Donald Trump is on the precipice of his New York criminal trial, a historical first for a former president. Veteran prosecutors Andrew Weissmann and Mary McCord give a primer on the who, what, when, where and why of Manhattan District Attorney Alvin Bragg’s case, as both sides prep for jury selection. Then, they head to Florida, where tensions are elevated between Special Counsel Jack Smith and Judge Aileen Cannon over jury instructions and Judge Cannon’s handling of that case.
For further reading, as Andrew and Mary mentioned in this episode, here are United States District Judge Royce Lamberth’s Notes for Sentencing for a defendant named Taylor James Johnatakis. Johnatakis was sentenced to 87 months for his role in the January 6th attack on the Capitol.
Also, a reminder that 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 Weissmann: Hello, and welcome to “Prosecuting Donald Trump.” It’s Monday, April 8th. And it is in the afternoon but just before the path of almost totality where I’m in New York. And, Mary, welcome. You’re in D.C.
Mary McCord: D.C. We’re supposed to get 87 percent, so I think that’s probably about what you’re supposed to get in New York.
Andrew Weissmann: That’s about right and we’re going to record this and then it’s lights out.
Mary McCord: Yeah, then we’re going to put on our eclipse glasses and we’re going to run outside and watch the eclipse.
Andrew Weissmann: Which is exciting.
Mary McCord: So, we usually record on Tuesdays. So people are like, what are you guys doing on Mondays during an eclipse? Well, Andrew is going to go gallivanting off halfway around the world tomorrow. So, we had to do this today. Isn’t that it?
Andrew Weissmann: You know what? Between the earthquake and the path of totality, I’m getting out of Dodge. So, there’s a lot on our plate.
Mary McCord: But.
Andrew Weissmann: The first thing Mary and I are going to do, but I’m going to do it since you did it last week, which is we’re going to have a shameless plug for our podcast because, one, this is, I think, a year in a day essentially. It’s like we have been doing this podcast for a year.
Mary McCord: It has been.
Andrew Weissmann: So, thank you, thank you, Mary, and thank you, listeners.
Mary McCord: Yes.
Andrew Weissmann: It’s been wonderful.
Mary McCord: And thank you producers.
Andrew Weissmann: Oh my God, they’re the best.
Mary McCord: Yeah.
Andrew Weissmann: But as obviously leaving Mary the incredible experience of being able to do this with you, as much as we get lots and lots of feedback from our listeners, it’s really wonderful to know that there are people who are appreciate it and asked really interesting questions and give us ideas about what we should be talking about. And all of this is to say, in addition to having done this for a year, on our first year we got nominated for a Webby Award.
And if you do like the podcast and want to vote for us, you have a little bit more than a week to vote for us. And the link to the Webby Award nomination and voting is in the show notes. But enough of the shameless plug, let’s get down to work. There’s so much to cover.
Mary McCord: There is.
Andrew Weissmann: Mary, what’s on the agenda?
Mary McCord: So, first we’re just going to spend a little bit of time because we are literally, today, one week from the start of the trial in New York. This is the District Attorney Alvin Bragg, the case that he has brought. That is an election interference case from the 2016 election where the allegations are that Mr. Trump paid hush money to Stormy Daniels.
We are going to start by really kind of giving a bit of a primer about, you know, what are the offenses, who are the players in this, who are the expected witnesses and some other things that we also are seeing sort of in the last ditch effort this week by Mr. Trump to try to avoid that case actually getting to trial next Monday. Beyond that, we have not gotten a chance to talk to our listeners since we had sort of the somewhat explosive filings and response by Judge Cannon in the Mar-a-Lago case last week.
And so we’ll talk about that. And then of course, we’ll give a little bit about what we’re looking out for, which is we are really just two weeks away from arguments in the U.S. Supreme Court on a presidential immunity. And there is, of course, an appeal in Georgia taking place. So, we’ll hit those things briefly, but let’s start with New York, Andrew.
Andrew Weissmann: Sure. So, I thought one thing to start with is to talk about the people on both sides, to talk about who the defense lawyers are and who the prosecutors are, just so people have a sense of it. And this is maybe the beginning of, we are going to try to have much more intensive coverage of what’s going on. I mean to say this is unprecedented, this is the first criminal indictment of a sitting or former president, and it will be the first to go to trial, someone fitting.
And so let’s start with the defense lawyers. It’s an interesting group. There are two main defense lawyers. One is Todd Blanche and the other is Susan Necheles. Todd Blanche is somebody who’s a former federal prosecutor in the Southern District of New York. He then has been doing sort of corporate defense work, which is usually not individuals. It’s usually sort of company cases.
He was at two different law firms. But then when he took this case, he went out on his own and he has his own law firm. And that has its own unique challenges when you are solo and are representing principally one person. You obviously can do a great job and be wonderful, but there are some unique challenges and pressures. One notable thing is he is not known as a sort of individual defense lawyer who has done lots of trial work on the defense side.
It is a very different skill set. I know when I made that transition, it is very much a different world. Obviously, it’s helpful to be a trial lawyer and know your way around the courtroom, but this will be really relatively new for him. It’s also particularly new for him because, as I mentioned, he was a former federal —
Mary McCord: Right.
Andrew Weissmann: — prosecutor and this is in state court with state law. Let me just then mention this, the second person who is on the defense team is Susan Necheles. She is a former prosecutor for many years ago, but she has really made her name and cut her teeth being a defense lawyer.
She is extremely well-known here in New York and extremely well-respected. I have dealt with her as a defense lawyer. I’ve dealt with her both when I was a prosecutor and she was on the defense side. And I’ve also dealt with her when I was a defense lawyer and she was a colleague. She’s just an exceptionally good lawyer.
And I have said this before, for something for people to keep their eye out for, which I don’t think I have ever seen. There are submissions that are made by the defense team for Donald Trump, where she has not signed the submissions. And Mary, in all my years as a prosecutor, which is over 20, I know you beat me on that.
Mary McCord: Barely.
Andrew Weissmann: I have never seen that.
Mary McCord: Yeah.
Andrew Weissmann: And you know, there’s a story there, but Susan Necheles is also ethical and, you know, she is not going to tell us that story.
Mary McCord: The closest that I’ve seen was actually during the Trump administration, when the people you would have expected at the Department of Justice to sign pleadings filed by the United States government, there were several cases where the names of the people who should have been signing were not on those briefs. And it was political appointee.
Andrew Weissmann: But those were prosecutors.
Mary McCord: Yes. No.
Andrew Weissmann: Yeah.
Mary McCord: It’s different. Yes, that’s right. It’s different than your example. I’m just saying in what I think a lot of us interpreted, those of us particularly former DOJ attorneys, sort of interpreted as something of a protest move to say, you know, I may be the chief of this division and normally I would sign this brief, but I’m not going to sign this brief.
Andrew Weissmann: I mean there were prosecutors who quit.
Mary McCord: Yes, oh yes.
Andrew Weissmann: And left the Department of Justice.
Mary McCord: Yes.
Andrew Weissmann: And then there were some who also would not sign.
Mary McCord: Yeah. And this included civil cases as well as criminal cases, right. Civil cases where the positions —
Andrew Weissmann: Yeah.
Mary McCord: — being taken by the department were things that some of the department attorneys just couldn’t abide by. And that’s pretty unusual in the department, so yes. And I do not know these attorneys. I mean, you, in New York, these are folks you know well. These are not attorneys I know other than seeing on various cases, so we’ll see. It sounds like Susan Necheles is probably the one who’s got more of that defense trial experience.
Andrew Weissmann: Yep. But it remains to be seen what her role —
Mary McCord: Yeah.
Andrew Weissmann: — is. And so that’s another thing that if you’re asking sort of the second thing I’m keeping an eye out for is what do they give her to do? And I’m just going to leave it —
Mary McCord: Yeah.
Andrew Weissmann: — at that as to whether she is given a central role in cross-examination. And also just in forming the strategy, because a lot of times the best legal strategy may not be the best political strategy and vice versa. So, it will be interesting to watch that and keep your eye on those two main players. Should we turn to the prosecutors?
Mary McCord: Yes, absolutely.
Andrew Weissmann: So —
Mary McCord: You know them better than I do too. This is your city.
Andrew Weissmann: Well, one of them, you may know, Matthew Colangelo.
Mary McCord: Yes.
Andrew Weissmann: Because he has been in the DA’s office, but he also worked in the Department of Justice and then —
Mary McCord: Right.
Andrew Weissmann: — went back roughly about a year ago to Bragg’s office. And I don’t know him personally, but his reputation is stellar and he came back on this team. There are other people, Susan Hoffinger, who is very well-known lawyer and very senior in the district attorney’s office. And she worked on the Trump Organization criminal tax case, where there was a conviction. So, she’s steeped in this area and she’s, you know, she’s just another impeccable lawyer.
And there’s like the battle of the Susan, Susan Hoffinger and Susan Necheles. I think they have a very good working relationship and I think it’s something we have said. One thing that will be really lovely here is that you have good lawyers on both sides, which is what —
Mary McCord: Yes.
Andrew Weissmann: — it should be. I want to point out one person, Joshua Steinglass, who was also on the Trump Organization case. And he is a trial lawyer’s trial lawyer. And I have heard this from so many people, I don’t know him personally, but he is not a sort of so-called a white collar lawyer. He did murders and gang cases, sort of the thing that you do usually in the DA’s office.
Mary McCord: In a DA’s office, right.
Andrew Weissmann: But by all accounts, and I’ve heard this from prosecutors and I’ve heard this from defense lawyers, he is one of those people who’s a natural in the courtroom. Like just to, since I personalize everything, you know, I am not a natural in the courtroom. I had to learn how to be a trial lawyer. And you know, and it’s still like a, let’s just say a work in progress or an acquired taste.
Mary McCord: Yeah, that’s hard to believe but okay.
Andrew Weissmann: I’m just saying it —
Mary McCord: But clearly some people that’s where they’re at home, yeah.
Andrew Weissmann: So comfortable and has such a good rapport with witnesses and jurors and judges and defense counsel. And to my money, I’m not trying to denigrate anyone else, but he is somebody to keep your eye on in terms of what he handles and how he deals with it. And I’m particularly interested in who is going to put on and present.
Michael Cohen, who is going to be a very difficult witness and I’m interested in who’s going to do the jury addresses. As you know, Mary, there’s an opening argument and there’s closing arguments. They’re very, very different skills. And it’ll be interesting to see who does what.
Mary McCord: I’m sort of interested that you said an opening argument and a closing argument because —
Andrew Weissmann: Oh yes.
Mary McCord: — I am very much —
Andrew Weissmann: You’re right.
Mary McCord: — one of those adherence.
Andrew Weissmann: Oh, you’re right.
Mary McCord: Yeah, so yeah.
Andrew Weissmann: Mary, so you should explain why —
Mary McCord: Yes.
Andrew Weissmann: — about what I said is really wrong.
Mary McCord: Yes, yeah. So, the real sort of legal parlance is an opening statement and a closing argument. Now people slip up on this all the time. It’s one of my little pet peeves though that I always keep in my head.
Andrew Weissmann: No, but you’re right. you’re right.
Mary McCord: Because opening statement, of course, the prosecution and the defense, they’re telling the jury the story of the case and what they expect the evidence to be, but the evidence hasn’t been submitted yet. And so technically it’s not the time to make arguments about the evidence because, you know, you could get yourself in hot water, if you promise up some things and make arguments about them and you don’t actually end up proving those things up in evidence.
And it’s also supposed to be a nod to the fact that, you know, we’re starting from the point where every defendant is presumed innocent until proven guilty. So, it’s really an opening statement, an opening address. Whereas at the end, that’s when, boy, the gloves are off. I mean there are rules, but the gloves are off in terms of everything that’s come into evidence. Both sides are making arguments. Arguments about why that evidence supports in the case of the prosecution or doesn’t support in the case of the defense, guilt.
Andrew Weissmann: So, let me give you an example of what you can say and what you really aren’t supposed to say in opening.
Mary McCord: Right.
Andrew Weissmann: Like what is an improper argument? Now having said that, by the way, a lot of judges allow a lot of leeway —
Mary McCord: That’s right, there’s leeway.
Andrew Weissmann: — on the defense side. But if you wanted to argue why a particular witness is credible, that’s really left for closing. And if you wanted to say, oh, they’re corroborated or listen to what they said, you’ll see that, you know, they didn’t take an opportunity to gild the lily.
They kept within what they knew. Look at the agreement they have. It gives them incentives to tell the truth and disincentives to not. I mean all of those are arguments as opposed to, Mary, what you were saying, which is you get to say, we expect that Michael Cohen will say —
Mary McCord: We will hear X, Y, Z.
Andrew Weissmann: — the following.
Mary McCord: Yeah.
Andrew Weissmann: Exactly and it’s just laying out, people used to say, it’s a roadmap —
Mary McCord: It’s a roadmap.
Andrew Weissmann: — of what we expect the evidence will be. Now, obviously, there’s a fine line because you know, you get to say, we expect Michael Cohen will say this. And then we also expect there will be significant corroboration.
Mary McCord: Yes, that’s right. That’s right. It’s just about how you phrase it. And you know, the fact is you’re wanting to be persuasive. You want the jury —
Andrew Weissmann: Yeah.
Mary McCord: — after they hear your opening to already be on your side. That’s what you want as a prosecutor or a defense attorney. Okay, let’s move on though. Let’s talk a little bit about what we expect in terms of the witnesses because think this is where it’s going to be really interesting. And I think it might be fitting to just do a little bit of a recap of about what the factual allegations are here.
Andrew Weissmann: Yeah.
Mary McCord: An they start all the way back in 2015 when the head of American Media, David Pecker, got together with Mr. Trump. And I believe Mr. Cohen as well at Trump Tower. And they talked about a strategy of catch and kill, right, where Pecker and his company were willing to be the eyes and ears for Mr. Trump’s campaign.
So that if they learned of sort of information, that someone was, you know, going to come forward with information that might harm Mr. Trump’s campaign, because it would be negative toward him. It would be information that people would not think would be supportive of someone running for president. Then they would basically find who was going to be making that information public and buy them off. Really, it was a strategy of buying people off.
Andrew Weissmann: You know AMI, it’s the owner of the National Enquirer.
Mary McCord: Right.
Andrew Weissmann: And so one of the things that is remarkable about the allegations is that this is about the coordination of a campaign with a media outlet to keep information from the public —
Mary McCord: Right.
Andrew Weissmann: — on behalf of one candidate.
Mary McCord: Right.
Andrew Weissmann: So, not only is the press not disseminating information, which is what the press is supposed to do, but they’re keeping information on behalf of one candidate.
Mary McCord: Yep.
Andrew Weissmann: And the purpose of it is to present a false picture —
Mary McCord: That’s right.
Andrew Weissmann: — that is unduly rosy of that candidate. And so that sort of idea of conditioning the market, so to speak, this idea of presenting false pictures and false narratives. But here you have it with respect to 2016 and those are the allegations. And David Pecker is reported to be a cooperating witness. He has entered into an agreement. And so he will be one of the witnesses —
Mary McCord: Right.
Andrew Weissmann: — to testify about the nature of this scheme. And I think, Mary, where you’re going is that Michael Cohen will also be one of those witnesses.
Mary McCord: I just want to get a couple other pieces in there because the story has, at least alleged, in the —
Andrew Weissmann: Yeah.
Mary McCord: — statement of facts is that this isn’t all just about Stormy Daniels. And I should also say some of you are thinking, why is this a matter of, you know, a criminal prosecution by the DA that AMI and Mr. Trump decided they wanted to pay off somebody? The charges are about the falsification of business records, which we’ll get into, that covered up these payments. So that’s what’s —
Andrew Weissmann: Yes.
Mary McCord: — being charged because that’s where a state has an interest in business records being accurate and not being used as a fraud to cover up something else. But there are players, before we get to Stormy Daniels, because this starts with and we expect this person to be a witness, a doorman from Trump Tower who came forward to the National Enquirer with some information he had about Mr. Trump, allegedly fathering a child out of wedlock.
And this was one of the first people that got paid off under the scheme. Then there was Karen McDougal who we also expect will be a witness, who was a woman who came forward to National Enquirer. And I think there’s a reason David Pecker is part of this scheme because if you put out a paper like the National Enquirer, people come to you with salacious stories that they expect you to publish. So, he’s in a very good position to catch and kill salacious stories about Mr. Trump.
Andrew Weissmann: Like a spider web.
Mary McCord: Is that fair? Yeah, but at any rate, so we expect that she will be a witness because she also was the beneficiary of a large payment, $150,000, in exchange for her agreement not to speak out. And then comes the Access Hollywood tapes, which people will remember. This came out in October before the election. This was pretty scandalous.
I think there were a lot of people, myself included, that thought this might be the end of the Trump campaign. And within, I think, a week of that or very shortly after that, that is when Stephanie Clifford, whose name as an adult film star is Stormy Daniels. And that’s when information that she had came to the attention of Mr. Pecker. And that’s what led to what actually become the charges in this case.
Andrew Weissmann: Yeah. And I think that background of the Access Hollywood tape is so important because that sort of gives this motive of why there was suddenly this rush to silence and make sure the Stormy Daniels’s information, which was an affair at the time, allegedly, when I think his wife was —
Mary McCord: Pregnant, I think.
Andrew Weissmann: — I think with Barron. And so the idea was to not have this sort of additional bad news at a very, very precarious time. I suspect that Hope Hicks and Kellyanne Conway are going to talk about what inside the Trump campaign in 2016 was like, what people were thinking, what the concern was. And again, what’s interesting is those are people aligned with Donald Trump who are going to be called sort of a term of art is a hostile witness.
Somebody aligned with the other side, who’s called by the prosecution to present evidence. And so I think they’re going to sort of bring to life and make sure that the jury understands the situation that they were in. And then, you have David Pecker and Michael Cohen describing the scheme. One thing and obviously, all of these witnesses will be important, I do think that a thing for everyone to keep their eye on is the paper trail.
Mary McCord: Yes.
Andrew Weissmann: And e-mails and documents because you are going to hear a battle of narratives here where the defense is going to want to say this case rises and falls with Michael Cohen because he will have huge credibility issues. Um, and so the defense is entitled to and will bring those out. And the government will be talking about all of the corroboration and that there isn’t a star witness, except they think —
Mary McCord: That’s right.
Andrew Weissmann: — they may say the star here is the documents.
Mary McCord: Yes.
Andrew Weissmann: And they tell the story. And in fact, if the witnesses were saying anything else, it would be incredible because it doesn’t fit with the story from the documents. So, keep an eye out when this trial opens for the framing of the discussion of the evidence.
Mary McCord: Right, absolutely. And when we get to the documents, key to that is it wasn’t just that these documents, well, of course, it’s not just that these documents said this were hush money payments because that wouldn’t have been fraudulent. That would’ve been true. The scheme to concoct this, to find a mechanism to pay Stormy Daniels was for Michael Cohen to say and Donald Trump and the Trump Organization to say, let’s pretend like these are payments for legal services from Michael Cohen in his capacity as an attorney for Mr. Trump.
And so they concocted a scheme by which he would be paid, not just to reimburse him for the payment he made by taking out a home equity loan, believe it or not, not just to reimburse them for the $130,000 he paid to Stephanie Clifford, but also to add to that. So, they added on to that basically, I think, is more of the sweetener of the deal and to make sure that after taxes.
Because he would have to report this as income, if they were going to book it as legal expenses and they weren’t legal expenses, then he was going to need to make some money on it. And so they basically doubled it and then added a bonus. And so it was 400 and something thousand dollars that he was to be paid over a series of monthly $35,000 payments.
Andrew Weissmann: And so these payments that are the 34 false business records are a series of payments that are reimbursement payments that appear on various ledgers within the Trump Organization. And the checks that Donald Trump is, alleged, to have made for this, at least sort of false payments to Michael Cohen to reimburse him, are in 2017, over months and months, including while he was president —
Mary McCord: While president.
Andrew Weissmann: — and allegedly —
Mary McCord: In fact, most of them.
Andrew Weissmann: — in the White House —
Mary McCord: Yes.
Andrew Weissmann: — is making these payments.
Mary McCord: And signing them. We’re going to see Donald Trump’s signature on these checks.
Andrew Weissmann: Absolutely. So, this is one where it’s really interesting because I think it’s such an ugly story and let me just give you a sense of one of the pieces of evidence that the government has said is sort of other crimes evidence that they want to introduce. When Michael Cohen testifies, they want to sort of talk about how this is part of who he is and what he was doing for Donald Trump. Remember, this is a convicted felon who was working for —
Mary McCord: Right.
Andrew Weissmann: — Donald Trump in all sorts of ways as a fixer.
Mary McCord: A fixer, yes.
Andrew Weissmann: And one of the ways he was a fixer which like, again, this is just allegedly in the papers. We have to see how it comes out and if there’s corroboration for it, is that Michael Cohen was paying roughly $50,000. So, that Donald Trump would be reported to be at the top of a list of successful business people in a poll, so that the illusion —
Mary McCord: Yeah.
Andrew Weissmann: — of he’s a successful businessman was actually being paid for.
Mary McCord: Being paid for.
Andrew Weissmann: That reminds me so much of the Zelenskyy first impeachment —
Mary McCord: Yes.
Andrew Weissmann: — where the whole idea was we’re going to withhold aid and we’re going to give you that aid, if you say that you’re conducting a fraud investigation —
Mary McCord: Yup.
Andrew Weissmann: — into Joe Biden.
Mary McCord: Yeah.
Andrew Weissmann: So I want —
Mary McCord: You don’t even have to conduct it.
Andrew Weissmann: No.
Mary McCord: Just say you —
Andrew Weissmann: I need the illusion.
Mary McCord: Transactional, everything is transactional, right?
Andrew Weissmann: Transactional and the illusion.
Mary McCord: You scratch my back, I’ll scratch yours.
Andrew Weissmann: This illusion of I’m better than I am and my opponent is worse than he is or she is in a —
Mary McCord: Yes, yup.
Andrew Weissmann: — case of Hillary.
Mary McCord: Okay. So should we take a break? And then we will come back and we’ll talk about some of the things that still have to be resolved before we actually start trial next Monday. So, we’ll see if that happens.
Andrew Weissmann: Okay.
Mary McCord: Not whether we come back, that will happen. We’ll see, if any of these things are successful, that are being attempted —
Andrew Weissmann: Phew. Okay, Mary.
Mary McCord: Yeah, okay.
Andrew Weissmann: Okay, glad you just clarified that.
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Mary McCord: Okay, welcome back. So, we gave quite an extensive preview of sort of the people we expect and we didn’t even get to all of them. We expect the jurors to hear from, once this trial gets started. But there are still a number of things that have to happen before this trial would get started. And I think that, you know, one thing for us to talk about is some of the last ditch attempts, again, to delay this trial or make it go away, which are happening.
We talked a little bit last week about the gag order, but also talked about how ironic it was that in the midst of the litigation over this gag order, you also had Mr. Trump asking for an adjournment or a postponement of the trial date based on pretrial publicity. So, the very same things that were causing there to be a need for a gag order, that are of course things that Mr. Trump himself is saying and talking about publicly and on social media are some of the very things, frankly, that he now is saying result in his inability to get a fair trial, because he argues that the jury pool in New York City is biased against him.
Andrew Weissmann: Yeah, I think one of the things that happens, Mary, in every trial that I’ve done, certainly the bigger the case is, the more this happens. But even in smaller cases is in the weeks just before the trial, basically the prosecution and the judge are like short order —
Mary McCord: Yeah.
Andrew Weissmann: — cooks and it is incoming. There’s like a million different requests. There’s a million motions to do anything for two things, one, to delay the trial, to just preserve issues for appeal. They’re just peppering things in. And they have a pretty good sense that the judge is going to say no, but they just want to be able then, if there’s a conviction, say that.
Mary McCord: Because you have to preserve arguments for appeal, right? If you want to argue later that it was a mistake made below, you’ve got to say I made the argument. So even if they think they’re going to lose in front of Merchan, they’re hoping that they will eventually, if there is a conviction, they will eventually win in front of the court of appeals. Or as we’re going to talk about, they’re going to try to use this particular procedure in New York to get up in front of the court of appeals even before trial starts.
Andrew Weissmann: Right. And so just to be clear, a defense lawyer has an obligation as does a prosecutor to zealously represent their client. That’s true on both sides. However, as Judge Merchan has said, pointedly, he expects that within the rules. And if there are violation of those rules and your duty as an officer of the court, there will be sanctions.
Mary McCord: That’s right.
Andrew Weissmann: And so he obviously is thinking without pointing to any one person, he has said, you know, make sure you do your duty as lawyers first in the profession. We talked last week about various lawyers who are in disciplinary proceedings and bar proceedings because of the way they have behaved. So again, we’ll see what happens here.
Mary McCord: And just to be clear that motion that I mentioned, the motion to postpone the trial for pretrial publicity, that has not been ruled on yet. And here we are one week from trial.
Andrew Weissmann: Right.
Mary McCord: But there are new motions and I think that’s what you were about to get to. Yes.
Andrew Weissmann: Right? So let me just say with respect to pretrial publicity. That in every high profile matter I have done, that motion is made.
Mary McCord: Yeah.
Andrew Weissmann: That is going to be denied. This is never going to calm down.
Mary McCord: Oh, dear.
Andrew Weissmann: Exactly. There’s no prospect if you have this case in two months, that there’ll be less publicity, particularly since the defendant is fomenting a lot of it. But when you have a case against a foreign president, there will always be lots of publicity. And this is all about that process of jury selection of making sure that jurors can actually base their verdict on the facts in court. And the law is given to them by the judge. That’s the remedy —
Mary McCord: That’s right.
Andrew Weissmann: — for this. So that’s going to get denied. The second thing that happened is a renewed motion for recusal. That is for the judge to be recused. It’s a little rich because we have this Supreme Court argument that’s going to happen on April 25th, where Justice Thomas is sitting on the case, even though his wife was actually at the ellipse on January 6th and was communicating with the then chief of staff about the Biden crime family.
Mary McCord: Yeah.
Andrew Weissmann: And he is not recusing.
Mary McCord: And who had correspondence with the number of state legislatures, trying to suggest that they send up, you know, Trump slates of electors. And this is, of course, the case we’re now talking about in the Supreme Court as the January 6th case, not this New York case —
Andrew Weissmann: Yup.
Mary McCord: — but to Andrew’s point on a little rich. We’re seeing other examples where there’s at least quite a few people who think the appearance of impropriety or the appearance of partiality may be something that should require recusal.
Andrew Weissmann: With respect to Judge Merchan, this motion for recusal, a similar one was made about a year ago, the judge denied it. He actually got an opinion from judicial ethics office about whether he should recuse or not. Now, this motion says there are new facts that should be considered. It’s very grounded in alleged conduct by the judge’s adult —
Mary McCord: Right.
Andrew Weissmann: — daughter. So it’s not particularly clear why that should lead to the recusal of the judge, as opposed to like if his, the judge’s daughter were sitting at the case, which she’s not. So there’s a gap there and it’s not a spouse. It is an adult daughter outside of the home, who’s entitled to do whatever she’s going to do.
But the other piece, which I thought was a big gap here, is that I thought there was not a lot to address, something that’s very important in the law, which is that, what is new to the defense here. In words, why are they raising this at the last minute? Now, we know why they’re raising it the last minute. They want the trial put off. But that’s not a valid argument.
You have to be able to show why with due diligence you did not know this earlier. What is it about making it now? Otherwise, it’s viewed as sleeping —
Mary McCord: That’s right.
Andrew Weissmann: — on your rights. It’s like you sort of are viewed as waving this. That to me was one of the biggest failings in the briefing, was I didn’t see on Trump’s part, a good explanation for when they had learned this and why it couldn’t have been learned earlier with due diligence, which is what the law requires. Even before you get to the merits —
Mary McCord: Yeah.
Andrew Weissmann: — of the decision, you get to sort of this waiver issue. I don’t know. Mary, what did you think?
Mary McCord: Yeah. Well, I mean, some of the things, I think they’re essentially rehashing with a few more details what they said a year ago. And I don’t want listeners to think that there’s some allegations that the judge’s daughter is doing something unlawful here. By the conduct that Andrew’s referring to, the conduct is her job. She is in leadership and apparently has an ownership stake in a company called Authentic Campaigns, Inc.
And the allegation here is this company that does provide services to Democrat clients serves to get a financial interest by, I guess, you know, I mean, they’re not going to say it this way, but this trial exposing this type of fraud and fraudulent business records that, you know, that will be denigrating to Mr. Trump and benefiting Democrat clients and therefore financially benefiting Judge Merchan’s daughter. That’s essentially the roundabout argument here. So it’s not as though there’s any allegation of her doing something unlawful or illegal or something like that. It’s just because her job is to provide political services to democratic candidates. That’s where they are arguing. There is a appearance of a conflict of interest.
Now, there’s nothing in here that suggests that Judge Merchan has any interest in that company or any financial interest in how that company does. And so all of this in terms of her place of employment and everything is stuff that’s been known for a long time, there’s really nothing new there, to your point, about why couldn’t you have known this before and largely that’s a rehash of what was already argued a year ago.
There’s an allegation in here that’s new, which is that listeners may recall when we talked about the gag order. One of the reasons for the gag order being extended to family members is because of the attacks that Mr. Trump levied against Judge Merchan’s daughter over social media, including the first one that was just based on erroneous facts, what some of the early attacks were based on Mr. Trump accusing a social media account that appeared to be in the daughter’s name of attacking him.
And there was a social media account that appeared to be in the daughter’s name attacking him, but that was not the daughter’s account. And the court actually put out a statement, the administrative office of the court, that this account is an old account of the judge’s daughter that had been abandoned some years earlier, and somebody had sort of taken it over.
Andrew Weissmann: Meaning it wasn’t the daughter who —
Mary McCord: It’s not the daughter.
Andrew Weissmann: Right? Exactly.
Mary McCord: Exactly. Daughter didn’t do it, exactly.
Andrew Weissmann: Can I give you another piece on the same thing —
Mary McCord: Yeah.
Andrew Weissmann: — which is the other allegation about the daughter’s account was that Donald Trump in the recusal motion says that the daughter deleted her account.
Mary McCord: That’s what I’m getting to. That was the whole point of me bringing that up. Because in terms of something being newly discovered, what he’s trying to do now is cast a shadow on that, and say, oh, isn’t it mysterious that she, you know, suddenly got rid of this account and now maybe we know why. Well, boy, that’s a lot of —
Andrew Weissmann: Right. And the state responded saying, so the speculation is that she shut down the account because she wanted to destroy evidence. First of all, it’s not destroying evidence because it not like there’s this subpoena —
Mary McCord: Not evidence, yeah.
Andrew Weissmann: — outstanding for it. It’s not evidence. Exactly. That’s a good argument. It’s not destroying evidence ‘cause it’s not evidence. But I love the state’s response, which is like, A, it’s not evidence; and B, let’s see. You’re busy attacking her. You could see why she wouldn’t want to be a target and she’d want to have as small a social media footprint as possible to not be the subject of the vitriol that has led judges and their families to be subject to not just words, threats and people have been charged —
Mary McCord: Yes.
Andrew Weissmann: — based on that. So obviously, we’re waiting for the recusal decision. There is reporting that Donald Trump will try to appeal one or both of these in what’s called an Article 78 proceeding. That’s a type of New York state appeal. It’s similar to, when we talk about mandamus in —
Mary McCord: Right.
Andrew Weissmann: — federal court. This is super in the weeds as to the technicalities, but it’s a way of trying to get the Court of Appeals to here are the case. I, for the life of me, do not see that. I just think —
Mary McCord: Yeah.
Andrew Weissmann: — that the court’s ready, like the courts in general, nothing that I’m seeing. And by the way, if I thought there was some issue, I would tell everyone —
Mary McCord: Yeah.
Andrew Weissmann: — like there’s an issue here, but this just reeks of repetitive motions.
Mary McCord: Yeah.
Andrew Weissmann: And this is just not the behavior of somebody just to go back to basics. If somebody is running for office and you wanted to clear your name, why would you be running from a trial? You’d be saying, bring it on —
Mary McCord: Although —
Andrew Weissmann: — like I didn’t do anything.
Mary McCord: — honestly, he’s not the first one in elective office or running who’s tried to delay their trial.
Andrew Weissmann: Of course.
Mary McCord: But rationally, you’re right. You’d want to clear the name. We haven’t even talked about, but we’ll get a chance to talk about this next week because this is what we’ll literally be happening on the 15th, the process of jury selection. We know there’s reporting that over 500 New Yorkers have been sent jury notices. There’s going to be a jury questionnaire. It’s not clear to me whether the questionnaire was sent along with the notice or they’re not going to fill those out until they get to court. I got the sense it’s the latter, right?
Andrew Weissmann: Yeah.
Mary McCord: Sometimes it’s not how it works. Sometimes that gets done earlier, like in federal court. And that way you weed through them before you even bring people to court, which seems like a more efficient way. But maybe that’s just the way that I’m used to.
Andrew Weissmann: I’ve done that. You know, in high profile matters because of these concerns about pre-trial publicity —
Mary McCord: Right.
Andrew Weissmann: — of people having strongly held views, you want to make sure that you are conducting a really searching examination. And that’s why, although normally there isn’t a jury questionnaire in high profile matters. It is really standard.
Mary McCord: Yes.
Andrew Weissmann: And having seen it, it is a very, very useful tool to help the parties and the court, make sure that you have jurors who can live by their oaths of office.
Mary McCord: That’s right. So, we’ll have a lot more to say about that next week. In the meantime, let’s take another quick break and then we will come back and talk about Mar-a-Lago.
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Andrew Weissmann: Mar-a-Lago. So just briefly, if people are listening to us, they probably have a pretty good sense. But just to catch people up, the judge had said, I want the parties to address two options for jury questionnaires. Both options were not the law. Both of them had to do with Presidential Records Act. The Presidential Records Act, as we’ve discussed, doesn’t apply. So she gave those two options and Jack Smith wrote back saying, you know what? We need a ruling that the Presidential Records Act just doesn’t apply here, and we need you to just say that. And if you disagree, you disagree. That’s fine. Rule that way. If you agree, say that. But if you disagree, we have a right to take it up on appeal, probably through a writ of mandamus, but whatever.
Mary McCord: Yeah.
Andrew Weissmann: We have a right to go to the 11th Circuit. And the judge comes back and leaving aside some oddities of her saying, this case is complex and raises issues of first impression, neither of which do I think are particularly true. Leave aside that she criticizes Jack Smith for saying, I can’t believe you want me to finalize jury instructions —
Mary McCord: Which he didn’t ask her to do.
Andrew Weissmann: — at this late date, which he didn’t say —
Mary McCord: Well, this early date is really what she says, right?
Andrew Weissmann: Right. And the only person who wanted jury instructions at this date —
Mary McCord: Her.
Andrew Weissmann: — was her. So that was issue in terms of her being less than candid, in terms of her description. She kind of gave half a loaf, and said, I find that the Presidential Records Act is not a basis to dismiss the charges now, but doesn’t say that anything about the Presidential Records Act and whether it could be a defense or how she would deal with it at trial. All she ended up saying was, I’m not going to dismiss the charges based on the Presidential Records Act, which was something that Donald Trump wanted. But that’s not what Jack Smith —
Mary McCord: No.
Andrew Weissmann: — had asked for. He wanted to know that the Presidential Records Act is not a defense for Donald Trump —
Mary McCord: Right.
Andrew Weissmann: — at trial. And obviously, everyone’s been talking about how there’s blood in the water and bad blood, and et cetera, between the judge and Jack Smith. And I think some of that’s just sort of media frenzy. But the main issue and the thing for us to talk about is —
Mary McCord: Right.
Andrew Weissmann: — what to do next. So I’m going to tell you what I think he should do. And we can see if we’re in violent agreement.
Mary McCord: So I love it. How you’re going to go first, because then if I just agree, you know, then I’ll collect. I just came along second.
Andrew Weissmann: But Mary, everyone who knows you knows that’s not true. That’s not possible.
Mary McCord: All right. What do you think is the next step?
Andrew Weissmann: Okay. So I think that what Jackson Smith needs to do is tee up for the judge, and say, no, that’s not what I asked for. I need to know that it is not a defense. I need a ruling on that. We were not asking about juries things. We need a ruling on this. Under the federal rules, we’re entitled to a pretrial ruling on that. There are no exceptional circumstances. It’s not a fact issue —
Mary McCord: Right.
Andrew Weissmann: — that should await trial. And I think they need to go back and push her for it. And by the way, she has responded —
Mary McCord: Yes, she has responded. Yes.
Andrew Weissmann: — because she sees what’s happening, which is that they’re like, you’ve screwed up and we want to take you up on this, like we want to take you up on appeal. So I think they need to go back one more time, and say, no, we want to know it’s out of the case. They can’t afford to let this be decided after jeopardy is attached when a jury is selected. So that’s what I think, they go back. If she rules for them, great. It’s out of the case, you know, for the trial, unless she like reverses herself at trial, but in which case they could try in mandamus her and it would be a very good record. If she was against them, they have a total ground to appeal. I mean that is what appeals courts are for. So Mary?
Mary McCord: Yeah. Basically, that’s exactly my position. I’ll put a little bit of, you know, flesh on the bones of this for folks who might be asking, okay, what’s the mechanism for that? What I would do if I were Jack Smith is I would probably refile not sort of a motion to clarify, although you could do that, but really a motion in limine, saying I’m moving here to preclude Donald Trump from arguing that the Presidential Record Act and his designation of records as personal means that he had authorized access for purposes of the 793 charge.
So the 793 charge charges him with being unauthorized to have national defense information and retaining that national defense information while he was unauthorized to do so, and then refusing to return it when he was asked to return it. He, of course, wants to argue, I designated these records as personal. Therefore, it was authorized. That’s the legal question that Jack Smith wants to answer. I would go to the judge, and I’m saying, I’m moving in limine, which means literally at the threshold in Latin.
So it’s a preliminary move to preclude him from making that argument at trial. Now, motions in limine are very, very common. They were in every criminal case I ever tried. And it’s a way for the parties to go to the court before trial starts and either to preclude evidence or argument. And they want to get that ruling before the trial starts because they don’t want the other side saying something in opening statement that they want to argue shouldn’t come in and therefore the jury’s already heard it and, you know, they can’t unhear what they’ve already heard. They don’t want the jury hearing about argument in opening statement.
We’ve already talked about what an opening statement is. But you know, can you imagine his attorneys laying the groundwork for this authorization argument based on the Presidential Records Act. They would be doing that in their opening statement if that were not precluded in advance. And that is so that one side does not get this advantage of saying something in court that even if the trial court were to say, oh, I’m striking that, the jury’s already heard it.
Andrew Weissmann: Yeah.
Mary McCord: And not only that. You gotta plan your opening statement. You’ve gotta plan how you’re going to put your evidence on. So if you think there are things that —
Andrew Weissmann: Right.
Mary McCord: — should be precluded, you ask the court in advance to preclude. So the rules of federal criminal procedure, rule 12D specifically says that a court must decide every pretrial motion before trial, unless it finds good cause to defer a ruling. The court must not defer ruling on a pretrial motion if the deferral will adversely affect a party’s right to appeal.
And so what I’m saying here is that this would adversely affect Jack Smith’s right to appeal if he doesn’t get a ruling on this pre-trial and then jeopardy attaches once a jury is sworn. And if Judge Cannon were to decide to grant a motion for acquittal or, you know, allow all this argument to go to the jury without correcting it and there was an acquittal, there would be nothing that the prosecution could do.
So that’s something that I would be thinking about doing. So then the question is, okay, let’s assume he files that, right? And let’s assume she sits on it. If she rules, she rules either for him, okay, good. We all know what the rules were. She rules him against him, Jack Smith can say, okay, now, I’m going to the Court of Appeals, and saying, this is clear and indisputable error, and Court of Appeals, you need to correct it because otherwise this is going to be basically a failed prosecution ‘cause she’s essentially directing a verdict at least on those 32 counts.
Andrew Weissmann: Yep.
Mary McCord: But the real question is what if she just sits on it and doesn’t rule? Now, I think at that point, especially given the language of rule 12D, that Jack Smith could try to go up on a mandamus, saying she has a clear and indisputable duty and an obligation to rule on this pretrial motion. And if she doesn’t do so, she has, essentially, like we were just saying, directed a verdict. That’s a little bit less well trod and territory to take a mandamus on sort of that kind of a failure to rule, but certainly not unheard of.
Andrew Weissmann: Yeah. So mandamus, by the way, is it’s like an appeal federally, but the standard for getting reversal —
Mary McCord: Yes.
Andrew Weissmann: — is harder. You have to basically show that a judge is not doing —
Mary McCord: Right.
Andrew Weissmann: — his or her job, meaning that it’s not sort of discretionary. This is just like way outside the bounds.
Mary McCord: Yeah.
Andrew Weissmann: Not just that it’s sort of wrong —
Mary McCord: Right.
Andrew Weissmann: — but it’s really wrong.
Mary McCord: Right. That’s why I use clear and indisputable, right?
Andrew Weissmann: Yeah. So just remember that this is on the context of she has been reversed twice. I hope he’s listening because, you know, you and I are in violent agreement as far as I can tell.
Mary McCord: Right.
Andrew Weissmann: And so, the stars and moon are aligned or I should say here are the sun in the moon.
Mary McCord: The sun and the moon. We are literally almost to that moment.
Andrew Weissmann: Exactly.
Mary McCord: Yeah.
Andrew Weissmann: So the sun and the moon are aligned. And I think one of the things that he’s done, which I could see him doing again, is giving essentially the court a deadline, saying that if you do not rule by X date, we are intending to go up to the Court of Appeals. He did that in the pre indictment phase and it worked. And obviously, it’s not going to be a deadline that doesn’t give the defense an opportunity to be heard. It’s not going to be a deadline that doesn’t give the judge time. But it clearly is signaling that they’re not messing around.
Mary McCord: That’s right. Yeah. So we’ll see when he does this or if he does this. Maybe he’s got something else up his sleeve.
Andrew Weissmann: Right.
Mary McCord: To those people who are saying, right now, he should move to recuse her, I think the reason Andrew and I are not suggesting that is, it is really, really hard to get a judge recused and we don’t yet have a ruling or a direct blatant refusal to rule. Like she’s being very, I hate to say the word, clever about it on many things. This isn’t the first time she’s sort of like partway —
Andrew Weissmann: Yeah.
Mary McCord: — rules, but it’s not a final order. So it’s not an appealable final order. And she defers things to trial. So it’s kind of cleverly keeping him from having something that he can say she did this so clearly wrong and it’s a result of bias. And so, I just don’t think this is the time for that.
Andrew Weissmann: Yeah. But I think both were saying it could become that.
Mary McCord: Yes. Oh, yes. It could become that.
Andrew Weissmann: This is all a way to sort of tee up the issue in a way that would maximize the chances of —
Mary McCord: That’s right.
Andrew Weissmann: — success’s. It’s not like either is just thinking, oh, she should stay on the case ‘cause —
Mary McCord: Right.
Andrew Weissmann: — she’s been so great. I mean, she’s really done things that are just, I think, outside the bound. Mary, so there’s a lot to keep an eye on there. The New York case, it’s going to be really interesting. It’s going to be a little hard ‘cause both of us are trial lawyers. So, we’ll both be looking at this like —
Mary McCord: Yeah.
Andrew Weissmann: — oh, I would try the case this way. But it’ll be really interesting to cover it and to try and give people sort of some inside tips about sort of like what’s going on, like why the prosecution is doing what it’s doing, what the defense is up to. We’re going to have additional episodes. So Mary, in addition to having this to cover, it’ll be really fun to —
Mary McCord: It will.
Andrew Weissmann: — talk to it more.
Mary McCord: Yep. And we’ve run out of time to talk about other things, but there are so many other things. There’s quarreling over the bond in the civil fraud case about whether that bond is legitimate.
Andrew Weissmann: Yep.
Mary McCord: There’s an appeal by Mr. Trump of the Georgia judge, Judge McAfee, denial of the motion to recuse Fani Willis. And then, of course, we’re going to be looking forward to the argument in the Supreme Court on presidential immunity in the —
Andrew Weissmann: Yes.
Mary McCord: — January 6th related case. So we’ll have lots to say about those things as they really become ripe.
Andrew Weissmann: And I’ll put in a flag for something that you flagged for us first, which is the judges —
Mary McCord: Right.
Andrew Weissmann: — who have been speaking out —
Mary McCord: Yes.
Andrew Weissmann: — because for anyone who’s listening, who wants to read a wonderful, impassioned tethered to facts and law reaction by a judge, I would command Googling United States District Judge Royce Lamberth —
Mary McCord: And actually maybe —
Andrew Weissmann: — who —
Mary McCord: — we can put these in our show notes. Yes.
Andrew Weissmann: Oh.
Mary McCord: So we will have these sentencing notes that he used to sentence one of the January 6th defendants. We’ll have them in the show notes.
Andrew Weissmann: I am so 19th Century. At least I can Google.
Mary McCord: That’s true.
Andrew Weissmann: I mean, like you could write to Judge Lamberth and ask him for a copy of his remarks. But no, we will put it in our show notes ‘cause we have this wonderful producer who gathers all this stuff for everybody, but I highly recommend it. It’s very moving. He is another judge speaking out. He is by no means identified as a liberal Democrat. It would be extremely hard to characterize —
Mary McCord: True.
Andrew Weissmann: — in that way. But he’s a really moving statement that I think for those people who want to be uplifted at a time that is anything but.
Mary McCord: Yeah. He was really responding in many ways to letters that had been written in support of one of the defendants who he was sentencing that day and letters that talked about that defendant character. And the judge wanted to make sure he says, I’m not sure that these people actually know what the defendant did here. So he goes through. He says, I sat through the trial. I saw the evidence. And the portrayal of Mr.– I’m not sure how you say his name, Johnatakis either a peaceful protestor —
Andrew Weissmann: Yeah.
Mary McCord: — or someone simply swept up by the crowd does not match the reality established at trial. He then goes through in detail what the evidence established about Mr. Johnatakis’ conduct, and then says, I’m actually going to have these notes that I’ve written here for sentencing. I’m going to have these sent to each of the people who wrote me a letter, just so that they know. He’s like, I thank you for your letters. I’m not sentencing him based on his character. I’m sentencing based on his conduct, what he did, and you folks should know what he did too. So it’s a bold move. It’s not the first time he’s written these types of notes. We featured some of them several weeks ago and we will continue to uplift the words of judges who are speaking out about January 6th.
Andrew Weissmann: Mary, talk to you very soon.
Mary McCord: That you will.
Andrew Weissmann: Starting next Tuesday, Mary and I will bring you new episodes twice a week to keep you up to speed of the New York trial. And we want to answer some of your questions as they come up. So please send us questions. You can leave us a voicemail at 917-342-2934, or you can email us at prosecutingtrumpquestions@nbcuni.com.
Thanks so much for listening. We’ll be back next week with much more. And as a reminder, please vote for us on the Webby Awards. Voting is open until April 18th and there are instructions in the show notes about how to do that.
Those show is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Paul Robert Mounsey is 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.