With the New York trial looming, veteran prosecutors Andrew Weissmann and Mary McCord set the table for what to expect: anticipating more delay tactics from Trump’s legal team, and the importance of Judge Merchan’s gag order reinforcement and clarification. They also look at several bar hearings held to decide whether John Eastman and Jeffrey Clark, among others, should lose their law licenses after their efforts to subvert the 2020 election results.
For further reading, here is the Just Security article Andrew referenced in this episode: Trump’s Promise to Free Jan. 6 Inmates in DC Jail — Almost All of Them Assaulted Law Enforcement Officers.
Also, some exciting news! Prosecuting Donald Trump and Into America have been nominated for Webby Awards! And MSNBC needs your help to win. Check out vote.webbyawards.com to vote for both shows.
Note: This is a rough transcript — please excuse any typos.
Andrew Weissman: Hi, welcome back to “Prosecuting Donald Trump.” It’s Tuesday, April 2nd, which would be the day after April Fool’s Day. I’m Andrew Weissman, and I’m here with my co-host, Mary McCord.
Mary McCord: Good morning, Andrew. And you know, I will say normally I get a lot of sort of April Fool’s things. Somebody at work will do something, my husband will do something. I think everybody forgot yesterday. I didn’t get any good April Fool’s stuff.
Andrew Weissman: Wait, I’m taking that as a personal insult. Oh, you’re not on social media. That’s why —
Mary McCord: I didn’t see your April Fools?
Andrew Weissman: I had a really good one. It had a lot of views. So, I wake up early, which is just killing me. But I got up and I posted the following. I said, breaking. Donald Trump files in the New York criminal case, an apology to Judge Merchan and his daughter. He also expresses regret for posting an effigy of President Biden as conduct unbecoming of former president.
Mary McCord: That’s good.
Andrew Weissman: A few lines down, it just said, Happy 4/1. And that sort of exploded because people were like, wait, what?
Mary McCord: Yeah. I wish it were true.
Andrew Weissman: I know.
Mary McCord: Honestly, I wish it were true and we could get some semblance of normalcy.
Andrew Weissman: Well, it also goes to the idea that that is the normal. I mean, that is what you would expect. Even Roger Stone, when he posted the picture of the judge presiding over his case in D.C. with crosshairs on the side. I mean, yes, he did say he didn’t post it, but then he also said, and I’m sorry.
Mary McCord: Yes, that’s right.
Andrew Weissman: So the idea that there’s just no shame at all. Anyway —
Mary McCord: Which is really segues nicely into what our lead topic will be today.
Andrew Weissman: Yeah. So, Mary, what’s on our list?
Mary McCord: Right. Yes, we will obviously talk about Judge Merchan expanding the gag order last night and some other, I think, rather rich pleadings filed by Donald Trump, essentially saying the trial needs to be postponed indefinitely because he can’t get a fair trial because of all the pretrial publicity so —
Andrew Weissman: That he created.
Mary McCord: That he created, right? That, of course, you know, will also involve discussions about the incredible increase and thrust against judges and judges now actually speaking out about that.
Andrew Weissman: Absolutely. Which, by the way, remember, Mary, you flagged that early on a few episodes ago about the D.C. judges who were speaking out about the January 6 cases. And I should mention Republican —
Mary McCord: Appointed.
Andrew Weissman: — appointed judges who you and I never really thought about that as a category. They were just good judges.
Mary McCord: Yeah. Who are really, really worried, right, about the threats against the judiciary, the undermining of the judiciary as an institution and all of those things. So that all goes with topic one.
Andrew Weissman: Yeah.
Mary McCord: Then we’ll spend a little bit of time talking about the lawyers that are being held accountable even while we still wait for accountability for Donald Trump. But a lot of lawyers are facing disbarment proceedings and other types of sanctions. And of course, well, this is somewhat of a look ahead. But Donald Trump did post his $175 million dollar bond last night to stay the judgment against him in the Manhattan civil fraud case.
While he appeals, we are expecting new filings today in the Mar-a-Lago case. And of course, there’s appeal of the decision not to disqualify Fani Willis from the Georgia case. So lots of things to keep an eye out. Not to mention, of course, the briefing continues in the Supreme Court in the President Trump or Donald Trump’s. He is not the president. Donald Trump’s immunity appeal, which will be argued in a few weeks.
So let’s get right to it. I know you and I have both highlighted probably half of Judge Merchan’s order last night, but I’ll let you start and then I’ll tell you if I highlighted anything you didn’t highlight.
Andrew Weissman: Yeah, this is one where it’s normally I’m like, oh, it’s so interesting that in the thirty-four page decision, you and I highlighted the two same quotes. Here it’s a little hard because when it’s a short decision and I think you highlighted almost all of it.
Mary McCord: Yes.
Andrew Weissman: So it’s hard to sort of say, gee, we’re just on the same wavelength.
Mary McCord: Yeah. And let me start out with a question to you, because, yeah, this came in the form, of course, of District Attorney Alvin Bragg going back to the court seeking clarification about whether the court’s gag order issued on March 26 covered family members of the court, because there had been a tax right after the gag order was issued, a tax on Judge Merchan’s daughter.
So what the court did here, of course, was expand it to make sure he did say I had not included family of the court, but I am now including it.
Andrew Weissman: Yeah.
Mary McCord: But to my mind, the import of this revised order is not about expanding it to the family member because he’s so worried about his family member. I’m sure he is worried about his daughter. I mean, he’s a human being. We’re all worried about our family members. But I think it sent a different message. And I wonder if you did, too. What do you think is most significant about this?
Andrew Weissman: I love this. When I teach, I call it the what’s in my pocket school of teaching where I’ll ask a question of my students and it’s like, hey, can you guess what’s in my pocket? And they’re like, no, just tell me what’s in your pocket.
Mary McCord: Right.
Andrew Weissman: So can I just back up just to make sure everybody understands what happened and what was before the judge? There were sort of two separate things, but one was really animating the request to the judge to clarify or expand the order. There were a series of posts where Donald Trump was referencing and commenting and criticizing the sitting judge’s daughter. Not just the sitting judge, he’d already been attacked and he was clearly not contemplated within the gag order. Neither was D.A. Brad.
That follows exactly to the letter what happened in the D.C. federal case, where, again, the sitting judge and the lead prosecutor, Jack Smith, were not covered by the gag order. And so that was one set of public comments that were coming from Donald Trump. The second was this past Friday, there was postings by the former president where he amplified an image of the current president who was bound and gagged in the back of a truck with what appeared to also be a bullet hole in his head with various MAGA signs on the truck.
That was not sort of front and center of what was before the judge. It was very much about the attack on his daughter. And so there was briefing on both sides as to the D.A. saying, please clarify and or expand. And it seemed very clear that the gag order did not cover the family members.
Mary McCord: That’s right.
Andrew Weissman: And the judge ultimately said that it did not cover it.
Mary McCord: That’s right.
Andrew Weissman: So it wasn’t like it was a violation of the gag order. The gag order just simply did not cover it. But it did get expanded to cover family members of the D.A., family members of the judge. Notably, it still does not cover the D.A. himself or the judge himself, but it does cover court staff, the prosecution staff, the judge’s staff and all family members of those people.
But I wanted to say, I think that what the court was concerned about was the effect on the process. I’m speaking so slowly, sorry. By the way, I was at dinner last night when someone said, I listened to your podcast. I love it, but I play it at 2.5 speed.
Mary McCord: 2.5? Gosh. Okay.
Andrew Weissman: I was like, I need to speed up.
Mary McCord: Yeah, because I sometimes get told that I’m going too fast so I can imagine at 2.5.
Andrew Weissman: Yeah. But I think I’m like really slow because one, because we do this in the morning and I need tons of coffee. So, I’m old. It takes me a while to sort of get the car cranked into gear to move along.
Mary McCord: Got it.
Andrew Weissman: Anyway, I think that he was concerned about the administration of justice, the effect of if you are attacking family members, yes, there’s an effect on them themselves, but it was very focused on you now can’t just be as a witness, as a juror, as a court staff, you can’t just be saying I signed up for this and I’m willing to take the heat and I’m willing to do my duty because you also now have to be thinking about, wait a second, but I’m not sure my family members signed up for this and that you’re going to have that undertow, that gravitational pull away from doing your duty, away from volunteering to do your duty as a juror, to do your duty as a witness.
There are so many pressures in high profile cases on witnesses to just be like, you know what? I just don’t remember. I don’t want to be involved. Do I really need to testify? And it’s hard enough to get people to feel comfortable with that and the extraordinary position that they’re in a high profile matter. It’s hard enough in a normal case. But if you add in the pressures of your family members, this was the judge saying it’s both in and of itself a wrong, but it has such an enormous, deleterious effect on the judicial process. Is that what you were thinking, Mary?
Mary McCord: Absolutely. And in fact, that’s mostly what my highlighted excerpts of the short opinion and order are. And the judge says it over and over again. This pattern of attacking family members, of presiding jurists and attorneys assigned to Donald Trump’s cases serves no legitimate purpose. It merely injects fear in those assigned or called to participate in the proceedings that not only they, but their family members as well are fair game for the defendant’s vitriol.
He talks about how it is not just a mere possibility or a reasonable likelihood that there exists a threat to the integrity of judicial proceedings. The threat is very real. Admonitions are not enough, nor is reliance on self-restraint. The average observer must now, after hearing defendants’ recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well. And he does this several more times.
Andrew Weissman: Right.
Mary McCord: He is sending that message.
Andrew Weissman: Can I give you more?
Mary McCord: Yes.
Andrew Weissman: It’s like favorite quotes, but it’s beautifully written. Again, this is starting with the first quote, “is such concerns will undoubtedly interfere with the fair administration of justice and constitutes a direct attack on the rule of law itself. Again, all citizens called upon to participate in these proceedings, whether as a juror, a witness or in some other capacity, must now concern themselves not only with their own personal safety, but with the safety and the potential for personal attacks upon their loved ones. That reality cannot be overstated,” unquote.
Mary McCord: And so I really think what he wanted to do is say, look, I take this seriously. And it’s not just the threats to my daughter, the threats to the court. But like, I have to be worried now about the fair administration of justice because people are rightfully going to be concerned. And remember, too, and our listeners might not know this, but Alvin Bragg had indicated in his filings, his original sort of letter requesting to file this motion and then his supplemental brief yesterday, that they had been hearing from people who do have involvement with the case who are nervous and worried —
Andrew Weissman: Yes.
Mary McCord: — right, and concerned. And that can be, you know, a real threat to the administration of justice, to the rule of law, like the judge said. One other one I love to mention is that he said the conventional David versus Goliath roles are no longer in play —
Andrew Weissman: Yes.
Mary McCord: — as demonstrated by the singular power defendants words have on countless others, right? Like normally we tend to think of the government as this Goliath, right, against a criminal defendant. But that’s not the case here. And he was very clear about it. So moving to what he actually did, if we can, he did several things.
Andrew Weissman: Can I actually, before we do that?
Mary McCord: Yeah.
Andrew Weissman: I just wanted to focus on something that Donald Trump argued, because this goes to our discussion that we’ve had over the last few weeks, that you could look at these cases for who this man is. He is telling you now who he is in these cases. And you can look at his filings and see what he has argued. Obviously, we saw that in connection with presidential immunity. He thinks he can kill a political adversary with scarcely any liability.
But here, one of the things that was interesting, and I’m going to quote from this submission by Donald Trump to the court as to why the gag order shouldn’t be expanded to cover family members. And he says, “the court should reject the people’s invitations to expand the gag order, which is already an unlawful prior restraint that improperly restricts campaign advocacy by the Republican nominee.” So his view is that what he did with respect to the judge’s daughter, which, by the way, is false and he never actually says, oh, well, it’s true. So these false claims about the judge’s daughter, he views as campaign advocacy. And that is then described by the judge, in his opinion, as farcical.
Mary McCord: Yeah, that’s right.
Andrew Weissman: Which is, by the way, that’s judge talk for a lie.
Mary McCord: Right. Yeah. And I think that is significant because, you know, again, the judge does have to be clear here and has been clear. I am not doing anything that prevents you from being out and campaigning. I’m saying you can’t threaten potential witnesses, potential jurors, people involved with the court proceedings, and you can’t make public statements that are intended to yourself or induce others to make threats or public statements or things that could be done to materially interfere with the administration of justice.
And that’s what he does. So he adds, of course, the court family members and district attorney to the scope of the order he already had issued. But he does two other important things, I think.
Andrew Weissman: Yeah.
Mary McCord: There are things that Alvin Bragg asked him to do. One is Alvin Bragg had said, you know, back when you issued that order about juror names, the names of jurors being made available to Mr. Trump, you said at the time, if it became necessary later down the road to not provide him with those names, that that’s something you would reconsider. And Alvin Bragg said, in light of this conduct, in light of this constant derogatory and inflammatory and threatening statements about people involved with this case, we’d ask you to put the defendant on notice right now that he may forfeit that right. And that’s what the judge did.
Defendant is hereby put on notice that he will forfeit any statutory right he may have to access juror names if he engages in any conduct that threatens the safety, integrity of the jury or the jury selection process. So put on notice. And the other thing he was put on notice for is the defendant is hereby warned that any violation of this order will result in sanctions under the judiciary law that allows for contempt proceedings.
Now, this is something I know, Andrew, you and I have talked about before that I don’t really understand why Judge Merchan and the same with Judge Chutkan in the D.C. case, why they did not explicitly make their restrictions on extrajudicial speech, in other words, their gag orders, why they did not make these explicitly part of the conditions of release so that if they were violated, release could be revoked.
But in both cases, they did not explicitly do that. And just so that listeners understand, when you are allowed to be out, not detained pretrial, you are given a list of conditions you have to comply with and you are asked, you know, do you understand these conditions and asked to sign something that says, yes, I understand these conditions and I understand that if I violated them, I could then be detained because these are the conditions upon which I’m being released.
That’s not the way these two judges, Judge Chutkan in D.C. and Judge Merchan in New York, that’s not the way they implemented their gag orders. They made them sort of separate orders that are punishable by contempt. But this still is making clear. And one of the punishments for contempt can be a time of detention, but it’s not connected necessarily to your release. Now, I think they could change that, but that’s where it seems to stand right now.
Andrew Weissman: Yes. And so, look, there’s no question that he is getting closer to the idea that you can go to jail. Yes, it is not a sort of condition of release explicitly, but it is now a penalty for violating the gag order. It could have been done, I agree, as a belt and suspenders. I’ve seen that in my practice when I was a prosecutor in the Eastern District of New York. That’s how we did it.
I actually had a case. It was actually the Gigante case where the Second Circuit said, yes, those things can be conditions. Just so people understand, normal conditions of release are you have to report to pretrial services. You have to say where you’re going. You have to check in once a week, sometimes in person. You have to appear, obviously, at all court appearances. You cannot commit a federal or state crime.
Mary McCord: Right.
Andrew Weissman: All of those are standard conditions. You can’t possess a gun while you’re out on release. There are all sorts of standard conditions. And as you said, you sign a piece of paper. The judge goes over all of those. But it can also include, it could have it said, and by the way, this gag order is now part of your release condition.
Mary McCord: That’s right.
Andrew Weissman: So that if there’s a violation, it doesn’t mean you necessarily will go to jail, but it triggers all of those issues. And then the reason for that is that you want to put teeth in this so that the person is sort of brushed back from the plate.
Mary McCord: Go abide by it.
Andrew Weissman: Exactly. So there always is this sort of this sense of that you need to give clear notice and a warning.
Mary McCord: That’s right.
Andrew Weissman: And so that’s what’s happened here. So, Mary, let’s take a quick break and come back and talk some more about the New York criminal case.
Mary McCord: Yes, let’s do it.
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Andrew Weissman: So I think it’s really interesting that if and when the D.C. federal case goes back to Judge Chutkan, we’re waiting for the Supreme Court to hear the case on April 25th and have a ruling on that. But if you remember something she said when she was picking a trial date, she said to the defendant, your conduct on release is going to be a factor for me and how quickly I set this trial.
Mary McCord: It’s true.
Andrew Weissman: His continued conduct in Manhattan is something that you can be sure as the night follows the day that Jack Smith is going to when the green light comes from the Supreme Court, Jack Smith is going to say, one, we’ve streamlined our case, so it’s going to be shorter. And two, you made that statement and he has continued.
Mary McCord: Yeah.
Andrew Weissman: And just to be clear, it’s not some fanciful, this isn’t like a gotcha. Her point was, I have to protect the integrity of the system.
Mary McCord: That’s right.
Andrew Weissman: And I have to protect witnesses and jurors. And the sooner there can be specific and general deterrence at a trial, the better because of your conduct. You had the keys to the kingdom. You screwed up. That’s why it’s going to be sooner. So I’m sure that depending on the timing will be something to keep your eye out for in the D.C. case because of this continued conduct that we’re seeing in the New York case.
Mary McCord: That’s right. And it’s that conduct that has been causing so many judges to start speaking out, which is really quite unusual. Just last week —
Andrew Weissman: To say the least.
Mary McCord: Yes.
Andrew Weissman: Mary, I’ve been a prosecutor for 21 years, a defense lawyer for about 10 years. I’ve never seen it.
Mary McCord: Yeah. It’s just, well, I mean, no one has ever done the things that Donald Trump does, right? Even cases involving violent crime, multiple murders. I mean, I did the appeal of the K Street trial involving 17 murders here in D.C. and a major drug ring. And those defendants behaved themselves once they were called into court. They didn’t make threats against judges. And I think what the judges are seeing here is that not only the threats against judges, which are dangerous.
And I’ll just note “Washington Post” is reporting today that in its analysis of Trump’s social media posts, now, they don’t give the exact date. Since the start of his campaign in late 2022 showed that he has gone after judges or their family members by name 138 times. And the most significant dates are weeks this year. During the week of January 7th, 14 individual attacks, nearly all targeted Judge Engoron. And then in two weeks in March were the second and fourth highest number of posts.
And as a result, “Reuters” has reported that threats against federal judges have more than doubled since late 2020. So this is real stuff and it’s dangerous, but it also just completely undermines sort of the institution of the judiciary. And Judge Reggie Walton, a Reagan and Bush appointee because he was first appointed for 10 years to the D.C. Superior Court, later appointed to the federal district court. He actually did an interview on CNN talking about the danger of this to the rule of law.
Judges and their family members should not be being attacked. He’s worried about the institution of the judiciary. And of course, his comments follow comments we’ve talked about before in this podcast and even played a little clip of Judge Hogan, Judge Lambert, both Reagan appointees, both judges for more than 40 years talking about not only the threats against judges, but also the false narrative being propounded by all of the January 6th rioters and being pushed and supported by Donald Trump are undermining the institution and people’s reliance on that institution. So this is serious, serious stuff.
Andrew Weissman: So one quick plug for Just Security. Just Security is a legal forum affiliated with NYU. My colleague, Ryan Goodman, is one of the co-managing editors of it. They just this morning have a really wonderful piece with a wonderful visual chart with Donald Trump saying he wants to or is contemplating, if he becomes president, releasing the January 6th defendants who are in jail in D.C. And what this does is give you a chart of all of those people and how all, but two of them, are charged with and have been convicted of —
Mary McCord: Convicted of.
Andrew Weissman: — assaulting law enforcement officers. And it goes through each of their cases. You can see all of that data. It’s really a remarkable piece. So I highly recommend that. So just two other things now. This is sort of jumping to sort of what we keep an eye out for, but it’s important to do it here because it relates to this case. There are two motions, one is really pending.
And one that Donald Trump has asked for permission to make the motion because the judge has put in place this procedure, so that he doesn’t get inundated with frivolous motions. He said, if you want to make a motion, you have to sort of apply and say what it’s about.
Mary McCord: And that’s because we’re so close to the trial date. There’s been plenty of time —
Andrew Weissmann: Yep.
Mary McCord: — for motions to be filed. He’s like here we are in the eve of trial.
Andrew Weissmann: These are redundant motions.
Mary McCord: Yes.
Andrew Weissmann: To be clear, right.
Mary McCord: Exactly, yes.
Andrew Weissmann: And this is typical, I mean, you know, there’s normally there’s like a whole procedure for when you have to do things. So, these are all coming in late anyway. So, one of them is a motion that is pending saying that you should put the trial off, Judge. This is from Donald Trump saying, put the trial off because of pretrial publicity. I can’t get a fair trial because of the publicity of this very nationally prominent case.
I’ve done cases like this, nothing quite as sensational obviously, but you know, that happened in the Mueller cases with Paul Manafort. It certainly happened in the Enron cases. This is over 20 years ago now, but they were front page news every day. There was articles about Enron and Arthur Andersen and Merrill Lynch and all sorts of players. And so that’s one mission.
Mary McCord: Hang on. Can we stop and talk about that one or you wanna flag them both first?
Andrew Weissmann: I’m gonna give you the New York legal term for this. Chutzpah.
Mary McCord: Oh my gosh, so much so. Like reading it yesterday, I could hardly believe it. While they are pending in front of the judge about expanding the gag order because all of the threats and all of the statements that Donald Trump has made, they actually have the chutzpah to file a motion saying, I can’t get a fair trial because of pretrial publicity. Therefore, of course, you should put this off until there is no longer such a level of publicity, which means put it off until, you know, 2025, right.
Andrew Weissmann: And can you please disregard the fact that I have been the main culprit of the publicity?
Mary McCord: Unbelievable. If he wasn’t doing all the things he’s doing, yes, there would be coverage because it’s a criminal trial against a former president but, you know, part of the driver of this coverage is what he is doing every single day.
Andrew Weissmann: So, listen, I’m running my mouth and because of that, I should not have to go to trial.
Mary McCord: Yeah, exactly.
Andrew Weissmann: That is such a great argument.
Mary McCord: Talk about manufacturing —
Andrew Weissmann: Manufacturing.
Mary McCord: — a reason for delay and note also to listeners that normally when someone makes a motion related to pretrial publicity, it isn’t just put this off indefinitely until there’s no more publicity. It’s like change venue. Like take me and try me —
Andrew Weissmann: Yeah.
Mary McCord: — someplace far away from here where nobody knows what’s happening. Of course, he’s not doing that because he doesn’t want to just change venue and go someplace else. He just wants the whole thing to be delayed. And you know, legally here the courts have been pretty clear that voir dire, process of picking a jury and the process of questioning jurors about whether they can be fair and impartial, is almost always sufficient to deal with —
Andrew Weissmann: Exactly.
Mary McCord: — pretrial publicity.
Andrew Weissmann: Yeah, so this is the old adage from the wonderful former Eastern District of New York Judge, which is I have two words for you, denied.
Mary McCord: Right.
Andrew Weissmann: So, we’ve gotten to the point where the listeners of this podcast are like, Andrew, you can tell anecdotes but not the same anecdote.
Mary McCord: Right. Well, you know, maybe somebody missed one of the episodes with denied. So, you know, we have to reiterate these things occasionally, but that’s not the only motion, yeah.
Andrew Weissmann: So, then there are allusions to making another motion to have the judge recuse himself based on unspecified facts. So, we don’t know what it’s based on. We can’t really give an opinion on it, but he’s already made that motion and it was already denied. And one of the things was that the judge had actually gone to an ethics panel to make sure that what he was doing was totally right. And the ethics panel said, absolutely stay on the case, like there’s no basis.
Mary McCord: Yep.
Andrew Weissmann: So, this feels like yet another Hail Mary.
Mary McCord: Yep, last ditch.
Andrew Weissmann: Exactly. I still think, you know, knock on wood, that two weeks from tomorrow, we will have jury selections starting in this case. And it really seems, even if there were so to be “new facts” in some motion about recusal, an obvious question is gonna be, and you just learned of it? I mean like where were you? It’s obviously like so late in the day that is quite, you have a lot of skepticism about the nature of this. But anyway, we don’t know what the facts are —
Mary McCord: Right.
Andrew Weissmann: — because we don’t have that much. Keep an eye on it. Okay.
Mary McCord: Let’s take a quick break. When we come back, we will talk about holding lawyers accountable.
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Mary McCord: Welcome back. Okay, so we have spent a very long time talking about Donald Trump’s efforts to avoid accountability. But there are a group of individuals who have definitely been facing some sort of accountability. Uh, we have had multiple lawyers who worked on the sort of lack of fact-based allegations of fraud in the election, as well as other lawyers involved in various schemes, like the fraudulent elector scheme, being held accountable in courts, where they filed cases, where they’ve been sanctioned.
People like Sidney Powell and Jenna Ellis, we have, of course, had Kenneth Chesebro plead guilty to his role in the fraudulent elector scheme in the Georgia case. And we have had Rudy Giuliani, right, facing disbarment and disbarred already in New York.
Andrew Weissmann: Yeah, I think he’s suspended in New York.
Mary McCord: Oh, okay.
Andrew Weissmann: And so we’re waiting sort of a final decision. There’s a process, but he is suspended in New York. There’s a proceeding also against him in D.C.
Mary McCord: Right.
Andrew Weissmann: So Lin Wood, I think, has already accepted his —
Mary McCord: Yes.
Andrew Weissmann: — punishment. A series of lawyers have been held to account but Mary, one of the unusual things is we’ve actually had a bit of a trial on an aspect of the January 6th case. And, you know, because of the Supreme Court’s lollygagging, that may be the only one we have before the election, and that is John Eastman had a 34-day trial.
Mary McCord: Yep.
Andrew Weissmann: That has got a bit under the radar, but that is a public trial. Witnesses were called by both sides. Cross-examination, evidence was submitted for 34 days. And a judge heard that disciplinary proceeding and there was a 128-page ruling just this week. And there was ongoing, right now, a similar proceeding in D.C. The other side of the country. The John Eastman, one is in California where he was barred and the Jeffrey Clark proceeding is ongoing in D.C.
And that is with respect to another aspect of the so-called January 6th case, which is what was going on with respect to pressuring the Department of Justice. By the way, those allegations are made by Jack Smith in his criminal case about the efforts that Donald Trump used the department to further this fraud.
Mary McCord: Right.
Andrew Weissmann: And to overthrow the will of the people. But should we first talk about Eastman?
Mary McCord: Yes. But I will note that the Jeffrey Clark disbarment proceeding also is a proceeding with witnesses and who are examined and cross-examined.
Andrew Weissmann: Right.
Mary McCord: And that began last week and I think the disciplinary counsel finished presenting their case last week. But the Eastman case, the upshot is the judge there found that he had violated ethical rules on 10 out of 11 of the charges brought against him and recommended disbarment. But you know, maybe some of the most blockbuster —
Andrew Weissmann: And is suspended as of now.
Mary McCord: Yes, suspended currently.
Andrew Weissmann: He is now suspended as a lawyer, pending he gets to appeal this and ultimately the California Supreme Court has to make the decision, but there are consequences right now —
Mary McCord: That’s right.
Andrew Weissmann: — for them (ph) based on the findings at this hearing.
Mary McCord: That’s right.
Andrew Weissmann: Sorry. Go ahead.
Mary McCord: No, no, no, that’s right. And you know, we can talk about all the different things that the judge in her very lengthy ruling determined things that she said, basically John Eastman knew were either not factually supported, for example, in the fraud cases that were brought after the election or knew were not legally supported and did them anyway. But I think maybe in many ways, sort of the part of the blockbuster of this opinion is where the judge finds that the office of the Chief Trial Counsel for the Bar of California had shown that John Eastman conspired with President Trump to obstruct a lawful function of the government of the United States, specifically by conspiring to disrupt the electoral count on January the 6th 2021.
And the judge goes through the evidence of John Eastman meeting with former President Trump when he was president before January 6th, also with Vice President Pence and other lawyers for Vice President Pence, up in those last days before January 6th, trying to convince them that the vice president had the power unilaterally to count the votes and discard electoral votes that he thought shouldn’t be counted. So in other words, discard the votes from the swing states, where there were fraudulent slates of electors and perhaps either count those slates or send the whole thing back to the legislatures and ask them to send up new slates.
The judge finds that these are things that John Eastman, you know, told the former president about while he was president. And those things resulted in the president doing things like saying that Vice President Pence has the power to send this back to the states saying in the middle of January 6th, right, that, you know, Vice President Pence basically didn’t have the courage to do what needed to be done that day. This was a conspiracy according to this judge in California, which is pretty significant.
Andrew Weissmann: Yeah, so just to underscore that. Prior to this, we had a federal judge, Judge Carter, who had said that there was evidence of Eastman and Donald Trump by a preponderance that’s 50 percent in a hair to slightly over 50 percent that there was this conspiracy to obstruct justice. You now have, after a 34-day trial, the judge saying by clear and convincing evidence, which he sets forth exactly what that means, but it’s much more than a preponderance. It is less than proof beyond reasonable doubt.
Mary McCord: Right.
Andrew Weissmann: Because that’s not required in a bar proceeding. And she says that the burden here is clear and convincing evidence, which is evidence that leaves no substantial doubt and is sufficiently strong to command the unhesitating ascent of every reasonable mind. That’s the legal definition for clear and convincing, finds by clear and convincing evidence that there was this illegal conspiracy that you set out, Mary, between John Eastman and former President Trump. I would point out for those people say, well, that’s not sufficient for criminal conviction. That’s true.
Mary McCord: It’s true.
Andrew Weissmann: That you need to have proof beyond a reasonable doubt. But a criminal conviction, last time I checked, is not the prerequisite for becoming president of the United States again. That is an honor and a privilege.
Mary McCord: Right.
Andrew Weissmann: You would think that a finding after a 34-day trial that there was clear and convincing evidence that you engaged in this context should be a disqualifier. But I think for many people, it is. By the way, this is the hearing testimony, this decision, it’s all public.
Mary McCord: Yep.
Andrew Weissmann: So, for everyone listening to this, you can dig into this as much as you want.
Mary McCord: The state bar actually, you know, released everything and says, you know, involved 23 witnesses and more than 700 exhibits, right? Like this was an extensive, extensive proceeding.
Andrew Weissmann: Yeah. And so one thing, Donald Trump was not a party to this proceeding.
Mary McCord: That’s right.
Andrew Weissmann: So, it is important to remember that this wasn’t like he’s a defendant with all of the due process rights but John Eastman was. So, he had a chance to make any and all arguments but it’s important, as a matter of due process, to note that.
Mary McCord: Absolutely.
Andrew Weissmann: That it is a finding that is principally with respect to John Eastman, because that’s the person who’s there. The second thing I will say, Mary, you and I are lawyers and it’s really useful to see lawyers and bar associations taking their responsibilities seriously. There are lawyers who clearly did the wrong thing during the Trump presidency and after. But there are also lawyers who did the right thing and lawyers who might politically, small P, agree with Donald Trump in various policies.
Mary McCord: Right.
Andrew Weissmann: But didn’t sign up for criminality.
Mary McCord: Right.
Andrew Weissmann: And didn’t sign up for obstructing the peaceful transfer of power. And so when you’re looking at sort of how is America doing and holding people to account, and I think many people would say that it’s pretty much a failing grade in terms of criminal accountability. It’s been very, very slow. And the courts haven’t really figured out how to deal with all of Donald Trump’s machinations.
But I do think with respect to bar associations, as much as people like to rail about lawyers and their conduct, this is the bar taking it seriously. Just to make sure people understand the profession that Mary and I are in, when we go to court, our first obligation is as officers of the court. That’s true whether you’re a defense lawyer, whether you’re a prosecutor, whether it’s in a criminal case or a civil case, you’re an officer of the court.
You have an obligation after you are an officer of the court to zealously advocate for your client, but it’s within those strictures of being truthful, of not misrepresenting facts or the law, being candid to the court. And one of the things that’s so, I think, great about reading this decision with respect to John Eastman, was that in addition to sort of this general sort of obstruction, there’s real focus on what he was saying to judges, what he was filing in the courts.
Mary McCord: Right.
Andrew Weissmann: And how it violated that fundamental obligation of what the profession requires. And it’s very nice to see, when there’s so much lack of accountability, some good news.
Mary McCord: I think that’s right and you know, like you said, there were lawyers that did the right thing. But I will tell you, I feel like everything having to do with the 2020 election really has been a very low point in terms of lawyers. I mean the number of lawyers who were willing to violate —
Andrew Weissmann: Absolutely.
Mary McCord: — their oaths was pretty astounding to me. And I think it’s critical that they be held accountable because, again, kind of like the undermining of the judiciary and institution, the undermining of sort of like lawyers being ethical, people who, I mean they’ve always been bad lawyers, right, but whose representations can be trusted when they go into court, like that’s really fundamental.
And I’ll tell you, that’s really fundamental when we talk about a Department of Justice lawyer, which is why I think the proceedings against Jeffrey Clark are also so very important. Jeffrey Clark, wasn’t just some lawyer advising Donald Trump on the campaign like John Eastman, a partisan. Jeffrey Clark was in a position of leadership at the United States Department of Justice.
And without any basis, in fact, or law tried to basically, with the support of Donald Trump, you know, pressure the actual leadership, the acting attorney general, the acting deputy attorney general into letting him send a letter to state legislatures in Georgia saying we’ve discovered significant evidence of fraud in the election. And you should call the legislature into session in order to determine your slate of electors and send that up to, you know, the vice president to count on January 6th.
And as both the acting attorney general at the time, Jeff Rosen, and his deputy attorney general acting, Rich Donoghue, both testified, there was no basis for that. And Jeffrey Clark knew it, knew there was no factual basis for it. Jeffrey Clark tried to spew out some, you know, garbage that he’d read like on the internet as a basis for it.
And then he went behind their backs in violation of department policy to go talk directly to Donald Trump and basically pitch his ideas to Donald Trump causing, of course, Donald Trump to actually appoint him as the acting attorney general for several hours of a day before Jeffrey Rosen and most everyone at the Department of Justice said, we will resign en masse. I shouldn’t say everyone like in the entire Department of Justice because it’s huge but all those —
Andrew Weissmann: Senior leadership.
Mary McCord: Senior leadership —
Andrew Weissmann: Yeah.
Mary McCord: — to say, we will resign en masse, if you do that, Mr. Trump, and he backed down. But to see, you know, somebody who is at the Department of Justice, you know, in my mind and I guess I’m just biased because I spent so much time there. I think even to be held at a higher standard than other lawyers, that disciplinary proceeding I think is so important.
And you know, Jeffrey Clark went in there last week and basically took the Fifth Amendment over and over and over again in response to questions as well as asserting all kinds of other privileges that could readily be pierced. So it’s a real example, I think, of just horrible, horrible behavior. And I look forward to seeing what the results of that hearing will be.
Andrew Weissmann: Quick note about the assertion of the Fifth Amendment. So, you understand why Mary is saying that, which is obviously you can assert the Fifth Amendment that is a constitutional privilege. In a criminal context, if you assert the Fifth Amendment, the jury won’t even know it and it certainly cannot be used against you in any way, shape or form.
Mary McCord: Right.
Andrew Weissmann: That is different in a non-criminal context. When you assert the Fifth Amendment in a bar proceeding, in a civil case, the assertion of the Fifth Amendment can be used. It’s not required but it can be used against you as a indicator of that. If you were to speak, you would say something that would be unhelpful to your cause.
Mary McCord: Right.
Andrew Weissmann: And so when Mary says that he asserted the Fifth Amendment over and over again in this kind of proceeding, that is something that the fact finder can use with respect to the quantum of proof. It would be rare for that to be the only evidence nor is it the only evidence —
Mary McCord: Right.
Andrew Weissmann: — in this case. But I just wanted to make sure people understand that nuance with the respect to the Fifth Amendment, which by the way, Mary, it’s so funny because you know what I’m covering right now in my —
Mary McCord: In class?
Andrew Weissmann: — criminal procedure class.
Mary McCord: Fifth Amendment.
Andrew Weissmann: It’s the Fifth Amendment. So for those people who want credit —
Mary McCord: Right.
Andrew Weissmann: So class is out of session and —
Mary McCord: Yeah.
Andrew Weissmann: — sounds like we’re gonna go on to, in a couple weeks, we’ll be talking about the Sixth Amendment.
Mary McCord: Yes, we will.
Andrew Weissmann: The Manhattan trial starts.
Mary McCord: Yes, we will.
Andrew Weissmann: Mary, this was a fascinating event this week. And just to note, we are going to be continuing to focus on everything that’s happening with respect to Donald Trump’s criminal cases. But as this New York case is upcoming, we are gonna be focusing on it more and more, so that everyone has the tools to understand what’s going on.
Mary McCord: Yep and look forward to all of that.
Before we go, we wanna share some exciting news and congratulate our team here on “Prosecuting Donald Trump” and all of our colleagues, including those on “Into America” with Trymaine Lee. We found out just this morning that both podcasts were nominated for the Webby Awards. There’s a public voting component to these awards.
So if you’d like to vote for us, we’ll put that information in the show notes. And I can tell you that you can actually register your vote at vote.webbyawards.com. But for now, congratulations to both teams. Andrew and I are still trying to figure out everything about these Webby Awards but we’re excited that we got nominated.
Andrew Weissmann: We are because you know what? This still feels relatively new that we’re doing this.
Mary McCord: Yeah.
Andrew Weissmann: I think it’s still our first year.
Mary McCord: I think we just finished a year probably because we started —
Andrew Weissmann: Wow.
Mary McCord: — right before the Bragg indictment. We should have had a celebration.
Andrew Weissmann: Our anniversary is celebrating the Webby Awards.
Mary McCord: There we go. Okay, perfect, the nomination. Maybe we’ll get the award.
Andrew Weissmann: Our fantastic Webby nominees who the lifeblood of this podcast are as follows. Those show is produced by Vicki Vergolina. Our associate producer 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.