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Hi, and welcome to Prosecuting Donald Trump. So we're taping late in the day on Monday, July 15th, because we wanted to get this to you as early as possible. So it's going to come out Tuesday morning, but we didn't want to wait to record until tomorrow and then have it come out at the end of the day because there's a lot to talk about. And so let's get started. Hi, Mary. How are you? Hi, Andrew. This is going to be maybe a little bit different because there's
two things that we're going to be discussing. We're going to talk about the shootings and the attempted assassination over the weekend, but then we're going to turn to something that happened today, which is why we're doing this today to get this out to all of you to talk about the Judge Cannon decision, what she did and some issues that
legally with what she did. And then, Mary, you and I have not had a chance to talk about this, but like what we would do next. What are the options for Jack Smith? I'm going to be really interested to hear what you think. But why don't I turn it to you, but just let me remind people when we talk now about the shootings over the weekend.
I think people need to remember that, Mary, you were in both not just in the U.S. Attorney's Office in D.C., which, you know, is the home base for all sorts of major things like inaugurations and big events that have potential violence. But you were head of the National Security Division. And before that, you were a senior official there.
And so foreign and domestic terrorism are so much a part of your makeup in terms of both lawyers and the FBI and other parts of the intelligence community dealing with those situations. So I just want to make sure people were aware that we have you in a
different role to draw on. And I have just a little bit of that from the FBI. I was going to say, but you as well. Yes, I mean, not only were you at the U.S. Attorney's Office in New York, but also at the FBI and the General Counsel's Office. So anyway, we don't have to debate that. This is like Alphonse Gaston. So with that,
Mary, I thought it would make sense. And I know when we were talking over the weekend, when this happened, what would you, if you were still in the National Security Division, what would you be looking for? What would you be doing? What kind of preventative things would you be concerned about when something like this happens? Yeah.
Well, I appreciate that we're going to lead off with this topic today because obviously this is enormously significant. There was an attempted assassination of the major political candidate running for the presidential. I guess he's still technically running for the nomination, but is the de facto nominee. And we have an election tomorrow.
this year. I think actually, as we've been talking, I think he might technically be. That might be because we are Monday afternoon at 4 p.m. Eastern time recording this. And, you know, you and I, Andrew, and many listeners will remember when the sitting president, Ronald Reagan, was shot in 1981, the last assassination attempt. Again, Donald Trump is not a sitting president, but he is a former president. He's a major...
candidate for president. And so, you know, that's been more than 40 years since we've had anyone come this close to actually killing someone in the presidency or a former president. And it should make everyone, and it clearly has made at least most people across party
stop, take note, and do, I think, some soul searching about where are we in this country that the rhetoric and the language that's used in a lot of our discourse may have, we don't know, contributed to this event. And also, even if that had nothing to do with this particular shooting, because we don't know, and I want to foot stomp that, we do not yet know the shooter's motive,
Certainly, it's time to think about where we are and are there things that we want to change. And even the former president, and you and I have certainly been critical about him many times, and there's still many, many, many reasons to be critical about him. But he has actually, at least over the weekend, I think it might have changed a little bit today, had a very
has called for unity and I understand has completely changed his speech for the RNC and is actually his campaign directed other speakers to not try to cast blame across the aisle and say things that there's no proof of at this point. So just to start there, the other thing I think that's so important, you appropriately said we're going to talk about the shootings and I started with assassination attempt, but shootings is accurate because
No one should ever forget that a person was killed. A person did lose his life and two other people were critically wounded. So this was a fatal attack really on our democracy. It was a murder and attempted murder. That's right.
So I want to talk about and get your thoughts to the kinds of investigations that are happening and why. But one thing I want to say right off the top, particularly because you indicated my former role in national security, is that this is appropriately being investigated as a potential domestic terrorism attack. And people say, well, why is that and why do you say potential? So domestic
Domestic terrorism under the U.S. code is not its own crime. It's a crime of violence that violates any state law that's done with the intent to intimidate or coerce the civilian population or to influence the policy of government through intimidation or coercion or in retaliation for government conduct.
And what you just said, Mary, is that you're reading from the definition in the United States Code of domestic terrorism. Right. I'm paraphrasing, not reading from the statute because I know it so well. And the definition of domestic terrorism in the U.S. Code is very similar, almost identical, almost word for word as the definition of international terrorism. It's just that international terrorism can involve the same kinds of conduct that occur outside the United States
but have some tie to the United States or they occur inside the United States, but they're motivated by, say, a foreign terrorist organization like Al Qaeda or ISIS, whereas domestic is sort of purely domestic, not motivated by a foreign terrorist organization. So for one, it's because it would at least we don't know until we know the motive. But there is at least some reason to believe, because this was a political rally, right, that
the intent would have been to affect government policy, to intimidate or coerce the people who are there at that rally, etc. The other reason that it is appropriately considered, at least in the initial stages, as a domestic terrorism investigation is because one of the potential crimes here, if the shooter had survived, would be a crime that is considered to be a terrorism crime. And that is
an attempted assassination of a major presidential candidate. You know, most of our crimes that are designated by law of crimes of terrorism are about things that have to do with foreign terrorist organizations like we talked about. But in the domestic sphere, it can include attacks on U.S. government officials, members of Congress, the sitting president, vice president, justices of the Supreme Court, et cetera. And there is actually a statute that
that also applies to attempted assassinations of major presidential candidates. And so that, when done with this intent, is actually a crime of terrorism under U.S. law. And for our nerds who are, which I'm including in
ourselves in that. We will put in the show notes the site for the statutory definition, as well as the citation for the domestic terrorism law that, Mary, you were referring to. So the crime I was referring to is 18 United States Code, Section 351. But for all the nerds out there, we'll put all these in the show notes.
So I had a reaction to something you said, and it does relate to what I know if I were still at the FBI, what our teams would be focusing on. Because there would be, as you said, Mary, very much this focus of what happened.
A whole exegesis of who is this person, learning everything you can about the shooter and his motivation and looking at social media, emails, texts, talking to witnesses, learning as much as you can to understand him.
how this happened and why this happened. But I think that's for two purposes, actually, because I put this investigation in three buckets, right? I just wanted to get out there that it's properly called, you know, terrorism investigation or at least potentially. Yeah, yeah. So that first that you were just getting at, Andrew, to me that serves two purposes. One is
Law enforcement needs to know now, is there any current ongoing threat, right? Is there still possibly someone that the shooter was working with domestically or foreign? Are there other explosive devices in other places that could still pose harm? Because we know they've recovered some sort of explosive device from the car and some from the house.
And so part of this is looking at, you know, the contents of the phone, laptop, his Internet searches, social media posts, his acquaintances. Where was the gun purchased? If it was purchased by his father in 2013, which is being reported, did his father know he had taken it? Where was the ammunition purchased? All those kind of things.
first are like, do we have an ongoing threat? But secondly, all those same things that you were talking about and I was elaborating on are to figure out, did law enforcement miss clues? Like, were there red flags that they should have had this guy on their radar? And is there, are there things? Lessons learned. Lessons learned. Yep.
Absolutely. And this, by the way, reminds me so much. I think both of us were in national security roles during the Boston bombing. Right. And, you know, I was at the FBI and that was very much the sort of lessons learned and was somebody else involved. And, you know, so those are two big pieces. So I think that's sort of the looking backwards. The looking forwards piece.
And obviously, if other people were involved, that's a looking forward. And actually, Lessons Learned also has a looking forward piece. But another part of the looking forward is the concern of heightened threats and copycats going forward. And so an enormous amount of activity right now will be on other targets that either within the same territory
genre or retaliatory targets? And how do you harden the, what was the phrase? It's like harden the shell so that, and harden the target so that it's harder for any of those things to occur. And that's where I just want to take us back to a conversation we would have had a month ago or three months ago or six months ago, which when we were talking about
Actually, let's just go back to the motion that was before Judge Cannon with respect to the concern that was being raised by Jack Smith about threats to the FBI. And both of us, if you remember, were very upset that it wasn't heard sooner because both of us having been in law enforcement, but you don't have to, you could just be a sentient human being who cares.
knew that we didn't want to be in the situation where violence has happened and there was more that could have been done. And it
It is worth going back to the fact that violence has happened and threats of violence have happened. And obviously, January 6th isn't a good example. Paul Pelosi is a good example. But just to make this apolitical, Stephen Scalise is a good example. Threats to Brett Kavanaugh. I was going to say justices in the Supreme Court, regardless of stripe, Gretchen Whitmer, and then judges, witnesses, politicians.
poll workers, Ruby Freeman and Shea Moss. I'm not saying that it's wrong to have the reaction now that I hope this causes people to rethink that they should all be saying violence is never the answer. But it is ironic, to say the least, that this is what it takes. I mean, we were saying this for so long, and there's so many people who have been threatened and actually hurt. Yes.
And if you belittle attacks on people and you make it the norm, I'm certainly not saying you're asking for it, not in any way, shape or form. It's that you this kind of thing was bound to happen. And it's I hope this is a wake up call, but I'm concerned it's not.
In terms of law enforcement, though, in terms of what we would be doing, looking at that future issue of like, is there going to be some immediate retaliation? Are there other targets? Are judges, are prosecutors, et cetera, going to have increased threats and increased security concerns? It's certainly something that is going to be keeping the Bureau, the Secret Service, local law enforcement very busy. Yes, no question about it.
We haven't even talked about the fact that a whole separate investigation into the Secret Service's behavior here is another thing that will be happening. And I can tell you, I am sure if they had their druthers, there would be no outdoor rallies and events like what we saw in Pennsylvania on the weekend. It's just so much more difficult to protect than an indoor venue.
And I'm sure that history will reveal that there was probably a lot of back and forth between Secret Service and the campaign over these type of events. But nevertheless, there clearly was a rooftop within striking distance that was not adequately
protected. And so that will be the course of a lot of criticism. Last thing to say about this, and we could do a whole episode about this. It's not obviously about prosecuting Donald Trump, although he has now today at least posted on Truth Social that all cases against him should be dropped, as well as apparently all former civil cases, including E. Jean Carroll. But putting that aside, I do think it's important to realize, you know, just to your point, what's going to come from this, right?
And one man's act does not control what we as Americans are going to do going forward.
or what foreign adversaries will be encouraging some Americans to do going forward. We control that and how we react, regardless of our politics, will do far more to influence whether we're going to have copycat crimes, whether we're going to have retaliation. And some of that will be in the rhetoric that people use,
Some of it will be social media. Some of it could be how people speak at events like the convention this week and the conventions coming up. But one man doesn't control that. And that dead shooter who did a heinous thing at an event where people were expressing their constitutional rights, right, to go and have a rally in support of the candidate of their choice, that's
that shooting is very much undermines our democratic processes, our constitutional rights, and we can decide to reject that. Yes, in the same way that we can decide that it has nothing to do with, and in fact should make us value more the rule of law. And so it has nothing to do with weaponization. And that's maybe a very good segue to
to Judge Cannon, because one of the things that, just to give a tease before we take our first break, is that in many ways, her ruling is the antithesis of weaponization. And if you look at the substance of what she's saying, and I'll talk about that a little bit more when we break, but the sort of Donald Trump claim that these are all weaponized cases that have been brought in is actually, she is actually in substance rejecting that.
Her whole claim is that Jack Smith was not sufficiently under the thumb of the Biden administration. And because of that, it was unconstitutional. So it's actually quite the opposite of the claim that there's weaponization. And just to bring it back and close out to your point, which is that the
truly heinous acts of one individual does not mean that we are suddenly not a nation of laws. In fact, it should be why we're a nation of laws and should make us value that more. Let's take a break and then go back to Judge Cannon and we'll get into the details of her ruling issued this morning. Sounds good.
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Welcome back. As we were going into the break, we were teeing up Judge Cannon's decision and judgment today. Basically, the case in front of her is right now over. She dismissed the indictment, the superseding indictment, in its entirety. And she did so really based on one ground, which is that the appointment of Special Counsel Jack Smith
violated the Appointments Clause of the US Constitution. She also indicated that it violated the Appropriations Clause, but said she wasn't going to decide a remedy for that because it didn't matter after all, because she was dismissing the entire case based on the Appointments Clause. So we're going to talk during this segment about her ruling, and then we will close out after another break by talking about what are the options now, what happens going forward. But just before I hand it to you, Andrew,
I want to just orient people on what this appointments clause says in the US Constitution, right? Yeah, perfect. Is that the president shall have the power by and with the advice and consent of the Senate to make treaties provided two-thirds of the senators present concur, and here's the kicker, and he shall nominate and by and with the advice and consent of the Senate shall appoint their
various people and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law. Right.
Okay, so that's key. And those various people include ambassadors, justices of the Supreme Court, okay, and all other officers for the United States. But the clause goes on to say, but the Congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments. Okay, so heads of departments would be people like the attorney general. And the key point of Judge Cannon's 93-page opinion is that
There is no statute that gives the attorney general the power to appoint a person like Jack Smith, the special counsel. And she does that, I will say, and I'm curious whether you agree. I think based on the roadmap that Justice Thomas laid out for her in his concurring opinion in the immunity case that we talked about the very first day we talked about the immunity decision, because it was something not briefed, not part of the question in front of the court, and just something he decided to write about.
And she grabbed it. And she cites it repeatedly. Yeah. So, again, big picture things. We've had the special counsel rules for about 25 years. They replaced the independent counsel rules. And the independent counsel was in many ways more separate from the Department of Justice than the special counsel and was found to be constitutional in a case called Morrison. So that's a case that's somewhat controversial. But.
But it is a binding Supreme Court case that said that the independent counsel rules were constitutional. So this, because it seems better, it's people are like, how is this going to be infirm? And in fact, until Judge Cannon, no judge has actually found it to be improper. There have been special counsels appointed by Republican and
and Democratic presidents. There have been Republican and Democratic appointed judges who have found it to be constitutional. I keep on referring to Dabney Friedrich, a judge appointed by Donald Trump during the Mueller investigation, found this to be constitutional. So Judge Cannon is the first judge
judge to find that it was unconstitutional. I totally agree with you that she is following the Justice Thomas blueprint, the gratuitous blueprint. Very, very unusual for him to do that. It's very political. She does not, I think, follow binding Supreme Court precedent.
She rejects all of the other, I think it's eight judges who have found against her. And basically, the clause that you were reading, what you need to look for is, since the special counsel was not appointed by the president, you're trying to see, is there some statutory authority that gave Merrick Garland, the attorney general, the ability to appoint the special counsel? And I have to tell you, that part of her decision is,
I'm going to say this, but it doesn't convey the depth of how wrong it is, but it is. To say it is weak is charitable. There is congressional authority to do this. Let me just give you an example of something she does that I just think is so silly. The Attorney General
can appoint employees, obviously, because the Department of Justice is filled with employees. And those employees can be given all sorts of job responsibilities. Including prosecutors. We were both assistant U.S. attorneys with a lot of authority, not, you know, nominated by the president or confirmed by the Senate. Exactly. I was the head of the fraud section. I was the general counsel of the FBI. Neither of those are Senate-confirmed.
I had tons of authority. I could go ahead and indict people as the head of the fraud section, as a federal prosecutor. I had lots and lots of authority. And one of the things that she says is, oh, yes, it's true that the attorney general is given the ability to hire employees, but the special counsel is not an employee.
Wrong, wrong, wrong. I wonder where he got his paycheck from. I mean, that should tell us something. The reason it's wrong is she latches on to the special counsel under the special counsel rules, should be hired from outside the department,
But then they are brought into the department and they are called a confidential employee under the statute. And it specifically provides for the fact that they're a confidential employee. This, by the way, is at page 24 of her decision. And so this is just one where she says, well, I'm going to look at their status before they were appointed a special counsel, as if that's the time period you want to look at it. The time period is obviously after. Right.
So I really think that she completely blew it legally. I also think that it really is a sign that she's never worked at Maine Justice because she keeps on thinking about, oh, well, he's sort of like a U.S. attorney, but he's not been confirmed by the Senate. But you know what? I was the head of the fraud section. I had over 100 people working for me. That's larger than many, many, many U.S. attorneys' offices. People could indict all the time.
The other thing is she sort of doesn't take account of and makes it sound like the special counsel could just do whatever the hell he wanted and doesn't have to comply with DOJ rules. And I think I've talked about this on the podcast. That is so not true.
You have to comply with every single Department of Justice rule because you are within the Department of Justice. So I've given as examples of that when I was working for Special Counsel Mueller, we wanted to bring tax cases, we had to get tax division authority. That means they had to approve, not us. They had to approve this going forward. Why? That's DOJ policy. We wanted to bring a Foreign Agents Registration Act chartered
charge, which is a type of national security charge. You know who we had to approve that? The National Security Division. I sure do, because I was there. Exactly. So again, we had to go through all of those internal rules. It's not like we had just a notice requirement. We had to get approval. We had to do all of the approvals that anybody in the Department of Justice had. And I keep on saying when I was in the special counsel, I have never been more overseen
Certainly far more than when I was the head of the fraud section.
Any U.S. attorney and the special counsel, when they're getting ready to take an action in a sensitive investigation involving, you know, either a sensitive target or a controversial action, they have to run that up the flagpole in what is aptly called an urgent report so that the deputy attorney general and the attorney general have the chance to say, wait a minute, stop the presses. You're not doing that.
And the key word there is they have to. It's not optional. This isn't like, oh,
It's not like, you know, we'd like it, Mary, if you would, could you just come by if you have time? Yeah. Doesn't work that way. In fact, at some point, she basically says it's completely within the special counsel, their own discretion, whether to discuss things with the attorney general. But she takes that part of the regulations completely like out of context and ignores the reg that we were just talking about that requires mandates urgent reports. So there's a lot wrong with that. But I want to put
want to post something to you, though, because we can spend a lot of time talking about how she gets wrong, her, you know, what type of officer he might be. But ultimately, I think her ruling doesn't rest on that because she says,
I'm going to sort of with reservations say he's an inferior officer, but it doesn't really matter because if he were a principal officer, then clearly this violates the appointments clause because he should have been nominated by the president and confirmed by the Senate. And so even if I consider him an inferior officer, the basis for her ruling is, in her view, there is no explicit statute that Congress passed that says
Attorney General of the United States of America shall have the authority to appoint special counsels to investigate whatever the issue might be when there's an investigative need. That I saw as the heart of her ruling. Yeah. And to me, that's
kind of insane, has that for not using great legal language, which is that there's statutes like 28 USC, I think it's 533. 533, that she says, oh, that's about the FBI and inferior. She writes that one off. Yeah, but I mean, I didn't see that as why that's just about the FBI. So again, just to be clear, the attorney general can appoint, just to personalize it, can appoint someone to be the head of the Enron task force. They
They could appoint someone to be head of the fraud section. And you are within the Department of Justice and you have lots of authority, but you're an inferior officer because you ultimately report to the attorney general. And so I just don't understand. Once you cave on the issue of, okay, this is an inferior officer, I think you lose because the department's made up of inferior officers. That is like, what are you going to say that every single employee can't be hired?
And so she really doesn't wrestle with what would be the limits on that authority. If there is no authority to hire underlings, then are the tens of thousands of employees at the Justice Department all underlings?
Congress had no idea that they could be appointed. And by the way, this is where the history of this is so much against her because you don't have Congress in any way pushing back going, oh, wait, you're doing something wrong and I didn't understand it. For decades and decades through multiple special counsels, right? Not only did they never push back, not only did they withhold funding, they continued to put money into the very, you know, to allow for money to go into the very source of funding for these officials.
various appointments. So Mary, do you want a little, an interesting factoid? Sure. Because this may affect our next discussion about what to do next, because I have an idea. Okay. But here's a factoid that may be of interest to folks, but also could maybe be something to think about in deciding what to do.
When the independent counsel law was sunsetting, and the independent counsel law was very critiqued because of sort of the Ken Starr people going overboard. Six years or something, wasn't it? Exactly. And remember, Brett Kavanaugh worked for Ken Starr, just, you know, FYI. And when it was sunsetting, there was a group of people on the Hill who were sort of tasked with thinking about what to do. And
There were a whole bunch of people who were thinking about what is a way to have something that is more tethered to the Department of Justice, that is less independent. And ultimately, the department put out the regulations under Janet Reno. But in that group that came up with essentially the blueprint for this,
One of the people who worked on the blueprint for what is the special counsel rules is... Drumroll. Current Chief Justice... John Roberts. So he worked on these. It would be so interesting. And to me, it's sort of like it's how Brett Kavanaugh was so bizarre, in my view, in his immunity decision, given his role in...
And you may recall during argument, somewhat out of the blue, he also talked about Morrison v. Olson being, he thought, one of the worst decisions of all time. This is the decision that upheld the Independent Counsel Act, which has since sunsetted. Yes.
So we have the current chief justice who was fashioning something to make this more tethered to the Department of Justice that would make it a stronger case for constitutionality than Morrison, which dealt with the independent counsel rules. So even if Morrison is good law, by the way, aren't you struck by the fact that Judge Cannon just basically ignores that decision? She doesn't. Well, she talks about it, but
when she's trying to decide whether he's inferior or not. And she does apply things, but then she still, you know, says, well, in light of a case that came after that, I'm not so sure that's right. She does a lot of very long winded explanations for things and oftentimes concludes,
but I don't have to decide this. Yes. I will say one other major factor, I think, of the opinion, and you've kind of alluded to it, is that many, many courts have upheld this, and a lot of those courts have done so in reliance on U.S. v. Nixon, an obvious Nixon-era case that was not about a prosecution of the president, but it was a
about seeking evidence from the president for a criminal prosecution of others related to Watergate. And so the issue of the special, the independent counsel there, was he called a special counsel at that point? I think that's before Independent Counsel Act. Yes. Yes. Leon Jaworski. Special prosecutor. Right.
special prosecutor. There are a couple of sentences in that opinion, and that opinion does say that when there is a demonstrable need for evidence that can overcome the executive privilege of the president to withhold that evidence, that was the conclusion there. And that's why when we go back and talk about the immunity case, I feel like the immunity case
sort of seemed to overrule U.S. v. Nixon, but doesn't say that it did. That's for another day. But there's another key part of this case which says, "Congress has vested in the Attorney General the power to conduct the criminal litigation in the United States. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties."
citing a bunch of statutes that Merrick Garland relied on in his appointment of Jack Smith and which other attorneys general pointed by both parties have relied on. Then it goes on to say, acting pursuant to those statutes, the attorney general has delegated the authority to represent the United States in
in these particular matters to a special prosecutor with unique authority and tenure. They don't call that into question. They don't say, we're not sure this is right. They don't say, this might violate the appointments clause. They just state this all as a fact, and then they go on to decide that the special prosecutor could subpoena that information from the sitting president, Richard Nixon, and overcome the president's executive privilege. So what does Judge Kempel
Cannon say about that? She says, that's dicta. Dicta, of course, is when the court says something that is not like load-bearing to the merits of the opinion, is not necessary to the merits of opinion. And she says,
no one had argued about whether the special prosecutor was constitutionally appointed there. The court didn't really have to decide the issue. So their statement, essentially saying that he's got valid authority, is mere dicta. Mind you, you really couldn't have gone on to issue the decision in that case if they'd have thought that the special prosecutor was unconstitutionally appointed. But that
she jettisons in her opinion. Quick anecdote, and then we'll go to the question of what would you do now? When we were litigating this and won in front of every court, when we were, Special Counsel Mueller was bringing his cases and every defendant was challenging this and every judge was affirming it, we
We used to joke with him. We said, well, you're just a subordinate officer. I'm sure you did. No question about it. You're just inferior. Yep. And he's like, that's very funny. But that was the critical language that he is subordinate to, inferior to the head of the department. That's right. That is the attorney general. Okay, let's take a break and then we'll come back with if you're Jack Smith, what would you do?
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Welcome back. I know you're dying to say what you would do. Oh, but I was going to turn it to you first. But what do you want? Do you want to go first? Doesn't matter. I mean, I OK, I'll go first. So I would not make a decision immediately if I were Jack Smith. Right. I would take some time. I would sleep on this. I would reread it again tomorrow and then I would consult with my whole team. I would consult with the at least seek to consult with the deputy attorney general and the attorney general, not to mention the solicitor general, because
If he decides to appeal this, which is very much an option because this is one of the things, again, that prosecutors can appeal, a complete dismissal of your case. If he decides to appeal this, he has a decision to make about whether he wants to try, as he did in the immunity case, to go straight to the Supreme Court and skip the 11th Circuit, ask certiorari before judgment, or whether he wants to just go ahead and appeal as a matter of course to the 11th Circuit.
So that's clearly an option for him. Because there is some risk there that if and when this gets to the Supreme Court, Justice Thomas and a court that we no longer seem to be able to predict very well will not render a favorable decision, there's another option.
Guilty. Guilty. By the way, the 11th Circuit, you could also have, you have this issue of whether they would bounce her because they, you could actually ask to have her removed or the 11th Circuit could do it on its own. But as you said, the Supreme Court could weigh in on that too.
That's right. Anything in front of the 11th Circuit would be appealable to the Supreme Court. Now, they don't have to take the case, right, if they agree with what the 11th Circuit did. And that all takes time, lots of time. Another option is that either the U.S. attorney in the Southern District of Florida, technically it could be elsewhere like D.C., can just start over and indict the case, bring in a grand jury, present the evidence, and seek a new indictment. And
And in fact, you know, the National Security Division could, with respect to at least the classified information charges, also using another grand jury, do the same thing. And I kind of lean that way a little bit because then you avoid this entire issue of the appointments clause. You avoid it ever getting to the Supreme Court.
But the problem here is I wouldn't want to do it in D.C. because it would just look like you're judge shopping. So I'd probably suggest that it happen in Southern District of Florida, which means you could just get Judge Cannon again. Then she'd maybe find a different way to dismiss the case, but you'd at least get beyond the appointments clause issue.
Okay, so this is really interesting. So my first reaction, and again, I would sleep on it, is that I would just go ahead and get a U.S. attorney's office to bring me an indictment. Same thing I just said. Okay, we're in agreement here. Okay. Exactly. I know. This is like violent agreement. And the reason is Judge Cannon is...
saying the flaw here is that it wasn't brought by a confirmed United States attorney. Well, go ahead and do it. Do it. That happens every day of the week. And by the way, when people say what's involved, super easy. You have a grand jury, let's impanel all the time. You could bring an agent in. They can put the transcripts of the prior proceeding. And it's just a very easy process. And that way you just avoid
and the uncertainty. And I personally would want to avoid the Supreme Court. Absolutely. You know, like the plague, because they are so result-oriented. And so you could just be like, you know what? You think this is a problem? It's not. You're wrong. But I can remedy this in about two seconds. So that is, I think, sort of step one. The harder issues are the sort of where do you bring it is sort of a euphemism for doomsday.
do you seek to remove her? Do you finally make a motion for her to recuse herself and try and take that up or have it go to the chief judge in the district court level or the 11th circuit? And that's where, in some ways, what you're doing is the merits of the decision could be litigated in the context of how wrong she was in this. And that would also have some delay in it, which I think
I guess I'm a little less worried about it because this case is never going to trial before the general election. And so I think I would sort of do it
that way. There also is the ability to sort of have your cake and eat it, too, in the sense that you could go ahead and bring this new indictment. And I still think there's a little piece that's alive for purposes of appeal. I'm not sure you'd have to do it that way. But because I think that there's residual issues that remain, for instance, what would happen to the work and the evidence that was done when Jack Smith was...
doing the work but wasn't officially supposed to be there? And is there prejudice from that? And what do you do with it? This is a way of saying there still might be standing that the case wouldn't be totally mooted out if you were to
bring a new charge, but then say that there shouldn't be these ramifications? I think it would just be procedurally different because she has dismissed this one. If they don't appeal it, this is a closed case. If they rebring and it gets assigned to her, and even if it doesn't get assigned to her, I suspect that Mr. Trump's team would argue that you couldn't even introduce, they don't have a good argument here, but that you couldn't even introduce the transcripts
to a new grand jury because those transcripts were the result of subpoenas by Jack Smith who was acting outside of any authority. So I think I'm getting it the same thing as you, but I think it would all be in the context of a new matter. Unless you appealed it as, unless you did kind of both appealed this matter. Yeah. Anyway, you know, this is like super technical, but the,
The bottom line is that because this is such a technical decision, there is a way to remedy it. And I just like to go back to something I was saying at the outset, which is, as we've talked about, what she is saying is that the special counsel here was not sufficiently tethered to the Department of Justice, was not sufficiently tethered to the president of the United States. He wasn't appointed by the president. Of the AG. And he wasn't sufficiently under the control of the
of the attorney general. That is the antithesis, the antithesis of the attack on the special counsel's investigation by Donald Trump, which is that it is weaponized as being political. And she is not dismissing it for that reason. In fact, it is the opposite reason. And it's really important for people to sort of realize that when he says, oh, look, everything's weaponized. When
Whatever her motives are, you know, when we can guess what they are and have a pretty good guess, her reasoning is the opposite. Completely inconsistent with his claims and his rhetoric, yeah, throughout. Which may change, but may not change in light of this new unity messaging that we're looking forward to. And I'm not trying to be facetious there. I'm trying to be serious, but I'm not 100%. Skeptical. Yes, exactly. Yeah.
Mary, once again, it is, with all of this breaking news, highly serious, the legal opinion that came out, and it's so great to be able to talk to you about it. We have something special planned for next week because we're going to be together and we'll be doing a live show next week. And we'll talk some more about that at the time. But in the meantime, really great to talk to you. Same, Andrew. Thank you.
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