What aspects of a president’s conduct are considered ‘official acts’? This is a live issue in several of Donald Trump’s criminal cases. Veteran prosecutors Andrew Weissmann and Mary McCord detail Manhattan DA Alvin Bragg’s response brief to Donald Trump’s argument that the immunity ruling should impact his New York verdict. Then, they remind us of Mark Meadows’ indictment in Georgia as part of the RICO conspiracy case. Citing the immunity decision, Meadows has now petitioned the Supreme Court to review the previous 11th Circuit denial to move his case from state to federal court. And lastly, after the High Court’s immunity decision, the DC January 6th case heads back to Judge Tanya Chutkan’s courtroom later this week, where briefing will begin to sort through what is considered official, versus personal conduct.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello and welcome to “Prosecuting Donald Trump.” It is Tuesday morning, July 30th. Oh, I can’t believe it, July 30th. It’s like, for those of us who teach, it’s only one month left for the summer. So, I’m Andrew Weissman and I’m here with Mary McCord. Hi, Mary.
Mary McCord: Hi, Andrew. For those of us who teach and have a normal —
Andrew Weissmann: A day job.
Mary McCord: — 365-day-a-week job, it sort of just feels like another day. But you’re right, we actually start teaching also within a month, and it seems like we’ve barely even finished. So, that’s just the way. Of course, you know, my life since age 50 has been on fast forward. I don’t know about you, but.
Andrew Weissmann: So, speaking of that, welcome back from Highlands, where we did our live show, it was really nice to see you. Like, it’s so funny, I always feel like I’m seeing you, but it’s really different when we’re actually in the same room.
Mary McCord: It’s right. Days and days, yeah.
Andrew Weissmann: So, what’s on our dance card?
Mary McCord: Right. I think, for listeners, we are continuing to see the fallout from the Trump immunity decision of the Supreme Court. We talked last week about the motion before Judge Merchan in Manhattan, brought by Alvin Bragg. We now, of course, have Alvin Bragg’s response to that, which we’ll talk a little bit about today. But really, the other big thing that got filed, it got filed on Friday, was Mark Meadows. Yeah, blast from the past now, indicted in Georgia along with 17 others as part of that RICO conspiracy case, has now petitioned for review in the Supreme Court, for review of the 11th Circuit’s denial of his motion to remove his case to federal court. Remember, this is a Georgia state case that he sought to have in federal court. And what we’ll talk about is how this is really just more and more of the fallout from the immunity decision.
I mean, sure, he had that removal motion way before the immunity decision, but he’s now using the immunity decision as part of his petition. So, we’ll talk about that and then just get to a few things on our radar because there’s some things that are going to be coming up, schedules, things that we’re looking to in the next weeks and months.
Andrew Weissmann: Yeah, there’s some big things coming up, not just sort of 11th Circuit briefing and sort of our legal appellate side, but there’s the case going back to Judge Chutkan. So, that’s going to be a really interesting thing to talk about and sort of what we’re looking for. One quick note is this is a pat ourselves on the back moment. We don’t really do that, I have to say, which is kind of nice.
Mary McCord: No, never.
Andrew Weissmann: Never.
Mary McCord: Sometimes we’re wrong and we just ignore that and we just move on.
Andrew Weissmann: Although the immunity decision, I think we were pretty good about.
Mary McCord: Yeah. Yeah.
Andrew Weissmann: What’s the phrase? We blew it?
Mary McCord: Yeah, well, yeah. That’s still PTSD, so.
Andrew Weissmann: Exactly. Okay, I’m triggering you already.
Mary McCord: Yes.
Andrew Weissmann: Okay. So, patting ourselves on the back, this podcast won and our whole team won another award and it’s Adweek’s award for best political podcast of 2024. And it’s so funny because you and I think probably don’t even think of this podcast as political. We really think of it as legal.
Mary McCord: In fact, we tried pretty hard to make it legal and not political.
Andrew Weissmann: I know. It’s like when we’re both on air, we’re really good about trying to studiously avoid sort of political commentary. But in any event, that’s a long way of saying thank you, listeners. Thank you, Adweek. It’s very flattering. And I know, Mary, I speak for you, which is if you’d said to us when we were left the government that we were going to be doing an award-winning podcast.
Mary McCord: We would have laughed.
Andrew Weissmann: Yeah. It would have been something along the lines of, I’m not sure what you’re on, but I’d like some of that.
Mary McCord: Right. I will say the description that Adweek had of the podcast doesn’t sound political at all.
Andrew Weissmann: It’s true.
Mary McCord: It sounds like what you do is you tune in to hear the deeper dive legal analysis of the case —
Andrew Weissmann: I know.
Mary McCord: — which is why we’re here. Yeah.
Andrew Weissmann: It was a really nice, thoughtful description. Have we finished? Is it enough? Patting ourselves on the back.
Mary McCord: Yes. My back is so padded that it’s getting sore.
Andrew Weissmann: Yeah. My shoulder is a little wrenched out from doing the patting.
Mary McCord: Yes.
Andrew Weissmann: So let’s turn to our first topic, which last week we talked about that there was briefing. This is a very live issue, which is the briefing in the New York criminal case where there is a jury conviction on the 34 felony counts. But there is briefing about the effect of the Supreme Court’s immunity decision because the Supreme Court, just to remind people, had said even in a case involving personal conduct where the crimes are personal, there’s an issue about what can be heard with respect to official acts by the president and can that evidence be introduced. And if you recall, the Supreme Court by a decision of five to four on this issue said that there are restrictions. It’s not absolute, but there are restrictions. And we sort of surmised what we expected. And that brief has now come in. Alvin Bragg has now submitted his very lengthy brief setting out the various reasons why the sentencing should go forward and why there’s nothing in the Supreme Court’s decision that should result in the convictions being set aside and there needing to be a retrial of the case. That would be the remedy if the trial judge were to agree with Donald Trump.
Mary McCord: Well, except for one little caveat there, which is that, you know, again, in this swing for the fences motion that Donald Trump brought, he actually made a final argument that there couldn’t even be such a thing as a retrial because the grand jury would have considered official acts evidence and so essentially the entire indictment was tainted by that and should be thrown out. I mean, that’s a reach. Let’s just say that’s an extended reach.
Andrew Weissmann: Yeah.
Mary McCord: And I don’t think, you know, our greatest, tallest basketball player could reach that high. But nevertheless, he is trying —
Andrew Weissmann: Yes, right.
Mary McCord: — to get rid of the whole thing once and for all.
Andrew Weissmann: Good point.
Mary McCord: As we predicted, though, the district attorney comes in in his response to the motion saying, although the Supreme Court restricted the consideration of certain evidence of official conduct for which the president is immune, that ancillary holding, remember, ancillary to the primary holding, which is that a president cannot be prosecuted for official acts, that ancillary holding about evidence, the D.A. says is inapplicable here. And he says for several reasons. One is that the defendant failed to preserve an objection on immunity grounds to most of that evidence. And in fact, the D.A. goes back in history and gives the entire sort of recitation of the proceedings in this case, including the former president’s attempt to remove the case to federal court in part on immunity grounds, the federal district court judge denying that motion, sending it back to state court. This is a little bit of foreshadowing of what we’re going to talk about with Georgia, sending it back to state court. Trump’s team taking an appeal of that, but then deciding to abandon that appeal. So one issue here is you could have pushed this immunity issue and you decided not to, says the district attorney in his opposition.
Andrew Weissmann: Can I just interrupt for a second just to make sure everyone understands? So this is like saying whatever the merits are of the claim. I started in Trump, but we’re about to get to that.
Mary McCord: That’s okay. Yeah.
Andrew Weissmann: But this is an issue of essentially, you’ve waived it. It’s like in order to make a claim now post-trial, the courts want to see that you’ve actually made the claim before and given the trial court an opportunity or there has to be a very good reason as to why you didn’t make the claim. And so as to most of these, the claims that Donald Trump made, the D.A. says it’s waived. In other words, you had the opportunity and you did not raise this. In fact, you abandoned it. That’s your point about when they went to federal court —
Mary McCord: Exactly.
Andrew Weissmann: — they actually started to assert presidential immunity and then decided not to. And so the first argument is basically you did not make this claim below. You had an opportunity and now you shouldn’t be heard on that issue.
Mary McCord: Right.
Andrew Weissmann: And then they go on to the issue of the merits. And that’s where I interrupted you.
Mary McCord: Well, no, actually, there’s another one of those sorts of failure to preserve issues that one is you abandoned it and waived it in your federal court proceedings. But secondly, even in these state court proceedings, you failed to object to all the things that you now say should not have come into evidence. And again, part of this is about generally speaking in any trial, but in criminal trials, if you do not object to things before trial or during trial and give the judge the opportunity to rule on them, then your ability to bring those issues on appeal is restricted. And the way that it’s reviewed on appeal is different than if you had preserved the err. It’s not that you cannot get any review for most errs, but it’s something we call plain error review. If we really want to geek out, we can talk about the two different types of review. And so it’s harder to get a win or a reversal on something you did not object to earlier because the whole idea is, look, you can’t pull a gotcha at defendants. You can’t sit there; hope you’re going to win and get a jury to rule your way. And when you don’t bring up a whole bunch of things on appeal that you never gave the trial court judge the ability to rule on. It’s one of the just bedrock principles of defense in trying a case as you’ve got to bring up issues and let the trial court rule on them.
Andrew Weissmann: And in next year’s course, we’ll cover plain error and clear error and the difference between waiver and forfeiture of a claim.
Mary McCord: Forfeiture, yes.
Andrew Weissmann: So that’ll be in next year’s —
Mary McCord: That’s true.
Andrew Weissmann: — criminal procedure class.
Mary McCord: Yeah. That’s the 200-level class.
Andrew Weissmann: Yeah, okay.
Mary McCord: Maybe the 300 level. And so the two things that he did object to, right, as Alvin Bragg says, the only two things that you objected to was Hope Hick’s testimony just with respect to her testimony about statements that Mr. Trump made when he was president and the admission of the Office of Government Ethics Form 278E, which is one of those forms that is about your financial statement form that’s required of all federal officials. Alvin Bragg says those are the only two things you preserved. Everything else you failed to object to.
Andrew Weissmann: So on page 13, I thought that the D.A. gave a very good summary of the three ways in which the D.A. says that the remaining claims do not work. And I just thought it was a very easy to understand way of understanding what they’re saying about Donald Trump’s claims. The first is they say the evidence that Donald Trump complains about is unofficial conduct. It’s personal conduct. So you don’t even have to deal with the issue of how to deal with official conduct because they say it’s unofficial. This is personal stuff. The second argument is that even if it is considered official conduct, the presumption of immunity has been rebutted. And they say because reliance on such evidence in a criminal prosecution poses no risk of interference with presidential decision making, unquote. That’s argument two. And the third, which is one that, Mary, I remember you talking about just last week, which we were talking about tweets and the public forum that you just talked about. The third argument is, quote, “The evidence consists of a public record of an official act,” unquote. So those are sort of the three ways in which they say that they should win. Even if you disregarded the waiver —
Mary McCord: Right.
Andrew Weissmann: — arguments or narrowed just to the two things you pointed to. But even if you ignored all that, these are the three arguments and they go through that, applying it to all of the different things that Donald Trump says came into the trial. And I just thought that was such a clean, easy way to separate this out. I thought it was a really good brief. I don’t know what you thought.
Mary McCord: Yeah, I mean, I thought it was strong and I thought that, again, you know, what they needed to do is show Judge Merchan on each one of these categories of evidence that Donald Trump says should not have come in, make the argument not official, otherwise rebutted, otherwise a public record. And then they go on and show how each alleged error was harmless, including even harmless beyond a reasonable doubt. And so, you know, we don’t have time to go through because its very detail oriented in terms of going through each allegation of official acts and explaining why that wasn’t an official act at all. So, for example, Michael Cohen’s testimony before Congress about what he did in his capacity as Mr. Trump’s personal lawyer to, you know, make this personal payment to Stormy Daniels as hush money to keep her story from coming out before election, how that was all personal and couldn’t be an official act. And you remember, this is something that Mr. Trump’s attorneys have argued in their motion that Cohen’s testimony about this in front of Congress was actually something that implicated Trump’s official acts.
Andrew Weissmann: So the thing that you referred to about harmless error is sort of their final argument, which is that —
Mary McCord: Yes.
Andrew Weissmann: — even if you found against us on everything we just talked about, all three of those points and waiver, then we’re going to talk about sort of, is it harmless error? And that’s where Donald Trump made the argument that it’s both not harmless and also something called structural error. In other words, that harmless error analysis doesn’t even apply. And I think, Mary, again, you —
Mary McCord: Talked about this last week, right?
Andrew Weissmann: Exactly. And a good example that you gave last week of what’s called structural error is you don’t have a lawyer in a criminal case.
Mary McCord: Yeah.
Andrew Weissmann: And your example was Gideon v. Wainwright, which said that the right to counsel applies to the states, not just federally, but it’s sort of broadly applicable. That’s a structural error, meaning you don’t engage in harmless error analysis. You’re entitled to a lawyer. If there’s no lawyer, it doesn’t matter how —
Mary McCord: You can’t fix that.
Andrew Weissmann: Exactly. And it doesn’t matter how otherwise fair it is.
Mary McCord: Right.
Andrew Weissmann: It’s sort of per se unfair. Structural error is very unusual to apply to something having to do with evidence coming in.
Mary McCord: Right.
Andrew Weissmann: And so even for this Supreme Court, I mean, I think the immunity decision is horrendous and is result oriented, it’s hard to make predictions just because I never would have thought the Supreme Court came out this way. But it’s so hard to see this as structural error.
Mary McCord: Oh, agree.
Andrew Weissmann: I mean, allowing Hope Hicks, for instance, to testify about one conversation in 2018, the one —
Mary McCord: Right.
Andrew Weissmann: — that we’ve talked about as being potentially the most problematic, that just isn’t structural error.
Mary McCord: No.
Andrew Weissmann: And it’s going to have a harmless error analysis.
Mary McCord: Yeah, I’m not worried that any higher court’s really going to compare this to structural error, but you know, they may go through a harmless error analysis as to some of these things. And so what the DA does is he goes elaborately through, you know, the proof of every element of the charged crimes and why even if you keep out the challenged evidence, not just significant, and he says really overwhelming evidence to prove each element of the crimes that were charged and for which the jury returned verdicts. I will say one thing, and you probably noted this too. We’ve talked about this in the past, and I know that Mr. Trump’s team made a big deal about this in their brief, which is that the way that the prosecutors referred to Hope Hicks’ testimony in their summation, in their closing arguments, as, quote, unquote, “devastating.”
And of course, Mr. Trump tried to use that to say, this almost say this can’t be harmless, because the prosecutors themselves said it was devastating. And that is dealt with in just a footnote in this brief, basically making what I think is the legally correct argument, that a prosecutor in argument making arguments to the jury about the evidence that really has not that much bearing on whether an error can be harmless or not. Because just because something might be devastating, they explained, doesn’t mean it’s not cumulative of other evidence that already supports the charges. And that’s their whole argument here, right? There’s ample, more than ample evidence to support the charges and there’s no reason to believe that this, the omission of Hope Hicks’ testimony or anything else challenged, made the difference for the jury.
Andrew Weissmann: Yeah. Also, there are two parts to Hope Hicks’ testimony in 2018. And one part seems much less problematic than the other. And so saying that cumulatively, that there’s taking her testimony as a whole, it’s devastating, isn’t saying that the particularly most problematic part is devastating. So I think that the key here, just for to keep everyone so has this on their dance card, September 6, the judge has said he is going to issue his decision. It’s an unusual thing for a judge to announce when he will rule, but here he has. He said that he intends to rule on September 6. And so I suspect that he is going to deny Donald Trump’s motion. It is conceivable he would have a hearing. And then if there is a sentencing required, it is on first September 18. So keep that those dates in mind. Mary, let’s take a quick break and then we’ll come back and we’ll talk about some other things on our dance card.
Mary McCord: That’s right. Mark Meadows.
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Andrew Weissmann: Okay, welcome back. So, Mary, we are going to talk about something that is definitely a blast from the past, which is Mark Meadows filed this week a petition in the Supreme Court to have reviewed the decisions from the federal courts in the 11th Circuit to not allow his removal of the state criminal case to federal court. And we’ll get into the details of that. But let me just ask you the first question, which was definitely the first thing on my mind when I was reading this, which is what on God’s green earth accounts for the fact that we’re in July and the 11th Circuit decision, not even the district court decision, the 11th Circuit decision was in December.
Mary McCord: That’s right.
Andrew Weissmann: Again, as you know, I don’t do math in public, but December to July is usually a lot longer than you have the normal time you have to seek certiorari, that’s to seek review by the Supreme Court. So what explains this enormous delay?
Mary McCord: Extensions of time. That’s what explains it. Extensions of time.
Andrew Weissmann: And which justice would it be that did that?
Mary McCord: And I don’t know if we’ve talked about this before, but the different circuits each have a justice assigned to them. And so that if you’ve got sort of motions for things like an extension of time and also other emergency motions, motions for stays, motions related to execution of death penalty, things like that, oftentimes when you’re making those kinds of motions, they go to the justice who is assigned to your circuit. For the 11th Circuit, that happens to be Justice Thomas.
So Justice Thomas has agreed to extensions of time from the original, what the original due date would have been for a petition all the way to July 27th, which was last Friday. And, you know, one has to wonder possibly was Mark Meadows and his attorneys, were they waiting and hoping that somehow, they could benefit from the Supreme Court’s immunity decision and use that as fuel in their petition for a writ of certiorari?
Andrew Weissmann: I actually went and did some homework and I read the applications for the extension. And in fact, one of the grounds was the pending Supreme Court immunity decision. And so that is sort of front and center of the actual petition —
Mary McCord: Yup.
Andrew Weissmann: — in terms of what it is that Mark Meadows is focused on and very much focused on this. Remember the part of the Supreme Court immunity decision that deals with the very, very expansive view of official acts, evidence like, you know, and they just have a lot of flowery language —
Mary McCord: Yeah.
Andrew Weissmann: — about just how expansive you can view official acts, even if it’s something that doesn’t really seem within the normal purview of the presidents.
Mary McCord: And this was about official acts of the president —
Andrew Weissmann: Exactly. Not underlings.
Mary McCord: — just to be clear, that’s what that was about. But before we jump into all the substance, because I know we’re both dying to do that, I want to just make sure people know what the heck we’re talking about. So there is a federal statute that says that in any civil or criminal prosecution that’s brought in state court that is against or directed to an officer, the United States or any agency thereof, not relevant here, or any officer or any person acting under that officer of the United States, right, in an official or individual capacity for, and this is the other key language, for or relating to any act under color of such office. These are things that that federal officer can seek when criminally prosecuted, right, as a federal officer for things that he alleges were acts taken under color of his authority. So to official acts, the word is not official acts in the statute. The word is under color of such office, right? Then the person can remove the case to federal court.
This is not an immunity statute. This is a statute saying when you’re being prosecuted in a state court and you are being prosecuted for something that you argue as part of your official acts, you can have your case moved to state court. And the idea behind that is so that if you do have some sort of immunity as a federal officer, you’re not relying on the state court to make judgments about your federal officer immunity. You have a federal court, which is perceived to be a more favorable forum or one that will take these claims of federal immunity more seriously and be a fairer tribunal than a state court.
Now, query whether that sort of judgment about the fairness of a state court versus a federal court has any legs or is well-grounded or well-founded. Put that aside. That’s sort of the assumption underlying the law. It doesn’t mean you get federal immunity. Then if you do remove your case to federal court, if the federal court says, yes, you meet the qualifications of the statute, we’ll now take it up in federal court, then you would make your arguments. I shouldn’t be able to be prosecuted for this because I have immunity under federal law.
Andrew Weissmann: And as we talked about when this was going on in the Pleistocene years, meaning last year, because it’s that long ago, this would just mean that you keep the same prosecutor, you —
Mary McCord: The D.A., still a D.A., not a U.S. attorney, right.
Andrew Weissmann: — you have the same and, you know, charges. But what you do have is you have a different judge and you have a slightly different jury pool. It’s sort of depending on how the veneer or the pool of jurors comes from. But it really is that you have this federal forum to decide the case, but it’s by no means saying the case is over. Of course, one thing to keep in mind is that people might be going, who cares? Because isn’t the Georgia case sort of on hold right now?
And the answer to that is, yes, it is on hold because there’s a whole appeal at the state court level right now related to the alleged conflict of interest ruling by the trial judge with respect to Fani Willis that has now been appealed and the appellate court issued a stay. So that whole case is sort of on hold. But Mark Meadows has a sort of belt and suspenders approach, which is, yes, it’s on hold, but I still want to try and get to federal court. So he has made this motion. And, you know, maybe there’s sort of two key arguments he makes. One is he takes on the decision that has to do with when you describe this statute, this congressional statute, it seems to be worded to current officials, not former officials. And that was something that the 11th Circuit decided that there was an issue that it should only apply to current federal officials, not to former federal officials, and Mark Meadows was a former. So that’s sort of issue one.
Mary McCord: That’s right. And just to kind of frame this up, the argument and the petition to have the Supreme Court take this is that this is the first time in 190 years that any court has held that this federal officer removal statute does not apply to former federal officers and that this is just wrong and the Supreme Court should fix this. I will note for the textualists out there that the 11th Circuit’s decision is a conservative bench and all three judges agreed to issue concurring opinions and we’ll talk about that briefly. But all three judges agreed if they look at the plain text of the statute, it just doesn’t apply to former officials, whereas Part B of the statute makes clear that it applies to former officials. And this is not Part B. This is Part A of the statute. So for those of you who may think about other textual analyses, particularly that the U.S. Supreme Court has engaged in in this past term, as well as other terms, this is a court that is saying, look, we think this is the wrong result in terms of we think Congress should actually fix this statute. In fact, two of the judges concur and say we think it’s imperative that Congress fix the statute to make clear that it applies to former officers. But the plain text of the statute, we’re just reading the words on the page, is in the present tense of a current officer. So that’s their first big argument.
Andrew Weissmann: By the way, one of the things that I find fascinating is that Paul Clement, a very notable Supreme Court advocate who is on the brief for Mark Meadows, basically says, like, I know there are these concurrences that says Congress should fix it, but we figured there’s a shorter way that you can just fix it.
Mary McCord: That’s right.
Andrew Weissmann: I mean, this is so topsy turvy because this is what conservatives traditionally have accused liberals of doing, which is, you know, this is like the whole attack on Roe v. Wade is, oh, this is reading way too much into the text of the Constitution. And you have the current court basically throwing out its originalism doctrine when it’s needed.
Mary McCord: When suitable, right.
Andrew Weissmann: Yeah, exactly. When convenient for them. So what’s the second issue? The first issue is just this one about, you know, the text doesn’t apply to formers, but then they go on to the second issue.
Mary McCord: Right. But to your point on that, before I move to the second issue, is this is another place where they rely on the immunity decision, saying Mr. Trump is a former and there was no question that he was able to obtain immunity. Now, when we are mixing apples and oranges here, Mr. Trump wasn’t removing a case from state court to federal court and having applying a statute. There’s no statute that applies at all. Remember the immunity that the court found they found based on, you know, what they called presidential —
Andrew Weissmann: Policy. Policy and separation of powers.
Mary McCord: I would say, yeah, constitutional principles, including separation of powers. So we’re not talking about the interpretation of a statute. Nevertheless, they rely on that. The second part is really more of an affirmance of the district court’s opinion. The district court had not denied the motion based on the statute not being applicable to former officers. It had gone through and said, you essentially have not shown that the gravamen or gravamen, we now know both pronunciations are correct.
Andrew Weissmann: Either, either, tomato, tomato.
Mary McCord: That’s right. That, you know, the heart of the case is about official acts. Mark Meadows, as chief of staff, yes, you had expansive, you know, authorities, but this was about state election administration and neither the president nor the chief of staff has any sort of authority over that. That’s not related to your official acts. Therefore, because it’s not related to the official acts, you can’t remove it. You will have to stay in state court. I will note, just because we didn’t say this earlier, even staying in state court doesn’t mean, oh, now you can’t argue you’re immune. You just have to argue it in state court.
Andrew Weissmann: Exactly. This goes directly to the issue flagged by Amy Coney Barrett. And this is where, to a large extent, it is a 5-4 decision on immunity, at least when it deals with the issue of the fake electors. And where Amy Coney Barrett says in a footnote, quite pointedly, you know, sometimes it’s hard to know and make a distinction between official and unofficial. And she goes, and sometimes it’s not. And when it comes to the fake elector scheme, it’s not.
Mary McCord: Right.
Andrew Weissmann: So she would find that that is clearly unofficial conduct. And so, you know, it’s very interesting because this brief, if the court takes it, it both deals with the sort of application of the immunity decision to somebody who’s not the president. I mean, it’s not directly related, but also goes to this real conflict where Amy Coney Barrett is not with the majority on this expansive view of what is official. So it could be pretty fascinating to see whether the majority of five holds with respect to this, because here there has been fact-finding.
Mary McCord: I mean, the federal elector scheme is a little different, right?
Andrew Weissmann: Exactly.
Mary McCord: But they’re comparable because we’re talking about pressure on state legislatures, pressure here on also the secretary of state in Georgia, Brad Raffensperger, right, to reconvene the legislature and basically —
Andrew Weissmann: And this is one where, remember, the posture of the immunity decision was sending it. This is the great preview to we’re about to take a break and talk about Judge Chutkan. But the immunity decision sent it back to the trial court to have this factual hearing. But here, if people recall, there was a factual hearing where Mark Meadows actually testified and there was fact-finding by the federal trial court. And then that was reviewed by the appellate court. So there is a record for the conclusion that this was the acts that are unofficial or that are as a candidate. And this is going to be quite interesting if this case is taken by the Supreme Court.
Mary McCord: Yes, it absolutely will. And, you know, like I said, it’s kind of like a dam bursting, right? That one decision has just led to a flood of other litigation. And we have to wait to see how courts are going to rule and what things are going to get to the U.S. Supreme Court.
Andrew Weissmann: Yeah. I mean, the first thing we talked about was the effect of the immunity decision on the Trump case. Now we’re talking about the effect of the immunity decision on Mark Meadows’ removal. I mean, by the way, I think it’s a totally intentional part of the Supreme Court in terms of what they were doing —
Mary McCord: Yes.
Andrew Weissmann: — like a giant bowling ball, like knocking down all these pins. Mary, should we take a quick break and then we can turn to actually —
Mary McCord: Yes.
Andrew Weissmann: — the third way that the decision from the Supreme Court on immunity could be affecting Judge Chutkan.
Mary McCord: Absolutely.
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Mary McCord: Welcome back. As promised, the floodgates are open now. The dam has broken. So what do we expect now by the end of this week, Andrew? The case, the D.C.-based January 6th case, the one that went to the Supreme Court on the immunity issue, that will finally actually get back into Judge Chutkan’s court by the end of the week.
Andrew Weissmann: Just to remind people, there’s a normal delay that occurs when a case is on appeal to get it back to when the trial court can start again. And with the Supreme Court, it’s 32 days, I’ve learned. And so that’s going to happen this week, meaning that the district court has essentially the baton again to go forward. Mary, I know you’re going to say that the parties could actually seek to shorten that and I suspect that that didn’t happen here because the Jack Smith team probably was like, we do not want to ask the Supreme Court for anything. We want to just take our marbles and go home and not give them an opportunity —
Mary McCord: To say anything else.
Andrew Weissmann: — to delay anything. Exactly. Let’s just let the normal processes go forward, especially since there isn’t going to be a trial before the election. And so the main issue that we’ve talked about is Judge Chutkan has, I think, been essentially directed by the Supreme Court to have a factual hearing. Now, on certain issues, it may be —
Mary McCord: Well —
Andrew Weissmann: — a law issue.
Mary McCord: Yeah. I would say she’s directed to have briefing, right, on the legal issues and factual issues, which could include a hearing on those factual issues. I think that’s not for every issue based on the Supreme Court, but certainly for some of them, yes.
Andrew Weissmann: Yes, exactly. So, I mean, they talk about the context. They just go on and on with respect to not the vice president stuff —
Mary McCord: Right.
Andrew Weissmann: — which is the best argument that Trump has —
Mary McCord: Legal.
Andrew Weissmann: — for legal, but for other issues having to do with state interference, where they just talk so much and what happened on January 6th about the factual context. And they keep on talking about facts specific. And that to me is hearings.
Mary McCord: That’s right.
Andrew Weissmann: So, I think we’re going to see briefing on that issue with Donald Trump trying to do everything and anything to avoid any sort of factual hearing before the general election. And again, kind of remarkable because if you have nothing to hide, what’s the big deal? I mean, put the witnesses on. I mean, remember, the witnesses are going to be to a large extent, if not exclusively, people who are part of his administration in one form or another, or at the state level, very much Republican allies. So, these are not sort of your normal deep state Democrats who I expect would be heard.
Mary McCord: Yes. Just to play devil’s advocate, though, you know, we are getting very, very close. We’re, what, 100 days from the election, I think his argument will be. And I don’t think this is a crazy argument that, you know, this would be a very big distraction for the nominee for one of the two major parties. And, of course, in America, it really is a two-party contest. And that to have any kind of hearing, because remember, it’s not like this hearing is going to be Friday, right? There would be number of steps before a hearing. Judge Chutkan may this week, may not till next week, she may put out an order asking the parties to propose next steps. She might put out her own order saying, here is what I want for next steps. Here’s a briefing schedule. Here’s a hearing date. Or she could put out an order saying, come in for a status conference and let’s talk about next steps.
So, first, you’ve got to kind of like the setup to what is going to happen. Then, at some point, a briefing schedule, like you said, a hearing schedule. And, you know, the briefs, you know, unless you do, there are two types of briefing. There’s the normal course, where one side puts forth its position, the other side opposes. The side that started does a reply, that’s sequential briefing. And then there’s simultaneous briefing. And that’s where both sides file at the same time. She could do that here. She could do sequential here. And either way, though, these take time. The parties have to, you know, write these briefs, they have to file them. Then she has to make some decisions. I suspect she may make some decisions, maybe now, but she could make some legal decisions before she even decides to have a hearing on the facts. She could be. She does it all at once. So my point is, by the time you get to a hearing, we are probably in October, really, realistically, maybe September. And I very, very strongly suspect Donald Trump’s team will say, this just has to be put off. I mean, he’s a candidate, it’s too close to the election, this would be an interference with the election.
Andrew Weissmann: And to continue that motif of delay, there are other arguments. There’s lots of ways for additional mischief.
Mary McCord: Sure. Yes.
Andrew Weissmann: So they can make an argument that even if there is going to be hearing, what should the evidence be? Is it protected by executive privilege? What kinds of things should be allowed?
Mary McCord: Is it official acts, right? She needs to decide what’s official or non-official, even to know what could come in at the hearing, right. Yeah.
Andrew Weissmann: So there’s that. There’s also Judge Cannon’s decision is, of course, not in any about Jack Smith not being legally appointed. That, of course, is not binding on Judge Chutkan. In fact, there’s a D.C. Circuit case saying that he is official.
Mary McCord: Which is binding.
Andrew Weissmann: Exactly. But that can get raised to say, wait a second, you should wait and see what happens with that because we shouldn’t have a hearing and be required to go to this hearing, especially, as you said, Mary, at this time, et cetera, when there’s a real issue about whether Jack Smith is even legally appointed. In other words, there are all sorts of ways in which there’s lots of sand thrown in the Judge Chutkan gears.
Mary McCord: You’re right. And on that last point, which segues nicely to our last thing we want to talk about today, they will say, I think, that, you know, notwithstanding this D.C. Circuit opinion on the legality and constitutionality of the appointment of Jack Smith, the issue is in the 11th Circuit now and you should wait for the 11th Circuit to rule and that could potentially go to the Supreme Court. So you should wait for that. And we shouldn’t have to go to your point through the hearing when we’ve got this live issue out there. So you’re right. That is more than sand. That is gravel and chunks of like boulders.
Andrew Weissmann: So talking about the 11th Circuit, Mary, remember, Judge Cannon said throughout the Mar-a-Lago case that Jack Smith is not legally appointed. She’s the first out of nine judges who have held that. And the 11th Circuit has issued a scheduling order that doesn’t have the case even being fully submitted, doesn’t have an oral argument date, but it doesn’t have the briefing done until sort of late October, assuming that you have a government brief, a defense brief, and then a government reply brief. And so it is quite conceivable, if not likely, that the oral argument would not be until after the general election. And I have to say, in many ways, knowing that the Mar-a-Lago case was not going to happen, that that trial was clearly not going to happen before the general election, I’m not sure it’s such a bad thing for the 11th Circuit because in many ways, look, it’s better to have it decided afterwards and sort of without the heat of politics on it. And so the court can rule on it. It would have no effect because there was no way for Judge Cannon that she was going to have this trial. And the key issue that I am looking for, obviously, there is this substance of what Judge Cannon said. I think she’s wrong. I agree with the other judges. Obviously, I was part of the litigation team in the Mueller case where we argued for why it was statutorily correct. But I think the key issue is whether Jack Smith is going to ask to have Judge Cannon removed from the case for one reason or another.
Mary McCord: Yeah. My money is that he won’t, but we’ll see. Maybe I’ll be wrong about that. And just so that folks know, this is not like a delayed or an extended briefing schedule. This is pretty normal. The due date for appellant, which is Jack Smith and the government here, is August 27th. Then there’s 30 days for the appellee, that’s Donald Trump’s team, to file their brief. And then 21 days after that for Jack Smith and the government to file a reply. That is a pretty standard appellate briefing schedule. And neither party, to my knowledge, and I did not just double check this, but neither party sought an expedited —
Andrew Weissmann: That’s right.
Mary McCord: — briefing schedule. And so no one should be thinking, oh, this is some sort of delay. This is pretty normal. And like you said, there’s not a reason to rush here. I mean, Jack Smith, to be clear, has never asked for expedition on anything based on the election. He’s very careful not to do that. He’s asked for expedition of other things like the immunity decision in the interest of the public, good in being able to get that matter to trial, never tying it to the election, but get it to trial sooner rather than later and not have delay. But here, there was no reason to try to expedite, and they didn’t do that. So yes, we will see if he adds and, you know, August 27th. We’ll see what he has to say. As you and I have discussed, there is also an option for this case to be re-indicted by the U.S. attorney in the Southern District of Florida because Judge Cannon’s opinion was about the appointment of a special counsel, Jack Smith, and U.S. attorneys are presidentially appointed, Senate confirmed. There’s no question that they have the authority to bring cases like this, so that issue would go away. And it’s not mutually exclusive, like he can file his appeal, like he has noted the appeal already, file his brief, and it wouldn’t be Jack Smith again, the government could have a U.S. attorney re-indict the case, then of course, at some point, there’d be arguments that now the appeal is moot, so it shouldn’t go forward or things like that. But we haven’t seen any indication thus far that that other track is being pursued by the government.
Andrew Weissmann: Mary, so nice to see you again.
Mary McCord: It is.
Andrew Weissmann: Even if it’s now virtual and not in person.
Mary McCord: Yes, it is. And, you know, it’s funny how just a few days ago, as I was thinking, gosh, we don’t have a whole lot new, but kind of, yeah —
Andrew Weissmann: We do.
Mary McCord: — we always do.
Andrew Weissmann: You know, it’s the law business keeps us very busy.
Mary McCord: It does. Absolutely.
Andrew Weissmann: So before we go, I want to be sure to invite everyone who’s listening to join my MSNBC colleagues and me for a live event. You may have been seeing this on MSNBC on Saturday, September 7th, there will be a special event called “MSNBC Live: Democracy 2024.” And it is a special fan event in Brooklyn, New York. So right down the road for me. This in-person interactive experience will offer inside perspectives from some of your favorite hosts and experts as we approach this historic election. Yours truly will be sitting down with Ari Melber to break down the top legal issues impacting the election, including all the Trump legal drama. We’ll also look at the prosecutor versus felon, framing of the race, to see how that’s playing with voters and with you all. And there’s much more. So you can buy your tickets at msnbc.com/democracy2024. That’s msnbc.com/democracy2024. And we’ll drop a link for that in the show notes. So we hope to see you there.
Mary McCord: Thanks so much for listening. To send us a question, you can leave us a voicemail at 917-342-2934. Or you can e-mail us at prosecutingtrumpquestions@nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineers are Catherine Anderson and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC. Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.