In the latest update of the "Jack" podcast, former FBI official Andy McCabe and legal analyst Allison Gill pointed out that Donald Trump and his co-defendants have a knack for using court procedures to make wild claims at a time that the special counsel can't respond.
The way court filings work is that the two sides go back and forth in three motions and responses. When Trump has made the motion, in the final response — when Jack Smith no longer has the chance to counter — his legal team routinely makes unsupported accusations, the legal experts claimed.
HIs final filings have also introduced defenses that were not part of the initial filing and defense claim — which is against court rules, the pair said.
As "Jack" co-host Gill, who is behind the legal X account "Mueller, She Wrote," explained, "Usual motion practice includes a brief, like a motion to dismiss, that is followed by a response from the government, then that is followed by a reply from the person who filed the initial motion."
"The rules about motion practice say you cannot raise new arguments or present new facts in a reply that weren't included in your original motion or your original brief," Gill explained.
There's also the matter of this whole case being on a "secret docket," because it involves classified information, and it has been largely quiet as a result. In fact, because the case involves such secret information, the documents aren't even given electronic case filing numbers.
So, the language in public filings ends up looking like organized crime, joked McCabe, because they must refer to "that thing filed on that one date."
Such was the case last week when co-defendant Walt Nauta made a filing to which Smith couldn't respond, claiming a slew of new defenses, alleging vindictive prosecution and other things as his final filing, and demanding that the case be dismissed.
So, Smith filed something publicly asking for permission to reply because the allegations didn't follow court procedure.
"I think this is really interesting — why he filed this on the public docket in a minute," said Gill, before quoting Smith's response to Nauta.
“Arguments and factual assertions not presented in an opening motion and raised for the first time in a reply brief are not properly before the Court," wrote Smith. "These repeated attempts by the defendants to reserve arguments until their reply briefs in order to prevent the Government from responding serve neither the Court nor efficient process, and they should stop."
He goes on to allege that citing “his attorney’s conversation over coffee with a prosecutor” as proof that he is being vindictively charged for refusing to cooperate with the feds is also without merit. Nauta has claimed the government told him that it would make a deal with him, but only if he cooperated fully. He's saying he is only being prosecuted because he wouldn't help the feds.
"In its response, the Government explained that Nauta’s arguments were meritless because, among other things, his decision not to testify before the grand jury was not an invocation of his Fifth Amendment rights, and the Government’s decision to charge him after he declined to cooperate did not amount to vindictiveness as a matter of law," wrote Smith.
Coming up with these claims at the last minute is either "by design or neglect," said Smith, and "the result is the same: the Court should disregard the arguments and evidence."
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Smith stated that U.S. District Judge Aileen Cannon has previously ruled on this kind of “procedurally improper” move and that she should dismiss it the second time it's being addressed.
Gill explained she has personal experience with motions like this, flooding the zone with new defenses at the last minute, and it's all by design.
"They do that because they know you can't respond to it. That's the last thing that they can file on the matter," she said.
McCabe lamented that he wished that just once, the court would penalize Trump's side for refusing to follow the rules.
You can listen to the full "Jack" podcast, episode 70, here.
