and join us for Morning Canolies with Jim Santel.
You don't know me, but I'm your brother.
Sampling the news desserts of the week,
here is your host, Jim Santel.
Good morning.
This is Jim Santel.
And yes, indeed, I am your host for this hour
and next hour as well here on our Saturday morning broadcast.
I am honored.
I'm delighted to have each and every one of you with me this morning,
as we once again pursue some of those most important issues,
those new items, those factual developments
in the areas of law and government
and the aspiration for justice in America.
We're coming to this morning live from the broadcast studios of WAUK,
the Shaw in downtown Waka Shaw,
but we are broadcasting throughout the broadcast network of civic media,
throughout the state of Wisconsin.
Not only are we live this morning,
but this broadcast is also repeated on Sunday mornings,
the same time period, perhaps 24 hours dated,
but nonetheless, hopefully,
topical and focused upon the issues that you want to hear about.
And as always, as always, this morning,
we're taking your phone calls,
your questions, your comments, your inquiries,
here on the broadcast, that number is 844-967-2789,
we already have a couple of callers we're going to get to in this hour
to engage with you on those important questions and inquiries
on the syllabus, the academic approach of our day.
And indeed, as always, we have an ambitious but achievable agenda
for this hour and next always asking, always asking,
and hopefully, always answering as well,
three principal questions.
What happened?
What do we know about this?
What do we know about the facts of an event of this past week or weeks
or even months?
What happened?
What are the facts?
What are the things that we know for certain?
And based upon those facts that we know,
why are those things important?
Why are they relevant?
Why are they significant in understanding the world in which we live,
our nation, our community, our neighborhood?
And finally, in many instances, not all, but many instances,
what do we do about those things?
We never tell you how to react, how to respond to them,
but if there are appropriate reactions to make,
to pursue actions to undertake on behalf of the things that you have identified
in your lives, understanding why they're relevant,
what kinds of things are available to you,
as options as citizens of our community, of our state, and of our nation.
What can we do going forward to address those things,
the good, the bad, and things in between to make our world a better place
for all of us as a part of a larger community this morning?
As always, we do have that very ambitious,
but achievable agenda focusing, focusing upon some major news events
and what a week it has been in the area of law and government
and, yes, indeed, justice in America.
We could not get through the day.
In fact, the feature principally of this hour and next
is going to be focusing upon those things happening in the courts,
principally, the federal courts, but not exclusively,
the federal courts of our nation.
We're going to be spending some time talking about this major oral argument
before the United States Supreme Court just this past week,
determining whether or not candidate Donald Trump, former president,
Donald Trump, will remain on the ballot,
the Republican primary ballot in the state of Colorado.
You have heard all about that during the course of the last several weeks
and even months, major, major oral argument this past week.
In a case that is important not only to Colorado,
playing the rest of the nation, I would offer that as significant
as that oral argument is.
And yes, indeed, we're going to make the very easy prediction this morning
as we have in the past, but what the Supreme Court is going to be doing
in respect to the challenge by Donald Trump to his removal
from the Colorado ballot.
We're going to make that prediction again with almost,
almost absolute certainty, but what the Supreme Court is going to be doing.
In addition to that, however, we're going to talk about two other cases
that are arguably, arguably even more important.
One of them has to do with this immunity issue that's pending right now
before the DC Court of Appeals.
The DC Court of Appeals finally after about a month of deliberation
and review of the merits of this challenge by the former president
to the criminal prosecution against him pending in the trial court
in the District of Columbia, this challenge to that prosecution
based upon his belief, his legal, his factual argument
that he should be immune from any sort of criminal prosecution
by virtue of the fact that he was once the president of the United States of America.
Executive or presidential immunity decided, finally,
this past week by the DC Court of Appeals, a three-judge panel,
we'll talk about what those judges said
in their sweeping order that made clear, as we have said before in this broadcast,
how simple and how frivolous this argument is,
they adopted basically that position and said there is no there there.
And we're going to talk significantly about what's going to happen next,
something is going to happen on Monday in connection with a possible appeal of that decision
to where?
Yes, indeed, to the United States Supreme Court
we're going to talk about the options that the Supreme Court has.
There are three in number, once Donald Trump predictably files his petition
for a rift of Sir Sherrera, this coming Monday.
We're going to talk about what the Supreme Court has on its docket,
then that's the second matter.
And we're going to also talk once again as we have talked before
about this major case involving a gentleman named Fisher, FISCHER.
It is flown wildly under the national radar,
under the news headlines of America, but I would offer, as I often do,
that this kind of case is among the three that is among those significant cases
when it comes to the political environment in which we're presently living,
having to do with whether or not a particular statute in the federal criminal code
is the proper predicate, the proper basis for charging about 120 even more people
who have been charged in the insurrection on January 6th,
relevant to Mr. Fisher's case.
We'll tell you more about the background of that,
how a lower court basically sided with Mr. Fisher and appeals court,
the D.C. Court of Appeals overturned that decision,
now pending before the Supreme Court to decide whether or not the government,
the United States Department of Justice and the U.S. Attorney's Office
in the District of Columbia has properly invoked this statute
to find that indeed Mr. Fisher's conviction should stand,
relevant why, relevant because that statute is also the same one
under which Jack Smith, the special counsel, has charged Donald Trump
in his own discrete prosecution, also pending there in the District of Columbia,
also related to the immunity issue,
last going on, their last one pack there, and again, Fisher.
We're going to spend some time chatting about why that among these three cases
that are pending or may be pending soon,
whether the Supreme Court are going to animate a lot of what we're thinking about
this coming year in this political environment.
We're also going to be focusing throughout today's broadcast on this continuing notion of time.
I believe that during 2024 as significant as the substance
and the focus on the content of all these arguments and the political
and legal machinations is, as important as all that is,
the most significant theme we're going to be hearing about repeatedly is time.
What is the timing by which decisions are made,
jury's return verdicts, cases are indicted, cases are postponed,
and indeed the interweaving of that with the political environment
and the political schedule that brings just now underway as primary elections
across the country get underway, including, including right here in Wisconsin
in early April.
We spent a lot of time talking about that relationship between timing,
things in the courts, and things going on in the political campaign in 2024.
Necessarily, necessarily, we're going to also, as a part of that,
be talking a bit today about Eileen Cannon.
She is the Federal District Court judge, not in the District of Columbia in Florida.
She is the one who's presiding over one of the two,
one of the two federal criminal cases pending against Donald Trump.
The one being prosecuted by Jack Smith in the District of Columbia,
focusing upon the insurrection, the attempt to interfere with the 2020 election results.
That is the one that's pending before the judge in the District of Columbia.
Her name, Tanya Chetkin, is her order that's right now being the subject of review
by the DC Court of Appeals.
Eileen Cannon presiding over the other case, also being prosecuted by Jack Smith.
This one in Florida, in a District Court, a trial court in Florida.
This is the Mar-a-Lago documents case, alleging basically, again,
in several accounts against several defendants, not just Donald Trump,
but others involved with him, not only in taking, but also retaining,
using banding those documents about for public display,
all those allegations now in front of a Federal District Court judge,
their Eileen Cannon in Florida.
She made some major decisions this past week.
They're going to have a major impact upon the future of that litigation pending.
We're going to talk about a decision she made in connection with some witnesses.
And the threats right now being bandied about, being hurled in the direction of witnesses
who might be a part of that trial.
The response by Jack Smith, the special counsel's office,
and his objection, his objection to what she did in terms of failing,
refusing to permit, permit the production of information about
those witnesses, not to be disclosed in the public domain,
not to be provided in the public domain.
Why to protect the integrity of the process, to ensure that those witnesses
are indeed safe and secure.
We're going to talk about that when we talk about her history as well,
even in connection with her past involvement with, yes,
the 11th Circuit Court of Appeals.
You remember well that she was the judge whose order in connection with
search warrant at Mar-a-Lago went up to the Court of Appeals,
the 11th Circuit, and sent back to her, sent back to her with strong instructions
that she needs to dismiss this case, that she has no business engaged in the pre-prosecution,
the pre-charging review and investigation of that case.
She has now got the substantive prosecution in front of her, randomly assigned to her,
probably once again going to go up to the 11th Circuit as Jack Smith quite animated
about what she did just this past week, and connection with this witness issue
will talk all about that.
And then finally, finally today, a couple more things in the environment generally.
One of them has to do, of course, with the report issued by another special counsel
in connection with the documents involving the current president, his name, of course, is Joe Biden,
releasing report this past week that finds not at all, surprisingly,
that there is no criminal intent.
There was no intent at all, no willfulness, no purposefulness by the president,
during the time when he was the vice president and resumed his federal service as the president,
no intent in taking with him, holding, and perhaps even storing in his office in Washington, D.C.,
and also at his home in Delaware, documents that he should not have had.
And so determining this past week in this major report from another special counsel
if there will be no criminal prosecution, we'll talk about why that's entirely appropriate,
given the absence of a willfulness element in this, but also the thing that's animating a lot of discussion
in the day or so since the release of that report, that is this finding along the way.
Contrary I will offer to you to the fundamental notions of Department of Justice
about what you comment about in connection with the witnesses and those kinds of things
that animate the final decision, all of that, all of that, and much more this morning on our broadcast,
I'm going to encourage you not only to call in, but also to engage with me,
even beyond the calling show this morning in these important topics,
because this morning, this morning, we are coming to you in the wake of these major issues
in American jurisprudence having to do with all these cases and the campaign as well.
When we come back, we're going to talk more about the Supreme Court and all those cases
inviting your participation as well.
Thank you very much.
And we are continuing this morning our discussion of all things Supreme Court and more.
Beginning right now, beginning right now with this major oral argument that has been on top of the headlines,
newspapers and media outlets throughout the nation focusing on this major issue.
Again, I'm going to pass up the notion that it's important as this oral argument has been
and it is predictably going to result in placing Donald Trump back on the ballot in Colorado.
And these other cases that are pending before the Supreme Court are shortly will be pending
before the court are actually the more important ones.
But let's take up that case, that oral argument pending in front of the Supreme Court just this past week.
Where does this come from? We have spent a lot of time. You know it well now, right?
This is the 14th Amendment Section 3 that basically says that if you've taken an oath of office to serve the government
and you subsequently engage in insurrection or rebellion against the same, you are not entitled to continued or renewed government service.
That is my articulation of a much more appropriately constitutional language in the Constitution itself.
That is the section. That is the section that Colorado was recently wrestling with,
including a lower court judge that had a trial on whether or not Donald Trump had number one engaged in insurrection on January 6th.
And second, whether or not that particular language of the Constitution Section 3,
14th Amendment applies to him as the president, the lower court finding, as you may recall,
that yes indeed there was an insurrection, that yes indeed Donald Trump took part in that insurrection and even was a major author and animator of it.
But found in the end that because of the language of the section of the 14th Amendment that talked about officers,
that Donald Trump is not an officer. It was not a president, but not an officer, kind of a head scratcher for many of us out there.
Indeed, the Colorado Supreme Court taking that up then, this is the state Supreme Court found not only that Donald Trump had engaged in this insurrection,
but that the 14th Amendment does apply to him and through him off the ballot, through him off the Republican primary ballot coming up here on Super Tuesday.
That's the case. That's the case that then went up upon Donald Trump's petition,
a writ of surcharerai that is this request to the Supreme Court to hear the lower court.
We know into the Constitution, that's one of the bases upon which you can get to the Supreme Court,
which is if there is a decision of the highest court of a state, that in fact can be appealed to the United States Supreme Court.
Indeed, they granted, they granted that request, that petition for a writ of a surcharerai and they heard that oral argument just this past week,
a major argument, the upshot of it, the headline which you have also seen unmistakably,
the Supreme Court is going to put Donald Trump back, back on the ballot in Colorado.
We have predicted that before on this broadcast and other broadcasts of civic media, not a surprise given the merits of this case.
Although I want to hasten to add this, that if you read, if you read the Colorado Supreme Court, again, a Magnum Opus reviewing in great detail,
the trial court's decision, you will be compelled.
And in a world perhaps of perfect facts and perfect justice and perfect legality, you would be convinced,
I believe, that yes, there was an insurrection, that yes indeed the language of the 14 amendment applies to this,
and that the Colorado Supreme Court got it right on the pure merits of this.
In that kind of perfect world, that order, that decision that I commend to you for reading is compelling reading.
Regrettably, regrettably, that decision, that assessment, if you will, by me is not the one that's necessarily going to dictate how the Supreme Court resolves this.
And indeed, it appeared that virtually all nine justices in ways great and small just this past week during the course of this oral argument were likely presumably almost certain to reject this challenge to Donald Trump's eligibility to serve on the ballot coming up here,
based upon the January 6th event, the Supreme Court in several hours of discussion with the attorneys for the Colorado petitioners, these are the folks who petitioned initially to keep Donald Trump off the ballot,
and the attorneys for Donald Trump who were seeking to have him replaced, returned to that ballot, put back on that ballot, a huge amount of fascinating oral argument between the attorneys and the members of the Supreme Court.
Some justices obviously seizing on different, different events, interestingly, very little of this long discussion focusing upon the central issue that I suspect much of us would be focused upon as is the order coming out of Colorado, which is whether or not this insurrection happened and whether Donald Trump participated in it.
That particular issue is not really the subject of a lot of focus by the justice is the Supreme Court, that is the issue of insurrection itself, a little bit on that we'll get to that from John Roberts, and also the president, former president's participation in that, but a lot of issues we've been calling off ramps if you a lot of procedural issues, a lot of issues about the consequences of the Supreme Court keeping Donald Trump off that ballot.
Indeed, in the end of my own sense that my tea leaves reading from that oral argument that probably the majority of the Supreme Court will make the decision to put him back on that ballot just because of the concern about about having this patchwork of states out there, some of which may indeed have Donald Trump on the on the ballot, some of which will not that was articulated by more than a few of the justices as well.
Some also seemed open to two other arguments that is that the post civil war prohibition, which is in the 14th Amendment, that that bars candidates from holding office, as we said, as opposed to running for it, and that those are two different things holding office and running for the kind of argument that perhaps only lawyers can love.
And the president, as the lower court found in Colorado, the president is not among the officials to whom that provision specifically applies.
John Roberts, the Chief Justice, I just mentioned him, asked a series of questions reflecting what seemed to be this emerging consensus once again probably coming out of an opinion fairly shortly.
The 14th Amendment was not meant to permit individual states like Colorado.
We know that Maine is also arguing about this issue right now, the main decision on hold while this Colorado opinion is resolved.
The 14th Amendment not meant to permit individual states to determine whether a candidate was ineligible and again not only based upon the inconsistencies and from state to state,
but also this notion that there should be should be review by a federal authority and not a particular state.
The whole point of the 14th Amendment was to restrict state power.
And that's the question that John Roberts asked the attorneys, adding that the challenger's contrary argument was, as he said, a position that is at war with the whole thrust of the 14th Amendment.
That is a justice who's plainly not buying into the position of the Colorado petitioners, keeping Donald Trump off.
Justice Roberts noted that the position that they were advancing would have empowered the former Confederate states to determine whether candidates were disqualified from holding federal office.
He's going back to history, which again was a subject of a lot of the argument back and forth, including argument from Katangi Brown Jackson and some of the lawyers as well.
Using the men was adopted to constrain states rights and empower the federal government, the chief justice says.
And it would be as he said, the last place that you look for authorization for the states, including the Confederate states to enforce implicitly authorized to enforce the presidential election process.
That once again from a chief justice, one of the nine votes that plainly is going to return Donald Trump to that ballot.
Justice Elena Kagan also has some significant things to say. And when we come back when to talk more about Justice Kagan and Katangi Brown Jackson and Brett Kavanaugh and all of the others just this past week.
And we are talking this morning about all the things Supreme Court related, including, including comments made by the justices of the Supreme Court in connection with this major oral argument before the court, Justice past week, plainly, plainly unmistakably, the chief justice John Roberts coming down on the side of the federal government, saying the states should not be able to direct a national election of this sort.
He was joined by that view in the statements made by virtually every other justice was also part of the questioning Brett Kavanaugh reviewed what he said was the relevant history and concluded in his words that Congress has the authority here, not the states. He specifically said that the challenges position that Mr. Trump may not be on the ballot as he was describing it was intention with democratic principles, especially given the provisions in determinant quality.
What does he mean by that he wanted to say this? He said in trying to figure out what section three means and the kind of extent of his exclusive language or vague language. What about the idea that we should think about democracy?
Think about the right of the people to allow candidates of their choice of letting the people decide because your position, he said, has the effect of disenfranchising voters to a significant degree. He's directing that position.
Of course, the people who want to keep Donald Trump off of the ballot in Colorado. Interestingly, the chief justice, Brett Kavanaugh others joined by others on the other side, if you will, of the political aisle, Justice Elena Kagan also expressing concern about granting individual states way too much power over as we've described them the national election. She said this.
She said, I think that the question you have to confront is why a single state should decide who gets to be president of the United States of America against Cratchinger said she said, why should a single state have the ability to make this determination not only for their own citizens, but also for the rest of the nation.
And yes, indeed, Katangi Brown Jackson, the junior, the sophomore, the freshman member, if you will, of the Supreme Court said she doubted the drafters of section three intended to create a she called disuniformity in this way where we have elections pending and different states, suddenly saying you're eligible and you're not.
And indeed in connection with his general issue of insurrection, the chief justice went back to some of that issue and raised the concern about the definition of insurrection generally said insurrection is a broad, broad term. And if there's some doubt about it, he said, I suppose that will go into the decision and then eventually would be deciding whether it was an insurrection when one president did something as opposed to when somebody else does something else.
And what do we do? Do we wait until near the time of counting ballots and sort of go through which states are valid and which states aren't he said that was a recipe for chaos that language actually somewhat troubling some reminiscent of what Donald Trump himself is saying on the campaign trial trail.
Undeniably, however, a part of this overall voice coming from probably virtually all the members of the Supreme Court is going to return back and say to the folks from Colorado, no, you got to put Donald Trump back on the ballot.
The chief justice saying for the Republican candidate, you're off the ballot for the Democratic candidate, you're on the ballot and it will come down to just a mine, a high and family handful of states that are going to decide the presidential election.
He said that's a pretty daunting consequence, my own sense again, the sense of anybody who was listening to that oral argument, the Supreme Court is going to overturn the Colorado Supreme Court.
Donald Trump is going to get a win if you will on this particular issue, not others coming up, but on this particular issue entirely possible along the way that the Supreme Court is going to come to a common judgment overturning with the Colorado Supreme Court has done.
But maybe getting there in different ways, as I said, there are different off ramps here, some procedural issues they can raise and it may well be that we're going to get an opinion very soon in which all of them agree on the result, but come there in a different way and so we're going to get what are called concurring, agreeing opinions, everybody at least two or three of them or maybe four or five of them writing together, but all of them in the end finding finding the Colorado decision needs to overturn Donald Trump goes back in the ballot.
We don't know for certain, of course, until that day that the Supreme Court issues that opinion, this one can't wait, this one can't wait until mayor June again, the theory of the entire year, the theory of our discussion this morning, tick tock time is important.
If this is one of those situations where the Supreme Court now has this case under advisement, it could issue its opinion any time now, unlikely it's going to be Monday, but it should resolve this issue promptly because once again, super Tuesday coming up for Colorado and many other states in this nation at that time, people in Colorado and frankly around the country need to know who's on the ballot and who isn't including back in Maine, where again, the Secretary of State's position that he should get off the ballot was suspended by
the Supreme Court in that state pending the result of the case, Trump versus Anderson. That's the one coming out of the state of Colorado. We will see what the Supreme Court does. And as always, we appreciate so much perspectives, insights, questions from our wonderful insightful animated listeners. I'm going to get to those right now. Thank you so much for waiting as we get through this first major issue on our dock this morning. Susan from Brookfield. Susan, thanks so much for being with me this morning.
Good morning, Jim. Good to have you with me, Susan. I have a kind of a little off topic or perhaps a little bit late on my question, but I have recalled that shortly after the election, they had changed the rules and how they calculate the counting and everything for the ballots.
I was looking to see if I could find out just what it was that they had done because I and I was unsuccessful at that. I thought you might have some recollection of that. The second thing about that is that we will be having a Democrat being the person who is in charge of counting the election for the for the next election.
And I'm just wondering at this point, what else are they going to be able to try to pull because there are a lot of the things that they seem to have focused on like the electors being illegal electors and stuff like that. That's kind of been cut off as an avenue for them getting their own way. And so I'm curious as to what people may think are the likely ways that they're if and I do believe the Trump is going to lose the electoral vote.
But you know, we all know he's going to try to pull something. So I'm just interested. You might have any thoughts on the matter. Absolutely. Susan, great thoughts and great speculation. That's what this year is all about to what's going to happen. We don't have a crystal ball. I certainly don't I suspect your perspectives are even better than mine are, but yeah, a couple of things pulling out of that, plainly in the wake of the debacle, which was January 6th, restored. We're stored again by not only Nancy Pelosi, but Mike Pence together. We recall them very well.
Late in the night still insisting on going back to count those belts and the wake of that legislation did pass. I think that's what you're making reference to to ensure that some of the counting is clarified.
So the next time around those kinds of things in their minutia and in broad issues generally are not quite as confusing as they were before.
More centrally, your other issue, having to do what other options are out there. We do have two different players now coming up presumably next next January when the electoral votes are counted and they are playing the president vice vice president.
And her name is is obviously our president of ice president and she is going to be counting those those ballots on a regular basis during the course of that process with the president speaker of the House of Representatives.
And his name of course is Mike Johnson. And so the two of them, one Republican, one Democrat, obviously very in front of the entire Congress on that day.
Well, then again, as they did before, open up those those ballots, open up those electoral votes. Now one of the issues, of course, is all sorts of constitutional provisions out there, but what happens if indeed neither one of them gets the necessary majority.
And there you've got all kinds of constitutional provisions that have to do with the the constitution of particular delegations from the states and how those are counted.
That is an option. All sorts of things could in fact happen during the course of that proceeding. And again, creativity, creativity is not in low supply these days when it comes to machinations, but we will have we will have plainly two different players.
But again, a Republican and a Democrat one would hope when would hope Susan to your good point that there would be a an understanding about legitimacy of the voting process about those kinds of things will have to wait and see as January comes around lots of different things out there.
And I would like to think in connection with your reference to the fake electors, we know now that there are least three states, the attorneys general, these three states have begun to prosecute those people who attempted to affect the kinds of things, the votes that were in front of Nancy Pelosi in front of Mike Pence on that particular day.
That particular scheme will not work anymore, but what never knows and that kind of of initiative, if you will, to put in a positive sense, but really a dark initiative to attempt to to codifying ways that are not reflective of what the votes are out there.
That's the kind of thing that has to be pushed back against. This is all about Susan. I think it is in underlying your your principal focus here. This is all about ensuring that the votes of America, the votes of citizens out there in all the states, including Wisconsin, are properly counted that there is legitimacy to them.
We know beyond that, the last comment I would make about this, even the midst of some of the machinations, some of the invocations Susan that you talk about, we know in the end that the notion of voter fraud, that is the notion that people are voting illegally and properly, that simply doesn't exist in America.
And if anything, we're moving toward an even tighter system. And so the question is not so much what the numbers show. The question will be, are there attempts as you indicated Susan to pull things in your words that are not are not consistent with the voters want to want to do.
And so we'll think about that and look at that as that plays out in the coming year, certainly as electoral votes begin to be amassed in the immediate aftermath of the November election, the electors again, generally getting together in December following the general election. Susan, thank you so much for your comment and your inquiry about what other things might happen down the road here in our system.
Also, we have on the line this morning, Adrian from Madison, Adrian, thanks for waiting. Thanks for your call, your comment, your question this morning.
Now, it seems pretty clear to me that Trump is not really eligible to hold office again based on the 14th amendment and his actions, implementing a balance and correction on January 6th.
It also seems clear that the justice don't want to have be in position of deciding the election there or having the courts really involved in deciding the election they want the voters to decide the election.
So they're looking for any way possible to avoid making a decision that in essence decides the election in this case.
But the thing that I'd like to know when it drives me crazy, keeps me awake at night is why couldn't the justices have taken that kind of hands off approach in year 2000 and saved us to historical debacle of the W Bush presidency?
Bush versus Gore 2000. Exactly. That's what a flash in my mind Adrian as you were talking about this at that time, a Supreme Court, not at all afraid to not just wander in but jump head first into the political environment of that particular time and basically directed that the counting in the state of Florida stop, right?
We know in the wake of all of that based upon history and the actual math there that Al Gore won Florida by about 600 votes. It was razor thin, but he actually did win that state should have gotten those electoral votes, but because of a decision Bush versus Gore interestingly Supreme Court in the course of its language in that case also says that this particular case has no presidential value.
Nothing about this case should be used in the future, basically saying we're making this one decision and it has no compelling lasting purpose down the road, but that's the kind of thing again the inconsistency some 24 years ago between what the Supreme Court did then and what it appears to be doing now.
And there is this doctrine out there called the political questions doctrine sometimes invokes and says you know what we shouldn't be involved in the federal government with with these kinds of political issues they do that a lot in the gerrymandering area and other areas of life in our nation political questions doctrine sometimes gives them some cover here once again at a minimum at a minimum as you're indicating Adrian, there seems to be some huge inconsistency there back in 2020 finding that indeed we can do nothing short of five basically determining who the next president is going to be.
Here here probably probably finding the Donald Trump remains on the ballot and if not vacating the field not addressing as you said Adrian the fundamental question, which is insurrection Donald Trump's participation in it that they're coming nowhere near and we'll see we'll see what they do in the opinion coming out fairly soon also have on the line right now a number of other callers going to take them right after this coming break, but right now we're going to be going to a number of different issues.
We're having to do with this issue of of eligibility on the ballot coming out of the Colorado case we're also going to talk in the future comments here in our settlement broadcast about this DC circuit case also much in the news and then finally picture versus the United States all of that coming up along with you and callers more on our morning broadcast.
And we are discussing this morning all things Supreme Court engaging in some wonderful discussion with callers already spoken with Susan this morning we raised concerns about what happens next when we have our vice president Kamala Harris and our our speaker of the house Mike Johnson counting the electoral votes presumably next January and that coming up.
Of course in the wake of the November election and the electors meeting one of the things can happen of the Constitution indeed I pose the possibility that if neither of the major candidates get some required number of electoral votes goes back into the house.
And the process there for counting by state delegations that's an option that's actually not not an undermining of the process that's the way the constitution is set up.
Susan raising concerns about other things that we have seen in the past electoral process the electoral cycle that would suggest attempts to undermine the very counting the voting process legitimacy of those electoral votes things people continue to monitor is Kamala Harris and Mike Johnson coming up in about a less than a year from now are doing that all important constitutional duty.
Adrian talking about the inconsistency between between what the Supreme Court appears to be doing now that is not getting involved in undermining upsetting in any way the course of the electoral process in connection with the Colorado ballot and what it did back in 2000 bush versus score effectively determining the voting should stop and the presidency granted to George Bush at that time.
Great colors great inquiries great perspectives to share more of that right now we've got Kurt calling in Kurt glad to have you with me on this morning program.
Good morning I apologize if someone already asked this question but wasn't it a little that asked why should one day be allowed to determine.
Yes yes absolutely it all right particularly what what frankly many other justices also articulated in ways more articulate and even less articulate basically saying why is it that Colorado basically dictates what happens to the entire nation if you will because plainly this Supreme Court undeniably says unequivocally says that Donald Trump can be off the ballot we know that there are.
25 maybe 30 other states out there not just Maine they're also looking at this same issue and it could create this patchwork and also also as Justice Kavanaugh said Justice so to my or said others said from the bench this notion that this is a state question a state question is opposed to a federal question the Chief Justice once again going back to the time after the Civil War when it was a termination made by the federal government not the state government about who is and who is not an insult.
And who should and should not be in government but it was similarly to among the others that we articulated this morning who share that concern my guess is between this state focus and the concern about confusion the chaos of the Chief Justice described that's probably the basis plan which most of them if not all of them are going to put him back on the ballot.
Great great comment great observation Kurt good good.
We also with us this morning Kristen Kristen her mock shot glad Kristen glad to have you with me again this morning as well.
Good morning Jim morning I can as you know as aggravating as it was to listen to the oral arguments I can almost understand how.
So if they would say you know one state can pick someone off the ballot then I can see other states ginning up reasons to kick other candidates off the ballot and we don't care.
However, the smallness of things that really bothered me was the way they twisted themselves I think into pretzel trying to figure out how they could claim that the president is not an officer of the United States.
I mean I just find that to be so ridiculous everybody knows that when you're looking at say a corporate board of directors the president is an officer of the board of court is.
So my question is if they actually come out a can they can they make this announcement without getting into that and be if they do somehow state the president is not an officer of the United States government how many other.
So I think there are places is that written and assumed and might you know throw off a whole bunch of other laws and parts of the Constitution if the president suddenly is just a morpheus blob I guess I just ridiculous.
Happens happens to occupy the big white house down the street at 16th and Pennsylvania right but not really an officer not really an office and then.
Absolutely and I agree with you again it's a fact was fasting argument to listen to right but along the way I agree with you when it comes to that I suspect that the justice is just wanted to check off the box on all the various arguments and I hope like you that this was one of them.
There was this amazing exchange between justice Gorsuch and the attorneys about this very issue going back and forth about what an office is and when officer is and again the kind of thing that maybe again only lawyers maybe Supreme Court justices enjoy doing you would hope that that's not the premise for their ultimate argument that maybe at most it gets a footnote maybe a footnote in the the final decision i'm hoping that again it's a broader issue and that they not even raise it because as you just indicate.
These things what the Supreme Court says you know this well Christian with the Supreme Court does has an impact upon other matters if they find that the presidency is not the president is not an officer all kinds of other things become implicated in that not only in terms of responsibilities of the Constitution but statutory authorities all kinds of things out there I suspect they know that i'm hoping that justice Gorsuch and the others were playing around with this issue simply wanted to indicate well we've taken a look at that and of course courts can.
And of course courts can also say we've looked at this we're not deciding this today we are deciding on this other issue and you're right then they don't have to engage in the pretzel making that you just described and come up with a decision that has these implications far beyond far beyond Colorado and the national election coming up here we're going to talk more.
About the national election in other things pending for the Supreme Court in this coming up our second hour here in our Saturday morning broadcast so appreciate all the good comments and questions from our colors do more of that in our second hour and we will continue our discussion of all things justice rule of law in America.
Weak day mornings from 8 till 10 on the Shaw 540 AM and 101.1 FM WAUK.
Welcome to this our second hour of our Saturday morning broadcast talking all thing the Supreme Court and some other courts as well but right now focusing a lot on what our United States Supreme Court entertain this past.
Weak in connection with the Colorado case strong prediction and easy prediction if you will that they will hand Donald Trump if you will a win in connection with his attempt to remain on the Colorado ballot have to see having an impact as our colors indicated on the future of this campaign in the next few months or so and on other ballots around the nation including Maine and other states.
Another major event headed toward the Supreme Court maybe or maybe not coming out of the DC Court of Appeals we're going to spend some time in the first segments of this hour talking about this major case having to do with yes that's right executive immunity you know what this case is all about the president maintaining again this is outside of the political process but playing the having impact upon it and impacting the campaign itself in connection with the criminal prosecution of him by Jack Smith.
Special counsel partner justice for counts alleging his involvement in an effort to undermine to overthrow to engage in interference in the 2020 election for counts that case pending before Elena of a Tanya Chadkin rather in front of the district court there in the district Columbia she had previously written an omnibus order addressing all kinds of issues saying that indeed Donald Trump does not have immunity.
He is not immune from criminal prosecution no one is bubble washing notably said that we have presidents in this nation we do not have kings that case went up to the Court of Appeals the DC Court of Appeals the next highest court in that particular part of our nation and indeed just this past week.
Just this past week on Tuesday a couple of days before the oral argument on the Colorado case down the street there the DC Court of Appeals in another courthouse there in Washington DC turns back and says indeed Donald Trump does not does not does not have presidential immunity and without saying out loud says that the concept is absurd that this is a near frivolous argument Donald Trump on Wednesday being told by the Court of Appeals a third
judge panel a three judge panel made up of three judges including Karen Henderson who is a Republican appointee who is cited with Donald Trump on many other cases all three of them unequivocally unanimously say nothing to this notion of immunity by a president says this we cannot accept form president Trump's claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power the
recognition and implementation of election results that's what the three judge panel wrote and released just this past week we cannot accept that the office of the presidency places its former occupants above the law for all time there after fifty seven page opinion all three members of the panel coming to that conclusion obviously a major decision by the Court of Appeals
about a month putting that all together and now and now along the way the court of appeals in addition to making those very important determinations gives Donald Trump
something of a deadline says if you want to appeal this you need to go to the Supreme Court by Monday yes that's this coming Monday basically appearing to acknowledge that he is going to be going in that direction
but discouraging him from asking the full appeals court intervened probably not going to be granted what's called an on bonk hearing all the judges of the DC court of appeals deciding this
and that of course would further drag out these proceedings along the way along the way the panel of the three judges says for the purpose of this criminal case
from a president Trump has become citizen Trump that language again much bandied about in the media these days with all the defenses of any other criminal defendant
but any executive immunity that may have protected him while he served as president no longer protects him against this prosecution basically the court of appeals saying we're not deciding expressly although certainly indicating very strongly that a president does not have immunity well in office
but today citizen Trump does have as no immunity whatsoever along the way again addressing a number of different issues talking about this notion that somehow the separation of powers under that concept the judicial branch lacks authority to review a president's use
of executive power this argument being made by by Donald Trump they reject that they say from a president Trump lacked any lawful discretionary authority to defy federal criminal law
and he is answerable in court for his kind of another affirmation of this notion that we have presidents not kings
a second Donald Trump had argued that there is a public interest for the presidents of our nation to be immune from prosecution
society said better off if presidents don't have to be afraid of future charges could chill their constitutional authorities and functions
the court of appeals say no supreme court has disallowed they said civil lawsuits against presidents over their official actions
but but there are far greater limitations to bringing criminal charges and they went on to say so the risk that former presidents will be unduly harassed by meritless federal criminal prosecutions appears very slight
they made a reference to the fact that Gerald Ford had pardoned Richard Nixon after Watergate all of that suggesting that there is the possibility
of criminal prosecution long understood in the history of our nation former president Trump's alleged conduct they said conflicts with his constitutional mandate to enforce the laws governing the process of electing the new president the three judges wrote
the criminal charges against him they said have proven true amount to an unprecedented assault on the structure of our government offering a little bit of insight into how they view the charges
and the compelling nature of the charges pending against him right now they went on to say this
that in response to Donald Trump's assertion that former presidents can't be prosecuted unless they're first impeached and convicted by the congress they said that's ridiculous that's not at all
a part of what our constitution envisions repudiating that argument saying the interpretation runs counter to the text
the structure and the purpose of the impeachment judgment clause the impeachment and criminal justice systems operate on separate tracks
they said with separate purposes and that interpretation implies that all civil officers not just presidents are immune from prosecution over a
official official crimes unless they are first convicted in a senate impeachment trial that they said that notion is ridiculous
it would leave a president free to commit all manner of crimes with impunity so long as he is not impeached and convicted by the congress
rejecting that outright and finally finally responding equally strongly to Donald Trump's contention
the because he was acquitted in the senate impeachment proceeding that therefore it would be a violation of double jeopardy to have him prosecuted in tanya
chetkins court court again the court of appeals saying ridiculous absurd that the processes are unrelated and while the charge
the house brought against him the incitement charge was not among the charges of grand jury now indicted him
getting into a little bit of the double jeopardy analysis judges also gestured the political nature of the acquittal
noting that thirty senators had justified their votes to acquit him when this was in front of them on the grounds
it is term in office had run out before the trial and they said this as a result of the political nature of
impeachment proceedings impeachment acquittals are often unrelated to here we go
financial i'm sorry factual factual innocence impeachment acquittals are often unrelated to factual innocence all of that
from the court of appeals just this past week an unequivocal statement rejecting Donald Trump's position
on immunity as i said before this is a frivolous argument this is an argument that has no merit to it
it is regrettable that we are spending all of this time announcing that the sun rises in the east and not in the west
that's how absurd this proposition is and yet the district court obliged to address it as she did
the court of appeals now saying the same thing and an equally broad and expansive opinion
providing a huge amount of support addressing all the issues all the issues that Donald Trump raised
and putting them all to bed and so what is the big takeaway what is the big takeaway from what
happened this past week coming out of the DC court of appeals it's just this once again our theme
this morning our theme throughout this year is all about timing tiktok what's going on with the clock
well as i said the supreme court plainly as before it this one case involving Colorado it will decide
that fairly soon presumably before super Tuesday it's got another case we're going to talk about in
just a minute or so involving fisheries it's probably the most significant among the three but it
potentially as soon as next week could have this second case this DC case before it as well it depends
upon what the supreme court does now Donald Trump has to know that he's going to meet the deadline
established by the court of appeals and yes indeed it's going to appeal to the supreme court this
rid of a searcher rare i which we often talk about a supreme court then effective Monday close
of business we'll have a decision to make actually can do one of two or three things one is they
can deny that writ they can say you know what we're not going to be resolving this at all as they do
routinely right now as of this morning there are 60 cases on the dock of the supreme court
hundreds more hundreds more have been subject to a denial of writ you don't get before the supreme court
just by filing your papers they could say you know what we're not going to review further
this matter that the DC circuit court has addressed the trial court has addressed these omnibus
opinions are clear we don't need to say anything more about it and indeed i would offer that in a
world again a perfect justice and perfect jurisprudence that's what they should do there's no
conflict about this nothing here more to be said aside from perhaps putting your impromotor upon
like the lower courts have already said that is what they should do now the question is what will
they do that's a different question and it's entirely possible that if you've got a majority of
the supreme court justice is who nonetheless want to be heard about this they regard this maybe
as their own version of bush versus gore we talked about that before maybe their own version of
the Colorado case and they want to be heard about this and want to establish once again as the
supreme court has done before that indeed presidents are not kings no one is above the law they can
take this case and they can do one of two things both of which would be telling about their particular
animation one is they could take the case and they could say it although we're going to take this
on we recognize that the entire prosecution in front of judge chukkin down the street in the
district court has been suspended she has taken this trial off her calendar going to be
acquiring months of of jury selection and of actual trial time she's taken that off her calendar
what about the supreme court could very well say we need to get this expedited and so while we're
going to grant the writ we're going to give you an expedited disposition of this you file your
brief within five days government you respond to that within five days after that when a schedule
or argument expeditiously as well and we resolve this very very quickly even with that even with
that we're probably talking about another month another month over and beyond Monday before the
supreme court could enter and order again affirming almost certainly what the door courts have said
to this point and there's a third option out there for the supreme court which is perhaps the
most disappointing which we also need to put on the table this morning and that has to do with
putting this on the regular docket that discussion about a regular docket is coming up next
our discussion this morning of all things supreme court talking about the options before the
supreme court as it now has not yet on its docket but playing the petition coming on Monday close
of business Monday Donald Trump and his attorneys will be filing this application for a writ of
search error I seeking another level of review over the supreme court in a case that again has clarity
in its ultimate disposition there is no question but what for the fact that the lower court the
district court the appeals court have gotten this right presidents do not have immunity and if
indeed any court in this land including the supreme court should find otherwise that is the
beginning of the end of the republic because as many people have said then we were storing the
monarchy then we do in fact have a presidency that is without checks and balances if a president can
do whatever he or she wants to do we have then returned to a pre 1776 period in our nation's history
can't do it not a possibility so the result here once again just like right now the Colorado case
is resolved effectively we haven't seen the paper on that yet this case is also not subject to
reasonable disagreement here everybody of a reasonable nature acknowledges that there's no
presidential immunity and what is going on here of course is a delay a delay in the trial in
front of Judge Chutkin and that's why what the supreme court does next presumably as soon as next
week is all telling about their particular animation as they work indeed in the midst of a campaign
in 2024 as they said right before our discussion suspended here for just a moment before before
the supreme court decides what it's got to do it can turn back this appeal can deny the request
out right in which case Tony Chutkin the day after they deny that grant that writ of a surgery
where I she can call the parties in and put this thing back on her calendar she can find this
the trial time to do it it's a lot of time but she can get them back in have a status conference
a pre trial conference and get this back on her calendar the moment the moment the supreme court
denies Donald Trump's application more likely potentially the supreme court says well we'd like to
weigh in on this it is a matter of national importance and I suppose it is but for the fact that
the issue is pre ordained we know what the result has to be here and so it is frustrating I think
for an awful lot of us out here who think about the legitimacy of the process to think that the
supreme court now needs to weigh in and yes we understand the supreme court wants to articulate
once again hopefully what would be a unanimous position that there is not a presidency that is
in the nature of a kingdom a a a a situation where returned to the monarchy in our nation if
the supreme court does that they could put this on a very expedited schedule even that however
taking probably days weeks presumably postponing the ultimate rescheduling of this matter in front
of judge shotgun by about a month and every single month of course in this calendar year
takes up more time delays the time when judge shotgun can can begin to empanel a jury that will
itself take a number of weeks right there in the district of Columbia presumably the presentation by
the special counsel is going to take weeks Donald Trump does not have to present any defense but
presumably would and that could also take days if not weeks before a jury then gets the case to
deliberate on presumably months down the road and that of course begins only after this issue
immunity this frivolous issue of immunity is resolved ultimately by a court supreme court could do
it quite literally hours after the petition for rid of surgery areas filed on Monday will they
do that we will see if in fact if in fact they put this on what is the regular docket and they accept
surgery right just as they have with with all of the other 60 cases as of this morning on the
docket of the supreme court if they do that they could also establish a routine briefing schedule
if they do that they have signaled their own sense of urgency which is very little very little in
that particular circumstance because there you've got weeks before petitioners file briefs
you've got responsive briefs you've got reply briefs all these kinds of things there will probably
amicus briefs filed by various parties around the country all of that as in all these other cases
takes time and then and then if indeed we get a decision along with all the other cases we've
talked about on this broadcast in the areas of social media and about guns and about all the
the things that we have discussed along the way in our broadcast to this point last year and this
if that is on the regular docket the regular schedule that does not contemplated expedited
resolution along the way then then we can anticipate a decision in June maybe May but in June
and at that point you have profoundly profoundly affected the trial calendar at that point judge
Shuttken may have great difficulty in finding a time on her very busy docket remember this is not
the only case that she and her colleagues at the district court the trial court level have
on their dockets then it is entirely possible that there will be no trial before the November
election or if there is it will be just on the heels of that significant event happening
tiktok time once again an animating feature of 2024 and in all of these the interplay between
the litigation the criminal prosecution thus civil cases we've talked about as well
and the pendency of things like super Tuesday the people going the polls here in the state of
Wisconsin and in other places around the country Colorado all the other states primary elections
coming up all those kinds of things a convention coming up in Milwaukee for the Republicans in July
for the Democrats in Chicago right after that in August and then the final weeks into the election
all of these kinds of things animated by time in and out of our federal courts criminal courts
and civil courts as well look next week to see what the Supreme Court does they're not obliged they're
not in a particular schedule to decide whether to grant this writ of search error or not but they
need to do it they need to tell the American public what they are doing and with what level of speed
are they going to be addressed this they can take care of it very quickly or they can at the other
extreme put this on the regular docket and schedule this presumably for the announcement of an
opinion the substance of which we all know and that is that there is no immunity and that
presidents are not kings as Chan Tanya Chutkin has said that's the second case and again the reality
is as much as Donald Trump may be granted a win on the Colorado matter he will be granted
ultimately a loss on this issue related to immunity there's no there there's nothing to see
the question is when will the Supreme Court issue that opinion and then and then as we have
talked before there is yet a third case that does not have Donald Trump's name on it but I would
offer as I have before that this case involving Fisher FIS CHER Joseph Fisher is his name is
among the three the ones that's the least clear in terms of his disposition and arguably
arguably because his least clear also has the most profound effect potentially upon that criminal
case being prosecuted right now by Jack Smith and special counsel in front of Tanya Chutkin
in the DC circuit why because of what Joseph Fisher is what he has petitioned for what he has
done the man who brings that appeal again his name Joseph Fisher has said that the law was applied
against him incorrectly and that the charges against him have to be overturned by the Supreme Court
on on recent days the mid-December or so this particular matter was was granted
cert by the Supreme Court and the discussion continues this morning about what the content of
that appeal is all about why this is significant for hundreds of people already charged and convicted
for the assault on our capital and yes indeed why it is so critically important for understanding
what Tanya Chutkin will and will not have in front of her when that case ultimately goes to trial
the criminal trial in her court against Donald Trump
we are talking this morning in these final segments of our to our broadcast about Supreme Court cases
another case a third case not often discussed in the national media not subject of a lot of attention
out there called the United States versus Fisher back in December mid-December the justices
of the Supreme Court granted granted a writ of surgery said yes indeed when it take this case on
it would decide to review the charge of obstruction of an official proceeding there was brought
against Mr. Fisher Mr. Fisher among the thousands of people there on Capitol Hill that day among
the 1200 or so who been the subject of investigations and charges and convictions and sentencing
including among them Joseph Fisher Joseph Fisher again charged with this particular statute
in the federal criminal code a charge of obstruction of an official proceeding significantly 300 people
altogether been charged with this particular statute for those crimes allegedly committed during
the Capitol riot and the reason why this is so significant is because former president Trump
in that case pending right now in front of Tanya Chutkin we've talked so much about this morning
and in previous broadcast Donald Trump is also charged under this same statute in two of the four
counts against him in the indictment there and that is of significance even as that matter
proceeds ultimately to trial once this issue related to immunity is finally resolved hopefully
sooner rather than later by the United States Supreme Court Joseph Fisher says of course the law
has been applied incorrectly against people who are charged over their involvement in the riot
and federal prosecutors come back against that and say no no no Mr. Fisher was one of thousands
who participated in that attack and the charge that we have brought against him that is the
substruction charge is precisely right Mr. Fisher says no no he says that the law which was in
fact created he's right about this in the wake of an accounting scandal in 2002 initially enacted
by Congress to prevent corporate malfeasance during trials he says he says that government prosecutors
and people in the U.S. Attorney's Office Department of Justice generally have been unreasonably
stretching this particular statute to cover to apply to these charges against him at about 300
other people the lawyers the lawyers for Mr. Fisher who've been defending him in the lower court
in the circuit court and now the Supreme Court said specifically that those who strung the capital
on January 6th were not acting corruptly corruptly that's the important language from this particular
statute that's what the law commands the demands under this particular statute these are the
writers were protesting what they honestly believe to be a stolen election not acting corruptly
justice department of course push pushes back strongly against that as argue that the official
proceeding could refer to a proceeding of Congress and indeed that all the terms and conditions all
the elements of proof are there with respect to this prosecution against Mr. Fisher and about 300
other people also charge under this same count this same statute this Supreme Court decision to hear
the matter then is significant not only for Mr. Fisher and frankly a huge numbers of people
already charged under that particular statute but also but also for yes that's right criminal
offended Donald Trump now facing prosecution on that indictment against him in Tanya Chetkin's
courtroom we know well that the special counsel charged Donald Trump with obstruction of
an official proceeding along the three other federal crimes they used that particular statute
Donald Trump we hasten always to add as pleaded not guilty he is entitled to the presumption of
innocence and is entitled if he cares to not obliged to present evidence in defense of those charges
against him that's what a trial is all about that's the due process in our nation about which he
complains and steady says I'm a victim of political witch hunt as we've talked previously nothing
of the case the attorneys for Mr. Fisher in this collateral but very much related case noted the
connection between their petition with respect to their client and Donald Trump he said the case
presents an important question of federal law affecting hundreds of prosecutions arising from
January 6th including the prosecution of former president Donald Trump and here's the rub here's
the reason why this is so significant when when Joseph Fisher first presented this to the lower
again one of Tanya Chetkin's colleagues the trial court and the DC court the DC trial court there
the district court actually ruled in favor of mr. Fisher and found that it either government was
wrong and that the attorneys for mr. Fisher are right that this particular statute does not apply
does not apply to him and therefore entered an order that basically would have vacated reversed
the judgment against him because was improperly charged interestingly interesting the wake of that
goes up where to the DC court of appeals the same kind of process we talked about before in connection
with the matter related to immunity and the DC court of appeals a three judge panel there decides
not unanimously but by two to one two to one to overturn to reverse the lower court ruling and
basically say yes the government wins the government has in fact properly charged this particular case
against mr. Fisher under this statute and overturns reverses the trial court decision and it
is that a pellet court decision coming out of the DC court of appeals that is now before the supreme
court that's the decision that the supreme court has granted search or rarion and that's the opinion
that's the judgment that is now up for their review by all justices of the supreme court and as
indicated by the differences in opinions by reasonable people the appellate court the lower court
this is one where reasonable justices reasonable lawyers reasonable people non lawyers can disagree
as we often say mr. Fisher asking the supreme court to basically endorse what the trial court had
said to reverse what the appeals court had said and indeed there are arguments on both sides it
is not unusual candidly for the supreme court during the course of my time my 30 years with the
U.S. Department of Justice as a criminal prosecutor and also civil litigator including some years as the
United States attorney some years in Washington DC some years overseas in another district in this
nation all during that time the supreme court has from time to time taken statutes and said you
know what the government has not been properly applying them I think especially about the mail fraud
having to do with the possibility of prosecuting public officials for the deprivation of honest
services it's a broad and important discussion having to do with the interpretation of federal law
the supreme court overturned the commonplace application of a particular statute and said overnight
and changed overnight the disposition of cases pending in the federal trial courts and the
supreme court can in fact interpret this particular statute that mr. Fisher is challenging to
say that you know what the government got it wrong they could also say the government got it right
in which case mr. Fisher's judgment and that of the 300 other people remains in place those
convictions go forward the terms of imprisonment the extent that those sentences have been imposed
those go forward and those cases get closed and then and then significantly jack smith in his
prosecution against Donald Trump after the supreme court resolves this immunity issue can go ahead
with all four counts of the indictment against him depending upon what the supreme court says
supreme court could make some decisions that parse the language somewhat and determines that in fact
it is applicable here and not there we'll have to wait to see you exactly what they do and that's
the final point in the picture matter again having to do with timing as of this morning
February 10th of 2024 the supreme court still has not granted a date for oral argument on Fisher
it's got a docket now through the end of March its March setting is chock full of cases we talked
about some of those last broadcast to this date to this morning the supreme court has not put
Fisher on its docket for oral argument like it has presumably has in these other cases and what
that means is that this case may not be heard until April maybe even may at that point he gets
very, very late in the season we certainly would anticipate that the Supreme Court will decide Fisher
by June but if indeed the timing on this is such that the supreme court hopefully would embrace the
notion advanced by the government that certainly is my bias but again my reading of the statute my
application of it my understanding of how jack smith is using it to the particular facts against
not only the the features of the world but yes also Donald Trump in that indictment we talked
about that indictment a great length in prior broadcast strikes me as a former prosecutor that
it's application here although not routine is appropriate and the supreme court should indeed
embrace that application as it has in other cases if in fact it doesn't do that and basically stops
judgments and the convictions from going ahead with respect to mr. Fisher it presumably would
also have an impact upon the trial in front of judge shotgun wherever that may be in April or may
and June and once again underscoring this common theme that I continued repeat which is timing
and how all of these decisions will have an interplay into the very trials that are being affected
by decisions of higher courts if mr. Fisher is successful the prosecution by jack smith
against Donald Trump potentially could be cut in half or significantly changed the government
can always go back and supersede return a new indictment but again getting very late in the day
again in the midst of an election year as Donald Trump presumably is collecting primary victories
along the way as as the current president Joe Biden is also collecting his primary victories
heading toward nomination in July and August heading toward an almost certain battle between
Donald Trump and Joe Biden in November depending upon how the courts decide all these cases
and today I'm not making any specific prediction about Fisher I believe that there is a strong strong
argument to be made that the government is right about this and I anticipate the supreme court at
least a majority of them will embrace that probably won't be a majority opinion but majority
of them will embrace that depending upon when they decide that case however once again could have
an impact upon the conduct the timing of the trial the timing of a presumed possible conviction
by a jury based upon the evidence percent of the government once again obliged to present evidence
beyond a reasonable doubt to a jury has to decide it unanimously all that's got to happen
before there could be a finding of conviction finding of criminal liability before the assumption
of innocence the presumption of innocence no longer applies lots and lots of things going on
a win for Donald Trump almost certainly with respect to Colorado a loss a loss for him coming up
with respect to immunity the question there is when does that happen and then presumably a loss
from as well when it comes to this Fisher case but not nearly as certain and the timing on that
probably of the three the least certain of all I should note as I footnote to that that among the
other cases that we will also discuss in future broadcasts on the same day that the court of the
United States Supreme Court granted this risk of surgery in the Fisher matter they also granted
the writ of surgery reviewing the decision that you may recall well coming out of Texas and the
fifth circuit this decision made by Matthew Kess America district court judge in Texas finding
banning the distribution of miffa pristome which is this commonly used abortion pill and determining
that the FDA had improperly authorized its use by medical officials by doctors and by other
medical staff around the country a shocking a shocking decision recently recently also further
undermined by revelations that the very laws and the very findings that he came to premised upon
some official findings if you will some science that's determined to be junk science
just this past week on that particular case the decision that judge cast americ came to premised
upon his view that miffa pristone is in fact dangerous is not in fact the safe and secured drug
the FDA has said it is just this past week the authorities were called sage publications announced
it was retracting three of those articles that helped form the basis for judge cast americ's
conclusion that that access to this drug miffa pristone should be restricted now that's somewhat
of a side show to the appellate issue which went up to the court of appeals and it's now before
the supreme court and they also will be entertaining argument on whether or not miffa pristone remains
an accessible medical procedure a medical pharmaceutical for abortion practices in america that also
coming up they granted that writ on the same day on the same day that they granted the writ
in the fisher case which we will talk about as well as those cases are decided down the road lots
and lots of things pending before the united states supreme court more to talk about this morning
on our broadcast including including some commentary related to the prosecution in georgia and the
recent decision by the special counsel reviewing the joe bine documents case not to prosecute all of
that coming up next
media dot us you're listening to the shot w a u k
a website
this our final segment of our settlement broadcast talking about three more cases and
animate what's going on in our federal courts you spoke before about aline can and right now
presiding over this unrelated but someone associated trial having to do with the moral logo documents
just this past week just this pack week making some significant decisions about witness security
we know from recent reporting the federal authorities right now are investigating a series of
threats made online to potential witnesses related to this jack smith prosecution of the classified
document case and that prompted jack smith to seek the disclosure to the court and to the
litigation generally of information relevant to that prosecution but not in the public domain
ensuring that Donald Trump and other people do not have the option do not have the opportunity
to provide information about these matters that are security related that have to go with the
integrity of the process and that expose exposed potential witnesses to threats of harm this past
jack smith is asking aline can and to reverse a recent decision that could expose potential
witnesses in that case of a two threats from the very thing that these investigators are looking
at right now special counsel filed a motion to reconsider that ruling which they considered a
clear error that defied eleven circuit court of appeals precedent and that would publicly release
discovery documents in unredacted form at the request of the former president and some media
groups again jack smith trying to protect the integrity of the process and the witnesses there
special counsel's office pleading with canon to reverse that recent unsealing decision which
would disclose this information about those witnesses that would identify two dozen of them
and expose them to threats in particular in particular the special counsel saying the discovery
material have publicly docketed in unredacted form we disclose the identities of numerous potential
witnesses along with the substance of the statements they made to the FBI or the grand jury exposing
them to significant and immediate risks of threats intimidation and harassment as has already
happened to witnesses law enforcement agents judicial officers and a part of justice employees whose
identities have been disclosed in cases in which defendant trump is involved now why is this
significant well it has to do once again with aline can and the eleven circuit smith in particular
arguing the judge incorrectly stated that the government must show a compelling interest in keeping
the documents private that is not the standard that isn't the standard that's used by trial court
judges and the jack smith of course adopting that and saying the standard does not apply to documents
filed to satisfy discovery requirements saying just this the eleven circuit has held that the compelling
interest standard applied by aline canon does not apply does not apply to documents filed in
connection motions to compel discovery which instead may be sealed or redacted simply upon showing
of good cause because the court applied the wrong legal standard reconsideration is warranted to
correct clear error now what does that all mean that means that jack smith is giving giving
aline canon another opportunity to go back and get it right this time she has applied the wrong
standard and he has said before we take this up to the court of appeals where we go back to the
eleven circuit will give you the chance to remedy the error that you have made now unlikely unlikely
that aline canable do that in which case predictably because of the seriousness of this we've got
people's lives who are at that are at stake threats made against witnesses and other officials
highly likely the jack smith will take this up to the eleven circuit have we seen this show before
the answer is yes we have you may recall well then the wake of the search of Donald Trump's
myologo residence aline canon entertained for months a challenge to the investigation pre-charging
before any charges returned ultimately taken up to the eleven circuit you may recall well the
eleven circuit sends this compelling order back to aline canon saying you've got it wrong the
trial courts have no business involved in these kinds of investigative matters you've got no
capacity to to oversee this investigation do you have responsibilities when it comes to executing
search warns and doing other things applications for discovery during the investigation but not
not oversight in a civil setting of the dependency of a criminal investigation like this one
eleven circuit sending that back with a firebrand on top of the order saying dismiss this case
which you have entertained aline canon you've got it wrong jack smith now probably will take
this up again and we may see or repeat of what happened before and at some point beyond this also
jack smith may well finally file the application for recusal for substitution of a judge
because of the record of it's called hostility that he is beginning to amass in this case we know
us well that she has made various orders delayed certain proceedings having to do with the
legitimacy of certain national security matters how that is processed all those things being delayed
jack smith has a list now things that aline canon has done both in terms of delays and now and now
affecting the future of witness presentations that go right to the core of this criminal prosecution
and in addition to going up to the court of appeals where he presumably will get the court of
appeals to embrace the proper standard and the court of appeals will presumably send this back
to her and say you've got to apply the proper standard you've got to reverse your previous order
all of that once again taking here we go time right tiktok once again but even if that happens
jack smith at some point needs to consider as I'm certain he is inside the halls of justice they're
in Washington DC a potential petition to have recused based upon the conduct in which he's engaged
on the bench admittedly in her official capacity that can indeed affect the legitimacy this is a
big one having to do with whether or not the disclosure of names identities of witnesses that we
know we know have been the subject of threats and concerns about the future of their presentations
in trial that nothing short of that is at stake in this matter it's a huge issue it's a huge issue
and finally just a couple of very brief comments one is with respect to the Joe Biden release
from the special counsel finding that indeed he should not be prosecuted because indeed there's
no willfulness i want to say that i concur with my former boss Eric holder who said that the comments
about the status the condition the temperament if you will the intellectual capacity of the present
president during the course of his interview completely inconsistent with internal department
justice processes and language and when i was in the department of justice that kind of thing would
be reviewed and would be excise because it's not relevant to the core finding which is about
willfulness which is what that report said and the extraneous language about the president it's not
just a political comment it's not a political comment at all it's not properly there it's not
properly and it's unfortunate that in the midst of this otherwise legitimate review and exercise
of investigative broggative by the special counsel there that the determination a proper determination
of no criminal prosecution based upon a lack of willfulness is joined with this harassing
and inappropriate comments about one of the witnesses the target the subject of that investigation
more of this kind of discussion in all of our Saturday morning broadcasts coming up
i invite you back to our table in the future discussions of the