our judges. Our obligation as lawyers to our system of justice and to those who serve on the bench demand no less of us." So that is the letter they submitted.

Yeah. I mean, they're right, right? And this dovetails nicely with the comments that Judge Reggie Walton made here in DC, I think last week or the beginning of this week. They mentioned him in their letter too. I only read a little part of it there. Yeah, so I think anyone who's worked in the system understands how volatile the situation is that we're currently in. And well, look, I mean, we know that Trump's

most extreme supporters respond to the things that he says, right? Caesar Sayoc, Ricky Schifrin, this guy in Atlanta last week, or how about the thousands of people who showed up to attack the Capitol on January 6th? So many of them have testified in court now saying like, well, I came because he told us to come. So, yeah, it's a real thing. Yeah, it definitely is.

All right, let's hit some listener questions. If you have questions, we have a link in the show notes that you can follow to fill out a form and send us your inquiries. We have some great questions this week. We got a bunch on Judge Cannon that's appropriate. Oh my gosh, it's all Canada all the time this week, which is like spot on.

Well done, Jack audience once again. So kind of like batching them really into these two. So the first one comes from Mickey who says, thanks for your never to be missed podcast regarding Canon's recent crazy rulings. Could Jack drop the case in Florida and refile in DC? Would it even be possible? So thank you, Mickey. And thanks to the many other listeners who wrote in, basically asking the same question. The answer is basically no. Once the case has been indicted, it is then before the court. And if a prosecution decides for some reason they want to drop the case, technically they have to get leave of court to dismiss the charges. That's leave means

like the permission of the court. So many of you will remember this was a controversial thing in the last administration when at the 11th hour, the William Barr Justice Department tried to dismiss the charges against Mike Flynn. And they just, they took the position that we're allowed to just dismiss the charges at whatever point we want. That's like part of our prosecutorial authority. And the court said, I'm not so sure. I think you need my permission to drop it. And he then brought in a very distinguished former federal judge, John Gleason, to write an amicus brief addressing this issue of the necessity of leave of court. Of course, the whole thing was kind of wiped away because ultimately they just pardoned Flynn. And I don't think it was ever decided. I could be wrong on that, but I don't think that case

ever went to a resolution. But that would be the same thing here. The court would have to agree. Typically courts only agree to do that when like the prosecution comes forward and says, hey, we found some piece of evidence that exonerates the person that we've charged and therefore we want to dismiss the charges. The court will always grant leave in a situation like that. Here, when it's just naked trial tactics, we want to go find a judge who's better in a city where we have better jury prospects or whatever. They would not dismiss that case without prejudice, which is what you would need to be able to bring it somewhere else.

Yeah. And say this case even goes all the way through. I mean, if he wanted to dismiss this and go somewhere else, let's say that the thing about the leave of court wasn't even an issue, but he would then probably have to reformulate the charges in order to bring them in a different jurisdiction. Because as he has explained multiple times, the reason that this is in this jurisdiction is because of the laws that he violated, 793E, willful retention, not theft of. Right. Right? Willful retention.

He didn't willfully retain these things and obstruct justice until he was in Florida. All of this happened post presidency. That's also Jack Smith's argument in why immunity, presidential immunity, isn't even something that should be entertained here. Because all of this happened after he was president, when he got to Mar-a-Lago. And that's kind of what makes this jurisdiction proper. It's exactly what makes this jurisdiction proper. If he wanted to take it somewhere else, he would have to reformulate the charges to mishandling or theft of classified documents, different charges than what's brought here, I think. And that's- Yeah. There's also the factor of that's where Trump lives and there's a constitutional

right to be charged where you live, especially when the crime happened there, which is the position they've taken. There's also, you know, there's a kind of a legal prohibition on when a crime comes from the same conduct, it has to be charged like altogether, one place, one time. You can't like charge a little bit of it here and then a little bit of it someplace else if it's all kind of stemming from the same activity. So that's why if they tried to bring the case in Bedminster over documents that were found in Bedminster, now we don't know about any documents from Bedminster, so this is all theoretical. Trump would probably come in and say, hey, they already brought this someplace else,

same conduct, same charges, it should have all been brought together. And that would very likely be a successful argument against that case. So it's just not something that's a realistic possibility. The only thing that's interesting is that none of these charges have anything to do with transmitting classified information. Yeah. I think they just don't have the evidence for it, right? You have to have like a recipient or you have to really be able to show the transfer under something to have it.

Yeah. And I think there has to be intent to harm the United States or something like that. So I don't think the Bedminster waving it around to a ghostwriter meets that standard. But it might be something that we read about in the report for declination decisions. Yeah. I'm sure they'll address all this stuff in the report. Why he declined to indict on the transmission. Yeah. All right. One final, very quick one. This comes to us from Rob in the UK. And of course he says, hi to the beautiful and very clever hosts. Thank you, Rob. Your toll has been paid. You might proceed. He goes on to say, if by some miracle the trial concludes and Trump is found guilty, if Cannon is a bad actor, what's to stop her simply giving him a small fine and saying, on your way, Mr. President?

Well, nothing. There's nothing to stop that. Yeah. I mean, that could happen. I think it's, you know, the government could appeal a sentence they felt was inappropriate, but those appeals are very tough to succeed on. Now, Garland has filed notice to appeal the sentences of the oath keepers and the Proud Boys, but we have yet to see those appeals. So it'll be interesting when we do, but it is very rare. Although I could see it happening here. Why not?

If she comes back and says, probation, community service, $10,000 fine. I can definitely see Merrick Garland or whoever the attorney general might be at that point or Jack Smith appealing that sentence. Yeah. It'd be tough because the uniqueness of this case would be a hard thing to argue around. And like the appeal and the oath keepers, they would likely, we haven't seen it yet, but it's likely they would use like a comparative analysis, say, oh, all these people who did far less than the organizers, the insurrectionists, they received sentences of this much, that means you should have given these higher, more culpable people so much more. Here, this is such a unicorn of a case. There's nothing to compare it to. It's never been another similar case against an ex-president.

It's got all kinds of- But they also could argue, it doesn't matter that he's the ex-president. He violated 793E and here's how we treated all them. Yep. Yep. Here's what Jack Deshara got. Here's what reality- He transmitted though.

I don't think he's similarly situated. No, they're all unique, but I think that'd be a tough, it'd be a tough appeal, but we'll see. I think it would be made. I do think it would be made. I don't know that it would be successful, but I would make it. I would Jack Smith. I'm sure you would. No reason not to, you know, it's not like he's probably just going to go back to the Hague after this. It's not like he's got to make friends in this 11th circuit.

All right. He's going to move somewhere and just ride his bike forever. Dude. That's what I would do, honestly. All right. Thank you so much everybody. And thank you for your questions. Again, there'll be a link in the show notes to submit your questions.

We hope you had a wonderful weekend. If you're a patron and you're listening to this on Saturday, because the patrons of this show get this show a day early. Thank you and we hope you enjoy the rest of your weekend. Do you have any final thoughts before we get out of here, my friend? No, I didn't see this crossfire coming this week and so I'm just, as always, imagining what crazy stuff we're going to have to talk about next week. In any case, either way, we'll be here to do it. So I look forward

to it. Yeah. And I also look forward to seeing our patrons on April 20th at our MSW meetup gala. I know Andy, you'll be there for that along with Pete Strzok, Glenn Kirschner, maybe Harry Dunn unless he's out on the road, Danny Hodges. We're going to have a really fun time. Charlotte Clymer is going to join us. And then don't forget, tickets are now on sale. They just went on sale to the public for the Hamilton Theater in DC in August, August 16th. Andy, it's me, you, Pete Strzok and Glenn Kirschner. We're doing a live show and those tickets are probably going to sell out. So you're going to want to grab them. You can get all of those tickets,

by the way, at allisongill.com if you need to. Excellent. I appreciate you. Thank you so much, my friend. I will see you. Well, you know, I'm sure we'll be texting as the week goes by to see what sort of things unfold because we are still waiting for, and maybe we'll get it this week, but maybe not, a decision on whether or not she's going to reconsider releasing those witness lists as part of the motion to compel. Yeah. Or how about a trial date? It's been a month since they argued it.

Whatever. But that would definitely be appealable if she decided to release those witness lists. So we'll see. Awesome. All right, everybody. See you next week. I've been Alison Gill. And I'm Andy McKay.