Donald J. Trump, the former president and presumptive 2024 Republican nominee, was found guilty on 34 felony counts of falsifying business records. Veteran prosecutors Andrew Weissmann and Mary McCord reflect on the gravity of the verdict and offer insights into what comes next in terms of sentencing and the appeals process.
Note: This is a rough transcript. Please excuse any typos.
Alvin Bragg: The 12 everyday jurors vowed to make a decision based on the evidence and the law, and the evidence and the law alone. Their deliberations led them to a unanimous conclusion beyond a reasonable doubt that the defendant, Donald J. Trump, is guilty of 34 counts of falsifying business records in the first degree, to conceal a scheme to corrupt the 2016 election.
And while this defendant may be unlike any other in American history, we arrived at this trial and ultimately today at this verdict, in the same manner as every other case that comes through the courtroom doors, by following the facts and the law, and doing so without fear or favor.
Andrew Weissmann: That was the voice of District Attorney Alvin Bragg in the Manhattan District Attorney’s Office here in New York City. Welcome to “Prosecuting Donald Trump.” I’m here with Mary McCord. This is Andrew Weissmann. Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: So I may sound a little subdued, and that’s because of lack of sleep and also I think the gravity of what happened. And so, in that sense, it will be a special edition of “Prosecuting Donald Trump,” where we’re going to talk about what happened yesterday, our big picture thoughts about it, but then also talk about why you’re all here which is really legally what’s next? What will happen in terms of this sentence? What will happen on appeal? What will happen in terms of the gag order that the judge issued? So we’re going to try and get into those details.
But, Mary, what are your thoughts, big picture, before we delve into those intricacies?
Mary McCord: Well, it probably won’t come as a huge surprise that I see this as a real instance of justice prevailing. I mean, you, in many cases, were in the courtroom. I read every page, every word of every transcript of this trial. I thought it was a case that the district attorney did a very, very fine job with. I thought that they presented the evidence in a very cohesive manner, told a compelling story.
I thought that the judge handled it just spectacularly. He was so even-handed. He was so measured. And then we saw jurors, who by all accounts, and you were sometimes in the courtroom, were attentive and engaged constantly, were not bored or fidgety, indeed on the day of closing arguments, stayed till 8:00 p.m. And then they, you know, deliberated, they asked questions.
We thought maybe today we’d be talking about their juror questions and not the verdict, because they did have questions that they asked the judge to have parts of the transcript read back to them. And you could kind of speculate about how they were using those parts of the transcript, what they might be thinking about. A lot of these related to that initial meeting between David Pecker and Michael Cohen and Donald Trump in Trump Tower back in 2015.
And then they rendered their verdict, and they went through a jury poll where each one had to answer, do you agree with the verdict? And they all answered yes. So to me, this is what a well-tried, well-presented case, where there’s proof beyond a reasonable doubt. According to 12 jurors, this is the result you get. So I thought it was an incredible instance of justice being done.
Now, you might notice I haven’t mentioned the gravity of the first president ever of the United States being found guilty. And I say found guilty, not convicted, even though lots of people are using that term, because technically, there’s no conviction till sentencing. But first American president to be found guilty of felonies, and that is very, very monumental. And that is something that every American, no matter what your politics are, should really think long and hard about.
Andrew Weissmann: So one of the things, I think, that’s very useful about this podcast and also the fact that both of us are on air is that, as listeners to this podcast know, we have been talking about the fairness of this trial before we knew what the verdict was. And I think because both of us are so steeped in and I think sort of it’s part of our being, at least for myself, actually I know it’s for you too, that I’d always say like I would speak for myself, but actually I —
Mary McCord: We’ve spent a lot of hours together. Yes.
Andrew Weissmann: Yes, exactly. The reason we were at the Department of Justice is because of the concern about the rule of law, about facts matter, about due process, is that I wanted to make sure that people understood, regardless of what the verdict was, regardless of what the outcome was, one side or the other was going to be disappointed. And I wanted people to understand that this was a fair process, and that you could not set foot into that courtroom and not know that you were in the presence of a great jurist who was completely dispassionate under remarkable circumstances.
If there had been an acquittal, I wanted people to understand that this is what it means to be in America. This is what it means to hold the state to its burden of proof beyond a reasonable doubt. And if a dispassionate set of jurors who are doing their job, determined that, I wanted people not to feel like justice was somehow not served. And we’re now on the flip side of that, where the jury did find that Donald Trump had done that. And we’ll get to, of course, he has rights to appeal and there’ll be a sentencing and all of that, and that’s part of our system.
And so, one of the most disheartening things that I thought was emblematic, and sorry, Mary, it’s sort of going to be my big picture.
Mary McCord: Yeah.
Andrew Weissmann: It’s hard not to think about sort of what it means for the country. I thought that Alvin Bragg and Donald Trump yesterday embodied where we are as a country. You had the first black district attorney in Manhattan. He has long history of being a career prosecutor. Of course, he’s now in an elected position, who would be described by Donald Trump as the deep state.
But, in fact, he’s a committed member of law enforcement to do equal justice under law, who had been a federal prosecutor and a state prosecutor, and who gave a press conference that was understated, humble, respectful, where his comment, which I just thought was so emblematic of who he is and what our country should stand for, where he said, I did my job.
Mary McCord: Should we hear that directly from him, Andrew?
Andrew Weissmann: Yeah.
Alvin Bragg: I did my job. Our job is to follow the facts and the law without fear or favor, and that’s exactly what we did here. What I feel is gratitude to work alongside phenomenal public servants who do that each and every day. We did our job. Many voices out there, the only voice that matters is the voice of the jury, and the jury has spoken.
Andrew Weissmann: So that was sort of on one hand, you had him saying, I did my job. And frankly, he did his job. His team did their job. The jurors did their job. The witnesses did their job for the prosecution, and the judge did his job, and they all did it without fear or favor. And they took their oath seriously, and they did something that people keep sort of not understanding, they act out of principle, which is really lost. They’re not transactional players.
They act out of principle. And that’s something that I think to my dying breath, I think is part of the best of America, and I think it’s something that is completely apolitical. And I would never in a million years think, oh, that’s only something that Democrats have, or Republicans have. It’s completely apolitical to whether people understand that. I’m not going to repeat this anecdote, Mary, but that is why you can have a MAGA Republican on a jury and they can find someone guilty.
Mary McCord: That’s right.
Andrew Weissmann: It has nothing to do with it. People put that aside. And it is so fundamentally disrespectful of the rule of law and citizens, average citizens, for people who did not follow the case to suddenly be going down this rabbit hole of authoritarianism to say this is a kangaroo court and we disagree not just with the result, but that this is a sham and injustice. When what you’re really saying is we do not believe in the rule of law, and we are not actually going to respect average people who have made this decision. I mean, these are 12 citizens.
Mary McCord: And let’s be clear, you can’t really just confine those kind of comments to this case because these are attacks on the judiciary as a whole and our entire judicial system. And we’ve talked about this in the past because these attacks are coming not only from Mr. Trump, but his allies.
And with respect to all of the cases, the federal cases brought by the special counsel, state cases, the one here, of course, in New York and the one in Georgia. there were attacks on the civil cases brought against him by E. Jean Carroll and by the Attorney General of New York, Letitia James. And there’s been even attacks on the Supreme Court by Mr. Trump, notwithstanding that he got to put three justices on that court, and they’ve certainly issued some opinions that he finds very favorable.
So all of these things, calling judges corrupt, calling trials rigged, this undermines the entire justice system, not just this one case. And I think that’s why you’re starting to see judges speaking out and litigators on both the prosecution and the defense side sort of speaking out about the need to sustain the faith in the integrity of the system when it’s under this kind of attack from people with self-interest.
Andrew Weissmann: And the other is for the people who are going down this authoritarian route, I would ask them, have you spent any time looking at the actual evidence?
Mary McCord: Right.
Andrew Weissmann: That facts matter. David Pecker was not cross-examined in any meaningful way. He was largely accepted by Donald Trump. This is an ally of Donald Trump to this day, the most damning evidence. Hope Hicks, damning evidence.
Mary McCord: Right.
Andrew Weissmann: Jeff McConney, damning evidence.
Mary McCord: Right.
Andrew Weissmann: What do those people have in common? They’re allies and friends, and closely worked with Donald Trump.
Mary McCord: And did not want to be there. I mean, they did their duty. They were there under subpoena. They testified. You know, they took an oath to testify truthfully. People will recall Hope Hicks breaking down into tears and she was not the only one. You know, they didn’t really want to be doing this, but —
Andrew Weissmann: Yep.
Mary McCord: — they were participating in the system. So this kind of comments really reject all of that.
Andrew Weissmann: And then, obviously, Donald Trump, as a defendant in a criminal case, is not required to do anything and he is not required to testify. But, and this is an important but, in the court of public opinion, when he says, I was denied a fair trial. They never heard my story. No, no, no. You don’t get to say that.
Mary McCord: Yep.
Andrew Weissmann: You had a right to testify. You decided not to testify. You wanted the jury to hear what you had to say? Hop on the frigging stand.
Mary McCord: That’s right. And do it under oath.
Andrew Weissmann: Exactly.
Mary McCord: And of course, as we all talked about, we thought it would be a horrible idea for him to do that because he would probably dig a hole for himself, but he has a right to do that. And he cannot say he did not have the opportunity to tell his story because he absolutely 100 percent did, like you’ve said.
Andrew Weissmann: Yeah. So I actually had one other sort of big picture, I was thinking about not just the history of America, but just understanding where we are in terms of globally, which, you know, Americans generally don’t. You know, we’re isolated by these two oceans on either side. Even in our law, we’re not very good about thinking about other countries and looking into their laws as analogies or persuasive authority, just to get into the weeds of what Mary and I do.
But it’s useful to think about the fact that we are finally joining a group of democracies that have a history of having not show trials, but legitimate trials, holding political leaders to account. And there was an issue about whether we would be able to do it, whether our system would hold, and we have now joined England, France, Italy, Argentina, Brazil, Israel as countries that have gone through this process.
This is a first for us. It’s not a first, globally. It is absolutely fundamental to the rule of law that just because of your former job, in this case being the highest position in our government, doesn’t mean that you are suddenly immunized from criminality, especially if your crimes are hatched before you even become president, even though you’re carrying out the scheme from the Oval Office when you’re doing it, because that is what the jury found, by the way.
Mary McCord: Yes.
Andrew Weissmann: That the actual 34 counts, by definition, the jury has found that that crime, well, it was there to conceal the underlying conspiracy to undermine the 2016 election. The crime itself happened from the Oval Office of the United States.
Mary McCord: Yeah. I mean, that’s the time period of every check, 2017, the first year Mr. Trump was in office. I’m sad, though, to think that you said, you know, we finally joined, and it’s a club I would just assume that the U.S. had not joined. But if you’re going to have that type of conduct by the highest official in the land, it’s appropriate and accordance with the rule of law to hold him accountable.
Andrew Weissmann: Here, here.
Mary McCord: Yes. So should we take a break and then get into sort of what this means, what are the next steps, what impact, if any, of the Supreme Court case on a presidential immunity will have on this. And I say that because we’re getting questions.
Andrew Weissmann: Yeah.
Mary McCord: The answer, hint, hint, none, but we’ll talk about it.
Andrew Weissmann: Spoiler alert?
Mary McCord: That’s right.
Andrew Weissmann: Also, questions we’ve gotten is can he still run for office? Is he disqualified?
Mary McCord: Right.
Andrew Weissmann: What would happen if he wins the election? Does the case go away? They’re just so fundamental, so —
Mary McCord: Yep.
Andrew Weissmann: Yep. Let’s take a break and we’ll come back and get into the weeds, and you can tell me to stop with my grandiose ideas and basically get back to work.
Mary McCord: Let’s get back to work.
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Andrew Weissmann: Mary, welcome back. Okay. So question number one is can he still run for office? We’ve got a lot of people asking that. He’s now been convicted 34 counts. I know not technically convicted until sentencing, but he’s been found guilty. So can he run for office? Let’s assume it’s after sentencing, does that preclude him from becoming president?
Mary McCord: Well, as we’ve discussed before, it does not. There’s nothing in the U.S. constitution or in federal law that precludes someone who has been found guilty of a felony from running for president. And so, this verdict won’t impact that. We’ve had similar questions about what if he’s been sentenced to the term of imprisonment, and we’ll get to what the sentencing options are in a minute, because we’ve had a lot of questions about that.
But there’s nothing, again, that says you could not serve in terms of the Constitution or federal law that says you cannot serve as the president of the United States, while also serving a sentence of imprisonment. Now, I think there are all kinds of logistical complications with that. Like, I just don’t think you can actually serve as the president of the United States in any meaningful capacity if you’re doing it from a prison cell.
Think about the international travel and within this country travel that presidents engage in, in order to engage in not only foreign diplomacy, but also engage with members of the public here in the United States. Think about their role when there are emergencies or natural disasters, or anything like that, that require them to physically move outside of Washington and certainly outside of a prison cell. So it would be extraordinarily difficult, not to mention the entourage of people that are around him at all times, and things like handling classified information.
You know, the president of the United States, every single morning, gets a briefing by his intelligence community about threats to national security. Those briefings are not in prison cells.
Andrew Weissmann: Okay.
Mary McCord: They are in secure, sensitive compartmented information facilities. Okay. You want me to stop?
Andrew Weissmann: Yeah, because I have more questions for you.
Mary McCord: Okay.
Andrew Weissmann: By the way, one thing I was thinking as you were saying this is this is how much he has normalized the crazy.
Mary McCord: That we’re even talking about this. Yeah.
Andrew Weissmann: We just had Mary McCord, the most dispassionate career person I know, one of the smartest people I know, sort of great trial lawyer and appellate lawyer have to break down why it might be difficult for a president of the United States to do his job or her job, if we were ever that lucky, from a prison cell.
Mary McCord: Yes. It is kind of, yeah, la-la land weirdness. Yeah.
Andrew Weissmann: Yes, it is la-la land.
Mary McCord: Yeah.
Andrew Weissmann: But that’s another question. So let’s just take this hypothetical. I was just found guilty, this is hypothetical, of 34 felonies. Am I allowed to get classified briefings and to get the access to the PDB, the presidential daily brief? So now, obviously, the president of the United States is not actually sort of cleared. They don’t need clearance. They sort of have it.
Mary McCord: Well, they need it. It comes with the office.
Andrew Weissmann: Yes.
Mary McCord: Right.
Andrew Weissmann: Right.
Mary McCord: The rest of us would have our clearances yanked if we were convicted of 34 felonies that had to do with fraudulent activity. And so, at present, he doesn’t have that access. If he were to be elected, he would have that access.
Andrew Weissmann: Because of the transition of power laws, he actually becomes —
Mary McCord: Could sit early.
Andrew Weissmann: — nominee. He will get it early. The idea is that you want that people who are running for office, the leading people, to be able to have a running start.
Mary McCord: A running start. Yeah, exactly. Yeah.
Andrew Weissmann: Okay. So why do we go to actual sentencing?
Mary McCord: Yes, since we’ve been teasing it.
Andrew Weissmann: Yes, exactly. So July 11th is the sentencing date. There are various motions that people can make. But July 11th, Judge Merchan will sentence, with respect to the 34 counts, they are what’s in New York called E felonies, E as in elephant.
Mary McCord: Class E. Right.
Andrew Weissmann: Right, exactly. So that is a low-level felony. And Donald Trump is considered a first-time offender, and many people who are listening, maybe going, what do you mean a first-time offender? He’s done lots of crimes. You know, they may be thinking, wait a second, he’s been charged with all sorts of crimes.
But in terms of thinking about as a prior felon, they mean has he been convicted before? And so that hasn’t happened, so he’s a first-time felon. But there are lots and lots of aggravating factors. DA Bragg was asked yesterday at the short press conference he gave, what the state’s position would be with respect to requesting prison time. Just to be clear, though, DA can request it. It doesn’t mean the judge is going to do it. Mary, you and I know that.
Mary McCord: Oh, yes.
Andrew Weissmann: To our core, a lot of things we request were very reasonable and rational. Judge, save us from our instincts —
Mary McCord: Yes.
Andrew Weissmann: — and say, I’m not doing that. But the DA demurred and said, we will be doing that in our filings, and did not answer that question. But, Mary, why don’t I ask you if you were in the state, what kind of factors would you be thinking about in terms of what you might want to bring to the court’s attention with respect to fashioning a condoned sentence?
Mary McCord: So before I get into those factors, I want to make sure the listeners understand what the New York law is, with regard to sentencing. So for Class E felonies, like you just explained, this is a low-level felony. The maximum sentence per count is four years of imprisonment. But it is available for a court to give no sentence of imprisonment at all.
As you indicated, as Judge Merchan indicated in his special limiting instruction, a curative instruction that we talked about the last episode after Todd Blanche in his closing, asked the jury not to send Donald Trump to prison, and that was air. And the court instructed that you, the jurors, you know, the sentencing is solely for me, not for you. The crimes alleged here are the kind that don’t require a prison sentence.
So, the things that I think are significant beyond factors unique to this case, there’s something I would do first, which I’m quite sure DA Bragg has already done and others have done it too, is I would look at sort of all the other cases that have been brought in recent years in New York, charging falsification of business records, and see what kinds of sentence have been imposed and what the facts were in those cases, where sentences of imprisonment have been imposed.
Because what you would not want to be doing here is asking for something that is wildly different from what has been the norm, without there being a very good reason to be asking for something wildly different. All of that said, I suspect that there are still facts that are very different about this particular set of verdicts, not just because there are 34, because there may be other cases with, you know, dozens of counts because, you know, every business record has its own count.
But I doubt there’s any others where the bump-up to a felony was that the business records were falsified in order to conceal another crime, that other crime being a violation of New York election law, which is a conspiracy to promote the election of a person by unlawful means. And that has significance. It’s beyond some sort of like pecuniary gain, like financial gain that somebody wants. It’s beyond trying to provide some sort of benefit to a person or a favor, or something like that. A lot of business records crimes can have that kind of motivation, right? Financial motivations for individuals or groups of individuals.
Andrew Weissmann: Can I give an example of that —
Mary McCord: Yeah.
Andrew Weissmann: — just so people get it concretely. So you could have somebody who’s engaged in embezzlement from a bank or whatever company they’re in. And they’re charged with embezzlement, or they’re charged with creating false business records to cover up that embezzlement. So the underlying crime that makes it a felony is the embezzlement and its false business records to cover up the embezzlement. It’s bad.
Mary McCord: Yes. Yes.
Andrew Weissmann: I spent many, many years prosecuting white collar crime.
Mary McCord: And the DA made the point yesterday that that’s the kind of thing that the DA’s Office does all the time, right?
Andrew Weissmann: Bread and butter.
Mary McCord: Yeah. But the difference here is this really wasn’t about sort of, you know, benefit to one person or one group of people, the way embezzlement can be financial benefit. This was about undermining an entire presidential election. And we’ll never know if, you know, squashing, the Stormy Daniels story actually made a difference in the 2016 election. There were other things going on there, like James Comey announcing reopening of an investigation into Hillary Clinton just days before the election.
Andrew Weissmann: Mary, you’re triggering me.
Mary McCord: Yeah. Sorry. I’ll move on. But the point is, as was introduced into evidence in this trial, the Trump campaign and Mr. Trump was certainly worried about the impact of this.
Andrew Weissmann: Exactly.
Mary McCord: And —
Andrew Weissmann: He was worried that that would happen.
Mary McCord: — he was worried. That’s right.
Andrew Weissmann: It’s not fanciful because that’s precisely why he did it.
Mary McCord: Exactly.
Andrew Weissmann: That was, and obviously by the way, the jury also determined that the but-for cause of this was the election —
Mary McCord: That’s right.
Andrew Weissmann: — because that’s what they had to find under the jury charge.
Mary McCord: That’s right.
Andrew Weissmann: The but-for cause was not keeping it because he was concerned about his wife.
Mary McCord: That’s right. So, anyway, that’s something significant to call to the court’s attention in sentencing. Obviously, the judge is well aware of this. But there’ll be a sentencing memo that the district attorney will submit, and I’m sure he will emphasize sort of the importance and significance of the underlying offense here.
And then, of course, there is other conduct, like the attacks on witnesses, like the attacks on court staff, like the attacks potentially on jurors. The things that, you know, resulted in 10 different findings of contempt by Judge Merchan against Donald Trump, even resulted in Judge Merchan sending a warning signal, that if you do this again, the fines I’m imposing may not be effective because you’re continuing to do things and I may have to consider an actual sentence of incarceration for your contempt, not for, you know, these verdicts that we’re talking about now, but for your contempt, because your conduct is so contemptuous.
So, I mean, these things I think are also significant in terms of the judge considering what is a sentence that is appropriate for the conduct here. And again, that was separate conduct, but it shows the disrespect for the court system, the disrespect for the judge. And I think the judge will be concerned and I’m sure he’s already heard some of Mr. Trump’s comments, the disrespect for the jury and the jury’s verdict.
Andrew Weissmann: So all of that goes to sort of two things that judges consider all the time in sentencing, which is the risk of recidivism and the lack of remorse. Lack of remorse can actually relate to the risk of recidivism, because the idea is that if you’re expressing true remorse, not just mouthing the words. The idea is that you’re showing contrition. You recognize you did something wrong, which our system encourages, and the thought is you’re less likely to repeat it because you’re sort of accepting what you did.
Mary McCord: Right.
Andrew Weissmann: And in terms of lack of remorse, I mean, this is like beyond (ph) the poster child for it.
Mary McCord: Yes.
Andrew Weissmann: I mean, there’s never going to be a stronger case for lack of remorse. I mean, this is pride.
Mary McCord: Yes.
Andrew Weissmann: And also fomenting a lack of remorse, it’s not just lack of remorse on his side, but the idea is he’s turning —
Mary McCord: He’s rejecting outright the verdict, right? He’s calling the whole system rigged. So it’s not —
Andrew Weissmann: Yes.
Mary McCord: I don’t know. It’s not even the opposite of remorse. I don’t know what it is.
Andrew Weissmann: Well, no, it’s embracing the bad.
Mary McCord: Yeah.
Andrew Weissmann: But my point is not only for himself, but it is proselytizing. And a lot of times what judges consider is, are you doing this alone, or are you doing this as a leader of a group? And he both committed the crime as the head of the group, and his lack of remorse also as the head of a group.
And I would just add to the sort of recidivism issue, that this is a judge who sat over the Trump organization criminal case. A lot of people forget about that case, but that was the case now about two years ago, brought by the district attorney’s office, where the Trump Organization’s, two of them, were criminally convicted beyond a reasonable doubt for, like, 15-year tax scheme. Allen Weisselberg pled guilty to his role in that.
By the way, a little side note, that tax scheme had an interesting overlap with what we heard here. Because when Donald Trump became president, the accountant said, you know what, you can no longer have these off-book payments to Allen Weisselberg because we’re going to be under scrutiny. So you’re going to have to pay these sort of fringe benefits on the books. And Allen Weisselberg said, well, if I have to declare them, I need to be grossed up.
Mary McCord: Paid more. Yes.
Andrew Weissmann: I need to be grossed up.
Mary McCord: Grossed up.
Andrew Weissmann: Sound familiar?
Mary McCord: Yes.
Andrew Weissmann: And by the way, that was exactly what Michael Cohen said about the gross-up, that this was Allen Weisselberg’s idea. And I was like, of course, it is because he’s living through it.
Mary McCord: Yep. That’s right.
Andrew Weissmann: He did this exact same thing with respect to his bonus. He’s like, wait a second, my bonus is going to be worth a lot less if I have to start declaring it.
Mary McCord: That’s right. Absolutely.
Andrew Weissmann: All of that will go into the DA’s thinking and then the judge’s thinking. Obviously, there are other factors and the defense, by the way, gets to put in all sorts of evidence about good things he’s done.
Mary McCord: And that he’s never been convicted of a crime before.
Andrew Weissmann: Right.
Mary McCord: Not withstanding that his organization has, et cetera, et cetera.
Andrew Weissmann: That’s right.
Mary McCord: And that he’s indicted in —
Andrew Weissmann: But see —
Mary McCord: — three other jurisdictions. Yes.
Andrew Weissmann: But see —
Mary McCord: Yes.
Andrew Weissmann: Let’s not talk about leading with your chin.
Mary McCord: Yeah.
Andrew Weissmann: But, Judge, I’ve never been caught before or held responsible before, might be the better plea.
Mary McCord: Yep. So why don’t we take a break now, come back to some other outstanding issues that everyone is asking us about and that we’re thinking about ourselves.
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Andrew Weissmann: Welcome back. Mary, I made a comment about before the sentencing, there’s a motion schedule. Do you want to talk a little bit about what kind of motions they are, and can it delay things?
Mary McCord: Right.
Andrew Weissmann: Do you think it will delay things?
Mary McCord: And I think we alluded to this maybe last episode, very frequently, after there’s been a guilty verdict, the defendant will do two things. One of which he already did, defense counsel yesterday, and one of which I suspect he will do.
One is they’ll move right there in court. And this happened after the verdicts were returned by the jury yesterday, Mr. Blanche, you know, moved for a judgment of acquittal. Remember, he had moved for judgment of acquittal at the end of the government’s case. The court had reserved judgment, and he basically moved again, basically saying the jury’s verdict is not supported by the evidence, and the judge denied that. Denied.
Andrew Weissmann: Oh, okay.
Mary McCord: Two words.
Andrew Weissmann: Exactly.
Mary McCord: Sorry. I stole your joke.
Andrew Weissmann: No. It’s great. My anecdotes are catching.
Mary McCord: Yes, they are. They’re contagious. But that doesn’t mean that Mr. Blanche won’t try again. And I would suspect as it often happens after guilty verdicts, but before sentencing, that he will file a motion for a new trial and will put in writing various errors that he thinks took place not only during the trial, but potentially even in pre-trial rulings, because all of these are things that can be part of an appeal.
So what he’ll try to do is convince Judge Merchan, you made a mistake here, here, here, here, and here, and you should give Mr. Trump a new trial. Now, I think the odds of that motion being granted are slim to none.
Andrew Weissmann: Can I just disagree with you? I think we’re going to actually have a really big disagreement because I think that overstates the chances.
Mary McCord: Oh, slim to none?
Andrew Weissmann: Yeah.
Mary McCord: Yeah, I was like, you’re not really going to think it has a chance, Andrew. God, I don’t know how you drew me into that one.
Andrew Weissmann: I know. Can you believe it?
Mary McCord: What I was going to say is I think Mr. Blanche knows that they’re slim to none —
Andrew Weissmann: Yeah.
Mary McCord: — or nil or zero, zip, nada. But he’s going to do it.
Andrew Weissmann: Bupkis.
Mary McCord: Yes. He’s going to do it because he’s going to want to be able to say he did it on appeal. He’s going to do it because Mr. Trump wants him to do it. But he’s going to do it, first and foremost, because it’s another delay tactic, I think. And I shouldn’t imbue bad motives to him, so I don’t mean to do that. I apologize.
Andrew Weissmann: But also, wait, can I just say he’s also going to do it because it’s a political document?
Mary McCord: Yes.
Andrew Weissmann: Meaning that it will lay out things that can be used in other contexts.
Mary McCord: That’s right.
Andrew Weissmann: As Amy Berman Jackson said about various filings that were made, she said, you know, I don’t know what audience you’re addressing your brief to, but it’s clearly not me.
Mary McCord: Yep. We’ve heard Judge Chutkan say that during argument in the January 6th case, you know, you seem to be not arguing to me. But you’re right, by putting out all the errors that he’s alleging, that gets them out there faster than an appeal will, because an appeal comes after the sentence.
Andrew Weissmann: One preview of that is that in the oral application yesterday, after the guilty verdict, Todd Blanche, and this gives you a sense of what he might do and it also tells you a little bit about this issue of a tin ear with respect to are you really arguing to the court versus the court of public opinion, is that Todd Blanche started this rant about Michael Cohen and how essentially we all know in this courtroom that he’s a liar. I’m paraphrasing.
And the judge took him to task and said, I’m sure you have misspoken when you say all of us and that all of us know that, if you’re saying that with respect to me, the court. And then Todd had to recant and say, I know, I didn’t mean that. But I think that gives you a sense now. And just to be fair to Todd, I mean, it can be very emotional. It’s a very —
Mary McCord: Yes.
Andrew Weissmann: — emotional time in court. Obviously, he had to be very disappointed. It doesn’t excuse it, but it is important to consider the context.
Mary McCord: Yes, absolutely. And, you know, that argument is one that he’s made before. He sought pre-trial to preclude Michael Cohen even from testifying on the grounds, essentially, that he is a liar and just nothing that he says should be trusted. He shouldn’t be able to be put on the stand, which is a pretty unbelievable motion to file, and it was denied, but —
Andrew Weissmann: Yes. And Mary, that’s one of the motions which Susan Necheles, a very experienced defense lawyer for Donald Trump, did not sign.
Mary McCord: Right. Yeah.
Andrew Weissmann: That gives you a sense of your point that it seems pretty unbelievable to make that kind of motion. Anyway, so those are the kinds of motions, you know, that may delay the sentencing. I have to say my gut and I’m not a New York state practitioner, is that in this case, I think the judge is going to be doing everything he can to hold that sentencing date.
Mary McCord: I think that’s right too. I mean, I think that’s partly why he set these motions dates, you know, within the timeframe of the date for sentencing. And I don’t think Alvin Bragg will ask for extra time. I do think it’s possible that Todd Blanche will ask for an extension of that time, at some point, file a motion for an extension and we’ll see how that’s handled.
But even if there is some delay, it’s not going to be a significant delay, I don’t think, which brings us, of course, to appeal. And as I just mentioned a moment ago, appeal can’t take place until after there is a sentencing.
Andrew Weissmann: And just so everyone is not freaking out on significant delay, that phrase used, I mean, even if the sentencing gets put off, we’re not talking about Judge Cannon timeframe.
Mary McCord: That’s right.
Andrew Weissmann: The sort of glacial pace.
Mary McCord: 2026, I think 2026 —
Andrew Weissmann: Yeah.
Mary McCord: — would be a good time for sentencing.
Andrew Weissmann: I mean, we’re talking about, you know, days or weeks, but just a couple. But we’re not talking about months.
Mary McCord: That’s right. And then after there is sentencing, that’s when Mr. Trump can appeal, and there’s timeframes related to that. So he doesn’t have to do it like the next day. He has some time to note his appeal. Then, eventually, a briefing schedule will be set for the appellate briefs. And then the big question, Andrew, suppose Mr. Trump is sentenced to a term of incarceration, will he have to start serving that right away, or will it get stayed pending the appeal?
Andrew Weissmann: Yeah. So in white collar cases, it is very common to not have to surrender, meaning to start serving your sentence. If Judge Merchan gives him a sentence of incarceration, he could give a sentence that includes, for instance, home confinement and that he has community service, or just probation, or a mix and match. He does a short amount of time in prison, and then he has a period of what we would call federally supervised release. He’s sort of under term of monitoring by the court. And very often, that does not start until the appeal process is over.
In the federal system, what you really look for is there sort of a lively, factual or legal issue, but very often that is kind of overlooked.
Mary McCord: Right.
Andrew Weissmann: An example of somebody who hasn’t had to start his sentence until the appeal process was over is Steve Bannon.
Mary McCord: Steve Bannon.
Andrew Weissmann: And actually, that is going to be argued now, where his appeal has been denied as to when he has to surrender. But he has been out pending that appeal. But there was an issue on appeal.
Mary McCord: Yeah.
Andrew Weissmann: That’s one where there actually was some concern about what the Circuit Court would do. So I don’t think we’ll be in a situation where he’s actually been told to serve a sentence. And by the way, that could happen, in theory, before the election. It could happen, by the way, between the election. And if he were to be elected, it could happen between the election and the inauguration.
Mary McCord: Yep.
Andrew Weissmann: But it also is the case that if there were to be a term of imprisonment and he were to be elected, it would, I think, likely sort of get postponed until after he is no longer in office. We’ve never had that situation, and this is why we’ve never had that situation, because we have never been so anti-rule of law. And so in throe of a cult figure, that we would even have that conversation.
If you go back to the Republican Party of Reagan and Goldwater and even Richard Nixon, you would not be having, gee, when the Republican president is sentenced to jail, would he do the time before, during or after his presidency?
Mary McCord: Yes. That’s right.
Andrew Weissmann: Any normal person would say, are you serious?
Mary McCord: To come back to sort of like weird reality here, even though earlier in this episode, I was talking about how extraordinarily difficult it would be to actually perform the Office of the President of the United States from a prison cell, that’s exactly what I think. You’re right. Even if he were to be sentenced to time, if he were elected as president, there would be a whole another flurry of motions and litigation about whether he could really serve that sentence while being president or whether it would be postponed.
So that’s a big to be determined depending on what happens in November, what happens with sentencing, et cetera. If it’s probation only, then you know that particular issue disappears. This leads me, I think, before we get into questions about the gag order that are also very top of mind for a lot of people, we also had listener questions on whether Mr. Trump has presidential immunity with respect to the charges Jack Smith brought for the four different counts related to the efforts to undermine the results of the 2020 election, whether that ruling would have any impact on this case.
Andrew Weissmann: So I can give an answer because, you know what, lawyers, we have such a bad reputation because we’re always, like, saying it depends.
Mary McCord: It depends, but not here.
Andrew Weissmann: Right, exactly. Because the answer is no, it will not have an effect. And why?
Mary McCord: Unless the Supreme Court were to turn federalism completely on its head.
Andrew Weissmann: Which is a distinct possibility. Wait, Mary, I think what you mean is unless the Supreme Court were to turn federalism upside down.
Mary McCord: Yes. Yes, that’s right.
Andrew Weissmann: Little inside joke.
Mary McCord: Yes.
Andrew Weissmann: I don’t think it’s like that inside anymore. It’s like a little outside joke.
Mary McCord: Yeah.
Andrew Weissmann: The reason is that not even Donald Trump is arguing the Supreme Court that purely personal conduct is immunized. And there’s no question, this is personal conduct. I mean, yes, he did the actual signing of the checks from the Oval Office, but it was not in his presidential capacity in any way, shape or form.
Mary McCord: Although he did try, even in this case, before Judge Merchan, to have the judge say, as I recall, because these checks were written while he was in office, that he should be immune.
Andrew Weissmann: Yeah. And what was the answer to that?
Mary McCord: The answer was no. My point is he tried. He tried.
Andrew Weissmann: No, Mary, that was like a softball.
Mary McCord: Sorry.
Andrew Weissmann: Denied.
Mary McCord: Yes, denied.
Andrew Weissmann: And even though, like, do you think presidential immunity could affect state prosecutions?
Mary McCord: Yes.
Andrew Weissmann: I just think, here, it’s just unimaginable to me that it’s going to cover this. If there’s anything left to what is a personal crime, it’s going to be this. Okay, Mary, gag order.
Mary McCord: Yes.
Andrew Weissmann: Is it in effect? Leave aside that he can attack the judge, he can attack Alvin Bragg, but what happens if he still goes after jurors, witnesses? Isn’t there still a concern? I mean, even with respect to them, but also future ones. I know there’s —
Mary McCord: A hundred percent.
Andrew Weissmann: I mean, he wants to make sure that witnesses in the future are thinking, wait a second, okay, protect it only for the duration of the trial, but then it’s fair game.
Mary McCord: Right.
Andrew Weissmann: So what’s the story there?
Mary McCord: Certainly, right now, the gag order is in effect, right? This case is still very much a pending and active case in front of Judge Merchan. It has not gone to sentencing yet. There are proceedings that are still in play. There was no expiration date on the gag order. It certainly didn’t say that it ends when the day that the trial ends, or the day the verdict is rendered. And so, you know, I believe it is very much in effect.
Now, there, I think, would be a question with respect to the gag order about whether, you know, its duration after the case is completely closed.
Andrew Weissmann: Do you mean like on appeal?
Mary McCord: Well, yes. After the case is completely resolved, the conviction is affirmed or it’s reversed, and the case is completely what we think of as closed. Because even when the case is on appeal, it could come back to the trial judge. I mean, I think there could be arguments that Todd Blanche might make, Your Honor, once he’s been sentenced, is the gag order lifted? We believe it should be lifted. But I think he would want to see clarification because, right now, that’s unclear. Right now, it’s unclear at what point it would end. But I feel pretty confident it’s in play right now.
I want to distinguish that gag order, though, from the protective order that the judge issued earlier this year, that prevents any party, that means Mr. Trump, that means his attorneys, that means the prosecutors, from disclosing the names of jurors. That protective order —
Andrew Weissmann: Oh, yeah.
Mary McCord: — will continue.
Andrew Weissmann: In perpetuity. Yes.
Mary McCord: Forever. Right. And that’s also the order that required that addresses not be disclosed even to Mr. Trump. So if it were to, you know, appear sometime down the road, that jurors’ names get out there, I would expect the DA’s Office to seek a hearing to question Mr. Trump and his attorneys, under oath, about whether they revealed any juror names or juror information, at least, if there was some basis to believe that that’s where it would’ve come from.
Well, let’s think about it, the prosecution is certainly not going to disclose that. The jurors themselves certainly are not going to out each other. They all just agreed to this verdict. There’s no indication there was dissension or anything like that. I mean, there would only be a small number of people that that kind of a leak could come from, including potentially court staff.
So I think that if we were to see the names get out there, we would probably see some sort of investigation and potentially evidentiary hearing into, you know, who may have leaked that. But we’re getting very far ahead of ourselves. That’s one that I feel like I can confidently say that protective order will stay in place.
Andrew Weissmann: Mary, I wanted to take us back to something just before we end, and see if you had the same thought, and I was thinking about it when the jurors were polled yesterday.
And I was taken back to when I was a prosecutor, there’s something almost magical about that moment and seemed so fundamental to our criminal justice system, that it is everyday citizens standing there and announcing that that is what they concluded based on the facts they assessed, the law that was given to them by the judge, with the defendant and their counsel looking at them in the same room and announcing individually that is what they thought. And that is, to me, sort of the essence of the rule of law in this country.
When I was in court, to me, it was always sort of a very emotional moment because it brought it back to I was a prosecutor, I presented the case, but that’s where the decision is. And it’s not every system in the world that has that core value of the people making this decision. And that’s why it’s both wonderful about our system and it’s what’s so upsetting about the reaction to a verdict.
Mary McCord: Yes, I agree. I mean, I’ll say I don’t really like to see that because, you know, as a prosecutor, I would never ask for a jury pool. The defendant almost always will if the verdict is guilty. And it’s a pressure point, right? Make the person stand up —
Andrew Weissmann: Yeah.
Mary McCord: — face to face with the defendant and say they agree. Even though by virtue of returning their verdict, they have already asserted, all 12 of them, that they agree. And so, you know, I understand the reason why courts allow one of the parties to request it. Like I said, I wouldn’t ever request it. As a prosecutor —
Andrew Weissmann: Yeah, I don’t neither.
Mary McCord: — I wouldn’t request it. If there was an acquittal, I wouldn’t request it.
Andrew Weissmann: Yep. Fair.
Mary McCord: So I do think it puts some undue pressure. That said, when you then hear them all answer with confidence, yes, yes, yes, I mean, it does really hammer home these are individuals who swore oath to do their job, did their jobs according to applying the law to the facts as they were instructed and a true verdict rendered.
Andrew Weissmann: And to go back to Alvin Bragg, I did my job.
Mary McCord: They did their jobs.
Andrew Weissmann: Mary, I will talk to you next week. And this is probably a good reminder as our sign-off, that now that we have a verdict, well, I guess one of the downsides is, Mary, now, we’ll go back to once a week, not twice a week, so.
Mary McCord: Unless big things happen, like we’re going to have a Supreme Court case come down soon, and you can better believe if that doesn’t happen or happen on a day before a Tuesday, we’ll be back on talking about it.
Andrew Weissmann: So, obviously, we’ll go back to our regular cadence. Except when there’s news, we’ll be back to you with special episodes.
And the other is shameless plug time, this Sunday at 9:00 p.m., MSNBC has a TV Special “Prosecuting Donald Trump: Witness to History” and it’s with Rachel Maddow and lots of other people, including me. And the focus is we really are going to only be talking to people who were in the courtroom to try and give people a sense, because it wasn’t televised, because there wasn’t an audio of what it felt like, what you get from being there that you wouldn’t get from the cold hard record. So if you can make time for it, that would be great.
And for those people who aren’t able to watch it, we will be posting this as part of our feed in the “Prosecuting Donald Trump” podcast. So with that, this podcast is produced by Vicki Vergolina. Janmaris Perez is our associate producer, with production support from Max Jacobs. Catherine Anderson and Bob Mallory are our audio engineers. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC. Search for “Prosecuting Donald Trump” wherever you get your podcasts and please follow the series.