Sooner than expected, it’s our 100th episode! In the latest event triggered by SCOTUS’ ruling on presidential immunity, special counsel Jack Smith has filed a superseding indictment in the election interference case against former President Donald Trump. So in an extra episode for you this week, former prosecutors Mary McCord and Andrew Weissmann weigh in on what’s been added and struck from the prosecution’s allegations, Jack Smith’s strategy, and what this means for the case moving forward.
Read the new superseding indictment and accompanying filing, along with last year’s original indictment.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi everyone. It is the morning of Wednesday, August 28th. Welcome to “Prosecuting Donald Trump.” It is actually the 100th episode as for those listeners who just heard us yesterday —
Mary McCord: Yesterday.
Andrew Weissmann: — talking about our 99th episode thinking that we were going to be recording next week our 100th episode. Well, we’re doing an emergency episode in light of the fact that there was a superseding indictment handed down by a D.C. grand jury yesterday. So we wanted to talk about that quickly. And before we forget, in case anyone doesn’t know, I’m Andrew Weissman. I’m the co-host of “Prosecuting Donald Trump” and I’m here with my wonderful co-host, Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: Hi. Okay, let’s get started. So, Mary, gee, what’s on our dance card?
Mary McCord: Yeah, that’s right. That is all we’re talking about. This is going to be a shorter episode than usual, but we just thought it was so important in light of the fact that there is this new indictment. And this indictment was presented to a new grand jury, not the same grand jury that had returned the original indictment. And we’ll talk about why that was. Jack Smith even told the court that it was bringing this new indictment to reflect the government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions in Trump v. United States. That is the immunity decision.
And so that is what Jack Smith’s team has been doing ever since that decision got handed down and listeners will know that this Friday, both Jack Smith’s team and Mr. Trump’s team are due to provide to Judge Chutkan in D.C. where this superseding indictment was returned a proposal for how to go forward with pretrial proceedings.
So obviously, if this new indictment was to affect that, which it will, they needed to get it returned before this Friday. It explains some of that delay, though, and the reasons for delay and asking for more time to file things in front of the court, I think.
So let’s break down what’s different about it, but first, you know, some level setting on that opinion just to remind listeners, Andrew.
Andrew Weissmann: So one question I have gotten repeatedly is people saying, well, why didn’t they ask, since it’s a new indictment, for this to get to a different judge? Remember, this is, as Mary said, this is the D.C. case. This is not the Florida case where that would be a logical question, which is, like how do you get out of Judge Cannon’s courtroom? This is in front of Judge Chutkan, who has been a very good judge by all accounts for both sides.
So to answer Mary’s question, let’s level set, what is the Supreme Court immunity decision in brief that this indictment responds to? Remember that that decision said that for core presidential functions defined very broadly to include interactions between the president and his or her Department of Justice, core functions are absolutely immune. Not a balancing, nothing like that, absolutely immune.
So the part of the indictment that would be out are the allegations about Donald Trump’s pressuring interactions with the Department of Justice to get them to say that there was some kind of fraud investigation going on, even a sham investigation. That’s point one. Point two is they said even with respect to other official acts that were undertaken by the president outside of the core functions, for those other official acts, and again, potentially defined broadly, although they didn’t set the exact scope, they are at least presumptively immune. They didn’t decide whether they were absolutely immune. They left that to another day, but they said, for our purposes, they were at least presumptively immune, and that could be rebutted by the department. The test that they set out was quite strict, but that sort of gets too much in the weeds. But that’s the basic parameters of what Jack Smith was dealing with. And thus we have this superseding indictment, and Mary, I know that you have done a lot in the last few hours —
Mary McCord: Twelve hours.
Andrew Weissmann: — that we’ve had to talk about what’s deleted and what’s added because since a lot of commentators have talked about what’s deleted, but that’s only half of the equation. There’s deletions and additions. So Mary, let me turn it over to you.
Mary McCord: Sure. Yes. And like you said, this is all about Jack Smith trying to come into conformity with that decision and to be able to for even things that, well, be able to show two things. One, what we’re charging here is not even official acts. And then even if it is, we can rebut this presumption by showing that criminal prosecution for these particular acts would not cause any danger to the authority and functions of the presidency. And that’s why they’ve now parsed this and they’ve done it directly in response to the Supreme Court. And as you indicated, because the Supreme Court said that the president’s interactions with his own Department of Justice and executive branch officials, including White House advisors, is core presidential functions and absolutely immune, that is all eliminated from the superseding indictment.
So, Jeffrey Clark, who was a Department of Justice high level official there, who was ready to expand upon Trump’s false claims of election fraud and pressure states to open investigations and things like that, Jeffrey Clark’s not even listed as a co-conspirator. The indictment makes clear that all other co-conspirators were acting in their private capacity, and none of them were government officials. It eliminates all allegations of discussions with all Department of Justice officials, all executive branch officials, including the entire section on the defendant’s attempt to leverage the Department of Justice to use deceit to get state officials to replace legitimate electors and electoral votes with the defendants.
Andrew Weissmann: Yeah, I just wanted to make sure people understood what you were saying about Jeffrey Clark is a really good example of deletion and addition.
Mary McCord: Right.
Andrew Weissmann: Because there’s deletion, there used to be six unindicted co-conspirators, one of them was widely believed to be Jeffrey Clark. There are now five. And an example of deletion is taking out all the stuff about Jeffrey Clark and, as you said, the Department of Justice. But the addition is that with respect to the five unindicted co-conspirators that remain, the superseding indictment is very clear that they are private counsel.
Mary McCord: That’s true.
Andrew Weissmann: These are private actors. In other words, there’s lots of language about the president acting in his capacity as a candidate or as a private person.
Mary McCord: Now you’re getting to my part, Andrew. This is my part.
Andrew Weissmann: Okay, but the idea is that there’s very much this sort of subtraction and addition.
Mary McCord: That’s right. And that’s why I made the point that as for the other co-conspirators, the indictment’s clear. They were private attorneys, private political advisors. Another thing eliminated is conversations with the vice president about just election fraud generally, and instead what is included in the indictment, again, so that’s the elimination. And what is added in the indictment is just not added, but what remains in the indictment with respect to the conversations that Trump had with Vice President Pence are those that focus on Trump’s attempts to remain in power, to pressure Mike Pence not to count the legitimate electoral votes from the swing states and instead count the fraudulent slates of electors. So they’ve taken out anything where Trump is suggesting there was fraud and here’s why we know it and we should investigate it and they leave just the things about him remaining in power. It eliminates similarly tweets and public statements that are about election fraud, but leaves in tweets and public statements that falsely claimed the vice president could reject legitimate electors.
And again, in another edition explains that Trump used Twitter sometimes to communicate with the public as president, those would be things that the Supreme Court called official acts, but also regularly used it for personal purposes. So in each one of these eliminations, they’re taking out something that the Supreme Court has indicated would be within the scope of an official act, and then they’re either adding or emphasizing why what they left in is not official act or at least could rebut the presumption. On other additions that are just flat out additions, and I think these are important go to the point you were just making about a candidate. One of the things the Supreme Court pointed out is there’s a difference between the President acting as President, right, within the functions and authority of a President, which is a likely, according to the Supreme Court, mean that those things are official acts and the President functioning in his personal capacity or as a candidate.
So the new indictment adds in many different places, Trump’s role here was as a candidate. And in fact, it even emphasizes that Trump had filed a motion to intervene in a lawsuit. This is in December of 2020, a lawsuit brought by a state attorneys general that had sought to invalidate the results of the election in Pennsylvania and some of the other swing states. Trump specifically, when he moved through his attorneys to intervene in that lawsuit, his legal filing said he was doing this in his role as a candidate, right? So in your role as a candidate, can’t be an official act. The indictment also, every time it refers to the January 6th speech on the ellipsis, it calls it Trump’s campaign speech. And at one point explains that’s a speech that was privately funded and privately organized, again, can’t be presidential and official if it’s privately funded and organized and it’s a campaign speech.
And the other thing it always does is referred to the vice president when he is exercising that role to count the Electoral College votes on January 6th, preside over the joint session of Congress, always adds the phrase, vice president as presiding on January 6th as president of the Senate. So that is not his executive branch role as a vice president and advisor to Trump. It is his role under Article 1 of the Constitution as president of the Senate. So again, not an official act. Also adds that Trump had no official responsibility related to certification, but did have a personal interest as a candidate. And finally adds in multiple places that also Trump had no official responsibilities relating to the convening of legitimate electors or their signing or mailing in of the certificates of vote. So it’s trying to differentiate things that are in his official role as president and things that are in his personal capacity or that he has no official responsibility for.
Andrew Weissmann: One of the notes that’s fascinating in a little civics lesson is that the vice presidency is a unique role —
Mary McCord: Yes.
Andrew Weissmann: — in our constitutional firmament because the vice president is a part of the executive branch. However, when the vice president is acting to certify the votes, acts, and also can be a tiebreaker, the vice president is also part of the legislative branch.
Mary McCord: That’s Article 1, right?
Andrew Weissmann: Exactly. So that’s sort of exactly what you’re referring to, Article 1 versus Article 2. Article 1 is legislative. Article 2 is executive and that’s referring to the articles within the Constitution of the United States. So the vice president, very unusual —
Mary McCord: Yes.
Andrew Weissmann: — role to be in both, because usually it’s you’re either fish or fowl. You’re not fish and fowl, but he is.
Mary McCord: Right.
Andrew Weissmann: So let’s take a quick break, and then we can talk about sort of what this means. So what’s the effect and why we think he did this?
Mary McCord: Absolutely.
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Mary McCord: Welcome back. So now that we’ve kind of gone through the eliminations and the additions in the superseding indictment, we’re going to get a little bit into why Jack Smith made these calls and how effective we think this new strategy will be. Let’s start with you, Andrew.
Andrew Weissmann: So I think one of the things that I think people should focus on is sort of the actual effect of the Supreme Court decision on a trial if it were to occur, which is only going to ever happen if just to be clear, if Kamala Harris is actually elected. If Donald Trump is elected, the whole case goes away. So it’s sort of irrelevant. And very much for our listeners who have looked at and followed us with respect to what’s happening in the Manhattan case, where there’s this pending motion having to do with the use of official act evidence, even in a case involving unofficial charges. Here, the whole idea is to try and sanitize the upcoming trial of allegations that are official act evidences to which that cannot be rebutted. So there’s going to be litigation over this. But let me just talk about very specifically what I think is lost, at least in the indictment stage.
And that is one of the things that the initial indictment did very well is to support the idea that Donald Trump knew that what he was doing was fraudulent, that he knew he had lost the election. There was a whole litany of people who told him that. And that is very much curtailed because, as you said, Mary, the allegations having to do with people at the Department of Justice, executive branch people speaking to Donald Trump as president, for instance, CISA that looks at it as sort of election fraud and election security within the Department of Homeland Security, those kinds of allegations are removed. And so that litany, it’s not that it doesn’t exist at all. It’s that the primary function comes from either state people saying that or campaign people telling Donald Trump that. So there still is evidence to show that, if proved, that Donald Trump knew that it was fraudulent. But the panoply is curbed because of the Supreme Court decision.
Mary McCord: Yeah, and I think, you know, that again comes back to the fact that what the Supreme Court said was within core constitutional responsibilities of the president is his leadership of his own executive branch. So all of, you know, his acting attorney general, acting deputy attorney general telling him there was no fraud significant enough to change the outcome and there’s no basis for investigation, that’s out. But the four charges are the same as they were originally. There’s first the conspiracy to defraud the U.S. government, and that is to defeat the federal governmental function through dishonesty, fraud, and deceit. And those include all of the schemes to prevent the actual legitimate counting of the electoral ballots on January 6th. The second is a conspiracy to obstruct an official proceeding, that official proceeding being the January 6th joint session of Congress to count the Electoral College ballots.
There’s also a direct charge of obstruction of official proceeding. And these are things we can talk about in a future episode about how those survive the Fischer case, the other case about obstruction that had to do with the rioters. And then finally, there’s a charge of conspiracy to violate civil rights, that meaning people’s rights to vote and have their votes counted. So all of these conspiracies do require knowledge, right? Knowledge of the fact that there really was no serious election fraud and knowledge that what the president was saying was false. But what does remain, Andrew, and I think it is in here powerfully, is the fact that state officials, right, Secretary of State in Georgia, Brad Raffensperger, the leadership of the state legislature in Arizona, they were telling the president very directly, Mr. President, we have looked, we have done audits, we have done recounts, we have examined this, there is no significant fraud in our states. So it is still there, but it is curtailed, as you said.
Andrew Weissmann: Yeah, and also internal campaign people telling him, because again, that would not be official conduct that would be as a candidate —
Mary McCord: Yes.
Andrew Weissmann: — to get back to your point at the outset. So the question arises is, why do this? Why now? So I think there are a number of reasons why you would do this. One, it creates a very clean look. In other words, there’s so much that’s sort of added and subtracted that it’s not like you can just tell the court, oh, you know, where we’re not relying on allegations in paragraphs seven and 12. There’s a lot here. And so sending a very, very detailed letter, it’s so much that it’s sort of a much cleaner canvas to work off of because everybody knows what’s in and what’s out because it’s there. That’s sort of one.
The other more substantive reason is that to extend that Donald Trump was going to make claims in the district court and up to and including the Supreme Court, that the grand jury process was tainted by the introduction of evidence and conduct that is immunized, and the grand jury shouldn’t have considered it, this takes that off the table. So from a defensive point of view, it’s basically we don’t need to litigate that. It is easy enough to go back to the grand jury and pointedly, as you pointed out at the very outset, Jack Smith made a point of telling the court this is a new grand jury. And so they could be given, it could be sanitized evidence. They also could be told exactly what the law is, because the law has now changed dramatically. So it is, from a defensive point of view, it takes an issue off the table. And then final point I’ll make is that from an offensive position, it actually has, as you pointed out, it’s not just deletions, it’s also additions.
So you actually have a grand jury that has made findings because it has to vote on all of the language in the superseder just so people know that what happens when an indictment is presented to a grand jury, you read to them, they get handed out the proposed superseding indictment. Very often it is read word for word, but they are following along and seeing all of it, and they can raise questions and issues, and they don’t have to vote on it to say we agree with everything. So the grand jury has actually made findings based on probable cause of those additions. And so that’s something for those people who are counting, this now makes five grand juries that have found probable cause to believe that the former president committed multiple, multiple, multiple felonies. And because we have four different jurisdictions, but you now have two separate grand juries in D.C. with a pointed reference to the fact this was a new, clean grand jury.
Mary McCord: Yeah. And you know, I do think that’s significant. And we know that Trump probably would have raised the grand jury point because he raised it in Manhattan.
Andrew Weissmann: Exactly.
Mary McCord: And so, you know, it was smart of Jack Smith to think we’re just going to present this anew. So where do we go from here in our closing to this episode? Friday, we will hear from the parties on their proposal for going forward. I suspect that there will be the Trump team seeking, you know, legal briefing before anything. You know, everyone keeps asking the question, will there be an evidentiary hearing? And I think one of the things that Jack Smith has tried to do in this indictment, because it’s returned by a grand jury based on probable cause, these allegations that should be taken as the allegations and that set up an argument that he can win on the law without needing an evidentiary hearing, which I don’t think there’s any way could happen before the election anyway, and I don’t think he’s going to ask for that. But I think Trump will not want an evidentiary hearing for obvious reasons.
Andrew Weissmann: Of course not.
Mary McCord: He will want just to be on the law. So it wouldn’t surprise me if they don’t first battle it out. Trump will say, look, let’s take the allegations that are currently in the indictment and I’m going to argue why they still are official acts for which the president is immune. Rule on that Judge Chutkan before you rule on anything else. Jack Smith, we’ll see how he responds. I’m speculating here on how I think it will play out. But I suspect that we’ll start with legal briefing and then decide if there are things that require evidentiary development because the Supreme Court did leave open the door in each of these areas pressure on Vice President Pence, pressure on state legislators and the false electoral scheme, and also the tweets and public statements on January 6th. They left open the door that factually that could be an area where the government could rebut any presumption of official acts or show that the conduct was not official because it was in his role as a candidate or is in his personal capacity or about things he had no responsibility for or vice president was acting in his Article 1 role.
So there may be some things there, but I think it’ll be an iterative process as we go forward. And we’ll know more Friday and we’ll talk about it on Tuesday.
Andrew Weissmann: Okay, so happy 100th episode —
Mary McCord: Yes. Woohoo.
Andrew Weissmann: — this week and not next week. And Happy Labor Day to everybody. And we will be back next week to talk about that filing and we can all sort of see how Mary’s predictions fared.
But in the meantime, thanks so much for listening for this special emergency episode on the new superseding indictment and we will talk to you all next week. Thanks for joining us. And remember, if you so choose, that you can subscribe to MSNBC Premium for ad free episodes of “Prosecuting Donald Trump” on Apple Podcasts, as well as exclusive bonus content from our favorite MSNBC podcasts and shows. Obviously, if you don’t want to get that, you still will get all of us in all our glory for free.
Mary McCord: If you’d like to read this new superseding indictment, we have that in our show notes. We also have the accompanying filing wherein Jack Smith explains why he is returning this indictment and we have the original indictment all in the show notes. To send us a question, you can leave us a voicemail at 917-342-2934 or you can e-mail us at prosecutingtrumpquestions@mbcuni.com. This episode was produced by Max Jacobs. Our associate producer is Janmaris Perez. Our audio engineer is Catherine Anderson. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio and Rebecca Kutler is the Senior Vice President for Content Strategy at MSNBC.
Andrew Weissmann: Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.