Ex-FBI official thinks Trump lawyers are intentionally trying to confuse Judge Cannon

Former FBI assistant director Andrew McCabe thinks Donald Trump's lawyers are intentionally trying to confuse Judge Aileen Cannon in his classified documents case.

Speaking with legal expert Allison Gill on the "Jack" podcast Tuesday, McCabe read aloud a filing from Trump's team which argues that it should be able to publicly disclose the identities of witnesses in the case and their testimony.

The identities have already been shared with the defense, but special counsel Jack Smith has asked for them to be sealed, claiming making witnesses' names public would expose them to “intolerable and needless risks.”

According to the hosts, Trump's lawyers argued that keeping it from the public "blatantly violated rules for access and sealing." They claim that the Justice Department is trying to hide evidence from the public that is necessary to prove Trump's innocence.

Gill noted that Trump's side had previously agreed to keep the information under seal.

"He then talks about it in a public filing and then accuses the DOJ of leaking the witnesses' names and causing the harassment," said Gill.

Gill read from the filing: "'Rather, as the exhibit suggests, if this evidence was filed ex-parte or under seal, that suggests that a civilian witness was harassed months ago within weeks of the special counsel's office decision to disclose information in a gratuitous speaking indictment, in which the office used to try to prejudice the defendants and to promote themselves and President [Joe] Biden."

She explained that there are about six clues as to who the witness is that have already been revealed by Smith's team. The hosts agreed it would be easy to figure it out if someone were to unwind the indictment.

Trump's lawyers said that there's no way "under penalty of perjury" that anyone in Smith's office could deny they didn't leak the name to members of the media."

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"We find it hard to believe," McCabe quoted from the filing. But he said it's "over-heated opinion," not legal comment.

Gill cited individuals who were in the courtroom for the proceeding on Friday with Cannon and the Trump and Smith teams.

"There is a desire from the Trump team to release this witness list," assessed Gill. "Judge Cannon has granted this, going against the law and precedent of the district. And, so she seems to want to get this list out too."

Gill said that Cannon at one point asked the DOJ team when they would release their witness list. At that moment, Smith sat up straight in his chair and his eyes got wide. "It's the most emotive you've ever seen Jack Smith get."

McCabe said that it seems like the Smith team is shocked that she seems to be backtracking on a ruling she's already made. "And now it seems she's walking back from her own ruling. Like, you cannot run a trial that way!"

Gill agreed there seems to be a lot of "mind-changing" from Cannon.

"I'm just trying to give her the benefit of the doubt here," said McCabe. "In that case, she could have said, 'Look, you submitted it ex-parte [without giving it to Trump]. I reviewed it. It's really not proper for ex-parte — what you submitted. So, I changed my mind.' Okay, that's not great but you're not walking away from a prior consideration in your own case. We have a protective order!"

"As you said before, it's hard to say what is Canon's motivation when she makes one of these 180-degree turns on something," McCabe continued. "But understanding the Trump team's motivation is really easy. No. 1, here, they want those witness names out in the public thrown into the wild for whatever happens down-range by any one of their supporters."

His second point is that Trump and his team, "Love to be in a position of constantly arguing to 'the judge it's not fair they're trying to hide everything. We're trying to make all these great arguments and get our point of view out and influence public opinion but they don't let us because everything is sealed or under a protective order.'

"It's the classic Steve Bannon theory of flooding 'The Zone' with you-know-what. It's overwhelm the judge. Confuse the judge. Distract the judge. Throw everything at the wall, something might stick."

The other side of that, however, is that they won't overwhelm Smith or the DOJ, and in his filing, he says very politely, according to McCabe, that he will quickly appeal to the 11th Circuit Court of Appeals again.

You can listen to the full conversation at various podcast platforms here.