After Donald Trump’s decisive win this week, election litigation expert Ben Ginsberg joins MSNBC legal analysts Mary McCord and Andrew Weissmann to drill down on why we are not seeing any post-election challenges, despite a bevy of concerns and allegations before voters went to the polls. Then, Andrew and Mary tick through what’s next for each of the president-elect’s criminal cases in DC, Florida, Georgia, and New York.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello, and welcome to Prosecuting Donald Trump. It is Friday morning, November 8. I am Andrew Weissmann, and I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Good morning, Andrew. This is our first recording post-election. And I think, honestly, a bulk of what we’ll talk about today is revealed in the title of today’s episode.
Andrew Weissmann: Absolutely.
Mary McCord: Not Prosecuting Donald Trump.
Andrew Weissmann: Yeah, so we’re going to talk about exactly that, which is sort of what are the ramifications. Next week, we’ll get into sort of a more granular view, particularly with respect to the New York case, which has a lot of deadlines coming up. But today, we wanted to give that overview with respect to the criminal cases. And next week, we’ll do more of a deep dive on one of the criminal cases, civil cases, and ramifications there.
Mary McCord: And also the January 6 other rioters’ cases, too. So lots to talk about.
But before we jump into sort of the overview of this immediate impact, or soon-to-be-felt impact, on the prosecutions, we do want to talk about some of the really good things we can say about this election, which is that our election officials across the country did just a masterful job. And we will be joined here in just a minute by someone to help us unpack why we’re in a position right now of there not being post-election litigation.
Andrew Weissmann: And then, Mary, you and I will jump through the sort of various four criminal cases to give our takes on what we think will happen there.
Mary McCord: So let’s get to it.
Andrew Weissmann: Yeah.
Mary McCord: So we’re really excited to have Ben Ginsburg joining us now. He is a nationally known political law advocate. He has represented participants in the political process for decades. He is also the Volcker Distinguished Visiting Fellow at Stanford’s Hoover Institution. And he’s a co-chair of two nonprofits that aid election officials to enhance confidence in the American elections, the Pillars of the Community Project, which he does with Bob Bauer. And I’d love to talk a little bit about that after we talk through some of the results of Tuesday and also, the Election Officials Legal Defense Network.
He served as national counsel to the 2000 and 2004 Bush-Cheney presidential campaigns and played a central role in the 2000 Florida recount. So he knows recount litigation. He knows pre-election litigation, post-election litigation. And Ben, when we initially invited you, we thought that we may very well, by today, Friday, four days after the election, be in the midst of a bunch of different litigations and we’re not. How did we get here?
Ben Ginsberg: Well, that’s what a decisive win will do for you.
Mary McCord: Yes.
Ben Ginsberg: Recount lawyers get excited when the margins are narrow. There were no narrow margins in the presidential states this year.
Mary McCord: Yeah. So generally, it just wouldn’t have been worth it to seek recounts, or you wouldn’t have been entitled to them, I guess, right? In some states, don’t you have to be within a certain margin even to seek them?
Ben Ginsberg: Yes. It varies from state to state. You know, as you saw in 2020, and it’s certainly been the history of recounts, margins of more than a few hundred votes never, ever get reversed in recounts. And they certainly didn’t in 2020 with the margins that Joe Biden had over Donald Trump, and they certainly weren’t going to change anything this time.
Andrew Weissmann: So I was wondering, one of the things that happened in the last election is, obviously, there were some states that were much closer than others, but it didn’t seem to prevent claims of voter fraud and that the election was stolen regardless. And that was a time when Donald Trump was actually the president at the time, and yet there were claims of significant voter fraud regardless of the state counts.
And this time, although there were various allegations or statements before the election, there seemed to be a complete dearth of claims at a time when the person running for the presidency on the Democratic side was the sitting vice president. You had a Democrat in the White House, and one of the remarkable things is the results of this election are accepted by everyone, both Democrats and Republicans. There seems to be a supreme irony, as if we’re supposed to go through amnesia, as to what happened in 2020 and the fact that leading up to this election, there were significant concerns that there was going to be violence and there were going to be all sorts of bogus claims of election fraud.
Ben Ginsberg: Yeah, I understand that point of view. I prefer to take this as an overwhelming bipartisan agreement that our election system works, that the institution of elections is solid. You heard really no complaints after this election on there being any fraud. The Trump campaign had 200,000 poll workers out there watching carefully in America. So if there was evidence of anything amiss, they certainly would have found it. I’m sure they are patriotic Americans and want to be sure that the American election system functions.
The lack of any complaints about it from either side would suggest that our election system is indeed sound and reliable.
It’s also noteworthy that in addition to the no charges of fraud, there were no allegations of suppression of voters either that’s hallmarked many of our past campaigns. So there were no instances beyond, I think, administrative kind of mess ups where you had some long lines in jurisdictions. That would suggest this was anything but a very well-run election with huge credit being given to election officials around the country.
Andrew Weissmann: Well, that’s definitely the case in terms of the amount of work of the poll workers. It’s great to not see the kinds of allegations that we saw that were so harmful, particularly I’m thinking of Shaye Moss and Ruby Freeman. And there was a real concern about that. It’s a bipartisan issue of just having free and fair elections.
I have to say I’m a little less sanguine than you are in terms of whether this would have been the case if the result was different. But I’m going to choose to try and have your optimistic view because I agree with you that this is a testament to the fact that our elections work. But one thing I did want to comment on was a couple of things that did happen in terms of interfering. Even though it was relatively minor, there were bomb threats that were called in in Georgia, I believe, that were attributed to Russian interference.
There were, I think, coming from the Trump campaign, during the Tuesday election, there were reports of voter fraud. I believe in Philadelphia and Detroit. And so I was wondering what you made of those types of things, again, they’re not major, but they are instances where detract from this idea of free and fair elections.
Ben Ginsberg: Well, I think that the allegations were made, the bomb threats were made, there were charges. I think what it showed is that election administration officials rise to the challenge when that happens. There was no one who wasn’t allowed to vote who should have been able to, which I think is the significant thing. And look, we made a policy decision 240 years ago that we were going to have very localized elections with local control. So we now have, nobody quite knows the exact number, but somewhere around 10,000 jurisdictions. So in 10,000 jurisdictions, in a very human system, really run by volunteers, you will have mistakes, you will have incidences, you will have over-caffeinated lawyers making allegations, create kerfuffles.
I think also you have to look at this election and recognize that there was a huge amount of pre-election noise about fraud and rigged elections, just like there was in 2020.
In 2020, there were 64 court cases. None of them showed any evidence, produced any evidence of fraud or irregularities that would have changed an election result. This time around, the pre-election noise was even louder than it was in 2020, yet it went away once Donald Trump went ahead. And what that is evidence of just how politically motivated all those charges were and had nothing to do with the integrity of the system. Because if the people making the charges cared about the integrity of the system, we would be dealing with lawsuits now, and we would have had a lot more to talk about on this program.
Mary McCord: Yeah, I know that, you know, just so listeners know, in Georgia where these bomb threats came in, I think in pretty much every jurisdiction, judges then did sign orders for those jurisdictions that had to evacuate and close for some period of time to keep those polls open the exact amount of time that they were closed extra in the evening.
Although, you know, you never know if there were people who had to go to work and weren’t able to stay or come back later and things like that. And I’ve actually had people ask me, why isn’t that something that lawsuits can be brought about? And I guess I think there’s two responses to that. One, there’s no way of knowing how many people were impacted, no way of knowing if that could have possibly impacted the election. And in Georgia, the margin is such, I can’t imagine it would have. And there’s an attenuation there, too. There’s just nothing to actually litigate about that.
But I think there are some people who think, you know, that might have had an impact. And certainly, there’s no way to measure the impact of the Russian influence operations before the election, just like there was no way to measure it back in 2016 or the Iranian influence operations. Were there people whose minds were changed because of this foreign interference? Were there people who were afraid to vote because of concerns about violence? Those are things we’ll never know the answer to, but they’re not things that are really litigatable.
Ben Ginsberg: No, because you don’t, so far, we have not heard any individuals come forward and say, “I couldn’t vote because of this.”
Mary McCord: It’s true.
Ben Ginsberg: And so in any case, you’ve got to have, you know, somebody to come out. And, you know, turnout in Georgia was close to a record high. So it was an impressive turnout operation. At some point, it’s worth talking about the impact of the legislation that was passed in Georgia that was supposed to tamp down turnout and apparently did not.
Mary McCord: That’s right. Yes, you raised earlier no significant charges of voter suppression. And that is certainly the case on election day. There was quite a lot of litigation pre-election, some of which certainly at least appeared to be attempts to dampen voter participation. And I think this is kind of where you’re going here, Ben.
Ben Ginsberg: Yeah, you know, what’s really interesting about that, first of all, the initial academic research by my Hoover colleague, Justin Grimmer, shows pretty convincingly that all those laws passed have just a marginal effect, if anything. More interesting is what Donald Trump has done to change the basis of the party so that actually he has made a point of going after low propensity voters. And those bills that are passed that supposedly tamp down voter participation are now actually going to hurt Republicans as much as Democrats. So it’s a really interesting changing base phenomenon we haven’t taken full account of yet.
Andrew Weissmann: And Ben, just for our audience, when you say low propensity, just what do you mean by that?
Ben Ginsberg: Well, political operatives will go through all registered voters and check the voting records for who goes out how many times. And low propensity voters are people who do not vote very often. So Donald Trump made a specific push to get young male non-college educated voters off the couch into the polling place. And so the barriers that got put up by the legislation would affect the bros as well.
Mary McCord: Yeah, it’s interesting. I thought throughout a lot of the pre-election litigation, there seemed to be sometimes this phenomenon of potentially litigating against their own interests as you’ve just been illuminating. And that is also what was interesting about the position on early voting. I mean, the GOP was, I think, generally encouraging early voting, encouraging mail-in voting, yet Donald Trump at various times would seem to encourage and various times criticize any early voting or mail-in voting as being rigged or susceptible to fraud and such. And I kept thinking, aren’t you kind of working against your own interest here?
Ben Ginsberg: It drove the political professionals in the Republican Party slightly crazy because just on the face of it, Republicans are an older party. And especially during COVID, why would you tell the older party, afraid of getting diseased, they should not vote by mail?
Andrew Weissmann: Right, right. It seemed like that was something he somewhat learned from, although he wasn’t consistent this time, it was something he realized from last time was a mistake.
Ben Ginsberg: And the party operatives in the states did push early voting and mail voting.
Mary McCord: Yes, absolutely.
Andrew Weissmann: And something Mary teed up in the beginning is the work that you’re doing with Bob Bauer, the former White House counsel under President Obama. He’s currently a colleague of mine at NYU Law School. And I think it’s something that our audience might be particularly interested in, given that both you and he are tremendously respected lawyers, experts in election law, and that this is such a bipartisan effort. You’re doing this project together in a bipartisan way in terms of this systemic issues. And it’s such a great model, I think probably even more so right now. And I was wondering if you could talk about what you’re doing.
Ben Ginsberg: Well, thank you.
It stems from when Bob and I co-chaired a presidential commission on election administration and got to know election officials in a different way and gained a huge amount of respect for them.
So when the current troubles after 2020 emerged, the pillars of the community project came to be. And what we wanted to do is to provide community leadership support for election officials and the processes of the election system. So we went into the most contentious election jurisdictions, made a conscious effort to get community leaders, non-elected officials, but community leaders across the political spectrum together to meet with the election officials and really kick the tires of the election system.
So we had some really fascinating meetings in battleground states where we would have people who are certainly skeptical about elections together with their opposites on the political spectrum and the election officials who did a tremendous job of answering any questions anyone had.
Part of the program was to take the community leaders in to inspect the election system and really numerous meetings where they could bring their networks in to talk to the election officials. And so we hope that we did give the election officials some support from across the political spectrum. Although there may be many reasons for there not having been post-election contests, we do think that the idea of talking across the political divide is really, really important for preserving the institution of American elections.
Mary McCord: I could not agree with you more. And that’s why I think Andrew and I are, and so many people are so grateful for the work of you and Bob, because you guys really set a standard there for approaching elections in that bipartisan way, which frankly is the way they used to be approached, at least at that local level. Most people had no idea, the party of their election officials, I think, nor did they care. So I really applaud that work and I hope that the work you’ve done can really be the standard bearer for the future.
And I think, like you said earlier, we really, really owe a debt of gratitude to our election officials at the state and local level who have been working for four years to prepare, to be able to ensure a safe and secure election. And that is what we had. I mean, there are little incidents we didn’t talk about. I was monitoring the election protection hotline all day. There were some harassing incidents. There was actually one temporary restraining order issued on the day of, based on somebody videotaping people at polling places. But these were small incidents that did not affect the count and were resolved, were taken care of. And so I think we really, we should be proud. However we may feel about the results, we should be proud of the work that our election officials did and the work that you and Bob did to help that to happen.
Ben Ginsberg: Yes, thank you. It’s really important to note how successfully this election came off from the process point of view.
Andrew Weissmann: Yeah. Ben, thank you so much. In some ways, it’s great that you’re not here talking about all of the sort of litigation, bogus or otherwise. And at least on the systemic level is a good news story. And for whatever reason, we have bipartisan support for the fact that this was a free and fair election.
Ben Ginsberg: Yes.
Mary McCord: Thank you so much for joining us. And I have had the pleasure of being with Ben on a several different panels in the lead up to this election, discussing these types of issues. And so I’ve really gotten to know you better than I had before. And I appreciate your friendship and your wisdom. And we look forward to having you on sometime in the future.
Ben Ginsberg: Thank you. It’s been a pleasure. And thank you for doing what you’re doing.
Andrew Weissmann: Thanks so much. So why don’t we take a break, Mary, and then we can dig into the four criminal cases. First, the two federal ones, DC and Florida, and then we’ll jump to the state cases, New York and Georgia.
Mary McCord: Sounds like a plan.
(BREAK)
Andrew Weissmann: So Mary, welcome back. And let’s get our takes on what’s going to happen in our view. So let’s talk about DC, Mary. What do you think is going to be the next thing up there in terms of what can happen between now and January 20th? And what do you expect after January 20th when Donald Trump is inaugurated?
Mary McCord: Sure, you know, it’s so interesting because my phone and my emails were just completely deluged on Wednesday with reporters and others asking about what Donald Trump will do about those cases once he’s president. Will he pardon himself? Will he order them dismissed, et cetera? But very few people were focused on this interim period and what Jack Smith, the special counsel, would do.
And I think some people have sort of been surprised to learn, and this has not come out as official word from the Department of Justice, but it has been reported that there are discussions ongoing about potentially winding down these criminal prosecutions even while Joe Biden is the president and Jack Smith is the special counsel. And the reason for that is because of longstanding Department of Justice policy. It has been in the form of memos written by the Office of Legal Counsel, which are binding on department lawyers. And you know this better than anyone, Andrew, because it happened during the Mueller investigation. We can talk about that in a minute. But that policy is that the department cannot prosecute a sitting president.
And, you know, that’s exactly what Robert Mueller in the Mueller report, had a footnote when he said, “I’m not going to make a prosecution decision at this time about whether prosecution of Donald Trump should happen because of this longstanding Office of Legal Counsel Department of Policy.” I will say a policy that has been reiterated by assistant attorneys general who lead the Office of Legal Counsel under both Republican and Democratic administrations. It’s not been partisan. It has been bipartisan. And so under that policy, even back in the Mueller investigation, said, “I’m not going to make a recommendation because no prosecution of a sitting president could occur.” Because at the time, of course, that that Mueller report came out, Donald Trump was a sitting president.
So the question then for Jack Smith is, what does that mean? Does he dismiss the January 6th case, dismiss the indictment? Does he dismiss the appeal in the 11th Circuit? And we’ll come to that in a second. That’s the appeal right now that has been taken in the Mar-a-Lago case, appeal of Judge Cannon dismissing that case. And if he does dismiss them, does he do something called dismissing with prejudice or dismissing without prejudice? And what with prejudice means is it is gone. It can’t be brought again. And without prejudice means it could be brought again. It’s gone right now, but it could be brought again. That’s typically what those terms mean.
Andrew Weissmann: In D.C., what do you think they’re going to do? What do you think Jack Smith is going to do? Obviously, he’s bound by that policy. Just to be clear, the Office of Legal Counsel has two opinions on this. One was issued during the Nixon administration. One was issued during the Bill Clinton administration, perhaps understandably to this audience as to why it would be during those two administrations. But that’s to your point that it’s both a Republican administration view and a Democratic administration view. In many ways, it’s about sort of the role of the Department of Justice and the presidency, regardless of party.
Mary McCord: Right, because of the distraction of somebody trying to actually lead the country as the president who has been voted by the people, by the will of the people to be the president, to have to then go through a trial. We know our listeners covered the Manhattan trial with us. I mean, these are weeks-long things, and obviously distracts from doing the business of the presidency. But it is just policy. It’s not constitutional, just to be clear.
Andrew Weissmann: Yeah, it’s a policy. We don’t know what the actual law is. The Office of Legal Counsel says this is the policy. They somewhat opine on what they think the law would be if it ever got to court. But in any event, it’s a policy. It’s going to govern. So do you think Jack Smith takes that into consideration now? Do you think he just says, “I’m just going to go forward and wait until January 20th, “and the next administration can deal with the policy”? What do you think is going to happen?
Mary McCord: I mean, he certainly could do that, because right now, Donald Trump is not the sitting president. So right now, the policy would not apply. But I think that this Department of Justice has shown itself for four years, or almost four years now, to really adhere to rule of law and to norms within the department, and to sort of proceed along over these next two months as though the case is going to ultimately be able to be tried. I think they may see as just not something that they should be doing, knowing that even despite what Donald Trump might do as president, the department would not be able to continue this prosecution.
So my guess is that he will probably move to dismiss without prejudice on the theory that potentially there could be a prosecution after Donald Trump serves his time in office. Now, that raises some really sticky statute of limitations issues that I don’t know whether we can get into today or not that would be interesting for another episode. But that might also be somewhat irrelevant, because once Donald Trump is the president, he can certainly order his Department of Justice to refile it as a dismissal with prejudice. And I expect that he would do that. He has said Jack Smith will be fired within two seconds. Obviously, that doesn’t impact the filing in court, other than that would be just getting rid of the special prosecutor. There’s plenty of other lawyers that could make this filing.
And also one thing I was asked by media is like, does he have to direct his new attorney general to do it? No, I mean, a new attorney general might take a little bit of time to get nominated and confirmed, and he can just direct department lawyers to do it on day one.
Andrew Weissmann: Absolutely. So I think that Jack Smith is likely to, in the DC case at some point, because there’s no way to get this to trial before January 20th. And so this isn’t like a race to the courthouse. That’s never going to happen. There’s still a whole bunch of Supreme Court litigation that’s going to happen. There’s not a trial date. So that’s just not a possibility. And so we’re not in that sort of hypothetical of like, what if there were time? There isn’t.
And so given that reality, I think that he probably will move to dismiss without prejudice. The issue of, I don’t see why he would agree to dismiss with prejudice when he brought the case. He presumably thinks that it’s a righteous case. Exactly. And so if whatever the next administration is going to do, the next administration is going to do, but there’s no reason that he needs to facilitate that.
And then I totally agree that the next administration will seek to have it in some way filed with prejudice. But that’s sort of complicated. And there’s some nuances there depending on when Judge Chutkan were to rule and what she would do. But also it is a decision by the court, even though there is enormous deference has to be given to the prosecution. But the issue of with or without prejudice is something that the court actually does have a role in, in terms of when —
Mary McCord: It’s not a given.
Andrew Weissmann: Right, the deference is more to not bringing the case, but how it ends, whether it’s with prejudice and thus it’s dead forever, versus without prejudice where it’s potentially could be rebrought. Although I have to say, this is one where practically —
Mary McCord: I don’t really see it.
Andrew Weissmann: Exactly.
Mary McCord: Just in, after Andrew and I finished recording the podcast this morning, Friday, November 8th, Jack Smith did indeed make a filing in the January 6th case. That’s the case before Judge Chutkan. What he asked for is, and he was unopposed, shockingly on this, I’m being facetious of course. What he did ask for was that the court vacate the remaining deadlines in the pretrial schedule to afford the government time to assess this unprecedented circumstance and determine the appropriate course going forward, consistent with Department of Justice policy.
By December 2nd, the government will file a status report or otherwise inform the court of the result of its deliberations. So as Andrew and I were talking about earlier, it’s possible that Jack Smith will move to dismiss, without prejudice, the January 6th case. But right now, what he’s asking for is just all those other deadlines for filings, because there was more litigation going on than just litigation over the immunity decision. There were discovery motions and other motions. Just put aside all of those deadlines for the government to make a decision about what it’s going to do.
That was unopposed by Mr. Trump’s lawyers, and so I suspect that we will have an order from Judge Chutkan probably within hours, if not minutes, probably granting that request, given that it is an unopposed motion. So, presumably, December 2nd is the day we will know, or before that, the day we will know what the government intends to do. And of course, we will be back on Tuesday. We can talk a little bit more then about what this means.
Andrew Weissmann: Exactly.
Mary McCord: Just before we move on, some listeners may recall that back during the first Trump administration, there was a prosecution of Michael Flynn. It went all the way through his finding of guilt, and then the attorney general directed that that case be dismissed. That is something that the judge at the time then appointed an attorney to actually argue the position of why it shouldn’t be dismissed. That’s an issue that went up to the Court of Appeals. It came back down. Ultimately, the judge did agree that it could be dismissed, and the Court of Appeals was never crystal clear about is there ever a situation where a court could say, well, I shouldn’t say is there ever. There are situations a court could say, no, I’m not going to grant the dismissal if they thought the government was actually trying to disadvantage a defendant in timing or something and kind of mess with him by dismissing and rebringing. But that, of course, wouldn’t be the case, wasn’t the case with respect to Michael Flynn, and ultimately, I think it would be very hard for a judge to refuse to dismiss a case when the government moves to dismiss it.
All of that said, that’s different from the with prejudice versus without prejudice point, which is still something where a judge does have more discretion.
So yes, okay, so now, looking at Florida, Florida’s in a different situation because Judge Cannon already dismissed that case. Remember, she dismissed this on the grounds of Jack Smith having been appointed in violation of the Appointments Clause of the Constitution and the Appropriations Clause. We’ve talked about those before. The government rightfully appealed that because that’s inconsistent with Supreme Court case law and case law in other jurisdictions like the D.C. Circuit, and it has been briefed by the government, it’s been briefed by Trump’s attorneys, the government reply brief is due in a week or so, week and a half, I think, and so it will be fully briefed. And importantly, it doesn’t involve just Mr. Trump. It involves two co-defendants, right, Walt Nauta and Mr. Olivares, and so the question there is, what will Jack Smith do?
Andrew Weissmann: So yeah, I think that this is, in addition to the fact that there are three defendants, it’s also a legal issue that you would think under any administration, you’d want to have a definitive answer because Judge Cannon’s decision is this outlier saying that the special counsel regulations are not constitutional and not statutorily authorized. So you have this sort of a weight on what would happen next time because you don’t have uniform decisions in the way you had prior to her ruling.
So there’d normally be an interest of the Department of Justice and the White House would have in getting a clear answer on this. And we know at least one Supreme Court justice is interested in this issue so that it could be something that’s heard by the Supreme Court so you have a definitive ruling. It is, however, the worst possible vehicle for it because you will have Donald Trump as the president-elect and then soon to be president as one of the potential defendants if it were to be reinstated. So it’s the worst vehicle for it.
And it is true that the case against Donald Trump, even if it got reinstated, would have to be stayed or it would have to be dismissed without prejudice or it could be dismissed with prejudice for all the reasons we just talked about in D.C. So that piece is sort of gone, but you do have these other two defendants.
Now, I think that A, the interest in getting a clear legal ruling is going to be trumped, no pun intended, by the fact that it’s the wrong defendant. It’s just not the right vehicle. So I think that they’re going to not want to see this argued in the 11th Circuit, not have this issue decided.
Mary McCord: They also already have good law on this elsewhere.
Andrew Weissmann: They do. But I also think with respect to this issue, what do you do? Because you do have a live case with respect to the other two defendants, the people who are charged with conspiracy and obstruction of justice. Those people, I think, are going to be pardoned by —
Mary McCord: Or just have the cases dismissed. He wouldn’t have to pardon them. He could just order their cases dismissed with absolute prejudice.
Andrew Weissmann: So, and Mary’s point is that one-
Mary McCord: It’s going to go away.
Andrew Weissmann: It’s going to go away, and that the president can just tell the attorney general, “Stop prosecuting.” If he wants complete protection for them, he pardons them, because that means that no future Department of Justice could bring the case. But so those other two defendants won’t have that remaining issue. So I think this is a long way of saying is that maybe the 11th Circuit oral argument will happen. I suspect that Donald Trump will say, “There’s no reason for it to go forward,” that he anticipates that this will come moot when he becomes president. The 11th Circuit isn’t going to be looking to do extra work for itself in that situation. So I think this is a long way of saying is that I think this appeal is dead and gone.
Mary McCord: Yeah, agreed. Speaking of dead and gone, let’s take a break. And when we return, we will look at what might not be dead, but might be delayed, let’s just say. Delay has kind of been the, boy, that’s kind of been the name of the game for quite a long time, hasn’t it? So we’ll come back and we’ll talk about the upcoming expected ruling on immunity and sentencing, depending on the ruling on immunity in the Alvin Bragg Manhattan case that, of course, Donald Trump has already been found guilty of and we’ll also talk about the pending case in Georgia.
(BREAK)
Mary McCord: Welcome back. So we have dates coming right up. Judge Merchan, back when he granted Trump’s request to stay, or he uses the term adjourn, the proceedings until after the election, he rescheduled all the dates that had been pending and he now says, or he said at the time he agreed to the stay, that he would issue a ruling on whether the conviction needed to be vacated due to the admission of evidence that, of conduct for which Trump is immune, which is what Trump’s attorneys had argued. He would issue that decision next Tuesday, November the 12th, and then if there was still a case that he was not dismissing the case on those grounds or ordering the vacater overruling of the jury’s verdict, then he would proceed to sentencing on November 26th.
What do you think’s going to happen there, Andrew?
Andrew Weissmann: So with respect to the November 12th ruling on immunity, I do think that the judge, I think he’s going to be asked by Donald Trump to sort of put everything off and to put the sentencing off. And I think that Donald Trump’s play there, because it’s a state case, is he can’t dismiss it. The Attorney General of the United States and the President of the United States does not have authority to tell a New York judge or a New York district attorney what to do. But he, I think, has an extremely strong argument that the case would be stayed for four years, very much for the reasons that we talked about in terms of the Office of Legal Counsel policy with respect to the Department of Justice, which is that these state cases, you don’t want 50 states all with the ability to interfere with the presidency. And so the argument by Donald Trump will be, please put this all off, because it’s ultimately going to be stayed as of January 20th.
Before then —
Mary McCord: Wait, don’t you think, don’t you think he’ll actually argue that the entire thing should be dismissed and then fall back on staying?
Andrew Weissmann: Yeah, yeah, yeah. Well, of course, I mean, he’s going to, of course, say that. I mean, he’s already been saying that.
Mary McCord:; He already has been saying that, yes.
Andrew Weissmann: So, I mean, of course, it’s like a menu. It’s like option A, option B, option C. So of course, but I’m just thinking of this best arguments. And you could imagine Judge Merchan may be agreeing, but also thinking, you know what? I have to decide this issue about what’s the effect of this immunized test, and I do, I think it affected the outcome. And although Donald Trump asked for complete dismissal, the real remedy would be a new trial.
And so I actually think that Judge Merchan will and should decide that issue. I think that if I were predicting, I would say that he thinks that there should not be a new trial, that the evidence was not so significant or not official or both. And we talked about the various issues there. I do think with respect to sentencing, however, now there’s, I do think with respect to sentencing, I think that is a weighty decision as to what to do there. And I think that is one you could argue strongly on both sides of that.
The one thing I do think is that if he were to go forward and the Supreme Court or some other court didn’t stay his hand, because-
Mary McCord: That’s another thing that would likely —
Andrew Weissmann: And we will talk more about this, because this is the thing we’re going to be more granular. But if he were able to go forward, I think the chances of his imposing a jail sentence are infinitesimal at this point, even though he could be saying the jail sentence will be served post-presidency. I just think at that point, the function of jail just becomes so attenuated from the 2016 crimes. And so I’m sure our listeners are saying, you’ve got to be kidding. And they might have a bunch of expletives between the words of you’ve got to be kidding, which by the way, my father taught me is called a tmesis, which is when you have an expletive in the middle of like a word.
Mary McCord: Oh, okay, good to know, fun fact.
Andrew Weissmann: Yes, exactly, fun fact, which is if you grew up in the Weissmann household, you would know my dad was a wonderful academic patent. So I learned all these things, but it is a function of Donald Trump’s ability to delay things. It is a function of the Supreme Court’s ability to delay things. I’m not going to get on my high horse, but it really shows our American legal system has not figured out how to hold presidents to account.
Mary McCord: That’s right, I think that’s exactly right, moral of the story and much more to come on that.
Andrew Weissmann: Yeah, so Mary, I know we’re going to do more in this, but quickly, what do you think about Georgia?
Mary McCord: So Georgia, recall, there’s lots of defendants beyond Donald Trump. I do expect he will move, he will of course have the menu, this whole thing should be dismissed, but secondarily, it should be stayed and it will be stayed, I think. I think there would be significant constitutional issues. Again, he can’t order it dismissed, it’s a state case. He can’t pardon himself, it’s a state case. But I do think there are serious supremacy clause issues and federalism issues and things like that that would make it difficult to actually have a trial and all the things we’ve talked about with respect to the OLC policy, even though that’s federal policy, I think that that will carry the day in Georgia as to Donald Trump.
Andrew Weissmann: Yeah, but what about all those other people because they can’t be pardoned because these are state charges. And remember, a president does not have the power to pardon for state charges.
Mary McCord: That’s right. No, I suspect that, again, this case right now is hung up on appeals on issues involving whether Fani Willis should have been disqualified. So it’s already tied up in various legal issues. There’s also been motions made by Mark Meadows and others about applying some of the immunity ruling to them. So it’s going to have all kinds of additional litigation. But assuming that the outcome of that litigation is that the case could go forward against the other defendants, I suspect it will.
Now, that could still take another year or more depending on all this other litigation. There are many defendants there. But I think that it will, it could, and it likely will. I will also say, I think that depending on what happens with Donald Trump, we could see the people who’ve already pleaded guilty coming in and saying, “Hey, we might want to withdraw our guilty plea and take advantage of some of the things like the immunity ruling and whatever the judge decides to do with respect to Donald Trump, et cetera.” So there is something that could be very deeply unsatisfying about other people ending up being held accountable and Donald Trump not being held accountable. But the flip side of that is, does everyone who out of their own free will, you know, participated in the charged crimes, assuming a jury found that they had participated beyond a reasonable doubt, it would also be wrong, it seems to me, to give everyone a pass just because Donald Trump is getting that pass.
Andrew Weissmann: Yeah, I mean, that’s the world we’re in. I mean, it feels deeply unfair. I know this is probably quite the downer of a episode for a downer of a week, but we really wanted to make sure people understood what the ramifications are and were clear-eyed about it.
Mary, you and I are going to definitely, there’ll be a lot with respect to New York in particular next week that we will focus on.
Mary McCord: Also, we’ll talk about the fact that January 6th defendants are already trying to like have their proceedings delayed, sentencing’s deleted, et cetera. Those are being rejected. So far, we’ll talk more about that.
Andrew Weissmann: Yeah, and it was nice to hear from Ben on the, I’d say the one good news policy, which is that the election system, guess what? All of the claims of election fraud and that everything’s stolen, not so much.
Mary McCord: Crickets, crickets right now.
Andrew Weissmann: Love it.
Okay, well, thanks for listening. Remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC originals ad-free.
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 engineer is Katie Lau. 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.
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