Transcript of Legal expert explains what should concern Trump’s defense attorney

It's the so what moment that really stood out. It seems like there's an indication of who this person is. An assistant to the President who worked very closely with Donald Trump is not someone who has broken with him in a real way. But when you read this, this person ran in to try to get Trump to call off the crowd, understanding what this information could mean to Trump, and he just responds, so what?

Well, this is why the brief is so interesting, because I believe the brief actually said they don't intend to try to admit that into evidence, but it's there. Why is it there? Because this is a two-part document, right? This is for the public. This is for us to all say, wow, this is a really powerful case against the former President. This is really, really bad. Had what he did. It's also, of course, trying to convince Judge Chuckkin and the judges up the chain that all of this evidence should come in because it's not subject to the Supreme Court's immunity decision. So it has those two things, but that is really more of an atmospheric point, I would say. They don't intend to try to admit that, but they want everyone to know this was a bad guy acting in bad faith, and the case against him is really powerful.

And for everyone following along at home, what they're trying to do is say, Hey, despite what the Supreme Court said about presidential immunity, we still have a case here. This can still go to trial. Joey, part of that is a criminal defense attorney. How did you see it when they talk about how they say they have someone from the FBI who can testify to the activity on Trump's phone that day, that his Twitter app was open during afternoon of January sixth, that he was using it paired with Dan Scavino's testimony, that only Dan Scavino and Donald Trump had access to that Twitter account.

Yeah, Kaitlyn, as a defense attorney, I'm concerned about this for a number of reasons. What's this? This is the motion which lays out from Jack Smith's perspective, what's going to be admissible, what is my proof, what is my evidence? And it's not only about the cell phone data, it's about a number of things. Number one, I see Mike Penn shaping up to be an all-star witness here. Remember, you would think under the conventional wisdom of that Supreme Court A case that you can't talk about Mike Penn, right? Immunity applies. He's the vice President. Don't touch it. No. Jack Smith says, wait a second. It's a presumption of immunity. However, who is Mike Pence? His running mate. What are you doing? Running as a candidate, not as President. So you're going to have Mike Pence really taking the stand if it moves forward, giving damning evidence with respect to the conversations he had with his boss concerning this fake elector scheme, concerning his presiding over the Senate and and ditching the real ones and putting in these other ones. And so that's going to be problematic. What else, Kaitlyn? I'm concerned as a defense attorney, all of these statements that were made and things that were done with the state people coming from Arizona, Georgia, Wisconsin, Pennsylvania, take it as you will, but all of the pressure on them.

And then when the outset of this segment, you showed the January sixth, that's all coming in because that was the culmination of this pressure upon everyone to say, I won, you lost. There's a lot to work for and work with as a defense attorney to refute if the matter goes forward and all of this comes in.

Yeah, and their names are redacted. Brian Kemp and Doug Ducey, who was then governor of Arizona, Brian Kemp, still the governor of Georgia. It says P17 is Georgia governor, and then Brian Kipp is blackout. I think we know that it's him, but it talks about how Trump had this intense pressure campaign on them to overturn the results. Doug Ducey at one point, is saying, Okay, send me your evidence. What are you we're looking at, Trump never gets back to him.

Yeah, I'm packaging it all. We're packaging it, and we're sending it right to you. And of course, there wasn't anything to send. And that's part of the scheme, is we're going to tell you something's coming, but we just need this to happen now. We need you to do it for us now, and then don't worry about it. We'll fill it in on the back end. Then when they say no, they shift to another thing. I mean, what this brief is very good at is demonstrating that they worked in a whole bunch of different ways, a bunch of different angles, coming at it from every possible angle. And when something didn't work, then they would shift to something else.

Is it Supreme Court proofed just on your read of it?

I think it is. They obviously took out the DOJ stuff, which they had to take out. Is it a stretch on the Penn stuff? They do have to convince the judge that the presumptive immunity doesn't apply here, but I think they've done it. I think they've done it. I would be a little hesitant because I also wouldn't have said that the Supreme Court would say that pence, while acting as President of the Senate in terms of the certification, should have been even presumptively immune. So who knows? But I think they've done a good job with it.

And Trump is responding to this tonight. I think we have a quote from him on camera. We'll see if we have that in a moment. But Joey, what he was saying on Truth Social is that the Justice Department is disobeying its own rule by putting this information out this soon. Obviously, with the argument about how close to an election you can take action against one who's running in said election. Does that apply here, given this prosecution, this indictment happened over a year ago?

So Here's what I'd argue, Kaitlyn. His team, that is the former President, has gone through great lengths at delaying, delaying, delaying. To the extent that we are here in this process now is not the fault of the Justice Department. It is the fault of your team in attempting to delay it. Keep writing on Truth Social. If you look at everything about this 165 pages, there is tweet after tweet after tweet that the special counsel is seeking to admit into evidence suggesting this is not official conduct. This is him, again, being a bully from the bully pulpit as it relates to state actors, attorney generals, governors, et cetera. As it relates to pence, you better do the right thing. The more he tweets, there's a lot of admissions in there from the former president that I think are going to be problematic at trial.

Yeah, that's a good point. Stand by because we also have an attorney who previously represented Donald Trump on this case. Jim, trustee, joining us. Jim, as you look at this, what do you make of the new evidence that we got today? How strong do you think it is? How worried would you be if you were still representing Trump in this case?

I'd probably be angry more than worried. I mean, you can't overreact to a government pleading, but I want to go back to what Jennifer started with, which is really an important comment here. This is a pleading that is for public consumption as much as it is for actual legal logistics. I mean, look, you can have a death penalty trial where your limits, your page limits for a filing in an important case where life and death rides on it is 45 pages. This is 165 pages. It includes a lot of gratuitous information. A lot of what I would say is optimistic information when it comes to Mike Pence and Mark Meadows. I mean, those are under the Supreme Court ruling. It's a real stretch to pretend that President Trump turns to Mike Pence and says, I only want to talk to you in your context of being the President pro tempore, that you're a legislative Mike Pence for this moment, not an executive one. I think this overreaching when it comes to executive privilege, blowing up attorney-client privilege. You've got a document before Judge Chutken that she's got to look at and decide if every single aspect of that is admissible, everything that they're trying to get in.

If it is admissible on her level, it's still going to go right back up the chain and end up to the Supreme Court because this is new territory, difficult territory, but they're reaching. They're going too far when it comes to Pence and Meadows because they're obsessed with having them on the witness stand someday.

But that's a good point about it will be appealed, whatever this decision is. We know that that horse has already left the barn. But on the quotes from Trump about the details don't matter, and it doesn't matter if you lost or won, just fight like hell, doesn't that undercut the defense that we've seen, which is that Trump just wanted to have a free and fair election, wanted to make sure all the votes were counted?

Look, I think he can't take this as gospel. I mean, the bottom line is it's a very politicized pleading. We just heard comments about how the defense was trying to... First of all, there's plenty of people in there that probably have axes to grind. There's going to be honorable people and dishonorable people. But this is not the crucible of cross-examination. This is a Jack Smith pleading for both the court and for public attention. Again, in a case where Jack Smith pushed this ridiculous theory of a speedy trial, that a non-incarcerated defendant who is waiving speedy trial really had to go to trial before Super Tuesday. That's the tell here that this entire thing is politicized. A real Department of Justice wouldn't be pushing for a speedy trial. They'd say, We're going to be transparent. We're going to turn over everything we can turn over, and you tell us when to try it, Judge. That didn't happen here, and that poisons everything that comes after it.

Well, I mean, the judge here is the one making the decision. It's not Jack Smith who released this today. It was the judge. But Jim, you represented Trump on this issue. So when Trump is claiming and his team is arguing everything that was done was in his official capacity as President, therefore, they've argued none of this can go to trial. The special counsel is saying, It's hard to imagine stronger evidence that conduct is private than when the President excludes his White House Council and only wishes to have his private Council present. I mean, if it's White House business, why would the chief attorney in the White House not be allowed in the room?

What's great about that is what follows next are what would traditionally be covered by attorney-client privilege communications. There is no executive privilege, no attorney-client privilege in the mind of Jack Smith during this whole investigation. He had to go to a new grand jury to clean up the indictment, to straighten it out in terms of the potential for what was going to be admissible at this trial and what's going to be fought over in a hearing. If he's made one mistake from appellate review, if any of this is an overreach, it's not just that he had something inadmissible, it's contaminating the grand jury. So this really reeks of, you can call it optimism, you can call it desperation. But this is an effort to get his whole story out, to hope that the trial judge will agree with them 100% across the board, and to have the public opinion sway on various quotes from various people. And look, maybe some of these folks have it right. Maybe he said things that were frustrated that he never should have said. Maybe they've got an ax to grind. But you're talking about the politicized process of challenging an election, very publicly, in many instances by this president, becoming the new ground for criminal prosecution, not for insurrection, but for insurrection light.

There's just so many problems with this special counsel. By the way, keep in mind, you've got a motion coming to track the Florida motion that got rid of that case for appointments clause.

Insurrection light is a new one. We'll see where that goes from there. Thank you so much, Jim Trustee. I do want to take us now to the comment that Donald Trump made on camera tonight, reacting to this new filing from Jack Smith. Here's what he had to say. He's a deranged person. I call him deranged Jack Smith. He works for Kamala and he works for Joe.

This was a weaponization of government, and that's why it was released 30 days before the election.