OA651: Special Counsel Jack Smith is Bad News for Trump

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:16 Thomas: Hello and welcome to Opening Arguments. This is episode 651, and boy, those episode numbers may start to accelerate, Andrew. They may start to accelerate into outer space, because of, I'm Thomas Smith. I don't know what I do here, but Andrew is the lawyer. How's it going, Andrew?

0:01:33 Andrew: It's going well. This is our Thanksgiving broadcast. So, you hopefully you're having a nice Thanksgiving. And I'm having the first Thanksgiving without my son at home, which is just, you know, no no no, it's it's going to be fine. But you know like, Thanksgiving's always been a happy, holiday for me. I don't have, Trump you supporting relatives at home. So, you but for a lot of folks, this is a rough time. So you we just want you to know we see we you and this is part of why we do the show over the holidays.

0:01:37 Thomas: Yeah. Aww. Way to bum us all out and make us feel guilty for for having her that. No, I'm just kidding. Yeah.

0:02:04 Thomas: And, Oh, uh, if you don't mind, Andrew, we did do a, um, special Dear Old Dads for Thanksgiving, kind of on the topic of crap family and also Thanksgiving stuff. So if you find yourself definitely listen to, you know, you're listening to this first, listen to OA first. If you find herself needing another podcast along those, uh. Family lines. Cause you're, don' you're not, you to suffer through it. Trump or, you know, LGBT-hating family or something, feel free to pop in Dear Old Dads. We talk a lot about that.

0:02:10 Andrew: Yeah? Oh nice. I love Dear Old Dads.

0:02:32 Thomas: Well, thank you. And hopefully, Know, maybe you're baking. I know I'm going to be doing some baking while I'm listening to my favorite podcast. So, you however we find you, I hope you're having a good time and the turkey's not on fire. Now, Andrew, this is, I guess officially, even though it's not this week, This is the first batch of our new format, and that's exciting. Do you want to tell listeners what that's going to mean for them going forward?

0:02:38 Andrew: Yeah it means that you're going to get in the main feed the T3BE question on Monday, and we're going to do the answer on Wednesday. So this will be the first kind of main sequence rapid response Friday where we don't give out the T4BE question. Don't be alarmed. We're still doing it. I still love it. It's still the segment that I talk about the most when I talk to other lawyers. Years, we, and just got it, was super lovely. Like, two separate folks who sent us just really nice messages about, uh, writing a school paper or passing the bar or whatever.

0:03:16 Thomas: Yeah.

0:03:31 Thomas: We get those from time to time. It is the best. There's nothing better. And we'll say it again. If you passed the bar and, you know, maybe it was a little OA helped or inspired, please contact us. Send us an email. Post in the Facebook group. We love it. That's our favorite thing. And so I we get to now do a full on these shows on the Friday rapid response and on the, the on deep dive. We're just focused on content, and we're just focussed on the news, the breakdown, whatever it is. And we're going to move the T3B and the patron thanks, as you referenced, to a smaller set of two episodes that will also have a major story and a breakdown. It's going to be perfect. I love this format.

It means there's something on all these episodes. And it seemed like there was some confusion. This is for everybody. This isn't just a patron thing. We the emphasize patrons because, you know, they don't have to listen to ads. But this is for anybody. Everybody's going to get this. Oh, and also, in case it wasn't clear, extra two the episodes, they're not going to be a full, hour-long you OA. But You're not getting four full OA deep dives a week. Andrew would have to not only close his law firm, but probably clone himself.

0:03:34 Andrew: Yeah. Absolutely.

0:04:33 Thomas: And we're not sure on the cloning process yet. Last time it was pretty ugly. Cloned Andrew came out an originalist. So it just doesn't work. He looked fine. Actually, genetically, everything was fine. But he really was, bad jurisprudentially. So we can't, the clone machine doesn't work yet.

0:04:48 Andrew: You. It was the Michael Keaton movie, Multiplicity, right? Or The.

0:04:50 Thomas: But yeah, instead but of the image of him getting like worse and worse, it's just your jurisprUDence though. And we can, we can have that.

0:04:56 Andrew: Yeah. My understanding of the law gets worse with every copy.

0:05:00 Thomas: We ask clone Andrew, like, Hey, how do we evaluate this case? And the first thing out of clone Andrew's mouth was, well, what did the founding father? And then we just incinerate her just right away. Didn't even want to go down that path. So anyway, that's going to be really exciting. Uh, that's what you have in store for you kind of next week, but you'll hear it today because today it's all episode, baby. It's all content.

0:05:13 Andrew: Oh. And As kind of a sneak peek, Monday's episode, we are going to talk about the developments in the various Alex Jones cases in Texas and Connecticut. Connecticut, the Texas judge just the other day upheld the full 45 million dollar Punitive damage award, yeah, despite the Cap, so we're to explain why. And in Connecticut, the independent sanctions council has filed their recommendations with respect to Alex Jones's lawyers. So if you can't get enough Alex Jones misery in your life, and really who can, you're going going to want to be here for, Monday's show.

0:05:38 Thomas: So Full. Love it.

0:05:59 Thomas: Need that deep. I can't wait for that deep dive because that's good news. So I'm going to needs an explanation. I need to know how that happened. In this day and age, Andrew, you have some explaining to do. How did a good thing happen? So looking forward to that episode.

0:06:03 Andrew: That's

0:06:10 Clip: Treason is treason.

0:06:15 Thomas: Right, Andrew, and this is the news I think a lot of people have been waiting to hear your opinion on, uh, special counsel Jack Smith, which feels like a generically named Character in a Michael Crichton book, or Something. Oh.

0:06:24 Andrew: So Says Thomas Smith, you know.

0:06:28 Thomas: Exactly, I'm definitely a generally named character, Michael Crighton book. I just hope I'm like one of the better characters, but probably not. I'll be honest, I'm probably, I'm some analyst that's going to die early on. But anyway, what's going on with this? It's interesting because someone asked, I think, a Q&A question about this, and right before it happened, and you commented on it. So tell us what's gone on with the special counsel.

0:06:48 Andrew: Here's, where I've landed, and, okay, ultimately, uh, my first reaction action was, I think, very much like what a lot of listeners were going to have, which was, oh, OK, this means that the DOJ is not prepared to hand down an indictment of Donald Trump for at least another four to six months. And if you were thinking that that might come before 2023, as I was, right, optimistically, you can't help but be naturally sort of, oh. Well, I guess they're moving more cautiously, more slowly in a department where we have criticized the speed or at least felt some frustration about The wheels of justice churning slowly.

So do I get that. We have drawn lines in the sand for Merrick Garland before, for, notwithstanding a couple of folks who continue to hold the bizarre, misguided belief that he's a secret undercover member of the Federalist Society or something stupid like that, is absolutely what I should have expected and should have prepared you for from the very beginning. And the way to think about it. Yeah, because that there is no way that this Department of Justice was going to take president who appointed the attorney general, Merrick Garland, and then have that handpicked attorney. Joe Biden

0:07:06 Thomas: Yeah. Yeah? Hmm. Really? Mm-hmm.

0:08:08 Andrew: Got the person he wanted who can hire and fire at his pleasure. And there was no way that that person was then going to indict that president's likely political opponent in 2024. You have to put a layer of insulation in between you and that decision that has obvious political consequences. And and look, I know the other side wouldn't. And that's part of what's frustrating. But let me explain, because this is not something I do talk about. This might overlap a tiny bit with what we talked about on cleanup on our fighter five.

0:08:10 Thomas: Yeah, yeah. Since we're recording early, I haven't heard it. Normally, I know what you talk about. That.

0:08:45 Andrew: But and since I have both sets of notes, I can give you deeper dive stuff here. So that we didn't quite talk about some. Not everybody listens to both shows, although you should. So, You know, I'll repeat a little bit, but there's gonna be a lot of new stuff here. The biggest thing to know is that this is a real layer of insulation. Okay. And that is there is no longer an independent counsel statute. The reason that, you like Robert Mueller, for example, was referred to as special counsel. Jack Smith will be referred to a special counsel comes from 28 USC 510. And this is a delegation decision that that law, that statute just says the attorney general may from time to time make such provisions as he considers appropriate, authorizing the performance by any other officer, employee or agency at the Department of Justice of any function of the attorney general. Okay, so think about this exactly the way you would, uh, Congress delegating authority to an executive branch to make decisions, right, an executive branch agency to make administrative decisions.

0:08:54 Thomas: Absolutely.

0:09:45 Thomas: Or I was thinking like, what if he just designated a special counsel to do all the parts of the job he didn't like? Hey, fill out my time cards and expense reports. Special. I mean, the language said he could do whatever he needs to do.

0:09:51 Andrew: Could.

0:09:59 Thomas: Can you tidy up around here, special counsel? And then he has to like testify about it. Yeah, his office was quite messy and I cleaned it up. That was my entire job.

0:09:58 Andrew: Absolutely. So, He leaves the top cabinet drawer unlocked. And then the implementing regulations, right, are at 28 CFR part 600 et seq. And 28 CFRA 600.7 gives you, it's four sub points, but they're really three independent checks here. So, once you name a special counsel and you delegate authority to that person, these are the things that must happen. Subsection A, special counsel shall comply with the rules, regulations, procedures, practices, and policies of the Department of Justice. Okay, well, we expect that. B, the special counsel should not be subject to the day-to-day supervision of any official of the department. In other words, they work independently, independently. And then it says, however, the attorney general may request the special council provide an explanation for any investigative or prosecutorial step, right, that means, uh, a decision to indict or not to indict, and may, after review, conclude that the action is so inappropriate or unwarranted under established departmental practices that it should not be pursued.

In conducting that review, the attorney general will give great weight to the views of the special. If the attorney general concludes that a proposed action by a special counsel should not be pursued, the attorney general shall notify Congress, okay? That second part says special counsel gets to work independently.

0:10:41 Thomas: Sure.

0:11:26 Andrew: They're not reporting on a day-to-day basis, but they do send periodic updates, right, of, hey, this is a major decision. We're deciding that we're indicting this person, or critically, we're not indicting this person. And if the attorney general disagrees with that, they have to provide a written report to Congress as to why they disagree with it. So I get it, you're still saying, all right, sternly worded crunch wrap. Right. You know, it's a letter who gives, you know, says special counsel subject to to the same disciplinary action for misconduct and breach of ethical duties as any other DOJ employee. Not a surprise. And then D, and this is the the teeth, the much insofar as, as, uh, you you can have teeth here, it says the special counsel may be disciplined or removed from office only by the personal action of the attorney general. The attorney general may remove a special counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies. The attorney general shall inform the special counsel in writing of the specific reason for his or her removal.

0:11:38 Thomas: Yeah.

0:12:29 Andrew: You know, this goes back to the the question that we deliberated, uh, could Donald Trump fire Robert Muller, and, and we told you no, he couldn't just in and of himself say, hey, I'm gonna fire this guy. We know. No, he wanted to. This was one of the few things that not even Trump tried to do. Right.

0:12:38 Thomas: Yeah, I mean I'm sure he tried to pressure.

0:12:50 Andrew: Yes, we saw that. We've seen those documents. Yeah. Yeah. But look, I get the naysayers. But in terms of establishing a rule of law, there is now a person in between Merrick Garland and that decision whether or not to indict Donald Trump and on what grounds and for what specific violations of the law. And that person is working independently and cannot be fired except for good cause. Is that perfect? It's not perfect, but it's a way of establishing, the whole point of this, right, the, I would like Donald Trump to spend one day in jail, is to vindicate the rule of law. And if you're shredding the rule of law to get there, then you know, maybe it's not the best decision.

0:12:51 Thomas: Yeah Well okay. I

0:13:33 Andrew: Go

0:13:33 Thomas: Don't want to naysay everything you're talking about, but I'm wondering, is there a risk that you're still, Andrew, you're still kind of in the old mindset a little bit? Maybe. Maybe you want to be. Maybe we, we need to be. But who is this for? When you say, oh, there's some real independence now, we know that doesn't matter to Trump and Trumpers and everybody on the right. It's just, he's going to say, always another deep state, whatever. Jack Smith, never heard of him before. But now that I've heard of them, he's from the deep state Democrats or whatever. So who is, who do you think this is for, really?

0:14:01 Andrew: I think this is for everybody else. Right, the announcement was met with howls on the right.

0:14:09 Thomas: For everybody else, I feel like already Merrick Garland is looked at as a pretty straight shooter. I mean, do we really need another thing?

0:14:16 Andrew: Well, I I think that's right, but again, you know, and I've used this example on cleanup. But but I'll repeat it here. Suppose in 2006, George W. Bush had gotten his then attorney general, I think it was Fredo Gonzalez by then, right, to indict Barack Obama, right, think there would have been some skepticism.

0:14:35 Thomas: Hmm. Well, that depends. Did Barack Obama lead a coup and steal a bunch of files from the one?

0:14:37 Andrew: Under understanding that situation is different. But underlying facts of, was there a direct one line from the attorney general to making a decision that has obvious political consequences for your boss, or was there an effort to say, – and again, let's put it in a way that a thing that we have said on the show. Which is, that's the difference. You and I have, God help us, complemented the ethics of Jeff Sessions. Because Jeff Sessions, as attorney general, said, you know what, I have a conflict of interest here, and that's why I'm recusing myself and and letting Rod Rosenstein appoint a special counsel here. That He didn't have to do that, sure, that was Sessions operating under the old rules still apply.

But it does, it's meaningful. And so I think in that sense that it is likely to be meaningful to, you know, never Trump or Republicans. If we are going to build a coalition going forward to repudiate, the Trump years, I think it's important to bring those on board. I understand other people feel differently. It's my naivete, maybe, it is my, you know, love of the law and of the concept of the rule of law. Um, here's what I will say, in retrospect, the fact that this announcement was made means that, uh, there was never a chance. Right. Means that by saying, oh, it's it's possible that Trump will be indicted before, you know, January 2023, was always too optimistic.

0:15:25 Thomas: I'm sure he regrets it every day of his life. The old rules.

0:16:11 Thomas: Really? Hypothetically, though, could this be more tied to Trump's announcement of his running for president? Because

0:16:12 Andrew: Right. Oh, it's 100 percent tied to that.

0:16:20 Thomas: So maybe is it possible had that not happened, like let's say either Trump, you decided not to run or was going to delay his announcement more for some reason, maybe maybe we would have gotten an indictment just for Merrick Erland.

0:16:20 Andrew: Yeah.

0:16:32 Andrew: I don't think so. If only because it's not hard to judge when when a candidate is throwing their hat into the you know what I mean? And Trump has been dropping hints that he was going to announce since, you know, July 4th. Right. So, you Know, I think I would apply the same standard if there was a special counsel regarding, you Ron DeSantis, who has not declared himself as a candidate yet. Think But I the odds are pretty good that Ron Desantis is going to be a candidate for president in 2024. And, you the question with Trump, it was easy because you knew he was going to declare and declare soon. And so, you Know, that's obviously what they were waiting for on the timing. And I think And I had he continued, had Trump continued to push that announcement off, then at some point the DOJ would have just announced the special counsel anyway. I don't Right. Think they were going to be dictated by Trump's time frame. But, know, we'll find you out.

0:16:33 Thomas: Yeah.

0:16:42 Thomas: So.

0:17:27 Thomas: Who is this special counsel exactly, and what is he now doing? Is he gonna go through every investigative step they've already done? Is he going to just dot the I's and cross the lowercase J's? No, that's not it. Yep.

0:17:40 Andrew: So I have several contacts at the Department of Justice. I texted them immediately upon hearing this announcement. And I will tell you, and everybody responded sort of not for attribution, which doesn't surprise me.

0:17:54 Thomas: I.

0:17:54 Andrew: Everybody responded with the same set of attributes regarding Jack Smith, and they are as follows. Number one, that he is a trial prosecutor. He is the kind of person that you bring in who takes cases to trial, that he is, quote, not afraid to be aggressive, end of quote, That that he has pushed for prosecutions sort of independent of the, hey, am I going to win or lose this case? Right. Has pushed for aggressive interpretations of criminal statutes where he believes it's warranted. And let me give you the example of that. There's a bunch kind of in his background. But Smith. Was the lead prosecutor at DOJ who prosecuted formerly Virginia Governor, Bob McDonald, for bribery.

0:18:41 Andrew: That was the case you may recall in which, uh, Bob McDonnell had, uh, know, friends who were lobbyists in, for, you snake oil companies and all sorts of like shady crap, and basically, like, in in a comic book super villain sort of way, like, gave his wife a fur coat and gave him like rides at a Lamborghini.

0:19:00 Thomas: Yes. Okay. Oh. This was the case, case that made it such that bribery doesn't even exist. That one?

0:19:05 Andrew: And That's exactly right, it was. And so here's the way to think about it. It was reversed 9-0 by the Supreme Court. In other words, wasn't. And that's because of how badly the bribery statute is written, right? The bribery statue, as written, requires a quid pro quo. And so Jack Smith looked at it and was like, yeah, he's introducing these lobbyists around in the Virginia state legislature and is giving them entree. That's a valuable thing. He's obviously getting bribed to do that, right? He's getting the fur coats and the Lamborghini rides. I

0:19:08 Thomas: Wow. 9-0.

0:19:34 Thomas: Yeah. Case closed.

0:19:41 Andrew: Think there's a literal suitcase of money at some point, right, And reason was because Supreme Court said under the statute and under the case law interpreting the statute that a quid pro quo has to be an official function. So in other words, if I dump a suitcase full of money on your desk and you say, okay, I promise that I'm going to sign X law into law, or I promise I'm going to veto X law, that's a quid pro quo. You have given me a governmental function. But if I dump a suitcase full of money on your desk and you say, OK, well, I am now going to walk around with you at every cocktail party and

0:19:43 Thomas: How is this 9-O?

0:20:18 Thomas: Yeah.

0:20:18 Andrew: Introduce you to every influential person I know and say, hey, you know, Andrew Torres is a great guy. You really ought to listen to him. Idiotically, under our bribery laws, that's not bribery. Now, that's a reason to amend our briberty laws, um, you know, if we had a functioning legislature, which we don't, um,

0:20:28 Thomas: Yeah, and I know, sorry, I've made you explain that to me probably five times because it's outrageous and I'm mad every time.

0:20:36 Andrew: It's Okay. You should be mad, but here's what you should take away from it: that problem was known in advance, and Jack Smith prosecuted that case anyway and got a conviction. Okay?

0:20:50 Thomas: Ah, there you go.

0:20:52 Andrew: So in other words, if you're looking at it and going, well, are we gonna get an Alvin Bragg kind of chicken shit like nobody's ever been prosecuted for seditious conspiracy in the past 50 years?

0:20:59 Thomas: Yeah! One juror might might not go for this. So let's do nothing. Sounds like we're not going to get that maybe.

0:21:10 Andrew: My best judgment, everybody has said is, this is not that guy. This guy likes trying cases. And keep in mind, you know, he spent half a decade at the Hague trying war crimes for the International Criminal Court, right? He was the head of the DOJ's public integrity section. He Right? Tries political cases and, gets results. So, you if you're thinking about, does this mean that an indictment is not going to get handed down tomorrow? It does mean that. Okay, this is an indication that the DOJ is not going to hand down an indictement, at least until sometime in the spring of 2023. However, this does not mean, uh, going back to square one and sort of reduplicating all of the efforts. Yeah.

0:21:23 Thomas: Oh, wow. Yeah. That's kind of second, the part of my question, which is like, what is, what does he really do? Does he just go back? Cause, like, part of it would imply either nobody's been doing anything this whole time and he has to like do the whole investigation, or he just has to redo everything, or what is it exactly?

0:22:11 Andrew: No, he gets the whole file. He gets transferred over to him all of the investigatory materials and notes and the lawyers who have been working on it and everything, right? Not, I mean, that's not a situation where, you mean, speaking as a lawyer, you right? Get cases transferred to you sometimes, you that's exactly right. He is now the decision maker. And it adds kind not only that layer of independence, but also a layer of public accountability, because, again, under the same regulations, if for whatever reason, Jack Smith decides not to prosecute, he has to provide a report back to the attorney general. Again, you know, like the Mueller report. And I'm going to hit that one last. That explains a declination decision. Right. That's why the Mueller Report says, you although we think it's very likely that President Trump committed crimes, you know, we're bound by the Office of Legal Counsel memorandum that says we can't indict a sitting president, That right? Explained why Mueller did not indict. Here, again, if you're feeling gun-shy, there is no OLC that says you can't indict a former president. There's absolutely

0:22:30 Thomas: Well, but then what's the point, I guess, what's the part? He's just making the prosecutorial decision, okay. Yeah.

0:23:00 Thomas: Yeah.

0:23:27 Thomas: Well,

0:23:27 Andrew: No requirement that is going to handcuff Jack Smith in the same way that Robert Mueller was And at the end of the day, believe he's going to indict Donald Trump. If he doesn't, for whatever reason, we will at least have a public record. That will not be a lot of comfort. I totally understand it. But without a special counsel being named, we would have nothing. We right? Would just have the Biden administration comes and goes and Merrick Garland decides not to indict Donald Trump and we would be left to speculate. So,

0:23:59 Thomas: Or he could have just decided to indict Donald Trump, but yeah, I get it. I guess so you're saying if we, if under that paradigm, if he did decline to prosecute, we'd never hear anything about it, okay.

0:24:09 Andrew: That's exactly right. We know Merrick garland has publicly said that DOJ speaks through its court filings. Right. Like Merrick Garland is not going to do a Jim Comey and publicly have a press conference and say, you know, while we found X, we did not find Y, in the you middle of the twenty twenty four election. I get the reaction. I had the same kind of initial. I really was hoping we would get Trump indicted in twenty two, it's going to get pushed off. Uh, but I should have seen that coming. I should have advised you in advance and every indication is not just, you this seems to be someone with whom we can work, but this seems to be a really, really good decision. Um,

0:24:20 Thomas: So, How long does this crap take? I feel like you could knock this out in an afternoon, maybe a week. Read all, all the papers. Oh yeah, he did it. There's all the obvious evidence that he did it. Let's prosecute.

0:24:55 Andrew: I, yeah. Say again, I would say we're probably looking at four to six months.

0:25:04 Thomas: Could you read a little faster? I feel like Andrew deep dives that in an afternoon. Come on, Jack Smith.

0:25:10 Andrew: That is true.

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0:27:04 Thomas: Actually, question in case I missed it. Is this for all investigations, or was this for like a specific, you know, is this both documents, the and the January 6th, and the anything else? Or is this a specific one, like one of those? Oh, hmm,

0:27:15 Andrew: That is an awesome transition to where I was going to go just next, remember I said at the outset that this is kind of like thinking about a congressional delegation of authority to to an executive branch agency, that delegation of authority comes from the appointment order, right? So the attorney general says, hey, you are fulfilling X function now, right? You're filling out all my TPS reports or whatever. And that appointment order 5559-2022, which we'll link in the show notes, basically gives three things, three broad areas to Jack Smith. Number, number one is to investigate and prosecute crimes in connection with January 6th, right? And that language is the broadest possible language. Here's what it says. The special counsel was authorized to conduct the ongoing investigation into whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6th, 2021, as well as any matters that arose or might arise directly from this investigation or that are within the scope of 28 CFR 600.4A.

0:27:37 Thomas: Oh,

0:28:28 Andrew: And that last subsection is actually the third part of that, that that is a provision of the regulations that says if you were authorized to investigate a particular area, you were automatically authorized to investigate efforts to obstruct.

0:28:40 Thomas: Yeah, okay, Okay, also, I, I thought it was gonna go along the lines, also if you find a bag of coke somewhere in this investigation, can, if anything else is uncovered in the process of investigating, can he, uh, oh,

0:28:55 Andrew: Are absolutely anticipating what's coming next. That's really, really funny. So, a, uh, January 6th, in the broadest possible terms, b, the Naralago documents case, in the broadly possible terms, the special counsel is further authorized to conduct the ongoing investigation referenced and described in, and then that's the caption for the uh proceeding before Judge Cannon, right, so not just to assume responsibility over that case, although it includes. And they have filed a notice in both Judge Cannon's court and with the 11th Circuit that, hey, you know, Jack Smith is in charge now and agrees with our filings we're and going forward. But that entire investigation over the retention of documents and any efforts to obstruct it. And then the third area is what you anticipated, the ability to refer out cases that they come up with along the way that

0:29:51 Thomas: But you have to refer fur them out?

0:29:53 Andrew: It's at his discretion. But but again, you example, if if you happen to discover that Roger Stone has committed a bunch of crimes and who could possibly imagine that that would happen, you could say, I want to prosecute Roger Stone. Or you could Say, you Know what? This is tangential to the mission of indicting Donald Trump. And so therefore, I'm going to refer that out to the main DOJ. It also carves out the existing insurrection cases, which, again, go all the way up to, you know, Stuart Rhodes, the Oath Keepers, the Proud Boys, Seditious Conspiracy. I mean, those are real those cases and there are about a thousand that are pending right now. And it's clear there's...

There's a line in there that says, you Know, if the special counsel needs to assume jurisdiction over one of those cases, then we'll work that out. You know, we'll give supplemental guidance. So they've reserved the right to do that. But they've also basically, you know, the DOJ has said, OK, this is this is the Trump investigation. And that's kind of the last point, which is, know, again, if you're looking for ways to evaluate what's going on here,

0:29:53 Thomas: Oh, okay, gotcha, yeah, right, yeah,

0:30:59 Andrew: This is the first time that the DOJ has publicly said, yeah, we're investigating Donald Trump, right? Even the search warrant, right, at Mar-a-Lago says, you know, we are looking for evidence related to, you can read between the lines and go, okay, well, only person who could possibly be prosecuted, uh, in connection with this would be the former president, but this, this names, uh, Donald Trump, it

0:31:12 Thomas: Oh, so this is like when Dave Rubin announced he was a Republican, or whatever, everyone's like, yeah, we knew that, but also, I mean, it is an announcement.

0:31:26 Andrew: Yeah. Yeah. That's that's a great analogy. Yeah, and and so there we have it, um, the last question that that you, you haven't asked, but I have gotten via social media and back channel, is the Republicans are about to control the House. Can they shut the government down and defund the special counsel's office in an effort to save Trump? A, I doubt they have the votes for that, but B, no, they cannot.

This is Regulation 28 CFR 600.8, which says that the special council has 60 days after his appointment to develop a proposed budget for the current fiscal year with the assistance of the justice management division of the attorney general for review and approval, and then it says, based on the proposal, the attorney general shall establish a budget for the operations of the special counsel. The budget shall include a request for assignment of personnel with a description of the qualifications needed. So smart, aren't OA listeners recognize that shall language, that's mandamus language, baby, um, the regs say, uh, you build the budget and, uh, they then, uh, shall, uh, fund it up, uh, which means that in the event that there is a government shutdown, that this would be declared an essential function of the government and you would move funds around from somewhere else in order to to keep it going.

So there is absolutely no risk, as far as I can tell, Republican that shenanigans could shut down the special counsel effectively by, you know, defunding that. And would I add on top of that, everything I've been led to believe is, if that were the case, again, right, not sure how that could be the case, right, because what you do is

0:31:33 Thomas: Yeah,

0:33:13 Andrew: You assign lawyers from the DOJ who are paid out of the general DOJ budget, so unless Republicans vote to defund the Department of Justice, uh, which should be a real tough, like, given that they're running against the shadow of, uh, Democrats want to defun the police, right? Like, well, well, you defunded the the entire DOJ would be kind of a hard thing to run on in 2024. But suppose they did. My judgment is that these folks would show up and work for IOUs.

0:33:23 Thomas: They may, nah, they don't care, I was gonna say, can they work out, yeah, just out of the kindness of their hearts or something, yeah, if they need help making copies, I'll get in there.

0:33:47 Andrew: Yeah, absolutely you can. And I know I would. Argument stands at the ready. So all of that together. And this tells this us more about what the DOJ is doing and what kind of time frame they're they're doing it in.

0:34:06 Thomas: So all in all, you think good news, okay,

0:34:09 Andrew: I think good news. I know. Right. We've walked through the kind of and I had that initial reaction. Action, I but think good news.

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0:37:41 Clip: We got it!

0:37:47 Thomas: Right, Andrew, next story. Uh, I, think you may have to refresh this a little, but there's news on the Naralago 11th Circuit front. I, I believethat's where we were trying to fix the mistakes of an extremely unqualified, terrible judge, Federalist Society weirdo, I think.

0:38:02 Andrew: Exactly right. So as a brief history, Donald Trump went forum shopping, right, in the U.S. District Court for the Southern District of Florida, where he tried and succeeded in getting his petition for a special master before Judge Eileen Cannon, Federalist Society weirdo, and total Trump hack. The DOJ then did two things, and we explained both of them to you. They appealed the order appointing a special Master in its entirety to the 11th Circuit And got expedited briefing. And they also moved immediately for limited injunctive relief, staying Judge Cannon's order with respect to the documents bearing national security classification markings, And right? They won on that. Trump tried to go to the Supreme Court, tried to get Clarence Thomas, lost nine-oh, right. Like, you just crystal clear on the national security documents. But, of course, that did not prevent Judge Cannon, Federalist Society weirdo, from still screwing around with the underlying special master, Judge Raymond Deary. Remember, appointed the person Trump wanted. Trump picked this guy, even though it's not going great for him right

0:39:15 Thomas: Yeah, yeah, yeah. And he starts doing the job and she's like, you're doing it wrong. I'm going to undo this.

0:39:21 Andrew: Absolutely. Absolutely. And so the backstop was, oh, well, we still have the appeal on whether this special master should have been appointed in the first place. That's the question of anomalous jurisdiction. And you might remember that 11th Circuit's ruling staying Judge Cannon's order with respect to the documents bearing national security classification markings was predicated on lack of jurisdiction, right? And that the way in which you get equitable jurisdiction here is a case called Ritchie. And that had a four part test that was pretty similar to the test for issuing an injunction. The first and most important factor is, was there a callous disregard for the defendant's constitutional rights? Rights.

0:40:10 Thomas: Yeah.

0:40:10 Andrew: And the panel decision said, this page 17 of the panel order, we begin, as the district court did, with callous disregard, which is the foremost consideration in determining whether a court should exercise its equitable jurisdiction. Indeed, our precedent emphasizes the indispensability of an accurate allegation of callous disregard. Here, the district court concluded that plaintiff did not show that the United States acted in callous disregard of Donald Trump's constitutional rights.

0:40:37 Thomas: They got a fucking warrant and went and got the things. That's the whole thing. What are we doing here? It's only because of an insane judge, right? Just an absolute in-Trump's-pocket judge that any of this is happening, right?"

0:40:41 Andrew: Yep. Yep. That is Exactly right. Yeah, so, and again, remember the 11th Circuit, that panel was two Trump appointees, right? And it was a 3-0 panel, uh, that said, "Yeah, dude, you're making us look bad here." Like, we we have a larger mission to, you know, infiltrate the legal system and make sure that we get conservative outcomes uh but not to intervene you personally on on behalf of your patron. Like, we have lifetime appointments. Like, what do you do in, Judge Cannon?

0:41:00 Thomas: Yeah.

0:41:14 Thomas: I don't know. I think Judge Cannon is the future and they're the past. We'll see.

0:41:17 Andrew: We'll See. The absence of this indispensable factor in the Ritchie analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. But for the sake of completeness, we consider the remaining factors, which it then held also Trump did not have. So that was the Panel decision. Now, notice that that only applied, right, the holding of that only implied to the documents bearing national security classification markings. But the underlying logic is true regardless of what the document, right? Like, none of that had anything to do with the nature of the documents themselves. It was just like, hey, these documents were procured pursuant to a valid search warrant. Um, so now we go back and raise the exact same question, right? Did Judge Cannon have equitable jurisdiction to appoint a special master for all of the documents, right? And two of the three judges who were on the panel are now on this second panel.

0:41:34 Thomas: Yeah. Oh, it's another, but it's not on Bonk or whatever. It's another panel.

0:42:21 Andrew: Nope, it's another three-judge panel.

0:42:22 Thomas: Okay, because it's like a separate question.

0:42:24 Andrew: Yep. It keeps the two Trump appointees, Grant and Brasher, and adds Chief Judge Pryor, who is a George W. Bush appointee, getting rid of the Obama appointee. So now, you know, all Republican panel. But nevertheless, a panel that was rather skeptical the first time around. I wanted to know what Judge Pryor thought of the game, right? Like, you Know, because he's, he's the chief judge of the entire 11th Circuit, right, if he came in and said, we should be rethinking X, then I wanted to be on top of? It, Usually I'm not a huge fan of reading the tea leaves at oral arguments.

I have to tell you, Thomas, I am the happiest person in the world that I listened to these, I attended these oral arguments, this is a beat down, like I posted the clip of Tom Cruise kicking the crap out of Wilford Brimley on Twitter, like like when people asked, "How did this go?" This is as brutal a beat down of any litigant that I have ever seen in my entire life. I have litigated and lost cases at the Fourth Circuit. I have litigated, not often, I've but lost one oral argument at the Fifth Circuit. I've lost one oral argument at what is now the Maryland Supreme Court. I get to say that, at the time was the Maryland Court of Appeal. So, you know, I've lost on appeal before. I've never been in this position where

0:42:37 Thomas: Yeah. Oh, yeah?

0:43:41 Thomas: And that position is the fetal position as Tom Cruise beats you with a briefcase.

0:43:45 Andrew: It I'm listening because it's a broadcast of the audio of the hearing before the 11th Circuit. And I'm listening for Judge, for Chief Judge Pryor, because that's the change. His first question out of the box, six seconds into Jim Trustee's argument is, "It seems like you don't have callous disregard here. And under the Ritchie analysis, however you want to slice it, that seems pretty fatal for your case." And and Trustee says, "Well, actually we do, just, you know, we we're alleging this and that," and that Briar stopped and did not listen to that, uh, beginning of some kind of doofusy rant and and stopped him and said, "Well, okay, let me be more clear about this. You didn't brief callous disregard, so whether you think you have it now on the record before us, you don't. Right?" Right.

0:44:31 Andrew: And trustee was like, well, we what we had to do was start this in order to develop the evidence that we now have. And I prior was just like, OK, so that that that answer is no. The second question was, how is this case different than any other pre indictment search warrant?

0:44:38 Thomas: Yeah. Nah.

0:44:52 Thomas: Yeah.

0:44:52 Andrew: Right. As you point out, first like was, well, you know, it's the former president. So and the prior was like, well you're not you're not arguing that he should get special treatment because he's the former president, right? And then there's, you know, some nonsense and then he goes back and say, okay, so how is this case different from other search warrant cases and and then trustee, you burbled some more and prior jumps in and says, okay. So So what you're saying is this is not it was

0:45:17 Thomas: Oh, man. Can this be a LOD great media?

0:45:19 Andrew: It was fantastic. If it were longer than 40 minutes, we can't do this for Law and Great Media for the same reason we can't do My Cousin Vinny. We would just be playing the entire 40 minutes. It was delightful. Judge Grant, for example, example interrupted when a trustee called the execution of the search warrant a raid and was like, uh, can we not call executing a search warrant of raid? And he was like, yeah, I'll use neutral language.

0:45:30 Thomas: Yeah. Yeah. Okay. Yeah.

0:45:50 Andrew: And then went back to his notes, called it a rating, and had to apologize every single time. It was great. So all of that, so that's the questions they asked of Trump's lawyers. Uh, meanwhile, the the government's lawyers were asked questions like, and we're not, you know, without prejudice to this area, but suppose we rule in your favor procedurally what would happen, right? Because this isn't a motion to dismiss, what would we, it seems like we would have to vacate here. And the answer, by the way, is. You would that you vacate the order, appointing a special master, and then remand back to the district court, back to Judge Cannon with instructions to dismiss the case for lack of jurisdiction. But it's sort of procedurally weird because there isn't a complaint. What the hell even are we doing here?

0:45:54 Thomas: Yeah. Yeah.

0:46:35 Andrew: By the way, was a thing. It was a question that Judge Pryor asked at the outset. He was like, what are we going here? Here is that. So, uh, yeah, when you put that together, and it is, it would not surprise me if that order, uh, comes down from the 11th Circuit, uh, sometime in between when we've recorded this and this gets to the listeners' ear holes. Right. It was just, uh, abundantly clear, uh, that this, this very conservative court with three Republican-appointed, very conservative judges, has no interest in diving in and creating a brand new special rule to save Donald Trump because they are, at their heart, dedicated to conservative legal principles. And one of those conservative legal principals, again, articulated in the questions, is of powers, right? Right. You can't run to the judiciary to get them to interfere with a criminal prosecution being made by the executive branch.

0:46:41 Thomas: What is it, what you would say we are doing here Yeah.

0:47:34 Andrew: And if we do it for you, unless we put a little special asterisk that says this only applies to former Republican presidents and, You then we've already seen your cronies doing this. Right. And I would add, they were not helped. The government didn't make this argument, would I have. They were not helped by the fact that Donald Trump is still filing crap in front of Judge Cannon to try and forum shop. And in fact, the at same day, right, Tuesday, as this 11th Circuit argument, Trump filed a, quote, "motion for disclosure." Loosely speaking, that's not a thing, uh, to ask Judge Cannon to order the government to give him the entire unredacted search warrant and

0:47:42 Thomas: I he might as well file a motion for, you know, candy and rainbows and whatever, like, whatever he wants, he might as well fight in front of Judge Cannon because she's terrible and just gives him anything.

0:48:25 Andrew: And she'll give it to, and I him think that that would lead the 11th Circuit to act sooner rather than later, right, because they're embarrassed by this lunatic.

0:48:33 Thomas: This person can't be a judge. Yeah.

0:48:34 Andrew: Absolutely should be impeached.

0:48:37 Thomas: How, how do I do that? But Oh, is she, because she's a federal judge, it's the same.

0:48:37 Andrew: Well, it's impeachment. Yep, Federal judges serve for life. The only remedy is impeachment on good behavior. So the standards are even broader than the infinitely broad high crimes and misdemeanors. You could very easily say this is a judge who has not served on good behaviour. You wouldn't articulate anything other than apparent conflict of interest right Yeah.

0:49:01 Thomas: Yeah, no kidding.

0:49:02 Andrew: And, uh, I certainly think it would be worth pursuing, uh, in the event that, the the political, uh, winds change. And the political wins could change, I mean, that's, that's the whole point of, of this episode here. It, right, feels like we're stuck in this moment, but, like, you, in 1955, it felt like, like, anti-communist, you hysteria was going to govern forever. So,

0:49:21 Thomas: And it only did for, you know, 40, 30, 40 years.

0:49:23 Andrew: 30 years, okay, all right, fine. But look, you cannot have, what Trump is doing is asking his handpicked judge to reverse the very question that was litigated in front of Magistrate Judge Bruce Reinhart, who, again, Republican appointee, who issued the search warrant. And that was decided on August 25th, And you can't just in November say, oh, by the way, I didn't like this other thing that Judge Reinhart did. That's called forum shopping. Know, the federal courts, there are a bunch of different doctrines that they have developed prevent to you from doing exactly what Donald Trump has done, right, which is, oh, if you're losing in one court, let's go find another court and hope you win there and bring the exact same questions.

0:49:24 Thomas: Yeah. Yeah. But if you are going to go forum shopping, make sure to get a hold of those Black Friday deals. Promo code opening on your forum shopping. Black Friday.

0:50:16 Andrew: There you go.

0:50:18 Thomas: Beat the crowd.

0:50:18 Andrew: One. One, last delightful uh bit that is related to Trump world, uh, and I have this on our note, says, "Hey, remember John Eastman? Pepperidge Farm remembers." Um, we last left the chief legal architect for the one six insurrection, uh, having, uh, stepped on the series of rakes from the Simpsons, right? Uh, that was, he, he was ordered to produce eight more documents under the crime fraud exception to the one six committee, and, waited until the very last day to move for court thingies to try and block him from doing that under the excuse of like, "Well, one of my lawyers is in Barbados and the other lawyer's super busy," and stuff, so, you know know, even though we had nine days, uh, we just decided to wait until day number nine.

Uh, and the court, uh, was super not interested in hearing that, shockingly enough. Uh, there was also an appeal noted, uh, belatedly to the ninth circuit to to to stop them and, uh, to, "I'm gonna give the documents over to the one six committee, but I want injunctive relief telling them not to read it and to get it back," and he got none of that.

Um, but, but an extra fun thing happened, uh, which I, I think you may recall, uh, which was that he left the Dropbox link, uh, open, and so when the

0:50:39 Thomas: Yeah.

0:51:35 Andrew: Six committee was briefing their oral argument to the ninth circuit, they cited that Dropbox leak in their brief, and, uh, some smart journalists, I, God, I wish this had been me, uh, were like, "Oh, hey, I'm gonna see if that is still active," and, lo and behold, it was, and so they got onto the drop box and they downloaded the eight documents and gave them to Politico and published them. Everybody then agreed, "This kind of makes your request for relief here moot, doesn't it? Know, we, right could maybe pretend that we were going to get the documents back and put them box in and lock the box away in the basement." But they've been on Politico. They're on the internet. There's no getting these documents back. Response to that, John Eastman decided to move for Munsingwear vacatur.

0:52:25 Andrew: And if you're thinking, Munsengware, that sounds familiar. That was because we did a deep dive on it in Opening Arguments episode 181. That was also the episode which we told you Michael Avenatti was maybe not such a great guy. One of my favorite episodes. The case in which you had the underwear company. They were convicted of price fixing, price gouging.

0:52:47 Thomas: Yeah, price gouging during the war or something.

0:52:48 Andrew: Yeah, during World War II. And they wanted to appeal that And say, look, we didn't engage in war profit. You have convicted us of war profiteering during World War Two selling underwear. That's a real bad thing to have on our company's resume. Right. So we'd like to appeal that. And the problem was that as they were on appeal, the government, because World War II ended, the government ended those price control regulations. And so there was no longer any way for Munsingware to vindicate its rights, right? Because the repealed. And so the court came up with what, what is now known as the Munsingwear Doctrine, which says, hey, if due to no fault of your own, the government changes the rules and you're left with an adverse decision that you now can't effectively appeal, you can move to vacate that decision, to make it go away as if it never happened, because the government shouldn't care, because the thing that they got an adverse ruling, they now change the rules to make that not a bad thing.

0:52:59 Thomas: For selling underwear. Yeah, yeah,

0:53:54 Andrew: And you can get that stain of having, you know, been accused of being, you know, war profiteering come off of your record.

0:54:01 Thomas: Yeah. So now your commercials can say, we haven't been convicted of war profiteering.

0:54:06 Andrew: No collaboration with the Nazis. Right. So you may be sitting there thinking, that doesn't seem to have a damn thing to do with when you're an idiot and you accidentally disclose your own documents, uh, that's kind of what the Ninth Circuit thought too, um.

0:54:20 Thomas: Yeah, like did the U.S. declare that coups are okay or something? And he's trying to get the...

0:54:25 Andrew: They have not, uh, they just, uh, The Ninth certificate, uh, in one line order, said we're gonna deny that motion to vacate because, uh, and the language they use, perhaps inadvertently, was, you plaintiff is at least partially responsible for, uh, the circumstances that arose, and so, you know, therefore, you can't get Munsingwear vacatur because you're the one who brought this on yourself. Well, now Eastman has moved for reconsideration en banc due to that potential imprecision in the language, because the law says, and he's right on this, it must be entirely, you not your fault. Right. You could argue that because the, the language said, well, it's partially, that that would leave an ambiguity. It doesn't matter. The Ninth Circuit is not going to review.

0:54:27 Thomas: Okay.

0:55:14 Andrew: It's not going to review this en banc. And the most that might happen is that the panel will come forward and amend its prior order to clarify that that determination of partial responsibility is a determination that this was not entirely outside of your control, and therefore Munsingwear doesn't apply. But either way, those documents are in the hands of the 1-6 Committee, which, to kind of tie this all up and put a bow on it, is preparing its final recommendations as we speak.

0:55:45 Thomas: Yeah? Yeah.

0:55:45 Andrew: And when that's done, that was another important hurdle to get over before the DOJ was going to indict? Because, right, when the one sex committee prepares and delivers its final report in December to the American people, it will then turn over all of those records to special counsel Jack Smith. And you will now no longer be in the position where you could have potential Brady violations. Right. Wind you up creating potentially exculpatory evidence by having certain untrustworthy witnesses, Bill Barr, say things that, you know, publicly and privately might contradict. And now, right, they're on the record, right? Bill Barr is smart enough and evil enough to know that he's not going to say anything to Jack Smith privately that is going to contradict what he has been publicly shown to have testified in connection with the 1-6 committee.

0:56:42 Andrew: Many, so, uh, from a practical perspective, winding that down is a prerequisite before Trump could be prosecuted anyway. So that's where we are. The stars are cut, you, the conjunction, the great conjunction is coming into alignment, uh, that's Dark Crystal reference for, yeah.

0:56:59 Thomas: Oh, boy. Talk about movies that are too scary to ever show my kids, but are allegedly kids' movies. Gosh, that thing's... I'm still scared of that movie.

0:57:06 Andrew: Yeah. Willie.

0:57:08 Thomas: I can't.

0:57:08 Andrew: Willie Wonka, the chocolate. Factory.

0:57:09 Thomas: Oh, yeah. Just that one scene. You just got to cut the boat scene. I think it's fine.

0:57:12 Andrew: Yeah. Right. Yeah. Yeah. I when, uh, because Alex was really really young, and the, the, added on love scene in, in Major League is just stupid and pointless anyway, um, so we watched Major League with fast forwarding, over, over the love story. By the way, makes Major League a much better movie, right? It just, and eminently, you can knock that thing out in like 75 minutes, uh, as long as every you time Renee Russo's on the screen, you just fast forward for a couple of minutes. It's fantastic. Highly recommend. Uh, Arlo winds up being a baseball player, god, if Arlo lines up being the baseball player, can I coach his little league team? Anyway.

0:57:49 Thomas: Oh, maybe. This is the kind of great movie advice you get with the new AOA format. We wouldn't have had time to give you the major league advice otherwise. One more small thing, Andrew. I saw a 9-0 ruling against Trump, which again, for this court, which includes one Clarence Thomas, to get a 9 0 ruling against you means you're really wrong. So what was this? Uh, we're going to see tax documents from Trump.

0:57:51 Andrew: All Yep.

0:58:16 Andrew: Tax documents going to the House Ways and Means Committee. Fantastic result. And

0:58:21 Thomas: But is that the new house that's Republican controlled?

0:58:24 Andrew: Go right now to the lame duck House that is still Democratic controlled. And we still have six weeks in which that can be disseminated internally, and will be disseminate it internally to the folks who need to see it. So I will talk about that in a in a future episode. But But spoiler. Yes, is.

0:58:38 Thomas: Can it be disseminated externally? Oh, wow. Okay. Well, that answers that. Uh. Well Well, that's everything. Holy crap, Andrew. This new format allows you to get through all of the bullet points on your notes. That's incredible. What an innovation. And that's our show. Thanks so much for listening. And we'll see you very soon. The next one will be a little OA mini, but it will contain a story. It will contain patron thanks, and it will obtain T3BE, and we'll give you instructions on kind of how to play and all that then. So thanks so much for listening. Thing we hope you have a great thanksgiving to all who ingest and see you next time

0:58:57 Andrew: Until then.

0:59:20 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

0:59:53 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.