• Special Counsel Jack Smith is on a roll this week. On Monday, he asked an Atlanta-based appeals court to revive his federal classified documents case against former President Donald Trump. A day later, he filed a revised indictment against Trump over his efforts to overturn the 2020 election. The revisions were in response to the Supreme Court’s decision earlier this year giving Trump and all future presidents broad immunity from prosecution for their official acts as president. But much of the indictment is the same as the original. Norm Eisen, who served as special counsel to the House Judiciary Committee’s Democratic majority during Trump’s two impeachment proceedings, helps break down where things now stand with Trump’s criminal cases.
• And in headlines: The Supreme Court dealt another blow to President Joe Biden’s efforts to ease the burden of federal student loan debt, Israel carried out its largest raids in the occupied West Bank in at least two decades, and the 2024 Paralympics are underway in Paris!

Show Notes:

• Check out Norm’s piece for Just Security – https://tinyurl.com/yc5xbzk3
• Subscribe to the What A Day Newsletter – https://tinyurl.com/3kk4nyz8
• What A Day – YouTube – https://www.youtube.com/@whatadaypodcast

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TRANSCRIPT

Priyanka Aribindi: It’s Thursday, August 29th. I’m Priyanka Aribindi.

Juanita Tolliver: And I’m Juanita Tolliver and this is What a Day, the show debating drinking unfiltered glacier water like Ludacris in this week’s viral video. 

Priyanka Aribindi: Listen, we have some differing opinions on this. That sounds– 

Juanita Tolliver: 100%. 

Priyanka Aribindi: –quite refreshing to me. Ludacris is still alive and well, so I’m convinced. 

Juanita Tolliver: I need to see it tested in his bloodstream two weeks from now to see how he’s doing. 

Priyanka Aribindi: I need it in a Voss bottle right now. That’s what I need. 

Juanita Tolliver: Not Voss, like the club water. [laughter] On today’s show, Scotus rejects the Biden administration’s SAVE student loan plan. Plus, the 2024 Paralympic Games are underway in Paris. 

Priyanka Aribindi: But first, earlier this week, special counsel Jack Smith issued a revised indictment against former President Donald Trump over his efforts to overturn the 2020 election. Not much has changed. Trump still faces the same four felony charges tied to his actions on and leading up to the January 6th insurrection. But in Smith’s revised indictment, he stripped out the parts that would almost certainly fall under Trump’s official acts as president, like his interactions with the Justice Department. As for the rest, Smith seems ready to argue that the bulk of Trump’s actions should actually be interpreted as those of a private citizen running for office. These revisions came in response to the Supreme Court’s ruling earlier this year, giving Trump and all future presidents broad immunity from criminal prosecution for their official acts while in office. 

Juanita Tolliver: The new indictment was filed just days before the Friday deadline for Smith and Trump’s lawyers to file paperwork with the judge overseeing this case, Judge Tanya Chutkan. The two sides are supposed to detail how they want to proceed with the case in light of the Supreme Court’s immunity decision. It also was filed just ahead of the Justice Department’s unofficial 60 day rule, which stipulates that prosecutors should avoid actions that could influence the way people vote in the two months before an election. 

Priyanka Aribindi: Yeah, going to go out on a limb here and say that James Comey never uh, heard that one. 

Juanita Tolliver: Oh my goodness. 

Priyanka Aribindi: I don’t know. Our memories are short, but I just don’t think he got that memo. There are a lot of questions about what happens next here. So for those answers I spoke earlier with friend of the pod, Norm Eisen. He served as special counsel to the House Judiciary Committee’s Democratic majority during Trump’s impeachment proceedings in 2019 to 2020. He’s also the author of the book, Trying Trump: A guide to His First Election Interference Criminal Trial. I started by asking Norm about the ways that Smith’s new indictment differs from the original. 

Norm Eisen: Jack Smith’s new indictment is 36 pages instead of 45 pages, so it’s a [laugh] a little shorter. It is missing the one thing, he’s taken it out, that the Supreme Court said cannot be covered, which is official conduct, whether you agree or disagree. I disagree with the Supreme Court opinion. That has been pulled out. That mostly is Donald Trump’s contacts during the attempted coup with his Department of Justice because, the Department of Justice, there’s a reasonable argument, hey, that’s official, but everything else remains the same. And I think that if Donald Trump doesn’t get reelected, this superseding indictment, that means replacement indictment is going to put him in jail. 

Priyanka Aribindi: Is it surprising that this new superseding indictment isn’t wildly different from the original? The sense after the Supreme Court’s decision was that it had completely upended what the case had been. 

Norm Eisen: It’s not surprising to those of us uh who looked at the Supreme Court decision and looked at the indictment and parsed it out line by line, including uh your What a Day repeat guest, me. I published a big report several weeks ago at the New York University Just Security website, where we went through with my coauthors line by line, and we said, hey, almost everything in this indictment rides through. And the new indictment pretty closely tracks our analysis. So the Supreme Court did, despite writing a terrible opinion, I disagreed with it in so many ways, it did leave an opening for unofficial conduct. Political conduct. Donald Trump acting as a political candidate. And it turns out that a lot of what he did in the attempted coup was political and personal and not official. So I think, Smith has done a good job of parsing that out in his superseding indictment. 

Priyanka Aribindi: Yeah, I want to go into that a little bit. You know, in the Supreme Court’s opinion, the conservative justices wrote that not only do presidents enjoy absolute immunity for their official acts. But also you know that those official acts can not be used as evidence to support charges over unofficial acts that are potentially prosecutable. So how is Jack Smith sort of getting around that in this indictment? 

Norm Eisen: So starting with the grand jury, they’ve been very careful to identify only conduct by Donald Trump as a political candidate. The one issue that will be interesting for the courts, I think Jack Smith got it right, but there’s going to be a fight over it. How do you treat Mike Pence? They treat Mike Pence not as the vice president because that’s immune, that’s official conduct. They treat him as a candidate, like Donald Trump, and as the president of the Senate, because when Mike Pence is operating and preparing to preside over the Senate, he’s a legislative branch official, not an executive one. So they’ve kind of parsed out Mike Pence as well. I think that Jack Smith has done a good job, but it’s going to get a lot of scrutiny, Priyanka. But I think they’re basically going to say Smith got it right. 

Priyanka Aribindi: Smith and Trump’s lawyers, you know, faced a deadline of this Friday to file paperwork detailing how they would like to move forward with the case in light of the Supreme Court’s immunity decision. So what do we expect to happen next year? 

Norm Eisen: The thing that we know for sure is going to happen is we’ll get these two filings. It probably will be two very different schedules, that’ll be filed on Friday. Then there’s going to be a hearing next week, that’s a for sure as well. And the judge will hear from both sides about their schedule. There will be conversation about the superseding indictment. I expect Trump’s counsel is going to say, oh, judge, this new indictment. It still suffers from the same infirmities. And, you know, we’re going to have to have a lot of litigation over that. Let’s do it after the election. We don’t know whether Judge Chutkan is going to go for that. There are also media reports relating to a mini trial. The Supreme Court said if there’s questions about whether some conduct is official or unofficial, immune or not immune. Judge, you have an evidentiary hearing. According to media reports, Jack Smith wants to put that off until after the election. But Judge Chutkan may say, no, I want to get this over with. You guys file briefs, give him a briefing schedule of a few weeks and be back in my court in September and October. 

Priyanka Aribindi: This week, Smith also asked the Atlanta based 11th Circuit Court of Appeals to revive the federal classified documents case that he brought against Trump. This was the case that Judge Aileen Cannon tossed on the legally questionable grounds, that the Justice Department had no authority to appoint Smith. So what are the chances that the appeals court sides with Smith on this? 

Norm Eisen: Her decision was so outrageous. The Supreme Court decision is nuts. Aileen Cannon’s decision is even crazier. Every court, including the United States Supreme Court, to look at, special counsels, independent counsels, those like Jack Smith have said, under federal statutory law, under federal regulations. Of course, Merrick Garland can say, hey, you prosecutor, uh I want you to look at such and such a case. I mean, it’s crazy to think that Merrick Garland couldn’t hire a lawyer to do an investigation and a prosecution. The law is very clear. The 11th Circuit is going to have no truck with that. They’re going to very likely overturn her decision. They might even throw her off the case. 

Priyanka Aribindi: Just given the timeline here we are fewer than 70 days away from Election Day. What are the stakes of this at this point? 

Norm Eisen: It puts this issue right back in the center of the political discourse for 2024, including because Donald Trump has not unequivocally accepted the proposition that whatever the election results are, he’s willing to grant the verdict of the voters. No. He’s hemmed, he’s hawed. So with a possible second election interference coming, these issues are going to be front and center for voters. And I think that’s a big negative for Donald Trump. 

Priyanka Aribindi: And finally, Trump is still scheduled to be sentenced in his New York hush money trial on September 18th, I believe? That date has been moved back a few times, but do you think we’ll actually see a sentencing that day? And do you think Trump will be there? 

Norm Eisen: This is the single hardest question. Judge Merchan is a very fair judge. On the one hand, he’s going to say, well, it’s a presidential campaign. What’s lost, we’ll just wait another 50 some days. On the other end, he’s going to say these election interference crimes and cover up started in 2015, almost ten years ago. Why should Donald Trump get special treatment when poor and Black and Brown defendants appear before Judge Merchan every day? They don’t get to pick and choose sentencing based on their job requirements. So I think on balance, Merchan is more likely than not. But it’s a close question, Priyanka. More likely than not to sentence Donald Trump, but only one person knows and that’s Justice Juan Merchan. 

Priyanka Aribindi: That was my conversation with Norm Eisen, former special counsel to the House Judiciary Committee’s Democratic majority during Trump’s impeachment proceedings. 

Juanita Tolliver: That’s the latest for now. We’ll get to some headlines in a moment, but if you like our show, make sure to subscribe and share it with your friends. We’ll be back after some ads. [music break]. 

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Priyanka Aribindi: Let’s wrap up with some headlines. 

[sung] Headlines. 

Priyanka Aribindi: The United States Supreme Court dealt another blow to President Biden’s efforts to ease the burden of federal student loan debt on Wednesday by refusing to revive the administration’s SAVE program, which lowers monthly payments for millions of borrowers nationwide. The ruling comes after multiple GOP led states sued to block the plan in April. A federal appeals court issued a temporary injunction on SAVE earlier this month to keep it from going into effect. The Biden administration filed an emergency request asking the High Court to lift the injunction, but Scotus denied it, leaving it up to the appeals court to decide the fate of more than eight million borrowers who are currently enrolled. Beneficiaries are currently not required to make monthly payments on their loans, while the SAVE program is in limbo. But it’s unclear when a decision in this case will be made. 

Juanita Tolliver: On Wednesday, the FBI held a press call to update reporters on its investigation into the July assassination attempt that targeted former President Donald Trump. The bureau told reporters that they have conducted almost 1000 interviews so far as part of the investigation, but still have not determined the shooter’s motive. They did reveal that starting in at least 2019, the shooter began researching explosives, and that last year he began more extensive internet searches into both Donald Trump and President Joe Biden, as well as the national conventions for their political parties. Then, in early July, when the Trump campaign announced its rally in Butler, Pennsylvania, the FBI says the shooter identified that event as a, quote, “target of opportunity.” 

Priyanka Aribindi: Starting Tuesday night and into Wednesday, Israel carried out its largest raids in the occupied West Bank in at least two decades. At minimum, ten Palestinians were killed and two dozen injured, according to the emergency service organization the Palestine Red Crescent. The Israeli army sent in hundreds of soldiers, as well as aircrafts, drones and bulldozers as part of the raids, and the areas targeted included several refugee camps. The Israeli military described those killed in the raids as, quote, “armed terrorists.” Since the start of Israel’s war on Gaza, the IDF as well as Israeli settlers have killed more than 600 Palestinians in the West Bank and injured thousands more. 

Juanita Tolliver: And finally, Wednesday marked the start of the 2024 Paralympics in Paris. Thousands of athletes from around the world marched down the Champs-Élysées, one of the most well known streets in the city, for the games opening ceremony. Performers with disabilities participated in the procession as fans cheered them on from the sidelines. As for the actual sports. The games held the preliminary matches for men’s wheelchair basketball and wheelchair rugby on Wednesday. Today, women’s wheelchair basketball and volleyball will hold its preliminaries. Meanwhile, in the pool, America’s Keegan Knott and Summer Schmidt are competing in the women’s finals for the 400 meter freestyle, and women’s track and field will host the finals for the 200 meter race. Priyanka, are you tuned in to the Paralympics? 

Priyanka Aribindi: I’m ready to be. I want to know what are your favorite events to watch in the Paralympics? Are they the same as the Olympics or do you have different favorites? 

Juanita Tolliver: Oh, 100%. Still zoomed in all on track and field like I’m particularly looking forward to seeing Tara Davis-Woodhall’s husband Hunter Woodall compete. 

Priyanka Aribindi: Yes. 

Juanita Tolliver: In his track events because we loved the moment they had together after she won gold in the long jump, and I hope they can have a similar moment for him on the track in the coming weeks. What about you? 

Priyanka Aribindi: Definitely track and field. I will admit I get a little stressed out watching wheelchair basketball. It’s a little too much of a contact sport. [?]

Juanita Tolliver: Contact is high, yes. 

Priyanka Aribindi: It’s it’s intense, but I have never actually watched the swimming events before, so I’m really excited to tune in for those. 

Juanita Tolliver: Very cool. 

Priyanka Aribindi: Because I find them so fun during the Olympics. I’m sure they’re going to be just as amazing here. And those are the headlines. 

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Priyanka Aribindi: That is all for today. If you like the show, make sure you subscribe. Leave a review. Tune into the Paralympics with us and tell your friends to listen. 

Juanita Tolliver: And if you’re into reading and not just the Supreme Court hate mail we’ve been writing in our spare time, What a Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe! I’m Juanita Tolliver.

Priyanka Aribindi: I’m Priyanka Aribindi.

[spoken together] And think twice before you drink glacial water. 

Juanita Tolliver: I mean I would never. I would never. 

Priyanka Aribindi: Juanita would never. I would actually need to think twice because I’m inclined to think that’s very refreshing. But I’m learning. Even though the scientists say that it’s very clean, that you should wait. Maybe for the green light. 

Juanita Tolliver: Wait for the green light, wait for the test a month from now, just show me that he’s well in a month. [laughing] [music break] 

Priyanka Aribindi: What a Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our associate producer is Raven Yamamoto. We had production help today from Michell Eloy, Ethan Oberman, Greg Walters, and Julia Claire. Our showrunner is Erica Morrison, and our executive producer is Adriene Hill. Our theme music is by Colin Gilliard and Kashaka. 

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