0:08

Hello, and welcome to another emergency

0:11

episode of Prosecuting Donald Trump.

0:14

Well, Mary, I think we just did

0:17

an episode yesterday

0:19

morning. Almost 24 hours

0:21

ago, exactly.

0:23

Yeah, but if you had said 24 days ago,

0:25

I would have said, yeah, that's about right, because that's what

0:27

it feels like, and maybe in

0:29

like dog years. And

0:33

I think this could be a little bit of a rough

0:35

episode on my side, because

0:37

I was on MSNBC

0:40

from, what, I think 11am till 11pm. Thank

0:46

God my dog has a really good bladder, because

0:49

I was supposed to be able to go home and walk

0:52

him and do all this great

0:53

stuff. So I'm going to probably get a lot of comments

0:55

about how I'm treating him, but

0:57

he seems no worse for the wearer, unlike

0:59

his owner. Well, it's an

1:02

important day, so thank

1:04

you for your service. Yes, it was a very important

1:06

day. Yes.

1:08

Yes. So anyway, Mary, I'm going to

1:11

definitely not be interrupting you today, because

1:14

I'm going to be just bleary. So

1:16

anyway, obviously we're back, because

1:19

we were talking a lot about

1:22

the indictment,

1:23

what we expected, and

1:27

now we actually, in the last 24 hours,

1:29

have the indictment. We have a short

1:34

press conference from Jack Smith, and

1:36

we also have who

1:38

the assigned judge and

1:40

magistrate are. So

1:43

we're probably going to spend most of our time talking about

1:45

the indictment, what it means to us, things that we

1:47

observed. And then

1:49

I'd really like to talk a lot about

1:51

Aileen Cannon. We're

1:53

going to discuss at least

1:56

what I think is the way in which she

1:58

was chosen, and then what...

1:59

if anything, the government

2:02

can and or should

2:05

do at this point. But I

2:07

think probably before we start, it's probably worth just

2:10

noting that Donald Trump,

2:12

well, of course, he's presumed innocent, has not

2:15

missed a beat in attacking

2:17

Jack Smith. I'm

2:19

no stranger to that and

2:22

have obviously seen it with respect to many

2:24

other people, but also with respect

2:26

to my former boss Bob Mueller, with

2:28

respect to me. It's not pleasant,

2:31

but at some point you really view it as a badge

2:33

of honor more than anything else.

2:36

But Mary,

2:37

what did you make of the indictment?

2:40

This is really great because, you know, it's our first

2:43

time to talk to each other about it

2:45

all yesterday when I was on the air. I

2:48

was waiting for this. Yeah,

2:49

I will say it was stronger

2:52

and more devastating than even I predicted.

2:56

It filled in a lot of the blanks, sort of

2:58

the unknowns that the two

3:00

of us and others have speculated about.

3:02

And in particular, I'm talking about Donald

3:04

Trump's own knowledge and involvement

3:08

in not only taking the boxes

3:10

from the White House, but going

3:12

through the boxes and reviewing

3:15

classified information, making decisions

3:18

about what boxes he was going to put back in the

3:20

storage room and what boxes he was going

3:22

to conceal. And I'm saying

3:24

boxes, but really what I mean is

3:26

classified information, classified documents

3:29

in those boxes, which he

3:30

was going to keep for himself and conceal

3:32

from the government, even when there was a grand jury

3:34

subpoena for all classified

3:37

information in his possession and

3:39

his involvement personally in

3:43

obstructing justice and lying to his own

3:46

attorneys. And trying to corruptly

3:48

persuade his own attorneys that

3:51

they should

3:52

not comply with the grand jury

3:54

subpoena. So to me, it was

3:56

remarkable in the strength of

3:59

the...

4:00

assuming, of course, facts and

4:02

evidence to prove every allegation in

4:05

the indictment, which is what we have to assume

4:07

because

4:07

Department of Justice standards require

4:09

that, the strength of that evidence

4:12

as it is alleged in the indictment

4:14

is extremely strong. I think

4:17

the other thing that struck

4:19

me

4:19

is the significance

4:21

of the 31 documents that are

4:25

the basis of the 31 charges of

4:27

unlawful retention of national defense information.

4:30

We have talked about the

4:32

difficulties of

4:35

the government in going to trial

4:37

in a case involving the mishandling of classified

4:39

information because you necessarily, to

4:41

prove your case, have to prove that it's really

4:43

national defense information, the

4:45

disclosure

4:45

of which could cause serious

4:48

harm to national security. These

4:50

documents, granted we only have a brief

4:52

description, we are talking

4:54

about highly classified, most

4:57

of them are top secret. We're talking about

4:59

the US weapons

5:02

and defense capabilities as well as defense

5:04

and weapons capabilities of other

5:06

foreign governments. We're talking about the

5:09

US's nuclear capabilities. We're talking

5:11

about US vulnerabilities. We're

5:14

talking about potential

5:17

retaliation plans if there were to be

5:19

attacks. The fact that the

5:21

US intelligence community agreed

5:24

that these 31 documents could be the basis

5:27

for charges, I think

5:30

to me says a couple of things. One that

5:32

the US intelligence community

5:35

feels very, very, very strongly

5:38

about the threat to national security from former

5:40

President Trump's actions and

5:43

that accountability and holding him

5:45

responsible is important enough to

5:47

lean a little bit forward in terms of which

5:50

documents they would clear for use at trial.

5:52

I think it also could mean that they

5:55

think the information is already so compromised

5:58

in those particular documents.

5:59

that

6:00

they can be used at trial because

6:03

they don't know

6:03

to whom the classified information

6:06

has been shared and they've maybe already had to change

6:08

up their own plans and things like that based

6:11

on those documents. And those will all be things

6:13

that'll get fleshed out in the coming months,

6:14

but those are some initial

6:16

reactions. And there's another thing I want to mention

6:18

too, but I've been talking a long time and that

6:21

is I thought it was

6:22

really brilliant of Jack Smith to include

6:25

in a couple of different places Donald Trump's

6:28

own statements, both before he

6:30

was the president and after he was president

6:32

about

6:32

the importance of securing our national

6:35

security. And in particular in 2018

6:38

when he was the president,

6:39

he said that as the commander in chief,

6:42

he had a unique constitutional

6:44

responsibility to protect

6:46

the nation's classified information, including

6:49

by controlling access to it. He

6:52

is well aware of the importance

6:55

of keeping these things secret. These

6:58

are his own words

6:59

when for his own political purposes, he wanted

7:02

to say these types of things and I think that

7:04

that would correlate probably when he was talking

7:06

about stripping some former officials like the

7:08

former CIA director of their

7:09

clearances and he made those

7:11

statements. And I think that was really, those

7:13

are important things to include in

7:16

this indictment to show his knowledge

7:18

and his intent in

7:21

determining, I'm just going to keep these

7:23

materials notwithstanding

7:24

that the government

7:26

has a right to them, they're classified and should

7:28

have them back. It's

7:31

a lot of reflections. It is

7:33

and it's so interesting and

7:35

I can't tell if this is

7:37

because you

7:39

and I have such similar

7:42

work experiences in general

7:45

in terms of both criminal and national security

7:47

that I had such a similar

7:50

take to you. And

7:52

so one thing I was

7:54

going to do is first with maybe

7:57

do it in slightly different order, but

7:59

I would point

7:59

people to pages 28 through 33

8:02

of the indictment, which

8:05

is where the 31

8:08

documents are described

8:12

by Jack Smith, and obviously

8:14

in the indictment, and

8:16

it's chilling. If somebody wants

8:18

to quickly see what Mary's talking about,

8:22

I had the same jaw-dropping

8:25

view when I saw this, and I had the

8:27

exact same reaction, which was how

8:29

on God's green earth did the intelligence

8:32

community clear this? The last time

8:34

I saw

8:35

clearance like this was for the two

8:37

Mueller Russian indictments where,

8:41

without getting into the insight specifics,

8:44

people on our team did a yeoman's

8:47

job of getting that cleared and through

8:49

with approval for the intelligence community, because

8:51

this can't just be done by Jack Smith. There

8:54

are a whole series of agencies

8:56

with an alphabet soup of

8:59

acronyms that have to

9:01

approve doing this, and it's a wide range

9:04

of agencies.

9:05

They're listed in the indictment too, at least some

9:07

of them, Department of Defense, CIA,

9:11

National Geospatial Intelligence

9:13

Agency, everything. So just

9:15

looking at the classification markings, it's top

9:18

secret, special handling. There's

9:20

even redacted codes, meaning

9:22

that it's so compartmented that

9:25

they don't even want to reveal to the

9:27

public the particular compartmented

9:30

program within the top secret

9:33

classification. But there's a reason

9:35

for that. For instance, count

9:37

five,

9:38

document dated June 2020

9:41

concerning nuclear capabilities of

9:43

a foreign country. Then

9:46

you go forward, there's count 19

9:49

on page 31, updated

9:52

document concerning nuclear weaponry

9:55

of the United States. Over

9:58

and over again,

9:59

military operations against

10:02

United States forces, military

10:05

capabilities of a foreign country,

10:08

foreign country support of terrorist

10:10

acts against United States interests,

10:13

military capabilities of foreign countries,

10:16

regional military activity of a foreign

10:19

country over and over

10:21

again. And not only is it chilling

10:24

that this is, quote,

10:26

stored in a beach

10:28

resort, which by the way,

10:29

the indictment does a really great job of saying, by

10:32

the way, if you think these are under a lock and key in a

10:34

storage room, they dispel that

10:36

because they go on chapter and verse about how this

10:38

was not under lock and key and it was open

10:40

access to myriad

10:43

people. And Bara Lago is

10:45

a target of foreign adversaries.

10:48

And when you read these 31 documents, and

10:51

by the way, this is a subset of

10:53

what was there. Not everything,

10:55

you can tell that from the number of documents that were found

10:57

versus the number of documents that are charged. And

11:01

even this subset is a honeypot

11:04

for foreign adversaries in

11:07

terms of wanting access to get this.

11:10

So again, I had the same reaction that this

11:12

was so much more devastating

11:14

in terms of specifics and to see it

11:16

in black and white is, I

11:20

mean, last night I was pretty

11:22

emotional on TV about what it

11:24

means to our

11:26

intelligence capabilities. And I kept

11:29

on thinking about Robert Mueller when

11:31

he was head of the FBI and how

11:33

focused he was and

11:35

the agents were on making sure

11:38

that the country was safe. And that there would never

11:40

be another 9-11.

11:43

That's what these documents are

11:45

about. That's right. And I think a lot of people, if

11:47

you've never been part of that world that we were part

11:49

of, Andrew, and you didn't sit

11:51

through those morning briefings with the

11:54

FBI director going over

11:56

the president's daily brief, the intelligence

11:58

documents of the day, which were,

11:59

we're about an inch thick every day, involves

12:02

so many things that never make it out into

12:05

public, but that our national security

12:06

community worries about

12:08

and responds to 24 seven. I

12:10

mean, for me, same as you, like this just takes

12:13

me back to sitting in that situation room

12:15

hour after hour and

12:18

talking with our national security

12:20

agencies about how to respond to various

12:22

threats. And you know, one of the things

12:25

that's been going on, I mean, we're just now seeing this

12:27

in the indictment, but for

12:29

the past year or more

12:31

at this point, almost

12:33

two years,

12:34

our intelligence community has

12:37

been having to do the damage control, right? Having

12:39

to talk to our allies and explain

12:41

to them what happened and what we're doing to

12:43

mitigate any threats and have

12:46

had to review our

12:47

own intelligence collection programs

12:49

to determine, you know, what might be

12:51

compromised and certainly what human

12:53

assets might be compromised. So it's

12:56

really just pretty incredible. And

12:58

like I think you said, jaw-dropping to read through

13:01

what's in here.

13:03

So the other thing I'd point

13:05

people to is paragraphs 54

13:08

and 55, which I think are my two

13:10

sort of favorite paragraphs. And they go to the

13:12

second thing that you were talking about Mary,

13:15

which is really about the obstruction conduct.

13:19

And here you really get this sense of

13:21

how important it was to

13:24

gain access to Mr. Corcoran

13:26

and what he had to say. So there's

13:28

sort of two points about that, which

13:30

is this proof really

13:32

doesn't come from FBI agents.

13:38

The heart of this

13:40

indictment and the proof that's ever

13:43

counted is

13:45

Donald Trump's own statements, as you said, Mary,

13:48

employees at

13:50

Mar-a-Lago, employees one and two who

13:52

have clearly given evidence and

13:56

also have text messages

13:58

contemporaneously. and

14:00

attorneys one, two, and three. If

14:03

you look at Paragas 54 and 55, they

14:06

make it plain as day that the former

14:09

President of the United States,

14:11

as he has done with Don

14:13

McGahn, Pat Cipollone,

14:16

and Michael Cohen, all lawyers,

14:18

he asked these lawyers to

14:20

commit a crime. He said, why can't

14:23

we just lie to the Department of Justice

14:25

and tell them that we returned everything? Or

14:28

if we can't do that,

14:30

that's plan A. Plan B, why can't

14:32

we just get rid of things? My

14:34

favorite is a reference to Hillary

14:36

Clinton in paragraph 55, which is, why

14:39

can't you do for me what Hillary

14:42

Clinton's lawyer did for her, and

14:44

why don't you get rid of these, and then

14:46

I won't get in trouble with leathers? Why don't you

14:49

do my dirty work? My

14:51

reference, which I think got lost last

14:53

night, was to

14:56

Beckett, and why can't someone rid

14:58

me of this meddlesome priest? This

15:01

is basically just like, please

15:03

do this for me. Don McGahn said

15:06

no, Pat Cipollone said no,

15:08

former White House counsels. Evan Corcoran

15:10

clearly said no, and

15:13

he actually looked really good in this, because

15:15

he said no, and that's the reason

15:17

the boxes had to be moved, because plan C

15:20

was Evan Corcoran saying, no,

15:21

I have to respond

15:23

to this subpoena. I have to do a search,

15:26

and I have to say we've turned everything over. So

15:29

you can see Donald Trump's wheels turning

15:31

going, okay, give me

15:33

a moment. Yeah. With Walt

15:35

Nauta and me, we're gonna just move

15:37

the boxes. And by the way, this goes to

15:39

the proof, which

15:41

is, it's not just Evan Corcoran. The

15:44

people who are doing all of this text

15:46

each other about what's going on,

15:48

so that you have witnesses and texts.

15:51

So it's really devastating. Those contemporaneous

15:53

texts, Andrew, right? Those are so important,

15:56

because, you know, juries sometimes

15:58

are skeptical of...

15:59

people's testimony at a trial

16:02

and that being able to show that, no, no, no,

16:04

I'm not just saying this now. Here's the text

16:07

from in real time when we were

16:09

talking about moving boxes all

16:11

over the place, right? And the fact that, you know,

16:14

the number of boxes and the other thing

16:16

that's so important here is we actually have specific

16:19

time frames that had to have come

16:21

from

16:21

the surveillance tapes, right? Like

16:23

by the minute of when Walt Nada

16:25

went into the storage room, when he came

16:27

out, how many boxes he came out with, and

16:30

then how many went back in, and a whole lot more

16:32

boxes

16:32

came out of that storage unit than

16:34

went back into that storage unit. Absolutely.

16:37

I mean, it is really devastating,

16:39

especially because in cases

16:42

where you are charging a CEO, a senior

16:46

executive, the defense

16:48

is, I don't know what underlings were

16:50

doing. I'm not in the weeds. Whatever

16:53

they were doing, you know, maybe it was right,

16:56

maybe it was wrong. I'm not in favor

16:58

of criminality, blah, blah, blah, blah, blah.

17:00

But here, this is the opposite.

17:03

You've got a micromanager par

17:05

excellence, and you've got contemporaneous

17:08

documentation that Donald

17:10

Trump himself was orchestrating

17:12

it and doing it, including

17:15

witnesses. And we talked about contemporaneous

17:19

texts about this and surveillance tapes.

17:21

So

17:22

in terms of the details, in terms

17:24

of looking at this as a criminal prosecutor

17:26

or as a criminal defense lawyer,

17:28

this is a really overwhelming

17:32

case, at least as set

17:34

out in the indictment.

17:37

I should also point out, this is a

17:39

speaking indictment, but you do not

17:41

put in all of your proof. I mean, it would just

17:43

be a tome. So obviously,

17:45

this is going to be what they view as

17:48

the most important evidence, but

17:50

it is certainly not all of the evidence. And

17:52

even this is very strong.

17:54

Before we move on, there was something

17:57

that you and I speculated about over the last few

17:59

days,

17:59

would there be any dissemination charges?

18:03

Because even before reading the indictment,

18:06

we'd heard about the potentially

18:08

showing classified information to

18:10

the two people working on Mark

18:13

Meadows autobiography and some other different

18:17

reporting about Donald Trump sharing.

18:19

Now this indictment does go into detail

18:21

about that particular incident up at Bedminster,

18:24

where he appeared to be referring

18:27

to a secret document in his

18:29

hand about potential attack

18:31

plans against what's called

18:33

in the indictment, foreign country A, I

18:35

think, but which has otherwise been reported to

18:38

be Iran. And he's speaking very

18:40

casually, see, look at this, look at this right

18:42

here. And then he's saying, but

18:43

it's secret, I can't really share it. By

18:46

the way, can I interrupt you? Even though I said I wasn't

18:48

gonna interrupt you. My favorite part of

18:50

that, and this is paragraph 34 for

18:53

people who are following at home, on

18:55

pages 15 and 16. When

18:58

Donald

18:59

Trump is reminded about whether

19:02

he could declassify and he's like, oh, it's true, I can't

19:04

now that I'm no longer the president, I can't

19:07

declassify it. And

19:09

he says, no, now I can't, you

19:11

know, but this is still a secret.

19:14

The staffers laughs and says,

19:16

now we have a problem. Which

19:19

is, no kidding.

19:22

Yeah, you just talked about the contents

19:24

of a secret document

19:25

to people not cleared and

19:27

with no need to know. So that's in there.

19:29

Then there's another allegation about sharing

19:32

a classified document,

19:35

including some mapping with the

19:37

leader of a pack, a political action

19:39

committee, which is really

19:41

just. And clearly

19:43

that person is cooperating as well. Yes, that's

19:45

right. But we don't see a dissemination

19:48

count. And I think, you know, we talked about the other

19:50

day, you know, these things could be the basis

19:52

for another count or they could just be part

19:55

of the narrative

19:56

and explaining about, first of all,

19:58

then part of the decision. making and why it's

20:00

important to charge this because we now know

20:03

that there has been sharing, but also

20:05

part of telling the story of the

20:07

why. Because I wouldn't say Motive

20:09

here is the clearest that it possibly

20:12

could be, but what certainly appears

20:14

is this is a man who just wanted to

20:16

be able to have these documents and show

20:18

them to people or talk about them when he thought

20:20

it served his purposes to do so. Now

20:22

there could be things more nefarious than that,

20:25

but even just this shows,

20:27

again, I go back to what he said himself

20:30

as president about his constitutional responsibility

20:32

to protect, and that was just out

20:34

the window.

20:37

More prosecuting Donald Trump, 37 felony

20:41

counts, in just a moment.

20:58

So one thing to note about the

21:01

dissemination paragraphs

21:03

is both instances involve

21:06

dissemination in Bedminster, in New

21:08

Jersey. And that's probably a really good

21:10

segue because if those

21:13

were to be charged as

21:15

dissemination, there's

21:18

an argument that those should be in New Jersey.

21:21

Exactly, that they wouldn't be in Florida. The

21:23

dissemination charge would be in New Jersey. You could

21:25

understand why the government didn't want

21:28

to guilt the lily by having

21:30

multiple

21:31

charges in multiple jurisdictions.

21:34

As we talked about 1512, one of the

21:36

obstruction counts could have been brought in DC,

21:38

but much of the conduct

21:41

could clearly be brought in Florida,

21:43

which is the decision that they made.

21:46

And so the venue for the

21:48

dissemination would be much

21:51

harder to justify as in Florida.

21:54

That may be a reason why it's not actually

21:56

charged, but it is clearly part of the scheme.

21:59

This is in Florida and one of the key

22:02

things that happened, and we went from sort

22:04

of

22:04

very positive

22:07

views, I think both of us shared with respect

22:09

to the indictment, just how much stronger it

22:12

is than we anticipated

22:15

in terms of the level of detail

22:17

and the nature of the documents. But

22:20

something bad happened from

22:22

the government's perspective, I would assume, which

22:25

is that Aileen Cannon is

22:28

the assigned judge. And I can

22:31

tell you what I understand about

22:33

how that

22:34

happened. This may be wrong,

22:36

so big caveat. And

22:39

I think we probably will hear more about this.

22:42

The first thought was, gee, was this somehow

22:44

related to her because

22:47

of her prior work on the case? And

22:49

that's not my understanding of what happened.

22:52

Also, it would be hard to relate a criminal

22:55

case, which this is, to what was

22:57

before Judge Aileen Cannon, which was

22:59

a civil case. That would not really

23:01

be usual. And

23:03

there is a wheel in Florida,

23:06

which cases are randomly assigned,

23:09

but

23:10

it's not the case that

23:12

all of the judges within the

23:15

district would be in that wheel.

23:17

So one of the things that was checked

23:19

off

23:20

by the government

23:23

was essentially, where does this case arise?

23:26

And they checked off the box West

23:28

Palm Beach. And that's correct. So

23:31

this isn't one where you get to play, oh, what

23:34

would I prefer to check off? You

23:36

have to check off the facts, what happened?

23:39

And so my understanding is that

23:41

the wheel for

23:43

the judges who would sit

23:45

within West Palm Beach or

23:48

Fort Pierce, that sort of adjacent town,

23:51

is sort of three or four, meaning

23:54

the denominator is quite small.

23:56

The other thing that could make that denominator

23:59

small

25:59

to the special master, if you remember,

26:02

the special master was a judge in the

26:04

Eastern District of New York, a judge

26:06

in the Eastern District. This was a fellow

26:09

district court judge.

26:10

With a lot of experience, way more than

26:12

alien canon. Much more. As a matter of fact, that judge

26:14

sat on the FISA court. Yes. So,

26:17

I mean, it's so reputable. Very well understood

26:20

the importance and significance of the classified

26:22

information at issue, that judge.

26:25

Right. And it was, to me, my mind, I hate

26:27

to be so disparaging, but it was like, okay, now

26:29

we have a real judge. And now we have somebody

26:31

who just came off as way, way,

26:33

way

26:35

out of her league at best. Right.

26:38

There are other

26:38

ways to think of this, but I'll leave that aside. So,

26:41

Mary, what,

26:42

if anything, are the government's

26:45

options at this point? Yeah.

26:48

So, the government can just, you know,

26:50

stick with Judge Cannon

26:52

and make its legal arguments

26:54

and make its arguments for why this needs to

26:56

get to trial quickly and be

26:58

prepared to go in on Tuesday and

27:00

say, here's a proposed protective order so

27:02

that we can start sharing discovery right away.

27:04

And, you know, here's the timeline

27:07

we think it will take for motions practice and

27:09

a trial and request all

27:11

of that and hope that she complies.

27:14

Or they could try to seek her recusal.

27:17

They could ask her to voluntarily recuse.

27:20

Or they could ask her to recuse

27:21

based on some law in the 11th circuit

27:24

where a judge has, you know, engaged

27:26

in any kind of activity or action or

27:28

opinions that show such a bias

27:30

toward one party or the other that

27:33

they should be recused. And there is some

27:35

case law, including in the 11th circuit,

27:38

which is the court of appeals that Judge

27:40

Cannon's rulings were appealed to in the past. There

27:43

is some favorable case law

27:45

there for

27:46

requiring a judge to

27:48

recuse

27:49

when they have shown that type of bias.

27:52

I will say in my own experience, particularly

27:54

litigating in DC, it was very

27:56

rare that that kind of emotion

27:58

would be

27:58

successful. because if a judge

28:01

says they can be fair and impartial, usually

28:04

appellate judges will respect that. However,

28:07

it does appear that there is an opening in

28:09

the 11th Circuit to make this argument. And

28:11

the real question of my mind is, is will the government

28:14

do that?

28:15

Or will the government just proceed

28:18

along with this judge,

28:20

again, as part of just

28:22

being sort of the straight shooters, right? They

28:24

brought this

28:24

case in Florida where venue was solid.

28:28

They checked the box for West Palm Beach because

28:30

that's actually where the conduct occurred.

28:33

So they weren't going to try to game it out and check the

28:35

box for Miami. They just, in truth

28:37

and in candor, checked the box for West Palm Beach.

28:39

They had to know that meant only among

28:42

four judges as possibilities, and

28:44

she was one of them. And they took that risk.

28:46

And perhaps they're willing to go forward. But

28:49

that does come with its own risks because

28:51

the judge will control the schedule.

28:54

And that means the judge could say, I'm

28:57

sorry, Mr. Smith, but

28:59

I'm not going to schedule this case for trial before 2025.

29:02

I mean, she could do that. Now, there would

29:05

be potential remedies for that as well. The

29:07

government could seek a writ of mandamus, which

29:10

is essentially saying that the judge is so

29:12

complete. That's hard. That's hard. Exactly.

29:15

I did that once. One of the first things I did

29:17

in general crimes, I had to mandamus a judge.

29:20

It was really scary, but we actually won.

29:23

The standard for mandamus is really

29:25

tough. And

29:25

it's usually on an obviously wrong legal

29:28

issue, not a scheduling issue, right? Not

29:31

a discretionary call. So I was going

29:33

to say one thing they might do is

29:36

essentially

29:37

see how it goes and

29:40

try and pick their battles and maybe

29:42

create a record for recusal

29:45

down the road if she continues

29:47

to make rulings that are

29:49

as egregious legally and factually

29:52

as the ones that led to her reversal

29:55

twice before. But I agree with you. The biggest risk

29:58

is the scheduling of the trial.

29:59

trial date. And some people have talked

30:02

about whether she could essentially

30:04

overrule Beryl Howell

30:07

on the attorney-client

30:09

privilege issue that led to

30:12

Mr. Corquin having to testify. And

30:14

I think for those people worried about that, the

30:16

answer is no. She could try.

30:19

She could try. But that is reversible. And

30:21

that is law of the case. And

30:23

by the way, Beryl Howell on this,

30:26

it's not only been affirmed by the DC circuit

30:29

to our understanding, but that is on such strong

30:31

footing. And even if that

30:33

decision were wrong,

30:34

the government relied on it in

30:36

good faith so that they'd have a series

30:39

of arguments. So for those people worried about that,

30:41

I think that is something that Aileen Cannon could

30:43

do, and she would be reversed. I agree. And

30:45

in many ways, if she did it, it would just be

30:48

sort of more fodder, no pun

30:50

intended, to remove

30:52

her from the case. We

30:53

now know essentially why

30:55

Judge Howell ruled that the crime fraud

30:57

exception applies, because we're reading

30:59

it in the indictment. We're reading how Trump

31:01

tried to use his attorneys to

31:04

obstruct justice. And that's pretty squarely

31:06

within the crime fraud exception to the

31:08

attorney-client privilege.

31:10

So, Mary, last time

31:12

I said, I think we'll probably be talking. In a

31:15

few days. It's funny because time

31:17

has morphed in such ways. So it feels

31:20

like the last time I talked to you was weeks ago.

31:22

But I think we're going to be doing this early next

31:24

week, which is great because the scheduled

31:28

court appearance is on Tuesday. And

31:30

we'll be able to discuss that. I think we'll know more

31:32

because the government has clearly signaled from

31:35

Jack Smith's brief press conference, he did

31:37

say that he's going to seek a speedy trial.

31:39

So we'll get some indication

31:40

about a couple things.

31:43

One, whether Judge Cannon is going

31:45

to keep

31:48

the case to what she says

31:50

about scheduling. Will be

31:52

interesting. There'll be a lot more to report

31:56

on Tuesday. Absent

31:58

are doing yet another emergency.

31:59

At some point we're only emergencies.

32:02

We don't even have regularly scheduled anymore. This

32:04

is like the new Trump world. In some ways

32:07

this is exactly what it was like during

32:09

the Trump administration where basically every

32:12

day seemed like an emergency because there

32:14

was one, you know, crisis du jour.

32:17

He is certainly keeping us busy. But let's

32:19

just go back to something positive, which is

32:21

the indictment here shows

32:24

just such extraordinary work. But

32:26

before Jack Smith got on the case,

32:28

an incredible amount of work to

32:30

compile this in a really short

32:33

amount of time, just so people understand

32:35

when I looked at this, the idea that this

32:37

was done in a matter of six

32:39

to seven months. This takes an enormous,

32:42

enormous amount of work. And it also

32:44

is a really good

32:46

harbinger of I think things to come

32:49

with respect to the January 6 case and

32:51

how meticulous Jack

32:54

Smith and his team are and how

32:56

they build a case. In other words, there's

32:58

sort of enormous variety

33:01

of sources of evidence that

33:03

you see in this indictment. For those

33:05

people who don't want to read this themselves,

33:08

our own Allie Velshi is going

33:11

to be doing a dramatic

33:13

reading of the indictment.

33:16

So if those people want to follow

33:18

along that way, you'll be able

33:21

to listen to

33:23

the indictment. And as many

33:25

people said yesterday, it is really

33:27

worth reading whether you

33:30

are an old fashioned reader as I

33:32

am, or whether you're a new

33:34

fashioned audio reader and you

33:36

want to listen to the indictment, I think

33:38

that's just going to be great. It's

33:40

really invaluable. And for those people

33:43

worried about whether it's too legalese,

33:46

by the way, for our audience that is

33:48

willing to listen to us, Mary, I doubt

33:50

that's going to be

33:52

a problem.

33:54

But for those people who are a little

33:56

wary, I can tell you it's really

33:58

a great read. It is.

33:59

I think this is one of the things that's so important,

34:02

you know, to have transparency and accessibility

34:05

in legal documents like this, so

34:07

that everyone, not just lawyers, can understand

34:09

it. And

34:10

it really spells it out. It's tight, it's

34:13

clean, it's clear, it's persuasive,

34:15

and it's not political. It's just

34:18

the facts, and the facts are devastating.

34:20

Perfect note to end on. Talk to you

34:22

next week.

34:24

Have a really great rest

34:26

of your weekend, Mary. To you too.

34:33

If you've got questions, you can leave us a voicemail

34:35

at 917-342-2934. Maybe

34:40

we'll play it on the pod. Or you could email

34:43

us at prosecutingtrumpquestions

34:46

at NBCUNI.com.

34:50

Thanks so much for listening. We'll be back next

34:52

week with much more. The

34:54

senior producer for this show is Alicia Conley.

34:57

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35:00

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35:02

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35:05

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35:11

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