Within the 80-page motion filed last week to dismiss Donald Trump’s New York criminal case, there’s a long list of grievances laid out by his legal team. MSNBC legal analysts Andrew Weissmann and Mary McCord underscore some of the substantive arguments as to why a sitting president might find a pending case constricting, reasoning that there are aspects that could interfere with effective functioning of the presidency. But they also illuminate how these merits are buried deep within pages of hyperbole of alleged unfairness to the president-elect, prompting Andrew to ask, in terms of the facts, “Where’s the beef?” Then they turn to some analysis of a letter written by incoming Senate Judiciary Chair Chuck Grassley, which calls out current FBI Director Christopher Wray with a personal vote of no confidence.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello and welcome back to Prosecuting Donald Trump. It is Tuesday morning, December 10th. It is 10.15 a.m. And we are on New York Criminal Case Watch.
Mary McCord: Oh, gosh, yes.
Andrew Weissmann: So, I am Andrew Weissmann, and that voice you heard is Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: How are you?
Mary McCord: I am fine. How are you?
Andrew Weissmann: You know, this is what I’ve learned. When people say, “How are you?” Like, no matter what.
Mary McCord: Do you really want to know?
Andrew Weissmann: Yeah, the answer is always like, “Fine,” even though the answer is not. And it’s usually the way you can tell is the gap in time before you hear the “Fine.”
Mary McCord: Yeah. I mean, I guess all things considered, right? I’m fine. There’s just a lot going on. A lot going on right now. Some good and some really not good at all.
Andrew Weissmann: Yes, yes. I can’t even say it’s the calm before the storm. It might be the storm before the hurricane.
Mary McCord: Yeah, right.
Andrew Weissmann: The one thing I can say is my last class, my review class at NYU, ended yesterday.
Mary McCord: You have a certain lightness of being about that.
Andrew Weissmann: Yeah, exactly. Class part’s over. Now we’re just on to grading.
Mary McCord: Oh, that pretty much sucks. Yeah, I’ve got that, too.
Andrew Weissmann: Yep. Anyway, what is on our agenda? I sort of teased a little bit of it.
Mary McCord: You did.
Andrew Weissmann: So last week, listeners will remember, we had to sort of eat crow, if that’s still a term, because we had promised we’d be able to talk about the Donald Trump motion to dismiss the Manhattan case brought by District Attorney Alvin Bragg, because that motion was due last Monday. But of course, the day that something is filed is not always the day that it becomes publicly available. And at the time we recorded last Tuesday up in Manhattan at 30 Rock, we still did not have access to that filing.
We now do. So we are going to talk about it today. Incidentally, Alvin Bragg filed his response, his opposition, yesterday, but just like last week, it’s not publicly available yet. So we, unless it hits while we are talking this morning, we will end up covering that next week, although we do have a little preview about some of the things that the District Attorney is going to say, because he put them in a letter to Judge Merchan when he agreed to postpone other proceedings in the case pending this motion.
So we can speculate a little bit about that. It’s educated speculation.
Andrew Weissmann: What else we got?
Mary McCord: Yeah, we also know, and this won’t take much time, but Donald Trump also filed in the Court of Appeals in Georgia, really to have that case be dismissed against him based on lack of jurisdiction, making the same arguments, essentially, that he’s making in New York. And then we’ll talk about an interesting letter that Senator Chuck Grassley, the incoming chair of the Judiciary Committee, wrote yesterday to FBI Director Chris Wray, an 11-page single-space letter, expressing his personal vote of no confidence in the FBI director and essentially asking him to step on down because he has failed, and let’s make way for a new appointee, notwithstanding, as we talked about last week, that Chris Wray has until 2027 on his 10-year term.
So, I’ve never seen a letter quite like that, and we’ll talk a bit about that. And then we will take your questions. We’ve got some interesting ones that we’ve been rifling through over yesterday and today and choosing some to answer.
Andrew Weissmann: And one that’s particularly dear to my heart.
Mary McCord: Yes, yes.
Andrew Weissmann: From a definitely a loyal listener.
Mary McCord: Which I’m not sure we can answer, actually. I’m interested to hear how you respond to that one. It’s a grammar question.
Andrew Weissmann: I’ve been studying up on that. I’m ready.
Mary McCord: You consulted Oxford? Yeah.
Andrew Weissmann: The OED. Yes. By the way, your comment about Senator Grassley’s letter being interesting, that is for all of our listeners, they should be viewers, because that should be in scare quotes.
Mary McCord: Yes, absolutely.
Andrew Weissmann: Interesting. That’s a Mary McCord polite term.
Mary McCord: It carries lots of other things.
Andrew Weissmann: I would have much more of a New York description. So why don’t we talk about the Trump motion? And this was to give a sort of context. This is a motion that Trump and his lawyers said that they wanted to file because they sort of have a new argument based on the fact that Trump won the election. And there’s now this period where he is the president-elect and they want to be heard not just about sort of the effect of the immunity decision from the Supreme Court, but the fact that he is president-elect now and is going to be president for four years and what that means in terms of this case. Does it get adjourned for four years or should it be dismissed?
Not surprisingly, and by the way, not faulting them because this is defense counsel, they say it should be dismissed. And we will talk about the substantive argument that is made by Donald Trump with respect to that issue, what it means for the presidency if this were to be pending.
But you have to get through a lot of, I really want to stress that —
Mary McCord: Grievance.
Andrew Weissmann: Grievance. And I want to say there’s a serious issue there. I personally disagree with Trump’s position, but it’s a serious legal issue. But there’s so much grievance and extraneous and hyperbole. And Alvin Bragg is a liar. His wife has made public statements that Michael Cohen is not just a liar, but he shouldn’t have been used. And Alvin Bragg sort of deliberately used a liar in the same thing, coerced Allen Weisselberg, the former chief financial officer, to plead guilty. I mean, so much that’s just wrong.
Mary McCord: The judge has conflicts. The judge’s daughter has conflicts. On and on and on.
Andrew Weissmann: So there are things that are not related to either directly or frankly, at times, even indirectly to the substance of this motion. And so it’s this real kitchen sink of grievance that it reads like a press packet. I mean, I understand that this is being submitted very much for the court of public opinion as well as to a court. But I should say as a lawyer, it’s annoying to read.
Mary McCord: And the other point I’d make about this, Andrew, is it’s actually not that many, many pages of grievance are really pretty unrelated to the two legal grounds for filing this motion. Right? So this motion is brought under state law, two different sections that allow for a motion to dismiss, one based on a legal impediment to the case going forward. So that is the argument, of course, that in light of the fact that Donald Trump has won the presidency and in reliance on the office of legal counsel opinion, that again, is not binding on a state court, but nevertheless talks about how a sitting president cannot be indicted or prosecuted for all the reasons of separation of powers, et cetera. And the supremacy clause is another reason why this case can’t go forward. That is a legal impediment. That list of grievances has absolutely nothing to do with that legal impediment.
The second ground for the motion under state law is that the motion to dismiss is necessary in the interests of justice. Now I think Donald Trump’s attorneys would say that’s where the grievance fits in, interests of justice. But the problem with that is that there is nothing new in that list of grievances.
Andrew Weissmann: And it’s been decided.
Mary McCord: That’s been decided. And so you don’t get to after a jury verdict, after all of those things in the list of grievances have already been aired in front of the court. You’ve already had your day in court on those. You would not get to rebring that after the fact as an interest of justice argument. In fact, the reason that the judge agreed to allow for what is very belated motion to dismiss and the reason that Alvin Bragg consented to that was because of a change in circumstance, the circumstance being Donald Trump won the presidency and there are impediments, legal impediments to a sitting presidency being prosecuted.
So if I were the judge, I would be very tempted to say that is all extraneous and I’m not going to consider that.
Andrew Weissmann: So before we get to the substance of what you were talking about, let me just give you just a highlight so that the listeners have a sense of what we’re talking about in terms of the panoply. I’m just going to quickly go down the table of contents. And this is under background. I’m going to quote the district attorney, Dany, D-A-N-Y. That’s the district attorney of New York. Dany’s unconstitutional targeting of President Trump. Next, unlawful investigative leaks. Next, Dany’s improper prejudice to the jury pool. Next, Danny’s trial misconduct. Next, Dany’s misrepresentation and removal proceedings. Next, conflicts and appearances of impropriety. That includes the trial judge and the trial judge’s daughter. Post trial litigation. And the final grievance is President Trump’s overwhelming victory in the 2024 presidential election. And then after that background, it then turns to something relevant.
Mary McCord: Yes.
Andrew Weissmann: Applicable law.
Mary McCord: Right. That’s right. Many pages in.
Andrew Weissmann: Right. So you basically take what is 25 pages of background and it’s like, cut, cut, cut. You’ll take a bunch of scissors and like out.
Mary McCord: Yes.
Andrew Weissmann: And then you finally get to the legal position.
Mary McCord: And I’m sure we’ll hear from Alvin Bragg that a lot of this is completely irrelevant to the legal issue.
Andrew Weissmann: Yeah. Turning now to the serious part of this? What is the argument that is being made by Donald Trump as to a situation where there’s been an indictment? There’s been a trial. There’s been a jury verdict, but there’s been no sentence. And the real issue is, should this case in essence be stayed and delayed so that the sentencing happens after Donald Trump is no longer president? So that during that period of temporary immunity, or should it just be dismissed, which is what Donald Trump wants? What’s his argument for that?
Mary McCord: So I want to talk about that argument, but I have one more point on the grievances, which is leading off in paragraph two of the introduction in basically trying to bulk up the grievance argument. Donald Trump’s attorneys say, “In issuing a 10-year pardon to Hunter Biden that covers any and all crimes, whether charged or uncharged, President Biden asserted that his son was selectively and unfairly prosecuted and treated differently. President Biden argued that raw politics has infected this process and it led to a miscarriage of justice. These comments amounted to an extraordinary condemnation of President Biden’s own DOJ. This is the same DOJ that coordinated and oversaw the politically motivated election interference witch hunts targeting President Trump by disgraced special counsel Jack Smith, the other biased prosecutors in Smith’s special counsel’s office, and others.”
So basically, he’s trying to capitalize on the statement that President Biden issued along with the pardon of his son, where he did say that his son had been the victim of a selective prosecution. I think it’s unfortunate that he said that because that issue also had been aired. But you can see Donald Trump’s attorneys now capitalizing on that to say Biden himself is saying that his Department of Justice engages in selective and political prosecutions. And that is, for him, a framing point before he goes on the 25 pages of grievances to try to influence not just the court, but as you said, importantly, public opinion.
Andrew Weissmann: So I’m glad you raised that. I agree that it’s not just unfortunate, but I thought it was wrong for President Biden to say that and to say that in that way. I do think that there were issues with respect to Hunter Biden as to particularly the gun charge as to whether that would have been brought but for the last name of the defendant, that it’s Hunter Biden.
Mary McCord: Right.
Andrew Weissmann: Just because I’ve never seen that charge and it’s rarely. Nor have I. I mean, you know, rarely prosecuted from what I understand. And certainly I’ve never seen it myself.
The tax charge, I think, is much more defensible based on the allegations and what Hunter Biden has now admitted.
Mary McCord: And he pleaded guilty to it. Yes, exactly.
Andrew Weissmann: Now, of course, a pardon can be guilty and get a pardon, obviously. But the idea that it’s selective is more questionable with respect to the charge, because those are substantial allegations and now admitted facts. But I thought that the best justification for a pardon, if the president even needed one, but if he was going to say it, was the specter of what would happen going forward, which is why there was this sort of 10-year period, because you have Kash Patel and you have the incoming president talking about the Biden crime family, et cetera. And so I thought that was sort of would have been a better way to frame this.
But the fact that he chose to say there was selective prosecution, even though it was by a special counsel, that is a special counsel within the Department of Justice. And so I thought the defense was right to say that.
Obviously, it can be apples and oranges just because you have some problem in case one doesn’t mean you have a problem in case two. And here, I think it’s right for Donald Trump to raise the issue. But the fact that, let’s say, arguably you think there was selective prosecution with respect to the gun charge, let’s say, or even the tax charge, it doesn’t mean that all cases have selective prosecution. And so it really is a question of how you’re going to deal with the facts.
And finally, the main problem with citing Joe Biden is that’s a federal decision from a federal Department of Justice. And although Donald Trump likes to say that the Manhattan district attorney was somehow controlled by the federal government, it’s not. There’s no proof of that. So this is a state case. And so, yes, is it conceivable that you’d have selective prosecution? Of course, it’s conceivable. But then the question is, where’s the proof? So that’s my, I was going to say my quick answer, but at this point, there’s nothing quick about it. So sorry about that.
Mary McCord: No, no, no. I’m the one who diverted us because I thought we were still on sort of that grievance topic. And I thought that the reliance on the president’s statement, the current president’s statement, was something that kind of fits right in with grievance.
Andrew Weissmann: Totally right.
Mary McCord: Another point with respect to grievance, and then we really will move on to substance or we’ll take a break and move on to substance. And that is the use of the term lawfare.
I have noticed over the last few years, particularly since the criminal cases have been brought, but also the civil cases that went to trial, like the New York state attorney general’s case, E. Jean Carroll’s cases, that this term has certainly crept up in social media and Trump allies have been using this term more and more, lawfare. And lawfare sort of historically has had, and I think by dictionary definition has been sort of the use of law and legal arguments in international relations, right? By a country against its enemies, by challenging legality of military or foreign policy or engaging that sort of national security related lawfare.
It has really morphed now, I think, in our common parlance. It’s been, I should say, sort of adopted by certain people who want to criticize these criminal cases, the civil cases, as a strategic use of legal proceedings to sort of intimidate or harass an opponent. And so we’re seeing more and more this term lawfare as a term, a derogatory term to refer to the criminal prosecutions and the civil cases against Donald Trump. And I think that’s significant because this is our legal system, right? And remember, particularly with respect to a criminal case, it’s not just like a prosecutor gets to say one day, I think I’d like to prosecute Donald Trump and then files a paper in court and gets to prosecute, right? There are investigations, there is a grand jury who has to determine whether there’s probable cause to bring an indictment. The case then goes in front of a judge who could dismiss it if it really is based on selective or vindictive prosecution. And ultimately, as of course, in the case of the district attorney’s case in Manhattan, there is a jury, a jury of 12 citizens selected by both parties through jury selection who hear the evidence and issue their verdict.
And so I guess, part of this is personal because I’ve spent and you’ve spent much of your career doing criminal prosecution to call that lawfare. I’m not saying that couldn’t happen because certainly the promise of Donald Trump to have retribution and of the possible incoming FBI director, Kash Patel, to seek retribution against political opponents, that certainly sounds like lawfare, but it’s really problematic to me that use of the law is now kind of got this derogatory terminology in a much broader way than it ever used to be used.
And last thing I’ll say is that I did a search of the 72-page motion, hoping I could get a count of all the times lawfare was used. And I can click through each one, but I was too lazy to count them all. It didn’t give me an overall count. So lots of times, let’s just say lots and lots of times the word lawfare appears in this motion.
Andrew Weissmann: So I’m totally shocked by one thing you said. You’re saying I was too lazy to count. That gives you a sense of how many times it was used, because one thing that Mary McCord is not is lazy.
I do think that is a great observation. I unfortunately think that we’re going to be hearing about the abuse of the legal system in 2025. I think that we’re going to unfortunately, see some abuses of the legal system. I have the exact same view, though, about one of the things that I’ve been saying just ad infinitum is when people are using adjectives and adverbs, and this is sort of a good capstone for the sort of hyperbole of the first 25 pages of this brief, which is where are the facts? Like, where’s the beef? Or as my friends in Texas say, it’s all hat, no cattle.
Mary McCord: Oh, great. And so not a New York term.
Andrew Weissmann: Yeah, we say that on the Upper West Side. All hat, no cattle. Big Upper West Side expression when I was growing up.
Mary McCord: Okay, ar.
Andrew Weissmann: That issue of people saying, oh, it’s elective prosecution. It’s really important to be like, okay, what are the facts? Like the claim just last Sunday where Donald Trump was interviewed on Meet the Press, where he was like saying, oh, I think that Jack Smith should be prosecuted, or I think that the January 6th people should be prosecuted. It’s like, what exactly is it? Like to say, oh, they destroyed evidence. What no, what is it? What did they destroy and what is your evidence of it? And I do think that the media has to be better at if you say something like that, don’t cover the adjective and the adverb. Get to what are the facts?
Let’s dig one level deeper and force them to say what it is.
So with that, Mary, why don’t we take a break and come back and finally answer the question. Could you finally get to what is the substantive argument? Because there is a real substantive argument. Having just said that’s what we should be doing.
Mary McCord: Let’s do it.
(BREAK)
Andrew Weissmann: Mary, in fits and starts, we have been saying that we’re going to turn to substance. What is Donald Trump’s argument for why the case should be dismissed and not just stayed until he is no longer president?
Mary McCord: Right. So Donald Trump borrows liberally from both the Office of Legal Counsel opinion that we have discussed in detail in this podcast that a sitting president may not be indicted or prosecuted during his term of office and from the Supreme Court’s immunity decision this summer, which although it was not about the prosecution of a sitting president, it was about whether a former president could be prosecuted for official acts or even things within the outer perimeter of his official acts while he was the president.
That opinion had lots of expansive language about the need for a president to not be cowed by the potential for prosecution and the need for a president to be energetic and vigorous in fulfilling his duties as the president and that the president, unlike the executive branch, unlike the other two branches of the government, the judiciary and the legislature, is really a branch of one, the president, because he is the head of the executive branch.
I can’t even tell you by count, but it’s on practically every page, how many times Donald Trump cites to that immunity decision, even though that is a different type of immunity. That was about never being able to be prosecuted for official acts. Here we’re just talking about putting this case off for four years and potentially resuming it at the end. And Trump’s argument for that is like, look, all of the same reasons why you cannot indict or prosecuting a sitting president apply here, even though this prosecution is now to the point where a jury has found Donald Trump guilty of multiple crimes.
And he doesn’t quite say it this clearly, which is that the case is still ongoing, right? We tend to think of it as almost over because the jury has returned its verdict and the only last thing to happen in the criminal case itself is the sentencing. But there’s a lot else that’s still pending, right? Because there is the actual motion to vacate the jury’s verdict based on the Supreme Court’s immunity decision. Again, a different immunity, that decision saying that official acts evidence can’t be used even in a prosecution for unofficial acts. That motion has been briefed. That motion would still have to be decided by the court. That’s a motion that could then be appealed up to an appellate court in New York and then ultimately an attempt to appeal it to the Supreme Court that the Supreme Court might take. That’s going to take a whole lot of time. That would all have to be happening while Donald Trump was the sitting president. There’s also the issue that Donald Trump moved after the immunity decision this summer to remove this case, meaning move it from state court into federal court to decide that immunity issue and that was denied and that is now pending appeal. So that is another thing that would have to be happening while he is the sitting president.
And finally, sentencing, I think he rightly argues that a sitting president cannot be incarcerated during their term of office because of the impact that would have on the president’s ability to fulfill his constitutional responsibilities. And so their view is to have that sentencing hanging over his head for four years also is an impediment. All these things they say for all the reasons that the Office of Legal Counsel has said, you can’t be prosecuting a president while they’re sitting. Their argument is like for all those same reasons, this case can’t move forward while he’s a sitting president and in fact can’t even move forward right now during the presidential transition period and just needs to be dismissed outright.
Andrew Weissmann: So they quote to your point 1973 Office of Legal Counsel opinion that was in connection with the Nixon administration and the quote is, “An indictment hanging over the president while he remains in office would damage the institution of the presidency virtually to the same extent as an actual conviction.”
And again, this is the Office of Legal Counsel, so it’s not a court opinion, it is a DOJ internal conclusion, but it still could have persuasive authority on a court as to that reasoning. There’s lots of embroidery, but that’s really the gist of this, which is the idea that the case isn’t over and this would be pending and be hanging over the presidency’s head like a sword of Damocles and that it could interfere with the sort of effective functioning of the presidency.
And so it’s one where, you know, you and I are such, I think, sort of straight-laced, you know, just stick to it. Like I would have liked to see the brief just, you know, just deal with that.
Mary McCord: Just make that argument.
Andrew Weissmann: Just be a law point. That’s right. Exactly. But, you know, obviously this is being written for many different audiences and I think the main thing for a judge is to try and cancel out the noise and to try and focus just on the legal point. But that’s going to be the clear issue. And, you know, the DA, as you mentioned at the very outset, signaled that the contrary position, and we’re waiting to get sort of it in a much more fulsome way, is that the DA is saying that it’s different here, where it’s a state court where there has been already been a jury verdict. And there has to be respect for the jury verdict in this case. And it really would render the former president, now president-elect, sort of immune for all time for crimes that happened before he was president.
And so, you know, obviously it’s hard to imagine this case is going to, I mean, if we’re lucky, this will never, ever, ever repeat. But the idea, you could imagine the precedent here would be quite unusual. You could, I mean, these crimes are serious, but imagine if crimes are even more serious. Let’s assume there was murder or terrorism, child predator. Now, there’s, listeners, pick a crime that you think is the most heinous in your lexicon of heinous crimes. Is it the case that becoming president then wipes that clean for all time and all periods? And then what kind of perverse incentive does that create to both run for office and win if the result is not a temporary immunity, but a permanent immunity? And that’s where the Supreme Court cases about temporary immunity, sort of implicit in that, is that it comes back.
Mary McCord: And I think that’s where it’s important to make sure listeners understand the distinction between sort of the posture of the Jack Smith case involving January 6th and the posture of this case. Right?
So one of the things we discussed when we talked about Jack Smith’s motion to dismiss that case in Washington, D.C. in federal court and Judge Chutkan’s order dismissing that case without prejudice is that when a case is dismissed without prejudice and it’s just at that indictment stage, it hasn’t already been through a trial. It hasn’t already been through a verdict. The case could potentially be rebrought after the president’s term in office is over, and it would be brought with a, you know, with a new indictment. You’d go back into a grand jury, present the case again, get it indicted and sort of start over.
Now, whether that will actually happen or not, who knows? But right now, by dismissing it without prejudice, that is an open possibility. If you were to dismiss this case, the Alvin Bragg state prosecution at this point, you couldn’t rebring it after the four years in the posture of being post jury verdict. Right?
Andrew Weissmann: Right.
Mary McCord: He has already been tried. He has already been found guilty. If this is dismissed now, it’s gone.
Andrew Weissmann: Right. I mean, if it was dismissed without prejudice, it would mean you’d have to have a whole new trial.
Mary McCord: Right. And even then, I think there might be double jeopardy issues there from having to face another trial. I’ve never seen a case quite like that.
Andrew Weissmann: Yeah. I mean, it doesn’t make a lot of sense. I mean, it basically is just saying it needs to be dismissed with prejudice. And I would say that Donald Trump’s agreement that the federal case should be dismissed without prejudice. Remember, he agreed to that.
Mary McCord: Or he didn’t oppose it. He didn’t.
Andrew Weissmann: He didn’t oppose it. That position in many ways, I think, should be used by the DA’s office. And we’ll see whether they use it in their submission to say, if that’s your position federally, then that means in this case, you really cannot take the position that this should be dismissed outright because it couldn’t be rebrought. The idea that you’d have to have a new trial, that would still be even if you thought either you’re saying it’s dismissed for all time and all purposes, which is inconsistent with your federal position, or you’re saying it could be rebrought with a new indictment and a new jury. But if that’s your position, that’s still hanging over your head. Right.
Mary McCord: That’s right.
Andrew Weissmann: So this idea that there’s nothing that could ever be hanging over your head.
Mary McCord: — is inconsistent with what they did in D.C. Right.
Andrew Weissmann: And it’s also not something the Supreme Court has gone that far in saying. They already have a lot of protections about what the kind of evidence is that could be used. So we’ll see how in very short order it should be today. What the DA says, it’s clear he’s going to oppose it. And in many ways, I think it’s going to be all of these kinds of arguments we’re talking about. But I think that will heavily lean on this New York’s interest in vindicating and giving full faith and credit to the jury verdict here, which is a shorthand for what you were saying, Mary, about the difference in posture between this case and Judge Chutkan case.
Mary McCord: And that is why there is an additional constitutional argument that Mr. Trump’s attorneys make, in addition to relying on the Office of Legal Counsel opinion, which is really sort of about the constitutional structure and how the president as the head of the executive branch, there’s no substitute for him. And an impairment is something that is completely, you know, goes against the constitutional structure. There’s an additional argument when we’re talking about a state court proceeding, which is the supremacy clause argument that if there is a conflict, you know, sort of between federal law and state law, federal, I hate to use the term, trumps over state law. And definitely that Mr. Trump’s attorneys in this motion have made that supremacy clause argument.
Alvin Bragg, like you said, he foreshadowed in his November 19th letter that given the need to balance competing constitutional interests, consideration must be given to various non-dismissal options that may address any concerns raised by the pendency of a post-trial criminal proceeding during the presidency, such as deferral of all remaining criminal proceedings until after the end of defendants upcoming presidential term.
And so this is, I think, where they’re saying there shouldn’t be a dismissal at all. This should just all be put on pause and can be resumed later. And this is where, like you say, this is where the rubber meets the road. Is that too much to have hanging over a president’s head? And if so, that has dire consequences for the rule of law, as you’ve so ably described.
So okay, just real quick before the break, basically a Me Too in Georgia, very short five page motion to have the court of appeals there, which is right now considering the appeal of the denial of the motion to take Fani Willis off of the case. That case has been, as everyone knows, sort of stuck in all kinds of preliminary proceedings for some time now. But at this point, Donald Trump’s like, you don’t have jurisdiction at least over me anymore because I’m now going to be the president of the United States. And that what they ask for is that this court, meaning the court of appeals, their state court of appeals should inquire into its jurisdiction to continue to hear this appeal. The inquiry should result in this court deciding that both this court and the trial court lack jurisdiction to entertain any further criminal process against President Trump as the continued indictment and prosecution of President Trump by the state of Georgia are unconstitutional.
Andrew Weissmann: So why don’t we take a break, come back, talk about Senator Grassley’s letter and then turn to some listener questions.
(BREAK)
Mary McCord: Welcome back. Well, right before the break, we said we would talk about Senator Grassley’s letter. Again, Senator Grassley is the incoming chair of the Senate Judiciary Committee once the new Congress is sworn in early in the new year. And yesterday he wrote a very long letter, 11 pages, single space with footnotes, extensive footnotes to FBI Director Chris Wray, really saying that he has no confidence in Director Wray’s leadership and that he should step down now, essentially. Let me skip right straight to the end of it.
For the good of the country, it’s time for you and your deputy to move on to the next chapter in your lives. I’ve spent my career fighting for transparency. I’ve always called out those in government who have fought against it. For the public record, I must do so once again now. I therefore must express my vote of no confidence in your continued leadership of the FBI. President-elect Trump has already announced his intention to nominate a candidate to replace you, and the Senate will carefully consider that choice.
Let’s talk about, you know, the theme of our first two segments was grievance. This is about 11 pages of grievance, I’d say.
Andrew Weissmann: It is. And I think the timing is notable. And I think the fact that it calls on the deputy director as well to step down is not a political appointee, but is somebody who would step in to be acting director if Wray were to step down. So both the timing and the strategic nature of why it’s calling for not just Wray, but the deputy as well to step down, I think, tells you at least the purpose of the letter.
We obviously don’t have enough time to get into all of the different allegations that are made by Senator Grassley. Because again, I’m very focused on like, one should talk about substance. But I do think in terms of the purpose, it’s I think the timing of the letter and the fact that it’s calling for both of those people to step down so that there’s a clean slate in terms of who can be put in and you don’t have to revert to the deputy director to become acting director.
Remember when President Trump fired Jim Comey, the acting director was then Andy McCabe, who was the deputy director at the time. And so this sort of wipes out that possibility. And it’s hard to view this letter as anything, you know, but setting the stage for Congress being able to not see its own interest in vindicating the 10-year term. And as we remember, we talked about the sort of 10-year term and why that’s there for it to be apolitical and that usually when you are firing or asking somebody to step down, it’s because they did something for cause. That’s sort of a norm. It’s not legally required.
So here this sets the stage for that because it’s coming up with a whole variety of things that according to Senator Grassley, Director Wray did that was improper. By the way, and the grievances here start with, can go back to the investigation of Hillary Clinton’s emails. And so, I mean, there is a lot of rehashing of things. And of course, that wasn’t decided under Christopher Wray, that he was not there for that. That was under Jim Comey. So whatever sins there were, it’s like the sins of the father being visited on the son. I mean, what does he have to do with that?
And, you know, famously, that’s one where Bill Barr sought to have that sort of revisited or was it Sessions?
Mary McCord: It was Barr. Yep. We’ve already done the investigate the investigators. We’ve done all that.
Andrew Weissmann: So there was nothing there. And there’s been an IG report on all of that. But anyway, there are lots and lots and lots of allegations here. We certainly don’t have time to go through all of them.
Mary McCord: We could say the categories, though. One, he argues that Wray has, you know, not cooperated when Congress has sought information from him. Two, he talks about Director Wray not adequately protecting whistleblowers. But three, and I’d say in many ways, this is really sort of the overall tenor of the letter. He argues that Director Wray has applied a double standard and that and in fact, to the point you were just making about the former director James Comey, Senator Grassley says President Trump has been subjected to a continuing double standard, an area where your failed tenure is consistent with your predecessors. And he at various points talks about essentially how in his view, President Trump has been treated differently than other politicians, other people have been investigating. There’s lots and lots we could say about that. But this is, you know, just again, grievance after grievance. And there’s so much here, so many things he raises to respond would take multiple hours of this podcast that I’m not sure this letter deserves.
Andrew Weissmann: Right. I don’t think it does. And it is worth remembering Christopher Wray, of course, was appointed by President Trump.
Mary McCord: Lifelong Republican.
Andrew Weissmann: And as he has testified under oath, when he was at a hearing where he was being accused of, you know, of attacking conservative Republicans. And Christopher Wray says he found that unfathomable and he says, given his personal history, which is he’s a conservative Republican and there’s nothing wrong with that. He’s like, that’s who I am. So the idea that he was just like, this is, as he said, I think his words were something like crazy.
Mary McCord: Yeah.
Andrew Weissmann: So anyway, that’s what’s out there. It’s clearly to be regardless of the merits of any of the allegations, the purpose of it seems very clear. But with that, Mary, shall we go to some listener questions?
Mary McCord: Yes, let’s do.
Andrew Weissmann: Why don’t I read the first one and you answer it. And then I’m pretty sure you’re going to want to ask me the second one.
Mary McCord: Yes, I do.
Andrew Weissmann: Okay. So this is from Cindy. Thank you very much, Cindy. And thanks to everyone else for their questions as well. So the question is, could President Biden give a blanket pardon to every illegal immigrant, including Dreamers, to stop Donald Trump from rounding them up and deporting them?
The Supreme Court says that the president’s pardon power is extensive.
Great question. We actually get this a fair amount. And Mary and I have talked about the fact that we get this from lawyers and friends who we know. So we’re really happy you asked. Mary, what’s the answer?
Mary McCord: Well, the pardon power, remember, is limited to pardoning someone from criminal prosecution, right, for committing criminal offenses. And simply being in this country without legal status is not itself a crime. Certain entries can be a crime. Certain other things can be crime. But just being here without legal status is not a crime. And a pardon cannot save somebody from deportation. Deportation is not a criminal penalty. It doesn’t require criminal process. It is a civil penalty under our immigration laws, a civil enforcement mechanism. Some would argue not a penalty, but I think those who are deported would say it is a penalty.
It is a civil enforcement mechanism where people who do not have legal status to be here can be deported. So a pardon would not save those people from deportation. And in fact, even if some of the illegal immigrants here have committed crimes, whether those are crimes related to their unlawful border crossing, remember, a lot of people might not come in unlawfully. They might come in lawfully. They might overstay their visa, right? They might have been here on some temporary protected status, and then that status was removed and they stayed. Like, there are lots of reasons that we have people here without documents that give them the lawful right to be in this country. But that does not always mean they’ve committed a crime.
Even for those who have committed a crime, a pardon for prosecution of that crime would not prevent deportation. It would just mean they couldn’t be prosecuted for the crime.
Andrew Weissmann: Right. And let’s say you were in this country and you had committed a crime and thus could be deported. I mean, all that Joe Biden now could do is give a pardon that would just prevent Donald Trump’s Justice Department from bringing that criminal case so that they couldn’t be imprisoned. But it has nothing to do with the ability to remove them from the country. That’s a separate civil process. And in the same way that we’ve talked about a federal pardon doesn’t have anything to do with state criminal charges, it is true that a federal pardon only deals with federal criminal process. So all of these people could still be subjected to any and all civil process at the federal or state level and criminal process at the state level.
Mary McCord: That’s right.
Andrew Weissmann: So that’s the sort of limits of it. So it’s a great question.
Mary McCord: It’s a great idea. It just doesn’t work with the pardon power.
That’s right.
Andrew Weissmann: Right. And in some ways, by the way, it’s useful because many people are critical of the pardon power and how broad it is. And so this is an example where you might be thinking, oh, it could have been used in a way that you agree with. But it also is useful for the pardon power to have some limits.
Mary McCord: That’s right. And I also think a lot of people just have the misimpression, no fault really of their own, but I think it hasn’t been adequately discussed in this country, have the misimpression that being here without status means you’ve committed a crime. And that just is not the case. In fact, the vast majority probably have not.
Andrew Weissmann: And stay tuned because next week we’re going to spend a little bit more time with a guest on the pardon power. Exactly. We have a good special guest on that.
Mary McCord: Okay. Now, this is a really critically important question that I’m giving to you, Andrew.
Andrew Weissmann: Finally. I’ve thought a lot about this. I did some research before we started to sort of brush up. So what do you got, Mary? I’m ready to be stumped.
Mary McCord: Okay. This is from Adam. Recently, I heard Andrew use the term of art “snap a doodling” in reference to getting something done quickly. I am wondering, is this an appropriate usage or would it be better to be used as snapping a doodle? Is it the snapping that is the action or the doodling? This has perplexed me, Andrew. And I did try to consult the Oxford English Dictionary, but I did not find the answer there.
Andrew Weissmann: So this is like what comes first, the chicken or the egg. And so I do understand that Adam has a very valid question, and I do think that listeners could have their own right views. But I’m going to give you the answer. And then I have a correction that I want to make to Adam’s question. But first, the answer, the question is, remember, is it the snapping that is the action or the doodling? And it is the snapping that is the answer. It’s like you have to snap a doodle. So that’s — the verb is the snap and the doodle is the object, right?
Mary McCord: So does that mean you were wrong when you said “snap a doodling” and it should have been snapping a doodle?
Andrew Weissmann: Well, that goes to my correction, which is I said you need to snap a doodle, not snap a doodling.
Mary McCord: Are you sure?
Andrew Weissmann: Oh, no. This is when I know that it was “snap a doodle.”
Mary McCord: I know you say that all the time, but have you ever said “snap a doodling”?
Andrew Weissmann: I don’t know. Like this, ever in my entire life? Never.
Mary McCord: Well, I mean, on the podcast, because Adam wouldn’t know if it wasn’t on the podcast.
Andrew Weissmann: Well, maybe he would. But I have to say, when I was head of the fraud section, people would come in and — because I’m constantly saying, “Have you done this? Have you done that?” And they say, “The doodle has been snapped.”
Mary McCord: Oh, there you go. I love that.
Andrew Weissmann: And that, to me, answers the question.
Mary McCord: The question.
Andrew Weissmann: The doodle is the object, and the snapping is the verb. Yes. You’re snapping the doodle.
Mary McCord: Right. So the doodle might have been the criminal case or a motion or whatever, right, that needed to be snapped.
Andrew Weissmann: Whatever you needed to do. Like, this is like Director Mueller would always say, “Stop playing with your food.”
Mary McCord: Yes.
Andrew Weissmann: And that was sort of his expression for, like, “Let’s get a move on.” And mine was, “Snap a doodle.” And just to remind people, this is a Southernism that was invented by a friend of the sister of a friend of mine.
Mary McCord: Okay.
Andrew Weissmann: Pretty clear.
Mary McCord: That’s complicated.
Andrew Weissmann: But I remember saying to my friend, “What’s the derivation? Is it Southern?” And she said, “Well, I think yes, because my sister’s friend who came up with the term is Southern.”
Mary McCord: Okay.
Andrew Weissmann: From Columbus, Georgia. So shout out to Columbus, Georgia for the phrase “snap a doodle.” And by the way, I have a feeling that I may be hearing about my grammatical view of “snap a doodle.” I may have the Southern horse’s mouth tell us whether I’ve gotten the verb subject right.
Mary McCord: I can’t wait. I look forward to it.
Andrew Weissmann: So I have to say, it’s kind of remarkable that we can be this silly when it’s like fiddling while Rome burns.
Mary McCord: But you know what? I think everyone needs levity in their life. And I sometimes open up the paper in the morning and I think, “I don’t want to read anymore. I really, a lot of things are really rotten right now.” And then it’s like, you got to have some levity. That’s a human nature, I think.
Andrew Weissmann: I totally agree. I remember Albert Camus, I used to read a lot of French literature in college, and he was very much an activist, but he had the exact same thought, which is he wrote about very, very serious topics, but said that can’t prevent having joy in your life at the same time to help get through it.
And, you know, I’ve been going the last few weeks to a lot of concerts. I love classical music and I’ve gone to a lot of concerts in New York. And it’s so invigorating and relaxing and refreshing and restorative. And so I hope for all of our listeners that they are finding that whatever it is in their life, whether it’s music or sports or theater or some hobby like, you know, knitting or Mary, I know you’re a runner, find something to create that peace.
Mary McCord: That’s right. Get your mind off of the negative and into the positive. Well, that’s a happy note to end on.
Andrew Weissmann: It is. So as we said, next episode, we have a really terrific guest and we’re going to spend a little bit more time talking about pardons. And we definitely will be able to talk more about our first topic, which is what the DA says in response. And again, we’ll focus then on the, you know, on the substance. I’m sure he will be interested to see what he says about all the extraneous, but there is this key legal issue.
Mary McCord: Sounds good.
Andrew Weissmann: Well, thanks for listening. And remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC Originals ad-free. In fact, we just did an episode for MSNBC Premium, a bonus episode called “Left of Boom” that actually I found it really fascinating. If you are a Premium subscriber, there is that original audio. We just dropped one, but there are also in other shows, there’s additional programs as well.
Mary McCord: To send us a question, you can leave us a voicemail at 917-342-2934. Or you can email us at prosecutingtrumpquestions@nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineers are Katie Lau and Rick Kwan. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC.
Andrew Weissmann: Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.