Yesterday, the Supreme Court heard arguments over Donald Trump’s claim of presidential immunity, which will have implications beyond whether he is shielded from criminal prosecution in the January 6th case. MSNBC legal analysts Andrew Weissmann and Mary McCord go deep on what arguments to pay attention to. This, as the New York trial wraps up a week of testimony from former AMI CEO David Pecker. And an analysis of the latest indictment related to election interference in the 2020 election, this time from Arizona.
Note: This is a rough transcript — please excuse any typos.
Andrew Weissmann: Hi, and welcome to “Prosecuting Donald Trump.” It is Friday, April 26. We usually give the time, but I don’t think it’s that necessary. But it is before the 9:30 start of the trial today. So we won’t be covering anything that’s happening today on Friday, but we will be covering a lot of news that happened yesterday. I’m Andrew Weissmann, and I’m here with my wonderful co-host, Mary McCord.
Mary McCord: Well, good morning, Andrew. And that’s right. We will spend probably a pretty significant portion of today’s episode talking about the Supreme Court argument yesterday on Donald Trump’s immunity claim made in his federal case being prosecuted in Washington, D.C. by Jack Smith, the special counsel.
That’s the case that charges numerous criminal violations related to the January 6th efforts to prevent the peaceful transfer to power. We will also hit, of course, the highlights from the last few days of testimony in the Manhattan trial. David Pecker has been on the stand pretty much all week and will be on the stand today.
He is, of course, the former CEO of American Media, which ran the “National Enquirer” and other tabloid type magazines. Should we start with some framing of what was in front of the Supreme Court yesterday? And then I’m really anxious to kind of make a few top line points about what I took from the argument. And I’m sure you are, too, Andrew.
Andrew Weissmann: Yeah. And we have actually not had a chance to talk about it. So I’m dying to hear your take. You know, one of the things that will keep this moving is I have left my venting on MSNBC, where I was sort of on like morning, noon and night yesterday. And so I feel like I’ve sort of expunged that.
Mary McCord: Expunged, the word that the chief used many times yesterday. I think that just got in your head. Expunged, expunged. We’ll get to that.
Andrew Weissmann: Exactly. I have watched and heard a lot about people’s reactions to the argument. And I think it’s useful to go back to basics as to what was at issue, because I think people are also very fixed on the trial versus what legal standard the court could come up with that could be devastating for this country.
So just Mary, big picture, I’m in a very, very depressed mode because I think this is the decision in terms of what will happen to our democracy. I mean, I know that sounds like pretentious and grandiose, but it’s sometimes the right way to think about something.
Mary McCord: And, you know, that’s on top of a lot of other cases in the Supreme Court that are pretty troubling right now, where the arguments were waiting.
Andrew Weissmann: Absolutely.
Mary McCord: So it’s not just this case. I mean, this case, I think, is really significant, really, really significant. But it’s been a rough several weeks of listening to Supreme Court arguments.
Andrew Weissmann: Yeah.
Mary McCord: I’d say a rough term.
Andrew Weissmann: Yeah. And that’s not even if you even go way beyond the sort of Trump related one —
Mary McCord: Exactly.
Andrew Weissmann: — the disqualification motion, the obstruction decision that we’ve talked about, both of those. But you can obviously go to the end of the —
Mary McCord: EMTALA.
Andrew Weissmann: — right, EMTALA, the end of the administer state.
Mary McCord: Yep.
Andrew Weissmann: And then, you know, back to Dobbs overturning Roe v. Wade. I mean, it’s just on and on and on. I mean, it’s just incredible.
Mary McCord: Yep.
Andrew Weissmann: Anyway, we are digressing.
Mary McCord: Yeah, we digress. Okay.
Andrew Weissmann: So it’s useful to remember that what Donald Trump’s counsel was arguing was that unless and until a president is impeached by the House and convicted in the Senate, he cannot be criminally charged for official acts in office.
Mary McCord: Or things in his words, things done within the outer perimeter official acts. So a very broad, expansive reading of official acts. Yes.
Andrew Weissmann: Exactly. That was the second part, which is —
Mary McCord: I’m sorry.
Andrew Weissmann: — how do you define official acts? Which is it’s the outer perimeter. So very, very broad. So, for instance, if you were presumably engaging in bribery as a president, but you used your office, which is almost necessary for the bribe, he could say, well, that’s within the outer perimeter of his presidential duties.
So but that’s sort of the devils in the details as to how you defined official acts. But he was basically saying criminal immunity for official acts defined as the outer perimeter of the duties of the presidency, unless and until there is an impeachment for which you are convicted.
No one was arguing, including Donald Trump, that private acts could be subject to criminal immunity. So that’s really important.
Mary McCord: Yep.
Andrew Weissmann: That was not an issue. And the reason I’m sort of framing that is because a lot of our discussion comes back to, oh, look, they could —
Mary McCord: Could get away with murder.
Andrew Weissmann: — with a win here, could get a win by going forward with private acts. And that’s like that’s a given, that was not argued. Now, there is an issue about what is —
Mary McCord: That’s right. But there’s a devil in the details and let’s come to that, right. Yeah, come to that.
Andrew Weissmann: The devil in the details is what is private, what is outer perimeter and what’s the standard that the court would use? But I think that framing is important. And then what Michael Dreeben was arguing for Jack Smith, and actually he was actually arguing for the solicitor general.
Mary McCord: That’s right.
Andrew Weissmann: He made very clear that he was there very much on behalf of the Department of Justice, not just within the special counsel’s office. And he said, because it’s such an important issue, it goes way beyond the issue of just what happened in the special counsel case. And of course, you can’t think of anyone better than Michael Dreeben, given his incredibly long tenure. You and I both know him and have dealt with him, he’s a superb, wonderful lawyer.
But he was arguing that obviously private matters are something you can, of course, be prosecuted for that, again, that was a given. And with respect to official acts, his view was there is a small group of matters within the core, unique functions of the presidency for which a president could not be criminally charged.
Mary McCord: And by that, he meant things that are committed to the president by the Constitution, like the pardon power, right? The power to make recognized foreign governments, the power to veto, things that the Constitution gives him directly and explicitly.
Andrew Weissmann: And uniquely.
Mary McCord: And uniquely.
Andrew Weissmann: Not shared with other branches. And he said, so leaving that small core group aside where he said there would be immunity.
Mary McCord: He didn’t call it immunity.
Andrew Weissmann: Yes.
Mary McCord: He just said that if there was a criminal statute that sort of infringed on those core duties of the president, that is one that would not be able to be prosecuted.
Andrew Weissmann: Exactly. And whether you call it immunity or whether you say the statute would be unconstitutional as applied to him.
Mary McCord: It’s applied to him.
Andrew Weissmann: Absolutely. So then you deal with what do you do with the rest of it? And the position was that for criminal prosecution, that you can have a criminal prosecution for especially when you have public acts, sort of official acts for private gain was the way he kept on sort of phrasing it.
And of course, this indictment now turning to the specifics, he said this indictment obviously doesn’t fall into that small core category. And yes, there are parts of the indictment that are pure private. But even if there’s parts that relate to some official acts —
Mary McCord: Things that he said he used the official trappings of his office to do.
Andrew Weissmann: Right, such as you could argue that threatening criminal prosecution to Brad Raffensperger on the tape. This didn’t come up yesterday, but that’s obviously using his official office.
Mary McCord: Well, what did come up?
Andrew Weissmann: I mean, the threat of it —
Mary McCord: What Michael Dreeben specifically talked about is the content of that call. I just need you to find me —
Andrew Weissmann: Yes.
Mary McCord: — 11,000 something votes and change that arguably that call to Raffensperger. Mr. Trump’s attorney says that’s purely official acts. Michael Dreeben did not give that up and agree that was purely official.
Andrew Weissmann: Oh, no, of course.
Mary McCord: But he said, you know, you can look at the content of that and see that Mr. Trump was doing that in his capacity as a candidate, not as a holder of the office of the president, which gets us to one way of drawing lines, but at any rate.
Andrew Weissmann: Exactly. That’s sort of the devil is in the details as what is official, what is not official. But anyway, that’s the setting of the scene and so now let’s talk about the argument. And, Mary, I know you’re loaded for bears. So what did you think?
Mary McCord: So I have just sort of three points and then one sort of takeaway. And these are just the overarching things I took from the argument. First is I didn’t see really any appetite from any one of the nine justices for Mr. Trump’s argument that he is absolutely immune from prosecution for anything done within the outer perimeter of official acts, because even Justice Alito said there could be some things that you do as official acts and his example was SEAL Team Six. Ordering SEAL Team Six to murder a political opponent.
He said there are some things that it wouldn’t be plausible to say that they’re legal. And in fact, we can hear exactly what he said about this from the argument.
(BEGIN AUDIO CLIP)
Justice Samuel Alito: Well, I mean, one might argue that it isn’t plausibly legal to order SEAL Team Six. And I don’t want to slander SEAL Team Six because they are, no seriously, they are honorable officers and they are bound by the uniform code of military justice not to obey unlawful orders. But no, I think one could say that it’s not plausible that that is legal, that that action would be legal. And I’m sure I’ve thought of lots of hypotheticals. I’m sure you’ve thought of lots of hypotheticals where a president could say I’m using an official power and yet the president uses it in an absolutely outrageous manner.
(END AUDIO CLIP)
Mary McCord: So, okay, so you can hear in that clip of even Justice Alito that some things might be just too outrageous, that even if you used official power, they wouldn’t be absolutely mean. So that’s the first takeaway.
Andrew Weissmann: I just want to say one thing that’s interesting is that doesn’t deal with the text of the Constitution, the history of the Constitution, prior case law, the history of OLC opinions, Office of Legal Counsel opinions, and sort of how the country has actually viewed this in the past and the standard plausible. I mean, that is —
Mary McCord: Right. My point was not that this is a test that I think is going to be the test. My point was I didn’t see an appetite for any of the nine to say you get a free pass for absolutely everything you do that has the trappings of official power on it. Although that is why —
Andrew Weissmann: Alito gets close.
Mary McCord: Yeah. Yeah. But Mr. Trump’s attorney, even with Alito’s hypothetical, wasn’t willing to give that up. So he really does, you know, essentially believe that the Fitzgerald test, the test borrowed from civil laws, the civil cases is the right test, which is if it’s within that outer perimeter, you don’t question it. It gets immunity.
So even his own attorney wasn’t willing to adopt or accept the test that Alito proposed. Okay, so nobody really wants to give complete, absolute immunity to all official acts. The second sort of big takeaway is and this came out time and time again, and I’m going to use little air quotes here, the conservative justices.
And I’m particularly here talking about Gorsuch, Alito and Kavanaugh, because Thomas was quite quiet yesterday. Very few questions. But the other three were very concerned or expressed at least that they were concerned about the chilling effect on presidents if they think they could face criminal prosecution.
Essentially, they were buying in to Mr. Trump’s argument on this, that would chill them from taking bold action that is needed as a president because of concerns that then the next president would prosecute them. And wouldn’t that even lead to every president on the last day of office pardoning themselves for any potential prosecution?
On the flip side, the quote-unquote liberal justices were concerned about if there is criminal immunity for things within the outer perimeter of official acts of a president. Again, with this expansive, expansive reading of official acts, wouldn’t that just essentially turn the presidency into an opportunity to commit all kinds of crimes with a reckless abandon? And in fact, we have another clip from Justice Ketanji Brown-Jackson making this very point.
(BEGIN AUDIO CLIP)
Justice Ketanji Brown Jackson: Also, let me, let me, let me put this worry on the table. If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?
(END AUDIO CLIP)
Andrew Weissmann: Wouldn’t you struck, Mary, on that point, because I think that it was almost like a policy debate in Congress. Not —
Mary McCord: But among the justices.
Andrew Weissmann: — but among the justices where what was missing from that was the text of the Constitution, the intent of the framers, the history of the in the United States. I mean, it was so belied the originalism, textualism credo of the so-called conservative justices. It was completely absent. It was just a policy debate.
And then even within that policy debate, what was missing from the conservative justices was any record support in terms of 200 years of history. You cannot look at 200 years of history and say we really have to come up with a standard for criminal immunity because all hell is breaking loose.
Mary McCord: Oh my gosh, yes. Everyone will be chilled.
Andrew Weissmann: Exactly. And Michael Dreeben made that point.
Mary McCord: That’s right. He basically said our system has worked pretty well. It’s not perfect, but we’ve never had this before, except arguably we had a problem with Nixon. Not arguably. There was a problem with President Nixon and this case.
Andrew Weissmann: And by the flip side, when the conservative attack on the response from Dreeben and the so-called liberal justices, which is there are many, many checks in the system already to prevent that from happening, there’s no history.
Mary McCord: Layers of protection, he called it, right?
Andrew Weissmann: Right. There’s no history of it, but there are layers of protection. And basically the history shows it’s working. It was remarkable to me the antipathy towards the actual criminal justice system that you were hearing from Alito and Gorsuch, which was Alito saying, you know, you can indict a ham sandwich.
Mary McCord: Right.
Andrew Weissmann: I mean, this is our criminal justice system. That is also not true. I understand saying just good faith of people at DOJ is not enough. I totally agree with that. But it is a layer, but it is not sufficient.
Mary McCord: Yes. Necessary, but not sufficient.
Andrew Weissmann: But to sit there and denigrate the whole grand jury system, you know, I can think of cases where a partisan Department of Justice has sought a criminal prosecution and the grand jury has not gone along.
Mary McCord: Yes.
Andrew Weissmann: And that was during the Trump administration. But there’s more than that. You’re then a criminal defendant with all of the rights that this Supreme Court —
Mary McCord: Has given them.
Andrew Weissmann: — has given and other Supreme Courts have given them. And then you have to prove the case beyond a reasonable doubt. In other words, facts matter. And the denigration of this, including we can’t make a test based on intent and motive because we know how flimsy that is. And we know criminal statutes are vague. I mean —
Mary McCord: You can find a criminal statute to prosecute anybody you want to prosecute, was essentially what some of them seem to be saying.
Andrew Weissmann: And without facts and ignoring the fact that there’s a jury that has to find proof beyond a reasonable doubt unanimously. It was remarkable to me that you had people sitting in the Supreme Court denigrating the entire infrastructure and edifice that of our criminal justice system, that they are a huge part of creating.
Mary McCord: Right.
Andrew Weissmann: And, you know, I teach Fourth Amendment and Fifth Amendment law. The Supreme Court has gone out of its way to be pro law enforcement —
Mary McCord: Yes.
Andrew Weissmann: — in its rulings and very much puts its thumb on the scale. And so suddenly to be, oh, we’re all defense rights —
Mary McCord: In some phases but not all, but yes.
Andrew Weissmann: Not all, but there’s a lot —
Mary McCord: But the point is they rule on major criminal cases every term. They develop the law. The law that is developed in the Supreme Court is what apply to all prosecutors, whether it’s Fourth Amendment, Fifth Amendment, Sixth Amendment. And they seem to be expressing some a lack of faith in the protections that that system provides exactly as you’ve laid out.
I think what else is interesting about those positions, about one group of justices worried about the chilling effect of there not being immunity, the other worried about the emboldening effect of immunity is both seem to suggest that the status quo we’ve had for these 200 something years is different. Like Mr. Trump’s attorney is like our status quo has been that there is immunity.
And the other side is like, no, our status quo has been that there’s never been immunity. And I thought that was sort of an interesting thing. Now, his point on there’s always been immunity is there has to have always been immunity because it’s never happened that we’ve had a criminal prosecution of a president before.
The other side is there hasn’t been one because nobody’s done anything like what Mr. Trump has done. Okay, my third big point. And then we’ll go to break and come back and talk about it, because I think this is the main sort of where, you know, the rubber meets the road is —
Andrew Weissmann: The main event.
Mary McCord: — is there will be a remand for line drawing. And the question is, how will that line be drawn? That line between, as you indicated in the framing, purely private acts that even Mr. Trump’s attorneys agree he could be prosecuted for and whatever other thing, whether it’s core executive functions, whether it’s some level of official acts, whether it’s outer perimeter official acts, whatever that other thing is, where there might be immunity, where’s the line between them?
And I think that’s where most of the argument focused. And I think there’s going to be a lot of dispute and debate between the justices on that, which is why I’m not optimistic that we’ll get a decision until the very end of June or beginning of July. But we can talk about that when we come back from the break.
Andrew Weissmann: Okay.
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Andrew Weissmann: So, Mary, let’s pick up with your last point about if the Supreme Court sends the case back, remands it for a hearing.
Mary McCord: There were lots of different proposals out there in terms of drawing that line. I think one of them that was brought up by justices, both during Mr. Sauer’s argument, he was the attorney representing Mr. Trump and Michael Dreeben’s argument. He was the attorneys we’ve already noted representing the government.
One of the ways of line drawing that kept coming up is the way that had been suggested by the D.C. Circuit in the civil cases brought against Mr. Trump by Capitol Police officers and members of Congress for injuries suffered as a result of January 6th. And in that case, that case called Blassingame. And that name came up throughout the argument. That test was really about it was about immunity from civil prosecution. I’m going to use the word even though we tend to think of prosecution in the criminal sense.
And because, again, Fitzgerald, this old case we’ve been relying on and talking about for months, says that presidents are immune from civil liability for actions taken within the scope of the outer perimeter of their official acts. So the question in Blassingame is what things were Mr. Trump’s official acts and what things weren’t.
And the way the D.C. Circuit sort of broke it down in Blassingame was whether Mr. Trump was doing something as an office holder or an office seeker. So in other words, was he doing it because he’s the president and this is within the scope of my duties as president? Or was he doing it because he was a candidate and he was doing it because he was running for office?
And the test they said is you have to look objectively at the whole context. When he is speaking, for example, is he speaking at an event that is a political event that’s paid for by the political party? Or is it an official, you know, U.S. government event where he’s speaking on behalf of the administration, announcing some policy issue or whatever? And you look at other sort of objective, contextual criteria like that to determine whether it’s as a candidate or as the president.
And there were things noted like in the litigation when Mr. Trump went to the Supreme Court back in 2020 over into 2021 to challenge the election fraud, he signed, you know, things as candidate. I mean, it was representative that he was in his position as a litigator, as a candidate. So these are kind of the objective facts you would look at. And so there were a lot of questions about, is that the right test? Is that how we should be applying it?
Andrew Weissmann: And very much also considering, can you consider, as Justice Gorsuch phrased it, motive as Michael Dreeben phrased it, not motive, but intent and —
Mary McCord: Right and purpose.
Andrew Weissmann: — and purpose? Yes. And Michael Dreeben was saying that if you are doing something using your public office, but for private gain, that should count in the same way as we talked about. If you are using your public office to coerce Brad Raffensperger to do your bidding, if you’re using your public office to coerce the Department of Justice to say that there is a fraud investigation, that is, of course, you can call the Department of Justice, but you’re entitled to consider what the purpose was, what the goal was, what your intent was. So that very much devil in the details.
Mary McCord: Can I just add on your point about Michael Dreeben talking about, you know, you can be using sort of the trappings of your office for private gain? He actually said he thinks in the government’s view, this makes it even worse, right.
Andrew Weissmann: Yes.
Mary McCord: It doesn’t make it like more protected as official acts. It makes it even worse and less protected —
Andrew Weissmann: More criminal, right. Exactly.
Mary McCord: — and more criminal because you’re using the trappings of your office for private gain.
Andrew Weissmann: So that led to sort of a fascinating exchange that I think got everyone all excited in this sort of legal analyst sphere, but I think really has people going down the wrong rabbit hole, which was a very good line of questioning from Amy Coney Barrett, who sort of I think if any justice sort of came off surprising, she did not seem to be buying what Donald Trump’s counsel was advocating.
And she questioned Trump’s counsel about, let me go through some of the key things that are alleged in the indictment and that the governance counsel says are private conduct. Do you agree? And for some of them, he did agree.
Mary McCord: That’s right.
Andrew Weissmann: And so let’s play that.
(BEGIN AUDIO CLIP)
Justice Amy Coney Barrett: And I want to know if you agree or disagree about the characterization of these acts as private. Petitioner turned to a private attorney, was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?
John Sauer: As alleged. I mean, we dispute the allegation, but that sounds private to me.
Justice Amy Coney Barrett: Of course. Sounds private. Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations to support a challenge.
John Sauer: That also sounds private.
Justice Amy Coney Barrett: Three private actors, two attorneys, including those mentioned above, and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. And petitioner and a co-conspirator attorney directed that effort.
John Sauer: You read it quickly. I believe that’s private. I don’t want to —
Justice Amy Coney Barrett: So those acts you would not dispute. Those were private and you wouldn’t raise a claim that they were official.
John Sauer: As characterized. We would say, Your Honor, if I may, that what we would say is official is things like meeting with the Department of Justice to deliberate about who’s going to be the acting attorney general of the United States —
Justice Amy Coney Barrett: Sure.
John Sauer: — communicating with the American public, communicating with Congress about matters of enormous —
Justice Amy Coney Barrett: Thank you. Thank you.
(END AUDIO CLIP)
Andrew Weissmann: So obviously, the key there is the concession, because the legal principle of being able to criminally go forward with something that is purely private as we pointed out, was not an issue. So everyone’s like, oh, this is great. They couldn’t rule that you can go forward on private matters.
Well, that means they’d still be precluding that it all depends on what they view as private versus public. And they would be precluding, at the very least, not evidence, but charges that are viewed as official. So, for instance, the allegations with respect to the Department of Justice are the ones that Michael Dreeben is saying we should be able to use because he’s using his public office —
Mary McCord: For private.
Andrew Weissmann: — for private gain. But that’s sort of the ballgame. And so, yes, there is a way that this case will proceed because there’s some private matters here, unless the court just says that they even disagree with Trump’s counsel, that they’re private. I don’t think they could go there.
Mary McCord: No.
Andrew Weissmann: So, they’d be able to proceed on the private matters. But that still would be a ruling with respect to public matters and how they describe what is official conduct.
Mary McCord: Official conduct I’d say, rather than public matters.
Andrew Weissmann: Yeah, yeah, sorry. Yeah. Bad phrasing. So to me, it’s like, yes, there may be a way to go forward with a smaller case. It remains to be seen how much smaller, depending on how they define things. But that’s still a ruling that doesn’t deal with the SEAL Team Six hypothetical, the Justice Kagan hypothetical —
Mary McCord: About a coup.
Andrew Weissmann: — which is just like Judge Pan about what if the president’s engaging in a coup? That’s obviously something that they could use their trappings of office.
It could be described as official conduct unless Justice Alito is going to say it’s not, quote, “plausible.” I mean, that’s an odd test, to say the least.
Mary McCord: Yeah, I think that is what he would say about a coup, though. But to get back, you know, for our listeners to know what is the ramification of this, right? Amy Comey Barrett specifically sort of said, couldn’t you go forward to Mr. Sauer? Couldn’t the government go forward on these private acts? And then that’s what led to her, as we just heard, going through what private acts are.
So then the question really becomes, can the government still use evidence of things within the official, quote, unquote, “whatever is within the official acts of a president.” I’m going to say using the official trappings as evidence of knowledge and intent to prove up the criminality of the private acts.
As opposed to, as you just indicated, if the court were to say certain official acts are out of bounds or immune, he couldn’t use them to establish criminal liability as to those official acts. But the question becomes, can you use the official acts as evidence? And this is where I think there really is. I think there are five votes for using official acts as evidence.
And I think that primarily because of what the law is and also what just what the chief justice seemed to be pretty adamant about. And he really pushed Mr. Sauer on this because Mr. Sauer’s view was, no, you can’t have any evidence of anything that was done as part of the official acts even come into the trial. And this is where that word expungement came. It all has to be expunged. None of that could come into trial. And the chief really questioned that. And let’s play that clip of the chief.
(BEGIN AUDIO CLIP)
Chief Justice John Roberts: Well, if you expunge the official part from the indictment, how do you, I mean, that’s like a one-legged stool, right? I mean, giving somebody money isn’t bribery unless you get something in exchange. And if what you get in exchange is to become the ambassador to a particular country, that is official. The appointment that’s within the president’s prerogatives. The unofficial part is I’m going to get a million dollars for it. So if you say you have to expunge the official part, how does that go forward?
(END AUDIO CLIP)
Mary McCord: And the example that the chief was relying on there is that let’s assume that a president promises to make someone an ambassador, given an ambassadorial appointment in exchange for a bribe. A bribe? Do you agree, Mr. Sauer, is a private act? And Mr. Sauer agrees that a bribe itself is unlawful and a president can be charged with bribery. But he did not agree that evidence of the offer to make an ambassadorial appointment would be admissible. His point was like, no, you could only put on evidence of the president receiving the money.
And I think the chief was rather incredulous to that. Well, how could that be? Doesn’t the government have to be able to tell the story of the reason for the payment of the bribe in order to be able to, you know, go forward with a trial? And the chief justice is right about this, of course.
Andrew Weissmann: Of course.
Mary McCord: And so this is where I think to the extent we might be able to have a trial before the election, it’s going to come down to this.
It’s going to come down to does the Supreme Court say anything about which things are private and which things are public? Or do they completely leave that to Judge Chutkan with some guidance about how she’s supposed to draw this line? And do they say official acts could still come in as evidence of knowledge and intent?
Andrew Weissmann: So I agree with you that there were at least five votes for that. But can I just say who disagreed with that point that you just made —
Mary McCord: Sure.
Andrew Weissmann: — and that the chief justice was making that makes imminent sense? Justice Alito.
Mary McCord: Yeah.
Andrew Weissmann: I mean, he just came right out and said, well, obviously, if you can’t be charged with that, it wouldn’t be meaningful if you could introduce evidence about it.
Mary McCord: Right.
Andrew Weissmann: I mean, it was so disheartening to hear that. I mean, it was so disingenuous. I can’t really think of a more favorable word.
Mary McCord: Yeah.
Andrew Weissmann: It was shocking because it’s so obviously wrong. And so just one thing about if it goes back to this sort of a hearing and a decision on sort of official versus private, there is a potential upside. There’s no question that this case could be extremely delayed and that this decision could come out at the end of June and that they’re not going to act quickly and that Judge Chutkan, you know, said that there would be about 81 more days to allow the defense to prepare for a trial.
Mary McCord: Right. But during those 81 days, she could be having the hearing, right? Okay
Andrew Weissmann: Right. That’s my point. Is that if there is a hearing. Just remember, that could be a factual hearing. If you are deciding that’s the sort of the rabbit out of a hat, which is if it goes back for a hearing on this and she thinks she needs to have facts to understand what is official and what is private, you could have a hearing. And I don’t mean like a one day hearing. I mean, you could be telling the government that you don’t have to wait 81 days because it’s not the trial.
No one’s going to jail based on this.
Mary McCord: Right.
Andrew Weissmann: And you could have a hearing where facts get into the record. And as we know, that is exactly what Donald Trump does not want. You can see it from the last thing we’re going to talk about today, which is the trial in Manhattan and David Pecker’s testimony, where there is really, I think, pretty explosive testimony about the nature of what was going on in 2015, ‘16 and ‘17 in that case.
So one thing for people to keep an eye out of, this maybe is my only sliver of optimism, is that there is this ability to potentially have a hearing where people like Mike Pence, Bill Barr, Eric Hirschman, others testify about the facts that would relate to official versus unofficial.
But I do think big picture, I just want to go back to where I sort of started with you, Mary, which is this idea that, oh, but don’t worry, we’re letting you go forward with respect to private acts is a huge loss. I mean, it is true that the definition of private versus official is kind of the ballgame.
Mary McCord: Yes.
Andrew Weissmann: But just remember, Michael Dreeben went in asking for immunity to only be with respect to the core.
Mary McCord: And again, he wouldn’t call it immunity. Gorsuch said, let’s just call it immunity. He’s like, well, okay, but it’s not.
Andrew Weissmann: I’m just doing it as a shorthand. But meaning he’s saying whether he calls it immunity or you can’t be criminally prosecuted because the statute couldn’t reach it. He’s saying that official acts are subject to criminal prosecution. So he would lose on the big ball of wax other than that small core group.
Mary McCord: Yeah. If that’s where they come out.
Andrew Weissmann: Right.
Mary McCord: I do think this whether something’s an immunity or not, does have consequences, though, right.
Andrew Weissmann: It does, yep.
Mary McCord: Because if it’s couched as immunity, there’s the opportunity for another appeal like Judge Chutkan rules here. These things are unofficial, private. These things are, you know, official and you’re immune. He can take that up and say she drew the line wrong.
If it’s really all about an as applied challenge to a criminal statute being applied to the president in circumstances where it would infringe on his explicit constitutional responsibilities, that’s not necessarily something that gets you an interlocutory appeal. That is something that you could appeal at the end of a trial.
So, you know, this label, notwithstanding that Justice Gorsuch wanted to just call everything immunity, the label, I think, does have some consequences. And that’s why, to your point, there could be this hearing on these things. It could be that, however, Judge Chutkan rules is something that Mr. Trump would take up again, which means there’s no chance of getting to trial before the election.
But the hearing itself would expose a lot of facts to the public if there was that type of factual hearing. And I’m not 100 percent certain that that’s the kind of hearing it would be, but it’s certainly one possible option. If the government will just say we’re only going to go to trial on the things that Mr. Trump has conceded are private acts and we’re going to put in official conduct as evidence of knowledge and intent, that’s one path to possible trial before the election.
But again, he’s only conceding a few narrow things are private acts. And so if Judge Chutkan went further than that and said more things than that are private, he’s going to at least make an effort to appeal that, I think.
Andrew Weissmann: I agree. So it remains to be seen. I’d say the only other point on this is for everyone to keep their eyes out for what the chief justice is going to do, because people were pretty vocal and pretty clear about where they were coming out. You never know from an oral argument what’s going to happen with respect to the case at large or even certain of the justices. I mean, some were absolutely clear.
But Chief Justice Roberts was surprisingly quiet, I think, on where his leanings were other than the point that you are making, Mary. So it’ll be interesting to see where he comes out. One thing we didn’t briefly discuss is something called the clear statement rule, which was there was a whole back and forth about whether there’s a way to decide this case because the charges couldn’t essentially be brought against the president because the congressional statute didn’t specifically say and this applies to the president.
Mary McCord: Only two statutes say that.
Andrew Weissmann: Right. Amy Coney Barrett’s like that’s only two out of like thousands of statutes. She’s like, essentially, this is me paraphrasing. She’s like, that’s absurd.
Mary McCord: Yeah.
Andrew Weissmann: I mean, it was very interesting. I mean, she displayed, I thought, just a ton of common sense.
Mary McCord: I thought she had great questions, really important questions.
Andrew Weissmann: Yes, and totally great.
Mary McCord: And yeah, I was very impressed with her yesterday.
Andrew Weissmann: Yeah. And I also thought, once again, Ketanji Brown-Jackson, the newest justice, I find almost like every single thing that came out of her mouth, I was just like, okay, that’s brilliant and grounded in law.
Mary McCord: The other thing we haven’t talked about is, you know, this argument that if there’s anything within official acts that a president could be prosecuted for, it has to be only after impeachment and conviction by the Senate, right. Remember, that’s his core argument —
Andrew Weissmann: Yes.
Mary McCord: — which sort of defeats a lot of his arguments about immunity, but whatever. We, you know —
Andrew Weissmann: Totally, right.
Mary McCord: But this is another place where Justice Barrett, I thought, was very good. And we do have that clip as well.
(BEGIN AUDIO CLIP)
Justice Amy Coney Barrett: Okay, so there are many other people who are subject to impeachment, including the nine sitting on this bench. And I don’t think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. So why is the president different when the impeachment clause doesn’t say so?
(END AUDIO CLIP)
Mary McCord: So with that, let’s go to break and we’ll come back and talk about some other things happening yesterday and over the last few days because this was not the only thing.
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Andrew Weissmann: So, Mary, lots of other things going on, although obviously the Supreme Court was a lion’s share of our attention because of what it means for the country, not just for Donald Trump. So, we’re going to focus on two things about New York, what happened in the trial, some not trying to do a TikTok of everything that happened, but just some key points.
Focus on the new gag order motion and then turn to Arizona, where, Mary, I’m going to be fascinated to hear your take because you’ve been so steeped in fake electors and looking into that issue. So David Pecker was on the stand again yesterday for direct and the cross examination started.
And the key sort of big picture is David Pecker clearly was presented by the D.A. as a principal who had an agreement with the other principal, who is the defendant in the case, Donald Trump, very much making Michael Cohen sort of a amanuensis, you know, a staffer, as Nicolle Wallace said, carrying out the work of the two principals.
David Pecker also sort of explained essentially why Michael Cohen and Donald Trump had to take on a different role with respect to Stormy Daniels. And that is that with respect to the sort of catch and kill scheme and denigrating opponents, they continue to denigrate opponents. The “National Enquirer” did, but with the catch and kill scheme, it’s a couple of things. But basically, “National Enquirer” kept on laying out money. And even with Karen McDougal, they laid out money, but they didn’t get reimbursed.
Mary McCord: Yeah.
Andrew Weissmann: They didn’t get reimbursed, not because Donald Trump is cheap, but it’s clear, one, they were concerned about —
Mary McCord: Campaign finance violations.
Andrew Weissmann: Exactly. He basically said it’s so clear. At some point, he’s like, I went and talked to our lawyer and then I came out and we decided we weren’t going to do this anymore.
Mary McCord: He also said, I know about campaign finance violations because I did a similar scheme for Arnold Schwarzenegger back when he was running for office.
Andrew Weissmann: Exactly.
Mary McCord: And then I heard from, you know, oh, this could be a campaign violation.
Andrew Weissmann: He couldn’t say what the conversation was with counsel because of attorney-client privilege, but it’s clear. It’s like we were planning on getting reimbursed. Then we weren’t. It’s clear that a lawyer is like, what the heck?
Mary McCord: Yeah, that’s right.
Andrew Weissmann: You have a feeling the “National Enquirer” might have been slightly stronger words.
Mary McCord: It might have been, yeah.
Andrew Weissmann: So anyway, that sort of explains why David Pecker then turns to Michael Cohen and says, we’re not doing this anymore. Like, we’re not going to be a bank for paying out.
Mary McCord: They were almost $200,000 in by that time, right? $150,000 for Karen McDougal, $30,000 for Dino Sajudin, the doorman. So, you know, that’s a lot of money. And he said this is way more than they normally pay to kill a story.
Andrew Weissmann: Yes. So this is why Michael Cohen had to take out the home equity loan because the “National Enquirer” was no longer the bank for this.
Mary McCord: Right.
Andrew Weissmann: And so that’s why there was this different way the scheme had to operate. The other parts of the scheme, “National Enquirer” being the eyes and ears, looking for bad stories, denigrating opponents, all of that was still going on.
Mary McCord: Yes.
Andrew Weissmann: This was just the financial component of the catch and kill. The cross-examination, this is where it helps that you and I have done so many trials because there was a lot of reporting on air that I just violently disagreed with. And that’s because this is the look over here school of cross-examination, which, by the way, I’ve been a defense lawyer. That’s a totally valid type of cross-examination.
But the job of the prosecutors, also the job of the public, and I think our job is to be analytical about what is happening. So the two sort of key cross avenues on this so far were, one, didn’t you engage in this kind of scheme essentially with other people like Arnold Schwarzenegger? Well, that’s not a defense.
The fact that you may have committed an election fraud scheme with somebody else is not a defense to committing an election fraud scheme with a second person. That’s like saying, well, didn’t you commit a bank robbery before? Yeah. Okay, great. That’s true. That’s why I knew it was illegal, to your point, Mary. The second was to say, oh, there’s nothing wrong with just generally doing catch and kill for celebrities. And then there was this sort of salacious list of people who I’m not going to name here.
Mary McCord: I was wondering if any of that was public until yesterday.
Andrew Weissmann: Yeah. I mean, that was basically, oh, we just sort of do this in general for people. But that’s not the charge here. That’s like apples and oranges. The reason we’re here is because of the false business records with the intent to commit a campaign violation. It might be sleazy and disgusting and politically small P bad.
It might open you up if you’re admitting on the stand that you’re deliberately defaming people who are political opponents. That might open you up to civil lawsuits, which, by the way, I was sitting there thinking, oh, my God —
Mary McCord: I know. I was thinking about that too.
Andrew Weissmann: — the “National Enquirer” has to be like, we just have the head of the organization saying we did this deliberately and these were fake stories. But just saying that you did a non-criminal version of this and we’re sleazy, it’s just irrelevant to this. But they want to make it sound like, oh, it’s just business as usual.
Mary McCord: Business as usual.
Andrew Weissmann: But that’s not the crime. And so, we talked about on our last episode, when opening statements about why you and I looked for smart jurors, just like we’re doing now. You want to be able to just say, okay, that doesn’t make any sense. Here’s the reasons. And by the way, this is what you’re going to hear in closing is why that’s not logically true.
Mary McCord: Yeah, I mean, I get it why they did it, right. Because, you know —
Andrew Weissmann: Of course, they’re defense.
Mary McCord: — they’re working with the facts and they wanted to go back that you guys have had this relationship, you and Trump, since 1998 or something like that, right. And this is just the same thing. And, you know, we’ll see the government come back and rebut that.
Andrew Weissmann: I wasn’t trying in any way to say that this is the defense’s job. My point is that our job is to think critically about those arguments. And just to be fair to them, they then pointed out places where like with every witness, David Pecker didn’t remember everything completely clearly. That’s totally fair game. And that’s that you should be crossed on that.
So this is less about the defense lawyer’s job. I think you and I both really respect that when it’s done, you know, within the rules, it’s absolutely necessary to our system. But our job is to think about critically just do those arguments make sense.
Okay, there’s a motion that was filed with respect to more gag order violations. It’s going to be heard on Wednesday. The court has issued an order requiring Donald Trump to respond and to be present for that because he continues to allegedly violate the gag order.
Mary McCord: And some of these new claims that the D.A. is making involve things that Mr. Trump has said, like right there in the courthouse, in the hallway, during the trial or right after the trial, you know, during a trial day.
Andrew Weissmann: Now, Mary, Arizona. So just remind people, everyone should know, like you’re very steeped in the fake electors because of your civil work for ICAP.
Mary McCord: Right.
Andrew Weissmann: So what did you make of all that?
Mary McCord: Yeah. So, you know, we spent an episode back, I guess, you know, right at the end of February, beginning of March, talking about the fact that we had resolved our case in Wisconsin, brought against the fraudulent electors there and two Trump attorneys, James Troupis and Kenneth Chesebro. That was a civil case. So nobody’s going to jail.
And in doing so, we got commitments for them not to participate in a scheme like this again, but also and more importantly, troves and troves of e-mails and text messages that really show the genesis of the scheme.
So when I saw this indictment come out on Wednesday, boy, did it read very familiarly to the story we’d been able to tell through all of the documents that we had obtained, as well as, of course, documents that the House Select Committee had obtained and other information that’s come out about the scheme.
So what we’re seeing now here is criminal charges for different types of fraudulent conducts, conspiracy, fraudulent schemes and artifices, fraudulent schemes and practices and forgery against not only all of the Arizona fake electors, but also another one, two, three, four, five, six, seven as yet not officially named defendants. Now, there’s been speculation by “The Washington Post” and others about who those defendants are.
And I could tell when I quickly skimmed the indictment who some of those other defendants are. But I think what’s important here is they’re going beyond the fake electors into some of the puppet masters, those who were pulling the strings, those who were involved in creating the scheme. That would include people in the campaign, people associated with Donald Trump, people like Boris Epshteyn, people like Mike Roman. And so this is, again, about accountability.
Now, what’s missing here? We do not have Donald Trump on the other side of the V. He is not a defendant. He is unindicted co-conspirator number one. And, you know, another person who is involved in this indictment and is called co-conspirator number four is Kenneth Chesebro. It’s quite obvious from the allegations that’s who it is. He, of course, was one of our defendants. He, of course, was the source of many, many of the documents that we made public, as well as documents that had already been public.
He is the one who originally came up with the idea for the scheme, wrote the legal memos supporting the scheme. This cause was later taken up by John Eastman, of course, who was very close to the president and, you know, really ran with it. But he’s the one who came up with the idea. James Troupis, the Wisconsin Trump campaign attorney, is the one who introduced Chesebro to Trump campaign officials who were like, this is a great idea.
And I saw throughout the indictment references to James Troupis as well, not by name, but by the fact that this Wisconsin Trump attorney, you know, made these connections with the campaign, then asked, can you guys do this for all of the swing states? That was Boris Epshteyn who asked that. And Chesebro said, yes, we can. Now, what do I take from Chesebro being an unindicted conspirator number four?
Andrew Weissmann: Exactly. So that was going to be my question, too.
Mary McCord: Yeah.
Andrew Weissmann: Exactly. I actually had two questions for you. One is obviously speculation, but why do you think Chesebro was not charged? And the second, obviously, is why do you think Donald Trump was not charged?
Mary McCord: Yeah. Chesebro, you know, it’s been widely reported that he met with the Arizona attorney general as well as other attorneys general and supplied them information and documents. Many of the documents and emails and texts that are referenced here are things that we also obtained from Kenneth Chesebro. So my strong suspicion is that in return for his cooperation, he is not being charged. Donald Trump, that’s a different question.
Andrew Weissmann: Can I just ask you on Chesebro?
Mary McCord: Yeah.
Andrew Weissmann: Do you think he’s fully, fully cooperating? Or do you think he cooperated enough so that they didn’t charge him?
Mary McCord: So, my suspicion is that he came and met with them, maybe went in the grand jury, maybe not. I’m not entirely sure. Provided lots of texts and e-mails. And my guess is the cooperation would also include testimony at a trial because certainly if I were the A.G., I would want that, right.
Andrew Weissmann: Well, if you were there, I definitely know the answer because you’re going to be like, you know what? You’re either fish or you’re fowl.
Mary McCord: That’s right.
Andrew Weissmann: You know, you’re either a conspirator or you’re a cooperator.
Mary McCord: Yeah.
Andrew Weissmann: There’s no —
Mary McCord: No halfway. No one leg in, one leg out. Yeah.
Andrew Weissmann: Right, exactly. Right. You know, one legged stools here.
Mary McCord: Yeah, right. But, you know, all of this is us. We don’t know this, you know, officially. We’re just speculating. And then as to Mr. Trump, you know, I’m speculating on that as well. I mean, certainly they painted a broad conspiracy here that I mean, he’s called an unindicted co-conspirator.
Andrew Weissmann: Right. And it’s all for him. I mean, it’s not —
Mary McCord: Yeah, and it’s all for him. And he certainly had knowledge, not necessarily of every single step of the way, but he had knowledge of what was happening, embraced it. He pushed it. He was advised of it at White House meetings, which are in here, et cetera. That’s also things we revealed through our case.
So I don’t know if they just didn’t want to get bogged down, frankly, with yet another case against Mr. Trump in this year, where there are four criminal cases against Mr. Trump, and they want to be able to get some accountability, move this case along. It could be also they’re thinking of that down the road. But I think some of it could just be for political reasons. And that’s like little p, political and resource reasons.
Andrew Weissmann: Can I give you a question, it’s on pages 44 and 45 of the charges, which is there’s sort of a reference to internal White House lawyers saying, I’m just sort of paraphrasing, but we don’t really know what the lawyers, Rudy and Eastman, who are conspirators, according to the Arizona A.G., what they’re telling Donald Trump.
Mary McCord: Right.
Andrew Weissmann: In other words, whether there’s an issue about whether he knows they’re fake electors versus contingent collectors.
Mary McCord: Contingent.
Andrew Weissmann: Now, they may have very good reason to think that he knew that these were fake and not contingent. That’s sort of the line between legal and illegal, contingent being that is okay, fake being not okay. And I wonder if they just thought we’re not yet at the point of having proof beyond a reasonable doubt.
Mary McCord: That could be. I think there is other evidence, you know, including the meeting at the White House. I mean, certainly their evidence is not as strong on this, at least according to indictment with respect to Mr. Trump as it is with some of the others, so.
Andrew Weissmann: So, Mary, this has been fascinating. It was an interesting day yesterday. So to be continued, obviously, there’s the trial that’s continuing today. We will have another gag order hearing —
Mary McCord: Next week.
Andrew Weissmann: — next week. I have actually some thoughts about alternatives that we can talk about next week as to what the judge might do in addition to just finding that could be useful.
Mary McCord: Right.
Andrew Weissmann: Once again, Professor Ryan Goodman came up with a good idea. I know our friend, mutual friend Neal Katyal also had an idea. So we can talk about those as we talk about the gag order. It’ll be fascinating to see the continuation of the trial. And, you know, Mary, as hard as it is to do all of the TV work and now we’re doing not one but two podcasts a week, it really I have to say the sanity of this is getting to spend time talking with you and having my blood pressure go down and listening to sober, clear analysis that’s dispassionate, so thank you.
Mary McCord: Well, I appreciate that. If this is where our blood pressure goes down, I can’t even imagine where it started, but okay. I’ll take it. And I just want to also say we really do intend to get to listener questions. We just had so much today. We didn’t do it. We’re going to commit to that next week and look forward to talking with everyone again on Tuesday.
Andrew Weissmann: So as the trial continues in New York, Mary and I will bring you new episodes twice a week to keep you up to speed. And we want to answer some of your questions, as Mary noted. So keep them coming. We really, really will get to them if the news ever stops breaking.
But to send us questions, you can leave us a voicemail at 917-342-2934 or you can email us at prosecutingtrumpquestions@nbcuni.com. And just so you know, we really do read them. So thank you very much for those who have sent them and thank you in advance for those who do send them. So thanks so much for listening. We’ll be back next week.
This show is produced by Vicki Vergolina. Our associate producer is Janmaris Perez, with production support from our old friend and colleague Alisha Conley. Katherine Anderson and Paul Robert Mounsey 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.