A Protective Order
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Hello and welcome to another episode of Prosecuting Donald Trump. While following his third indictment last week in D.C., the former president spent the weekend doing what else? Unleashing attack after attack on social media.

While that was going on, one of his lawyers did the full Ginsburg going on all the major Sunday morning shows. And so now the former president's actions have been brought to the attention of Judge Chutkan when they filed a fairly routine request.

request for a protective order. You'll remember Judge Chutkin is the assigned, randomly selected judge in the D.C. case. Well, we're going to get into all of that. We're going to get into the latest and a lot of new things that happened over the weekend in D.C. We're going to talk about the latest in Georgia. And then we actually have some breaking things to cover with respect to a new ruling by George

Judge Cannon. And by the way, that's something that Mary and I have briefly discussed before we went on air. And let's just say, I have a lot to say. So Mary's going to need to keep me in check. But anyway, Mary, welcome. Nice to see you. Yes. Hello. Never a dull moment. You know, just over the weekend, filing after filing, news breaking, and then including on Monday morning coming out of Mar-a-Lago. So let's dive in. Mary, I have to say,

This weekend just brought me back to what it was like during four years of Donald Trump as president. Just that never-ending assault on your senses, your time, and the constant sense of outrage, like over and over and over again. And it was just, as we're about to talk about, it just was all flooding back. And I don't want that.

Nope. I don't want that either. Peace and quiet is nice. It was so nice. I like reading about some of the other things that are going on in the world. Yeah, like climate change and Ukraine and all those. I shouldn't say I like reading, but it's important to read about those things. So with that, Mary, do you want to maybe give us a little recap on, if it's even possible, about...

The back and forth between the government and Donald Trump's counsel with respect to what should have been, I think, a pretty simple thing, which is a protective order. Yeah.

Yeah. And let's just start with the basic principle that a protective order is not an uncommon thing in criminal cases when the government is going to be handing over discovery that includes sensitive information. And listeners may recall that there was certainly a protective order that was entered in the Mar-a-Lago case, not just to

make sure that sensitive information would be protected, but that classified information would be protected. But here the government has made it clear it has a massive amount of discovery ready to provide to Donald Trump, but some of it includes sensitive information, information like personally identifying information of witnesses and other individuals, some of it including grand jury information, some of it including the results of search warrants where warrants were filed under SEALs.

And so the government wants to be able to provide that to Mr. Trump and his team because as part of their obligation to provide him with due process and provide him with all of the information he needs in order to raise a defense and defend himself in this trial, they have to provide that. But they need to take some precautions. So.

This is not unusual. It's happened in many, many, many criminal cases. Probably many you did, many I did. Andrew. Mary, it was so common. And matter of fact, there's a term of art we might as well mention, which is PII. You sort of made reference to it. But since in Washington, we lived in the land of acronyms, we used to say, did you sanitize it for the PII? And that is personal hygiene.

identifying information. So that would include social security numbers, addresses, things that you don't want out there. And that's things that you don't want out there in the public writ large, even for just like identity fraud, harassment. But here, like you'll remember,

Lewis Kaplan, Judge Lewis Kaplan in the E. Jean Carroll case in New York on his own before there were any criminal cases was taking steps to protect the jury from the former president. So there's ample reason for that to be done. It was done in the Manhattan criminal case. It was done in the Florida case. So this is a

I mean, not only just generally routine, but specifically something that has happened in these cases, both criminal and civil before. So this shouldn't have been a big deal. So that's a great preamble, but as you can tell, it shouldn't have been. That's the setup. But became one. Right. What's the big deal? Like, I'll give you a softball, Mary. Didn't the government just propose it? The defense agreed and the judge was given it and signed it.

Well, one might think that, but shockingly, no, that's not what happened. So based on what we know, and I'll try to do this in a streamlined fashion, government reached out even the day before arraignment with the proposed protective order, reached out to defense counsel about that.

They waited, I think, until the day after arraignment to get back to the government saying, nope, we don't like it. Here's a substitute. Here's what we proposed. Government said that's not going to work. So they completely went back to the drawing board. They had said we amounted our first grant.

version off of the Mar-a-Lago protective order, but without the classified, thinking you would agree to it. Same parties. Same parties. That seems easy. And that's what the first one was rejected. So they went back to the drawing board and they modeled the second one after a protective order that had been recently entered by one of the D.C. district court judges in, I believe it was one of the January 6th cases. It was. And it was Judge Nichols. And Judge Nichols, not that it's relevant to this, but it

appointed by Donald Trump, by all accounts, a very good, responsible judge. And they figured, okay, here's a sample of something that was just recently done. So we're using something from the courthouse. So now you have versions A, versions B, but of course the name of the game was delay. Delay, right.

So that gets sent over by the government to Mr. Trump's lawyers on Friday evening. But they said at the time, we really want to be able to have the court enter this and start providing you discovery. And you can object to it later. So we're going to go ahead and move the court tonight to go ahead and enter this so we can start giving you discovery. If you want to change it, you can file your motion to change it.

And so the government went ahead and- Meaning, so there's no prejudice. Right. I mean, I understand what the government, I was thinking about this because usually the government does want to give time for it to be heard, et cetera. But the problem is it takes two to tango. And if you have one side basically say, I'm never getting back to you, then-

that's going to delay discovery. Delaying discovery means delaying the trial date, right? The eye on the prize here is the trial date. That's what's animating everybody on this, both sides. But they were basically, they, the government was basically saying, look, we'll do it under these terms. Let the judge sign it. And it's without prejudice. You can obviously raise with the court anything that you want to raise, even though, by the way,

We've provided a version that you actually agreed to previously before Judge Cannon. And I should just say that word without prejudice, because we know that so well because we use it all the time, means even if this is entered, it's not the last word on this because we are not saying it's entered with prejudice to you to never be able to change it. This is just a term of art. Without prejudice means you can come into the court and say, we don't like this.

And you're right, though. I also think, Andrew, because I think there's been some criticism of the government that why didn't you just give them time to respond? And like you said, ordinarily, that's what the government would do. I think the government thought we've already been going back and forth for three days. We have this pile of discovery. We're ready to turn it over to you. Let's not, you know, spend three, four, five more days arguing about this. Let's get the discovery to you because, again, the government wants to get to trial. Right.

Mr. Trump does not. And the other thing they wanted to do, I think, if I were in the government thinking about this is, you know what, if the judge wants to give them time before entering it, if the judge disagrees with us, that's fine. But also the judge sees the situation we're in, that time delay for discovery was not ours, that we were ready.

willing and able to get this out the door. And that's the critical thing. So by making this motion and showing all of what happened, it was getting in front of the judge that the government is not responsible for a single moment of the delay.

And I think, and we're going to come back to this, but they, I think, also wanted to get in front of her the social media post that happened on Friday, which is, if you go after me, I'm coming after you. And they didn't file this motion just because of that. Because again, remember, they had started seeking a protective order well before that post, even before arraignment. But I think that was something that happened that

added urgency to the need to get a protective order because, as they say in their motion, we seek to prevent the improper dissemination or use of discovery materials is particularly important because this defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others. And then as an example, they include that post. If you come after me, I'm coming after you.

But again, that didn't end it. The judge didn't just go ahead and enter the order. Instead, the next morning, Saturday morning, I believe I'm right on that Saturday morning, Mr. Trump's attorneys came in and didn't just say we oppose the protective order and here are all the reasons why a five page protective order. I'm missing a step here.

Before that happened, Saturday morning, Judge Chutkan set a date of Monday afternoon for Mr. Trump to respond to the government's motion for a protective order. So rather than just entering it like the government had suggested, she said,

Mr. Trump, file your opposition by Monday at 5 p.m. In response to that, did he file an opposition? No. He said, I need three more days from Monday before I can even file an opposition to this, like you said, five page protective order. Meaning that and this is one of the best lines when the government responds to that.

The government says, so instead of responding to the five-page protective order, the protective order that they'd previously signed, an identical one, they instead spent their time responding to why they need more time

To respond to the... I mean, look, it was so transparent. It was basically like delay, delay, delay, judge, delay, delay. Wait, did I say delay? So what did the judge do? Did she have any of this? She didn't. And I think this is partly why we wanted to talk about this on the podcast. The judge came back and said, denied, file your opposition Monday at five. And this isn't because...

She's biased like Mr. Trump is claiming or his lawyers are going to claim. This is because she also understands exactly what's happening here. This is about delay. We're talking about a run-of-the-mill process

protective order. There's no reason to have a whole bunch of additional days to file an opposition to it. All that does is push out the timeline for the government turning over discovery. And so I think this was Judge Chudkin saying, I'm not going to have that. File your opposition by Monday, five o'clock, which, by the way, is plenty, plenty, plenty of time. Plenty. Wait, this is a protective order. This is not briefing the

the constitutionality of the free speech clause. This reminds me what happened at this little isolated example of the back and forth and back and forth with the judge going, I said what I meant and I meant what I said.

is exactly what happened at the arraignment before the magistrate judge, where one of Mr. Trump's lawyers kept on saying, well, we need more time to tell you what trial date we'd want, and we can't really respond within a week, and we wouldn't be ready. And the judge says, no.

no, the district judge wants you to respond within one week. And so she's going to tee this up and decide if I always tweet it. And the defense lawyer continues and it goes back and forth. And then finally the magistrate judge says, okay,

I hear you and you're ordered to do this. It reminds me this is the same thing. Now, I understand a defense lawyer has a job to do, but this really reminds me so much of something that Judge Deary, if you remember Judge Deary from the special master fame, he once said in court when a defense lawyer kept on doing this, he stopped him and Judge Deary is incredibly polite, but he goes, "I don't think you understand."

This isn't a conversation. Right. That's right. There's one person in the courtroom in a black robe behind a bench, and that's the judge. And the judge actually gets to rule what happens in the courtroom. And he gets to end the discussion when he's ready to end the discussion. And sometimes I think attorneys forget that if they don't like the order, if it's an appealable order, they can appeal. If it's not appealable, they got to wait till the end or seek mandamus or something else. But at some point, the judge gets to say, I'm done. I've ruled. We're moving on.

More prosecuting Donald Trump, a protective order, in just a moment.

MSNBC's Lawrence O'Donnell. I have an obligation to find a way of telling this story that is fresh, that has angles that haven't been used in the course of the day, to bring my experience working in the Senate, working in journalism, to try to make sense of what has happened and help you make sense of what it means to you. The Last Word with Lawrence O'Donnell, weeknights at 10 p.m. Eastern on MSNBC.

So big picture is on Monday by five o'clock, the defense will submit any and all objections they have to the protective order, and then the district judge will rule on it. But big picture, sort of what this is about is that any delay in terms of discovery, the district judge is more likely to tag the defense team and understand what's going on. It

is a real sign. The fact that she was so on top of this and issuing two essentially rulings over the weekend is clearly focused on the issue of the trial date. It doesn't mean that the government's going to get what it wants, but she is

obviously very focused on it, but it also shows the parties are very focused on it because the whole ball of wax here really is the trial date with respect to the D.C. case. Will it be before the general election or even before the Republican nomination so that the electorate writ large, or at least the Republican electorate, will have that ability? Well, Mary, you made reference to that

this was a vehicle for the government to also get before the judge. One of the, I keep on saying tweets, now with the term ex- - I don't even know what you call them. - I don't even know what to call it. - Yeah, I don't know what you call them. - Ex-tweets. - But that's not what he used anyway, I think. He used his truth. - I have problems, Mary, even saying that because I think that there's too much irony between talking about Donald Trump and a truth social because maybe untruth social. - Yeah, I think we just call it a social media post

Because that's what it was. Love it. Love it. Nice and neutral. Okay. So in addition to that very, very ominous one, where, by the way, on Thursday, he swore under oath to the magistrate judge that he would not retaliate and understood that a crime while on bail includes retaliating against jurors and witnesses. So he- The government, prosecutors, anybody, right? Yep. So he issues that generalized threat, in my view, and-

And he then also attacks Mike Pence. He attacks Jack Smith. He attacks the judge. Throughout the weekend, yep. Yeah. So this is now in front of the judge. Obviously, this is an ongoing problem now for three judges and three criminal cases. There are also civil cases as well. I mentioned the E. Jean Carroll case.

This is actually a really interesting issue because I know in my heart that what Donald Trump is doing is

taunting and egging on the government and the judge to do something so he can claim he's the victim. He is the victim and use it to denigrate them in his base. So he knows exactly what he's doing. And use it to move for recusal of the judge and a change of venue, et cetera, et cetera, et cetera. He's going to do that. Yeah, he's going to do that either way. He's going to do that, but it'll be fodder. And this just helps him in the one court where he actually has...

an ability to do something because in my view, these cases on the face of it are unbelievably strong. So this is a total sort of play on his part. And he really, I think, knows what he's doing in terms of calculating the Greek tragedy of this, which is the government has a responsibility to act in

if it thinks that this could cause harm. They may not be worried about themselves, but they're going to worry about witnesses, court staff, jurors, judges, judges' families, their own families. I mean, the security complications here, right, are really immense in terms of people who are going to need security who wouldn't in an ordinary case. So I...

I was in this situation with Mueller. I still remember the marshals saying they wanted to come to my house and they were going to do all this stuff. And I was just like, you know what? I just can't live that way. And whatever's going to happen is going to happen. But I could make that decision when it was me and it was just me. When you're dealing with

and family members and jurors and staff. I mean, it's just a very different calculus. The reason you're in the government is to make sure that stuff doesn't happen. And mind you, I don't think you and I are talking about necessarily thinking that Mr. Trump himself is going to reach out and do some type of retaliation. But this kind of social media posting, these public statements out when he's speaking publicly,

These often are what spur other people of his supporters to go and do something. And he knows it. Because it's happened before. Of course he knows it. Of course. After the Mar-a-Lago search warrant, after he called it a raid and heavily, heavily criticized the government for having been weaponized against him, we had an attempted attack on an FBI office. And let's face it, part of what's alleged in this indictment is that there was an attack on the U.S. Capitol, a violent attack based at least in part on things that

Mr. Trump was saying. So let's talk a little bit, Andrew, though, about what can the judge do about this? Because this is really challenging when you are talking about somebody who is a candidate for office and has a First Amendment right to be campaigning, to be speaking, to be saying publicly this case is garbage, it's made up, it's

political persecution. He can say all those things. He has a First Amendment right to say them, whatever we may think about the merits of what he says. But what he doesn't have a First Amendment right to do is to threaten people

or to threaten retaliation against people. And so the question is, how does the judge police that? First, will Jack Smith even ask for anything? Because this protective order, what it does is it says that any discovery we provide cannot be talked about publicly. So this protective order is not necessarily going to be adequate to prevent

this kind of social media posting, right? That's a whole separate thing. Yeah, this is not requesting that bail be revoked. It's not requesting that bail be revised. It's not even asking the judge to talk to the defendant.

Let me just play devil's advocate. Let's assume that this was specifically calling on violence with respect to a witness. Yes. And some people who are listening to this may think that is exactly what it is, but let's assume it was more explicit. Let's assume he named names. Yeah. And it was more explicit in saying that they need to be attacked, something like that. As the former president likes to say, Joe Biden ran his campaign from a basement.

It is a privilege to run for office. It is not a right to be able to do it in a certain location or in person, as opposed to using social media or Zooms or Skypes or all sorts of things. And yes, it is a factor. It is definitely a factor, but you have to weigh that against what he's threatening to do and what he agreed he wouldn't do. Let's just remember, he is out on bail on three criminal cases.

Being out on bail means that your rights are restricted. You don't have the same rights. That's what it means to be on bail. Many people can't go to certain locations. They have to wear ankle bracelets. Some people have to live at home. There are all sorts of restrictions that you have. Guess why? Because you've been indicted and here he's been indicted twice.

three times facing six, count them, six counts of obstruction of justice, four in D.C. and two in Florida. Now, having said that, I'm just going to go out on a limb and say I don't think that the judge will, nor do I necessarily think the judge should, just say I'm going to bring you in, I'm going to remand you, meaning I'm sending you to jail. And just to be clear so everyone understands, if you see a threat,

by a defendant against a witness that violates what they were told their conditions of release are, because that would be arguably committing a crime as well as retaliating, that would be grounds for that defendant to lose the privilege of being able to be out on bail before trial. And it could result in the person actually being detained before trial, incarcerated before trial, because they violated a condition of release. And I agree. I don't think that's going to happen here. Right.

But I do think that Judge Tutkin does have other things she can do. She can bring Donald Trump in. She can explain exactly what is and is not allowed. That happened with Roger Stone. She could also have a hearing. And that was Judge Amy Berman Jackson with respect to Roger Stone. Exactly.

And she could have a hearing to go over what happened and have a hearing about who said what and to make sure these were the defendant's own social media posts. She can also restrict what he said, or she can also make sure that they are not posted unless they are previewed by counsel.

So this is what I've been thinking about as an intermediate step here or a next step, potentially after a hearing, after giving him a time to be heard. What about saying, I guess two things, you can't post social media posts without having your counsel review them, or even you can't post anything about this case without having, I don't think the court wants to be in the position of reviewing them, but without having court review. I think saying you can't

just post anything about the case, I don't think she would do that. I think that would be something that he would appeal as being a prior restraint. But I think having counsel look at them, and frankly, if I were counsel, I would want that because right now I think counsel, you know what I mean? Like counsel right now probably feels like he just doesn't have any control over what Trump posts. And then counsel would be able to say, look, you've been ordered to clear these through me. And if I tell you, you can't do that because it's going to violate your conditions of

release, you need to listen to me. If I were counsel, I'd want that. Yeah. Do you agree with me that Judge Shetkin's likely to say something? I think so. I think you just can't let it just sit there. And we don't know how many more there'll be by the time we get into court. Right. And it's like a child. If you don't say anything, it's just going to get worse. And if violence does happen, I mean, if I were in the government and violence happened, I'd be mortified. I mean, it

the sense of responsibility. Let me just quickly go over something people have heard over the weekend, which was the other thing that Donald Trump was doing. It was denigrating the judge, denigrating the jury pool in D.C., which is obviously it's a very heavily Democratic area. It's also a very large community of black and brown citizens. And I can't actually stop

focusing on the sort of racism that's, it's not even just under the surface, it's at the surface. Those issues of a motion to recuse and motion for change of venue are entirely being done as a public relations issue for his base. There is no basis to recuse the judge that we are aware of.

Judge Chutkin hasn't even had a hearing in front of her yet. Not in this case. Right. All we have so far is an order. Yeah. So it can't be that. On change of venue, I've litigated that so many times, both in the Mueller investigation and Enron, which the leading Supreme Court case came out of Enron and the Skilling case. And also the Watergate defendants all tried to get out of D.C. Paul Manafort tried to get out of D.C. and they were blackmailed.

boldly said, basically, I want a jury poll with Republicans. That's not the law. You don't get to basically pick your jury poll that Donald Trump talked about having around this trial in West Virginia. That's not happening. None of that is happening. It is not the law. When you have a case of national significance where everybody knows about it everywhere, the remedy is not moving it because it doesn't do anything.

What the remedy is, is that really searching jury selection process to make sure that you have a fair and impartial jury. That's what's been applied over and over again. So this is entirely done so that when it's denied, he goes to his base and says,

see? And then if there is a conviction here, he says, see? I mean, this is all being done for a different audience than the legal audience. I would note also that, you know, the idea of a change of venue, right, is all based, again, on your constitutional right to a fair and impartial jury and due process, etc. And so,

When we're talking about pretrial publicity, in many cases where people will move for change of venue, it's because there's been a lot of publicity by the media. Well, of course, here there's been a lot of media publicity. But who else has the publicity come from? Donald Trump himself. Yes, yes, great point. Donald Trump himself. I mean, that is not usually the case. And so to say I can't get a fair trial here because of publicity. Because I tainted the jury. Right. So it's kind of.

You know, it's kind of ridiculous in and of itself. So I think there's no basis. Like you said, just the fact that the socio demographics and the political demographics of a particular place maybe don't align with the person's politics who's on trial is not a basis for a change of venue. So that's all going to play out. But like you said, right now, it's just part of, again, the public facing. Let's talk about this as much. Let's try this case in the court of public opinion and not

in a court of law. And frankly, his own attorneys were trying to do some of that, have been trying to do something that as well. It's surprising to me to see so much public discussion of the merits of a case

by his attorneys. Normally, that's something that attorneys for the government certainly don't talk about publicly. And even attorneys for defendants are careful about how much they talk about. And here it seems like when he didn't have time to file an opposition to the protective order because there wasn't enough time, he certainly had time, one of Mr. Trump's lawyers, to go on, I think, five different morning shows on Sunday. More prosecuting Donald Trump, a protective order in just a moment.

MSNBC's Lawrence O'Donnell. I have an obligation to find a way of telling this story that is fresh, that has angles that haven't been used in the course of the day, to bring my experience working in the Senate, working in journalism, to try to make sense of what has happened and help you make sense of what it means to you. The Last Word with Lawrence O'Donnell, weeknights at 10 p.m. Eastern on MSNBC.

So that's a really great segue to Mary and I are going to

do a whole episode on the various defenses, but it really takes a lot of time to go through them and parse them out. So we're going to do a bit of a deep dive into the defense du jour. And one of the reasons that's good to put it off is because as shores, we're sitting here talking to each other, that list is going to get longer and longer because it's clear they're sort of crowdsourcing different defenses. And I put defenses, you can't see it.

but it's air quotes. Yes, in quotes. But why don't we talk briefly about Georgia and what's going on there? Because one of the things that I think we had talked about and I think everyone was speculating is that she might hold off until August 10th because there was a judge who...

who was going to decide the recusal issue. It was largely moot from the decision by the judge who was overseeing the special grand jury, saying that there's no issue here. And in a footnote said, this kind of moots out your second duplicative decision.

mandamus petition to this other judge. Well, sure enough, what does Donald Trump do? He withdraws that case. Why? Because it's not good for him to be defeated again in court. To lose again. Yeah. And he'd lose again. And it is better for him to be operating in the world of

subjective adjectives and adverbs rather than in a place where facts and law matter. I thought about this a lot in terms of the January 6th case itself, which is that they went to court over and over and over again and lost. And in many ways, that's such a bad fact for him because he likes to operate in the world of spin. And as I said, just meaningless adjectives and adverbs and labels and epithets

not in a world where facts and law matter because he lost all of those cases. So this is a way of withdrawing that so you don't have to deal with that. So now there's just a free shot going forward for Fannie Willis. And so it really could be any day now. Mary, I know you and I are probably seeing the exact same reporting of, you know, increased

security at the courthouse. One nice thing is that we haven't seen a lot of demonstrations and things going on, whether it was in New York, whether it was in Florida, whether it was in D.C. But it's it's

I think it's totally right that the police and the marshals are prepared and preparing. Better to be safe and not need it than not be safe and really need it. And I have, you know, seen reporting of various witnesses who've been asked to come speak to the grand jury over the course of the month. So I tend to think

we're not going to get an announcement until those witnesses appear. But I think that doesn't mean that it wasn't a good idea to go ahead and get security around the courthouse because even for these witnesses and for the grand jurors coming in and out, et cetera, I think it's important to

that there's security there. And also for anyone who's thinking they might want to cause trouble, it's good for them to know that all these precautions are there. It's not, this is not going to be an unprotected environment. Right. And so that leads us to really breaking news, which is what Judge Cannon did. And

Maybe I'll give Alyssa a little backup to it and then Mary, you take it away in terms of what she did with it. But last week, the government filed something that I have filed a lot in my lifetime, which is asking for a hearing when you know that a lawyer for a defendant represents other people or represented, past tense, other people where there could be a potential conflict.

meaning that there's different interests. The Sixth Amendment to the Constitution requires that a defendant have conflict-free counsel or that they waive the conflict, meaning that they understand the conflict, but they're willing to accept the counsel anyway. So

The government said, look, there are three other people who we understand Walton Outta's counsel, Mr. Woodward, either represents or had represented. And one, two, or all three may be witnesses here. And one of them may have their own liability. And that means that

If you have represented or represent that other person, you can't cross-examine them because you can't make your current or former client look bad because you owe a duty of loyalty to each of your clients. You obviously also cannot use information that you got from one client and give it to another client unless it's with permission of...

of that client. And to be clear, I may have said this, and I'm sorry to interrupt if you did, Mr. Woodward represents Mr. Nauta, who is the indicted defendant in this case. So when they're saying we want a hearing on whether he has a conflict because he also represents these three people who might be witnesses against Mr. Nauta, we're talking about like a direct actual conflict. The other is you are required as counsel to advise your

your client, whether it's in their interest and what the pluses and minuses are with respect to cooperation. If your client A could give information about client B, that's a huge problem because if you represent client B, that person's interest is that client A doesn't cooperate, but client A may have an interest to cooperate. So these are all

that, just to be clear, what the government's doing here is actually protecting the Sixth Amendment right of Walt Nauta. Of Mr. Nauta. And by the way, if they don't do it and it later comes out that there's this problem, the entire case against Mr. Nauta, the conviction, can be overturned and you have to go back to square one and

redo the case. So there is some self-interest in that, but it's self-interest about protecting that person's rights. And very often the defense lawyer doesn't have that interest because they're thinking, hey, if there's this conflict and the government hasn't gotten all these waivers, my client might get two bites at the apple.

meaning that even if they convicted, they can then say there was a problem. So that's the reason for filing this. I've done it a lot. We did it with Rick Gates most recently. We actually used to give a script to the judge, a proposed script of the kinds of

Questions to ask, right. Questions that you have to do, and that was tailored to some law in the Second Circuit here in New York. But other jurisdictions, including Florida, have their own case law that requires the same thing. So that's sort of the background for why this is being done. And I should just say, we're gleaning this not from the motion itself, because those were

filed under seal or attempted to be filed under seal. We're gleaning this from Judge Cannon's order today on Monday, where she orders Mr. Nauta to file a response. - So Mary, that's a lot of legal background for people. I always feel like this is a crash course for the country and like criminal procedure. By the way, if you were thinking that you wanted to take my criminal procedure class at NYU, there's no reason. You can save tens of thousands of dollars

Because you're getting it here free, Mary McCord, Andrew Weissman online course. Now, you don't get a JD at the end of it, but you know some stuff, right? Okay, that's a little small difference. Right. So anyway, this morning, Monday morning, Judge Cannon filed an order. And one of the interesting things about this order, she sets a briefing schedule for Mr. Nauda to file a response to the government's motion for this hearing on conflict. But she specifically...

his lawyer to argue certain things, to make arguments about certain things, including the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district. On that front, Mary, maybe just say what she said about the government's filings, about which they had made this motion and they'd filed two things under seal with her.

presumably about exactly that, the grand jury matters. And...

What did she do with that? Well, this is what's really interesting because everyone who listens knows we've said time and time and time again that grand jury proceedings are secret and the government can't talk about them publicly and the grand jurors can't talk about them publicly, but a witness could. So the government, obviously, when it filed its motion for a hearing on conflicts, asked to file some supplements under seal, pretty obviously, because they referred to grand jury matters. The judge really...

surprisingly to me, denied that motion to file under seal saying that... Yeah. What's the big deal? It's so what? It's a grand jury matter, Mary. I don't understand why you're being so scrupulous on that. There's that rule, rule six, you don't reveal grand jury matters publicly in a court filing or any place else without permission of the court. So I... Oh, Mary. I'm so old school. I'm such a

By the way, this is like one of the rare times where Mary and I, before we started, we actually just had to get this off of our chest because we both were like, what? Yeah. What is going on? I can't figure out why there's words of basis to seal this. So it's denied when it's grand jury material. I'd love to be a fly on the wall. The government has to be, okay, let's take out the really, really big crayons and explain why.

how grand jury material works. So that was problem number one. - And then the other is this interesting directive to Ms. Darnotta specifically, and we kind of have to read some tea leaves here that there's something that maybe the government may be doing that she thinks is improper.

with using an out-of-state grand jury. And now, we've talked before about once you've returned an indictment, you can't use a grand jury just to, like, get more evidence to support your indictment. But what you can use... But she wasn't really even talking about that. No, she's not. Yeah, she was, like, saying you're using some grand jury in some other district, like D.C., for instance. And so she said, can you please explain why you were using a grand jury outside of

Florida. Well, Mary, you tell, you go because I'm too upset. So this is where I think a couple of things are apparently offending her, that there's other grand juries and paneled elsewhere. But remember, Jack Smith has had multiple grand juries because he's got multiple investigations.

And it's certainly possible that even in the J6 investigation, and we know Mr. Nauta represents at least a few people who've been witnesses in that investigation, some things may have come out relevant to Mr. Nauta, relevant to Mar-a-Lago. And I should say, when she denied the motion to seal, that doesn't mean they suddenly became public. That means they just aren't going to be permitted to be filed. So now the government has to decide how do we get information in front of the court that we think needs to be in front of her if it's not going to be under seal. And

And so we still don't know what is in there that is causing her quite the same frustration. And what's crazy is that Judge Cannon, on her own, said to Mr. Nauta, please address the propriety of them using this grand jury. Shall address. She ordered them. Here's the problem. Here's why I'm really upset about this. Again, it's tea leaf reading, but here's the issue. There are two things. One, a grand jury...

if they have a good faith basis, can investigate any crime that happened in that district, period, the end. So they could end up being wrong and it didn't happen there, but that doesn't mean they didn't have the power to investigate. A grand jury has that ability to look at potential crime in their district. So that means any crime that happened in their district.

If you're of a D.C. grand jury, the issue is, is there some crime that happened there or would otherwise be permissible to be investigated there because of a particular venue statute? There's a lot of ways and there's a lot of ability for a grand jury to look at crime that affected or happened in that district. Two, you can...

actually bring a case, bring the actual criminal case in all sorts of districts. Any district where the crime occurred can be brought there. And some criminal statutes actually have specific venue provisions that say you can bring this case either where the crime occurred or essentially where the victim occurred.

the intended victim of the crime. So the obstruction statute is one of those statutes. It actually has a venue provision that says you can bring this case in any district where the crime occurred or where the investigation that was intended to be obstructed

occurred as well. So there's lots and lots of potential reasons for, let's say, D.C. to be an appropriate venue, as well as, by the way, maybe other districts as well. So it's just an odd thing to me to see a judge questioning that. And it suggests to me a lack of

understanding about both the venue provisions in 1512, but even more importantly,

how a criminal investigation can work, where you don't have to know before you go to the grand jury what crime has occurred so you know where to, where the grand jury to bring it to. What I take from this, Andrew, is that she just thinks there's something improper. She hasn't thought through the various ways that this could have been being looked into by other grand juries. She's thinking, you're continuing to investigate this case

This case, it's already in front of me. That's already indicted in order to just get more evidence because that seems clear from what she's saying. Address the legal propriety of using an out-of-district grand jury to continue to investigate. And so...

she's got in her head that there's some impropriety there and she's going to address it. Yeah, and I think it's a combination of using the continuing one, but also why out of state? Yeah, I think she's offended by that too. We're guessing a lot here because we haven't seen the sealed motions or the sealed pleadings. And so we don't know exactly what the government

is trying to tell her about this out-of-state grand jury and what they're doing. But it's clear she's got a view, at least a view that she wants to hear more about.

So, Mary, there's just so much that we're going to be talking about going forward. So lots of things that are going to be happening in Florida in that case. Of course, so much is going to happen in the D.C. case. So, Mary, you and I are going to come back and do a deeper dive into the defense du jour. And then obviously we're all waiting for the fourth criminal case.

to be brought this time in Georgia. So Mary, where are we? Monday? We're Monday. Okay. We'll talk really soon, I'm sure. Yeah, absolutely. Looking forward to it. If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod.

or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more. The senior producer for this show is Alicia Conley. Jessica Schrecker and Ivy Green are segment producers. Our technical director is Bryson Barnes. Katherine Anderson is an audio engineer. Jan Maris Perez is the associate producer. I

Ayesha 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.

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