There have been a slew of hearings before Judge Aileen Cannon in the Florida documents case over the past few days, and veteran prosecutors Andrew Weissmann and Mary McCord examine why some of these seem like unnecessary delays. Then, why Manhattan D.A. Alvin Bragg is asking for the limited gag order to continue in New York as Donald Trump awaits sentencing. And lastly, Mary and Andrew game out some scenarios as we hurry up and wait for the Supreme Court to decide on presidential immunity.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, welcome back to “Prosecuting Donald Trump.” It is Tuesday, June 25th. We are still awaiting the Supreme Court’s decisions on immunity and the so-called Fischer case, the obstruction of justice case. I feel like this is Generalissimo Franco is still dead.
Mary McCord: Yes.
Andrew Weissmann: So, we are still on June 25th, awaiting the Supreme Court’s decisions. As you can tell, I’m Andrew Weissmann and that other voice is my wonderful co-host, Mary McCord.
Mary McCord: Good morning. So yes, we will talk about that wait, hurry up and wait. We’ll also start though first talking about what’s been going on down in a courtroom in Fort Pierce, Florida for today, the third business day in a row of hearings before Judge Cannon. And we will also talk about DA Bragg’s response to Mr. Trump’s request to remove the gag order in the Manhattan case. So, I think, notwithstanding that we’re waiting, there’s a fair bit to cover as there always is.
Andrew Weissmann: Yep.
Mary McCord: And I will also say that I think looking through a number of recent listener questions, a lot of listener questions will actually get addressed by the topics we intend to discuss today.
Andrew Weissmann: Exactly. So, we are going to get to listener questions. By the way, in case you heard a growl, as soon as you started talking about, you didn’t even use the judge’s name. All you need to say is Florida.
Mary McCord: Are we on trigger avenue?
Andrew Weissmann: Yes, exactly. We are at like Pavlovian trigger avenue.
Mary McCord: There we go.
Andrew Weissmann: So, let’s turn to Judge Cannon. Maybe I will do a little recap of where we are and what’s happening. And then, Mary I will turn it to you to pick your top issue —
Mary McCord: Okay.
Andrew Weissmann: — that you want to address. But what’s happened since we last tuned in to our audience?
Mary McCord: Right.
Andrew Weissmann: What’s happened? So Friday, there was a hearing on the constitutionality of the appointment of a special counsel, been there, done that.
Mary McCord: Yep.
Andrew Weissmann: It’s been argued a million times in a million different courts. Okay, so you can tell I’m triggered. Anyway, that was Friday. Monday, kind of a redux, Monday, we had a kind of similar issue but the issue was whether the appropriations were correct. Meaning that even if the special counsel was appropriately appointed, is it okay to pay him out of a certain bucket of money or should they use a different bucket of money?
Mary McCord: Right.
Andrew Weissmann: News flash, who the hell cares?
Mary McCord: Yes.
Andrew Weissmann: And by the way, hell is not the word I was thinking of.
Mary McCord: Yes.
Andrew Weissmann: That’s because I’m really triggered.
Mary McCord: PG, Andrew.
Andrew Weissmann: PG, okay, but there’s more. In the afternoon yesterday, there was a very short hearing that was on the very belated scheduling by Judge Cannon on Jack Smith’s request to have the bail conditions change, to restrict Donald Trump’s words, with respect to what he said about FBI agents and whether they were targeting for assassination Donald Trump in connection with the search.
Mary McCord: Right.
Andrew Weissmann: That’s the one where Mary joined me on trigger avenue, I should say.
Mary McCord: Yes.
Andrew Weissmann: And then, today there is a hearing that is about suppression of evidence.
Mary McCord: Which is the one we discussed in some detail last Tuesday, yeah.
Andrew Weissmann: Absolutely. I actually think this is, in many ways, the sleeper on the following issue, which is everyone is very focused on how do you get rid of Judge Cannon because she’s inexperienced, she’s biased or both. I keep on being asked this question, by the way, on air. Is it one or the other? And I feel like, you know what, just to relate it to “Saturday Night Live” and to date myself, I don’t know if you remember it, but in the first season, one of the fake ads that they would do in the beginning setup of the show was somebody was mopping the floor and they were also making dessert and they spill some of the dessert topping on the floor. And they said, don’t worry, it’s a dessert topping and a floor wax.
Mary McCord: These two things can be true at once apparently.
Andrew Weissmann: Exactly. And so I think that applies to Judge Cannon —
Mary McCord: Yup.
Andrew Weissmann: — can be both inexperienced and biased.
Mary McCord: Yes.
Andrew Weissmann: So, she’s the dessert topping in a floor wax. How is that for a title of the episode —
Mary McCord: There you go.
Andrew Weissmann: — by the way?
Mary McCord: I like that. We’re getting clever in our titles.
Andrew Weissmann: So anyway, that is going on today in about an hour, that hearing with respect to suppression of evidence is being heard. A big part of that is, the first part of it is going to be under seal because it involves grand jury matters. So, a couple hours of that. No one is going to really know what happens because it’s just the parties and their counsel.
But then at about 1 o’clock it will be the public portion of that. And I have to say, Mary, just sort of quick thing, we used to do something like that in the special counsel. But we then were required by the judge to go through the transcript very quickly to identify portions of the transcript that could be unsealed.
Mary McCord: Right.
Andrew Weissmann: That was Amy Berman Jackson. She was very focused on making as much as possible public. I can’t imagine Judge Cannon is doing anything like that, just given her lack of experience. And also that would require a timeframe that doesn’t involve the ice ages and —
Mary McCord: Yeah.
Andrew Weissmann: — something involving human scale time.
Mary McCord: I will say though she has, although on a completely different timeframe as you indicated. She has four other —
Andrew Weissmann: Yes.
Mary McCord: — motions required this process of the government. And Mr. Trump’s attorneys going through and deciding what could be made public. And —
Andrew Weissmann: Yeah.
Mary McCord: — that’s actually why very belatedly, months after the motions and oppositions were filed to suppress evidence when the redacted version was finally made public. That’s what, hey, Jesus word triggered Mr. Trump to go out there and say, ah, just learned that the Department of Justice, Merrick Garland had authorized lethal force against me during the search. And again, that had to do with this completely standard limitation on the use of force policy, which has been completely twisted and turned.
Andrew Weissmann: Mary, you know what I think I forgot to say about why I think this is a sleeper motion. The one that’s being heard today is, so I’m channeling my inner Mary McCord, which is that when there is suppression of evidence, the government —
Mary McCord: It’s appealable.
Andrew Weissmann: Yep. If the suppression is anything material —
Mary McCord: Yep.
Andrew Weissmann: — to the case, it can’t be something immaterial. But if it’s material, that is something the government has a right to appeal pretrial —
Mary McCord: That’s right.
Andrew Weissmann: — by statute. You’ve talked about, Mary, not everything gets to be appealed, but bail conditions can be appealed by either side by statute pretrial. And if evidence is suppressed against the government and they want to use it at the trial, that is allowed to be appealed immediately. Why? Because if there were to be a trial and you don’t have that evidence and there were to be an acquittal, but you say, wait a second, I wanted to use that evidence. You can’t, that’s too late.
Mary McCord: Yep.
Andrew Weissmann: Once there’s an acquittal, it’s done for all purposes. And so the courts say because of that, the government gets to appeal before trial, so that the court of appeals can resolve whether the government can use that evidence at the trial.
Mary McCord: Right. And one other you left out, granting a motion to dismiss an entire indictment.
Andrew Weissmann: Oh yeah.
Mary McCord: Or even counts of indictment is also immediately appealable by the government. But this is the issue where so far Judge Cannon has either denied or denied without prejudice to rebring these motions to dismiss. And I will note that one of the things that was argued Friday and yesterday is this motion to dismiss the case against Mr. Trump, because the special counsel allegedly was appointed in violation of the constitution or being paid in violation of the appropriations clause.
So, one of the things that came out during the hearings, according to the reporting is, you know, this real quarrel over whether the special counsel is so independent of the attorney general, that he’s a principal officer that would have to be nominated by the president and confirmed by the Senate. And therefore the argument goes, according to Mr. Trump, that because he’s too independent, he’s a principal officer. He couldn’t be appointed by Merrick Garland because he wasn’t nominated by the president and confirmed by the Senate. And therefore, the entire indictment is unlawful.
The flip side of that argument came up on Monday under the appropriations clause argument because the argument being made there is that this bucket of money that Congress created long ago for funding independent counsel and indefinite appropriation, in this case, Mr. Trump’s attorneys are saying, you’re actually not, Jack Smith, you’re not an independent counsel, independent enough to be (inaudible) your funding from that bucket. So therefore, again, he argues the entire case should be thrown out.
Now put aside for a minute, as you indicated in your intro to this, that what bucket of money someone is being paid from should have nothing to do with sort of the legitimacy of the indictment. And the government made that clear in its argument yesterday that the remedy here, even if the court were to find that it was improperly funded is not you dismiss the indictment, it’s that going forward we take the money from a different funding source.
But to me, what was interesting is this contrast between he’s too independent for one clause and he’s not independent enough for the other. And I thought it might make sense to talk a little bit about what this animal, the special counsel is according to the special counsel regulations. And these are regulations that were drawn up in the late 1990s. And as you indicated, many special counsels have been appointed since then by presidents of both parties. And they have functioned under these regulations. And what these regulations do is they do say —
Andrew Weissmann: You know what might be useful since you and I know this code, but when you say regulation, could you talk to our listeners about what do you mean? Like is this a congressional regulation?
Mary McCord: Yes, right.
Andrew Weissmann: What exactly is it? And because I think that might help people, especially when we get to some of the legal rulings on this. It was really important, let’s say, to Dabney Friedrich, who’s a judge in D.C., exactly what we mean by regulation.
Mary McCord: Yeah, so laws, things that are in the United States code are things that are passed by both houses of Congress and signed into law by the president. Regulations are actually promulgated by departments and agencies of the executive branch pursuant to authority by statute authority, given them by statute or just their authority generally as executive branch agencies.
And so those do not require the house to enact them or the Senate to pass them or the president to sign them into law. These are regulations and oftentimes they’re promulgated by a process of agency rule making, which involves notice and comment by interested members of the public and things like that. But not all regulations have to be promulgated that way.
So when we’re talking about the special counsel regulations, we are talking about the regulations that govern the general powers of the special counsel consistent with law. And the law really there is consistent with the law that allows for the attorney general of the United States, and this is congressionally passed laws to appoint attorneys to engage in criminal investigations and criminal prosecutions.
Andrew Weissmann: So let me make sure I understand. So, Congress has said to the Department of Justice, the attorney general, in this situation it’s Merrick Garland, but it’s been many different attorneys general and that they have the power to hire employees. They have the power to appoint special counsels. And then within the Department of Justice, the department has passed essentially their own internal rules. We call them regulations.
Mary McCord: That’s right.
Andrew Weissmann: But they are internal rules to the department —
Mary McCord: That’s right.
Andrew Weissmann: — about how it’s going to operate in the way that, let me just give you examples of things that Mary you and I have operated under for many years when we were at the department. If you want to bring a case that involves national security division charges, terrorism charges, you need to have approval of the national security division.
If you want to bring a Foreign Corrupt Practices Act charge, you need to get approval of the fraud section. If you want to charge a company and have the resolution be over a certain dollar amount, the deputy attorney general needs to approve it. There are all sorts of rules. Matter of fact, there are volumes of internal rules.
Mary McCord: There is, yeah. In fact, the no context policy, which we have talked about before that generally prohibits contact between Department of Justice attorneys and the White House about ongoing investigations, criminal investigations, that’s an internal rule, right. It’s not part of codified regulations, but it’s internal rule that all DOJ attorneys must abide by.
So to get back to the special counsel, just to understand what is this, how independent is the special counsel? So, the special counsel regulations make clear that the special counsel will not be subject to the day to day supervision of any official at DOJ. Meaning the attorney general, the deputy attorney general, one of the assistant attorney generals at the Department of Justice.
And that the special counsel can determine whether into what extent to inform or consult with the attorney general or others in the department about the conduct of his or her duties or responsibilities. Okay, so no day to day supervision; however, there is still supervision and it comes in a couple of forms. One is that a requirement that also applies to the U.S. attorneys and those are the presidentially appointed, Senate-confirmed heads of each of the U.S. attorney’s offices around the country.
Andrew Weissmann: Ninety-three of them.
Mary McCord: That’s right. Those U.S. attorneys have an obligation to file what is called an urgent report. That means send that up to the deputy attorney general. Really, anytime they are going to take a significant step in a matter that is sensitive, that frankly, everybody would look at it and be like the attorney general probably ought to know before you go and do this thing you’re about to do.
And as much as you and I, who worked in U.S. attorney’s offices for much of our career, as much as we sort of bristled and kind of hated to ever send anything up the flag pole to the deputy attorney general and attorney general, those were the rules. And that same rule on urgent reports applies to the special counsel. The other thing is that the attorney general at any time can request the special counsel to provide an explanation for any investigative or prosecutorial step.
And if he thinks it was so inappropriate or unwarranted under established Department of Justice practices, that it shouldn’t be pursued. He can actually reverse that. So, these are ways that there is supervision, right. So there’s a level of independence and a level of supervision. So for example, if he gets this urgent report that the special counsel says, we’re about to indict the President of the United States, he can say, give me some more information about that. And if he thought it was so unwarranted or inappropriate, he could require that not happen.
Andrew Weissmann: And the check there is because Janet Reno, who was the attorney general that promulgated all of these rules.
Mary McCord: Yes.
Andrew Weissmann: And she’s trying to balance sort of independence and accountability as well as transparency. So, where the attorney general overrules the special counsel which, of course, they always can do under the special counsel rules. They can do it but they would at the end of the investigation, they would have to report that to Congress.
Mary McCord: That’s right.
Andrew Weissmann: So, that there would be some accountability for that happening, so that the public would know at some point.
Mary McCord: Yes, transparency —
Andrew Weissmann: Or at least Congress —
Mary McCord: — and accountability.
Andrew Weissmann: Yeah, would know that the purpose of the independent counsel may have been thwarted by the politically appointed attorney general. So, that’s sort of the balancing that took place. Let me just give you an example of what you said about the special counsel being subject to rules. When Special Counsel Mueller, when we brought tax cases against Paul Manafort, we had to apply with the rule that said all tax charges have to be approved by the tax division.
We brought FARA charges, Foreign Agents Registration Act charges against various people. Those had to be approved by the national security division. All sorts of internal processes, so that when we brought our charges, people thought, oh, the special counsel brought them. That is true that we proposed them to a grand jury. And ultimately a grand jury has to, like any charge, has to vote on it, but we didn’t have the authority to do that unilaterally.
We had to have the approval of other parts of the department. And so the idea that a special counsel is not beholden to the processes, I can tell you personally, that is not true. In fact, comparing it to my U.S. attorney’s office, where I’m in the field, Mary, you know, in the field, there’s not day to day supervision —
Mary McCord: That’s right.
Andrew Weissmann: — of an AUSA by the attorney general, the deputy attorney general, frankly, not even by the U.S. attorney in my district.
Mary McCord: That was I was going to say. That’s what I was just going to say.
Andrew Weissmann: So, this idea of like the day to day supervision language is fanciful.
Mary McCord: Pretty much, yeah. Right.
Andrew Weissmann: To say, oh, well the attorney general doesn’t have day to day supervision. And so here’s one other thing, which is the reason I asked the question, Mary, about the difference between a law and an internal rule is Dabney Friedrich when she had before her as a judge, the question of, are these rules constitutional. One of the points she made is these are internal rules. Any day of the week, these rules could be changed or not followed by the attorney general.
These are internal guidance and the attorney general is not bound by them. That is so relevant to when a judge is saying, gee, does the attorney general have the power to supervise these people, the power to engage in day to day oversight? The answer to that is yes, he or she does by definition because these internal rules are made by the attorney general and they can be followed or not followed by the attorney general.
Mary McCord: So long as what the attorney general is doing is within his statutory authority, which is what it comes back to, right?
Andrew Weissmann: Yep.
Mary McCord: Absolutely.
Andrew Weissmann: And so anyway, this is one where I’m going to give you a prediction here which is, I think that Judge Cannon so does not want to be taken up on appeal in the 11th Circuit, that she may do one of her typical things where she says, you know, Donald Trump raises all sorts of good and valid arguments. And I think this is outrageous or, you know, some hyperbole here.
Mary McCord: Yeah.
Andrew Weissmann: But she says all these things, but then rules in the government’s favor on these issues because why she avoids an appeal where the 11th Circuit has a chance to, for a third time, take a whack at her rulings and risk being taken off the case.
Mary McCord: Yep, because this would be appealable as we’ve discussed. Okay, let’s go to the break. And we come back, I do want to still talk a little bit more about not only the hearing yesterday on the motion to modify conditions of release, but also the gag order up in Manhattan. And I want to get back to your issue about, you can be both the frosting and the floor wax with respect to Judge Cannon, so.
Andrew Weissmann: Right, I love it.
Mary McCord: Okay.
Andrew Weissmann: I love it. Okay.
Mary McCord: Let’s take a break.
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Mary McCord: Welcome back. As promise, we do want to take a few minutes to talk about yesterday afternoon’s hearing on the motion to modify the conditions of release. And again, I don’t yet have a transcript of this, Andrew, and neither of us were in the courtroom. But we did kind of get the rundown from people who were in the courtroom.
And it sounds like the government attorney David Harbach had a difficult time with Judge Cannon. Recall, as we’ve already indicated, that this request to modify, you know, this is the one case that they had never sought any type of gag order in, right. They got their gag order in the D.C. case long, long time ago, already had gone up to the D.C Circuit and been affirmed, modified slightly but affirmed.
There were gag orders before Judge Engoron, Judge Merchan of course. So, any many other cases they had done this. They had never sought that in this Mar-a-Lago case until Mr. Trump’s lies about that use of force policy, which then led to a number of his close allies getting even more extreme and saying that this was an assassination order.
And I think Jack Smith and his team very rightly thought, this is extraordinarily dangerous for the FBI agents involved in this case and law enforcement. And we’ve got to go to the court and ask those kind of statements not be made.
And this request is very different than the gag order request, which applied to things like judges’ families and staff members of the court and prosecutors and their families and jurors or witnesses. This is just not to say something that it is foreseeable, would lead to significant and imminent danger to law enforcement.
Andrew Weissmann: They cited to an example of someone being charged in connection with threatening an FBI agent who worked on the Hunter Biden case whose identity was known and left really horrendous voicemails, texts, et cetera with really direct, outrageous threats.
Mary McCord: Yes and that’s so interesting, right? Because, I think this leads directly into one of the things Judge Cannon said as, isn’t the fact that the FBI agents involved in the Mar-a-Lago investigation, that their names have been redacted from all of the court filings? Isn’t that sufficient, right?
Andrew Weissmann: Sufficient, right.
Mary McCord: You know, I’m supposed to be concerned about only doing what’s necessary, what’s the least restrictive thing. And, you know, even under the of bail laws is that there has to be clear and convincing evidence, that there’s no condition or combination of conditions of release that would reasonably assure the safety of other people.
And so she’d have to say this, there’s no condition other than this, right. And she’s saying, isn’t redactions enough. And people might think, well, if the threat came to a agent on the Hunter Biden case, maybe does that show that redactions are enough. And I think it certainly shows redactions have helped because it does seem weird that that’s the agent who got threatened, except for the fact that his name was out there and the other names are not as readily accessible.
But as the special counsel has pointed out, those names have been leaked. Some of those agents have been doxxed. There are other places they’ve been leaked. Obviously, they didn’t leak the names in the course of the hearing. So if someone is determined to make a threat, this is information that is accessible. But even if it’s not to these agents in particular, the example show —
Andrew Weissmann: Exactly.
Mary McCord: — other agents are at risk. Recall also that immediately after the Mar-a-Lago search warrant was executed, there was actually a shooting attempt on the Cincinnati field office of the FBI. Clearly not the office that engaged in that Mar-a-Lago search, but nevertheless, a target. So, it puts a target on all of federal law enforcement backs as well, frankly, as the Department of Justice prosecutors, because the allegation here is Merrick Garland ordered this, right? So, it’s more than just redaction.
Andrew Weissmann: Exactly. To me, there were sort of two things going on and again, we don’t have the exact wording, which will be important. But based on the reporting and our discussions with people who were there, the idea that it’s like, oh, but I don’t have to worry about it because those are other FBI agents is, one, it was wrong. And two, it’s beyond myopic as to what the request was. And the other part was essentially can’t we just wait until something happens?
Mary McCord: Yes.
Andrew Weissmann: I mean it was basically until it happens, you can’t show causality and you know, the prosecution understandably was, I used this word on air yesterday and people made fun of it.
Mary McCord: Yeah.
Andrew Weissmann: Perturbed.
Mary McCord: That is mild.
Andrew Weissmann: Angry, upset, frustrated.
Mary McCord: And was rebuked for it for becoming frustrated.
Andrew Weissmann: Yeah. You know, you don’t want that to happen.
Mary McCord: Yep.
Andrew Weissmann: But that’s the least of it. The thing that was surprising to me was that there wasn’t an equal even handed response by the court to the defense. I mean you’re sitting here and you know that the statements are false. You had said publicly that your words lead to action like no others.
Mary McCord: Right.
Andrew Weissmann: How is it that you do not and you know that there have been violent actions. So, walk me through when you make false statements that could lead people to be very upset and you know that has led to violence, why that is not foreseeable? Why that is not a risk of danger? There was none of that kind of questioning.
Mary McCord: Well, in fact it was the reverse, right. As I understood it and based on the reporting, instead she was —
Andrew Weissmann: Yeah.
Mary McCord: — pressing the prosecution, where is the causal link between Mr. Trump’s comments and, you know, any threats or acts of violence, which quite understandably the response is, well, we’ve got time and time and time, again, of him saying something. And either actual violence occurring, like the attempted shooting on the FBI field office or threats, like the threat to the agent just the other day after these statements were made.
Andrew Weissmann: Or how about the January 6th indictment?
Mary McCord: Well, right, that’s right.
Andrew Weissmann: Which is a finding of probable cause that cannot be looked behind by a grand jury.
Mary McCord: Yes, that’s a great point.
Andrew Weissmann: So, I mean the reason I think that the suppression issue today, depending on how it goes, it may end up, if she disagrees with Judge Howell on attorney-client privilege and crime fraud, if she does suppress and she does so anytime in the foreseeable future, that’s a huge if because —
Mary McCord: Right.
Andrew Weissmann: — you know, she could always just kick the can down the road as she has done. These are all vehicles to get back to the 11th Circuit. Speaking of the 11th Circuit and her fear of being removed, some of the reporting that has happened since we talked, Mary, is reports that two judges at the district court level —
Mary McCord: Well, hang on, hang on, hang on. I want to do a little lead up to this here. Because we had a listener, because I think this is very relevant to one of our listener questions.
Andrew Weissmann: Yeah, okay.
Mary McCord: One of the listener questions —
Andrew Weissmann: Yeah.
Mary McCord: — basically and I’ll paraphrase the beginning part is, it seems like we have spoken favorably about things that Judge Merchan did in the Manhattan prosecution most recently, whereas we’ve been critical of things that Judge Cannon has done in the Mar-a-Lago case. And asked, can you help me or us listeners set our expectations. Was the judge in New York an outlier? Is the judge in Florida an outlier, or is the U.S. legal system broken or is this just understandable variance and banter between judges? And I think this goes back to, you can be both the frosting.
Andrew Weissmann: great question.
Mary McCord: And the floor wax when we come to Judge Cannon and whether she is inexperienced or biased. And anyway, to that point —
Andrew Weissmann: We have reporting that two judges at the district court level who work with Judge Cannon, one of whom is the chief judge at the district court level, who has authority over the court but doesn’t really have the power —
Mary McCord: Yeah, all judges are —
Andrew Weissmann: — to remove —
Mary McCord: — appointed for life. Just like the Chief Justice of the Supreme Court doesn’t actually have —
Andrew Weissmann: Right.
Mary McCord: — authority over the other judges, yeah.
Andrew Weissmann: So, there’s reporting that those two judges asked Judge Cannon to consider recusing and give various reasons. Some of which included inexperience and then location. But it was clear, inexperience was really the main one, and she refused to. I think one of the more interesting things that, to inform sort of like one of the many reasons I’m critical of her versus Judge Merchan is her lack of use of the magistrate judge.
So, she is saying she is inundated and she has so many cases, so much stuff in front of her in this case. But let me just describe what a magistrate judge is. So in every federal courthouse, there are federal Article III judges. They’re appointed as Mary, as you said, nominated by the president. They’re confirmed by the Senate, and those are full Article III judges. But then, there are magistrate judges, I used to describe them as like a sous chef and —
Mary McCord: That’s not a bad description.
Andrew Weissmann: — they do all sorts of things. They hold civil trials but in criminal cases, they can handle a lot of discovery disputes.
Mary McCord: Pretrial motions, yup.
Andrew Weissmann: Lots of the pretrial motions. And so they write what’s called a report and recommendation and the district court can always affirm it, change it, et cetera, but it helps move things along. And it is very common for two things to happen. One, every case is assigned a judge and a magistrate judge. This case has a magistrate judge. In fact, the magistrate judge was the magistrate judge that signed the search warrant.
Mary McCord: Who’s also a very experienced magistrate judge.
Andrew Weissmann: Exactly.
Mary McCord: They are appointed. They are, again, not appointed for lifetime tenure with the consent of the Senate, but they are appointed for a significant terms of years and can be reappointed.
Andrew Weissmann: Exactly. And so it’s notable to me that while she’s saying, oh, I’m so inundated and I have so much on my plate, she has decided not to use the magistrate judge. And the answer to that as to, when you think to yourself, gee, why would that be? And I am really cynical, one, because it would move the case along and she doesn’t want to.
And two, imagine that you are biased and you are consistently ruling for Trump. Well, the magistrate is not going to do that. The magistrate is going to be impartial, and it’s going to put you in a position of having to overrule the magistrate and looking even worse.
Mary McCord: And especially when the magistrate who’s assigned to this is the one who did sign the search warrant of Mar-a-Lago. And so she may be concerned that he would be ruling in ways with which she disagreed.
Andrew Weissmann: Yep, exactly. By the way, in your experience, I mean I think in my experience, I mean the idea that, one, I don’t think you’d ever learned that a chief judge has asked a judge to step aside, but I mean I have never, ever heard it. But I also think that if I were a district judge and a chief judge asked me to step aside, for lack of experience, that’s like the first thing I would do. You’re part of a courthouse. You’re part of a collegial group that chief judges are usually very respected.
Mary McCord: And have experience, right? They’ve been there for years.
Andrew Weissmann: And it would tell you that maybe your internal judgment about whether you could be fair and you are up to the task is wrong and that you should defer to it. Because remember, it’s not about you.
Mary McCord: Right.
Andrew Weissmann: You be thinking about the institution of the court. And if the chief judge is asking you that, that is something that you just do in the same way that when chief judges ask you to be on committees and do all sorts of things, the answer is like we’re reluctant, yes.
Mary McCord: And it’s interesting because I have spoken before on this podcast and elsewhere about how, when she is sitting in Fort Pierce by herself, she’s the only Article III judge in that courthouse, to my understanding, she doesn’t really have mentors around her who might take her under —
Andrew Weissmann: Yup.
Mary McCord: — their wing and say, you know, this is how you might want to handle some of these motions. Some of these can probably be given to the magistrate for report and recommendation and they should because they will move things along. Some of these you can rule on without argument. Let me talk to you about how I’ve done CBRA (ph) proceedings before. And I thought, oh, she doesn’t have anybody.
Well now, at least according to this reporting, she certainly has had some judges reach out now. Who knows if they’re also, you know, consulting with her on these other matters now that she stayed on the case about how to move the case along and how to handle certain motions or whether they’re not, I don’t know. But at least it showed me, oh, there was somebody reaching out.
So to get to the listener’s question, who’s the outlier? I mean, in my opinion, based on my experience, it’s Judge Cannon who is the outlier. Some of the things she’s done I think are more about inexperience, you know. She’s maybe uncertain about something. So, she wants to have extra briefing and argument. But again with, you know, mentorship and talking to fellow judges, who’ve handled highly sensitive cases before and things, similar types of motions, looking to others, how they’ve addressed, like you mentioned, Judge Friedrich here in D.C. looking to her opinions.
These are things that judges can learn from. Everyone has a, you know, to get up to speed when you’re a newly appointed judge. And it just doesn’t really feel like she’s taking advantage of those things and some of her rulings and some of the things she takes seriously are not just about differences of legal opinion. In my opinion, they show just a fundamental misunderstanding of the law in some cases and the practice in others.
And that’s why, you know, I feel like she’s an outlier. And if nothing else shows it, it’s how quickly the 11th Circuit reversed her not once, but twice before she even got assigned the criminal case when she was handling Mr. Trump’s civil case brought to stop the government from reviewing the documents that were seized during the search warrant.
And she actually engaged with that argument, so much so that the 11th Circuit reversed her on two different times, really with a big reprimand that you had no jurisdiction over this whatsoever, Judge Cannon. So, I think that shows how outlying her legal opinion was in that particular issue. And we’re seeing that in some of these other issues as well.
Andrew Weissmann: Yeah. So, should we just briefly comment on something that we discussed last week but we now actually have a filing which is, we talked about judge Merchan and that there’s this motion pending before him with respect to whether the gag order should still exist. But there’s been a filing since we last talked where the DA actually set out his position.
And it’s somewhat like what we predicted, but it goes a little further. The DA said that the gag order should continue with respect to jurors and with respect to essentially court staff and prosecution staff. Remember, it did not cover the prosecutor himself, DA Bragg or the judge, Judge Merchan. But it did say in figuring out a balancing that you could lift the gag order as to witnesses.
But pointedly noted that does not mean that the witnesses are without protection because they could break both civil suit. And if they were to be threatened, there could be criminal violations that could be brought up. But it was, I thought, a significant concession in terms of trying to balance First Amendment interests against safety interests.
Mary McCord: Yes and I thought it was interesting too. I expected them to potentially concede with respect to Michael Cohen and Stormy Daniels because they’ve frankly been dishing it out, not unjustifiably, but dishing out a lot themselves. And the judge had already indicated, look, you know, they may not really need the protection of this gag order.
But I was surprised, you know, in some ways to give it up with respect to all witnesses, because I think actually the prospect for threats to them, continuing threats to them is just as likely as threats to the jury or jurors and to prosecutors and court staff. And in fact, those threats DA Bragg and his filing made clear, no, they have not dissipated at all.
In fact, you know, they’ve been huge numbers since the trial concluded of threats that are being made on a regular basis. So, it made me wonder if the district attorney’s office had, you know, perhaps consulted with the different witnesses and gotten their view about this or had just concluded that other than Stormy Daniels and Michael Cohen, who I think they probably needed to concede on that the others were not likely to be —
Andrew Weissmann: Threatened.
Mary McCord: — threatened, yes.
Andrew Weissmann: Right.
Mary McCord: And some of those were people who still, remember we talked about different witnesses who broke down in tears because they still felt, you know, like they had a relationship with Mr. Trump. We had his good friend David Pecker who seemed to be not —
Andrew Weissmann: Yeah.
Mary McCord: — worried or frightened at all about this. So, it could be that the conclusion was it’s not necessary with respect to them. Did you have that thought?
Andrew Weissmann: Yeah, I mean I had the same sort of view, which is like, why not just leave it as to those two. But then I think at that point, they realized those are really the only two that he wants to threaten because the other people, bizarrely, even though they had incriminating evidence, he didn’t threaten.
Mary McCord: Yup.
Andrew Weissmann: So, Hope Hicks, David Pecker, so I could see them saying, you know what, we can take the high road here and with less concern. You know, I actually, this is where I might have been a little bit more forward leaning than the DA here, which is, I think that even though Stormy Daniels and Michael Cohen have spoken, that’s their First Amendment right to speak. And they’re not doing anything that would lead to violence as to Donald Trump. So, I don’t know that really sort of opens the door to a disproportional response.
Mary McCord: Agree.
Andrew Weissmann: And it’s not like they’re threatening him.
Mary McCord: Right.
Andrew Weissmann: So, the sword-shield analogy, I understood it —
Mary McCord: Yeah.
Andrew Weissmann: — during the trial, it’s to saying, look, knock it off. Like you can’t speak —
Mary McCord: Right.
Andrew Weissmann: — when he can’t even say you’re lying.
Mary McCord: Yes.
Andrew Weissmann: But this is about threats. And so I could see it having been changed, but tailored more to threats. But I think the DA, you know, it’s hard to sort of second guess this because —
Mary McCord: Yeah.
Andrew Weissmann: — the DA is closer to the facts and the circumstances and is obviously extremely concerned about witness safety. So, I’m pretty sure they would have taken this after a lot of consultation, as you mentioned, Mary.
Mary McCord: Yeah.
Andrew Weissmann: So, Mary final thing is we are sitting here on tenterhooks with respect to the Supreme Court. Everyone should know that the Supreme Court has announced that they have three days that they’re going to be issuing opinions this week, Wednesday, Thursday, Friday. Normally, they just issue opinions on Thursday.
So, it’s highly likely that we will get one or both of the decisions that we’re waiting on, which is the immunity decision and the Fischer obstruction decision. So, let’s take a quick break. And when we come back, we’ll talk SCOTUS.
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Mary McCord: Okay, welcome back. So, I want to come into this by just sort of combining a number of listener questions. We have got many asking about essentially what’s going to happen after we get these decisions. One, as I indicated —
Andrew Weissmann: I have that question.
Mary McCord: Yes, I have that question too. You know, one says just an observation with this long delay, isn’t this basically like a presidential pocket veto and this trial, you know, won’t be able to happen before the election. Another couple of people were asking, does SCOTUS even have to hand down an immunity decision before the election? Others are asking what kind of things will happen after the decision?
So, let’s answer a couple of those really easily. And then let’s talk just briefly because we’ll have much more to say after we get the opinions about what might happen after we get the opinions. First, in some ways it very well may be a pocket veto, right? Because by waiting until the very end of June to issue its decision with the election coming up so quickly, it will be difficult for this case to get to trial before the election.
Judge Chutkan has already said she would give Mr. Trump’s team essentially about little over 80 days to get back into responding to motions and getting prepared before she starts ruling on things and getting ready for trial. So, that’s a lot of time. There’s some different ways she might go about handling this, which will come to. But you know, that’s, I think, a lot of people are feeling.
Like, yes, essentially this is meaning there’s no way we can get to trial before the election. But as to the question about, does the Supreme Court need to hand down a decision? Yes, the Supreme Court just by its rules, every term is its own term. The term starts with arguments, the first Monday in October. It concludes with decisions usually by the last day of June.
Sometimes those will go into the first week of July. Things got thrown off a bit also during COVID because the court was shut down for a time. But this is what they do, they issue every opinion of the term at the end of the term. And then, they have a break when they’re considering new petitions for their next term, which they’ve already been considering, you know, just yesterday announced several cases they will take.
And then they start a new term in the fall. So, that one is an easy question to answer. They will not be holding this decision until after the election. But that doesn’t tell us anything about what might happen after the decision. And so a lot of that depends on the ruling. Obviously if the Supreme Court agrees with Jack Smith’s argument that there is no presidential immunity from criminal liability, even for official acts, then the case can just get back on track to get to trial.
You know, we’ve discussed the way the hearing went. It certainly seemed like there at least some justices who think that there might be some type of immunity for things that are within the quote, outer perimeter of official acts or they could create some other perimeter of official acts. Maybe it wouldn’t be outer, maybe it would be inner perimeter.
And so then the question, if they were to issue a ruling like this, that would say there is some immunity for some aspect of official acts, then the question would be, how does Judge Chutkin determine what’s immune and what is not, thing one. And thing two, what will the Supreme Court have said about whether the official acts, even if they can’t be the basis for the charge conduct themselves, could still be introduced into evidence to support the charges for personal acts? And certainly this is something that chief justice, I think, seemed —
Andrew Weissmann: Yeah.
Mary McCord: — very clear that you’ve got to be able to introduce official acts —
Andrew Weissmann: Right.
Mary McCord: — to support the motive and intent and context of the even unofficial personal acts. But those are sort of the two key things. So on that first point, Andrew, I know you’ve been thinking a lot about this and thinking about options that might be available to Judge Chutkan. I mean we’ve all have been, but you’ve got a piece that will be coming out in op-ed after this happens, depending, of course, on what Supreme Court does.
Andrew Weissmann: Exactly.
Mary McCord: So, let’s assume there’s some type of ruling, that there’s some immunity within, you know, some perimeter of official acts.
Andrew Weissmann: Yeah.
Mary McCord: What then?
Andrew Weissmann: So, one quick comment about Chief Justice Roberts and your thing two about evidence.
Mary McCord: Yeah.
Andrew Weissmann: This was pointed difference with Justice Alito or Justice Alito made this comment that was so disingenuous saying, well of course, if there’s this area that the president is immune, then of course it would also wouldn’t be meaningful if we allowed evidence in about that area. Of course, you couldn’t do that.
And Chief Justice Roberts basically was like, are you freaking kidding me? I mean he was like, that makes no sense. I mean he talked about all these examples that you would never be able to prove charges where there was using official conduct.
Mary McCord: Well, the best one.
Andrew Weissmann: Yes.
Mary McCord: I think this is so easy for listeners to understand. And I know I’ve said it before, but I’ll say it again because not everybody hears every episode. I mean the chief judge said let’s pose that —
Andrew Weissmann: What? What? Wait. What?
Mary McCord: Okay, all right. I’m sure every listener listens to every episode all way from the start to the finish.
Andrew Weissmann: And has it committed to memory, especially when it’s a Mary McCord point.
Mary McCord: Oh gosh, I don’t know. They probably know your anecdotes better than my legal points. But the chief justice gave the example of a bribery case where the president promised an ambassadorial appointment in exchange for a bribe.
Andrew Weissmann: Right.
Mary McCord: And an ambassadorial appointment is an official act that a president does. Accepting a bribe is a purely personal act. That is not part of an official act. And the chief justice said it can’t be that the government would only be able to put on the evidence of, you know, taking a payment without the evidence of the promise of the ambassadorial appointment. But nevertheless, that’s essentially what Mr. Trump’s attorney’s position was, so.
Andrew Weissmann: And Justice Alito, who said that too.
Mary McCord: Yeah.
Andrew Weissmann: I mean talk about half-assed.
Mary McCord: It seems so ludicrous even to articulate it, but I —
Andrew Weissmann: Yes, but he did.
Mary McCord: — don’t think that, yes, yes.
Andrew Weissmann: Yes.
Mary McCord: I don’t think Justice Alito’s view is going to carry the day on that.
Andrew Weissmann: Yes, it will not, it will. So, that’s thing too, I think one, this depends on exactly how the decision comes out. But I am f the view and I think you are too, that this already is defacto immunity for this particular former president because there will not be a trial before the general election. It won’t be defacto immunity if he is not reelected because then the case will go forward, but not before the election.
So the issue is, is there some other way that the public would hear additional evidence about the January 6th case? Obviously there was the January 6th Committee hearings and they heard witnesses there like Cassidy Hutchinson. But there are lots of other witnesses including Mike Pence who has, by all accounts, has gone into the grand jury here and who has relevant evidence. There are lots of lawyers who testified in various ways before the January 6th Committee, but invoke privileges.
So, they didn’t have to talk about certain things, including direct conversations with the then president, with Donald Trump. There presumably is a lot of other evidence that could be heard and obviously most dramatically the vice president. So, one of the things that could end up happening is that Judge Chutkin maybe warranted or even required for here to have a factual hearing on this issue of what is official versus what is personal because if she decides that something is official and thus immune, the former president would not go to trial on those.
And so she could have a hearing at which the government has to put on evidence and put on factual witnesses about what happened. And that is also something that she would not have to wait 80 days to do. It’s not a trial, it’s a hearing. So again, it very much depends how the court rules. There is a way that the court might rule to say, there is no factual issue at all. And these are just legal issues.
Mary McCord: Right.
Andrew Weissmann: The court itself could decide what parts of the indictment are —
Mary McCord: What’s official and what’s not, right.
Andrew Weissmann: Exactly and leave nothing to the district court. So it remains to be seen, but I’m keeping my eye on this possibility because I’m trying to think, is there any way that she would have leeway to have some way of exploring facts on an open issue that the Supreme Court leaves for her? Because if that doesn’t happen, I don’t think that the public is going to hear and learn that additional evidence before the election, which the public then has been denied, both its right to a speedy trial.
And as part of that, it’s learning about this additional evidence in a way that they could factor it into what they do. Now, obviously, that latter part is not the judge’s function, but it is as citizens. It is something that is obviously incredibly useful for people to know the full set of facts related to who is running for office.
Mary McCord: Yeah, I am dubious that that type of a hearing will happen.
Andrew Weissmann: Right.
Mary McCord: But it does depend on what the Supreme Court says. I think the judge will be worried about trying to do something that would appear that it is just trying to get facts out there before the election. And if it’s not required essentially by the Supreme Court —
Andrew Weissmann: Yeah.
Mary McCord: — I think Trump will oppose it and say these are legal issues. And I think probably, you know, the president’s responsibilities emanate from the constitution. And so like what’s official and what’s not seems to me to be something that can probably be answered as a matter of law with legal briefs and arguments. And there’s also some concessions by his own attorney at argument about things that were personal.
So again, and you and I have talked about this, Jack Smith could also just come in and say, I’m trimming this thing way back. We’re only going to put on, you know, X, Y, Z evidence. And you know, we can get to trial before the election. I don’t know.
Andrew Weissmann: Yeah. And look, there also could be that if she’s insisting on some area of the hearing because there is, I agree with you, not just an open issue, but a sort of a required issue, Trump’s counsel might just say, you know what? We agree for the purposes of the trial that you can put that on.
Mary McCord: Yep.
Andrew Weissmann: Because they will be strategizing. We want to avoid a hearing before —
Mary McCord: That’s right.
Andrew Weissmann: — the election. So, we will agree that you can do it at an eventual trial, essentially putting —
Mary McCord: Yep.
Andrew Weissmann: — all their eggs in the election basket.
Mary McCord: Yep, 100 percent.
Andrew Weissmann: So lots to —
Mary McCord: More to come.
Andrew Weissmann: More to come and it may be, you know, it’s so weird. It’s like, why is this day like any other day, which is, you know, like there’s no decision. But it does look like between now and Friday at around 10 o’clock. It’s at 10:00 a.m. on Wednesday, Thursday, Friday that we learn what decisions are being announced. It does look like this may, in fact, be the week.
So Mary, we will be seeing each other and we will get the answer to the really great listener questions about these decisions.
Mary McCord: Sounds good.
Andrew Weissmann: Before we go, we have an exciting announcement. On Saturday, September 7th, so September folks. So, it’s like have a great summer but after Labor Day. So, put it on your calendar, Saturday, September 7th, MSNBC will be hosting a live event at the Brooklyn Academy of Music here in New York City. It’s called “MSNBC Live: Democracy 2024.” And this premier event is all to celebrate our fans.
It will be your chance to hear thought provoking conversations about the most pressing issues of our time. We do in person events with some of your favorite journalists. I think all of your favorite journalists, I think. You can also take part in a sit down dinner for an insider’s view of the upcoming election.
So, you can get more information by going to msnbc.com/democracy2024. Let me repeat that, msnbc.com/democracy2024. We’ll also put it in our show notes, so you can look at it there and hope to see you all there.
Mary McCord: That sounds awesome, Andrew, very exciting. And now I get to do something that I don’t usually get to do, which is take us out.
Andrew Weissmann: I love it.
Mary McCord: Thanks so much for listening. We want to continue to answer your questions as they come up. To send us a question, you can leave us a voicemail at 917-342-2934 or you can e-mail us at prosecutingtrumpquestions@nbcuni. That’s nbc u-n-i.com.
This show is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineers are Catherine Anderson and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the Senior Vice President for Content Strategy at MSNBC. Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.
Did I do okay?
Andrew Weissmann: I think you did, yeah.