Trigger Avenue
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Hi, welcome back to Prosecuting Donald Trump. It's Tuesday, June 18th. I'm Andrew Weissman, and I'm here with Mary McCord, who's going to travel a lot. You're out West. I'm out West, so it's earlier for me. When I was in Ireland, it was later for me. When I'm in Colorado, it's earlier. But this was not for vacation. This was for work. It's still lovely. It's beautiful in Boulder, Colorado. So this is going to be an interesting episode because in many ways,

You and I are waiting for a lot. There's so many pretentious things, but there's some really interesting things going on.

that are actually current. So what's on our current dance card before we talk about who we're hoping to dance with? So exactly. So right now we've got issues of Trump's out-of-court statements are in play in both the Manhattan case and the Mar-a-Lago case. In Manhattan, Mr. Trump has moved to have the gag order terminated. That's in the middle of being briefed. And just this morning, the highest court of New York, the New York Court of Appeals, actually dismissed

Trump's appeal, his original appeal of the gag order when it was issued. So that appeal is gone. That doesn't mean he couldn't take up another issue if the lower court, Judge Marchand, refuses to terminate the gag order. So we'll talk about that. At the same time, special counsel Jack Smith has moved to modify Trump's conditions of release in the Mar-a-Lago case.

essentially to oppose a gag order, but under a different sort of legal doctrine. Trump has opposed that. That will be heard next week by Judge Aileen Cannon. So a lot of things going on about Mr. Trump's speech for us to talk about. Mary, can I ask you a question about the New York Court of Appeals? Because this is one of the little picadillos of New York, which is

The New York Court of Appeals. So confusing. Actually, the highest court. Yeah, I think that's what I said. No, no, no. You totally said that. What I wanted to make sure is that when you said the New York Court of Appeals, I want to make sure everyone understands

That's the equivalent in any normal world. But, you know, we're special here in New York. Of a state Supreme Court. I know. You guys do it backwards. It is really weird. But the New York Court of Appeals is the highest court, which, by the way, and you know what the lowest court is? The New York Supreme Court. It's just to confuse people. So it's sort of, what is it, ass backwards? Except for the fact we're really good. Yeah. You'd think at some point they would just change the names, but I guess you don't really do that.

Anyway, then we'll go on to talk a little bit about some of the other motions pending before Judge Aileen Cannon, because there's a lot of hearings coming up hearings this Friday, next Monday, next Tuesday. Next Tuesday will be hearings on the motion to suppress, which we have never talked about. So I'm excited to talk about that. I know. And then we'll look forward. You know, we are anticipating, as you indicated, a decision in the Fisher case. This is one of the January 6th rioters who has appealed on the argument that the obstruction charged...

with which he has been charged and which about 346, I think, rioters have been charged, that that does not cover their conduct. Mary, I like this. Yeah, approximately. About 346. Well, Mary, full disclosure, Mary and I are helping a colleague, Ryan Goodman at NYU, to

to write a piece about what the possible effects are. So the number 346 is not just out of a hat. Yes. And we're hoping to, when that decision comes out, we'll do an analysis that we'll talk a bit about the piece that we're working on that obviously we have to tinker with the

depending on how the decision comes out. Right. So we actually talked about the Fisher case a long time ago. After the argument in the Supreme Court. Yeah. Yeah. So we'll talk a little bit at the end about that because we just want to make sure it doesn't take people by surprise and it's on people's radar screen as to what it is and how it could affect. People are like, how does this relate to Donald Trump? We'll get to that. So I think these gag orders are just so interesting because we have people

in competing jurisdictions. Right. And we have one in a sort of pre-trial phase and we have another in a post-trial phase. And so they are coming up in different contexts. But this is the one, just so that everyone remembers, the Florida request for a gag order, which is styled as part of his bail conditions should be changed. So the sort of mechanism for enforcement is slightly different. But this is the one that

Mary, I would say you joined me in being triggered. And part of that is that Aileen Cannon sort of rejected the motion because of a lack of conferring with the other side that she thought was insufficient. There was a conferral, but she thought it was insufficient. And so in spite of the allegations of serious potential harm to law enforcement, she basically kicked this back. It had to be refiled. And then it

It's being slowly litigated, which is just, to me, even if she ends up being right, it's just so inappropriate to not take the allegations seriously enough to hear it. But this will ultimately now be heard

As is the Judge Marchand, should there be a continuation of the gag order in some form? Right. And so should we start maybe with the New York one and then move to Florida? Does that make sense to you? Yes, let's do. But I also have to tell you, a wonderful listener sent to me a photograph of a street sign that says Trigger Avenue.

and thought that this would be something that would be useful to you, Andrew, to know your way to Trigger Avenue. So I will forward you that photo of that street sign because I thought it was pretty great. Trigger Avenue. Trigger Avenue. Okay, Trigger Avenue. You know, at the end of each episode, we try to figure out what is the... We're on Trigger Avenue. We try to figure out what should be the title for the episode. Yeah.

Yeah. Game over. Yeah. I think this listener would love that. It's so great. Absolutely love it. Trigger Avenue. And what I love about Trigger Avenue is because you were so rightly incensed by the way this was handled. And I was like, you've joined me on Trigger Avenue. Oh, gosh. Okay. All right. So let's talk about Manhattan. The real... Wait, wait, wait. Mary. Yes. Can we just stop? I love... I'm such a bad influence because usually...

I'm like the, like, taking us on a detour. I've got an anecdote. It's like, and you're just like, can we maybe take a minute to talk about substance? So anyway, I think it's about time we start talking about substance. Enough of this, enough of this embroidery. Of this chitchat. Okay. So the basic premise here is Mr. Trump's attorneys say, look, the

The whole reason for this gag order was because the court and the DA's office wanted to protect the administration of justice, wanted to protect

witnesses from influence during the trial, jurors from influence during the trial. The trial is now over and there is no longer, in their words, a clear and present danger to the administration of justice. And what they do is they try to rely on other cases where gag orders were in play just during

the course of the trial because of concern about otherwise there being undue influence on witnesses or jurors if the defendant was out speaking about them during the trial. And of course, the other big part of this

motion to terminate the gag order is Mr. Trump is a candidate for president. He has debates coming up with President Biden, and he's trying to argue that he's going to be stifled from being able to speak freely as a candidate at his debates by this gag order. And in fact, he criticizes Alvin Bragg for Alvin Bragg's timing of wanting to take, you know, a briefing schedule in order to fully brief this.

and have that briefing schedule getting up very, very close to the date of the first debate. So he really comes out strong, arguing that this is a deliberate delay tactic on behalf of Alvin Bragg. Now, I have a couple of thoughts about this, but then I'd be interested in yours. One is I am not so sure why under the terms, again, of this gag order, why Mr. Trump thinks that he would not be able to speak freely at a debate

about issues that he is going to be asked at a debate that are issues that are of concern to the American people. There's no reason that you need to attack

Court staff, families of court staff, jurors, witnesses at a debate where you are, you know, typically the frame of debate is there is a moderator asking questions and you're responding to them. So I think that, you know, the fact that he's kind of saying, I want to be able to go on the attack is a little bit telling about how he'd like to use this debate. But the other thing is what's different here than I think other cases is that it

It's not just the kind of comments that the court was concerned about when he issued the gag order. Judge Marchand are the kind of things that can lead to real danger for witnesses, jurors, court staff, prosecutors, families. And that didn't end on the day that the jury returned its verdict. In fact, you're seeing not just from Mr. Trump, but from so many other people who are basing their comments on Mr. Trump's comments.

you know, things like retribution, right, and real attacks. And he would say, and has said in his motion, I can't control what third parties do. But remember, part of the litigation about this, not only in Manhattan, but in Washington, D.C., in the January 6th case, has been that he knows that his statements have an impact on third parties.

third parties act on those statements. There have been third parties who've actually been prosecuted for threats against Judge Chuck and for example, in D.C. And so it's not enough to say I can't control third parties when Trump himself has said I have an impact on listeners like no other person. I mean, he's said in effect

That's not a direct quote, but he said that before. So it's just a different kind of a case than others where the threat is actually over or largely mitigated at the end of the trial. All of that said, last point is

I do think it's quite possible and even likely that Judge Mershon will give him some leeway, lift the part of the gag order that applies to Michael Cohen and Stormy Daniels, because they are out there talking about this verdict and talking about Mr. Trump in ways that the judge had already signaled

that witnesses should not be able to use this gag order as sort of a shield so that they can say whatever they want and be, you know, immune from Mr. Trump responding. So I do think that's possible. But I don't know whether you agree with that, Andrew. So I agree that, of course, as we do, I agree with everything you're saying. So there's like so much here. Obviously, big picture, this just tells you everywhere we've come as a country that a presidential debate, which should be on issues like

the right to choose, immigration, the economy, whatever the issues of the day are, the gag order has nothing to do with that. It has nothing to do with even attacking with respect to this case. He can say anything he wants about Joe Biden. He can say anything he wants about the judge. He can say anything he wants about D.A. Bragg. I mean, it's so expansive. And then just to be clear, if there were

no gag order at all, you still cannot incite violence against anybody, period. That's right. And in other words, the January 6th type of activity, where if you were to actually just say, I want you to attack the Capitol, or if you said essentially words to the effect that you know would lead to an attack of a juror or witness, you can't engage in, period, regardless of a gag order, because guess what? There's a criminal law. So

I do understand with maybe a however, because there's been a conviction, he does need to talk about it. I mean, in other words, it is a legitimate issue that for Joe Biden to raise and it is something he has to come up with some argument. Now, of course, he's come up with an argument, which is facts don't matter. And I was railroaded. I don't particularly buy the sort of witnesses are liars because the key witnesses he actually hasn't attacked, which is.

David Pecker, Hope Hicks, Jeff McConaughey, all those people were not attacked at the trial. They were the most damning evidence. And so, you know, he likes to pick on Stormy Daniels and Michael Cohen, but they weren't actually the critical witnesses. I do agree with you there. And the DA even signaled this, that I think the gag order will be modified to some extent. I have to say, I'm pretty sympathetic to the Stormy Daniels

Michael Cohen talking after the verdict, more than during the trial or before the trial. You know, it is not fun being a witness. Now, by the way, they're entitled to be put through hell. I mean, that being cross-examined is part of the American process. So I can understand why they feel vindicated in the sense that what they said was true. And so I understand that. But the idea is

is that there should be some proportional response. And I think that's the real issue here, is that nothing that Michael Cohen and Stormy Daniels are saying is leading to violence against Donald Trump or his acolytes. And that's the problem, is it's not really sword shield because...

It is responding, but you know that Donald Trump is doing it in a way to incite fear and violence. That is his whole ethos. It's why he attacks the press. It's why he wants to attack jurors and judges. And the whole idea is to back people off and to make them afraid. I mean, he has now gone after Lisa Monaco. The deputy attorney general. Yeah. So it's so transparent. This is the actions of an autocrat slash thug.

The key bottom line for me, there's no question that with respect to witnesses, leave aside the caveat we've just mentioned. Yes. And particularly jurors. Jurors. There is just as much a need now as there was during the trial, especially if you're thinking about persuasion.

perspective cases. Like, could you imagine saying to jurors, hey, we've got this thing where we're going to protect you during the trial, but after the trial, you're on your own. Exactly. It's never going to work. So you obviously can't think that way. So I think it'll remain to be seen. I think Judge Gershon will issue a very quick decision on this. And so we should know in short order what happens. Judge Eileen Cannon, I think the big issue here is

is I don't think that she is going to issue a gag order. And the issue for me is whether Jack Smith has this as a vehicle to appeal. And I think that the impetus for him is going to be the concern for danger to law enforcement, not a sort of vehicle to get rid of her. Like it's going to be solely about

why these people are in the government to begin with, which is safety. And they will feel an enormous amount of pressure to bring that on appeal. And I think it coincides with the last two times Jack Smith was in the 11th Circuit, the Court of Appeals that oversees Eileen Cannon, which was also about safety.

there was big national security safety. Right. To me, there's a through line in terms of the district judge not understanding slash being cavalier with respect to safety issues. And let me just pull a little piece of that apart because again, as you indicated at the outset, the posture is different in the Mar-a-Lago case. The Jack Smith has brought this as a motion to modify Mr. Trump's conditions of pretrial release.

And so the law that applies there, and this gets to your safety point, is that a judge can issue conditions of release that are necessary and that are, you know, the sort of least restrictive means of ensuring the safety of any other person or the community. So

Safety is a key piece of what a judge is required by law to look at when addressing a motion for modification of conditions for release. And so to your point here, the safety of law enforcement, and remember what we're talking about in terms of the statement that really triggered this motion was Mr. Trump's misleading statements about a policy on limiting the use of force by federal agents when executing a search warrant, one that says, for

force may only be used when necessary because of a lethal danger to law enforcement or others. And he flipped that on his head to say that the

the attorney general had authorized the FBI to use lead the force against him. So that statement and many others he made and then others who listened to him made, including Steve Bannon, saying that this was an attempted assassination, the execution of a search warrant in Mar-a-Lago when Mr. Trump was not even there, nor was his family. And it was planned specifically that way. This is this

safety issue that you're talking about. So one thing that a government can appeal, you know, we've talked many times about the limitations on government appeals during a criminal case. A government can appeal, as can a defendant, rulings on pretrial conditions of release. So bail, bail conditions. Absolutely. So, by the way, what I'm hearing from you, Mary, is trigger

pulled. And misleading is about as polite a term as I could fathom for what he did. There's one last thing before we break that I want to say is that, and I predicted this by Judge Cannon not hearing this promptly, sure enough, one of the things that Mr. Trump argues in his opposition is nearly three weeks have passed since the government filed this motion. And essentially,

nobody's been threatened or attacked. They haven't put any evidence of that. So in other words, we have to wait until, you know, there's like a prosecutable threat or an attempt on to shoot an FBI agent, apparently, before it would be appropriate to put this condition of release on, at least according to Mr. Trump. And I knew this would happen. This is akin to...

I can't hold a trial because I have so much work pre-trial that I haven't gotten to. Right. That's right. Just get to it. So because I haven't gotten and done my job, it's really important that I have more time. Whether it could you imagine like you and I teach, it's like a student say, you know, I have a lot of papers due because I have so many papers due. I need a lot more time because I

I haven't gotten to them. So I'd like to do them next year. I mean, occasionally I have that request, but that's okay. Okay. So we're going to then turn to one of the many, many

This one is a motion to suppress. And I have to say, as somebody who teaches criminal procedure, this is like not a spoiler alert because this is going to be deep dive weeds into the law of Franks v. Delaware, which is a Supreme Court case. And the crime fraud exception. So here we go. Love it. OK. After the break.

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So, Mary, welcome back. We're going to talk about a motion that Donald Trump is making saying that he'd like to suppress the evidence that was found at Mar-a-Lago pursuant to a search warrant. Now, I do teach criminal procedure, but don't worry, I'm not going to give you the whole story.

Kitten caboodle. But normally, the way the law works is when the government goes to court and gets a search warrant, which means that they have established probable cause that there's evidence of a crime and that there's probable cause that it will be at the location that they seek to search. And a judge, an independent judge, looks at that and signs off on it. That's the high watermark. That's the gold standard under the Fourth Amendment.

of being able to search something pursuant to a court-ordered warrant. In other words, this is not a raid. This is not something that happens without court supervision. And the court signs off on, this is what you can do, this is when you can do it, this is what you can search for, and this is what you can take when you're there. It's very, very hard to challenge that, including there's law that says that

you're entitled as the government to rely in good faith on what the judge did, meaning that if a judge is signed off on it, even if the judge later, some other judge says, you know what, I don't think the judge, the initial judge was right. I think that there wasn't probable cause. I think they sort of messed up. They don't hold that against the state because they say, well, you are entitled to rely on what that magistrate judge did.

and you were acting in good faith. When in good faith, right. Exactly. And so given that law, which is, you know, I used to take it this way, which was when I was at the FBI or when I was a prosecutor, I'd be like, get a warrant, get a warrant, get a warrant, you know, because sometimes you don't need a warrant for things. And I'd be like, get a warrant because you know what? It puts you in such good position because you have a judge signing off on it. It's the high watermark. It makes it very hard to challenge later. So having said all that,

How is the defense trying to get around isn't really the right word, but what exceptions are they trying to rely on? What's their argument? Yeah. Yeah. I mean, you're so right because most of the time, and you know, both of us in our careers, like I defended against suppression motions so many times, including at trial and on appeal. And usually they're challenged something

that was searched without a warrant. I mean, that's the much more common challenge. You know, something that a police officer stops someone on the street, talks to them, does a pat down, a search, whatever, and they're challenging that. So this is, like you say, totally different. You've gone before a neutral magistrate, you've shown your probable cause, and you've gotten a warrant. But there is an exception to that based on a case called Branks v. Delaware,

which is when there are intentionally false or recklessly misleading statements in the application for that warrant. And I should explain the way a warrant issues, it's not the prosecutor who goes and seeks it from the judge. It's a law enforcement agent who does generally an affidavit, a sworn statement, explaining what the probable cause is to believe that evidence related to a crime will be found in the place sought to be searched. That law enforcement agent goes to the judge. Now,

Now, oftentimes a law enforcement agent will have shown that to a prosecutor first, unless it's like the middle of the night or something, but even still will usually have called the prosecutor, but it's not the prosecutor. Usually it's the law enforcement agent, FBI agent here. The judge will then either sign it, reject it, ask questions, et cetera. So the franks is about when a defendant says there were intentionally false or recklessly misleading statements in that affidavit that the law enforcement agent took to the judge

And without those misleading or false statements, there is not sufficient probable cause to support the warrant. And therefore, everything that was seized as a result of that warrant should be suppressed. That's the argument. And a couple of things about that, or one thing that's important is very often the agent is relying on sources and says, you know, I heard from this source and I heard from that source.

Frank Sweet Delaware requires the falsity or the reckless in nature to be on the part of the affiant. In other words, the agent who is signing this. If the source has lied to the agent, but the agent doesn't know it, that doesn't count. Right. And it's not being reckless. It's not like put his head in the sand, like, don't tell me, don't, you know. Yeah. So it's a very high standard. And then something you said, which I just want to tease out, is even...

when the government can show that the agent was intentionally false or reckless. What the law is, is you carve that piece out. You just remove that false statement or reckless statement from the warrant and you look at what's left. And if there's still probable cause, there's no materiality. It's a harmless error. So a lot of times the Franks v. Delaware is such a narrow exception.

Because one, it's very, very hard to show the intentionality or recklessness on the part of the affiant, the FBI agent here. And two, it's hard to show its material. So it's a really tough standard. And so here, there's sort of four things that Donald Trump claims fit within that category. And I don't know about Mary, we're going to quickly go over them, but I want to tell you the following. To say them

is to refute them. Exactly. In fact, in the motions, there's only a couple sentences on each because they really are just so baseless. I mean, given everything we've said about this exception, these aren't even about false or misleading. They're just about irrelevant to probable cause. So I think Donald Trump's team was right to focus on things that were omitted because as they point out, there's nothing that was said to the magistrate that they claim is false in any way. So they said that there's

that should have been said that would have made it more complete and was material to the magistrate. Okay, we've teased this enough. Should we tell listeners what the fourth thing is? Do you want to pick one? Sure. First is that there were some people in the FBI that thought that rather than doing a search warrant and an execution of a search warrant, they should ask Mr. Trump for consent to search Mar-a-Lago. Denied. Denied.

Yeah, maybe some people had that view. That has nothing to do with whether there was probable cause to search, right?

Thing two, should have said in the warrant that presidents don't need a security clearance when they're presidents and that Mr. Trump himself had gotten briefings at Mar-a-Lago during his presidency and even after he was president-elect and, you know, when he was the candidate for presidency. So what? So what? Denied. Yeah, what does that have to do with probable cause that classified documents, national defense information will be found at Mar-a-Lago

Post-presidency, right. Not to mention evidence of obstruction. Third, that the affidavit should have said that the FBI had actually begun to sort of

investigate the 15 boxes of documents that Mr. Trump had returned to the archivist in early 2022 that were found to have a lot of classified information in them, that the FBI began searching them before the archives actually made a criminal referral. So what? What does that have to do with whether there was probable cause that

That at which, of course, the fact that there were so much classified information in those documents, the fact that then after a subpoena, there was more classified information found and turned over to the government. But there was indications that that wasn't everything, as we know from the photos we've talked about before of boxes being moved from the basement up to Mr. Trump's office being moved back, et cetera, et cetera. We'll come back to that all later.

in due course as we get closer to a trial, maybe, I don't know. What does that have to do with probable cause? Nothing. And then my favorite. Yes. Is the one where it'll be, this is the one where Judge Canning

could get in trouble because she has tried to duck the PRA, the Presidential Records Act issue. Although he did deny it without prejudice. Right. She denied it for the purposes of pretrial and said essentially she'll revisit it at a dangerous time, which is during the trial. Right. So let's turn to the one I love the most, which is the Presidential Records Act. And this basically...

was kind of nonsensical because it basically said, I know you cited to the Presidential Records Act, but you should have actually cited to the definition of the Presidential Records Act as if like the magistrate. Right. Yes. The definition of what a personal record is within the Presidential Records Act as if A, the magistrate can't read it. Right. If like there's a site to it that somehow it's leaving it out because

because they can't look at the law themselves unless it's put in front of their nose. And two, of course, we don't have to go back over this. The Presidential Records Act is just completely irrelevant. And this is the one where the judge has sort of denied without prejudice Trump revisiting this later in the case. I don't think Judge Cannon will be foolish enough

to bite on this now because it will jeopardize what she sort of figured out, which was if you're going to use this to sort of, to be blunt, screw over Jack Smith, it's like you need to do it at trial after Jeopardy attaches, not now. But this is the one where it's just sort of a crazy-ass claim. Has that for like...

I think my potty mouth is showing. Well, maybe you're triggered. So just to make sure listeners are with us, because, you know, it's been a while since we talked about that motion to dismiss based on the Presidential Records Act. What Trump's attorneys are arguing is that another thing that the agent should have put in the affidavit was not just the definition of presidential records, notwithstanding, remember, that when Mr. Trump sent 15 boxes of documents back to the U.S.

Back to the National Archives, he did so on the ground that those were presidential records. So that was the point of, you know, that sort of being in the affidavit. But he left out, omitted what you just said, the definition of personal records, which of course the magistrate could look up if he was interested.

I think it's so far afield from what the judge even said she might revisit at trial in terms of like a potentially a fact question about whether Mr. Trump had actually designated everything as personal. And of course, we think it's a legal issue and he really couldn't have done that with classified information.

But it still has nothing to do with whether the affidavit showed probable cause. So I'm not too worried, frankly, about Judge Cannon's ruling on any of these Franks issues. And I guess we'll hear more about that after next Tuesday's argument.

The issue that I think could be a bigger issue for Judge Cannon is what Mr. Trump has raised with respect to the crime fraud exception. And that is something that we won't have a lot of clarity on after the hearing because parts of this hearing are going to be under seal because of the potential for attorney-client privileged information being revealed during the hearing. So we may not get a transcript of that right afterwards.

But what essentially is going on here is Mr. Trump is saying that the evidence of the testimony of two attorneys who testified in the grand jury in Washington, D.C., about Mar-a-Lago, who a judge there ordered them to testify after finding that the exception to attorney-client privilege for crime fraud, which we'll talk about, she found that that exception had been shown by

by what's called prima facie evidence, which is sort of like a reasonable basis for the government to believe that the crime fraud exception applies. And she agreed with that. She ordered them to testify in the grand jury. They did testify in the grand jury. And Mr. Trump is now saying that was wrong. There was no crime fraud exception applies there. And so their testimony in the documents that they provided to the grand jury should be suppressed at trial.

So what is this crime fraud exception, Andrew? That is an issue, by the way, that I've litigated in connection with the special counsel Mueller investigation in front of the same judge. Yes. We're talking about the former chief judge of the D.C. court. The chief judge in D.C. handles all grand jury matters. And so it was the same judge we had who was deciding this as well. It's Beryl Howell, a very eminent judge in D.C., and

And the other thing about this is, before we get to the substance, is that when you litigate these kinds of attorney-client issues, the client is there. In other words, Donald Trump has an opportunity to be heard and his counsel makes any and all arguments about the attorney-client privilege. So this is not one where it's ex parte. This is not like a search warrant. This is where both sides are heard. And so...

When Judge Cannon hears this, it's really revisiting something that in many ways, this is not the technical term, but it's sort of law of the case, meaning it's been decided after fully litigating this. And crime fraud exception, to get to the substance, in the most simple terms, is that if you as a client are using your attorney wittingly or unwittingly, in other words, the attorney doesn't have to know this and be a part of it,

If you're using your attorney to commit a crime, that is not protected by the attorney-client privilege. It is not advice you are getting from your attorney. Let me give you an example that came up, which is public now in the Paul Manafort case. We said there was attorney-client privilege that no longer applied because of the crime fraud exception.

And we actually made arguments about why there wasn't even attorney-client privilege. But the argument was, is that a letter was submitted by the attorney to the Department of Justice with a number of false representations in it as to what factually happened. And it was clear that the attorney was making these representations based on what the client had told her.

And the judge agreed with us and we could show that these representations were false. It was like, I don't have these documents. I don't have this. I don't have that, et cetera. There's a series of things. And we made it absolutely clear to the judge that we had no evidence and did not think that the lawyer was involved, that the lawyer was duped. And the judge, we wanted to make sure that the lawyer didn't feel like somehow it was accusatory. And the judge agreed and said, you can ask about

certain things and not other things, but just like exactly what was said on these topics that were then passed on to the Department of Justice. And so that in essence is a very similar thing

set of issues that this judge was dealing with in connection with the Mar-a-Lago case dealing with the crime fraud exception. Yeah. And let's just put it in that context, right? And so what we're talking about here is Evan Corcoran, who after Mr. Trump was subpoenaed, now this is after he'd already returned 15 boxes of documents to the archivist. They'd found there was classified in them. They then sent a subpoena. The government got a subpoena to

search Mr. Trump's search Mar-a-Lago and turn over any additional documents that might be classified. Evan Corcoran, one of Trump's attorneys, went down there to engage in doing a search through boxes to see if there were additional classified documents. He talked to Mr. Trump. Mr. Trump said things like, I don't want anybody looking. I don't want anybody looking through my boxes. I don't want you looking through my boxes. He said things like,

when told, well, you've been subpoenaed and we have to do it, he said, well, what happens if we just don't respond at all or don't play ball? Wouldn't it be better if we just told them we don't have anything here?

Isn't it better if there are no documents, right? So these are things that Evan Corcoran then made note of through audio notes after this conversation. And these are some of the things that were held by Judge Howell, which, by the way, that was appealed up to the D.C. Circuit, which refused to stay the grand jury's subpoena for Evan Corcoran to testify. And so he did testify. So it wasn't just

Judge Howell, the D.C. Circuit said, we don't see any likelihood of success in this appeal. And so we're not going to stay. The grand jury testimony need testified. So I have a legal question for you, Mary, and putting your appellate hat on something I don't understand, but I'm sure I'm missing something, which is given that this as I noted that this was fully litigated at the time, what is the argument that would give

give Judge Cannon the ability to say, I'm not bound. I know she's not in the same circuit, but why isn't it law of the case in the sense of this has been litigated and should be preclusive of what she is doing? Why does she get to revisit this case?

given that the court is already in a fully litigated way? Why isn't it, just to give the legal term, why isn't it sort of collateral estoppel? Yeah. Well, that just doesn't apply in this context, right? There's a standard for the, what happened when the crime fraud exception was ruled on in D.C. was that the government had subpoenaed Evan Corcoran and another Trump attorney to come to the grand jury. They had asserted attorney-client privilege. We can't testify about that. It's privilege.

The government then filed a motion to compel and argued crime fraud. And that was the context that the judge ruled on the motion to compel saying, yes, you must testify about these issues. There are a few things she said they didn't have to testify or produce in terms of documents. And so that is all that was ruled on. That is just sort of in a separate box from what's going to be admissible evidence at trial.

And there is even Jack Smith in his opposition to the motion, you know, does not suggest that this is precluded as law of the case, says now we look at the standards for, you know, suppression and evidentiary admission. And it's still based on crime fraud that I should get to get this admitted into evidence. And that's why he goes through assessing the factors, right? You know, was the defendant engaged that you already indicated in a crime or fraud when he sought the vice counsel and where the communications with

the attorney closely tied to the crime or fraud. So that's what's in front of Judge Cannon that she will hear next Tuesday after really a marathon of three days of hearings. And so when we come back next Tuesday, we won't know the results of this, of course, yet, but we will certainly be able to talk about the hearing she's having on Friday and on Monday. Can I give you one

brief comment about that gives you some insight into Judge Cannon and my, by the way, note to self, this is, I'm giving you a trigger warning. Oh no. And I mean that like with all pun intended. Here's a little vignette. It's really small, but it's just such a little vignette of Judge Cannon. Expert notices had to go out from both sides and the government has given their expert notice, I think five months ago. And

Donald Trump didn't do it five months ago, and he asked for more time, and the judge granted it. And then he asked for more time, and the judge granted it.

And then just a few days ago, on the day expert notice was due, the day it was due, after five months, Donald Trump makes a motion, I need more time. And the judge grants it and literally makes it on the day it's due. And the government opposed it for the third time and said, one, you should deny it. And can you, too, can you at least...

require them to give the notice of whatever experts they do have, because the claim was that an expert sort of reneged over the weekend and said they weren't available, but it wasn't clear whether there were other experts, and said, can you at least do that? Nope. The judge just says, granted.

And could you imagine if Jack Smith had said, oh, on the day due, can I have more time? On the day due. And then also the conferral. Yeah. So it's just a little vignette. And I, by the way, I understand that the defense in general is given more leeway. Yes. It just happens a lot. And that you also try not to hold the defendant responsible for what could be the

on the part of defense counsel, but that's not what's going on here. And so I understand even within that general framework where I'm used to that kind of leeway, it's just a perfect little vignette of not even-handed justice. It also sort of signals, you know, there's just no trial on the horizon. Because if there was, you'd need this expert witness notice, right? Yes, yes. No trial on the horizon, and it's...

it also signals to Donald Trump, you will get whatever you want.

You can literally wait to the day it's due and you can be as outrageous as you want and there are no repercussions. I mean, it is over and over again. And so hence the trigger warning. So let's take a break and then we're going to come back and talk about things on the horizon. I definitely want to go over like the Fisher case just because I think it's about to be decided. I want to make sure it doesn't take people by surprise. It will be decided sometime in the next couple of weeks. All right.

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at msnbc.com slash app. Mary, on everyone's radar screen, it's of course waiting for the Supreme Court to decide the presidential immunity issue, whether a former president is immune from criminal prosecution. But there's also this Fisher case. And so basically on Thursdays, the Supreme Court typically issues opinions about

Last week, the court said, oh, we're going to also issue opinions on Friday. But guess what? Neither Thursday or Friday did issue decisions about immunity or the so-called Fisher case. And so we're going to wait for this week to see whether either one drops on Thursday and Friday. The Fisher case, just to remind people, because we want to make sure it doesn't take people by surprise, has to do with the obstruction of justice charges that have been used in a whole series, as you said,

Approximately. Approximately 346 cases. Yes, exactly. Just to pick a number out of a hat.

And so the reason it could be relevant to Donald Trump is he is charged with that statute as well. Andrew, can I just say, because yes, it's right for us to kind of globally call it obstruction of justice, but that statute is about obstruction of an official proceeding. And of course, the official proceeding in the case of the January 6th was the meeting of Congress to certify the electoral college ballots. Absolutely. And-

When I say obstruction of justice, again, that's such a great point because there's a whole range of statutes that are called obstruction of justice statutes, and they each sort of do different things. And so this is this official proceeding. And the court, for instance, could end up saying it has to do with documents and you have to be obstructing something with respect to documents. It can't be about witnesses. Or tangible records. Yeah, exactly. So we're waiting to see that. With respect to Donald Trump, it could affect some but not

all of his charges, and it may not even affect some of the charges. Well, hang on. I want to also interject here because we've been talking about Mar-a-Lago and there are obstruction of justice charges in Mar-a-Lago, which are very different, right? Those are about obstructing the investigation, moving boxes, hiding boxes, trying to get the surveillance, hiding the surveillance tape. Okay. This relates to the Jack Smith's January 6th case against Donald Trump. Yes. Four charges

two of which relate to this charge. One is obstruction of an official proceeding. The other is conspiracy to obstruct an official proceeding. But as you just said, there are also two other charges completely unaffected, which is criminal conspiracy and also conspiracy to violate civil rights. Yeah. And so it remains to be seen exactly what they say if it has to relate to documents. It still could be with respect to the D.C. case that the state says,

The Jack Smith says, you know, we can even meet that standard because the false elector paperwork was false. But I just want to make sure and both of us are sort of want to make sure everyone has that on their radar screen because I don't want people to just be like, wait a second, why didn't Mary and Andrew, there's this huge case. Why did they flag it? So we just want to make sure everyone's sort of aware that there are two cases that we are really keeping our eyes on that will be coming up imminently. That's right.

And to preview the piece that we are working on with Ryan Goodman that will appear in Just Security, even if the court restricts sort of the interpretation of obstruction of an official proceeding to relate it to tampering or altering documents or tangible evidence, the vast majority of the January 6th rioters who were charged with that offense

were also charged with other felonies. So it's not as though... Spoiler alert. Yes, it's not as though they're all going to be like, oh, yay, free get out of jail card. So anyway, more, much more to come on that. I know. So this is one where, Mary, this is like we are sort of on the cusp of these two big cases. Indeed. Okay. See you back on the East Coast. Safe travels. Thanks. Thanks.

Thanks so much for listening. We'll be back with a new episode next Tuesday, maybe even sooner. This show is produced by Vicki Virgolina. Our associate producer is Jamaris Perez. Our audio engineers are Katherine Anderson and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president for content strategy at MSNBC.

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