After Judge Tanya Chutkan raced back to the starting line in former President Trump’s DC election interference case, Special Counsel Jack Smith asked for a reporting extension to ensure the government can make its case within the new immunity parameters. Veteran prosecutors Andrew Weissmann and Mary McCord analyze the reasons behind this delay, then offer some scheduling updates in Trump’s other criminal cases in Florida, Georgia and New York. Plus: a look at why Vice President Harris is choosing her words carefully when it comes to her opponent’s ongoing criminal matters.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, and welcome to “Prosecuting Donald Trump.” It is Tuesday morning, August 13th. I don’t want the summer to go, but okay, here we are.
Mary McCord: Although I could do without the heat, honestly, so that’s the only good thing.
Andrew Weissmann: So I’m in the mountains where it’s in the 50s at night and it’s in the 70s during the day. And this is like a hill station where pre-air conditioning people would come up here to cool off. And you know what? It works.
Mary McCord: Yeah, I’m surprised it still works though, because a lot of places that don’t have air conditioning are now realizing that doesn’t work anymore. Well, I’m the opposite. I’m in North Carolina on Topsail Island. Actually, today is pretty temperate, but it has been hot.
Andrew Weissmann: So I don’t think we’ve mentioned who we are. So if you are a new listener —
Mary McCord: Yes.
Andrew Weissmann: — which we love to “Prosecuting Donald Trump,” I am Andrew Weissmann and I’m here with my co-host, Mary McCord.
Mary McCord: Good morning.
Andrew Weissmann: So before we get started, I wanted to mention to people something that we at “Prosecuting Donald Trump” and the fabulous team here started actually this past Monday, is that there is a new way to listen to our podcast. If you want ad free listening, you can always get the existing weekly Prosecuting Donald Trump podcast for free. So don’t worry about that. But MSNBC, they’re rolling out this special subscription offering on Apple Podcasts. So when you subscribe, you’ll get new episodes of Prosecuting Donald Trump with exclusive content for those special super fans. And you’ll also get the same thing with respect to other MSNBC original podcasts like “How to Win” and “Why Is This Happening?” And you’ll also get those podcasts ad free.
Mary McCord: And speaking of all of that, we have a new bonus episode that is out and available now. I think it came out yesterday for premium subscribers. And in that new bonus episode, which we recorded last week, my colleague at Georgetown Law, Steve Vladeck, and a real constitutional law expert and Supreme Court expert, perhaps more importantly, he joined us to talk about President Biden’s proposed Supreme Court reforms, as well as just other issues having to do with Supreme Court reform.
Andrew Weissmann: So if you’re interested, consider subscribing to MSNBC Premium. That’s what it’s called, MSNBC Premium on Apple Podcasts right from your phone or whatever device you’re listening on, so you don’t miss anything. So, Mary, what are we going to talk about today for free?
Mary McCord: Right. That’s right. We have really a potpourri today. I mean, we are going to start off with the biggest news probably since last week, which was Jack Smith filing in the January 6th case in D.C., filing a motion to extend the time to file that joint status report, which would have been due last Friday, August the 9th, and saying, we need more time to propose the court’s next steps. And we’ll talk a little bit about the ramifications of that, why that might have happened, et cetera. And then we’ll kind of hit everything else going on. We have got a change in the schedule in the Manhattan case due to Mr. Trump filing a second renewed recusal motion with Judge Merchan and Judge Merchan rejiggering some of the scheduling to accommodate ruling on that before he rules on a motion to just overturn the verdict or vacate the verdict of the jury based on the Supreme Court’s immunity decision. We’ll give a slight update in what’s going on in Georgia and also the Florida appeal schedule. And then we’re going to get to listener questions again. So that’ll be quite amazing, two weeks in a row to hit some listener questions, and hopefully we’ll be able to keep doing that for a while.
Andrew Weissmann: I love it. So should we turn first to the Jack Smith filing? It was a joint filing. In other words, both sides agreed to it, but it clearly was the impetus was Jack Smith saying, I need three more weeks, and the judge granted that. So the schedule got put off. And I thought it might be a good thing to start with what exactly Jack Smith said, because it is useful to start with what is the stated reason? Because knowing these people, like don’t think too hard.
Mary McCord: Yeah.
Andrew Weissmann: They give the reason. They tell the judge a couple of things that I found really interesting. They said, just to be clear, the special counsel is a part of the Department of Justice and that means that the Department of Justice has equities and can weigh in and that the special counsel has to consult with various other parts of the department. In this situation, it’s about the Supreme Court immunity decision, which has huge ramifications for all sorts of parts of the department, the criminal division, the national security division, the tax division, the environmental division.
Mary McCord: Civil rights division. I mean, one of the charged crimes is a civil rights crime.
Andrew Weissmann: Absolutely. Civil rights and the civil division. I mean, there’s a number of parts of the department, and they just said that is a process that we have got to engage in. A little note to self is, although this is coming in the D.C. case, it kind of is like a backhanded swipe and reminder to how wrong Judge Cannon is, because it’s saying the special counsel, you might think that we’re totally independent and as she wrote, a private actor who’s been given these powers. And this basically says, we’re not a private actor. We’re embedded in the Department of Justice. I have to say, I’ve said this repeatedly, but when I was in Special Counsel Mueller’s team, I’ve never been more compliant with all of the DOJ rules. And we could not bring, as we talked about before, Mary. I would have needed your permission to bring national security division charges, the Foreign Agents Registration Act charges. We needed tax division authority. So he basically said, we just need time for that consultation process to be completed and that should take three weeks. Donald Trump, of course, agreed because it’s delay. I should also point out just so people understand, Jack Smith, this is, I think, the first time he has actually sought a delay and I think almost any case. I mean, he has been very, very sort of pressing and opposing delays in all sorts of cases. And so with a joint application like this, Judge Chutkan, it was not surprising that she would grant it.
Mary McCord: Right. And in fact, what she did is she granted, and this was the request, that the joint status report that was supposed to be due August 9th is now due August 30th. That was the date proposed by Jack Smith, again, in a joint filing. So Mr. Trump’s attorneys agreed to that. And the status conference that was scheduled for August 16th, which would be this Friday, this is where we had expected that she would actually then talk to the parties about their filing that was due last Friday, originally due last Friday. That has now been postponed till September 5th. You may recall as well that when she required the parties to file a joint status report agreeing to things, if possible, on August 9th, she said, you know, you can note any disagreements. And we kind of chuckled about that last week, thinking, oh, you think there’ll be any disagreements? Because there’s been almost always disagreements between the special counsel’s team and Mr. Trump’s team when it’s come to both scheduling and substance, I’d say, but they were able to agree, obviously, on this motion for an extension. So the same thing would apply when they do file on August 30th.
Again, if there are disagreements about what is going to happen going forward. Remember, this is the proposal for how should Judge Chutkan implement the Supreme Court’s immunity decision? How should she decide what’s official and what’s unofficial other than the one thing that the Supreme Court already told her was official and absolutely immune, and that is Mr. Trump’s communications with his own Department of Justice while he was the president. Everything else is up to her to make decisions about.
And so, she needs kind of a plan of action. Are we going to have legal briefings? Are we going to have a factual evidentiary hearing or what some people have called a mini trial? And then if we’re doing all those things, what are going to be the dates for those things? So you can imagine that there could be disagreements about not only the approach in terms of legal briefs, factual development, but also the dates. And I can tell you right now, I suspect that Mr. Trump, even if things had not been put off the way they now have been for three weeks, would be arguing that there should be no evidentiary hearing at all before the election because it’s just getting too close to the election. So we will see. And then she will take these things up now on September 5th and either make a scheduling order on September 5th or someday after that, after she hears from the parties.
Andrew Weissmann: Absolutely. And it’ll be interesting, as we’ve noted, whether Donald Trump says, in addition, that there are legal issues that should be decided sort of unrelated for the immunity.
Mary McCord: Before the fact.
Andrew Weissmann: Exactly.
Mary McCord: Yes, hundred percent.
Andrew Weissmann: Such as the appointment of the special counsel, the issue that Judge Cannon ruled on, as we pointed out, the D.C. Circuit has already ruled on that, but that doesn’t mean that they can’t sort of anticipate this heading up to the Supreme Court as a reason for further delay. The other thing I would keep an eye out for is as we get closer and closer to the election, there’ll be more warranted pressure on the department not to be taking action that could be viewed as political or influencing the election. It’s the so-called 60 or 90 day rule of the department. But what I’m keeping my eye out for is something that Jack Smith said about a month or so ago, which is that there’s nothing that really precludes him from continuing post-election and pre-January 20th from going forward.
So I’m going to be interested, depending on what happens in the election, particularly if Kamala Harris were to win, the idea of having the judge at least tentatively schedule something during that interim period. In other words, post-election, but pre-January 20th, so that time period isn’t lost. Obviously, it is a much more precarious thing to take that position if Donald Trump were to win the presidential election, because that’s the period where he would be in a transition and there’s a lot of work to do. And so I think it would be hard-pressed for the court to necessarily go forward with that. I don’t know what you were thinking or what you’re sort of looking for, Mary.
Mary McCord: Well, I agree. I think if Trump were to win, it would just be really tough to see the department, you know, going hard and fast to try to get things done before inauguration. And I actually don’t think it could all get done before the inauguration anyway, I mean —
Andrew Weissmann: Right. That’s a practical matter.
Mary McCord: — as a practical matter, very little could get done. And I think, you know, I think there’s a sequencing here, too, because before you can get to it, assuming there’s some aspect of proceedings now that might require factual development. Remember, the Supreme Court said in the immunity decision that with respect to two areas of conduct for which Mr. Trump is charged, there is some factual development required. And that has to do with the pressure on state legislators and state legislatures to basically support the alternate or fraudulent slate of electors for Mr. Trump, who was not certified the victor in those swing states.
That pressure on them required some factual development. And also the January 6th events themselves that involved the rally at the Ellipse, really Mr. Trump calling on his supporters to march on the Capitol, calling on them to pressure Mike Pence to count the false electoral slates. All of that, the court said, require some factual development. But there’s still some sequencing here because one part of the Supreme Court’s decision was even for unofficial acts, let’s assume that that fraudulent elector scheme and the allegations regarding January 6th itself are unofficial. Let’s assume Judge Chutkan can determine that. The court, of course, ruled that you can’t use official act evidence to prove unofficial acts. So in terms of the briefing that has to still happen, I think there’s going to be a lot of argument not only about legally what’s official and unofficial for purposes of Mr. Trump being charged with those things, but then there’s going to be a lot of argument about what can even be admitted as evidence with respect to even things that there’s a better argument are unofficial. So it is complicated and I do think that’s also probably part of the delay. I mean, I realize they had something like close to 40 days to come up with a proposal about how to go forward, but I do think that part is also complicated.
Most of the reason, though, like you said, Andrew, was what was stated in the motion. The government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States. And that’s where you and I have been there. And I would say also, in my view, it’s not just the consultation with Criminal Division and Civil Rights and National Security and Civil and the Office of the Deputy Attorney General and the Office of the Attorney General. But also my guess is that you could have some internal disputes between the trial team that may be wanting to go faster and the department leadership that is concerned about all these other equities and the precedent they’re establishing and how things that might get decided in this case will impact, which is part of the consultation, which will implicate things like the Civil Rights Division enforcement of civil rights laws like the one that Mr. Trump is charged with, conspiracy to violate voters’ civil rights by overturning the will of the voters. And it’s not uncommon in my experience, back when I was at the U.S. Attorney’s Office, before I went to main Justice, that on those cases where we did have to run things up the flagpole and consult at the highest levels, trial prosecutors are oftentimes pushing to go faster and harder than some of the leadership components in main Justice. I don’t know if that’s your experience, Andrew.
Andrew Weissmann: Totally. One thousand percent agree. Is it time for an anecdote?
Mary McCord: Yes, absolutely.
Andrew Weissmann: I was the chief of the criminal division in the Eastern District of New York. Mary, I know you were the chief of the criminal division in D.C.
Mary McCord: Yeah.
Andrew Weissmann: So one of the things you do is you field lots and lots of intractable problems.
Mary McCord: Yes.
Andrew Weissmann: But there was an ongoing trial. They were in the middle of jury selection and an interesting legal issue came up and the trial team came to my office and it raised a really interesting issue that the judge had raised. And we brought in a very senior, very experienced appellate lawyer into the conversation. She was relatively new to the office, not new to doing appellate work. And so we’re debating this and we’re trying to figure out a way forward. And she said, well, this is great. We’ll research it and we can get back to you in three weeks. And I — three weeks.
Mary McCord: How about tomorrow morning?
Andrew Weissmann: No, I was like, we have about three minutes. The trial team is here on a break at lunch.
Mary McCord: Right.
Andrew Weissmann: They’re going back to court with a jury and a judge who need the answer now. And the appellate lawyer was looking at me like I had like seven heads. And I was like, no, no, no, no, no. Sometimes the necessity to just make a decision —
Mary McCord: That’s right.
Andrew Weissmann: — is just there.
Mary McCord: That is supportable based on your legal training, but maybe you haven’t fully, fully researched, yes.
Andrew Weissmann: I used to say at times when I was there, when I was at the head of the criminal division in the Eastern District of New York, it was true when I was at the FBI, whereas the general counsel, sometimes you can get time and it’s important to remember that. But other times it’s the best decision you can make in eight minutes.
Mary McCord: Yes.
Andrew Weissmann: You had 30,000 employees. You had ongoing searches in the field. People had imminent questions. And sometimes you just have to make an answer and have to give a decision. This is one where you could ask for more time and they did.
Mary McCord: Yes.
Andrew Weissmann: And there are those important equities. However, I have to say, Mary, I have been the beneficiary in my life of wonderful supervisors. And when Robert Mueller was the head of the FBI, he would, where he saw the need for a decision, he would say, okay, we are going to have a decision on X date.
Mary McCord: X date, yes.
Andrew Weissmann: And you’re going to plan your lives accordingly, backwards from that. And so, especially with the department where it can be very cumbersome and it’s like moving an oil tanker —
Mary McCord: That’s right.
Andrew Weissmann: — and it’s not as nimble as a little speed boat. It takes somebody like the Bob Mueller approach of stop playing with your food. That was one of his standard —
Mary McCord: Yes.
Andrew Weissmann: — phrases to drive something forward. So anyway.
Mary McCord: I’m going to stick up for some appellate people because, you know, I was deputy chief appellate before I was chief of criminal.
Andrew Weissmann: Yeah.
Mary McCord: And I called my day job being the person to consult with the people in trial and I would drop everything when they would call from trial. And then my night job was actually doing our appellate work. So that was my day.
Andrew Weissmann: And, yes, there is nothing better than an appellate lawyer who gets it and can really help you make those decisions that are kind of on the fly and have that deep knowledge. Anyway, Mary.
Mary McCord: So, before we break, I do want to say another thing that I at least think that the Department of Justice should be considering, and that is going ahead and indicting the unindicted co-conspirators. As listeners may remember, the indictment charging Donald Trump charges six other co-conspirators, unnamed, but we can fairly easily determine who they are just from the descriptions of them, such as an attorney who spread false claims about election fraud, Rudy Giuliani, an attorney who developed a plan to use Mike Pence to overturn the election results, John Eastman, et cetera. They were not actually indicted. But when you actually call somebody an unindicted co-conspirator, as opposed to just not using that term, when you use that in an indictment, that means the department thinks there is evidence that would support an indictment or else you would not call them a co-conspirator.
Andrew Weissmann: Although not necessarily proof beyond a reasonable doubt.
Mary McCord: That’s right. Nope, nope, nope.
Andrew Weissmann: It could just be by preponderance.
Mary McCord: An indictment is about probable cause anyway, right? My point is they’re cautious, wouldn’t you agree, in using that term, unindicted co-conspirator?
Andrew Weissmann: Absolutely.
Mary McCord: And so as this case is definitely not going to trial anytime soon, to my mind, it would make sense to consider going ahead and bringing charges against everyone just for purposes of accountability and because things are going to take longer now than they maybe otherwise would have if we hadn’t had this detour to the Supreme Court. And all of that, though, also is going to depend in many ways on the results of the election, because just as we’ve discussed before, that if Mr. Trump wins, he can order his Department of Justice to dismiss the case against him. He can also order it dismissed against others and has, you know, essentially already suggested he would do that with respect to some of the January 6th attackers, also has dangled pardons. So whether this case moves forward depends on a lot of things beyond even just with the legal briefing and factual development in district court lead to.
Andrew Weissmann: Well, as you know, Mary, I violently agree with you, but that’s a great segue. So we’re going to take a break, but that’s the reason it’s a good segue is because we’re going to talk about the schedule in New York, in Florida, but in Georgia as well, where there is a big overlap between those federal unindicted co-conspirators and the state Georgia case where those people are indicted defendants. But there’s a precarious position of that case as we’ll get to right after the break. So stay tuned.
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Mary McCord: Welcome back. You know, one thing we didn’t just talk about in this sort of opening segment was comments by the current Democratic presidential candidate now. You know, the appropriateness or inappropriateness of commenting on any of these criminal prosecutions. We know that President Biden, generally speaking, with only a few sort of like very small comments, avoided it. And that’s what we’re seeing with Vice President Harris right now, too. In fact, I think we’ve now seen at least, I think, two examples, maybe more of her being at a rally and having people in the crowd start to say something like, lock him up, lock him up. And she has really shut that down. She said, that’s for the courts, right? We’re here to win an election in November. And Andrew and I just thought it would be appropriate to talk for a minute about why that is, why she doesn’t talk more directly about the pending criminal cases.
Andrew Weissmann: Sure. And I thought this is important for people because they obviously could look at Donald Trump and his example and be like, well, why isn’t she doing it? Now, that kind of answers itself.
Mary McCord: Right, it does.
Andrew Weissmann: But it goes back to what you said about President Biden. When he was running and then when he took office, he was very much saying the White House stays out of who gets prosecuted, who doesn’t get prosecuted and commenting on pending criminal matters. If anything, if you were to talk about them, you can jeopardize that criminal matter. It can be raised by the defense in the criminal case to the judge as to why it’s unfair, why there’s bias, why there’s undue pressure on the prosecutors. And so it’s both sort of practical, but also it’s a different philosophy as to how the White House should be and should not be involved. And remember, Vice President Harris is the vice president. So she is at the head of the White House, but for one person. And so she is acting accordingly. And so what you will see is I think she is being very careful about talking about matters that have concluded, where there has been a jury finding or a judge’s finding. So she will talk about a finding of sexual assault. She will talk about a finding of fraud. She will talk about a finding of student fraud. So things that have been found and concluded where she’s not weighing in on a pending matter.
And with respect to the pending matters, so the January 6th case, the Georgia case, the Mar-a-Lago case, you do not see her doing that. You see her saying, as you said, Mary, you know what, we’re going to let the courts deal with that. Our job is beating him at the ballot box. And without getting into who you should vote for, which, you know, Mary, you and I really try to studiously avoid. Obviously, we have our views and we have what we think are principles. I think it’s important to note that from our training as former DOJ people, it’s really understandable and it’s more consistent with what we understand to be the proper role of the White House officials in dealing with pending matters. Is that sort of fair in your take as well?
Mary McCord: Oh, yes. And part of that is, again, you know, that independence between the Department of Justice and the White House is critical for people to have faith in the prosecutions that the department brings. And it’s something that Donald Trump has tried to eviscerate both by his own wanting to influence, if he’s elected again, the Department of Justice, not influence, but direct it outright. But also his accusations that this current Department of Justice has been weaponized against him and against the J6 attackers and others. And so all the more reason it’s important to keep that separation. But again, this is not constitutionally required. The president is the head of the executive branch. You know, right now, President Biden could direct Merrick Garland to do various prosecutions against various people and drop others. But we, you know, historically and as a matter of norms and adherence to the rule of law and wanting to have the population feel comfortable and that they can rely on the integrity of our governmental institutions, that hasn’t happened. And that includes political commentary during a campaign, not using current ongoing prosecutions as part of that. Now, I want to also note people might have said, well, wait, I thought Mar-a-Lago was dismissed. You called it pending. Well, it’s pending because it’s pending appeal. And in fact, that’s one of the dates coming up.
Andrew Weissmann: Right.
Mary McCord: The government’s brief in its appeal of Judge Cannon’s dismissal of the Mar-a-Lago case on the grounds that Jack Smith was unconstitutionally appointed, that brief is due August 27th so we will be able to talk about it in a couple of weeks.
Andrew Weissmann: Do you want to briefly talk about the Georgia schedule and what happened there? And then we can go to Manhattan where there’s more to talk about.
Mary McCord: Sure. So folks probably know that the Georgia, Fani Willis, that is a state prosecution of Mr. Trump and so many co-conspirators for RICO violations, state law RICO violations, as well as many, many other alleged crimes. That case has been on hold now for many months and it’s on hold pending an appeal by defendants there, Mike Roman, but others have joined that, of the trial court’s not to disqualify Fani Willis on the grounds of an actual conflict. And that was based on her relationship with the special attorney, special prosecutor she had appointed, Nathan Wade.
The trial court there found there was no actual conflict of interest, but did find that there was an appearance of impropriety and therefore ordered Fani Willis to either get off of the case, she and her entire team, or Nathan Wade to get off of the case. He promptly resigned and that is what is up on appeal. The argument is being made that actually the trial court judge erred there and should have found an actual conflict, or even if he just found impropriety, should have ordered her disqualified, and that’s what’s currently being briefed. Ms. Willis filed her response just in the last week. It’s a lengthy response. It goes back through the trial court’s factual findings.
And, you know, listeners may remember, in terms of whether there was any actual conflict, some of this had to do with when the relationship started, that romantic relationship started. Was it before she appointed him or was it after she appointed him? That was left unresolved by the trial court. But he did find that there really wasn’t any evidence of an actual conflict that she had hired him for her own financial gain, which again goes back, for those who need the reminder, because we have so many cases, was based on these trips that they took together and whether he had paid for them and she had benefited because she was getting to go places like Aruba and Bahamas, et cetera. And the trial court essentially found there was a lot of splitting of expenses here. She paid for some things. He paid for some things. She reimbursed him for certain things.
And so there’s no actual conflict. It’s kind of sad to me that this dispute is what is delaying this case on the merits, right? We’ve got important and significant accusations here and whether, you know, each defendant is entitled to due process of law. But this is a very lengthy delay and I believe the appellate court is not actually going to hear it until December, hear argument until December.
Andrew Weissmann: I agree with you. I mean, it makes our judicial system compared to other nations look like a laughingstock. The idea as to whether they went Dutch —
Mary McCord: Yeah.
Andrew Weissmann: — completely 100 percent, that that issue is going to delay holding people legally accountable one way or the other, just to be clear —
Mary McCord: Yes.
Andrew Weissmann: — in connection with election interference, in connection with the presidential election, it made it really, I hate to be so flippant, it’s a joke —
Mary McCord: Yeah.
Andrew Weissmann: — that that would be the issue.
Mary McCord: Because when you think about it, Andrew, if the court doesn’t hear this till December, by the time they rule, we’ll be really pushing a year since this issue came up.
Andrew Weissmann: By contrast, New York is chugging along. And that is an example of the legal system, I think, working where there has been a trial already. It has been concluded. There is the typical process of post-trial motions. There’s been a little bit of a delay, but not in the date, the September 18th date that the judge set for either a sentencing or some proceeding consistent with his rulings before then. But it could easily be, and I think it will be, a sentencing. That September 18th date, that is still there. What got delayed a bit is there was a motion made, it’s the third one, by Donald Trump to recuse the judge, this time based on the fact that Kamala Harris is now the Democratic nominee. And so there is briefing that happened on that. And the judge said he’s going to issue a decision sometime this week. So what he also said is in connection with the immunity motion, he put that off by a few days as well so that will be decided on September 16th.
Mary McCord: But I think it’s also important for folks to know this was requested by Mr. Trump’s team. So when you said the third recusal, that’s because early on in the case, they sought Judge Merchan’s recusal based on his daughter working for a political consulting firm that had had Biden and Harris as clients at various times and had other clients. The judge had denied that, but he had sought the advice of the Judicial Advisory Commission or whatever it is called, something like that in New York, which had said there’s no actual conflict. This is your daughter’s business. Your daughter can engage in her business without it, meaning that you have a conflict. Then there was a first renewed motion for recusal, I think in April of this year, which he denied. So this is now a second renewed motion for recusal, which is why we’re up to three. And the only thing that’s renewed about this is, oh, now Vice President Harris is now the presidential nominee for the Democratic ticket and so that makes this all so much worse. But Mr. Trump’s attorneys did say, will you decide this before you go on to decide immunity? Because obviously they want to have Judge Merchan recuse. They want to see if they can probably take that up to the First Division, which has already denied the appellate First Division in New York, which has already denied an appeal from the first denial of the first recusal motion. I realize that’s a lot of use of the word denial in there.
Andrew Weissmann: Denied, denied, denied.
Mary McCord: Denied, denied, denied. Right. But at any rate, they’d like to have a different judge on this case. And so they’re trying again. And so Judge Merchan has accommodated by saying, I’ll decide this recusal motion first. I’ll decide it this week. That means I’ll be pushing off my decision on your motion to vacate the jury’s verdict based on the Supreme Court’s immunity decision. That’s one we talked about extensively a couple of episodes ago. And that decision I’ll make September 16th. And then I want to get to the point where you were just going to when I rudely interrupted you, because I think this is very interesting. He says, please note, this is in Judge Merchan’s letter ruling for the parties and for everyone. The court appearance scheduled for September 18th, 2024, at 10:00 a.m., remains unchanged. We will proceed on that date and time to the imposition of sentence or other proceedings as appropriate. Please keep these dates in mind if you still wish to file a pre-sentence recommendation.
And the reason this is so interesting to me is, remember, other proceedings as appropriate could be that if he thinks after he reads all of the briefing on the immunity argument, and actually since we had a last episode, we’ve had the Trump reply brief filed, which doesn’t make any more, frankly, plausible arguments than the ones we discussed about his opening brief. There are some arguments there, but it doesn’t make anything new or different, frankly, other than sort of rehashing what’s already been said. The other proceedings could be if he thinks there needs to be a hearing on some of the evidence that was admitted at trial and whether that was official X evidence that shouldn’t have been admitted, a hearing on anything else. But what’s really interesting is he’s saying, otherwise we’re going to sentencing.
Andrew Weissmann: Absolutely.
Mary McCord: So if you want to file a sentencing memo, you’ve got to file it. My expectation, Andrew, here’s what I’m expecting, is they’re going to come in, Trump’s attorneys and say, we shouldn’t have to file any sentencing recommendation until we know what your decision is on immunity. What do you think?
Andrew Weissmann: So first, I was going to say the body that issued the ethics opinion is the Advisory Committee on Judicial Ethics.
Mary McCord: Thank you.
Andrew Weissmann: It’s a New York body. And so they had already approved this. So just to be clear, everyone should understand, that’s sort of the recusal issue.
Mary McCord: Right.
Andrew Weissmann: It is really frivolous because, as the state said, it’s been litigated already. It’s been decided. There’s nothing new. In fact, Donald Trump had already brought up the Kamala Harris facts —
Mary McCord: Yes. Yes.
Andrew Weissmann: — so that is something that people should really, I think, not be that concerned about given the prior rulings and the judicial opinions and the appellate rulings. On the issue of immunity, I do think that what is going to happen is there’s now a very short window between the date —
Mary McCord: Right.
Andrew Weissmann: — that the judge said he’s going to issue his decision, which is the 16th of September, and the date on which sentencing may occur, which is the 18th. I think that Donald Trump on the 16th is going to be filing all sorts of legal briefs —
Mary McCord: Yup.
Andrew Weissmann: — in New York, and up to and including and be ready to go to the Supreme Court —
Mary McCord: The Supreme Court, yes.
Andrew Weissmann: — trying to stay the sentencing saying that the judge got the immunity issue wrong and there should be a stay of that case and there should be no imposition of sentence.
Mary McCord: Of course, you’re assuming that the judge decides a particular way on the immunity issue.
Andrew Weissmann: Absolutely. And so I do think that there is going to be this flurry on the 16th —
Mary McCord: Yes.
Andrew Weissmann: — by Donald Trump. Just to be clear on that, I don’t blame a defense lawyer, as long as the arguments are made in good faith. That’s what their job is.
Mary McCord: I agree.
Andrew Weissmann: But I think everyone should be ready for that as the next step. I also just wanted to say, with respect to their reply brief, one of the reasons that I think that’s so clear is their reply brief, I think, is beautifully written. It, to me, was written by a Supreme Court appellate lawyer. It reads sort of very differently than the trial briefs that I read below. And so it suggests to me that they’re very much thinking about the audience for this going forward. I also thought there were some interesting references. And one thing that I thought was —
Mary McCord: The part about the redaction?
Andrew Weissmann: Yes.
Mary McCord: Yes. I did too. I was hoping we could talk about that.
Andrew Weissmann: Yeah. So there clearly was some evidence, and it’s redacted, meaning that it’s blacked out, referring to evidence heard by the grand jury, not the trial jury, but the grand jury. So clearly there was some evidence related to conversations that Donald Trump appears to have had with some advisor or person while he was president. And so the argument is that that’s official act evidence, and it came before the grand jury and so it tainted the grand jury process. As we talked about in prior shows, it’s a strained argument, but here, at least, there seems to be some evidentiary evidence. It doesn’t seem particularly major. It obviously was not something that came out at trial, because then there wouldn’t be a reason to really redact it in the same way. I did want to say one thing that I thought was really curious. And this is going to be super in the weeds, but I think it might be, Mary, maybe something that really goes to and it appeals to your appellate heart, which is on page six of the brief, the Trump team wants to argue why there was good cause for their not raising this issue. They say they did raise it sufficiently —
Mary McCord: Yeah.
Andrew Weissmann: — but they also say there was good cause for not raising it. And they cite to a case that says that good cause is shown where there is an intervening Supreme Court decision, and this is their term, upends established decisional law. So when you have new law from the Supreme Court that upends established decisional law, and they say, this is a quote, page six, quote, “that is exactly what happened here.” What I loved about that is, that’s not their argument in the Supreme Court.
Mary McCord: That’s right.
Andrew Weissmann: Their argument in the Supreme Court was like, this is established, and this is implicit, and blah, blah, blah. I mean, this was the Biden administration argument, the Michael Dreeben argument. But I just thought it was just like, what a flip flop on that.
Mary McCord: No, I noticed the same thing and paused on that.
Andrew Weissmann: I’m learning from you. This is like my appellate antenna are up.
Mary McCord: I guess I would generally agree with you. This is written a little bit better. I just don’t think there’s a lot new in here except the revelations from the redacted portion. There have been redacted portions on the original motion and on the D.A. Bragg’s opposition that showed us there had been someone who had testified in the grand jury that had given testimony that Trump is now claiming was official acts testimony and should not have been admitted, even if it was in support of unofficial acts under the Supreme Court’s immunity decision. And that because of that, it tainted even the indictment. So the whole case couldn’t go forward. That’s how this is coming up in this motions, just so that people understand. And I kept thinking, I wonder who that was who testified, and I wonder what they testified about because it’s all redacted.
And the reason it’s redacted is grand jury proceedings are secret, generally speaking, and it might have been there were protective orders there or something. I’m not sure. But this is the first time we see, and I think this was probably purposeful, that in the reply, they refer to the person who testified as a White House advisor. And that is the first time we’ve seen that. It’s not just somebody else who maybe was a privy, let’s say, to conversations in the White House who testified about it. They actually call this person a White House advisor. So that’s somewhat revealing and I’m sure there’s lots of speculation about who that was. But the legal implications of this, I think, are, again, we’re back to the fallout from that Supreme Court immunity decision, right? First, you’re at the January 6 case and what’s official and what’s unofficial.
Now we’re at the Manhattan case. I think most of us feel like the charges there is all about unofficial conduct. But now it’s about what evidence came in and supported those charges. And now it’s about what evidence came in just at the grand jury in support of the indictment. Because according to Mr. Trump, if the indictment was based on things that were official acts, then you can’t continue with this. So lots of fallout, lots of fallout. It continues.
Andrew Weissmann: So, should we take another break and move on to listener questions?
Mary McCord: Yes. We should.
Andrew Weissmann: Sounds great.
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Andrew Weissmann: Hey, Mary, listener question time. So this is a question we get a bunch. It relates to something we’re just talking about. And the question from Kathy is, can you please try to explain to us why committing a crime would be considered an official act by a president? But that is a great question because there’s so much common sense. So can you please try to explain to us why committing a crime —
Mary McCord: Yes.
Andrew Weissmann: — would be considered an official act by a president? There’s other related things like who decides it, but that’s such a great question because, just so the listener understands, Judge Henderson in the D.C. Circuit basically asked a really similar question.
Mary McCord: Yes, that’s right.
Andrew Weissmann: So, what’s the answer, Mary?
Mary McCord: So I mean, it’s really because the Supreme Court told us it could be. That’s the bottom line.
Andrew Weissmann: Wait, this is like because I told you so.
Mary McCord: Yeah, exactly.
Andrew Weissmann: Because it’s, wait, wait, because it’s my house.
Mary McCord: Yeah, it’s kind of how it feels, right, like right now in the Supreme Court. So, you know, what the Supreme Court is doing here, remember, this is an immunity decision. It’s not a decision saying that things are not crimes, but it’s saying that there are certain actions and conduct that a president can take. Well, first of all, two categories here. Some things are committed exclusively to the president because they are core constitutional functions of the presidency, and for that, a president is absolutely immune for prosecution, even if the execution of those functions technically violates a criminal law. And one of the problems with that part of the decision is they define these core constitutional functions extremely broadly and going well beyond what the words of the constitution says. Remember, even Michael Dreeben, arguing for the special counsel in the Supreme Court, admitted there would be some things that a president couldn’t be prosecuted for, things like the pardon power that is in the constitution. It’s given to the president.
So even though we feel, I think most people would feel like there could be a misuse of that pardon power in a way that potentially could be criminal, that’s something there’s immunity for. Other types of things that are explicitly in the constitution, the president is immune from. But the Supreme Court went farther and said within the outer perimeter of a president’s official acts, there is presumptive immunity from prosecution and a prosecution can only go forward for those things if the government proves that it would pose no dangers to the functions and authority of a president by doing that prosecution. So, okay, that’s my long-winded response about what the Supreme Court said. What does that really mean? What it means is that within certain things, and the Supreme Court told us one of these things, when the president talks to his department of justice, his attorney general, deputy attorney general, assistant attorney generals about investigations and prosecutions, even if he is doing that to try to urge a sham investigation, they use those very words because that’s the allegations of this indictment, that would be immune because it’s within the presidential’s constitutional functions to communicate with his own executive branch.
There are other things they didn’t decide would be immune, but the principle remains. If it’s something that’s within this outer perimeter of a president’s official acts, which could involve things like his communications with his own vice president, for example, that’s one of the issues, could potentially even involve things like pressure on state legislators because he’s telling them, communicating to them, I think there was fraud in the election, even if it was bogus, even if it was unsupported, these are the things that the Supreme Court is saying he may, not conclusively, but he may be immune from depending on whether prosecution would pose any danger to the authority and functions of the president. So it is a difficult decision to square with rule of law and the very basis for why we have a criminal code in the United States and in the individual states, which is to, you know, create a deterrent as well as punishment for behavior that society through its laws and statutes has decided is not lawful and is illegal and is deserving of, you know, accountability and holding people accountable. And so it’s not enough to say, and this is the Supreme Court being very clear, it’s not enough to say this behavior violates a criminal statute. It’s got to be behavior that the president is not immune from prosecution for.
Andrew Weissmann: Two very, very quick points. One is that the Supreme Court said for the lower court in deciding what is official presidential conduct versus unofficial presidential conduct cannot consider whether it is illegal conduct. And they can’t consider that.
Mary McCord: Or the motive behind it either, right?
Andrew Weissmann: Also the motive.
Mary McCord: The corrupt motive.
Andrew Weissmann: One answer to Kathy is that in making a decision between what is official conduct by the president and unofficial, the courts explicitly said you cannot consider whether Congress has rendered that conduct illegal. And the second point is I actually wrote a piece for “Just Security” very much on this issue in case you really want to be nerdy because although I understand this when it gets to true core conduct —
Mary McCord: Yes.
Andrew Weissmann: — that’s committed to the president, such as the pardon power. When you’re dealing with other broader actions by the president, for instance, and I’m not going to go through my entire piece for “Just Security,” don’t worry. But if the president is acting pursuant to a congressional statute that gives the president authority to act —
Mary McCord: That’s not his core constitutional powers, and it’s not —
Andrew Weissmann: And also, what would stop Congress from saying, we’re going to give you these powers, but we’re also going to make it a crime if you do X, Y, and Z with them? I mean, in other words, you make that contingent.
Mary McCord: They can’t put parameters on it, right? They can’t put requirements on it. Yeah.
Andrew Weissmann: That just seems nonsensical. And that’s what I wrote about. And it’s possible that that will get narrowed later, and especially if this composition of the Supreme Court changes. Anyway, Kathy, thank you so much for that. It’s such a great, great question.
Mary McCord: And to her last part of her question, which is, will this eventually go back to the Supreme Court for them to decide? It certainly could. It depends on what Judge Chutkan does. And then it depends on who wins this election, because the whole case could be over or it could not be over after the election. Okay, let’s go on to one more, which is a great question, particularly given some recent statements made by Mr. Trump. This is from Lauren in Australia. Should Trump lose and decide he doesn’t want to be Defendant Trump anymore? What is stopping him from fleeing the country to, say, Russia, Belarus, or Venezuela and escaping justice that way? Is there anything your criminal justice system can do to prevent that?
Andrew Weissmann: So I love that this is from Lauren in Australia.
Mary McCord: Yes.
Andrew Weissmann: So welcome, international crowd. I love it. This is very topical, as you said, Mary, because I believe yesterday, Donald Trump, in his discussions with Elon Musk, talked about going to Venezuela to escape prosecution and asking or inviting Mr. Musk to visit. And even if that was facetious, and I’m not saying it is, it’s somewhat remarkable to me when I use the word somewhat, that is facetious. It is remarkable that somebody who used to be the head of our government would be joking about something like that.
Mary McCord: Yes.
Andrew Weissmann: I don’t know about you, but I’ve had defendants flee on me, not very often. It’s not fun. So the process of giving bail is the process by which after a defendant is charged and brought to court, the judge decides whether they can be released and under what conditions they can be released. And it can include things as draconian as home confinement with an ankle bracelet. It can more typically include putting up money or real properties and having co-signers, that is people close to you, who would lose assets and be hurt if you were to flee. And a judge makes that decision after hearing from the pre-sentence people, the defense, the government as to what to do.
Sometimes a person is released just on what’s called ROR, on their own recognizance, because the idea is that they’re not a risk of flight or a danger to the community and so you don’t need bail restrictions. So those are ways that the court oversees that process to reduce the risk that somebody would flee. It’s an interesting area because there’s a lot of people who are doing a lot of research on people who are detained rather than being released unnecessarily and there’s a lot of effort and reforms on how bail should be accorded. Obviously, a lot of judges don’t want to be in the position where they’ve released somebody and they flee or something really bad happens, for instance, they were to commit some egregious crime. And so there is a concern about over-deterrence here, sort of over-correcting and there’s a lot of research going on with that. But there are ways to try and prevent people from taking that step.
Mary McCord: Can I add two points?
Andrew Weissmann: Yeah, absolutely.
Mary McCord: One is, one of the common ones is a restriction on travel, including turning in your passport.
Andrew Weissmann: Absolutely.
Mary McCord: And I know early on in Mr. Trump’s cases, the government did not ask for restrictions on travel or turning in a passport. And I think partly that’s because he was campaigning and, you know, there are times when defendants, I’ve had this happen in many cases of mine, where they’re not allowed to travel outside their state unless they get permission from the court and things like that. So that is one way. I’ve had cases also where the court has made them turn in their passport. So that’s one way to do it here. This is a different circumstance, although that could change. Conditions of release can be modified. The second is a shameless just plug because of work I do in my day job, unrelated to my “Prosecuting Donald Trump” job.
One of the things that ICAP does is brings cash bail reform, class action litigation, saying you should not be holding a person solely on cash bail who cannot afford to pay. So if the only reason they’re being detained pretrial is solely because they can’t afford to pay cash bail, whereas another person who could commit the same crime and has the same criminal history could be released if they can pay cash bail, that’s, in our view, an equal protection violation. So to your point, and we’ve drawn upon a lot of the work of researchers, it doesn’t actually prevent recidivism or anything like that.
What it does is oftentimes hurt people, particularly people charged with, you know, nonviolent crimes who then potentially are evicted because they can’t pay their mortgage, because they can’t go to work, because they’re detained, et cetera. And we’ve had prosecutors, including former Department of Justice officials and state prosecutors, both, you know, Republicans and Democrats, all come together many times to say that kind of inequity is not constitutional and is not a good policy. So anyway, my shameless plug.
Andrew Weissmann: Final comment, just to foot stomp on something you said, Mary, which is that if Donald Trump were to lose the election, and even if he weren’t, but I think particularly if he were to lose, there is nothing that prevents the government from asking the court to reconsider and change the bail conditions to say, you cannot travel, you have to turn over all passports that you have and —
Mary McCord: Yes.
Andrew Weissmann: — to tighten up the restrictions, because at that point, you will have a relatively elderly man facing significant criminal exposure in state and federal court and wanting to prevent that. I should note that this is not the first time Donald Trump has talked about going overseas. He earlier in the campaign talked about going to France and sitting in the south of France, rather than being here in the United States, subject to legal accountability. So it’s something to my mind, it’s clearly something on his mind.
Mary McCord: Yes.
Andrew Weissmann: So we’ll stay tuned on that. But these were excellent questions. Mary, it was so fun to talk to you and I know it’s time for you to get back to your day job.
Mary McCord: Actually, it’s time for me get to my family vacation.
Andrew Weissmann: Okay, so thanks for listening. Remember to subscribe if you choose to MSNBC Premium for ad free episodes of prosecuting Donald Trump on Apple podcasts, as well as exclusive bonus content like our recent conversation with Steve Vladeck on Supreme Court reform.
Mary McCord: And don’t forget to send us a question. You can leave us a voicemail at 917-342-2934 or you can e-mail us at prosecutingtrumpquestions@nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our 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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