Jack Smith's Smackdown of Judge Cannon

Transcript

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

0:00:52 Thomas: And welcome to Opening Arguments. This is episode 1020. I'm your host, Thomas Smith. That over there is your legal co-host, Matt Cameron. How are you doing?

0:01:00 Matt: Well, it's springtime in Boston, so you know what that means, Thomas.

0:01:03 Thomas: No, not at all.

0:01:05 Matt: It's icy and sleeting. We're having a great time here. It is freezing outside.

0:01:07 Thomas: Oh, so it's more ice law. Yeah, we're we're having a weird inverse thing where it's actually there's a random April like storm here for California. It's actually snowing somewhat near me, which is pretty crazy. That's like not a normal thing.

0:01:11 Matt: Potentially. I had to scrape up the sidewalk a bit. We are hoping for actual springtime someday soon. Wow. Yeah.

0:01:28 Thomas: Snows maybe once or twice a year in this area that I'm talking about. If that and to get pretty heavy snow in April is it's almost like we've done something, you irreversible to the plant's climate. It's almost, I don't know, I'm not a scientist, but it just feels like something different is going on. But who knows? Could just be anecdotal experience.

0:01:44 Matt: We re getting quite a lot less over here too. So something is going on. I confirm.

0:01:47 Thomas: Yeah. Well, speaking of stuff going on, what a news day. We already, I mean, as usual, thanks so much patrons at patreon.com/law for all the great suggestions for Rapid Response Friday. This was one of those weeks where it was like, we pretty much all agreed. Like it was, we were all on the same page for the most part. Although I think Matt has a bit of a bit of a bonus thing that went under the radar a little bit, which is always fun, right?

0:01:49 Matt: Oh yeah.

0:02:10 Matt: We're gonna try. But I do want to thank Jack Smith, Judge Juan Marchand and Judge Scott McAfee for working with our recording schedule. They really were very considerate this week.

0:02:17 Thomas: Those patrons or those?

0:02:20 Matt: Those are, so I just want to point out Jack Smith got his in on Tuesday. Marchand was on Wednesday and McAfEE just dropped something today on Thursday, the day we're recording. So thanks a lot. Really appreciate that. It beats dumping it all just before recording. So we got plenty to talk about in all of these cases. And we're trying to do Trump every day here, but we got to talk about Trump every week because it's really all coming to a head. I was realizing that by this time a couple of weeks from now, well, actually on the 22nd. So the 22th is a big day in Trump world because we're going to have arguments on the immunity case in front of the Supreme Court.

We're now going to having a hearing, which we'll talk about a minute on the Bond matter in New York. There's been a hearing scheduled for that to see if it's sufficient, what he's trying to put up. And we'll maybe be in the middle of a jury trial, possibly, depending on jury selection goes, all at the same time in a couple of weeks here. So whether you want to hear about Trump or not, we're going to have a lot of Trump.

0:02:27 Thomas: Wow. Nice. Yeah. Well, here's the truth. The analytics say pretty much everyone wants to hear about Trump. I hate to break it to everybody, but I like that we have the we have the Monday episode to be able to switch it up when we can. So this is just crazy. I mean, we've been building to this this for so long, um, see him actually go possibly on trial for some of this stuff is just going to be, ah, ah. So lots to talk about after the ad break that of course, if you're on patreon.com/law, you don't have to hear. And you get that, a uh, Law'd Awful Movies. I'm excited to do another one of those. You you listen to the recent Law'd Awful Movies, paper chase, you heard that, I really want to get a good old fashioned crimey criminal criminal law one that Matt and Casey can just tear apart because, you know, they have a little bit of experience in relevant fields.

0:03:24 Matt: Yeah.

0:03:55 Matt: Suggestions, welcome. If you've got any ideas for bad criminal law movies, put them out there.

0:03:55 Thomas: Oh, yeah, true. Could put up a thread for that. I have before. I think I think we have a backlog. I'll check. So I'll make that decision. Maybe I'll put up a threat for that, but either way, looking forward to it. So after this break, we'll get to the massive amount of news. Right. Where do you want to start? Because I know we've got Got Jack Smith's response that I know you specifically flagged the other week. We've been waiting for it. I know there's some other stuff you kind of wanted to hit us with that may be more under the radar. So where should we begin?

0:04:20 Matt: Sure. Actually want to begin with a thing that I want to share with you and with the audience. It might be helpful as as we go forward thinking about a lot of these things. It's a very secret framework that I've been holding onto for many years that I'm going to share with you now. And I have, in my very unique way of evaluating the law, I've divided my views of the law into different substances. So caffeine law hits the brain in the way that a good crossword puzzle does, right? Like a really good caffeine case. And when I say caffeine, I mean both you're going to drink drink caffeine, and it was written under the influence of caffeine.

You can tell it has caffeine all over it. It's sharp, it's bold, gets and where you need it to go. It is often very complicated. You have to pick it apart like a Sudoku puzzle and try to figure out what you are doing. A lot of immigration law is caffeine law. There is just a whole body of case law about whether or not a notice to appear, like dozens of cases at this point, is actually a notice to appear depending on the technical requirements that it meets or not in immigration court. That kind of stuff gets me going, if I have had my coffee at least.

0:04:36 Thomas: Oh, wow.

0:04:47 Thomas: There we go.

0:04:56 Thomas: Oh, is this this framework important question for the framework? Is this subjective to you personally, or is this meant to be broadened out to everybody? Everybody.

0:05:22 Matt: I would suggest that this is an objective framework that everyone can use, especially if you enjoy all the substances we're going to talk about. If you don't and you can just imagine them, then that's fine too. Nothing against the who are sober or otherwise, but you can imagine what I'm talking about, I'm sure. So I'd like to go on to whiskey law, which is legitimately good legal prose in the service of justice. And this is a kind of decision you don't see these very much anymore. I think the Supreme Court thinks that it's releasing casks of whiskey every year, but it really isn't anymore. It used to.

Every so often you get a good Sotomayor dissent that goes down, you know, like a good dram. Know, those old Warren Court decisions, a lot of these nice old decisions that kind of go through and talk about the interests of justice in that kind of lofty way that you don't say as much anymore, kind of that warm feeling you get, you have a nice drink and you're reading about the law working out for somebody. Whiskey law. I I think that we have a couple of whiskey decisions or whiskey writings in today's episode.

0:05:36 Thomas: Yeah, this is turning

0:06:18 Matt: Not so much in a cappin'.

0:06:18 Thomas: Into a country song.

0:06:20 Matt: Well, then it takes us to wine law, which you're not going to find in country as much, but that's the kind that ages well. You can enjoy it with a nice fine glass of wine and, full -bodied, robust, well -aged kind of law. The kind that you can cite off the top of your head in your field. You know there's like a handful of cases that you could always come back to that age well.

0:06:36 Thomas: Okay.

0:06:37 Matt: And then, of course, there's the stuff that we're mostly going to be talking about today, which is cannabis law.

0:06:41 Thomas: Diarrhea. Oh, no. Yeah. Cannabis. Yeah, sure.

0:06:43 Matt: This is the kind of law that you have to both be high to write and to understand. And there's quite a lot of that going around right now, especially on the Trump side.

0:06:49 Thomas: Now, you might be high on different substances. Is one of the substances originalism? Could that be one of things you're high on to be able to write this crap?

0:06:56 Matt: Originalism, it's my first example of cannabis law that you absolutely have to be high to write it and probably to understand it. I've never understood it in any condition. You know, like that uh, that case a while back where the judge found as a matter of law that bees are fish. You ever hear about that one? That

0:07:10 Thomas: I think think I did an original OA back in the day, uh, that's a fun one, I

0:07:14 Matt: But and I woke up to reviewing and thinking about the law under the the influence of all of these substances once in a while. And it really can help you to kind of look at things in different directions. And maybe late at night, you've had a, know, I a hit or two and you're contemplating something. You wake up and you have a cup of black coffee and you think about it a different way. I'm not encouraging or discouraging the use of any of these substances.

I am just saying that sometimes you just need to look at this a different way. But I would argue, actually, I hadn't considered this until just right now, but I think we might be looking at a completely new genre of crack law in Some of these things that we're going to be talking about today, because these are people that are no longer existing on the plane of reality that I do, that are thinking about the things that I'm looking or thinking on. Maybe that's LSD. I don't know. Maybe I'm taking this too far. I might just be taking too many things at the same time at this point, but

0:07:42 Thomas: Think This entire framework is possibly a bit of uh inspired The category that this entire categorization is in is perhaps a little under the influence, is all I'm Saying, Matt.

0:08:11 Matt: That's a good guess. You cannot discount high ideas all the time. High ideas are often some of the best ideas, is, and that's why I write them down. I will say, I do think that this framework has something to it. And I wanted to mention it just because there's no caffeine in today's episode, but we've got plenty of whiskey and cannabis, and I think it's fun to identify these things. Do want to talk about the Smith thing first. I think we should talk about it, get out of the way, because we had really, when we ended the Eileen Cannon episode, we were looking hard at her order of March 18th, in which she put out a couple of scenarios for the parties to bring to her, completely fictional scenario. It was not based on any kind of law or fact, obviously. Her own ideas, because it seems like she had to have been smoking something. Weed's not actually legal in Florida yet, although it's up on the ballot this year.

0:08:51 Thomas: See, Here's the problem. We need, and this is purely a criticism of super uptight religious types that are often generating the worst law. We needs some word for it, some categorization that doesn't make it sound at all fun. I'm struggling. I don't want it to be, you know, marijuana. Any Sort Of hot being high is too fun of a connotation for what This is You know, and For Canon, I mean, Canon is just I Don't even Know What What to say about that.

0:09:08 Matt: That's true. That' s true. For Antonin Scalia, you're right. Yeah. Yeah, no, no. It's true, yeah. She's smoking something that I don't, I will say. Maybe put it that way. Yeah, maybe you're right. Maybe this is just straight up crack law. But because, as we talked about in the Eileen Cannon episode, she puts out this order while she's reviewing a pending motion to dismiss. And Trump had brought this motion to dismiss based on the Presidential Records Act, saying that he could at any point declare anything in his possession to be a presidential record.

And that is a completely unreviewable decision that he could make. Even if that document is actually legitimately no question classified, he could just decide with his mind that it is a presidential record and the court can't review that. So this is not a serious argument. It has never been a serious agreement. The 11th Circuit has already more or less disposed of it without directly disposing of it, just saying in passing that they didn't see this as much of a case.

Eileen Cannon is listening and she's taking it seriously. So she puts out these two scenarios where she wants them to write out jury instructions instructions for, what if I were to say that this is the law? How would I explain it to the jury? And the one scenario, it was that the jury could review all of the evidence and decide whether or not something was actually a presidential record, even the classified documents.

In another scenario, she could just instruct The the jury that The former president had The right to declare these things to be presidential records with his mind. And neither of these things are true. Neither of these ideas exist in the same planet or legal plane that any of us share. That's what she

0:10:39 Matt: Put out there.

0:10:39 Thomas: Yeah, I that happened and I witnessed not only Matt, but other many other legal experts around the the, I, country, I guess, struggle to find the words to describe how stupid this is. I still don't know that I understand It's the kind of thing, like, we're, many of us are not experts, it's like, okay, that seems weird, but is it? And like it's Just none Of This makes any sense, right? I mean, this is something that would have to be decided before jury instructions, right, was one of the main things. So where, why are you issuing two sets of jury, like, just decide it, and then eventually we'll get to the jury instructions part, right?

0:10:57 Matt: Oh, yeah. Yeah.

0:11:11 Matt: Have to decide the law. And as Jack Smith points out at one point, these are questions of law. You're not putting this in front of the jury. The judge has to decide what the law is before she instructs the jury on the law, right?

0:11:20 Thomas: Okay. So you don't, again, another layer of it being so stupid that it's hard for non-experts to understand. It's not like you get to put in the jury instructions. Hey, do some instructions in case stealing a car is totally fine. Others in case, you know, like you're not allowed to do that. It'S like, no, you just, whatever The law is, is going to kind of determine, more or less determine, the jury instructions, right? Okay.

0:11:37 Matt: Maybe just, but no, of course. And you don't have to take my word for it. You don't even have to take those experts you're talking about. You have to take their word for It. I have a clip here that I've just sent you that you can take this man's word for I think, because this was somewhat unexpected. I found this from last year on and meet the press.

0:11:55 Clip: To claim that he has all these privileges and rights under the Presidential Records Act? Is he mischaracterizing the Act?

0:12:03 Clip: Absolutely. The legal theory by which he gets to take battle plans and sensitive national security information as his personal papers is absurd. It's just as wacky as the legal doctrine they came up with for having the Vice President unilaterally determine who won the election. The whole purpose of the statute, the Presidential Records Act, was to stop presidents from taking official documents out of the White House. It was passed after Watergate. That's the whole purpose on it. And therefore, it restricted what a president can take. It says it's purely private, that had nothing to do with the deliberations of government policy. Obviously, these documents are not purely private. It's obvious. And they're not even now arguing that it's a purely private document. What they're saying is the president just has sweeping discretion to say they are, even though they squarely don't fall within the definition. It's an absurd argument.

0:12:59 Matt: So there you go. That

0:13:00 Thomas: Which resistance hyper liberal communist legal analyst was that, Matt, in case people couldn't tell by the voice, god

0:13:02 Matt: I was a friend of the show, Bill Barr. Yeah, very clearly stated. You'd never know that he had done all that toady work for Trump, the way he's so... He's found all this moral clarity since he left. I guess it was just in his soccer, along with the other things we're talking about. So So I actually started when I was looking at these two responses. Obviously, Trump filed his thing and Jack Smith filed his response to this very weird order because, again, this order is not saying I'm going to make a decision on your motion to dismiss. It's just saying, give me some jury instructions. Let me see how I can play around with the law here and what we can do. Very, very strange.

And almost intentionally, I think, has to be intentional, setting this up so that she's not making a firm decision of law that can be appealed. She's just sort of saying, here's some jury directions. Jack Smith calls her on that, of course. But I wanted to start with the Trump response, because it's only eight pages. And this is pretty funny, actually, all of this. So Todd Blanche is Trump's new sort of main defense attorney. He's actually a defense attorney on three out of the four pending cases.

I don't know when he's sleeping. Thing. He actually left a very, very reputable law firm, Cuddlewaller, Wickersham, and Taft, which, as you might be able to tell from the name, was founded in 1792 to

0:13:08 Thomas: So weird weird Wow What

0:14:16 Matt: Start his own firm, pretty much just to represent Trump. And you'd think maybe he could have checked in with Michael Cohen about how that goes, but that's his new job. It's just being Trump's lawyer. Actually bought a house near Mar-a-Lago just so he could hang out with him more. And yeah, no, he's representing him in New York and Florida, and I believe D.C. will be his second trial in New York as a defense attorney. He's been a prosecutor for his entire career, and he's having a lot of fun being a defense authority, I have to say, to

0:14:22 Thomas: The Hell Yeah It reminds me of, it's an old Simpsons joke I think where they're trying to say that Lisa's ballet coach is like super duper strict. And you're like, yeah, he defected during World War Two to Germany. It's like, wow, this guy, even after all that, like not in the year 2015, 16, 17, like even today, whoever this defense attorney is, is like all in. I'm going to build a house. I want to be buried next to Trump. I want all. Can we be holding hands? Like what? Is crazy.

0:14:53 Matt: Germany. Yeah, no, I'm tired of having a reputable career. I'm done with that. It's been good run. I am 49. Let's just throw it all away. There was literally a New York Times story this morning with people trying to understand what he's doing and why he's doing it. It's not like he's going to get paid. We know that, too. Well, it was not in full, can't even really be that. Very quickly, looking at this eight -page response, difference between the Trump response and the Jack Smith response is pretty stark. I mean, Jack Smith did his homework, and Todd Blanche just kind of scribbled something on a napkin a hours before it was due. We've all been there, but I expecting a little more part of the Trump team because

0:15:12 Thomas: Weird. Yeah. Yeah. I mean, if you're dedicated enough to do all the other weird crap you described, like, at least put some work into whatever the heck this is, right? Yeah.

0:15:45 Matt: Judge has just handed you the case. She said, go ahead and show me how I can throw this case out. So why don't you do that?

0:15:47 Thomas: Well, Okay. Other question is, it that the game here is just delay, delay anyway, so it's like, yeah, we don't really even care about what the content of this is, so

0:16:00 Matt: I Maybe. I mean, maybe, maybe they really know this is never going to happen, but they did attach. Now I don't see the attachment here. I guess it is available, but they, I don't really care. They attached their own proposed jury instructions for the first scenario. For the second scenario, they didn't actually even bother writing up jury instructions like she'd ordered, because they said correctly that you find that this is the law that you want us to instruct on for the second scenario, then we win. So we're good.

0:16:24 Thomas: They should have just written, "Here's the instructions, go home, everybody, have fun."

0:16:27 Matt: Yeah, we're fine. Yeah.

0:16:29 Thomas: Tip, tip your servers, you know. And parking can be validated. Actually, no, you didn't do anything. So no validation on parking. I'm sorry. You're going to have to pay yourself.

0:16:36 Matt: No, no, no. It's true.

0:16:38 Thomas: Yep.

0:16:38 Matt: It is true.

0:16:39 Thomas: That's our jury instructions, Your Honor.

0:16:40 Matt: But think it's really worth putting some light on things like this when lawyers do these things, because I think that they they're not counting on their own people to read this and analyze it. They're not really counting on us, because we're going to get all excited about the Jack Smith response, which is worth getting excited about. But, I think, it's also worth looking to see what they're actually trying to say. Mean, it is just incredible when you actually strip it down to the component parts and and what they're actually saying should happen. Agree with you that getting high is a lot more fun and more useful than what these people are doing, but you've got to be high on something to put this to paper, I really think.

0:16:52 Thomas: Yeah.

0:17:10 Thomas: Fascism. Can you smoke fascism? I don't know. I think they grind fascism up into a powder and then they shoot it up. I don't know. Something.

0:17:12 Matt: That's true. Yeah, no, I think you can be high in fascism. My interest. But we to repeat again, because I think it's so funny. There can be no appropriate jury instructions relating to factual issues in scenario B, the one where she just says what the law is, because that scenario forecloses prosecution of President Trump on counts 1 through 32. It's easy.

0:17:34 Thomas: But as you say, I mean, they' re right, right?

0:17:36 Matt: Yeah. No. Went and said it. I thought they would play along and write up scenario instructions, but they're like, no, we win. We're they make much of a case called Judicial Watch v. NARA from 2012. And we're going to be talking about Judicial Watch. I might as well talk about it now because you might remember Tom Fitton. We've mentioned him briefly before, but one of my favorite MAGA characters, he's the kind of guy who wears tight short sleeve t -shirts all the time. Can you picture him when I say this?

0:18:00 Thomas: Think he played Draco Malfoy, right.

0:18:02 Matt: He's got the hair. Yeah, he's got the hair

0:18:04 Thomas: Do I? I always hear that name and I think it's him. What Felton, that's his name. That's why. Oh, okay. So what's this guy's name? Ah, okay, that'S, I 'VE BEEN PRETTY CONFUSED FOR A FEW YEARS HERE. Tom Felten is the actor that played, you Malfoy in the Harry Potter movies. I thought that'S who we were talking about. I 'VE BEEN, I FEEL REAL EMBARRASSED. Okay, let me, I've crossed out some of my notes.

0:18:09 Matt: Felton Tom Fitton, which I see. Alright Yeah, well Tom Fitton is a conservative activist He runs an organization called Judicial Watch and you'd think with a name like That that they're actually watching the judiciary, judiciary, but no. Mission statement, let me just... Judicial Watch seeks to promote transparency, integrity, and accountability in government and fidelity to the rule of law. So as you can imagine, an organization with that description was very busy during the Trump years, mostly trying to get Hillary Clinton's emails, but his Twitter was incredible during the Donald Trump years. It was really something to behold, hold, because he was just pretending that nothing else was happening, that you know, that there was no other Malfeasance, nothing could possibly be going wrong, just Hillary, Hillary, uh, so talked about the Clinton socks case, right, that Trump keeps bringing up, about how Clinton had 79 audio tapes in his sock drawer, which I don't understand Even Where that fact comes from, but

0:18:35 Thomas: Oh, yeah. Yeah.

0:19:13 Thomas: I Don't Remember how much made got it in, but Matt and I had a, a confusing moment where I was like, they're talking about the guy who snuck the papers out in his socks, right? And you're like, no, is he a Book he was writing in his sock drawer, and both of us were certain, like, there's no, how could there be two sock related Clinton secret, secret documents things? And then afterwards I checked up, I was like, oh, it's because there are two different ones, and we're then

0:19:40 Matt: Well, Then there was Socks the cat, you know, it's just How are you supposed to Keep Track Of all, everybody Loves Socks The cab

0:19:42 Thomas: There Was Toxic That Was a very confusing Day, but yeah, no, so not The The One. Where the guy was sneaking out the stuff in his sock, but where Clinton had the tapes in socks drawer, and Indisputably property, right? Or at least that was the, the ruling

0:19:45 Matt: Oh Allegedly. Right. They were tapes that were made in anticipation of a book that came out in 2009, Judicial Watch sued in 2010. And they tried to get the National Archives and Records Administration, NARA, to say that these were presidential records, and that somehow NARA had some kind of right to get them. And NARA's like, what are you talking about? We never had them. We don't have the right to getting them. They are not presidential records.

We don't know what's in them, but it appears they were for a memoir. And so there is this case that came out, and I'm mentioning this particularly because there's a very funny thing that happens after this, which becomes central to Jack Smith's response.

So this Judicial Watch case, the judge reviews this carefully and says, look, based on the existing case law about the Presidential Records Act, and there isn't that much of it, really, any judicial review for document categorization, if President Clinton wants to say that these are personal records. There's nothing in this record that would show me that these are, in fact, not personal records. There's no reason to believe that they were made in the course of being the president.

They were, you know, because Tom Fitton was trying to argue that these were somehow like recordings of him being the president, rather than talking about being the president, right, a very important difference there, but none

0:19:53 Thomas: Yeah. Really

0:20:55 Matt: Of this has anything to do with classified documents, very importantly.

0:20:59 Thomas: This is like the Nixon tape, they were trying to make it out to be the Nixon tapes, which was stuff that, yeah, Nixon obviously had to turn over, famously But that's still, they still weren't classified, that's a different thing, okay.

0:21:07 Matt: Of as Barr mentioned, the PRA was passed to try to keep that kind of thing from happening, so the president couldn't just unilaterally take everything with him. So there had to be some distinction Between personal and presidential. And the Judicial Watch case does not say what Tom Fenton really seems to think it says. Tom Fitton went ahead and told Trump, this is the really funny part. He told Trump that you can go ahead and keep those documents because I have this case from 2012 where we got a judge to say that there's no review of a Presidential Records Act determination. And this was in the news at the time. It didn't make a lot of news, but I loved it because, again, Tom Fitton, one of my favorite Twitter characters, is in the news being really embarrassed because it's coming out that this guy who's not even a lawyer advised Trump to go ahead and commit a major federal felony. Go ahead and head on to those, because I, this one thing happened to me with some socks, and you know, I, whatever.

0:21:19 Thomas: Boy Yeah

0:21:57 Matt: I mean, just it's Nonsense And

0:21:58 Thomas: I Know that There is some amount of, of protection people have for if they rely on the advice of attorneys and the attorneys are wrong for some reason, right? I mean, there's some amount of, like, hey man, my attorney told me like this was fine, and it wasn't. So I feel like, you know, that's a reason it could be a reasonable thing. But if you just rely on some guy who stayed at a Holiday and Express last night, you know, to make it really dated reference.

0:22:20 Matt: And Looks Some Guy who looks great in, uh, short sleep t -shirts Yeah, that's That's I've Never seen him in a suit, uh, mean, literally, you can find his Twitter right now. The pinned video on his Twitter is a video of him, like, talking to the camera, very prominently showing off his guns, like he's got his arms are out Like They're And He This guy works out He Is in possession

0:22:24 Thomas: Yeah. Well, he looked very lawyerly, your honor.

0:22:38 Thomas: You Your Honor, look at those guns. He said he named them law and order, and then he kissed his biceps one at a time each.

0:22:43 Matt: Pretty Much, pretty much, it's like his whole deal. And of course his name is Tom Fitton, right? So It's even better It's Just Right in the name. Anyway, so, uh, let me just tell you about the, the conclusion of Trump's eight page response, in which they dial this in, they barely even try. Um, want this whole thing dismissed because it has failed to state a defense because there's no authority to second guest Period categorizations. Say that the lack of legal authority and historical precedent support our motion to dismiss, because this has never happened before. We've never had a president prosecuted for holding onto classified documents, so obviously it's selective prosecution.

0:22:50 Thomas: Oh, there we go.

0:23:19 Thomas: I sure this all makes sense to you, but I'm actually wondering specifically what's the difference there? Because it seems like the Sox case, it does seem like it was like, well, well, there's no reason for us to assume that these are presidential records. Don't have any evidence, and so, therefore, we're going to let the whole thing go. What's the difference between that and something like this? Is it that, for one, they already have them because they seized them, and so they can just check, right? Sure there's several differences. But there's an air of plausibility to the idea that it's like, yeah, see, they can't review this. They don't Have the authority to go in and make these determinations.

0:23:55 Matt: Well, Mm and that's, I mean, they probably had a cause to believe that he was holding on to not just records that he accrued while he was president, but classified agency records. And the PRA specifically excludes agency records. You can't just walk off with these things. And of course, as Jack Smith points out again and again, and has continued to point out, the PRA has nothing to do with the Espionage Act, which is the thing he's actually charged with, which is unauthorized possession of these documents, right? It's just completely unrelated. Unrelated.

0:24:03 Thomas: Yeah Right Yeah Yeah

0:24:20 Matt: It's really possibly review my bank account, and I'm just going to tell you every dollar in that bank account is accounted for, and meanwhile the government knows that you had previously held up a liquor store or something and has probable cause to look at your bank account.

0:24:33 Matt: You have the money in your bank account doesn't mean that it is yours, or that you're supposed to have it. There are times when the government gets to look at these things, as much as we might not want them to. Um, that's a very important question, because this is why this goes into the territory of, I guess, I will just say, straight up bath salts Law, like we are out of Out Of range, I think we Found something Here Maybe, yeah Because cannabis is a little too fun, this is bath salts. This is when you actually read it and you're just, how could this be happening? Well, how am I looking at this right now? Like, did a lawyer get paid to put this on paper and file it with a federal court.

Number three, for similar reasons, argue the motion to dismiss based on prosecutorial misconduct and redo process violations, of the one that already filed requires a hearing and should be granted because all of these agencies colluded on the basis of non -existent authority under the PRA to demand records and responses. That didn't happen. Nobody said the PRIA had anything to do with this, to which they are not entitled. And they were claiming that the search warrants were based on legally meritless and unprecedented PRA arguments, which, which is just totally fictional. Nobody

0:24:47 Thomas: There There We Go I Like That Yeah So

0:25:32 Matt: Was talking about the PRA.

0:25:32 Thomas: It's Like Okay So It's like they draco mouth, Tom Fitton has a seriously terrible, terrible misinterpretation of this case. And that was allegedly possibly part of Trump's justification. Although, I guess that part doesn't matter. And now they're saying, okay, despite the fact that in actual reality, town where we're not on basalts, this was not even the thing he was arrested under, like this theory, this law, this whatever, it's not even a thing that it's arrested under. But then they're still saying, oh yeah, well, it was collusion under this thing that I'm, I'm still insisting it is, that it isn't, in order to, yeah, okay, this is, wow, I see the bath salts compare, stop

0:26:07 Matt: It was your theory under the PAA. You're the ones who came up with this, right? When in fact, it was the defense that completely came up this like two years ago. So, I mean, again, fourth, they're challenging the search warrant, continue to challenge the search warrants, which I think the suppression motions, I don't know, maybe that hasn't been fully litigated, but that the executed search warrant that was used to raid Mar-a-Lago improperly delegated review of PRA categorization decisions to agents executing the warrant. No, it didn't. It said there are classified documents, go get them. That's what it said.

0:26:37 Thomas: Saying P-R-A, it's not it, that's not what it was, they just think if they say it enough times, it is like someone will forget and be like, oh yeah, this, okay good point, the P-R-A, no, it isn't, it's not that, yeah.

0:26:42 Matt: It's the Trump strategy. It should just say something again and again until maybe there's something to it because

0:26:54 Thomas: I

0:26:54 Matt: You keep saying it and it's an emotion. I mean, it sure is fun to put things in motions is what I'm learning here. I wish I were this creative.

0:27:01 Matt: The balls on these people. It's great. I really enjoy it to certain degree. If it weren't actually about one of the most important criminal cases in the United States history and that really needs to be decided as quickly as possible, this would be a lot funnier. But yeah, so that is the Trump response, which really just comes down to some bullet points about why we're right and why this case should be tossed and why this is actually all about the PRA. And you can imagine the Jack Smith response, 24 pages, which we've been waiting for.

I was very excited about the prospect of, and it has not disappointed, I have to say. I've never seen one filing say that a judge is wrong in so many different ways. It's fantastic, it's beautifully done. This is whiskey right here, this is, this is a good whiskey decision or whiskey writing, this is what I will, what I'll say, it goes down nice. Um, again, I'm not trying to glorify Jack Smith or prosecutors too much, prosecutors will not save us, um, still not necessarily a fan, but I appreciate what they're doing here and in terms of, yeah

0:27:30 Thomas: Am

0:27:49 Matt: Yeah

0:27:48 Thomas: So sick I'm sorry, Matt, this is a personal I hobby horse or whatever, I'm so sick of the framing of prosecutors saving us, as though just doing what the law is, is because it really is recasting something inappropriately. It's recasting the, should be the rule of law that everyone is subject to, recasting it as, no, it's actually a thing that a person, an official, someone with power in the law enforcement, person of doing for us, like to save us, like, oh, they're doing us a favor by having this guy be subject to the rule of law. How nice of Jack Smith to do that this isn't that, that's such a bad framing that I know people use and it just frustrates me to no

0:27:50 Matt: Mm -hmm, yes yeah right yes right yeah no

0:28:29 Thomas: End, yeah and

0:28:30 Matt: Moeller too, right? Same thing I mean it's again, that's literally his job and And again, you know, both hardworking guys who have, you know, obviously great legal brains, but you again, this is my bias. I'm certainly I think everyone knows where my biases are, but I just don't think that it's good to glorify prosecutors any more than it is to glorified cops. I think that we have to be suspicious of any given government agents motive. We have to at least examine them without accepting them wholeheartedly. It just happens in this case that this is a righteous prosecution and it needs to happen and that justice has to be served on this particular defendant. There's just no question, but that's enough of my preaching.

0:29:00 Thomas: If it is served it won't be because he was trying to save this, it'll be because that's the effing law, okay who does his job, his job, he's doing his job

0:29:03 Matt: Right. Yes. And he's the guy who had to point it out. Yeah. Right. Smith in several different directions of different ways tells the court Judge Eileen Cannon that she is completely out of line, that this is the weirdest thing that he's been asked to do. And I really appreciate the passive aggressive way. It's not even, it's mostly just aggressive. It'S not even really passive aggressive because the headings, I mean, You know how much I love headings because, you know, again, he's been told to come up with jury instructions. So one of the headings is government's proposed jury instruction. The jury is correctly instructed that unauthorized possession is based on executive order 13526, not on the PRA. So our first proposal is that you correctly instruct them on the law.

How would you like to try doing that? Second proposal for scenario A is the jury, yeah basically the jury is incorrectly instructed that the defendant is authorized to possess any personal record regardless of classification, and the jury has then asked to determine whether each document is personal or presidential. I really like that, just straight up, he's like, here's your jury instruction if you really want it, but it's wrong, you no no he's telling her that, like, I'm giving, it's, it's, I mean, it's this, maybe isn't a fair comparison, but it's like when you're being forced by your parents to tell somebody that you're sorry, right? It's just like, you clearly don't want to do it, like you don't want to give this apology, he

0:29:50 Thomas: Yourself no sorry, oh I so he's like within it, the jury instruction, you'd be saying, hey jury, this is all wrong, uh, that what he's saying okay, I didn't understand the language, that the jury is incorrectly, put what

0:30:24 Matt: Though so scenario A, so he's saying you want you want me to address the scenario, right, so judge yeah right, you could just wrongly instruct them in the law, that's an option, you always have that option

0:30:25 Thomas: Oh oh so he's titling the scenario. Oh, okay. Okay. Okay, gotcha. I thought that's what he was doing. Okay that's a level of snark that I'm sure he didn't want to get to because that would be what I would do. It would be, hey jury, let me give you some instructions. Here you go. This judge is an idiot, so why don't you pretend to listen to what she says and then just ignore it and do what the law is, if you don't mind. That would be my satirical ones I'd pop in there.

0:30:39 Matt: It's pretty good yes to just I will Is now my role to incorrectly instruct you on the law, yeah. I I just, again, just the direct language, the moral clarity of this, the legal clarity of it is very good. "Jury instructions premised on the erroneous legal supposition 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. 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. Relevant. The PRA does not speak to authorization to possess classified information, let alone in an unsecured facility. The government nevertheless sets forth below draft text." I love that.

0:30:59 Thomas: Yeah. Yeah,

0:31:38 Matt: You made us do it, and we're going to do it. Other side, of course, Trump didn't even do his homework for the second scenario, just skipped it.

0:31:39 Thomas: Yeah. So, it's like, okay, the law says you can't steal a car, and Trump had a bunch of cars, and she's like, why don't you write some jury instructions for if cars are actually trees?

0:31:50 Matt: Or community property.

0:31:57 Thomas: Yeah, and you're

0:31:57 Matt: There's just something we we can all have

0:31:58 Thomas: Like, yeah, I can't, because that wouldn't make sense. You can't write that. If you did, it would be nonsense. Okay.

0:31:58 Matt: Right yeah And this is what I was pretty much expecting him to say, but I really do appreciate seeing it in print that he's just telling her you're wrong and I can't do this and you can't this either. Uh, B, there's the other, the other heading here, uh, "Jury is incorrectly instructed that the defendant is authorized to possess any record that he designated as personal," etc, etc, and then like going on in the heading about why she's wrong. Um, "B also incorporates additional layers of erroneous legal propositions at the core of Trump's legally flawed and factually unsupported PRA defense." What do you really think, Jack Smith? "As to this scenario, the jury instruction would amount to nothing more than a recitation of Trump's PRA offense as presented in his motion to dismiss and result in directing a verdict against the government." Yep. So, yes.

0:32:41 Thomas: Scenario five is the jury's instructed that Mr. Trump is very handsome and amazing.

0:32:49 Matt: Yeah. He's not happy, and he says directly in his conclusion, if the court does not reject this erroneous legal premise, it should make that decision clear now, long before jeopardy attaches to allow the government the opportunity to seek appellate review. I want to appeal you as quickly as possible. How can I do that? Can you put me in that position? That's what we were expecting, right? That he was going to try to find some way to get this in front of the 11th Circuit. But he also threatened something that I'd heard people talking about, but I didn't really think he was gonna go that far. Also specifically reminds the court that he has the right to file a mandamus, which is something you hardly ever see in a court. So mandamus is an ancient writ that essentially makes the government do something that it's supposed to do. And you don't see that issued against judges very often, because usually they don't have to be told to do things

0:33:00 Thomas: Yeah. Or would

0:33:34 Matt: They're supposed to. We have to file them against something like the immigration agency here in my practice to make sure that they actually finally issue somebody their green card after four years of waiting, right?

0:33:43 Thomas: It be the of kind thing that you'd have to issue Kim Davis to be like, hey, do your effing job and actually give these people marriage certificates? Okay. OK, so it's that kind of thing. So finding this to a judge is a weird thing, but seems appropriate, maybe.

0:33:46 Matt: Right. Exactly. Do your job. Exactly. Yep. Yep Yeah, it's very strange, right? Seem appropriate. He cites a Fifth Circuit case saying that the courts have permitted the government to obtain writs of mandamus when a proposed criminal jury instruction clearly violated the law. Hint, hint, right? He's threatening directly if you don't give us a chance for appellate review that we are going to file mandamus and try to get this out of your courtroom. Room. Yeah.

0:34:13 Thomas: That's comforting because it was again, felt like this one weird trick to just ruin this case was, well, if she just leaves this aside and doesn't decide in the right time and then awaits until jeopardy attaches, bam, he's free to go. I guess this sounds like a remedy that has someone thought of at least once before.

0:34:26 Matt: He's not letting that happen yeah Yeah, I guess, you know, every so often judges do take bath salts, apparently. That does happen, so we have to be prepared for that, uh.

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0:36:06 Matt: The other thing I wanted to point out about Jack Smith's response, uh, was that he has pages about Tom Fitton, which is why I set this up before, uh, really wants you to know, which again I already knew because I am a Tom Fittin, you know, follower, um, a big fan, obviously, but he wants you, you to know that it is Tom Fitton's fault that we are here. He really has to get that in there. Has paragraphs about it. Well, he's making a good point. It's not just to embarrass Tom Fittin, which needs to be done anyway. But he's saying that suddenly, out of nowhere, Trump came up with this defense when Tom Fettin told him about it, when he had not been saying this for a whole year before that.

And he's saying that your whole thing might be more plausible if he had maintained this from the beginning. But they were basically saying these are presidential records right up until Tom Fenton was like, no, go ahead and just say they're personal. See what happens. Writes, around the same time, the judicial watch president, who was not an attorney, told another Trump employee, unclear if this person's an attorney that Trump was being given bad advice and the records that Trump possessed at Mar-a-Lago should have been characterized as personal. The second employee advised the judicial watch president that they disagreed with his analysis.

And the second employee further informed Trump that the Judicial Watch president was wrong and explained why. Nevertheless, on February 10th, 2022, Trump released a statement claiming in part, et cetera, et cetera. So he's saying there's a direct line between what Tom Fitton told you and what you were stupid enough to say. Now this is your whole case is Tom Fetton's stupid theory that misunderstands his own case, the case that he was in.

I just think that's a fun detail that we're here because of this swole dude who looks good in short T -shirts. Am really, really curious to see what happens from here because he's thrown the glove down. She can't ignore this. She has to do

0:36:25 Thomas: That's weird. Okay.

0:36:42 Thomas: Right. Yeah.

0:37:39 Matt: Something with it.

0:37:40 Thomas: That true? What is the, I mean, I don't know. I always worry that judges can do whatever the F they want. I don't, that's what I'm worried about. I get that he's made a very fancy piece of paper that says, hey, hey you, do you bet or not? But like, what is the actual enforcement mechanism of that? Just filing this writ of mandamus?

0:37:56 Matt: Have to roll on the motion to dismiss. The mandamus would be for sure. These are the jury instructions, he's saying, I've got case law that says, and I can go ahead and file mandamus if you issue completely illegal jury instructions.

0:38:06 Thomas: But But what if she just doesn't make that decision until too late?

0:38:10 Matt: Right. Well, that's what he's saying at the end, is that I want you to make a decision. And she has to rule on the motion to dismiss. So if she rules on the emotion to dismiss on the PRA, she finds that there's something to it, then that's what happens.

0:38:19 Thomas: Right. But that's so, okay. Motion dismissed. Just to clarify, that have any connection to these jury instructions in a real way? Way like

0:38:25 Matt: It does, because Smith points out, that is his argument, is that the PIA applies and that's the end of the game. So instead of ruling on on whether or not it actually applies, she's going down this weird path of the jury instructions. She's already denied the motion, you might remember, but she denied it without prejudice. And she said, go head and bring this back to me when we're a little further back along in the case. And Jack Smith is saying, no, don't do that. Because what she's essentially saying is, you can bring it back to after jeopardy attaches, and then we'll go ahead and see how we feel about it then, after we've heard a little more of the case. He's saying, I want you to make a decision that I can appeal, and if you don't do that, then I'm going to file mandamus. No.

0:38:56 Thomas: But this weird jury instructions, uh, creative writing exercise that she assigned is not part of the, is it? Right, how could it be, right? So

0:39:04 Matt: No, but it's in a sideways way, because she was saying the motion dismissed, we're not there yet, it's too early, but you can, you know, renew it, she didn't make a decision, but she's saying pretty much explicitly by putting these scenarios forward that she thinks there's something to it and that she could actually issue these instructions. So it's, it's very strange. It's not, it's a too strange for me to get my head around sometimes, because it's also completely out of line. Um, bath salts will do that to a person.

0:39:27 Thomas: Guess then what's the next thing to happen? I mean, she's done this creative writing exercise, she, something that needs a ruling, like, I know she's just making shit up, right? So I

0:39:36 Matt: If she were to come out and say, I am adopting these jury instructions, this is what we're doing, that would be appealable, and at least be a mandamus, right, from what he's saying. But I don't know what's next. And obviously, there is supposed to be a trial date, May 20th, right? That nobody thinks is happening. There's just no universe where that's ever going to happen at this point. And she's just kind of dinking around with these things. And we're not getting anywhere closer to to an actual trial. I, who knows what comes next, there's still a few other motions to dispose of and whatever, but uh, little exercise has ended for the moment, and we'll see what happens with it. But it was a good opportunity for Jack Smith to really vent and to say what he's been thinking. It time to get the floor for him, uh.

0:40:07 Thomas: Okay. So is actually like in the real world, if we were doing a real thing here, what's next on the agenda or the docket or whatever, like what would be happening now? Oh.

0:40:18 Matt: We'd be scheduled for trial and actually determining, you know, motions and lemonade and evidentiary issues and looking through the discovery and making sure, sure that everything is complete and making sure the defenses are nailed down. Remember the thing we talked about about whether he was going to rely on advice of counsel or whatever, we still haven't got to that yet.

0:40:30 Thomas: Yeah. Yep. Yep. And So and and like, am, when do you normally do jury instructions, isn't that toward the end, or do you do it in the beginning? Okay.

0:40:33 Matt: Uh It depends on the trial, but you usually will at least have a date scheduled, but if it's a particularly complex case, I don't think it's that unusual to, you know, before trial starts to really, but usually it's something you're going to argue about in most cases, like during the trial, you know. Just about, but it's usually not that controversial because you're just talking about a statute that we're all familiar with. There's usually a standard set of jury instructions for every statute that the judge can draw from.

0:40:46 Thomas: Okay. Hmm. Right.

0:40:58 Matt: And maybe you can request some modifications based on whatever the case is. But there's nothing normal about any of this, obviously. So you can

0:40:58 Thomas: And So she's putting off the things they normally should be doing to do this and

0:41:07 Matt: Yeah. Just jerk around. That's where we're at. So lots more jerking around to look forward to, I guess, if she stays on the case. Maybe this might be the thing. I don't know. I do not want to say it out loud, but maybe this will be the thing that actually gets her off the case, who knows. He made a point, actually, which I really appreciate it, of quoting our very favorite language from the Fifth Circuit, which I actually want to read again because it's too good. For our part, we cannot discern why plaintiff would have an individual interest in or need for any of the 100 documents with classification markings. Classified documents are marked to show that they are classified, for instance. And he quotes that specifically to remind her that the Fifth Circuit has already looked at this in the process of reversing her, just

0:41:09 Thomas: Okay. Yeah. Was

0:41:47 Matt: In case she forgot that she'd been reversed twice in this case on these kinds kinds of things. So maybe that sticks. Maybe it doesn't. We'll see.

0:41:54 Thomas: Everything you hoped it would be, yeah.

0:41:55 Matt: Was pretty good. It was really good. I think that was as much as you can expect from all this.

0:41:56 Thomas: Good. Stuff well. Well done. Jack Smith can't wait to, uh, see where that part of it goes. Holy.

0:42:04 Matt: We can talk about New York because things are actually happening in New York. There is actually a trial date and we have learned for sure, it is actually going to happen and nothing will stop it. Because it's Really, yeah, no, he's tried. He's even threatened, at this point, Trump has threatened a last minute motion to recuse, to try to get Judge Marshawn off the case. And it sounds like it's basically just recycling the motion to accuse that he filed back in May, last May, which he was saying that the judge somehow had some kind of partisan interest. Again, talking about his daughter, I think we talked about this last week, that there's been a lot of noise about the fact that his daughter in some way works on Democratic political campaigns, somehow would have something to gain. She's a rabid Trump hater, et cetera, et cetera, of that's going to happen. But in his response, so let's just talk about what has just happened this week, which was that the gag order that was previously filed last week was expanded because,

0:42:11 Thomas: Crap, no. Way.

0:42:48 Matt: As you might remember, Trump within hours went after the judge's family, which you should not have to be told not to go after the judge's family. But the prosecutors filed a motion to clarify the order and suggested that maybe, maybe the judge might want to include his family and the family of the D.A. in the order. And the judge had to agree.

0:43:05 Thomas: At At a certain point, is it easier to say who's not covered by the order? Just, I'm not, for example, uh, Thomas Smith, you know, some other people.

0:43:08 Matt: Right. Yeah. Just. Although maybe. I mean, if we keep talking about it, you might need to pay.

0:43:15 Thomas: But who knows.

0:43:16 Matt: Who knows? Who knows. This is another bath salts response from Donald Trump. I mean, this is incredible, because they filed an opposition to the very reasonable request from the government to expand the gag order to include people that he's already gone after. Talking about how it's all constitutionally protected, and there's no reason, basically, that he can't go after family members of the court. Totally fine, and that he has the right to do all of this, and he must be permitted to speak. It's just more important than anything else. He even tries to suggest that Marshawn at one point has violated his own judicial rules by speaking publicly about the case to the Associated Press. And what Marshawn said about the case was that he is striving to make sure that I've done everything I could to be prepared and make sure we dispense justice. Very controversial. He's going to be a good judge, is what he's saying. There's no agenda here. We want to follow the law. We want justice to be done. That's all we want. And Trump is like, look, you're doing it too. You're talking about the cases. You're slamming me.

0:43:54 Thomas: Yeah yeah it

0:44:09 Matt: This is desperate.

0:44:08 Thomas: Reminds me of the, like, you're not punishing people who said, said that the was not rigged, you can't get out there and say, boy, I hope I do a good job as judge, that's the same as me, you know, saying that your family members should be killed or whatever, yeah.

0:44:12 Matt: Yeah. Oh, we're going to talk about that, too. That's that's back in play.

0:44:26 Matt: I just have to read. Moreover, President Trump's comments concerning your honor's daughter. That's never good. Your honor's daughter in a motion like that's never going to go well.

0:44:35 Thomas: What, that's talk about new, there's a Reddit that's like r/news brand new sentences, that's a new one, your honor's daughter, why would that be in the thing, like that can't have come up that many times, yeah.

0:44:41 Matt: Yeah. My comment. And this is not in the prosecution motion. Mind you, this is in the defense saying that it's totally fine for him to go after the daughter. Yeah, yeah. Yeah. No, I just want to be clear about that. President Trump's comments concerning your honor's daughter are properly understood as a criticism of the court's prior decision not to recuse itself. So that's fine. I can keep talking like this. Yeah. People's attempted distinction between criticisms of your honor and references to family members of the court are illusory. Again, this is what you get paid for, I guess, is to say things like this.

0:44:52 Thomas: No I know it's yeah oh okay so is that just an argument that like, since we're okay to say whatever we want about you, that means we can say whatever we want? We want to talk more.

0:45:18 Matt: By extension, because you haven't recused yourself, so anything goes. Fair game. Game. So Marchand came out pretty quickly on this and was very clear that he is not having it, that he's going to grant the people's motion, and that he's going to expand this because the defendant, as he continues to call him all the way through, he doesn't call him President Trump or former President Trump or anything else. He just calls him the defendant, which I really like.

All the way though this thing, he's saying, there is just no way that you can keep talking like this. And he's not going to be baited, most importantly, because that's what Trump is trying to do. He's trying to get him to do anything that would require him to actually recuse himself. And he did the same thing with Chutkan.

I think he did the same things with Engoron over and over again, where he was trying to get these judges to lash out at him or to say something that sounded prejudicial or that would, you know, this is desperate stuff. It's obviously Hail Mary last minute. Let's just see if we can get the judge off the case.

This is very famously, this is something that pro se defendants, and nothing against pro se defendants usually, but this is something they love to try to do is to try and find some kind of personal reason to get the Judge disqualified or to bait the Judge to do this. But in this case, he's just paying people a lot of money to do it. So, you know. And he's making it very clear that this is going to move forward, that nothing is going stop this trial. In his response, Trump actually asked for a leave to file another motion to recuse.

0:46:25 Thomas: About your daughter?

0:46:26 Matt: Yeah, pretty much. I'm not done yet. I got more material. But yeah, he's like at this juncture, we're talking 11 days from trial as of today's recording. Trying to get the judge to allow him to file one more motion to recuse just to see if maybe maybe he'll consider that one with nothing new happening.

0:46:41 Thomas: I I promise. My fifth or sixth try. I have a good argument, I just have been saving it. You... See? Oh.

0:46:46 Matt: Right. So let's talk about the bond for a minute. I know that there's a lot of interest in what's going on with the bond and the other case, the almost $500 million judgment that is growing every day. And of course, as we know, that bond to appeal the case had to be paid out, and that was reduced to $175 million, which is still, still, it turns out, a huge struggle for Trump to pay. And he's been trying to find anybody to back him up on this. And as you can imagine, at this point, nobody wants to lend money to Donald Trump. His only assets at this point are real estate, which people who handle bonds don't really want to deal with. They want cash. They want something that's real. And so he gets a guy named Don Hankey, a subprime lender specializing in auto loans. So one of our best citizens.

0:46:48 Thomas: Yeah. Oh.

0:47:27 Thomas: Man, this is great.

0:47:28 Matt: This company is famous for aggressively tracking down debtors. It's one of Those companies, like Total One Checks. Uh, this, this is another guy you want to borrow money from. That At this point, Trump is clearly desperate.

0:47:38 Thomas: To. This. Is, yeah. It's. Like, okay, um, I found somebody. His name is Benny the Shark. Uh, he's Good.

0:47:39 Matt: And This. Yep. Pretty Much. It's just a couple steps away from a guy with A baseball bat. Yeah. Pretty

0:47:47 Thomas: He's Like I Think there's A payday loan place, Trump, next door, if you want to give That A try. Oh, that's, that's fantastic. Well,

0:47:51 Matt: Much. Yeah. Uh, Oh no, it gets better because, um, tried to go through. This guy has like a subsidiary insurance company, and there are very strict rules in new New York about when you put up a bond like this, that has to be a company that's recognized by the state and that can do business in the state, and they can guarantee its assets. You know, obviously it's a big deal, you're putting up a, that is supposed to secure a judgment, they want to see that it's, everything's correct. Um.

0:48:14 Thomas: Okay, yeah, I'm sorry, all right, just a little bit of clarification. The rule, for us who haven't done this, what's the role of the bond company? Isn't it just money is money? I don't get why money just isn't money. Like, shouldn't there just be, okay, put up or shut up, right? What is the reputation of the loan shark and all that matter?

0:48:34 Matt: Have to go through one of these insurance companies to post one of these bonds. Uh.

0:48:36 Thomas: Does the bond go? Is it, is that what it is? It's not going.

0:48:39 Matt: Is a little different from, like, a criminal bail. Um. New York insurance law. Here.

0:48:41 Thomas: Ah, okay. I think I was thinking of it like that. Maybe that's why. Okay.

0:48:45 Matt: Yeah, New York insurance laws, uh, 11, license of insurers, 1111, uh, B, whenever by any law of the state a bond, undertaking, they call it an undertaking a lot, which I'd never heard used for this, but recognizance, etc., etc., is required, permitted, etc., etc., uh, may be executed by any insurance company authorized to do in this state the business of executing such instruments and empowered by its charter to execute them. So it does have to all kind of go through these proper channels, and it has to be something that they can recognize because they just want to be sure this is all backed up.

Because, for example, if you're putting your house up as collateral, your house could lose half its value tomorrow, right? If you're putting up cars or other kinds of property, because they want to make sure there's real money backing this, that there is real business backing this. And so along with the bond, you have to submit a certificate showing that you're properly registered as an insurance company and that you can do business in New York. And they didn't do that. They didn't include that in their bond. So it was rejected.

0:49:19 Thomas: Ah, so Still, so sorry, this is probably so dumb, but like what, what is actually happening when you put up something? What does that even mean in this context then?

0:49:43 Matt: A guarantee, right? You're having somebody, a third party guarantee that this money is going to get paid if it needs to be paid. Because it's a big deal. They're allowing you to defer a massive judgment that should be paid out to somebody that was supposed to be be paid to, in this case, you know, the state of New York. But you know, think about somebody like E. Jean Carroll, who doesn't have the kind of money that Trump has.

0:49:59 Matt: You want her to get paid. You don't want it to just sit there for years and years while he does his delay stuff, so

0:49:49 Thomas: OK. Mm hmm. Mm hmm, yeah. I think I was thinking of it like bail was my issue. So now I'm trying to like switch my frame of reference. So really, it's like you're not allowed to just say, oh, good for it. It's like that's why these companies are involved, because it's like outsourcing the process of like, vetting you and verifying your, all that crap to these companies essentially. And they have to give their, their word is their bond.

0:50:24 Thomas: Their word, our word is your bond. There we go. There's a good, I'm starting one of these companies. That's my, that's

0:50:06 Matt: Right. Right. Yeah. And it's Uh, that's pretty much, uh, this was rejected today, this effort to post this $107 million dollar bond. The real pro is doing this. Uh, I wanted to find the language that they used to reject it, because I thought it was very funny. There is an order from yesterday, uh, the 3rd, 2024. "The court has returned the documents listed below for the following reasons: please include a current financial statement and power of attorney. Additionally, please list the name of the attorney in fact under the signature line of the undertaking." That's the bond. "Please use the refile document link for document number," etc, etc. "Thank you and have a nice day." I just thought that was great. It's a quick, the clerk's office never tells me to have a nice day.

0:50:37 Thomas: Oh, so good.

0:51:05 Thomas: Huh?

0:51:05 Matt: Well, I mean, when you file something in person, they do, but in their written orders, that's really nice. I appreciate that. Thank you, New York clerk's office. So a very polite sort of rejection saying you completely failed to file this correctly. You didn't include any of the stuff you're supposed to. You didn't.

0:51:17 Thomas: And the consequences of this?

0:51:19 Matt: Well it should be that you don't get to post the bond because we're coming up on this, but So immediately after this was rejected, the attorney general, I've never actually seen this before. You've heard this expression a lot about when someone takes exception, but they filed a notice of exception and they said that, please take notice that we are taking exception to this. I actually looked this up under the statute. That is what it's called under a CPLR 2506A, you have to take exception. And they're saying, we don't think that this is going to work, that we take exception to the sufficiency of the surety to the undertaking given by the defendants and denoted his bond number, et cetera, because it has no certificate of qualification pursuant to 1111 that I just read you. And please take further notice that they're going to file, that they have to file a motion to actually back this up.

And what happened was, is when Engoron saw this, is he scheduled a motion hearing for the 22nd in which they're gonna debate whether this is a sufficient bond or not. So we're just stretching this out once again. Think that if it were you and I trying to post this bond, I'm pretty sure they would have just kicked it out and said that's it, that was your chance, but here we are. Yep.

0:51:22 Thomas: Would think.

0:51:41 Thomas: Yeah.

0:52:18 Thomas: That's

0:52:18 Matt: Once again, um, you know, you again, he's got kind of like bottom of the barrel, uh, at this point. He's not working with a reputable company that actually seems to have any of its stuff together, because I've never filed a bond in a case like this. This is not my department. I've certainly never practiced in New York. But it doesn't seem like it's that hard, if you actually do this often, to just put together the package that you need to file this. It's a, a pretty routine thing to put it up if you have a legitimate surety, which you didn't. So just

0:52:43 Thomas: Could be his problem. I think that's his problem, Matt.

0:52:45 Matt: Clowns all the way down. That's the real problem. Just all the way down.

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0:54:13 Matt: Of clowns, we got one more round of clowns if we have time. Coming out of Fulton County, we talked about the First Amendment motion to dismiss last time. And it was exactly the thing you just said about that, you know, these are just words. I can say words.

0:54:21 Thomas: Oh, so good. Oh, are words illegal now?

0:54:28 Matt: A Of course, Judge McAfee, I'm, whiskey decision, but it's pretty well written. You know how I feel. I think McAfee's pretty good for his age and his experience, which is virtually none. I think he's doing pretty well. Kind of gets to the gist of what he's trying to say here in this 14-page decision.

"After interpreting the indictment's language liberally in favor of the state as required at pretrial stage, the court finds the defendant's expressions and speech are alleged to have been made in furtherance of criminal activity and constitute false statements knowingly and willfully made in matters within a government agency's jurisdiction which threaten to deceive and harm the government." In other words, this was not just regular political speech. You're actually trying to do something bad.

The citation startled me a little bit because I recognized the citation that he used right after this. He talks about even core political speech can be restricted when it's trying to further their criminal activity. And he cites to U.S. v. Rahman from 1999, which is about, you might have heard about the blind sheikh Omar Abdel Rahman, who was out there actually preaching jihad and talking about how it was time to carry out terrorist attacks. He's comparing it to that.

That's the citation he uses to talk about how you don't just get to say things. Quite a comparison. Trump was bringing an as -applied challenge in this case, which just means he's not saying the statute is unconstitutional, he's just saying it's unconstitional when you apply it to me in this way. You know, typical sort

0:54:28 Thomas: Because nothing

0:55:41 Matt: Of Trump argument.

0:55:41 Thomas: Applies to me.

0:55:42 Matt: No, nothing. There's no constitutional way to charge me with a crime, I think is always what it comes down to.

0:55:43 Thomas: Yeah. I'm so sorry, but one of my favorite Simpsons quotes of all time we ever did on this was, "Your Honor, I would like to remind the jury that my client is not, in fact, like other men." Or whatever, just like, or something like that, like, he's rich and powerful, it's like, it's you're barely even hiding it at this point. Wow.

0:55:57 Matt: Right, right. Totally. Yeah, that's the defense. That's what we're working with. McAfee, I think, very charitably finds that since this is a matter of fact, like it's something the jury has to decide whether or not, you you're talking about willful speech, when talking about intentional speech. That's something that a jury has to sort of apply the law to the facts and decide. So he says, look, if you want to bring this up again, you can bring it up again.

Once we have this in front of a jury, once we have a factual record, you can give it a try. And he's dismissing without prejudice. But, you know, he clearly isn't taking it very seriously. No one should. It's not a serious argument. As we said last week, when we talked about it, and there we are, it's done. They're flailing. I'll say this, that these are flailing arguments. These are, you know, kind of end of the road. We really, really, I really don't want to go to trial arguments.

We're just throwing everything out there and, uh, you these judges are not, not having it. So may that continue to happen. And may we actually finally have a trial to talk about this month. Month.

0:56:51 Matt: Weeks, actual weeks. Now, I think the jury selection is going to take a while because imagine trying to find a jury in New York, Donald Trump's home city, that doesn't really have an opinion about Donald Trump at this point. I've been wondering that about all these prosecutions, how they're possibly going to find people. And if you do find somebody who's basically never heard of Donald Trump or doesn't have an opinion of them, are they really qualified to be a juror, frankly?

0:56:50 Thomas: Very month, holy crap yeah yeah

0:57:12 Matt: What is going on in that person's mind? I want to spend like five minutes inside it. But, we'll see. Because jury selection is going to take a while because of that.

0:57:10 Thomas: Who is that person, yeah, exactly wow and Is that anything we have access to, or not really? Okay.

0:57:21 Matt: That'll be reasonably public. You know, can't be a closed proceeding. So he does express concern for the jurors at this point. Obviously, if you're willing to say things about the judge's daughter, you're going to say things about the jurors and their families. So that's going to be a consideration, too. But obviously, this trial, whenever it gets going, we'll be talking about it plenty, I'm sure. Do want to do a rundown at some point sometime soon of the actual charges, because they're very confusing. We talked about them a while back on Serious Inquiries Only, but I think it'd be worth a quick reprise to kind of get into what these charges are and how they might apply in this case.

0:57:29 Thomas: Yeah all Right, because this, this is back to that interesting legal theory that was like in furtherance of another crime. Okay. We've covered that here and there, but yeah, it'll always be good to refresh on it.

0:57:51 Matt: Yes. Fairly novel. I think just as a trial star, I'd say, I think it'd well worth going deep on that.

0:58:00 Thomas: We're going to cover the crap out of this thing. Oh, I can't wait. I can't wait. Cause it's been so much fun. Like the, the on, just the, the stuff that you as a lawyer know about that we didn't, I love that in the Fulton County stuff a little bit. It's just, it's only is this obviously a trial that I'm very interested in. A lot of people will be very interested in. It's cool to be able to learn about how all the stuff is done along the way. And it's just, I can't wait. Can't wait?

0:58:24 Matt: It's quite a time to be a legal podcaster, I gotta say. Fun.

0:58:27 Thomas: RIGHT, All right, Matt. Well, that was a lot of fun and well done, Jack Smith. Looking forward to seeing how that develops. And I guess we'll see everybody for a deep dive on Monday.

0:58:37 Matt: Right. See you then. Keep

0:58:38 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.