On Monday, jury selection began in what is the first and potentially only criminal trial former President Trump may face before the November election. Veteran prosecutors Andrew Weissmann and Mary McCord detail the jury selection process and what to track about the motions being filed, including one to hold Trump in contempt for violating a gag order. And they look at arguments before the Supreme Court in the Fischer case, in which a January 6th rioter is challenging a lower court ruling that he obstructed an official proceeding.
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Note: This is a rough transcript — please excuse any typos.
Robert De Niro: The people of the State of New York against Donald J. Trump. The Grand Jury of the County of New York, by this indictment, accuses a defendant of the crime of falsifying business records in the first degree, in violation of Penal Law Section 175.10, committed as follows. The defendant and the County of New York and elsewhere, on or about February 14, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise to wit an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust and kept and maintained by the Trump Organization.
Andrew Weissmann: Hello and welcome to “Prosecuting Donald Trump.” It is Tuesday, April 16th. It is 10:49 a.m. and I’m Andrew Weissmann and I’m here with Mary McCord. Hi, Mary.
Mary McCord: Good morning. It’s already been a busy morning and it’s only 10:49.
Andrew Weissmann: Yes, we’ve never actually given the exact minute and that is because so much is going on. There are motions that are being heard that were heard yesterday. So much going on. But everyone’s probably thinking, what did we just hear? We just heard from renowned actor Robert De Niro, who was reading from the New York indictment. That is the actual indictment that is now in a case that is underway, starting yesterday in Manhattan, brought by the district attorney’s office.
And what you heard from Mr. De Niro is the first of the 34 felony counts brought against Donald Trump by the state grand jury. So, in addition to what we just heard, Robert De Niro has graciously lent his voice to read from D.A. Alvin Bragg’s Statement of Facts, which was issued along with the criminal indictment, as listeners will recall. Listeners may also recall that in our special episode on March 21st, we heard actor Glenn Close reading portions of the Statement of Facts relating to Stormy Daniels and Donald Trump.
Well, we’re going to be hearing more from Robert De Niro and the Bragg Statement of Facts in upcoming episodes, including on our Friday episode this week. So, Mary, do you want to take us through the other 33?
Mary McCord: I will, but we are not going to read them, nor is Robert De Niro going to read them, because each one of those remaining 33 counts reads almost identically to what you just heard Robert De Niro read. It’s just the dates change and the type of business records that was falsified changes. So remember, what is charged here is the falsification of business records, but the falsification of business records was done for a specific purpose. And that purpose, we learned through the Statement of Facts and other information that has come out leading up to this trial.
The purpose was to conceal a scheme by which Donald Trump, his former attorney, Michael Cohen, and American Media, which runs the “National Inquirer,” which was led by a man named David Pecker, by which they conspired essentially to catch bad information that could negatively impact Mr. Trump and kill it, meaning squash it. And that’s what the trial is about. And the reason to catch and kill that information, we’re talking about information such as sexual encounters with actresses, not just Stormy Daniels, whose payments to her are the heart of this case, but also Karen McDougal, who also was paid off to keep her quiet.
That’s why people call this a hush money case, but it’s not about paying the hush money. It’s about falsifying the records in order to conceal the payments of the hush money. The hush money was paid to keep these women quiet, especially when at the time of the Stormy Daniels payment, we were just one month out of the election. And the “Access Hollywood” tape had just come out, which was very revealing, which we’ll talk about in a minute. It’s always important to keep this information from the voters.
So the 33 other counts, all about falsification of business records are about the false invoices for legal services, because what happened is Michael Cohen paid off Stormy Daniels with a home equity line of credit that was then charged as legal services, doubled up so that he could make money on it and cover his taxes. So 11 counts are those invoices. Eleven counts are the false entries in the general ledger of the Donald J. Trump revocable trust with vouchers for each of those invoices.
And actually, I think 12 counts are that because there was for some reason —
Andrew Weissmann: Yes. Yes.
Mary McCord: — one that came in two different.
Andrew Weissmann: Exactly.
Mary McCord: And then 11 counts are false entries made about the checks and check stubs for each one of these payments. And these date from February 14th, 2017, when, of course, Donald Trump was president, all the way through almost the end of the year in 2017, when he finally finished paying off Michael Cohen for paying off Stormy Daniels.
Andrew Weissmann: So what we’re going to cover today is sort of three things, two of which have to do with what happened yesterday and what we can expect. Some of it relates to what happened before jury selection, which was very typical, which is there are a lot of arguments about pre-trial motions, what are called in the business in limine motions. So, it’s just pre-trial motions as to the rules of the road, what the prosecution can say and enter into evidence, what the defense can do and say into evidence.
So there was a lot of argument on that. And some of it really relates in part to what you were just talking about —
Mary McCord: Right.
Andrew Weissmann: — Mary, about sort of the catch and kill.
Mary McCord: Right.
Andrew Weissmann: Second, we’re going to talk about the jury selection process because I think there’s a lot that needs to be sort of clarified on that. And then third, we’re going to talk briefly about the Supreme Court argument that’s going on right now and how it’s sort of relevant, even though it’s not in a Donald Trump case, it’s in a January 6th case with an obstruction charge. And that statute is the same statute that is charged with respect to Donald Trump in the D.C. case. It’s one of the charges.
Mary McCord: Right.
Andrew Weissmann: Mary, can I just tell you something really quickly about the catch and kill that I thought was so fascinating yesterday, which is I was fascinated by what we in the business call other crimes evidence, which is the prosecution isn’t limited to put on evidence of this specific crime. They’re allowed to talk about the nature of the scheme, the relationship of a conspirator to the crime and to the defendant to make sure that the jury understands what the nature of the scheme is and that person didn’t sort of land from Mars in the scheme, how they knew the person, how they sort of developed, so they understand what’s going on.
And obviously, the judge is trying to keep out sort of unduly prejudicial information. So it’s a bit of a balancing act. But one of the things I thought was really interesting just to cut to the chase, I was really interested that it was not just a catch and kill. And it’s hard to say just because it’s already shocking that you have a media organization, as we talked about, which is alleged to have conspired to keep information from the public and to do it on behalf of one political candidate.
But it was also, according to the D.A., there was information about disseminating false information, not just keeping information away from the public to create a false picture, a false rosy picture of Donald Trump. There’s the classic fake news. But it was also actually —
Mary McCord: You took the words right out of my mouth. I was going to make the same point. It was like not only suppress the bad, but come up with bad about his opponents, right, and publish that.
Andrew Weissmann: This is like, okay, so you know what? We’ve doing this for a year. And it’s like a mind mouth.
Mary McCord: We’re finishing each other’s sentences.
Andrew Weissmann: Yes. So, one of the allegations was we’ve talked about a couple of episodes ago about Michael Cohen paying money to have a poll appear where Donald Trump does better in terms of his being perceived as a good businessman. But there was another little nugget that was raised yesterday, which the judge said is admissible to prove the nature of this relationship with the “National Enquirer,” which was that Donald Trump would actually get the headlines beforehand to look at, to pass on whether those were appropriate headlines in describing his adversaries.
Mary McCord: Yeah, that’s incredible, isn’t it? Of course, you know, calling American media a media organization like I think we should, you know, it’s a stretch, right? Like so now I’m saying —
Andrew Weissmann: But I didn’t say news outlet.
Mary McCord: No, that’s right.
Andrew Weissmann: But we could call it —
Mary McCord: A fake news.
Andrew Weissmann: — I mean, in this situation, this is, you know, with Donald Trump, as Nicolle Wallace likes to say, there’s nothing new. It’s always the same. When he says, oh, it’s fake news and fake news and he does that so that nobody believes anything but what he says so you don’t believe the incoming, then this case and the reason Donald Trump has been so adamant about trying to make sure that it never saw the light of day is this case is going to be about his engaging in fake news.
Mary McCord: That’s right.
Andrew Weissmann: And the suppression of evidence and the dissemination of fake evidence with the complicity of a media outlet.
Mary McCord: Yeah, a non-fact based media outlet, because nowadays I try to distinguish media by being fact based or not fact based.
Andrew Weissmann: Yeah. I mean, I would say maybe the way to say it is that if the allegations are proved up here, then what you’re saying is exactly right, which is that it is not presenting or even trying to present a fact based, fair, balanced, even handed —
Mary McCord: Right. Presentation of the facts. That’s right.
Andrew Weissmann: Exactly.
Mary McCord: Yeah. Yeah.
Andrew Weissmann: Is that okay?
Mary McCord: Yeah.
Andrew Weissmann: Okay.
Mary McCord: So to get back to motions real quick, one thing I do want to clarify, because we’ve spent other episodes talking about Judge Merchan’s ruling on the in limine motions, right. So, it is not as though he hadn’t issued any rulings. In fact, he had issued written opinions ruling on some of the objections to what you just described as other crimes, evidence, things that Mr. Trump did not want to be admitted into evidence because they look bad for him. They’re prejudicial to him.
But things that there are reasons under the rules that they are admissible, things like to prove knowledge and intent and absence of mistake and sort of a modus operandi or a pattern of practice here, and particularly, obviously, evidence that directly relates to a conspiracy. So it’s not as though Judge Merchan had left all of the rulings till the first day of trial, but what we saw yesterday was Donald Trump coming in through his attorneys and wanting to revisit some of these rulings.
And so Judge Merchan had to reaffirm or make any changes he was going to make to rulings that he had previously issued. And there may have been some new ones. I’m not entirely sure because what I’ve read, they mostly seemed like a rehash, but I was not the one sitting in court.
Andrew Weissmann: So there were a couple of things that I thought were really interesting that were new. Well, let’s just put it this way. There was a renewed motion by the prosecution to have the defense turn over discovery backdrop. The rules of the road are that the government has to turn over tons of evidence to the defense. There’s actually a relatively new New York law about that and that was why there was sort of a month delay in this case, because there needed to be discovery.
But it is also required, and this is true federally as well, that the defense has to turn over evidence that it intends to use in its case. Here’s the complication, and by the way, I’ve actually thought of an anecdote, which is the defense has to turn over evidence that it intends to use at trial if it knows that it really does intend to use it. And let’s just get real, you’re going to know that you’re going to want to cross or there’s some good document.
Mary McCord: Right, that you want to use, yeah.
Andrew Weissmann: It’s pretty hard to hide that. But a lot of times the defense doesn’t turn things over at all. And their fig leaf for not doing it is saying, well, I don’t really know what the state’s going to prove yet.
Mary McCord: Right.
Andrew Weissmann: So I don’t need to produce it. And I remember as a young prosecutor turning to a very eminent, older, wiser judge saying, judge, we never got this in discovery and the defense made that argument. And I remember I was like, but judge, come on. Of course, they knew they were going to use this. And the judge looked at me and said, you know, Mr. Weissmann, one day I’m actually going to need to enforce that law. Like —
Mary McCord: One day. Yeah.
Andrew Weissmann: — like, yeah. Right. Meaning like so a lot of judges don’t require this. A lot of judges do. And so what happened yesterday is that the D.A. said, come on, this is ridiculous. We’ve gotten not a single piece of paper. Todd Blanch, the lead lawyer for Donald Trump and I’m saying lead lawyer because he so far is appearing that way. We’ve talked in the past about keeping an eye on that.
But leaving that aside, Todd Blanch said, oh, but it’s taken a while and we just got discovery and blah, blah, blah, blah, blah. And the judge said, you know what? I’ve had it. You defense have 24 hours to turn over these documents that you intend to use. If you do not turn them over, they’re precluded because you violated the rules. So he is having none of that.
Mary McCord: Yeah.
Andrew Weissmann: And that is by the way, that is the way it should work.
Mary McCord: Yeah. Especially at this late date, right.
Andrew Weissmann: Exactly. I mean, come on, this is one where good defense lawyers, they know what they’re doing. I mean, there’s so much discovery that’s given out. They know exactly what they’re going to cross on. They know what evidence they’re going to be relying on. And so this isn’t supposed to be a game of gotcha on either side with respect to this component of the case. So that was a really clear ruling that was new from the judge.
Mary McCord: Yeah. And even on the sort of rehashing in limine motions, there were some wins for Donald Trump, right?
Andrew Weissmann: Absolutely.
Mary McCord: Evidence that the prosecution did want to elicit that when Mr. Trump had his affair with Karen McDougal, which that in and of itself is coming in as relevant other crimes evidence. Just because we call it other crimes evidence, it wasn’t a crime for him to have a consensual affair with her.
Andrew Weissmann: Yes. That’s it.
Mary McCord: Just to be clear.
Andrew Weissmann: It’s term of art, term of art.
Mary McCord: Right. I should say other bad acts evidence, other bad acts.
Andrew Weissmann: Yes, exactly.
Mary McCord: That will come in, but not the fact that Mr. Trump’s wife, Melania, was pregnant at the time of that affair, right, because the judge said that’s not really relevant and it’s more prejudicial than probative so that’s not coming.
Andrew Weissmann: So we should note that the affair with Karen McDougal is alleged in the statement of facts. It’s alleged by D.A. Bragg that, of course, remains to be proven. And Donald Trump has denied it.
Mary McCord: Judge Merchan also said, and he had said this, I think, before. We’re going to let you introduce evidence of the “Access Hollywood” tape, but not play the tape. And, you know, partly that’s also the tape. I mean, I would say a picture’s worth a thousand words, right? Watching that tape, listening to Mr. Trump in that tape is more powerful than simply reading a transcript of it.
Andrew Weissmann: Yeah.
Mary McCord: Judge Merchan decided just to kind of keep things balanced here, I’m going to let you bring in the transcript, but not actually play the tape. And these are both good rulings for Mr. Trump and I think he’s trying to really start things out, trying to appear as evenhanded as possible and, frankly, protect the record from potential reversible error on appeal.
Not that any one single thing would make for reversible error, but sometimes when you accumulate up evidentiary rulings, which are normally of judges accorded great discretion in making evidentiary rulings, if there are a number of small errors, sometimes that can lead to reversible error. So I just think he’s trying to take care to protect the record here.
Andrew Weissmann: I also thought in addition to protecting the record and thinking down the road, which any good judge is going to do, I really do think he was, you know, there’s such conjectures, I think he was concerned about fairness.
Mary McCord: Oh, yeah. Yeah, yeah, yeah.
Andrew Weissmann: And keeping out first and foremost. You know, the other thing that he kept out was that after the “Access Hollywood” tape came out in October of 2016, there were lots of allegations from women of sexual assault and sexual abuse. And he said that’s of minimal relevance and unduly prejudicial and unnecessary. So he kept that out.
Mary McCord: And not fully factually supported, right. It’s not like, you know, they had, yeah.
Andrew Weissmann: Yeah. I mean, although many ways the truth of the matter isn’t really, this is a little technical —
Mary McCord: That’s true.
Andrew Weissmann: — but it’s really more about allegations. Frankly, even the Stormy Daniels information is not technically necessary to show that there actually was this relationship. It’s enough if there was just this allegation that he wanted to keep quiet.
Mary McCord: That’s right.
Andrew Weissmann: One final quick point is that all of these are somewhat tentative rulings. And it’s important for people to know in all of this, what a judge says is these are the rules of the road right now and if nothing changes, this is what you have to do. But either side could do something to open the door. Again, that’s another legal term of the art. And so both sides know that they have to be careful because if they make arguments or introduce evidence that would suddenly make this change the calibration of the judge. And so he said that. He said, I’m not saying this is for all time and all purposes. And that’s a very standard thing in limited motions.
Mary McCord: Yeah. And it’s really to make sure that there’s no unfairness.
Andrew Weissmann: Right.
Mary McCord: So if Mr. Trump says, oh, I’m going to take advantage of the fact that I won this ruling. And now I’m going to say some things that the other side would not fairly be able to rebut unless they could use the evidence the judge said was staying out. The judge will say, sorry, Mr. Trump, you opened the door. Now I’m going to let the prosecution bring these things in. So it’s all about maintaining that fairness.
So why don’t we take a break and then we can come back and talk about jury selection. But before we do that, we’ll talk a little bit about the contempt motion that was raised yesterday and has now been filed.
Andrew Weissmann: Sounds good.
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Andrew Weissmann: Okay, welcome back. Let me start us off by talking a little bit about the motion that Mary, you just referred to, which is a motion to hold Donald Trump in contempt for what the D.A. says were three violations of the gag order with respect to witnesses. That is something that the judge said he is going to hear a week from today. Some people may be asking why so long. And part of that is because of due process, which is that he wants to hear from the state. He wants to hear from the defense. It also is the kind of thing that while this is pending —
Mary McCord: By hear from, we mean on paper.
Andrew Weissmann: Exactly. We’re lawyers. It’s on paper. He could ask for argument.
Mary McCord: He will have that next Tuesday, but he didn’t want to go straight there.
Andrew Weissmann: Exactly.
Mary McCord: He wanted him to get to submit legal pleadings.
Andrew Weissmann: Yeah. If they’re going to be sanctions, there certainly could be an appeal. He wants to make sure that he’s heard every argument as to why he shouldn’t do this or why he should do it. So, what the state alleges is that Donald Trump made statements about Michael Cohen and about Stormy Daniels in various posts, three to be precise, where their claim is that he said essentially they are liars. And the exact wording of the post, I’m not going to go over, but that is the import. And those are two people that are clearly anticipated witnesses.
So, the state goes through why there was a clear order, why it was a constitutional order. They talk about all the appeals that were rejected of Donald Trump on this, about how nothing was vague about this, how these were intentional violations of that order and how there needs to be sanctions. Let me cut to the key thing people are wondering is like, will he go to jail?
Mary McCord: Right. You’re right. That’s what everyone always asks.
Andrew Weissmann: Exactly. And this is one where I am a firm believer that it is the road to hell to not treat Donald Trump like anyone else. And of course, he hasn’t been treated like everyone else, but it is a mistake to not do that. It goes against sort of every fiber of my being and, Mary, I know your being because we’re raised so much in the idea that likes should be treated alike.
And so one aspect of this, though, that is correct is in this situation, it would be normal to start with something short of jail.
Mary McCord: That’s right.
Andrew Weissmann: And that is what D.A. Bragg said. So under this statute, the state statute for contempt, there can be up to a $1,000 fine per violation. That might strike people as low, but it’s one $1,000 for each of the three violations. And that is what the D.A. asked for. The other sanction that could be included is jail up to 30 days. And that also could be for each violation. And they say we want you, judge, to impose $1,000 per violation and we want you to admonish the defendant essentially next time like jail is out there.
So there’s a sort of Damocles. They don’t say that you will impose jail. And that’s also proper because you don’t know exactly what the facts will be next time so you don’t want to just say no matter what, it will be jail. They do ask for a third remedy, which is that the posts have to be taken down. And that’s so that you don’t have the harm that the whole point of the gag order was there for.
Mary McCord: Right.
Andrew Weissmann: So that is the motion. We will soon get the cover for you, the defense position on this. Surely they will say the gag order is unconstitutional. I think they’ll lose on that. But we’re waiting to hear what else they have to say as to why this is unnecessary. I’ll be fascinated to see who signs that and what they say. And we’ll see where this goes. But I do think this is what would be done in a normal case, which is to seek this interim step with the idea of it happens again. Then I think you could easily see the D.A. saying jail is now appropriate.
It doesn’t have to be the full 30 days and 30 days and 30 days. It could be essentially a kind of time out, which is, you know what, for the day you’re going into the pen.
Mary McCord: Yeah.
Andrew Weissmann: So we’re talking about New York City jail and, you know, no one ever wants to spend any time in jail. New York City jail, not up there with the finest. And I say that as a native New Yorker.
Mary McCord: Right. So we’ll see if this causes a change in behavior. I mean, I think, like you said, that’s why Alvin Bragg came in seeking just this first level of sanctions and the warning and take down the post because he wants the fair administration justice. He does not want this to escalate into attacks on jurors or other witnesses, et cetera because he’s trying to take this case to trial.
The judge wants that. And so hopefully this will do the trick. But we just don’t know. I mean, it’s really hard to say with Donald Trump. He seems to have a very, very difficult time complying with these kind of things.
Andrew Weissmann: Yeah, because I think he weighs the political ramifications —
Mary McCord: Exactly.
Andrew Weissmann: — against perhaps his fear of not going to spend time in jail.
Mary McCord: That’s right.
Andrew Weissmann: So that’s a calculus like that’s not usual.
Mary McCord: He obviously thinks he can gain politically by making the comments he does. And the question is, does that outweigh the risk of potentially having some time in the New York City jail?
Andrew Weissmann: So, Mary, take us through some jury selection. That was sort of the main event yesterday, which is, you know, I don’t think people really understand.
Mary McCord: Which didn’t start until after lunch.
Andrew Weissmann: Yeah. So what’s going on? Like that, I think, is something that was so new to people, because I think even if people have been on juries, this is so unusual because of the high profile nature. So it’s not what I think many listeners may have been on trial juries in civil cases and in criminal cases, but not in a high profile matter. So this is kind of different than what I think almost everyone has experienced.
Mary McCord: Yes. So I think one of the things that was most interesting about this method of jury selection is the judge’s initial essentially invitation to jurors to remove themselves if they didn’t think they could be fair and impartial. And what the judge did is he opened up. There are always a set of preliminary jury instructions that you give to the entire panel.
Now, I believe something like 500 people were summoned for jury duty. But yesterday, this first panel was 96 potential jurors. So what the judge does is he tells them some instructions about, you know, trial practice and things like this. But he also gives an instruction about what the case is about. And here, what the judge says is that the allegations are in substance that Donald Trump falsified business records to conceal an agreement with others to unlawfully influence the 2016 presidential election.
Now, he went on, I won’t read the remainder of that instruction, to describe very, very briefly what is alleged here, right, that these were hiding the true natures of payments to Michael Cohen that we talked about at the top of the episode. And then he also says Donald Trump has pleaded not guilty and denies the allegations.
What’s unusual about the jury selection here is normally this is the point in time when you would start asking all of the jury veneer, that panel is called a veneer, a set of questions that is designed to ferret out any biases or any reasons for cause why somebody could not be a juror. You know, they know one of the witnesses or they have a personal family relationship with a witness or something like that. Right. But also to ferret out potential biases.
Andrew Weissmann: So, Mary, could you just explain that because this was something yesterday that I’m not sure there was enough time on air for people to get, is this difference between for cause challenges and peremptory challenges. Those are two terms of art. And both things were going on yesterday in the sense of the questionnaire and the information being obtained from prospective jurors went to both of those issues.
Mary McCord: Yes. Let’s get to that. I think one way to jump into that is to go through what happened first, right, with Judge Merchan.
Andrew Weissmann: Yeah.
Mary McCord: So after he gave this instruction saying what D.A. Alvin Bragg alleges, Donald Trump denies it. He then gave an instruction to the whole panel saying, now that you have heard my preliminary instructions and some basic information about this case, if you have an honest, legitimate and good faith reason to believe that you cannot serve on this case or that you cannot be fair and impartial based solely on what you’ve heard up to this point, please let me know now.
He goes on for another paragraph to explain this. But what he’s basically saying is self-identify if you think you can’t be fair and impartial. Now, he makes clear just having work, school or child care responsibilities. That’s not what I’m talking about, right. I’m talking about you don’t believe you can be fair or an impartial or you’re unable to serve for some other reason, self-identify.
And what this was getting at, essentially, that inability to be fair and impartial goes to your point about what is a for cause —
Andrew Weissmann: Exactly.
Mary McCord: — dismissal of a potential juror.
Andrew Weissmann: Yeah.
Mary McCord: Because even if you don’t have this permission by the judge to self-identify and be given a pass, which is very unusual, what the questions are designed to do is figure out, one, should anybody be released for cause, meaning it’s clear or reasonably debatable that this person couldn’t possibly be fair and impartial.
One, because maybe they say they couldn’t be. Two, because maybe, like I said before, they’ve got a personal relationship with a witness or the judge or the prosecutor or something like that. You can see where a defendant would say, oh, you’re married to the prosecutor. I don’t want you on my jury. And that would be a completely fair thing for the defendant to say.
Those people will be dismissed what’s called for-cause. It means it doesn’t count against either party’s peremptory challenges, which we’re going to get to here in a second. It just means you’re right. This person can’t be fair. They’re out the door. And what Judge Merchan did is say, we’re not going to go through all the questions for the people who already know, based on just what I’ve told them, they can’t be fair. We’re just going to let them go. That’s unusual. I’ve never seen that before. And apparently that cut down the veneer panel quite significantly.
Andrew Weissmann: Yeah. So he actually issued a ruling on that where he detailed why he said, given just how voluminous this jury selection will be, how many people have been called in, for people who said they have these definitive views, engaging in sort of follow-ups on that. He said it just isn’t worth it.
Mary McCord: It’d be a waste of time.
Andrew Weissmann: Exactly.
Mary McCord: Waste of time. Yeah.
Andrew Weissmann: He said, you know, 99 percent of the time the person’s struck. I mean, he’s just said it’s just not worth it. We’re going to move on.
Mary McCord: Right.
Andrew Weissmann: You were always going to have a huge group of people struck for cause at this stage. I’ve done high profile matters, nothing obviously this high profile where we have jury questionnaires. And it’s really typical that you get rid of the people who say they can’t be fair for one side or the other. You don’t want them. Neither side should want them.
Mary McCord: That’s right. Nobody wants them.
Andrew Weissmann: Exactly. I mean, of course, that’s not really true. I mean, of course, the defense actually wants the person who is going to rule for them.
Mary McCord: Yeah.
Andrew Weissmann: But I mean, that’s not how the justice system works. The judge is there to make sure that you have a jury that is going to listen to the facts and put aside any preconceived views and just based on what happens in court. So that’s sort of the for cause part. Mary, you used the term preemptory challenge.
Mary McCord: Right.
Andrew Weissmann: So what is that?
Mary McCord: So each side then, even for the people who can’t be dismissed for cause because they say they can be impartial, there’s nothing about their answers to the questions which we’re going to get to because the next part of jury selection was 42 questions for each of the potential jurors to answer. All of this process is going toward first ferreting out the for cause dismissals and then the parties to be able to determine how do I want to use my free strikes.
So, a preemptory challenge means I can say, Your Honor, I want to strike, you know, juror B252 and C323, because I don’t know if that’s what they’re doing, but these are anonymous jurors and they’ve got some combination of letters, numbers to identify them. And I just want to use my preemptory challenges on them. And you don’t have to give any reason at all. However, if it appears after a couple of strikes that you might be making those strikes for unconstitutional reasons such as —
Andrew Weissmann: Race.
Mary McCord: Racial.
Andrew Weissmann: Race. Race.
Mary McCord: Race. Exactly. Yes. Then the other side can say, do what’s called a Batson challenge and say, Your Honor, that’s three strikes in a row of black people, for example. And this is a panel that only has X number, right. And this appears that this is based solely on race. There have been no white people struck, that kind of thing, right. So you don’t make that challenge lightly, but you can make it if it looks like that pattern is emerging where there might be race based strikes. And if there’s enough there, the other side has to explain itself and explain its good faith reason for striking those jurors.
Andrew Weissmann: Exactly. And a lot of people think these preemptory challenges where Donald Trump will have 10 preemptory challenges to strike the jurors who he doesn’t want.
Mary McCord: And the government gets them, too.
Andrew Weissmann: Yes, the government has that ability, but neither side is able to do it based on impermissible classifications. And so Batson has a regime, as you outlined, Mary, to protect those jurors and their right to serve as jurors and the integrity of the judicial process. So that’s not permitted. By the way, by raising this, we’re not saying that one side or the other is going to engage in it. But I think it’s important for people to understand because it could come up.
Final note on that is it’s a very quick process for people thinking, oh, wait, all these Batson challenges are going to lead to weeks or months of litigation. No, this happens right then and there where the court hears it, hears both sides if necessary, and then makes a ruling.
Mary McCord: And that, of course, we’re not to that point yet, really, because we’re still at the point where the jurors are having to answer this list of 42 questions. And this list, people can see it if they want to. The judge’s original letter outlining its procedure is available publicly. You can read the questions. And somewhat to my surprise, because this is anonymous jury, the questions do include what neighborhood people live in and what they do for a living and who their employer is. And that made me nervous.
Their identity might be able to be determined by what neighborhood they live in. I know New York is a very, very, you know, populous place. But still, when you get to an employer, let’s suppose your employer is very small, you know, like only has five or six employees, that could be fairly revealing. So I was surprised that these are questions that they’ve asked the jurors to just answer from their seat, not in sort of the private with the judge and the lawyers, but in front of the rest of the jurors, as well as in front of those members of the press that have press passes.
But there’s also all kinds of other questions, frankly, that I wouldn’t particularly want to answer in front of everyone, including like what media publications you read or listen to. And that includes not only things like “New York Times” and “Washington Post,” but also things like TikTok and X and True Social.
Andrew Weissmann: Or Mary, podcasts.
Mary McCord: Or podcasts. It asks what podcasts you listen to. And so there’s a whole list of questions. It also asks things, again, designed to ferret out both for cause challenges and for people to use for their preemptories like, have you or a relative or close friend ever worked for a volunteered for Trump presidential campaign or his administration? Have you attended a rally for Trump? Right. These kind of questions.
Also, I think this one was interesting. Have you ever considered yourself a supporter of or belong to any of the following; QAnon, Proud Boys, Oath Keepers, Three Percenters, Boogaloo Boys, Antifa? So, again, you get the picture, right? The lawyers are taking notes as each juror answers questions. Then after they’re through people answering the questions orally, there’ll be an opportunity for lawyers in a more private setting with just the judge, the lawyers and Mr. Trump, if he wants to be there to ask further questions of the jurors in support of what they will try to do to bring for cause challenges.
Andrew Weissmann: Final point before we take a break, which is that this jury selection process has to be exacting when you’ve got something as high profile as this. It was true in the Enron case. It was true in the Special Counsel Mueller cases, that in order to assure that the defendant has a fair jury pool, that we’ve weeded out sort of issues related to is this the right venue, that you can actually get a fair trial here, that it was right to go forward at this time and not let passions cool, it is really important.
And the courts do look carefully at the jury selection process. And in denying a lot of those Trump motions, the court correctly said that’s all issues that you take into account in having a thorough jury process. So this will take a little time. There’s going to be a lot of back and forth in the news about this potential juror and that potential juror. Personally, I don’t find that all that interesting. You know, I’ve been through this like a million times.
So it’s like that’s just the process. It really is about who sort of ends up in the sort of final group of potential jurors and then who’s getting struck. So, people need to sort of be a little patient at this point because this is really what due process is about in a high profile case.
Mary McCord: That’s right.
Andrew Weissmann: Mary, should we take a break and then talk about what’s going on right now as we’re talking?
Mary McCord: As we speak, yes.
Andrew Weissmann: Okay, let’s take a break, come back and talk about the Supreme Court.
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Mary McCord: Okay, welcome back. As all of this is taking place in a Manhattan courtroom, we have today, the day we record right down the street from me in Washington, D.C., the Supreme Court hearing argument in a case. Andrew, I hear you’re about to say something.
Andrew Weissmann: I am, but that’s because most people don’t know that we can also see each other.
Mary McCord: That’s right.
Andrew Weissmann: No, no, it’s because I was just thinking it’s so funny, like right down the road from me is the criminal trial and right down the road from you is the Supreme Court argument.
Mary McCord: Yeah.
Andrew Weissmann: And they’re both going on while we’re sitting here talking. Anyway, so go ahead.
Mary McCord: Okay, so what’s happening down the street, this is a case that does not involve Mr. Trump. It involves one of the January 6th attackers, close to 1,500, I think, had been charged at this point in time. This particular attacker was an actual police officer at the time, and he was charged with a number of crimes, including assaulting law enforcement at the Capitol. He went into the Capitol. There’s abundant, you know, record of his planning to do this and his bragging about it and him, you know, taking photos and things of himself at the Capitol.
But the issue on appeal here is one of the many charges that he was indicted on included corruptly obstructing an official proceeding. And the reason this is relevant to Mr. Trump is, you said at the top of the episode, it’s also one of the charges that Mr. Trump is charged with, one of the crimes he’s charged with, including a conspiracy to obstruct an official proceeding as well as obstruction of an official proceeding. The statute that’s charged here has two parts. One part, which is not the part that Mr. Fisher is charged with, prohibits defendants from altering, destroying, mutilating, or concealing any record, document, or other object with the intent to impair the availability or the integrity of that record or document for use in official proceeding.
The other part of the statute, the part of the statute that Mr. Fisher is charged with, the part of the statute that Mr. Trump is charged with, prohibits otherwise, and otherwise is very important here, otherwise obstructing, influencing, or impeding any official proceeding. So the question here is whether that otherwise clause means obstructing it in any other manner that doesn’t involve altering, destroying, mutilating, or concealing a record or document, but could be done in a manner such as violently assaulting the Capitol and interrupting the meeting of the House and Senate that is required by the Constitution to count and certify the electoral votes.
Many, many January 6th defendants were charged with this. Fourteen judges in the District Court of D.C. said the otherwise clause means what it says. Otherwise, meaning some other way besides altering a document. And yes, you can be tried on this charge. One judge in the District Court said, no, I think that it still has to be some way that you’re impairing the availability of evidence. And he said, you can’t face charges again to the rioters. He wasn’t ruling on Mr. Trump. He was ruling on the rioters and Mr. Fisher in particular.
And so the government then appealed that. The D.C. Circuit, by a vote of two to one, said, no, this charge applies to otherwise, meaning a different manner, otherwise obstructing an official proceeding. And that is what is now up in the U.S. Supreme Court. And the reason this has relevance for Mr. Trump, if it’s not somewhat obvious, is because he’s also charged with this. But there are significant differences.
And I wonder if you agree with me on this, Andrew, is that even if the court were to decide, and I think it would be wrong, but even if the court were to decide in the case of Mr. Fisher and the other violent rioters that the otherwise clause doesn’t include sort of using violence to interrupt a proceeding and has to somehow relate to some sort of impairment of evidence, that would not necessarily govern the charges with regard to Mr. Trump. Because remember, part of the January 6th indictment is this multi-pronged scheme, one piece of which was the fraudulent elector scheme, right?
The scheme for electors in swing states, the states where Mr. Trump did not win, did not carry the vote for them to send up fraudulent slates of electors and then pressure on Mike Pence to count those slates and have Congress seek to count those slates rather than the actual legitimate slates. So even if you think it has to do with corruptly trying to impair evidence, a document or other sort of evidence at the official proceeding —
Andrew Weissmann: Yeah.
Mary McCord: — we had documents, those fraudulent slates of electors.
Andrew Weissmann: And that is what the government has argued in the Supreme Court in this case. That is what Jack Smith has said in connection with briefing in the immunity case. He sort of wanted to anticipate this, that basically it’s like this would not be something that would kill any of these cases because of the documents. I can say just before we started recording, I was listening to the argument, so just a piece of it.
But Amy Coney Barrett actually asked about that saying, wouldn’t the state still be able to go forward? Even if you’re right, wouldn’t they be able to take a shot at showing that there was impairment or that there was the use of a document? And interestingly, the defense in Fisher said no, because merely delaying the vote would not be sufficient use of a document. Of course, that’s not the U.S.’s position. It’s not just delaying. They were actually using, according to the government, a fake set of electors.
So, I think the biggest import here is how a jury would be charged and what effect it would have on the people who’ve already pled guilty or been charged and having to have a retrial. You never know from oral argument, but I have to say from just the part that I listened to, things are not going that well for the defense position. As you pointed out, it was 14 to 1 in the district court.
Mary McCord: Right.
Andrew Weissmann: That doesn’t mean the Supreme Court has to go with those odds. But, you know, this is one where, you know, I won’t say personal knowledge, but this statute was created as a result of Enron and the problems —
Mary McCord: Oh, you know something about Enron, don’t you?
Andrew Weissmann: Yeah.
Mary McCord: If memory serves.
Andrew Weissmann: You know, a number of the criminal statutes were revised because of problems in the sort of antiquated nature. And so this was one of them. And I have to say, just looking at this, I was sitting there going, well, of course that’s what it means. I mean, the whole goal was to make this as expansive as possible. And the defense position here would just sort of read this entire provision out so that it’s not really doing other work, they tried to address that. But in any event, we’ll see what happens. I actually think what’s really useful —
Mary McCord: You know, there have been a few judges in D.C., judges who had originally held that this was a good, a solid, you know, valid charge and who had sentenced defendants after they’d been convicted of that charge. A few have let defendants out of prison early out of concern that if they didn’t let them out and the Supreme Court reverses in Fisher, that would have an impact on their case. And then the person would have a lower sentence.
Now, only a few have done that. And in many cases, the people convicted of this particular offense are convicted of other offenses. And so a judge could re-sentence if this were reversed, re-sentence so that that charge is not part of the sentence, but still stack sentences as it is.
Andrew Weissmann: Yeah.
Mary McCord: So the fallout for the rioters could be significant if Mr. Fisher wins in the Supreme Court. If he doesn’t, it obviously won’t be. Some of those people who were let out might have to go back to prison. But whatever happens here will not necessarily govern in Mr. Trump’s case.
Andrew Weissmann: Of course, all of this is something that normally I would say to you, it’s great that the Supreme Court is deciding this now and so that when Jack Smith goes to trial, he actually knows exactly what the law is and the jury can be correctly instructed as to the law. Of course, that’s not the world we’re in. The Supreme Court has delayed that case and we will be talking shortly about the immunity argument that’s going to happen on April 25th. So with that, it sounds like, Mary, we’re going to talk again, I think, this Friday.
Mary McCord: Yes.
Andrew Weissmann: Both of us will have an opportunity to listen to the full audio of the Supreme Court argument that anyone can listen to. So we’ll be able to give you an update on that. And we’ll give you an update on what’s going on in the trial.
Mary McCord: We’ll probably still be in jury selection. Just fair warning to everybody.
Andrew Weissmann: Exactly. And we may have some other special guests, so.
Mary McCord: Absolutely. Looking forward to it.
Andrew Weissmann: Starting this week, as we noted, Mary and I will bring you new episodes twice a week to keep you up to speed on the New York trial and other matters. And we want to answer some of your questions as they come up. So, please send us your questions, or you can leave us a voicemail at 917-342-2934. You can always email us at prosecutingtrumpquestions@nbcuni.com.
And a reminder, I think you only have 24 more hours to vote for us if you like the podcast and the Webby Awards. The link is in our show notes and voting is open until April 18th. Again, if you like the show and feel like voting for us, we’d appreciate it. So thank you so much for listening. We’ll have another episode for you this Friday.
This show is produced by Vicki Vergolina, who puts up with both Mary and me every single week and now twice a week. And our associate producer, who also puts up with us, is Janmaris Perez. Catherine Anderson and Bob Mallory are our audio engineers. 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. Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.