Foreseeable Consequences 39:57

Hello and welcome to another episode of Prosecuting Donald Trump. It is Monday, November 20th, but there's a little bit later in the day because Mary and I wanted to make sure that we could cover the oral argument in D.C. on the

gag order, which I'm gagging on the gag order, Mary. I knew you would. So Mary, it's so funny. We are in the same room. We're at 30 Rock. Just so everyone can visualize this, I am looking at Mary McCord with a microphone in front of her and there are windows on either side of her. And to the left is St. Patrick's Cathedral at 50th

5th Street, and I should know this. I'm a New Yorker. 6th, I think, right? Mary. Yeah. 5th. Oh, sorry. Well, close. One block away. In New York, the difference between 5th and 6th is like a mile. And to the right of you, to the left of St. Patrick's, to the right of you is...

You got the better view. I'm just now realizing what's to the right of me. Yes, exactly. So the tree is there and the lights are being put up, but it's not yet on. But that's the famous Rockefeller tree with Sexist Avenue behind it. So anyway, this couldn't be nicer. Okay. So anyway, after we talk about the gagging gag order argument, we gag gag order argument, we will move to Colorado where a state court judge there has...

denied the request to prevent Mr. Trump from being on the ballot, but she made some very significant factual findings, including that he did, in fact, engage in an insurrection against the Constitution of the United States. So we'll dig into that a little bit and what it is that she actually did.

determined that is why she didn't ultimately give the relief that the plaintiffs were seeking. Yeah, so that's going to be fascinating. And to me, again, it's like the reason for a podcast that we can sort of dig a little bit deeper than what

people have time for on the news. And then the final thing is, and I can't believe that I'm the one who's covering this because I'm keeping my temper. That's right. But I feel like you and I are a little bit vindicated because we're going to cover the latest from Judge Cannon.

And we're just going to briefly talk about it, but spoiler alert is that it really confirms what we talked about in terms of what she is doing, whether intentionally or not. But Mary, you and I had the pleasure of listening to a panel of three judges who

in the D.C. Circuit who were hearing Donald Trump's appeal of Judge Chutkin's gag order, or the restrictions that she placed on Trump in terms of what he could say prior to trial because he is a criminal defendant. And to remind people, she had said, you can talk about the administration, you can talk about Joe Biden, you can talk about

the Department of Justice writ large. You can even talk about her, the judge, in terms of attacking and their bias, etc. But what you can't do is essentially by name talk about witnesses, jurors,

court staff, the prosecutors, Jack Smith and his staff, and of course, family members. And she phrased it as, "And of course, family members." So that was what went up on appeal. I'm going to turn to you for substance, but I'm just going to give you what I thought sort of as a lawyer listening to it. It was a wonderful argument just in terms of craft.

the judges asked really smart questions of both sides. And they really pushed and pulled and prodded both sides. And

acted like what you want from judges. It reminded me so much of when I was in the special counsel's office. You just wanted a judge who was going to be serious. And so that was my overall take, was it was just such a nice argument to hear. Yeah. So to those who might have think, well, these, the three judges were all appointed by a Democratic president,

and maybe were worried or thought that perhaps they would be harder on Mr. Trump's attorney than on the government attorney, I would say they were pretty hard on both. And they asked very, very pointed questions and pushed hard on both counsel. And the other thing interesting before we get into substance is this, now this didn't surprise me because I've seen this before, but they scheduled this for 20 minutes per side. Yeah, how'd that go? Yeah.

Yeah. I mean, I went from being at home listening to driving to the train station listening to being on the train listening to having the train break down while listening to still being listening after I got on a second train because it went – each argument went – I think the opening argument by Mr. Sorrow, who's Mr. Trump's attorney, I think went about an hour and 20 minutes and the governments went over an hour. So it was a very long argument. So I think a lot of the –

sort of people like us, when we heard what the panel was, a lot of people were like, oh, this is going to be a really good panel for the government because they saw that the judges were appointed by Democratic presidents. And there's no question that the judges have very solid reputations, and I thought it'd be a good panel because of that. But these are people who are very concerned about

government behavior and defense rights. And so there was a lot... And precedent, right? And precedent. But there was a lot of discussion about the rights of a defendant and protecting the rights of a defendant. Not so much talking about sort of the right of somebody who's running for office, but just very much about what should defendants be allowed to do and what speech rights they should have. So in that sense, those sort of what are traditionally sort of liberal judges, to the extent that's a label that applies...

to these three is, you know, I think...

ended up with an argument that was very fair to both sides. And really, I think what you want is a judge pressing both sides on gray areas and open issues and difficult issues for both sides and where there are arguments, because that's the nature of the law. So that's sort of a big picture thing in terms of how I was thinking of it going into it. But why don't we turn to the actual substance, because there were just so many...

Good questions. And then I'm going to give you since I'm going to give you a prediction. But let's I have a prediction, too. But so I had a couple of big top level points, at least about Mr. Sorrow's argument. Again, Mr. Sorrow representing Mr. Trump.

One was he spent quite a bit of time talking about the standard that should apply when reviewing an order like this that restricts a person's speech. And he wanted to use essentially the toughest standard out there, which is the standard that the government must show clear and present danger of some serious substantive injury.

evil which the restrictions on speech are designed to address. And he also argued for strict scrutiny, sort of the highest level of review of any kind of potential infringements on First Amendment rights. And one thing interesting about this, and I think a lot of the time the judges were going ahead and giving to him, okay, let's assume that's the standard, clear and present danger.

There is also a legal argument and the government pushed back on that standard saying that's the standard that applies when you're restricting a non-participant in the case. When you're restricting a participant in the case, a lawyer or a party, it's a substantial likelihood of material prejudice to the trial, which is what is the standard. So that's the sort of technical legal. How are we even supposed to be looking at this? And that was one of the great questions that

a judge had of Donald Trump's lawyer, which was, okay, so what's the difference between when you're saying that's the test, then what's the difference between the test that applies to a participant versus a non-participant? Because the Supreme Court has said there's a distinction. And by the way, that question was asked, but not answered. Yes, multiple times. And

And the other part that I think really flows from that is that under the test that Mr. Sorrow said applied, he was asked multiple times, sort of give me a hypothetical where that would actually allow for a restriction on some type of speech that wouldn't already be a crime.

And he just resisted doing it. He'd say, well, that's not what happened here, Your Honors. I want to talk about the situation here. And there is nothing here yet that Mr. Trump has said that would fit clear and present danger. And they kept pushing him on what would it be that wouldn't already be a violation of his conditions of release.

like, you know, inappropriate contact with witnesses or wouldn't otherwise be a crime, like a true threat. And another piece, yeah. Just so people understand, a standard condition when you're released as a defendant is do not commit any crimes. That's right. And one crime is threatening witnesses. That's right. And so, Mary, what you're getting at is that the court kept on saying, well...

What is it the judge can do other than say, don't commit a crime? I mean, that's already just a bail condition. That doesn't need to be a gag order. What are you proposing that's not already a crime? Their point is, you're saying that you have to wait until the crime has happened and that the judge isn't allowed to do anything prophylactic. That's right. No matter how many...

warning signs there are. And so it's like, you're just basically saying, hey, once the crime happened, you can charge him, but you can't do anything. Yeah, that's exactly because when they push, push, push, he ultimately said what they called threats, meaning what the government calls threats, is core political speech. Wait, in this case?

True. Well, it's certainly what Donald Trump thinks of as core political speech, right? And he said, you know, that there's nothing that the government has pointed to in this case that

where someone ended up getting threatened or harassed or intimidated based on something that Mr. Trump said. They haven't made any evidentiary burden that that's been the result. They're looking back to things that happened in 2020 with the many, many examples, right, of Mr. Trump saying something sort of incendiary about a person, whether a social media tweet or something he'd said at a rally, and then people acting on that. Of course, the biggest one of those

itself being January 6th, right? When he's calling on his vice president, Mike Pence, to take action to reject the electoral college votes and overturn the will of the people. And of course, telling the people they've got to fight like hell, uh,

And of course, a bunch of them did go down to the Capitol and fight like hell. So he's saying the government hasn't shown essentially what we were just talking about, a criminal threat that has actually happened related to this case. Now, of course, that in and of itself, even though we think that's not the right standard, as we were just discussing, that really means there's almost nothing that a court could do prophylactically. And I think they were struggling with that and found that that couldn't possibly be the law. But they also said, well, what about

the threat made to Judge Chutkin right after Donald Trump said, if you come after me, I'll come after you. It was the very next day. And this was, I think he even said that the day after he said he could never get a fair trial in the District of Columbia, that the judge was corrupt, etc. But he wanted to discount that particular example. So I thought another place where the lawyer did a bad job of answering the judge's questions, like the legal ones I understood

And he wasn't going to cave or concede anything because he's thinking, "I might be able to just raise this in Supreme Court, so I'm not going to actually even answer what the distinction is," because he's just leaving it as a clean slate with no concessions in case he can go to the Supreme Court, which isn't clear he would be able to. But the second thing that he was asked by Judge Garcia, I believe, was,

Tell me what's vague about the order. Tell me what it is that you're concerned about that you're not sure what it covers. Like, leave aside legally we may agree or disagree in terms of what the rule is, but in terms of the current order, what do you think is vague? And this was just like a softball that he had to have been prepared for

No answer. So if there's no answer, your claim that the order... Well, I think his answer was about a half of Trump's social media posts. And his point was, yes, right? That he's engaging in posting every day. There's, you know, zillions of them. But they kept on saying, give me an example. And so there just wasn't a very good...

argument for what is it that you're concerned about? So let's turn, though, to the government. The government got a lot of questions also. I think on that point more almost than the legal standard point. Yeah, oh, absolutely. Because the legal standard, everyone understood what the law is. And the government got that right in terms of what the current law is. And I thought one of the things that the court was really wrestling with was

What is the sort of the purpose of the gag order? I mean, big picture, I think what they were trying to deal with is, is the gag order just to prevent potential violence? Or is it really about, are we trying to deal with this sort of harassment of witnesses and jurors and sort of what can happen now?

at the trial. And so the way that came out was that they were like, tell me, lawyer for the government, tell me why comments about the judge's staff, like, what is it that you're worried about? How will that harm the integrity of the criminal system, basically, the criminal proceedings? Because we understand if it's a crime, they can get prosecuted for it. So, like, that's taken care of. But

Are you saying that like the judge's clerk is going to resign? Right. How is that going to actually affect the trial? Same thing for Jack Smith and Jack Smith's staff. They didn't think Jack Smith was likely to quit because Mr. Trump, you know, calls him deranged. Right. Exactly. He hasn't quit. And then they were like, but are you are you sort of worried about like the next case where people won't want to be

clerking on that matter. They won't want to be on Jack Smith's staff, which, by the way, that note to self, I actually think people, having worked on the Mueller team, I do think people thought about whether they want the hot glare of the media and the scrutiny. I know that for a fact. And the threats. I know for a fact that happened with respect to recruiting. To be clear, the

many, many, many people wanted to be on and do their duty, et cetera. But there were people who also didn't want to, particularly if they have young kids. There's a whole bunch of factors. Yeah, there's a risk.

So, but they were sort of focused on that. Like, how does this, because they're balancing a lot of different things. And so they're like, that's, that seems so unlikely that as bad as it is, they should have to worry about that, but it's not going to affect the trial itself. And they were like, tell me more about that. So that was a big focus. Yes, agree. So what else did you think that was sort of good questioning of the

of the government. When we were talking about the questioning of Mr. Trump's lawyer, how Mr. Trump's lawyer was really saying the government hasn't lived up to its evidence of showing its burden of showing by evidence that people really are being threatened after Mr. Trump mentions them, whether it's in social media posts or rallies, etc. And there's a couple of things that came up from that. The government, first of all, one of the first questions to the government or one of the early questions to the government was about that

In fact, it was by Judge Garcia. How do you respond to that argument by Mr. Trump's attorney? And the government responded that there were 16 people specifically named in their arguments. Eight had been from 2020 who had been threatened. And when we say specifically named as examples of people who did receive threats after Mr. Trump posted specifically about them. But all

So many others they mentioned were much newer, right? Threats to Judge Chutkan, threats to Judge Angoran here in New York, threats to potential witnesses, Mark Milley, etc. And one of the things that Mr. Trump's lawyer has been arguing throughout this briefing is that

Mr. Trump should not be responsible for threats that others make, that that is like a heckler's veto. And so that is like you're infringing on someone's First Amendment rights when it's not their speech that's causing the harm, but it's the actions of others in response to that speech.

And it is true that there is legal doctrine out there that says things like you can't cancel a rally and say we're not going to give you a permit to do this rally because you're worried about the reaction of counter protesters and you're worried that they might.

do things that engage in violence. That's sort of the reason for that doctrine, because it would infringe on the free speech rights of those who want to have the rally if you could cancel it just because of how counter protesters will react. Well, here, of course, it's not as though those who are reacting are

antagonistic to Mr. Trump's position. So it's not quite like a heckler's veto. It's more him just trying to use that legal doctrine to argue that he shouldn't be responsible. So my thought is, at one point, one of the judges says, "I don't even understand that argument," which I have to say, that's where I was.

Now I understand it better, especially listening to you, Mary. It is so inapplicable here because that judge said, but there also is a doctrine to intend the foreseeable consequences of your actions. So it's not like Donald Trump, the very first time, and like is like is a newborn baby and says something and lo and behold, somebody acts differently.

In response to it. This has happened over and over again. So he knows what's going to happen. I mean, January 6th is a perfect example. I mean, for God's sake, he's on trial for this. This is what he's charged with. So there's like this call and response and call and response and call and response. So he knows you are under the law presumed to have the intent of these actions that are foreseeable consequences of your words. I just want to say you're...

You're right. And that's why I raised this, even though we were supposed to be talking about the government side of the argument, because that's essentially what the government was saying. It's like all of these people, the people from 2020, the people from recent history. Exactly. He knows. It's all of a piece. It's all of a piece. It's all part of the same dynamic as the judges talked about. It's a really quick thing, because I think it's going to go to what I think we should get to is our predictions. I think, Mark,

Milley is a really good example of what was bothering the court because they said Mark Milley is a public figure. They kept on sort of focusing on public figures versus non-public figures to both sides. And then also whether the speech that is at issue is related to their

trial testimony to what is anticipated. Or just even their participation, right, in the whole process. As opposed to, they said, you know, Mark Milley, public figure, and also had just written a book. And so how do we know that this is speech that's related to what he might say as a witness versus just what he was saying in a book? Like, how can you preclude that? So I think they're concerned about nexus to the trial and to whether someone's a public figure because they sort of repeatedly said that and talked about

um what do we do with non-public figures who are witnesses right that has to be something they're really worried about that is why i'm going to go out on a limb okay i think that they are going to affirm her but they're going to restrict it further to deal with what he can say about

non-public figures versus public ones, and that there has to be a nexus, which I think was implicit in what Judge Chuckin was saying, but could be much more articulated. Because her order used the word targeting. Do not target potential witnesses, court staff. Right. And I think it's going to be about that, but it has to be targeted because of the

the nature of what the trial test may as opposed to writing a book. That's right. And in fact, Judge Pillard actually offered up that potential narrowing both to Mr. Trump's counsel and to government counsel. She said, what about a test that says you can't comment on any potential witness like by name because of that witness's participation in the trial?

And so I saw that, too, as like a sort of a compromise. Now, it could be also they'll say this is only going to be applying to sort of witnesses and not the prosecutors or court staff. I think that's possible. We'll see.

But I definitely, I had the same sense, Andrew, that there might be some narrowing. And I feel like the non-public, this idea of a public versus non-public will allow them to protect witnesses and jurors because they spent a fair amount of time talking about jurors and how do you protect them. More prosecuting Donald Trump. Foreseeable consequences in just a moment.

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OK, so let's get back to our segue to Colorado, because I think what's so significant here is we've been talking about, you know, Donald Trump knowing and it would be entirely foreseeable to him how others might react to his speech because this is what he's been doing purposely.

for years now, even before 2020. But even if we just started in 2020, you know, call response, like you and I've talked about so many times on this program. And that's exactly what the judge in Colorado found. She said,

Mr. Trump knows, and this is after she took a week of evidence, including experts in extremism, including fact witness experts, but also experts in extremism who've sort of studied this pattern of behavior of doublespeak, right? Saying certain words, but these words are meant to induce action by his followers. They do induce that action. He is aware of that, and he does it again and again and again. Under the law.

You can infer intent based on the foreseeable consequences of your speech. Let me give you two examples that I wrote down of her going through the history of his violent rhetoric, because I thought it just was so powerful. Quoted him as saying, it is that violence is, quote, very, very appropriate, and we need a little bit more of it. Right.

Who says that? I think that was back in his original campaign, right? Oh, absolutely. This was also when there was a heckler. He was like, you know what? You can rough him up and I'll pay for your legal bills. That's right. And she goes through example after example after example. I mean, this is where the law sometimes is an ass, which is, I mean, really, you have a photo of him with a baseball bat with Alvin Bragg's face. You have his comments about Mark Milley. You have him denigrating Alvin.

the near-fatal attack of an 82-year-old man with a hammer. And we're supposed to have a serious conversation about whether he is really intending or threatening violence. I mean, and he's charged with that, which is by definition probable cause found by a grand jury. Not charged with incitement, just to be clear. Not charged with incitement to insurrection. But absolutely charged with sort of wanting to see this happen. Being responsible. And then...

pushing it to happen and then taking advantage of it happening and condoning it, not denigrating it to this day. That's right. He wants to pardon all those people. That's right. So the idea that this is a man who's somehow not engaging in violent rhetoric, that is his brand.

is the sort of Steve Bannon, tear it all down. And, you know, anything that we think is bad, he says is good. So judicial system, bad. Violence, good. I mean, everything that you were taught to believe, because you have parents who bring you up well, you know,

It's the reverse. Yeah. Yeah. And, you know, the reason this all was something that the judge in Colorado was talking about is because what she was tasked to find in terms of this case about whether Mr. Trump can be on the ballot was whether he had violated Section 3 of the 14th Amendment to the Constitution, which says that no person can hold an office—

And that, you know, we'll get into what office means, but basically hold a government office if they have previously been an officer and have taken an oath to the Constitution and then engage in insurrection or rebellion against the Constitution.

So engage in insurrection or rebellion. So she actually went through factually and made her opinions 102 pages long, made I think the first 50 pages or so are her factual findings and said he did engage in insurrection or rebellion because what he did, knowing the effect of his words on people, was incitement. It was an incitement inaction.

here for these purposes is the same as engagement, and therefore I find he engaged in insurrection or rebellion against the Constitution. You want another quote from Donald Trump's statement at the Ellipse on January 6th, which I had not focused on. I was so happy to read it and to be reminded, when you catch somebody in a fraud, you're allowed to go by very different rules.

And that was him saying before and after, fight, fight, fight, fight like hell. When you catch somebody in a fraud, you're allowed to go by very different rules. And the judge, to your point, had already found that he knew that there was no fraud in the election and this was deliberately done.

being done to rile up the crowd. His crowd, absolutely. So, Mary, how did the judge, she made all these great rulings about this was incitement, this was intentional, but then the judge says, but I find that this provision in the Constitution doesn't apply to the office of the presidency, and I'm going to put on my layperson's hat

Because I am not a constitutional scholar. Like, you know, I confess. Like Judge Ludig, who we've had on before. Exactly. And I'm not an appellate lawyer, as you are. But this is what I don't get. How is it possible that the people who promulgated this provision of the 14th Amendment, that, as I understand it, was put in place publicly,

as a result of the Civil War, decided that if you engaged in insurrection or rebellion, you couldn't hold any other federal or state office

the presidency. Yeah. It defies logic, right? It's just completely illogical. Okay. And I think probably most lay people would say, what? Yeah. And wait, including this non-lay person. Yeah. It's a hyper

technical, but I understand her ruling. I read it. It's hyper technical and it's based on the very odd use of office and officer in that provision. So that provision says basically you can't be a senator, representative in Congress, an elector of presidents, so a presidential elector, or hold any office, civil or military, under the United States or any state. So it's weird, isn't it, that

That president would fit into office last on that list as opposed to being first. You can't be a president, a vice president, a senator, a representative or any other office. It's kind of weird that it's last. Right. But let me go on. This is Lisa, according to her. I'm not necessarily defending this, just trying to explain it.

If having previously been an officer... By the way, Mary's doing that because we're looking right at each other. Yeah, and he's rolling his eyes. I am. It is true. It is true. I am rolling my eyes. I thought, because I'm on podcast, I thought I could roll my eyes. No one would see it. Yeah, that's right. Well, they just saw it because I told them. And so her first point is, I don't think that this is an office. I don't think the Office of the Presidency is an office covered by Section 3. Can I just repeat that? The

Office of the presidency is not an office. Okay. Covered by Section 3. I just want to make sure I follow you. Because it doesn't make sense at all. Mary's just, just to be clear, Mary's just trying to articulate what the court's view is. Yeah.

And then the other place where the word office or officer comes in, first is office or hold any office. And she said, I don't think that applies to president. It's oddly placed. And she looks back through some historical things that I won't go into. And the other place is she said, you can't hold that office if you have previously –

taken an oath either as a member of Congress or as an officer of the United States or as any member of the state legislature or as any executive or judicial officer of any state. And she says two things about that. Again, why wouldn't it just say president or

vice president before it gets to member of Congress. Why would officer apply here? You know, from her perspective, that's unclear when you could be so much more clear. And moreover, she says the oath that Mr. Trump took as president is a different oath from the oath that

all other federal officers take. And it is true, it is worded slightly differently, but the import of it is that you're going to protect and defend the Constitution of the United States. Substantively, they're the same, even though the words are slightly different. And so this is how she concludes that Section 3 does not apply to the Office of the Presidency.

So ultimately what she says is in a decision as important as keeping a candidate for president off the ballot, I want something more clear. I want it to be – or I want a higher court like the Colorado Supreme Court or implicitly the Supreme Court of the United States to decide what this applies to. So I'm with her.

on a narrow point, which is that I do think it's a valid point to say that whatever is decided to keep somebody off a ballot should be

Very clear. Gray should not be applying in the same way that you and I were criminal prosecutors. You know what I used to say? You know what gray is? Gray is a case. Yeah, we don't we don't bring a prosecution for gray. Exactly. And I feel like this is the same thing in terms of someone's right to run and also our right to vote for that person, that it should be clear.

I'm not with her on being unclear. Yeah, I'm just not with her on it being unclear because the language, I think, is directly susceptible to applying to the president. And when you step back for about a New York minute or less, it

It just defies logic, right? It doesn't make any sense. It's like, okay, so Jefferson Davis, bring him on. Yeah. Right? I mean, it's crazy. It's like, but you know what? He can't run for Senate. That's right. But if he wants to be the president... Be the president, he could. Love. Which makes sense. It's great. And, you know, commentators, of course, people like Judge Ludig, who our listeners will have heard twice if they listen to all of our episodes. You know, he immediately did respond. He said, that's just...

you know, constitutionally unfathomable that this would not apply. So the good thing about this opinion is like that's like the last four pages, right? The whole rest is her dispensing with all of the other arguments. It's like body blows. Yes. And the plaintiff's counsel who brought this case, they've already said they're seeking review in the Colorado Supreme Court. If the Colorado Supreme Court reverses on this office officer point, all the

findings of fact are already there. There's not a remand to now determine whether Donald Trump engaged in insurrection. She already determined that. Yeah, exactly. So this is one where there's like, you know, lots of Easter eggs for the people who want to keep him off the ballot with just this legal issue that a higher court could reverse. More prosecuting Donald Trump. Foreseeable consequences in just a moment.

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Why don't we turn to Judge Cannon? Because I think that's going to continue with our through line of foreseeable consequences. Right. Judge Cannon got a motion from the government to say, you know, I got your scheduling order. And people remember the scheduling order didn't change the trial date, but it pushed all of these other dates back. I remember, Mary, you were sort of walking us through all of that. And the note to self was that

The trial date's clearly going to be pushed, but she didn't do it yet. She said, I'm going to hear everybody on March 1st. But in the interim, everything's been pushed off. Although some she didn't put a new date for. Exactly. So that was the problem. And the government said, but you didn't schedule...

a Section 5 hearing. There's Section 4 hearings. There's Section 5 hearings. There's lots of complications. Don't worry, audience, we're not going to bore you with it yet. We're going to bore you with it, but not today. We're going to bore you on other things today. So they're like, could you schedule that? Because once that's done, there's lots of other complications that come from making a Section 5 hearing and arguments. So they file that.

And before Donald Trump can be heard and say anything, the judge issues this minute order that basically says, I said what I meant and I meant what I said. And I deliberately didn't schedule that. And I'm not going to. I'm not going to. And like, see you March 1st. I'll see you March 1st. And it's just, to me, it's just like,

plain as day that, A, there's no way that this trial can happen in May without scheduling that. And I think she just realized, I'm not going to get reversed on a scheduling order. You're not going to be able to take me up on appeal on that. You're not going to be able to mandamus me, which is a kind of appeal for scheduling. And so I am really screwing up your

schedule and I'm blocking Georgia because Georgia can't schedule for a date that I've got on paper, but I'm not going to tell anyone.

And by the way, she didn't particularly have a reason. It's not like her decision said, and this is why. She didn't even do it by something called a paperless order, meaning she doesn't even write out an order that explains it or gives reasons. It's just something she dictates to her clerk. The clerk then puts it on the docket, paperless order, denying the motion to schedule a Section 5 hearing. Yeah. So we don't curse on this podcast, and I know others. Unless we're quoting somebody.

Because I did. Did you? Well, on Donald Trump's January 6th, we fight like hell. You did. And I used the word, I think the law is an ass. You did. See, we crushed twice. That's also kind of a quote. By the way, you know, when I'm on trial,

When I do cases, and even when you're quoting, and a lot of times there'd be a tape recording, and I did all the mob cases, and they cursed even more than we did. And I just wouldn't in court, I wouldn't repeat it. I would just take a pause and go to the next word, which in some ways was just as effective. But I just thought it was not...

in keeping with the decorum of the courtroom. And I just couldn't do it. I mean, I know that other people could and there's nothing wrong with it. So anyway, so I view the podcast in a similar way so we don't curse, but I'm really tempted when you were talking about the paperless order and like essentially what that is. But I really feel bad for the government because they're trying to play it straight. They didn't move to recusers as Donald Trump tried with Judge Chutkan.

And a lot of people have asked and written in questions about like, what can they do? And I think both of us agree that there's nothing right now they can do. Her rulings on the actual SIPA material could provoke it, but it may be too late in terms of

And it may ultimately get her off the case, but it's, I think, too late in terms of trying to schedule this to a different judge. And then because it'll have been too late and it sort of she will have accomplished her purpose. Yeah. If you think it's intentional, which I do. Yeah. And, you know, I.

Part of it also is, I mean, I do think, obviously, she's, again, people intend the natural and foreseeable consequences of their actions. That is like the through line of this podcast. Maybe we should name it that. But I also think she has no idea how SIPA works and is just, you know, kind of,

Because again, she gave herself two months to consider the government section for submission and then have a two-day hearing. And this is an ex parte submission. There's nothing she needs to do for two months. So anyway, we'll see how this pans out. But you're right. They'll be able to appeal substantive rulings that they think are wrong on the admissibility of classified information. And that could lead to, depending how egregious it is, to whether they move to actually also recuse her, not just appeal it. That's right.

To be continued. To be continued when we will have our SIPA Section 5 discussion. But there's so many other things to talk about. It's so nice to actually be in the same room to see you live and not in a little box on my computer screen. Although I'm going to sit in your chair the next time to see the good view out the window. Totally. All right. Okay. Next week. I'll see you tonight, actually. You're about to go on air. And then we're both heading off to the New York Historical Society. Yeah, it'll be lovely. Great. Bye. Bye.

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 senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers. The head of audio production is Bryson Barnes. Katherine Anderson is our audio engineer. Aisha 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.

Hi, everyone. It's Chris Hayes. This week on my podcast, Why Is This Happening? Author and philosopher Daniel Chandler on the roots of a just society. I think that those genuinely big fundamental questions about whether liberal democracy will survive, what the shape of our society should be, feel like they're genuinely back on the agenda. I think it feels like we're at a real, you know, an inflection point or a turning point in the history of liberal democracy. That's this week on Why Is This Happening? Search for Why Is This Happening wherever you're listening right now and follow.