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UnJustified
Episode 110 | Unforced Error
01:08:00
Judge Cannon has temporarily blocked the release of Jack Smith’s final report at the request of Nauta and De Oliveira, we’ll see what the 11th Circuit has to say; Donald Trump is now a convicted and sentenced felon in New York; plus listener questions.
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- [00:01]
Allison Gill
MSW Media.
- [00:07]
Andy McCabe
I signed an order appointing Jack Smith. Nobody knows you. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. Wait, what law have I broken? The events leading up to and on January 6, classified documents and other presidential records.
- [00:23]
Allison Gill
You understand what prison is?
- [00:24]
Andy McCabe
Send me to jail. Today we have a ton, a ton, Allison, of filings to go over from this past week. How long has it been since we said that? The run up to a.
- [00:57]
Allison Gill
It's been a while.
- [00:59]
Andy McCabe
Yes, a lot of filings from this past week in the fight to release Jack Smith's final report on the Donald Trump cases.
- [01:07]
Allison Gill
Yeah, yeah, we have that. Judge Eileen Cannon extra jurisdictional attempt to block the release of the entire report, including the January 6th part. And we'll, we'll go over all of that, plus listener questions. But first, I think we should have another installment of good week, bad week.
- [01:24]
Andy McCabe
Yeah, I mean, I guess we go with our perennial good week, bad week subject, which is Donald Trump in that he was officially sentenced as a felon today. First ever felon about to be inaugurated president, first former president felon. Just a lot of firsts. I think, all in all, tough, tough way to end the week for him. So. Yeah, and I'm gonna, I'm gonna go out there on a limb here as well and say not a great week for Jack Smith and the special counsel team, having started off, I guess, last weekend by deciding to give the other team a free shot at the, at the report. And I, I'm sure we'll go into more detail about this later, but holy cow, guys, what, what were we thinking there?
- [02:11]
Allison Gill
Yeah. Also kind of like, why did you tell Judge Cannon that you weren't going to hand over the report to Merrick Garland until the next day at 1pm giving her a chance to swoop in and, you know, order an injunction on, on releasing it to anyone outside the DOJ before you even, you know, got a chance to hand the report over to Merrick Garland. So it's, it's interesting and we're all, you know, we also learned this week all of the ins and outs of what the, you know, DOJ has been planning this since the beginning of December and how they were going to handle it. And they wanted to give Trump a look, see, along with Nauta and de Oliveira and the week of Christmas, and then that got moved to the first week of January and now here we are. So we're going to go over all that. I also would like to just acknowledge the bad week for Trump's sentencing in That I know it's not much. I know he didn't get a fine. I know he didn't get jail time. I know he didn't get probation. But the alternative was the Supreme Court stepping in and just throwing out all 34 felony counts and kind of making it defamation to call him a convicted felon going forward. So in, in light of what the possibilities were, the fact that he was sentenced and now has to wear the moniker of convicted felon is a small victory, although it's not what we anticipated. However, I think, Andy, you and I have been talking about the fact that there would pretty much be no accountability for him if he were elected president again. So I'm kind of a little confused as to why people are surprised by this. But you and I, even going back to July when the Supreme Court granted him immunity in his monarchy motion, which is what we were referring to it as, we're like, well, that's pretty much it. I don't think we're going to see a lot of accountability here, you know, and if we do, he has to lose the election, and it's going to take another year, year and a half because we have that second interlocutory appeal on immunity that has to go all the way up to the Supreme Court, which, you know, if you. That that second interlocutory immunity appeal would have made it past the Supreme Court and gone to trial, you are more optimistic than I. But here, here we are, and he is still a convicted felon. It's a small, tiny victory, but I'll take it.
- [04:36]
Andy McCabe
Yeah. And, you know, I would say also it was good to be able to hear the court proceeding. We couldn't watch it in real time or hear it in real time, but then they released it after the fact, which is kind of a weird way to do it. But, okay, I gotta say, I got. I have so much respect for Judge Merchan. He conducted himself through this entire thing with just dignity and fairness and grace and really stood up and delivered some tough decisions all, all throughout the case, most recently on rejecting the immunity arguments, which I thought was absolutely the right call, and today really explained that this was not a. His sentence was not meant to reflect the fact that Donald Trump, the citizen, hadn't done anything wrong or that the crimes he committed and were convicted of weren't serious, but that the office he's about to hold demands under our Constitution and our interpretations of the Constitution that he not be further prosecuted in any way. And so that's how he ruled. And I think that's a. It's frustrating for many people. I get that. But it is a legally valid and respectable position to take. How often are you going to have a former and future president in front of you? Hopefully once, to sentence. Hopefully once.
- [06:00]
Allison Gill
Hopefully once. Yeah, I know.
- [06:03]
Andy McCabe
You never know.
- [06:04]
Allison Gill
I concur. But, yeah, it's his job to uphold the laws, not make his own new ones. And, yeah, so his hands were tied.
- [06:12]
Andy McCabe
Right. And he's not in the. He's not the side. He's not the part of this equation that has to go out and investigate and pursue accountability. He's the judge. Like, he needs to apply the law and the facts and make fair, consistent decisions. I think he did that all the way through. So good week for him. Good job by him, and we're in his debt.
- [06:34]
Allison Gill
And also one last thing before we move along. Bad week for Rudy Giuliani. He's been held in contempt in all of his contempt year maybe issues, bad life. So, yeah, I think Judge Beryl Howell laid into him. We'll talk about that on cleanup on all 45 next week. And Judge Lyman laid into him. And so it was. It was a pretty bad week for him all around. And, you know, that also pleases me to the extent that, you know, he wasn't thrown in jail for his contempt. But again, Ruby Freeman and Shay Moss weren't asking for jail. They were asking for. For fines and to sign a sworn declaration, affidavit that you understand you can't continue to say defamatory things about us lest you face fines. And Judge Howell actually took it a step further. She says, you know, if he violates this, I will consider jail. And we were all a little bit surprised by that. So we'll see what ends up happening. But that's a pretty bad week for Rudy. He's got to find his Joe DiMaggio jersey and hand it over.
- [07:39]
Andy McCabe
And he's remarkable. I can't believe that a guy who spent his entire life in the law, former prosecutor, the Southern District, of all places, and he's still fighting this. He's so in the wrong here. He's got a. He doesn't have a legal leg to stand on. He's resorted to, like, running out the back door when he hears the service, you know, the sheriff knocking on the front door. That's literally the kind of what he's essentially doing. And it's just so. It's so. It's disgusting. It's so disrespectful to the court, to the laws, to the defendants who Or I'm sorry, to the plaintiffs who prevailed against him in this case. It's like, give it up, dude. Just hand over the stuff you owe them and, and try to maintain some level of dignity.
- [08:24]
Allison Gill
Yeah, good luck. I. I think there's. There's. It's shamelessness. It's pure shamelessness. Yeah. But we'll see what happens to him going forward. All right, so I had it all, like, I had everything. Single letter order filing, you know, on the docket here in the Jack Smith report battle. I guess this back and forth in and because, you know, Trump wrote a letter to Mer Garland, NA And De La Vera filed a motion, emergency motion with Judge Cannon, and then they filed an emergency motion with the 11th Circuit. And then Jack Smith responded to two things, and then there was another response, and then a decision and then a thing. But. And I was like, okay, I got to go through every single filing. But you know what? Actually, the background section in Jack Smith's filing to the 11th Circuit lays it out perfectly. It's just really well written. So in order to catch everybody up on everything that's happened, let's. Let's go over that background section because I think it really does sum everything up perfectly.
- [09:30]
Andy McCabe
Yeah, I totally agree. And once again. Right. We're going to miss reading the products from this team because they're always well written and clear and concise. So it begins by saying Department of Justice regulations authorized the Attorney General to appoint a special counsel to oversee a criminal investigation under certain prescribed circumstances. The special counsel regulations further provide that, quote, at the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. The Attorney General then has the discretion to determine whether public release of these reports would be in the public interest to the extent that release would comply with applicable legal restrictions.
- [10:21]
Allison Gill
Yep. It goes on to say, Special Counsel Smith was appointed by Attorney General by the Attorney General to investigate certain matters. Appointment of John L. Smith as Special Counsel on November. November 18, 2022. Those investigations resulted in two separate prosecutions. The indictment from which this litigation, which is the classified documents litigation arises, alleged that President Elect Trump willfully retain national defense information. And it charged Trump, Nauta and De Oliveira with multiple counts, including obstructing and conspiring to obstruct an official proceeding and making false statements. That indictment was dismissed by the District Court as to all three defendants, and this appeal challenges that dismissal. Order. The other proceeding brought in the District of Columbia, concerned the election case. Neither Nauta or de Oliveira were defendants or otherwise implicated in the proceeding in the District of Columbia.
- [11:13]
Andy McCabe
It goes on to say, after President Trump's reelection, the Special Counsel dismissed the proceeding in the District of Columbia. The Special Counsel also withdrew the government's appeal of the dismissal of the indictment against Trump in this case, but maintained the appeal as to the two other defendants. Responsibility for the case was then Transferred to the U.S. attorney for the Southern District of Florida. The Special Counsel began preparing the final report for the Attorney General required by the Department of Justice regulations. The final report was structured with two separate volumes, the first devoted to the election case and the second devoted to the subject matter of this litigation. The classified documents case.
- [11:56]
Allison Gill
Yep. And it was in this filing that we. Well, actually, I think it was in some of the Donald Trump letters and de Oliveira and now to filings that we learned that there were two volumes in this case because when they got a chance to review it, they were really, really mad and then filed their stuff. They're like talking about volume one, Volume two. It goes on to say, given the clarity of the Department's regulations requiring a final report, as well as the past practice of the Department with respect to other Special Counsel's final reports, including the Mueller report and recently Special Counsel hers and Special Counsel Durham's final reports, it should have been no surprise that the Special Counsel planned to prepare the final report required by the Department regulations. In all events, Defendants counsel became aware not later than the week of December 9th that the final report was being prepared. Counsel for all three original defendants then requested the opportunity to review the draft report. Although not required by the applicable regulations, the Special Counsel, consistent with an example set by Special Counsel her, allowed counsel for all three defendants to do so. Counsel for President Elect Trump was provided an opportunity to review both volumes of the final report. Counsel for Nauta and De Oliveira were allowed to review volume two, the only volume relevant to them.
- [13:24]
Andy McCabe
On January 6th, with the final report nearing completion, Defendants Nada and De Oliveira filed an emergency motion in the District Court with Judge Cannon seeking to enjoin the Special Counsel from transmitting the final report to the Attorney General and the Attorney General from releasing any portion of the final report. President Elect Trump filed a motion to intervene in the proceeding to support the remaining defendants emergency motion. The morning of January 7, defendants Nada and De Oliveira filed the instant motion seeking emergency relief from this court, the 11th Circuit.
- [14:01]
Allison Gill
Yeah, and when you hear the instant motion, that I think that's language, that's legal language for this motion. The one that we're dealing with.
- [14:09]
Andy McCabe
Yeah. It just means the motion that we are in front of you on right now.
- [14:13]
Allison Gill
Right.
- [14:14]
Andy McCabe
Or that we are responding to.
- [14:16]
Allison Gill
Yep. Yep. Shortly before noon on January 7, the district court issued an order stating that pending resolution of the emergency motion filed in the 11th Circuit. So this is Judge Cannon. This is her order. She did it shortly before noon after Jack Smith had told her he wasn't going to transmit the report to Merrick Garland until 1pm so the order says, pending resolution of the emergency motion filed in the eleventh Circuit and or any further direction from the eleventh Circuit, various government officials are temporarily enjoined from releasing or sharing the final report outside the Department of Justice. The order specified that this prohibition would, quote, remain in effect until three days after resolution by the 11th Circuit of the emergency motion unless the 11th Circuit orders otherwise. The order did not preclude the Special Counsel from transmitting the final report to the Attorney General. The court further noted that its order, quote, shall not be construed as a final ruling on the merits of the emergency motion, which remains pending before this court subject to any directives from the 11th Circuit, unquote. The order did not address Trump's motion for intervention, which remains pending.
- [15:31]
Andy McCabe
On the evening of January 7, both volumes of the report were transmitted by the Special Counsel to the Attorney General consistent with Justice Department practice. The Attorney General did not review the report before its transmission. Because Volume two discusses the roles of defendants Nauta and De Oliveira, and because those matters remain pending appeal before this court, the Special Counsel explained in his cover letter to the Attorney General that, quote, consistent with Department policy, Volume two should not be publicly released while their case remains pending. The Special Counsel further explained that both volumes minimize the identification of witnesses and co conspirators consistent with accepted Department practice. And we have provided a redacted version of Volume two that identifies certain information that remains under seal or is restricted from public disclosure by Federal rule of Criminal Procedure 6e.
- [16:31]
Allison Gill
So it was Jack Smith who recommended to Merrick Garland not to release volume two. And you and I talked about this. We were like, this is actually a pretty reasonable argument from Nauta and De Oliveira because if the 11th Circuit overturns Judge Cannon's dismissal of the documents case, they're back under indictment.
- [16:50]
Andy McCabe
That's right.
- [16:50]
Allison Gill
And you can't release information and. And accuse them of committing crimes to the public in a report because you will taint a jury bol. You'll wreck the whole case.
- [17:02]
Andy McCabe
Yeah, that doesn't. I mean, that just doesn't happen for. For good reason. Right. The Justice Department doesn't release a report on someone's conduct while they're currently in the middle of a prosecution. So I, I did think they, they had a. A legitimate issue to take to Judge canon and the 11th Circuit.
- [17:23]
Allison Gill
And Jack Smith was like, I was, I was going to say that, fellas. That was what. That's what I was going to do it. Consistent with Special counsel's recommendation, the Southern District of Florida Local Rule 77.2. The Attorney General does not intend to make Volume 2 of the Final Report public while the case against NA and de Oliveira remains pending. But in light of Congressional interest in the work of Special Counsel Smith, a redacted version of volume two of the final report, redacting only grand jury and sealed information that the Department is prohibited by law or court order from disseminating together with the appendices for volume two, will be made available to the chairman and ranking members of the House and Senate Judiciary Committees for review in camera. Upon their request and agreement prohibiting any public release of the final report's contents, the redacted version of volume two that will be provided for limited congressional review will redact all information that remains under seal or is restricted from public disclosure under Rule 6, either. As noted above, the Attorney General intends to publicly release Volume one and make it available to Congress. Volume one does not contain any information restricted from public disclosure under Rule 6E. So.
- [18:41]
Andy McCabe
Right. The 11th Circuit can docket that thing for oral argument and proceed toward a decision. At this point, they don't need any request or anything from DOJ to do that. So that's going to happen unless DOJ comes in and says, we are dismissing our appeal of Cannon's dismissal because that's the only thing that's left. Or Trump comes in and pardons the two defendants. But barring that, the appeal is going to go forward and you're rolling the dice as to see whether or not they bring the thing back. And then these two guys have to go in a route. You could just let that happen. And if it doesn't go their way and the case gets revived, then they could dismiss it. But still, you're back in the same spot. If they dismiss the freaking case, the report probably comes out, right.
- [19:32]
Allison Gill
Or the 11th Circuit, because, you know that's part of this appeal is Cannon's dismissal of the case on the grounds that Jack Smith was inappropriately funded and appointed. If the 11th Circuit comes back today or tomorrow and says, yeah, yeah, yeah, we vacate her order on the injunction of the thing, so there's no more three day thing. And we also overturn her ruling dismissing the case. Shit's back on. And Jack Smith could then dismiss the charges against, you know, Nauta and De Oliveira.
- [20:06]
Andy McCabe
Yeah. Although they never had oral argument. Right. So I think that's unlikely to happen.
- [20:09]
Allison Gill
But probably.
- [20:11]
Andy McCabe
Yeah.
- [20:12]
Allison Gill
Right. Yeah.
- [20:12]
Andy McCabe
No, he's in a pickle. Trump and his DOJ will be in a pickle if the. If the case is still sitting in the same status it's in right now on January 20th.
- [20:23]
Allison Gill
Yeah, absolutely. All right, we're going to talk a little bit about the summary of Jack Smith's argument in this particular filing in his. His opposition to the emergency motion filed by now to end a Vera. But we have to take a quick break, so stick around. We'll be right back.
- [20:47]
Andy McCabe
Welcome back. Okay, now that we have the background, here's a summary of the argument Special Counsel made to the 11th Circuit defendants. Requests for emergency injunctive relief should be denied. That's it. No, I'm just kidding.
- [21:03]
Allison Gill
That's not the end.
- [21:04]
Andy McCabe
It would be great. That was it. Period.
- [21:05]
Allison Gill
I just put Finn at the bottom.
- [21:07]
Andy McCabe
Yeah. Smith out. Okay.
- [21:11]
Allison Gill
No, it's just a little mic drop with the emoji with the sunglasses.
- [21:14]
Andy McCabe
Exactly. Okay, sorry. I'll start that over. Defendant's requests for emergency injunctive relief should be denied because the Special Counsel has now transmitted his final report to the Attorney General. Defendant's novel request to enjoin that internal departmental transmission is moot. And because the Attorney General has determined not to release to the public volume two of the final report to the public while the defendant's case remains pending the volume that concerns the proceedings against the defendants. An injunction is unnecessary to protect the defendant's interests or the integrity of future criminal proceedings against them. Defendants remaining arguments are meritless, irrelevant, or both. There is no basis for defendants or anyone else to seek to bar the Attorney General from disclosing volume one publicly or. Or to Congress, or from disclosing volume two to select members of Congress in the manner described above. The court should deny the emergency motion, vacate the District Court's temporary injunction, and make clear that there is no basis for further emergency litigation in the District Court regarding the Attorney General's disposition of the Special Counsel's final report.
- [22:28]
Allison Gill
Yeah, and I'm not sure we'll get to a little bit later. We'll get to what the 11th Circuit decided based on this filing and Nauta and de Oliveira's response to it. But I want to make sure we put a pin in the fact that Jack Smith asked the court to deny this motion, but also to vacate Judge Cannon's injunction.
- [22:50]
Andy McCabe
That's right.
- [22:51]
Allison Gill
And they didn't do that. So we'll talk about that and potential reasons why. But. So the arguments here go on in Jack Smith's. We're still on Jack Smith's filing to the 11th Circuit. It goes on to say the defendants characterized their motion as one for emergency relief and asked the court to rule by January 10th. Yet they also suggest, both in their initial filing and later in supplemental filing, that this court might instead avoid the merits and remand to the district court, meaning send it back to Judge Cannon. Jack Smith says this court should reject that invitation for several reasons. First, he says it's disingenuous to request remand to Judge Cannon in an emergency motion. If you want this to go back down to her court, you're clearly not interested in quick relief. Right? Right. You're interested in delay past January 20th. So it's.
- [23:40]
Andy McCabe
Or January 20th, 2035, in the case of Judge Cannon, of course, Judge Cannon.
- [23:45]
Allison Gill
So coming into the 11th Circuit and saying, hurry, hurry, hurry, this is an emergency, but send it back down to that other real slow court. First.
- [23:52]
Andy McCabe
Yeah, please send it back to the judge who dismiss the entire case.
- [23:55]
Allison Gill
Yeah. Second, the motion presents a straightforward legal question that this court is well suited to address in the first instance. Third, the district court itself has made clear that it's looking to, quote, resolution of the emergency motion filed in the 11th Circuit and. Or any further direction from the 11th Circuit, unquote. That's what Judge Cannon put in her order.
- [24:17]
Andy McCabe
Right. Even she didn't propose to take the thing back.
- [24:22]
Allison Gill
What? And fourth, remanding to the district court to resolve the motion in the first instance may well simply generate further emergency litigation in this court. It'll just come right back to you guys. So let's decide it here and now. And then Jack Smith concludes by asking the court for the following. We respectfully request that this court deny the motion on the merits, set aside the district court's temporary injunction in full, the temporary injunction being the order from Judge Cannon, and make clear that there is no impediment to the Attorney General allowing for limited congressional review of volume two, as described above, and the public release of volume one.
- [25:04]
Andy McCabe
That's right. So after special counsel filed that opposition, Notta and De Oliveira asked if they could respond the next morning. The 11th Circuit, of course, denied that request and ordered them to respond by 5pm the same day. I love it. Get it in now, boys, or we're not taking it. So in their response, which was filed six minutes after 5pm but who's counting? Us. We're counting. We're the only ones. But anyway, Nona De La Vera say that remand back to Judge Cannon is necessary because redacting Volume two and giving it to Congress will cause it to leak. They write, defendants request that this court remand for a hearing in front of the district court. The government concedes that there is substantial, if not guaranteed, risk of prejudice. All right, put a pin in that one because I'm coming back to that in a minute. Associated with public disclosure of the final report containing privileged material, grand jury material and evidence in an ongoing criminal case. But the government suggests that this prejudice can be managed by disclosing the report only to the chairman and ranking members of the House and Senate Judiciary Committees. Subject to redaction only. Only as the Department of Justice sees fit. This reflects an improper attempt to remove the district court and the responsibility to oversee and control the flow of information related to a criminal trial. Okay, pin number two, please. Right there. A criminal trial over which it resides. And to place that role instead in the hands of the prosecuting authority, who, unlike the trial court, has a vested interest in furthering its own narrative of culpability. So, okay, first pen. Did the government concede that there was substantial, if not guaranteed, risk of prejudice associated with public disclosure of the final report? I don't believe they ever conceded that.
- [27:03]
Allison Gill
I think what they're referring to is the fact that Jack Smith recommended to Merrick Garland not to release Volume two to the public is a concession that its release could prejudice these two defendants.
- [27:14]
Andy McCabe
I take that as Jack Smith simply honoring long held DO J Policies. There was no statement of. Oh, please, Attorney General Garland, don't do this. Because the poor defendants will be get guaranteed risk of prejudice. So that's a misstatement. I mean, I know what they're trying to say, but they are. They are deliberately misrepresenting the fact there. And then this. Follow this. This nonsensical bombshell here blows me away. This reflects an improper attempt to remove the district court. The responsibility to oversee and control the flow of information related to a criminal trial. What trial? She dismissed the case. It's not her case anymore. The only thing that lives on is the appeal in front of the 11th Circuit.
- [28:00]
Allison Gill
An improper attempt to remove from the district court. She removed it from the district court.
- [28:06]
Andy McCabe
She crumpled it up and threw it in the trash. The whole thing. So she doesn't get to control the information anymore. And in a case that's been dismissed, DOJ decides what they're going to share with Congress and how they're going to share it. Things get shared with Congress all the time under. Sometimes under very restrictive conditions like they've proposed here. The judge who had the case before she tanked it does not get to weigh in on how that's done.
- [28:36]
Allison Gill
No, no. And she shouldn't have even been able to put in an injunction.
- [28:41]
Andy McCabe
Correct.
- [28:42]
Allison Gill
Which is why I think the 11th Circuit. I'm not sure why they didn't do it all in one fell swoop, but they were. I think it's because one was filed with her at court and one was filed with theirs. And they're like, we'll deal with the one filed in ours. You need to appeal the one filed in theirs. But Jack Smith was like, I am appealing the one filed in theirs.
- [28:58]
Andy McCabe
She could have issued an order and limited it to de Oliveira and nada in the documents case only.
- [29:05]
Allison Gill
Yeah.
- [29:06]
Andy McCabe
But, no, of course she didn't do that.
- [29:08]
Allison Gill
Yep. And Nauta and De La Vera go on to say there is no way to restrain members of Congress from disclosing their opinions regarding the report or from disclosing the contents thereof. Nor is there a way to prohibit them from disclosing the materials to members of their staff or to prevent members of their staff from then leaking the contents of the report or their prejudicial explanations. A hearing is essential because the government has conceded that redaction of some materials is necessary and has asserted that it will redact some grand jury information. Undersigned counsel has reviewed the proposed redactions and deems them insufficient to protect information that was obtained only via grand jury subpoenas. And that generally falls under Federal Rules of Criminal Procedure 6, as well as the. Isn't that. Shouldn't they just say Rule 6E? Okay.
- [30:03]
Andy McCabe
Yeah.
- [30:04]
Allison Gill
Okay. As well as the common law rules governing grand jury secrecy, this dispute over the appropriate scope of redactions creates an issue of fact to be resolved by the district court after a hearing. Even though the case is not in her hands. I guess.
- [30:22]
Andy McCabe
Yeah.
- [30:23]
Allison Gill
I mean, they keep assuming that this case is still hers.
- [30:27]
Andy McCabe
Yeah. And defendants are not. I mean, maybe I. This is my understanding. And please, if there are any lawyers listening, send a comment into the end of the show this week if I'm wrong about this. But my understanding is the government is obligated by 6e grand jury secrecy. The government is obligated to protect the grand jury material, not the defendant. If the defendant were similarly obligated, you wouldn't have to have all these protective orders in cases where again and again and again in which the judge decides how the parties can handle information. Right. That's what leads to redactions and things like that. But the government handing a government report that the defendants had nothing to do with to Congress, which is also not the defendants. I don't see where the judge gets to weigh in here. I mean, but maybe I'm missing something.
- [31:23]
Allison Gill
All right, I'm with you, but, yeah, if we're missing something, let us know. There's a link in the show notes. To submit questions, submit a comment, let us know.
- [31:34]
Andy McCabe
Send it in.
- [31:36]
Allison Gill
Please do.
- [31:37]
Andy McCabe
Okay, so. So at that point, Donald Trump then asked the 11th Circuit for permission to file an amicus brief, which was granted. Trump argued the report is nothing less than another attempted political hit job, which sole purpose is to disrupt the presidential transition and undermine President Trump's exercise of executive power. I thought the sole purpose was to defeat him in the election. Seems like we've. All of a sudden we have a new purpose of. Of this. Of undermining the transition.
- [32:13]
Allison Gill
Yeah.
- [32:13]
Andy McCabe
And don't forget, whenever tried to undermine a transition before, I was trying to.
- [32:17]
Allison Gill
Think, oh, yeah, who was it? And, and by the way, don't forget, the executive power that doesn't exist for president elects that.
- [32:24]
Andy McCabe
Oh, yeah, that's a good point, too. Okay. Attempting to publish the final report evidences complete disregard for the district Court, which found that Smith is not constitutionally appointed and funded. Instead of respecting that ruling, Garland seeks to defy the district court by publishing the final report in a manner inconsistent with the rule of law and the principles of constitutional governance. This court should not countenance it. I mean, that. That's lame, but whatever.
- [32:54]
Allison Gill
Well, yeah, but not. Not only that, but, like. Okay, but what about the January 6th part? It's got nothing to do with y'all. Yeah, I mean, down there in. In Florida. He then goes on to argue this is Trump's amicus brief, that Garland cannot issue a report of an unconstitutional appointed and funded special counsel. I think you forgot the adverb there. It's not my mistake. He also argues the issuance of the final report violates the Presidential Transition act and the vesting clause. And here's what you were talking about. He has the gall to argue that the report would disrupt the peaceful transfer of power. He says Congress intended the Transition act to facilitate, quote, the orderly transfer of the executive power in connection with the expiration of the term of office of a President and the inauguration of a new president, any disruption of that transition, quote, could produce results detrimental to the safety and well being of the United States and its people. You think, and thus all officers of the government, except me, not me, though, are, quote, to avoid or minimize disruptions that might be occasioned by the transfer of the executive power and otherwise to promote orderly transitions in the office of the president. He actually said that in a court document.
- [34:17]
Andy McCabe
If you don't fight, you're not going to have a country anymore. I mean, I feel like that that's not consistent with the position he's, he's taking now. That infamous line from his address on January 6, just prior to the riot. Okay, next, Trump talks about the report accusing Trump of committing crimes. The final report is constitutionally no different. Like an indictment, it alleges wrongly that President Trump and others committed crimes. Indeed, it is worse. The final report goes into more detail about the alleged crimes President Trump and others supposedly committed and involved evidence that was never released to the public. Indeed, evidence that could not be released, such as those involving official acts. But now I really want to read it.
- [35:10]
Allison Gill
Yeah, I know, I know. But so, you know, what he's arguing here is like, remember you and I have talked about this, we talked about it last week and what to expect in the report. And we were wondering, is he going to accuse him of crimes because Mueller didn't. Right, right. Because he was a sitting president. And if you accuse somebody, you can't indict of a crime, they don't have the right, their constitutional right to face their accuser in a court. And that's why he left that bit out. But here, Jack Smith has already accused Donald Trump of crimes in multiple indictments and immunity briefs, etc. Etc. Etc. Yeah, so, so it sounds like he's.
- [35:47]
Andy McCabe
Leaning a little, a little further forward than Mueller did.
- [35:50]
Allison Gill
A lot further forward. He is not only, and some of the footnotes here, too, you know, there, at least in the initial letter to Merrick Garland, he was really mad about this part where, where, you know, he's being accused of crimes, you know, and Mueller didn't do that. Why are you doing it? And so he's, he's really mad about that. But I, you know, I'm glad to see that the accusations are there. That, that seems like a little, feels more Jack Smith than Robert Mueller to me.
- [36:25]
Andy McCabe
It does. Yeah, it does.
- [36:26]
Allison Gill
If that makes sense.
- [36:27]
Andy McCabe
It does. And like you said, he's got more, he's got more solid ground to stand on because this is a case that's post indictment, post superseding indictment, post massive motion arguing against immunity that has hundreds of pages of evidence attached to it. So, yeah. So Trump concludes, even if the court decides some portion of the final report could, despite Smith's unconstitutional appointment and funding, be made public, it should maintain the district court's temporary restraining order and direct that court to review the final report and verify the government's claims about the manner in which the final report was prepared and transmitted to the Attorney general. So even if you decide that some piece of the report can go out first, remand back to Cannon for a lengthy review and verification of the government's claims. How long you think that might take?
- [37:24]
Allison Gill
Yeah, no, that's the kind of shit that you do after with a FOIA and a judge in camera like they did with the Mueller report, whether or not redactions were appropriate in Bill Barr's case, they were not appropriate. And the judge found that he lacked candor and over redacted the report to hide from the public the breadth and depth of Russian interference in the 2016 election. But I digress, Andy, I digress. All right, we'll be back with the 11th Circuit's ruling on this matter. So stick around. We'll be right back. All right, welcome back. So the 11th Circuit issued a ruling on Nauta and De Oliveira's emergency motion on January 9th. This there. They issued a ruling on January 9th, and the order reads, appellees. Emergency motion for injunction with relief requested by January 10, 2025, is denied to the extent that appellant, that's Jack Smith, seeks relief from the district courts. Judge Cannon's January 7, 2025 order temporarily enjoining Jack Smith. Jack Smith may file a notice of appeal from that order. So it seems we have two things going on here. First, the emergency motion from Nauta and De Oliveira to the 11th Circuit. And second, their motion to Judge Cannon and her injunction. It seems to here here the 11th Circuit is saying, look, you are responding to their emergency motion to the 11th Circuit, and we're denying that. But now you need to respond to their. If you want to appeal her order, you need to do that separately, I guess, because Jack Smith wanted them both done. So the 11th Circuit denied the emergency motion submitted to them by Nauta and De Oliveira, but did not set aside Judge Cannon's injunction as Jack Smith asked. So it's in place. You'll recall her injunction was temporary and it has an expiration date. It says this order remains in effect until three days after resolution by the eleventh Circuit. Of the emergency motion unless the eleventh Circuit orders otherwise. And Andy, I take that to mean the DOJ could release the report three days after the 11th Circuit denied Nauta and de Oliveira's motion unless the supreme court steps in and stops it. But the 11th Circuit also ruled to the extent that appellant Jack Smith seeks relief, you may file for, you know, from the injunction that, that Cannon put in place. Jack Smith, you can file a notice of appeal from that order, not from Nowta's emergency motion to us. So I don't know, I don't think that second part has to be resolved for the report to be released. Maybe it's, you need to properly object or appeal to her order and not to Nauta and de Oliveira's thing. So I'm not quite sure if this is just to get rid of that three day thing or if it's to go back and appeal from the district court's ruling, Judge Cannon's ruling. So it's like a different, it feels like a different lane, if that makes sense. So I'm, you know, I'm not, it's a little bit confusing to me, but I, I feel like the 11th Circuit is like, all right, no, on the now to thing that, that they filed here, but please go back and appeal the order from there to here if.
- [41:04]
Andy McCabe
You want to get out from under the three day hold. I think this entire thing is about timing.
- [41:09]
Allison Gill
Yeah.
- [41:10]
Andy McCabe
DOJ could do nothing. They could say, you know what, we'll take the three days, most of it's over the weekend anyway, who cares? And just then be prepared to just dump that thing on, you know, the 12th after the expiration of 36 hours or what, however you want to calculate it. Or they could file a notice of appeal to the 11th Circuit challenging that three day period, saying basically to the 11th Circuit, we want you to get rid of that part of the order that still enjoins us from releasing the report for the next three days. It is, it does kind of stink because Jack Smith, as you said, already asked for that in his filing to the 11th Circuit and he didn't get it and we don't know why.
- [41:56]
Allison Gill
Well, I think it's because he didn't file notice of appeal to judge Cannon.
- [42:00]
Andy McCabe
Oh, maybe that's it.
- [42:02]
Allison Gill
He just filed a response to Nauta and de Ovara's emergency motion at the 11th.
- [42:07]
Andy McCabe
Yeah, I think, I think as we were talking before, I think it's also, this is the 11th Circuit thinking, you know what, let's just leave that extra three day injunction in place. Because that gives everybody a fair period to kind of figure out what their next steps are going to be.
- [42:24]
Allison Gill
Yeah. Because generally when a circuit court of appeals comes back to a motion for an emergency stay or an emergency motion, they usually, when they deny or whatever, they usually say, but we're going to stay our ruling for a week or two weeks or 15 days or 30 days to give the aggrieved party enough time to petition the Supreme Court of our ruling.
- [42:50]
Andy McCabe
Right.
- [42:51]
Allison Gill
And so instead of. Because Judge Cannon was like, we need three days after you rule on the emergency motion, 11th Circuit or whatever, however many days you think is appropriate. And so I think that this is the 11th Circuit in my mind saying three days is good. We'll leave that in place. We're not going to amend that to a week or ten days or anything. So we'll leave the three days in place. But Jack Smith, if you want to appeal her order, you can't do it on the back of Nauta and De Oliveira's emergency motion to the 11th Circuit. You got to go back and file a notice of appeal in the district court and then file your appeal with us if you want to do that. And they did.
- [43:35]
Andy McCabe
Yeah, they did. They did. Which is an interesting decision, honestly. Like, I wonder, you know, they could have just kept their heads down for three days and not provoked any additional litigation.
- [43:49]
Allison Gill
Yeah, but they were going to file.
- [43:51]
Andy McCabe
They would have probably filed something anyway.
- [43:52]
Allison Gill
But I'm surprised I haven't seen it yet.
- [43:55]
Andy McCabe
Yeah.
- [43:56]
Allison Gill
So.
- [43:57]
Andy McCabe
Well, we'll see. We'll see how it goes. Because they did in fact file. Right. Late Thursday night, after midnight, DOJ filed its notice of appeal to Judge Cannon and docketed their appeal to her injunction order with the 11th Circuit. It says earlier this evening, January 9th, this court denied defendants emergency motion to enjoin the Attorney General from publicly releasing any portion of the final report of the Special Counsel. The court further indicated that to the extent that the appellant seeks relief from the district court's January 7, 2025 order temporarily enjoining the appellant, appellant may file a notice of appeal. From that order, we write to notify the court that the United States has tonight filed a notice of appeal from the district court's order of January 7, 2025. As the court knows, that order temporarily enjoined the Department of Justice, the Attorney General, the Special Counsel and others from releasing or sharing the Special Counsel's final report. Quote, outside the Department of Justice. Pending this court's ruling on defendant's emergency motion, the district court specified that this prohibition would, quote, remain in effect until three days after this court's resolution of defendant's motion in this court.
- [45:14]
Allison Gill
Yep. Yep. It goes on to say, the United States respectfully renews its request that this court vacate the district court's temporary injunction. After considering defendants fully briefed motion and supporting amicus briefs, this court concluded that the defendant's motion for injunctive relief should be denied for all the same reasons. In other words, see what we said before. For all the same reasons, the district court erred in granting the same injunction. As we've explained, the Attorney General will not publicly release volume two of the final report while proceedings against the defendants are pending. But the district court had no proper basis for preventing the Attorney General from making volume two available for in camera review by the chairman and ranking members of the House and Senate judiciary committees pursuant to restrictions to protect confidentiality and subject to redactions to protect information protected by 6e. That's a rule and court orders. And the district court, Judge Cannon, had no basis at all for enjoining the public release of Volume 1, which relates to a prosecution that does not concern the defendants and which, in any event, defendants have identified no plausible merits theory for enjoining. Given the unusual exigencies of this case, as illustrated by the emergency motion practice in both the district court and this court, the United States respectfully renews its request that this court promptly vacate the district court's temporary injunction. And then there's a footnote. Check this out, Andy. And I love this. This is called cover your ass. The government's notice of appeal filed tonight squarely invokes this court's appellate jurisdiction. As soon as the new appeal is docketed in this court, the United States intends to move to have that appeal consolidated with this one. To the extent there is any doubt concerning the court's authority to review the temporary injunction, we respectfully request that the court construe our appeal as a petition for a writ of mandamus. And then he cites Suarez Valdez v. Shearson Lehman American Express, Inc. From 1988, which held that appeal can be construed as petition for mandamus if the court harbors doubts as to its appellate jurisdiction. So what this sounds like to me is can you make sure. We just want to let everybody know that this is all in your hands now and nobody else's. Judge Cannon, for example.
- [47:45]
Andy McCabe
It's exactly what it is. It's like they're trying to scrape all the crumbs off the table into one Pile to get rid of them in a way they might actually be disposed of, not tinkered with for the next six years by Judge Cannon.
- [48:00]
Allison Gill
Which was a good way to go because. No, you know, enter now to Endo Oliveira trying to make more crumbs in the district court.
- [48:09]
Andy McCabe
Right, yeah, of course. So Nara and de Oliveira on January 9, filed a six page notice on Cannon's docket complaining about, quote, recent improper disclosures. It re. It reads, the defendants respectfully submit this notice with respect to recent improper disclosures by the attorney general and DOJ to the 11th Circuit and Congress. The disclosures were inconsistent with the still pending emergency motion seeking to enjoin Jack Smith from transmitting the final report to the Attorney General, which Smith wrongfully mooted in bad faith by ignoring this court's authority and transmitting the final report. Despite the emergency motion and the court's January 7, 2025 order, we reserve the right to seek further relief, including a contempt filing and sanctions in the event the 11th Circuit remands the proceedings to this court. So, I mean, this is crazy because her order did not preclude Jack Smith from transmitting the report to Merrick Garland. And I think that was an intentional move. She knows even she can't stop that.
- [49:21]
Allison Gill
Which is saying a lot.
- [49:23]
Andy McCabe
Yeah, right. It barred Merrick Garland from disseminating it outside the Department of Justice or any other members of the Special Counsel Council team or other people, yada yada, from disseminating it. But it didn't. You can't really reach into the department and preclude one part of the department from talking to another one.
- [49:38]
Allison Gill
Yeah, I. And maybe what they're saying here is, hey, you know, Judge Cannon came out with her order and before the 11th Circuit decided, because it was still pending an appeal on appeal, he transmitted to the Attorney General. But you're right. Her order said nothing about Jack Smith can't give the report to Merrick Garland. So I. I don't quite understand this bit, other than it's simply. I think it's really just a way to poke Judge Cannon to make some other ruling that has to be appealed again. Which is why I'm very glad that Jack Smith put in his notice of appeal to the 11th Circuit from her January 7th order that as soon as what I'm writing hits your docket, please immediately assume that it's a writ of mandamus. If you don't think you have the entire jurisdiction here, if you don't think your 11th Circuit arms are all the way around all of this, then this is Instantly. A writ of mandamus request.
- [50:42]
Andy McCabe
Right.
- [50:42]
Allison Gill
So to do that under precedent.
- [50:45]
Andy McCabe
Right. So just. So just to review. Writ of mandamus is when you go in front of a court and you ask the court for an order directing another court or another part of government to either take a particular action or stop taking a particular action. And in this case, the writ would be the request of the 11th Circuit to order Judge Cannon to obliterate her. Yeah. Vacate her. Injunction.
- [51:12]
Allison Gill
Temporary injunction. So that was very smart on the part of Jack Smith, because lo and behold, now done De Oliveira on the 9th. Have this, you know, put this thing out there. And so he's like, can we stop all this? Because it's just going to keep going and going.
- [51:27]
Andy McCabe
What this is is exactly what this has been from day one. We've said this a thousand times on this podcast. It's all about delay. And they know that their best path to delay is getting something, some crazy, you know, unrealistic, irrelevant issue in front of Eileen Cannon.
- [51:44]
Allison Gill
Yeah. It doesn't have to be anything. It can be. Hey, this is. Hey, Judge Cannon, this is Nauta and De Oliveira. Hey, what's up? We think the sky is green, and the special counsel thinks it's blue. We need to have a hearing.
- [51:58]
Andy McCabe
Yeah. Hey, Judge Cannon. We determined that Jack Smith's mailbox violates the HOA rules in his neighborhood. So we would like to have a hearing about that in front of you right now. I mean, whatever.
- [52:11]
Allison Gill
I was waiting to see a filing about the shredding truck being out front of the Department of Justice. You know, like, why not? By the way, here's a little more from Nauta and De Oliveira's thing. They said on January 8, 2025, the Attorney General sent the letter attached as Exhibit A to certain congressional leadership. This is. Merrick Garland sent a letter to Congress on January 8. The letter claimed, inaccurately, that Smith has concluded his investigation. In fact, Smith has been forced to shut down his office by presidential immunity and the election results, and he handed off the entire pending case to the local U.S. attorney's office. Okay, that's inaccurate.
- [52:52]
Andy McCabe
Jack Smith could have wildly misrepresenting the facts.
- [52:55]
Allison Gill
He could have stayed on the case and been fired and had not submitted a report, but he is the one who proactively dismissed these charges, so.
- [53:05]
Andy McCabe
And he hasn't wound down his office or shut down his office. He's. He's there writing all these letters. I mean, come on.
- [53:13]
Allison Gill
It says, similar to the 11th Circuit filing, the Attorney General committed to Congress that he would make disclosures regarding the final report based on his findings that the disclosures were in the public interest because they relate to a significant matter. DOJ's public disclosures regarding the supposed significance of the final report, the Attorney General's commitments to Congress prior to the resolution of the emergency motion, and the Attorney General's incorrect assessment of the public's interest in the discredited work of Smith and his team are all inconsistent with the court's January 7, 2025 order. No, they are not. The defendants respectfully submit that the disclosures by DOJ and the Attorney General to Congress, which reflect findings regarding information in the final report and disclosure commitments with respect to disputed issues were improper. Again, they were not. He didn't give any information of what's in the report. He just says, we're. We're getting one together. And. And Judge Cannon's order was actually pretty clear on that.
- [54:15]
Andy McCabe
Yeah.
- [54:16]
Allison Gill
He goes, here's the finish line here. We reserve the right to seek further relief, including a contempt finding and sanctions in the 11th Circuit, if, in the event, the 11th Circuit remands the proceedings to this court, which I don't think is going to happen.
- [54:32]
Andy McCabe
I hope not. It shouldn't. But, I mean, here we are, 110 episodes into being surprised week after week, with one thing.
- [54:41]
Allison Gill
It was going so well up until the first week of July.
- [54:43]
Andy McCabe
Any rational judge, which we know Eileen Cannon is not, would at this point be like, I'm out. I don't want any more have to do with this thing.
- [54:53]
Allison Gill
Or any rational judge in her position would be like, this isn't my case, boys. Any.
- [54:58]
Andy McCabe
Any rational judge would not be in her position, because whatever. Right.
- [55:01]
Allison Gill
That's fair.
- [55:02]
Andy McCabe
That's a million mistakes ago. But even she should be able to figure out, like, that's djt. I did all I could for you, buddy. You're on your own now. Right, but. But she is just. I mean, she could get roped into this. Yeah, she's the type. She's the type of judge that could see some nugget here that she feels like she wants to dig her teeth into for no reason.
- [55:25]
Allison Gill
Well, to get a nice spot on the 11th Circuit is a reason, maybe.
- [55:29]
Andy McCabe
Or maybe she's got higher aspirations than that.
- [55:31]
Allison Gill
We don't know. She. Oh, she definitely does. She definitely does. And we know that Alito and Thomas are going to be retiring, so. Yeah, we'll put some beans on it. All right, we're gonna take some listener questions real quick, but we have to take one last quick break, so everybody stick around. We'll be right back.
- [55:56]
Andy McCabe
Welcome back. Okay, we've come to that point in the show where we go over listener questions. And again, once again, thank you for the questions. Really a bunch of great new questions and of course, many new name suggestions came in this week. So we appreciate that. Take a look at the show notes for the link to send questions or legal advice as we were asking for earlier in today's show for us.
- [56:18]
Allison Gill
Don't ask it from us. Ask.
- [56:20]
Andy McCabe
That's right.
- [56:21]
Allison Gill
Give us legal advice.
- [56:23]
Andy McCabe
Exactly.
- [56:24]
Allison Gill
All right.
- [56:25]
Andy McCabe
Our first question comes from Mel. Mel says in the dictionary definition of the word corruption, there should now be a photo of Judge Luce Cannon. But I have a real question for this for you two awesome folks. Is there a law or policy that requires the DOJ to give an advance copy of the special counsel report to the subject of that report and that requires the DOJ to wait a certain amount of time before releasing the report? It doesn't take a genius or even listening to this podcast, although who wouldn't be listening to this podcast to know exactly what was going to happen here? Trump's team was going to run the canon and get delay and then kill the report on January 20, roughly 34 seconds after Trump finishes taking the oath that he will violate daily a courtesy advanced copy. Great. Fine. But was there a reason that they did not also just release the report since clearly the decision was to release the report, or is this a monumental and entirely predictable screw up?
- [57:23]
Allison Gill
Thank you. I mean, well, as we read a little bit earlier, Jack Smith's reasoning here was, hey, it's not even, we don't have to do this. We don't have to give you an advanced copy of this, but we're gonna. Because Robert her gave President Biden an advance copy. This is one of those gentlemanly things that are norms that are just leaving you vulnerable to be exploited. And I am coming down on the side that this was a mistake.
- [57:57]
Andy McCabe
Oh, I'm so glad you went there because I is so rare that I disagree with their strategic decisions. There have been a couple that have been head scratchers and we've talked about over the, over the 110 episodes we were doing this, but this one was a massive self inflicted injury. This was a huge strategic blunder. It's a perfect example of bringing the knife to the gunfight.
- [58:23]
Allison Gill
Yeah.
- [58:23]
Andy McCabe
This case in which the defense has taken advantage of every single aspect of our judicial system and been given more grace, more opportunity, more privileges and consideration than any other defendant could ever has ever gotten or will ever get. In this country. In any case, you don't owe him anything, period. There's no courtesy necessary here. And since when are we following the example of rob her to determine how to do our business? So the rob her, the guy who walked away from tradition and, and professionalism to basically, you know, call. Call the President, the sitting President, a kindly old gentleman with a fading memory or something like. No, this could have completely been avoided. He could have called up the Attorney General and said, it's coming to you tomorrow morning. Release it before it leaks.
- [59:25]
Allison Gill
And let's release volume one. Don't release volume two, because this thing is still going on. Send a redacted copy to Congress. Here's my recommended redactions. And then, boom, the report is out. But now if Merrick Garland releases it, he's in violation of a court order.
- [59:40]
Andy McCabe
Yeah, this, this was not necessary. And no, there's no rule demanding it. There's no law demanding it. It's not even a hard and fast DOJ policy. I've found through my own experiences, like even just dealing with the ig. Sometimes the IG lets you read a report, sometimes they don't. Sometimes they only let you read the part that they want you to see and they keep the others back. Like they play fast and loose with these decisions all the time. And man, they just stumbled into this one. It was not necessary. And here we are.
- [60:14]
Allison Gill
Yeah. So my. I think we're on the same page. Royal screw up Cell phone. Cell phone. Goal for.
- [60:22]
Andy McCabe
For real. For real.
- [60:24]
Allison Gill
Just why? And, and, and then you even took it a step further. Jack Smith or Pierce or whoever wrote it and said, I'm not going to submit this until 1pm on January 7th. So then Canon can slide in at 12:15 and say, oh, no, no, no, no, you're not. Now you have. Now you would be in violation of a court order if you release this. And you're going to have to go to the 11th Circuit and you're going to have to do it in two steps because you're going to have to respond to Nauta and Dale Ovar's emergency motion, the 11th Circuit and my BS injunction down here in the district court. Have fun. Bye bye. Have fun storming the castle.
- [60:57]
Andy McCabe
They just asked to get enjoined, essentially. But. All right, so next question comes to us from. Nah, nah, nah, says A.G. and Andy, I've been a listener of Jack since the beginning and I've learned so much by spending an hour plus with you week. Sometimes you apologize for the show running long. Please don't I'm always stoked when I see a super long episode. Nah, you are in luck. This week. I was furious when I heard that Judge Cannon blocked the release of Jack Smith's report. I sent a message to the Attorney General and was racking my brain for ideas, ideas about how to get the report that weren't illegal or would get anyone in trouble. Here's my idea. What if Biden pardoned Nada and De La Vera, and then there would be no reason to block the report. I don't want them pardoned. But can you imagine Trump's level of meltdown if Biden undercut him on this zone game? I thought that was so inventive. I'm like, yeah, why not? Just.
- [61:54]
Allison Gill
That is. Or Biden could simply order his Attorney General to release volume one to the public and volume two to Congress, because, as we know, the Supreme Court said earlier this year, he can't be held responsible. That's an official act. They specifically went out of their way to. To say, yeah, you, the President. Ordering anybody in the Department of Justice to do anything is an official act. Absolute immunity.
- [62:20]
Andy McCabe
Right. That's a great, great point. And if they tried to go after Garland for it, Garland could say, you can't prosecute me because all the evidence involves communications with the President on an official act. And I can't. None of that.
- [62:32]
Allison Gill
I was ordered by him. I was ordered by him to do this.
- [62:35]
Andy McCabe
I mean, wow.
- [62:37]
Allison Gill
That's why we couldn't go after Jeff Clark.
- [62:40]
Andy McCabe
Yeah. Yeah, that would.
- [62:41]
Allison Gill
We had to pull him out of the indictment.
- [62:44]
Andy McCabe
I love it. I love the idea. I really don't think it's going to happen. No, but it's fun to think about.
- [62:49]
Allison Gill
No, I don't think it'll happen either. But if anybody out there knows a way to get a hold of President Biden, because all the switchboards are off and the emails are closed and, you know, from transition. Everybody I know at the White House is out. They're gone already.
- [63:04]
Andy McCabe
Yeah, a lot of people.
- [63:05]
Allison Gill
So I don't have a contact, but if you know Joe Biden, tell him, hey, man, it's. It's not abnormal anymore for you to order your Attorney General to do something.
- [63:16]
Andy McCabe
Yeah. I also think, on a slightly more serious note, I think it wouldn't be crazy for Merrick Garland to pick up the phone and call Florida, the Southern District, and say to his U.S. attorney, Drop the case. Drop the two cases. Like, we're not gonna. We're not gonna prosecute a case against two guys who were. Who are you Know, facilitators for the main guy who's now immune. It's not fair to go forward with.
- [63:41]
Allison Gill
This process, work out the appropriateness of a special counsel later.
- [63:45]
Andy McCabe
Yeah. And you know what? Eileen Cannon's singular, legally unbate, legally dubious decision in the Southern District of Florida is not going to have like, a hugely precedential impact on that issue for special counsels. Does DOJ want to kind of squash this thing and get a good ruling out of the 11th Circuit? Sure they do, because they are always looking to protect the tool. They don't want to lose the ability to go through this process to get special counsels. They use them a lot. Any DOJ would want that. A Republican one or a Democratic one. But, I mean, in reality, Cannon's decision is not going to set the path for every other district court in this country.
- [64:28]
Allison Gill
Well, no, you and I said, well before, you know, back when he dismissed the, the, the D.C. case, but only dismissed the 11th Circuit appeal. As to Donald Trump, you and I were like, why didn't he just dismiss the whole case?
- [64:43]
Andy McCabe
Yeah.
- [64:44]
Allison Gill
I guess he wants to make sure the world knows that the special counsels are legal and appropriate and funded appropriately. Does it matter? I don't think it does. Donald Trump's not going to need any legal counsel. His Attorney General will be. Be his special counsel. So he's. They're going to do whatever they want. They will do whatever they want.
- [65:05]
Andy McCabe
Yeah.
- [65:06]
Allison Gill
So I, I will call up the U.S. attorney down there in Southern District and just tell them to just drop these charges. But you still are going to have to tie it up with the 11th Circuit.
- [65:17]
Andy McCabe
And oddly enough, it's not even dropping the charges. All they would have to do is send a docket, a notice on the 11th Circuit and saying, we hereby drop our appeal.
- [65:28]
Allison Gill
Yeah.
- [65:28]
Andy McCabe
So the other side doesn't even have to agree to it. Like, you know, it's a little bit more complicated. When somebody's been indicted and is about to go to trial and then you drop the charges, the court, you have to get relieve of court to actually drop the charge. You remember that with a Mike Flynn thing.
- [65:43]
Allison Gill
Yeah, but these charges were dropped by Cannon.
- [65:45]
Andy McCabe
These charges are gone. All. The only thing left is the appeal. They could just say to the 11th Circuit, we are pulling.
- [65:50]
Allison Gill
Withdrawing our appeal.
- [65:51]
Andy McCabe
Yeah, pulling the goalie.
- [65:52]
Allison Gill
But anyway, maybe that's what they're talking about. Maybe that's why today we haven't heard anything. And I'm going to check, I'm going to check one last time here. I'm checking the docket one last time before we go. Nope, still nothing. Still nothing as of Friday.
- [66:08]
Andy McCabe
With that pause you had there, I was like, oh, we got a new nugget.
- [66:12]
Allison Gill
Yeah, no, I'll just check one more source here. Nope. So, you know, but I mean, this episode's already an hour and ten, Andy. If we actually had the report also.
- [66:26]
Andy McCabe
Oh, my God.
- [66:27]
Allison Gill
Yeah. So we'll wait and see what happens. There'll be more filings for us to report on next week. So thank you for listening. Definitely keep subscribed and we're going to look over all of your suggestions for new show titles. It's going to be the same. That's me and Me and you. Same time, same bat time, same bat channel, new name, new focus. So if you have. We're going to be focusing on. We're going to watch. We're going to keep our eye on the doj. Doj. And so if you have an idea for a name for that, something simple, straightforward, like Jack was really a great name for a podcast. Let us know. Send it to us, and you can submit your questions using that link in the show notes either way. So thank you very much. Do you have any final thoughts, my friend, before we get out of here for this weekend?
- [67:12]
Andy McCabe
No. You know, it's been so chill, dude, doing these shows for the last couple weeks. We've been kind of like scraping around for interesting things to talk about, finding good ones. But, man, here today we were back to the old days of a torrent of legal filings. So I think I covered them pretty, pretty sufficiently. So, yeah, looking forward to see what happens this next week.
- [67:32]
Allison Gill
All right, we'll see you then, everybody. Please take care, by the way. And also my thoughts out to all of my friends and members of my chosen family in Los Angeles that are dealing with the fires there now. So I just.
- [67:45]
Andy McCabe
Yeah, that's a great point. Great point. Such serious hardship going on out there, and we're hoping everybody stays safe.
- [67:53]
Allison Gill
Absolutely. All right, we'll see you next week. I've been Allison Gill.
- [67:56]
Andy McCabe
And I'm Andy McCabe.