Government Secrets at Trial 40:44

Hello, and welcome to another episode of Prosecuting Donald Trump. Well, there's a lot to talk about because a lot happened this past week. Judge Aileen Cannon issued a scheduling order. Bruce Reinhart, who's the assigned magistrate judge, issued a protective order. So there's sort of two orders that have come out of the Florida case. And in addition, Donald Trump went on air to set out his, quote,

unquote. We'll talk briefly about how that went in our view and our professional opinion. And I think this is now the episode where law school is in session. That's right. But it actually will be really interesting and fun. So, Mary,

Welcome. Hi, good morning, Andrew. We've been saying for weeks now that eventually we are going to... Weeks. Weeks. Weeks.

on every single podcast, but we wanted to bring in a defense attorney who's actually represented people being charged with Espionage Act defenses, who has litigated from the other side SEPA issues, and that is Mark Zaid. And so he'll be joining us a little bit into the episode today. Really looking forward to that discussion. I am too. And Mary,

I know you've dealt with the SEPA statute, Classified Information Procedure Act, and I have too when I was in the government. Actually, more when I was at the FBI, when I was a general counsel than as a practitioner. And for you, it's much more as a practitioner. Yes. But do you know, I actually dealt with SEPA as a defense lawyer.

You're not supposed to say that. So I have a really great story, which I'm going to try and fit in as to what happened there, because it was shortly after I left the FBI and I was a defense lawyer. But I'm going to keep everybody battle for stories. Yeah, well, like, it's really good that he's here because I have like a one off as a defense lawyer. So that's hardly like a ton of experience on the defense side. But I do have a little taste that I think is going to reconfirm some things were a little from Mark.

But why don't we start with the orders that came out from the Florida court and the

what we made of them. I mean, obviously, if people are listening to this, it's because they're following the news and everyone understands that the trial date set by Aileen Cannon of August 14th is sort of a placeholder. So that's sort of a given. But what did you make of either that order or the Bruce Reinhart magistrate judge order about how discovery could and could not be used

Any sort of takeaways from the sort of insider view? Yeah, sure. So first, I think there was kind of a lot of buzz about this protective order that suggested there was something about it that was maybe imposing restrictions on the defendants and the defense counsel in this case that are out of the ordinary. And that's not true at all.

A protective order to protect sensitive information, even non-classified information, is standard in a case where the discovery will include sensitive information, including personal identifying information of potential witnesses, et cetera. Can I ask you a question on that? There was one aspect. I, by the way, had generally had a complete agreement with you, but I had a question for you because I had not seen one provision before.

I was going to raise that, too. So I wonder if we're homing in on the same one. Violent agreement. Sorry. This is by the way, this is no to self. Don't ever interrupt Barry McCord. No, no, no. I'm glad you did. I'm curious now if we saw the same one. I was thinking of paragraph 10 where the judge puts restrictions on how the defendants can possess or see evidence.

certain unclassified documents and says that everything has to be with essentially a chaperone, and the chaperone is defense counsel. That was unusual to me to have that, particularly with non-classified information. I had not typically seen that other than obviously

in other cases involving the former president. And again, it's still remarkable to me to see that statement, which is a former president of the United States has to see documents only when defense counsel is present, basically because they're concerned about his doing something with them.

The wording is, and I believe it's actually paragraph five. Ten is the paragraph in the other order that we're interested in. Oh, you're right. You're right. This paragraph says that the defendants, because remember, this applies to both Mr. Trump and Mr. Nada, shall only have access to discovery materials under the direct supervision of defense counsel or a member of defense counsel staff. Now, I will say I have had cases particularly involving sort of like

violent narcotics rings and things like that, where there have been similar provisions because of concerns about

witness tampering and harassment or violence against witnesses. So it's not unheard of for me. But in a white collar case, it's a little bit different. And I do think this springs from concern about those same things, witness tampering and also just revealing publicly the information, which, of course, is barred by other provisions of this order. But I think that was probably in there as a way to just be a little bit extra cautious

I don't think the government or, frankly, the defense lawyers are looking forward to a situation where perhaps Mr. Trump is maybe, for example, being interviewed on television and waves around some papers, and those papers happen to be the discovery. As he's reputed to have done in the indictment at Bedminster, right?

with top secret information. Yes, you can just imagine it. So really, this is just about the non-classified information. The other discovery that the government will be providing is putting some constraints on it. The other thing I thought was kind of interesting, although I guess it makes sense, is that defense counsel can't even refer to that discovery in any public motion until they've got permission of

the court. Now, you know, there could very well be things that are revealed in that discovery that are then the basis of motions, motions to suppress, motions in limine about introducing this, that, or the other. And it would be quite ordinary to be relying on discovery for that. And I don't always see that provision, but here it would sort of defeat the purpose of not allowing things to be made public if you then said, ah, you can put it all in a motion without seeking the court's approval. And I think that will really just be

to make sure that nothing is going in the motion that, again, would reveal the really sensitive or personal identifying information before there's precautions that can be taken. Yeah. But again, it's just so unusual. You would think that in a case involving the former president, it would kind of be the reverse, that a lot of these protections would not be in there because you're dealing with somebody presumably who's reputable. Right.

So this is really clear what at least the magistrate judge knows what they're dealing with. With the judge's order, which is now Cannon's order, I thought a couple of things were kind of interesting. One, there is a motion date that is relatively soon, July 24th. Now, obviously, that could slip because the parties could ask for more time, etc.

Someone could say that they need to see the classified discovery before they make those motions. So there could be ways that slips, but that's a very tight deadline for making motions. And then I thought another thing that was kind of interesting was that she said the trial, absence things changing, the trial is going to happen in Fort Pierce.

not in Miami. And the reason I think that's potentially interesting is that the jury pool may change. And I stress the word may because I grew up in a district in New York where we had different

parts to the district. And even if the case was moved to a different part, you still had to draw the jury from the whole district because they were concerned about essentially jurymandering. And so even if you were in the area of the district that was whiter and more conservative, you had to draw from the whole district and vice versa. So it'll be interesting to see whether the

having a case in Fort Pierce changes the jury pool from which you choose. But I thought that was kind of an interesting aside. By the way, there's something else that happened this week that just broke, which is involving

Hunter Biden, which we're not going to spend a lot of time on because it's not directly related to the title of our podcast, Prosecuting Donald Trump. But I did have a comment. To me, there were sort of a couple of things. One big picture. It's so interesting to me that both in that case and in the federal Trump cases, you essentially have the attorney general

offloading his responsibilities in both situations to try and get greater public acceptance and to have both the reality and appearance of independence. So in the Biden case, you had David Weiss, who was a Trump holdover, who has said publicly that he had complete and ultimate authority, which is really interesting because

I mean, legally, but exactly legally, he can't exactly because in order for this to be constitutional, the attorney general has to be the ultimate decider. And everyone else is this, quote, subordinate officer. We litigated this in the special counsel Mueller case, but he offloaded it so that there would be greater acceptance because of that. And the same thing with special counsel Jack Smith and the same thing with special counsel John Durham.

Absolutely. And you also have a special counsel, Rob Herr, with respect to the Biden investigation. But it's so interesting to me because what do you really get from that? It didn't stop certain Republicans from attacking the David Weiss decision. It doesn't stop with respect to Jack Smith. And so, you know, the big picture is, does it really do anything? In other words, in terms of public acceptance, people just go right by that.

that the David Weiss decision was made by David Weiss, not by Merrick Garland or the White House. So you have these sort of procedural protections, but I'm not really sure they're buying public acceptance, at least with a huge part

Yeah, I mean, it's hard to say for sure, right? Because what we tend to see in the news and in the press are the reactions of politicians to it. And I do wonder, you know, for me getting outside the Beltway, for you getting outside of Manhattan, is there a way to get out of the Beltway?

do, you know, just ordinary people paying attention. Yeah. We occasionally get you out of Manhattan. Yeah, I just I'm not sure. But David Weiss himself has been adamant about saying, you know, these are my decisions and I'm independent. Kudos to him for trying from his perspective to make that clear, because he is again, he was a Trump appointee who stayed over to do this investigation. So I think he's been sort of very stand up about that. And I appreciate that.

Okay, so getting back to the scheduling order, which is a great segue to our guest. Yeah, totally. You know, this sets, I think it's, many people will already know this now, but when they saw August 14th, they might have thought, oh my gosh, that's not even two months away. And this scheduling order is really quite standard because there is a speedy trial act.

And this is not to be confused with the speedy trial right in the Constitution, which we talked about several weeks ago, which is just a constitutional right, belongs to the defendant. But the Supreme Court has also said that society has an interest in a speedy trial as well. But the Speedy Trial Act, which is part of our statutes,

basically says you need to schedule trial dates within 70 days of indictment. And so that's what's governing that date. But there's all kinds of reasons why that date can be continued and extended. And I would say in my experience, Andrew, and my guess is it's the same as yours, and my guess is it's the same for our guests.

is that it really is quite rare that a case goes to trial in 70 days. I'm not sure I've ever had one go. Quite rare, meaning never. Never, yeah. Because the filing of motions tolls that time period. And there's almost always going to be motions, even in a case far, far simpler than this. Right. And this, by the way, is where paragraph 10 comes in. Finally, I got the right paragraph. Right.

And actually, paragraph 10 explicitly makes reference to potential motions and the anticipated impact, it's a language, of the Classified Information Procedure Act. So specifically notes that as a potential reason for continuing the trial date and needing to have motion practice. Hence, the perfect segue to SEPA and how it could affect the trial. That's right.

Yes. So I am very pleased today to welcome our guest, Mark Zaid. Mark is a Washington, D.C.-based attorney. As I indicated at the outset, he has represented people, oftentimes former government employees, who've been accused of Espionage Act violations. And recall that these 31 counts of illegal retention of documents are Espionage Act violations.

even though they're not classic spying, these are still provisions of the Espionage Act. And Mark has handled these kind of cases in a defensive posture in many instances. He's also done a lot of work with respect to clearances and oftentimes

There'll be situations where former employees are accused of something and face losing their clearances. And he's represented those type of cases. And he's also represented whistleblowers and, in fact, co-founded a whistleblower representation organization. And I've worked with Mark on and off for years. He's guest taught in my classes many times. And we're really happy to have you join us, Mark.

Well, thank you both. I really appreciate the invitation. I always feel weird when I get called a defense counsel because I never think of myself as a defense counsel. But we do. I'm a plaintiff's counsel. Challenging government misconduct is mostly what I'm doing while defending my client's rights. Yeah, nice way of phrasing it. That's great. Okay, so I guess I'm a little bit of both. Yeah.

So, Mark, maybe just start off, just tell us, what is SEPA? What is the statute sort of generally trying to accomplish? Sure. So SEPA, or more precisely, the Classified Information Procedures Act, which for some reason I developed a fascination for when I first entered law school 30 plus years ago, just a few years, I think not even a decade, actually, after the act was created in 1980.

And it was created to address an issue called graymail, this subtle form of blackmail, essentially where a criminal defendant would attempt to introduce classified information as relevant and admissible in its proceedings in a way to put the United States government in a posture where it had to make a choice between continuing the prosecution or dismissing the indictment. So it's like I said, subtle form of blackmail.

As an easy example, which actually has validity as prior cases, if you put yourself back in time into the 70s and 80s and you think of someone hijacking a plane, let's say it's from the Southern District of Florida in the Miami area, hijacking a plane to Cuba.

and gets caught. And then they claim, well, I was doing that for purposes of the CIA in order to embarrass Fidel Castro. And there's classified information and classified testimony from case officers that I could produce and present in court that would show I was doing it on the instructions of the United States. And

If that were true, which it might have been true for other people, perhaps, if anyone, the introduction of that would obviously pose a problem for the government. And because if it was deemed relevant and admissible, it would be necessary for the defense. And the government may need to dismiss the case because the CIA doesn't want anyone to know that it was actually sanctioning hijacking of airplanes.

I think those defenses always failed in those specific fact examples, but there were people who actually made those arguments for hijacking cases. It's a great illustration, though, to see the problem because essentially, you know, at bottom, the defendant says, I need to introduce other classified information to defend myself. And the government says, whoa, whoa, whoa, that's a line too far. We are not willing to have that introduced. And the gray male there comes, well, your choice then, government, is...

dismiss your case or figure out a way to let this be introduced. And that's really what SIPA was designed to address, that very problem, as you said. And the Trump case,

Because as you mentioned, we're dealing with 31 documents. And, you know, you saw on the right, people would argue, 31 documents, why are they listing each separate document out? And it's true, the government could have included all 31 in one count if it had wanted. But it also could have included something like what 300, whatever number of classified documents that were recovered from

from different locations and put those in charges. And there clearly was, and we may never know in history of our lifetime, what all of these documents were and why some were determined to be included and others not.

But the fact that there are others out there, as well as because we're dealing with a former president who will see what his memory is like, does he remember what else he saw that might have been classified during the tenure of his presidency? There's clearly other information where the former president and his legal team could make waves and problems for this criminal proceeding by saying,

I need this other information outside of the documents that were retrieved from my location, because let's just say, and we can get into the details, I declassified it or it's relevant in some form or fashion, which they would have to produce to the court in camera. So outside the public eye to show that, you know, X, Y, or Z didn't take place or did take place.

And that may be one of the reasons why there's 31 documents, in fact, so that the government can withdraw 19 of them and still be left with 12 of them for an actual trial. I've thought about that myself because, you know, you could do this with three or two or one, but this gives them some wiggle room if they start having some problems with some of these to just jettison some of those counts. And it's not really going to ultimately change things.

But can we back up just a little bit? Because I want to get into how the act will handle these issues. But before that, we get a lot of questions, Andrew and I, about clearances. Like, does the former president have to have a clearance now? And how do his attorneys get clearances? And how long does that take? And I will say, when you are the president, you don't have to go through the same

process that all of us have gone through, filling out this very, very lengthy form and having a very, very extensive background check done of you. That's what the rest of us have to do, including when we are high level government officials to get background clearances. But when you're president, it comes automatically. And same with being a judge. When you're the judge, it comes automatically. So Judge Cannon did not have to go through that process and neither did Trump when he was president. But

What about everybody else, Mark? And what about Trump now that he's not president? So these are the kinds of people, by the way, it's like, what about the grand jurors, the trial jurors, the defense lawyers? Do they all have to go through clearance? Like, how does that work? So strangely enough, because I've never understood this part of it, the grand jury or neither the jury receives security clearances, yet they get access to the classified information if any is introduced.

in part of the proceedings. And they'll be admonished by Judge Cannon as to what they're

limitations are and adherence to the law, etc. And I've never heard of any case, actually, and there may be some out there, but I've never come across a case where a juror then revealed classified information in a later date or time. It's a strange situation, I think. Now, defense counsel, yes, every one of them who will have access to classified information must have a security clearance. In fact, there was a case where the lawyers refused to

to get a security clearance and argued, you know, it was against the rights of the defendant and the judge rejected that. So if you want access to classified information, you have to be processed for a security clearance, which means you fill out an SF-86, standard form 86. That's the National Security Questionnaire.

You have to have a background investigation where there's a favorable adjudication of you for trustworthiness purposes. And then you have to sign proper non-disclosure secrecy, non-disclosure agreement. It's the same thing. All three of us have gone through the exact same process multiple times before.

And it doesn't matter what the different levels are of your access, whether it's secret, top secret, or TSSCI, sensitive compartmented information. There is actually one document of the 31, it's 17 or 18, that is entitled with formally restricted data. That's actually under the Atomic Energy Act. That's governed by the Secretary of Energy, the Energy Department. That would be a Q clearance document.

A Q is equivalent to top secret. Again, it's the same adjudicative guidelines, but I had an Espionage Act case which had the different varying documents, including an atomic energy document. And so we had to sign a separate NDA with the Energy Department for purposes of that document as well. An NDA is non-disclosure agreement. Yes.

Sorry. Yeah, no, it's all right. It's like the land of acronyms is Washington, D.C. It's like you get there and it's like that's the first thing you need is a cheat sheet on all that. I thought I got in pass where I did that, but I guess one slips every so often. By the way, you know, there's this great story about Janet Napolitano when she was head of the Department of Homeland Security.

She challenged her entire staff if they could go through a meeting with her without using an acronym, she would buy them a case of beer. And the rumor is that she never, ever had to pay up.

because nobody could get through a meeting without doing that. Yeah, sad. Let me just, a supplement, because to answer that, because the president of the United States, former president Donald Trump, good question. I have a feeling throughout the course of this trial and the pretrial hearings in particular, because that's really where the meat will be, we're probably going to go and say very often,

We actually don't know what will happen with that because this is the first time it has ever happened. We've never had to figure out, well, what would a defendant who's the former president who never had a clearance, as you correctly articulated, but had authorized access as the commander in chief?

you know, there are many cases where SIPA is used, where the defendant never gets access to the classified information. And, you know, it's pretty obvious why terrorist cases, the drug running cases, you know, these guys never had access to classified information, but their interviews of them are classified. Uh,

The agents who worked on it, how they got to the case is classified. There's lots of possible classified information, and it comes down to relevant and admissibility. I would imagine Judge Cannon or the magistrate judge is going to allow former President Trump to review these documents as needed, perhaps under the supervision of his defense counsel, particularly because even though he might not have ever seen the documents, he

Even though they were in his office, he had authorized access to all of the information that was in question. But, you know, we'll have to wait and see. I think that's likely. And under SIPA, defendants, what they are permitted to see, they don't have to get clearances to see. So this will, as you say, come down to what a judge thinks is

Donald Trump should have the opportunity to review, but I think it's 100% certain it would be only under the direct supervision of his defense counsel because Magistrate even issued that for the non-classified. More prosecuting Donald Trump government secrets at trial in just a moment.

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Mark, let me ask you this question. With respect to getting clearance and also reviewing the material and making motions, how much in your experience does this delay things? What are we talking about? Because I know everyone has got on their mind how much delay could be entailed by this clearance process, both the getting clearance, reviewing stuff, making motions. What's your general experience in this area?

So most of this is going to be in the hands of the district judge and the magistrate judge as to the timing. Now, that's not with respect to the security clearance per se. I mean, I had a district judge in D.C. in a civil case which involved classified information order the government to process me for clearance in 10 days. That was 20 years ago, and I just laughed.

even 20 years ago, because that just wasn't possible. The government just can't function that way. They never do it. And that took months. I had a case just a couple of years ago where I was processed for TSSEI, again, civil case, but that even took months.

two, three months or so to get me processed. And I had already had an existing clearance. So I imagine the executive branch will obviously expedite it. It really depends on what's in each of the defense counsel's background. If there's anything that's a hiccup, that could delay things further. But we'll have to see. But with respect to the proceedings, the proceedings themselves, it could significantly delay the

the trial weeks or months. And that's simply with Judge Cannon ruling on items as to whether what's relevant, what's admissible. Let me interrupt you there, Mark, to just make sure we do get into sort of the heart of SIPA. So there's a couple of things that I think it's directed at, and that's exactly why I think you're right. This could really result in some serious delay. And one is it's directed at the whole discovery process, right? The process of

the government providing to the defense counsel and potentially to the defense the things that the government is obligated to provide under the rules of discovery, as well as under the Constitution, under the Due Process Clause, and anything that might be exculpatory or impeaching. So it provides a framework for litigating in what form things can be disclosed. There are actually

processes where the government can say, I understand defense is entitled to this information, but I don't want to hand over the classified document. I'd rather substitute a summary or some other substitution. And they'll litigate about that.

Then there's another piece of SIPA. I mean, there are many pieces, but the two basic ones I want to focus on are like, how do you make sure you comply with the defendant's due process rights? And then the other is the government, even just to prove up its 31 counts of mishandling classified, is going to have to prove to the jury that each of those documents included national defense information. And in doing that, they're almost certainly going to have to reveal the

the classified information to the jury. And SIPA also provides some protections for how to do that without necessarily making public every single thing that's classified. So that's, I think, part of why we worry this will really delay things, because those are complicated issues. Do I have that generally right, Mark? Yes, I think so. And this is where, when folks ask, how can Canon impact this case? This is where

Even the littlest decisions involving one document and the admissibility of information in that document could drastically delay the case. Now, there's the process that will take place before Judge Cannon, but let's just jump right ahead for one second in this.

This statute has a unique function that doesn't typically happen in other criminal cases where if Judge Cannon rules against the defense...

The government under Section 7 of the act has an immediate right to go to the 11th Circuit and hear that appeal before the trial. It could be the day of the trial and they could still be fighting over substitution of information. And if the attorney general weighs in and says, nope, I prohibit it.

then either the case could be dismissed or the government could take it up on appeal. Now, in the case of a former president of the United States, would one expect the judges at all levels to expedite it? Sure, you would think so, but we'll see. And certainly the 11th Circuit, with respect to

Judge Cannon and the investigation did act very quickly. So at least there's that data point. All of this discussion about the motions and the decisions by Judge Cannon, can

Can we expect the public to be able to see all of this? Or essentially, we're all talking about SIPA and what's going to happen, but essentially a veil is going to be put down. And we may know that things were filed. We may see that there's an appeal, but we're not really going to have a lot of insight because this is something that's happening under seal so that the parties know it, the court knows it, but we're just sort of speculating as to what exactly the fight's about.

Yes, most of this we will not know anything about. This is all done in camera, meaning just before the judge in a sealed courtroom. You know, there may be times where it's ex parte, where even the defense wouldn't know. Defendants and counsel complain about this statute because it actually requires them to

forecast their defense, or at least part of their defense when it comes to the classified information, before going to trial in order to show or request, this is the information I need, and this is why it's relevant, because I'm going to make

X argument, which then gets determined by the judge to be whether it's relevant and admissible and subject to other evidentiary grounds and rules, etc. And just to be clear, in an ordinary case, and the cases, you know, other than the classified information related cases that I prosecuted, we never got that as prosecutors. You guessed what the defense was going to be, but you didn't get a

preview the way you do under SEPA. I think that's one of the key things about SEPA, because this concern about the government and the defense both having due process rights and the defendant being able to use evidence in their defense is one that happens in every case, regardless of whether it's classified or not.

But what this basically does is say, because we're concerned about the defense just spilling out classified information, we're going to have pretrial litigation. And having done defense work for a minute and 32 seconds, that's like your basic tool.

is like a lot of times surprise is your tool that the government doesn't know. But Mark, I wanted to now tell my anecdote because I once was on the defense side and dealt with the SEPA statute. And it's relevant to what you said about the fact that at times something's done ex parte, meaning the government is with the judge making arguments, but the defense is not included.

Here's my story. So I have left the FBI. I am now a defense lawyer. I still have not just top secret clearance. I have the same clearance level as the FBI director because I was the general counsel. So in order to advise him, I had to have the same level of clearance. So I'm in court. I have clearance. There's a discussion about

various classified documents, and the government says, okay, now we're going to go talk to the judge ex parte. And I'm like, well, I think since I have clearance, I'd like to be part of that, to be heard. And I have just as much clearance. And matter of fact, judge, I have a higher level of clearance than anyone in this courtroom, because I actually...

still had all of my general counsel clearance. And the judge just looked at me like, nice try. And there was like, and you're going to stay outside. And so there is this unusual aspect where defense counsel can be, I'm not saying this about myself, but you could have very reputable counsel like you, Mark,

with top secret clearance, and you still are not allowed to be part of those discussions. And that just seems to be sort of standard operating procedure. I have many of those stories where I've been kicked out of the courtroom or proceedings.

because the government, notwithstanding my clearance level, will allow me access to information. Right. And they're thinking you're a nice guy and you're reputable and you're not going to leak and all of that. And it's like, and you're outside. Doesn't matter. Right. Doesn't matter. And just to be fair, the government's argument would be there isn't necessarily a need to know with respect to the specific documents. So having the

clearance is sort of an umbrella, but it doesn't necessarily mean that anybody should be seeing a specific document unless there's a need to know, which is a part of the way the government deals with documents. So even if you have clearance, it doesn't mean everybody, the FBI, for instance, should see a document. There has to be a need to know in addition.

Mark, can I ask you a question about getting a little bit into the weeds? So we've got these 31 documents, by the way, in case you didn't think we were in the weeds already. Right. So what would be a potential argument for why the defense would want to see or could make an argument to see more than the 31 documents? Like what kinds of arguments would there be that might have some validity in your view of

or at least a 1% chance of prevailing. Part of what we've all been saying about the Trump legal strategy is going to be delay, delay, delay. And that means bringing any motion

They potentially can that has any aspect of viability. So a 1% success rate might be a good way to describe what some of their motions might be like. But the reality is being down in the Southern District of Florida has an advantage for Trump beyond perhaps the jury pool, certainly better than it would have been in D.C., but particularly because

The Southern District of Florida and the 11th Circuit don't have a lot of experience with SEPA cases. They have had some, but Judge Cannon has had none, and not many 11th Circuit cases in the last 40 years, even in the last 10, 15 years. So that means certain arguments that would have been valid

potentially foreclosed or at least settled law in the Eastern District of Virginia, Fourth Circuit, D.C. Circuit, are open for grabs down in Florida. At least you can make the argument and not have to worry about a frivolous motion type situation. So he has actually greater wiggle room to be innovative, so to speak.

If I were the defense team, I'd want to see every document that was confiscated, seized by the U.S. government, because I want to know and get a figure of what's the difference between one document versus the next. There could be another document that has virtually the same information in it substantively, but maybe was sourced differently.

Maybe something came from a technical source. Maybe one came from a human source and they excluded the human source document because the human's still alive. Maybe the technical source has been compromised. So that's why they included it as the 31. But

But that possibly could be grounds for Trump to at least push, not saying it would be successful, that they want to include why the government made certain decisions that it did with respect to choosing the 31. They may try and bring up other issues.

events and circumstances that Trump was involved with as president that peripherally, factually deal with the subject matter content to try and paint a better picture. They will argue most likely context. Context matters. I need to be able to explain why this document exists.

is not sensitive. Let me tell you about these other things. Or not closely held. Or not closely held. Yeah, because one piece of proving something is national defense information is that the government took measures to protect it. And oftentimes classification goes pretty far, but suppose you classify it and then you let, you know, 2 million people

see it, that starts to be something that can erode things. And I know that's oftentimes part of the gray mail. Trump could argue, I used to disclose that same information every trip I went on with a foreign dignitary and the government and the other agencies, they know that. And I want to prove, I want to discuss that. I want to tell people I met with the president of so-and-so country. And I said exactly that information in document 14, you know, whichever document it might be.

Another reason why do you have 31 documents, right? If we have to get to a point where the government says, fine, we're not doing that one. We're not doing that one. Let's slim this case down. We got to get to trial. We're going to get down to a smaller amount. Um,

I think you've given us a lot to chew on, and I don't want all of our listeners to think, oh, my gosh, it's hopeless that this case will get to trial before the election, because I don't think it's hopeless. But I do think it will require a lot of work on the part of the government, the defense attorneys and the judge being committed to moving things along. I do think it's encouraging that the judge has.

rapidly issued orders in this case, even before having the parties in front of her. But she hasn't issued any substantive rulings yet or any rulings on even timing for motions, any extensions or continuances. So it remains to be seen her impact on the timing of all of this.

One of the things, Mark, that's just been super valuable is giving us a sense of what might be happening behind the scenes. Because as you said, we're not going to see a lot of this. We may see scheduling orders and get a sense, but we won't know why there's been this delay. So this is an incredible primer.

on SIPA. And we'll see if something surfaces where there's some flesh on the bones as to what you've been talking about. But thank you so much for joining us. Sure. It's my pleasure. And we may get some further insight into what's going on behind the scenes, since it seems that every time one of Trump's lawyers get fired or quits, they start going on television talking about legal strategy.

So maybe we will get some inside information. And certainly Trump himself is a leaky sieve. 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 the show is Alicia Conley. Jessica Schrecker is a segment producer. Our technical director is Bryson Barnes. Jim Maris Perez is the associate producer. Aisha Turner is an executive producer. 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.