As last week’s historic Supreme Court decision on presidential immunity continues to be absorbed in the public sphere, the majority’s expansive view of what is considered exempt from prosecution comes into stark relief. Given their unique perspectives, veteran prosecutors Andrew Weissmann and Mary McCord explore the knock-on effects the ruling will have on Donald Trump’s ongoing cases in Florida, New York and D.C.
Listeners can send questions to: ProsecutingTrumpQuestions@nbcuni.com
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, welcome back to “Prosecuting Donald Trump.” It is Tuesday, July 9th. I’m Andrew Weissman, and I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Morning, Andrew.
Andrew Weissmann: So, this is going to be —
Mary McCord: I said this could be such a chipper attitude, and I don’t really feel all that chipper, so okay, so I’m faking it.
Andrew Weissmann: Okay, well, this is like a great way to be like, okay, you should really listen to this because it’s going to be a downer.
Mary McCord: Yeah.
Andrew Weissmann: How’s that for a tease? You know, I actually think what we have planned for today, I think is kind of great because we’re going to take the immunity decision that was issued last week and we’re going to talk about what the ramifications are for three of the trials where it’s so far come up.
Mary McCord: And probably some listeners are saying, what is the fallout? What is the relevance to these other cases? But we’ll talk about newly filed motions by Mr. Trump and his legal team in the Mar-a-Lago case, talk a little bit more about something we raised last Tuesday. It was just, you know, hot off the presses on Tuesday that the sentencing in the Manhattan case has been postponed to allow briefing on the effect of the immunity decision.
And then, of course, there’s the obvious question. What impact does this have on the January 6th case? Because things are now going back to Judge Chutkan here in the D.C. District Court.
Andrew Weissmann: So, Mary, why don’t we take that in the order that you just said, which is we’ll talk about Florida, then New York, then D.C. So I’m going to ask you a question which I know the answer to, but I just think it’s a good sort of, as they say in Washington, level set.
Mary McCord: That’s right.
Andrew Weissmann: So we’re all on the same page, which is some people could be saying to themselves quite naturally, and frankly, all of us would have said it before this opinion came out, which is, I don’t understand. Well, if the Supreme Court is deciding a case involving presidential immunity for a person taking actions while they are president, how in God’s green earth, a phrase that I use all the time, which people know is a euphemism for keeping this a PG program.
Mary McCord: Clean.
Andrew Weissmann: So how is it in God’s green earth that the decision’s even relevant to a case that is by definition happening after the person is president? Because remember, this case is about two types of charges, illegal retention of documents post-presidency. It was not taking them from the White House illegally. It wasn’t stealing them from the White House. It was about illegal retention post-presidency and obstruction of justice post-presidency.
How could a decision involving presidential immunity have any relevance to the Mar-a-Lago case? And frankly, before the decision came out, I think you and I, what’s the right phrase? Blew it. Because we thought, well, of course the decision won’t be relevant to that. And we also thought it wouldn’t really be relevant to New York. And we’ll talk about New York in a moment. But how is it that this decision from the Supreme Court is suddenly relevant and in fact does raise issues that Judge Cannon will have to deal with?
Mary McCord: Well, I guess I would not assume it’s relevant. I say Donald Trump’s team is arguing that Judge Cannon should stay everything, meaning stop the presses, stop all of the motions hearings and motions due dates that includes the CIPA litigation, Classified Information Procedures Act. That includes briefing on other motions, designating experts. Mr. Trump’s team is saying stop everything and let us brief the impact of the immunity decision on this pending case, and I want to get into what they’re arguing about.
But to your point about people asking how on God’s green earth could this be relevant, I would note that counts 1 through 32, right, which are about illegally retaining national defense information and failing to turn them over to the FBI and federal agents who sought them and were entitled to receive them, the date of each offense begins January 20th, 2021, which as of noon, Mr. Trump was no longer the president through the time period when that document was eventually obtained by the government.
Andrew Weissmann: Right.
Mary McCord: The obstruction counts, you know —
Andrew Weissmann: Way later. Yeah.
Mary McCord: — are way later, right. So there’s nothing charged that is even charged from the period of time that Mr. Trump was president.
Andrew Weissmann: So what’s the argument? What language in the Supreme Court case are they relying on that makes this at least potentially relevant? And then I’m going to flag a couple of things, which I do think raise evidentiary issues. But why is this decision suddenly something that the defense can’t raise as a potential issue?
Mary McCord: Yes. So, first of all, the motion for a stay has very, very little in the way of legal analysis or argument about how the presidential immunity decision actually applies here. That’s what they’re asking for supplemental briefing on. But just to go back to that decision, recall, this is where the Supreme Court said, look, when you are prosecuting a former president of the United States, he is not immune from prosecution from purely personal or what they call unofficial acts.
He is absolutely immune for exercising core constitutional powers and they take an extremely expansive view of what those core constitutional powers are and that’s something we’ll come back to later in the episode because it actually has consequences, I think, beyond just criminal immunity from criminal prosecution. But, you know, classically, we think of those core powers as the powers that are in the Constitution, the power of a pardon, the power of a veto, the power of appointing ambassadors.
The Supreme Court takes a broader view, at least according to the opinion of what are core powers. So there’s absolute immunity from criminal prosecution for the exercise of those core constitutional powers. And then there’s this middle area, which are actions within the outer perimeter of a president’s official acts. And those are things that are something that’s not part of his core responsibilities, but nevertheless relates to official acts.
And that is something where the Supreme Court has said there is immunity for that and we’re not going to decide now whether it’s absolute or whether it’s presumptive. But we can let this case go back to Judge Chutkan for her decide, in the first instance, whether certain things in the indictment are official or unofficial.
And even if official in that middle category where there’s not absolute immunity, decide whether the government can rebut this presumption by showing that a criminal prosecution would have no danger of intrusion on the authority and function of the executive branch. Okay, so all that basic stuff still doesn’t answer your question.
Andrew Weissmann: So that’s that sort of tripartite framework where there’s sort of official versus unofficial. And with the unofficial, there’s core, which is absolute, and other outer perimeter where it’s not clear. We’re clearly impersonal.
Mary McCord: Post-presidential conduct.
Andrew Weissmann: Exactly. When you’re dealing with Mar-a-Lago, we are clearly in the different buckets. What I was hearing is we’re in the unofficial. And so what’s the answer?
Mary McCord: Yes. So that the real zinger here, in fact, the place where Justice Barrett dissented from the majority is the majority —
Andrew Weissmann: So it became 5-4 —
Mary McCord: That’s right.
Andrew Weissmann: — on this issue that we’re about to talk about, it’s not 6-3, it’s 5-4.
Mary McCord: That’s right. With Justice Barrett joining the three dissenters. This is where the —
Andrew Weissmann: The men versus the women.
Mary McCord: You’re right. The men versus the women. Okay, we’re going to come back to that another day. And this is where the majority, except for Justice Barrett, held that the government may not introduce evidence concerning official acts, even just as proof of the criminality of purely unofficial acts. So in other words, you got personal —
Andrew Weissmann: And why is that? Why?
Mary McCord: Well, in their view —
Andrew Weissmann: What does the court say?
Mary McCord: Yeah. This entire majority opinion is permeated from the beginning, including the expansive view of core constitutional powers through the concluding sentence with this notion that the president needs to be so protected in everything he ever does, anyone he ever talks to, so that he can be bold and fearless in taking action as the president without worrying about successor presidents prosecuting him.
Now, they could have taken the opposite tactic, which is abiding by the law, particularly the criminal law, is an important thing for presidents to do. And they should be reined in from violating the criminal law by knowing that they’re not immune. They could have taken the opposite view, but their entire opinion is permeated with this notion of bold and fearless presidential action.
And so in their opinion, it seems, although I would say that they’re vague on this, it would be far too disruptive to a president’s exercise of his executive powers if he was worried that his conversations with others within the White House and his actions would be probed, even if it’s just for use as evidence in a prosecution for unofficial or purely personal acts. It’s very much hamstringing a prosecution, even for personal acts, because it means, as Justice Barrett pointed out, bribery is a personal act.
You could have the promise of an ambassadorship in return for money, and you would not be able, in the majority opinion, to delve into the conversations about that quid pro quo. You could put on evidence of the ambassadorship, public records, somebody got one, and some kind of evidence about the receipt of something by the president, if it were public, but you couldn’t dive into conversations that took place. And that’s really hamstringing the government.
But even still, why does that matter for Mar-a-Lago? I know you’ve asked me this. I’ve not answered it. Basically, what they’re saying in one paragraph is, I mean, they don’t point out what those official acts would be, but they’re saying, you need to give us time to brief, Judge Cannon, how things that are being charged in this Mar-a-Lago indictment, all things after Mr. Trump was no longer president, still might be impacted by this ruling because of things that are relevant to when he was the president.
Andrew Weissmann: Yeah. So, essentially, the court created an evidentiary rule that says that, yes, you can prosecute for personal, what they call, as you said, Mary, unofficial acts. So you shoot somebody after you left the presidency or you illegally retain classified documents or national defense information and obstruct justice all post-presidency. That’s all unofficial. But they said you can’t use any evidence of official conduct to the extent that that would help you prove the case.
So for instance, if the president had made comments in his official capacity to advisors saying this is what he intended to do —
Mary McCord: Right.
Andrew Weissmann: — those admissions wouldn’t be able to be used if they were made in official conduct. So they essentially are doing something that I thought it was certainly ill-conceived. It was terribly articulated in terms of the justification. It’s like a paragraph that just says, oh, of course you can’t do this. And Justice Barrett, as you said, really takes them to task, but they essentially create a speech and debate clause provision for this.
So in the speech and debate clause, the Constitution says that when you’re members of Congress and you’re debating and speaking about something on the floor of Congress, it’s actually been interpreted to be even broader than that. But that material, what you say, you can’t be charged with it and it can’t be used in any way. But what’s crazy to me is that the Constitution explicitly provides that.
Mary McCord: Right.
Andrew Weissmann: So here’s the Supreme Court, the so-called originalist Supreme Court deciding, oh, we’re just going to create another speech and debate clause, but this time for the presidency, where it’s obvious that the framers knew how to create this kind of evidentiary rule in the speech and debate clause, and they didn’t do it with respect to the presidency. But that is the real issue for Judge Cannon.
And the reason I think there is at least an evidentiary issue, I don’t think it should preclude the prosecution at all, but this decision, the five justices who say you can’t use evidence, is that if you look just at the indictment in this case, the indictment in the Mar-a-Lago case in a whole series, I counted them in six paragraphs of the indictment, there are references to statements that Donald Trump made not as a candidate pre-presidency, but while he was president. And so those materials seem pretty clear that there’s a very good argument that those are statements that the president made in his official capacity.
And so I think that there will be arguments about that is no longer something that would be admissible. But that’s an evidentiary issue. That’s something down the road that, yes, they can make motions now to say they should be precluded or you should be able to strike certain parts of the indictment as surplusage or inadmissible. So I think that —
Mary McCord: I mean, what they say they want is they want the same kind of fact-bound hearing that Judge Chutkan is going to have to go through to sort of —
Andrew Weissmann: Yes.
Mary McCord: — separate official from unofficial.
Andrew Weissmann: But I do think there are some things in the indictment, for instance, paragraph 20, if people want to sort of follow along, which relate to things that Donald Trump said or did while he was president that would help prove the case so that —
Mary McCord: Well, let’s just say what that is. That is kind of giving background about, I think, really trying to show that when president, Mr. Trump was well aware of —
Andrew Weissmann: Exactly.
Mary McCord: — what classified information was, what national defense information was. That paragraph 20 says as part of his official duties as president, Trump received intelligence briefings from high-level U.S. government officials, including the director of the CIA, the chairman of the Joint Chiefs of Staff, et cetera. He regularly received a collection of classified intelligence from the U.S. intelligence community, noted as the president’s daily brief., right?
So to your point, this is really all background kind of context to show, again, his knowledge, right, of classified information —
Andrew Weissmann: Yeah.
Mary McCord: — the importance that it be kept close hold. But that is important to proving up his knowledge that he was not authorized to have classified information or national defense information at Mar-a-Lago after he was no longer president. So that is where I think, you know, you’re right that there will be some things there that they’ll make arguments about.
Andrew Weissmann: But, Mary, doesn’t it strike you, just taking that example of paragraph 20, it’s like an exhibit to how insane —
Mary McCord: That’s right.
Andrew Weissmann: — the Supreme Court position is and why I thought it was very important for Justice Barrett to dissent on that point —
Mary McCord: Yes, absolutely.
Andrew Weissmann: — because to say that this is really, just makes no sense whatsoever. And how are you possibly infringing on the vigorous presidency by introducing evidence that he would know what is classified and the importance of classified information? I mean, that doesn’t interfere in any way. But they didn’t, you know, you would hope that they would have said it’s a balancing or that that there’d be more to this than simply the court saying, you know, the majority basically is like black and white.
Mary McCord: But so actually, I will disagree with you on that, Andrew, because I think that it is basically public knowledge and public record. It is probably said by his own press person multiple times. The president receives a daily brief from his intelligence community. So I think that is admissible because what Justice Roberts said in that footnote is public records can come in.
Andrew Weissmann: Yeah, I agree that there’s a way around it. I mean, in other words, if the information that just, you know, Mary, just so our listeners know, Justice Roberts has this footnote saying, well, of course, if something is public, then that could be used. So a way to deal with this, what I’ll call paragraph 20 problem, and that’s just an illustration, is if it turns out that that information has also been made public, then the government can try and use the Justice Roberts footnote about this being public.
But if it hasn’t been, it’s really unclear that they’re going to be able to find something in the majority, which is so poorly reasoned, that’s going to allow this to come in. And of course, Judge Cannon is not going to be reading the Supreme Court decision in a way favorable to Jack Smith, to state the obvious.
Mary McCord: Yeah. So, a couple of last points before we take a break and move on. Again, there’s very short motion for a stay and the judge is not even going to rule on it yet. She’s set a schedule for Jack Smith to respond and then there’d be a reply again just to try to decide whether to stay the case for then a more full supplemental briefing. So it’s like briefing to talk about briefing. But they’ve thrown a few other things out there with almost no explanation.
One is that they say the presidential immunity questions implicate important presidential powers discussed in the Supreme Court case, such as foreign relations responsibilities, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, matters related to terrorism, et cetera. How they’re going to connect that up exactly with Trump’s post-president conduct, I don’t know.
Andrew Weissmann: Right.
Mary McCord: The other thing they do, and I think we previewed this last week, is say, oh, and also regarding the appointment of special counsel Jack Smith, Justice Thomas has written a concurrence where he calls very much into question the appointment of special counsel Jack Smith under the appointments clause of the Constitution and the court should take that into consideration in ruling on the outstanding motion to dismiss based on this appointments clause issue.
So they’re throwing, you know, kind of like spaghetti at the wall here in this motion. And we’ll see what ends up getting fully briefed if the court grants the motion to stay. And she’s already sort of partially granted it. She’s stayed a bunch of immediate deadlines —
Andrew Weissmann: Yes.
Mary McCord: — but hasn’t granted a full stay.
Andrew Weissmann: So just to be clear, Mary, what you’re saying is Donald Trump has said in light of this decision, there should be further briefing and the case should be stayed. And the court said, okay, I’m setting up a briefing schedule on the motion for a stay.
Mary McCord: Right.
Andrew Weissmann: So we’re having briefing to decide whether it should be a stay. And in the interim, I’m staying a whole bunch of obligations that the defense has to do things. So she, in effect, has granted a partial stay. This is all a way of saying this case, we knew this before —
Mary McCord: Yes.
Andrew Weissmann: — the Supreme Court decision that it was never going to go to trial. But this basically was talk about sand in the gears. This is like a beach full of sand being dumped into the gears of the Mar-a-Lago case. And there’s no way this is going forward. And this is a perfect segue to talking about screwing up a case that we’re going to take a break, but we’ll come back and talk about the New York case because there you’d think, okay, we’re talking about unofficial acts, which is clearly not done as the president.
And yet, Justice Alito, in my view, because he’s sort of articulated this view during the oral argument, has figured out a way to gum up this case as well, even though there was a unanimous jury verdict on this case. So let’s take a break and we’ll come back and talk about the pernicious nature of the, again, this evidentiary piece of the Supreme Court ruling.
Mary McCord: Sounds good.
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Mary McCord: Welcome back. As promised, let’s shift north from Florida to Manhattan. Although I don’t know, I think it’s been just as hot in Manhattan as it has been in Florida for the last week. It certainly has been just as hot here in Washington, D.C. This seems to be like a full week worth of upper 90s and it’s absolutely horrible outside. But anyway, other horrible things happening.
Andrew Weissmann: Yes, other hot things that are happening.
Mary McCord: And I’m realizing we did talk last week because it had just happened about Mr. Trump’s request to postpone the sentencing, which otherwise would have been two days from today. It would have been this Thursday, to postpone that sentencing in order to brief what impact, if any, the Supreme Court decision has on the Manhattan case.
And so I am looking back at Judge Merchan’s letter to counsel and realizing that tomorrow is the day for Mr. Trump’s team to actually file their more fulsome motion. So next week we’ll be able to talk in more detail about what they’re arguing. But I think we can guess about some of those arguments right now.
Andrew Weissmann: Yeah. And then there’s two weeks for this state to respond. And then the judge has put the sentencing or next appearance, he said, for September 18th. And he says that’s for sentencing if necessary or other proceeding, meaning he may have a factual hearing. So we have to see what’s going to happen on the 18th.
Mary McCord: Well, hang on. Don’t forget that he also said he will make a decision on the 6th, September 6th.
Andrew Weissmann: Yeah.
Mary McCord: Without it being in court —
Andrew Weissmann: Right.
Mary McCord: — we’ll have to be in court. So we will know on the 6th —
Andrew Weissmann: Yeah.
Mary McCord: — what will be happening on the 18th.
Andrew Weissmann: Yeah. And I’ll talk for a moment about why I think the 18th is actually smart. I don’t know if it was intentional, but I know an effect of it, is that by putting it off to the 18th of September, I don’t know if this was intentional or not, but it does make it harder for Donald Trump to get back to the Supreme Court. If your view is that the Supreme Court has basically thrown out law here and is just looking to do whatever it can to hurt these prosecutions.
By deciding this on the 18th of September, it makes it pretty hard, not impossible, but pretty hard because the normal rule, but see, this case doesn’t seem to follow any normal rules if you’re Donald Trump, but the Supreme Court is that you have to appeal things within the New York system and then go to the Supreme Court if they would even take the case. So by doing this on September 18th, it does sort of shorten that ability of Donald Trump to have that relief.
Mary McCord: Although just to remind listeners, the Supreme Court doesn’t start sitting until the first Monday in October. So even if somehow this decision was being made this week and sped through the New York courts of appeals, the fastest that the Supreme Court would ever be able to take things still wouldn’t be until October.
Andrew Weissmann: Presumably.
Mary McCord: Yeah. They don’t have to do it that way —
Andrew Weissmann: Yeah.
Mary McCord: — but it’s exceedingly rare that they don’t sit starting the first Monday in October.
Andrew Weissmann: Well, right, as a group, but they do have —
Mary McCord: Motions. That’s right.
Andrew Weissmann: They still do hear motions.
Mary McCord: Yeah.
Andrew Weissmann: Exactly. For instance in death —
Mary McCord: Think about things like death penalty. We both —
Andrew Weissmann: Exactly.
Mary McCord: Yeah.
Andrew Weissmann: So I think by the terms of the (ph) death penalty litigation, I’d done it on the defense side. And so the court’s always open for that.
Mary McCord: Yeah.
Andrew Weissmann: Just like in Mar-a-Lago, people are probably thinking, how’s this relevant? It is clear that the charges here are unofficial. Paying money to a porn star or reimbursing the money to a porn star so that information doesn’t come out that would hurt your candidacy is just not going to be viewed as presidential activity.
But just like Mar-a-Lago, the issue is whether any official acts of the president came into the case when they shouldn’t have. And whether there is sort of, one, this decision, whether it’s retroactive and whether it should apply to this case that that happened before the decision came out, that’s one issue.
There’s an issue of waiver. But before we get to that, the question is, what is the argument for any official conduct that came into the case? And there are certain tweets that were offered. There are certain forms, a form that was filed by President Trump while he was president that came in. But I think all of that sort of embroidery. But the critical piece is that Hope Hicks, when she testified, she testified to lots and lots of information as a candidate. And that’s going to be very hard to argue that that is in any way covered.
This was before Donald Trump ever became president. So that’s just not going to be a problem. But she did testify about conversations with Donald Trump in 2018 when the Stormy Daniels story surfaced publicly.
Mary McCord: Right.
Andrew Weissmann: And she said, I had conversations and the conversations weren’t just with Michael Cohen, they were with Donald Trump. And she said —
Mary McCord: I can read it.
Andrew Weissmann: — that in 2000 —
Mary McCord: I have it up.
Andrew Weissmann: Oh, I like it. Okay, because there are two key pieces.
Mary McCord: Yeah. She said he, meaning Mr. Trump, wanted to know how it was playing and just my thoughts and opinion about this story versus having the story, a different kind of story before the campaign had Michael not made that payment. And I think Mr. Trump’s opinion was it was better to be dealing with it now and that it would have been bad to have that story come out before the election. That was actually the very last testimony she gave in her direct —
Andrew Weissmann: Right.
Mary McCord: — examination, before cross-examination.
Andrew Weissmann: And then she cried.
Mary McCord: Yes.
Andrew Weissmann: Before that piece, Mary, I don’t know if you have that up also. Donald Trump says to her, according to her testimony, that Michael Cohen made the payments to Stormy Daniels on his own without telling anyone. And she is asked, essentially, is that consistent with how you understood Michael Cohen would behave? And she says, no, he essentially is not a sort of I’m happy to do something out of the goodness of my heart.
The import being that she didn’t believe Donald Trump when he said that Michael Cohen did this on his own. So those two pieces that Michael Cohen did it on his own and —
Mary McCord: Out of the kindness of his heart is what she said —
Andrew Weissmann: Right.
Mary McCord: — that the Trump told her that he spoke to Michael. Michael had paid this woman to protect him from a false allegation and that, you know, Michael felt like it was his job to protect him and that’s what he was doing and he did it out of the kindness of his own heart. That was her testimony.
Andrew Weissmann: Just to be clear, that sort of exculpatory testimony.
Mary McCord: Yes.
Andrew Weissmann: So it’s sort of hard for Donald Trump to complain about it. But the problem is that she then said words to the effect of I didn’t believe a word of it. I mean, she didn’t say it that way.
Mary McCord: Yeah. I would say that would be out of character for Michael is what she said.
Andrew Weissmann: Exactly.
Mary McCord: He was not a charitable person or a selfless person.
Andrew Weissmann: Right. So those two pieces, I think, will be the linchpin of what Donald Trump argues. And as we said, the other point is that, by the way, on that is that the state correctly, when they argued this to the jury in summation, pointed this out to the jury and said this was devastating evidence from Hope Hicks, who had no reason to fabricate this story.
She was aligned with the and still very much aligned with the president. You can tell that it hurt her to give this testimony. So they will point to that as undermining the case. But as we said, there are lots of issues and we’ll see how this state responds to it.
Mary McCord: It’s important. Listeners may still be thinking, how is that conversation an official act of the president, right?
Andrew Weissmann: Oh, yeah.
Mary McCord: And I think it’s important. You know, the test that the Supreme Court set forth to the extent they provided guidance and really didn’t provide a heck of a lot, isn’t if you do anything while you happen to be sitting in the Oval Office or during the four years that you are president, anything you do is official. It’s not that. And so it’s really got to be this looking, this inquiry and this is why they’re sending different things back to Judge Chutkan to evaluate from the January 6th case things that Mr. Trump did while he was president. Were those official or unofficial?
So here the question isn’t, is it just official because he’s talking to his White House communications director? That’s not the answer to the question. That’s the starting point. Certainly, part of a president’s official conduct is to have a communications director for the White House. But the discussions here are purely about his reaction to a story breaking about purely personal activity while he’s president and his opinion that, hey, better that it broke now after I’m already the president than it broke before, you know, while I was a candidate, right, before the election.
So I think there is certainly an argument that that discussion is purely personal. And it doesn’t matter that it happened to be that he was talking to his White House communications director. That’s at least a side of it. And this is where we’ll have to see. This is exactly why Mr. Trump’s attorneys want to brief this. I expect these will be issues that both sides are briefing and Judge Merchan will have to make a decision.
Andrew Weissmann: Yeah, I think the other piece, which is that Cohen did this on his own, the argument’s going to be that the then president was speaking to his communications director. And even though it’s a lie, it’s a way of saying this is how he wants to spin this. This is how he wants to deal with it publicly.
And this is where, again, the perniciousness of the majority opinion here is how expansively they view the official acts of a president, where they sort of go on and on about that. For instance, they say that a president can talk about sort of news of the day or things that he doesn’t have a role in that he wants to weigh in on.
Mary McCord: He can use his bully pulpit. They explicitly refer to that.
Andrew Weissmann: Exactly. So they have a very expansive view. And so you could imagine, let’s just take a hypothetical. Let’s assume there was a fake allegation of sexual misconduct that came up before the president was president. And the president talked to his communications director about how are we going to deal with this because it’s going to hurt me as president and I need to respond.
Mary McCord: Right.
Andrew Weissmann: And I want to deny it. And so I want to say something about it. Even though what’s coming up is personal, it’s an allegation about something I did personally before I was president, but it’s going to be relevant to the voters to know whether I did this and what happened. So I need to have conversations in my official capacity with my official communications director.
So all of that I think is going to allow a Justice Alito to sort of be looking at trying to look at everything through that lens of an expansive view. I think we’ve sort of narrowed and focused everybody on this podcast to the sort of critical information and sort of what the arguments are going to be on both sides.
Mary McCord: Yeah. And I think the last thought before break is just, okay, so what? So suppose Judge Merchan says, yes, that’s official acts and it shouldn’t have come in. Where does that leave us? Then the assessment is, if this was err to have this admitted into evidence, is that err harmless and therefore the conviction can stand? Or was that err material to the verdict and there needs to be a new trial?
And even constitutional errors can be harmless. And in fact, courts of appeals find errors to be harmless all the time. And even constitutional errors can be harmless under a standard if they’re harmless beyond a reasonable doubt. What we’re not going to get into today is there are also various arguments here about this not only being waived, but also not being objected to during trial, which would mean an easier standard, sort of, of harmlessness.
But there are also arguments on the other side of that, like, well, how did they know because they didn’t have the presidential immunity decision yet with this expansive reading of official acts, so how could they have objected? There are various arguments on both sides, which we’ll have to probably discuss after we see the briefing, I think.
Andrew Weissmann: Yeah.
Mary McCord: Yeah.
Andrew Weissmann: So one of the things that waiver is going to be a really big issue. And there was this very belated motion that Donald Trump made. If you remember, the trial was originally going to start in March and two weeks before the trial, Donald Trump made this belated motion where he raised a lot of these issues —
Mary McCord: He raised immunity.
Andrew Weissmann: — and he raised the immunity and sort of along the lines of sort of the Hope Hicks stuff, although not by name —
Mary McCord: Yeah.
Andrew Weissmann: — saying, you know, conversations with White House staffers and he sort of raised this issue. And the court said —
Mary McCord: Too late.
Andrew Weissmann: — too late, and by the way, Mary, you and I have been in that situation, which is like, you know, there are deadlines —
Mary McCord: That’s right.
Andrew Weissmann: — and sometimes there’s a little leeway. But two weeks before the trial —
Mary McCord: Yeah.
Andrew Weissmann: — when things had been briefed months and months beforehand. And so the judge had said this was too late. And so I think there’ll be a lot of stress on whether this is waived. And that would avoid if there is a strong argument for waiver, meaning you should have raised it earlier, then that sort of avoids this contretemps of the sort of what I’ll call the expansive Justice Alito view and whether there’s a way to read it in a more narrow way.
So with that, should we now turn to after the break to Judge Chutkan where it raises both the issue that we’ve been talking about whether there is official conduct that would be used, but also this whole issue of what parts of the indictment are official versus unofficial. It raises not just the things that we’ve been talking about, but sort of the core issues going back to Mary, what you talked about, about Judge Chutkan has to decide what parts of the case can even proceed because they involve unofficial conduct, or whether it’s official conduct where there’s a sufficient rebuttal of the presumption of immunity. So there’s a lot before Judge Chutkan. We’ll turn to that in a moment.
Mary McCord: Sounds good.
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Mary McCord: All right, welcome back. So we want to spend a little bit of time talking about what Judge Chutkan is supposed to do with this mess right now. And there is some guidance that the Supreme Court gave. There is a little bit of a roadmap of at least what is in front of her and what’s not. So thing one, remember, we talked about core constitutional powers, absolutely immune.
This is where the Supreme Court itself said the President’s communications with his acting Attorney General and others in the Justice Department about investigating purported election fraud are within the conclusive and preclusive executive powers to investigate and prosecute crime. So therefore, those things he has absolute immunity for. As you remember, the indictment talks about that pressure on the acting Attorney General to put out statements publicly saying we’re investigating. That’s off limits.
So, too, was his threatened removal of the acting Attorney General because, as the Supreme Court held, the power to remove executive officers is a presidential power. So that’s immune. So that’s something she actually doesn’t have to have a hearing about because that is absolute immunity.
Andrew Weissmann: Can I just be triggered for one moment?
Mary McCord: Yeah.
Andrew Weissmann: That includes commencing investigations that are shams.
Mary McCord: Yes. And that’s part of the fallout, right? That decision right there means basically a president can weaponize the Department of Justice and be immune from criminal prosecution for doing that.
Andrew Weissmann: And by weaponize, it’s not, oh, you should prosecute enemies. It’s you can prosecute enemies with sham investigations.
Mary McCord: Yes, that’s right.
Andrew Weissmann: And that’s where the sham part is in the majority decision. They recognize the indictment here is about Jeffrey Clark proposing sham investigations.
Mary McCord: Sham investigations.
Andrew Weissmann: And they say that is absolutely immune. I cannot stress enough how dangerous that holding is.
Mary McCord: Yes. And that’s one where, you know, the ramifications. And again, this would also apply not just to the DOJ, because if the idea is that, you know, as the president, you are the chief of the executive branch, that means you could see the same thing with directing the IRS to launch sham investigations, right? You could see directing any regulatory agency to engage in sham investigations. It all seems, based on this opinion, to be immune.
Andrew Weissmann: Don’t get me started. Save it.
Mary McCord: We’re going to go down Trigger Avenue.
Andrew Weissmann: So anyway, I definitely digressed.
Mary McCord: Yes. So that Judge Chutkan doesn’t have to assess that because they’ve made that decision with respect to that part of the indictment. So you remember the other part of the indictment talks about the pressure on Mike Pence, right? The pressure on Mike Pence, including up through the president’s comments, the former president’s comments on January 6th at the Ellipse, right?
If Mike Pence has the courage to do what needs to be done, we will be okay. And that pressure was to either refuse to count the electoral ballots from the swing states at all or count the fraudulent slates of electors. And so what the court says there is that when the president and the vice president are both talking about official responsibilities with each other, that’s within the outer perimeter of official acts.
The reason it’s not core constitutional is because when the vice president is acting in his role as the president of the Senate, not in his role as the vice president of the, you know, country and over the executive branch, that role as vice president of the Senate is a legislative role to open and count the electoral votes and that’s not something that is part of the president’s core constitutional powers.
So they’re both doing official things. And so it’s within the outer perimeter of the official acts. So what the Supreme Court says is, therefore, it is entitled to at least presumptive immunity. So the job of Judge Chutkan on remand is to determine whether the government can make a showing that prosecution based on that pressure on Mike Pence poses no danger to the authority or functions of the executive branch after receiving briefing from the parties. So this —
Andrew Weissmann: By the way, that test that you just articulated, no danger, little esoteric note. There’s no balancing.
Mary McCord: Right.
Andrew Weissmann: It’s just no danger.
Mary McCord: Yeah.
Andrew Weissmann: And people might be thinking, where does that test come from? It comes from a case involving President Nixon.
Mary McCord: Absent the word no.
Andrew Weissmann: Yeah. And so that case involved balancing. It was involved the danger to the presidency and weighing that against the public interest.
Mary McCord: The demonstrable need for evidence.
Andrew Weissmann: Right. And it could come out the other way, such as in the Nixon case.
Mary McCord: That’s right.
Andrew Weissmann: Here, they lop off —
Mary McCord: The other half of the balance.
Andrew Weissmann: — the other part, and they say not just the danger, but you have to show there’s no danger.
Mary McCord: No danger.
Andrew Weissmann: I mean, talk about there so clearly was a voice that wanted to say, you know what, we actually think there should just be absolute immunity. But instead, we’re going to say maybe that’s still on the table. But even if there’s just presumptive immunity, the test for overcoming that presumption, it’s a little like the Wizard of Oz saying, come back with the witch’s broomstick.
Mary McCord: Yeah. Really hard to get.
Andrew Weissmann: Where, you know, the idea was like, you’re never going to be able to do it.
Mary McCord: But she did.
Andrew Weissmann: That’s because it’s a movie.
Mary McCord: It’s a movie. Okay. So then people are thinking, what about the other allegations in the indictment? So what the Supreme Court says about that is that the court will have to determine whether the acts that form the basis of the charges are official or unofficial without inquiring into the president’s motives behind those things.
So for the category of communications with state officials, right, pressure on state legislators to send up different slates of electors, communications involving the fraudulent electors, the majority says this requires a fact specific assessment of the numerous alleged interactions with these various people to determine whether this is within the outer perimeter of the president’s official acts or not.
The court does acknowledge that the president has no authority over what slates of electors the states will send up. That is committed by the Constitution to the states. They acknowledge that, but still, they say, yeah, presidents, though, they get to talk to state legislatures about things like election integrity and they get to talk, you know, with electors about things like that. So they’re leaving that open.
Now, notably, this is another area where Justice Barrett in her partial concurrence, partial dissent says, I disagree. In my mind, that is not a hard case. The alleged participation in concocting the fraudulent elector scheme is personal and unofficial. And I would have said so, you know, as part of the majority.
Again, that’s her concurrence. That does not have five votes behind it. But she at least is saying, I break from the majority, which is unwilling to answer the question here. They’re sending it back to Judge Chutkan. I would have answered the question.
Andrew Weissmann: Yeah. So what’s so interesting here is, so again, with respect to the fake electors, it’s really 5-4, not 6-3. And she said, I would answer the question that fake electors and she says in this wonderful footnote, she says, sometimes it can be hard to separate official from unofficial. And she goes, and sometimes not.
Mary McCord: That’s right.
Andrew Weissmann: Then she goes with respect to fake electors, not hard. He has no role.
Mary McCord: Exactly.
Andrew Weissmann: She says there is no argument for it. My view of this is one of the reasons that I think that you don’t have in the majority a single example of what is definitively unofficial conduct in the indictment, is if they had managed to get a fifth vote. In other words, if it wasn’t 5-4, but had been 5-4 the other way —
Mary McCord: Yes.
Andrew Weissmann: — where somebody joined the Barrett view with respect to, let’s say, fake electors, that would have allowed Jack Smith to slim to win. In other words —
Mary McCord: He narrowed the indictment down to just that.
Andrew Weissmann: He said, okay, there are five justices who say that’s unofficial conduct, fine.
Mary McCord: That’s what I’ll do.
Andrew Weissmann: I’m going to just go forward on fake electors. Let’s go.
Mary McCord: Yep.
Andrew Weissmann: But this way, by not having that definitive ruling, it means that Judge Chutkan, let’s say she agrees with Justice Barrett that fake electors is clearly not official conduct. She rules that way. But Donald Trump gets to take it back to the Supreme Court pre-trial.
Mary McCord: That’s right.
Andrew Weissmann: Meaning that not only did they wait to issue this until the very last day of the term, but they basically, by not saying anything, giving an example of anything that is absolutely unofficial, they guaranteed that it would have to come back to them, meaning it would never go to trial. And by the way, you want to know why my cynical view is correct? Let me just give you one more example. One of my favorite parts of this decision is when Justice Roberts says, given the importance of this case, that’s why we expedited it.
Mary McCord: Yeah.
Andrew Weissmann: He says we expedited hearing this and he doesn’t address at all that they could have taken the case in December and that they could have decided the case even if they didn’t take it in December on the same sort of expedited time frame as the disqualification decision. I mean, it is such a whopper. That’s the technical legal term.
Mary McCord: Yes.
Andrew Weissmann: That he would say that this was expedited and it’s so hard that to me —
Mary McCord: He actually goes on and on and on about how expedited the briefing was and how little factual development and, yeah.
Andrew Weissmann: Crazy. So that to me is such a great little example that tells you and illustrates for you what’s going on here, because like you can start with that and it’s a lens through which you can see the rest of the case.
Mary McCord: Yeah, that’s true. Okay, last category that the Supreme Court talked about last category of charged conduct in the indictment relates to Trump’s tweets and the public address on January 6th and how that impacted the rioters and the attack on the Capitol. And there the Supreme Court says, again, we’re sending this back to Judge Chutkan to decide what’s official and unofficial, but does note the majority notes most communications are likely to fall within the outer perimeter of official acts because of the presidential power of the bully pulpit.
But there may be context when the president speaks in an unofficial capacity, perhaps as a candidate or as a party leader. So that fact specific analysis is necessary. And Judge Chutkan, this is now your problem. And again, what they’re saying there, and this actually something that they kind of pulled from one of the civil cases against Mr. Trump brought by Capitol police officers and House members who were injured in some cases by the rioters.
In that case, the D.C. Circuit talked about using some sort of a test to determine whether Trump’s comments were made as a candidate, which are purely personal, or as president, which could be official. So here that’s going back to Judge Chutkan to for that analysis. So she’s got a lot on her plate, but they did break things up into different categories.
And now we will be seeing the setting, I think, of a briefing schedule coming up here and then hearings, some of which may involve evidence, because in some of these things, the Supreme Court said this is going to be fact specific.
Andrew Weissmann: Yeah. So that raises my sort of like, it’s hard to say silver lining because it’s silver lining within this case, but they still have this horrendous Supreme Court decision out there in terms of the power of the presidency that is so untethered to how we view the role of the president in a democracy.
But there is this ability for a factual hearing before the general election on the issues, Mary, that you outlined, whether it has to do with the conversations with the vice president and the rebuttal of that, or whether it’s on the other aspects of the sort of official versus unofficial components of the other aspects of the indictment.
One question I have for you, Mary, is, and I’ll be interested in your view, is one of the things that the government could do because there’s so many parts of this decision that are poorly reasoned and also are sort of ambiguous, even things that we haven’t talked about yet, is the idea of going back to the Supreme Court and seek re-argument.
Mary McCord: This is my theory that I floated over the weekend with you, that under Rule 44, they could ask the court to rehear the case and Jack Smith could try to make some of the points that, you know, so many commentators and legal experts and constitutional experts have been making about the scope of this ruling and how it calls into question not just criminal prosecutions but Congress’s authority to legislate in areas that are part of the president’s core executive functions, Congress’s ability to conduct oversight over things that this court would say are within the core constitutional functions of the president, because the rationale that the chief justice used was not limited to criminal prosecution.
He was saying, in certain areas, the president’s functions are conclusive and preclusive, meaning precluding Congress from acting, precluding judges from examining. And so it would be a chance on the public record to really make the arguments about how expansive this is and how damaging it is and how well beyond the necessity for ruling in this case some of these comments were.
And it would also, if he wanted to do it, could be a chance for Jack Smith to say, look, our position is in agreement with the dissenters. But, you know, we could live with Justice Barrett’s conclusion here. And we urge the court to, essentially, members of the court to agree with that conclusion, even if not with her entire opinion. Now, that’s kind of a wacky thing. But if you imagine what she said, as we’ve been discussing today, would allow Jack Smith to move forward. He could slim down his indictment. It would allow him to use evidence of official acts as proof of knowledge and intent and motive for unofficial acts.
And it certainly is a lot better than where we’re at right now with this majority opinion. So even though the dissenters would have to give up something to join with that and someone would have to come over from the majority. And it’s hard for me to imagine who that would be, because the person I would have thought most likely is the chief justice himself. And he’s the one who wrote the opinion. So I don’t know. It’s a super, super long shot, but there is some value to my mind of actually having a filed government position on this opinion.
Andrew Weissmann: Yeah, I mean, I don’t know that I would do it. I think it’s in part because I think it would lead to a continued stay of the district court case so you wouldn’t have any proceedings going forward. I think if it weren’t for that, I’m not sure I see a downside. I think there’s like, you know, maybe a 1 percent chance. But if you didn’t have that issue of whether you could have a hearing, my view would be sort of if you have a 1 percent chance, it’s better than a zero percent chance if you don’t move.
Mary McCord: Yeah.
Andrew Weissmann: But there is this big downside. I did want to quickly address two related questions that we have from listeners. By the way, these questions are so great. Just, you know, beforehand, we were reading a bunch of questions talking about how wonderful they are. So thank you very much to the listeners.
But one was about immunity and impeachment. And it was how does this immunity decision affect the ability to impeach a president for high crimes and misdemeanors if the president is immune? Another is really similar, which is about immunity and the Mar-a-Lago case where there is this issue of crime fraud. If you remember, the Beryl Howell in D.C. had said that the government could get information from lawyers because it was part of the crime fraud exception. How does this Supreme Court decision affect that?
And I think there are a lot of answers to that. But one big picture is because the Supreme Court decision was framed in terms of immunity, it wasn’t saying that the conduct is legal.
Mary McCord: Right.
Andrew Weissmann: It wasn’t saying that Congress didn’t have the power to criminalize things. So you can still have a high crime and misdemeanor. You can still have a crime fraud exception. This decision was about whether there would be immunity from a criminal prosecution. And obviously, an impeachment is not a criminal prosecution, nor is the court saying that this is not a crime.
Mary McCord: That’s right.
Andrew Weissmann: It’s just saying the president could be immune in certain circumstances. The same thing for the crime fraud exception. It still is a crime. But those are great questions. By the way, I really feel like we should be getting CLE credit for everyone who’s listening. CLE is an acronym for Continuing Legal Education, which is an obligation that lawyers have to, even after they graduate from law school, to continue learning. And they have to get a certain number of credits every year to keep yourself current on the law. So I feel like we should be doing that for this podcast, even for all of the non-lawyers out there.
Mary McCord: Good idea. Yeah, good idea.
Andrew Weissmann: And I think we’ve managed to stay relatively calm, which is kind of amazing given the Supreme Court decision that we’re talking about, which, you know, is in my lifetime, one of the worst decisions I can possibly think of. And I don’t want to make this political, but it does mean that it’s really important that you have a president who understands the dangers of using all of those powers in the same way that you would take the pardon power, that you need a president who isn’t going to abuse that power.
Mary McCord: Yeah. And, you know, that leads to one other listener question, which is kind of like, what are things that President Biden could now be doing in light of this opinion? But I am sorry, I am never going to advocate for a president to abuse his powers because he knows he’s likely to be immune from criminal prosecution. And I understand the inclination to say, okay, maybe he should weaponize things or he should do this or that. But I mean, then we have really abandoned, you know, the rule of law, in my opinion.
And unfortunately, the Supreme Court’s decision does give a lot of leeway, a huge lot of leeway to somebody who comes into that office who does not believe in rule of law, who is corrupt and who wants to break the law with impunity, as the dissenters eloquently said in this case. So on that, now we’re back to a depressing note. We should probably wrap it up before it gets any worse.
Andrew Weissmann: Okay. So again, a pleasure to talk to you, Mary. There’s going to be a lot to talk about as we previewed with respect to filings that are going to be made in these various cases to see essentially how our predictions play out.
Mary McCord: We’ll do this next week then.
Andrew Weissmann: Thanks so much for listening. We want to continue to hear from you. So continue to send us questions, and you can do so by leaving 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 engineer is Catherine Anderson. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the Senior Vice President for Content Strategy at MSNBC. Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.