Last week, the DC election interference case inched forward, as Judge Tanya Chutkan approved the public release of Jack Smith’s redacted source documents that helped frame his already public immunity briefing. But she also agreed to stay that release until October 17th, as Trump’s legal team decides if they want to seek an appeal. MSNBC legal analysts Mary McCord and Andrew Weissmann walk through how that scenario might play out, and why it could become a moot point after Thursday. Then, they take aim at critics who’ve been publicly decrying the release of the government’s immunity briefing, by pointing out that the DOJ’s “60-day rule” is not a law, and that the guidance is for new matters, not for cases that have already been charged. And before wrapping up, Andrew and Mary give their read on the disturbing politicization of FEMA’s disaster response and answer a few listener questions.
Further Reading: As Andrew mentioned, here is his piece, co-authored with Ryan Goodman, on Just Security: Refuting the Latest Baseless Attacks Against Special Counsel Jack Smith.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, and welcome back to “Prosecuting Donald Trump.” It is Tuesday morning, and it’s October 15th. I’m Andrew Weissmann, and I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew. We are not going to say anything about being early because we got roasted last week after calling 8:30 early. So we are here in the very midmorning, bright sunshine of 8:30 AM, rip-roaring, ready to go, because we’ve been up for hours, right?
Andrew Weissmann: Yes, exactly. This inveterate New Yorker has been up since 6:00 AM, and 6:00 AM is a normal time. This is all making up for last week.
Mary McCord: That’s right. Of course. Yes.
Andrew Weissmann: Okay. So without further ado, what’s on our docket?
Mary McCord: Yes. So we are going to give an update, of course, of what’s going on in the January 6th case, a stay of the release of the redacted appendix with exhibits so that Donald Trump can take some action, not sure exactly what, to seek higher review of that. We will talk a little bit to take on, frankly, some of the critics of the filing of the immunity motion, who suggest that that might violate DOJ’s policy.
We may, if we have time, hit a little bit on an issue that I know is very important to both of us, which has to do with disinformation that can lead to political violence and particularly disinformation related to the federal government’s response to Hurricane Helene, the disasters in North Carolina, and how disinformation is fueling threats. And with our proximity to the election, these are things that are very dangerous. And we will come to some listener questions as well. So a lot to get to, and let’s get going.
Andrew Weissmann: I have to say the FEMA stories that have come out falls into the category of what has happened to this country.
Mary McCord: Exactly.
Andrew Weissmann: I mean, it’s one of those things where I know that people talk about Earth One and Earth Two. But, like, is there no bottom? Anyway, so that you can tell —
Mary McCord: Who can tell?
Andrew Weissmann: — it’s like triggering —
Mary McCord: Yes. Total trigger.
Andrew Weissmann: I’m keeping it under control. So let’s talk about the D.C. case and what happened there.
Mary McCord: Although, are we supposed to talk about our exciting news first? I forgot and —
Andrew Weissmann: Oh.
Mary McCord: — I was jumping right over that.
Andrew Weissmann: You’re right. So I mentioned this in the show last week because we had just heard, but —
Mary McCord: After we finished recording, I think, is when we heard about it, right? So you just jumped back on to record.
Andrew Weissmann: Yeah. So there are two days left to vote, and our podcast, as well as another MSNBC podcast, “Into America,” both of them, in different categories, have been nominated for a Signal Listener’s Choice Award. So if you want to vote, you still have two days to do that, and we’ll put a link in the show notes.
And for those people who have voted, Mary and I thank you very, very much. It’s so great to know that there are people who really appreciate what we’ve been doing. And actually, you know, we get such great feedback from you, including the listener questions that we’re going to turn to at the end of the show today.
Mary McCord: Great. So thanks again to everyone for voting for us.
Andrew Weissmann: Okay. D.C., so maybe I’ll just set the table and then turn it over to, Mary, for your substantive take.
Mary McCord: Sure.
Andrew Weissmann: But there’s sort of two things that happened. People will remember this is like, you know, the last episode of like a Dickens’ novel, which is actually not a bad reference because you could imagine this case is a little bit like “Bleak House.”
Mary McCord: Oh, gosh.
Andrew Weissmann: And our listeners are so good that they’re going to be like, exactly, I’ve been saying this forever. So in the next installment of “Bleak House” in D.C., Jack Smith had filed two things. He had filed a brief and he had filed an appendix. There had been litigation about what should or should not be redacted before the brief was filed. We know all of that. That’s all happened in the brief with redaction is out.
Notably, Donald Trump, when he put in his objections, didn’t say, please stay your decision, Judge Chutkan so I can see a possible appellate review. So that’s all been decided and done. But there is an appendix, which is all of the substantive backup for what is in the brief and obviously more, and Jack Smith proposed redactions for that, and Donald Trump put in some kind of opposition. All of that is something that we haven’t seen yet. But apparently, he did say, whatever you do, Judge, please build in some time because we may want to seek an appeal.
So that’s sort of the state of play. Mary, what’s your take on all of that?
Mary McCord: Yeah. It’s really interesting because, like you said, when Trump opposed Jack Smith’s filing on the public record of the redacted version of the immunity motion, he didn’t seek that stay. And when Judge Chutkan denied his opposition to it, she then directed the clerk’s office to make it posted immediately. And that’s, of course, the brief that we talked about last week.
The appendix consists of, and we know this from Jack Smith’s filing, seeking to file both a redacted version and an unredacted version. An unredacted version, of course, for the court and for Mr. Trump’s attorneys, and a redacted version for the public record. He made clear that that appendix consisted of four exhibits, because they each had an exhibit number. And he did say that slightly differently than the way he had proposed redactions for the brief, the brief we talked about last week. Here, he was going to fully redact material that had been non-publicly available, sensitive material.
So in the brief we talked about last week, he redacted the names of people who had given interviews or testified in the grand jury, unless their names were already in the superseding indictment. Never mind that many people have spent time kind of matching up those redacted names with the real names and it could be figured out, right?
Andrew Weissmann: By the way, I’m going to do a plug for my NYU colleagues —
Mary McCord: Yes, do a plug.
Andrew Weissmann: — “Just Security,” which is a legal forum. Adam Klasfeld and Ryan Goodman have already put out, if you go to “Just Security,” if you want to see I won’t really say speculation, I’ll say they’re educated annotated brief has all of the names that they have been able to figure out.
Mary McCord: That’s right. And then you’ll remember from that brief, he also redacted in the footnotes, the specific grand jury testimony, witness interview, whatever the source, but he did not redact substance. So if there were quotes or things, those were there.
He has proposed in the appendix with the four exhibits to actually redact the non-public sensitive information in full, and even some public information if, for example, it is a tweet or something like that, that named a person as a target. So this is interesting to me that he has two different sort of approaches. And it does suggest to me that the appendix is more sensitive and that’s why he’s redacting more.
But even with these further redactions, Donald Trump is opposed to publicizing this redacted version. In fact, he says, and I’m just going to read it like I sometimes do, “There should be no further disclosures at this time of the so-called evidence that the Special Counsel’s Office has unlawfully cherry-picked and mischaracterized during early voting in the 2024 presidential election, in connection with an improper presidential immunity filing that has no basis in criminal procedure or judicial precedent.” He goes on for a whole paragraph to complain again for the umpteenth time that these things should not be coming out on the public record at this time.
He then says that if the court decides to release additional information related to the office’s filing in the appendix or otherwise, President Trump respectfully requests that the court stay that determination for what he calls a reasonable period of time, so that President Trump can evaluate litigation options relating to the disclosure.
Well, of course, as we are now getting accustomed to Judge Chutkan wasted no time in ruling on this and does say that she did issue her order on the 10th of October, today is the 15th, saying that she agrees with the proposed redactions of the special counsel, that the defendant, that is Mr. Trump, has identified no specific substantive objections to any particular proposed redactions, and instead maintains sort of these overall objections that he has already put on the record multiple times.
And so, the court determined that the government’s proposed redactions were appropriate and that defendant’s blanket objections are without merit, and has decided she will release this publicly. However, in accordance with Mr. Trump’s request, she is granting the request for a stay so that he can evaluate litigation options and stays the decision for seven days. That means until October 17th, which is Thursday.
So those litigation options, interesting because normally something like this would not be appealable interlocutorily, meaning in the middle of pretrial matters. We talked a couple of weeks ago about the possibility of a petition for writ of mandamus. But I do wonder and I’m interested in what you think about this, Andrew, whether Trump will try to argue this is appealable even as an interlocutory matter, because this is still all about immunity, which is one of these threshold issues that has to be determined in advance of trial. What are your thoughts?
Andrew Weissmann: I think two things. One, I think the one thing that’s clear is that there was commonly what’s known in the legal business as a screw-up in connection with the first litigation for the brief because, clearly, Donald Trump should have asked for that stay.
Mary McCord: Done the same thing. Yeah.
Andrew Weissmann: And this shows that he learned from that. So that was just a mistake. And you know what, I make mistakes all the time and I’ve made mistakes in big cases. So I kind of feel like, you know, there but for the grace of God go I.
But getting to the substance, he is going to make all the arguments that you said, you know, when he is going to say that because this is part of immunity, that I can do this as an appeal. But alternatively, I’ll do it as a writ of mandamus. You know, as we’ve talked about, that’s a harder standard. But essentially, it’s going to be to try and delay this because he’s going to try and seek stay from the Circuit Court, because he’s gotten this seven-day delay from Judge Chutkan. But he can now go to the Circuit Court and ask for delay while he hears this.
You know, this is a pretty mundane issue. But, you know, depending on what panel he gets that’ll be weighing in on this issue, when they’re about to address on should there be something that’s filed publicly during this period, in the run up to the election? And Donald Trump is wrong, but claim nevertheless that it would constitute election interference and should not be made. So I see him with sort of like, there’s no reason not to. And again, it would not be bad faith. So, you know, as defense counsel, I think they’ll make all of those arguments.
Mary McCord: Yes, I totally agree. And just so listeners are aware how this could cause the delay, because he has until Thursday to do something or else the redacted appendix will be released. So on Thursday, I would expect him to move in the D.C. Circuit, first of all, note an appeal, which you would note that appeal in the district court; file in the circuit, an additional motion for a stay to essentially stay then the release of the redacted version while he briefs and while the D.C. Circuit decides.
Now, they could deny that. But typically, they will at least grant an administrative stay while he gets his papers on file, and then decide whether to stay the decision below during the entire briefing. And decision of the D.C. Circuit where they’ll say, now, you know, we’re not going to stay it, but you can brief it. Now, this is the kind of situation though, that if they don’t stay it, it becomes water under the bridge, right? Spilled milk. Because once the redacted version is made public, you can’t undo that.
Andrew Weissmann: Yeah.
Mary McCord: And so, I would expect that, like I said, they will grant an administrative state. They then may grant a longer stay, and then they may take briefing. They may even take arguments. So you could see that this could extend for many weeks, if not a month. This is exactly what happened when he originally appealed the immunity decision.
It could also be, though, that the circuit would act very, very quickly. They might even say that just based on the motion for a stay, but they don’t think there’s merit to this and they’re going to deny it, and thereby sort of moot out further argument. It just remains to be seen. And like you say, it could change very much depending on the panel that he draws, because the circuit is made up of many judges, but when a motion gets filed, just like when an appeal gets filed, a panel of three judges makes the decision on that.
Andrew Weissmann: You see, the other thing that occurred since we last spoke, Mary, is Donald Trump asked for and made a motion for more time to respond to the brief. That brief that —
Mary McCord: That’s right.
Andrew Weissmann: — we’ve now seen yet redacted, but we’ve seen the brief. Initially, that schedule had Donald Trump responding to that brief before the general election. And actually, he had a few weeks from Judge Chutkan. And he asked for Judge Chutkan to put the brief off, and Judge Chutkan granted that and gave him until November 7th, so after the general election, and that’s something that Donald Trump wanted.
I find that sort of fascinating because this is like you’re having your cake and eating it too, which is he says, oh, this is spurious allegations and it’s false. And if you remember, months and months ago, Donald Trump publicly said he has dispositive evidence that he is not guilty. And then he canceled the press conference where he was going to reveal that, saying his lawyers wanted him to save it for court.
And so, this was his opportunity. If he thought that Jack Smith said things that were wrong, he had a court deadline he could have met. He could still publicly reveal all of that information. Instead of dealing with the facts as opposed to —
Mary McCord: Right.
Andrew Weissmann: — labels, he has said, I’m going to continue publicly saying it’s wrong, but I’m not actually going to file anything, because now he has been given more time. And by the way, it’s a sign of Judge Chutkan that she is not rushing to judgment. She is not trying to sort of impose deadlines that he couldn’t possibly meet. He asked for more time and she gave it.
Mary McCord: Yeah. Because his brief would’ve been due this Thursday, in two days, right?
Andrew Weissmann: Yeah.
Mary McCord: With ample time for him to get his side of the story out there with respect to the immunity determinations. Now, mind you, the argument there is, again, back to whether the allegations in the indictment are things that reflect official conduct for which he is at least presumptively immune or unofficial conduct for which he can be prosecuted.
So to a certain extent, Mr. Trump, in responding, has to kind of like assume the truth of the allegations for purposes of arguing, whether they represent official conduct or not. And so, that could potentially have been why they thought, you know, this might not be helpful, as a political matter, to file this before the election. I don’t know. I mean, I think they would’ve done exactly, like you said, try to refute factually the things. But the briefing is really about, these are the allegations in the indictment, are these official or unofficial? Your time to refute the truth of them comes when you go to trial. So —
Andrew Weissmann: Yeah.
Mary McCord: — an important distinction there, and that could have factored into their thinking.
Andrew Weissmann: Yeah. I mean, it could have. I think that, in fact, they would’ve just said whatever they wanted to say anyway —
Mary McCord: Yes. That’s right.
Andrew Weissmann: — because that’s what they been doing.
Mary McCord: That’s what they do.
Andrew Weissmann: They’ve been admonished about that. But I think they just didn’t want to call any more attention to this case, whatsoever.
Mary McCord: Yeah.
Andrew Weissmann: And so if they filed anything, it was just going to be a day of more attention —
Mary McCord: Yep.
Andrew Weissmann: — to a case where he is under criminal indictment. Remember, the Republican nominee for president, actually, has been found guilty in the one case that has gone to trial. And so, this would just put that back on the radar screen. So he has removed that with court permission, but not had to address the facts.
Do you think this is probably a really good segue to take a break? And —
Mary McCord: It is.
Andrew Weissmann: — there are two commentators, in particular, who have sort of chimed in, saying that Donald Trump has claimed that the whole case is election interference. And we’re going to talk about our views with respect to the claim that’s being made, that Jack Smith should not have filed his brief publicly and the allegation that it violates DOJ policy or guideline. We briefly talked about this last week, but I know, Mary, you and I —
Mary McCord: Right.
Andrew Weissmann: — had a lot to say about this. I’m going to do one last plug just before we take a break, which is Ryan Goodman, a professor at NYU, who I teach with, he and I wrote a piece that’s coming out today in “Just Security.” We’ll put a link in for that. I know, Mary, you have thought about this a lot. And I’d say because both of us have worked at the Department of Justice for so long, it really sort of stuck in our craw. Is that the expression?
Mary McCord: Yeah. It’s like now we’re talking about my house. So now —
Andrew Weissmann: Right.
Mary McCord: — we have something to say. So let’s talk about our house when we come back from the break.
Andrew Weissmann: Great.
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Mary McCord: Well, welcome back. As promised, Andrew and I want to talk a little bit in response to also former DOJ officials, a former federal prosecutor and a former official from the Office of Legal Counsel, who did write pieces that they published recently, criticizing Jack Smith for this immunity filing, the filing that we spent last week, talking about the filing that we’ve been talking about, that goes through, in details, the allegations in the indictment, the allegations and the evidence to support those allegations. Because the Supreme Court said the trial judge has to make immunity determinations at the outset and this was the result of that.
Their arguments essentially are that this violates Department of Justice policy and the so-called 60-day rule. And in some cases, I think particularly with respect to one commentator suggested, even supported this notion that this is election interference, although not necessarily using those exact words.
So just to kick us off, I want to remind listeners of what those DOJ policies are. You know, this policy appears in two different places. One is in the justice manual. This is a manual that is the guidance for all federal prosecutors and DOJ attorneys. And also, every single election year, the attorney general puts out a memo that repeats this guidance, and Merrick Garland did that in June of this year, and also adds additional specific election year sensitivities. So the policy says that prosecutors, and this is a quote, “may never select the timing of any action, including investigative steps, criminal charges or statements for the purpose of affecting any election or for the purpose of giving an advantage or disadvantage to any candidate or political party.” And I do think the use of the term “purpose” there is important.
Andrew Weissmann: Key. It’s absolutely key.
Mary McCord: Yes, absolutely key. The second thing, though, that is out there, that is not an official DOJ policy, is more of a rule of thumb, but gets mischaracterized all of the time out there by the media and by commentators, et cetera, is this 60-day rule. So there is no 60-day rule. There is a norm, which I think of as really a way of sort of implementing that other policy, but even being broader than that other policy, because this would say, look, even if you’re not doing something for the purpose of affecting an election, or for the purpose of giving an advantage or disadvantage to a particular candidate or a party, you need to exercise caution when you get within 60 days of an election, because it could give the appearance of trying to affect the election, right? And so that’s what the 60-day rule is.
It’s guidance for prosecutors to seek, where possible, to avoid public disclosure of investigative steps related to electoral matters, or the return of indictments against a candidate for office within 60 days of a primary or general election. And that’s something that has even been recognized, for example, by the Department of Justice Inspector General Michael Horowitz, when he was reviewing, back before the 2016 election, statements made by the former FBI Director Jim Comey about reopening an investigation into Hillary Clinton’s emails. And he did these just days before the election and was heavily, heavily criticized for that. In fact, I would pile on to that criticism for that, so.
Andrew Weissmann: You and me both.
Mary McCord: Yes. And of course, you know, being part of the Mueller investigative team, all of these issues are things that I know, that itself wasn’t really part of that investigation, but still the whole picture of what was going on in 2016 was something you spent a lot of time with, Andrew. So why don’t you talk to us about the position? And then I can maybe respond that you and Ryan took in your piece today, trying to sort of respond to these other commentators who’ve suggested that this filing in federal court based on the court’s scheduling order was a violation of that DOJ policy.
Andrew Weissmann: So we did just what you did, Mary, which is we started with what the DOJ policy is. By the way, this is not law. These are internal policies, and so they don’t give rights to a defendant. But that’s not the end-all and be-all if the criticism is that there was a violation of those internal rules.
And let’s start with the 60-day rule. The attorney general of the United States already gave a televised interview at the beginning of this year, where he said it does not apply in cases where there’s already been an indictment, where everything is in open court. It applies when there is, for instance, a covert, a secret investigation, and you make information overt about it. Like, you do a very public search, or you were to give a press conference and start giving allegations about somebody who has not been charged. That’s when it would apply.
Not only did the attorney general say that, but the Jack Smith team was asked about this by Judge Aileen Cannon and she asked whether the department was in compliance with that rule. And Jack Smith and his team said that they already consulted with the Public Integrity Section, which is a section in the Department of Justice that oversees the policy, and that they were in full compliance and noted that it doesn’t apply. I’m going to give a quote. They said, and this is a quote from them to the judge, “The 60-day rule,” quote, “does not apply to cases that have already been charged, that are being litigated,” unquote.
So the other is that two of the former heads of the Public Integrity Section are on the special counsel team. Jack Smith himself was the head of the Public Integrity Section. And so they know the rule very well, and they have noted that they are in full compliance with that rule.
So the 60-day rule is just kind of a red herring.
And then the other rule, which is just not to do something with the purpose of affecting the election, that’s one where I don’t understand how critics have been able to divine and know what the purpose is of Jack Smith in filing this brief and how they can say that they know that the purpose was done for purpose A and not purpose B. And there’s so many valid legitimate purposes to have filed this. Just to start with, Mary, you pointed out that this case was one that was sent back to the district judge, to go ahead and make these findings. And so they can file this in order to effectuate the Supreme Court’s ruling.
The district judge has said over and over again that she, by the way, set the schedule, not Jack Smith. Jack Smith actually deferred to her as to when everything would be filed, and she set what should happen. She has said that the election is not something that she is going to take into account. So that’s her decision that the government is deferring to. And so they have every interest in just complying with the district court decision, let alone the Supreme Court decision.
And finally, Jack Smith has an interest in seeing that trials are carried out in a speedy way. As we’ve talked about, the public has a right to a speedy trial. The leading Supreme Court case on this decided a unanimous decision written by Justice Alito, is that the public has a right to a speedy trial. So they have every interest in the case going forward quickly.
So all of that are reasons that are completely anodyne for why Jack Smith would be filing his brief at the timetable given to him by a court, and wouldn’t be doing this with some nefarious purpose. As I said, I just don’t see how somebody can jump to that conclusion and suggest that they know that it’s nefarious when you have so many completely legitimate reasons on the other side of the equation.
Mary McCord: Yes, totally agree. And I would just make two points to sort of emphasize things you’ve already mentioned. One is just to go back to the Supreme Court and what it said in terms of what was supposed to happen on remand. And remand is just, you know, the legal word for saying we’re sending the case back down to the lower courts. And these are quotes, the Supreme Court instructed, I’ll tell you when it’s a quote, instructed the district court to examine each of the government’s allegations on remand to determine, quote, “in the first instance,” unquote, whether the alleged conduct was official or unofficial. And if official, whether the government could rebut the presumption of immunity. Remember, that’s part of also what the lower court has to do.
The majority also directed the district court to engage in a, quote, “back-bound analysis,” quote, “with the benefit of briefing,” unquote, by the parties and ruled that the questions of immunity, quote, “must be addressed at the outset of the proceeding,” unquote. So basically, when this went back down to the lower court, Judge Chutkan did exactly what every lower court always does when they get a case on the remand. They read the opinion. They’re like, okay, here are my marching orders. Have briefing by the parties, engage in a fact-bound analysis at the outset of the proceeding, and determine in the first instance, whether the conduct alleged is official or unofficial. And if official, whether the presumption can be rebutted.
That’s exactly what she’s doing. She set that scheduling orders. So to your point about for the purpose of, you know, it’s hard to see how the purpose could be anything other than complying with that order. Not only Judge Chutkan scheduling order, but the directions at the Supreme Court.
Next point, it really would’ve been unusual in these criticisms, this notion that Jack Smith should have said, wait, wait, wait, Judge Chutkan, no, we should not have to file anything and should not file anything until after the election, because we wouldn’t want to be doing anything that is putting, you know, a thumb on the scale of the election. It would be highly unusual for the government to come in and to seek after it has been told by the Supreme Court, what it has to do and what the trial court has to do.
It would be highly unusual for the government to say, nope, put that off for what really would end up being five months from the Supreme Court’s ruling, July 1st ruling. If we’re waiting until after November 5th, months and months and months, put this off until that much later in an ongoing case.
And when you think about it, it also would be highly unusual for a trial judge to say, I’m going to put everything off in an ongoing case. Because when you really think about it, if that’s the way this should work, it’s tantamount to saying any person who’s a defendant in criminal case can just say, I’m going to run for election now. And that’s going to prohibit all proceedings in that case, prohibit them until after the election. You know, that concept, taken to its logical conclusion, really just flips on its head the very purpose of criminal prosecution as a means of accountability and divorced from, separate from politics, right? And as Judge Chutkan has said multiple times, the political concerns here are not the concerns that are legally cognizable in court, the timing of this.
Andrew Weissmann: Yeah.
Mary McCord: So it might be different if we were talking about gag orders. Remember, I just wanted to throw that out there because back a year ago, more than a year ago, when the issue was the gag order, there was some discussion then, there’s some case laws, I guess I should say, that would suggest when you’re right up upon an election, you’ve got to be very careful about what you’re limiting a candidate from saying. And Judge Chutkan even took that into consideration way back in, you know, the fall of 2023, when she was ruling on the gag order. But this is not talking about a gag order. This is just talking about proceeding with a prosecution and doing so after getting direction from the Supreme Court.
Andrew Weissmann: And this is a case where, frankly, to put it off, could be viewed as putting your thumb on the scale the other way. In other words —
Mary McCord: Yeah.
Andrew Weissmann: — you’d be doing it to avoid putting out facts. And you could imagine this is like you’re damned if you do, or you’re damned if you don’t. And to be clear, the whole idea is that in this situation, both sides would have an opportunity to put in the record whatever they wanted to put in the record. It’s Donald Trump, as we noted, who’s decided he wanted to put off his response. But she set a schedule that gave him ample time to respond to whatever it is that Jack Smith said.
So, to me, it is surprising to see those criticisms. I should just point out that the other thing, and I’ll give Ryan Goodman the credit for this, is that the two commentators that we’re talking about as we note in our piece, and people can get the details, both have taken positions in the past that are quite at odds with their current position. One, just several months ago, about what the import (ph) of the 60-day rule is and that it doesn’t apply in this situation, which is in keeping with what Attorney General Garland and Jack Smith said, and the Public Integrity Section said.
And the other was taking a very different position when they were talking about what Bill Barr could do and his ability to basically ignore internal DOJ rules and the vast discretion he has. And so, there is an oddity to even how they’re currently applying these rules. That being said, obviously, people are entitled to change their minds and have a different view. But we do note those differences.
Mary McCord: Yeah.
Andrew Weissmann: So Mary, is it time for listener questions after a break?
Mary McCord: Take a break. I do want to talk for a minute or two about the FEMA thing we raised at the top.
Andrew Weissmann: Yes.
Mary McCord: And then we’ll move on to listener questions. Let’s do it. Great.
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Andrew Weissmann: Hey, Mary, welcome back. So do you want to talk to us a little bit about what’s going on with respect to FEMA? And then we’ll turn to some really great questions we got.
Mary McCord: Yes. And I know this is a podcast called “Prosecuting Donald Trump,” but as listeners know, we sometimes do talk about things that are related. And the reason this is related, because this will probably not be a surprise to anybody, a lot of the false statements that are being told about FEMA and the government’s disaster relief efforts as a result of Hurricane Helene, particularly in Western North Carolina which was hit so, so very hard by the hurricane, that is still very much in a recovery mode and it’s going to go on for a very long time.
Many of the things that are being said are being said by Donald Trump himself. I mean, just in the last few days, he said, I think he even used the word “billion” with a B, a billion dollars that FEMA has spent on housing, for illegal immigrants, as opposed to using that money for disaster relief. That is just false. DHS and FEMA officials and other governmental officials, both the federal government and the state government have been clear that FEMA disaster relief money has its own bucket of money. And even though they are going to need more money for disaster relief and Congress will probably appropriate more money, none of that money for disaster relief has gone to housing for migrants.
It’s just false, but what it has done, it has generated a lot of threats against FEMA employees and other government officials who are trying to aid in disaster relief in North Carolina right now, so much so that there was an arrest over the weekend of a man who was armed, who was making threats against FEMA officials. There have been unlawful and unauthorized paramilitary organizations who’ve been coming into town.
Now, I will say to their credit, they are bringing their chainsaws. They are helping cut up trees. They are helping people, but they’re doing that very much for their own purposes. They’re taking videos of themselves helping, and then they are posting these immediately to social media and to other platforms, and using that to say, the government is not here. The government is not doing their job, repeating the falsehoods about FEMA money and disaster relief, and then seeking to fundraise on their own, right?
So they are basically grifting off of this tragedy. And even though, of course, the help of neighbors helping neighbors, you know, if you have the means to help clear debris and rebuild and things like that, provide food, water, gas, et cetera, all of that is so important, but it shouldn’t be an opportunity for opportunists to make money off of others and certainly not to spread falsehoods about government assistance.
And so, one reason I wanted to bring this up is because I worry given our proximity to the elections and the fact that we already know the North Carolina Board of Elections is taking action to try to make sure that people in the affected areas, whose polling places and early voting places may have been, you know, destroyed or not able to open yet. The state is taking action to make sure that everyone in affected area will be able to vote and will be able to have places where they can go for early voting, be able to use mail-in voting, be able to actually go on election day to vote.
But when you start seeing this swirl of disinformation and outright lies about the government, even with respect to disaster relief, you can easily see that bleeding right over into lies about the election, and fraud in the election and election integrity and et cetera, et cetera, et cetera. So I am worried because it passed this prologue. We’ve seen this movie before, maybe not with a hurricane, but we’ve seen this movie before and sort of seeding doubt in the results of the election. We saw it in 2020, and that’s what ultimately led the former president to double down on that and led to January 6th.
So I’m not trying to be hyperbolic here, but I’m very, very concerned about the lies coming out of Western North Carolina lives told by people in positions of power and privilege, such as the former president, that are really stoking a very dangerous situation. And I want to encourage everyone in the area to seek reliable information from their government officials and feel comfortable that they will be able to vote and their votes will be counted.
Andrew Weissmann: I couldn’t say that any better. And it is so much a reflection of sort of a new normal that’s been created. And it’s great to have healthy debate about policies, or even if you think that facts are, you know, being misstated and unwarranted, but this idea of just disseminating false information and passing it off, you know, the counterfeit off as true, or what is the Gilbert and Sullivan line, masquerading skim milk as cream. It’s one that is the problem of our time —
Mary McCord: Yeah.
Andrew Weissmann: — and that people are not taking seriously. So Mary, thank you so much for raising that. And it’s hard to have to go to our listener questions, but we got really great ones. And do you want to field the first one on the Logan Act?
Mary McCord: Sure.
Andrew Weissmann: And it’s from Kate and her husband in Canada. So here’s the question, “We’re aware of the Logan Act and can’t figure out why Trump hasn’t faced charges after his visit with Viktor Orban at Mar-a-Lago. He is no longer president. Isn’t this a violation of the act?” Great question.
Mary McCord: It is. So let’s start with what does the Logan Act say, right? This Logan Act dates to 1798 and it has only been very modestly amended in all these years since then. It prohibits any citizen of the United States, who without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent of a foreign government, with intent to influence the measures or conduct of any foreign government or any officer or agent of a foreign government in relation to any disputes or controversies with the United States, or to defeat the measures of the United States. This is a criminal prohibition that can lead to imprisonment of up to three years.
So what does all that legal inclusion (ph) means? It means when you’re a citizen of the U.S., if you don’t have the permission of the United States, you are not supposed to engage directly with a foreign government about something that we are in dispute with either that foreign government or another foreign government, about something the U.S. is in dispute with, or to try to undermine or defeat measures that the United States is taking.
So this has arisen various times, accusations of this over our history, but it has actually only been charged twice ever, both in the 1800s, and never has there actually been a conviction on this. And in a way that’s because it’s kind of hard to figure out what would be okay and what would not be okay.
Like, it is fine, generally thought to be fine, to speak out maybe to the press or even sometimes to go and meet with officials in a foreign government, to talk about issues of policy, to talk about things like you should release the, you know, people you’re holding as prisoner. But what is illegal here is when there’s actually people without authority who are really trying to undermine the goals and the policies of the U.S. government, and doing so by directly engaging with foreign government.
Historically, the government has been very reluctant to push this charge because it does make some sense that an incoming transition team would want to start reaching out to foreign governments to develop relationships even before they take over. However, that is different than undermining policies at the U.S. So I’m not surprised that there would not be any action taken with respect to Mr. Trump meeting with Viktor Orban. And we, of course, don’t even know the substance of that conversation. We just know that Trump is a big admirer of Orban. But what do you think about that, Andrew?
Andrew Weissmann: So there are lots of examples in our past of people who are running for office taking positions. There are allegations that that happened in connection with the efforts by President Carter to free hostages —
Mary McCord: Right.
Andrew Weissmann: — and allegations that the Republican nominee at that time who hopefully became president, Ronald Reagan, was having backchannel communications. I’m not here to say that did or didn’t happen.
Mary McCord: And that was with respect, so people know, the Iran hostage situation —
Andrew Weissmann: Yes.
Mary McCord: — where so many Americans were held.
Andrew Weissmann: Yep. And then much more documented and you can read Lawrence O’Donnell’s really fabulous book about the 1968 election, and he talks about Richard Nixon, who was the nominee, reaching out to undermine the Paris Peace Talks with respect to Vietnam. So there is a history of this and it’s not the sort of anodyne, oh, an incoming, you know, president-elect reaching out just to have conversations. These are active measures to help get elected.
This is a long way of saying that the questions a really good one, because depending on what the facts are, it can be a violation of the act. But the history of our country is that it has not been enforced in the last hundred years.
Mary McCord: That’s right.
Andrew Weissmann: So while it’s not something you should do, and certainly, you know, as somebody who’s going to be in government, you should not be violating the law, even if it is not something —
Mary McCord: Right.
Andrew Weissmann: — that’s being enforced. So great question, but it basically is something that’s on the books, but unenforced. And that is true of lots of other types of crimes. You could just take a silly example. Marijuana is something that —
Mary McCord: Right. That’s right.
Andrew Weissmann: — the federal government doesn’t really prosecute anymore, but it is on the books federally as being illegal.
Mary McCord: That’s true.
Andrew Weissmann: Should we move on to another question?
Mary McCord: Yes. How about I toss this one to you? This is from Nancy (ph) in New Hampshire.
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Nancy (ph): My question is if the 11th Circuit Court of Appeals were to reverse Judge Cannon’s dismissal of the classified documents case, does the fact that she is now handling the federal prosecution of the assassination plot against Trump in Florida give the 11th Circuit an opening to say, hey, let’s send this classified documents case to a different judge, so you don’t have Trump as both a victim and a defendant on your docket?
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Andrew Weissmann: Great question. That is a really great and interesting question. I mean, the main answer I have is I don’t know whether they would use that. I think that the technical answer is they probably would not because there’s nothing that precludes a judge from handling both of those cases and seeing them both through. Assuming you had a really good sparred experienced judge, they’d be able to do those. And they raised very different issues, and you can be an alleged victim in a case, and also be an alleged defendant, I mean, an actual defendant with allegations —
Mary McCord: Right.
Andrew Weissmann: — and criminal activity that are unrelated to the other case. So I think you could preside over both. The 11th Circuit has ample other reasons to either keep her on the case or to take her off the case. Remember, if they do reverse her, this would be the third time that they have reversed her on the same matter.
Mary McCord: Yes.
Andrew Weissmann: Twice in the investigation of the matter, and now in the actual handling of the matter. And the court, as we’ve talked about, has the authority on its own to remove her. They don’t need a motion from either side. They could ask for briefing on it. But they also can send it back. And I’ve seen in the Second Circuit where, which is where I sort of grew up as a lawyer, where the judges very politely just sort of say at the end of an opinion, yeah, we’re reversing and we’re sending it back to a different judge to be decided on random. Like, what do you think, Mary?
Mary McCord: Yeah, I agree. And I also think that to the extent that people think does this feel kind of like a conflict, that would be a conflict really that Mr. Trump could waive. And, you know, we certainly haven’t seen Mr. Trump or his attorneys go into the 11th Circuit and saying, oh, we think that this is untenable. Of course, they also haven’t filed yet. But that, you know, we think that this is untenable and that, you know, Judge Cannon should be recused. And I think it’s highly unlikely that Donald Trump will seek the recusal of Judge Cannon. So we will see what the 11th Circuit does. But that’s a great question and I’m so glad that our listener asked it.
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Andrew Weissmann: So Mary, really great talking to you.
Mary McCord: Same.
Andrew Weissmann: Thanks everybody for listening. Remember, you can vote for us these last two days. So if you are interested in voting for us or for our colleagues who are also nominated, you can do that, link in the show notes. Remember, you can also subscribe to MSNBC Premium on Apple podcasts if you want to get this show and other MSNBC originals, ad free.
Mary McCord: To send us a question, you can leave us a voicemail at 917-342-2934, or you can email us at prosecutingtrumpquestions@nbcuni.com.
This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Katie Lau. 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.
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