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Hey, Green Gobbler here. So you've got a clogged drain in your bathroom. Water in the sink's overstaying its welcome. You're spitting today's toothpaste on top of yesterday's toothpaste. You hoped that it'd go away. Yeah, clogs don't just go away. I make them go away. I'm Green Gobbler, the only clog dissolver you need.

I'm bleach-free, safe for your pipes, and I work. Guaranteed or your money back. Because I never met a clog that was going to unclog itself. Green Gobbler. Let the gobbler get it. Green Gobbler.

Hello and welcome to another episode of Prosecuting Donald Trump. It's Monday, December 11th. And if anything's different today, it's that I'm speaking really fast because I'm here with Mary and we have a ton to cover. So we're doing this in the morning, even though, Mary, we were planning to do this in the afternoon because I was going to head over down the street to

watch Donald Trump testify in what's supposed to be the last day of the defense case in the New York

Attorney General civil case, sort of the fraud case against Donald Trump. He had been planning to testify, but over the weekend decided not to. So we decided, you know what? There's so much to cover. Let's just meet this morning and go over it. The other thing that's happening this morning is the start of the Rudy Giuliani civil case that

Also a civil case, also for damages. And so in some ways, it's very similar because Donald Trump has already been found liable in the New York case. Rudy Giuliani has been found liable to the plaintiffs there who are Ruby Freeman and

Shay Moss, her daughter. And this is the damages part of the case, which Mary, I remember you saying, is that it's going to be for both compensatory damages and for punitive damages. Right. And this is for defamation, for basically the lies that Giuliani told about them that caused them threats of physical harm, terrible emotional harm, all of that. And as people will remember, these allegations, which I shouldn't even say allegations now because it's been found by the court, these

facts found by the court also form part of the D.C. criminal trial and the Georgia criminal trial. That's right. But this is the civil case against Rudy Giuliani that is starting today before the former chief judge of the D.C. court, Beryl Howell, who is now just a normal Article 3 judge. Right. And I shouldn't say normal because she's an exceptional judge. Exactly. But she's no longer the chief judge. Anyway,

Mary, that's just sort of like a background, but what are we going to talk about today? Yeah, so, you know, that case, as you indicated, is starting today in the district court here in D.C. And most of today we will spend talking about other developments in the January 6th Jack Smith's prosecution here in D.C. We'll talk about Mr. Trump's effort to stay the entire case, every single thing about it, while he appeals the ruling on presidential immunity.

We'll talk about the D.C. Circuit just on Friday affirming the gag order issued by Judge Chuck Ken and all the reasons for that. And we'll also follow up on last week's conversation and talk a little bit about the government's response to Mr. Trump's very, very broad motion to compel discovery and to consider the prosecution team to take up pretty much everything.

the entire federal government. So a lot, a lot of activity. And that's not even everything that was filed in that case or that was issued in that case in the last week. But we'll spend some time on each one of those things. So, Mary, it's so funny. When you said the gag order that the decision that came out on Friday, I was thinking, oh,

You mean like a month ago Friday? No. But I mean, I guess there's a reason that people might listen into this because the news is so chaotic. But Mary, before we get to any of that...

There's something that happened, and I feel like we kind of have a guest on our show, and that would be you, because I don't think people understand just how integral your role was. And I know you're going to jump to say that you were helped by lots and lots of other people, which is true. But Mary, I know you also had a really key leadership role in a fake elector scheme and a civil suit. Well, I didn't have a leadership role in the fake elector scheme. Let's rephrase that. Oh, yeah, you're right. Okay.

Yes, I'm sure our loyal listeners are definitely confused by that. They're like, what? I thought she was actually an upstanding, decent attorney. Right. She's jumped ship and she's now in the sort of Jenna Ellis's of the world. So, Mary, why don't you talk to us about what happened? Like, what was the suit about? Yeah, what were we reading about at the end of last week? It just seemed like a big deal. And if you could, like, set the scene and talk to us about what

what the resolution was. Well, let me give you the bluff, the bottom line up front, and then we'll go recap, which is that. I love that. I love that you're so Washington. I know. Learned that in D.C. and in the federal government. So last week, the 10 Republican electors in Wisconsin who had met on December 14th of 2020 and cast their electoral college ballots, even though, of course, Mr. Trump did not, in fact, win. Wisconsin had not been to

declared the winner of Wisconsin by the time they voted. All of the challenges in court had been rejected, including by the Wisconsin Supreme Court. And so those 10 Republican electors settled the case with the legitimate electors, and they settled the case in a very public settlement agreement.

That is available online and at the website of the organization where I work, Georgetown's ICAP, and it's also probably available through lots of different media. And under that settlement, they made a public statement that they had met and they had voted on December 14th at the request of the Trump campaign and the Republican Party of Wisconsin. They had submitted their electoral votes to former Vice President Pence and

who serves in a role as the president of the Senate when it comes to counting the Electoral College votes. They had submitted those votes as though they were the duly elected electors, even though they were not, and they admitted that they were not. They admitted in their statement that that document was used as part of the attempt to improperly overturn the 2020 presidential elector results.

They declared that they oppose any such attempt to undermine the public's faith in the 2020 election and requested that their documents that they had sent, again, to the president of the Senate, who was then Vice President Pence, be withdrawn and disregarded.

So they made that public statement, but they also agreed not to serve as presidential electors in 2024 or in any election where Donald Trump is on the ballot. They agreed also to never serve as presidential electors and meet and cast their ballots and submit those to the president of the Senate unless they are representing the certified winner of their state.

so important that not be repeated again. And they also agreed to cooperate with Jack Smith in his investigation and prosecution of Donald Trump and cooperate in the case that we still have because they were not the only defendants in that case. Okay, so I have a bunch of really, like, maybe short questions just for sake of time. But

Who are the remaining defendants who they would cooperate against? Right. So the remaining defendants are James Troupas, who was a Trump campaign lawyer in Wisconsin, who was involved in making that recommendation to the Republican Party of Wisconsin that they should meet and vote on December 14th. And also Kenneth Chesbrough, who's really sort of the arc. I remember that name. Yes.

He has pleaded guilty in Georgia in Fannie Willis's January 6th-related case, pleaded guilty because he really kind of concocted the fraudulent elector scheme. He wrote numerous memos to James Troupis about how it could be carried out.

And in doing so, he actually came to Wisconsin and was with the fraudulent electors on December 14th, taking photographs and so on and so forth of them meeting and voting. And actually, people can see those photos because part of the settlement agreement was that the discovery that had been provided, the documents and photos and things, text messages, e-mails,

that have been provided by the fraudulent electors as part of our litigation is now public. I love that because, Mary, I was going to say those photos were sort of amazing seeing Chesbur right there. Two other really quick questions, which is, do you think any of the people who

admitted their liability could be prosecuted criminally. And just for a backdrop, you know, there's sort of two issues here: fake electors who were sort of complicit, knowing participants, knowing that no matter what they wrote, whether they won or not, whether they were true electors or not, that it was going to be submitted

to Congress as an effort to overturn the election versus people who were misled into thinking they were only contingent electors. So there's a huge difference between fake electors and contingent electors. And from a criminal point of view, if you really truly were a contingent elector, you may not have criminal liability. But if you knew you were a fake elector, no matter what happened, you were going to

be used in this effort, you might face criminal prosecution. So where do you think these people fell in that spectrum? Well, first, I want to be very careful here. In the settlement, none of the 10 admitted to sort of liability for violating the law, right? I mean, we brought our case on behalf of the legitimate electors.

alleging they had violated the law. And they admit a number of things and make a public statement about a number of things, but they don't say we engaged in a civil conspiracy, right? Or we violated laws against public nuisance or we violated criminal laws. They don't admit that here. So that is completely separate. They are cooperating here in our case. I expect that they may cooperate in other cases. I know at least one of them, he's been public and has publicly said he's cooperating with Jack Smith.

and they're going to continue as part of this agreement to cooperate with Jack Smith. I think to your point about what the difference is, some of these electors, it does seem clear that as they were first brought into this, they were at least told, they were meeting on the contingency that if the Trump campaign were to win any court case and the winner of Wisconsin be declared to be Trump, they would have met on December 14th. But

The question about criminal culpability, and again, I don't want to speak specifically to these 10 because there's also investigations into electors in a number of other states. If you then sign your certification and don't put a caveat on it that says that we are signing this only in the event that a court case determines that Donald Trump is the winner, then you are still sanctioned.

signing, arguably, a document that's fraudulent if you are calling yourself a duly certified elector and sending it in. And that's, I think, one reason why we haven't heard about any criminal investigation in Pennsylvania where that caveat was on there. Exactly. Yeah. So I think that makes a difference. So that's really interesting. So that's sort of more to be continued. Yes. And then

Final quick question before we turn to the D.C. developments is you mentioned that, and I think it's so huge that you've, as part of the settlement, they have to cooperate with Jack Smith. Do they have to cooperate in addition to that and your case with any other state prosecutors or cases like Fannie Willis, for instance? That was not part of the actual settlement agreement, although I suspect, you know, that

their own attorneys will probably be, you know, negotiating for them if they are asked to cooperate in any of the investigations, because it would be inconsistent to sort of cooperate with Jack Smith, cooperate with us and then say, no, we don't want to help you. But I don't want to speak

for their attorneys. And I will say this is a case we brought along with attorneys in Wisconsin, Law Forward and a law firm there, Stafford Rosenbrum and Georgetown's ICAP. And I will say that resolving this with the electors' attorneys was very cordial and very respectful. And I'm, you know, we're really glad to see this case resolve. And I'll tell you, we brought it in May 2022 when there really weren't any ongoing prosecutions. So we kind of feel like this sort of helped to move...

Oh, yeah, you were ahead of the curve. And congratulations and kudos. Thank you. More prosecuting Donald Trump, D.C. drama in just a moment. At Leidos, a brilliant mind is smart, but a brilliant team is smarter.

A ship that finds enemy subs is smart, but an autonomous fleet, that's smarter. Defending against cyber attacks, smart. Stopping attacks before they start, smarter. And using AI tools is smart, but integrating trusted mission AI into your technology is smarter. We're not just making technology solutions and national security and health. We're making smart, smarter. Leidos.

Dental One Associates redefine what it means to visit the dentist. Get top-quality, personalized support from committed experts that prioritize the well-being and satisfaction of you and your family. Care is centered on a highly personalized treatment plan backed by the trust and support of long-lasting relationships. Find out how you can make an appointment for a custom smile design experience by visiting doa-seriousxm.com.

Hey, Green Gobbler here. So you've got a clogged drain in your bathroom. Water in the sink's overstaying its welcome. You're spitting today's toothpaste on top of yesterday's toothpaste. You hoped that it'd go away. Yeah, clogs don't just go away. I make 'em go away. I'm Green Gobbler, the only clog dissolver you need.

I'm bleach-free, safe for your pipes, and I work. Guaranteed or your money back. Because I never met a clog that was going to unclog itself. Green Gobbler. Let the gobbler get it. Mary, let's turn to what I think is the big issue, which is the motion that has been made by Donald Trump in the D.C. District Court. But to set the stage for

Donald Trump, as we've talked about, has filed an appeal with respect to two issues, presidential immunity and double jeopardy. Both of which we talked about last week. Right. Yeah, extensively. Exactly. And even if you think those are not likely to prevail, there is something that on appeal, you're allowed to appeal certain issues, as we talked about, pre-trial. Presidential immunity and double jeopardy are two of those issues.

If they are not found to be frivolous appeals, more on that later, there is something called an automatic stay of matters that relate to the issue that's on appeal. That's right. That's important, what it means to relate. But it's an automatic stay that operates pursuant to appellate rules for the issues that are involved in that appeal. That's right.

That's sort of the backdrop. Ultimately, there'll be a merits decision from the D.C. Circuit on the double jeopardy issue and on the presidential immunity issue. But before that happens, the issue is, what is the nature of the stay that would happen in the district court? Why does this matter? Because there are all sorts of things that are before Judge Chutkan. Most dramatically is she has started the whole process of

picking a jury in the sense that there are questionnaires that go out. They have to be filled out. They then come back. The parties look at them. They do something called peremptory challenges, meaning are there jurors who should be weeded out because they can't be fair? That's a lengthy process. And we've talked about how the judge has set deadlines in January and in February for that to be ready for the March 4th trial. And the issue is, what exactly can she do and can she not

There are also other pending motions that we've discussed, right? Motions to dismiss. Oh, absolutely. And so Donald Trump put in papers that said that there should be a stay, and those papers were made to Judge Chutkan. And

in a somewhat, I thought, imperious fashion, or maybe that's not exactly the right word. They said, by the way, we're just going to assume there's a stay and I'm not going to participate anymore. One of the first things I noticed, I'm like, oh, you're just done. Okay. Okay. That's kind of great. And the government put in its response, and I was a little surprised by it. So let me just tell you what their response is. I'll tell you why I'm surprised. Then Mary, you can talk me off the ledge.

So the government's response was complicated. It's very short. It's only a few pages. I've tweeted about it. You can find it online if you want to read it. First, it said, there's no real reason

for the district court to enter a stay because there's an automatic stay that goes into effect. So it's kind of surplusage, who cares what you think because it's already goes into effect. But that left open the issue of, well, what is the nature of that automatic stay? What is the government's view about what gets stayed automatically?

And there, they delineated certain things and didn't delineate other things. So there was some open issues. One of the things that they said was that the judge is entitled under the automatics day to decide

any sort of fully briefed motions that are before the court. And we've talked about a lot of those sort of fully briefed motions that, and it's, and the government has said those can still be decided. Right. And just for listeners, remember we talked about the motion to dismiss on selective prosecution and vindictive prosecution grounds, fully briefed. Motion to dismiss on statutory grounds, fully briefed. So they said that's one area. The second area

They said that there are issues that are not really related to the appeal. What did they say those consist of? For instance, the motion for the stay that was just filed. Arguably, that sort of falls into both categories. To the bail conditions and any change in bail conditions, they said that they were not related to the appeal.

Three, the gag order, which we'll talk about, that was issued. And that's it. So it's very narrow. And arguably, by the way, you could imagine Donald Trump saying those are actually involved because... And he does say, he says everything is involved. Yes. And I'm sure he's going to respond saying, like, I disagree that even the bail conditions and gag order are not. But here's the thing that the government did not say. And I was just fascinated by this.

They did not say anything about the whole jury selection process. And while the government said, even though there's a stay in effect automatically, we, the government, are going to voluntarily continue to do everything that you've scheduled, Judge.

even though the defendant is not required to, we are going to continue, but not because it's required, but more because we can voluntarily do that. And the key thing they say is, please keep the date.

because you don't know what's going to happen in the future. The D.C. Circuit could rule very quickly on the merits of the double jeopardy and presidential immunity claim. So keep the March 4th trial, because if you give up that trial date, all hell could break loose, essentially, because the defense lawyers could develop conflicts in terms of trial dates. Other judges could schedule things, etc. So they asked to please keep that. I was surprised that...

that the government didn't more directly say what was going to happen with jury selection and what to directly take that on, because I think implicit in their filing was that that could stay. The second thing is, and I thought that there was an argument along these lines, Mary, and you're such an appellate lawyer that I thought you could tell me whether you think this is legit or not.

too strange. Remember, there are two issues that are at a stay. One is staying the trial date. The other is staying the litigation up to the trial date. There's no question an automatic stay can affect both of those things. But remember, Donald Trump was indicted on August 1st. He did not file his first motion for a stay until November. He got the advantage of discovery. He took part in the process and

was getting things from it that were to his advantage and waited months to file that. If he really thinks he's "prejudiced" by the needing to litigate, not just the trial part, which I agree could be stayed if that becomes relevant,

But the litigation part, I feel like he sort of waived it. I'm like, if you really want to say you are harmed, why did you wait so long? At least I'd want him to have to answer that question. And I was surprised the government didn't make an argument on that. So I was a little bit surprised as well. They seem to have actually filed what I would call a pretty defendant-friendly response, which is essentially they said, while the appeal is pending, the defendant will not be subject to the

burdens of litigation. We, the government, will keep meeting every single deadline and then the hope that is as soon as the appeal is resolved, they can then quickly, the judge can get through everything, you know, that still needs to be done and go to trial on March 4th. I think there is an argument they could have made because I think it's a little bit left unresolved.

The case law that this immediate sort of stay of matters related to the issue on appeal, that comes from a civil case. A lot of the law about what is stayed and what is allowed to continue come from civil cases. And there's a big difference between a civil case and a criminal case because the public at large doesn't have the same interest in civil cases, right, that the public at large has in criminal cases.

And courts have recognized, other courts, lower courts, the Supreme Court really hasn't had to directly deal with this in a case like the one we have before it, but other courts have recognized that there is this public interest and not having delay of criminal cases. And so you sort of have to have these countervailing policies of...

protecting a defendant's right not to be tried if they have immunity or if something like double jeopardy is at issue. But at the same time, the public has this right in seeing cases get to trial, public policy on favoring the rapidity.

but adjudication of criminal prosecutions is what one court has said. So I think there's at least an argument and there's some precedent for courts going ahead, even while immunity or double jeopardy in a criminal case is on appeal, going ahead and having pretrial hearings and going ahead and preparing for trial, just not starting that trial. So right. The

The government could have, I think, been more aggressive in its position and made a decision. And I'm not sure why. It's a three-page filing. I'm not sure entirely why they made this decision to go ahead and say he's relieved of these burdens. And just so everyone understands why this could be a big deal is interesting.

it puts a lot of pressure on the D.C. Circuit to act very quickly. Which I think they had anyway, frankly, right? Yeah. But even more. Yes, but now even more so. And the reason is, this is a case where, as Judge Shetkin has realized, that the jury selection process is going to take a long time. She has things happening in January for a March date. So any delay now is going to have, you know, it's a cascading effect. So...

This is why I really think this is a big deal. I'm going to be interested to see the news coverage of this because I think people might be missing a really huge story. More prosecuting Donald Trump, DC drama in just a moment.

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Hey, Green Gobbler here. So you've got a clogged drain in your bathroom. Water in the sink's overstaying its welcome. You're spitting today's toothpaste on top of yesterday's toothpaste. You hope that it go away. Yeah, clogs don't just go away. I make them go away. I'm Green Gobbler, the only clog dissolver you need.

I'm bleach-free, safe for your pipes, and I work. Guaranteed or your money back. Because I never met a clog that was going to unclog itself. Green Gobbler. Let the gobbler get it. So, Mary, as we've been talking about the stay and how important it is with respect to this motion before Judge Chutkan,

something has happened, you and I have taken a breather, read it, happy to then focus on it. So quickly, what Jack Smith has done is he has asked the Supreme Court

to essentially hear the presidential immunity and double jeopardy motions now. Meaning, don't wait for the D.C. Circuit. Let's leapfrog that and go directly to the Supreme Court. There's a special rule in the Supreme Court for that. And he says, here's the reasons you should take the cert petition. You should hear the appeal. And here are the reasons why you should

do it now and not wait for the circuit. And then here's the briefing schedule we would like.

So he has filed those papers before the Supreme Court. At the same time, he has also filed a motion to expedite the appeal in the D.C. Circuit on the chance that the Supreme Court doesn't go forward. He wants to make sure he's not losing time there. So he's sort of moved for expedition essentially in both courts. But this seems like a I don't know about you, Mary. I think this is a really smart move because obviously he's got to win on the merits, but

this is one where you could win on the merits but lose anyway if it takes too long because he needs to get to trial. And so that's essentially what he's saying is like, you've got to hear this now or this could be too late. Well, and he's also saying this is an issue of paramount importance. This court is going to have to be the court that resolves this. It's never been resolved before.

And he doesn't say, so why waste time in the circuit? But essentially, it's like, we have a trial date of March 4th. They've already come in, as we've already discussed today on this podcast, and said, you know, there is a certain amount of this case that will be stayed. And absolutely, positively, the trial will be stayed if this issue is still outstanding. So let's just go straight to the 9-10.

Yes, yes.

And some of the most important stuff, and I know you want to talk to this, is that the counsel who is now on this cert petition is none other than Michael Dreeben. Yes, it is. So for those people in the know, if you're in Washington, you certainly know Michael Dreeben. Michael Dreeben died.

served in the Solicitor General's office as a Deputy Solicitor General for decades, many, many, many, many years. And his area of expertise was criminal law. So I dealt with him a lot over the years when I was working on the Enron prosecutions, when I was at the FBI, and most recently in Special Counsel Mueller's office, where he was the head of the appellate group. So I dealt with him daily. And you just don't get any...

There's no bigger gun. And he's argued more than 100 cases in the Supreme Court. He's absolutely probably one of the most knowledgeable people in the country when it comes to criminal Supreme Court practice. And he is no longer at the Department of Justice. He had left the department after the Mueller investigation and was in private practice. So he is back now.

in the department for purposes of working with the new special counsel. I also thought a couple of things that were of note is I think the Supreme Court petition is one that logically

Donald Trump's team is going to have a hard time objecting to because their whole position is that they're right on the presidential immunity claim. They're right on the double jeopardy claim. And they're saying to the court, I, Donald Trump, should not be subjected to even being under indictment. So I'm harmed every day.

And so his interest, logically, is to have this decided quickly. That's right. And so it's going to put him in a hard position because, I mean, if you're the justice, you're going to be like, I'm sorry, you're saying you're right. Wouldn't it be better?

better for you to have this resolved in your favor quicker, because you're saying the whole problem for you is litigating this. So strategically, it's kind of interesting that he staked out his position, and I think it makes it hard for him to oppose, although it obviously will be opposed, and it's noted as an opposed motion. But it's going to be hard for them to articulate that

because they actually, let them have to go to the D.C. Circuit and to the Supreme Court and say, look, what we really want is a trial in 2026, if ever. It's also a little unusual, but I understand why it's done here, for the party who prevailed below to be seeking cert in the Supreme Court, right? Normally it's the party who loses, but what Jack Smith is doing- But it's because of the stay. Exactly. Because of the stay, yeah. Yeah, Jack Smith is saying, well,

Donald Trump has already appealed to the circuit. That's just going to delay things. It stays things. So we are going to go ahead and ask the Supreme Court to take this up. But it's just an unusual posture. It doesn't happen very often. So not very often. Two things. One, the case that is cited by Michael Dreeben in his papers is United States versus Nixon. Yep.

I'm old enough to remember that. That was a case where there was pending criminal investigations and prosecutions and claims of presidential immunity. And so that is one that is sort of front and center in the papers for why the Supreme Court should take this leapfrogging approach.

And in looking at something that Steve Vladek has recently tweeted about or X'd about. And he's a law professor at the University of Texas, and he writes extensively about Supreme Court practice.

Yeah. I mean, he is one of these sort of, again, if you're in this world, he's like one of these go-to people. And he has been putting out something that's sort of interesting, which is, this is an unusual procedure to do this leapfrogging, but as he noted,

that since 2019, there have been 14 times the Supreme Court has done this. This would be the 15th. So there had been very, very rare before that, but increasingly the Supreme Court has been doing this. So, well, yes, it is unusual. Everyone has to realize that, but it is increasingly...

more common. So that's sort of an interesting thing. But again, I think this, I can't stress this enough to people. I think this is the ball, this is the ballgame, because this is just whether you will get to trial and the Supreme Court can sort of have a de facto veto by dragging this out and not hearing it now. So this is one I cannot stress enough. Everyone's got to keep their

eyes on this as the most important issue. I'm less concerned about the merits, which I think that Jack Smith, especially now that Michael Dreamin is going to be arguing this, is... We're very strong on the merits. Very strong on the merits. But you've got to get to them.

You've got to get a decision. That's right. Okay. Well, you know what? Jack Smith is keeping us on our toes. Totally. With a lot to cover. Mary, let's just talk about the very antiquated news because it happened on the Friday before this Monday, which is the gag order decision came down from the D.C. Circuit. Do you want to briefly describe for us what happened to that? And also, what did you think of it?

Yeah, so we did a whole episode right after the argument where we talked about some of the questions that the three judges had, both for Mr. Trump's attorney as well as for the government. The court really put both sides sort of through their paces at that argument. And I was not surprised. You and I both predicted that they would affirm

a restraint on Mr. Trump's speech, but they would probably narrow it a little bit from what Judge Chuck had done in that. That is exactly what they did. They did find that the government had shown that there was a significant and compelling interest in issuing some type of restraint on Mr. Trump's speech because of the impact of

that he's already been engaging on, on a fair trial, its truth-seeking function, and of course on potential witnesses who might be intimidated or feel threatened or chilled from participating and coming and testifying truthfully.

But they did, and they found, they rejected arguments that there was some lesser thing that the court could do rather than a restraint on Mr. Trump's speech, that there were alternatives that might be effective. And we can talk about some of those alternatives. One of them is, bing, bing, bing, delay this whole trial till after the election. And they rejected that, of course, and I'm sure you want to talk about that. And they said, so there weren't alternatives to remedy this compelling and significant interest of the government.

But there's some things that were not the least restrictive, and that's where they narrowed things a little bit. And so ultimately – and then we can go back and talk about some of the key points I think that the court made – ultimately, they upheld the order –

but narrowed it so that when it comes to targeting witnesses, you know, Judge Chuck can use the term that you cannot target witnesses or reasonably foreseeable witness. They talked about what does target mean, and they got more specific that Mr. Trump cannot target

himself or his counsel make or direct others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or prosecution. So if he's talking about something else, like a book that one of the witnesses wrote, for example, he can do that, but he can't make public statements or direct others to make public statements about their participation in the case. What about

with respect to Jack Smith himself. Right. They said, Jack Smith, fair game. You can criticize Jack Smith just the way you can criticize the Department of Justice, the Biden administration, as to his staff and other counsel and their families and court staff and counsel. You cannot make or direct others to make public statements where those statements are

Right.

Trump knows that his comments have an impact on action that others take. In fact, he's bragged about that in some of his town halls and other public statements, that people listen to him like no one else. And so they narrowed things. But honestly, I really do think this is essentially what Judge Chukin was trying to get at when she phrased her order. She just didn't.

didn't get quite as specific as they have. And so their fear was that it would apply too broadly and infringe on Trump's speech in ways that would violate the First Amendment. But one of the key phrases, and I'm sure you have a bunch highlighted, and I even

cut and pasted some of them because I had so many highlights in the 68-page opinion. One of the things I liked about him is at the beginning, they said, Mr. Trump's right to a fair trial does not give him the right to insist upon the opposite of that right. That is a trial prejudiced in his favor. So let me give you a few quotes and we can see whether we highlighted the same. Boy, this is like we are really going...

We're really embracing our nerddom, if that's a word. So this is sort of a remarkable statement made by a federal appellate court about a former president of the United States. We agree that some aspects of Mr. Trump's public statements pose a significant and imminent threat to

to the fair and orderly adjudication of the ongoing criminal proceeding. That is about a former president of the United States, a significant and imminent threat. That's one. Two, in addressing Donald Trump's

claim about, oh, you should just put the trial off, etc. And you can decide this later. The court said, in this case, the general election is almost a year away and will long post-date the trial in this case.

Now, this did come out after Donald Trump had filed his appeal. They would be aware of the automatic stay. I don't want to read too much into it. They're not deciding the automatic stay issue. They're not deciding the presidential immunity issue. And they might not even be the panel that gets to decide that. Exactly. But it does make clear this panel's

of the need for and the backing of a speedy trial here. That's right. And again, the quote is, in this case, the general election is almost a year away and will long post-date the trial in this case. So that is actually now law of the case. There'd be an argument that

You know, it's not binding because it's dicta, but they clearly are leaving a sort of thumbprint on the case and what they think about it. And specifically, they were rejecting his argument, one, that the whole case should be delayed, and secondly, that at the very least, the court should just not have any gag order while he's campaigning. And they're like, it's a year away. We're not doing that. So the final thing is they did leave open

open for Judge Chutkan expanding the gag order in the future. This is in Footnote 18, where the court said, you know, the usual rule for gag orders is to protect the jurors and the jury pool. And here, Judge Chutkan said she's not relying on that as a ground because she thinks she can deal with a lot of that

when she is picking the jury and weeding out people who might be unduly prejudiced and can't be fair and impartial. But they in a pointedly said in footnote 18, we are not in any way precluding you as the case proceeds. And if you think it is appropriate from using that as a ground for any expansion, obviously the judge check-in would have to hear from Donald Trump that could be appealed, et cetera. But it was very interesting that they were like, we are not saying if it comes up

and as you get closer to the trial and things are going on that you think could prejudice the jury here, that you still have that ground. So it was a very careful decision noting

that she still had that option available to her. It also, to me, really reflects just how careful Judge Chutkan was being in terms of grounding her decision, not on every possible ground she could possibly think of, but really trying to find what is it that supports what she's doing, what doesn't support it, but that there is that option. Yeah. I have two related things, I think. One, I think in the court's review of

statements that are made about potential witnesses. You know, one of the things that Donald Trump had argued is I can't control what third parties do on their own. And they really rejected that. I'm not responsible for the actions of third parties. That's right. They said two things, right? The district court's prohibition on Trump's direct communications with known witnesses, which is a standard, you know, part of

of your bail release conditions. It's imposed here. He's not even arguing. He's allowed to directly contact witnesses. He said it would mean little if he can evade it by making the same statements to a crowd, knowing and expecting that the witness will get the message. And then I think more important, and I love the verbiage they used here,

Accordingly, the district court had the authority to prevent Mr. Trump from laundering communications. I loved it. I loved it. Exactly. I loved that. Laundering communications concerning witnesses and addressing their potential trial participation through social media postings or other public comments. You know, as former prosecutors, that's like bing, bing, bing, money laundering. You're laundering your statements. I loved it. The other thing I would say before we move on in terms of the carefulness of this decision is,

listeners who heard us talk about the argument will remember we talked about there's a couple different standards that an appellate court might use to assess when you can have a prior restraint on a party to a criminal case. Things like

substantial likelihood of material prejudice versus a much more stricter standard that looks a lot like First Amendment strict scrutiny, right? That it's got to be narrowly tailored and no less restrictive alternatives to address a compelling government interest. They said, look, we're not going to decide between these standards. We're going to apply the strictest standards

standard to this. And that's really smart because if you were to take this on up to the Supreme Court, and I don't know that they would take cert on this, but if they were, the Court of Appeals had already reviewed this under the highest standards so they wouldn't be risking that the court says, "Ah,

Decent circuit, you applied the wrong standard. Go back and apply a stricter standard. So let's turn to the government's discovery response. It's very, very lengthy. So we're just going to give big picture. But we spent some time talking about this. So it's good to now have the government's response to this. And

In general, I thought it was excellent. It talks about, if you remember, there's sort of two sort of separate issues. One sort of what is the scope of the prosecution team? In other words, is the information that the defense is seeking within the possession, custody, or control of the prosecution team, which raises the issue of

Who is the prosecution team? And different circuits have different views about exactly what it is. Some people, it's just the lawyers and the agents on the case. Some are, it's the lawyers in their office and the agents and their particular office, other...

Did you work very closely with other agencies so that you're sort of one team? I mentioned this, that happened in Enron, where it was DOJ, the group we were in with the SEC. So there's some play in the joints. So they address that, and then they go through each of the

things that the defense wanted. And they do a really terrific job of going through each and everything. On the scope of the prosecution team, I'm going to raise two issues that I thought

I'm not sure I agree with. And I want the backdrop, though, I want to make sure everyone understands is I thought their submission was excellent. I think that the defense submission was not. It was not particularized enough. It was hard to know exactly what they wanted. It was not just a fishing expedition. It didn't even you didn't even know what fish they wanted. Right. But I do think the government needs to be held to a high standard here. And you and I have been so trained in discovery and discovery obligations. So here are two issues that I

wanted to know more about. One, in terms of scope of the prosecution team, the submission was very much based on the current special counsel team and talked about what is in the prosecution team when given the current

prosecution team. But this started not as a special counsel investigation, and the prosecution team was within the District of Columbia. The U.S. Attorney's Office for the District of Columbia, right? Yes, exactly. And so I wanted to hear a little bit more about

how they dealt with that issue and was it the same scope if you had viewed this through time? Because I don't know that just because it switched from one prosecution team to another, that that means that your discovery obligations are suddenly narrower. I don't think there's any law on that because it's so unusual, but I just thought they should have addressed

whether they were really producing everything. Now, I think the answer is they were. So I think, yeah, that's where I would say, I think they had two ways they addressed that. One was the prosecution team is what it is now. But I think they acknowledged, at least to a certain extent, that there were people in the U.S. Attorney's Office and the District of Columbia who had started this investigation, I think most of whom had gone over to the special counsel's team. And what they really, I think, were trying to draw a line on

is between those on the special counsel's team or who had worked on this investigation previously and the entire rest of the D.C. U.S. Attorney's Office, which has done all of the other January 6th-related prosecutions. But even having said that, they said, look,

We've given over everything that anybody from the DC U.S. Attorney's Office or the current special counsel has. That's fair. That is Discovery or Brady. And we have an entire database of all of the evidence related to the January 6th prosecutions of Brady.

I'm just going to say the rioters. And that is available. And we have made it available to Mr. Trump's counsel since, you know, whatever, forever. And maybe they're not availing themselves of it, but it's there and they can access it. So that last part was one of the better lines where they're like, by the way, we've made it available and they haven't taken us up on it. That's right. So it's really hard to say, gee, we really want all this discovery when it's been all

a whole bunch of discoveries have been made available to you. So you need to be able to say why it's not there and why you need more. And it's searchable, too, because Trump will say, well, it's needle in a haystack. They're like, it's a word searchable database. Right. I'm going to search for the word needle within that haystack. Right. So like that, it doesn't really work anymore. Did that whole needle in a haystack? Because you could actually search directly for the needle. You don't have to go through all the straw. The second thing that we talked about a little bit over the weekend is the

I think that they used a materiality standard that comes from alleged Brady violations. And that's the standard that is going to be super nerdy. But when trials are over and the defense learns a piece of information that is allegedly new, a lot of litigation is about, you should have turned this over to me. It is exculpatory or impeachment evidence.

And the standard that the courts use after the fact is, did this tend to exculpate or impeach? And was it, quote, material, unquote, to the trial? Meaning, is there some lively prospect that it undermines confidence in the outcome of the trial? Could have changed the verdict, right? Exactly. And there's a lot of law on that. It can't be speculative. It really has to be something material. Right.

When you are looking at the issue before trial, the DOJ guidance is not to focus on materiality as one of the limiting principles for what you have to turn over because you don't know how the trial is going to turn out. You don't know what's going to be material to the outcome when you're looking beforehand. And so you turn over anything that could be potentially exculpatory, potential impeachment.

you're not thinking about materiality because it's almost impossible to even understand how you would do that. And there was a lot of emphasis on the materiality prong in the brief.

that I didn't think was legally correct. Or that's sort of the right, wrong. It's not that it's not legally correct. I didn't think it was consistent with my training. Yeah. So as you know, you know, ever since the sort of failed prosecution of Senator Stevens, where the department really got called on the carpet for not taking its Brady obligations, frankly, seriously enough, and taking too narrow of a view of materiality, the government's

has been to take a very broad view of materiality when it comes to Brady information, exculpatory information, or impeaching information, partly for the reasons you said. You can't know beforehand what the defenses are all going to be and what might be...

material those. So you really have to take a broad view. And that's also a different category of discovery than just general discovery under the rules, which are things that are sort of like relevant to the defense. And it might not be exculpatory, might not be impeaching, but they're just like facts, right? Facts that the defense needs to know. And so I

I thought that in some places the government was pushing harder on, you have not connected up. And I think some of this was valid, and maybe it's the verbiage that we're quarreling over. You have not connected up why these things you're seeking are actually –

you know, even relevant to anything specific or that Donald Trump, you knew any of this information when I say that, because they're asking for a lot of things like all kinds of intelligence and assessments about potential Russian interference or influence in Russia.

the 2020 campaign as well as they actually want 2016 campaigns, other foreign influence. A lot of times the government's response was, first of all, we've given you all kinds of stuff. And secondly, you haven't even suggested that there were other things you want that Mr. Trump was aware of that would have influenced his

views about whether they were fraud in the election. Exactly, his state of mind. So they definitely, I totally agree with them to pick up on that. And they hit that over and over again, that if it's not something the defendant was aware of, it's not even relevant. And a lot of what you're saying may be totally right, that if they had used the word relevant versus material, I wouldn't be triggered.

But I think it's because as a lawyer, the word material in the Brady context is such an important legal word. And it's not one that I think about pre-trial. I think of relevance pre-trial materiality post. So that's like super nerdy. Right, right.

So there's so much going on. I thought the upshot, though, last question, was basically, I thought for everything they said, they would quarrel about it, the government, like, object, and then said, and we gave it to you all already. That's what it felt like to me. A lot. I'd say that's true for, it seemed like maybe 99%, and it also was very much like, you know, you got to be specific about it.

This is not... Who the hell knows what you're really asking for here? And I could see Judge Chutkin having that view, which is like, tell me what's really going on. I don't know what to do. Right. I don't know what you want. But of course, that right now, the big open issue, which we are going to stay on like a duck on a June bug, is whether...

that is going to be something that can even be litigated now. That's right. And what happens with the stay. So, Mary, I'm really glad we did this. Sorry to sound so rushed, but it's like we had, I think we did pretty well getting through all of this. I do too. And you know how sometimes people listen to podcasts at like one and a half times or one and a quarter. I don't think they can do that today. We talked fast. I agree. We're going to, let's keep it up. Okay. Stay tuned. Yep. See you.

See you next time. If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more.

The segment producers for this show are Jessica Schrecker and Ivy Green. Our head of audio production is Bryson Barnes. Paul Robert Mounsey is our audio engineer. Ayesha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president for content strategy at MSNBC. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.

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