On Monday, July 22nd, MSNBC legal analysts Andrew Weissmann and Mary McCord spoke at a live event at the Center for Life Enrichment in Highlands, North Carolina. They touched on President Biden’s historic decision to exit the race, and the legal ramifications it could hold for Trump’s continuing criminal cases. Mary and Andrew also address the question of whether a president can pardon himself, and to what extent. And they detail the reasoning laid out in Trump’s motion to vacate his New York conviction based on the Supreme Court’s decision on presidential immunity, and if any of the arguments hold water.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, and welcome to Prosecuting Donald Trump. I’m Andrew Weissman, and I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Hi, Andrew. So we’ve got something special today. On Monday, July 22nd, Andrew and I participated in a live event at the Highland Cashiers Center for Life Enrichment in North Carolina.
Andrew Weissmann: That’s a mouthful.
Mary McCord: It is a mouthful. It’s one of those rare occasions when we get to do this in person, which is always very special and in front of a live audience.
Andrew Weissmann: I know. It was really, really fun. I was there last year, and this year, you and I got to do it live together, which is always actually really nice. So, it was a fantastic event. We wanted to share it with you in this episode. It’s great to actually have a live event with an audience. So without further ado, here are some highlights from the conversation that Mary and I had.
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Andrew Weissmann: It’s so nice to see you all. I was here last year, and I’m so glad to be invited back with my much better half. For those of you who listen to our podcast, you’ll know that we don’t script anything, and now you will actually really be able to witness that that is certainly true. You might be thinking it’s better if we do script it. So this reminds me, we were doing a live show in Austin, Texas —
Mary McCord: Yeah. Texas last year.
Andrew Weissmann: — and with Chris Hayes, and I looked over, and Mary and Chris, their microphones are perfectly placed, and mine was just, let’s just say it fell down into a location and just stayed there and so, I’m known on our podcast for telling anecdotes. I think that’s the main source of why I’m here. But anyway, so the first part of our discussion, we were planning on talking about a motion that Donald Trump has made in the New York criminal case where he was convicted that is based on the Supreme Court’s immunity decision. And we’re still going to do that and talk a bit about the immunity decision, give you a quick overview of it, just in case anyone is living under a rock, doesn’t know exactly what it is, but just to give a little context and then talk about that motion. And we’re still going to do that. However, there was some news and it doesn’t involve the change in chamber music program yesterday. It’s a little bit more national in scope.
Mary McCord: International, I would say.
Andrew Weissmann: Yeah.
Mary McCord: That’s right. Yes. So we will start by talking about President Biden’s decision yesterday, and specifically not so much what that has to do with who will be the next candidate, but what impact that may have on these prosecutions.
Andrew Weissmann: And I have to say, when you’re on MSNBC or doing these sort of short news clips, I think of it as like speaking in haiku. You know, the hard part of it is how do you shrink something down into a short amount of time. And we both get tons and tons of e-mails and people saying, but you didn’t explain, and we’re like, well, that’s true because as you know, it’s like —
Mary McCord: Because we had five minutes and they were already, the producer was like, wrap it up, wrap it up, wrap it up.
Andrew Weissmann: Right. If you want to know what’s going on in our year, it’s usually it’s like, and you’re done. So probably me a lot more than Mary. So I remember when Rebecca Kutler, who came up with this idea, I was like, there’s no audience for that. I mean, what are you going to call the podcast, two nerds? And sure enough, she was right. There were people who did want that deeper dive. And the description of two nerds is probably one that at the end of this presentation, you’ll be able to judge for yourself that that would probably would have been a better title than “Prosecuting Donald Trump.” But anyway, that was the genesis of it. And it’s sort of been great.
And I have to say, just working with Mary for the last year plus, it is also very calming because a lot of times things happen and people say like, how do you stay so calm on air? And a lot of it is when you’re thinking about having to do a podcast for like, you know, 30 minutes or 45 minutes on something, you get it all out of your system beforehand so that you can really sort of calm down and figure out what’s the best way to sort of explain this. So if you think all of us are naturally, or both of us are naturally calm, it’s all of that’s, the non-calm part is happening off screen.
Mary McCord: Right. Right. Except for occasionally Trigger Avenue.
Andrew Weissmann: Yes.
Mary McCord: And this is just to tell you how great it is to interact with those who listen is we had a whole episode, I think, after one of Judge Cannon’s decisions. I don’t remember which one anymore because —
Andrew Weissmann: Because there’s so many to choose from.
Mary McCord: — yes, exactly, yeah. That triggered Andrew, and then so I sure enough, like and we talked about this for, you know, many times. I’m triggered, I’m triggered. So a couple of days later, I get this e-mail from somebody who is listening to the podcast. And then he said, I was on vacation in Oregon, and I passed by this street and I had to take a picture. And it was Trigger Avenue, literally a street sign. So that became our next week’s name of our podcast, Trigger Avenue. And we both took a nice little stroll down Trigger Avenue. So anyway.
Andrew Weissmann: Okay, let’s start.
Mary McCord: Shall we —
Andrew Weissmann: So, we obviously don’t do political commentary. That’s not our background. We don’t have anything really interesting to say that would be useful more than just as we can react like citizens, but our background is not sort of political pundits or pollsters or anything like that. So we looked at the and thought about the announcement yesterday in terms of what does it mean in terms of the legal ramifications, whether it’s the four criminal cases or even some of the civil cases involving Donald Trump. So, Mary.
Mary McCord: Well, obviously, if Donald Trump wins in November, that will be the end of the of the two federal cases. And so President Biden deciding that he’s not running doesn’t necessarily change what that outcome will be, but it just feeds into this election will determine many, many things far beyond these criminal cases. But if he is reelected as president, as probably most of you in the room know, he will be able to direct his Department of Justice to dismiss those federal cases. And that was actually true even before the immunity ruling.
But it remains, I’d say, even more true now because the Supreme Court has explicitly held that it is one of the president’s core constitutional powers to, through his Department of Justice, make decisions about the investigation and prosecution of cases. And that is something that I think many of us wouldn’t have thought were part of his core presidential powers. We thought, yes, he’s the head of the executive branch. Certainly, he can direct his attorney general to do things as a matter of policy, prioritize certain types of cases. Let’s say sometimes presidents want to prioritize white collar fraud cases. Others want to prioritize violent drug trafficking cases, right? That’s kind of normal. But what has, through the years, developed within the Department of Justice and the White House is a set of norms that says we want the public to feel confident that prosecutions and investigations are not being made for political purposes.
And so we will, by our own internal guidance, we will direct that there is separation between the Department of Justice and the White House. So at the Department of Justice, in my tenure and Andrew’s tenure, every attorney general that I worked under, and I worked there for well over 20 years, Republican and Democratic, would always put out a new memo that, you know, prosecutors are not to be communicating to the White House about decisions about investigations or prosecutions, with some exceptions in national security areas, mostly because the president shouldn’t be surprised if we have extradited a terrorist to come to the U.S. to be tried, right. He should know about that in advance because that would be pretty monumental. White House also has always had a set of memos. Every White House counsel, Republican and Democratic, have always put out similar guidance. The White House should not be directing the attorney general or the Department of Justice about individual investigations and prosecutions. But that’s not constitutionally required.
And so one of the real consequences of this election when it comes to the ongoing cases is there would definitely be that power to direct that those cases be dismissed. Now, the president can’t direct that state prosecutions be dismissed. The president can’t direct that civil cases brought by people like E. Jean Carroll or even the state attorney general in New York, a civil case, he can’t direct that those things be dismissed. He can only direct his own Department of Justice. So as we come into this election, it’s obviously on the Democratic side, you know, a whole process right now of having another nominee to take President Biden’s place. And we have just a matter of months, but the outcome will have a real impact on these cases.
Andrew Weissmann: So I add embroidery to the substance. And the one thing to note is a lot of times people talk about whether a president can pardon himself. And that is an issue that has not been decided by the Supreme Court. And given the Supreme Court, I hope they don’t get to decide it, but it’s also not something that is necessary because as Mary pointed out, the new president can just say, drop this investigation. He doesn’t have to worry about pardoning himself. He can just be like, you’re not going to prosecute, you know, to depersonalize it.
The president could be like, you’re not going to prosecute Democrats and you’re only going to prosecute Republicans, or you’re only going to go after Muslims and you’re not going to go after, you know, white Protestants, or pick whatever hypotheticals you want. And so the president has this enormous power, particularly under the immunity decision to have these kinds of communications with the Department of Justice just to denigrate the immunity decision, which for one second, one of the things is when Mary noted that the decision said that within the president’s core powers, the Supreme Court said includes the communications between the president and the attorney general, they specifically noted the context of that was communications about bringing a sham investigation. And the Supreme Court said that is absolutely immune.
I mean, so remember that those were the charged allegations in the January 6th case. They are now out of the case conclusively in a 6-3 decision. And so there’s enormous power and I do think that one of the things when I was thinking about what happened yesterday is something that Joe Biden said when the immunity decision came out was he that night went on air. And I thought in a pretty remarkable way, and again, I’m trying to sort of keep this depoliticized. He said, just in terms of the presidency, you had the sitting president of the United States saying the decision today to give the presidency, the position I hold, more power is wrong. And that just is remarkable, that sort of self-restraint and understanding the role that the presidency has and the limits of that role in what’s supposed to be a system of checks and balances, I thought was remarkable that you had that happening on the day of the decision.
The second thought I had, which is a bit of a factoid, is that the fact that Kamala Harris, if she ends up being the nominee, which it looks like she will be, is that you have a former prosecutor and the contrast in terms of the rule of law where you have just looking at the absolute, you know, black and white facts, is you have a former prosecutor on one side and you have somebody who is a convicted felon. Regardless of what you think of the case, a jury listened to the evidence and found beyond a reasonable doubt that he was guilty of 34 felonies and is facing charges in two other cases. And we’ll talk about it. I didn’t say three others because the case in Mar-a-Lago is now not just technically, it is —
Mary McCord: But actually dismissed.
Andrew Weissmann: — it is actually dismissed by the district court. That is likely to be appealed. So I just think that contrast of the rule of law being on the ballot as well as the Supreme Court is, I think, going to be really heightened and brought to the fore by the background of the two candidates.
Mary McCord: And that reminds me, when I was saying the president, if Donald Trump wins, could dismiss the cases against him, that only assumes that somehow there is by then a Mar-a-Lago case because there is not one right now. We want to dig in now, we have already talked on a couple of episodes about we’ve gone through fairly extensively the immunity decision and its consequences, not only for the January 6th case and what Judge Chutkan in the D.C. District Court will be tasked with doing as that case comes back to her. We’ve also talked a little bit about the consequences more broadly for the government. But there is a specific aspect of the opinion that really is pertinent to the Manhattan case where there’s already been these guilty verdicts.
And I’m sure all of you are aware that immediately following that opinion, Mr. Trump’s attorneys filed a motion before Judge Merchan in Manhattan seeking to have those verdicts set aside on the grounds that official acts evidence was introduced into evidence at that trial and should not have been in accordance, if this is Mr. Trump’s argument, should not have been in accordance with the Supreme Court’s immunity ruling. And so since that notice, they have filed a full brief, 50-something pages, and we are now awaiting Alvin Bragg, the D.A., to file his opposition, which is due in two days on the 24th, if I have my days correct. And then Judge Merchan has actually already announced that he will make a decision on that September 6th. And on September 18th, they will either move forward with sentencing or not move forward with sentencing, depending, of course, on what his decision is on the 6th. So we are in the midst of, you know, very significant briefing on a very significant issue that is directly about how do we apply the Supreme Court’s ruling.
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Mary McCord: Okay, let’s pause here. After the break, more from my discussion with Andrew from the Highlands Cashiers Center for Life Enrichment in North Carolina. Back in a moment.
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Andrew Weissmann: So the reason it’s useful to do that sort of TikTok, it’s a phrase, by the way, which apparently I can’t use anymore, as my NYU students, like, keep me up to date with what anyone in the last 20 years has been doing.
Mary McCord: But it’s too bad, because it’s a great phrase.
Andrew Weissmann: I know.
Mary McCord: Like, what’s the TikTok?
Andrew Weissmann: A lot of people correctly are thinking, what in God’s green earth does an immunity decision about what you can do as president have to do with the New York criminal case? Because the New York criminal case was about conduct that, to a large extent, involved what candidate Trump was doing. And the decision was not about immunity for a candidate. It was immunity for a president. And so you’re thinking, well, this is clearly just personal conduct that was taking place either before he was president, or to the extent that it sort of spilled over to a time period that he was president. It might be a time period that he was president, but its conduct, the alleged criminal conduct, was personal, as if you got into a car accident or robbed a bank or did something, you know, you just did on your own time, but not as president.
So how can the immunity decision have any consequence? And that is something we talked about, I think, last episode, but we didn’t really dig into. And the answer is that amongst the many things that that decision did, and this is one of the more outrageous, because it basically just takes the president, I think, almost completely off the hook for any criminal liability, is they said that a prosecutor cannot use official conduct, even to prove up that evidence of official conduct, to prove up a case, even if that underlying case is for unofficial conduct.
Mary McCord: And is it worth pausing there to just give the three areas of immunity? I know you’ve all read the decision, right? And all the concurrences and dissents. No, seriously, I’m sure you’ve heard a lot about it. But just since we’re going to dig into this one aspect, just a real quick overview. Basically, the Supreme Court, you know, divides cases that involve a president to three pieces and says, you start with core presidential functions for which the president is absolutely immune. And the controversy there about that ruling, because I think just saying that is not controversial.
In fact, even the government’s attorney, Michael Dreeben, who both of us know very well from our years in government, argued, yes, we agree, before the Supreme Court, there would be some core presidential functions for which a president couldn’t be prosecuted. These are things like the things that actually appear in the Constitution, like the pardon power, the veto power, things like that. The Supreme Court defined it much, much more broadly, as we were indicating, like essentially anything you do as head of the executive branch and many other things. So that’s a problem. But core presidential functions, absolute immune. There’s no balancing test or anything like that. Just can’t prosecute for it.
Andrew Weissmann: And one thing that’s interesting is a concurrence by Amy Coney Barrett, I thought, laid out sort of the rationale in a way that’s, I think, very easy to understand as to how she thought about absolute immunity in that core area. She just said, look, if it’s a core area, what you’re really asking the court to look at is could Congress act in any way to criminalize that conduct or to regulate that conduct? And if it’s something that’s been exclusively given to the president by the Constitution, then Congress doesn’t have that power. It can’t go into that area. It has been given solely to the president. And as she said, in that limited number of areas that are in the Constitution, she just said the way to think about it is that’s just not something that Congress has the power to criminalize or even, frankly, civilly regulate. And so that was sort of the big issue, as Mary said, is that that sort of small area was interpreted quite broadly.
Mary McCord: Because the majority does, you know, say something similar, but comes at it from a different perspective. They say in this broad view of core presidential functions, Congress is disabled from legislating and courts are disabled from examining it. So absolute immunity means in that most capacious description would be really calls into question, can Congress do oversight of the Department of Justice? What happens with the appropriations of funds? I mean, we could go on and on and on. So that’s that first bucket.
The next piece is then a court who’s looking at an indictment has to decide are the charges in that indictment then outside core presidential, are they official acts or unofficial acts? Unofficial acts, purely private conduct, reimbursing a lawyer for paying hush money to a porn star, purely private conduct, unofficial act, can be prosecuted for that. But they’ve said when you’re deciding between official and unofficial, you can’t take the president’s motives into consideration. You have to just parse it separately. And within what they call the outer perimeter of official acts, again, looking sort of broadly at what might be an official act, then there is at least presumptive immunity. Maybe absolute, we’ll decide that later if we ever have to, but at least a presumption of immunity that can only be rebutted if the prosecutor can establish that there would be no danger of intrusion on the president’s executive authority and functions by that prosecution. This is a lot of gobbledygook, I understand.
So there’s a lot of work that the court sent back to Judge Chutkan. They said the direction to the attorney general to tell states that they were investigating fraud in the election, that’s off limits. That’s absolutely immune. He can’t be prosecuted for. Communications with his vice president, Mike Pence, that’s at least presumptively part of his official acts. And so, Judge Chutkan, you have to determine whether the prosecution can rebut that it would not intrude on the functions of the executive to prosecute for his pressure on Mike Pence, right, to count the fraudulent votes on January 6th. And then these other areas, the pressure on state legislators and state legislatures and the fraudulent elector scheme and the tweets, you know, be there, be wild, and we’re going to march down the street and tell Congress what we think.
And if Mike Pence had had courage, you know, we wouldn’t be in this position. All that sent back to the judge to determine official, unofficial. And they put some guidance there, and we talked about it at our last podcast. And then the thing we want to talk about today, this is a very long wind-up, is the other thing they said, which is that special counsel says, argues, and special counsel did, that official acts, even though special counsel will understand things that are immune from prosecution, you cannot base your indictment on that, but you could introduce as evidence official acts in order to prove, say, let’s say, knowledge and intent and things like that, absence of mistake when it comes to the personal conduct. And this is something that the chief had suggested at argument that he very much thought, yes, you should be able to do that.
Andrew Weissmann: Chief Justice Roberts.
Mary McCord: Chief Justice. And he’s the one who wrote the majority opinion, but he really reversed course on that in his opinion and said essentially that would eviscerate the immunity that they are providing to the president because it would allow the prosecutor to get into evidence, the very things that get into the president’s deliberations and his thinking as president, and it would prevent him from taking the kind of bold and fearless actions that presidents need to take if they’re worried not only that they might be prosecuted for them, but even that evidence might be examined by a jury. And this was remarkable for many reasons. This is where Justice Barrett disagreed and actually dissented from that, and then it —
Andrew Weissmann: So this is part of the decision. This is 5-4.
Mary McCord: Yes.
Andrew Weissmann: This is not 6-3. This issue of can official conduct be evidence in an unofficial case. Just to be clear, what this is all about is the Manhattan case. To my mind, there is no question that that is exactly what the Supreme Court was focused on. They had an unofficial conduct in the Manhattan case, and you had a 5-4 decision saying that if there was official evidence that was put on in that case, the court’s going to have to look at that to see whether that was allowed and whether it was permissible. That is the issue that is going on now because then we’re going to the substance of what Donald Trump is claiming was the official evidence that was used in a case that clearly is about unofficial conduct and that 5-4 decision that is leading to this problem in the Manhattan case.
And the rationale, there’s two paragraphs of this long immunity decision, and the court gives two, I think, very, very flimsy rationales for why this should even be a problem to introduce official conduct. One is that if you allow juries to hear this and a president knows that his, or maybe her, official conduct will be introduced at a trial in the future, it will distort, that’s the phrase, it will distort his decision-making process. Just think about that. Like if you thought that a jury in a criminal case for your unofficial conduct, your personal conduct, might hear about something you did as president within your official acts, that will sort of unduly distort what you’re doing.
Mary McCord: And you’ll be jailed going forward as president.
Andrew Weissmann: And Ketanji-Brown Jackson said basically to that, good, that’s what you want. That deterrence is a good thing, not a bad thing. Just sort of directly took it on in really terrific language, in my view. The second argument, which is, I think, even weaker for why this is a problem, is that the five justices on this part of the opinion said that a jury cannot be trusted to separate the policies of a president they may disagree with from anything else in the case and we cannot rely on normal criminal rules about keeping prejudicial evidence out, about balancing, that categorically a jury cannot be trusted, meaning this is not something that we’re going to allow a judge to sort of balance and decide case by case, which is the normal rule, because of the concern that a jury couldn’t hear this evidence and be fair.
I think it’s really useful to think about that rationale when we go through the specifics of the Manhattan case that are being charged, because when you look at the specifics, it so belies that notion. Remember, this is a jury that by definition is hearing, that can be trusted to decide a case involving a former president for unofficial conduct. That you can go forward on because the Supreme Court hasn’t said, oh, they just can’t hear the case at all because they couldn’t be fair. So the tipping point for them is, but if you introduce anything within the broad official acts as defined by the Supreme Court that the president takes, such as a tweet or a conversation with the communications director —
Mary McCord: Well, hang on. We’re going to come back to that. We’re going to come back to that.
Andrew Weissmann: Yeah, but I’m just saying that’s the issue that gets created. So anyway, so let’s turn to the specifics.
Mary McCord: Okay, but the one little area of hope, I guess, that the Chief Justice said in response to Justice Barrett’s dissent here, because Justice Barrett said, in this example, suppose you have bribery, a president offering an ambassadorship in return for a bribe payment, a monetary payment. It’s an official act to appoint an ambassador. So are you saying that the government could not put on evidence of the ambassadorial appointment? Because how could you ever prove bribery? Bribery is definitely an unofficial personal act. Supreme Court even agrees with that. But how would you prove it? And what the Chief Justice says in a footnote in response to Justice Barrett is, but of course, the prosecutor may point to the public record to show the fact the president performed the official act, made the ambassadorial appointment, right?
And the prosecutor may admit evidence of what the president allegedly demanded, received, accepted, or agreed to receive in return for being influenced in the performance of that act, because receiving money would be personal, not official. But what the prosecutor may not do is admit testimony or private records of the president or his advisors probing the official act itself. And the reason I’m reading this to you is because I think this is something that essentially Donald Trump’s attorneys, when they swing for the fences in their motion in New York, they really ignore that footnote.
Andrew Weissmann: And one of the issues for the courts going forward is that footnote is really hard to understand the difference between the second sentence and the third sentence of, you know, not being able to explore the testimony or the advisors as to why, in the case of an appointment of an ambassador in exchange for a bribe, you know, the government would normally be needing to show, well, it’s this for that.
Mary McCord: It’s this corrupt quid pro quo.
Andrew Weissmann: But let’s assume that the advisor had taped evidence of the president saying, oh, I’m going to do it for this reason. He’s actually or she is not qualified to be ambassador, but this is why I’m going to do it. It’s not totally clear from that footnote what evidence is allowed, which is, by the way, it’s insane that this is something that we’re all considering. And Chief Justice Roberts’ footnote gives sort of something for both sides to argue about what is that line as to what gets allowed. So, Donald Trump, so first, just to be clear, as a defendant in a criminal case, a Supreme Court case comes down, it gives him arguments to make, and neither of us has anything against that. That is what defendants are entitled to do is make arguments based on the law and the facts. And as long as it’s made in good faith, that’s part of our process.
Mary McCord: And that includes when it comes down after the trial and before sentencing, right? Because you can bring arguments on appeal based on new case law, where things start looking questionable in terms of retroactivity is if you have a case that has been a criminal case that has been tried, convicted, appeals affirmed, it’s, you know, 10 years in the rearview mirror, new case comes down. Does that impact retroactively? But when it comes down before the appeal, generally speaking, you can raise issues on appeal. There are other issues here about whether this was waived by Mr. Trump or whether he failed to bring a timely motion before trial, and that will all get litigated. I think we’ll see that in Alvin Bragg’s opposition. But we’ll also see him arguing the merits that these things, and we’re going to go through the list, are not official acts.
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Andrew Weissmann: Okay, let’s take a quick break. When we’re back, more from our discussion from the Highlands Cashier Center for Life Enrichment in North Carolina.
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Andrew Weissmann: So I’m going to jump to sort of the key problem, and then we’ll talk about some of the other issues because as Mary said, Donald Trump gave a laundry list of anything that could arguably be official, and there are various responses that we expect the state to make in two days. But there is one key area that I think is worth discussing, and then we can sort of backtrack to things that we think are probably less of an issue, and that is Hope Hicks. So Hope Hicks, as you may recall, took the stand, and she gave a lot of evidence that had to do with the time period before Donald Trump was president. There’s no issue there.
Mary McCord: And that’s because she was working with the campaign when he was a candidate, right? And they were doing damage control.
Andrew Weissmann: Right.
Mary McCord: That’s all personal.
Andrew Weissmann: So that’s going to be fine, and there can’t be a claim about that. So the issue arises because, in addition to talking about what happened in 2016 and for instance, she was describing what it was like when the “Access Hollywood” tape came out and the reaction, and that was sort of part of the state’s case in terms of motive for the crimes, but she then talked about two things in 2018. So that is when Donald Trump is president, and she has an official role at the White House leading communications with the public. So you have the president and a sort of senior official having a conversation, and the two types of things that are said, one has to do with —
Mary McCord: I have them on my screen, if you want.
Andrew Weissmann: Oh, yeah, perfect.
Mary McCord: Okay. So one is when “The Wall Street Journal,” I guess, had reported that Michael Cohen had claimed, and they had him quoted as saying, he made the decision to pay Stormy Daniels in order to, you know, keep the story of their alleged sexual encounter in order to keep that out of the press right before the election. He said he paid that hush money without Mr. Trump knowing it, out of the goodness of his heart. And so Hope Hicks was asked about this, and she reported that she had a conversation with Mr. Trump about it, and it was “New York Times,” not “Wall Street Journal,” I apologize. I believe it was the day after, this is Hope Hicks testifying. The morning after Michael, that’s Michael Cohen, had given a statement to “The New York Times” saying that he had, in fact, made this payment without Mr. Trump’s knowledge.
Mr. Trump was saying that he had spoken to Michael and that Michael had paid this woman to protect him from a false allegation, and that, you know, Michael felt like it was his job to protect him, and that’s what he was doing. And he did it out of the kindness of his own heart. He never told anybody about it, you know, and he was continuing to try to protect him until the point where he felt like he had to state what was true. And this is what Hope Hicks testified that Donald Trump told her when he was president, and she was his communications director. She was then basically asked, you know —
Andrew Weissmann: Did you believe it?
Mary McCord: Did you believe it? And she says, I would say that would be out of character for Michael and there’s an objection that’s overruled, and then she’s asked, why would it be out of character? And she says, I didn’t know Michael to be an especially charitable person or a selfless person. He’s the kind of person who seeks credit. Right? So here we’ve got this testimony where she’s basically saying, Trump was telling me that this is what Michael said, but I didn’t believe that Michael would have been telling the truth then. Just a couple questions later, and this is the other significant part that they’re arguing should not have come in because this was official communications between a president and his communications director. She’s asked, did he say anything about the timing of this new reporting, right, because this is in 2018 when he’s the president. Oh, yes, she says. He wanted to know how it was playing, and just my thoughts and opinion about this story versus having the story, a different kind of story, before the campaign had Michael not made that payment. And I think Mr. Trump’s opinion was it was better to be dealing with it now, and that it would have been bad to have that story come out before the election.
Andrew Weissmann: And then this was the end of her direct testimony. I was actually there for a lot of the trial, and then, as many of you may know, she then broke down in tears. And, you know, these two things were very strong evidence, and the DA in summation argued that this was very strong corroborative evidence.
Mary McCord: He used the word devastating.
Andrew Weissmann: Right, which was fair in terms of its import.
Mary McCord: Now, did she alone prove up the actual false business records, you know, charges? No, not at all. The point of her testimony was to corroborate Michael Cohen, to corroborate David Pecker, to corroborate the witnesses that actually did have direct factual evidence. So she was not a direct fact witness, but she was an important corroborative witness.
Andrew Weissmann: So Judge Merchan is going to have to make a number of decisions. Leave aside that if he rules that all of this shouldn’t have come in, he’s going to have to decide was it material to the case, it didn’t make any difference because there’s always harmless error. Something comes in, but it’s, you know, it’s a grain of sand on the beach. His first decision really has to be about looking at these two things that Hope Hicks testified to. Is this even official act evidence? Now, does it fall into the broad category which the Supreme Court has outlined in its immunity decision of official act evidence?
Now, I think if you were to ask Justice Alito, the answer is going to be yes because I’m not sure he will ever see any non-official act evidence. But that’s not the issue. The issue will ultimately be will there be five justices who would agree to this. Judge Merchan has to initially make that call and then it will go up within the New York criminal system, and then it could go to the Supreme Court. And, you know, you can argue it both ways, some stronger than others. With respect to, I’ll take the second one first, which is Donald Trump’s statement, according to Hope Hicks, that it’s better this came out now than before. Fine, that’s the president. Yes, he’s talking to the communications director, but that has nothing to do with his official conduct. The argument is like, that’s just sort of like opinion evidence and it doesn’t help her do her job.
Mary McCord: Yeah, and for example, because when you think about what would be official there, like there’s oftentimes bad news that comes out about a president, or maybe not quite like this, but you know, there are definitely scandals. We’ve had them before, right? And so there would be a strategy. What’s their communications strategy, right, to ensure the American public that this didn’t happen, or whatever it is, whatever the argument. So that the argument, because you might be thinking, why is this even arguably official acts? But, you know, strategizing as the communications director with the president about communications to the public, you can see that being official. But as you were just saying, Andrew, if you’re really just talking about, ooh, good thing that came out now and not like back when I was a candidate, that really has nothing to do about, Hope, here’s what you need to say when you go out and talk to the public about this, right?
Andrew Weissmann: Exactly. But that then raises the issue with the first statement. And of course, the statement itself from Donald Trump to Hope Hicks, which is essentially Donald Trump saying, I didn’t know anything about this. Michael did it on his own. That’s exculpatory if you believed it. I mean, it’s hard to say I was prejudiced by putting in evidence that’s exculpatory. The problem is that she also testified, essentially, I didn’t believe a word of it. So you have coming out of Donald Trump’s mouth as sort of a story that she is saying, you know, that’s just not true. I mean, Michael Cohen wasn’t going to, and this is a critical issue. Michael Cohen wasn’t going to have done this on his own. This was something, as I used to say when the trial was going on, there were hundreds and thousands of reasons that he would make sure that Donald Trump knew because he wanted to get repaid because the theory was that he was fronting the money.
Mary McCord: He took out a home equity loan to do it and didn’t tell his wife.
Andrew Weissmann: Exactly. So the argument that Donald Trump makes is even if it’s a lie, the president can have a strategy in terms of what he wants to tell the public about something that would be detrimental to his presidency and he’s going to need to respond to. Even though it’s a personal matter, it’s coming up now that he’s in the role as president, the Supreme Court goes out of its way to say that a president can make official act comments, even about things that are sort of general interest that the presidency doesn’t really have a role in.
Mary McCord: You talked about using the bully pulpit. They specifically talked about that. I think we both agree that will be the biggest issue, serious issue that Judge Merchan is having to consider. There are a bunch of other things though that I think are not serious and this is what I’m going to do because normally our producer when we’re going long does this, like wrap it up, and we ignore her for like a while because we have more things to say, but now we’re going to start talking really fast.
Andrew Weissmann: We have a wonderful, wonderful producer.
Mary McCord: Yes, we do, we do.
Andrew Weissmann: And for the record.
Mary McCord: But he swings for the fences and the reason I have this up is I have the list from the table of contents of his brief. I’ve read his brief, but then you can see everything. Not only does he challenge the testimony of Hope Hicks as official acts, he challenges the testimony of Madeleine Westerhout, who really kind of was like the person who was outside of his office. It was important testimony just because it kind of positioned. It was contextual testimony. It sort of positioned him in the White House, how he would talk to people, what his practices were, how he would make phone calls, things like that. But it really was not anywhere near like Hope Hicks is, I think, in terms of its importance to the case.
Andrew Weissmann: Absolutely. But do you want to know what I think the D.A. should argue with respect to Westerhout, who is sort of this person sitting outside of the Oval talking about sort of just practices. Essentially, in the law, it’s called opening the door. If you are a defendant and you raise a topic, you can open the door to the government responding. You can’t raise something and then say, but wait, government, you can’t even respond to it. So in the opening, the statement by Donald Trump’s lawyer, he basically, I’m going to paraphrase it, says the president was too busy as president to be focusing on the invoices. And what was very important was that he signs these checks, a whole bunch of them while he’s president, and attached to the checks are invoices that are false.
And his seeing them would be important evidence because you could see that it did not comport with the underlying facts of what happened. And so in the opening, the defense says he’s running the free world. He’s not going to be focusing on a few scraps of paper and invoices. He’s too busy. And so to me, that’s an argument for opening the door to say, wait a second, we get to put on evidence about the process that he did this. And the fact that one of the arguments the DA made that I thought was really powerful was like, hey, he didn’t even have to sign any of these checks. If these are all personal, he could have had his wife do it. He could have had his sons do it. The fact that he retained this is something he wanted to control, even when the White House tells you just how focused he was on this. We will see whether I’m right or not in two days. I’ve certainly been wrong before.
Mary McCord: I mean, save one of these for last, because I think it’s in a different category. Then he also challenges Trump’s tweets, his Twitter posts. He challenges Trump’s public Federal Election Commission filing, an Ethics in Government Act filing, where he talks about payments made. So what, based on what I read in that footnote, do you think about tweets over social media and a public filing? What did the chief justice say could be introduced? Public records, right? So here you have Mr. Trump’s attorneys coming in and saying, all of these tweets that Mr. Bragg introduced into evidence, those are his use of the bully pulpit. Those are part of his official acts as the president to communicate with the public. Yes, and they’re public. They are public.
So I would certainly argue, if I’m Alvin Bragg, those can come in because those are out there in the public as public records. What Mr. Trump’s attorneys here seem to me to be doing is conflating this notion of immunity for actual prosecution for the official acts with the bar on entering them into evidence. The bar on entering into evidence isn’t an absolute immunity to being prosecuted. And so they’re turning to basically say, those tweets are official acts, can’t introduce them, but that is not what the Supreme Court said. And I would say the same thing about this ethics form. This is a public form that is part of the public record, and it can’t be much more part of the public record than notice of an ambassadorial appointment.
Andrew Weissmann: And just to go back now to the rationale when we talked about what the chief justice was saying as to why official act evidence shouldn’t be allowed, even in an unofficial case, because there’s the risk of undue prejudice that a jury couldn’t hear it. This is like a perfect group for this, because the citizens are made up of everyday people. The idea that you could not differentiate and somehow be categorically prejudiced against the former president because of Hope Hicks’ statements in 2018 versus in 2016, or whether they were tweets that said, I reimbursed, or a public form that said, I reimbursed. I mean, it proves to me just the absolute sort of lunacy of saying that a jury categorically could not hear this evidence. And I think when you start looking at the actual evidence that gets introduced, and so here we sort of have this great case study, it really belies the rationale that was used by the five justices in the majority as to why it shouldn’t come in.
Mary McCord: The last one I think that’s worth talking about, last argument, is there was evidence that after Michael Cohen got into trouble criminally while Donald Trump was president, when this and other things like his lying to Congress came to light, he was contacted, and you may recall this from the trial, by an attorney, Robert Costello, who was urging Cohen to fight these charges, not to cooperate, and was sending signals because he had close ties to Rudy Giuliani, who of course had the former president’s ear, and he was saying things like, if there are things that you need, that you want, you should let me know so that I can convey that to the friend who may be able to do something about that. This essentially was dangling, you know, pardons out there. And this is where I really think this motion, you know, really is bold. They’re basically saying, pardon power, remember pardon power? That’s a presidential power. So this attorney, who is not Donald Trump, telling Cohen, you should, you know, communicate to me what your needs are, and I’ll communicate them up. They’re saying, that’s an official act.
Now, that’s many steps removed. Now, of course, what Alvin Bragg wanted the jury to, you know, infer from that is that this attorney wouldn’t be saying that if Giuliani hadn’t told him to say that, and Giuliani wouldn’t have said it unless Donald Trump told Giuliani to say it. But still, to put that within official acts, this communication seems to me such an incredible stretch. But that’s what they did in this motion. Rather than kind of like spend almost all of the ink arguing hard about Hope Hicks, this is like the spaghetti at the wall, like everything basically is official acts.
And to me, it takes away from the credibility of the real issue there. And the last comment I’ll make about this is, Andrew mentioned sort of harmless error. This motion starts from the prospect that you can’t even apply a harmless error test, that this is structural error that is automatic reversal. And so if you’re wondering, well, what is structural error? The best example is, first of all, it’s exceedingly rare that the Supreme Court holds that anything is a structural error that requires a reversal without even considering whether it’s harmless. And the classic example is someone who is made to go to trial without an attorney. Gideon v. Wainwright, the case where the Supreme Court held that criminal defendants have a right to an attorney and to counsel throughout their criminal trial.
And so there’s no way you can fix that on harmlessness because it was from the very beginning of the case to the very end of the case, the person had no attorney. That’s structural error. These evidentiary issues, these are not structural error. And it may be they’d be reviewed for harmlessness beyond a reasonable doubt because the immunity, at least according to the Supreme Court, derives from constitutional principles. But still, there will be that opportunity to argue harmlessness, which for many of these things, I think would be an easy argument. Hope Hicks, a more challenging argument, but not impossible.
Andrew Weissmann: So expect a decision on this on September 6th from Judge Merchan and he could hold a factual hearing, which looks like if it did happen, it would be a few weeks later than that. He also could just deny it outright using many of the arguments that we just talked about, in which case the sentencing of the Republican nominee, can’t believe I’m saying that, will happen in mid-September. Then as a defendant, he has every right to appeal it within the New York system. And then we expect he would try to go as quickly as possible to the Supreme Court of the United States, which has proved to be a friendly venue.
Unknown: Thank you both very, very much. We really appreciate it.
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Andrew Weissmann: Thanks so much for listening. We’ll be back next week. And it was really fun to present this from our live discussion in Highlands in North Carolina. Remember to send us a question you can leave us a voicemail at 917-342-2934. Or you can e-mail us at prosecutingtrumpquestions@nbcuni.com.
Mary McCord: This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineers are Catherine Anderson and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC.
Andrew Weissmann: Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.