It’s been less than a week since the jury reached a verdict in Donald Trump’s criminal trial and the political spin on the result is dizzying. MSNBC legal analysts Andrew Weissmann and Mary McCord seek to debunk several claims entered into the public discourse, especially around the Department of Justice being involved in a state case and that the trial was somehow ‘rigged’. They also address some breaking news out of Wisconsin, where Kenneth Chesebro, Jim Troupis and Michael Roman were criminally charged in the fake elector scheme there. Then, Andrew and Mary review the latest in Florida after Special Counsel Jack Smith refiled his motion to bar Trump from making statements that endanger law enforcement.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello, and welcome back to “Prosecuting Donald Trump.” It is Tuesday, June 4th, and I do not have to give the time because we are just kicking back, resting on our laurels with not a care in the world. Hi, Mary, it’s Andrew Weissmann.
Mary McCord: Yes, speak for yourself. I have a few cares in the world, but yes.
Andrew Weissmann: You have a day job.
Mary McCord: Yeah, that’s right. And a weekend job, but yes, you’re right. I mean it’s not like we are under the pressure of reading 300 pages of transcript before we go on to record in the morning. We are not in the middle of trial anymore and we can reflect a little bit on it.
And we got a little bit of that on Friday, but it was still so new. The verdict was so new. And now I think, you know, we have seen some of the aftermath and we will talk about that a little bit.
Andrew Weissmann: Yep.
Mary McCord: We will also, of course, talk about what’s going on down in the Mar-a-Lago case. And if we have time, we will get to some listener questions.
Andrew Weissmann: So, I had a couple thoughts. First, this whole period reminds me, and I will be interested whether you had it too, where when you finish a trial, you have all of that adrenaline and your whole routine changes and you’re not sleeping. We have talked about how both of us were the non-eating types and you’re killing yourself.
There’s like a performative aspect. In the evening, you are preparing your witnesses and outlines and dealing with a million issues. And then suddenly, it stops and you’re back at your desk. And it’s like the reverse of the Wizard of Oz. You go from a color world to a black and white world.
Mary McCord: That’s a great analogy.
Andrew Weissmann: It just suddenly it’s like, oh, this is it. It just —
Mary McCord: What next?
Andrew Weissmann: Yeah. All of that sort of adrenaline rush is gone and it feels so like a deflated balloon. And I am a little bit in that mode. Obviously, we weren’t doing the trial and we didn’t have a dog in the fight.
Mary McCord: Right.
Andrew Weissmann: But it’s sort of back to normal. But my second thought was, I am really looking forward to what I will call our A block. And I think it’s really important that we are in this phase of seeing people spin the verdict and the disinformation campaign. So I know, Mary, we chatted briefly about wanting to debunk that and give listeners tools. Obviously, listeners who listen to this podcast, know what the facts are.
And we’ve tried to be super dispassionate about what happened, but we want to go through sort of, it’s like a top 10 list of things that bother us about what’s being said about the trial. So, that maybe that’s a really good intro for, Mary, what’s on your list of things that annoy you, bother you, or just think it’s just incorrect?
Mary McCord: Yeah. And I just want to start too by saying, you know, the attacks on this trial as having been rigged, been a scam, all of these kind of things that is very dangerous to the rule of law. That is undermining confidence in our criminal justice system. We have talked before about how there are problems with it, for sure. Things that, you know, frankly, in my day job, that the attorneys with whom I work, we work to bring reforms that will help make the system better.
But those reforms are not about reforming something that reputable lawyers think is a scam or a rig system. This is just about making it more fair, more egalitarian, making sure we are not criminalizing poverty, which some of the practices in our criminal justice system do tend to do through cash bail and fines and fees and things like that. That kind of reform is not based on notions that the entire system is rigged and a sham and corrupt.
And that’s what’s very dangerous about things that the former president is saying and those of his allies are saying. But just to debunk some of what’s out there right now, that just seems to be wrong. One I really wanna start with is this notion that the Supreme Court should step in. I mean that’s coming out. We just have a verdict of guilt found by the jury here. We are just days out of that guilty verdict.
We have not even gone to sentencing yet. And we have had people, including members of Congress, saying that the Supreme Court should step in. I just want to be clear. There’s no mechanism for the Supreme Court to step in and insert itself into an ongoing state criminal prosecution that hasn’t even reached the point of appeal within the state system in New York system, as in all other systems.
We have talked so many times about the fact that there are only limited opportunities for a defendant to appeal before they’ve been sentenced, found guilty or plead guilty and been sentenced. And some of those are things like on grounds of immunity. And that’s why that immunity case in the January 6th federal prosecution is up in the U.S. Supreme Court right now. And that’s why we’re waiting, and that’s something to talk about too.
The decision days on the calendars right now are Thursdays for the rest of the month. So, we will see if we get this decision on one of these Thursdays. Ultimately, we’ll get it, but that’s why that’s up there. That might be confusing people into thinking, well, look, you can just run to the Supreme Court anytime you want, but that’s very limited circumstances. And here, what we’re talking about with Donald Trump is an opportunity for him to appeal his conviction. And we expect, of course, that he will.
Andrew Weissmann: Yeah.
Mary McCord: But he can’t do that until after he’s sentenced. And then the appeal goes to the appellate division of the New York State Court system, which is that intermediate court of appeals stage, depending on the outcome there. And he’ll raise various issues, at which we will talk about in due course, as they come up. He’ll raise various issues.
And depending on the outcome of that, he may seek further review in the New York Court of Appeals, which is the New York State’s highest court, depending on the outcome of that. And they don’t have to take the case. Like most state highest courts, they have the authority to take or decline cases.
Depending on the outcome of that, he could maybe seek review in the U.S. Supreme Court, depending on whether he’s raised federal issues, like federal constitutional issues. So, we are many, many steps removed from the Supreme Court stepping in. And can you even imagine, Andrew, if the Supreme Court were to try, it doesn’t have any authority by congressional statute, but to try to somehow insert itself in this process at this time.
Andrew Weissmann: No, that’s that.
Mary McCord: In a word?
Andrew Weissmann: Yeah. There are limited basis eventually for the Supreme Court to rule.
Mary McCord: Yes.
Andrew Weissmann: Some people may be asking why should a federal court ever have any jurisdiction here because this is a state case. It’s decided on state law. Why should the United States Supreme Court ever get involved, which is sort of a separate issue than the one you are raising, Mary, which is really right, which is when would it be involved —
Mary McCord: What’s the process, yeah, exactly.
Andrew Weissmann: But there will eventually, I think, be some effort to go federally. And the Supreme Court does set out based on the constitution, what I’ll call certain baselines, but it’s very limited in terms of due process, what kinds of issues it could reach. So for instance, if the judge was not actually a judge, if the defendant was denied sort of basic due process in the most fundamental way, there are review processes.
And that by the way, has come up in death penalty litigation where in the south in particular, which was imposing the death penalty much more than currently, where the goal for groups like the ACLU and the NAACP was to eventually get to federal court where they thought —
Mary McCord: Right.
Andrew Weissmann: — they would have a better and livelier chance to bring those kinds of claims. But as those people would tell you, it’s very limited and very difficult, but there is a role for federal courts. And this is sort of goose-gander, so you know, Donald Trump would have that ability, but again, it’s very limited and it’s not now.
Mary McCord: That’s right.
Andrew Weissmann: So, let me give you one of my pet peeves and we’ll just go back and forth.
Mary McCord: Yeah.
Andrew Weissmann: It’s like, okay, this is like gripe fest.
Mary McCord: Yes. And really more than that, it corrects the record, right? Like correct record.
Andrew Weissmann: Yeah, of course.
Mary McCord: There’s so much stuff out there, whether it’s on cable news, whether it’s in political speeches, whether it’s on social media, that’s just wrong. And unfortunately people consume that and they take it to be true —
Andrew Weissmann: Yeah.
Mary McCord: — oftentimes based on who is delivering it. And then we have a real problem.
Andrew Weissmann: And I think both of us talked about, we don’t wanna get into motives of like why people are doing it, because that’s not really the issue. It’s just we just want to correct the record. It’s for others to talk about why this might be going on.
Mary McCord: Right.
Andrew Weissmann: And the probably different motives for different people and even several motives within one person. Leaving all that aside, another thing that’s come up is the idea that how dare Judge Merchan scheduled this case for sentencing just four days before the Republican National Convention.
Look how political he’s being, he’s doing it for politics. This is the reason that he scheduled it. You know, he’s a Democrat in robes, blah, blah, blah. The date of sentencing was one proposed by Todd Blanche.
Mary McCord: Yes.
Andrew Weissmann: Todd Blanche, lead lawyer for Donald Trump. So, you don’t get to propose the date, have the judge agree —
Mary McCord: And then complain about it.
Andrew Weissmann: Yeah, that’s what we here, in New York, call chutzpah.
Mary McCord: Yeah.
Andrew Weissmann: And whether that was done, so he could complain about it. In other words, like with that sort of knowing he picked that date, so he could do it, whether it was done because he thought it would help him with his victimization tour to be able to say at the RNC, look what’s going on with me. Whatever the reason is, it is wrong to suggest that the date was picked over the opposition, as opposed to at the insistence of the defendant. Okay, Mary.
Mary McCord: Yep.
Andrew Weissmann: What have you got next?
Mary McCord: Okay, so I’ve got another one that has some of the same themes in my first, which is this notion and one person who has been promoting it, but it’s been amplified by others is that this prosecution was a result of the weaponization of the federal government. That it was instigated by Joe Biden or by Merrick Garland or by the U.S. Department of Justice. And in fact, we know that Jim Jordan has already indicated he wants to have hearings about this.
Andrew Weissmann: That’s how you know it’s not true.
Mary McCord: That’s true. And now we are impugning motives, but okay, fairly then.
Andrew Weissmann: I am not impugning motives.
Mary McCord: Not impugning, yes.
Andrew Weissmann: I’m just saying his track record —
Mary McCord: Yes, absolutely.
Andrew Weissmann: — on weaponization is —
Mary McCord: He had a whole series of hearings on it, that’s right.
Andrew Weissmann: Yeah, his track record is, look in the mirror.
Mary McCord: Yes, absolutely. But let’s be clear, and this is like I say, somewhat related to my first point, this was a state prosecution. Alvin Bragg is the district attorney in Manhattan. He was elected by the people in Manhattan. He does not report to the U.S. Department of Justice. He does not report to Merrick Garland. He does not report to Joe Biden. There has been nothing I have seen anywhere reported in any media.
Now, granted, I don’t necessarily go to the fringiest of fringe media that would suggest that there was any pressure or collusion or anything else brought to bear by the U.S. Department of Justice or the federal government on Alvin Bragg. In fact, if anything, there’s been criticism that the federal government hadn’t done a prosecution like this itself.
Andrew Weissmann: Exactly.
Mary McCord: Right? So, the notion that this is a political prosecution brought by the sitting president against a political opponent that just has no legs at all. That is completely baseless, completely unfounded. Now people can criticize and have criticized Alvin Bragg for bringing a political prosecution.
We can address that separately, but that has nothing to do with the federal government. But this mixing things up in people’s mind as though a state prosecution is something directed by the Department of Justice or the President of the United States, that it’s just flat out wrong and there’s no basis for it.
Andrew Weissmann: So, two more data points, one in which you alluded to, which is if Joe Biden wanted to direct the prosecution, he could have just told the Southern District —
Mary McCord: Exactly.
Andrew Weissmann: — of New York that it previously had the case.
Mary McCord: That is the U.S. Attorney’s Office. Let’s be clear —
Andrew Weissmann: Right.
Mary McCord: — that does report to the Department of Justice.
Andrew Weissmann: Yes.
Mary McCord: That is part of the Department of Justice.
Andrew Weissmann: They are federal prosecutors in the Department of Justice. They are assigned to a particular part, which is in Manhattan. And they could have told the federal prosecutors there go forward. That could have happened.
Mary McCord: Yep.
Andrew Weissmann: The day he was inaugurated and it didn’t happen.
Mary McCord: It did not.
Andrew Weissmann: And this is why conspiracy theories, just it’s like they don’t focus on the data. As we are sitting here, Mary, recording this, there is proof positive that Joe Biden means what he says, when he says the Department of Justice acts independently of me. They decide who to prosecute.
There are two cases going on right now that are really good data points that Joe Biden is living, what it means to act by the rule of law. One is Senator Menendez, the Democratic Senator from New Jersey is on trial in that same Southern District of New York that we just talked about, that is prosecuting a sitting Democratic Senator. That is going on right now but there’s as that Ginsu knife commercial.
Mary McCord: But there’s more.
Andrew Weissmann: But there’s more. I don’t think this is getting enough attention. Joe Biden has the deepest personal interest in seeing that a prosecution, a federal prosecution be ended. If you were thinking about just his personal interest, not his official interest.
Mary McCord: Right.
Andrew Weissmann: His son, his only living son is being prosecuted right now.
Mary McCord: Sitting in trial right now today.
Andrew Weissmann: Exactly, today. And he’s facing yet another trial in September. So, the one today is on a gun charge for allegedly falsely saying that he was not addicted to drugs at the time that he purchased a firearm.
Mary McCord: And I just want to be clear, you mentioned gun charge, really we mean a false statement on —
Andrew Weissmann: Yeah.
Mary McCord: — the background check application, not actually something about using the gun, right.
Andrew Weissmann: Yeah, yeah, yeah but it’s making a false statement in connection with buying a firearm.
Mary McCord: Yes.
Andrew Weissmann: And then he’s facing tax charges in September. The President of the United States has the power under the constitution to tell his attorney general to drop this case. He has the power under the constitution to pardon his son. Neither of those are being exercised in any way, shape or form in spite of the deepest personal interest at stake.
And I don’t think he is getting, credit isn’t the right word, because you shouldn’t get credit for doing the right thing. But what he’s not getting credit for is that he is living. He is embodying the principle of the rule of law and of not exercising a power because of that understanding that the Department of Justice has to be acting independently.
That is the complete antithesis that I have lived through. And obviously everyone has witnessed, but I’ve experienced it in connection with my own cases in the Trump administration, with Trump and Bill Barr, where to a person, every single person, for instance, in the Mueller investigation, every defendant who is prosecuted, who did not cooperate was pardoned.
Mary McCord: Yes.
Andrew Weissmann: So, Roger Stone.
Mary McCord: Yep.
Andrew Weissmann: Paul Manafort.
Mary McCord: And we have promises now, right? We have promises now of pardons should Mr. Trump become the president again. So, it’s the utter disrespect for the rule of law and undermining of our system of how we adjudicate rights and responsibilities in this country.
And last point I’ll make before the break is that is not going unnoticed outside of the United States. We had a Kremlin spokesperson calling this verdict, the elimination of political rivals by all possible legal or illegal means.
Andrew Weissmann: They should know.
Mary McCord: We’ve had Viktor Orban commenting. We’ve had the Chinese media commenting, right? So, you know, welcome to the club, say some of them, and this is very dangerous for us. And if people don’t have confidence, both people here in the United States and people abroad in our system of justice, our court system, that’s a long term danger that is going to be very detrimental as we move forward and really could change the trajectory from here on out in terms of political retribution. Well, on that unhappy note.
Andrew Weissmann: Yeah, I know this is like a downer. Okay, so I have two more that I am going to do. Our producers will love this because it’s like, we’ve learned how to do cliffhangers.
Mary McCord: That’s right.
Andrew Weissmann: I have two more things on the sort of misinformation about the verdict, but we’ll do that right after the break.
Mary McCord: Sounds good.
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Mary McCord: Andrew, throw me a rope here. What’s the next one on your list? And then, we’ll get to one of mine.
Andrew Weissmann: Okay, really quick one, Donald Trump. I really wanted to testify, but I was precluded from testifying.
Mary McCord: Yes.
Andrew Weissmann: Okay, folks, black and white, there’s a transcript. He made that claim during the trial saying that the gag order was precluding him from testifying. And after that, Judge Merchan directly spoke to Donald Trump and said, I just want to make sure, you know, you have the right to testify and nothing about the gag order interferes with that. It’s not even that his lawyers could make the decision. It is a personal decision —
Mary McCord: That’s right.
Andrew Weissmann: — by the defendant. He chose not to testify. He could have hopped on that stand any day of the week. He has a right not to like every defendant. It cannot be used against him when he chose not to. What he doesn’t get to do is then tell people, but I really wanna testify, but I couldn’t. So, another just false —
Mary McCord: Yes, absolutely.
Andrew Weissmann: What do you got, Mary?
Mary McCord: So, this one is one I know you and I talked a little bit about on the weekend, which is this notion out there that this case was tailor made for Donald Trump.
Andrew Weissmann: That’s outrageous, Mary. I can’t believe they tailor made the case.
Mary McCord: I’m speechless on how to begin on this because, of course, every single criminal prosecution is tailor made to fit the facts and the law that apply to what the defendant is alleged to have done. You can’t prosecute something for something somebody else did or facts that don’t relate to something that the defendant did. You look at the laws, you see how they apply.
If they apply to the conduct that is alleged to have been committed and at this point has been proven to have been committed, proven beyond a reasonable doubt, according to a finding by 12 jurors, then that is the case. And so to suggest that there’s something untoward or something wrong or unlawful or illegal or unconstitutional about tailoring a charging instrument and the evidence to the facts of the case, it’s hard to even get my mind around that.
I think it’s a shorthand for you manufactured this case, but again, what we are talking about is Alvin Bragg looking through the statute book, applying a statute that, as we discussed last week, is the bread and butter of that office. Fraudulent business records, seeing that this conduct involved fraudulent business records of three sorts, invoices, vouchers, checks.
All done in an effort to conceal another crime, that crime, and this brings up another bit of disinformation out there. That crime was clearly identified as a violation of New York Election Law. A conspiracy to promote an election through unlawful means. That was directly explained to Mr. Trump, as explained to the jury that other crime was very well known. That’s the law that applied to the facts here. And that’s the case that was brought and that’s the case that was proved.
Andrew Weissmann: So, there’s an effort by some to say, well, Donald Trump didn’t know until the very end what that other crime was. And that’s also just not true. First of all, at the very least, in the opening statement before the jury —
Mary McCord: Yes.
Andrew Weissmann: The state stood up and said, this case is about election interference. That is the crime and election campaign violation in connection with interfering with the 2016 campaign. And that was taking in money and things in kind from “The National Enquirer”, AMI, the parent company, as part of the catch and kill.
And there was this effort to collude. David Pecker testified to it. By the way, he was not cross-examined in any way, shape or form to say that this was not true. At no point in closing did Donald Trump say he was lying.
Mary McCord: Right.
Andrew Weissmann: And so they were saying, that’s the crime that causes this to be a felony. And then the false business records are the coverup. So, it was just very, very clear, but just to be even clearer on the sort of, oh, I had no idea and they are playing fast and loose. This was litigated.
Mary McCord: Yes.
Andrew Weissmann: In other words, the issue —
Mary McCord: Pretrial.
Andrew Weissmann: — of whether this would be appropriate and what those crimes could be. Of course, Donald Trump knew it because he litigated it before the judge. Now, that will also be and it is a valid basis to claim on appeal that the trial judge got it wrong, but you can’t make the claim that I didn’t know when —
Mary McCord: That’s right.
Andrew Weissmann: — it’s actually in black and white as litigated. And I don’t know, for the life of me, why there are people out there who I think are sort of responsible people who are trying to make it sound like this was never even revealed to Donald Trump when it’s just in black and white that it was. And I should point out that the DA’s office did more here than what it traditionally does.
Normally in these situations where you have to, it’s a misdemeanor, but it’s a felony, if you intend to further or cover up another crime, they don’t reveal what that is. It’s sort of left to the jury. This was much, much more than any other defendant gets. By the way, I think it’s totally appropriate, I think, they should reveal that, but they did.
Mary McCord: Yes, they did.
Andrew Weissmann: Okay, end of story. That was wrong.
Mary McCord: Right, that’s right. But you know, that brings us to the point of appeal. And once we see that appeal, we will dig in more to the theories of appeal. There are many possibilities there. I will say that it’s never a good idea to take a kitchen sink approach to an appeal of a criminal conviction because, you know, not everything that you might complain about would be reversible errors, even when made or only reversible, if they actually, you know, would’ve had an impact on the outcome.
Other errors are considered to be harmless and there’s lots of rules to apply. So, his attorneys, Mr. Trump’s attorneys will be really trying to narrow it down to what do we think are the big ticket errors that were made here that would require an actual reversal of the conviction?
And there’s no doubt this question about, even though it seems to be totally in compliance with New York laws we’ve just talked about, there’s no doubt in my mind that this question about sort of whether the jury had to be unanimous as to what unlawful means were used in the conspiracy to promote an election by unlawful means, which was the crime that Trump was found to have been concealing. There will be some arguments probably about that, that are made on appeal.
Andrew Weissmann: I just wanted to make sure everyone follows something that you’re saying, because there’s been a lot of talk about unanimity. And Mary, what you’re saying, and I just want to show everyone is following this, is the jury —
Mary McCord: Yep.
Andrew Weissmann: — had to be unanimous on the elements of the crime.
Mary McCord: That’s right.
Andrew Weissmann: There’s no question that the judge said you have to be unanimous on each and every one of the elements and you have to ask, of course, be proved beyond a reasonable doubt by the state. Mary, what you’re getting at is what’s commonly known, federally, is methods and means.
Mary McCord: Right.
Andrew Weissmann: So, like a really stupid analogy is it doesn’t really matter whether you took the staircase up or you took the elevator up, if when you got there, you shot somebody.
Mary McCord: Right.
Andrew Weissmann: And whether you used a gun or a knife to kill the person, those are methods and means. And so the judge said with respect to methods and means you do not have to be unanimous, but with respect to the elements you do. Obviously, there will be litigation over whether it’s a methods and means, or whether it should have been considered an element.
Mary McCord: Right.
Andrew Weissmann: But I just want to make sure everyone understood that, Mary, is not saying that the judge said that you do not have to be unanimous because that’s another one of the falsehoods out there.
Mary McCord: So, right and in fact, you know, those elements were right, that there were business records that were falsified and they were done to conceal this other crime, being the New York election crime. That all had to be unanimous. What the unlawful means of committing the election crime, these are the manner and means you’re talking about, and we will come back to that.
So in all of this, talking about appeal, what you are not gonna see and you know, I guess I will be eating crow if I’m wrong about this. But I would be shocked, this would be bad lawyering, you know, lawyering at its worst, I don’t think you’re gonna see the words rigged or scam or corrupt in the appeal because these are not bases for appeal. These are words that Mr. Trump uses because they rile up his base.
They convey a sense of undermining the prosecution, undermining the justice system, undermining the New York Courts, undermining the judge. But these are not basis for appeal because they are not based in fact. There’s no evidence of a rigged prosecution, right. There’s no evidence of a scam prosecution. So, I think people need to understand the rhetoric about this verdict is very different from legal issues that will be subject to appeal.
Andrew Weissmann: I would give one other comment about some of the attacks that are going on that are not too subtle. We heard an attack by Donald Trump directly from his mouth about Judge Merchan saying, of course, he’s biased, look where he’s from.
Mary McCord: Right.
Andrew Weissmann: We all know what that is. So, resonant (ph) of what he did during the 2016 election. One of the things that I have seen is questioning the appellate judges who will hear this and showing a photo of them and they are black female jurist. I can’t even say hidden or dog whistle because it’s not. It’s a megaphone. In this day and age, disheartening isn’t really the right word, it’s so disgusting.
And, again, this is such an apolitical point because you and I both know there are Republicans and Democrats who believe in civil rights, who believe in equal justice, who of course are not racist in any way, shape or form and just have different views about policy issues, which is totally fine. But that idea is so outrageous and it’s so destructive of who we want to to be and should be.
Mary McCord: Yeah. And like you said, it hearkens back to what we saw in the attacks in 2016, 2017 and it’s just dangerous. It’s polarizing. It’s really, like you said, not thinly veiled at all. And I’m not going to get in to today the stuff that we are seeing in extremist media. Folks who listen to this podcast know that I work with a lot of researchers who monitor what’s going on in the extremist milieu and it’s very, very ugly right now.
And I really don’t want to justify it by further conversations, but I am certainly concerned. I’m concerned about the prospect of political violence. We have conventions coming up. We have, you know, the election coming up. I mean we are in a perilous position and this is why it really is incumbent on our leaders to rather than throw fuel on the fire to actually try to calm things down.
And final point, there was someone who tried to do that. There have been a few including and here I will name a name, former Maryland Governor Republican, Larry Hogan, also a current candidate for senate who urged people to respect the rule of law and was immediately basically, you know, kicked out of the club. You have just ended your candidacy and that might not be the exact words. You just ended your campaign, I think that’s what he was told.
Andrew Weissmann: Right.
Mary McCord: This is a person who has respect for the rule law, which again, should be a bipartisan ideal, a bipartisan commitment. And again, we’re not going to try to get into partisan politics here, but this is a man who said what needs to be said and more people need to be saying it to calm things down.
Andrew Weissmann: Okay.
Mary McCord: So, I think we’ve gone through B block.
Andrew Weissmann: I like it. Okay, so we’re going to turn to Mar-a-Lago and then turn to some questions that you folks have. I know that we’ve been, let’s just say, somewhat preoccupied and haven’t gotten to as many questions as we want. So, we do have time for that. And so why don’t we take a quick break, come back, talk about Mar-a-Lago and then get to some questions.
Mary McCord: Sounds good.
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Andrew Weissmann: Welcome back. Mary, while we have been on, something I know that is dear to your heart because you’ve been so focused on the fake elector scheme, we have news.
Mary McCord: We have breaking, literally. I was getting this from my co-counsel as we were speaking. My co-counsel in the Wisconsin fake elector’s case that my team at Georgetown Law’s ICAP brought. The Wisconsin Attorney General Josh Kaul has today filed felony forgery charges against ex-Trump attorneys, Kenneth Chesebro and Jim Troupis and ex-Trump aid, Mike Roman, for their roles in the Wisconsin 2020 fake elector scheme.
So, I feel like all that work that we did in our civil litigation, obviously that is not what pushed the attorney general to do this, but it’s now going to go beyond just the civil realm into the criminal realm. And I think this was a long time coming, but very warranted and look forward to talking more about this next week after I get a chance to dig into the charging documents.
Andrew Weissmann: One word and one quick comment, the one word is brava. And the comment is I find the Chesebro piece fascinating, because as you and I have talked about, this idea that he is like fully cooperating and somehow skating seemed not consistent with the record. And I find the fact that he has been charged a sign of clear eye vision about who he is but more to come. We haven’t looked at it.
Mary McCord: Yes.
Andrew Weissmann: Those are my two quick notes and Mary, I couldn’t be prouder.
Mary McCord: Accountability, accountability, is a good day. All right.
Andrew Weissmann: Mary let’s turn our attention to what’s going on in Florida because we have a refiled motion. Walk us through, why is it refiled? What do we expect?
Mary McCord: A hundred million dollar question.
Andrew Weissmann: Yeah. What’s the timeframe?
Mary McCord: Right. So on Friday, we talked about, and people will know I got a little worked up about this, we talked about Jack Smith moving to modify Mr. Trump’s conditions of release in the Mar-a-Lago case, to order him basically not to make statements that were reasonably likely to result in violent attacks on law enforcement. That presented an imminent danger to law enforcement.
And this was because of Mr. Trump falsely stating and others around him, falsely stating that when the FBI executed the search warrant at Mar-a-Lago, that they had been authorized by the Department of Justice to use lethal force and to kill Mr. Trump. And others went even further to say that this was an assassination attempt.
As we discussed, Friday, it’s flat out wrong. Every federal search warrant has with it a use of force policy to make sure that agents are limited in their use of force and would only use force when necessary to defend themselves or others against lethal force being used against them. It is not a authorization to use force at will. It is a limitation to make clear that you can’t just use force unless it is absolutely necessary.
Andrew Weissmann: By the way, Mary, my favorite part of this is when you say I was a little worked up about this, which I do have an anecdote that’s really relevant to this. A wonderful, wonderful friend of mine who is a prosecutor, Leslie Caldwell, but is very measured. She was so good in the courtroom.
Mary McCord: Yes.
Andrew Weissmann: I mean just amazing. And I saw her one day and I said to her, your rebuttal summation, it was just amazing. It was just fantastic. And she said, ugh, I’m so embarrassed. And I was like, Leslie, I mean I was there for the —
Mary McCord: Yeah.
Andrew Weissmann: I said, what were you embarrassed about? And she said, I just really lost it. I just was so over the top. What she meant was at some point during rebuttal, she goes, you know, the defendant’s counsel made the following argument and then she sort of flipped down, took a beat and she just goes, that was outrageous. But what she meant was that she had to, cause she’s so calm.
Mary McCord: Control herself, yeah.
Andrew Weissmann: That she felt so embarrassed that she had that moment where she had to actually control her outrage.
Mary McCord: Get her composure.
Andrew Weissmann: So, that’s my analogy to you, Mary. As you know, I was just a little perturbed.
Mary McCord: Just a little worked up. Yeah, a little perturbed.
Andrew Weissmann: By the way, I’m teasing you. But just to be clear, you have every right, just so everyone understands why I’m teasing you, because I know why you were in law enforcement. I know why you’re doing what you’re doing now in your day job. And so this is so fundamentally disrespectful of safety and safety of people who put their lives on the line for us every day. So —
Mary McCord: Yeah, absolutely.
Andrew Weissmann: — I don’t really mean to make light of it.
Mary McCord: No, I appreciate all of that. And Leslie Caldwell, by the way, is the former assistant attorney general for the criminal division at DOJ, when both you and I were in the department. So, very, very fine lawyer.
Okay. So, where are we at now? On Friday, we talked about how the judge had granted the defense request to deny this motion of Jack Smith. She did it without prejudice on the grounds that Jack Smith had not adequately conferred with the defense and tried to work out this matter before coming to the court and seeking the conditions of release to be modified.
So, of course, Jack Smith and his team dutifully did what the judge requested of them. They had phone calls with Donald Trump’s attorneys. They did e-mails with Donald Trump’s attorneys and those conversations about trying to work this out, of course, did not result in this being worked out. So, they refiled their motion in accordance with the judges’ rules.
The motion reads almost identically to the first one with a couple of differences. One is that based on her order, they were told they had to have a whole separate certification about their conferral process and that they had to include in their certification, if requested by the defendant, a statement of the defendant’s position on the motion of up to 200 words.
So, of course, this is exactly what Jack Smith and his team did. They certified that they had conferred and they included a statement of Donald Trump’s team about their position. Their position is that the pretrial services people that’s part of the U.S. Probation Office, should be ordered by the court to make a recommendation about whether these conditions are necessary and how they would be enforced.
And that Donald Trump should not even have to respond to Jack’s motion for a modification of the conditions of release until two weeks after the pretrial services people provide this report that they were asking the court to order be provided. Now, that means delay, delay, delay. I will note that Jack Smith in a footnote in their renewed motion made clear, they had already reached out to the probation office. People might be thinking, why am I saying probation, pretrial?
They’re part of the same office in the Southern District of Florida, had reached out to the probation office to see if they had a position on this request. And they said, because Donald Trump had been released pending trial on a bond, they had no supervision over him, hadn’t exercised any supervision over him. It would be outside of the scope of their authority to make any recommendations unless the judge were to order them to do so.
So, now what we have is the judge coming back and issuing an order setting June 14th as the date for Donald Trump to respond to Jack Smith’s renewed motion. And the question in my mind is, was that an implicit denial of the request for pretrial services to do a report and she wants a substantive response or will Mr. Trump’s attorneys take that as oh, we now get until the 14th to actually write up a motion about why we think pretrial services should have to make a report, then litigate that for a while, then have a rule on that. Then finally, get at some point in the unknown future to arguing about these conditions of release. What’s your bet on that?
Andrew Weissmann: So, Mary I’m just so happy that she’s taking these allegations so seriously.
Mary McCord: So seriously, yeah.
Andrew Weissmann: Yeah, this is what’s outrageous. It’s one thing to say, here are some serious allegations and you hear from both sides and decide I’m not gonna do it, but this is pre-deciding.
Mary McCord: Yeah.
Andrew Weissmann: That by all accounts, it’s something where they are asking for it and they want it to be heard. I actually think her sort of handling of this in the way she handled it. If this ends up being something that Jack Smith goes to the circuit on, it’s gonna make her look really bad. But to her point, but time is passing.
Mary McCord: That’s right.
Andrew Weissmann: And it’s just like what’s going on in the Supreme Court where it’s like, it’s all about the clock. I said this like a year ago. I was beating this drum of everyone keeping your eyes on the clock. And so she’s like, yeah, great. You know what? Kicking things down the road, that’s the point.
Mary McCord: And you know, here, I think what she ultimately does will depend in some ways on what happens, what kind of verbiage Mr. Trump uses in these ensuing days and weeks, right? And if he stops talking about that Mar-a-Lago search, she’ll use that to say, this is not necessary. If he keeps it up, it’s going to be a much tougher thing to ignore. And certainly, if we see any types of attempted attacks on law enforcement, you know, I mean if that were to happen while she’s still pending, I could see even a mandamus petition.
So, we’ll come back to that, if any of that materializes. One other thing I did want to mention because, and we don’t really have time to get into it and it’s very complicated and it’d be like going back to law school but it’s driving me nuts, is the fact that she’s had outstanding for quite a long time, another motion to dismiss. You know, there have been many, many motions to dismiss. This one based on what is alleged to be the unlawful unconstitutional appointment of special counsel.
This is an argument that is rehashed, arguments that have been made and rejected with respect to past special counsels, including the one you worked for, Robert Mueller. And argument that these appointments are in violation of the appointments clause of the U.S. Constitution. That has never been successful yet. Nevertheless, she has not ruled on that yet.
And she’s now not only, you know, allowed amicus briefs on this from some of the folks who’ve been arguing repeatedly for years, including with respect to Robert Mueller’s appointment as special counsel, that this was in violation of the appointments clause. Not only has she allowed these folks to file an amicus brief and that’s fine. Amicus briefs are fine.
She also has now ordered the parties in amicus, if they wish, to brief a whole separate issue that was raised by Mr. Trump, which is whether the appointment also violates the appropriations clause because of the way that the special counsel’s office is funded. A way that it has been funded for decades and decades and decades without an issue.
And she wants special briefing on that based on whether the court’s recent decision upholding the funding of the consumer Finance Protection Board, CFPB, upholding those funding sources, whether that impacts the appropriations clause issues raised by Mr. Trump and his motion to dismiss.
Now, listeners, eyes have probably glazed over at this point and I’m sorry about that. But suffice to say, it’s hard for me to imagine how supplemental briefing is useful or necessary in this case, particularly when the issue in CFPB was to actually uphold the way that that was appropriated, so.
Andrew Weissmann: Yeah, and also I’m still waiting for the motion that’s filed by Trump challenging the appointment of Jack Smith. I’m not seeing that same motion with respect to Rob Hur.
Mary McCord: Right.
Andrew Weissmann: Who was the special counsel appointed for Joe Biden or David Weiss, who is the special counsel appointed for Hunter Biden.
Mary McCord: Who is prosecuting Hunter Biden, yes.
Andrew Weissmann: Exactly. So, you know, this is like, again, completely inconsistent. I should also point out that one of the many judges who have ruled on this issue is Dabney Friedrich, who is a really well respected district judge in the District of Columbia.
As you know, Mary, she was appointed by Donald Trump. She is one of the people who we can point to, to say, you really do not have to ask who appointed them when you’re dealing with a judge like Dabney Friedrich and many, many others, because they believe in the rule of law.
Mary McCord: That’s right.
Andrew Weissmann: And they don’t feel like they’re beholden. And she wrote one of the decisions saying that the special counsel appointment of Robert Mueller was, of course, constitutional and valid, that he is a so-called subordinate officer. So for anyone who’s sort of looking for what is a Trump judge to —
Mary McCord: Yeah.
Andrew Weissmann: I mean I hate calling her that.
Mary McCord: Yes.
Andrew Weissmann: Because that’s not who she is, but you know, that is a really good role model for what Judge Cannon should be, but is not.
Mary McCord: That’s exactly right, yeah.
Andrew Weissmann: So with that, should we take a few questions? There was one that was really technical. One of the questions was about our use in the last episode about convicted felon. This is like so technical.
Mary McCord: Yes.
Andrew Weissmann: And people shouldn’t really get too wrapped around the axle on this. But in federal court and in New York, technically, you are not convicted, the word convicted, under the law until you’ve been sentenced. So you’ve been found guilty by a jury, but you are technically convicted after the imposition of sentence.
So here, presumably that will be July 11th, so technically Donald Trump in state law is not convicted. There’s also this separate issue, just to be super nerdy, which is that a conviction isn’t final. Even though you’re convicted after sentencing, a conviction is not final until all of your appeals are exhausted because you have certain appeals as of right.
Mary McCord: That’s right.
Andrew Weissmann: And a good example of that and why does anyone care? Is that if, for instance, you die, just to be morbid before your conviction is final, it goes away. The prosecutor has to move to vacate it. I know that from Ken Lay. Ken Lay was found guilty by a jury. He wasn’t convicted because he hadn’t been sentenced. And then he died before sentencing, which then erases the case.
You have to move to dismiss that case because his appeal was not final. So, those are some technicalities as to why we were saying he’s been found guilty, et cetera, but you’ll hear people saying he’s a convicted felon. You know, euphemistically that’s right and obviously in short order he will be.
Mary McCord: Yeah. And you know, one place where you see how this works out, oftentimes there can be a criminal penalty that is higher for committing a crime, if it is your second felony, for example, right. And so that definition under New York law and the same under federal law is that second felony that I guess really we’re talking about the first felony.
If you’re being tried for the second felony, that first felony won’t increase your penalty, if you haven’t been sentenced yet at the time that you know, you’re being charged with another felony. Because again, you haven’t actually been convicted. So, it doesn’t become that first felony that would increase your penalty of a second, if you haven’t been sentenced yet.
So, these are all very technical. But like you said, when people are out there saying he’s convicted felon, I mean they’re meaning he’s been found guilty by a jury. And you know, I think in that casual use, that makes perfect sense.
Andrew Weissmann: Some lawyers even are out there saying, well, now that he’s been found guilty, isn’t that a violation of his bail conditions in other cases in D.C., in Georgia, in Mar-a-Lago, the Florida case? And the answer to that is no because the conduct happened before he was on bail. So, the conviction itself is not the critical thing that you’re looking at. You’re looking for when did the conduct occur?
And in fact, you could violate your bail conditions just by doing something, even though you haven’t been charged and convicted of it. And so for instance, even if you’re just charged but not convicted, that can be a violation, if the conduct is conduct after the bail restrictions are imposed on you. Paul Manafort is a good example of that.
Mary McCord: Right.
Andrew Weissmann: He was charged with witness tampering while he was out on release subject to those bail conditions. But that was conduct that postdated his being on bail.
Mary McCord: Because, again, the condition is you may not commit any other crimes while you are on release pending trial. So it’s not about, you may not get found guilty for a crime you committed four years ago.
Andrew Weissmann: Exactly.
Mary McCord: While you’re on release, you may not commit any new crimes.
Andrew Weissmann: Okay. Next question.
Mary McCord: This listener asked, Judge Merchan found that Trump committed criminal contempt of court 10 times over. Could the immediate threat of continued law breaking lead Judge Merchan to go ahead and require him to start serving his sentence right after he’s imposed, assuming there is a sentence of imprisonment as opposed to letting him stay out pending any appeals? Yeah. What do you think about that? First of all, that assumes there’s a sense of —
Andrew Weissmann: Yeah.
Mary McCord: — imprisonment and that’s a big assumption right there, but let’s assume there is.
Andrew Weissmann: My understanding of state law is that it’s a little bit different than federal law in terms of the discretion that the trial judge and appellate judges have to keep somebody out. Federally, you look for whether there’s a real appeals issue, like a lively one that would justify keeping somebody out.
As I said, defacto in white collar cases, a lot of times judges sort of overlook that or bend over backwards to keep someone out until their appeals are over. And so Steve Bannon is a good example of that, where he was out until his appeal is denied. And now they’re litigating whether he should go back in.
With respect to this case, I really do think that the judge, if he does impose sentence, is going to say that he can stay out until his appeal is over. And I think the reason is because it’s not the federal standard. He has more discretion, is the fact that he’s running for office and —
Mary McCord: That’s right.
Andrew Weissmann: — you could imagine, he might say, well, you can go in —
Mary McCord: Certain hours, yeah.
Andrew Weissmann: — after the election.
Mary McCord: Oh yeah.
Andrew Weissmann: Before the inauguration, but the problem with that, I could see him also saying I’m gonna defer on that issue of when you have to decide. Because if he is not reelected and so he’s not president again, then he can go serve his time —
Mary McCord: Right.
Andrew Weissmann: — immediately right after the election and there’s no reason. He’s not interfering with the transfer of power. He is not doing any of that. And if he is elected, the whole thing is gonna get deferred —
Mary McCord: Right.
Andrew Weissmann: — anyway, because until after he leaves office, if that ever happens.
Mary McCord: Whole nother topic, yes.
Andrew Weissmann: Right, exactly. This is like preview of another episode. So, I think he could just say, for now, I’m gonna leave it out and I’m going to leave him out pending appeal and he can just revisit it.
Mary McCord: Yeah. I do think if there would be more contemptuous conduct, particularly attacks on the jurors, you might see Judge Merchan, again, that would be contempt. That’d be a separate penalty. You know, each contempt is punishable by a thousand dollar fine or up to 30 days in jail. So, I could see potentially contemptuous conduct landing Donald Trump in hot water, but we will have to see what happens.
Andrew Weissmann: Okay. Mary, it’s so nice to be back to once a week.
Mary McCord: Yes, yes.
Andrew Weissmann: Don’t take that personally.
Mary McCord: No, no, no. It was good seeing you twice week, but it was a lot. It was a lot on top of full time jobs.
Andrew Weissmann: It’s a lot of Weissmann. I understand.
Mary McCord: No, not that. Now having said all of that, I did indicate at the top of the episode that right now the decision days on the Supreme Court’s calendar are Thursdays. Now, they could add other decision days, but one of these Thursdays, they are likely to decide the immunity case. In which case, we will be back a second time in that week.
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Andrew Weissmann: I can’t wait. Thanks so much for listening. We want to continue to answer your questions as they come up. So, send us questions. You can leave us a voicemail at 917-342-2934 or you can e-mail us at prosecutingtrumpquestions@nbcuni.com. And also for your convenience, the e-mail is in the show notes.
This show is produced by the terrific Vicki Vergolina. Our associate producer is Janmaris Perez. Our head audio engineers are Catherine Anderson and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the Senior Vice President for Content Strategy at MSNBC.
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